§ The Solicitor General (Sir E. B. Sugden)
said, he rose for the purpose of introducing to the notice of the House his amendments of the law relating to certain matters which had been the subject of particular decisions in the Court of Chancery. It was his intention to introduce five different Bills to alter the law which those decisions had established. The first Bill related to Illusory Appointments. The law of England was favourable to every latitude in the disposition of property. To that liberal principle was owing the introduction of powers of appointment; thus, for instance, if a father were desirous of reserving to himself on his son's marriage a power of appointment, he might do so. There were two sorts of powers of this kind in the law. The one was an exclusive power, by which the father had the power to give the property 364 to one son, or to a few, and to exclude all the rest. The other was a more general power, by which all the sons were included. Now, at law, if one part, however small, were given to some of the sons mentioned in the appointment, the substance of the settlement was sufficiently answered. The exigency of a general power was complied with, if in the appointment of 100,000l. there were given to one son 99,999l. and 1l. to the other; because the law had not the means of pointing out the extent of the sum to be given to each individual. But equity at an early period assumed a power of interfering, on the ground that such an execution of the power was not within the intention of those who had created it, and had frequently declared that some of the appointments thus made were so small as to be illusory, and therefore a case for equitable interference. The authority thus assumed, it was contended, was dangerous, as it must depend almost entirely on the arbitrary distinctions taken by each individual Judge of the Court of Chancery; and it likewise added, the evils of delay and litigation. It was often asked where the line between illusory and valid appointments could be drawn, or what standard could be referred to as that by which a good appointment could always be known. The difficulty of finding such a standard had been often felt, and the power thus assumed by the Courts of Equity has led, as it must lead, to great and unnecessary litigation; so that at last almost all men had agreed in saying, it would have been better that the Courts of Equity should never have possessed such a jurisdiction, but should have left the matter as it stood at law. It occurred to him that the evils he had mentioned might be prevented by the adoption of one general rule. It had been truly held that the introduction of the Equity jurisdiction had proved injurious, and that it might safely put an end to, and the matter left to the Judges at Law to do what was requisite. The Bill which he was now about to propose had met, he was happy to state, with the approbation of those professional gentlemen who had directed their attention to the subject. It had the sanction of the leading members of the profession. The object of it was to restore the law to its old state, and to put the equitable rule on the same footing as the rule at law, so that there should be no such things as Illusory Appointments known 365 in our Courts after the passing of this Act. Any person who might be desirous of bestowing a portion of any given sum upon a particular individual must express his intention, and the money would then go as he had expressed, and this act would not allow a subsequent interference with the disposition of property under an appointment, where the power of appointment itself had made no distinct specification of the amount to be given to the different individuals mentioned in it. This would do no injury to any one; but he trusted it would be found productive of considerable benefit, by stopping a great mass of needless, vexatious, and expensive litigation; while, on the other hand, no hardship whatever could result in any way from the change. Any person who should desire to distribute a specified sum in a particular way would require only to express his desire, in order to have it scrupulously enforced. He concluded with moving—"That leave be given to bring in a Bill to alter and amend the Law relating to Illusory Appointments."
§ Mr. O'Connell
said, it would be very great presumption in so humble an individual as himself to differ on a legal subject with the hon. and learned Gentleman. In the Bill alluded to, however, he conceived that a slight mistake had been made which would require amendment, notwithstanding the general propriety of the measure, which he was quite ready to admit. The existing system was indeed one which much needed reformation, and he would be the last to oppose the progress of what must prove in the main an improvement; he therefore concurred entirely with the honourable and learned Gentleman, that the Law, as it was now administered in Equity, upon the subject of Illusory Appointments in particular, absolutely required amendment. There was, in fact, no rule in Equity, but a question in Equity, as to the Appointment, or as it might be more truly and conveniently described, the apportionment of property. In every case of distribution of this particular kind, the Court entered upon the inquiry with a view to see whether a substantive share had or had not been given to the various objects of the power of appointment. This raised a question, but gave no rule whatever. The object of this Bill was to correct that evil which was most enormous, and which was made more enormous, inasmuch as the Equity Judges differ- 366 ed so much among themselves as to what was, and what was not an Illusory Appointment, that there existed nothing like a rule upon the subject. That this was the fact he could most easily prove; for he could show intances (if quoting cases in that House were not rather too technically forensic) in which they had widely differed from each other; so that the law upon the subject was as unsatisfactory as it could be. Two learned Lords in this country disagreed more than once upon the point, but law was distinctly laid down, and the plain rule could never be at variance with itself. He accordingly desired to see Equity so far assimilated to law as would prevent the recurrence of expensive and uncalled-for litigation. In law, the appointment of sixpence out of one million of pounds was sufficient to satisfy the power. In Equity the rule was different, the Equity Judges requiring a substantial execution of the power of appointment. Between the Courts there was, therefore, the widest possible difference. But this was not all. The Chief Baron sat as a Judge sometimes in a Court of Common Law, and sometimes in a Court of Equity; and that appointment which he would one day hold to be a good execution of the power, he would treat on the following day in a different, in a diametrically opposite manner. That was the state in which the law stood at present, the Judge changing his doctrines as he changed his wig. The law was, besides, liable to another objection. He had asked several unprofessional gentlemen of ability and intelligence, with whom it had been his fortune to converse at different times, whether they understood what an Illusory Appointment was, and they invariably answered that they did not. Now he would ask whether that system was one which ought to be preserved, of which men of knowledge and intelligence were entirely ignorant. The fact was, they were as much unacquainted with the law of Illusory Appointments, as if it were a law preserved only in the Arabic, or, worse than that, in the Otaheitean language, for some did understand Arabic. He would not trouble the House further on this subject, except to make one suggestion. By the present law the father was possessed of absolute power in making the distribution in what manner he pleased. The check which Equity opposed to this absolute power was mischievous, because it encouraged litigation; but it might be 367 made most useful if properly exercised. He wished the honourable and learned Gentleman to recollect that with which his practice must have made him acquainted, namely, the fact that an unfortunate or distressed father would go among his children, and make a sort of auction of his power of appointment, in order to see who will give him most for his preference. "With respect to that, he would suggest that it might be as well to take away that absolute power of appointment, and to make it imperative to give each of the children an equal share. This plan might, to some persons, appear mischievous, but it had been tried, and succeeded well in France. In his opinion it would restore peace to families if an adequate share were given to each of the children. If it were good, as he thought it was, to make any amendment, that amendment ought to proceed further than the one now proposed.
§ The Solicitor General
replied.—He could not accede to the suggestion of the hon. Member for Clare. He could not consent to take away from the father his legitimate and reasonable power of apportioning to his children as he might think proper, acting on the impulse of his affections and the dictates of his judgment. It was for this very reason that he admired the excellence of the English Law, although the hon. and learned Gentleman would have him depart from it to follow the questionable example of France. His Bill would trench neither on the rights of parents nor children. Why ought they to divest a father of so important a right, the exercise of which might prove so serviceable in the exigencies of his family? The French Law gave the father the smallest quantity of power over his own property; but he thought such a system ought not to be introduced here. If bargains of the nature described were at any time made, a Court of Equity, on being applied to, would immediately set them aside for the benefit of the children. The rule he should recommend would break in upon nothing—it would work no mischief, but must amend many real practical tangible grievances, which could not be terminated too soon. The bill now proposed would leave any one at full liberty to declare the portions into which he wished his property to be divided, and he believed it would be found to operate as a general benefit, It would not only be a great 368 good in itself, but it would be highly beneficial, as offering an assurance to the people that the Government were anxious to see whether they could introduce any good amendments into the laws; and that although they might be opposed to those reforms which they well knew never could be carried into execution, they were willing to propose such as were capable of being practically effectual, and to follow up with industry and attention any proposal that would conduce to such an end.
§ Motion agreed to.