HC Deb 17 March 1863 vol 169 cc1573-84
MR. ROEBUCK

, who had given notice to move an — Address for Returns of the names and titles of the various Officers of the College of Arms in England, Scotland, and Ireland: Of the duties which are performed by such Officers separately and together: Of the names of persons who have applied for grants of Arms or privilege to make changes in their existing Arms since 1850; stating the cases in which such applications have been granted or refused, together with the reasons assigned for such refusal: Of the fees which have been demanded upon: making the grants and conferring the powers applied for: And, of all the emoluments of the said Officers, specifying the sources from which they emanate: Also, for an— Address for Returns of the names of all persons who have applied for Licences to change their names since 1810: Of the instances in which such Licences have been granted during that period, together with a Statement of the names of the successful applicants, and of the names which they have been permitted to assume by Royal Licence: Of the names of the persons so applying who have been refused during the same period, with the reasons assigned in each case for the refusal: Of the principles by which the Home Office is guided in granting and refusing such Licences: And, of the amount of Fees demanded for such Licences since 1810, and the manner in which the monies received have been applied. said, the reason which had induced him to make this Motion was as much as possible to put an end to official tyranny. He wanted persons in office to know that they had nothing to do with the law but obey it. They did not make the law; and when the law was clear, it was their bounden duty to place no obstacles in the way of carrying it out in any way, out of spite, malevolence, and vulgar malice. Now, the first thing he would do was to state clearly what was the law upon the subject, and he would then ask the House to agree with him that it was a matter of importance that the law should be fairly carried out, and not be abused for the gratification of individual spite. He had hoped that the Attorney General would have been present that evening, because he wanted to make the statement in his hearing, and see whether the hon. and learned Gentleman would gainsay it. He asserted broadly this to be the law—that any man had a right to take any name he pleased, upon any occasion he pleased, and for any occasion he pleased, excepting fraud. For that purpose he required no licence whatever; no Act of Parliament was needed. The Queen could give him licence to walk the streets, but he had power without the licence. So any man might take any name he pleased, and the Queen's licence gave him no power in addition to his own will. That was the law; and to make the matter clear, he would read a few sentences from a book of Mr. Falconer, who was now a Judge in Wales, which really contained all the law upon the subject— That in the year 1735, when the question of the manner in which surnames could be changed was before the House of Lords, no notice was taken of any supposed privilege of the Crown to grant licences on such occasions. 2. That any person may take any surname, and that the law recognises the new name when assumed publicly and bonâ fide. (Chief Justice Tindall, Lord Stowell, &c.) 3. That a man may assume what surname and as many surnames as he pleases. (Sir Joseph Jekyll, M.R.) 4. That where both Christian and surname have been changed, the law will recognise the assumed names. (Lord Ellenborough and the Court of King's Bench.) 5. That no Act of Parliament or Royal Licence is needed in order to sanction a change of name, unless a new name is directed by a donor of land or money, to be assumed by the donee, with such or some other particular sanction, and subject to the forfeiture of the donation if the name should not be assumed in the manner directed by the terms of such conditional donation. (Lord Chief Justice Tenterden and the Court of King's Bench.) 6. That when a name is assumed by Royal Licence, it is so assumed by the act of the person taking the name, and the name is not conferred by the licence. (Lord Chancellor Eldon.) 7. That the effect of a Royal Licence is merely to give publicity or notoriety to the change of name. (Chief Justice Tindal.) 8. That when, by any Act of Parliament, judges have the control of a particular roll of names, they will, on a change of name, when the change is publicly and bonâ fide made, direct the new name to be added to the roll, though such name has been assumed without a Royal Licence, and by the mere act of the person whose name is on the roll. (Court of Exchequer, &c.) 9. That when any person has legally assumed a name by his own act, it is compulsory on courts of law to recognise the legal act. ('The King v. the Inhabitants of Bllinghurst,' and 'Luscombe v. Yates.') If that were the law, he wanted the House to determine that no official person whatever should interfere or interrupt the operation of the law; and his reason for bringing the notice before the House was because official power had been brought to bear against a person holding a commission as justice of the peace to obstruct him in carrying out the law. Some years since there was a gentleman who died in Wales named Jones. He had three sons; but this notice had only to do with two of them. The eldest became Mr. Jones of Llanarth, and the younger Mr. Jones of Clytha. Mr. Jones of Llanarth had a son, and then died. The son determined to marry. He was sorry to have to mention the name of a lady—bnt the son of Mr. Jones, of Llanarth, wanted to marry a daughter of Sir Benjamin Hall, and he thought he would take on himself the name of Herbert, to which he believed by succession he had a right. He got a Royal licence to make that change of name. He married the lady, and became Mr. Herbert, of Llanarth. The second son, Mr. Jones of Clytha, also had sons, but he was still living. One of the sons wished to become a Volunteer. The father, however, wished him not to become a Volunteer until he came of age; and then the father determined, as his nephew also had done, to take the name of Herbert, to which he had as much right as his nephew, because, being of the same family, if one had the right, so had the other. He determined to take the name of Herbert. Here it was necessary to bring in the name of Lord Llanover. Lord Llanover was Lord Lieutenant of that county; and when apprised of the fact that the uncle of his son-in-law had taken the name of Herbert, be told the young gentleman, the son of Mr. Jones of Clytha, that he could not permit him to take that name or to be a Volunteer under that name. And then Lord Llanover stood up very violently for what he called the Queen's prerogative— which was a curious operation to be performed by Lord Llanover, when they considered his antecedents. There was an old proverb which he thought applied to this process, but he would not mention it. However, Lord Llanover chose to take on himself this quarrel, and he determined not only to prevent the young gentleman from being a Volunteer, but there were very suspicious articles constantly printed in the Welsh papers, doing all they could to cast a slur on Mr. Jones of Clytha, because he had taken the name of Herbert without a Royal licence. The real facts were these. An application was made, he believed, personally to gentlemen connected with the Herald's Office. Mr. Jones of Clytha said, "I suppose there will be no difficulty in a change of name?" "Oh, yes, but there will," was the reply. "My nephew changed his name." "Yes, but that was through the interest of Lord Llanover;" and then Mr. Jones learned the law, that he could take the name without a licence, and he took the name of Herbert. First, he wished to impress on the House that it was the law that a man might take any name for any reason, so long as it was not a fraud; and as he was told that people had paid large sums of money for changes of name, he wanted further to tell people from his place in Parliament that they need not pay one farthing to any body for such a purpose. But it might be said, that is a very mischievous law. His answer was, that he could not help it. It was the law, and he wanted any one, in the face of the world and in the face of the legal profession, to say that it was not. Let any one deny it if they could, and let the Herald's Office lament its notoriety. Hereafter great good, instead of great harm, would follow from the greater knowledge of that fact. Names had been taken in large numbers. Numbers of people who had risen from low stage of society had changed their names, and, historically speaking, it was only quite lately that surnames as surnames had been had at all. He had known a man indicted in Yorkshire as John O'Stile, because from living near a stile that surname was given to him. It might often occur that a man had some peculiarity, such as a squint, and might in consequence be called John-with-a-Squint. From that circumstance the children might receive the name of Squint. Some people's names were most offensive. Only let hon. Members imagine a nice young lady coming into a room and being announced as Miss Shufflebottom. It had been sarcastically said, that the names of Tudor, Plantagenet, Stuart, and other great names, were only assumed by fifth-rate actors and inferior Members of the House of Lords. That was a mistake, for very important Members of the House of Lords—men of great title—had taken, what he should call, very ridiculous names. The great and historic name of Seymour had, for some idle purpose or other, been changed into the sort of pantomime name of St. Maur. Another name, borne by a great man, had been changed, and for good reason. The Duke of Wellington's name was Wesley, but that noble Duke changed his name in India, without any Royal licence, into the better-looking and better sounding name of Wellealey; and the change was sanctioned immediately by the Horse Guards, and the name of Arthur Wellesley appeared in the next Army List. Similar liberty to change a name had not been given by the War Office in a recent case. A gentleman named Jones became an officer, and wished to change his name. His father, whose name was Paul, assumed the name of St. Paul, and the son wanted to do the same; but the right bon. Gentleman the Secretary for War refused, it was said, to consent to the change of name. Now, that man had a right, if he chose, to change his name, and all that the right hon. Gentleman had to do was to obey the law, and cause the required alteration to be made in the Army List. What he had asked for was a Return of the names of all persons who had applied for licences to change their names since 1810, but the right hon. Gentleman had told him that the records had been so kept, that there were no records so far back as that. This being so, he would say since 1850. instead of 1810, but he wanted to know why he should not also have a Return of the names of all persons who had applied for licences to change their names since 1810. The right, hon. Gentleman had told him that such a Return would give pain; but if persons desired to change their names, and it was afterwards required for public purposes to know what names had been changed, he could not help pain being given to accomplish that public purpose. The next Return which he wanted was as to the instances in which such licences had been granted since 1850, together with the names of the successful Applicants; and further, a return of the names of persons who, having applied for permission, had received a refusal, with the reasons assigned. It was quite true that the Queen might refuse a licence if she pleased; but he wanted to know what was the rule that was acted upon; but though the Queen's name was used, of course it was not Her Majesty, but the right hon. Gentleman, or rather his officers, who acted in the matter. Then he wanted to know the principle by which the Home Office was guided in granting or refusing licences; and if the right hon. Gentleman claimed to have the power to refuse a licence, it was quite right that they should know upon what principle this was done. He also wanted to ascertain whether it was mere whim, or an idle desire on his part to retain power in his hands, which had led to the course which had been pursued; and, in addition, he wanted to know what amount of fees had been demanded for such licences, and the manner in which the money received had been applied. His only objects were to prevent the operation of spite and vulgar malice, and to have the law strictly applied without favour.

LORD ROBERT MONTAGU

seconded the Motion.

Motion made, and Question proposed, That an humble Address be presented to Her Majesty, that She will be graciously pleased to give directions that there be laid before this House, a Return of the names of all persons who have applied for Licences to change their names since 1850.

COLONEL CLIFFORD

said, that the hon. and learned Gentleman who had made the Motion (Mr. Roebuck) had done an injustice to Lord Llanover, who for thirty; years had occupied a seat in that House,; and who was still known to a large majority of the Members, and, he was sure he should be borne out in saying, had so conducted himself on all occasions as to secure their esteem. The House would! feel how unlikely it was that such a man would have conducted himself with unnecessary hostility towards any person, or have acted from "spite and vulgar malice"—to use the words of the hon. and learned Gentleman. He (Colonel Clifford) was aware of all the facts of the case referred to, and no one had regretted more than he did what had taken place, nor, he might add, had done more to bring it to a termination satisfactory to all I parties. He felt bound to say that so far from Lord Llanover having refused the commission in question in consequence of the change of name, as had been asserted, he (Colonel Clifford) knew of his own personal knowledge that the commission had been offered and accepted before the change of name had taken place, and be-: fore it was even known that such a change was in contemplation. The Lord Lieutenant allowed the commission to stand over until Mr. Jones came of age, at his request; but his Lordship was not aware that the object of the delay was to effect a change it, the name. On his becoming of age Mr. Herbert wrote, not to the Lord Lieutenant, but to the Clerk of the Peace in the county, requesting to be gazetted by the name of Herbert instead of Junes. That was the first notice which was given on the subject, although afterwards an advertisement announcing the change of name was published. The hon. and learned Gentleman might say that the Lord Lieutenant entertained an exaggerated conception of the Royal prerogative. He would not go into that question, but would say only that in his firm belief the Lord Lieutenant was actuated solely by his conviction as to his duty in regard to that prerogative, and not by any private spite or malice. The noble Lord was extremely desirous to give Mr. Herbert, of Clytha, a commission, and was willing to have put him on the commission of the peace. Surely these facts were inconsistent with his alleged hostility. He could state, also, that Mr. Herbert, of Llanarth, had expressed a strong desire that every member of his family, and especially his uncle, should bear the name of Herbert, as well as himself; and he never heard a syllable from Lord Llanover to a contrary effect. All his Lordship sought was that Mr. Herbert, of Clytha, in changing his name, should respect the usual forms of procedure. At a recent Volunteer dinner a wish was expressed that Mr. Reginald Herbert should accept a vacant commission in the corps; but in returning thanks for the toast of his health Mr. Reginald Herbert said it was impossible for him to accept the offer, as he was certain the Lord Lieutenant would not grant him the commission. Now, he could assure the House that at that very time Lord Llanover had no unwillingness to grant it, and has nominated Mr. R. Herbert to the vacant post unasked by him, because he knew it was the wish of the corps. This certainly was then unknown to Mr. Herbert. That showed there were no unworthy personal feelings on the part of the noble Lord in this matter, and that his conduct had been guided by what be believed to be his duty only.

SIR GEORGE GREY

I do not wish to enter into the personal question, which has been rather unnecessarily brought before the House by my lion, and learned Friend. I will only say that when the hon. and learned Gentleman charges me with having arbitrarily refused applications for leave to make a change of name, I do not know to what cases he refers. I will merely state the principle by which I have been guided in granting or refusing these licences. In the present instance Mr. Jones, of Llanarth, applied some years ago for the Royal licence to change his name to Herbert, on the ground of descent from an ancestor of that name. The representatives of several noble families of that name having been communicated with by the applicant for the licence, who stated that they concurred in the proposal, the Royal licence was granted, and Mr. Jones, thus authorized, assumed the name of Herbert. It is stated that Mr. Jones of Clytba is equally entitled to change his name; but there is this difference, that he never applied for the Royal licence. If he had made the application, and supported it on precisely the same grounds as Mr. Jones of Llanarth, and if I had refused it, then the hon. and learned Gentleman would have had some cause to complain of my arbitrary conduct; but, as I was never applied to, and consequently never refused, his charge falls to the ground. The hon. and learned Gentleman also referred to the case of a distinguished officer, Sir J. Jones, an officer who served with great distinction in India, who desired to change his name. I lately received an application from that gentleman, requesting me to direct the Commander-in-Chief to alter his name in the Army List from Jones to St. Paul; but it was clearly quite beyond my power to give any such direction. The hon. and learned Gentleman says, there is no doubt that any person may assume any name he chooses without Royal licence. Now, I am not going to dispute the legal position he maintains. I believe there is no legal right to a name—any person may take any name he pleases; but then it does not follow that everybody else must at once consent to recognise him by that name. It is by no means a matter of course, because a gentleman who has hitherto been known as Jones suddenly calls himself Herbert, or any other name that whim may dictate, that all the world must immediately acquiesce in the alteration. In short, this is rather a question of fact than of law. A man's name is that by which he is generally known. How be may have acquired it does not matter. It is his name, and he has a right to be called by it if it is the name which he usually receives among his friends and acquaintances. I am not aware of any case in which the civil and military authorities have refused to recognise a man by the name by which he is habitually known. As to the case of Sir John Jones, I certainly had no authority to interfere.

MR. ROEBUCK

No, I did not refer to the right hon. Gentleman, but to his Colleague the Secretary for War.

SIR GEORGE GREY

When an application is made to a Lord Lieutenant to sanction a change of name, it is only natural he should inquire what grounds there I are for the change. There must he something like usage to support the claim, or the greatest confusion would be introduced into society. For instance, in the case of wills, the question of identity might be raised. There might be some doubt as to who was the person referred to by a testator, and it would become an important inquiry how he was usually designated. As to the Returns for which the hon. and learned Gentleman has moved, I think it would he wrong to give the names of all the persons who have applied for leave to change their names, and whose applications have been granted or refused. As to the principles by which the Home Office has been guided in dealing with these applications, I have to inform my lion, and learned Friend that there is no written document on the subject. About 200 years ago the practice of applying for the Royal licence to change names arose, and in 1783, in consequence of the frequency of those requests, it was deemed necessary to put some check on them. A regulation was therefore made, that all applications should be referred to the College of Arms. That reference is not, however, necessarily decisive, as it is intended only for the information of the Secretary of State. That usage has been universally adopted, subject to the modification introduced by the late Sir Robert Peel, that where there are no plausible grounds for an application, and it is obviously the mere result of whim or caprice, it should be at once declined, without any reference to the College of Arms, leaving it to the applicant to exercise the right, which the hon. and learned Gentleman said all possessed, of changing his name on his own responsibility. Among others, illegitimate sons have frequently applied for leave to adopt the name of their putative fathers with their consent, and often in consideration of a provision made for them. Is it desirable that all these cases should he dragged before the public? Pain, I know, as the hon. Gentleman says, must sometimes be inflicted on individuals where a great public object is to be attained, but what important end is lo be gained by publishing these names? There are cases in which a bequest or legacy has been coupled with a condition that the legatee or devisee should assume a particular name, and in these cases the Royal licence is granted. There could be no objection to give these names, but I do not think it is worth while to make any exceptions. I have no objection to give Returns of the number of applications which have been made and of the number which have been acceded to, the difference between the numbers being of course- those rejected. I am also ready to give every information as to the fees, which are paid over to the fee fund. I hope my hon. and learned Friend will not press for further details, but will be content to accept the Returns in this modified form.

MR. ROEBUCK

said, the right hon. Gentleman had only reiterated what he stated some time ago when this question was first brought forward—namely, that it was all a matter of usage. He (Mr. Roebuck) was glad to see the Solicitor General present, because he hoped to get from him some explanation of the word usage. When did usage begin? He would mention a case how the Law Courts treated this question. Some time ago Dr. Pye Smith ("Pye" being a Christian name), an eminent divine, died, leaving two sons, one of whom was on the roll of attorneys. After his death it was represented to his sons that it would be a mark of respect to their father if they assumed the Christian name of Pye as their surname, and accordingly the gentleman who was on the roll of attorneys applied to the Courts, and they at once acknowleged his right to do so, and made the requisite alteration on the roll of attorneys. What, then, became of the right hon. Gentleman's statement that the right to be known by a change of name was matter of usage? He asserted, on the contrary, that the question was one of law and not of fact, and that every person in office was bound to take official cognizance of a bonâ fide change of name. He wished to have the names of those who had applied for the Royal licence, not from a desire to give pain, but because he wanted to know the reasons that had guided the Home Secretary in granting or refusing the desired permission. The Home Secretary said he could give no rule; but was the right hon. Gentleman sure that written rules had not lately been drawn up by the official person who guided the Home Office in these matters? He was told that there were such rules; and if so the right hon. Gentleman could give them, and they could be examined. If that were done, the prevailing impression that a certain influence and power were necessary to obtain the Royal licence would be removed. He was obliged to accede to the right hon. Gentle man's suggestion, but the mischief would remain until some other Lord Llanover, full of the Queen's prerogative, although he came from Marylebone, desired to put himself forward as a great man newly made.

THE SOLICITOR GENERAL

said, the discussion was very interesting, but was not of very great importance to the country at large. At the risk of appearing to his hon. and learned Friend to err in his law, he must say that to the best of his belief there was no positive law on this subject. The fact was, that surnames grew up mostly as nicknames, of which the hon. and learned Member had given an amusing example. Their very origin showed that there was no positive law on the subject. It was a matter of usage and reputation from the beginning; the name clung to a man, and the law permitted him to shuffle it off if he could. There was no law for bidding a man to change his name; but there was also no law which compelled his neighbour to acknowledge him under the name he might assume. It reminded him of the saying of Owen Glendower— I can call spirits from the vasty deep, Hotspur rejoins— Why so can I, or so can any man; But will they come when, you do call for them? It was exactly the same with these names. Everybody was at liberty, if he pleased, to change his surname, but no one else was obliged to recognise the change unless he pleased. It was said, by the Judge who decided one of the cases on the subject, that a man might assume a new name, and "work his way with it in the world as well as he could." When, however, by usage, a man had acquired a name by reputation, then persons in public authority were practically obliged to acknowledge the new surname. His hon. and learned Friend had spoken as if the courts of law were obliged to comply with the request of an attorney who might wish to change his name. In the cases mentioned by his hon. and Seamed Friend, the court, seeing nothing to the contrary, and being told by the attorney that he intended to use his new surname in future, thought it right—as the man would probably put his name on a brass-plate on his door and be professionally known by his new name—to grant the application; but in granting the very last application of this kind Lord Chief Justice Cockburn expressly guarded himself against laying down the rule that any man had a legal right to call upon the court to alter his name on the rolls. He said the court did it for convenience. There was no law on the subject; but when there appeared to be nothing arbitrary or improper, and when there was no encroachment on the feelings or rights of others, then it was courteous to accede to the wish of a person who might desire to change his name. There was, however, no principle of law that any person occupying an official position, was bound to recognise a capricious or arbitrary assumption of names by persons who had no right to them either by descent or by the inheritance of property.

Motion, by leave, withdrawn:—Then,

Address for Returns of the number of applications for Royal Licence for a change of Name since 1850: Of the number of Licences granted since the same date: Of the amount of Fees payable on the grant of the Licence: And, of the manner in which the Fees were applied '."—And,

Address for Return of the number of applications for Grants of Arms, or for power to change existing Arms, since 1850; the number of such applications complied with, and the amount of Fees payable thereon, —agreed to.