Sitting of 29 March 1882

MINUTES.
SELECT COMMITTEE—Second Report—Commons (Arkleside Common, in the North Riding of Yorkshire, Cefn Drewern Common and Bettws Draserth Common, in the county of Radnor). [No. 139].
PUBLIC BILLS—Ordered—First Reading—Public Health (Scotland) Act Amendment٭ [115]; Militia Storehouses٭ [116].
Second Reading—Agricultural Holdings, Notices of Removal (Scotland) [5]; Commonable Rights [23] Burial Fees [24], debate adjourned; Metropolis (Rating of Footways)٭ [110].
Second Reading—Referred to Select Committee—Civil Imprisonment (Scotland) [19].
Select Committee—Arklow Harbour٭ [96], Mr. W. J. Corbet and Mr. Henry Northcote added.
Third Reading—Duke of Albany (Establishment)٭ [112], and passed.

ORDERS OF THE DAY.
  AGRICULTURAL HOLDINGS, NOTICES OF REMOVAL (SCOTLAND) BILL.
  (Sir Alexander Gordon, Mr. M'Lagan, Mr. Barclay.)

  [BILL 5.] SECOND READING.
  Order for Second Reading read.
  SIR ALEXANDER GORDON, in moving that the Bill be now read a second time, said, it might be in the recollection of hon. Members that two years ago the question which he now brought forward in this measure was discussed in the House, and met with a very favourable reception from Members on both sides of the House. Since then the question of extending the time for notice of removal in Scotland had gained favour very rapidly throughout the whole of Scotland amongst the class which was most interested in it—namely, the farmer class and occupiers of land. The change that had been asked for by them ever since he had had the honour of a seat in that House had been to convert the notice of removal of 40 days—which was all that a tenant farmer was now entitled to—at the end of his lease into a period of two years. The present law of 40 days' notice came into operation so late as the year 1853, when an Amendment to a Bill relating to the procedure in the Sheriff Courts was carried, and altered the previous law, which had been in existence for 300 years, giving the tenants a longer notice. He said a longer notice, because the Act of 1555 required that the notice should he given 40 days before the Whitsunday of the year in which the lease expired—so that if a tenant's lease expired at Martinmas (in November), he required to have notice 40 days before the Whitsunday of that year. That gave him six months' and 40 days' notice; and so if the lease terminated at any period between terms he had the period after Whitsunday, whatever it was, added to the 40 days. The alteration was made without any discussion in that House as to the reasons why it should be made. Probably at 2 o'clock in the morning, when, formerly, Scotch Business was conducted, some hon. Member moved an Amendment in the interest of owners of land, and it was passed without discussion. The hard operation of
  224
  the present law was this. The landlord had his tenant under his observation for 18 years and a-half, and he might be a good tenant and might wish to remain; but the landlord had it in his power to hold back information as to whether the tenant might continue in the farm for the term of another lease until 40 days before the lease expired. He had known cases where that had been done, and no doubt other Members acquainted with agricultural matters in Scotland could adduce other instances. Forty days was too short a period for the farmer to make his arrangements for taking a new farm, with the competition there was at present. Two years was the very shortest time a man ought to have to clear out of one farm and make arrangements for getting into another. When they considered the present change in the law was made in 1853, it was rather a reflection on this generation to find that they were so much less liberal and less considerate to their tenants than their ancestors were 330 years ago. He, therefore, hoped the House would be of a more liberal disposition and return to the practice of their ancestors. To show how this question was adopted throughout Scotland, and he might say in England also, he would read a clause in the Bill that had been brought before the country by the Scottish Chamber of Agriculture upon this subject. That was a Bill which had been discussed throughout the whole length and breadth of Scotland, and he had not heard of a single dissentient voice against the adoption of this clause, which ran as follows:—
  "Where in any proceedings relating to the removal or ejection of a tenant, under a contract of tenancy, an interval of 40 days is by law necessary and sufficient between the giving of warning or notice to remove, or the execution of a summons of removing and the term of removal, two years interval shall, by virtue of this Act, be necessary and sufficient for the same."
  That was a clause which had been accepted by the great majority of the farmers of Scotland as one which they desired to have passed; and not only was there that expression of opinion, but he found that most—he believed he might say all—certainly most—of the leases of large landowners which had been drawn up within the last two or three years, adopted the two years' notice of removal. He had in his hand

  225
  what was known as Lord Dalhousie's lease. That noble Lord stipulated—
  "That the tenancy should not come to an end until after expiry of three years' notice given by either party to the other of his intention to bring the tenancy to an end."
  And three years' notice was certainly better than two; but he (Sir Alexander Gordon) thought two years was sufficient to be made compulsory by legislation, and any party could add a year or any number of years, but could not reduce it. Another large owner—Lord Aberdeen—bound himself
  "And his successors to give two years' notice before the determination of the lease to the tenant thereof, whether the said lease was to be renewed to him; and, if so, on what condition."
  Lord Kintore's lease stipulated—
  "That if neither the proprietor nor the tenant should give the other notice three years before Whit Sunday of his intention to terminate such lease at its natural expiry, such lease should be held to be renewed on the same conditions and at the same rent for an additional year, and so on for as many additional years as might be allowed by the parties to elapse without giving notice, so that the proprietor and the tenant should always have three years' notice of an intention to terminate the lease."
  Lord Seafield's lease contained the following provision:—
  "With the view of encouraging the tenant to keep up the farm and maintain its fertility, towards the end of the lease, the proprietor will be prepared, except in cases where he may consider it inexpedient, to enter into negotiations with the tenant for the renewal of the lease two years before the expiry thereof."
  And, lastly, let him quote a landowner whose opinion would, he was sure, carry weight on the other side of the House—he meant the Duke of Richmond, who was so well known to take an interest in, and to understand, agricultural matters so well. He stipulated that—
  "New leases should be entered into two years before the expiry of the old leases, and two years' notice of intention to remove should be given on either side."
  He thought that showed that the measure he adopted was popular with landowners, whose experience and opinion the House had a right to consider, as well as with the tenant farmers. He should like to show the House the contrary of that, where landlords did not give notice. He had before him a clause in a lease—he would not mention the name, because it would be invidious
  226
  to do so—but it was very similar to clauses which they found in many of the standard leases of Scotland, some of which were held to be models of propriety. It ran in this way—
  "The tenant will be bound to remove at the expiry of his lease without any warning or legal procedure, failing which he will be liable in twice the stipulated rent of each year during which he shall continue in possession after such expiry."
  He hoped that clause was not often put into operation; but the law allowed a landlord to do so, and, consequently, it acted disadvantageously to the farmer. He would also quote another Bill which had been discussed throughout the country very widely, and accepted by the tenant farmers of England—he meant the Farmers' Alliance Land Bill for England. One clause of that Bill—Clause 12—provided—
  "That where the tenant held from year to year, or at will, the tenancy should not be terminated, except by a notice in writing by the landlord to the tenant, or by the tenant to the landlord, two years at least before the time specified in such notice for the termination of the tenancy."
  That was an indication of the wish of the tenant farmers of England; and he believed that already, in practice, contracts of tenancy in England usually included two years' notice of removal. So necessary was it under the present conditions of agriculture that tenants should have time to make their arrangements that notice of two or three years was practically coming into operation, and he wished to assist the introduction of that system by making it law. He would also remind hon. Members, and especially hon. Members opposite—if there were any who objected to the principle of the Bill—that the late Lord Beaconsfield had adopted that principle of two years' notice. He was sorry to say that, although there had been no opposition to this Bill from the tenant farmer class in Scotland, there had been some cases of opposition from the landowning class and from the factors who acted for them. There were two or three Petitions from them; but he was happy to say it was quite the reverse in the country to which he belonged, and part of which he had the honour to represent. These agricultural matters had been discussed lately in a very keen manner. The Commissioners of Supply for the County of Aberdeen, when the question of two

  227
  years' notice came before them at a special meeting, agreed last year that—
  "The Bill seemed to be conceived with a desire to promote the coming to an understanding as to renewal (of lease) a considerable period before the expiry of the existing lease, and in principle, therefore, it deserves a general approval."
  That was the opinion of the landlords of Aberdeenshire, who, he was glad to say, sympathized with their tenants in their desire to have sufficient notice of removal. There was also a Petition from the Society of Advocates of Aberdeen, who were mostly the Commissioners' land agents, in favour of the Bill. They wished one or two little changes, which he was quite aware would be of advantage. They wished the operation of the Bill to be restricted to occupiers of five acres of arable land, and more. It was an oversight of his that that had been omitted from the Bill, which would only apply to occupiers of holdings containing five acres and more of arable land. He would also remind the House that in the English Agricultural Holdings Bill of 1875, two years was specified as the period for the exhaustion of manures of the third class. The third class of improvements in that Act gave the tenant two years for these manures, as did also the Scotch Agricultural Bill brought in by the late Government two years in succession—1875 and 1876. In the corresponding clause, two years was held to be the time that the third class of manures should require for exhaustion. He might also remark that, with regard to Ireland, so lately as 1876, Parliament had passed an Act specially to extend the time of notice from six months to one year, though the custom of that country was that tenancies were held from year to year. If Parliament had passed a special Act to give that benefit to Ireland, he did not see why they should not do the same with regard to Scotland. It should be borne in mind that Scotch leases, he might say universally, were for 19 years. And, again, in 1875, the Agricultural Holdings Act had extended the time of notice in England from six to 12 months, unless the tenant contracted himself out of the Act. The law as it stood in England was 12 months' notice, even for a yearly tenancy; and how much more were Scotch tenants entitled to two years? He had put in the Bill a Proviso that the lease should be seven years or more,
  228
  because he thought five years was quite sufficient time for the landowner to become acquainted with his tenant, and to know whether he would retain him. But, practically, there was no such thing as seven years' leases in Scotland. He would remind the House that the Prime Minister, when in Mid Lothian, had held out to the Scotch farmers that his view of the matter was that longer notices should be given. The right hon. Gentleman referred to what was called the Leicestershire custom, where, after 17 years, the farmer had to state to his landlord whether he wished to remain in the farm, and the landlord and he had to agree with regard to the new lease. If a new lease was agreed to, the farmer was at liberty to go on, and cultivate the land as he thought proper, as long as he did not abuse it. If they did not come to terms, then the land was put under a course such as would insure the landlord that the land would go over to him in good condition. He had that morning received a copy of The Agricultural Gazette of England, and he found in that a report of a meeting of the Sevenoaks Farmers' Club, at which Professor Wrightson had read a paper on Legislative Remedies for Agricultural Depression, in the course of which he said—
  "According to the present law, most farmers are subject to a six months' notice to quit. Nothing can be more arbitrary, and it must act as a severe check upon the outlay of capital, or, if it does not, it ought to so act. What a dependent position a capitalist must occupy who may on Michaelmas or Lady-day receive a six months' notice to quit. It is a humiliating position, and decidedly unfair. I maintain that the general status of agricultural tenants has been depressed by this law—socially, politically, and financially. Farming is a very agreeable occupation; but the risk of a six months' notice to quit, possibly brought about by a petty misunderstanding, game difficulty, or political divergence of opinion, is too great a contingency…Two years' notice to quit would be none too long. I must confess that, for my part, I should like to know at least two years before leaving my farm, especially if—as I hope I am—I was farming in a liberal manner."
  In the discussion which ensued on the reading of the above paper, Mr. Cawston, an agriculturist of the district, made the following remark:—
  "He fully agreed that the time a tenant had for leaving his farm should be longer. If a man had to give up his farm at six months' notice, it was impossible for him to farm in such a way as to do justice either to himself, the land, or to his landlord,"

  229
  Professor Wrightson, after replying to the various views put forward by different speakers, concluded his remarks with the following suggestion:—
  "That there should he a legislative enactment providing that, say, five years before the end of the lease, the parties should agree what they would do with regard to the renewal of the lease or otherwise."
  In the same publication he also found an extract from a discussion following a recent paper by Mr. R. Michell on the Probabilities of Agricultural Legislation, read before the Swindon Farmers' Club, and reprinted from The Wilts and Gloucester Standard. Mr. T. Arkell, an eminent agriculturist of East Gloucestershire, who spoke during the discussion, said as follows:—
  "He believed if the Agricultural Holdings Act were made compulsory, together with a two years' notice to quit, there would be little more required from legislation."
  His (Sir Alexander Gordon's) object to-day was to ask the House to increase the 40 days' notice to two years, and it was with that view that he moved the second reading of the Bill.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Alexander Gordon.)
  SIR HERBERT MAXWELLsaid, he understood the object of the Bill was to improve the condition of agriculturists in Scotland. He had only looked at the Bill that morning, and had not had an opportunity of consulting his friends, either there or in Scotland, on the subject. He might say that he fully sympathized with the object which the hon. and gallant Baronet had professed—namely, to improve the position of the tenant farmer, and give him greater security in his occupation and in the outlay of his capital; but he was not able to gather from the provisions of the Bill any prospect of his position being improved in any one respect. The hon. and gallant Baronet had quoted Lord Beaconsfield on a somewhat similar measure, and he quite agreed with him that there was nothing in the Bill that could be regarded as revolutionary. Supposing it became law to-morrow, he did not see that it would alter the relations of landlord and tenant in Scotland one bit; but he did consider it an unnecessary interference. He knew that at first sight it would appear in Scotland,
  230
  and would be discussed among the farmers as one favourable to what they desired; but he did not think the Bill was what they were asking for at all. He had not heard the slightest expression in favour of a Bill or legislation going no further than the provisions contained in this Bill. He had often heard of a demand for a new lease to be entered into two or three years before the termination of the old one—that was to say, that the provisons of a new lease should be agreed upon before the termination of the old one; but there was no provision that would carry out that result in this Bill. The terms of the new lease were not to be defined, and what would happen in the majority of cases? The landlord, in order to safeguard himself against being committed to the terms of a new lease at a time when he might not be able to arrange those terms, might cause a circular letter to be sent to his tenants, whose leases were approaching to within two years of their termination, to say that their leases would not be renewed. That would put him in the position of being able to terminate the lease at the time if he wished to do so. An understanding which, at all events, in his part of the country was very general between landlords and tenants enabled the landlord and tenant to enter into such explanations as would, to a certain extent, counteract the effect of such a circular letter. That was to say, the tenant would come to learn that it was merely formal, in order to put the landlord in a position to terminate the lease, and give a new one if so disposed. The hon. and gallant Baronet had said that instances had come under his experience in which the lease had been allowed to run to within 40 days of its termination without notice being given to the tenant. Well, the hon. and gallant Baronet's experience was, doubtless, longer and more extensive than his; but he could say for himself that no such instance had he ever known or heard of; and he thought that if the tenant were to be allowed to run to within six weeks of the termination of his lease without any intimation, in the first place, that tenant would receive a very broad hint that he was not to obtain a renewal of his lease, and he would see that the sooner he looked out for a new landlord who would deal with him more gene-

  231
  rously, and in a more customary manner, the better. He thought 40 days' notice was more honoured in the breach than in the observance, as would also be the provision for two years' notice. He was not going to move the rejection of this Bill. He considered it would be absolutely inoperative. He did not see how it was to alter the position of matters at all. If it was to become law, he would suggest to the hon. and gallant Baronet that he should add to Clause 3 a provision such as he had already told them was contained in the English Farmers' Alliance Bill—that the notice should come from the tenant of his desire to renew the lease, and not only from the landlord. He would suggest that there be added to Clause 3 the following words, or words to that effect:—
  "And provided the tenant shall have given notice in writing to the landlord or the factor, within not less than two years of the termination of the lease, of his intention to apply for a renewal of the lease."
  That would be carrying out the spirit of that legislation which the Prime Minister had alluded to in Mid Lothian as desirable. He thought it was only fair that the landlord should not be called upon to take measures for the renewal of the lease, unless the tenant had intimated his desire to remain. He thought that, so far from giving tenant farmers a sense of security in their holdings, this measure, if it became law, would rather tend the other way; because landlords, as he had already indicated, would give formal notices to quit at the two years' term, and the Act would not have any effect in giving the farmers a sense of security. He quite agreed with the hon. and gallant Baronet that it was most desirable that the spirit of the legislation indicated in this Bill should be carried out, as it very frequently was, by landlords in making leases with their tenants; but he did not think it was a Subject for legislation. He trusted, if the House saw fit to agree to the second reading of the Bill, the hon. and gallant Baronet would consent to its amendment in Committee by the addition to Clause 3 of the words which he had read, or words to the same effect.
  MR. J. W. BARCLAYsupported the second reading of the Bill, and was very glad that the hon. Member opposite (Sir Herbert Maxwell) did not intend to oppose the measure. He thought it
  232
  was decidedly a step in the right direction—one in the interest of the tenant farmers of Scotland, but quite as much in the interests of the proprietors. In fact, it was an attempt to impose upon all proprietors the course which the best and most enlightened landlords were adopting in practice. The hon. Member opposite thought that the Bill would not add to the feeling of security on the part of the tenant. He thought it would do so in a very considerable degree; because, two years before the end of the lease, the tenant would be aware whether he was going to remain longer in the farm, and whether he had a prospect of coming to an arrangement with his landlord. If he had failed to do by that time, he must make up his mind to go elsewhere. In almost every case, consideration was made as regarded the new lease about a twelvemonth in advance; but that had been found too short a period, and he thought the very minimum period ought to be two years. That necessitated negotiations being opened for the renewal of the lease about two and-a-half years before the expiry of the existing lease; and he thought that would be an arrangement which would be very much to the advantage of the landlords, as well as that of the tenants. Large outlays, necessary in good farming, had to he made a considerable period in advance of the time when the result could be hoped for; and the greater security a tenant had, the more interest he would have in endeavouring to improve his farm. The principle of the Bill was already adopted in legislation, and had been from time immemorial; and the real question before the House was this—"Was two years too long a period of notice to give, seeing it was held on all sides that notice should be given?" He thought it was the very shortest period that could be named. If they were going to legislate on the subject at all, he thought it ought to be two years. A good many landlords had voluntarily adopted a longer period, giving, in some cases, three years' notice. He had no doubt this notice was intended to urge upon the landlord and the tenant to come to an arrangement as to the conditions of the renewal of the leases some time before the expiry of their old one. He believed it would have that effect, and he did not think landlords would be guilty of sending out

  233
  a circular letter, such as that to which the hon. Member for Wigtownshire (Sir Herbert Maxwell) had referred, because that would merely be keeping the tenant in a period of uncertainty; and if the landlord persisted in giving these notices to quit, it might be very well assumed that he did not wish the tenant to have the farm again. He hoped the House would pass the Bill with such Amendments as might be considered necessary in Committee. He did not think it at all necessary that the Amendment which the hon. Member opposite (Sir Herbert Maxwell) had suggested with regard to Clause 3 should be made; because the landlord or his agent could, easily ascertain from his tenant whether he wished to remain. He not only thought the proposal an unnecessary one, but believed there would be disadvantages connected with it. What the tenants complained of was that they did not know till very soon before the expiry of the lease whether they were going to have the farm again or not; and it was impossible for them to find out on what terms they would get a renewal of the lease. He hoped the House would agree to the second reading of the Bill, as it would go very much to improve the position of the farmers in Scotland, and because it was a step in the right direction, and one which, at all events, would induce both landlords and tenants to endeavour to put the tenure of land in Scotland on a more satisfactory footing.
  DR. FARQUHARSONsaid, he thought he might say, on behalf of his constituents, who adjoined those of the hon. and gallant Baronet (Sir Alexander Gordon), that they would gladly accept this Bill as an instalment of progress, because it really only touched the fringe of a question which must be considered ere long. Since they were not to have a Land Bill for Scotland introduced into the House this year, he was quite sure that the agriculturists of Scotland would meantime be glad to accept such small mercies as they could get. He was sure they would be very glad, indeed, to be told by this Bill that there was no longer a chance of their being turned out of their holdings at short notice. It was all very well to be told that few landlords did this at present; but if all the landlords were good they should have no need for legislation at all. It was conceivable that under the existing
  234
  law oppression was possible; and they had been told by the hon. and gallant Baronet who proposed the second reading of the Bill that such cases had occurred in connection with the present arrangements. Under the new arrangement of two years' notice, facilities would be given to tenants and to the landlords to arrange between themselves for compensation for unexhausted manures, which, he thought, might be very well arranged in that way. He hoped that, as the hon. Member for Wigtownshire (Sir Herbert Maxwell) had only had an opportunity of seeing the Bill that morning, further consideration and study would enable him to alter his views as to its provisions.
  MR. R. PRESTON BRUCEmust say that he thought there was considerable force in some of the observations regarding this Bill made by the hon. Baronet opposite (Sir Herbert Maxwell). He (Mr. Bruce) thought it was very doubtful whether the Bill, if passed, would succeed in producing the good results which were expected by the Mover. The idea of the Bill seemed to be that the giving to a tenant of this two years' notice would enable him to know whether he was going to get a new lease of his farm or not; but he failed to see how the mere notice would effect the purpose desired. The intimation which would be conveyed to the tenant would be this—that unless he made an agreement with his landlord within the two years he would be liable to have to quit his farm; but that was telling him something which he was perfectly well aware of. It was possible that the existence of a statutory notice of this kind might in some cases suggest to the two parties the propriety of negotiating rather earlier than they might otherwise do. If it operated in that way, he thought, so far, it would be beneficial; but he thought it was questionable whether that was sufficient reason for making a new law on the subject. It had sometimes appeared to him that a notice of this kind might be made really useful if it were combined with a simple and workable provision for compensation for unexhausted improvements. If, in the event of a new lease not being concluded within a certain time after the service of such a notice, then a statutory rate of compensation for artificial

  235
  manures or feeding stuffs used or consumed on the farm should come into force—in that case he thought such an Act as this might really be operative and useful. A good deal of reference had been made to the law in England and Ireland as to notice to quit; but he must say it appeared to him that arguments drawn from the law affecting tenants from year to year, were totally beside the point. The law in England, he believed, was, that a tenant under a lease for 19 years, or for any other definite term, had no right to a notice to quit at all. That notice was only required in cases where the tenancies were indefinite in duration. In such cases the tenant was unaware when he might be called upon to quit his farm, and therefore the law rightly laid down that a certain notice should be given. He thought, if this Bill was to go on, it would be worth while for the learned Lord Advocate to examine the relation of this Bill to the present law in Scotland in regard to notice of removal. That law, he believed, as it stood, was somewhat complicated, and he feared the present Bill would introduce further complications and distinctions. He also believed that it was uncertain in this respect, as to how far the condition of lease by which the tenant undertook to remove without warning was operative or not. If legislation was to take place on this subject, it seemed to him that the opportunity might be taken to remedy any defects or ambiguity in the existing law.
  MR. M'LAGANsaid, the hon. Member for Wigtonshire (Sir Herbert Maxwell) had told them that he had only read the Bill that morning, and had had no time to consult his friends. It was a great pity he had not read the Bill sooner, because he was sure they should have had a better opinion of the Bill from the hon. Member, and they should not have had such crude ideas as to the principle of the Bill. His hon. Friend who had just sat down (Mr. Bruce) had evidently intended to curse the Bill, and instead of that he had blessed it. He believed some of the remarks the hon. Member had made would make a waverer against the Bill be in favour of it. The hon. Member had said that the effect of this Bill would be to make proprietors and tenants endeavour, before the end of the lease, to come to terms as to the new
  236
  lease. That was a most important consideration; and if the Bill had no other effect than that, it ought to be passed. In regard to other arguments which the hon. Member had put forward, he had to point out that the law had already given notice to quit in Scotland. It had acknowledged the principle by giving 40 days' notice to quit; and this Bill, therefore, was not introducing a new principle at all—it was simply extending a principle which was already acknowledged. As it had been very properly put by the hon. Member for Forfarshire (Mr. Barclay), if it was right to give a 40 days' notice where there was a lease at the present time, and to give a year's notice where there was no lease, surely it was far better and far more necessary to give a two years' notice where there was a 19 or 21 years' lease. The hon. Member for Wigtonshire could see no use for the Bill at all, though the hon. and gallant Baronet (Sir Alexander Gordon) had stated many instances in which the want of sufficient notice was a great hardship. He could corroborate the statement of his hon. and gallant Friend behind him (Sir Alexander Gordon), because he had known instances in which the landlord had not given notice to the tenant till it came within 40 days of the termination of the lease, and the tenant had been put to very great loss and inconvenience. The landlord had even come forward and told the tenant that he had no intention whatever of parting with him. When such insufficient notice was given the farmer might not be able to find a residence for his family, or a farm, and would be compelled to sell off his stock and implements at a great loss, besides being deprived of a home. This question of the tenant's residence was too much neglected, for where there was a demand for farms he might be left without a roof to cover himself and his family. He cordially agreed with his hon. Friend (Mr. Barclay) that if this Bill became law it would be a very good thing to join with it some system of compensation for unexhausted manures that might be made between the landlord and tenant. He would like very well if, instead of the notice extending to two years, it could be made four or five in certain eases. The logical conclusion to which they must come in this matter was that notice to quit should be given according to the rotation of crops. Where

  237
  the course was five years the notice should be five years. Still, he did not wish to push legislation too far, and, of course, there were many instances in which the courses were not so long; but he agreed with his hon. and gallant Friend the Member for East Aberdeenshire and his hon. Friend the Member for Forfarshire that the shortest notice that should be given was two years. He trusted the Government would support the Bill, and would carry it, as had been very properly said, only as an instalment of that large question which was before them—the reform of the Land Laws in Scotland. He had much pleasure in supporting the Bill.
  MR. J. A. CAMPBELLsaid, he was not opposed to the principle of the Bill, and he thought his hon. Friend the Member for Wigtonshire (Sir Herbert Maxwell) had said enough to show that he also recognized the object which the promoters had in view as a good one. It proposed, in fact, to legislate in favour of what had been the usual practice of landlords; but when they came to legislate on a practice, it was necessary that the legislation should be accompanied with proper safeguards, and his purpose in rising was to ask some explanation from the promoters of this Bill on that point. As the Bill stood, there were only two cases to which the proposed measure would not apply. These were the case of a tenant being sequestrated under the Bankruptcy Act, and the case when the tenant had renounced his lease, and the renunciation had been accepted by the landlord. There were, however, other cases where the application of such an Act as was proposed to be passed would interfere with existing contracts, and introduce considerable complication and difficulty. He would give one instance. Two years ago, an Act had been passed for the abolition of agricultural hypothec in Scotland, in which Act there was special provision made to enable landlords, after losing the right of hypothec, which they previously held, to get their land out of the hands of insolvent tenants in a more summary way than had been possible for them while they enjoyed the right of hypothec. Now, was it intended by this Bill to repeal those provisions? He hoped that on that point they would have some explanation. Perhaps there might be other questions of a similar nature; but
  238
  he had great hopes that his learned Friend the Lord Advocate would indicate some improvements which he would recommend in this Bill, and with improvements he thought it might be made a useful measure.
  SIR EDWARD COLEBROOKEthoroughly concurred as to the expediency of a long period of notice, because it was obviously right that the tenant should know whether or not he was going to have a renewal of his lease; but he had considerable doubt whether that object would be advanced in any perceptible degree by a compulsory measure like this, requiring landlords in all cases to give two years' notice. In his experience the difficulty often came from the side of the tenant, who, when a farm was likely to rise in value, was slow to make up his mind whether he would give an increased rental, and that led to uncertainty being prolonged until a few months before the lease actually expired. The general rule, according to his experience, was that a year before the lease expired the parties came to an understanding, and the lease was virtually renewed at the time. But he thought that if they attempted by law to compel a two years' notice, the results would be that a mere formal notice would be given, and the tenant would be no better off than he was now. Any attempt to force an earlier period than 12 months' notice would not fall in with the usual practice; and, therefore, he entertained great doubts as to its efficiency. At present the lease was a notice in itself; but, of course, it was most desirable that the parties should come to an agreement some time beforehand. That could be only arrived at by good sense and good feeling on each side; and the common interest of both was that the prolongation of the lease should not be put off indefinitely. It was well worth the consideration of the parties whether the law might not be extended to a notice of one year. That notice would not degenerate into a mere formality, and it might stimulate the parties to come to terms in good time before the expiration of the lease. He hoped that in Committee the desirability of substituting one year's notice would be considered.
  SIR DONALD CURRIEsaid, he hoped the Government would support the Bill. He had known many cases in which

  239
  the tenants were kept waiting until almost the end of the lease before notice was given; and he trusted the Government would accede to the proposal of the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon), and give the tenant farmers relief.
  MR. ORR EWINGsaid, this Bill would have been especially useful if brought forward a few years ago, when there was a great demand for farms. The Bill was entirely in the right direction, and he believed it would give great satisfaction if carried. It was conceived in the true interests of agriculture. A Bill of this kind was only necessary for a country like Scotland. In England, where the conditions as to leases, were quite different, it would be unnecessary. At present a tenant was perfectly at a loss to know whether he was to be continued in his farm or not. The Bill tended to bring landlords and tenants together in order that they might make terms, and that was an object which he heartily supported. Nowadays a landlord was anxious to keep a good tenant and make terms with him.
  SIR GEORGE CAMPBELLremarked that since his hon. Friend the Member for Fifeshire (Mr. Bruce), who had given much attention to the subject, expressed some disappointment with the Bill, it might be well that a Fifeshire man and a Fifeshire Member should express his approval. They did not expect too much from the Bill; but it seemed to him that the passing of a law of this kind would certainly do good by introducing a practice into Scotland of making renewals of leases a considerable time before their termination. He thought the measure would be an advantage to the farmers, and would do no harm to the landlords.
  THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he had much pleasure, on the part of the Government, in assenting to the second reading of the Bill. As he understood the Bill, the object of it was to fix the period at which, if a landlord did not give notice that he intended that the lease should come to an end, what would be termed in the law of Scotland "tacit re-location"—that was, "tacit reletting"—would take place, or, in other words, that the lease would run on for another year. It had been said by one or two hon. Members that that was not necessary. He could hardly agree in that view. His hon. Friends the Mem-
  240
  bers for Fifeshire (Mr. Bruce) and North Lanarkshire (Sir Edward Colebrooke) both seemed to think that such a notice would be telling the tenant what he knew already, and that the tenant had sufficient notice in his lease. That was not quite correct, because even by the present law 40 days' notice was necessary in order to prevent tacit re-location from taking effect. So that, he took it, the question really came to be whether the 40 days' notice which now was required by the law was adequate or not. He thought he might say that there was practically a consensus of opinion in Scotland that that period was too short; and he might very well appeal to what his hon. Friend the Member for Wigtonshire (Sir Herbert Maxwell) said in support of that view, because he observed that if the landlord had not made any approach to the tenant a considerable time before the expiring of the lease, the tenant might understand from that silence that he had already notice to quit. He thought that was testimony to the effect that 40 days' notice was not enough to enable new arrangements to be made on either side, under the conditions of modern agriculture. It had been said that the Bill probably would not be of any great importance. No doubt, it was not a large measure; but so far as it went it was entirely in the right direction. The hon. Member for Dumbartonshire (Mr. Orr Ewing) remarked that if it had been enacted some years ago, in a time of greater prosperity, when there was a great demand for farms, it might have been of greater value. He (the Lord Advocate) hoped they should soon see a return to that time of prosperity in Scottish agriculture which would give that vitality to the Bill. It would be, of course, entirely open to the Committee to consider the period at which notice should be given. Some Members thought one year enough, and, of course, a matter of that sort would be duly considered in Committee. With respect to what had been said by the hon. Member for the Universities of Glasgow and Aberdeen (Mr. Campbell), he might remark that he had already called the attention of his hon. and gallant Friend the Member for East Aberdeenshire (Sir Alexander Gordon) to that matter. It was quite plain that there were various particulars in regard to which it would be necessary, in order to make the Bill a workable mea-

  241
  sure, to introduce additional provisions. For example, the Bill as it stood might possibly be held to override or overrule various conditions under which a tenancy might come to an end—as by a failure to fulfil the conditions of the lease, or by the operation of so much of the Law of Hypothec as still survived, or the compensatory remedies given to the landlord for its abolition by the Act of 1880. But his hon. and gallant Friend the Mover of the Bill at once indicated his readiness to assent to any Amendments in that direction. He did not think it necessary to detain the House by going into matters of detail; because he was quite sure, from the attention that had been given to the Bill on both sides of the House, that it would be put into such a shape in Committee as would give it the maximum utility and value.
  Motion agreed to.
  Bill read a second time, and committed for Monday next.

CIVIL IMPRISONMENT (SCOTLAND) BILL.— [BILL 19.]
(Dr. Cameron, Mr. Ramsay, Mr. Fraser Mackintosh.)

SECOND READING.
Order for Second Beading read.
DR. CAMERON, in moving that the Bill be now read a second time, said, he had introduced in 1880 a Bill, which was passed in that year, and which abolished imprisonment in Scotland in cases of ordinary debts. He had the honour of presiding over the Select Committee which sat to consider the subject at that time. In the course of their investigations, the Committee received a considerable amount of evidence regarding civil imprisonment on other grounds than for ordinary debt; but they passed a Resolution declaring it to be inexpedient in that particular Bill to deal with those other matters. Since the passing of that Act he had had his attention drawn to the operation of the law in the excepted cases; and he would lay before the House what he thought was a case, if not for the passing of this Bill exactly as it stood, at least for a Select Committee to consider the matter with a view to reform. In the evidence which came before the Committee over which he presided, it transpired that very long periods of civil imprisonment were liable to be in-
242
curred; and in order to provide against such cruel prolongation of imprisonment in the excepted cases, a clause was inserted in the Bill, requiring all prisoners for debt to have their cases brought before the Sheriff once a month, and limiting the amount of imprisonment to one year. These provisions had turned out a dead letter. Although on one warrant there could not be more than one year's imprisonment, another warrant could be issued for another instalment due, which involved further imprisonment. That was a point which he hoped the House would carefully consider. In order to show the difference between the old and new systems, he last Session moved for a Return of the number of civil prisoners in the various prisons in Scotland, and various particulars concerning them. He found by that Return that the Act of 1880 had had the effect of reducing the number of civil prisoners in Scotch gaols, in round numbers, by two-thirds; and that the large majority of prisoners still remaining were cases of alimentary debts—that was, orders upon putative fathers for the maintenance of illegitimate children. So much was that the case, that out of a total of 47 prisoners in Scotch prisons on the 30th of March and of June last, no fewer than 38 were alimentary cases, where persons had been imprisoned for the support of illegitimate children, two for the support of wives, and four as being in meditatione fœgu, two for nonpayment of rates, and one ad factam prestandam. He knew that the question of doing anything for the prisoners in gaol for the non-payment of alimentary debts was unsavoury; and he should certainly not have taken it in hand had it not been for the manner in which he was connected with the Scotch Act of 1880. His connection with that Act, however, had brought under his attention a state of things which placed him in this position—that, however unpleasant and however unsavoury it might be, he could not conscientiously sit still without doing something on his part to remedy a state of things which urgently required reform. Previous reforms had been effected in the Scotch law regarding the treatment of civil prisoners; but in these reforms the persons imprisoned for alimentary debts had been overlooked. In 1875, imprisonment for debt in Scotland was abolished for all debts

243
under £8 6s. 8d; but an exception was made against alimentary debts. A few years ago, his hon. Colleague (Mr. Anderson) passed a Bill, the effect of which was to abolish the arrestment of wages when they did not exceed £1 per week. Again, in that Bill, an exception was made against alimentary debts; and, lastly, the Debtors Act of 1880 made a similar exception. On the other hand, during this whole period, Scotch Judges had been pushing legal presumptions against the unfortunate alimentary debtor with more and more severity, until now they had arrived at such a position as he did not hesitate to say was a disgrace to the Scotch law. Now, he had not the slightest desire to deprive the mothers in any such case of any legitimate remedy which could be placed in their hands; but for alimentary debts, from all he could learn, civil prosecution was no remedy. As the law at present stood, if a man had any means, by the process known as cessio he could be deprived of his means by his creditor. Amongst the witnesses examined by the Select Committee was a local Judge of great experience—Sheriff Clark of Glasgow—and he said that he never knew a case of alimentary debt in which imprisonment was resorted to in which it was effectual, except so far as it had been the means of inducing the friends of the prisoner to advance the funds required to obtain his liberation. He (Dr. Cameron) knew it had been argued that imprisonment for such debt was a fitting punishment for immorality. Now, it was no punishment for immorality. The rich seducer, who was by far the most immoral, was not punished at all, but, of course, paid the aliment, and took good care that the case never came before the Sheriff Court. The present law afforded no protection to the poor, because a woman could not imprison a man for alimentary debt unless she was in a position to afford him aliment. For, as a matter of fact, if a woman was awarded aliment of 2s. 6d. a week, unless she could pay 3s. 6d. to 6s. a week she could not keep her debtor in prison. The absurdity of such a law was apparent. The process of cession put into the hands of the creditor any means of which the debtor was possessed; and the creditor in alimentary cases was, as he had explained, entitled to arrest all
244
the wages. But as long as the debtor was imprisoned his goods could not be taken to be applied to the payment of debts. During his incarceration the man could earn no wages, so that the woman was not only obliged to pay this 3s. 6d. or 6s. a week; but if he had effects they could not be seized, and though he was capable of earning wages no wages could be earned. If he were asked what substitute he proposed to provide for what he took away, he would answer that none was necessary. The Act of 1880 placed very summary powers in the hands of the creditors where there were effects; and where there were no effects, imprisonment could not enforce payment. If a prisoner were to attempt to fly he could be seized and imprisoned on a fœgu warrant; and if he allowed his child to come upon the parish the parochial authorities would be entitled to proceed against him criminally as a rogue and vagabond. It must not be forgotten that there was another side of the question. The state of the affiliation law in Scotland was such that if a young man of the working classes courting a girl of the working classes discovered that she had been unfaithful to him and broke off the engagement, if that girl chose to swear that that man was the father of her child, hardly anything in the world—so he was informed—could save him from having the parentage established upon him. Under the English law an investigation took place in the absence of the putative father; but in Scotland a decree might be given in absence for inlying expenses and the first quarter's aliment, which brought the total up to £12 or £13, and unless the debtor paid that he might be imprisoned. If he chose to contest the case the expenses would be £20 or £30, and if he appealed they might amount to twice as much. He (Dr. Cameron) contended that though his friends through his imprisonment might be induced to pay the debt, that was not a healthy thing. There was no reason why the struggling mother of a man who had lived loosely should be compelled to pay his debts, and in many cases the power of imprisonment was used as a compulsion to induce the reputed father to marry the girl. If a man had no effects it was formerly held that it was absurd to detain him at the cost of the woman, who in that case

245
must aliment him. This rule had been abolished, and a rule adopted in its place that the debtor should not be released from prison, and should not have the benefit of cessio, until he had given security for the debt. Civil prisoners were formerly careless, good-natured fellows. They clubbed together, and if one had no money he got assistance from his fellow-prisoners. But now a man might find himself in prison alone, absolutely without funds, in a very unpleasant position.
Message to attend the Lords Commissioners;—
The House went;—and being returned;—
Mr. Speaker reported the Royal Assent to three Bills.
DR. CAMERONsaid, that when interrupted he was directing attention to the case of the civil debtors in Scotland, whose condition had been growing worse and worse in recent years. He had mentioned that they were deprived of the rights they formerly possessed of obtaining liberation in cases where they had evidently no goods like other debtors; and he had mentioned that in consequence of the general abolition of imprisonment considerable hardship had been entailed upon them. The prisoners had been compelled by circumstances to club together in numbers in order to live cheaply; and when one of their number was without funds he received assistance from the others. Recently they had another grievance to complain of. Since the passing of the Prisons Act, a few years ago, it had seemed good to the Prisons Commissioners to charge these unfortunate prisoners 1d. a-day for the use of fire. Now, as the prisoners' allowances, in certain cases, did not exceed 4d. per day, and in the great majority of cases did not exceed 6d. per day, this docking off 1d. per day left them in such a position that they were certainly not likely to get fat. Perhaps the best way of showing the House the state of the law in Scotland would be to submit a few practical examples of cases which had absolutely occurred. The first case was that of a man named Walker, imprisoned in Ayr—and he might mention, in passing, that for some reason the county of Ayr seemed to be the great centre of these eases. Perhaps
246
the magistrates in Ayrshire had some peculiar ideas on the subject; but, at any rate, there were more cases of imprisonment for alimentary debts in Ayrshire than in any other county. One of the men imprisoned there for 19 months was named William Walker. Now, he did not want to say a word in Mr. Walker's defence; he knew little about him, and, from anything he could learn, he was not a man whose habits and peculiarities were calculated to excite their sympathy. But his case spoke for itself. He was arrested on Saturday, August 21, 1880, and when apprehended he had a farthing in his pocket. On the same day he applied to the town clerk for aliment, as he had nothing to support himself. On the Sunday, Monday, and Tuesday following, he tasted nothing. On Wednesday an acquaintance called at the prison, and when going away left him 4s. The town clerk called on him towards the end of the week with a petition to the magistrate for aliment. The petition was signed by Walker. The town clerk informed Walker he would require to pay 7s. fees before any aliment could be granted. He was not able to pay the fees, and, consequently, he received no aliment until the beginning of October; and he would not have got it even then had he not authorized the gaoler to keep the fees off the first of the aliment out of his allowance. The allowance was 7d. with 1d. deducted for the use of the fire. Before receiving the aliment he managed to live on a pittance received from a poor sister, who was the only support of his aged mother, and whose wages in the winter amounted to only 5s. a-week. Although fees had been twice abolished by Act of Parliament the practice still existed. Mr. Walker had anticipated that, under the Debtors Act of 1880, he would be entitled to release in the year 1881; but just as he was expecting to be released he was served with another warrant, and laid by the heels for another 12 months. He wrote to the Lord President of the Court of Session, who directed the case to be taken up by the law agent of the poor; and, in the Outer House, Lord M'Laren, who was Lord Advocate when the Bill passed, held that the clear intention of the Legislature was that imprisonment in such cases were to be limited to one year, and that that intention would be defeated by the issue

247
of new warrants, under which, as he pointed out, a debtor might be kept in gaol, when the payments were to he made annually, for 10 years, and in cases where the money was to be paid in quarterly instalments, for 40 years. The case was carried to the Inner House—a somewhat expensive luxury, as an appeal costs money—and it was there held that Lord M'Laren was mistaken. They admitted that a man imprisoned in this manner might be detained for life; but in that case they said the remedy for a prisoner, if he was an honest debtor, was to sue out for cession—that was to say, to apply for liberation on making a declaration that he had handed over all his goods. This case was brought to his notice, and he (Dr. Cameron) instructed his agent to take up Walker's case, and to take what the Lord President of the Court of Session said was the true way to obtain liberation. Walker, accordingly, applied to the Sheriff Court in Ayr for cession. His agent cited the old law on the subject, under which debtors were entitled to liberation on giving up all their goods; but the Sheriff intimated that that was not the law nowadays. Walker's aliment was 4s. 1d. per week, and his agent pointed out the folly on the part of the mother of the child of paying this allowance, while the aliment she was entitled to for her child was only 3s. 1d. The Sheriff refused the cessio, and said he had no sympathy with the prisoner, even should he be kept in prison all his life for not attempting to pay his debts. Walker offered to pay one-sixth of his wages, but he was asked for security; and as he failed to find security his offer was not accepted. An appeal was made to the Sheriff Principal, who confirmed the decision, and said he could not understand why the man's relatives would not become security. It might be a very inexplicable thing to a Judge; but the man's relatives knew that if, through sickness, Walker was unable to fulfil his obligations they might be called upon themselves to pay, or be sent to prison in default. At any rate, the Sheriff allowed Walker a fortnight to look for security; but he could not get any, and was liable to be sent back to prison whenever his creditor thought tit. He (Dr. Cameron) wanted to test if that was the law, and he instructed his agent to try
248
the point in a second case. In May last another man, a travelling draper, was imprisoned in Ayr on a decree of aliment on the 12th of that month. He received a subsistence allowance of 6d. per day. He had a debt of £100 with a merchant. The merchant joined the prisoner in applying for a sequestration; but the man was still kept in prison. Lord Fraser refused to let him out. He offered to pay £1 a month towards aliment; but he could not find security, and that offer was refused. He was a bankrupt; every farthing was in the hands of his trustees. He (Dr. Cameron) accordingly instructed his agent to apply for a cessio for him. The Sheriff Substitute dismissed the application. If the man could not give security he must stay in prison. The Sheriff Principal, to whom the case was appealed by him (Dr. Cameron), confirmed the decision, and in a manner which was rather amusing. He was under the impression that the prisoner himself was paying the expenses of the application, instead of giving his money to the mother of the child of which he was the putative father, and this roused the indignation of the Sheriff Principal. Again, a married man in Glasgow had an action brought against him by the mother of twins. He protested he was innocent, and would not pay the aliment awarded, and was sent to prison. It was alleged that he was the proprietor of a shop and able to aliment himself, and the result was that he was refused aliment. On the other hand, his wife, naturally annoyed, refused to aliment him; and as the man was without support altogether, the gaoler had ultimately to aliment him, for fear of being held responsible for his death. Frank Cosgrove, now in prison at Edinburgh, was alleged to be the father of a child born in May, 1880. He went to Spain on the 15th of November, 1880. An action was raised against him in his absence, and when he returned he was put into prison. He received an allowance of 6s. per week. The aliment he should have paid for the child was 2s. 9d.; so that, for the sake of receiving this 2s. 9d. a week, the mother of the child was actually contributing 6s. per week. When the case was brought into Court, the amount due, including expenses, was put down at £12. He had not £ 12, and could not get security; so still remained

249
in prison. Another man was imprisoned in respect of a child born when he was 15 years old. He got out of work, became unable to continue paying aliment, and was put in prison. He contended that if a debtor was in prison he could not be reached by cessio. If the woman was poor she could not aliment him and keep him in prison; and therefore the law, as it presently stood, was no remedy for the poor woman. If the woman had friends who were rich enough to pay 3s. 6d. a week for the purpose of keeping a man in prison, and the prisoner had no friends to become security for him, he might be kept in prison his whole life, and be kept there, not because of any immoral act, not because he was unwilling to pay, but simply because he had no friends and could not find security. Now, it had been said if he took away, as he proposed, the power of imprisonment in such cases, he would strike a blow at Parochial Boards. He denied that altogether. As he had said, parochial authorities could prosecute a father as a rogue and a vagabond for neglecting his child, and punish him with a definite amount of hard labour as a criminal. He had nothing to say against such a punishment as that. What he objected to was the indefinite imprisonment at the hands of an irresponsible party actuated by vindictive motives, whose character, by the very fact of her position, was not of the best. He wished to abolish this sort of imprisonment altogether. The details could be considered by a Select Committee. The next question dealt with in the Bill was that of rates. He proposed to limit the imprisonment to one month. It might be necessary to have a compulsitor; but that compulsitor should be reasonably equivalent for any rates that could be left unpaid by persons whose effects were not more than sufficient to cover the hypothec. The Act of 1880 modified the law as to fugœ but these warrants were of little or no use now for their purpose. He proposed to modify it, so at once to mitigate its security and restore its usefulness. He also proposed to abolish the Law of Lawburrows, which was an utterly effete process of Scotch law, which was not needed nowadays, but which had been grossly abused, and which consisted in allowing any person who had a grudge against any other person, and who chose to go before a
250
magistrate and swear that he was in fear of the action of another person, to obtain a warrant against that person, who, if he did not within 48 hours produce security against any breach of the peace, would be sent to prison. In such a case a person might be kept in prison for years. Sheriff Barclay was the greatest authority in Scotland on this subject; and in a paper which he read at the Social Science Congress at Aberdeen he expressed a decided opinion that something must be done by legislation to prevent the iniquitous effects of this system. He mentioned the case of a woman who had been kept in prison for five years under Lawburrows until she became insane. No proof was required of reasonable grounds for the fear entertained. The only means of checkmating the operation of the law was for the accused to make a similar complaint against the accuser. In Sheriff Barclay's opinion the law was a blot on the Statute Book, and the sooner it was wiped out the better. He (Dr. Cameron) proposed no substitute, because by the law of Scotland it was a crime to threaten, and he did not think any additional powers were required by the authorities. Another change which his Bill contemplated related to the law of imprisonment ad factam prestandam. If a man was ordered to produce or sign a certain document, and refused to do so, he was committed to prison for contempt as it was called in England—ad factam prestandam, as it was called in Scotland. He proposed that where a man refused to sign a document, the Court should have power to order the Clerk of Court to sign it, and that the signature should be held valid for all legal purposes. These were the details of his Bill; but as it dealt with complicated and technical matters, he was not wedded to them. He thought he had shown to the House that there was need for reform, and that he had made out a distinct case for reading the Bill a second time. If that were done, he should propose the reference of the measure to a Select Committee. In conclusion, he had to thank the House for the patient and attentive hearing which it had so kindly given him.
Motion made, and Question proposed, "That the Bill be now read a second time."—(Dr. Cameron.)
SIR HERBERT MAXWELL, after expressing regret for the absence of Scottish Members who sat on his (the Conservative) side of the House, admitted that the hon. Member for Glasgow had shown considerable grounds for an alteration of the law—perhaps not to the extent he proposed; but, at all events, for a modification of the existing law. It was his intention on reading the Bill to have moved its rejection; because, while it proposed to remedy certain existing abuses, it did not seem to him to afford any adequate safeguard against other abuses. He was a Member of the Committee two years ago, presided over by the hon. Member for Glasgow, and the question of imprisonment for alimentary debts was considered. That Committee, by 8 votes to 3, resolved to retain the power of imprisonment for such debts.
DR. CAMERON: The Committee resolved that it was not expedient to abolish the power of imprisonment in the Bill which was then before them.
SIR HERBERT MAXWELLsaid, that that was no doubt so; but, at the same time, his recollection of what took place was that the sense of the Committee was decidedly against any alteration of the power of imprisonment for alimentary debts. He quite admitted, however, that the hon. Member for Glasgow had made out a very strong case; and he would be able to agree to the second reading of the Bill on the condition, which he understood would be accepted by the Government, that it would be referred to a Select Committee. He therefore withdrew his opposition to the Bill.
DR. WEBSTERsaid, he was glad to find that there was no opposition to the second reading, on the understanding that the Bill was to be referred to a Select Committee. He confessed that but for that assurance, he should have found some difficulty in agreeing to the second reading. It was true that almost all the questions—there was scarcely an exception—brought forward in the present Bill were before a Select Committee only two years ago. That Committee deliberately considered every point but one that was embraced in the present Bill. Still, there were differences of opinion in that Committee, and especially upon the point of aliment for the affiliation of natural children, and he thought a strong
252
case had been stated by his hon. Friend the Member for Glasgow on that point. In the appointment of a Committee to consider abuses in the law of Scotland imprisonment for aliment must deserve consideration. It would not have escaped the observation of the House that almost the whole statements and arguments of his hon. Friend were confined to arguments for the affiliation of illegitimate children. He proposed, however, to make the Bill go further than that. Ho proposed to repeal the imprisonment for aliment in all cases, which included also cases of aliment for which judgment was passed, against husbands for aliment to their wives and to their lawful children. That would deserve consideration. He did not know either that the hon. Member had made out a sufficient case with regard to other cases and matters included in the Bill. Full time and full opportunity would, no doubt, be afforded to the trading, commercial, and legal bodies in Scotland to consider the Bill, which was one in which he knew they felt considerable interest. It also deserved consideration on the part of the hon. Member, whether some information should not be obtained by the Committee in regard to the system of imprisonment for debt in England. That question was attracting a good deal of interest, and he saw there was set down for to-day a Bill dealing with the subject. It would deserve consideration by this Committee whether the practice of the law in England was not a matter which might require attention when considering civil imprisonment in Scotland. With these remarks he agreed to the second reading, on the understanding that the Bill was referred to a Select Committee.
MR. J. A. CAMPBELLsaid, he should have had considerable hesitation in consenting to the second reading unless the Bill were to be referred to a Select Committee. The hon. Member for Glasgow had made out a strong case in favour of considerable changes in the law. At the same time, the questions with which this Bill dealt were numerous and important. Important legal questions were dealt with, and it was necessary that they should be thoroughly considered. He agreed with the hon. Member for Aberdeen (Dr. Webster) that it was to be hoped that time would be given to hear the opinion of traders and legal gentlemen in Scot-

253
land who were in a position to judge of the necessities of the case. His objection to proceeding with the Bill now would have been that it was only distributed on Thursday last, so that there had been no opportunity afforded those in Scotland who were competent to do so to give an opinion on its merits. He had every confidence that, with the aid of a Select Committee, considerable improvements would be introduced in the law of imprisonment, and on that ground he agreed to the second reading.
MR. A. GRANTsaid, he was glad Her Majesty's Government intended to agree to the second reading of this Bill. No doubt some details of the Bill would require to be looked carefully into, and perhaps altered; but in Committee any changes for the better that were desirable would be made. The principal reform which the Bill proposed to deal with was the abolition of imprisonment for debts in alimentary eases. He was one of the Members of the Select Committee which, two years ago, sat on the abolition of debt in Scotland. He remembered very well the question of imprisonment in alimentary eases being before them, and the hon. Member for Wigtonshire (Sir Herbert Maxwell) had called attention to the fact that the Committee, by a majority, decided to introduce into their Report a recommendation that imprisonment for alimentary debts should not be exempted from the Bill. He (Mr. Grant) happened to have been one of the minority who objected to that; and his reasons were that he thought ample evidence had been placed before the Committee to the effect that no good whatever was done by imprisonment for neglect to pay aliment, especially in the case of illegitimate children. It was shown to them very clearly by the hon. Member for Glasgow that no good was done by such imprisonment. In the first place, no doubt the majority of the cases were due to the vindictiveness of the woman, and not to any real desire on her part to recover the money due as aliment. In many other cases, the imprisonment was resorted to in order to force the friends of the imprisoned person to pay the money; and that, of course, was not a legitimate object of imprisonment, and ought not to be encouraged. Then they had to consider that the men so imprisoned had usually no estate or property out of which they could pay
254
the aliment, or, if they had, it might be taken from them by the ordinary diligence of the law. Imprisonment did not oblige them to give up their property; and, on the other hand, it deprived them of the means of earning wages or a salary out of which they might otherwise be able to pay the aliment demanded of them. On these grounds, he thought, in the case of alimentary debts, a very good case had been made out for the abolition of imprisonment. The Select Committee decided on the general principle that it was desirable to abolish imprisonment for debt. And now he thought that the feeling of the House would be in favour of the principle being extended to those few remaining cases which were exempted in the Bill two years ago.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)wished to suggest, on the part of the Government, that the Bill should be read a second time, upon the understanding that by agreeing to that course the House was not assenting to the principle of total abolition of imprisonment for alimentary debts; but, on the contrary, that the Bill should be sent before a Select Committee, and that it should be entirely open to that Committee, or to the House upon its Report, to consider that matter. There were various points in the Bill as to which he should suppose there would be a very general assent—various improvements upon some obscure and technical legal proceedings, which would be quite inappropriate for being discussed in the House, but which were well deserving of consideration in the Committee. But the main principle of the Bill was that imprisonment for alimentary debts should be abolished. While he was perfectly alive to the importance of much that had been urged on that point, and had, like his hon. Friend the Member for Glasgow, had occasion to become acquainted with cases of great hardship in the administration of the existing law, he should not, as at present advised, feel disposed to assent to the total abolition of imprisonment in cases of that particular kind. He thought one matter well deserving of the consideration of the Committee would be, whether somewhat of a middle course between indefinite imprisonment—imprisonment that might practically become perpetual—and total abolition might not be adopted. He found an ex-

255
ample of such a course in the clause of the present Bill providing for imprisonment for four weeks for nonpayment of rates, and it might very well be considered whether some similar provision might not be made for the case of alimentary debts. He was afraid it was true there were persons who incurred the liability for the aliment of illegitimate children who had not, perhaps, much property, but who, from some source or another, found means to pay their other debts, and whom they could not reach, to make them fulfil their obligations without some such compulsitor as imprisonment. But it might very well be that by an imprisonment, either limited in duration, proceeding upon the order of a Judge, not upon the option of the pursuer in the action, they might get rid of the evils of almost perpetual imprisonment, and, at the same time, preserve the compulsitor, which might be useful, and almost necessary. He did not propose to argue out the question now; but merely indicated that in assenting to the course of the Bill being read a second time he desired that all these questions should be kept perfectly open; and they were very much more appropriate for being discussed in the Committee than in the House.
SIR R. ASSHETON CROSSsaid, he was very glad to hear the hon. and learned Lord Advocate put in his caution; because if they were to assent to the principle that imprisonment was to be absolutely abolished, he thought the poor women, who were the chief sufferers in the cases alluded to, might very often not get the remedy they were entitled to, and some screw was necessary in order to protect their interests. He asked the Home Secretary whether he had looked at the Bill carefully, so as to see whether it affected the law of England?
SIR WILLIAM HARCOURTsaid, he was assured by his hon. and learned Friend the Lord Advocate that the Bill was entirely confined to Scotland—not that he himself desired to express any opinion adversely to the diminution, to a great extent, of imprisonment for debts in England.
SIR R. ASSHETON CROSSsaid, that what he wished to be assured upon was, that if they passed this Bill for Scotland it would not be looked upon as an argument in any way for a similar measure for England.
SIR WILLIAM HARCOURTsaid, that a measure for a particular country did not advance argument in respect of applying it to another country.
DR. CAMERONassured the right hon. Gentleman that the law of Scotland was perfectly different in respect of this subject from that of England; and the proposed reform of the law of Scotland would not in any way affect the law of England.
Question put, and agreed to.
Bill read a second time, and committed to a Select Committee.

COMMONABLE RIGHTS BILL.— [BILL 23.]
(Mr. Cheetham, Mr. Bryce, Mr. Buxton.)

SECOND READING.
Order for Second Reading read.
MR. CHEETHAM, in moving that the Bill be now read a second time, said, that it dealt with the moneys paid by Railway Companies, &c., to Committees of the commoners. In the case of Tottenham Common, £6,000 was paid; but no one could make any use of the proceeds. A similar case occurred in regard to the Malvern Hills. The money paid was lying idle. The Bill proposed that it should be applied in improving the remainder of the common land, in defraying the expenses of proceedings for protection, management, regulation, and preservation of common land; in the purchase of additional land, or in the purchase of recreation ground. In order to ascertain the views of the commoners, it was provided that a meeting should be summoned on the application of a certain number of them, and the decision of the majority of those present should bind the minority and the absentees.
Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Cheetham.)
SIR WILLIAM HARCOURTsaid, he was very happy to support the Bill. He had consulted the Inclosure Commissioners, who said they were favourable to the Bill. But the Bill proposed to vest the land in the Inclosure Commissioners. The Inclosure Commissioners said they had never been incorporated for the purpose of holding land; and he would suggest to his hon. Friend that before he went further he should

257
communicate with them upon the subject of vesting the land rather in some other Trustees than in the Inclosure Commissioners.
MR. MORGAN LLOYDstated that in Committee he should propose Amendments to meet certain cases in which the provisions of the Bill would work injustice to owners of sheep-walks with defined limits.
SIR WALTER B. BARTTELOTfelt bound to say that the hon. Member who moved the second reading of the Bill (Mr. Cheetham) had made a statement that few in the House understood, and had neither shown the necessity for such a measure, or how the money was proposed to be applied. He referred the House to the provisions of the Bill without stating his views on them, and the reasons that induced him to put them in the Bill. The right hon. and learned Gentleman the Home Secretary was quite pleased with the provisions of the Bill, with the exception of one clause; but he did not enlighten the House at all with regard to the provisions of the Bill. Now, it might or might not be important, and in many cases it might be of use, as in the case, the only case, the hon. Member mentioned—that of the Malvern Hills; but the Bill went a great deal further, and dealt with property in a summary and off-hand way. It provided that at a meeting called, a decision should be taken by the largest number of people there, though those people might be people who owned a very small portion of right in the common. Yet they were to bind what might possibly be the majority of copyholders of the common and the lord of the manor, whether they were the largest representatives of property or not. They were, however, to give a binding decision for all time. That provision was a great defect, and would require very careful handling in Committee. The hon. Gentleman did not say whether the Bill would apply to commonable as well as common land. He mixed the two together. Commonable land absolutely belonged only to a certain number of owners, and must be dealt with in an entirely different way from common land. He was not going to oppose the second reading; but he did not think the Bill was so small as the Home Secretary and the hon. Gentleman thought it was. He thought
258
there was a great deal in the Bill which would require revision; and he hoped the Motion for going into Committee would be put down for some distant day, to enable those who were interested in these matters to consider the Bill.
Motion agreed to.
Bill read a second time, and committed for Tuesday 25th April.

BURIAL FEES BILL.— [BILL 24.]
(Mr. Brinton, Sir Alexander Gordon.)

SECOND READING.
Order for Second Heading read.
MR. BRINTON, in moving that the Bill be now read a second time, explained that he should wish it to be referred to the Select Committee appointed on the previous evening to inquire into the mortuary fees. His Bill was not framed in the interest of any one class, either of Churchmen or Nonconformists; but was meant to promote the interests of the whole community by regulating, equalizing, and reducing those burial charges which, in many cases, were of a very onerous character. It would deal not only with the fees for interment in old parish churchyards, but also with fees for interment in public cemeteries. The Bill would affect the question of burial charges and the question of fees for monumental inscriptions. It, however, did not seek to deprive the clergy of their control over inscriptions, or to interfere with the rights of existing incumbents. It might be described as a fair corollary to the Burials Bill; and in it it was proposed that no fee should be exacted except for services actually rendered. When the clergyman's time was taken up it should be paid for; but where no service was rendered, though the church and churchyard should remain in the hands of the clergyman, he should not be allowed to obtain fees for matters that cost him personally nothing. Life interests would be reserved. Notification of the charges to be made should be put up in a suitable place where all persons applying for interments could see what they had to pay. Very often fees were exacted according to the supposed circumstances of the applicant. The status of non-parishioners was not to be altered by the Bill. After what he had said on the previous night, I he would not unnecessarily occupy the

259
time of the House. He hoped that no opposition would be shown to the Bill, and that it would be read a second time.
Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Brinton.)
MR. J. G. TALBOT, in moving that the Bill be read a second time upon that day six months, said the Bill was objectionable, because it was, in fact, a disturbance of a settlement arrived at some two years ago, and was a Bill which might be called a Bill for the partial disendowment of the Church of England. The Burials Act was passed in opposition to the feelings of a great number of Gentlemen on that side of the House; but the decision of the House having been arrived at, he thought they might have been allowed some respite before the question was brought before Parliament again. The effect of the measure would be that certain pecuniary rights would be taken away from the clergy of the Church of England, who were still the guardians of the freehold of the churchyards, and that their control over the churchyards would be done away with. The hon. Member who had moved the second reading tried to gild the pill which he asked the House to swallow by providing that the measure should not affect the position of existing incumbents. This, however, did not in the least diminish the force of the fact that the Bill was a disendowing Bill. It would come into operation whenever a vacancy should occur in any benefice, and would, therefore, ultimately diminish the incomes of the clergymen of the Church of England by interfering with the present practice in connection with fees. He thought the 2nd section of the Bill was very objectionable. It proposed to enact that the fee for reading the Church of England Burial Service, applicable to cases in which the corpse was taken into the church, should be 2s. 6d.; but that it should only be 1s. 6d. in cases in which the corpse was not taken to the church. Surely there seemed to be contemplated in that distinction a system of first and second class burials. It seemed a questionable kind of arrangement that a Service in the church should be dispensed with because a poor parishioner could not afford a slightly higher fee. There was this further objection—that such a provi-
260
sion would legalize "lawlessness" on the part of the clergy, for, by the directions of the Book of Common Prayer, the body of every person over whom the Burial Service was to be read was supposed to be taken into Church. Nothing could be more inconvenient to the incumbent of a parish than that a churchyard anthority should have the power to fix for him a time for free burials; and he did not know what right people had to say that a clergyman should bury without the customary fee. Clause 6 appeared to give liberty to any persons to erect tablets, gravestones, monuments, or railings at their own will; and he had never known so sweeping a proposition made with so little ostentation. It was a matter affecting æsthetic considerations for churchyards, which had too often been neglected, and were now being turned into gardens and places of beauty. It would now be the more remarkable if gravestones and monuments were allowed to be erected without control. It would be a novelty in a churchyard to set up a board stating the fees, as required by Clause 7. Clause 9 introduced the odium theologicum, by providing that there should be no restriction to the free selection of a grave on account of the religious or other opinions of the deceased person. Had such a restriction ever been made? He never heard of Liberals being put in one part of a churchyard and Conservatives in another, or Dissenters in one part of a churchyard and Churchmen in another. It was one thing to appoint a Committee to inquire, as the House did last evening; but it was another thing to affirm the principle of a Bill by giving it a second reading, and to interfere in an uncalled-for way with existing arrangements as to churchyards.
COLONEL MAKINS, in seconding the Amendment, said, it was inconsistent to appoint a Committee of Inquiry, and then to attempt to legislate before that inquiry had been opened. The Bill had been described as a corollary to the Burials Act; but it seemed to him to go a great deal further than that Act. And, within two Sessions of the passing of that Act to remove grievances which some deemed imaginary, it was very early to bring in another Bill not dealing with difficulties of conscience, but touching the endowments of the Church

261
If it were anything at all the Bill was a Disendowment Bill, for although it preserved existing rights, it nevertheless cut off fees in future, which were an essential part of the clergyman's income where the endowment was small. There was no analogy between burial fees and baptismal fees, because the latter were payable in respect of a Sacrament of the Church of England, and, therefore, might be conscientiously objected to by Nonconformists. This was piecemeal disendowment. The question of the disendowment of the Church of England should be dealt with openly, and by means of a comprehensive scheme to be brought forward on the responsibility of the Government. Seeing that the whole subject of ecclesiastical fees had been referred to a Select Committee, he thought that the hon. Member should be content with the discussion that had taken place, and should withdraw his Bill.
Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. John Talbot.)
Question proposed, "That the word 'now' stand part of the Question."
MR. ILLINGWORTHremarked, that, after what had taken place in regard to the extension of public rights in these ecclesiastical matters, nothing could be clearer than this—that Parliament had made up its mind that no class of people in this country should be debarred of their civil rights on the ground of any ecclesiastical fancy or caprice. Although it might be admitted that in most cases clergymen were reasonable and considerate towards the poorer portion of the population, yet, unfortunately, there were many notorious cases in which clergymen had acted in a most inconsiderate manner, and, he would venture to say, in a wholly un-Christian spirit towards their parishioners, in order to exhibit that petty spirit of objection on ecclesiastical grounds which that House had so generally regarded as reprehensible. All the Bill did was to complete the work of the measure of his right hon. and learned Friend the Judge Advocate General (Mr. Osborne Morgan) of two years ago. Beyond question the tendency of public opinion in this country in regard to the Established Church was that the people's rights must be asserted and vindicated;
262
and it was too much to ask that in all the parishes of the country the parishioners should rest merely upon the goodwill of the clergyman. He was a public servant and State officer—[Mr.WARTON: No!]—and nothing was more obvious than that public servants were subject to public and defined regulations. Therefore the clergyman, whatever had been his position in the State in the past, must take his account, with the certainty that Parliament would not hesitate to define his true and legal position, so that his assumed privileges might not interfere with the rights of the public. He pointed out that, unless the Bill were read a second time, it could not be referred to the Select Committee on Ecclesiastical and Mortuary Fees which within the last 24 hours had been agreed to by the House. If it were then shown that there were objectionable features in the Bill, the House would by no means be committed to its main proposals.
MR. SALTmust acknowledge that he could not regard the question before the House as a very large question. It was simply this—should they read the Bill a second time and refer it to the Select Committee already appointed, or allow the matter to rest upon the Committee only? On the whole, he was disposed to agree with his hon. Friend who objected to the second reading of the Bill. He thought that hon. Members opposite should be content to wait until the Committee appointed to consider the question of Ecclesiastical Fees had made their Report before proceeding further in this direction. It was a most unusual course for any Party in that House to attempt to carry out their views at once by Resolution and by a Bill. He was not altogether sorry that a settlement of a vexed question had been arrived at by means of the Act of 1880; but he objected to the whole question being re-opened by a Bill like the present before two years had elapsed since the passing of that measure. There was a third reason why the Bill should not be read a second time, and that was that in reading it a second time the House committed itself to its principle. In a few years another Bill, a "corollary" of that Bill, might be brought forward, and the House told that in reading the Bill of 1882 a second time it had assented to the principle embodied in that future Bill. Besides, that Bill went beyond the scope of the

263
Resolution agreed to on the previous night. The Select Committee then agreed to was—
"To inquire into the Law which authorises the demanding of Mortuary Fees, and into the Ecclesiastical Fees levied by Ministers of Religion upon the occasion of Burials and the erection of Monuments in Cemeteries and Parish Churchyards; and to report to the House whether any legislation is desirable with a view to their regulation or reduction."
The Bill went into other questions than those into which the Select Committee was to inquire. It went into the question of the time of burial in the most awkward and difficult manner; and if he was to criticize the Bill, he should say that the clause relating to the time of burial was a very unfortunate, if not impracticable, clause. He thought the wisest course to adopt was to remain by the Committee which had already been appointed, and to put the Bill on one side, as he thought much good might come of the inquiry by the Committee. Before sitting down he would like to refer to two points. First, he objected to Clauses 6 and 9, which did away, if he read them correctly, with all the power of the authorities who had to deal with churchyards in respect to what monuments should be put in churchyards, where they should be placed, and what space they should occupy. Under those clauses someone who had no connection whatever with the parish—excepting parishioners' rights, which he fully acknowledged—might go in and say—" Please let me have three-quarters of the churchyard." He thought that must have been an oversight on the part of the draftsman of the Bill. Whoever the churchyard belonged to—whether the clergyman, or parishioners, or anyone else—they must have some authority; and the clause, in its present form, would do away with all authority, and did not substitute a new authority. His second point was rather a peculiar one. He had noticed for some years that Bills which were suggested for consideration on Wednesday afternoons always did one of two things—they either desired to take away from somebody something that belonged to them, in order to hand it to someone else, or they proposed to lay additional burdens upon someone. After a fashion, it might be argued that this Bill indirectly did both. It was proposed to take away the fees very
264
largely, and churchyards required to be supported. They had already taken away the church rates; so that if they took away the fees, one of two things must happen—either the churchyards must be entirely supported by the Church people for the benefit of others, or they must fall into disuse, and they must have parish cemeteries. But they could not create parish cemeteries without expense to the ratepayers; and if they were moving in that direction, then he would go further, and say that a great deal was to be said in favour of closing the churchyards and having parish cemeteries. But the great difficulty about it was the expense; and he would warn the House not to do that without knowing what they were about, and seeing where they were going to. Let them understand that in closing the churchyards more or less they had the sooner or later to go to the ratepayers. It might be perfectly right; but do not let them do it without distinctly saying and knowing that such a change was proposed.
THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)said, he was more disposed to agree with the earlier than the later remarks of his hon. Friend who had just spoken. His hon. Friend treated the matter at first as a small matter; but in his hands it soon became a burning question. He (Mr. Osborne Morgan) would call the attention of the House to the Resolution appointing the special Committee to which he assented on the previous evening, the words of which were that the Committee was to inquire whether any legislation was desirable, with a view to the regulation or reduction of ecclesiastical and mortuary fees. As a matter of fact, this Bill both regulated and reduced them. The ground on which his hon. and gallant Friend (Sir Alexander Gordon) proposed to do so, and on which he, on the part of the Government, agreed to the proposition, was the extreme uncertainty and the absolute want of uniformity which existed in regard to this question of mortuary and burial fees. Burial fees were authorized neither by the Common Law nor by the Canon Law. The clergyman must rest his payment upon the custom of the particular parish, and the result was that they had different fees for every parish, and different fees in some cases in the same parish. The Burials Acts intro-

265
duced a second system, and an Act passed about three years ago another system, so that they had got confusion worse confounded. With regard to the Burials Amendment Act, 1880, he thought the right hon. Member for the University of Cambridge (Mr. Beresford Hope) would agree with him in saying that there was never an Act of Parliament which had so completely falsified the predictions made about it at the time it was passed. He believed that the admirable result of its working was due in a great measure to the excellent spirit in which it had been received by the clergy of the Church of England. But that excellent spirit had not been universally shown. When the amount of fees depended upon custom, and there was no fixed law, there were cases in which the clergyman charged whatever he liked or whatever the parishioners could pay. There had been cases since the Burials Act in which the clergyman had demanded one fee for the burial according to the Service of the Church of England, and another fee if the burial took place under the Amendment Act of 1880. That was what had prompted many persons to give their support to the present Bill. With this explanation, he came to the Bill itself; and it seemed to him that it did not, except in one respect, go beyond the Resolution passed for the appointment of a special Committee. This Bill both regulated and reduced the fees; but it did not take them away altogether. From his own experience the effect would be, in some cases, so far from reducing the incomes of the clergy, to very considerably increase them. There was no such thing as a burial fee which could be enforced in most parts of Wales. The custom there was to make an offering. There was one clause in the Bill which certainly did travel beyond the limits of the Resolution passed the previous evening, and that was the 9th clause. That clause had reference to the kind of religious service to be held at burials. But a provision of that kind had become absolutely necessary. His hon. Friend the Member for the University of Oxford (Mr. J. G. Talbot) had said that he never heard of a ease where a clergyman was influenced in his conduct by the religious opinions of the deceased or his relatives. But everyone knew of a recent case in which the clergyman re-
266
fused to allow a Dissenter to be buried by the side of his deceased wife, who had been a Churchwoman, simply because he had been a Dissenter. With regard to this Bill, he wished to point out that it could not be referred to a Select Committee unless it was read a second time. The reasonable thing was to read the Bill a second time, and then allow it to go before the Select Committee which had charge of the subject.
MR. BERESFORD HOPEfelt obliged to refer to the good-humoured manner in which his right hon. and learned Friend (Mr. Osborne Morgan) had referred to the operation of the Act of 1880. He was not to be drawn out into expressing an opinion as to the failure or success of that Act. But assuming that all the prophecies about the Act had failed—which, however, was only a supposition—he had always contended, and would contend, that it was the pertinacious and unswerving resistance to that Act which took away its fangs. If the opponents of that measure had allowed themselves to have been won over by the dulcet notes of his right hon. and learned Friend, the Church would at the present time have been in a highly disturbed state. He had seen many curious situations in that House; but never a more curious one than had that day presented itself. The night before a Select Committee on the question had been agreed upon without prejudice to future action, and within 24 hours a Bill was brought on for a second reading which proposed to solve the question in a particular way, making particular and detailed provisions in respect of fees and other matters. Of all the corrupt practices in respect of legislation which had come into use of late years in that House, he thought the practice on that occasion was the most corrupt. Nothing could be more indefensible than the growing practice of bringing the second reading of a Bill into the category of things indifferent, and thus encouraging crude attempts at legislation by private Members. It was an extraordinary thing that the name of the Mover of the Resolution was the second name on the back of the Bill, while the Seconder of the Resolution was the same person who moved the second reading of the Bill, so that they reminded him of a firm which should be known in town as Dodson and Fogg, and at Liverpool as Fogg and Dodson.

267
The Bill would make a clean sweep of the right of the parishioner to interment in the parish churchyard, because it would introduce uniform fees for all, which would destroy the special rights of the parishioner. [Mr. OSBORNE MORGAN: The Bill does not touch the right of burial.] His right hon. and learned Friend could hardly have read the Bill when he contended that it made a difference between a funeral conducted by a clergyman and one by any other person, interring one at 2s. 6d., and the other at 1s. What it said was that the fee for the full service—including bringing the body into church—was to be 2s. 6d.; and that for the mutilated service only in the churchyard—a bad legacy of an age of indifference—was to be 1s. 6d. He could not too strongly protest against the encouragement given to the latter corruption. As to the provision for doing away with the clergyman's fees on monuments, it was the exacting of high fees that had operated as a check upon the introduction into churchyards of unsightly monuments; and if that check were removed they would have an increase of offensive constructions and inscriptions. Everything that could fairly be asked had been conceded by the appointment of the Committee; and he, therefore, trusted the House would not assent to the second reading.
SIR WILLIAM HARCOURTsaid, no reason at all had been shown why the Bill should not be sent to the Select Committee. The House had determined that the subject deserved inquiry; that was an expression of opinion that there was a grievance, and it would assist the Committee to have before it the method proposed for redressing the grievance. It was quite in accordance with Parliamentary practice to read a Bill a second time for the purpose of referring it to a Select Committee, and this was substantially what would be done on the subject of the Law of Distress; a Committee had been appointed, and there would be referred to it two Bills, one proposing abolition and another submitting an alternative scheme. There was no ground for the notion that they prejudiced a case by sending to a Committee a scheme for dealing with a practical grievance. He would say nothing of the merits of the Bill; but would leave the Committee to judge of them: The right hon. Gentleman (Mr.
268
Beresford Hope) said that the reason why the Burials Act had not done harm was because it had been resisted so long. No doubt it did take a long time to remove the alarm of the right hon. Gentleman and those whom he represented. After declaring for 10 or 12 years that the Church would be destroyed, the thing was done, and the Church had not been destroyed at all. They had to be treated like horses of uncertain disposition and temper, which felt great alarm at the first sight of a strange object; but which, having been frequently taken up to it, and having by degrees found that it was not mischievous, entirely overcame their first alarm, and became as good tempered as the right hon. Gentleman always was.
SIR JOHN MOWBRAYcontended that the arguments of the right hon. Gentleman the Home Secretary were irreconcilable with each other. It was undoubtedly in accordance with Parliamentary practice to read a Bill a second time for the purpose of referring it to a Committee. But that was precisely what had not been done in the ease cited by the right hon. Gentleman. A Committee had been appointed on the Law of Distress. The House had two Bills before it—one had not been read a second time, and was never likely to reach that stage; the other had been read a second time, but was not referred to the Committee. He thought that the House had great reason to complain of the conduct of the Government in this matter. Most sincerely and cordially he wished to recognize the conciliatory and able manner in which the Judge Advocate General (Mr. Osborne Morgan) conducted the Burials Act in its passage through the House; but he also claimed credit for the loyal way in which the clergy of the Church of England had accepted it. With every disposition on the part of the Nonconformist papers to make up grievances there was not one case in 1,000—not 15 in all England and Wales—where any real ground of complaint against the conduct of clergymen with reference to this Act could be shown. After a Committee had been appointed last night without objection on that side of the House, it was not fair to come down that day and insist upon the second reading of this Bill. Everything that could with fairness be asked had been attained by the

269
appointment of a Committee, and this Bill could only be necessary as an instalment—a first step in what had been called a burning question—the disendowment of the Church of England. He could not conceive a more offensive term by which to designate a clergyman than that used by an hon. Member below the Gangway (Mr. Illingworth)—namely, a "State official." The clergy were in no sense "State officials." They did not derive their order from the State; they were neither appointed by nor were they paid by the State. "When they heard language of that sort used in favour of the Bill, coupled with the fact that those who supported it had already obtained all they could fairly desire, he considered that pressing the Bill to a second reading was nothing more than simple tyranny and insult to the Church of England.
MR. LYULPH STANLEYsaid, that the right hon. Gentleman (Sir John Mowbray) was singularly unfortunate in maintaining that the clergy were not State officials, when they had seen within a week reports in the newspapers of a clergyman in Derbyshire who had been compelled, by a peremptory mandamus, to register the burial of a Nonconformist in his parish after having tried every means in his power to defeat the law imposed upon him as a State official. The clergyman was distinctly a State official; therefore, liable to the most severe penalties if he made false entries in his registers, and as long as the Church of England remained an Established Church he would remain an official of the State. There had been several discoveries made of mistakes in this Bill which had no foundation, and among them was pointed out the case of hideous monuments. Now, there was nothing in the Bill for permitting any monuments. All that was done in the Bill was the abolition of the right to receive a fee for the erection of a monument. The legal course was to obtain a faculty for the erection of a monument. The clergyman himself had no right to grant permission for the erection of a monument; he might, by custom, have power to receive a certain fee. The Ordinary could grant a faculty in the teeth of any opposition. He would put it to the House whether it was more likely that under the Bill there would be more chance of having
270
the churchyards disfigured with large, sprawling, vulgar monuments than there was now? At present 99 out of 100 of the monuments were erected without any faculty at all. It was done by an agreement with the clergyman; and the more liberal the donation the more likely was the clergyman to acquiesce in the erection of the monument. It was necessary, as this Bill proposed, that there should be some check upon the discretion of the clergyman in allotting places for burials. When they were told that there were no grievances it was remarkable that there should be two such cases as that in Derbyshire, and the case of the incumbent at Helmsley, who not only refused to bury a Nonconformist by the side of his wife in consecrated ground, but went so far as to force the mourners with the body to enter by a side gate, because, he said, the feelings of the Church of England people would be outraged by the body of a Dissenter passing over the consecrated ground. But there were, no doubt, many other cases of oppression and submission which had not come to light; because the Dissenters, being of comparatively humble station, were not in a position to quarrel with the parson and the squire. It was necessary, therefore, to have some protection in those cases. The Burials Act recognized the right of every parishioner to be buried in his own churchyard; and this Bill was consequent upon it, and it would be necessary to vest the management of the churchyard in impartial hands. It was quite true that a great many of the clergy had honourably acquiesced in the new state of things, yet there had been no measure the opposition to which was more distinctly ecclesiastical than the Burials Act. If they wanted to get rid of the bickerings of parochial jealousy these matters should be taken out of the control of the clergy, who had imported so much bad feeling into their opposition.
MR. STUART-WORTLEYreminded the hon. Gentleman that the Burials Act was first passed in the House of Lords by a majority of the occupants of the Episcopal Bench. If the House of Commons in 1880 had expected that the Burials Act would be followed by such a "corollary" as this it would not have given its assent to it. In being invited as a matter of Parliamentary precedent to consent to the second reading of this

271
harmless little Bill, they were asked to consent to a larger measure of disendowment than its advocates seemed to realize. The Home Secretary said they ought to read the Bill a second time because it was the Parliamentary custom to do so; but this was one of the instances which proved that there were cases in which even a Parliamentary custom might have inconveniences. If a Select Committee was to examine the Bill hon. Members who supported it would have an ample opportunity of proposing it as a draft Report; and if the Committee accepted it verbatim et literatim that Report would come to the House, and the House could give to the principle a consent which had not been obtained for it in the dark. He used that expression advisedly; because, as he remarked last night, the speeches which had been made only dealt with one side of the subject, and there was a strong probability that material facts on the other side would be elicited by the inquiry. He therefore opposed the second reading.
MR. THOMAS COLLINSsaid, that no doubt the clergy were State officials; though it was, perhaps, an offensive way of speaking of their position. In the main, they were like the ministers of any other denomination—a religious body—and accidentally they fulfilled certain functions cast upon them by the State. But what they had to consider was this Bill, and he maintained that the Committee appointed on Tuesday night had the amplest powers to consider the best mode of regulating burial fees. He thought many of the clauses of the Bill went in an entirely wrong direction. For instance, he thought no provision should be made whereby 2s. 6d. could be paid for a first-class funeral with a full service, and 1s. 6d. for a second-class funeral with a mutilated service. The Bill, being full of demerits, on what ground should it be read a second time and sent to the Committee, whom it must bias in a wrong sense?
It being a quarter of an hour before Six of the clock, the Debate stood adjourned till To-morrow.

MOTIONS.

  PUBLIC HEALTH (SCOTLAND) ACT AMENDMENT BILL.
  On Motion of Dr. CAMERON, Bill to amend "The Public Health (Scotland) Act, 1867,"
  272
  ordered to be brought in by Dr. CAMERON, Mr, JAMES COWAN, and Mr. MACKINTOSH.
  Bill presented, and read the first time.[Bill 115.]

  MILITIA STOREHOUSES BILL.
  On Motion of Mr. HASTINGS, Bill to amend the Law relating to the application of moneys arising from the sale of Militia Storehouses, ordered to be brought in by Mr. HASTINGS and Sir MATTHEW RIDLEY.
  Bill presented, and read the first time. [Bill 116.]
  House adjourned at ten minutes before Six o'clock.

Preamble
Their Lordships met at Two o'clock;—

MINUTES.
PUBLIC BILLS—Royal Assent—Consolidated Fund (No. 2) [45 Vict. c. 4]; Slate Mines (Gunpowder) [45 Vict. c. 3]; Pilotage Provisional Order (Tees) [45 Vict. c. i].
And having gone through the Business on the Paper, without debate—
House adjourned at a quarter past Two o'clock, till To-morrow, half past Ten o'clock.