HC Deb 03 July 1856 vol 143 cc296-305

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the chair."


said, he wished to make a few observations on the position in which the Bill now stood. He had been unable, through indisposition, to be present when the subject was last discussed, on which occasion the House, he thought, took a somewhat unusual course. A Bill was then read a second time which nobody intended to proceed with, and which was so read on the clear understanding, that as soon as that operation should be duly performed, the measure was to vanish, and another to accomplish the same end, but differing wholly in its details, was forthwith to be substituted. Accordingly the Bill now before the House was as different as chalk from cheese from that originally introduced by the hon. and learned Solicitor General. He should say that the transmogrification was the result of what he might almost call a sort of illicit intercourse between the hon. and learned Member for East Suffolk (Sir F. Kelly) and the hon. and learned Gentleman opposite (the Solicitor General). When the hon. and learned Gentleman brought in the Bill it did not contain the name of the Court of Chancery, because, as the hon. and learned Gentleman was well aware, that name had no very good repute in the House of Commons. The hon. and learned Gentleman, therefore, with considerable adroitness, originally proposed to constitute a Court with all the powers and without the name of the Court of Chancery; but his (Mr. Henley's) hon. and learned Friend the Member for East Suffolk (Sir F. Kelly), who had a great dislike to the Court of Chancery, refused to have anything to do with the Bill, unless some other sort of Court were substituted for that Court. The clause by which the Court was constituted now conferred upon it all the powers at first proposed by the hon. and learned Gentleman, and the powers of a Court of Common Law besides. The powers now to be given to it were sufficiently large to make it a tribunal of any sort or size, and they were left entirely in the dark as to what was to be its practice or procedure. Rules for its regulation were to be framed by the Judge, subject to the approbation of the Lord Chancellor, the Lords Justices, the Master of the Rolls, and the Chief Justices of the Common Law Courts; and whether it would turn out to be a Court of Common Law, as his hon. and learned Friend the Member for East Suffolk said, or a Court of Chancery, according to the wish of the hon. and learned Gentleman (the Solicitor General) no one could tell. The present Bill, too, dealt a great deal more with the subject of real property than the original Bill of the hon. and learned Gentleman; it went even further, he apprehended, than the recommendations of the Commissioners; but remembering that not many years ago a measure had been shipwrecked in another place upon that very ground, he doubted whether that part of it would facilitate its progress through Parliament. He was willing and anxious that the law should be so altered that, when probate had been granted to any instrument dealing with either real or personal property, everything within the four corners of that instrument should be concluded by the judgment of the Court which granted probate; double litigation upon the same instrument ought not to be necessary, but he did not think it would be prudent to go further and to risk the loss of a good measure by dealing with real property to a greater extent than was required, in order to get rid of the evils of the present sys- tem. Another great and very beneficial change in the Bill was that which extended the jurisdiction to country districts. No measure which did not enable people to get their own business done in their own neighbourhood would have a chance of, or even deserved, success. But he felt a difficulty as to going into Committee that evening, and, from some observations of the right hon. Baronet opposite (Sir J. Graham) the other night, he thought the proposal he was about to make to obviate that difficulty, would probably meet with the right hon. Gentleman's sanction. It would be quite impossible at that hour (a quarter to eleven) to make any great progress with the Bill, and they certainly could not discuss it with any advantage until the question of the constitution of the House of Lords, as a Court of Appeal, had been in some way or other settled. It was proposed to give suitors in the new Court the option of a double appeal; they would be able either to go, in the first instance, to the Lords Justices, and then to the House of Lords, or to go direct to the House of Lords, if they so wished it. Surely that proposition could not be properly considered; no sound decision upon it could be arrived at, unless they knew how the Appellate Court of the House of Lords was for the future to be constituted, and whether it would be constituted in a manner that would give confidence to the public, and enable them to resort to it without being put to a ruinous expense. If the Court of ultimate Appeal could be reached at a moderate expense, it might, perhaps, be desirable to have no intermediate Court of Appeal. He would, therefore, ask the House, to postpone going into Committee until after Monday, when the Appellate Jurisdiction Bill would be brought under their consideration. Another reason for postponement was, that he had learned, through those indirect channels from which they sometimes obtained information, that the hon. and learned Gentleman the Solicitor General intended to propose still further alterations. For these reasons he earnestly hoped that the House would agree to his Motion not to go into Committee until after they had considered the Appellate Jurisdiction Bill.


I must inform the right hon. Gentleman that the Motion can not be put in that form.


said, he would then move that the House resolve itself in Committee on Tuesday next.

Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon Tuesday next, resolve itself into the said Committee," instead thereof.


said, he hoped that the Committee on the Bill would not be postponed; the question, as to whether the appeal should be given to the House of Lords or to the Privy Council was one which might easily be discussed at a subsequent stage of the measure, and, reserving that question, it would be very desirable to proceed at once with the measure.


said, he thought that the House was wasting a great deal of time, inasmuch as there was not the slightest prospect of carrying the measure, which was one of the greatest importance, to a satisfactory conclusion during the present Session. The Bill was one formed from the combination of three other Bills, and, if the Committee upon it were postponed until Tuesday next, Gentlemen who were interested in those three Bills would be able to determine whether it would be possible to proceed with it during the present Session, and he hoped, therefore, that the proposal of the right hon. Gentleman opposite (Mr. Henley) would be acceded to.


said, he sincerely hoped that the House would consent to go at once into Committee upon the Bill. Considerable delay had already taken place, and much mischief had thereby resulted in dealing with this important subject, and he did not consider it advisable that further delay should be allowed. and further mischief consequently submitted to. He did not imagine that any great progress would be made in the Bill that evening, if the House went at once into Committee; but still the fact of going into Committee was progress in itself; and if the Bill could be carried to a conclusion during the present Session a very great advantage would be obtained. It ought to be remembered that before another week, probably before next Tuesday, hon. Members of that House who belonged to the legal profession would have gone circuit, and he ventured to think that on a subject of that description, the study, and still more the experience of Members of the legal profession, might be useful in enabling the House to arrive at a satisfactory result.


said that, if he were assured that it was the boná fide intention of the Government to proceed with the Bill during the present Session of Parliament, he would have no objection to go at once into Committee, but upon that subject he entertained grave doubts. The hon. and learned Solicitor General had obtained the second reading of the Bill, by promising to introduce into it certain provisions contained in the Bill of the hon. and learned Member for Plymouth (Mr. Collier) and in that of the hon. and learned Member for East Suffolk (Sir F. Kelly). That part of the Bill of the hon. and learned Member for Plymouth which was to have been incorporated in the present Bill gave a jurisdiction to County Courts, and that part of the Bill of the hon. and learned Member for East Suffolk, which ought to have been introduced, related to a simplification of the mode of procedure. Now, looking at the present Bill, it was his firm conviction that the drawer of it never intended to give effect to the views of the hon. and learned Member for Plymouth, or of the hon. and learned Member for Suffolk. One clause, it was true, gave a contentious jurisdiction to the County Court, but then the rest of the machinery of the Bill rendered it impossible that a contentious cause could ever be settled in those Courts; and in the same way the views of the hon. and learned Member for Plymouth were not carried into effect. Probably the hon. and learned Solicitor General had not had time to look very carefully to the construction of the Bill, but he hoped that, if it was his intention to carry out the views of the two hon. and learned Gentlemen to whom he had referred, he would before Tuesday next carefully consider the clauses of the Bill.


Sir, I have never experienced in so practical a way the wisdom of the old adage,—"Heaven preserve one from one's friends,"—for the attack which has just proceeded from what I imagined to be a friendly quarter is even more unwarranted and more unjust than any which has proceeded from any other quarter of the House. I cannot think that the hon. and learned Member for Plymouth can concur in that attack, nor do I think that the hon. and learned Member for East Suffolk will be ready to defend it; for the clauses in the present Bill which refer to the mode of procedure are so similar to those in the Bill of the hon. and learned Gentleman (Sir F. Kelly) that they might have been cut out of that Bill with the scissors, perhaps even by the hand of the hon. and learned Gentleman himself, and pasted upon the draught of the present measure. So much for the attack which has been made upon the Bill because it departs from the understanding I had with the hon. and learned Gentlemen the Members for Plymouth and East Suffolk. I admit, Sir, that I have fallen into a great error in attempting to please all the world. Another mistake has been this, that I imagined there was some agreement, some concert, some mutual understanding, some harmony between right hon. and hon. Gentlemen who sit on the opposite side of the House. Yet the fault was not wholly mine, for the hon. and learned Member for East Suffolk professed to be the exponent of their combined wishes and desires, and my error lay in innocently, but as it appears most erroneously, confiding in his representation that he spoke their sentiments. My hon. and learned Friend claimed to act on their behalf; but now I find that upon this subject, as recently the House has seen upon many others, there is no agreement between any two Gentlemen on the opposite side. What to do under such circumstances I really am at a loss to conjecture. But I have not yet told the House all; for, assailed in front and in rear, I have still another enemy to encounter. I had imagined until now that it was one of the fondest wishes of the right hon. Baronet the Member for Carlisle (Sir J. Graham) that he might live to see the day when these Ecclesiastical Courts should be abolished. On former occasions I have imbibed from him a great number of correct principles, and received from him most valuable advice with respect to the accomplishment of this great undertaking. Yet, if I may judge from a speech which I had the misfortune to hear the other night, the right hon. Baronet has changed all his opinions, and, by some wonderful process which I have not the wit to understand, he has arrived at a conclusion exactly the opposite of that which he has entertained for the last twenty years. Now, in this predicament, what to do, as I have just said, is exceedingly difficult to determine. With regard to the right hon. Gentleman the Member for Oxfordshire (Mr. Henley), if I do not violate any confidence in referring to a conversation which I had with him some time ago, I may state that I was so much impressed with a desire he appeared to entertain to provide for the country districts that I introduced his suggestions upon that point into the Bill. I have, therefore, sincerely endeavoured—and, perhaps, this will be accepted as a proof of my want of Parliamentary experience—to make the Bill a measure that would be acceptable to all. With reference to the debate the other night, the House will do me the justice to recollect that I did not ask them to take the Bill upon trust, because I was careful to point out that there were three Bills at the present time before the House, describing what I intended to borrow from one, and for what I meant to be indebted to another. I hope, therefore, the House will acquit me of having in any manner desired to lead them into the second reading, without giving them an opportunity of considering all the provisions of which my Bill would ultimately be composed, especially when I recall to their recollection that I stated at the time that I would have no objection to any hon. Gentleman discussing the principle of the measure again upon going into Committee. Now, unfortunately, Sir, I have another antagonist to which I have not yet referred, though it is, perhaps, the most formidable of all—I mean time. Under these circumstances, and surrounded by enemies on all hands, I can do nothing but yield to the proposition of the right hon. Gentleman the Member for Oxfordshire, and defer the consideration of the Bill in Committee till Tuesday next, trusting that on that occasion I shall have his concurrence, and, I hope, the concurrence of at least some Gentlemen who may be pleased to act with him on the other side, in endeavouring to advance a measure which I firmly believe calculated to confer great benefits upon all classes in the country.


Sir, I think the hon. and learned Gentleman has given us practical proof that the advice which the noble Lord at the head of the Government tendered to a right hon. Friend of mind the other night, cannot in all cases be followed with success, and that half an hour's conversation with Gentlemen who sit on the opposite side does not always lead to satisfactory results. I also think I may infer from the discussion which has taken place, that what a very great lawyer—Lord Clarendon—calls the "impossible faculty of pleasing everybody," does not help the hon. and learned Gentleman the Solicitor General in his endeavours to pass his Wills and Administration Bill through the House. Now, Sir, I would like to ask the hon. and learned Gentleman, since he compels me to speak, whether the House is yet in possession of his own ultimate views? To be more pointed in my question, I will ask him whether it be true or not that it is his intention to propose that a district probate shall be granted where the sum does not exceed £1,500 or £2,000. Unless I am misinformed, it is the intention of the hon. and learned Gentleman, in fulfilment of a pledge which he has already given out of doors, to propose such a provision, which, I need hardly say, would be a great alteration of the Bill before the House. The hon. and learned Gentleman has thought fit to charge me with a change of opinion on this subject. Let me illustrate to the House what is the position of the hon. and learned Gentleman himself with respect to change of opinion from the Report of the Chancery Commission. I served with him on that Commission, and, led by him, I joined in some of his recommendations, though with much doubt and hesitation, but influenced by the confidence which I then reposed in his judgment. The Report of the Chancery Commission recommended distinctly that the new Court should be connected with the Court of Chancery. That was the advice of the hon. and learned Solicitor General. I followed his lead to the extent that with him and the Master of the Rolls I joined in protesting against the recommendation of a majority of the Commission, that there should be a separation in the jurisdiction between probate and administration, and construction and administration. The hon. and learned Gentleman talks of change of opinion, and yet he proposes in his Bill, that up to £200 and £300 respectively jurisdiction should be given to County Courts in matters testamentary! Let me, however, read to the House what is the opinion of the Chancery Commission upon this point from a Report signed by the Solicitor General. We have considered," say the Commissioners, "the expediency of transferring the testamentary jurisdiction to the Courts of Common Law, but it appears to us that the machinery of those Courts is not adapted for the transaction of such business. And there is a separate paragraph with respect to the County Courts. Now, after what I have said, I think the hon. and learned Gentleman need not have compelled me to speak in defence of myself with respect to a change of opinion. He proposes to sever the testamentary jurisdiction from the Court of Chancery. He proposes to transfer up to a limited amount a contentious jurisdiction in matters testamentary to the County Courts. Yet in the Chancery Commission he opposed both measures, and, relying on his judgment, I was induced to join in that opposition.


said, he was opposed to the principle of the Bill, which he was determined to resist by every means in his power. He was both sorry and surprised that the hon. and learned Solicitor General should still cling to the vain hope of passing the Bill during the present Session. The Bill had not been circulated through the country, and those affected by it had not had an opportunity of considering its provisions. During the short time that he had been in that House, the present was the fourth Bill introduced on testamentary jurisdiction, each one differing from its predecessor; and, now, as the hon. and learned Gentleman opposite had tried to please everybody he had, as might have been expected, ended in pleasing no one. The hon. and learned Gentleman said that no two Members on the Opposition side of the House appeared to agree on anything; but assuredly there did not appear to be much unanimity on the other side. In 1854, the hon. and learned Gentleman put his hand to a Report declaring that the machinery of the Common Law Courts was not adapted to the purpose of testamentary jurisdiction, and stating that it was not expedient to confer any testamentary jurisdiction on the County Courts. Now, he (Mr. Malins) unlike the hon. and learned Gentleman, adhered to the opinion that no part of this business should be transferred to the County Courts. He was no party to any arrangement which had been come to with the hon. and learned Member for East Suffolk (Sir F. Kelly), and should continue to oppose the further progress of the Bill at the present period of the Session. For it was absurd to suppose that a Bill containing 157 clauses could, under such circumstances, be carried that Session. He would therefore suggest that the Bill should be now abandoned, and that the matter should be referred to a Select Committee next Session.


said, he hoped the House would not agree to the suggestion of his hon. and learned Friend the Member for Wallingford (Mr. Malins), though he feared they would not get the Bill through Committee that Session. He (Sir E. Perry) was in favour of the local jurisdiction provided by the measure, and thought that the County Courts had given great satisfaction. He would, therefore, support the proposition to give them jurisdiction in testamentary matters.


said, that not one great measure for the good of the general public had been passed during the Session. The expenses of the Ecclesiastical Courts fell upon the bereaved classes of the community—they fell upon the weak. He called on the noble Lord at the head of Her Majesty's Government to say would he give the measure a real support by making it take precedence of all other Government business on Tuesday. The proposed measure was the greatest reform that ever the country produced in the law, and it was a shame that it should receive such obstruction.

Question, "That the words proposed to be left out stand part of the Question," put, and negatived.

Words added.

Main Question, as amended, put and agreed to.

Committee deferred till Tuesday next.