Sitting of 3 April 1889

Preamble
An Asterisk at the commencement of a speech indicates revision by the Member.
ORDERS OF THE DAY.
  TRUST FUNDS INVESTMENT BILL. (No. 6.)

    SECOND READING.
    Order for Second Reading read.
    *MR. COZENS-HARDY: It is a remarkable fact that until the year 1859 there was absolutely no Statute which dealt with the subject of Trust Investments, and Lord Eldon pointed out, a good many years ago, that it was necessary for trustees to follow, as they best could, what was the rule of the Court of Chancery. It was not until this century that trustees were authorized to invest in mortgages, and in 1859 Lord St. Leonards introduced a Bill, by which the power of trustees was extended to Bank Stock and East India Stock. Further legislation followed in 1860, and in 1867 an Act authorized trustees to invest in any Stock the interest of which was guaranteed by Parliament. In 1871 Parliament decided that investments might be made in Stock issued by the Metropolitan Board of Works, and in 1882 there was a further intervention by Parliament in the Settled Land Act, which authorized trustees to invest capital in what I may call, speaking generally, first class Railway Debenture Stock. In 1884 the late Lord Advocate brought in a Bill, which applied only to Scotland, but which gave a wide power of investment to all Trust Funds in Scotland. There has been an enormous increase in the amount of
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    Trust Funds, and no one but the Chancellor of the Exchequer can have any correct idea of the rapidity with which these funds are increasing. I believe they are increasing at the rate of millions a year, and side by side with that fact, the old-fashioned Trust Investments have diminished, or become undesirable. Government securities, happily, have been to a considerable extent paid off, and, quite apart from that fact, they have been largely taken up by the Court of Chancery and the Savings Banks authorities, who hold Consols to a very considerable amount. As to mortgages, they are not as much favoured as they were, on account of the great depression of landed property. Legislation is required in order to make the law of England and Ireland uniform; in the next place, to make it more simple, and, thirdly, in order that trustees may be allowed a wider range of investment than they have now. There is no doubt that the fall in the value of money has worked with extreme hardship in a great number of cases. Funds have been set apart in the belief that the interest produced from them would be an adequate provision for a widow or a child; but in many instances the investments are now unsatisfactory, and it is not unreasonable that Parliament should give a wider range and a wider choice. This is, no doubt, what the creator of the Trust would himself have done, could he have foreseen the events which are now happening. In its main features the Bill does not come before the House without some authority. Last Session the House of Lords passed some clauses in the Trustee Bill which agree with some of the provisions of the measure, and Lord Salisbury, on the Third Reading, stated that it was desirable to pass the clauses which gave to

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    trustees an increased power of investment, and that he should be sorry if the Bill were rejected. It came then before the Standing Committee, by whom it was passed, without an adverse opinion being expressed against it. The present measure deals with Trust Investments very much on the lines of the Bill of last year. It consolidates all the existing law, repeals all the old enactments, and puts them in one section under separate heads; it enlarges the list of securities so as to include first-class Debenture Stock authorized by Parliament and the annuities granted by the Indian Government; it also authorizes the inscribed stock of Corporations and County Councils; and it deals with the rights and duties of trustees in the matter of the purchase above par of Stocks which are redeemable at par. It is in every way important that some law should be laid down to govern the action of trustees in these matters. At least they are entitled to know what their position is, and they should not be left to the risk of having a Court of Law declare that they have exercised their discretion in a wrong way. There are two securities that are not included in the Bill—the Colonial and the Irish Tramway Securities. Colonial Securities raise a question of great interest and importance, but it is a question which, if necessary, can be raised in Committee and there dealt with. Personally, I did not feel myself at liberty to introduce it into the Bill. The same remark applies to the Irish Tramways Stock. It is a question in which many of the Members for Ireland take a deep interest; but it is a small question in amount, and can easily be dealt with in Committee. There is one other matter. I may be asked how I propose to deal with old Trusts and with Trusts where there is an express limitation as to the nature of the investment. It is not proposed by the Bill to override any express provision in the Trust, but unless there is an express provision the trustees are to have power to invest the trust money in accordance with the provisions of the Bill. I do not suggest that it is a perfect measure. It is a measure that will require, and, if it is read a second time, will doubtless receive considerable discussion; but I trust I have satisfied the House that it is a matter which is
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    ripe for legislation, and that it is a matter with which the House of Commons ought to deal. I ask the House, in moving that the Bill be read a second time, to recognize in it, at least, an honest attempt to grapple with a difficult question.
    Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Cozens-Hardy.)
    MR. A. O'CONNOR: I do not for a moment pretend to argue that there is no need for some Bill relating to the Irish law of investments. Not long ago Mr. Justice Kay declared his conviction, derived from long experience, that there was great need for a radical reform of the law in regard to Trusts. The hon. and learned Gentleman who has moved the Second Beading of the Bill sees very clearly the necessity for some kind of amending Act in regard to one part of the question, but he only touches a very small portion of one side of it; and he admits that, even with regard to that small portion, he has left out a not inconsiderable part. He suggests that the Bill may be amended in Committee in the direction of the enlargement of the powers which it proposes to confer; but, while taking care of the trustee, the hon. and learned Member loses sight altogether of the beneficiary. These Trust Funds are increasing every year. There are many millions of property in the hands of trustees in regard to which the people for whose benefit the Trusts were executed and for whose benefit the trustees have accepted the duties of trustees have practically no information or control. To bring in a Bill to amend the law relating to Trusts, to enlarge the power of trustees, to extend their discretion, and to minimize their responsibility, and at the same time to leave unprotected the interests of those who are to benefit by the Trusts, certainly seems to me to be a patchwork and niggling way of dealing with the question. The Bill has evidently been drafted by someone skilled in the drafting of Bills, but it is equally apparent that it has been drafted hastily; and I fear that, if we read it a second time and take it to a Committee, the only result will be a considerable waste of time. It will either be rejected, or it will be so imperfectly amended that it

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    will do more harm than good. The measure of the hon. and learned Gentleman is imperfect and ill-digested; and it is undesirable that it should be allowed to stand in the way of other important questions which urgently demand the consideration of Parliament. The second Act of Lord St. Leonards practically gave everything the Bill of the hon. and learned Member desires to effect, because the 11th section provides that trustees having power to invest in Government or Parliamentary securities may invest in any other securities in which funds under the control of the Court of Chancery may be invested. From time to time the powers of trustees in this respect have been considerably enlarged, and last year the hon. and learned Gentleman brought in a Bill upon the lines of the present measure. That was a remarkable Bill. It protected trustees who had committed a breach of trust at the instance of the beneficiary of the trust, oven if she was a married woman, and it further gave trustees the benefit of the Statute of Limitations. One would think that ought to have satisfied the hon. and learned Gentleman. But he comes again this year in the same way as last, and he brings in this Bill, which, as I said before, is fragmentary. Even putting aside the question with which he has undertaken to deal, he mentions in the Schedule a number of different Acts dealing with Trust Funds, but he does not say a word about a number of other Acts. Now, in dealing with Colonial Stocks or Irish Tramways, why, if he includes all these Acts I have mentioned, does he not include 34 & 35 of Victoria, chap. 27? If this was a Consolidating Bill there would be something to say for it; but were this Bill passed, the whole of our law would be distributed over a number of different volumes, and would require consolidation just as much as ever. There is another Act, four years later than the one I mentioned, by which trustees who are authorized to invest in the Debenture Stock of any railway or any other company may invest in Debenture Stock named under the Act—that was, the Local Loans Act of 1875—giving a further enlargement of the powers of trustees. There was there, of course, the same limitation that the hon. Member says he wishes to put in this Bill—
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    namely, that the investment should not be made if there is a contrary intention expressed in the deed of trust. That goes as a matter of course; you find that in every case. Again, in 1880, there was an Act further enabling trustees to invest in bonds or debentures of Indian railways, or in securities of the United Kingdom. Why does the Bill of the hon. and learned Gentleman not propose to deal with those Acts, and others which I have not had time to note down? He is dealing in an unequal and fragmentary sort of fashion with a matter which, if dealt with at all, ought to be dealt with in a large and comprehensive manner, after full consideration of the circumstances of the case. Then, again, with regard to the hasty drafting. There is a Definition Clause put in the first section, and in it we have such terms "as the purchase of freehold ground rents or fee farm rents or rents reserved on leases for lives renewable for ever." These are securities which the hon. and learned Gentleman desires trustees always to be empowered to possess. If freehold ground rents are to be recognized as proper investments, why not improved ground rents? Then, again, with regard to leases for lives renewable for ever. This is a kind of holding, or interest, which exists very much more extensively in Ireland than in this country, but the hon. and learned Gentleman seems to treat them, in the case of Ireland, as fee farm rents. Only three weeks ago this House decided that it would not read a Bill a second time because it purported to deal with one class of prisoners, while another class of prisoners was not dealt with. By parity of reasoning, inasmuch as this Bill deals only with certain interests, while there are left out other interests more important and more numerous, I do think the House ought not to consent to the Second Reading. There are a great many different kinds of trustees—some who may be allowed almost unlimited discretion, and others of a different character. There is the honest trustee who suddenly dies, leaving his accounts in a muddle. There is the easy-going trustee, who leaves everything to his co-trustee; there is the speculative trustee, and the fraudulent trustee. With regard to each of these four trustees, what is the protection which

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    the beneficiary has now? It is perfectly true that in a case of breach of trust he can take his remedy in the Courts of Chancery. But what satisfaction is that to a beneficiary who has had reason to suppose that his property was in a perfectly healthy condition, and in the hands of a perfectly intelligent trustee? The very uncertainty of trusts now leads to heart burnings and to litigation, which always costs a great deal of money. It is perfectly true, also, that a cestui que trust, if he has reason for doubt, can get an injunction. But that is almost as unsatisfactory and expensive as bringing an action for actual breach. That is not what you want. What you want is to provide some machinery by which there may be a constant check upon the trustees in the investment and use they make of the funds placed at their disposal. I wish, when the hon. and learned Gentleman referred to Amendments which might be made in Committee, he had expressed his willingness to accept some Amendment by which periodically the trustees would have to tell the beneficiaries how the funds really stood on which they depended for subsistence. Under the circumstances, and for the reasons I have mentioned, I beg to move that the Bill be read this day six months.
    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. Arthur O'Connor.)
    *MR. TOMLINSON: It is with some reluctance that I have come to the conclusion that it is my duty to support the Motion that the Bill be read a second time this day six months. I admit that the Bill deals with a subject of great importance. I concede the principle which underlies the Bill of my hon. and learned Friend—namely, that trustees should be allowed as much latitude as may be possible in investing their Trust Funds consistent with the safety of the funds. But I feel very strongly that we ought never to lose sight of the fact that the safety of the Trust Fund is the first consideration. I believe our first duty is to see that in any changes which are made, nothing is done to impair the security of the funds on which widows and orphans rely. There
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    are two classes of cases within the purview of this Bill. The first is where the creator of the Trust has given no directions as to the investments. The second is where such directions have been given less wide than the provisions of the Bill. If that second class had been concerned only this Bill would hardly have been introduced. I take it that the principal object of the hon. and learned Gentleman is to deal with those cases in which no express directions have been given for investment. But where directions of a limited character have been given we ought more especially to keep within the strictest bounds of absolute safety. We have, further, a right to ask that those who desire to alter the law should make up their minds what is the alteration of the law required. This is an attempt to separate the sheep from the goats and to divide investments into two kinds and to say that all the investments which we put on this side are safe, and that all other investments cannot be looked upon as safe, and are, therefore, excluded from the favoured list. And I say we have a right to expect that when distinguished and competent adviser comes forward with proposals dealing with this subject there should be an element of finality and completeness in the proposition they offer for our consideration. Now, comparing this Bill with the clause in the Liability of Trustees Bill of last Session, I find that some securities were included in that which are not in this Bill, and vice versâ. The hon. and learned Gentleman has alluded to the reasons which actuated him in leaving out of this Bill a very important element that was in the Bill of last year—namely, Colonial Securities. But I think he sat down without leaving upon the House any definite impression as to what his opinion was with reference to including or excluding these securities. He says it is a matter for the Committee. Then we have some securities introduced for the first time under the head J., which seem to require some fuller explanation of Clause F. than he has given. What reason is there for naming these securities and omitting others of a similar character? We begin, then, with great difference of opinion among competent persons as to what ought to be introduced into this Bill. This measure will go to some form of Committee, and

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    what will be the consequence? The question of what Stocks are to be introduced will be settled one way or the other. Then in some future year someone will come to this House and say—"You have admitted securities which are of a doubtful character, but I have here a security which is equally good. Whatever reasons there are for including Colonial or other Stocks belong equally to this security, and I shall bring in a Bill and claim to have the law altered so as to introduce my security." I ask whether it is in the interests of Trust Funds that the question of what fund the trustee should be enabled to invest in should be left open to successive efforts at legislation? I contend that, whatever provision we make, it ought to contain the elements of finality and completeness. I should like to test the question of safety with reference to one or two of the objects which are put in the Bill. I take the case of the nominal or inscribed Stock of municipal boroughs—I leave out the question of County Councils as pertaining more to the future. Will anyone say, who knows the condition of municipal boroughs at the present time, that a Stock of that kind is necessarily a safe investment? The security for the Stock is the borough rate. Many boroughs borrow very largely, and the larger the debt the higher will be the rates. The amount of the rate is very often an important element in the prosperity of a borough. There may come a time when the burdens are too heavy to bear, at any rate when some Corporation Stocks may be immensely depreciated in the Market. I venture to think you could not put down Municipal Stock as offering a security unimpeachably safe. It is said there is a precedent for this in the case of Metropolitan Stock. But that is a case sui generis, because the provision, enabling the trustees to invest in that Stock was inserted in the Bill by which the Stock was created, and Parliament had the power of defining the condition on which the money should be raised, and all the other circumstances which go to the consideration whether it is a safe security. Then there is the other case of freehold ground rents and fee farm rents. It is true that the conditions on which
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    alone by this Bill trustees are allowed to invest are such as in an ordinary case would make a safe investment. But there are cases in which the conditions stated in the Bill afford no criterion of the safety of the investment. A case came recently under my notice in which I found that a ground-rent, which satisfied all the conditions of the Bill, was far from being a satisfactory security. If there are these objections to the Bill, then I think we should very carefully consider whether we ought to read it a second time; for I think we ought to even err on the side of leaving out a safe security rather than allow a doubtful one. I must confess I viewed with considerable alarm the discussion on the clause of last year's Bill in this House in Committee last year. It seemed to me that many Members entirely left out of sight the safety of the money. Some hon. Members seem to me not to appreciate at all the object of that Bill. The tone of the debate was this—"Let us be as generous as we can; let us include as many Trust Funds as we can, to give a wide scope of investment to trustees." It is that kind of vicarious generosity which is so prevalent now that seems to indicate to me a point of danger in passing a Bill of this kind through Parliament. Now, Sir, having expressed my desire to extend the power of the trustee as far as can safely be done, it is only right that I should say a word or two as to my alternative to the present Bill. The alternative I would suggest is, to proceed on the lines on which the extension of the trustees' powers of investment have already been effected by allowing all trustees to invest in securities on which cash under the control of the Supreme Court is allowed to be invested. If any further extension is required in the powers which were originally vested in the Court of Chancery, I would allow anyone interested in any particular security to go before the Court and produce such evidence as might satisfy a judicial body that it is a proper fund in which trust money can be invested. I do not think we have any reason to doubt that that power would be carefully exercised; and in cases where those who have the control of any particular investment could not satisfy an im

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    partial judicial body, it would be far better that, even if the proposed investment were a safe one, it should be left out of the list than that the risk should be run of putting trust funds into an insufficient security. I beg leave to second the Amendment.
    MR. F. MACLEAN: The Bill now under discussion is to my mind an important beneficiary measure, and one that will be watched by every trustee in the country. The speech of the hon. Gentleman who has just sat down seems to me to have been one that would have been better addressed to the Committee stage of the Bill, than to the Second Reading. What we have to consider is, the question of principle involved in the Bill; and that question is this: whether wider powers of investment than they now possess should be given to trustees by this House. In endeavouring to arrive at a conclusion on this question it is not immaterial to see what was the past policy of Parliament in this direction. In old days—the days of Lord Eldon, for instance—it used to be thought that the only safe investment for trustees was Consols or Government securities; bnt as trade increased, the policy of Parliament has been materially to increase the power of investment on the part of trustees. This is clearly exemplified in the five Statutes mentioned in the Schedule of the Bill, which it is proposed to repeal merely for the purpose of re-enacting all the Acts of Parliament under which Trust Funds may be safely invested. That is the principle, and the only objection has come from my hon. Friend opposite and the hon. and learned Gentleman below the Gangway. As to the former, he admitted that the widest latitude should be given to trustees in the matter of investments, assuming that they were of a safe character.
    *MR. TOMLINSON: What I said was, as great latitude as could be given, provided always that the condition of safety was regarded as the first consideration.
    MR. F. MACLEAN: I agree with the hon. and learned Gentleman, who said that the first thing to be considered in relation to all Trust Investments is the safety of the Fund. If you look through the Investments mentioned in the Bill, I venture to say that most of them are of a sound character.
    THE CHANCELLOR OF THE EXCHEQUER (MR. GOSCHEN,): Not all.
    MR. F. MACLEAN: I am obliged to the right hon. Gentleman. What I said was "most of them," not all; and if the Bill gets into Committee, there are some of the Funds mentioned in which I think it would be advisable not to authorize trustees to invest; and there are some that are not mentioned—possibly Colonial Securities—in which it might be advisable to authorize trustees to invest. I think, however, that, taking the Investments named as a whole, they may be regarded as safe investments of a first-class character. I do not propose at this stage of the Bill to go into detail with regard to the Investments, because those matters will be more properly discussed in Committee; but I would point out that my hon. and learned Friend opposite has made a suggestion which I think would be a very unfortunate one for the trustees if it were acted upon. He says in substance that it would be better, instead of laying down in statutory enactments the securities in which trustees may invest, that trustees should have power to go to the Court of Chancery and ask its sanction to particular investments.
    *MR. TOMLINSON: That was not the suggestion. What I intended to suggest was that where the proprietors of the funds thought they were good investments they might be allowed to go to the Court and satisfy the Court that those investments were good.
    MR. F. MACLEAN: That is in substance what I have said, and I think it would be a most lamentable thing to give the trustees that power. Again and again in my experience have I seen small trust funds, when they come into the Chancery Division to ask for a change of investment, swallowed up by costs to the extent of half a year's income.
    *MR. TOMLINSON: I do not say that the trustees should go to the Court, but those who have the control of the funds, such, for example, as a municipality.
    MR. F. MACLEAN: I am only dealing with the alternative suggestion of the hon. and learned Member. The hon. Member for Donegal (Mr. A. O'Connor) took exception to the Bill as one which was not for the benefit of the

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    beneficiaries. With all due respect for the hon. Gentleman's opinion, I submit that the whole object of the Bill is the benefit of the beneficiaries. I hare no doubt that if those persons who are in the position of trustees were acting for themselves, their inclination would generally be to invest all the funds at their disposal in Consols so as to get rid of any responsibility that might otherwise attach to their action, and I say that the Bill is conceived, not in the interests of the trustees, but entirely in the interests of the beneficiaries. The fact has been alluded to that there is an enormous increase in the trust funds of the country, and it is impossible to avoid the conclusion that if the cestui que trusts were consulted on the point there would be not a few of them in favour of the suggestion that means should be given to them of making investments of a first class kind. On the grounds I have put before the House, I trust it will give a Second Reading to the Bill, leaving it open to the House at a later stage to say what should be the nature of the investments in which trustees should embark.
    *THE FIRST LORD OF THE TREASURY (Mr. W. H. SMITH,): I think, Sir, that the House ought to approach this question with very great deliberation. The Bill proposes to give to trustees powers which the men who create the trusts had no conception whatever would be given to trustees. A person who creates a trust could not have foreseen that Parliament would interfere and say that powers not expressly forbidden should be given to the trustees. When he gives directions, he would naturally suppose that those directions would be carried out faithfully by the trustees and would not be interfered with by any ex post facto Act of Parliament. The hon. and learned Gentleman who moved the Second Reading said the object of the Bill is to give to trustees a wider range than they are at present allowed for the investment of property, and he justified it on the ground of the fall in the value of money, which has inflicted great hardship on the cestui que trusts. Undoubtedly there has been a very great fall in the value of money, but that has affected to a much larger extent trusts created during the last four or five years, during which the
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    fall in value has occurred, than it has affected trusts created many years ago As far as Consols are concerned, the hon. Member was doubtless accurate in his description of the hardship which has been incurred, but if the hon. and learned Gentleman carries his memory back he will find that investments made 40 or 50 years ago, or even 20 years ago, and which had anything of a permanent character, produce almost the same income now as they produced when the investments were effected. The capital sum invested in this property is of much greater value, but the income derived from the trusts is nearly the same as it was at the time of their inception. The object of the present measure is to afford facilities for the investment of trust property in securities of a first-class character, and the hon. and learned Gentleman who has just addressed the House has said it will be watched with the greatest interest by sanguine beneficiaries in all parts of the United Kingdom. There rests the danger of legislation of this character. There is undoubtedly throughout the country a very great desire on the part of persons who possess limited incomes that their trustees should be allowed greater facilities for investment, in order to get a higher rate of interest. I have a recollection of one of the recent periods of excitement, when clergymen, professional persons, and widows were induced to invest in speculative securities which hailed from Honduras and other parts of the world. Those investments were, however, most unfortunate in their results. Therefore I would recommend Parliament to be exceedingly cautious in dealing with a measure of relaxation of this character. I think there is a very great danger in raising expectations which certainly cannot be realized with safety. It has been rightly observed by my hon. and learned Friend behind me that the great object we ought to secure is the absolute safety of Trust Funds. Any legislation which imperils the safety of those Funds is legislation for which we should incur grave responsibility if we gave it any support whatever. It seems to me that if we proceed at all to legislate on this subject, Sub-section O of Section 3 contains almost all that Parliament would be justified in providing at the present time. That sub-section provides

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    that investments may be made in any Stocks, Funds, or other securities which are under the control of or subject to the Court of Chancery. If the Bill goes into Committee, it ought to be examined with the greatest care, with the view of making the beneficiaries as secure as possible in the enjoyment of their incomes.
    *MR. J. B. BALFOUR: I would remind the House that in 1884 a Bill was passed for Scotland which proceeded very much on the lines of the present measure. That Act gave a considerably increased range of power in the matter of investments, and the result of the working of that measure has, I believe, been entirely good. The result of the working of the Act during the four or five years which have since passed has, I believe, been very satisfactory. It was, at the time, considered of great advantage to the beneficiaries. Something has been said in the course of the debate as if it were for the interest of the trustees that they should have a large range of investments. But I say it is thoroughly immaterial to them whether the range is a large or a small one; they have only to consider the interests of the beneficiaries. The problem to be solved is how to hit the proper medium of a fair return. Remember that the beneficiaries are generally persons who have no other means of earning their own livelihood, and it is necessary that the trust funds on which they depend should give a fair return, accompanied by a proper measure of safety. Hundreds of securities which do not give a large return have, of late years, proved to be accompanied with considerable risk, and one result is that those which were considered prime investments before now hardly yield a fair return, or are attended with a degree of hazard. There ought to be no hazard. In Scotland there has not been the disadvantage which it has been suggested would result from the exercise of these powers; but there has been found this advantage, that the modest income of very many persons deriving their livelihood from trust funds has been increased from 2¾ to 3½ per cent, and sometimes more. It is needless to point out how great a benefit that is. Before the Scotch Bill was introduced, persons familiar with what are regarded as adequate
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    and fair trust investments carefully considered the enlargement of the range of investments, and, as far as I have heard, there has never been any objection taken to it on the ground that it was too large. There have been some objections to it on the ground that it unduly restricted the powers of trustees. It does seem to me to be an experience at all events worthy the consideration of this House, seeing that it has worked well in Scotland for between four and five years. Something was said by the right hon. Gentleman the First Lord of the Treasury as to giving powers which the settlor had not himself given. I venture to think that the great majority of settlors will be quite content to have the investment left to the wisdom of Parliament. Unless settlors desire a distinctive range of securities—and in that case they could give expression to their wish—it ought to be left to the law, and I believe to say the settlors will, as a rule, be quite content with what the law allows to be done. It is really not doing any violence to their wishes if the law finds, in course of time, that the range of investments is unduly restricted and should be amplified. It has been a common experience of late years that there has been an enormous increase of wealth in this country which has been invested in the funds until it has become almost impossible to get a fair return. If the trust yields an inadequate return, then Parliament must try that the medium of a fair return in income security for the capital should be ascertained. I do not propose to say anything with regard to the particular investments mentioned in this Bill. As to some there may be a difference of opinion; as to others there may be none. But I may, perhaps, be allowed to say that if a Committee of this House should extend the powers beyond those which are given by the Scotch Act of 1884, I hope the right hon. and learned Gentleman the Lord Advocate will consider whether by a short measure—for I do not think it could conveniently be done by an amendment of this Bill—Scotland could not be kept pari passu with England in this matter. I repeat I do not think it would be easy to adapt this particular Bill to Scotland, because the customs of that country differ so much from those of England. I do not ask at this moment any expression of opinion

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    from the right hon. and learned Gentleman. I only desire that he will undertake to consider the matter.
    *THE LORD ADVOCATE (Mr. J. P. B. ROBERTSON,): I think with the right hon. Gentleman that the question which he has just raised is premature in one sense; but if Parliament should decide on sanctioning an increased range of investments for England, we may fairly see how we can best take advantage of that decision in order to amend the law of Scotland. But the difference of opinion in this House which has been elicited by this debate is so great that I cannot usefully enter into any engagement other than a most general one. I agree with my right hon. Friend in thinking it is not convenient, looking to the existing Scotch legislation dealing with trust estates, to have an incidental reference to Scotland in a purely English Act. If the general opinion of Parliament is in favour of extending the powers of investment beyond the limits of the Scotch Act of 1884, the proper plan would be to have a specific Scotch Act. I rather gather, Sir, from the right hon. Gentleman's observations that he shares my view that we have to look, to a large extent, to the convenience and easy working of the legal practitioner, and I think it would be unfortunate if, by a chance and casual reference to Scotland in an English Act, we imposed on Scotch practitioners the necessity of entering into the perusal of an English Act. I have no more to say. I do not understand the right hon. Gentleman expects me to do more than indicate my concurrence with the view that whatever powers are considered by Parliament as proper to give to England should be extended to Scotland, not by an incidental reference in a Scotch Act, but rather by a specific enactment following upon the English decision.
    *SIR HENRY JAMES: I have risen to urge on the Government the desirability of allowing this Bill to be read a second time. When the Chancellor of the Exchequer introduced his Conversion Scheme last year, he struck a very severe blow at persons dependent on limited and fixed incomes, and a great many representations were made to Members of the House that great injustice would be inflicted upon such persons if their income were lessened
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    by perhaps one-sixth, in consequence of the Conversion Scheme of the Chancellor of the Exchequer. Indeed, the lessening of the income from 3 to 2½ per cent imposed a very serious burden on cestui que trusts. The Chancellor of the Exchequer gave a promise at that time that the subject should be fully considered, and a hope was also held out in the debate on Lord Herschell's Bill dealing with the duties of trustees that there should be some consideration given to the question, which was then urged upon the House by the right hon. Gentleman the Member for Wolverhampton. I want to see some fulfilment of that promise. I admit it was not a definite promise, but there was a pledge on the part of the Government that some consideration should be given to the case of these persons, and I desire to urge on the Chancellor of the Exchequer the claims cestui que trusts to have their income maintained at its former level. The Chancellor of the Exchequer is the guardian of the public, and he is to some extent opposed to any alteration in the law affecting investments in the interests of the public, because, as I understand him, he says that if we diverted the natural flow of investment into Consols we should thereby, to some extent, run the risk of lessening their value. I hope, on the other hand, to see the National Debt diminished and the value of Consols increased thereby. But while the Chancellor of the Exchequer speaks in this sense, he must consider the public from every point of view. I would rather, for my part, see the burden fall on the public as a whole than that it should fall on the persons least able to bear it—namely, the persons of small fixed incomes, who are generally without the power of earning more money for themselves. We must see that no injustice is done to them by the Conversion Scheme. At present, however, an undue proportion of the loss falls on them. Indeed, the general taxpayer gains by the Conversion Scheme. The Chancellor of the Exchequer has the right to point to it as a great success; but, after all, the sufferers are those persons whose incomes have been reduced by at least one-sixth in consequence of it. Now, we want a remedy for this state of things, and we are throwing no extra burden on the

    1499
    taxpayer generally by providing that the opportunities of investment shall be enlarged and increased without risk to the cestui que trusts and liability on the part of the trustees. We can guard against that risk, and can find securities in this country which will pay 3 or 3½ per cent with perfect safety. If that can be done it ought to be done, because it would do no injury to the general taxpayer. This is the proposition we are making to the Government. This is not, as suggested by the First Lord of the Treasury, a Bill in relief of the trustees. From our point of view it does not protect the trustee. He may be a very selfish person, but he can take care of himself. He may say—"I will only invest in Consols, as I do not suffer if I only get 2½ per cent." The person we are considering is the person who is receiving the income, and we desire that he shall not bear an undue portion of the burden created by the Chancellor of the Exchequer's Conversion Scheme. I think we are bound to see that he obtains a percentage somewhat similar to that which he received when Consols paid 3 per cent. I do not object to the very proper desire of the Chancellor of the Exchequer to guard the public. What we want is that the receiver of the income shall be regarded as the person principally interested. We shall not interfere with the value of Consols: they will be maintained at their level; and if the person who creates the Trust chooses that the funds shall be invested in Consols, let him say so. All we are asking is that there shall be an increased opportunity of investment; that we shall allow trustees to invest without incurring personal liability in certain defined securities. It is our duty to see that the securities are not speculative, and we must not allow investments in securities which pay high interest, but we can find securities which will not only pay a somewhat higher rate of interest to the beneficiaries, but which will be good security for the trustee. I do not wish to go into details in discussing the Second Reading of this Bill, but I think the First Lord of the Treasury spoke somewhat without consideration when he took exception to some of the securities mentioned in the 3rd clause of the Bill. He said he doubted whether trustees should be allowed
    1500
    to invest in the railways of Ireland; but under Lord St. Leonard's Act, 22 and 23 Vict., there is power, under prescribed conditions, to invest Trust Funds in railways in "Great Britain or Ireland," so that this provision, which was pointed out as a fatal defect in the Bill, which embodies a consolidation of the present powers of investment, coupled with some enlargement, does not go beyond the present law. I would suggest to the Government to allow this Bill to be read a second time. There will be no attempt on the part of those in charge of the Bill to take one step which will not meet with the sanction of those who are the natural guardians of the taxpayer and of those who ought to protect the beneficiaries and the private individuals who receive the income. We have already admitted that there should be some compensation to those who have suffered grievously by the change of the 3 per cent investment into a 2½ per cent, without any fault of their own, and without such a diminution of interest being in the contemplation of the settlor. On the whole, believing that this Bill marked a step in the right direction, I hope the Government will not throw any obstacles in the way of its being read a second time.
    MR. S. HOARE: The discussion which has taken place this morning proves, I think, the great interest taken in the subject involved in this Bill. When the Conversion Scheme of the Chancellor of the Exchequer was discussed, there were many of us in this House who, like the right hon. Gentleman the Member for Bury, realized that the incomes of a vast number of people would be materially affected by that scheme, and we thought at the time that Government would introduce some such Bill as is now before the House, to give an opportunity for those interested in Trust Funds invested in Consols to reinvest them, so that they should not be such heavy losers as they necessarily were under the Conversion Scheme. I supported the Conversion Scheme most warmly; but I always felt that a Bill giving enlarged powers to trustees was a necessary sequence of it. Consequently, I have taken some little part in bringing this Bill before the House. Now, in speaking on it, I feel somewhat at a disadvantage, because almost the whole of the discussion hitherto has

    1501
    been from a legal point of view, and I desire to approach it from a business standpoint. I must say I was rather surprised at the objection of the hon. Member for Donegal, who thought that the House ought not to waste time by pressing forward a Bill of this kind. I conclude that the hon. Member is not interested in funds invested in Consols at the present time, and he cannot know, as many hon. Members know, of cases where the reduction in the rate of interest on Consols has materially affected those interested in the Trusts. I regard the Bill as affording a protection to beneficiaries, because it enables them to get a larger income without, as we believe, sacrificing their security. With reference to the suggestion that the securities named are not all that could be fairly taken, I quite realize that objections might be found to that list, but I should be prepared to satisfy the Committee that each investment is good and sound, and that they will enable tenants for life to enjoy increased investment from Trust Funds, while not getting more than their proper share of the income arising from the funds invested. Every precaution is taken that life beneficiaries shall not benefit at the expense of those who follow. I can assure hon. Members that great care has been exercised in the selection of the list of securities embodied in this Bill. My hon. Friend the Member for Preston said he did not like the policy of dividing the goats from the sheep. I can assure him the securities named are all sound and suitable for trust investments.
    *MR. TOMLINSON: My point was that the Bill assumes to be able to determine that the securities named in it are sound and that all others are not.
    MR. HOARE: And I shall be prepared in Committee to prove that each proposed investment is sound. The hon. Member alluded to the proposal to allow investment in Eastern Bengal Annuities and other Indian Railway Stocks. Sir, the very insertion of the provision shows how very carefully the interests of the beneficiaries have been studied. We have only included those annuities where there is a Sinking Fund; so that at the end of a given period the capital of the annuity is repaid. The hon. Member also objects to investments in Corporation Stock. Why, at the present moment these Stocks stand at a
    1502
    very high price in the market. It must be remembered that they are under the control of Parliament, and the policy pursued in the selection of investments in this Bill has been, as far as possible, to take those which are under the control of this House. Therefore, Inscribed Stock has been put in, and we believe it to be a good, sound, and safe security. Excepting what has been said by the First Lord of the Treasury, I do not think any real objection has been brought against the Bill. The First Lord, perhaps rightly, looks upon the Bill as too wide, but, at the same time, his remarks show that some Bill of the kind is required. As to the course to be pursued to-day, I hope the House will pass the Second Reading, as I believe that everyone will feel that some such Bill is necessary. I do not say it is a perfect Bill, but I believe it is a good Bill as a groundwork for consideration. I hope the Government will support the Second Reading of the Bill, and that it will then be referred to a Select Committee which, I think, will consider the questions involved with greater advantage to the country than a Committee of the whole House. I think trustees and others interested in Trusts would be better satisfied to have investments settled in that way than by the Judges of the Chancery Division of the High Court. Even Lord Salisbury himself has said that the Judges are not the best tribunals to settle investments. The Bill, if passed, would be a great advantage not only to beneficiaries, but to trustees who now have the responsibility of selecting investments.
    SIR G. BADEN-POWELL: I should not like to see so very wide a subject dealt with without ample opportunity for consideration and debate. I should like to see the power of the Judges of the Court of Chancery revised in regard to Trust Investment, and I should like to know definitely whether if the Bill goes to a Select Committee it will have power to deal with the delicate question of interfering with the powers of the Judges; I should like also to know whether the question of colonial securities will be dealt with by the Committee? I think that the Bill as it stands ought not to be allowed to pass a Second Reading, and I should only agree to its being so passed if the whole subject

    1503
    were capable of being dealt with in Committee.
    SIR GEORGE CAMPBELL: I have a very strong feeling that the principles impressed on the House by the First Lord of the Treasury should have very great weight with hon. Members, and I shall not vote for the Second Reading unless those who are responsible for advising the country on such matters—namely, the First Lord of the Treasury and the Chancellor of the Exchequer—advise me to support it. I am rather surprised at the suggestion to refer the Bill to a Select Committee. A Bill of this kind went to a Standing Committee last Session, and that body treated its proposals very unfavourably, and therefore the desire to send it now to a Select Committee seems to show an anxiety to escape the criticism of the Standing Committee. I think if the Bill is referred to any Committee it should be a Standing Committee. If investments are put into a list in this Bill they will be ear-marked as first-class investments, and the whole influence of the Stock Exchange will be used to put others into the list.
    MR. E. W. BECKETT: I wish to join in the appeal to allow the Bill to be read a second time. I am bound to say that in looking through the list of securities, it contains many which I, for one, cannot approve. At the same time, I think there can be no question that there is an ever-increasing necessity for extending the powers of the Court of Chancery in regard to trust investments, and I therefore hope the House will agree to the Second Reading, on the understanding that the Bill should then be referred to a Select Committee, to consider the Schedule of authorised investments. I think the hon. Gentleman who has just spoken could not have heard the very excellent speech of the Lord Advocate, which showed that we might follow the example set by Scotland in this matter on prudent lines. I trust that the Government will not oppose the Second Reading of the Bill, but will let it be referred to a Select Committee. I am quite aware that the Chancellor of the Exchequer's Conversion Scheme succeeded in a most extraordinarily satisfactory manner, and, perhaps, therefore, he will not now be less inclined to consider the possibility of carry
    1504
    ing out the objects aimed at by this Bill.
    SIR H. DAVEY: I earnestly hope the Government will see their way to accept the proposal to read the Bill a second time, and refer it to a Select Committee. The object of the Bill has been somewhat misunderstood. It has been treated as a Bill to relieve trustees; but that is a mistake. The primary object of the Bill to collect into one Act the securities in which trustees may invest. At the present time such securities can only be ascertained by searching through a number of Acts of Parliament, the subject-matter of many of which is of an entirely different character. For instance, an Act which enables the Metropolitan Board of Works to create Stock gives power to trustees to invest in it. The Bill will, therefore, be very useful; and in my opinion, if it did nothing more than this, it ought to be read a second time. But the Bill goes beyond this, and proposes to enlarge the scope of investment now allowed by law. I quite agree with the First Lord of the Treasury that we ought not to hold out any encouragement to trustees to speculate with Trust Funds. That is a sound principle; but, on the other hand, I think the House will agree that the true policy is to give the beneficiary as full an enjoyment of the produce of a Trust Fund as is consistent with the safety of the capital of the fund. The First Lord of the Treasury (Mr. W. H. Smith) has objected to certain securities mentioned in the Bill, but the right hon. Gentleman was particularly unfortunate in his selection. I believe that the two securities which the right hon. Gentleman specifically mentioned were real securities in England, Wales, and Ireland, and Debenture Stock in English and Irish Railways. I must say that it requires some courage to state that there is wild speculation in investing money in the Debenture Stock of English Railways. The Bill applies to Irish as well as English trustees, but it does not propose to give power to invest in securities which the Will or Settlement expressly prohibits. With regard to the objection raised by the right hon. Gentleman opposite to investments in Irish mortgages, I would point out that, even if the Bill does not pass, the present law gives power to invest in mortgages in England, Wales, or Ireland,

    1505
    and the First Lord of the Treasury, in objecting to this security, is objecting to the existing law. By the 32nd section of the Act which bears the name of Lord St. Leonards, a trustee, unless expressly forbidden, is permitted to invest Trust Funds in mortgages in any part of the United Kingdom. I presume that Gentlemen opposite will agree with me that Ireland is part of the United Kingdom, and I may observe that the objection to Irish mortgages which the right hon. Gentleman made comes with rather a curious aspect from the Leader in this House of a Party which tells us that its great object is to encourage the introduction of capital into Ireland and to restore confidence in the country. I may say, however, that I have hardly ever seen a Settlement or a Will which does not contain a clause expressly forbidding investments in Irish mortgages. The objection of the First Lord of the Treasury on this point is an objection to the present law. Perhaps the right hon. Gentlemen is not aware that trustees are not allowed to invest on more than a certain proportion of the value. The right hon. Gentleman's other selection of what he deemed a mild spculation was particularly unfortunate. He objected to authorizing trustees to invest in debentures of railway companies which have paid dividends during ten years. Perhaps the right hon. Gentlemen is not aware of the rule made by the Judges of the High Court for the investment of funds under the control of the Court. I hold in my hand a copy of the last Order, dated November 14, 1888, and signed by the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, and four other Judges. The Order provides that cash under the control of the Court may be invested in debenture, preference, guarantee, or rent charge stocks of railways in Great Britain or Ireland which have for ten years next before the investment paid a dividend on ordinary shares. But, Sir, Parliament has already sanctioned this itself, because I find that in an Act which goes by the name of that wild speculator and revolutionist, Lord Cairns—the Settled Land Act 1882—capital money which has arisen from the sale of settled land is allowed to be invested in, amongst other things,
    1506
    "the security of the bonds, mortgages or debentures of any railway company in Great Britain or Ireland and having ten years next before the investment paid a dividend on its ordinary shares."
    The objection made by the hon. Member for Kirkcaldy (Sir G. Campbell) seems to me to go too far, because the more you restrict the power of investment by trustees the more you will raise the price of the stocks in which they were allowed to invest. I can quite appreciate the motives of the Chancellor of the Exchequer in wishing to restrict the area of Trust Investments. I can quite understand his wishing to restrict such investments to the Consols which bear his name. But surely the rights or interests of persons beneficially entitled under Settlements ought not to be cut down in order to maintain the price of Government Stock. That seems to me a consideration that ought not to enter into the view of the House in this matter. The more you enlarge the area of Trust Investments the less effect they will have in raising or varying the price of particular Stocks. I think that any gentleman who has had experience in these matters will agree that the list of securities named in the Bill is such as will be found given in any ordinary well-drawn Settlement or Will without special instructions, and they are all securities of a public character and guaranteed. I believe the Bill will be found strictly beneficial both to trustees and to cestui que trusts, by enabling them to make the most beneficial use of their funds consistent with due security.
    *MR. GOSCHEN: My right hon. Friend the First Lord of the Treasury (Mr. W. H. Smith) did not offer any objection to the Bill on the ground that it might be detrimental to the interests of the Public Funds. He carefully abstained from urging that argument. My hon. and learned Friend (Sir H. Davey) says it is an error to suppose that this Bill was introduced to any extent in the interests of trustees, but on reflection he will, I think, see that his argument points to its being a useful Act for the relief of trustees, as affording them a better and surer light, and giving them an indication of what is called the "wisdom of Parliament." I am not at all prepared to share the view, however, that testators would be

    1507
    perfectly prepared to leave the care of their settlements, and the future of those in favour of whom they make settlements, to be decided by the "wisdom of Parliament." The discussion shows that Parliament may make a mistake, and there is great force in the objection of the hon. Member for Kirkcaldy (Sir G. Campbell). The Bill has two currents in its favour. There is the pressure of the cestui que trusts and also the strong pressure of those who wish to see their securities take a higher rank as being sanctioned by an Act of Parliament as fit for the investment of Trust Funds. If a Bill of this character be passed there will be no undertaking which will not do its best to induce Parliament to put its name and title on the favoured list. And would it not be necessary continually to revise the list which Parliament in its momentary wisdom might make? Reference has been made to Lord St. Leonard's Act, enabling trustees to vary Trusts, so that money invested in Consols may be invested in real securities. Lord St. Leonards acted on the Parliamentary view of that day, which was that capital might be advantageously converted into land; but it has since turned out that mortgages are not the excellent security they were supposed to be. The wisdom of Parliament was at fault, and it would almost make some settlors and testators turn in their graves could they know that while they gave directions for safe investment in Government securities for those in whom they were interested, the wisdom of Parliament authorized investment in mortgages which had turned out to be a bad security and had not paid the interest expected. The objection has been taken to the Bill that there are easy trustees and fraudulent trustees as well as honest trustees. An easy trustee cannot go far wrong now, for this Bill will give him a large choice of investments, the list of which is as long as the calendar, and of which the easy trustee would be likely to choose the more dangerous rather than the safe class. The fraudulent trustee might, under this Bill, sell out of a safe investment and put the Trust Funds into other investments which would promote his own speculations or his own interests.
    1508
    He might, if he had a number of houses of his own, invest the funds in them.
    SIR H. DAVEY: I think the right hon. Gentleman will at once admit that that would be a gross breach of trust, and that a trustee who did that would find himself at once in difficulties in the Chancery Division.
    *MR. GOSCHEN: Of course I bow to the decision of the hon. and learned Gentleman, but it seems to me that there would be no dishonesty whatever in making such an investment, though it would be extremely injudicious. I fully admit that there are some things in this Bill which are advantageous and which it would be expedient to consider. There is the question of the consolidation of the law; and I think it is expedient that the undertakings which are authorized by Parliament as investments for Trust Funds should be dug out of the various Acts in which they are embedded so that Parliament should know to what extent the number of securities have already been increased. Furthermore, I think it is right we should settle the moot point as to what is the liability of trustees with regard to investments above par. Again, I trust that if the Bill is referred to a Select Committee or to any other Committee, the question as to whether it ought to be retrospective or not will be considered. If I make a settlement on my daughter and say that the investments must be made in Consols or Indian Securities or in some other guaranteed Government Stock, and I die, she may at once put pressure on her trustees to change the investment to mortgages on land in Ireland. I object to my views being set aside by Parliament the moment after I have made a Settlement. I think Parliament would be embarking on a dangerous course in laying down what are safe investments and what are not, although there may be something to be said in favour of such a course. Still, the Trusts and Settlements which have quite lately been made, and been made with a full knowledge of present cir-circumstances ought not to be set aside under the pressure of the cestui qui trust who may naturally be wishful to increase his income part passu probably with an increase of his family. The Government will not object to the Second Beading of the Bill, but their view is,

    1509
    that the Bill should certainly he referred either to a Select Committee, or to a Standing Committee similar to that to which the Bill of last year was referred. The Government would prefer to take time to consider which of the two causes would be best.
    *MR. AINSLIE: Having some knowledge of some of these investments, I think it right to offer a few remarks. I desire particularly to refer to the Stock mentioned under the letter K. I daresay many hon. Members are not aware what the true significance of that Stock is, or in what sense it cannot be said to be a safe and proper investment for Trust Funds. I had occasion a few years ago to object to the investment of some Trust money in this particular Stock, because, although it is described as bearing a guarantee from the Secretary of State for India, although the Company does receive 5 per cent from the Secretary of State, it does not follow necessarily that the 5 per cent goes to the holder of the Stock. Take the case of the Great Indian Peninsular Railway. It may be that that railway's stock stands at a high premium indeed, but I remember when it was little above par. It may descend to that level again. That will be in consequence of a falling off of traffic which may occur through panic. If the traffic receipts fall so that the income will not permit of a dividend being paid without the assistance of the Secretary of State for India no money would come to the beneficiaries. I believe it is not known to investors that that is the position of the holders of the Stock of some of the Indian railways. I agree with the hon. Member for Kirkcaldy (Sir G. Campbell) that the Bill will open the door to speculations on the Stock Exchange, and this, I think, ought to cause hon. Members to pause before they let the Bill pass even a Second Beading unless there is a strong recommendation to the Committee to which it is referred that the list of the securities should be seriously cut down.
    *MR. ELTON: I cannot but share the fears which have been expressed about the Second Reading of the Bill, although I have great confidence in the judgment of the hon. Gentlemen opposite who have spoken in its favour. I am quite willing it should be confined to
    1510
    Settlements made after the date of the passing of the Bill if that is the feeling of the House, but what I rose particularly for is to point out that there are some investments mentioned in the list which the House ought to encourage by every means in its power. I refer especially to the investment in Borough Stock. It is very difficult for any of the large boroughs to get powers inserted in their local Acts to enable trustees to invest in their Stock, although I know from personal experience that there is a great demand by trustees of cestui que trust to invest in such Stock. But there are some Stocks in the List which ought not to be there. Take the case of freehold ground rents. I have not the slightest objection to freehold ground rents, but we ought to prevent the investment of Trust Funds in them, for it is well-known they may become insecure. It is necessary the Bill should go to a Committee in order that that particular investment may be struck out.
    *MR. SWETENHAM (Carnarvon, &c.): I have heard with the greatest pleasure that the Government do not propose to oppose the Second Reading of this Bill, which I regard of the greatest importance, not only to trustees, but to the cestui que trusts. Some observations have been made as to the hardships that occasionally would occur to widows and orphans if the Bill passes. But there are hardships under the law as it at present stands, and it is with the view of removing these hardships that I intend to support the Bill. I deprecate in the strongest manner anything like allowing trustees to invest funds in speculative securities, but all the observations made by the Mover and Seconder of the Amendment appear to me to be of such a character that they can be very properly dealt in Committee. I have not heard any real objection to the principle of the Bill; and what we have now to deal with is the principle of the measure. In Committee it will be the province of the House to investigate carefully what are the securities in which it shall be lawful to invest trust money. I should like a clause inserted providing that in all cases where it is possible the consent of the cestui que trusts must be had before the trustees can invest in the securities. It has been suggested that the operation of

    1511
    the Bill should be confined to Settlements made after the passing of the Act. I cannot help thinking there would be very great hardships under the present system if the Bill is not allowed to have a retrospective effect. To use the language of the Mover of the Second Reading, the Bill will be greatly conducive to simplicity of knowledge, not only on the part of the trustees, but on the part of the cestui qua trusts. If it is known that Parliament in its wisdom has directed that certain securities may be considered safe, that will be conducive to the peace of mind of the persons interested in the investment of Trust Funds. I do not know any measure which will prove of greater practical importance than this, and therefore I shall heartily support its Second Reading.
    Question put and agreed to.
    Bill read a second time: committed for Wednesday, April 10.

  MARRIAGE WITH A DECEASED WIFE'S SISTER (SCOTLAND) BILL. (No. 13.)
  Order for Second Reading read.
  *MR. A. ELLIOT: In moving the Second Reading of this Bill I do not pretend that those who promote this legislation are not anxious to extend the provisions of the Bill to the whole of the United Kingdom, indeed I should have been better pleased had the measure of this kind which applies to the whole Kingdom stood first on the Paper to day. But the precedence of Bills is a matter which hon. Members cannot settle for themselves, and it is by the fate of the ballot that this Bill, limited to Scotland, now comes on first for discussion. I have noticed amongst the Notices of Objection appearing on the Paper, one in the name of the hon. Member for East Donegal (Mr. A. O'Connor). I certainly should be the last to complain of any Irish or English Members taking part in such a discussion as this. We must all recognize that Acts of Parliament dealing with limited geographical limits are nevertheless of extreme importance to many persons living outside those limits. There are hundreds and thousands of the countrymen of the hon. Member living in Scotland, and therefore it is perfectly right the hon. Member should
  1512
  make a statement here to-day. I do not wish to look at this Bill solely in respect of its limited character, but still it is due to us in Scotland to remember that the Marriage Law has not been the same in Scotland as in England and Ireland, and it may rather startle some hon. Members to find that the Bill states in its preamble that the law in Scotland on this subject is at present doubtful. It is not clear that a marriage between a man and his deceased wife's sister is at the present moment illegal in Scotland. In England at present there is no doubt whatever as to the illegality of such marriages. Since Lord Lyndhurst's Act was passed in 1835, marriage with a deceased wife's sister is absolutely illegal, but that Act, which extends to England and Ireland, expressly does not extend to Scotland, and we must find the Scotch Law on the subject elsewhere. It will be admitted that, according to the Confession of Faith, which is the standard of the various Presbyterian Churches in Scotland, affinity is for all practical purposes equivalent to consanguinity, and that, therefore, undoubtedly such marriages would be contrary to the provisions of the Confession of Faith. But in 1567, when the Scottish Legislature determined to get rid of many of the restrictions which in Roman Catholic times had been placed upon marriages between relations, the Act provided that henceforward marriage should be perfectly free between persons who were not expressly forbidden by the Divine law from entering into marriage. When we come to ask what is the Divine Law, and to what extent for Scotch purposes it is taken as part of the Scotch Law, we are referred to the well-known 18th chapter of Leviticus; but here again we find eminent authorities declaring their opinion that there is no sort of prohibition of these marriages in the 16th, 17th, and 18th verses of that chapter. I should be bold, indeed, to argue this question without the strong support of authorities. First, I quote the opinion of the Lord Advocate Rutherford; he, in 1848, in reference to the inquiry into the working of Lord Lyndhurst's Act of 1835, said—
  "The legality of the marriage would depend, I think, if it were tried, on the question whether the 18th chapter of Leviticus does or

  1513
  does not prohibit marriage of a man with the sister of his deceased wife. Generally speaking, writers and text-books consider such marriages illegal."
  But then he goes on—
  "It has been the opinion of very eminent lawyers that such marriages should be held good in law, and the issue of such marriages legitimate, and though I have some doubts, out of respect for those who take the opposite view, I am myself inclined to the same opinion."
  A great authority on the law of husband and wife was Lord Fraser, who died only a few days ago. He tells us, that as to the Confession of Faith, which was ratified by Act of Parliament, it has not the binding effect of law, and he adopts the view of Lord Rutherford, and he was inclined to think that such a marriage would be lawful. In his opinion, if a case were to arise in Scotland at the present time (1848), the Scotch Courts would have to consider what was the meaning of the verses in the 18th chapter of Leviticus, and he declared his opinion that the 18th verse of that chapter has, in fact, nothing to do with marriage with a deceased wife's sister. Now, I think, the opinions of these authorities, Lord Rutherford and Lord Fraser at all events, sustain my position, that the law of Scotland is, at least, doubtful on this subject. And now I wish to leave the special Scotch aspect of the question and treat it a little more generally. Now, the Statute of 1835, on which the law in England and Ireland rests, in its preamble explains how the previous law stood, and it is really very important, at any rate very interesting, that Members should understand how the law stood until 1835. The law was this—a man might marry his deceased wife's sister, and men did so again and again, and the marriage was perfectly good in law for all purposes, and the children born were legitimate, unless during the lifetime of both parents a suit was instituted to void the marriage by proceedings in the Ecclesiastical Court. Such a marriage might be voided or not voided. Lord Lyndhurst's Bill was, no doubt, brought in to legitimatize a particular marriage of a particular individual who had contracted a marriage with his deceased wife's sister. The Bill was brought forward for private reasons, but, of course, it would have been a scandalous
  1514
  abuse of legislation to deal with one case and leave all other similar cases untouched, and, therefore, the consequence of that Bill was to legalize, as the Act did legalize, all marriages of the kind contracted before that date. All persons who, up to then, had married their deceased wife's sister, had their marriages made absolutely valid, and their children were made legitimate. This was the great object of the Bill, but when it got into the House of Lords, that House, influenced, I believe, by the Lords Spiritual, not contented with that operation of the Bill, put in an additional Clause, which made absolutely null and void for the future, marriages which, as regards the past, it was the main object of the Bill to legitimatize. In 1848, only a few years afterwards, it was considered necessary to inquire into the working of the Act of 1848, and a strong Commission was appointed for the purpose. Its members included the then Bishop of Lichfield, and the Commission was strong in point of legal ability. Having taken evidence of a comprehensive character, including Catholics and Protestants of all denominations, this Commission reported unanimously—including the Bishop—in a sense directly contrary to the satisfactory working of the Act of 1835, and their Report should be borne in mind in relation to this proposed legislation. The Commissioners reported that the Statute of 1835 had failed to attain its object, that it had not prevented marriages with a deceased wife's sister, and expressed great doubt whether a measure of this prohibitive character could be efficacious or was justified. This was the conclusion arrived at by the Commissioners—including the Bishop. I make a point of mentioning the Bishop, with special reference to the fact that the unchanged state of the law is due to the particular view of the Lords Spiritual in another place. In 1848 a Bill was introduced to legalize these marriages, and since then similar Bills have been passed by this House again and again. It has been represented again and again that the state of the law is doing gross injustice to a number of decent, respectable persons whose children are bastardized in spite of the strong evidence there is as to the desirability of making this change in the law. Well, 1848 is a long time ago, and it is

  1515
  worthy of consideration whether opinion has since then been growing in the direction wished for by the promoters of this Bill. I should like for a moment to glance round at opinions among persons of various ways of thinking. Roman Catholics are a large body in the country, and among them, both here and abroad, the marriages can be and are frequently contracted. The Commission went into this matter, and the effect of their Report is that the Roman Catholic Church, as a matter of discipline, forbids these marriages, not absolutely forbidding them, and holds that such are permitted by the Word of God. They are restrained by the rules of the Church; but it is possible to suspend the rule, and in certain cases they may be and are contracted by means of a Dispensation granted by the Pope, or by some other authority under him. As a matter of fact, in Roman Catholic countries such marriages do take place with the permission of the Church, and is an every-day experience in those countries. I am told, and I have no doubt it is the case, that 220 priests in the Metropolitan district have petitioned in favour of legislation of this kind. As representing an important body, it is important to know their views. In Scotland I know there used to be a very strong feeling in the Presbyterian Church against these marriages; but I maintain that opinion is giving way before further inquiry, careful examination of texts, the issue of the Revised Version of the Scriptures, and the growth of wisdom on the subject. The Established Church of Scotland used every year to pass a resolution against proposals of this kind; but they have for the last few years given up that form of opposition, and I am told that the Synod of Glasgow and Ayr is favourable to this proposal. There is not—if I may use the expression without offence—a more "straight-laced" body in Scotland than the United Presbyterian Church; but I find that a great majority of the Presbyteries of that Church are favourable to the legalization of marriage with a deceased wife's sister. I am told that the Free Church is against the proposal; but I know that Dr. Chalmers himself was strongly in favour of it. I may be told that Professor Rainy, a great leader of the
  1516
  Free Church, is in determined hostility to the Bill, and I know he is, but I can cite him as a witness in our favour, for he says that supporters of the proposal are on the whole increasing among Members of the Free Church, and include many for whom he has the most sincere respect. There is evidence then at all events that the state of feeling is divided on the point, and that there is a strong feeling in favour of the Bill among Roman Catholics, among members of the Established Church, among the United Presbyterians, and even Professor Rainy admits that many leading and most respected members of the Free Church are rapidly coming round in favour of the proposal I am now submitting to the House. In the Church of England the majority of the Bishops are, unfortunately, opposed to us, but I have referred to one distinguished exception, the Prelate who signed the Report to which I have referred, and I might refer to other dignitaries of the Church who have strongly advocated this proposal. The names of Dean Hook, and of the Dean of Westminster would be included in a long list of eminent men who have argued strongly in support of the legalization of such marriages. I do not wish to trouble the House with references to petitions for and against, but, considering the opposition of the hon. Member for the county of Inverness, I should like to point out that of the 2l Members of the Town Council of the Borough of Inverness 16 are in favour of this proposal. If that is the state of opinion in a district upon which most reliance is placed for opposition to the Bill, what is likely to be the division of opinion in other parts of the country? Seven times since 1848 have Bills of this kind passed all their stages in the House of Commons, and I have been informed that in more than 70 divisions the House has declared in favour of legalizing these marriages. Are we not at last to legislate in conformity with the wishes of the Representatives of the people? When is the time to come if not after 70 decisions given sometimes under a Conservative and sometimes under a Liberal Government? The House of Lords is against the proposal, but may we not hope that opinion is changing there as elsewhere?

  1517
  On one or two occasions, in spite of the influence of the Lords Spiritual, decisions have been given in that House in favour of the Bill, though never with such a decisive result as to carry the Bill into law. It is time now to deal with it. Decided opinions have been expressed in different places in this country, and I will only make one reference to opinion abroad, and that in the United States. In America Mr. Storey, the eminent jurist, expressed his opinion, on being asked by the Commission in 1848, whether there was any feeling among decent respectable people as to the impropriety of such marriages in America, said there was no feeling of the kind, it was rather regarded as a praise-worthy thing, and a simple and proper arrangement. Are we not, I would ask, taking too much upon ourselves when we legislate to prevent the contracting of marriages which are in consonance with the moral and religious sense of large numbers of the people, which have the support of eminent members of various churches, and to which in America and in our Colonies no sort of objection is raised? We have to look on the application of the legislation to the poor as well as to the rich, and I must say that to the poor the application of the law appears to me most harsh, unjust, and cruel when it treats as bastards the children of such marriages. An Australian may contract such a marriage, and his children, legitimate in Australia, may come here, and what will be their position? For what reason do you maintain the old state of the law here? I do not wish to trespass at any greater length on the time of the House, but I would impress upon hon. Members that this question is not to be decided by reference to any antiquated law. I do not lay great stress on the interpretation of the chapter in Leviticus, though I maintain that is in our favour; but, setting that aside, we have to consider the morality of the present day and legislate for ourselves. Is such a limitation necessary, when we see among decent, respectable people of all denominations no objection whatever to such marriages, either on religious or social grounds? I think I have shown strong ground to induce the House to change the law and bring it into conformity with what is becoming the
  1518
  general opinion among decent people. There are some arguments I have not gone into, but I think the main arguments against my position are what is called the Divine Law, and what is called interference with domestic comfort and social relations. But I have never been able any more than were the Commissioners in 1848 to see the strength of this argument for rich or poor. The words of the Report of the Commissioners should be borne in mind by every Member who proposes to vote on this question. The Commissioners dealt with the subject as it affected the poorer classes; they pointed out—
  "How when a poor man had the misfortune to lose his wife some assistance for the management and care of his children becomes indispensable, and if he cannot afford to pay for such assistance, which must he rendered immediately, all circumstances point to the sister of the deceased wife as the natural assistant, and cohabitation becomes almost inevitable, with or without the form of marriage."
  Do you not then undertake a very great responsibility when you prevent by law marriage contracts under such circumstances? Are you content with a state of the law that renders such a marriage illegal? If you render it illegal you place the parties in a very doubtful position, and it is a point to consider whether we have a right to force such a position. It is a subject to be considered in a wise and liberal spirit, and in that spirit I commend this Bill to the House. Similar proposals have received the support of majorities, Liberal and Conservative. If it is once more to be rejected, let it be known that the rejection is not by the will of the Representatives of the people, not because the proposal is not deemed right and just by the country, but solely because of a special view taken for some year past, and which, I am afraid, is still taken by a section of Members, forming one Estate of the Realm, in another place.
  Motion made, and Question proposed, "That the Bill be now read a second time."
  MR. C. FRASER-MACKINTOSH: My hon. Friend has made a long statement, but said very little in support of the Bill now before the House. The whole of his speech, in fact, would have been more appro

  1519
  priate to a Bill dealing with the United Kingdom, and not to Scotland only. I would have been content to give a silent vote, were it not that for the first time a Bill has been brought in on this subject applicable to Scotland alone, and as my hon. Friend has thrown down the gauntlet, I feel bound to take it up. He has said very little on the immediate subject; but when he wishes to make a change in the Marriage Laws, which have existed in Scotland for 300 years, he is bound to show there is a strong feeling in favour of the alteration. He has shown the existence of no such feeling, by petition or otherwise. I believe if it were known generally throughout Scotland that a Bill of this character had the least likelihood of passing, petitions against it would pour in from all parts of Scotland. In making this reference to petitions, let me add that any one who knows Scotland must be quite aware that the voice of the Free Church is entitled to the highest consideration in a question like the present, and its Committee has petitioned against the Bill. Nay, more, a petition I had the honour of presenting to-day is of a most representative character, and if I read the names of the 70 gentlemen who signed it, I am sure anyone who knows Scotland would acknowledge it was as fair a representation of the best feeling of Scotland as you could find. Seven Bishops of the Episcopal Church, many members of the Established Church, many members of the Free Church, and of the United Presbyterians, have signed this important petition. I will not go into the large question as to whether the prohibition is wise or not, I leave that to those who follow me. I will deal only with the Bill before us. The preamble states that there is serious doubt as to the law of Scotland; but I maintain there is no doubt at all. If there were any doubt there would be no reason for this Bill. The laws of Scotland in regard to marriage are quite different to those in England. In Roman Catholic times, as every student of Scottish history knows, the restrictions imposed by the Church in Scotland were so severe that parties removed even beyond four degrees of consanguinity were not allowed to marry without a dispensation
  1520
  from the head of the Roman Church, and in consequence of the little connection with England and the isolation of districts, it has been stated by well-known historians, that at the time of the Reformation, according to the restrictions of the Roman Church, half the population of Scotland were illegitimate, because their parents were not rich enough to get a dispensation from Rome. After the Reformation the law as to marriage proceeded in an opposite direction, allowing much freedom and liberty. The Act of 1567 being based almost entirely on the Scriptural view of the subject, it does not lay down who are to marry and who are not, but it gives permission, according to the law of Scripture, and this has been the state of the law for three centuries. The Confession of Faith embodied into the Law of Scotland definitely prohibited these marriages, and notwithstanding what was said by the hon. Member for Roxburgh, there is no doubt whatever that almost all theologians who have written on the subject support the view there plainly stated, that marriage with a deceased wife's sister is illegal. And now let me examine further this Bill which the hon. Member is so anxious to get passed. The Bill declares all marriages with a deceased wife's sister valid, any law, or custom, or canonical law, or objection, or impediment to the contrary notwithstanding. Now this is a very wide phrase—any law or impediment to the contrary notwithstanding—and I would put this question to the framers of the Bill. Suppose a man, after the death of his first wife, has married another lady, whom I may call an outsider, yet wishes to marry his first wife's sister, then there is nothing to prevent him putting aside his second wife and carrying out his wish under this clause—any law or impediment notwithstanding. More than this, supposing that after the death of his first wife he wishes to marry her sister, who happens to be married to another man, I am not sure whether, under this clause, he would not still be enabled to accomplish his wish. Those who have looked into the state of the existing law are perfectly satisfied that the Bill would be quite unworkable. Many difficulties would arise under it and many complications would result.

  1521
  Suppose father and son married two sisters, and suppose the father died and the son's wife died, would the son be entitled to marry his mother-in-law? Or, on the other hand, could the father, on the death of his wife and his son, marry his daughter-in-law. Further it would be quite possible for a man to marry his own niece. It is because of these inconsistencies, and because there is no favourable expression of opinion, that the Bill is required in Scotland, that I move the Bill be read a Second Time this day six months.
  Motion made, and Amendment proposed, to leave out "now" and insert at end of Question "this day six months."
  MR. M. J. STEWART: In seconding the Amendment I will say but a few words on this measure. I am quite satisfied that its effect would be to sap the foundations of the happiness of pure and happy peaceful homes. It would be disastrous to the social well-being of the country, and this is the great objection many of us take to this Bill. From time immemorial, I might say for many hundreds of years, the present laws of affinity have been recognized, and upon these conditions marriages have been contracted, and the intervention of such an Act would have a disastrous social effect. This is not merely a rich man's question. I am well aware that in certain places there are people most anxious to have this Bill passed into law, for the reason that in the past they have chosen to break the law, and now wish to get rid of the consequences by another Act of Parliament. But we have to consider not the effect upon a few individuals, whether they be rich or poor, but the effect upon the nation, and I repeat, any infringement of the present law of marriage will work most disastrously to the State. That the sister is the proper guardian of her deceased sister's children I agree; but pass this Bill and her position in the husband's house becomes an invidious one, and a husband must hesitate before he allows her to enter his house and undertake those natural duties of guardian to his children. Such a very serious change in the Marriage law cannot be considered in a short afternoon's discussion. The
  1522
  example of America has been cited; but I think anybody who has travelled in the United States, must have noticed that the status of marriage is more lightly treated there than among ourselves. If we judge by the transactions in the American Law Courts we find that in one State the proportions of divorces and marriages is 11 and 12 per cent, in another 12 and 14 per cent, and in another 8 per cent, and a change in the law as now proposed will lead to this further imitation of the American precedent, and the proceedings in the Divorce Court will come to be regarded in a very different light to that they are now. I am not here to argue in favour of the 18th Chapter of Leviticus, but there are two opinions in regard to it; but this I will say, that throughout the length and breadth of the Scriptures you find this principle laid down and recognized, that man and wife are one flesh, and it follows that the ties of kinship must be recognized. Once break through this principle, and you injure the sanctity of the marriage laws in the sight of the large majority of the people of this country. I do not find there is any anxiety among the people to have this alteration made. I know more about the feeling in the country than in the towns; and certainly, in the agricultural districts, I have never heard any wish expressed for the change, and no feeling expressed but that of scorn, or perhaps pity, for those who have broken this law. It cannot, I believe, be shown that there is any real desire for this Bill in Scotland. The hon. Member for Roxburgh points to opinions held by certain members of the Free Church; and I daresay many of them may be found desirous of the change, if for nothing else, because they think this is one of the many ways in which the influence of the Established Church may be undermined. I know it to be the fact that many gentlemen holding views inimical to the Established Church are very anxious that this Bill should pass into law; but this cannot be advanced to show that there is any general feeling among the community. As Lord Cairns once said, this restriction comes down to us from the earliest date, and, if you extend or abolish it, you lead us into difficulties and perplexities of which it is impossible to see the end. The hon. Member

  1523
  for Inverness has pointed out the absurdity of the position under which a man might marry his step-mother, and it is not so uncommon a thing for a father and son to marry sisters. I do not think that it is wise to alter the law to allow of such a position. That the marriage laws of Scotland require reform I allow, but not such a reform as this. It is said this is a working man's question; but I deny that there is any feeling among that class in favour of this Bill. The help for his children a widower of the working class receives now from his sister-in-law would be less freely given under this Bill, and he will hesitate to avail himself of her help in his household. The example of Canada and other Colonies is cited, but I do not accept the doctrine that because those Colonies do what we consider wrong, that, therefore, we should do wrong with them. The people of Scotland have always been opposed to this proposal, and I believe that feeling continues as strong as ever. The General Assembly of the Church of Scotland must carry great weight, for it is a body whereon every parish in Scotland is represented; and more or less it must embody the opinion of every parish, and the General Assembly is strongly opposed to this change. The Bishops and Clergy of the Episcopal Church have repeatedly passed resolutions condemning the proposal. If we go to legal opinion, I ask hon. Gentlemen to note the opinions of Lord Chancellors, who may be taken as the brightest luminaries of English law on the subject. Take the speeches of Lord Hatherley, Lord St. Leonards, Lord Cairns, Lord Selborne, and I believe I can include the present Lord Chancellor, and you will find they express opinions distinctly opposed to this Bill. I know that one Lord Chancellor, Lord Westbury, was of a contrary opinion; but, with all respect, I do not think he was a great Ecclesiastical lawyer, and I know Lord Bramwell supports the principle of this Bill. But the strength of legal opinion is in favour of keeping the law as it is. Certainly no strong reasons have to-day been urged in favour of an alteration. Until such reasons are laid down forcibly and clearly with the concurrence of Scottish opinion, I shall oppose this Bill. The movement in favour of the
  1524
  Bill, such as it is, emanates from paid officials in the office for the promotion of this measure; it is not an agitation arising spontaneously in the country. These gentlemen take upon themselves to instruct and mislead Members of Parliament, who in turn endeavour to mislead the country; but the consensus of public opinion is utterly opposed to the proposal.
  MR. S. WILLIAMSON: I hope the House will permit the Second Reading of this Bill. The hon. Member who has just sat down has urged objections which will not, I think, carry much weight. He says the movement in favour of the Bill arises very much out of feelings of opposition to the Established Church, but I have only to point to the paper which has been circulated among hon. Members to-day, and the signatures to the petitions presented, to indicate that the Bill has the support of members of the Established Church alike with those of of the Free and the United Presbyterian Churches. The Established Church has no place at all in this controversy, and I am extremely sorry the hon. Member introduced the allusion. The hon. Member for Kirkcudbright says the effect of the Bill will be to prevent the deceased wife's sister from undertaking the duties of guardian of her sister's children, for which she is specially fitted. We may put aside the question as regards persons among the wealthier classes and the social arrangements there, but consider the position of a poor man, left without a wife, and with three or four or more young children. He may live in one or two rooms, and the result of the sister coming to live with him has been touched upon by my hon. Friend the Member for Roxburgh in his references to the Report of the Commission of 1848. The inevitable result under the present system is to increase illegitimacy. We would do away with this scandal. Marriage with a deceased wife's sister, we are told, is opposed to the teaching of Scripture. For myself, I believe in the teaching of Scripture, and have tried to inform my-

  1525
  self on this point, but I can find no teaching in Scripture opposed to the principle of this Bill. That man and wife are one flesh is quite true in a certain figurative sense, but man and wife can only be one flesh so long as they are alive together on earth. Scripture raises no obstacle and sets up no hindrance when the wife has left this world; man and wife are then no longer one flesh. But this is so well understood, I think, that it would be wasting time to detain the House any longer. With reference to the illustration brought forward by the hon. Member for Inverness, it should be remembered that, whatever there is offensive in the idea is permitted at the present time when father and son can marry sisters. In the interests of sanctity, I support the Second Reading of the Bill.
  *SIR CHAS. DALRYMPLE: To the principle upon which the Bill is founded I must offer every possible opposition. I am sorry the hon. Member who has just sat down missed altogether the point of the remarks of the hon. Member for Inverness, for although I do not think this is a subject for joking, the hon. Member did succeed in reducing the principle of the Bill to something like an absurdity. The words of the Bill which led to the remarks of the hon. Member are "any law, custom, canonical, or other obstacle or impediment to the contrary notwithstanding," so that it would seem the promoters of the Bill would annul a marriage of the deceased wife's sister with another man should her brother-in-law desire the union. It strikes me as especially offensive that this Bill should be applied to Scotland only. My hon. and learned Friend the Member for Roxburghshire says it is the fortune of the ballot that brought his Bill to the top, but there is another Bill lower down on the orders of the day applicable to the United Kingdom; and I assume the Bills are alike in their object. I cannot but surmise the object is to pass this Bill for Scotland in order that the fact may supply an argument in favour of the second Bill. The hon. Member told us of the great interest
  1526
  this Bill excites in Scotland, but I could not but think that the statement was somewhat qualified by the fact that while he was speaking there were only nine Scotch representatives behind him, and generally when a Scotch question is under discussion, Scotch Members are not remiss in their attendance. The hon. Member alluded to the growth of public opinion in favour of the principle of the Bill. I am not sure that I agree with him in regard to the opinion among religious denominations, but I noticed that he passed very lightly over the opinion of the United Presbyterian and Free Churches. The hon. Gentleman who just sat down derided the signatures attached to the paper which I hold in my hand.
  MR. S. WILLIAMSON: I did not deride the signatures.
  *SIR C. DALRYMPLE: Amongst the signatories a notable number belong to the Free Church, and men having very great weight amongst Free Churchmen are represented in the list. And then, if we go into the question of denominations, we find that all the Bishops belonging to the Episcopal Church of Scotland have signed it. The hon. and learned Gentleman referred to the Roman Catholics, and no doubt they are a very important body, but it is to be remembered that in that Church a Papal dispensation has to be obtained, and such dispensations are sometimes given in rather-curious cases, as, for instance, in the recent disgusting marriage of the Duke of Aosta with his niece. The hon. Member for Roxburghshire said that on 70 different occasions there have been majorities in favour of this Bill, but surely he is under a misapprehension—surely he means not that there have been majorities on 70 occasions, but that there have been 70 divisions on this Bill. The cases of those who have broken the law are brought up, and it is sought to give them relief by this measure, but I do not sympathize with the endeavour, holding that those who have broken the law must take the consequences of their act. And then, as to the poor man argument, it must be remembered that it cuts two ways. It is said that a poor

  1527
  man whose wife has died will be glad to marry his sister-in-law to take care of his children; but suppose he does not want to marry his sister-in-law? If she is a possible wife, it will be improper, according to the ordinary rules of morality and custom for her to remain resident in his house. The sister-in-law no doubt is a natural guardian of a deceased sister's children, but if this Bill passed she could not be that unless there was a marriage, for if she were a marriageable woman and went to live in her brother-in-law's house without marriage the state of things would be highly improper. But as a matter of fact there is nothing new to be said on this subject, on which I have never spoken before. But as I am a Scotchman, and was formerly a Scotch Member for 17 years, I could not remain silent on this occasion.
  *DR. CAMERON: The hon. Member for Inverness-shire found some fault with the drafting of the Bill. Well, I am willing to concede that my hon. and learned Friend would have succeeded better if he had brought forward a simple measure repealing the 18th chapter of Leviticus and inserting whatever re-enactments were to be hereafter enforced. But that would have been even less agreeable to the opponents of this Bill. The hon. Member for Inverness drew for us a picture of absurdities. The case he gave of a father and son marrying sisters, and one spouse in each case dying, is not applicable because such a marriage would be between uncle and niece, or nephew and aunt by marriage, which is forbidden. The fact is there is not a single argument to be brought against marriage with a deceased wife's sister from a social point of view which is not equally valid against any second marriage whatever. The hon. Baronet opposite talked about the position in which a deceased wife's sister would be placed if she came into a brother-in-law's house and took charge of his children; but did the hon. Gentleman never hear of a gentleman being obliged to introduce a housekeeper into his house to look after his children, or a governess to educate them; and I
  1528
  trust the world is not yet so calumnious and censorious that it will refuse to respect the position of a marriageable woman who undertakes the care of children under such circumstances. The hon. Member for Kirkcudbright drew a terrible picture of what might occur if men were to be allowed to marry their deceased wife's sister. He said that divorces would become more frequent; and if that is the sort of argument which is brought against the Bill I would ask the House to consider to what desperate straits its opponents must be reduced. We are asked "Who seeks this Bill; who demands it?" My reply is, "My constituents have demanded it—a poor working class constituency. When a wife dies in one of their households amongst working men, the widower is compelled to choose from three or four people who is to take charge of his children. He would either choose his mother, his deceased wife's mother, his sister, or his sister-in-law, being unable to obtain a housekeeper from outside the family circle. Very often it is the deceased wife's sister he chooses it results that it would have been much better if a marriage had been allowed between them. It is greatly to the credit of human nature that, under present circumstances, many good sisters-in-law do come into the houses of their deceased sister's husband to look after his children. The fact that they are not eligible for marriage does not, in many cases, protect them against calumny, but they are willing to allow sneers to be levelled at them, and if they are able to resist sneers now they would be able to resist them if this Bill became law. One point which has not yet been referred to is the bearing of this subject upon Scottish Criminal Law. The last exposition we had on this point occurred in the year 1705. In that year a marriage of this kind was contracted in Scotland, and the parties were prosecuted for incest. The woman, unfortunately, pleaded guilty and was hanged. The man pleaded not guilty, and, as the jury refused to convict, he was simply expelled 'furth' the country. That was hardly a satisfactory solution of the law, and I can quite understand that men who happen to have married their

  1529
  deceased wife's sister forbear giving to the Court of Session to test the matter by way of an action of Declarator lest being made of one flesh by the Court of Session they should find themselves divorced by the noose of the hangman. I do not know what the law as to capital punishment for this offence now is, but I presume it remains at all events in an obsolete form, as it was in 1705. I advocate this Bill, not from a theoretical point of view, but because I consider it a reform urgently demanded by a large number of working-men in the constituency I have the honour to represent in the city of Glasgow—in which city there are 60,000 constituents, a large proportion of them being working-men. I pronounced emphatically for this proposal when I entered Parliament 15 years ago, and never on one occasion have my constituents found fault with me for the position I have assumed. But as time is short I will not go further into the matter, and will merely express a hope that speeches will not be made by English Members opposite merely for the sake of talking the Bill out.
  SIR G. CAMPBELL: I see no reason why only one kind of affinity as a bar to marriage should be chosen for attack and other kinds not interfered with. I cannot understand why affinity should be altogether disregarded. If a man may marry his sister-in-law, why should not a woman marry her deceased husband's brother? I am familiar with a country in which a woman is not only allowed but compelled to marry her deceased husband's brother. That is the law both of the Aryan and the Semitic races. I am in favour of the principle underlying this measure, but I view the Bill with no favour, for I regard it as the result of a mere agitation got up by a certain society. As the Bill does not deal with the whole question, I would rather walk out of the House than record my vote one way or the other.
  *COLONEL MAKINS: I have constantly opposed all Bills of this kind, and I always shall. I rise to speak on this measure, though its scope is confined to Scotland, because I believe that
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  this Scotch Bill is a mere stalking-horse for the more general Bill which stands a little lower down on the Order Paper. The argument used by almost everyone who has hitherto spoken in favour of the Bill is that public opinion is in favour of it, and that public opinion is growing in favour of it. Well, I am not at all sure that the time will not come when there may be a majority of people in favour of it; but that time has not yet come. If it be a question so very near the hearts of the constituencies in general, why is it not made a test question at an election? Has any Government even taken the question up, or even given facilities for pushing it forward? If the question were one in which any great part of the people felt an earnest interest, no Government would be able to resist the pressure, but would have to take the matter up and legislate on it. But even if the time comes when there is a majority in favour of this change in the law, I contend that, if anything is done at all, the whole question of the Marriage Laws ought to be dealt with generally. It might be desirable to allow such marriages to be entered into civilly; but I object to any interference with the attitude adopted with regard to them by religious bodies. To legalize such interference would offend the religious feelings of a large number of the people of this country. No doubt it would be desirable to simplify, as far as possible, the Marriage Law, especially in Scotland, where it is in the greatest muddle; but I contend that this measure would not simplify the matter, but would only render it more complicated. It would introduce absurdities even greater than those which now exist. Besides, it contains the old vice which has characterized every Bill of this kind—the vice of being retrospective—[Cries of "Divide!"]—those who have taken the law into their own hands are to be whitewashed, and their illegality is to be rendered legal by means of this Bill. Of course, in the matter of religious legality the Bill could not operate, as it would not alter the view of anyone, and I am sure that to deal with the subject in this piece

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  meal fashion, offending the vast majority of the religious people of this country, would be a fatal mistake. [cries of "Divide!"] I can quite understand the impatience of hon. Gentlemen opposite, but I can assure them it is not my intention to endeavour to talk the Bill out. I have always felt very strangly on the matter, and have often raised my voice against the object of the Bill, and whenever a measure of this kind is under discussion I shall feel bound in my conscience to offer every possible resistance to it. I hope the Bill will not be read a second time.
  *MR. J. P. B. ROBERTSON: I rise in response to the challenge of the hon. and learned Member for Roxburghshire to say a few words as to the present state of the Scotch law as to these marriages. The hon. and learned Member said the object of the Bill is to harmonize the Statute Law with what is already the Common Law of Scotland, and the Preamble of the Bill asserts that the law of Scotland is in serious doubt on this point. But who has any doubt? Will any Scotch lawyer get up and assert that the law of Scotland is not perfectly clear and distinctly opposed to these marriages? The hon. and learned Member has relied on some fugitive opinion of Lord Fraser, but in a treatise published by that learned Judge within the last few years such marriages are distinctly stated to be contrary to the Scotch Law. It is not true that the Scotch Law is based on a chapter in Leviticus. By two Statutes of the Scottish Parliament passed, one before and another at the time of the Revolution Settlement, the Confession of Faith was made part of the Statute Law of Scotland, the Confession of Faith contains as one of its Articles that "A man shall not marry any of his wife's kindred nearer than any of his own," and that Article is in accordance with the conscience and practice of the Scotch people for generations.
  DR. CAMERONrose in his place, and claimed to move, "That the Question be now put."
  Question put, "That the Question be now put."
  The House divided:—Ayes 203; Noes 131.—(Div. List, No. 61.)
  Question put accordingly, "That the word 'now' stand part of the Question."
  The House divided:—Ayes 184; Noes 131.—(Div. List, No. 62.)
  Main Question put, and agreed to.
  Bill read a second time, and committed for Wednesday, 26th June.

  PRIVATE BILL COMMISSIONERS BILL.— [No. 153.] QUESTION.
  MR. CRAIG SELLAR: I ask the First Lord of the Treasury whether he will, after Easter, give facilities for the discussion of this Bill, which is the outcome of the deliberations of a Joint Committee of both Houses of Parliament?
  MR. J. MORLEY: I can confirm what the hon. Member has said, as to the Bill being the outcome of the deliberations of a Select Committee.
  SIR J. MOWBRAY: Perhaps the First Lord of the Treasury could arrange for the matter to be discussed some Tuesday in May.
  SIR J. PEASE: I would point out that there was only a small majority of the Committee in favour of the principle of the Bill.
  *MR. W. H. SMITH: I am aware of the importance of the subject, and should be glad if the Bill could be discussed, but I am afraid that I cannot enter into any engagement in the matter. I hope, however, that an opportunity will be found for proposing the Second Reading in the course of the Session.

  TOWN POLICE CLAUSES ACT (1847) AMENDMENT BILL.— [Bill 65.]
  Read the third time, and passed.
  It being Six of the clock, Mr. Speaker adjourned the House without Question put.

  HORSEFLESH (SALE FOR FOOD) BILL. [Bill 149.]
  Read a second time, and committed for Thursday, 4th April.
  MOTION.

    JUSTICES OF THE PEACE BILL.
    On Motion of Mr. Seale-Hayne, Bill for the purpose of amending the Law in regard to the appointment, qualification, and removal of Justices of the Peace, ordered to be brought in by Mr. Seale-Hayne, Mr. Bernard Coleridge, Mr. Howell, Mr. Stuart Rendel, Sir Bernhard Samuelson, and Mr. Arthur Williams.
    Bill presented, and read first time. [Bill 176.]
    House adjourned at five minutes after Twelve o'clock.