Imatges de pÓgina

Government of the present Session had attempted to do, he could not say, but he did not consider that the solution of the so-called religious difficulty was impossible. The people of Scotland now saw that the real difficulty in the way of the education scheme was not owing to the religious difficulty so called, but to the peculiar and exclusive privileges which the Established Church held with regard to these schools. The people of Scotland not only saw this, but even those who might differ from him with regard to the amount of religious security in these schools must see that the day was not far distant when it was impossible for them to maintain those exclusive privileges; for it was plain that, whether Parliament interfered or not, experience would solve the difficulty in spite of them. It had been said throughout the discussions on the late measure, that it was intended to serve the purpose of, and had been concocted by, the Free Church party, in order to put their schools on the national footing. He begged to say that a more unfounded or inexcusable statement it was impossible to conceive; and, with regard to this assertion, he could only say that the "wish was father to the thought," for, as he had stated once and for all, that from the time when he first began to consider the proposition that should be made to the Government, down to the day on which he introduced the measure, he had never directly or indirectly, by himself or any other person, consulted with any of the leaders of the Free Church party.

MR. CUMMING BRUCE said, he did not intend to oppose the introduction of the present Bill; but he regretted that his hon. and learned Friend had thought fit to limit its endurance to so short a time. He should have thought that the fate of the late measure would have convinced his hon. and learned Friend that the success of any similar measure was by no means a certainty, and the parochial schoolmasters would in a short period again find themselves in the same embarrassing position that they now were. He would have preferred that instead of the present, a measure had been introduced to the effect that the existing status of the schoolmaster should have lasted until Parliament should have otherwise determined. He objected to the former Bill of the learned Lord, because it was an attack on the Established Church, which was one of the fundamental institutions of the country, which he should

have thought it was the duty of the Government to support. He regretted to hear that it was the intention of his hon. and learned Friend to renew, by another Bill, his attack upon the parochial school system, from which Scotland had derived so much advantage, and he could only say that such a Bill would receive his most strenuous opposition. He said this from no principle of opposition to education, for he would be ready to support the learned Lord in any measure that was really calculated to improve the system of education in Scotland, and that was not subversive of institutions which for 300 years had conferred blessings on the land. As he had already said, he would not oppose the introduction of the present Bill, but would suggest the introduction of a clause to facilitate the dismissal of improper schoolmasters, and to empower the granting of pensions to retiring schoolmasters who were unfitted for duty by age or infirmity.

MR. DUNLOP begged to bear his testimony to the accuracy of the statement of the hon. and learned Lord Advocate, when he denied that the late measure was concocted by the Free Church to relieve that body from the responsibility of their schools. He thought the character of his learned Friend might have saved him from the imputation which such a statement implied; and he thought the character of the Free Church and the sacrifices her ministers had made, might have saved them also from the charge which had been brought against them. He thought a body raising 300,000l. a year to maintain their schools and churches, after having sacrificed all their emoluments as an Established Church, might have been saved from the charge of concocting a scheme for the sake of a paltry amount of some 2,000l. or 3,000l. Had any intercourse taken place between the Government and the Free Church on this question he must have known of it, and he was able to say that no such communications as had been referred to had taken place. The great merit of the Bill, he thought, was its being limited to a short period, because if it should turn out that the attempt to establish a national system of education in Scotland was hopeless, the question then would be, whether, as they were to remain denominational, one denomination, comprising only one-third of the country, should be put on a better footing than any of the others? The establishment of parochial schools having been the spon

taneous work of the peasantry of Scotland, a desire on their part to see that system made national was entitled to the sympathy of English Members, and they also had a claim to the justice of English Members, because he believed the origin of the present dissensions in Scotland might be mainly traced to the legislation of the English Parliament acting in opposition to the voices of the Scotch representatives. He cordially supported the introduction of this Bill.

MR. KINNAIRD thought the conduct of the Lord Advocate, in all his efforts with regard to this subject, showed that he had the deepest possible interest in the welfare of the people of Scotland. He regretted that the former Bill had not been allowed to pass a second reading, in order that those points in it to which objection was taken might have been modified in Committee; but he firmly believed that a Bill still less favourable to the views of hon. Members opposite must finally be passed.

MR. FORBES thought the House, in rejecting the Bill, had decided wisely; and submitted that the speeches of the Lord Advocate, and of hon. Members opposite, exhibited an amount of sectarian animosity which promised a renewal of angry discussion in the next Session.

MR. NEWDEGATE believed that, as an English Member, he had done his duty in opposing the recent scheme of the learned Lord for education in Scotland, because he had been informed that it was to be the forerunner of a system of national education for England. A national system of .education should either be in connection with the Established Church, denominational, or a system acceptable to all denominations; and he had opposed the scheme of the learned Lord because it complied with neither of those provisions.

Leave given. Bill ordered to be brought in by the Lord Advocate, Lord John Russell, and Viscount Palmerston.

The House adjourned at One o'clock.

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Order of the Day for the House to be put in Committee read.

LORD CAMPBELL said, he deemed it his duty again to enter his protest against this Bill. He had been in hopes that upon further consideration the objections to the Bill which presented themselves to his mind in the first instance would have been obviated when he came to consider it more maturely; but he was sorry to say that the opportunity for reflection had strengthened instead of weakening them. Since he last addressed their Lordships on this subject he had had an opportunity of consulting many of his learned brethren on the bench respecting it. His learned brethren and himself were willing to undertake any duties which the Legislature might impose upon them; they would set an example of obedience to the law, and of respect to the Legislature; but having consulted the Judges at a meeting they had had upon this subject, they were unanimously of opinion that the duties which they were asked to undertake under the provisions of this Bill were not judicial duties; and the great majority of them stated they were not properly competent to perform those duties. That these were not judicial duties he thought there could be no question. Ordinarily, a Judge had to interpret the law, and the law was placed before him for that purpose; but by this Bill no law was laid before the Judges which they could interpret or enforce. The code which the Judges had to interpret and enforce under this Bill was stated thus:

"That every railway company, canal company, and railway and canal company, shall afford all reasonable facilities for the receiving and forwarding of traffic upon and from the several railways

and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles; and no such company shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular description of traffic in any respect whatsoever; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; and every railway company and canal company, and railway and canal company, having or working railways or canals which form part of a continuous line of railway or canal, or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving

by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals, or railways and canals, as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the public in that


That was not a code which the Judges
could interpret; it left them altogether to
exercise their discretion as to what they
might deem reasonable. They were, be-
sides, to form a just judgment on all mat-
ters of complaint relating to railway ma-
nagement that might come before them;
and they were to lay down a code of regu-
lations for the government of railway com-
panies. The Judges, and himself among
them, felt themselves incompetent to de-
cide on these matters. He had spent a
great part of his life in studying the laws
of his country; but he confessed he was
wholly unacquainted with railway manage-
ment, as well as the transit of goods by
boats; he knew not how to determine
what was a reasonable fare, what was un-
due delay, or within what time trucks and
boats should be returned. He believed he
had correctly represented the feelings of
all his learned brethren on the bench in
reference to this Bill, with one exception,
whom he mentioned with honour, respect,
and reverence-he meant the learned Chief
Justice of the Court of Common Pleas,
than whom there was no Judge on the
bench more zealous or more efficient; and
that learned Judge, whilst he agreed in
thinking that these were not judicial duties,
had no doubt that his brethren on the bench
would be able to work the Bill properly.
He (Lord Campbell) would humbly
gest that if the discharge of the duties
imposed by the Bill should devolve on the
Court of Common Pleas, where there were
Judges as learned and efficient as ever sat
in Westminster Hall, it would give satis-
faction to the country; at the same time,
however, he did not propose to throw on
other Judges a task which ought not to
have been imposed on any of them. They
should have a lay tribunal for the decision
of questions of the nature contemplated by
the Bill, and not one composed of the
Judges. It had been proposed in the
House of Commons last year, that there
should be a department of the Government
to which matters of this kind should be re-
ferred; and, he thought, that would have

been a more desirable plan than the one now under consideration. Having said this much, he had only to observe that it was not his intention to move any Amendment to the Bill. If their Lordships should be pleased to impose on him duties for which he felt himself incompetent, he would endeavour to perform them to the best of his ability; but, he must again say, these were not judicial duties, and that they ought not to be imposed on the Judges.

THE LORD CHANCELLOR said, he could not but think, in spite of the remarks which had just fallen from his noble and learned Friend, that if their Lordships should give their favourable attention to this Bill, and if it should pass into law, there would be no practical difficulty found in its application to the evils which it was framed to remedy. His noble and learned Friend (Lord Campbell) had said their Lordships would be entering upon an anomalous course if they imposed on the Judges duties which were not judicial. To some extent that was true; but his noble and learned Friend must recollect that their Lordships had now to deal with a very anomalous state of things. He must remember that they themselves as passengers, and their horses, goods, and commodities, were not now conveyed along the Queen's highways as formerly, but upon highways belonging to individuals; and that had given rise to enactments calculated to meet this new state of things, and very different from those which formerly prevailed. The question now was whether anything could be suggested that was likely to render this mode of travelling more satisfactory to the public. His noble and learned Friend had said these were sug-questions which ought to have been confided to what he called a lay tribunal-and, looking at the subject theoretically, he entirely concurred in that opinion. But his noble and learned Friend could not have forgotten that they had been already confided to a lay tribunal. There was a Board of that kind, presided over by a very able man, in existence until recently, and, not having given satisfaction, it was abandoned consensu omnium. He (the Lord Chancellor) had at first suggested that the party complaining should bring his action under the sanction of the Board of Trade; but it was objected to his proposal that it was the machinery of a lawyer, and not of a practical man. What did this Bill propose? Why, that in case there

were arrangements made by two railway Bill to the Court of Common Pleas. He companies which were inconvenient-and had received a letter from Chief Justice sometimes such arrangements were inten- Jervis on the subject, which he would read tionally inconvenient-any person might to their Lordships :make a complaint to one of the Judges, who, if he was satisfied that, prima facie, there was ground for complaint, might refer the matter to an engineer or some other competent person to determine what was best to be done.

"47, Eaton Square, May 25. "My dear Lord Stanley,-I have no objection to your stating in the House of Lords and elsewhere, if you please, that in my opinion the Railway Traffic Bill may be worked by the Judges, It will if they will take the trouble to work it. The railway companies

were perfectly satisfied with that provision; and if there was a prospect of its affording to both persons concerned a practical relief in an inexpensive and effectual mode, why should it not be attempted? His noble and learned Friend had said the Judges were perfectly unacquainted with these matters; but his noble and learned Friend must not forget that these were questions which already frequently came under the consideration of the Judges and juries, and the functions imposed upon the Judges by this Bill would be much the same thing as those he now fulfilled when trying a cause before a jury. In the latter case he had to sum up the evidence and explain the law to the jury; and what would he have to do under this Act? He would hear the evidence, and having heard would have to apply the law accordingly. They had now to do through the medium of a jury what under this Bill they would have to do alone; and he (the Lord Chancellor) believed they would find no sort of difficulty. There was an apprehension, doubtless, in the minds of some of the Judges, that they would feel some difficulty in undertaking the duties sought to be imposed on them; but the learned Chief Justice of the Court of Common Pleas had stated to him that he saw, practically, no difficulty at all in the matter. With respect to the suggestion made by his noble and learned Friend, he (the Lord Chancellor) did not see any difficulty in confining the cases arising under the provisions of the Bill to the Court of Common Pleas, especially as it was not so overburdened with business as the other courts were. He thought it would be a useful amendment to the Bill to confine the business to that Court; and if, on a trial, it should not be found to work satisfactorily, it would be the duty of the Government to devise something better. On the whole, he was of opinion that this was likely to be a very useful


LORD STANLEY OF ALDERLEY said, he had no objection to the proposal of confining the actions to be brought under this The Lord Chancellor

certainly give them some trouble, but, as I do not see a more satisfactory way of settling questions in which the public have a deep interest, the Judges ought not, in my opinion, to decline the duty, merely because it will be difficult. I ought to add that the majority of the Judges seem to character, and ought not to be imposed upon think that the proposed work is not of a judicial them."

Such was the opinion of the Chief Justice, and he had no doubt the Bill would work well.

LORD CAMPBELL said, that it would be a mistake to suppose that the Judges wished to shirk taking upon themselves the trouble which the Bill would impose upon them. All that he intended to contend for was, that the duties were not strictly of a judicial nature, and ought to be discharged by some other tribunal.

EARL FITZWILLIAM said, he rejoiced to think that these questions were likely to be referred to one of the Judges, at least, who would undertake their consideration con amore; because there could be nothing more unwise on the part of the Legislature than to impose duties upon a body of men who were not likely to discharge them cheerfully and willingly. He entertained a very decided opinion, however, that questions of this kind could never be satisfactorily settled except by a department of the Government specially provided for that purpose. With respect to the observation of his noble and learned Friend on the woolsack, that a department to which such questions were wont to be referred had been abandoned consensu omnium, be begged to call to his noble and learned Friend's recollection that it was abandoned consensu omnium because at that period the railway interest was particularly strong. As railway matters were now conducted, it was clearly necessary that we should have a Board who would listen to the complaints of the public and have something like an autocratic power to remedy them. This Bill certainly afforded no remedy for the existing evils, for the railway directors would snap their fingers at, and entirely disregard it.

House in Committee. Clauses agreed to, with Amendments. LORD STANLEY OF ALDERLEY said, that he had no objection to insert a clause for the purpose of making the liability of the railway companies as common carriers more clear. The clause had been drawn by the noble and learned Lord opposite (Lord Lyndhurst).

LORD LYNDHURST said, that the clause was drawn in such a manner as to embody as nearly as possible the provisions of the 11 Geo. IV. (the Common Carriers Act). As the clause at present stood, it was proposed to give the owners of horses and cattle killed or injured by the negligence of the servants of a railway company, the power to recover a sum not exceeding 501. for a horse, 121. for a head of horned cattle, and 50s. for a sheep or pig.

LORD STANLEY thought that these sums were too high, and therefore suggested that the clause should be agreed to in blank, and that the figures should be inserted after further consideration on bringing up the report.

Clause agreed to.

paid out of the proceeds when it was condemned. But the fact was, that as the ship was not yet brought up for condemnation, no one could presume to say whether she would be condemned or not. Now, under the old system the prize agent appointed by the ship's crew took upon himself the whole charge of the prize, defrayed all the incidental expenses, and took the risk of being repaid if the vessel was condemned. He had on a former occasion stated his objections to giving this Bill a retrospective action, and he hoped that his noble Friend (the Duke of Newcastle) would now assent to the introduction of an Amendment to guard against this. Another point on which he wished to insert an Amendment was the following. The noble Duke had stated that little or no injury would accrue to the Navy agents from this measure, because other Acts give them a great interest in the distribution of the value of prizes taken, to the amount of 2 per cent upon the proceeds. Now, in this statement there was a confusion between the Navy agents and the prize agents the former, who were the parties referred to in the former Acts of

Report of Amendments to be received Parliaments, being the agents of the indion Thursday next.


vidual officers, and not of the crews. He wished, therefore, to secure to these persons what was given them by former Acts,

Order of the Day for the Third Reading and which the noble Duke said that he did read.

THE EARL OF HARDWICKE said, that the more he considered the provisions of this Bill the more he was convinced that, if it became law in its present form, it would be productive of serious inconvenience to the Navy. He knew that in the present state of the House and of public feeling it was in vain to attempt to prevent its passing; but he nevertheless felt convinced that the functions of prize agents could not be properly performed by the machinery which was to be established by this Bill. A circumstance, indeed, had just occurred which strongly corroborated the views he entertained on this point. A prize having been taken in the Baltic by the James Watt had been brought into the river for condemnation. The prize agent then found that certain charges to the amount of about 157. had been incurred for the wages and provisions of the prize crew, and on applying to the Admiralty to know whence he was to procure funds to satisfy the demand, he was informed through Admiral Berkeley that the charges and expenses incidental to the prize would be

not seek to deprive them of; and he would therefore move the insertion in Clause 26 of words declaring that this Bill was not intended to deprive a ship's crew or officers of the right of appointing agents, under a power of attorney, who should be authorised to receive the prize money from the Paymaster General, and to distribute it. He should also propose to insert another Amendment with the view of preventing the Act from having any retrospective operation.

THE DUKE OF NEWCASTLE said, that it was not the fact that any loss would accrue to the captains and crews of the vessels which took prizes in consequence of the cessation of the practice of allowing Navy agents to transact the whole business connected with a prize previous to its condemnation. It was true that, in a case to which the noble Earl referred, the prize agent had been informed by the Admiralty that the captain's agent would be liable for the expenses attendant upon bringing the prize over for condemnation. But the fact was that the captain of the vessel taking the prize was at the present moment liable

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