Sitting of 14 May 1878

MINUTES.
SELECT COMMITTEE—Land Registration, appointed; East India (Public Works), Mr. Eustace Smith discharged, Mr. Ernest Noel added.
PUBLIC BILLS—Ordered—First Reading—Criminal Code (Indictable Offences) [178]; Elementary Education Provisional Order (Portsmouth) * [179].
First Reading—Consecration of Churchyards Act (1867) Amendment* [176].
Second Reading—Elementary Education Provisional Order Confirmation (Mickleover) * [161]; Local Government Provisional Orders (Droitwich, &c.) * [163]; Local Government Provisional Orders (Dawlish, & c.)* [167]; Pier and Harbour Orders Confirmation (No. 2) * [159]; Acknowledgment of Deeds by Married Women (Ireland) [173]; Highways (South Wales) * [160].
Second Reading—Tramways Orders Confirmation (No. 3) * [174], and referred to Select Committee on Tramways (Use of Mechanical Power).
Committee—Report—Dental Practitioners* [96–177].
Considered as amended—Public Health Act (1875) Amendment* [144].
Withdrawn—Marriage with a Deceased Wife's Sister* [52].

QUESTIONS.

  ARMY—COMPULSORY RETIREMENT OF OFFICERS.—QUESTION.
  GENERAL SHUTEasked the Secretary of State for War, Whether he will consider the disadvantageous position in which officers are placed who are themselves subject to a system of forced retirement, while the Lieutenant Colonels of their regiments are not limited to a five years' command?
  COLONEL STANLEY, in reply, said, the subject was considered by a Royal Commission that reported in August, 1877. The Royal Warrant was framed on its recommendations, and it was not proposed to make any alteration in the existing regulations.

  POST OFFICE—THE MONEY ORDER OFFICE—SALARIES.—QUESTION.
  SIR CHARLES W. DILKEasked the Postmaster General, with reference
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  to the three principal clerks employed in the Money Order Office at salaries of £420 each, rising by annual increments of £20, Why £1,760 is taken in the Civil Service Estimates to meet the charge for those salaries; and, whether the scheme of re-organization proposed for the Money Order Office has received the sanction of the Treasury; and, if not, whether he intends to fill up the vacancies in that office, some of which have been open since 1874, and for filling which provision seems to have been made in the Civil Service Estimates for the current financial year?
  LORD JOHN MANNERS, in reply, said, that the amount of the salaries of the three principal clerks referred to was £1,320, and not £1,760, as was, by a mistake, stated in the Civil Service Estimates. A part of the scheme of reorganization proposed for the Money Order Office had been sanctioned by the Treasury, but not the whole. He hoped before long it would be so, and then no time would be lost in raising the Establishment to its proper footing.

  COAL MINES—THE BLANTYER EXPLOSION.—QUESTION.
  MR. MACDONALDasked the Secretary of State for the Home Department, If his attention has been called to the Report of Inspector Moore as to the explosion which took place on the 20th August 1877 in the No. 2 Pit, Blantyre, in which he states
  "that a fall of the roof took place in the waste close to them, which brought down some fire-damp. It ignited at their naked lights and burned them both;"
  whether Inspector Moore visited the survivor, Francis McMulty, to get any information as to the cause of the explosion to frame the Report, as the survivor alone could give a true account of the explosion; and, whether it is true that an order was given for the fireman Black to be prosecuted for a breach of the special rules; and, if so, why the prosecution was abandoned some time before the explosion on the 22nd October, by which he lost his life?
  MR. ASSHETON CROSS, in reply, said, he did not see his right hon. and learned Friend the Lord Advocate, who could, perhaps, bestreply to the Question, in his place; but he knew the right hon. and learned Gentleman was in communication

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  with, the Procurator Fiscal on the subject to which it referred. He hoped the hon. Member would postpone the Question until the Lord Advocate himself could reply to it.

PUBLIC HEALTH (IRELAND) BILL.

  QUESTION.
  MR. REDMONDasked the Chief Secretary for Ireland, Whether the Government, in view of the practical inconvenience in matters of local government arising from delay, propose to take steps to insure the passing into Law, at as early a period of the Session as possible, of the Public Health (Ireland) Bill?
  MR. J. LOWTHER, in reply, said, he was fully alive to the importance of the measure referred to. The large number of Amendments to it of which Notice had been given were being fully considered; and he hoped the result would be that, with the assistance of hon. Members on both sides of the House, the Government would be able to pass the Bill into law that Session.

  ARMY—MARRIED OFFICERS AND SOLDIERS.—QUESTION.
  MAJOR O'BEIRNEasked the Secretary of State for War, If there be a Regulation of the Service in force subjecting any non-commissioned officer or soldier of good character, and in any branch of the Service, who marries without leave, to the penalty of having his name struck off permanently from the married strength of the Army?
  COLONEL STANLEY, in reply, said, that he had not much to add to what he said yesterday. There was no such Regulation as the hon. and gallant Member spoke of; but, no doubt, there was a rule under which non-commissioned officers and soldiers lost certain advantages unless they obtained the consent of their commanding officers to the marriage before it took place. That was the effect of the Circular of 1871; but, as a matter of fact, men who had married without leave were, if their conduct was satisfactory, in nine cases out of ten, appointed to the vacant places on the married strength of the regiment as they occurred.

METROPOLIS—LONDON BRIDGE.

  QUESTION.
  SIR HENRY PEEKasked Mr. Chancellor of the Exchequer, Whether any application has been made by the Corporation of the City of London to the Lords of the Treasury for their consent to the suggested alteration of London Bridge, as required by the Acts of Parliament under which the Treasury provided£192,000 out of the Consolidated Fund towards the cost of its erection?
  THE CHANCELLOR OF THE EXCHEQUER: Sir, I only accidentally happened to see my hon. Friend's Question a very few minutes before I came down to the House. I sent up to make inquiry at the Treasury, and I understand from what I was told that no such application has been received. If I find I am misinformed, I will inform my hon. Friend to-morrow.

  CUSTOMS—POSITION OF OUTPORT CLERKS.—QUESTION.
  SIR EDWARD WATKINasked the Secretary to the Treasury, If he will explain to the House on what grounds the application of the outport clerks of the Customs to be placed on a footing of equality with the Customs clerks in London was rejected on the 4th March last?
  SIR HENRY SELWIN-IBBETSON, in reply, said, that the grounds on which the application mentioned in the Question had been rejected was simply on the question of a difference in the rates of wages; which, as the hon. Member was aware, varied in almost every district. As the employers of labour generally were not bound by one scale of pay, so it would hardly be fair for the Government, as an employer of labour, to equalize the rate of pay all over the country, when the scale of local wages varied so considerably.

MILITARY FORCES OF THE CROWN— THE INDIAN CONTINGENT.

  QUESTION.
  THE MARQUESS OF HARTINGTON: Sir, as I arranged yesterday, I have communicated with the Chancellor of the Exchequer, and I have given Notice for Monday next of the Resolution to which I referred yesterday. I will now, for

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  the convenience of the House, ask the Chancellor of the Exchequer, Whether he will be willing on that day to postpone the Orders, so that precedence may be given to the debate on the Resolution?
  THE CHANCELLOR OF THE EXCHEQUER: Yes, Sir; that is an arrangement which I have felt will suit the noble Lord as well as the Government, and I propose to give Notice for Monday that the Orders of the Day shall be postponed in order that the Notice of the noble Lord may come on first.
  MR. FAWCETTsaid, that, in consequence of the Notice just given by the noble Lord (the Marquess of Hartington), he would withdraw the Notice which he himself had given of a Resolution on the same subject.
  SIR EDWARD COLEBROOKEasked what Business would be brought on on Thursday?
  THE CHANCELLOR OF THE EXCHEQUER, in reply, said, it was intended to proceed with Supply.

  SOUTH AFRICA—THE TRANSVAAL REPUBLIC.—QUESTION.
  MR. COURTNEYasked the Secretary of State for the Colonies, Whether he will lay upon the Table a Copy of the "separate minute" of Sir Theophilus Shepstone on "the relations of the Zulus with the South African or Transvaal Republic," referred to in paragraph 83 of the Report of the Expedition to install Cetywayo as King of the Zulus (1875, C—1, 137)?
  SIR MICHAEL HICKS-BEACH, in reply, said, that Lord Carnarvon had already refused to permit the production of the "separate minute;" and that, having considered the subject, he felt bound to adhere to his Predecessor's decision.

MOTIONS.
  LAND REGISTRATION.

    MOTION FOR A SELECT COMMITTEE.
    MR. OSBORNE MORGAN, in rising to call attention to the question of Land Registration, and to the working of the Acts of Parliament regulating the same, and to move for a Select Committee to inquire and report whether any and what
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    steps ought to be taken to simplify and secure the title to land, and to facilitate the transfer thereof, said, he did not know that he should have brought the subject forward at a time like the present, when it was so difficult to get the House to take an interest in a domestic question, however important, but for two or three recent cases which had led many practical men to believe that investments on landed securities, so far from being, as people had formerly supposed, the safest investments a man could make, were about the most dangerous things with which he could meddle. The first case to which he would refer was that of the notorious Dimsdale, who had managed to raise £300,000 upon the security of property in which he had not a particle of interest. The second was that of an accountant, named Downs, who, in one sense, was more honest than Dimsdale; for he was actually the owner of the property which he purported to mortgage. He bought land for £1,500, and having done so, proceeded to mortgage it for £40,000 to 25 different sets of persons. His modus operandi was charmingly simple. He took a conveyance from the British Land Company, and, having obtained a fac simile of the seal of the Company, he proceeded to copy out the deed some 20 or 30 times over, and to stamp each deed with the seal of the Company, and then took it about to different persons, who, in each case, were induced to lend him money in the belief that they had the first charge upon the property. This went on for five years, and there was no reason why it should not have gone on for 50 years, if the borrower had not, by reason of unfortunate speculations on the Stock Exchange, been unable to meet the current interest, and so the bubble burst—and these 20 or 30 persons, on being confronted with each other, found that they had got a security which was not worth the paper on which it was written. Now, the defence set up by Downs was a very remarkable one, and one which he would commend to the attention of the Home Secretary. He pleaded that he was naturally an honest man, but that the law had made it so easy to borrow money upon other people's property, that he really could not resist the temptation. Now, it was obvious that the rudest system of registration would have prevented such a fraud as

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    this. And he was really tired of hearing it said that they could not prevent fraud by Act of Parliament, and that there must always be a certain percentage of rascality in the world. His complaint against their system was, not that it did not prevent fraud—no law could do that—but that it acted as a direct premium upon fraud; indeed, it was not too much to say, that a man advancing money upon land in these days trusted rather to the respectability of the borrower, and the character of the solicitor than to the protection of the law. And yet the temptation to fraud was but a small part of the mischief of the present system, and the evils with which they had to deal. Indeed, the insecurity of their system was only equalled by its clumsiness. It might be true that 99 titles out of 100 were good, and that 999 owners of property out of 1,000 were honest men; but the worst of their system was, that while they let the one rogue slip through their fingers, they insisted upon treating the 999 honest men as if they were rogues. As a result of 16 years' experience as a conveyancer, he might go behind the scenes and tell purchasers of property what took place when they bought an estate. The first thing was to ask for an abstract of title which, though only a summary of the deeds, might run to 200 brief sheets or more. Then, the deeds, which were sometimes at a distance, had to be compared and the facts verified. When this was done, the abstract was usually laid before the purchaser's counsel, who looked at it very much in the way in which a veterinary surgeon looked at a horse—that was to say, with a view to pick as many holes in it as possible. Then followed a sort of fencing match between the solicitors of the vendor and purchaser, frequently assisted by counsel on both sides, which might take weeks, or even months; and, if the parties were reasonable, half the objections were waived and the other half answered, the title was accepted, the conveyance—sometimes of portentously great length—drawn, and the purchaser had handed to him a perfect mountain of parchment, which he was told were his title deeds. And, when all was done, probably the only thing in the transactions which he really understood was the lawyer's bill which he had to pay at the end of it. Well, but now, suppose the purchaser wanted to sell
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    part of the property, or to borrow money upon it, exactly the same process had to be gone through over again. He could not do better than describe it in the words of the noble and learned Lord the present Lord Chancellor, when Sir Hugh Cairns—
    "You buy an estate at an auction, or you enter into a contract for the purchase of the estate. You are very anxious to get possession of the property you have bought, and the vendor is very anxious to get his money. But do you get possession of the property? On the contrary, you cannot get the estate, nor can the vendor get his money until after a long lapse—sometimes no inconsiderable portion of a man's lifetime—spent in the preparation of abstracts, in the comparison of deeds, in searches for incumbrances, in objections made to the title, in answers to those objections, in disputes which arise upon the answers, in endeavours to cure the defects. Not only months, but years, frequently pass in a history of that kind; and I should say that it is an uncommon thing in this country for a purchase of any magnitude to be completed—completed by possession and payment of the price—in a period under, at all events, twelve months."—[3 Hansard, clii. 280–1.]
    Those observations were made 19 years ago, but they were substantially true now. No wonder that under these circumstances their lawyers had been endeavouring to establish that system of registration which existed in every country but their own; in fact, for the last 25 years, a perfect system of land registry had been a sort of philosopher's stone, which their legal alchemists had been trying, and trying in vain, to discover. The history of these attempts was a melancholy one; in fact, a more dismal history of failures it would be difficult to find. The first attempt dated as far back as 1833, when a Bill passed the House of Lords to compel the registrations of deeds. That Bill was referred to a Select Committee of the House of Commons—the only Select Committee, by the way, which had ever sat upon the subject—which recommended the appointment of a Royal Commission. That Commission, so appointed, made its Report in 1857, against the registration of deeds and in favour of the registration of titles, and a Bill founded upon its recommendations was introduced by Sir Hugh Cairns in 1859, as Solicitor General, in a masterly speech, from which he had already quoted, and in which he stated, on the authority of some of the most eminent valuers in the country, that a perfect land registry system would add three years' purchase

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    to the value of all the land in the Kingdom. In consequence, however, of the resignation of the Ministry, that Bill was dropped, and the subject slept until 1862, when it was taken up by Lord Westbury; and, certainly, if faith in his own scheme entitled any man to success, Lord Westbury deserved to succeed. He introduced his measure in a characteristic speech, in which he stated that he had got hold of a plan which, like Aaron's rod, would swallow up all the other projects which had ever been brought forward; and he drew a picture of a great landowner walking about with the whole of his title deeds in his waistcoat pocket condensed to the dimensions of a visiting card. Unfortunately, his plan, though perfect in theory, proved hopelessly impracticable. It was a beautiful machine which would not work. Lord Westbury said, and he said no doubt truly, that all titles were either perfect or imperfect, and that he would make provision for registering both, and would call the one an indefeasible, and the other a defeasible title. Unfortunately, the cost of obtaining a perfect title was found to be so great that people refused to buy the gold at the price. On the other hand, people naturally shrank from proclaiming to the whole world that they possessed a title, the very name of which implied a doubt as to their right to hold it. In other words, they could not register perfect titles, and they would not register imperfect ones. The result was, that between the time when the Act came into operation in the year 1868, not more than 507 applications for registration under the Act had been made—that being about the number of titles which were accepted in England in the course of one day—and so, before the end of the year, Lord Westbury was called upon to preside over a Royal Commission to inquire into the causes of the failure of his own Act. That Commission was composed of three most distinguished Judges, of the Members for the Universities of London and Cambridge, Mr. Howes (the late Member for Norfolk), Sir Arthur Hobhouse, and Sir Henry Thring; Mr. Wolstenholme and Mr. Waley, two distinguished conveyancers; and Mr. Farrer and Mr. Young, two of the most eminent solicitors in London—an admirable Commission, except that, perhaps, it was some-
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    what too heavily weighted with lawyers. That Commission made its Report, or, rather, it made six different Reports, the principal Report being only entirely adopted by three of its Members. Well, in 1873, a Bill, founded on the lines of that Report, was introduced by Lord Selborne. It was drawn by one of the most distinguished real property lawyers in the country, Mr. (now Vice Chancellor Hall); and, being a daily witness of the great ability and industry of that very learned Judge, he felt exceedingly reluctant to criticize his handiwork. And he might say at once that, in two important respects, the Bill of 1873 was an immense improvement upon its predecessors. In the first place, it introduced a new kind of registration—that of possessory titles. Now, that was a new and most important starting point. He believed it was the key to a proper registration of titles, for until they took the apparent owner—that was, the owner in possession—and assumed that he was entitled to be put upon the register until somebody else could show that he had a better right, they would make no progress towards a proper system. But then, unfortunately, the Bill preserved the old system of registering indefeasible and defeasible titles under a new name. Now, he had always maintained that the business of a registry office was ministerial only—that it had nothing to do with investigation of title, properly so-called, which was a judicial and not a ministerial act—the business, in fact, of a Landed Estates Court, and not of a registry office. Indeed, if registration was to be preceded by anything like a judicial investigation of title, it would be perfectly impossible for any office, however large, to undertake it. Moreover, the very fact of keeping up these distinctions threw a slur upon what people would necessarily regard as an inferior kind of title, and accounted, in a great degree, for the disinclination to register such a title. The Bill of 1873 was also an enormous improvement upon its predecessors, in so far as, by indirect means, it made the registration of possessory titles compulsory. Now, it was no use mincing matters. Registration, in order to be general, must be compulsory. They could not coax people into adopting it. It involved a certain expenditure of trouble and money, however small,

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    which people would not voluntarily undertake except in the comparatively rare case of purchasers who wished to re-sell. It was useless to tell people that those who came after them would be infinitely benefited by that small outlay of trouble and money. They would ask, like the Irishman—"Why should we do anything for posterity; posterity has done nothing for us?" Moreover, in his opinion, the possibility of making a system compulsory was a very fair test of its feasibility; for if the system were cheap and simple, what was the hardship of making it compulsory? whereas, if it were not cheap or simple that was a very good reason, not merely for not making it compulsory, but for rejecting it altogether. Now, unfortunately, the registration of possessory titles under the Bill of 1873, instead of being made perfectly simple, was beset by so many difficulties that when the Bill was re-introduced in 1874 by Lord Cairns, the country solicitors pointed out that the cost of even possessory registrations under it would be so great that it would practically put an end to all small purchases. Now, that, in itself, furnished a strong argument against the Bill. It was urged with some force that the Bill was intended to facilitate and cheapen purchases of land, and yet that it made those purchases so expensive that it would practically put an end to them altogether. Yielding to the pressure put upon him, the Lord Chancellor inserted a clause that the provisions as to compulsory registration should not apply to purchases under £300. That was tantamount to giving up compulsion altogether, for it was impossible to draw a hard-and-fast line at that sum; and, as might have been expected when the Bill was re-introduced in 1875, the compulsory clauses were entirely omitted. On that occasion, he (Mr. Osborne Morgan) moved a Resolution condemning the Bill on the grounds he had stated, but he met with but little support. The hon. Member for Chippenham (Mr. Goldney), with regard to it, said that—
    "He felt assured it would be proved to be one of the best modes of solving the difficulty in regard to the transfer of land."—[3 Hansard, ccxxiv. 1927.]
    The hon. and learned Baronet the Member for Coventry (Sir Henry Jackson) said that, for one, he believed—
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    "It contained much that was valuable, and that when it had been considered in Committee, and had received some Amendments, of which it was susceptible, it would be a valuable addition to the Statute Book."—[Ibid. 1930.]
    Even the hon. Member for Peterborough (Mr. Whalley) said—
    "It would, he hoped, have the effect of restoring lawyers to that position of respectability to which they could not lay claim at present,"— [Ibid. 1927.]
    In fact, with the single exception of his lamented Friend the late Member for Reading (Sir Francis Goldsmid), who, in addition to his other great and varied accomplishments, enjoyed that of being one of the best real property lawyers in the House, he (Mr. Osborne Morgan) met with no support and was compelled to withdraw his Resolution. As he did so, however, he prophesied that the Bill, when passed, would be as great a failure as the Act of 1862. But what were the facts? Compared with the Act of 1875, the Act of 1862 was a brilliant success, for, under that Act, about 100 titles on an average had been registered every year; but, in the two years and a-quarter which had elapsed since the passing of the present Act, only 28 titles had been registered altogether, and the number was getting "small by degrees and beautifully less;" for, in the seven last months, only four titles had been registered—that was to say, one in every seven weeks, or about one in 24,000. It would be curious to know what each of those purchases cost the country. He could only say that he had passed the Office—which, it was fair to say, was presided over by two of the ablest real property lawyers who could be found—every day for the last 16 years, and he had never seen a single person either going into it, or coming out of it. Well, under these circumstances, they were driven to the humiliating admission that they had all along been proceeding upon a wrong tack, and that if they wished to succeed they would have to start afresh. A Greek Philosopher had once said that "the knowledge of our ignorance was the beginning of wisdom;" and in the same way, possibly, an acknowledgment of their failures might turn out to be the first step towards success. He had pointed out that the Commission of 1857 had recommended the registration of titles in preference to that of deeds. With what success, the House was now

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    aware. In consequence, however, of the failure of these recommendations, there had been lately a strong re-action in favour of the registration of deeds. It had been pointed out that a registration of titles, if it pre-supposed anything like a judicial investigation, could never be carried out by one Office, however large; for in this country titles were counted by millions, and dealings with property by hundreds of thousands; and to demand of an Office in London that it should investigate, and, so to speak, report upon all these titles, would be like asking the officials of the General Post Office to read and examine all the letters that they sorted. On the other hand, it was proved by the experience of two of the most important counties in England—namely, Middlesex and Yorkshire—that a local registration of deeds was perfectly possible. It had been pointed out to him, also, by some of his Irish Friends, that in Ireland the two systems had been tried side by side, and that the registration of titles had proved a complete failure, and the registration of deeds a complete success. Now, he had made it his business to inquire into the opinions entertained by the Profession and the public, as to the working of the Middlesex and Yorkshire registries, and he was bound to say that he met with a singular divergence of opinion. On the one hand, it was said by his hon. Friend the Member for Maidstone (Sir Sydney Waterlow), and others, who had waited upon the Home Secretary the other day, that all that was wanted to prevent frauds like those of Dimsdale and Downs, was the extension of the Middlesex system to the whole country; and they pointed out, with some show of reason, that none of these frauds had been attempted in the "register" counties. On the other hand, he was informed by many solicitors that, while the registration of deeds added enormously to the responsibility of solicitors, it had increased, rather than lessened, the expense of conveyancing; and that the Middlesex registry, in particular, was the bête noire of solicitors, who frequently protected themselves by special contract with their clients against liability arising from it. To a great extent, he believed that its unpopularity was caused by the confused state of the index, which referred to names and not to property, and which made an examination
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    for the deeds relating to any particular property very much like looking for a needle in a bundle of hay. Indeed, the whole machinery of the registry was of the most primitive description, and it was scarcely to be wondered at considering the fact that it was established some 170 years ago. No doubt, all this might be greatly improved, and, upon the whole, he had come to the conclusion that the question whether a registration of deeds was preferable to a registration of titles depended upon what they wanted. If they wanted security and protection against fraud, then, no doubt, registration of deeds would give them that protection, except, of course, in the case of personation; if, on the other hand, they wanted simplicity and economy, he was afraid it would not be so. He could understand, indeed, a system of deed registration, such as that which prevailed in America, being both simple and cheap; but, then, for that purpose, they ought only to admit upon the register simple transfers of property, and make those transfers as short as possible. Titles in England were more complicated, and solicitors in England were paid in proportion to the length of their deeds, and he had often been told that if lawyers were compelled to draw short deeds, their charges would not repay a tithe of their labours. But the system was, nevertheless, a vicious one. It was like going to a doctor and offering to pay him in proportion to the length of time he could keep you ill. Now, why should not an ad valorem scale of payment be adopted? It had been adopted with marvellously good results by some of the land companies. Why should not solicitors be paid, to a certain extent at least, in the same way as stockbrokers? They were, in fact, land brokers. That brought him to a question which he had often heard asked—why should not land be transferred in exactly the same way as stock? He had often been told that £1,000 of stock might be transferred in a few minutes, at the expense of a little more than £1; while a few acres of land might take months, and cost hundreds of pounds to convey. Well, now, there were two reasons arising from the nature of the subject-matter, which made it impossible entirely to assimilate the transfer of land and stock. In the first place, stock was a debt, and when a man took a transfer of it, he got a contract from

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    the debtor—that was, the Bank of England—securing him the amount transferred. In the next place, stock was an abstract thing; land was a concrete thing. Any £1 worth of stock was as good as another, but one acre of land was by no means the same as another. If he instructed his broker to buy him £100 of Consols, he could feel perfectly sure that he had got the thing which he wished to buy; but he could not feel the same certainty if he instructed his solicitor to bid for Blackacre or White-acre. It was the difficulty of identifying land, which caused nine-tenths of the difficulties with which they had to grapple. Now, there was one way, and one way only, in which they could remove that difficulty, and that was by having a perfect map. Fortunately, they had such a map in the Cadastral Survey which had lately been made over a great part of England. Not long ago, he put a Question to the First Commissioner of Works on the subject, and he was rejoiced to hear that, as regarded 30 of the counties of England and Wales, that Survey had been completed; but, to his disappointment, he also heard that it would still take 18 years to complete it as to the remaining 22. He a was sure that they could never have a perfect system of land registration without such a map. The map was to the registry what the compass was to the ship. His proposal would be, that there should be kept in the office of every clerk of the peace for each county, or some other official, a map of the whole of the property in the district, which would thus become a sort of pictorial representation of all the land in the Kingdom. In that case, he did not see why land should not be as easy of identification as a ship. It was said that the aspect and character of the property changed from day to day. His own experience as a conveyancer led him to believe that, except in the neighbourhood of large towns, the changes in the character of property were by no means so great as was commonly supposed; but, in any case, would there be any great hardship in compelling a man who threw two fields into one, or who built a house upon his property, to have that fact recorded upon the map; or, if that was thought inexpedient, might not the official in charge of the map be required to investigate and record the
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    change? But then, it was said that land might be settled and tied up, and stock could not. Now, that was a layman's fallacy. The fact was that stock could be and was settled every day as stringently as land—the only difference being that the Bank of England did not recognize the trust, and treated the trustee as the person entitled to transfer; nor did it follow that because an estate was entailed, it was therefore unsaleable. Why, nine-tenths, or more, of the settled lands in England were vested in trustees who had the right to sell it, usually with the consent of the tenant for life, if of full age, or, if there were no such tenant for life, at their own discretion. Now, his proposal was, that every acre of land in England should be vested in some person who had the right to sell it, not necessarily the beneficial owner, but, as in the case of stock, the fiduciary owner, or, as the case might be, the mortgagee. Starting with this, he would wish to see nothing recorded upon the register but this right of sale or transfer, the right to which might be asserted by a short affidavit of the claimant proving the exercise of rights of ownership for a limited period, or the last instrument of transfer or devolution as the case might be, the equitable owners being left to protect themselves by something in the shape of a distringas or caveat. If this plan were once adopted, it would be a matter of comparative indifference whether they adopted the plan of registering deeds or the plan of registering titles; because, in the latter case, the deed, as in the United States of America, to which he had already referred, would really constitute the title. Now, he had made this proposal with some trepidation, because he was afraid that hon. Gentlemen opposite would regard it as radical and revolutionary; but, as a matter of fact, it had been recommended by Mr. Spencer Follett, a Conservative lawyer, the head of the Land Registry Office, who, in his evidence before the late Royal Commission, said—
    "In every well-drawn settlement there is a power of sale overriding all the estates, to be exercised with certain consent, and registering the estates in the name of the trustees of the power would give them no more power than they had already. My theory is that the purchaser should have nothing to do with the title of the vendor. He might go to the vendor and say—'Sell me the estate and I will give you so

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    much for it when you convey it. I do not care what your title is, if you can sell it to me I will buy it.'"
    The same view was taken by an eminent London solicitor, Mr. William Ford, who, in his evidence, said—
    "In my opinion, no real advantage will accrue to the public till land is treated like Government Stock, and is capable of being transferred by trustees, without regard to equitable interests, or interests loss than the absolute ownership. The registered owners of laud should be able to sell it. All equitable interests, or interests less than the fee simple, should be regulated by separate declarations of trusts which should be kept of the register. Such a system would be simple, easily worked, conciliate the favour of the public and profession, and be a real boon to every owner of land. I should always advise my clients to make use of such a registry. The apprehension that trustees would sell estates of their cestui que trust behind their backs is a chimera. Most of the large estates in England are vested in trustees or mortgagees, who have power to sell without the consent, or even in spite of the dissent, of the owners."
    These were his own views, but he did not wish to prejudge the question in any way, nor did he desire to express any final opinion upon the comparative advantages of deed and title registration. In fact, he had not come down to the House with any cut-and-dried projects. But it had occurred to him, and it had occurred to others, that if this matter, instead of being relegated to a Royal Commission of distinguished Judges and conveyancers, were referred to a Select Committee of that House, composed not only of lawyers, but of landed proprietors and business men—men who knew what they wanted, and only required to be told how to do it—they might arrive at something like a satisfactory settlement. He knew, of course, the epithet which was in store for those who rushed in "where angels feared to tread," and it might be thought the height of presumption that a private Member of the House should attempt the task which three of their most distinguished Lord Chancellors had attempted and failed to accomplish. Still, the evil was so crying, the benefits to be obtained so incalculable, that he thought the experiment worth trying. He had heard, indeed, within the last two or three days, that there was some chance of the Government taking the matter up. In that case, he should, of course, be only too glad to stand aside, and let them try their hand again, for the subject was obviously one more proper to be dealt with by the Government than by a private Member. At
    1898
    the same time, he must warn his hon. and learned Friend the Attorney General, that if he proceeded upon the lines of past legislation, he would be only adding another to that long and dreary list of failures which he had already enumerated. The hon. and learned Member concluded by moving the Resolution.
    MR. GREGORY, in seconding the Resolution, said, that he did so with much pleasure. Taken as a body, it was a fallacy to suppose that the members of his Profession were opposed to a plan like that proposed by his hon. and learned Friend the Member for Denbighshire (Mr. Osborne Morgan) with regard to the transfer of land. A strong motive, which actuated him in wishing for reforms was the very grave responsibility which rested upon solicitors under the present system of land transfers. Solicitors were, in fact, the guarantors of title. A solicitor who made an abstract of title-deeds was bound to supply the purchaser with a full disclosure of the title. If he did not, ho might be struck off the Rolls. And if the solicitor of the purchaser failed to point out any defect in the title arising on the examination of such abstract, he became personally responsible. Although he did not agree with the whole of the scheme propounded by his hon. and learned Friend, yet, in his opinion, the time was come for the investigation of the subject before a Committee of the House. He, therefore, thought his hon. and learned Friend had been very wise in the course he had taken; and he hoped that the Committee, if granted, would have the assistance of some gentleman from Scotland, who would give the Committee an account of the system in Scotland, the way in which it worked, and the expense incurred by it. He confessed that there were many other points he should like to see the Committee take under their consideration, which appeared to him to unnecessarily hamper the transfer of land in the country. For instance, there were the tenures in gavel-kind and Borough English which were antiquated and exceptional, and gave rise to much difficulty and confusion. He thought, however, that something would be effected by a general registration of deeds; but if they had registration of deeds, they must give local facilities for carrying it out. They had district registries for the grant of probates of

    1899
    wills, and there was little difference between a registration of deeds and a registration of the probate of wills.
    Motion made, and Question proposed,
    "That a Select Committee be appointed to inquire and report whether any and what steps ought to be taken to simplify and secure the title of land and to facilitate the transfer thereof."—(Mr. Osborne Morgan.)
    MR. RATHBONEsupported the Motion, believing that the question of land registration was one of the most important waiting solution in the interest of the welfare and prosperity of the country. It was of the greatest concern to the owners of property as well as to the working man that the transfer of land should be made simple and easy, so that a much larger number of persons than at present might have an interest in it. It should not be forgotten how great was the temptation where democracy prevailed to levy heavy taxation on landowners, and if any such feeling should manifest itself as had been shown in America, he fancied the proprietors in this country would wish very much that the land had been more sub-divided. It was equally in the interest of the working man that the transfer of land should be made as cheap as possible, and there was, he thought, no greater inducement to frugality, and no better investment for their savings, than enabling such men to become the owners of the houses in which they lived, which, however, they but rarely could so long as the expenses of transfer were so great as they now were. It was urged in favour of the continuance of the present system that under it land was so safe an investment. He, however, had been told by legal friends, who were in a position to speak with authority, that they had known more cases of land being in wrong hands than of personal property. He believed it was not the lawyers who objected to an increase in the facilities for the transfer of land.
    SIR WALTER B. BARTTELOTsaid, he quite agreed with the last speaker that it was of the greatest importance to the owners of property that there should be an easy and simple mode of transferring land. No one who had anything to do with the purchase of it could fail to be aware not only of the cost, but the difficulty, of getting a really good title. He could not, however, concur with the hon. and learned Member for
    1900
    Denbighshire (Mr. Osborne Morgan), when he said that it took a year to transfer land from one person to another. [Mr. OSBORNE MORGAN: It was Lord Cairns who said that.] Be that as it might, the transfer certainly took a considerable time, occupying, as it did at present, three months on the average; and it was extremely desirable that that time should as far as possible be shortened. He would further observe that, unless a man was prepared to pay absolutely for the land which he wanted to purchase, that land was, in reality, a great snare to him. The hon. and learned Member for Denbighshire made, he might add, an observation with regard to the Survey which was going on throughout the country, to which he attached great weight. He had now got a map on which the pasture and arable land was marked out, and in which every cottage and almost every tree was set down, so that the property could be identified in a moment. Now, maps of that kind for the whole country would, in his opinion, be of inestimable value, whether for strategical, commercial, or social purposes; and he would urge the House to impress upon the Government the expediency of finishing at once a Survey which, at the pace at which it was now being carried on, it would take 18 years to complete. If the Committee asked for were granted, he hoped the hon. and learned Member for Denbighshire and the hon. Member for East Sussex (Mr. Gregory) would undertake to get together a Committee of lawyers who would agree not to pull all the titles to pieces. He should rejoice as heartily as the hon. and learned Gentleman opposite if some step could be taken in the direction which he had pointed out. It was apparent to everyone that the transfer of land was one of those matters which ought to be dealt with. Hon. Members, however, knew the difficulties with which the question was surrounded, and the man who could show them how to overcome those difficulties would render an inestimable service to the country.
    SIR HENRY JACKSONhoped the hon. and learned Gentleman, on the part of the Government, would agree to the appointment of a Select Committee on this important subject. There was a rumour that the Government were about to bring in a Bill dealing with the question on their own responsibility; but he

    1901
    thought the matter had now reached a stage when it might well be made the subject of further inquiry by a Committee of the House, as that would be the best means of throwing fresh light upon it. Several attempts had been made, first by Lord Westbury and afterwards by the present Lord Chancellor, whose Bill was, in the main, identical with one prepared by Lord Selborne, though differing from it in detail. All had proved failures, as he and his hon. Friend the Member for East Sussex (Mr. Gregory) had predicted during its passage through that House. Lawyers felt it was of pressing importance that the difficulties which had hitherto attached to the transfer of land should, as far as possible, be removed. That difficulties existed could not be disputed; but he denied that the lawyers, as a Profession, had deliberately thrown obstacles in the way of the settlement of the question. Solicitors were, however, in this position—if a title proved bad, they were in peril of being personally responsible for the consequences; and it was this liability which rendered them somewhat pedantic in investigating titles. If that liability were removed or diminished, the hearty concurrence of the solicitors would be secured. Every lawyer had his own nostrum for the cure of this disease. He rejoiced to find that recently there had been a great advance of public opinion in favour of a Cadastral Map. He considered this a first necessity, without which no really advantageous step could be taken. Another absolute necessity was the constitution of some person as registered owner, with full power of disposition as regarded purchasers and mortgagees. That principle was to be found in the present Act, and it could not be too highly valued. In his judgment, the Government would not cure the evil by establishing additional registration of deeds; for experience showed that in Middlesex, where a registry existed, nobody could rely on it as a protection, as solicitors would not undertake to make an adequate search, so as to guarantee their clients against every deed which might be registered. What was really wanted was a registration of titles, as in the case of a shop or ship. Such a thing was perfectly possible, although it would take some years and considerable outlay to carry out. Its essential condition was that
    1902
    the register should refer, not to deeds and names, but to the land in regard to which a title was being sought. First of all, there must be a Cadastral Map, on the face of which every plot of land should be so identified by a number that an intending purchaser, by referring to the same number in the register, might ascertain the ownership of the land in question. Looking at the general interest which was taken in the matter—seeing that it had passed out of the domain of legal technicality into the domain of social and political economy—he believed that better results would attend the appointment of a Select Committee at the present time than would have been the case at any previous period. The objects to be aimed at were of course, facility of transfer and safety of title. The latter was not so much a necessity as the former; for, as a rule, titles were particularly safe. The recent frauds had been in reference to leaseholds, which were often held six or seven leases deep, and afforded facilities for frauds. This kind of holding was exceptional, being mostly in the metropolitan counties; but if the alarm which had been occasioned should result in the amendment of the law, there would be some ground for consolation.
    MR. ALFRED MARTEN, while supporting the Motion for the Committee, pointed out that one central registry would by no means meet the necessity of the case. The Dimsdale frauds had been committed with respect to property in Surrey, where there was no register; the Middlesex part of the property had been protected by the register. The great interest excited by those frauds, even if there were no other ground, was in itself sufficient reason for asking for a Committee. In order to show that the House was alive to this view of the case, he would suggest that the Motion should state, among other reasons for appointing a Committee, the necessity of preventing frauds on purchasers or mortgagees. With regard to titles, he did not think that any measure for their compulsory registration throughout the country would ever pass through Parliament. It would, he believed, give rise to great inconvenience, especially in small transactions. If compulsion were to be adopted at all, he believed the House would not extend it beyond the registration of deeds. As for the Cadastral Map, which

    1903
    found favour in the eyes of the hon. and gallant Baronet the Member for West Sussex (Sir Walter B. Barttelot), how long would it be of service? It would be obsolete in a year; as, through the circumstances continually changing, the position, limit, and particulars of property could not hold good for any length of time.
    MR. SHAW LEFEVREwished to join in pressing on the hon. and learned Gentleman the Attorney General to grant this Committee. The importance of this question had been brought prominently under his notice while sitting during the last two Sessions of Parliament on the Committee on the Bright clauses of the Irish Land Act, the evidence taken before it showing clearly the difficulty of dealing with small properties in Ireland, the average cost of transferring landed properties in that country worth less than £200 being 15, 20, and sometimes even 25 per cent on their value. That amounted to an almost absolute prohibition of the transfer of such properties. The question of registration had been solved in almost every other country in Europe, and especially in Belgium, Germany, and Denmark. He could see no reason why it would not be possible in this country. There were three things necessary to make registration successful. The first thing was a complete Cadastral Survey; and he hoped the time for the completion of the Cadastral Survey would be shortened. It was worthy of consideration that the Cadastral Survey of Ireland was completed, and that in that country it would be possible to carry out a thoroughly complete system of registration. He hoped, therefore, the Committee would extend its inquiries to Ireland, and not confine them to England; and that they would consider whether registration could be introduced in districts where the Survey was finished. The next thing necessary was local registration. Thirdly, there must be someone in a position to give a full and complete title to property. With these three conditions, registration would be an easy matter. It would very much simplify and cheapen the transfer of houses and lands, and would confer a great benefit on the people of this country.
    SIR GEORGE BOWYERsaid, that much of the difficulty which beset this subject had arisen from the confusion of two subjects which were really distinct
    1904
    and separate—the law of title and the law of registration; and from the doctrine, which existed in England alone, of the distinction between the legal and equitable estate. The registration of a title did not make the title a bit better than it was before; and, until they had a simple system of title, it was impossible to have an effective system of registration. All Continental countries had a system of registration; but then, as the Commissioners remarked in their Report, in those countries, the law in respect of real property was not so complicated as it was here, and there was in those countries, practically, no difference between real and personal property in regard to its disposal, for there was no distinction between legal and equitable estates. It was manifest that registration merely would not cure the defects in their system of the transfer of land; and, therefore, if they desired to facilitate the sale of land, they must not look to registration but to a reform of their system of title. And they must get rid of the complicated system of trustees which was unknown in any other country. They must go back to the statute of uses, and carry that statute into effect by getting rid of the distinction between legal and equitable estates, and thus obtaining unity of title. That was the policy of the Roman Law, which did not allow the usufruct to be separated from the dominion beyond the life of the usufructuary. When unity of title had been obtained, an acre of land would be as easily bought or sold as a horse or an ox. For the same purpose a system of hypothecation should be introduced, instead of a conveyance of the land, subject to an equity of redemption. He came now to the subject of registration. There were three kinds of registration—registration of deeds, registration of title, and registration of land. His hon. Friend opposite (Mr. Gregory) had condemned a system of registration of deeds. He (Sir George Bowyer) differed from his hon. Friend; and Mr. Joshua Williams—whose authority on the subject his hon. Friend would admit—had recently published a letter in which he expressed his opinion that a system of registration of deeds was the best of the three systems. The system of registration of title was both complicated and costly. Before they registered their title they must establish their title. In the first instance, a solicitor

    1905
    had to prepare the title for registration—a long and expensive process—they then had to take the title before the registrar; and the registrar had to investigate the title over again; and in this way a variety of questions arose, which necessarily led to doubts about the title itself, and a great expense. The landowners were not likely to adopt a system, which, besides raising unnecessarily doubts in regard to their title, exposed them to a publicity which few prudent men would willingly incur. The system of registration had already been tried and had proved a conspicuous failure. There was is Lincoln's Inn Fields an Office for the Registration of Titles, but no one even went there. Then as to the registration of land. They were told that there was to be an accurate survey of the land for the purposes of registration. Such a plan might work very well in a new country like a Colony, where they could divide the land in square plots and map them to scale, and where the natural boundaries were few and undefined. These plots might be transferred from hand to hand with great facility. But in this country it would be impossible to adopt such a survey as would be of any use 30 years hence, so rapidly and so completely did the conditions of the land change. The registration of deeds in Middlesex, he believed, had been found to be very useful, so far as it went; but its utility had been considerably impaired by the judgment of Lord Hardwicke, in the case of Leneve v. Leneve, 1 Vesy, 64, that though by the Register Acts a registered deed was to be preferred to an unregistered one of a prior date, yet that, if a subsequent purchaser by the registered deed had notice of the unregistered deed, he could not derive benefit from his registration. The registration of deeds was the only practicable registration, and would be found more simple and certain and far less costly than a registration either of title or of land.
    MR. D. DAVIESsaid, he had purchased large quantities of land under compulsion for railway companies, and he was consequently acquainted with the difficulties of getting up titles. He had, he might add, bought several lots of land over 14 or 15 years ago, which had never yet been conveyed. He had also purchased more than once about half-an-acre of land for £50 or £60, the expenses of conveying which had been over £150.
    1906
    In these cases some five or six lawyers were generally engaged—he had no fault to find with the lawyers—they were, on the whole, a very respectable body of men—and the result was that the cost was swelled up to the amount which he had mentioned. There was, he might add, no comparison to be drawn as to the conveyance of land between this country and America. America was a new country, and there was no difficulty about titles; but even here, when a railway company had made out a title, land could, be conveyed as cheaply as in America. He might further state that, having bought several properties, he could convey half-an-acre of land to a working man for building purposes for a sum of 10s. The great difficulty in the matter seemed to him to be the making out the first title. He concurred in the view that something was required to be done to make the transfer of land more cheap, especially in the case of small lots; but the question was surrounded by difficulties. Any system of registration unless made compulsory would be inoperative, and yet a compulsory system would inflict on many persons considerable hardship.
    THE ATTORNEY GENERAL (Sir JOHN HOLKER)said, that having listened to the debate attentively, he was himself strongly in favour of the appointment of a Committee. There appeared to be a general concurrence of opinion in the House on that point, partly, perhaps, because of the fact that every hon. Member had his own nostrum, which he considered best fitted to remedy the evil that existed. He did not believe in many of those remedies; but, as there was a strong feeling in the House in favour of an inquiry on the subject, and of the appointment of a Select Committee, he would not, on the part of the Government, object to such a Committee being appointed. This matter really and truly divided itself into two branches—the question of the registration of deeds, and the question of the registration of titles—and he fancied that the debate had been brought about, to a considerable extent, in consequence of the alarm which had been raised in the minds of many persons by reason of the enormous frauds which had recently been perpetrated. Building societies had naturally become alarmed, and all persons who were in the habit of lending money on security in connection with

    1907
    land had also become alarmed, notwithstanding the fact that the perpetrators of these recent frauds had been brought to justice. He knew there was an exceedingly strong feeling outside the House that a registration of deeds, such as existed in Middlesex and Yorkshire, would cure the evil, and prevent the perpetration of such frauds for the future. He dared say it would, to a certain extent. He had no doubt that if there had been such a registration of deeds, where the property which was conveyed by Dimsdale or his confederates existed, he would not have been able to commit his frauds. But it was very difficult to legislate in order to check the perpetration of fraud. It was difficult, when people resorted to gross frauds and forgeries, to prevent those frauds and forgeries from being effectual; and if Dimsdale and his confederates had not been able to carry out the frauds which they did execute, it was quite possible that they would have invented some other contrivance for deceiving the public, and getting hold of property which did not belong to them. But those who asked for a registration of deeds to be established over the whole country, must remember that what they were asking for was a compulsory registration of deeds; for, unless it was compulsory, it would be quite idle, and would be of no efficacy whatever. Well, then, the grave question arose—would the benefits which they would get from such compulsory registration overweigh the evils which would flow from it? That, however, was not a matter upon which he pretended to give an opinion; but it was a matter which had been investigated by a Royal Commission, and that Royal Commission, which was composed of men of the greatest possible experience and eminence, came to the conclusion that the registration of deeds was anything but a good thing; that it was to be deprecated in consequence of the expense, which pressed heavily in the case of small transactions, and in consequence of the necessary exposure of private concerns, and the paralysis which would be caused in connection with the dealings with the banks and individuals on the deposit of deeds. In short, the Commission arrived at the conclusion that the compulsory registration of deeds was not desirable, and that, instead of being a benefit, it would
    1908
    be a detriment to the community. Their Report concluded as follows:—
    "On this subject we have thought it necessary to examine only three witnesses. All agree in saying that the Registry causes a great increase of trouble and expense, affords no additional security or other special advantage, and ought not to be continued. We entirely concur in this opinion, and recommend that, from as early a date as possible, the Registry (i.e., the Middlesex Registry) should be closed as regards the deeds executed after that date."
    He did not himself think it a desirable thing to institute compulsory registration of deeds in order to prevent those frauds. It was much more important to consider whether they could not have a good registration of titles. Perhaps it would be an advantage if a man could invest his savings in real property more cheaply and easily than he could do at present; but he never could understand how it was essential to the happiness of a working man that he should possess an acre or half-an-acre of land. He admitted fully that a good system of registration of titles, even taking the law as it stood, would to a very considerable extent facilitate and cheapen the transfer of property, and be, on the whole, beneficial to lawyers; but how were they to bring about this system? There had been a great many attempts to bring it about—Commission after Commission, Committee after Committee, Bill after Bill, Act after Act had been passed; yet these Statutes had all been ineffectual. How could they make them effectual? Only by making the registration of titles compulsory. This would be excessively vexatious and annoying—would the benefit be worth the sacrifice? Of this he was quite certain—there would be great opposition in the country to any proposal of that sort. If a compulsory registration of titles were established, every man who had any defect in his title would be compelled to disclose it—he could not raise money on his property without telling the whole world that his title was defective; and such a proposal would be resisted to the last extremity. But if it were necessary for the benefit of the community that such a measure should be introduced, the public interest, no doubt, must prevail; but he was not prepared to say that the time had arrived for that yet. Reference had been made to the law of other countries, and that law had been contrasted with the law

    1909
    of England; but were they prepared to do away in England with all settlements of real property, and alter the law as suggested by the hon. Member for Reading (Mr. Shaw Lefevre)? He was not prepared to go to that extent. If any reasonable plan could be provided for curing existing defects, he would be glad to support it; and, with regard more immediately to the subject before the House, all he could say was, that he felt quite convinced, after the feeling which had been manifested by the House, that a Committee ought to be appointed. He would, therefore, agree to the Motion.
    MR. OSBORNE MORGAN, in reply, said, he must be allowed to express his thanks for the manner in which his Motion had been received, and hoped that one result of the debate which had taken place would be a more rapid progress in the manner in which the Survey was being carried on. He was quite willing to add to his Motion the words suggested by the hon. and learned Member for Cambridge (Mr. Marten)—namely, "and also to prevent frauds on purchasers and mortgagees of land."
    Motion by leave, withdrawn.
    Select Committee appointed, "to inquire and report whether any and what stops ought to be taken to simplify the title to land, and to facilitate the transfer thereof, and to prevent frauds on purchasers and mortgagees of land."
    And, on May 22, Committee nominated as follows:—Mr. WALPOLE, Mr. LOWE, Mr. ATTORNEY GENERAL, The LORD ADVOCATE, Mr. GREGORY, Sir HENRY JACKSON, Sir JOHN KENNAWAY, Mr. SHAW LEFEVRE, Mr. CHARLES LEWIS, Mr. ALFRED MARTEN, Mr. PATRICK MARTIN, The O'CONOR DON, Mr. RYDER, Mr. WALTER, Sir SYDNEY WATERLOW, Mr. PERCY WYNDHAM, and Mr. OSBORNE MORGAN:—Power to send for persons, papers, and records; Five to be the quorum.

  JUDICIAL APPOINTMENTS.

    RESOLUTION.
    SIR HENRY JAMES, in rising to call attention to the mode of election of certain Judges having extensive criminal jurisdiction, and to move—
    "That, in the opinion of this House, it is inexpedient that indictable offences should be tried before Judges elected by any representative body,"
    said, he wished to avoid any misunderstanding, as he feared there were some who supposed that the Motion was
    1910
    brought forward to question the competency of some gentlemen who had been elected to judicial offices, or to curtail the privileges of the City of London; but his only object was to point out that there was an anomaly with regard to the election of certain Judges, and that the system pursued did not afford due safeguards for the administration of criminal justice. He would not conceal from the House that the anomaly to which he referred was entirely connected with the City of London. The nomination and selection of Justices for criminal jurisdiction rested of course with the Crown; but, in one instance alone, that principle was departed from, and virtually and substantially the Commonalty of the City of London had the power of appointment. The House was, of course, aware, that in the City of London a power existed of electing three Judges—first, the Recorder, who was elected by the Court of Aldermen; then, the Common Serjeant and the Judge of the Sheriffs' Court, who were elected by the Common Council. All of them were criminal Judges, exercising a most important criminal jurisdiction, and by degrees their power and duties had been extended, until it reached what it now was. Now, what was the exact position of these Judges? It had been supposed that those who objected to this principle of election thought that these Judges sat by the direct effect of their being elected. Substantially, they did sit by virtue of their election. No doubt, they sat by virtue of the Commission issued by the Crown; but the moment the Recorder, Common Serjeant, or Judge of the Small Debts' Court was elected by the constituent body, the Crown lost all power over the position of that officer. That power was conferred by Statute, and it was not against the customs of the City of London that his Motion was directed, but against that statute, and against legislative interference with the Prerogative of the Crown. A Statute was passed in 1834, which constituted the Central Criminal Court. Up to that time the Court bore the name of the Old Bailey, and had jurisdiction over the City of London and the county of Middlesex in criminal cases. But, in 1834, by the Bill introduced by the then Lord Chancellor (Lord Brougham), it was thought advisable to extend the jurisdiction of the elected

    1911
    Judges to the most populous parts of Essex, Kent, and Surrey, and the result was, that the jurisdiction of these Judges extended, he believed, over nearly 7,000,000 of people. Before the passing of the Act of 1834, the position of these Judges, he understood, to be this—from ancient times the Recorder of the City of London, who had been elected, in the first instance, as legal adviser to the Court of Aldermen, was made Justice of Oyer and Terminer by Charter. But the Common Serjeant had no position other than that which the Crown's own will chose to confer upon him. He was, no doubt, Attorney General to the Common Council, informations were laid in his name, and he occupied the position of legal adviser to the Common Council in the same way as the Recorder to the Court of Aldermen. The Crown, therefore, whenever it thought right, for convenience sake, did place the Common Serjeant in the Commission of Oyer and Terminer, and sometimes he was found in the Commission, and sometimes not. Then came the Act of 1834. By the 1st section of that Act, it was enacted that in the Commission issued for the trial of prisoners at the Central Criminal Court, among the persons named, the Recorder, Common Serjeant, and Judge of the Sheriffs' Court, should be included. The effect, therefore, was, that as soon as the Court of Aldermen and the Common Council chose to elect their Judges, they did, by this Statute, become Judges of the Central Criminal Court, and the Crown was bound to have their names in the Commission, however unfitted by illness, or age, or infirmity, they might be for the performance of their duties. The Crown, therefore, after that Statute was passed, gave up the exercise of its optional right, and handed over to the Court of Aldermen and the Court of Common Council the power to determine who should be Judges of the Central Criminal Court. Therefore, in the case of a person becoming unfit from age, or otherwise, the Crown had no power to remove him. The first proposition he had to submit to the House was, that these Judges fulfilled very high judicial functions, and that this mode of appointment was anomalous. Under the Act their judicial functions were confined to the graver and more important cases, the minor ones, as a rule, not going before them, being sent to the Quarter
    1912
    Sessions of Middlesex and the different home counties. The Court had also power to try all offences committed on the High Seas. It now was empowered likewise to try cases which were sent to it, specially on the ground that they would not be tried fairly in other counties; and, in fact, it had become the Central Criminal Court of the country in every respect. In the two years preceding the 1st of May, 1878, no fewer than 2,077 prisoners were tried at the Central Criminal Court for offences, including the gravest the law knew of. Of these, 626 were tried before the Common Serjeant, 597 before the Recorder, 570 before the Judge of the Sheriffs' Court, and 284 before the Judges from the Superior Courts at Westminster. So that the elected Judges tried 1,793 prisoners, as against 284 tried by the Judges from Westminster. Of the 626 tried by the Common Serjeant, 498 were convicted, and sentences of penal servitude, amounting, in the aggregate, to 784 years, were passed by him. Of the 597 tried by the Recorder, 477 were convicted, and the sentences of penal servitude amounted, in the whole, to 676 years. Of the 570 prisoners tried by the Judge of the Sheriffs' Court, 389 only were convicted, and yet he passed sentences of penal servitude amounting altogether to 1,084 years. So that the elected Judges passed sentences of penal servitude which, in the aggregate, amounted to 2,544 years. He might mention that one-fourth of the whole of the prisoners in England and Wales were tried at that Court, and he knew of no duties that had to be so carefully performed as those of these Judges. What, then, were the safeguards that ought to be employed in order to see that these Judges were fully fitted for the performance of such duties? Surely, in the selection of the Judges of such a Court, there should be the calmest and gravest consideration, and the selection should be made by men possessing a knowledge of what was required; not only should a knowledge of the candidates be brought to bear, but every care should be taken that no influences should be allowed to affect the judgment of those who had to make the selection. There was a time, no doubt, when lay Judges administered justice in this country, and administered it in the most insufficient manner; but two of the great privileges obtained by

    1913
    Magna Charta were—first, that Judges should be sent from Westminster to administer the Assizes in every county; and, secondly, that no one should assist them except the Knights of the Shire. In a later clause of the Charter, there was an express provision that no Coroner, Sheriff, or Bailiff should administer Pleas of the Crown. The meaning of this, of course, was that Pleas of the Crown should not be administered by elected Judges, and that the Crown should retain in its own hands the power of selecting them. The only exception in this country to the principle then established seemed to be the office of Coroner; but the Government seemed to think the present mode of electing Coroners was objectionable, as they proposed, by a Bill introduced this Session, to take the power of election from the freeholders generally, and to vest it partly in the magistrates and partly in the elective body about to be established. The Middlesex magistrates, who had some experience, were not allowed to select the Chairman who had to try the prisoners; and he would ask, if they denied the elective principle in such a case, where minor causes only had to be tried, why they should allow it to persons who had had no training whatever fitting them for the duty of election? He did not wish to say anything disrespectful of the Aldermen of the City of London, for he had no doubt they performed their duties faithfully; but it was no disparagement to them to remark that, as most of them followed commercial pursuits, they did not possess an experience of law and the administration of justice that would enable them to determine properly the qualities required in a Judge. They did not come into contact with those from whom they had to select. The result was, either that the selection had to be made in total ignorance of the qualifications of the candidates, or that that must take place which was a greater evil—the candidates for the appointments must descend into the arena of an election contest and canvass from house to house; they must vaunt their own capabilities over those of their opponents, or resort to that most insufficient mode of sending round testimonials, which sprang often from private friendship. Could they believe that a man who would be the fittest man—a great lawyer, occupying a high position at the
    1914
    Bar, trained with the feeling that the Bench must be pure from the slightest suspicion—could they believe that such a man would enter into the arena of a contest in which he must make an assiduous canvass for votes, and must ask for judicial honour and monetary payment—must say that he was better than his opponent? Would the House believe he would do that in order to obtain the appointment which, in other circumstances he would desire, and the duties of which he was eminently fitted to discharge? It was most important that the holder of a judicial office should be beyond suspicion, and that was almost impossible in a case where his appointment was the result of a popular election. To his mind, the highest judicial honour that could be conferred on any man would be dear at the price that would have to be paid for it. The very fact of this canvass being necessary would drive from the contest a man who was conscious of his merit; whereas a man who was not so sensitive would succeed in obtaining the office. Some hon. Gentlemen who sat on his side of the House might carry their Liberal proclivities so far as to say that all the Judges should be elected—[Mr. BIGGAR: Hear, hear!]—but would the hon. Member for Cavan consent to such a system if there were no check in reserve? It was perfectly true that in some instances the office of Common Serjeant had been conferred without the practice of canvassing having been resorted to—as in the case of Lord Denman; but, even then, the fact was due to political reasons, and was not in every case the result of personal fitness for the office in the gentleman selected to fill it. No one, he thought, could doubt that the practice of electing Judges, which was followed in the City of London, must result in detriment to the public service and a gradual degradation of the Judicial Bench. Another, and, to his mind, one of the strongest grounds of objection to this mode of appointment, was that the Court of Aldermen sought to elect as their legal adviser not only a man to give them legal advice, but to be of assistance to the Corporation, not merely upon the Judicial Bench, but elsewhere; and hence it gave the Corporation of London power to get two paid Representatives in Parliament by electing as Recorder and Common Serjeant two

    1915
    lawyers who happened to be Members of the House of Commons. A further evil was that the characteristics required by the Corporation were not the characteristics required by a Judge. The time was passing, if it had not entirely passed, when the fact of a member of the Bar being a Member of that House should form a ground of claim to any Judgeship in this country, and the qualifications for a Judge were not to be found alone in a man's Parliamentary position, but in his having passed the severer ordeals in the practice of his Profession. The Corporation also had the power of appointing Judges with a jurisdiction, including not only the City of London, but the counties of Middlesex, Kent, Surrey, and Essex. The position of these Judges appointed by the Corporation was also a matter deserving consideration. In this country, when Judges were selected by the Crown, it was so necessary that the administration of justice should be well maintained that the Legislature had reserved to itself, in case of misconduct, the power of the removal of those Judges by a joint Address from both sides of Parliament; but what power of removal existed in relation to either the Recorder or Common Serjeant? [Sir GEORGE BOWYER: You can remove them from the Commission.] To do that would be interfering with the customs of the City, which he did not think could be done, and it would be exercising that will of the Crown which he was endeavouring to maintain. When elected, this Judge must be put on the Commission, and, if he misconducted himself, there was no power of removal in Parliament or the Crown—there was none except that which was said to exist in common law, and he did not know what that was. It was true that the election of Recorder was vested in the Court of Aldermen, who had had some experience as magistrates, and were a smaller body than the Common Council; but, as a rule, they elected the Common Serjeant, whose natural claim it was an exceptional thing to refuse, so that the election of Common Serjeant was practically the election of the future Recorder by the 206 members of the Common Council. Was there one member to whom they would delegate the power of selecting the Judge? And could there be greater confidence in the 206? On the contrary, the larger number was more likely to feel a less sense
    1916
    of responsibility, and to depend upon the judgment of others rather than their own. Even after they were on the Bench, these Judges were not entirely free from the influences which attended their election, for the Common Serjeant sat side by side with the Aldermen in whose hands his election to the Recordership would rest, and even the Recorder was not altogether free from the like influences. He might be one whose judicial conduct was marked by the greatest independence, and whose name had become a household word for the purity with which he administered justice; but he could not help looking forward to the day when those sitting beside him on the Bench would perhaps engage in the discussion of his private means and determine what amount of pension they should vote to him. The House knew of men upon whom such influences could have no effect; but it was not right that it should be possible to bring them to bear. As to the American elective system, Chancellor Kent and Justice Story would be recognized as entitled to speak with authority, and the Chancellor quoted the Justice as condemning appointment by a deliberate Assembly, because it opened the door to party and local intrigue, and permitted men to accept judicial office without sufficient regard to the general welfare. His hon. Friend the Member for Londonderry (Mr. Charles Lewis) had given Notice of an Amendment, which was based upon the Report of the Royal Commissioners appointed in 1854, and which set forth that "the privilege of electing the judicial officers of the Corporation of the City" having been expressly approved by those Commissioners, the House should declare its opinion that "no circumstances have since transpired which call for the interference of Parliament." But he (Sir Henry James) desired to point out that that Report proceeded entirely upon the efficiency of the officers then existing—upon the undoubted capabilities of the Recorder and the Common Serjeant of the time. Further, it was not a sufficient security for the working of a system, and it should not prevent the House exercising its discretion now. It was strange that this Commission recommended that the election of Recorder should be transferred from the Court of Aldermen to the Court of Common Council. There was another

    1917
    Report, however—a Report based upon much broader considerations, made by the Commissioners appointed to inquire into the Municipal Corporations of England, and published in 1837. That Report, instead of giving perfunctory reasons as to the capabilities of particular officers, dealt with the broad question, and supported the view which he had endeavoured to maintain—namely, that it was most objectionable to elect officers who had to exercise judicial functions. To the terms of his Motion, as it stood, objection might, perhaps, be taken; but he hoped he had made its object perfectly clear. He did not wish to take from the City of London the power of electing their Recorder and Common Serjeant. What he wished was to attack the legislation of 1854; what he wished was to give to the Crown the power which everyone who valued the Constitution ought to desire to see possessed and retained by the Crown—the power of nominating the Judges; while, at the same time, being answerable to the subject for their due and proper election. He thought the words of the Amendment, of which Notice had been given by his hon. and learned Friend the Member for Durham (Mr. Herschell), to the effect that it was inexpedient
    "that officers elected by any representative body should, in consequence of their being so elected, be empowered to try indictable offences,"
    would probably express more clearly the views he entertained; and he would, therefore, if the Forms of the House would allow, adopt the words of that Amendment on his original Motion, hoping they would meet the approval of the great majority of the House. It was not for him to criticize his fellow-men; all he wished to do was to criticize the form of an appointment. And, with reference to the subject, he hoped the principle he had laid before the House would be acceptable to the great body of the people. The hon. and learned Member concluded by moving the Resolution as amended.
    Motion made, and Question proposed,
    "That, in the opinion of this House, it is inexpedient that officers elected by any representative body should, in consequence of their being so elected, be empowered to try indictable offences."—(Sir Henry James.)
    MR. CHARLES LEWIS, on rising to move the following Amendment:—
    "That the privilege of electing the judicial officers of the Corporation of the City of London, vested in that Corporation, having been expressly approved by the Royal Commissioners appointed in 1854, this House is of opinion that no circumstances have since transpired which call for the interference of Parliament,"
    said, that rightly or wrongly, he was led to the conclusion, when the Motion of the hon. and learned Gentleman the Member for Taunton (Sir Henry James) was laid upon the Table of the House, that directly, it was meant, or that indirectly, the result would follow, that an attack would be made upon two hon. and learned Members sitting on different sides of the House, who had recently been appointed to judicial offices of a high character in the City of London. He had placed his Amendment on the Paper without the slightest communication with anyone, still less with the two hon. and learned Gentlemen whose position in high judicial office was more or less involved in the Motion. However, the hon. and learned Member for Taunton said he was in danger of being misunderstood. He (Mr. Lewis) confessed he was one who had misunderstood the hon. and learned Gentleman, and ho thought that, considering the time and the circumstances under which his Motion was placed on the Table, he was excused for misunderstanding him. For what had happened? It was on a Thursday that the election of the Common Serjeant was held, and on the very next Monday the hon. and learned Gentleman put his Notice of Motion on the Paper. He thought he was doing no injustice to the hon. and learned Gentleman, when he believed there was a strong link of connection between the election of Thursday and the Notice of Monday. When it was recollected that the newly-elected Common Serjeant and the Recorder were then about to commence their judicial functions, the Motion seemed as if intended to disparage them by anticipation, and to inflict upon them and their office an injury of the most serious character. The present was an abstract Resolution, and the House disliked abstract Resolutions, and especially such as were directed at the mode of electing to judicial offices, and thus indirectly cast a slur on those on whom the office was conferred. The House

    1919
    was asked by this Motion to cast a stigma, not only on the mode of the election of officers of a judicial character by the Corporation of London, but also particularly on the persons who were to discharge the duties. He did not dispute that if the hon. and learned Member had obtained leave to introduce a Bill to amend the Act of 1834, he would have been taking a strictly legitimate course in bringing before the House the necessary Amendments he desired to make; but such was not the case, and when it was recollected that that Act of Parliament was the culmination of a system which had gone on for 150 years, and to which the Crown and its Advisers had been parties, the remarks they had heard that evening about the infringement of the Prerogative of the Crown seemed somewhat out of place. It might be inferred, from the speech of the hon. and learned Gentleman, that the original nomination of the Recorder and Common Serjeant was for the performance of strictly judicial duties; but the fact really was that these judicial duties had been forced upon them by the Crown and Parliament, their primary duties being to act as advisers to, and to advocate the special interests of, the Corporation. The City of London and their higher Law Officers were badly served by the hon. and learned Member's attacks relying on what he called the Prerogative of the Crown; and it seemed to him to be an answer to the Motion, that during a long series of years the Crown had been accustomed to include the Recorder and the Common Serjeant in the Commission of Oyer and Terminer at the Central Criminal Court—for it proved that the duties had been performed satisfactorily to the several Chancellors as well as to Parliament during a long period of years, and it was really a flattering acknowledgment that the Corporation had invariably shown great wisdom and judgment in selecting their Recorder and Common Serjeant. Without intending any disrespect to the Bar, he ventured to say that a speech quite as righteously indignant as that of the hon. and learned Member for Taunton might have been made on such a Resolution as this—
    "That it is of the highest importance that no appointment to the Judicial Bench should be in any way connected with Party politics, and that no inducement should be offered to Members of
    1920
    the Bar to go through the dirty avenues of a contested election, in order, by obtaining a seat in this House, to gain a vantage ground from which to step upon the Judicial Bench."
    He ventured to say that the hon. and learned Member for Taunton would not have made an equally indignant speech in condemnation of such proceedings. The fact was that the appointments made within the last 20 or 30 years in the City of London had caused a great deal of professional disappointment, just as did the elevation of Mr. Justice Blackburn to the Bench some years ago—when, as hon. Members would recollect, an outcry was made by different members of the Bar, and especially by many among the leaders, that a slight had been passed upon them by that appointment. Leading articlesappeared in the newspapers, and there was great indignation in high legal circles, that a humble reporter, without business, should have been put over successful persons at the Bar; and yet, that learned person had been lauded in the House of Lords with the highest distinction it was possible for a Minister to bestow. It was surely quite unnecessary to turn the House of Commons into a mere debating society. Did or did not this Motion refer to recent appointments? If it did not, and he would assume it did not, as the hon. and learned Member wished them to believe, then nothing could be more unfortunate than the time and circumstances under which it had been brought forward. A finger-post, pointing to certain hon. and learned Members in the House, could not have more clearly indicated the individuals to whom the Motion pointed. The hon. and learned Member laid it down as a fundamental proposition that the mode of electing the Recorder and the Common Serjeant did not present a satisfactory guarantee for the due administration of justice; but he had not quoted a single instance of its having been abused. Now, was it not incumbent on an hon. Member to cite such an instance before asking the House to adopt a Resolution like the one before it? It was not sufficient to deal with this question on merely à priori grounds. Hon. Members were not asked to sanction the initiation of a system under which Judges should be so appointed; but they were asked to affirm that a system which had existed for centuries

    1921
    ought to be altered in consequence of a theory which, however good in itself, had not been enforced by any facts showing that there was any evil to be removed or any insecurity or insufficiency in the administration of justice to be remedied. The hon. and learned Member for Taunton had referred to the Royal Commissioners of 1854–6; but he did not give the full force of their finding upon the question. They reported—
    "It does not appear to us that there is any ground for suggesting that the important privilege justly and highly prized by the citizens of London should be taken from them and vested, according to the precedents of other boroughs, in the Crown."
    Moreover, no reasons had been given by him to induce the House to believe that the power of the Corporation had been unduly exercised, or that it had produced any discredit to the Corporation; and yet they were asked to take away a power which the Royal Commissioners recommended should be exercised in a more popular form, by its removal from the smaller body of the Court of Aldermen to the more numerous body of the Lord Mayor, Aldermen, and Common Council of the City. Was any credit to be given, apart from politics, to the Report of a Royal Commission, consisting of such men of high culture, long standing experience, and with clear scrutinizing judgment as Mr. Justice Patteson, Sir George Cornewall Lewis, and Lord Taunton? They were not men likely to recommend the extension of the power of election of these officers, unless very careful inquiry convinced them that the mode of election did not work badly. The hon. and learned Member for Taunton had referred to no persons or instances to show not only that theoretically the power vested in the Corporation was a mistake, but that practically it had worked badly in the administration of justice. Were there no facts, however, on the other side? The hon. and learned Member had referred to the case of Lord Denman, who, he said, did not canvass. Well, if that were so, it showed that the Corporation of London were capable, without personal solicitation, of electing a man of the highest type to the post of Common Serjeant. That circumstance told very much in favour of the Corporation, and showed that they might safely be trusted to exercise their patronage in this respect.
    1922
    Many distinguished individuals had been connected with these offices in former days, including Sir Talathiel Lovell, afterwards a Baron of the Exchequer; Sir Peter King, who subsequently became Lord Chief Justice of the Common Pleas and Lord High Chancellor; Sir William Thompson and Sir Andrew Strange, both of whom became afterwards Barons of the Exchequer; and in later times, also, there had been signal instances of the Corporation selecting men of high standing and capacity. Did not these facts take the edge off many of the abstract arguments which had been urged by the hon. and learned Member for Taunton? With regard to the alleged canvassing—unfortunately, in all times and circumstances, those who had anything to give away would probably be asked to give it, although Lord Bacon had stated that he who sued to be a Judge did not deserve to be appointed. It was quite idle to say that certain judicial appointments were not sought after, and if hon. Members looked at what occurred in private corners of that House, or in Ministers' quarters, they would find that suing to be a Judge was not a wholly unknown operation. It was equally idle to say that appointments to the highest judicial offices were not sometimes made through avenues and channels which would not bear the very closest investigation; but it was a fact highly creditable to the present Lord Chancellor, that in his appointments to the Judicial Bench he had shown his opinion to be that it was not a necessary passport to an office of the kind that a man should be either a Member of the House of Commons or of the Conservative Party. He contended that, while there had been no case made out against the Corporation of the City of London, or its present judicial officers, or those who recently held such appointments, there were abundant reasons for believing that the exercise of patronage on the part of the Corporation had operated with advantage to the State and with credit to the Corporation; and he trusted that the House would not be induced, by passing an abstract Resolution, to injure the administration of justice, or to place, as it were, a ticket of bad character on those who filled judicial offices in the City of London. The hon. Member concluded by moving the Amendment of which he had given Notice.
    Amendment proposed,
    To leave out from the word "That" to the end of the Question, in order to add the words "the privilege of electing the judicial officers of the Corporation of the City of London, vested in that Corporation, having been expressly approved by the Royal Commissioners appointed in 1854, this House is of opinion that no circumstances have since transpired which call for the interference of Parliament,"—(Mr. Charles Lewis,)
    —instead thereof.
    Question proposed, "That the words proposed to be left out stand part of the Question."
    MR. HERSCHELL, who also had an Amendment on the Paper, said, that the hon. Member for Londonderry (Mr. Charles Lewis) had endeavoured to draw away the attention of the House as much as possible from the discussion of the important principle underlying the Motion—a principle that might be of material interest with regard to the welfare of the country—by referring to the merits of certain persons who, elected by the Corporation of the City of London, had filled the offices of Recorder and Common Serjeant; because he could not help feeling that if he discussed the principle alone, he would find difficulty in meeting the arguments brought forward by the hon. and learned Member for Taunton (Sir Henry James). The hon. Gentleman (Mr. Charles Lewis) had chiefly addressed the House on the question whether this Motion was brought forward at the right time. For his part, he (Mr. Herschell) thought it would have been difficult to find a more fitting opportunity for bringing forward this Motion. About the only time at which the House could be expected to give fair attention to the subject, without being put in an invidious position, was shortly after the election, when the present holder of the office of Common Serjeant had neither shown himself incompetent to fill the office, nor possessed of very distinguished abilities to perform the duties intrusted to him. The hon. Member had not said a single word to show that the appointment of Judges by popular election was likely to lead to beneficial results. He had altogether dwelt on circumstances of a local and temporary character; but the real question was, whether the country was under this system exposed to the risk of appointments which the country would deem
    1924
    undesirable? It was no answer to this, to say that men were sometimes appointed to judicial offices from political or other motives which were not strictly judicial; and, while he (Mr. Herschell) objected to the mode of election now followed in the City of London, he hoped to see the day when such improper motives for the appointment of Judges would altogether disappear, and when fitness for the office would be the only ground on which a lawyer would be raised to the Bench. He admitted that there were, or might be, abuses in other modes of judicial appointment; but he asked the House whether all such abuses were not most likely to disappear by leaving the appointment of the Judges to a high official who would be responsible to Parliament and the country, who could be called to account, and who would feel the weight of his responsibility for the general administration of justice throughout the country, than by leaving it to 200 or 300 men who could know nothing of the qualities that best fitted for the Bench, or of the men who asked their suffrages? He ventured to think that electioneering arts, which necessarily were of advantage to a candidate when the appointment was in the hands of a body such as they were speaking of, were, perhaps, as little suited as anything could well be to give to the mind a judicial direction, or to preserve that frame of mind which they all desired to see in those who sat on the judgment-seat. Thus he maintained that the qualities which were best suited to secure an election were not those which were most likely to make the best Judge. The hon. Gentleman opposite stated that the Common Council had at times made most excellent appointments, and he spoke of the election of Lord Denman as one which did them honour. But the hon. Gentleman did not say that the Report, to which reference had been made, asserted that the election of Lord Denman was made from political motives. The hon. Gentleman said that the Motion was grounded upon, and caused by, professional disappointment at the recent City elections. For his part, he did not know to what the hon. Member alluded. The observation certainly did not apply to him. This, however, he could not help saying—that the hon. Gentleman seemed to have enjoyed very much the opportunity of defending one or two members of the Bar by throwing aspersions

    1925
    upon the rest of the Profession. The Motion was not dictated by any miserable feelings of jealousy; and he repudiated, with all the indignation of which he was capable, the suggestion that such a motive actuated him or any other of its supporters. They had been asked, where was the evidence that mischief arose from appointments made in the manner referred to? Well, abuses might arise, and evils exist, which were not of a very glaring character; but the production of the evidence necessary to prove their existence would necessitate a difficult and delicate inquiry, which must inflict pain and cause injury. Everyone knew that there must be differences in the relative capacity of different Judges; and they might have justice administered by an inefficient Judge, whose conduct might lead to many doubtful convictions, or cause a great deal of suspicion, pain, and trouble, and yet there might not be any glaring instance which they could bring before the public. It was a mistake to suppose that every Judge could try a prisoner equally well; and yet it would be a most invidious thing to say—"Oh, show me where such a Judge has failed; what person has been wrongfully convicted before him; what criminal has escaped through his incapacity?" Such an inquiry was entirely out of the question, and the House should not allow itself to be led away by it. Upon the capacity, judicial qualities, judgment, and discretion of the Judge depended everything that was dearer than life itself; and, surely, in a case where jurisdiction extended over 7,000,000 of people, it was of the highest importance, at any cost, and by all means, to secure the Judge best qualified to administer justice. That was what they desired, and it was with that desire that he supported the Motion.
    MR. STAVELEY HILLsaid, there was scarcely a sentence uttered by his hon. and learned Friend who had just sat down in which he did not entirely concur; but many things he had said had no bearing on the question before the House. They had to consider, first, whether the discussion was opportune? and next, the point raised by the Motion of the hon. and learned Member for Taunton (Sir Henry James). His argument would go to show that neither of these considerations were sustained by the facts of the case. It did not follow, as stated
    1926
    in the Resolution, that it was in consequence of their election that these two officers tried indictable offences. The Recorder was a high functionary, who gave the authorities of the City counsel and advice under all circumstances; he was also the exponent of their laws and customs; and the Common Serjeant was another high functionary; he might be called the Deputy Speaker of the Aldermen and Common Councilmen, and he gave them advice in and out of council. In fact, the Recorder and Common Serjeant were engaged on behalf of the City of London in the most high and most responsible business that could fall into their hands. What position did these high officials stand in? He made a present of all that occurred before 1834 to the hon. and learned Gentleman the Member for Taunton, and he should go on to inquire—What did they find these gentlemen appointed to do? They were, in consequence of their election, selected by the Legislature, as, amongst others, persons suitable to try indictable offences, and the Act of 1834 empowered the Crown to appoint or not appoint them. The Act left it in the power of the Crown, if they were unworthy to sit as Judges, to omit them from the Commission of Oyer and Terminer; and, therefore, he held it was left in the power of the Crown to put the Recorder and Common Serjeant in the position of Judges, or to omit them if not fit persons. Here, then, was the position. These two gentlemen were appointed by the Corporation, and here was the Act of Parliament applicable to them. In the first or second year of the present Reign a Commission was issued under the Act in which these two were included as Judges. The Commission was issued from time to time, and any person disqualified might be omitted from the Commission. If that were so, how could his hon. and learned Friend defend the Resolution he had placed before the House? All the Aldermen who were similarly elected by the citizens of London were magistrates, and were placed on the same Commission as persons fit to try these offences. He ventured to say that to put forward this Resolution now and to argue it now, was to cast a slur on two gentlemen recently elected, and calculated to diminish their utility at the time when they were entering on their

    1927
    office. If his hon. and learned Friend the Member for Taunton did not mean to allude to this particular election, he should have brought his Motion forward against the Aldermen as well as the two officers who had been appointed. Did not that very fact show that the Resolution was aimed against the circumstances of this election? He submitted that there was nothing made out which required an amendment of the law of election, or which rendered this Resolution opportune to the present occasion.
    MR. WATKIN WILLIAMSsaid, he must frankly confess that he had been unable to understand the argument of his hon. and learned Friend (Mr. Staveley Hill). A broad, simple, and perfectly intelligible proposition had been laid before the House. He understood the question was, whether judicial appointments should be made by irresponsible popular election or under the responsibility of the Executive Government? He deeply regretted the necessity for a Motion of this sort, more particularly as it touched a Member of that House and of the Legal Profession. But the recent election had given rise to much discussion among Members and at the Bar, and it would be affectation to deny that the Resolution referred to a particular individual. Appointments of this kind could never be tested with reference to the qualification of individuals; but it was well known what evils there were connected with them when they were not made on the responsibility of Ministers who could be questioned in Parliament. He had been glad to see of late a tendency to transfer all appointments in Courts of Law to the Executive Government; for hitherto, if bad appointments had been made, those who were affected by them had been helpless to criticize them. The time had come for a declaration in that House that they preferred the selection of Judges by the Executive Government to their election under a system which induced them against their own feelings to tout for votes. He would be glad to see every office in England withdrawn from the bad system of election by popular vote. He hoped the House would not be deterred by any considerations of a personal nature from coming to a vote on the broad proposition.
    MR. HARDCASTLEsaid, the last speaker had expressed himself more honestly than others, and this was nothing
    1928
    more nor less than a personal matter. He himself considered the House was indebted to the hon. Member for Londonderry (Mr. Charles Lewis) for the information he had afforded them on the subject of this discussion. The hon. Gentleman had certainly told him what he had not known before, that this question of the quasi-popular election of criminal Judges by the Livery of London had been inquired into by three most eminent men sitting as Royal Commissioners—namely, the late Sir George Cornewall Lewis, the late Lord Taunton, and the late Mr. Justice Patteson, and that they had not found in it, so far as those particular Judges were concerned, anything to condemn. A terrible picture had now been drawn of the evils which might arise from Judges not being insensible to influences—influences under what circumstances? It was suggested that the Common Serjeant, sitting beside an Alderman who had assisted to secure his election, might be influenced by him whilst trying a man for his life. Did Aldermen thirst for blood? Was it when a man's life was at stake, that an Alderman would be likely to interfere. The idea was absolutely absurd. In a civil action, as Aldermen were only human, they might imagine it possible that some influence would be used; but in the other case, never. He was no defender of the popular election of Judges; he admitted this was an anomaly; but their freedom in England was largely due to anomalies; and he did not take exception to the maintenance of this anomaly, which had worked well for 300 years. As a layman, he was disposed to set the opinions of the Commissioners of 1854 against those of the hon. and learned Gentlemen opposite. Lawyers were not as other men, they were in the habit of taking sides, and would as soon defend a murderer as prosecute him. Such a profession must harden a man somewhat, and it must have been the Law Courts' experience of the hon. and learned Member for Taunton which enabled him to say so many things calculated to inflict pain. He was glad that in this respect he differed from him, and looked at this question from a different point of view to that from which they had been invited to regard it.
    MR. LOWE: Sir, the hon. Gentleman who has just sat down professes to look at this matter from a personal point of

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    view. As my view is entirely divested of any personality, I hope he will consider it no disrespect on my part if I do not follow him in his view of the subject. Nor do I think my hon. and learned Friend will require me to say anything in defence of the Bar. The question is an exceedingly simple and important one. It is nothing more nor less than this. There is nothing, perhaps, more valuable to us, nothing which tends so much to hold civil society together, as a pure, just, and intelligent administration of justice; and there is no sacrifice that I can imagine which we ought not to be ready to make in order to obtain that in its greatest purity and greatest perfection. The question, then, which we have to settle on this occasion, is simply this—What is the best way of obtaining the purest possible administration of justice? I know no other question than this. I put everything else aside, and I fix my attention solely on that point. Well, it is argued, or, at least, it is suggested, that the right way of obtaining the best possible administration of justice for 7,000,000 of our fellow-subjects is to select, or rather that two persons should be selected, for other functions altogether than the administration of justice; and that, having been so selected, with reference to these functions, by the Corporation of the City of London, having taken care that they should be selected alio in tuitu, we should then, as a matter of course, annex to these offices the highest function connected with the administration of justice, including trials which involve life and death. The nature of the contention is, that to elect a man for particular objects which have nothing to do with judicial functions and then to force these functions on him is the best way to get a good administration of justice. That does not happen to be my opinion. My opinion, on the other hand, is one which I might hope would have some little weight with hon. Gentlemen opposite, because it is founded on long practice in this country, and—what is better than all the argument that can be used—crowned with no ordinary measure of success. I do not mean to say that by this or any other way you will not get a certain number of fit men to administer justice. The French Judges once bought the right to administer justice, and France has enrolled many noble and illustrious men in the annals of her
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    Jurisprudence. Therefore, I do not mean to say that this elective system will necessarily always produce bad Judges; but I do say, if there is anything about which a country ought to have confidence, it is the taking the best means that can be taken for securing the best administration of justice. How is that to be done? I do not profess to have any new-fangled nostrum on the subject. In this case we have had a very satisfactory lesson from our own history. Ever since the Revolution, ever since Judges were appointed by responsible Ministers having sufficient knowledge to pick out the best men, and having a responsibility to the public which made them afraid of selecting unfit men, we have been blessed for 200 years with what, on the whole, allowing for the natural imperfections of human work, is the most admirable administration of justice, probably, that the world has ever seen. We take the Lord Chancellor, a man who has by great industry and ability risen to the top of his Profession, and we give him in the face of mankind the power of making these appointments, holding him responsible for them; and though we sometimes have, or think we have, reason to complain, we have, on the whole, what we want. The question we have to settle to-night is—shall we adhere to this venerable practice of our ancestors, which gives satisfaction not only by its antiquity but by its great and well-recognized success, or shall a Conservative majority put that aside and take up instead the principle of the election of Judges? The question is nothing more nor less than that. It is unnecessary to argue it. The election of Judges, and the corruption that is created in that way, led to the miserable transactions that occurred in New York. Where is there an instance in which the system of electoral Judges has answered? Are you, at this time of day, prepared to give up a system which is in entire accordance with your own history, which left the appointment of the Judges in the hands of the responsible Minister, substituting for it the principle of election? That really is the question to be decided. I cannot really doubt that it does not become a Conservative majority to be the first to set an example, which may easily be spread in these days, of doing away with the plan of appointing Justices by responsible Ministers of the

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    Crown, and substituting for it a system of election of any kind whatever.
    THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD): Sir, I cannot help thinking that the right hon. Gentleman who has just sat down is labouring under some strange misapprehension of facts, when he speaks of the adoption of the system of election of Judges by the Conservative majority. The offices of Recorder and Common Serjeant are ancient offices. There is also the officer called the Judge of the Sheriff's Court. In 1834, one of the first acts of the Reformed Parliament was to pass a Bill, brought in by Lord Brougham, in which these officers were made available as Judges of a new Court, possessed of entirely new jurisdiction. With what degree of accuracy can he describe the defence of that system, which was introduced and passed by a Liberal Administration, as an attempt by the Conservative majority to alter the ancient judicial system of the country? Although that was done by a Liberal Administration, the experiment has proved successful. Is there anything in the conduct of the Court, or in the administration of justice in it, which justifies the new-born zeal of the right hon. Gentleman in favour of ancient institutions. The system adopted in 1834 was approved by the Commission that sat in 1854, of whom two were prominent Liberals and one a Judge, who was so remarkable for impartiality that it was impossible to say to what Party he belonged. The Commissioners reported that there was no ground whatever for any alteration. It is said this Motion is not aimed at an individual, and I abstain from disclaiming such a thing on behalf of the hon. and learned Gentleman who brought it forward, as it would only be an insult to suggest it. But it is impossible, however much hon. Gentlemen may disclaim it, to disassociate the Motion from the fact that two hon. and learned Members have been recently elected to these offices, and that, with no proved incapacity or mal-administration of justice, it has been sought to declare that officers so appointed should not be trusted with the administration of justice. However the Resolution is looked at, it is an attack upon the privileges of the City of London. With reference to one statement which has been made by my hon. Friend the Member for Londonderry,
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    I must take the opportunity of denying, on the part of the Profession to which I have the honour to belong, that it is a fact that members of that Profession sue to be made Judges; and I can also say that if there has been a cabal against any particular Judge, I have never heard of it. The question must resolve itself into this—What has been the result of the system now assailed? The answer is to be found in the list of distinguished persons who have filled the offices, and of persons who, after inquiry, declined to report against the system. I apprehend an observation made by the hon. and learned Member for Taunton had reference to a transaction in which insolent vulgarity was offered to one whom we have all learned to reverence and respect. But it would be harsh to assume that such an incident as this is at all characteristic of the system of election under which these Judges are chosen, and which I venture to support.
    SIR GEORGE BOWYERthought that the present discussion had partaken very much of the nature of that which might have been expected from a debating society, and that the Motion of the hon. and learned Member (Sir Henry James) simply stated what was a platitude. As a general proposition, it was not desirable that indictable offences should be tried before Judges elected by anyone, and Judges ought to be appointed by responsible Ministers of the Crown. At the same time, he could not say that mode of appointment had always been successful. In their own experience, they had known some eminent Judges appointed by Ministers of the Crown; but they had also known some very bad ones so appointed. And as for the responsibility of Ministers, when a Minister had got a good round majority at his back, he might laugh at responsibility. But why did not the hon. and learned Gentleman propose at once that it was expedient and necessary that the Recorder of the City of London and the Common Serjeant should be appointed by the Ministers of the Crown? Instead of that, he brought forward a general proposition which nobody could dispute. The Members of the Liberal Party had always shown a great dislike to the privileges of the City of London. But those municipal privileges were part of the liberties of

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    the country. The question now before the House was not whether, as a general rule, the Ministers of the Crown should appoint the Judges, but whether the City of London was to be deprived of a privilege which it had so long enjoyed, and which was bound up with the history and the liberties of England? For his own part, he could not vote with the hon. and learned Member for Taunton. If the hon. and learned Member had desired to raise the question honestly, he ought at once to have proposed that the City of London should be deprived of its privilege.
    MR. BIGGARsaid, that although he sat on the Liberal side of the House, he did not intend to vote for the Motion. The hon. and learned Member had not made out a sufficient case to entitle hon. Members to vote with him. It was all very well to urge that responsible Ministers of the Crown should appoint the Judges; but surely they were no more competent to form an opinion on the fitness of an individual than the Court of Aldermen? The present Ministry were elected because they were in favour of the publicans; but that was no reason why they should be qualified to select Judges to preside over the Assize Courts. A bad selection was made by former Liberal Governments. Lord Westbury was a very able man, but was thoroughly dishonest. He lost his Office because he passed laws to manufacture places, and allowed his sons to sell the places to the highest bidder. That was notorious. One of the Judges at present at Westminster was in the habit of sleeping on the bench. He was selected by a Tory Government.
    MR. GRANTHAMsaid, that the hon. and learned Member for Taunton had given many reasons why the City of London was likely to elect bad Judges; but he did not mention a reason why it was likely to elect good ones—and that was, that it was its own interest to do so. The Court of Aldermen would not be likely to appoint anyone who was not capable of giving them the legal assistance they required, and the Court of Common Council might be expected to be actuated by the same interested motives; and, if they appointed men fit to hold the offices of their legal advisers, it was very strange if they should be unfit for the trial of offenders. He did not see, therefore, why Lord Brougham,
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    and others who followed him, should not have come to the conclusion that those who might be elected to the offices of Recorder and Common Serjeant would be fit to try the prisoners brought before them. The right hon. Gentleman the Member for the University of London (Mr. Lowe) seemed to think it was an anomalous thing that persons appointed for one duty should have another thrown upon them. But a great many of the Judges appointed to the Queen's Bench, Common Pleas, or Exchequer, had never had anything to do with criminal business in their lives, until their names had been put in the Commission for trying criminal offences; and it must be remembered that they were not appointed Judges for the purpose of trying prisoners, but Judges of the various Courts of Common Law, and, as such Judges, they were afterwards put in the Commission for trying prisoners. The best answer to the Motion was the speech itself of the hon. and learned Gentleman; because, although he had shown that 2,000 persons had been tried, and he forgot how many thousands of years of penal servitude ordered, by way of sentences, he had been unable to refer to a single instance in which an injustice had been done. It was not long ago that the principle of the appointment of civil servants, in the person of Mr. Pigott, by the responsible Ministers of the Crown, was called in question, and appointments made by those Ministers were condemned in no measured terms; while, shortly before that, the legal appointments—namely, the official referees appointed actually by the Lord Chancellor and the Judges combined were made the subject of direct attack and attempted censure in that House. By whatever body, therefore, appointments were made, hon. Gentlemen opposite were displeased. Why, then, should these appointments, with which no one was able to find fault, be held up to ridicule to-night? Before the appointment was made, and when the number of candidates who were going up for it was generally remarked in the House and in the Press, no one ventured to suggest that the mode of making that appointment was wrong; but the moment it was made, and an hon. and learned Member on one side of the House was appointed well known for his Conservative opinions, another hon. and

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    learned Gentleman of eminence hastened to put on the Paper a Motion which showed that he was actuated by some other motive than a desire to change the mode of election. Why, his hon. and learned Friend the Member for Taunton (Sir Henry James) was in such a hurry to censure the appointment directly it was made, that from the terms of his Motion it was clear he did not know what the appointment was, or how it was the Common Serjeant had to try prisoners, until his hon. and learned Friend the Member for Durham came to the rescue a few days afterwards and pointed out that the duty had been cast upon the Common Serjeant by Lord Brougham, the great Liberal Chancellor. He should, for these reasons, certainly oppose the Motion.
    MR. WADDYironically expressed himself so perfectly satisfied with the arguments of hon. Members opposite, that he could see no reason why so excellent a system, should not be applied to the whole country. It was a scandal and a disgrace that advantages of this land should be kept to the Metropolis. If the Town Council of Leeds, for example, were to elect their own Recorder or their own Chairman of Quarter Sessions, it might be possible to say whom they would select.
    SIR. HENRY JAMES,in reply, said, whatever might be the result of the division, he was perfectly satisfied with the course of the discussion. Every hon. Member who had spoken in that debate, except the hon. Member for Cavan (Mr. Biggar), approved the abstract proposition that Judges ought not to be appointed by a representative body. No one, not the Solicitor General, had ventured to say he disapproved of the abstract proposition. He declined to follow the hon. Member for Londonderry through the personal questions into which he had entered; but he wished to say a word as to his contention that the Motion was inopportune. His hon. and learned Friend the Member for Durham (Mr. Herschell) had shown that, of all the times for bringing it forward, it was the most opportune. When would it be opportune, in the opinion of those who raised that objection to bring forward a Motion of that kind? When a bad Judge was sitting on the Bench? If a Motion were brought forward complaining of the appointment of a particular
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    Judge, someone would defend, and others would complain of, his appointment. It would be said that it was an unconstitutional course to make such an attack on the appointment; and then the House would have to resort to the passing of an abstract Resolution, that in future Judges should not be appointed by a representative body. The hon. and learned Member for West Staffordshire said the Crown had the power of excluding the Recorder, the Common Serjeant, and the Aldermen from the Commission.
    MR. STAVELEY HILL: What I said was that the Crown would, under the Act, be within its right in issuing the Commission to them, or any of them.
    SIR HENRY JAMES: The words of the Statute were specific—that these Judges, including the Recorder, the Common Serjeant, and the Aldermen, should form the Court. The House could not attack the City of London, but they could attack the legislation by which that state of things was brought about. Though that legislation proceeded from a Liberal Government, he could not be accused of inconsistency in attacking it.
    MAJOR NOLANdid not think it was opportune, just after a Member of the House had been appointed to a Judgeship by a representative body, to bring forward this Motion, which looked very like a Party move. He thought that popular control in the appointment of Judges should be extended instead of being diminished.
    Question put.
    The House divided,:—Ayes 57; Noes 102: Majority 45.—(Div. List, No. 131.)
    Words added.
    Main Question, as amended, put.
    Resolved, That the privilege of electing the judicial officers of the Corporation of the City of London, vested in that Corporation, having been expressly approved by the Royal Commissioners appointed in 1854, this House is of opinion that no circumstances have since transpired which call for the interference of Parliament.

  CRIMINAL CODE (INDICTABLE OF FENCES) BILL.

    LEAVE. FIRST READING.
    THE ATTORNEY GENERAL (Sir JOHN HOLKER),on rising to move for leave to bring in a Bill to establish a Code of Indictable Offences and the

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    Procedure relating thereto, said: I should have preferred bringing on this subject at an earlier hour, but, owing to the state of Public Business, I was afraid that if I did not take advantage of the present opportunity of doing so, I should not easily find another. The Government have for long been fully impressed with the advantages which would accrue from a thorough condensation and simplification of the law. In recent years many Statutes consolidating Acts of Parliament upon various subjects have been prepared and passed; but, up to this time in England, no serious effort has been made to completely codify any branch of the law. Codification has, however, been resorted to in other Dominions of Her Majesty; and notably in India, where, some years ago, a penal code was enacted which has been found of the greatest use, and has given universal satisfaction. The success of this penal code was, to a great extent, due to the labours of a very learned jurist and sound practical lawyer, who was formerly the legal member of the Council of India. I allude to Sir James Stephen—a name well-known to all who take an interest in the law, or in the philosophical literature of the country. When the Indian Penal Code had been passed and brought into operation, Sir James Stephen left India, and returned to England. After his return, he continued to devote himself to the improvement of the law—his favourite study—and, after long and patient labour, he produced a work which has, I believe, been received with approbation by all who have to do with the administration of justice. I mean his Digest of the Criminal Law. When this work appeared, it was drawn to the attention of the Government; and it was—I may say, without using any exaggerated language—hailed with the greatest satisfaction; because it demonstrated the possibility of reducing, at all events, one most complicated branch of the law—I mean the criminal law—into not only a reasonable, but an exceedingly narrow compass, and of rendering it easy of comprehension and perfectly intelligible. The work to which I have alluded is simply a statement of the existing law in a number of well-arranged and lucidly expressed sections, and it would of itself serve, with little alteration, for a code, if the law, as it at
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    present exists, were altogether satisfactory; but such is not the case. That portion of the law with which this work of Sir James Stephen deals needs not only condensation and simplification, but, in many particulars, needs considerable amendment. Immediately the Digest of the Criminal Law was published, it came under the attention of the Lord Chancellor and the Law Officers of the Crown, and it was at once perceived that this work formed an excellent preparation. for the codification of that portion of the law embraced in it; and it was obvious that the publication of the work, and the fact that the learned author of it was willing, nay, most anxious to continue his labours, and to render every assistance in his power in carrying into effect any scheme of codification that might be determined upon, afforded to the Government an excellent opportunity of making a commencement in the codification of the law, of which, they certainly would be unwise not to avail themselves. Codification was recognized as most desirable, but it was clear that the whole law could not be codified at once. A commencement must necessarily be made with some branch or section of the law. It seemed to be more essential to condense, to simplify, to explain, and amend—for codification means condensation, simplification, explanation, and amendment—the criminal law rather than any other branch; because the criminal law is necessarily so largely resorted to, and is, moreover, so largely administered by persons who are not trained lawyers, and who require some plain statement of the law for their guidance. Furthermore, this part of the law seemed more susceptible of codification than any other, and the way to its codification had already been paved by the work to which I have referred. The Government, therefore, speedily came to the resolution to take advantage of the opportunity—I think I may call it the rare opportunity—which presented itself, and boldly to attempt the codification of the criminal law, or, at all events, of a very considerable portion of it. They, accordingly, took Sir James Stephen into their councils, and in the result confided to him the task of preparing the Bill by which they designed to accomplish their object—the Bill which I have now the honour to ask the leave of the House to

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    allow me to introduce. In the preparation of this Bill, Sir James Stephen has, of course, had all the assistance the Government have been able to place at his disposal. He has received, during the course of his labours, suggestions from the Lord Chancellor, the Law Officers, and the eminent draftsmen who usually prepare the Government measures; but it is only right and fair to say that the great bulk of the labour of preparing the code which the Bill contains has fallen upon Sir James. He is, in fact, the originator and the author of the work, and to him, mainly, at all events—if the Bill meets, as I hope it will meet, with acceptance and approval in this House and in the country—the credit of the measure will be justly due. Having made these preliminary observations, I will ask leave to draw the attention of the House a little more particularly to the measure I propose to introduce. This measure is, no doubt, to a great extent, a tentative one, and a measure of this sort must necessarily be so. It is an experiment to a considerable degree, and, being an experiment, it has not been thought right to make it of too ambitious a nature. This code has, accordingly, been confined to a portion of the criminal law—that is to say, that portion which relates to indictable offences. When the Bill is laid before the House, it will be found to contain a statement of the persons who are to be regarded as parties to the commission of such offences; of the circumstances which form excuses or justifications for the commission of acts which would otherwise constitute crimes; a minute and careful definition of the various indictable offences known to our law—or, at all events, of such of them as are ordinarily considered to fall within the category of crimes; a statement of the punishments which may be inflicted on those who commit such offences. And to all this is added a complete code of procedure which is to be adopted for the purpose of bringing those who perpetrate crimes to justice, and of subjecting them to the punishment due to their misdeeds. I daresay, perhaps, hon. Members may ask why the code has been confined to indictable offences, and why it does not include offences punishable on summary conviction? If such a question is asked, I shall answer, in all
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    candour, that the code has been confined to indictable offences, and has not been extended to cases punishable on summary conviction, not because the desirability of codifying the law relating to them is not recognized, but because, if we were to include those offences in the present code, the labour of passing the measure through Parliament would be too vast and overwhelming, and the result would be that our endeavours to make a beginning of codification would probably prove unsuccessful. There is a clear and well-marked dividing line between indictable offences and those punishable upon summary conviction. If we split our subject into two parts, we may be able to grapple with one of them. We propose to grapple with indictable offences; and, if our exertions are not in vain, and we are able to produce and pass into law a measure that meets with the approval of the country on this subject, then we shall not hesitate, on a future occasion, with a bold and confident front and a good heart, to approach Parliament, and submit a scheme for the codification of that part of the criminal law which, at present, in this Bill we do not propose to touch. I have described the measure which I ask leave to introduce as "a code of indictable offences;" but it is necessary that this expression should not be misunderstood, and that its generality-should receive at the outset some qualification. The measure is a code of all such offences as are ordinarily regarded as crimes; but there are instances of indictable offences created by Acts of Parliament upon various subjects, as sanctions for the special provisions of such Acts, which have not been inserted, because it would not be possible to make them thoroughly intelligible, and to deal with them completely, without re-enacting in extenso in the code the provisions of the Statutes which have created those offences, or rendering it necessary for those who use the code to make constant reference to the Statutes themselves. Now, it is obvious that if the provisions of such Statutes as I have referred to had to be introduced into this Bill, the bulk of the measure would be swollen to an enormous and unwieldy size, which would greatly diminish its value; and, if the reader of the code were under the necessity, in order to understand its provisions, of repeatedly referring to other

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    Acts of Parliament, instead of his perplexity and embarrassment in endeavouring to discover and apply the law being removed or greatly diminished, it would be rather aggravated and increased. Furthermore, there are to be found in some Acts of Parliament enactments which provide that acts which, as a rule, the Statutes treat as constituting summary offences merely, shall, under certain circumstances, be offences of a more serious character, and subject those who commit them to indictment. To render, however, these enactments intelligible, it would be necessary to set forth all the provisions relating, not only to the indictable offences, but also to those punishable on summary conviction. If this were done, we should be departing from the rule we have laid down for our guidance—that is to say, to make this Bill a code of indictable offences, and indictable offences only, and we should be creating, at all events, an appearance of confusion. For this purpose, it has been determined, also, to omit from the Bill the indictable offences to which I have just referred. After the explanation I have just given, hon. Members will see that, although the measure is described as a code of indictable offences, it will not upon investigation be found to include every crime of this nature which may be discovered in the Statute Book; but, as I have said, all offences which are ordinarily considered crimes will be found dealt with in its pages. And I venture to say that if the measure I propose to introduce becomes law, Judges and magistrates engaged in the administration of the criminal law will very rarely be called upon to consult any other Statute or text-book than the code which this measure will contain. Now, the code not only condenses and consolidates the law, but in several respects it alters it. I deem it essential that I should at once explain to the House what the principal alterations are. I will not attempt, on the present occasion, to describe all the amendments; but I will deal with those which are most prominent. The first important alteration is the abolition of the distinction between felony and misdemeanour, and the substitution for those terms of the expression "indictable offences." It does not seem to us to be necessary to keep up the antiquated distinction between felonies and misdemeanours. In
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    old times misdemeanours were not only regarded as offences of a trivial and unimportant character as compared with felonies, which generally involved the penalty of death, but the misdemeanours then known to the law were really comparatively trivial and unimportant. When this was the case, there might be some semblance of reason for the law providing that different consequences should be entailed by one species of crimes from those which flowed from another. In later times, however, it cannot be said that the misdemeanours which are to be found in our Statute Books, in respect of which punishment is inflicted on those committing them, are either trivial or unimportant. Some of the most serious offences known to the law, and punished with great severity, are misdemeanours; and, in order that I may illustrate it, I will draw the attention of the House to a few examples. Perjury, which sometimes involves a culpability almost as great as that of murder, as in the case of a man who falsely swears that another man has committed some crime for which he may be capitally punished; conspiracy to murder, misappropriation by agents, obtaining money by false pretences, and several other crimes of the same character, are instances. These are certainly crimes as aggravated and pernicious in character as many felonies—for example, embezzlement, theft, bigamy, larceny by bailees, and so on. I do not say that there is no distinction, between the sets of crimes I have enumerated; but I do not see why you should treat one class as a misdemeanour and another as a felony. Therefore, I submit that as grounds exist at the present time for making distinctions between misdemeanours and felonies, on account of the minor character of the former, and, as most of the distinctions which formerly did exist between the two classes of crimes—for example, forfeiture was incurred in felony and not in misdemeanour—have been swept away by legislation, there appears to be no sufficient reason why any of the differences which still remain should be preserved. Accordingly, it has been determined to put an end to them by the present measure, and this determination will be found to have been, carried out. The removal of the distinction between felonies and misdemeanours

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    is important, if, for no other reason, because it enables us early to adopt a uniform system of procedure, as I shall endeavour somewhat more fully to point out when I come to that portion of the measure which deals with procedure. The next alteration in the law which the code effects relates to the persons by whom crimes are committed. At present, in felonies, those who incite and persuade to the commission of crimes are called accessories before the fact, and, in some respects, are treated somewhat differently from those who actually take part in the perpetration of the offence. In treason, however, there are no accessories, nor are there in misdemeanours, and the law gives this strange reason for the exception—
    "That there are no accessories in treason, because the crime is too serious; and none in misdemeanour, because misdemeanours are supposed to be of too little importance for refinements."
    The whole doctrine as to accessories before the fact is, no doubt, a refinement, and those who have prepared this Bill consider that subtleties and refinements in criminal law are very objectionable, and we wish to abolish this one; and, therefore, we propose to call those who incite others to crime and those who absolutely commit crimes by the same ugly names, and to treat them exactly alike. Another important alteration which is worked by the code has relation to punishments. We desire that the punishment in all cases should be made proportionate to the guilt of the offender, and should be fixed upon some reasonable and intelligible principle. There used to be, formerly, a great number of enactments which provided that for certain offences persons should be sentenced to not more than a given, that is to say, a maximum punishment, and to not less than a given, that is to say, a minimum punishment. Minimum punishments were a great evil, and I am happy to say that these punishments have been to a very considerable extent set aside by recent legislation; and now a very large discretion is confided to Judges, and they are enabled, upon their view of the circumstances, to mitigate the punishment almost to any extent. I think that is right. Still, although great service has been effected by the sweeping away of minimum, punishments, our Statute
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    Book remains disgraced by an enormous variety of maximum punishments, fixed apparently without any particular regard to the gravity of the offences in respect to which they are imposed as compared with others. For example, threats to murder, conspiracies to murder, administering poison with intent to harm, are punishable with a maximum punishment of 10 years' penal servitude; while throwing explosives at a ship or house, stealing an heiress, maiming cattle, cutting hop binds, are offences punishable by a maximum punishment of 14 years' penal servitude. Is there, however, any reason or sense in this distinction? I submit there is not, and that all these crimes ought to subject those who commit them to the same maximum punishment. I have only specified a few instances, as illustrations, to make my meaning clear. It would be very easy to pick out numbers of other examples, which would equally demonstrate the uneven and unequal character of maximum punishments at present appropriated to various crimes. Now, the variety of maximum punishments is an evil, because it produces embarrassment and confusion and uncertainty, and an appearance of injustice, if not injustice itself. Moreover, it necessitates a vast increase in the bulk of the enactments by which offences have to be provided for. The number, then, or, I should rather say, the variety of maximum punishments has, therefore, been greatly diminished; and, by this diminution, the framers of the criminal code have been enabled to effect what, I think, hon. Members, when their attention is called to it, will consider an extraordinary amount of condensation. It has been thought right, also, in the case of stealing and other frauds provided for by the code, under the head of theft, in apportioning the maximum punishments, not only to have regard to the nature of the thing stolen or obtained, the position of the person committing the offence, the place where the crime is committed, and the manner of committing such crime, but also to the value of the property obtained by the offender. I think the House will agree that this is only reasonable. Why should a man, who ruins hundreds by opening a fictitious bank, or floating a company to work a sham mine, be liable only to the maximum punishment which

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    may be inflicted on a poor, hungry wretch, who steals a loaf. Again, the opportunity has been seized for placing the law with respect to cumulative punishments upon a more satisfactory basis than that upon which it at present stands. At present, if a man has committed several offences, he may be punished for each with the amount of punishment appropriated to it, such punishment to begin when the previous sentence has expired. The effect of this is that a man may sometimes be sentenced to four, six, eight, or 10 years' imprisonment with hard labour—sentences which those who are acquainted with prison discipline will tell you are almost greater than human nature can endure. Provision is made in the code to prevent the possibility of any such sentences being for the future imposed. The next amendment in the code to which I will call attention—and I think I shall be considered justified in calling it an amendment—is the omission from the definitions of offences comprised in it of all mention of malice, of all use of that word, or any of its derivatives. This omission has been decided on, because the legal and popular senses of malice are irreconcilably different, and all the efforts of Judges are frequently unavailing to make juries understand and appreciate this difference. The legal meaning of this word "malice" may be said to be "wilful illegality of conduct;" but it is obvious that illegality of conduct may be the result of motives which are almost praiseworthy. It may be the result of anger, perhaps well grounded, of just indignation, or even of pity. If the illegality of conduct complained of is the result of those motives, the jury cannot understand the explanation given; because the popular notion of malice is "ill-will towards some particular person or persons, and ill-will which it is immoral to feel." In the lay mind the idea of malice is excluded if the ill-will is such as circumstances may not only reasonably engender but morally justify. This word "malice" is largely used in our existing criminal law; but it is a word which is full of danger, and the source of infinite confusion and difficulty. It has been deemed right to avoid its use altogether in the code, and, where necessary, to substitute for it words which convey the full legal explanation which the Court
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    would have put upon the word malice, had it been employed. That is a great simplification, and will be found of great use in the administration of the law. I now come to some alterations of considerable moment in Part V. of the code—that is, that part which relates to offences against the person. Under this head is to be found homicide, which, of course, includes murder. With regard to murder, we have ventured to make two radical changes in the law. First, we have abolished what I will call constructive murders—such as homicides, which are declared to be murders by reason of the existence, not of actual malice in the mind of the offender, but malice which is presumed by the law; second, we have endeavoured to place the doctrine of provocation upon a simpler and more intelligible footing. In order that I may make myself clear on these points, let me explain what I mean by constructive murder. I use this expression, which I acknowledge is inaccurate, for the sake of brevity. At present, if a man is engaged in committing a felony, and he kills anyone, he is guilty of murder, although the killing might be accidental, and the offender may not have had the intention of inflicting even the slightest harm. For example, if a man endeavouring to break into a house were to push open a shutter, and the bar which had served as its fastening were to fall on the head of some person inside and kill him, the burglar would be guilty of murder. Again, to use a common illustration, if a man were to shoot at a barndoor fowl, intending to steal the body, and should accidentally hit some one hard by and kill him, the intended fowl-stealer would be guilty of murder. So, according to the present law, if a man resisting an officer of justice in the execution of his duty occasions his death by tripping him up and causing him to fall on his head on the curbstone, he will have committed murder. Now, I think the House will agree with me that such acts as I have described do not fall within the category of murders, and, though known as murders, they are merely murders by construction of law. It seems to me that murder by construction of law is a disgrace to the juridical system of the country, and should no longer be retained. A man who was found endeavouring to break

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    into a house should be tried for the crime he intended to commit. So the fowl-stealer should be tried for that offence. And a man struggling with a policeman should be charged with resisting the police in the execution of their duty. To call those acts, which were done without the slightest intention to kill, murder, is monstrous. I would maintain that no one should be pronounced guilty of the atrocious crime of murder—a crime which, if it is brought home to a man, subjects him to the appalling punishment of an ignominious death—unless he has deliberately intended to take away life, or to inflict grievous bodily harm, or he has deliberately done an act likely in itself to cause death or grievous bodily harm, and has by such act caused death, having at the time a stolid indifference whether such result would follow the commission of his act or not. In the instance I have alluded to, of a man doing an act with the intention of killing or causing grievous bodily harm, and thereby destroying a fellow-creature, I think all will agree that he ought to be convicted of murder; and I think most hon. Members will also admit that the man who takes away life by an act likely to cause death or grievous bodily harm—for example, by exploding a barrel of gunpowder underneath a crowded room, utterly regardless of what the consequences of his act may be—should also be treated as having perpetrated this heinous crime; but I submit, with confidence, that no acts which in atrocity fall short of these should be considered murder. Accordingly, the code sweeps away all constructive murders, and pronounces the man to be alone guilty of this terrible crime who causes death by such acts as I have described, involving the intention or the utter indifference to results which I have indicated. The second material alteration in the law of murder is upon the subject of provocation. As the law stands, and as I submit it ought to stand, if a man slays another under circumstances of great provocation, the crime is reduced from murder to manslaughter. The provocation does not entirely excuse the act, but it takes away from it the element of malignity. The question, however, arises, what are the circumstances which amount to provocation? The rules of the existing law on this
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    subject are not as perspicuous and as reasonable as they might be. At present, it is, at all events, doubtful whether, with one or two exceptions, any insults, however gross and shameful, if not accompanied by violence or the threat of violence, will amount to provocation, although a mere slap in the face might. It is proposed to make the doctrine of provocation more certain and more in accordance with reason, by enacting that—
    "Any wrongful act or omission of such, a nature as to be sufficient to deprive an ordinary person aggrieved thereby of the power of self-control shall be provocation."
    If there is such an act as a jury will consider sufficient to deprive a man against whom the act is committed of the power of self-control, that shall be considered a sufficient provocation. In addition to the two alterations in the law relating to homicide which I have mentioned, there are two other changes which have been introduced into the code, and to which I think I ought to revert. In the first place, it is provided that if a woman kills her child—born alive—by an injury inflicted during the birth of the child, or immediately afterwards, but at a time when, owing to distress of mind and agony of body, she is in such a state as not to have complete self-control, although her condition may not amount to a state of insanity, it shall be open to the jury to find against her a verdict of manslaughter, instead of the more dreadful verdict of murder. Practically, this provision will not diminish the severity of the law, but will materially aid in bringing offenders to justice. It is well known that the law is, in fact, unable to secure the punishment of such offences as I have alluded to, for a jury will not convict the offenders. I do not say they are wrong, but the consequence is that this class of crime either escapes punishment altogether, or is put in the same category as concealment of birth, and is visited with a punishment of very inadequate severity. It seems only reasonable that this Assembly of men, who, when legislating for men, are often willing to show great indulgence for human weakness, should view with merciful consideration the condition of poor fallen women, and provide that the act of a woman who consigns to death a creature that can scarcely be said to have

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    lived, in a moment of nervous excitement, perhaps burning shame and intense mental and bodily anguish, shall not necessarily be regarded as the awful crime of murder. I own the provision of the code to which I have just alluded may be open to the objection of not being thoroughly logical; but if it is our lot to be obliged to choose between mercy and logic, let us not hesitate to give our votes in favour of the former. Again, under the present law, it is no offence to cause the death of an infant—I must use this word for want of one more expressive—that has not been thoroughly born alive—that is, in whose system a complete and separate circulation has not been set up, because such child is not by the law considered as a human being. The result of this doctrine is, that if, during the course of birth, the mother or nurse, or any bye-stander deliberately inflicts a wound or other injury upon the child which is being born, and which prevents its being born alive into the world, although such injury is inflicted with the most wicked and evil intention and motive it is possible to conceive, not only has no murder been committed, but no offence whatsoever punishable under the law by even the mildest sentence. I believe such a state of the law is discreditable and mischievous. The code provides a remedy, and enacts that such injury which would, had it been inflicted on a child completely born alive, have been murder, shall not be murder in deed, but still a most serious offence, and render the perpetrator liable to the maximum punishment of penal servitude for life. I now come to Part VI. of the Code—the part which relates to offences against the rights of property. Under this head falls the law of larceny, or theft. I think it will be found that the code, if it does not work any thorough and radical change in the existing law of larceny, and offences cognate to larceny, nevertheless places such law upon a basis supported by intelligible principles, systematizes and simplifies it, and makes it very easy to comprehend. This branch of the criminal law is at present in a state of most bewildering confusion. It abounds in distinctions without real differences, and in refinements and subtleties which I consider a reproach even to a system of judicature established in a barbarous age, and which lead to nothing
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    but uncertainty and embarrassment, and the frustration of justice. We do away with all subtleties, and deal with all the cases to be found in books. Let me explain. The existing law of larceny consists—(1.) Of rules of the common law which, as applied to present times, are irrational rules. (2.) Of exceptions to those irrational rules, and of further exceptions founded upon these exceptions. (3.) With regard to the punishments imposed for these offences, of many cruel enactments which still exist, and of vestiges and modifications of many more exceedingly cruel and monstrous enactments which have been swept away. By the common law, many things were not the subject of larceny—namely, a great number of animals, all choses in action, and therefore a variety of documents, land, and things growing out of the land or appertaining to it. Then, again, by the common law, to constitute larceny or theft, it was necessary that there should be a wrongful taking—something, in fact, in the nature of a trespass. With respect to punishment by the common law, larceny, as a rule, was a capital offence; but the offender was entitled to the benefit of clergy. It may be that these provisions of the common law were appropriate to the state of society several centuries ago; but it is obvious that they have long ceased to be applicable to the condition of the country in modern times. Unfortunately, instead of removing these rules altogether, and replacing them by others of a more rational character, the course the Legislature has pursued hitherto has been to engraft exceptions upon them, and, when necessity seemed to dictate, exceptions upon exceptions, until at length a state of confusion has arisen scarcely paralleled in the history of chaos. In the first place, numbers of exceptional enactments have rendered various kinds of property the subject-matter of larceny which were not so at common law. Again, the rule that there must be a taking amounting to a trespass has been set aside in effect, sometimes by legal fictions which have been invented for the purpose, and sometimes by positive enactments, in cases where legal fictions were inapplicable. Then, as to the punishment inflicted for theft, the common law, which made it a clergy-able crime, was at one time deemed too lenient, and Statutes were passed

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    subjecting the offender in almost every case of stealing to the penalty of death; but, after a time, this terrible severity produced a recoil in the feelings of mankind, and various fresh Statutes were passed mitigating the punishment in cases of theft and fraud, but mitigating it inadequately, and upon no definite and intelligible principle. I think I have said enough to show that, owing to the causes I have mentioned, the law of larceny has been brought into a state of deplorable entanglement, which is certainly anything but creditable to the judicial system of a civilized community. The whole subject is dealt with in a thoroughly effectual manner in a few sections of the 6th chapter of the code. The irrational common law rules have been swept aside—every species of determinate property, subject to certain necessary conditions, is declared to be the subject of larceny; all exceptions and fictions have been got rid of, and it is, in substance, declared that the man shall be guilty of theft who either takes with intent to steal property which is in the possession of another, or with the like intent appropriates to his own use property of another in his own possession, or with the like intent obtains property belonging to another by means of false pretences. With regard to the distinction between stealing and false pretences, by no possibility can any good result from its retention, for both are equally pernicious and criminal acts. In addition to these improvements in the law of larceny, in chapter 6 will be found some alterations with regard to forgery. Under the present law, forgery is dealt with partly by Statute and partly by the common law; various Statutes render the forgery of a great number of specified documents felony punishable with great severity, and the forgery of other documents not enumerated in these Statutes is left to the common law, which declares the act to be a misdemeanour, punishable by fine and imprisonment. It is impossible to read the list of documents the forgery of which is made a heinous offence by the existing Statute, without perceiving how exceedingly incomplete it is, and we cannot help, when contemplating the present law, being struck with the clumsy and unsystematic character of the arrangement which punishes the forgery of a number of instruments specifically with penal servitude,
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    and leaves to an unwritten law of extreme generality and vagueness to punish the forgery of other documents by fine and imprisonment. For example, how strange it must appear that a man who forges a receipt which makes it appear that he has paid 5s. more than he really has paid is to be subjected to penal servitude for life, while the man who alters a contract so as to defraud another of, it may be, thousands of pounds, is only to be guilty of misdemeanour, and to be punished simply by fine and imprisonment. Sir, the law of forgery is, by this code, placed upon a sounder footing by alterations which I will not now occupy time by describing; but which will, I think, not fail to be appreciated when they come to be discussed. And now I have mentioned the salient changes in the law with reference to indictable offences effected by the measure which I propose to introduce; but these alterations—I will at once boldly call them amendments of the law—are a small part of the benefit which will be produced by this Bill. In addition to amending the law, the code will, if passed, in a most remarkable manner curtail, condense, and simplify it. The essence of dozens of volumes of textbooks, of numbers of Acts of Parliament, of piles of reported cases, will be found in this Bill, which is certainly not more lengthy than several Consolidation Acts which have been passed in recent Sessions. I now wish to say a few words upon the second branch of this Statute—that which relates to procedure. Now, Sir, to commence with, I must state that henceforth there is to be but one course of procedure in all cases. This is not so now, for indictable offences are, as I have said, divided into two classes—felonies and misdemeanours—and a different method of procedure in many respects is resorted to in the case of a man accused of the one kind of crime from that which is adopted with regard to a man accused of the other. For example, the law as to arrest is different in felonies and misdemeanours. So with respect to bail, to challenges, to allowing juries to separate, to joining charges in indictments, and many other matters. For the future, however, these distinctions are to be abolished. There is to be no exceptional or varying procedure; in all instances the course to be pursued is chalked out; in all instances it is the same. That

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    part of the Bill which I desire to bring to the attention of the House, which relates to the question of procedure, not only declares that the procedure to be adopted in this country for the purpose of bringing to justice those who commit indictable offences, shall be the same in all cases; but it goes on to state what that procedure is to be. Every step which has to be taken, from the laying of the information that a crime has been committed down to the punishment of the offender after conviction has taken place, is in this portion of the measure minutely, but tersely and clearly described. Any Judge or magistrate, when he has to consider what course ought to be pursued at any particular stage of the proceedings, will not be under the necessity of trying to discover the law in a number of complicated, verbose, and perplexing enactments, or almost equally perplexing text books; but he will have it all before him, clearly stated in a few short sections of the code, which, if he will read it with intelligence, it will be almost impossible for him to make any mistake. The greater part of the procedure thus described is old. It is the procedure prescribed by the law as it at present stands, and the only merit I claim for the measure I advocate in respect to this old procedure is, that the law is now, for the first time, drawn completely from its various hiding places and laid bare to the public view. It is condensed and simplified, and rendered so plain that it may be said that those who run may read. I say this is the only merit of this part of the work; but this merit is surely one of great magnitude. But although, in the main, the procedure which is described and prescribed in the code is old, still some changes of great importance have been made—changes which have long been demanded, and which, I think, will be highly approved. In the first place, provision is made for doing away altogether with all the subtleties, refinements, and difficulties which formerly arose from the law of venue. Under this code, it will no longer be endured that if a man is proved to have committed a robbery, but it turns out that the crime was perpetrated in county B instead of county A, that, therefore, the prosecution shall fail, and the trial prove abortive. This simple change will at once render useless whole chapters of so-called
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    learning, which, I fear, has benefited no one except the scoundrels. Again, provision is made that if a man proceeds against another by indictment in the first instance, instead of bringing him before a magistrate, the most timely and ample notice shall be given to the accused of the nature of the charge which is made against him, and of the evidence by which that charge is intended to be supported. Up to this time, when an indictment has been, in the first instance, preferred, the accused has only been able to obtain information of the accusation, and the evidence to be adduced in support of it as a matter of favour. Now, he is to be entitled to it as an absolute and undoubted right. There is also a provision made by the Bill enabling the Court to change, if necessary, the place of trial, and to direct, under certain circumstances, and in suitable cases, that the proceedings shall be conducted after the model of civil, instead of criminal, proceedings. The House will at once perceive the importance of such a power. In many cases, the criminal law is set in motion to enforce private civil rights much more than to punish public wrongs. Take the case of indictments for nuisances, for stopping up highways, for impeding navigation, for libel, and so on. In a sense, all these are public wrongs for which criminal proceedings may be instituted; but, in another sense, they are the invasions of private civil rights, and it is only reasonable that the proceedings in respect of them should be conducted in the same manner as in ordinary civil actions. The effect will be that the accused will be able in a criminal proceeding, directed to be tried as a civil case, to give evidence in his own behalf, and the Court will have power to make all necessary orders with regard to costs. As to the accused giving evidence in ordinary cases when the proceedings are not ordered to be conducted after the model of proceedings in civil cases, we have inserted a provision to the effect that any man put upon his trial may make a statement if he choose to do so, and if he does make a statement, he is to be subjected to cross-examination upon it. For obvious reasons, however, we do not provide that a prisoner shall be permitted to give evidence on his own behalf under the sanction of an oath. I pass over some minor changes, and I

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    now pause for a moment to point out that the Bill, in a remarkable manner, simplifies and places upon a reasonable and satisfactory footing proceedings in error. I shall abstain from any endeavour to describe proceedings in error, for it would be impossible for me to explain them in a manner to make myself intelligible to hon. Members who are not lawyers, and even the lawyers would, I believe, if they could only bring themselves to be perfectly honest, admit that the subject is almost a sealed book. It is to be a sealed book no longer, but a book translated, abbreviated, revised, and amended by this Bill. There is a provision on a subject cognate to error to which I wish especially to draw attention. At present, as is well known, though a convicted person may get his conviction reversed on the ground of error in law, he has, in the great majority of cases, no remedy for mistake, in fact; the jury may take an unduly adverse view of the evidence; they may consider circumstances which are really consistent with innocence strongly indicative of guilt; and they may, and perhaps not unfrequently—sometimes even in accordance with the view expressed by the presiding Judge—come to a wrong verdict. Humanum est errare is an aphorism applicable to the verdicts of juries in criminal cases as well as to any of the ordinary transactions of life. It is, indeed, startling to consider that at present, whereas a man who has been mulcted in £25 damages in a civil action can obtain a new trial, if the verdict was against the weight of evidence, a man who is convicted of murder by an erroneous verdict, and, consequently, condemned to death, has no such remedy. He can appeal to the clemency of the Crown, and the Home Secretary, whose office it is to advise the Crown, does his best to investigate the matter and to discover the error, if error there be; but he has not the proper means of so doing, for he cannot sift the evidence as it can be sifted in a public Court; and even if he takes a view favourable to the condemned, the remission of the sentence, even if complete, which he advises Her Majesty to make, does not wipe out the stain of conviction, and the degradation—lifelong degradation—which is entailed thereby. I hardly know of a greater reproach to which our
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    system is open than this peremptory and absolute denial of a new trial to persons convicted of crime. Of course, the danger is that if the law is altered, every man who is convicted will move the Court for a fresh investigation; but I do not think this would be the case in practice. However, the Bill avoids the possibility of such a course being pursued, for though it allows an application for a new trial, it does so only under certain conditions, the observance of which will render it impossible that an improper or mischievous use should be made of the provision. In addition to giving the right, with such leave as is prescribed by the Bill, to move the Court of Appeal for a new trial, it is provided that the Court of Appeal in criminal cases, whose decision is at present final, may, if they think proper, allow an appeal from their decision to the House of Lords. Such a provision would seldom require to be acted upon; but in some cases the want of such an enactment has been severely felt, and I may be pardoned if, as an illustration of what I say, I point to the Franconia case, which, upon a point of the most serious and vital national importance, was decided in a Court of 13, by a majority of one. Surely, in such a case as this, it would have been most satisfactory if the opinion of the highest tribunal in the land could have been obtained. I might mention many other improvements in the law which the Bill I desire to introduce effects; but I will abstain from alluding to more than one. This last amendment which I shall mention is, to my mind, one of enormous advantage. It is the simplification of criminal pleading. There is, at present, so much technicality in the law, so much refinement and subtlety, so many pitfalls and quicksands, which can only be avoided by the most excessive caution and astuteness, that the greatest difficulty is experienced in framing indictments for offences which are at all out of the beaten track. I would challenge the experience of every lawyer and member of Quarter Sessions in the House in support of my assertion, that at present indictments drawn by the most reliable and experienced lawyers run to a length and assume a complication completely monstrous. An indictment of 50, 60, or 100 counts, contained in a roll of parchment almost as long as this House, is

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    by no means rare. Indeed, if the archives of the Courts were searched, scores of such indictments would be found deposited there every year. Now what is the use of all this particularity? It is necessary now to prevent the possibility of offenders escaping justice; but is there any need that it should be necessary? If these indictments were of any assistance in conveying information to the accused or to the Court, there might be a plea for their retention; but they are not; instead of being any assistance, they are a positive embarrassment; for, in order to be understood, they must be puzzled over with the same intensity of thought which a man brings to bear upon a quadratic equation, or some problem in mathematics even more perplexing still. Our system of pleading in criminal cases is ridiculous in the extreme; but it is worse than ridiculous—it is grievously mischievous, and essentially unjust to the accused. The Bill makes, if I may be forgiven for using an inelegant expression, a clean sweep of all this rubbish, and substitutes for it simpler indictments which will convey all that is necessary to the mind of the Court and the mind of the jury. For technicality it gives simplicity; for verbosity, terseness; and I hope hon. Members will find, for darkness, light. I thank the House for their patience, which I feel conscious I have severely tried by a speech of intolerable length, and I ask leave to introduce the Bill which establishes the Criminal Code.
    MR. HIBBERTsaid, he did not gather from the statement of the hon. and learned Gentleman that it was intended by the code to make an alteration in the cases which were now necessarily sent to the Assizes for trial—for instance, burglary and bigamy cases. It was hardly the thing that such paltry and trivial cases should occupy the time of Her Majesty's Judges, when they might easily be tried at the Quarter Sessions.
    THE ATTORNEY GENERAL (Sir JOHN HOLKER)said, there had been a good deal of discussion amongst the Judges with reference to increasing the jurisdiction of Quarter Sessions, and it was proposed to give power to the Sessions to try burglary cases.
    MR. LEEMANsaid, it was quite unnecessary for the Attorney General to make any apology for the very interesting speech with which he had favoured
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    the House. As one who had for 40 years been connected with the administration of justice, he had listened with deep attention to all that had fallen from the hon. and learned Gentleman, and he considered that his proposals would not only be a great alteration, but a great improvement in the law. The changes proposed were of so extensive a character that they would require the gravest possible consideration; and he urged upon the hon. and learned Gentleman the propriety of giving as much time as possible for the consideration of the Bill before its second reading.
    MR. PARNELLexpressed the pleasure he had had in listening to the very careful statement which had been made by the Attorney General. Of course, it would be premature at that time to discuss the details of the measure; but he could only say that he considered, in many of the alterations which it was proposed to make, the change would be very beneficial. The hon. and learned Gentleman's intention to abolish the crime of constructive murder was a very valuable one. Some years ago, at Manchester, there was a very remarkable case tried. A number of persons combined together to commit a felony, and six of them were tried for the murder of a policeman who was shot. It was, proved that he was shot by one person, and by one alone, and yet the other five were found guilty of the murder because it was proved that they had combined together to commit a felony—that was to endeavour to rescue prisoners who were being conveyed to prison from the police court. They were all found guilty of the murder; three were executed, one received a free pardon, and two were sentenced to penal servitude for life. These two were still under confinement, and he hoped the Home Secretary would signalize the introduction of the Bill which abolished the crime of constructive murder by liberating them. There was one point which the Attorney General had not considered, and that was the law relating to criminal lunatics. That was in a very unsatisfactory state, as recently shown in the case of the Rev. Mr. Dodwell, and he thought the Attorney General would do well to direct his attention to the subject. He was pleased by the introduction of this measure, and he would do all that laid in his power to facilitate its passing.
    MR. DILLWYNsaid, the only regret he had was that the Bill was not brought forward at an earlier period of the Session. He considered it the most important measure which the Government had introduced since they had been in power.
    Motion agreed to.
    Bill to establish a Code of Indictable Offences and the Procedure relating thereto, ordered to be brought in by Mr. ATTORNEY GENERAL, Mr. SOLICITOR GENERAL, and Mr. Secretary CROSS.
    Bill presented, and read the first time. [Bill 178.]

ORDERS OF THE DAY.
  ACKNOWLEDGMENT OF DEEDS BY MARRIED WOMEN (IRELAND) BILL.
  (Mr. Meldon, Mr. O'Shaughnessy.)

  [BILL 173.] SECOND READING.
  Order for Second Reading read.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Meldon.)
  MAJOR NOLANasked for some explanation of its provisions.
  MR. MELDONsaid, the Bill was a very simple one, and the reason for its introduction was that doubts had arisen in Ireland with regard to the validity of certain deeds executed by married women. Some years ago, similar doubts existed in England, and an Act was passed to set the question at rest. This Bill merely extended to Ireland the provisions of the Act already in existence in England.
  Question put, and agreed to.
  Bill read a second time, and committed for To-morrow.

  ELEMENTARY EDUCATION PROVISIONAL ORDER (PORTSMOUTH) BILL.
  On Motion of Lord GEORGE HAMILTON, Bill to confirm a Provisional Order made by the Education Department under "The Elementary Education Act, 1870," to enable the School Board for Portsmouth to put in force "The Lands Clauses Consolidation Act, 1845," and the Acts amending the same, ordered to be brought in by Lord GEORGE HAMILTON and Sir HENRY SELWIN-IBBETSON.
  Bill presented, and read the first time. [Bill 179.]
  House adjourned at a quarter after One o'clock.

MINUTES.
Sat First in Parliament—The Lord Bishop of Saint David's.
PUBLIC BILLS—First Reading—Customs and Inland Revenue*.
Second Reading—Provisional Orders (Ireland) Confirmation (Dungarvan, &c.)* (65); Inclosure Provisional Orders * (64).
Third Reading—Bishoprics (70), and passed.

NEW PEERS.
The Right Honourable Gathorne Hardy having been created Viscount Cranbrook of Hemsted in the county of Kent—Was in the usual manner introduced.
The Right Honourable Sir Charles Bowyer Adderley, Knight Commander of the most distinguished Order of Saint Michael and Saint George, having been created Baron Norton of Norton-on-the Moors in the county of Stafford—Was in the usual manner introduced.

CATTLE DISEASES BILL—CORRESPON DENCE.—QUESTION.
THE MARQUESS OF RIPONasked the Lord President, Whether he would lay on the Table the Correspondence between Her Majesty's Government and foreign Governments on the subject of the Cattle Diseases Bill?
THE DUKE OF RICHMOND AND GORDONsaid, there would be no objection to the production of the Correspondence when the consent of foreign Governments had been obtained.

MILITARY FORCES OF THE CROWN— EMPLOYMENT OF INDIAN TROOPS.

  POSTPONEMENT OF NOTICE.
  LORD SELBORNEsaid, he understood that Her Majesty's Government, in the other House of Parliament, had found it convenient to make an arrangement for the discussion of the question of Constitutional Law relative to the movement of troops from India to Malta being taken on Monday next. Under those circumstances, perhaps their Lordships would be of opinion—at least, he had reason to think that the opinion

  1855
  would be entertained by some on that side of the House—that it would be convenient that the discussion in both Houses should take place on the same evening; and he hoped Her Majesty's Government would see its way to allow the Contagious Diseases (Animals) Bill, which stood first for Monday in that House, to be postponed to some other day, in order that the discussion on the constitutional question might take place in both Houses on the same day.
  THE DUKE OF RICHMOND AND GORDONsaid, he would postpone the Bill referred to until Tuesday, in order that the discussion on the constitutional question might be proceeded with on Monday.
  THE EARL OF BEACONSFIELDsaid, he would take the present opportunity of asking the noble and learned Lord (Lord Selborne) whether, when calling attention to the constitutional question referred to, he intended to conclude with a Motion?
  LORD SELBORNEwas understood to say that it was no unusual practice of their Lordships' House to raise a discussion on a question without concluding with a Motion, and he did not intend to conclude with a Motion on the present question.

BISHOPRICS BILL—(No. 70.)
(The Lord Steward.)
BISHOPRICS BILL—(No. 70.)

  THIRD READING.
  Order of the Day for the Third Reading, read.
  Moved, "That the Bill be now read 3a."—(The Lord Steward.)
  THE EARL OF ROSEBERY THE EARL OF ROSEBERY rose to move, as an Amendment—
  "That, in the opinion of this House, any necessity that may exist for additional Bishops should he met by an addition to the number of suffragan Bishops."
  The noble Earl said, that in moving his Amendment, he would not occupy the time of their Lordships more than was absolutely necessary. Their Lordships would observe that the proposition contained in his Amendment was not aimed at the principle of the Bill—it raised, on the contrary, a very simple question—simply a question between Bishops and Bishops. If their Lordships looked at the Bill, they would perceive that the Bill proposed one kind of Bishop, and
  1856
  his Amendment proposed another kind; and the few remarks he would make in support of his Motion would be more conservative than any, he thought, which would be made against it. In the first place, he must say that there were several objections against the Bill as it stood. The first was, that it was founded, he believed, on the theory that the population of this country was larger in proportion to the number of Bishops than it had been at any previous period. He ventured to question that—he thought it was a fallacy. It was, no doubt, correct to assert that the number of right rev. Prelates having seats in that House was not so great relatively to the population of the country as it was some years ago; but he ventured to say, on the other hand, that there never were so many Bishops as at the present moment. This might well be due to the cause that, as Christianity and civilization spread throughout the Empire, numerous and important Sees had been created. Many of those Sees, indeed, did not fulfil the conditions on which they were founded. Many of those which had been founded in the Colonies possessed a disagreeable climate and a disagreeable population, and did not invite a very prolonged residence. Consequently, there was a very great number of ex-Colonial Bishops—Bishops in partibus, as they might almost be termed—and his proposition was based on the consideration that there was an ancient and constitutional method of utilizing those of them who were still anxious to serve the Church, which was much preferable to the method proposed by the Bill of the Government. It was not only that there were at present so many Bishops, but that there were so many classes of Bishops. There were too many classes of Bishops already, but the Government were seeking to create a new class in addition. There were the Archbishops and the Bishops who presided over the Sees of Winchester, Durham, and London, who held seats in that House by virtue of their Dioceses. There were the other Bishops who had seats in their Lordships' House, and who were taken by rotation. There were next three Bishops who were Peers expectant, who would enter the House on vacancies occurring; and next, those four Bishops whom this Bill proposed to create—there

  1857
  would be, therefore, seven Bishops without seats in the House, and who would have to wait until a vacancy arrived for them to enter. There were, then, the large class of Colonial Bishops, or Bishops who had held Colonial Sees, but who were resident in this country. There was also the Bishop of Sodor and Man—a Bishop who stood alone, a recognized Bishop, but one who had no seat in that House; there were Suffragan Bishops, there were Coadjutor Bishops, and there were Bishops of the Episcopal Church of Scotland. He must, therefore, say, that he considered the Government would be doing a serious thing if they added a new class to the numerous and different classes of Bishops already existing in this country. But there was a graver objection than that. They were not only instituting a new class of seven Bishops, who would have no seats in that House, and who would have to wait for seats in it, but these Bishops would have no chapters or deans, and they would have reduced incomes. What would be the result of a comparison between them and the right rev. Prelates who did occupy seats in their Lordships' House? People would say that these Bishops, without chapters, without seats in that House, without large incomes, were quite as efficient as those who possessed those advantages, and would wish to see all Bishops reduced to the same level. He had assumed that these new Bishops were not to have deans and chapters. They were not to have them at first; if they were ever to have them, the expense would be greatly increased, and expense in this case meant delay. It was proposed to raise £14,000 a-year to endow a certain number of Bishoprics, and of that sum £12,000 must be raised by voluntary endowments. If that sum were capitalized, the amount could not be put at less than £300,000. This was a large sum. It was only the other day that a meeting had been held in the proposed Diocese of Liverpool, by far the wealthiest of the new Dioceses, and the greatest disappointment was expressed at the small result of the subscriptions for endowing the new Sees. It would, therefore, clearly appear, that to raise £300,000 by voluntary subscriptions in order to carry out the scheme of the Bill must tend to great delay. But, even supposing that the sum of £300,000
  1858
  was raised, a contrast would, no doubt, be drawn between the good which was to be got out of it compared with the good which would be done by adding to the income of the very large number of holders of benefices in this country who were in receipt of less than £200 a-year. The sum which they proposed to raise, with great labour and with long delay, for the endowment of the new Bishoprics, would, he maintained, double the income of 3,800 livings, which were below £200 a-year value, and so enable their incumbents to maintain themselves and their families in decency and comfort. Therefore, he could not see that, even looking at this question in a Church point of view, their Lordships had any plea for dealing with it in the manner proposed by this Bill. At any rate, he conceived that the Government ought to bring forward some more weighty argument than they had yet adduced in support of the proposition that they should adopt this expensive process, and, in some respects, objectionable method, instead of adopting the ancient and constitutional means offered by the Statute Book. But not merely would this Bill be injurious to the Church—it would seriously impair their usefulness in this House. He would explain his reason for saying so. When this Bill was passed, they would have seven Bishops outside the walls of Parliament, but waiting their time for their admission to seats therein. Consider what this meant. The right rev. Prelate who had this evening taken his seat (the Bishop of St. David's) had to wait four years for his admission. He (the Earl of Rosebery) did not say that 28 years must elapse before the last of these seven took his seat; what he said was, that a considerable period must necessarily elapse before the junior Bishops could succeed to seats in that House; and that, therefore, they could not, in the ordinary course of things, obtain that experience of Parliament which made the bench of Bishops so valuable a constituent of that House. Why, then, were their Bishops to have no Parliamentary experience, which seemed to be so very desirable? Why should they not be able to take their seats as soon as possible after their elevation? He knew there was a large class of persons in this country who were anxious to see the law so altered, that the right rev. Prelates should be altogether

  1859
  relieved from their functions in this House. But there had always been one answer to that. It was, that the right rev. Prelates had supplied some of the greatest ornaments that ever sat in that House; and he hoped the most rev. Primate, who presided over the Province of Canterbury, would forgive him if he stated in his presence, that they regarded his Grace as one of their greatest ornaments. But the most rev. Primate had had great Parliamentary experience, for he had been 22 years in their Lordships' House. The late Bishop Wilberforce, one of the most eloquent Parliamentary speakers of his time, was in that House for 27 years. Another ornament of that House—the late Bishop of Exeter—sat for the long period of 38 years He hoped that would not be regarded as a reflection on the most rev. Bench, when he referred to their ages. The Archbishop of Canterbury was 45 when he came into this House. The Archbishop of York, also one of their most effective orators, entered at the age of 42, and Bishop Wilberforce at the age of 40. These right rev. Prelates came in the prime of life, and, therefore, were enabled to acquire all the advantages of Parliamentary experience. Then there was the right rev. Prelate (the Bishop of Peterborough), who, he regretted, was not present. Supposing he had been the junior of these seven Bishops, and a vacancy had occurred every 18 months, he would not yet have sat in that House, and the House would have lost the most eloquent speeches of the last 10 years. Even the noble Earl opposite (the Earl of Redesdale), who was not at all a revolutionary person, must have seen the danger which lurked in this Bill; for he brought in, after its introduction, one of the most desperate remedies ever submitted to the House. He proposed that every Bishop who had attained the age of 75 should be allowed to resign his seat in that House, while retaining his See. Well, when they found the noble Earl hoisting the red flag of revolution, and found him introducing a Motion which implied that a Bishop, although not fit to retain a seat in that House, might be still capable of presiding spiritually over his Diocese, their Lordships might take it for granted that the case was not a good one. The proposal he (the Earl of Rosebery) submitted in his Motion was,
  1860
  that they should have recourse to an Act passed in the reign of Henry VIII., for the institution of Suffragan Bishops. That Act happened to fit in exactly with the case in which they found themselves, and enabled them to have more Bishops for their population. He claimed that, as compared with the proposition of the Government, it was more economical, more efficient, more elastic, more immediate in its operation, and entirely unobjectionable in regard to the seats in that House. It stood to reason that an Episcopate of this kind must be cheaper, and he said it was more elastic and efficient; more elastic in this way—that they could at any moment use the machinery without coming to Parliament, and without raising all these questions and debates. He would here notice one objection which had been raised to his proposition, and it was this—They said that the proposition was all very well so far as it went, but that it did not go far enough; because there were only 26 towns mentioned in the Act of Henry VIII. which could give titles to Suffragan Bishops, and they were not situated in the regions where Bishops were wanted. In answer to that, he would suggest that it was not a legislative feat beyond accomplishment to bring in a Bill to add certain towns to those enumerated in the Act. For simplicity, they could find no method to be compared to that. But, further, the highest authority on this question—as he supposed—Sir Robert Phillimore, said—
  "There is no necessity at all that a Suffragan Bishop should take his title from any town in his own Diocese. He may take his title from either of the towns mentioned in the Act, whether connected with the Diocese or not."
  Therefore, the Act of Henry VIII. was amply sufficient. He said, then, that they required very strong grounds before passing by the machinery ready to their hands. He could not understand why anyone wishing to deal in a comprehensive way with this question should pass by the Statute—the 26 Henry VIII.—to which he had alluded. He had now stated briefly his objections to the Government scheme, and had set forth the recommendations of his own. The difficulty in regard to his own scheme was, that he did not know what to urge against the objections to it—when he could not understand that any objections existed. What he urged against the Government

  1861
  plan was, that it was calculated to injure indirectly the interests of the Church, and seriously to impair the efficiency of that House. On the other hand, he claimed for his proposal, that it was more elastic, efficient, and economical, and did not interfere with the seats in that House. He claimed for it that which, should recommend it to noble Lords opposite—namely, that it was the ancient, historical, constitutional way of dealing with the question. The Act of Henry VIII. was not obsolete; for under it, within the last 10 years, three Suffragan Bishops had been created. If the Primate and the Bishops of Lincoln and Winchester were prepared to say that the Suffragan Bishops of Nottingham, Dover, and Guildford had been failures, it might detract from his argument; but, in the absence of such a declaration, he had, he hoped, said enough to recommend his proposition to the unbiassed consideration of that House.
  Amendment moved,
  To leave out all the words after ("that") and insert ("in the opinion of this House any necessity that may exist for additional bishops should be met by an addition to the number of suffragan bishops.")—(The Earl of Rosebery.)
  THE BISHOP OF LINCOLN: My Lords, I should not have ventured to trespass on your attention at this early stage of the debate, if I had not been in a position, from special and exceptional circumstances, to corroborate a great deal that has fallen from the noble Earl (the Earl of Rosebery) in moving his Amendment, at the same time that I am constrained to dissent from his conclusions. I am emboldened, also, to crave your indulgence, because I am thus enabled to express publicly my sentiments of loyal and dutiful gratitude to the Crown for complying with the prayer of a Petition which was presented by me eight years ago; and which, I am thankful to remember, was cordially supported by the then Prime Minister (Mr. Gladstone) for the assistance of a Bishop Suffragan in the Diocese with which I am connected—the Diocese of Lincoln—under the provisions of the Act of Henry VIII., to which the noble Earl has referred. In consequence of that Petition, a Bishop Suffragan of Nottingham, in the Diocese of Lincoln, was appointed in 1870—the first Bishop Suffragan in England for more than 250 years. For a period of nearly eight
  1862
  years, the duties of that office were discharged in the most exemplary manner by my dear Friend and right rev. Brother, Bishop Mackenzie, to whose valuable services, in the name of the Diocese and my own, I feel bound, in your Lordships' presence, to bear a grateful and honourable testimony. And when, inconsequence of failure of health, he was compelled to retire from that office, I received from the noble Earl, the present Head of Her Majesty's Government, a generous assurance that the benefit of that assistance of a Bishop Suffragan would be continued to me. My Lords, I frankly and fully acknowledge the great blessings which the Church derives from the services of Bishops Suffragan. May I be allowed to illustrate this by an example? In the spring of this year the present Bishop Suffragan of Nottingham, Bishop Trollope, has been holding Confirmations in the county of Nottingham, while I have been engaged at the same time in confirming in the other county of the Diocese, the county of Lincoln. Each of us has thus confirmed about 2,000 persons. This could not have been done without a Suffragan. Pardon me, my Lords, for saying that in this way a great benefit has been conferred upon that Diocese. I do not merely refer to the spiritual blessings imparted in the Apostolic rite of Confirmation itself, but I speak of the benefits which arise before Confirmation in stirring up the parochial Clergy to prepare their young people for it, and which also arise after Confirmation in exciting them to prepare their young people for Holy Communion. Your Lordships will not, therefore, imagine that I depreciate and disparage the office of Bishops Suffragan. I go quite as far as the noble Earl in magnifying that office in its proper functions. But then, my Lords, I must beg leave to add that it is not adequate to the needs of the Church. And why? Because a Bishop Suffragan has no Episcopal jurisdiction. He cannot relieve the Diocesan, in the least degree, from the heavy burden of administering that jurisdiction. It greatly increases the amount of good work done in Confirmations; but he cannot provide any relief for the other anxious and arduous cares which press so heavily on Bishops as Diocesans, especially in a restless age like the present. My Lords, pardon a

  1863
  personal reminiscence. The Church of England has just sustained a very heavy loss. She has been deprived of the greatest missionary Bishop of the Anglican Communion—perhaps even of Christendom—in the present age, the Bishop of Lichfield, Bishop Selwyn. Nearly the last time I was present in your Lordships' House I was seated here at his side, and he then showed me, with honourable pride, a letter which he had just received from the noble Earl (the Earl of Carnarvon), the then Secretary of State for the Colonies, announcing to him the royal recognition of his services as the great missionary Bishop of the English Church and of the British Empire, and nominating him to the distinguished rank and title of Prelate of the Order of St. Michael and St. George. The last time that I saw Bishop Selwyn on a public occasion was when he was decorated with the insignia of that Order. My Lords, it is not too much to say that if the present Bill for the increase of the Episcopate, which provides for the division of the Diocese of Lichfield, had been passed five years ago, Bishop Selwyn might probably have been spared to us. He might have been assisting at our deliberations to-night. Let me remind your Lordships that Bishop Selwyn had the advantage of two coadjutor Bishops—two Eton schoolfellows of his own—Bishop Hobhouse and Bishop Abraham—he had, we may say, the benefit of the assistance of two Bishops Suffragan. But, not with standing this advantage, he sank beneath the over whelming pressure of the labours of his enormous Diocese, containing a population of 1,300,000 souls. It may be almost said that he fell a martyr to his Episcopal work. Your Lordships will forgive one word of reference to the Diocese of Lincoln, which is also dealt with in this Bill. It is the largest in England in territorial area. It extends over more than 2,250,000 acres; it contains 800 benefices, and more than 1,000 Clergy. It is proposed in this Bill that it should be divided; that the county of Nottingham should be taken from it and be added to the county of Derby, withdrawn from the Diocese of Lichfield, and that a new Diocese should thus be formed. There can be no doubt that the Diocese of Lincoln, as well as that of Lichfield, ought to be divided; and I thankfully accept this Bill as an instalment in the right direction. At the same
  1864
  time, I venture to think that the important county of Nottingham ought to form a distinct Diocese by itself. Indeed, I should be glad to see English Dioceses, as a general rule—of course, there are exceptions—made conterminous with English counties. But I will not say more. For the sake, not only of the Church, but of society at large, which will derive great spiritual and moral benefits from a division of our larger Dioceses, let me entreat your Lordships to give your cordial assent to a third reading of this Bill.
  LORD DENMANsaid, that having, on the second reading, praised the then existing arrangement for the Diocese of Lichfield—before Bishop Selwyn's life was shortened by overwork—he might explain why he thought the Amendment of the noble Earl (the Earl of Rosebery) unnecessary, and now gave entire support to this Bill. He believed that Suffragans might exist notwithstanding this Bill, as they did before; and having, in 1856, protested in favour of the re-institution of Suffragans, and desiring an increase of their powers, he might urge that the subscription of the large sums required for each new Diocese would prove the concurrence of its inhabitants in the necessity of each extension; and he hoped that the coadjutors, or separate Bishops, might have such powers as greatly to relieve the Bishops—whom they aided—from anxiety and overwork.
  EARL BEAUCHAMPcongratulated the noble Earl who had moved the Amendment on his industrious occupation of the Recess—so that, during his researches, he had discovered the Act of Henry VIII., and was now prepared to act upon it. But he must remind his noble Friend, that neither the state of the country nor the conditions of the population at present bore any relation to what they were in the reign of Henry VIII.; and, therefore, that the partial relief afforded by the creation of Suffragan Bishops at that day was not sufficient to meet the emergencies of the Church at the present. Those needs it was the object of the Bill the Government had introduced to supply. As to the regret of the noble Earl that the scheme for erecting the new See of Liverpool progressed but slowly, he had had a letter from a gentleman occupying one of the highest official positions in that town, which expressed the fullest confidence

  1865
  that the requisite funds would be raised in a very short time. In proposing this measure, Her Majesty's Government were not embarking on any idle or extravagant schemes. They had the experience of the Colonial Churches to guide them, by which it appeared that the most effectual method of organizing the Church and providing adequately for the Clergy was to establish a Bishop as the head of the organization, and that through his influence it invariably resulted that endowments were provided on a more liberal scale than where the Clergy were unsustained by direct Episcopal authority. It had been objected to their proposals that these new Bishops would have no deans and chapters, and that they would be without seats in the House. It was, no doubt, a misfortune that they were not in a position to provide deans and chapters for the new Sees, and that the new Bishops should not all have seats in their Lordships' House. The whole question was beset with difficulties and dangers, but the greatest difficulty and danger was in leaving things as they were. Those living among the dense masses of population which were comprehended within the districts affected must be convinced that benefit would result from the proposed scheme. Greater efficiency would follow from the development of the scheme. The principle of the Bill was to bring about a better organization in the Church; and, as that principle would be interfered with by the Amendment of the noble Earl, he felt bound to oppose it.
  THE EARL OF ROSEBERY, in reply, pointed out that there were already, without the passing of an Act of Parliament, in four Dioceses, no less than 13 official Bishops. He also observed that the noble Earl have not even touched on his arguments with regard to the bearing of the Bill on the House of Lords.
  LORD ORANMORE AND BROWNEsaid, it was not a question of increasing the number of Bishops, but of increasing the strength of the existing Bishops, who had not shown themselves capable of dealing with objectionable practices within the Church. Some time ago, the right rev. Bench met in Convocation, and condemned the practice of confession in connection with the Church of England; but when, last year, the noble Earl the Chairman of Committees,
  1866
  (the Earl of Redesdale) brought the question before the House, only three or four Members of the right rev. Bench condescended to be present. Since then, a very remarkable book had been made public by Dr. Pusey, which advocated confession; but he (Lord Oranmore and Browne) was not aware that the right rev. Bench had said anything against its teaching. He did not think that the people generally—however much some might be disposed to run after strange practices—were at all satisfied with the manner in which the existing Prelates governed their Dioceses, and they would not be anxious that their number should be increased until they saw something like unanimity on the part of the Bishops now existing, in putting the law in force against practices already pronounced illegal. In the present state of things, he felt sure that public opinion and the voice of the people, if it could be taken on the subject, would in no way sanction this Bill, and he should vote against it.
  On Question, whether the words proposed to be left out shall stand part of the Motion? Their Lordships divided:—Contents 107; Not Contents 33: Majority 74.

  CONTENTS.

  Canterbury, L. Archp.

  Nelson, E.

  Cairns, L. (L. Chancellor.)

  Powis, E.

  Redesdale, E.

  Saint Germans, E.

  Manchester, D.

  Stanhope, E.

  Northumberland, D.

  Verulam, E.

  Richmond, D.

  Waldegrave, E.

  Westminster, D.

  Wharncliffe, E.

  Abergavenny, M.

  Cranbrook, V.

  Bristol, M.

  Gordon, V. (E. Aberdeen.)

  Hertford, M.

  Salisbury, M.

  Hardinge, V.

  Hawarden, V. [Teller.]

  Amherst, E.

  Bathurst, E.

  Carlisle, L. Bp.

  Beaconsfield, E.

  Chichester, L. Bp.

  Beauchamp, E.

  Durham, L. Bp.

  Belmore, E.

  Ely, L. Bp.

  Bradford, E.

  Exeter, L. Bp.

  Cadogan, E.

  Hereford, L. Bp.

  Carnarvon, E.

  Lincoln, L. Bp.

  Coventry, E.

  Llandaff, L. Bp.

  Dartmouth, E.

  London, L. Bp.

  De La Warr, E.

  Oxford, L. Bp.

  Erne, E.

  Salisbury, L. Bp.

  Feversham, E.

  St. Albans, L. Bp.

  Fortescue, E.

  St. Asaph, L. Bp.

  Haddington, E.

  St. David's, L. Bp.

  Harrowby, E.

  Winchester, L. Bp.

  Jersey, E.

  Mar and Kellie, E.

  Airey, L.

  Mount Edgecumbe, E.

  Ashford, L. (V. Bury.)

  1867

  Aveland, L.

  Hastings, L. (E. Loudoun.)

  Bagot, L.

  Balfour of Burley, L.

  Heytesbury, L.

  Bloomfield, L.

  Inchiquin, L.

  Brancepeth, L. (V. Boyne.)

  Kenlis, L. (M. Headfort.)

  Brodrick, L. (V. Midleton.)

  Leconfield, L.

  Lyttelton, L.

  Chelmsford, L.

  Minster, L. (M. Conyngham.)

  Clinton, L.

  Colchester, L.

  Norton, L.

  Colville of Culross, L.

  Ormonde, L. (M. Ormonde.)

  Cottesloe, L.

  Crewe, L.

  Ramsay, L. (E. Dalhousie.)

  Delamere, L.

  De L'Isle and Dudley, L.

  Rayleigh, L.

  Rivers, L.

  Denman, L.

  Ross, L. (E. Glasgow.)

  de Ros, L.

  Saltersford, L. (E. Courtown.)

  Digby, L.

  Ellenborough, L.

  Selborne, L.

  Elphinstone, L.

  Skelmersdale, L. [Teller.]

  Forester, L.

  Foxford, L. (E. Limerick.)

  Sondes, L.

  Stanley of Alderley, L.

  Gordon of Drumearn, L.

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

  Gwydir, L.

  Strathnairn, L.

  Hampton, L.

  Ventry, L.

  Hanmer, L.

  Winmarleigh, L.

  Hartismere, L. (L. Henniker.)

  Zouche of Haryngworth, L.

  NOT-CONTENTS.

  Grafton, D.

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

  Saint Albans, D.

  Chesham, L.

  Ailesbury, M.

  Foley, L.

  Lansdowne, M.

  Hammond, L.

  Kenry, L. (E. Dunraven and Mount-Earl.)

  Abingdon, E.

  Camperdown, E.

  Kinnaird, L.

  Granville, E.

  Leigh, L.

  Grey, E.

  Oranmore and Browne, L.

  Kimberley, E.

  Lovelace, E.

  Ponsonby, L. (E. Bessborough.)

  Morley, E. [Teller.]

  Spencer, E.

  Ribblesdale, L.

  Sydney, E.

  Romilly, L.

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

  Cardwell, V.

  Powerscourt, V.

  Sefton, L. (E. Sefton.)

  Truro, L.

  Abercromby, L.

  Vivian, L.

  Belper, L.

  Waveney, L.

  Resolved in the Affirmative; Then the said Motion agreed to; Bill read 3a accordingly; Amendments made; Bill passed, and sent to the Commons.

NEW SOUTH WALES—COLONIAL FINANCE.

  QUESTION. ADDRESS FOR PAPERS.
  THE EARL OF BELMORE, in rising to put the Question of which he had given Notice to his noble Friend the Under Secretary of State for the Colonies, could
  1868
  assure their Lordships that, upon the present occasion, he did not intend to invite them to discuss upon their merits the differences which had lately arisen in the Colony of Victoria. But a question of wide constitutional importance, not confined to a single Colony, had been raised in the course of them—by no means for the first time—namely, when the public money was "legally available." The Constitution Acts of both New South Wales and Victoria, which instituted Responsible Government, and two Houses of Legislature, were passed in 1855. Public money was issued upon the warrant of the Governor. Therefore, Colonial precedents prior to 1855 were irrelevant. On the 18th December, 1857, the Commissioners of Audit in Victoria, having reason to believe that the Annual Appropriation Act would not have become law before claims upon the Treasury for 1858 would have become due and payable, requested the Colonial Treasurer to submit the following case for the opinion of the Law Officers, in order to satisfy their doubts upon the subject of their duty in the matter:—
  "The Audit Act, 21 Vic. No. 24, provides (Clauses 17, 18, 19) that no moneys, shall after the 1st January next, be issued from the Treasury, until the Commissioners of Audit or two of them, shall have countersigned a warrant addressed to the Treasurer. Before signing the warrant, the Commissioners are to ascertain that the sums included in it are legally available for, and applicable to, the service or purpose mentioned; they cannot sign unless such be the case; and without their signatures the moneys may not be issued. No moneys, therefore, are to be issued from the Treasury until the same are legally available. The question arises, whether the words 'legally available' imply, as would seem to be the case, that the Appropriation Act must have passed both Houses, and have become law; or, whether, on the ground of custom and precedent, the resolutions of the Assembly, duly agreed to by the House, but without the consent of the other branches of the Legislature, may be considered as making the money legally available for issue. Of course, the Governor's signature was finally necessary."
  At first, the Solicitor General (afterwards Mr. Justice Fellowes) was of opinion that the House should be consulted; but, on the 11th January, 1858, he gave a second opinion as follows:—
  "I think the resolutions of a Committee of Supply reported to, and adopted by, the House, make the amount 'legally available.' In point of fact, Votes of Credit were passed, and moneys issued on them in 1857, when changes of

  1869
  Ministers took place, and which, have never been questioned. It is, moreover, in accordance with the practice of the House of Commons."
  In the year 1858, the Commissioners of Audit submitted a case to the Attorney General; and it was out of this case, that his (the Earl of Belmore's) question arose. The Commissioners say—
  "The Commissioners of Audit are required, before certifying the warrants for the issue of money, to ascertain whether it is legally available. It has been the practice both in England and in this Colony, to issue money from the Treasury during the Session of the Legislature in payment for services voted in Committee of Supply, and agreed to by the House, the subsequent passing of an Appropriation Act in the same Session, making the supplies ex post facto, the Supplies authorized by law. The Commissioners were doubtful in how far this custom, which in England had prevailed for some centuries, had the force of law here."
  On consulting the Law Officers, they had received an affirmative reply as to the legality of the practice, and it had been continued. A further question had arisen as to Votes taken too late to be included in the Appropriation Act of the year, and upon this they required advice. The Attorney General (Mr. Chapman) admitted that in principle no grant of the Commons in England was effectual without an Appropriation Act. He said—
  "But in practice the rule was not observed; and if it were, the public service could not be carried on without a number of Appropriation Acts;"
  And, after some further remarks, and alluding to the case of the Dissolution of 1831, ended his opinion as follows:—
  "I suggest, therefore, to the Commissioners of Audit, that the rule observed in England in 1831 should, ex necessitate, be observed here. The greatest inconvenience to the public service, and oven a fatal disturbance to the public credit, might be the consequence of any other course."
  The Commissioners did not appear to have been quite satisfied with this opinion, or the one given in the same year by Mr. Fellowes, and the Solicitor General before quoted. They submitted a further case, based upon a memorandum by one of their number (Mr. Agg), who had observed that in England it was the custom to pass during the Session Consolidated Fund Bills and Exchequer Bond Bills, which contained a clause authorizing the issue and application of moneys. Mr. Agg could only find one case, and that so far back as 1784, in which
  1870
  money was issued without such an Act. The Commissioners, therefore, seemed to have come to the conclusion that in England the public money was issued only by express legislative sanction. The Attorney General, in his final opinion, took a different view of the nature and extent of the English Bills alluded to, and adhered to his former opinion. In March, 1859, Mr. Chapman gave an opinion in view of the possibility of Parliament separating without first passing an Appropriation Act, in which the following sentence occurs:—
  "In like manner, I think any sums voted in Committee of Supply and duly reported, may be paid according to the practice of Parliament, but they must be re-voted."
  This opinion was based on an English precedent, which occurred after the sudden Dissolution of Parliament in April, 1831. These opinions were apparently taken as unquestionable law in Victoria, until the year 1862. In the latter year, the Under Treasurer informed the Audit Commissioners, that in future it was intended to abandon this practice, and to pass, from time to time, Bills to legalize urgent expenditure in anticipation of the Appropriation Act; that an Act then before Parliament could not be passed in time to legalize some then pressing payments for which a warrant was inclosed, and that the warrant would be the last under the old practice. No further reason was given for this, than that the matter had been discussed in the House. The Auditors, in a reply of some length on the 29th January, 1862, stated that—
  "Hitherto guided by the decisions of the Law Officers of the Crown, we have considered money to be legally available when voted in a Committee of Supply, and duly reported to the Legislative Assembly; and, so far as our information extends, nothing has yet occurred to alter either the legal aspect of the question or our views in regard to it, and, consequently, it is not, as we conceive, competent for us to stop the practice hitherto in force. You will probably recollect that, in bringing this question under the notice of Parliament in our last annual Report, we stated our opinion that nothing less than the direct action of one or both Houses could alter the then existing practice; and we have reason to believe that that opinion was very generally concurred in by both the Legislature and the Government."
  After some further remarks, the Audit Commissioners said—
  "It is necessary, however, that we should state, in reference to the introduction of a Bill

  1871
  upon the present subject, as mentioned by the Under Treasurer, that the passing of the first Act, other than the usual Appropriation Act for giving validity to the Supply Votes of the Assembly, will, so far as we are concerned, settle the practice for the future; for such an Act will be a distinct declaration by Parliament that the money is not legally available for issue without the concurrence of both Houses of Parliament."
  The Commissioners, however, suggested that it would be well to ascertain if the public service could not be carried on without using the warrant in question; or whether the Legislative Council (the Upper House) could not be called together for the purpose of passing the Bill before the payments had to be made? In the following year a difficulty arose. Parliament had separated before the Governor had given the Royal Assent to a Bill legalizing certain expenditure. It appeared that in Victoria, unlike New South Wales, it was the custom for the Governor never to assent to a Bill except in the Parliament Buildings. Under these circumstances, the Audit Commissioners were requested to countersign a warrant drawn under authority of the Bill which had passed both Houses, but in anticipation of the Governor's assent. In a long paper, dated 6th July, 1863, they raised difficulties as to giving a certificate that the moneys were "legally available" for, or "applicable" to, the services in question. They thought they were not. As, however, they saw that the Treasurer, who was equally with themselves bound by the Audit Act, had signed the warrant, they asked, before coming to a final determination, to be further informed upon what grounds the money was considered issuable? They thought that —
  "Reliance should not be placed upon the English practice, as the form of the Appropriation Act shows that the Commons grant, and the Lords assent, to that measure; the concurrence of the Sovereign being also expressed in a form of words different from that in use on other occasions. But, under the written constitution of this Colony (Victoria), all three branches of the Legislature must unite in passing an Appropriation or other Money Bill, in the same manner as in the making of laws in general."
  They went on to give other reasons, and they even suggested the advisability of calling Parliament together in order that the Governor's assent might be given in what was held to be due form. It appeared, from a letter dated 6th August,
  1872
  1863 (on page 12 of the Correspondence), and also from an extract from Report of Commissioners of Audit for that year, that the latter did not, in the event, countersign the warrant until after the Bill had duly received the Governor's assent. In the year 1865, Governor Sir Charles Darling asked the Law Officers the following questions:—
  "Is not the 45th section of the Constitution Act in effect an appropriation of the amount of all coats, charges, and expenses incident to the collection, management, and receipt of the Revenue, such expenditure to be reviewed and audited as directed by the Legislature?"
  And, further on—
  "Is there any practical or legal difference between the words 'The Consolidated Revenue of Victoria shall be permanently charged,' and the words 'There shall be payable every year out of the Consolidated Revenue of Victoria?'"
  Sir Charles Darling, also, appeared to think that the 6th clause of the Civil Service Act had the effect of appropriating salaries. The Law Officers, Messrs. Higinbotham and Michie, in a long opinion, seem to have given an affirmative answer to the Governor; but they concluded it as follows:—
  "The above opinion is independent of, and does not dispose of the question, as to whether moneys to the credit of the public account are legally available to satisfy Votes of the Assembly prior to the passing of the Appropriation Act. We are of opinion that such moneys are 'legally available,' and they were always so treated till the Audit Commissioners, some time back, expressed an opinion that such Votes should receive, before being acted upon, the sanction of the entire Legislature; since which opinion of the Commissioners, the practice has been—but unnecessarily, as we think—to refrain from acting on these Votes until an Appropriation Act confirming them was passed."
  The present Attorney General of Victoria (Mr. Le Poer Trench), in an opinion, dated 24th January, 1878 (on page 5), states that he "concurs in the views of his predecessors as to when public money is legally available." He now must draw their Lordships' attention to what had taken place with reference to this matter in New South Wales, where he might say that this question was settled by the noble Earl opposite the late Foreign Secretary (Earl Granville) in a contrary sense to that contended for in Victoria; which ruling had, so far as he knew, been held to be decisive to this day. It appeared, that in the year 1860, the Legislative Council of New South Wales

  1873
  took objection to payments being made in anticipation of the Appropriation Act, and submitted to the Governor (Sir William Denison) the following Resolutions:—
  "(1.) That this Council proceeds to the Order of the Day for the third reading of the Appropriation Bill, upon the full understanding that this measure will not of itself involve a sanction or indemnity with regard to any portion of the illegal expenditure of public moneys which has avowedly been made by the Government since the passing of the last Appropriation Act.
  "(2.) That the mere coincidence of any items in the Appropriation Act with an antecedent unauthorized expenditure, is not alone in the opinion of this Council any ground of immunity to the persons concerned in thus violating the Law and the Constitution; and that even in cases where great public emergency can be pleaded in excuse, the illegality can only be properly condoned by a distinct Act of Indemnity, passed in due form by all branches of the Legislature.
  "(3.) That this Council, in further assertions of its undoubted rights as a branch of the Legislature, resolves, that for any person or persons whatsoever employed in the payment of public money, to pay or cause to be paid any sum or sums of money for or towards the support of Services, whether voted in any Session of Parliament or not, before the same be included in an Act of the Legislature, duly passed according to law, is derogatory to the Privileges of Parliament, and subversive of the Constitution."
  The 4th and 5th Resolutions were for an Address to the Governor, and for transmission of the Resolutions to the Secretary of State. Sir William Denison, in forwarding these Resolutions, pointed out that the principle affirmed in them was at variance with the practice which had prevailed in the Colonies. The Duke of Newcastle did not appear himself to have given any specific instructions; but he forwarded a copy of a correspondence with the Governor of New Zealand for the information of the Officer administering the Government—Sir William Denison having been on the point of leaving when he wrote his despatch. The only portion of this correspondence to which he had access did not bear upon the subject. The Duke of Newcastle trusted that the moderation and prudence of both branches of the Legislature would prevent a recurrence of the difficulty. When he (the Earl of Belmore) arrived in New South Wales, in 1868, he found that, although it was not then the custom to pay money upon the authority of Votes in Supply, but to pass temporary Appropriation Acts, as was done in Victoria
  1874
  from 1862, yet that the Votes of the Assembly itself were constantly being anticipated by Orders in Council. This seemed to him to be a very irregular practice; and the whole system which regulated public issues in New South Wales cast so much responsibility upon the Governor, without, at the same time, giving him an effective control, that he thought it advisable to ask the Duke of Buckingham to give him specific instructions in the matter. The Colonial Treasurer, although he claimed a constitutional right for the existing system, admitted that it was one that could not be maintained in a Court of Law. The Duke of Buckingham, in a despatch which was subsequently permitted to be published, instructed him, in effect, that such expenditure as he had called his attention to was illegal. But he thought that it might be justifiable on these grounds—namely, firstly, necessity; and, secondly, on the ground that it was sure to be subsequently sanctioned, joined to strong grounds of expediency, even though short of actual necessity. Not long after he received these instructions, a case occurred in which, owing to a pure accident, the Legislative Council adjourned to the 3rd of the following month, before a temporary Appropriation Bill for the payments due on the 1st of the month had reached it. He considered this just such a case as the instructions applied to, and he himself called the attention of the Executive Council to the matter; and, by their advice, issued his warrant as usual. He knew that the inconvenience to the Civil servants in not receiving their salaries would be great. Unfortunately, the Legislative Council took a different view of the matter from what he did, and they—in an Amendment to a Motion submitted to them—expressed their regret that such an irregularity had been permitted, and reaffirmed, and sent him their Resolutions of 1860. This, he believed, was the first he had heard of the Resolutions of 1860. He drew the noble Earl's (Earl Granville's) attention to the matter, which he explained to him. He told him that, as he read the Constitution Act, an Appropriation Act was not
  "required to authorize the Governor to sign any Warrant, but to authorize the Treasurer to act upon it;"
  and he asked for his correction, if this

  1875
  view was wrong. He explained the peculiar financial system which then prevailed in the Colony, and he concluded by justifying his action by a reference from the Duke of Buckingham's instructions. The noble Earl, in his reply, did not concur in his reading of the Constitution Act. In this, he (the Earl of Belmore) now entirely concurred. Having reference to the Duke of Buckingham's despatch, Lord Granville "was not prepared to disapprove the course" he (the Earl of Belmore) had adopted. At the same time, he thought he had somewhat misunderstood the spirit of the instructions—that a temporary inconvenience to a number of public officers could not be viewed as an unforeseen emergency, as it must always result from a delay in passing an Appropriation Act; nor was it such a case of expediency as would justify a violation of the law. The noble Earl concluded as follows:—
  "But, independently of these considerations, the question is settled prospectively by the action of the Legislative Council; as I consider it clear that, except in case of absolute and immediate necessity—such as, e.g., the preservation of life—no expenditure of public money should be incurred without sanction of law, unless it may be presumed not only that both branches of the Legislature will hold the expenditure itself unobjectionable, but also that they will approve of that expenditure being made in anticipation of their consent. Your Lordship will not, therefore, be at liberty on any future occasion to repeat the step you have adopted in this case."
  He referred these instructions to his Ministers, and, at their request, transmitted a protest from them, drawn up by the Treasurer, against the instructions. At present, he need only refer to one point in this document, where the 14th section of the 29 & 30 Vict. c. 39 was referred to. In this country, of late years, the practice which prevailed here was expressly authorized by that Act, and there was no need to wait for the passing of the Appropriation Act. The noble Earl, on receipt of this protest, sent him, in reply, a despatch dated 7th January, 1870, which their Lordships would find referred to by the Prime Minister of Victoria, on page 39 in a Memorandum addressed to Sir George Bowen on the 31st of December last. This despatch had, since it was passed, to the best of his knowledge, ruled the practice in New South Wales; and he must presently
  1876
  return for a few moments to Mr. Berry's reference to it; because, if that gentleman's view of it were accepted, all the good done by it in curing a faulty system in New South Wales was placed, in his view, in danger of being undone. The noble Earl, in his despatch, after referring to one of the preceding parts of the New South Wales Minister's Memorandum, continues thus—
  "The Paper concludes as follows:—'Under these circumstances, I advise my Colleagues to join with me in an expression of opinion against the instructions lately issued by the right hon. the Secretary of State for the Colonies to his Excellency the Governor, as amounting to an interference in matters of local government, with our responsibility as Ministers of the Crown and Representatives of the Parliament and people of this Colony, upon a matter entirely unconnected with Imperial interests.'"
  The noble Earl continued—
  "So formal a protest from your Ministers against the unconstitutional character of the instructions sent out to you, renders it my duty to explain fully to them and to the people of New South Wales the position adopted in this matter by Her Majesty's Government, and the considerations by which they are led to it. I begin by admitting unreservedly that the matter now in hand is one of purely local interest, in respect to which Her Majesty's Government only desire that you should conform your conduct to the wishes of the Colony when constitutionally ascertained."
  The noble Earl then went into the question in an exhaustive manner, and, after telling him that in ordinary cases, if the law required him to do one thing, and the Executive Council advised another, it would be his duty to obey the law, he, after referring to the Constitution Act as bearing on the matter, said—
  "On the Governor, therefore, is imposed the duty of seeing that no breach of the law is committed."
  He remarked that the Legislature might have made a different arrangement as regarded finance, and he said—
  "Instead of doing this, they have made the Governor responsible for the execution, and, therefore, for every violation of the law. That responsibility is, in the opinion of Her Majesty's Government, a personal one."
  Further on, he said—
  "I am unable, therefore, to recall the instructions already communicated to you. You are to consider the Legislature as the most authoritative exponent of the will of the Colony. When the Legislature has enacted a law, you are not

  1877
  to transgress that law, unless upon a reasonable conviction that the Legislature would itself approve of your doing so. But you are justified in assuming such an approval under the pressure of one of those overwhelming emergencies—dangerous to anticipate or define—which dispense with all rule, or in cases of less moment when there are specific reasons for presuming that the Legislature will sanction a certain specific expenditure, and will desire its sanction to be anticipated."
  The noble Earl hoped that there would be little chance of these instructions bringing him into collision with his Ministers, as had been apprehended; if it did, it would be necessary to ascertain the wishes of the Colony, and defer to them. Should the Colony decide in favour of a change, the most satisfactory course would be to carry it out by Statute. With regard to this, he said—
  "If, however, the passing of such an Act is likely to raise any collateral issues, or otherwise to be attended with difficulty or delay, I think that in the present case, which is rather constitutional than legal, the desire of the community would be sufficiently expressed by an Address from both branches of the Legislature. If, therefore, the Council and Assembly should request you to be hereafter guided by the advice of your Ministers, in the execution of the duties imposed on you by the 55th section of the Constitution Act, Her Majesty authorizes you to accede to that request, and will then hold you relieved from the personal responsibility which now attaches to you."
  He concluded his despatch with these words—
  "But they—i.e., Her Majesty's subjects in New South Wales—must remember, that whatever trust they impose on him—i.e., the Governor—it is his duty to execute it punctually, and theirs to support him in doing so."
  He (the Earl of Belmore) knew that the existing system of finance in the Colony was quite incompatible with the due carrying out by him of these instructions. He felt sure, moreover, that the Legislative Council would not pass such an Address. He referred, therefore, the despatch to his Ministers, with a Minute entering fully into the matter, and urging an amendment of law and the providing an Emergency Fund; which, he was glad to say, was carried out during the then Session. The financial system had been, as far as he knew, strictly carried out as regarded issuing Warrants in accordance with the noble Earl's instructions, since the amendment of the
  1878
  Law in 1870. On one occasion, on an emergency caused by a Dissolution without Supply in 1872, an arrangement, confessedly ultra vires, was made soon after he had left the Colony, between the Executive and the Bank; but no Warrant was issued, he believed, to cover this arrangement till after Parliament had passed an Act authorizing the payments made. Mr. Berry appeared to put a totally different construction on these instructions. He told Sir George Bowen, referring to the noble Earl's despatch—
  "Earl Granville intimated on January 7th, 1870, that the Governor would be relieved from all personal responsibility, and that he might, in cases of emergency, sign Warrants for the issue of public money, though without the previous sanction of Statute Law, provided that there was sufficient evidence that the Legislature desired him to adopt that course at the instance of his Responsible Advisers. Ministers believe that a great emergency, far more critical than any foreseen by Earl Granville, has now arisen in Victoria. The Legislative Council has rejected on merely technical grounds of privilege, the General Appropriation Bill of the year;"
  and so on. He (the Earl of Belmore) apprehended that the noble Earl would hardly agree with that interpretation of his instructions. He must apologize for the length at which he had gone into the matter. In England, the law has guarded, by the 14th section of the 29 & 30 Vict. c. 39, and by providing an Emergency Fund, and by allowing the transference, temporarily, of money voted for one branch of Army Services or Navy Services, as the case may be, to another with the consent of the Treasury—against any probable inconvenience. What the practice was before the passing of that Act he did not know. It, at any rate, appeared to have been relied on in Victoria in former years, and it was taken for granted that it was authorized by custom and precedent. The English Act did not extend to the Australian Colonies, having been passed since their Constitutions were granted. He, therefore, asked the Under Secretary of State for the Colonies, If he can state under what circumstances the 14th section of the Imperial Act 29th and 30th Vict., chap. 39, was passed; also, what was the practice and the authority for such practice prior to the passing of that Act as regarded the issuing of money out of the Consolidated Fund in this country?

  1879
  He begged further to move an Address for—
  "Copies or extracts of correspondence between the Secretary of State for the Colonies and the Governor of New South Wales in the years 1868, 1869, or 1870, relative to the issue of public money under the Governor's warrant, including particularly the despatch No. 1 of 7th January 1870, from the Earl Granville to the Earl of Belmore."
  EARL CADOGANsaid, the noble Earl (the Earl of Belmore) had given a perfectly correct version of the question in dispute in the Colony of Victoria. Sir George Bowen, having been advised by his Ministers that it was within his power to sign Warrants for money not granted by an Act passed by both Houses, referred the matter first to the Law Officers in Victoria, and since then to the Home Government. The question had now been referred to the Law Officers of the Crown, and, it being still sub judice, it would not be convenient that he should offer any opinion on the subject. It was not necessary he should say more on the whole subject than that, generally speaking, the Colonial Office was still prepared to adhere to the views embodied in the despatch of the noble Earl opposite (Earl Granville) of January, 1870. The Act of Parliament alluded to in the Question was merely a re-enactment of a previous Act—William IV. c. 15—which altered in detail but not in principle the practice it continued. This was that the House of Commons resolved itself into Committee of Supply on Estimates; and the Resolutions passed, limited to one year, being reported and confirmed, the House resolved itself into a Committee of Ways and Means. The Resolutions of the Committee of Ways and Means, being reported and confirmed, were embodied in a Bill which passed through both Houses; and no money could be paid to the credit of the Consolidated Fund until a Bill had been passed, when the Controller and Auditor General could obtain the money at the Bank and authorize the Treasury to draw from the Consolidated Fund such moneys as might be required. When a Bill had been passed, it was possible to obtain money for Services which were the subject of Resolutions subsequent to a Bill. This year, for instance, on the 14th and 15th of March, £12,000,000 were granted for the Army and Navy Services; and, on the 19th of March, the
  1880
  Resolutions were embodied in a Bill which received the Royal Assent on the 28th. The money was now being used for other purposes connected with the Civil Services under Resolutions which had been passed since. The noble Earl (the Earl of Belmore) had been placed in some difficulty in his reading of the Act; because there was an imperfect quotation of it in the Memorandum sent out to him from the Treasury. The 14th section authorized Her Majesty, under the Royal Sign Manual, to require the Treasury to make issues, "as hereinafter provided," in the 15th section, which began by saying—"When any Ways and Means shall have been granted by Parliament;" but this clause, and the reference to it in the 14th, were omitted in the Memorandum. If the noble Earl would read the two clauses, he would find that they did not bear out the construction he had put upon the Act. Those who drew up the case for an opinion, which had been quoted from the Victoria papers, were clearly in error as far as the practice in England was concerned. But, whatever interpretation was put upon Acts and practice as far as the United Kingdom was concerned, it did not follow that the same practice need prevail in the Colonies. No doubt, there was an analogy, and perhaps the noble Earl was justified in citing the practice of Parliament in England in explanation of the practice in New South Wales and Victoria; but it did not follow that the Colonies were bound by our practice. He could only give this information at present, and add that the Motion for Papers would be assented to.
  THE EARL OF BELMORE (speaking from what he then remembered), said, that in the Colony he had not the Statutes to refer to, and naturally assumed that the quotation made in the Memorandum was correct.
  Motion agreed to.
  House adjourned at a quarter past Seven o'clock, to Thursday next, half past Ten o'clock.