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manded more attention from the Legislature, or more required definition, than the state of the law as to whether the railway companies had or had not the power of divesting themselves of all responsibility for any danger arising from their own negligence, and of thus leaving to the public, who were entirely dependent on them for their conveyance, no other choice but that of losing their transit, and subsequently instituting proceedings against the companies; and he thought it desirable to bring this point under their Lordships' notice, seeing that the present Bill purported to define the duties, responsibilities, and obligations of railways.
came to railways, where the public had no choice and the companies had a monopoly. Under these circumstances he thought a clause should be introduced into this Bill, placing railway companies and common carriers on the same footing in this respect.
EARL GREY concurred in the view taken by the noble and learned Lord who had just spoken. He knew a case where a railway company delivered a ticket, stating that the company received goods for conveyance on the following conditionsnamely, that the owners would undertake all risk from the loading or unloading of the carriages, or whether arising from the negligence or default of the company's servants, from defects in the stations, or
that actually the servants of the company might wilfully cut the throats of valuable animals in the trucks, and the company, under the security of this ticket, might turn round and repudiate all responsibility for what had happened. He understood that in the Common Carriers Act, which had been referred to, there was a particular clause which exempted special contracts from the operation of the Act, and that therefore by this clause railway companies could relieve themselves from their just responsibility. He believed that, as the
LORD LYNDHURST said, that by the common law of this country a common carrier was bound to accept goods when" from any other cause whatsoever." So offered to him for the purpose of being carried to their destination; and if he were guilty of negligence, and the owner of the goods suffered in consequence, he was bound to make reparation. The common carriers endeavoured to limit their liability by notices similar to those to which his noble Friend had referred, and it was decided, when the case came before the courts of justice that they had a right to do so. The consequence of this was, that an Act of Parliament was passed to prevent that species of defence from being set up. Therefore, as far as common car-law had been interpreted in the courts of riers were concerned-he meant the general class of common carriers-that species of defence could no longer be pleaded. But he understood that a case had come before a county court of this description, the very case to which his noble Friend had alluded; and the Judge of the county court was of opinion, that the railway company had no right to insist on the protection of such a notice as that which he had stated; and he was informed, that in consequence of that decision the case came before the Court of Common Pleas, and the Act of Parliament which he had mentioned was there referred to, and the Court of Common Pleas was of opinion that that Act did not apply to railway companies. The consequence of this was, that railway companies, although they were common carriers, stood upon a different footing from that on which the common law and the Act of Parliament placed common carriers. Now, it was clear, that if it was proper to put such a restriction on ordinary carriage where great competition existed, there was a much stronger reason for the application of such a restriction when they The Earl of Derby
justice, there was no redress afforded to farmers and cattle jobbers. They must send their property to market by railway, and if they were injured by the negligence of the company they could obtain no reparation. It was therefore absolutely necessary that some restraint should be put upon the power of these companies. If he was not misinformed, one of them had attempted to carry this power of self-exemption much further, and had declared in its tickets that even if death was caused on the line, the relatives of a passenger should be entitled to no compensation. The courts of law, had, however, decided that this was a little too strong. [Lord CAMPBELL: Such a ticket would be mere waste paper.] There, ought, therefore, to be a clause inserted in this Bill to settle this matter. At the same time, he thought the liabilities of the railway companies ought to be limited; so that if a valuable racehorse, worth 500 guineas, for instance, was put upon the line without a special notice, the company should not be bound to make good the whole value in case of accident. He believed this Bill, as origi
nally drawn, had a clause suitable for the no company in the kingdom that did not necessities of the case, but it had been from time to time come before Parliament expunged through the powerful influence to ask for additional powers, and nothing of the railway interest in another place, to could be more reasonable than that they cope with which nothing but extraordinary should, as guardians of the public interest, firmness on the part of those who had say to the companies, "We are willing to charge of such a measure would suffice. grant you the powers for which you apply, He felt that by this Bill the Government but only on the condition that you on your were calling upon the courts of law to en- part accept those clauses which we consiforce obligations certainly substantial in der to be essential for the protection of their nature, but yet of so vague and un- the public." It was not too late for their defined a character that it would be ex- Lordships to take that course now, because tremely difficult for such tribunals, whose there were many railway Bills that had not proper functions were to expound the com- yet passed; and if they acted on that mon and statute law, to discharge such principle, he believed that, whether they new duties satisfactorily. Again, it would passed such a Bill as the present or not, be very hard towards a private individual, in three or four years' time there would say a cattle jobber dealing in the New- not be a railway in the kingdom which castle market, to compel him to come into would not be subject to the liabilities and a court of law to oppose perhaps a wealthy obligations which their Lordships wished to and powerful company like the Newcastle, impose upon it. York, and Berwick Railway. He understood that in France, when undue favour was shown by a railway company to the prejudice of other parties, the injured persons laid the case before the Minister of the Interior, who considered it, and if the circumstances warranted it, prosecuted the company in a court of law on behalf of the Government itself.
THE LORD CHANCELLOR said, that was very much the mode proposed by this Bill, because it would enable the party aggrieved to go before the Board of Trade, when, if the case justified it, the Board of Trade would instruct the Attorney General to prosecute.
LORD STANLEY OF ALDERLEY said, he thought, with reference to the last suggestion of the noble Earl, that it would hardly be desirable to pass such a standing Order as would give the go-by to all the railway legislation of the other House during the present Session. With regard to the Post-office, and the facilities to which it was entitled from the railways, that subject had been under the consideration of the Government, and clauses with respect to it had been prepared; but a Committee had reported that it would not be expedient to introduce those clauses. A separate Bill would therefore be introduced on the subject as soon as the Committee who EARL GREY said, if that were so, his were considering it had made a further reobjection so far was removed. When port. He conceived that there would be no he looked at this Bill and saw how far objection to putting the railway companies it fell short of what was required, he and the common carriers on the same footmore and more regretted that the Go-ing, and he would take time to consider the vernment did not, as he had suggested in the early part of the Session, consider what facilities the railways ought to give to the public, and particularly to the Postoffice, which had not received from the companies the facilities which that department had a right to expect; and then have framed clauses to be enforced upon the railway companies. They ought to have made it a standing Order of that House that no additional powers should be given to any existing company, unless it inserted in its Bill clauses ensuring to the public corresponding conditions for its benefit. They were told that in the other House the railway interest was formidable; but that difficulty might be overcome in the manner he had pointed out. There was
preparation of a clause to be inserted in this Bill for that object. He had not been aware of the decision of the Court of Common Pleas that had been referred to, and had supposed that the law was the same already with regard to railways and common carriers. This Bill laid down the great principle that there were certain duties and obligations attaching to railways which ought to be performed, and the machinery it proposed had the concurrence of the companies. Let that machinery therefore be tested, and should it be found insufficient to attain its object, it would then be competent for Parliament to substitute a better machinery in its place.
THE MARQUESS OF CLANRICARDE said, if it was desired really to grapple
with the question, they must begin at the beginning, and reconsider their whole mode of procedure with regard to railway legislation. The whole of the mischief, the enormous losses, the ruin to which thousands of individuals had been exposed, the immense inconvenience to which the public had been subjected in connection with railways, arose entirely from the imperfect system under which railway legislation had been conducted in both Houses of Parliament. He was glad to see in the House his noble and learned Friend (Lord Brougham), who had taken so active a part in promoting many useful reforms, and who had already made attempts, which he trusted the noble and learned Lord would not abandon, to induce their Lordships to legislate on this important subject. It was to him (the Marquess of Clanricarde) a matter of wonder that the people of this country had so long borne the neglect with which a question of such vast importance had been treated by the Legislature. It was, he thought, a great misfortune that, in 1837, cold water should have been thrown upon the modest attempts at the regula tion of railways made by Mr. Labouchere. About that period most eloquent and powerful speeches were made on the subject by his noble and learned Friend (Lord Brougham); but Sir Robert Peel unfortunately threw overboard the recommendations of Lord Dalhousie, which were undoubtedly the result of great labour and diligence and were of the highest value. Since that time no effort had been made by any Government to improve our mode of legislation on the subject, and the noble and learned Lord opposite had been almost alone in his efforts to attract attention to the matter in their Lordships' House. It was not yet, however, too late to deal with the question. As had been observed, constant applications were made to Parliament by the great railway companies, and he thought it was most desirable that a proper tribunal should be appointed, which might decide upon the policy and safety of the propositions involved in the Bills that were submitted to Parliament. Their Lordships would then be enabled to deal with the subject in a rational manner, and, by degrees, they would get those great bodies, that now enjoyed a monopoly which was injurious to the country, more or less under their control. The noble Earl below him had thrown out very practical and excellent suggestions; but he (the Marquess of Clauricarde) thought those suggestions The Marquess of Clanricarde
could not be carried out unless a better tribunal were established for the consideration of Bills of this description. At present, railway Bills were referred to a tribunal of five Peers, chosen, he could not say by chance, but certainly not from the most efficient Members of the House; and the same observation would apply, with still greater force, to the Committees of the other House of Parliament. One consequence of the existing system was, that most contradictory decisions were adopted upon the important questions relating to railways which were referred to Committees of both Houses. It was most important that they should have a better code and a better tribunal for dealing with this subject; and until some such plan as had formerly been proposed by his noble and learned Friend (Lord Brougham), and which he trusted the noble and learned Lord would again propose, was adopted, it was impossible that railway legislation could be placed upon a footing that would be satisfactory to the public, that would avoid an enormous waste of money, and that would really fully and safely develope the resources of the country.
LORD BROUGHAM entirely agreed with his noble Friend (the Marquess of Clanricarde) that they had mistaken their way from the beginning in their railway legislation, and he was also of opinion that the true remedy to apply to the mischief was an alteration in that course of legislative procedure. But with respect to this particular measure, he also thought that it did not go far enough by a great deal, and that, to a certain degree, it did not go in the right direction. He felt very much the difficulty to which his noble and learned Friend the Lord Chief Justice had called their attention-the difficulty in which the courts of law and the judges would be placed by the Bill, because there was to be an application to any Judge upon affidavit calling upon him to enter into the question whether a given railway that might be complained of had done its duty in provid ing reasonable facilities either for the goods or for the persons of the parties complaining. He said there would be great difficulty indeed in following this up, so as to carry it into effect; but he did not despair that it might possibly lead to some check in the abuses now so generally, and he was afraid he must add so justly, complained of. There was, however, another alteration which he thought was of tenfold importance-namely, to prevent the possi
bility of railway companies limiting their liability by putting persons to the election either of not travelling at all or having their goods carried by railway, or of taking tickets which would exempt the companies from the liability which the law cast upon them, or ought to cast upon them. The railway companies sought neither more nor less than to evade responsibility by this special contract—a contract forced upon a passenger-a contract into which he entered upon compulsion-a contract which might almost be said to be bad on account of the duress under which the passenger was compelled to enter into it; and, if persons did not enter into this contract for the purpose of exempting the companies from the liability which the law of the land cast upon them, they were to be prevented from travelling at all or from having their goods carried by railway. In his humble opinion, this Bill should be so improved as to prevent the possibility of such a system continuing. He was afraid that it would not be sufficient merely to impose upon railway companies the responsibility that attached by law to common carriers, because common carriers were only bound to convey goods. He knew of no obligation upon common carriers to carry persons. But were persons who wished to travel by railway to be told that unless they agreed to take tickets, limiting the liability of the companies in case of accident, they should not be conveyed at all? Railway companies might so refuse to take passengers as the law now stood, and it would not be sufficient, therefore, to put them simply on the same footing with common carriers. He was very far from wishing to press hardly upon the railway companies; on the contrary, he should be the last person who would desire to interfere unjustly with that most important branch of the commerce of the country; its importance, indeed, could scarcely be overrated. But it must be recollected that the railway companies enjoyed a monopoly. From the immense capital required to enter into competition, any company to which the Legislature had given power to establish railway communication between one point and another might be said substantially to enjoy a monopoly. Nevertheless, taking all the railway interest together, he was very far from desiring to see the Legislature, in any alterations they might make, press too hardly upon those interests. 248,000,000l. of capital were vested in railways, and the revenue VOL. CXXXIII. [THIRD SERIES.]
from these undertakings was said to be 15,000,000l. a year. He must remind their Lordships, also, that all the suffering. and hardship from wrong or negligence in the owners of railways was not on the side of the public. Parliament and the country complained in some respects of the companies; but, in his humble opinion, the railway interest had no little cause on its part to complain of the Legislature. To how many private Bills did Parliament assent in the course of a Session in which railway companies were interested, and with regard to which it might be said they stood in the position, not of plaintiffs, but of defendants, for the protection of their own interests, and so were obliged to apply for Acts? He would take the case of the South-Eastern Railway. He had seen a statement of the number of Bills which in the course of the last ten years that company had been compelled to prosecute, and of the far greater number of Bills brought forward by other parties, to the discussion of which that company was compelled to be a party. In one Session, as he was informed, the South-Eastern Railway Company had been compelled to become parties to twenty-seven Bills, only one of which was promoted by themselves, but the company's interests were so far involved in the other twenty-six that, whether they would or not, they were compelled to appear before the Committees of the two Houses. That company, it was stated, had, during a period of ten years, paid very nearly half a million of money for Parliamentary expenses; so that the company had been paying at the rate of 50,000l. a year in consequence of the course of Parliamentary proceedings with respect to private Bills. He was told, also, that the expenditure of the Great Western Company, under the same circumstances, had been even more considerable. It was unquestionable that means must be found, notwithstanding the great power of the railway interest elsewhere, for coming to an understanding with those important bodies, not by way of threat-for it would be below the dignity of the Government, and still more below the dignity of Parliament, to adopt such a course-but by holding out to them inducements-by saying to them, "If you do so and so, you shall have such and such relief or benefit." In consideration of such relief-which the companies might regard as most precious-they should be required to submit to certain alterations for the benefit of the public; and in adopting a course X
of this description the Legislature would further have the satisfaction of knowing that they would also mightily improve the course and system of transacting Parliamentary business in general. He hoped that this subject would, with the least possible delay, be specially considered by both Houses of Parliament. He had repeatedly called the attention of their Lordships to it; and had laid before them some years ago a body of Resolutions for effecting the improvement in Private Bill legislation. He had the happiness of knowing that the attention of the greatest authority in the other House - the Speaker- had lately been directed to it, and he was confident that the more the subject was examined the more strong would be the conviction of the absolute necessity of making some alterations in the course of private legislation. Within the last eight years great improvements had been effected in the proceedings with regard to private business in the other House by the appointment of Examiners, who perform the duty which used to be discharged by preliminary Committees, of ascertaining whether the Standing Orders had been complied with. The appointment of those Examiners had, he understood, been productive of the greatest possible benefit. They got through their inquiries in one-third of the time that used to be occupied by the preliminary Committee. He understood that during the last Session 366 private Bills passed through Parliament, and the Examiners were able to discharge their duties in connection with those Bills in five or six weeks, while, under the old system, the Committees would have been engaged for as many months. There was not only a great saving of time, but considerable saving of expense to all parties, and the inquiry conducted by the Examiners had the advantage of being much more deliberate and satisfactory than that of the Committees. He hoped the recommendation contained in a Resolution that had been passed, he believed, almost unanimously in the other House, would be adoptednamely, that the same general plan of procedure with respect to private Bill legislation should be common to both Houses. He would not be satisfied with the mere appointment of Examiners by their Lordships; but he hoped to see joint Committees of both Houses of Parliament substituted for the separate Committees of the two Houses, according to the plan laid down in his Resolutions, a plan originally Lord Brougham
suggested by the Duke of Wellington in one particular case, that of boroughs charged with corruption, but a plan of unusual application."
EARL GREY remarked, that there was nothing novel in the proposal that their Lordships should attach certain conditions to their consent to pass measures of private legislation, and that such a course would be no invasion of the rights or privileges of the other House, but would be a legitimate exercise of their Lordships' powers.
LORD CAMPBELL hoped that, as the second reading of the Bill would not be opposed, ample time would be given for considering its provisions before their Lordships were asked to discuss it in Committee. He also wished to have an opportunity of consulting with his brother Judges as to the additional duties proposed to be cast upon them by this measure.
LORD STANLEY OF ALDERLEY expressed his readiness to meet the wishes of the noble and learned Lord.
On Question, agreed to; Bill read 2a accordingly; and committed to a Committee of the whole House on Friday next.
House adjourned to Monday next.
HOUSE OF COMMONS,
Friday, May 19, 1854.
MINUTES.] PUBLIC BILLS. -1° Ecclesiastical Courts; Cruelty to Animals. 2° Public Statues.
EXCISE DUTIES BILL.
LORD NAAS said, he must advert to the fact that the Government had not redeemed the pledge given by the Chancellor of the Exchequer to make an addition to the strength of the revenue police in Ireland. This, however, ought to be done, if it were intended to augment the spirit duty, for an increase of illicit distillation might be expected to follow from that measure. True, illicit distillation had not increased to the degree anticipated from the additional duty imposed last year; but the reason for that was to be found in the high price of grain. It was notorious that when prices were high but little illicit distillation took place, but when otherwise too many farmers turned their