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THE EARL OF HARROWBY moved that the Report of the Committee upon this Bill be received and adopted.
EARL FITZWILLIAM said, that by this Bill the power of amalgamating parishes was vested in the Diocesan and the Church Building Commissioners; but he thought that the inhabitants of the parishes to be dealt with should have a voice in the matter; and he wished to know whether his noble Friend had any objection to insert a provision to that effect?
THE EARL OF HARROWBY said, that the parishioners would have every opportunity of being heard before any order for the amalgamation of the parishes was made; but he thought the provision suggested by the noble Earl would render the Bill entirely nugatory. When they considered the sort of agitation against any amalgamation that would be got up by the vestry clerk, the churchwardens, the sextons, and others similarly situated, it was quite clear that if the consent of the parishioners was rendered necessary, no union of parishes would ever take place. Besides, under the present law, parishes could be united without any such consent being given on the part of the parishioners.
THE BISHOP OF LONDON said, he quite agreed with the opinion of the noble Earl that the introduction of such a provision as that suggested would be fatal to the efficiency of the Bill. In no case would a church be pulled down in pursuance of the powers given by this Bill, without the parishioners being heard upon the question; but if their assent was indispensably requisite to any union of parishes, any one conversant with the construction of vestries in London would be well aware that it always would be quite easy, on any proposed amalgamation, to get up such an agitation as would prevent that assent being given.
THE BISHOP OF OXFORD said, that the noble Earl had remarked that under the existing law the consent of the parishioners was not requisite in order to the union of parishes. But it should be recollected that the existing law did not contemplate the pulling down of the parish church. And as power to do that was given by the present Bill, he did not think it was asking
too much for the laity of the parish, that no such step should be taken without the consent of a majority of the vestry. If the carrying out the objects of the Bill were liable to be obstructed by a factious minority, he would not recommend the introduction of such a provision; but he certainly thought a church ought not to be pulled down without the consent of a majority of the ratepayers.
THE BISHOP OF LONDON said, that, under the existing law, when two parishes were united, one of the parish churches might be pulled down, in pursuance of a faculty issued by the Ecclesiastical Court. The parishioners were heard before this was granted, but their consent was not requisite.
EARL FITZWILLIAM said, that the question was whether the propriety of taking down the old parish church should be determined solely by two ecclesiastical authorities, or whether the lay element should have a voice in deciding it. He believed that all parties were pretty well agreed with respect to the expediency of this measure as far as regarded the City of London; but it was proposed to make it a general measure, and to enforce it in towns which had never anticipated such a step. He certainly thought their inhabitants should have some voice in deciding whether their parishes should be united and their old churches pulled down.
THE EARL OF HARROWBY explained that the power had been vested in the Diocesan and Ecclesiastical Commissioners for the purpose of saving expense, but that the parishioners would have the same opportunity of expressing their opinions as they had under the existing law; but he did not think it advisable to confer a veto upon them.
Amendments reported; further Amendments made; Bill re-committed to a Committee of the whole House on Tuesday next.
RAILWAY AND CANAL TRAFFIC
Order of the Day for the Second Reading read.
LORD STANLEY OF ALDERLEY moved, that the Bill be now read 2a. His Lordship stated that the object of the Bill was twofold; it first defined the duties and obligations of railway and canal companies, and proceeded to establish a code by which these duties and obligations would be enforced. It had been found a matter of some difficulty to determine
pose of advantage, as to deprive rival companies of a country which they thought they ought to possess. He trusted, therefore, that their Lordships would not object to give a second reading to this Bill, which he hoped would be productive of all the good effects expected from it.
the best way of proceeding. It was considered that there were two modes by which the rules might be carried into effect. The one was by the establishment of a separate and independent Board of the Executive Government, and the other by leaving it to courts of law, to whom all complaints should be made to enforce obedience to LORD CAMPBELL looked upon the obthe laws that were prescribed. There ject of the Bill as an excellent one, but he were no doubt a great many authorities in thought the machinery was not well adaptfavour of establishing an independent ed for carrying that object into effect, and Board, but it was perceived that there that it would not work beneficially. In its were difficulties in the way of doing so. enactments the Bill fell far short of what There was no doubt much weight in the might have been expected; but, besides argument that had been urged that there this, it seemed wholly ineffective, and, he would be an objection to commit the neces- must say, not very well conceived. sary powers to a portion of the Executive Act sought to turn the Judges of the Government, who would be liable to the courts of common law into railway direcimputation of being influenced by political tors. Now, those Judges were most willfeelings, and though they should not be ing to perform the duties devolving upon liable to such imputation such charges them in administering the law of the land, would be made and destroy their utility. and any fresh duties of a judicial nature The other course, therefore, was adopted, which their Lordships might think ought and it was proposed that any party having to be imposed upon them; but the duties to complain of any infraction of the Sta- now sought to be cast upon them had notutes and obligations might apply for relief thing at all to do with law. The Judges to any of the superior courts of law, who were, as he said, only made railway direccould proceed by way of injunction to have tors by this Bill. No rule was laid down obstacles removed or cause facilities to be which they were to enforce. The whole of given that were required to be given. They this enacting law, as far as railways were conceived, likewise, that the decision of a concerned, was to be found in the second superior court of law was more likely to be section; and what did that say? It said carried into effect than the decision of any this, and no more-that railway companies Board. Throughout the whole of the ought to act honestly; and common-law communications between the representa- Judges were to be called on to say whetives of the railway interest and the Board ther railway companies had acted honestly of Trade, he had every reason to give or not. They had no statutable or common great credit to those gentlemen for their law authority to which they were referred; anxious wish to co-operate with Her Ma- no decisions of their predecessors to guide jesty's Government in making this a really them; but, to be able satisfactorily to disefficient and working Bill for carrying into charge their new functions, they must go effect the objects which Parliament had in as apprentices to civil engineers and travel view. Very great importance must be upon the railways, in order to acquire some attached to their co-operation in order to knowledge of engineering, and of the mando that which otherwise would be extremely ner in which these railways were conducted. difficult, and the objections they had ad- This second section, he repeated, was in vanced appeared in many instances far substance merely, that railway companies from unreasonable. He believed that the should do their duty. If they did not do Bill now proposed would secure most of their duty, there might be a complaint to the objects which Parliament wished to the courts of common law, who were to see carried out; it would give greater faci-judge whether those companies had or had lities to those who necessarily made use of not done their duty. The language of the railways; and at the same time it was second section was, that “ every railway well calculated to improve the property of company, canal company, and railway and the shareholders themselves, preventing canal company, shall afford all reasonable the disposition which at present existed, on facilities for the receiving and forwarding, the part of railway directors and others, to and delivering of traffic, upon and from the make what was called "fighting lines," several railways and canals belonging to or and to enter into useless competition with worked by such companies respectively." other railways, not so much for the pur- Well, but did not this duty of affording all Lord Stanley of Alderley
be the number of carriages, what should be the fares, and all those particulars which would remove the complaints that had been made, taking care that no prejudice was done to one, and no favour shown to another. If the Bill could be at all modified, so as to meet these objections, he should heartily rejoice; but he did trust that their Lordships would not give their assent to the second reading of the Bill unless those objections were entirely removed, which could hardly be done without remodelling the measure. There was, indeed, one section which to a certain degree relieved his anxiety, because it appeared that the Judges might get rid of all this responsibi lity by passing it over to another tribunal. By the fourth section, any nine of the Judges-of whom the Lord Chancellor, the Master of the Rolls, the Lord Chief Justice of the Queen's Bench and Common Pleas, and the Lord Chief Baron of the Exchequer, were to be five-were to have power from time to time to make general rules and orders "touching the practice and otherwise in carrying this Act into execution before such courts and Judges, as they may think fit;" so that they might transfer these cases from the courts of common law in Westminster Hall, and send them to the petty or quarter sessions or a pie-poudre court. anything of a judicial character, he hoped the Judges of the courts of common law would never shirk their duties; but, looking at the duties entailed upon them by this Bill, he certainly thought they lay beyond the province of the Judges.
reasonable facilities devolve upon railway companies before? Then the clause enact ed that traffic was to be forwarded "without any unreasonable delay," and so that "no obstruction may be offered to the public." Well, but there ought not to be any obstruction now. This was not laying down any new rules binding the company. "No such company" (the clause continued) "shall make or give any unreasonable preference or advantage to or in favour of any particular person or company." This, too, they ought not to do at present, and railway directors were acting very improperly if they did so." Nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable disadvantage in any respect whatsoever;" and they were to afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals," and were to show no undue favour to one or undue prejudice to another. This was what was proposed to be enacted by their Lordships. But all that was just saying, as he had before observed, that railways ought to conduct their business according to the rules of morality and honesty. Well, but how was the Bill to be carried into effect? Why, there might be a complaint to a court of law, that the companies had not done what they should do, that is, that the trains had started too late, that there was not a sufficient number of carriages, that the staff employed was inadequate, that the time was not punctually kept, that one person was favoured to the prejudice of another, or that the luggage trains were not properly conducted. These complaints were to be made. The Judges, then, had first to try upon affidavit whether the trains were sufficiently equipped, whether time had been properly kept, and the fares were just and reasonable, without favour to one or prejudice to another. Hitherto the maxim had been, that the Judges were to answer questions of law, and the jury questions of fact; but here they were called upon to answer questions of fact, upon which they must be wholly incompetent to form an opinion. It might be said that engineers might report to them; but the report of an engineer did not decide the case. The Judges must hear the matter over again after this report was made. They must hear all that could be said against it and in its favour, and after many days' discussion they were to say how many trains should start, what should
With regard to
THE LORD CHANCELLOR said, it must be admitted that the object of the Bill was a very desirable one, and that a remedy was required for the evil to which it had reference. The public complained exceedingly that at the railway stations in different parts of England there not only were not the facilities which ought to be afforded to railway passengers, but that there was obviously intended there should be a want of proper facilities in order to serve the purpose of particular railways. Facilities were given for forwarding the commodities of particular companies to the prejudice of others. Thus, on the Great Northern-and he supposed it must be mentioned without blame to the officials of that line, who, of course, did so for the benefit of their shareholders-some persons had the means of forwarding their coals to London, while others had none. This was one of the grievances of which
great complaint had been made to the Go- | more definite than this in the present Bill; vernment. Was it not necessarily the but he did not see it was more difficult to duty of the Government to try and remedy say that a railway company had not given that evil? When first appealed to on the "reasonable facilities," than it was to say subject, he said the abuse could only be that a carrier or innkeeper had failed in reached by instituting a sort of autocratic complying with the requirements of the Board; but, on consideration, he thought law affecting them. This, then, was the this would not do, because it interfered substantial meaning of the Bill. Now, with the pecuniary interest of parties, and how could it be carried into effect? When it would be always thought unsatisfactory he was first consulted on this subject, he that the Board of Trade, or any railway said, "It seems to me that, having deBoard, should be substantially able to put fined, as well as you can, what is the duty their hands into the pockets of railway of the companies, you should then leave it companies. It seemed impossible, there- to those who complain to bring an action. fore, to regulate all these matters merely against them, and to say, You have not by an administrative Act on the part of the given us reasonable facilities;' and when Government, and the companies felt this. it is established on the trial that such reaReasonably enough they said, "We don't sonable facilities have not been given, object to be under regulations, provided it then the Board of Trade should have be first legally established that we have power to make such regulations as are failed to do something we ought to have necessary." The railway companies did done.' This objection you were forced to meet by enacting as well as you could what it was that railway companies were bound to do, and then providing a machinery to see that that was done. The present Bill, which was framed for that purpose, consisted substantially of only two clauses. It enacted that companies should afford all reasonable facilities for receiving, forwarding, and delivering traffic upon the several railways and canals worked by such companies, no undue preferences being given to anybody, but perfect fairness being observed to all. It was said that this was enacting nothing, that it was merely laying down that railway directors should be honest people. This, however, he denied. The Bill enacted that companies must give reasonable facilities for traffic. He might, perhaps, be asked what constituted "giving reasonable facilities?" ["Hear!"] It was very natural for noble Lords to cry 66 hear to this, but pray what was the "reasonable facility" which an innkeeper must give? An innkeeper was bound to receive guests who presented themselves, and he might be indicted, or an action be brought against him, if he failed to give reasonable facilities in this way. The difficulty of saying what was reasonable, and what was unreasonable, had not stopped the wisdom of our ancestors in saying that this was a law which ought to be enforced. Then, again, a common carrier was bound to give reasonable facilities in taking all goods which were presented to him. He admitted it was unsatisfactory to be able to say nothing The Lord Chancellor
not object to this, but said, "You are occasioning to us and to the public an unnecessary expense, and a complication of machinery which we wish to get rid of. We will be perfectly satisfied to take it without trial at all. If a Judge is satisfied upon affidavits that there is cause for inquiry, upon the report of that Judge let there be an order of the court for putting an end to the inconvenience complained of." What was there in principle to make this course either inexpedient, difficult, or objectionable? It seemed to him to be a very simple proceeding. You established, by judicial or quasi-judicial proceedings, that that had not been done upon a certain railway which ought to have been done in a particular instance; and this being established, you gave power to the court by an injunction to make the company do that which it ought to have done. Perhaps in theory this might not seem so efficacious as the plan he had first alluded to, of proceeding, after an action brought, by any private person who thought himself aggrieved. If this opinion were general, nothing could be easier than for their Lordships so to alter the Bill in Committee; but he believed that by doing so they would only be encumbering the measure without adding to its efficiency. As to what had been said by the noble and learned Lord with regard to the power of the Judges to transfer the trial of these cases to the sessions, it must be quite evident that if the clause implied this at all, it must only be from a little defect in grammar. The clause ran thus
"It shall be lawful for the said courts, or the Judges thereof, from time to time, to make all such general rules and orders as to the forms of proceedings and process, and all other matters and things touching the practice and otherwise in carrying this Act into execution before such courts and Judges as they may think fit."
Now, it could hardly be supposed that the clause meant to authorise the Judges to transfer these cases to the sessions; it clearly intended to confine the trial of those cases to the superior courts of law at Westminster. If, however, there was any defect in the clause, it might easily be altered in Committee. He trusted, therefore, that their Lordships would give their assent to the second reading of this Bill.
THE EARL OF DERBY said, that as the object of this Bill professed to be to define and specify the duties and obligations of railway companies, he wished to direct the attention of the Government to a point which was not at all touched in this measure, but which was, nevertheless, of some importance-he meant the claim set up by a portion of the railway companies, and he believed admitted by the courts of law, to exempt themselves from responsibility for accidents, or for damage to passengers and goods conveyed on their lines, notwithstanding proved negligence on the part of their officers, by simply placing on the back of their tickets a statement that the company would not hold itself liable for any damage that might occur on the journey. There was a case tried not long ago where a number of cattle, having been placed in railway trucks to be brought to Smithfield market, were allowed to get out of the train, and loss ensued to their owner by the proved negligence of the servants of the company, and the defective construction of the vehicles in which they were conveyed. An action was brought against the company, and it was proved that the person who put the cattle on the train received and accepted a ticket stating on the back of it that the company would not hold itself liable to make good any loss that might take place on the line; and, therefore, although the accident was proved to have arisen from inefficient management and defective arrangements on the part of the company, there was no remedy for the party who suffered, and the company escaped entirely scot free. He thought the noble and learned Lord opposite said the remedy for the party would have been, in the first instance, to
refuse to accept the ticket tendered to him, and then, if the company should refuse to carry either him or his goods, he might bring an action against them, treating them as common carriers who had refused to fulfil their duties as such. But, in the first place, this would be no practical remedy, because there was all the expense and all the trouble to a private individual of proceeding against a great company, and with no great certainty of success in the action after all, because the question of law as to the liability of common carriers was itself not very clear, and therefore they would throw upon an individual the onus of attempting to settle a doubtful point of law. But supposing he were to succeed in recovering a certain amount of damages, that would be no satisfaction to him if his cattle had been prevented from arriving at a particular point by a particular time. In the case to which he had referred, the cattle were going to Smithfield market, where they ought to arrive on Monday morning; and it might be all very well to ask the party to remain at Northampton with his cattle until he could bring an action against the company to try whether they were liable to carry his six beasts to Smithfield market; but what would be the practical value of such a remedy as that? The railway companies were now the great monopolists of the carrying trade of the country, because they were the single and sole conveyance by which passengers and goods could be carried to and from distant parts of the country; and, therefore, to say that a person might refuse to sign a ticket, without which ticket the company declined to take him and his goods along their line, and then could subsequently bring an action against them for their refusal, was really saying that you deprived him of all practical remedy whatever. Now he could not understand on what principle it was that the railways, having received this entire control over the whole traffic of the country, should be permitted to exempt themselves from that liability and responsi bility which ought to attach to them as common carriers, and as having, moreover, a monopoly of the common carriage of the country, by simply putting on the back of their tickets, which if the passenger refused to accept he lost all chance of getting to his destination, the declaration that they did not hold themselves liable for anything that might happen on their lines to passengers or goods. Nothing de