HC Deb 26 June 1877 vol 235 cc279-97

in rising to call the attention of the House to the appropriation by the Treasury of the estate of the late William Paterson, and to move— That, in the opinion of this House, it is inexpedient for the Treasury to depart, without previous notice, from the immemorial custom of Scotland, and for the first time to appropriate the estate of an intestate bastard when there are blood relations who, if he had been legitimate, would have been his next of kin according to the Law of Scotland. said, that in bringing this question before the House, he hoped he should not be accused of any feeling of hostility or disrespect towards the Government. Whatever other questions might be, this was no Party question, and he dared to say that the Government of the right hon. Gentleman the Member for Greenwich (Mr. Gladstone) would have decided in this matter precisely as Her Majesty's Advisers had done. But there was a feeling abroad—he could not say how true it was—that these matters were not regulated by this or that Government, but by a body of mysterious and permanent officials, called the Treasury; and he asked the House to say that that permanent and irresponsible Body should not deviate without previous notice from the immemorial custom of Scotland in distributing the estates of intestate bastards. He acknowledged the courtesy of the Chancellor of the Exchequer, who had put into his hands the case of the Government. Mr. Paterson, of Paterson, in the county of Ayr, died in January, 1874, intestate, leaving personal property to the amount of about £40,000. He was the illegitimate son of Mr. Paterson, of Jamaica, who adopted him and educated him as his son. The claimant, Mr. Paterson, of Montgomery, was the nephew, heir at law, and next of kin to the intestate bastard's father, and was consequently cousin-german to the intestate bastard. If the deceased had been legitimate, the claimant would have succeeded at once without question to the whole of the property, and he claimed to be placed in the same position as he would have occupied if the deceased had been legitimate. But he (Colonel Alexander) knew it might be said—and he believed it would be said, either by the Chancellor of the Exchequer or by the Secretary to the Treasury—that as the deceased bastard had the power of making a will, and failed to make a will, he consequently had no intention of benefiting his (Colonel Alexander's) constituent, Mr. Paterson, of Montgomery— that he preferred, in fact, that his property should escheat to the Crown. But, in the first place, it was very unlikely he should desire that his property should be placed in the same category as the pro- perty of felons and outlaws; and, in the next place, there was nothing whatever extraordinary in the circumstance that he failed to make a will. Many persons from deeply-rooted habits of procrastination failed to make a will. But whether he had, or had not an intention of benefiting his (Colonel Alexander's) constituent was totally beside the question. There were many owners of property between whom and their heirs at law no love was lost; but if those owners died intestate, the law said that their heirs at law should inherit the property. As the deceased bastard failed to make a will, he (Colonel Alexander; submitted the law assumed his intention was that his property should go to his heir at law. He (Colonel Alexander) contended that the heir at law of an intestate bastard should not be placed in a worse position than the heir at law of a person born in wedlock. He might be asked why, when Parliament gave to the bastard the power to make a will, it did not go further, and give the succession, as a matter of course, to the next of kin of an intestate bastard? His answer was, that it was often difficult to ascertain who were the next of kin; but he submitted that when once the claim of next of kin had been ascertained to be genuine, the Treasury had always proceeded on one fixed and settled and unchangeable principle in distributing these estates. As authority for this, he would quote the Secretary to the Treasury, who, early in this Session, replying to a Question by the hon. Member for Greenock (Mr. Grieve) said— The Treasury, in considering first of all the claim of any individual, inquired whether there was any evidence, either by an informal will or otherwise, of an intention to make provision for that individual. Then they considered further whether a strong claim existed on the part of individuals with regard to whom there was no such evidence. Then they proceeded to consider what would have been the disposal of the property supposing the deceased had been legitimate, and they followed the principles laid down by the law for the distribution of property in the case of legitimate persons who died intestate."—[3 Hansard, ccxxxii. 896.] Although the deceased bastard had been dead upwards of three years, no instrument indicating his desire to leave his property in any particular manner had been discovered. The deceased had left several poor relatives on the mother's side who had made claims upon the property; but he believed that the Secretary to the Treasury had properly decided, that as those persons would have had no right to it had the deceased been legitimate, they could derive no right from the fact that he was illegitimate. In these circumstances, the hon. Gentleman could only follow the course indicated by himself—namely, to follow the principles laid down by the law of Scotland for the distribution of property in the case of illegitimate persons who died intestate. He submitted that that was the course which had been invariably followed by the hon. Member and his Predecessors in similar cases. In replying to a later Question by the hon. Member for Greenock, the Secretary to the Treasury said— I am not aware of any case in Scotland in which the Treasury appropriated and retained the estate of an intestate bastard when there existed either a written statement of his intentions regarding the disposal of his estate after his death, or persons who, had he been legitimate, would have been his blood relations."—[Ibid. 1257.] He had been informed in the Lobby that the hon. Member had a complete answer to the case; but if so, he must have a complete answer to his own statements. He asked why this immemorial custom and practice was to be departed from in this particular instance? The property of deceased intestate bastards was administered in Scotland, in the first place, by the old Scotch Lords of the Treasury, then by the Barons of the Court of Exchequer, and now, since 1833, by the Lords of the Treasury. But although the administrators had changed, the principles upon which the administration had proceeded still remained in force. The hon. Member's statement of the practice was corroborated by Sir Samuel Shepherd, the Chief Baron of the Court of Exchequer in Scotland from 1819 to 1830, who was examined before a Committee of the House of Commons in 1832, and he said, as to the practice of that Court— Another branch of the Court of Exchequer was that of disposing for the Crown of property which came to the Crown as the ultimus hœres, or by escheat, as in the case of bastards. The practice of the Court was to give it to those persons who would have been entitled to it had not illegitimacy intervened, reserving also some portion for beneficial purposes. Sir Samuel Shepherd went on to say that the portion which was reserved for beneficial purposes was about what the amount of duty would have been that the person succeeding, according to his affinity, would have had to pay to the Crown; so that the principles were so fixed, that there was a separate branch of the Court for such cases, and the reservation for beneficial purposes strengthened his position; for by that arrangement the heirs of intestate bastards were prevented from obtaining an exemption from succession duty not enjoyed by the heirs of persons born in wedlock. Could there be a better proof that the practice of the Court was settled, and not intermittent, occasional, and spasmodic? Sir Samuel Shepherd was next asked, if he would not ask whether the party was domiciled in Scotland, and he replied— Most certainly. In all these cases we adhere to the law of Scotland, except, in some cases in which we deviate a little from charitable motives; but, generally speaking, that is the law upon which we distribute all the property. In a letter to The Echo by Mr. Preston, proprietor of Chambers' Index to Next of Kin, the evidence of Mr. Hart Dyke, late Queen's Proctor, was quoted. He would quote from the official Report. Mr. Hart Dyke said— I take out letters of administration, and get in all money for the Government in connection with the estates of intestate bastards. When bastards die there are always plenty of people only too ready to seize hold of their property. In ordinary cases I receive a letter stating that A. B. is dead, and that he had such and such property, that he was a bastard, or had none but illegitimate relatives. I find, out who the next of kin are, or the persons to whom the Crown should make grants, and I recommend accordingly. English cases were, he understood, relied, on; but this evidence, he thought, showed that, after all, the practice in England was not very different from the immemorial practice of Scotland in such cases. But whether it was so, or not, was not the question. This was Scotch property, and they were not bound by English, but by Scotch law and custom. They had no more to do with the law of England in this case than with the law of France or Germany. Professor Bell, a recognized authority on this point, said it was a well-recognized principle in the law of all countries, that the succession in movables was regulated by the domicile at the time of death. But the hon. Gentleman the Secretary to the Treasury might say that they were not dealing with law, but with custom. He would appeal to any hon. and learned Gentleman in that House, whether custom which had subsisted for a number of years had not the full force of law? Parliament had itself expressly sanctioned the principle which guided the Courts of Scotland in the distribution of the property of intestate bastards in the Savings Bank Act. That Act expressly provided that if any depositor in any such savings bank, being illegitimate, should die intestate, leaving any person or persons who, but for the illegitimacy of such depositor, would be entitled to the money due to such deceased depositor, it should be lawful for the trustees to pay the money due to such deceased depositor to any one or more of such persons as, in their opinion, would have been entitled to the same had the depositor been legitimate. The right hon. Gentleman might quote this section against him, and say that Parliament probably intended to grant the depositors in savings banks a special privilege. But, he asked, what was the distinction between the two descriptions of property? Why should Government grant one and withhold the other? The right hon. Gentleman was, he apprehended, afraid of the existing law. He might, however, re-assure him by stating that, although the intestate bastard died three and a-half years ago, and diligent search had been made amongst his papers for a will, no such document had been found. Moreover, Mr. Paterson, of Montgomery, was quite willing to give the most ample security for the re-imbursement of the money in the improbable event of a will turning up. He was even willing that the money should be placed in the hands of trustees to be named by the Government. He submitted that it was the duty of the Government, after a reasonable time had elapsed, to distribute this estate according to the immemorial custom of the country of the deceased person. There was one other point which the right hon. Gentleman would make, which was this— He would say that Mr. Paterson, of Jamaica, had directed that his property, failing issue of the body of the bastard, was to go to a cousin, the heir of entail, and that that proved that his daughter, the mother of his constituent, was sufficiently provided for. No doubt, that was so, as far as the entailed property was concerned; but surely the right hon. Gentleman did not mean to contend that the savings of the deceased bastard, over which Mr. Paterson, of Jamaica, could possibly have no control, could be bequeathed by the latter to anyone whatever. He submitted that what the House had to consider, was not what were the intentions of Mr. Paterson, of Jamaica, but of Mr. Paterson, the deceased bastard. He thanked the House for the patience with which it had listened to him. He earnestly asked the Chancellor of the Exchequer to re-consider the decision at which he had arrived, so that it might not go forth to the country that the policy of a Conservative Government was a policy of spoliation and confiscation.


seconded the Motion, and said, he thought the hon. and gallant Member had laid before the House a case of great hardship, not only in the nature of the case itself, but enhanced by the departure of the Government from their usual action in cases of a similar nature. The state of the law with regard to natural offspring was very unsatisfactory. It was hard and unjust, punishing the innocent for the sins of the guilty—natural offspring were disinherited by our law on the ground of a legal fiction which said that they had no father, while it compelled the putative father to support his illegitimate child—such was the inconsistency of the law. He hoped that this case would be the means of bringing the Government to a sense of this great wrong, and that they might think it right to amend the law for the protection of innocent persons born out of wedlock. Such an alteration of the law might be made without injury to the sacred relations of married life.

Motion made, and Question proposed, That, in the opinion of this House, it is inexpedient for the Treasury to depart, "without previous notice, from the immemorial custom of Scotland, and for the first time to appropriate the estate of an intestate Dastard when there are Wood relations who, if he had been legitimate, would have been his next of kin according to the Law of Scotland."—(Colonel Alexander.)


said, that his hon. and gallant Friend (Colonel Alexander) had laid a very serious indictment against the Treasury, and he thought particularly against the Secretary to the Treasury, in relation to the matter which he had brought before the House. He confessed that he was undertaking an unpleasant duty, and one of serious responsibility. To a person in his position, it would be infinitely more pleasant in dealing with a large fund for which he was not responsible to Parliament, to distribute it among claimants whose view was that their claims were satisfactorily established, than to deal with it otherwise. But he stood in the position of a trustee, and was responsible for the due administration of the fund which the law placed in his hands. The law gave the estates of intestate bastards to the State. That property was constituted by the law as much the property of the State as were the funds voted by Parliament for the service of the Crown. Custom, however, had said that when an intestate bastard had expressed a strong feeling in favour of a particular individual to whom he was attached, or in favour of persons who had rendered great services to him, his wishes should be respected, and that the State should at its discretion make a grant or gift to those individuals. Now, what was their duty in the particular case under consideration? It was their duty to administer the property agreeably to the trust reposed in them. They were responsible to their own consciences, as well as to Parliament, and they had no right to distribute such funds with liberality and generosity as they might do if they were dealing with their own. They had simply to consider what was right, and to do justice, and it was their duty to examine, as far as they were able, into the circumstances of the deceased, into his intentions and wishes. With regard to the origin of the property in question, the Treasury found that a Mr. Paterson, of Jamaica, who had acquired a large fortune, had a sister and an illegitimate son. To his sister and her children he left half his property; to his illegitimate son he left the other half, placing it in trust for his benefit, but carefully providing that if the bastard should die without heirs, the property should not go to the sister nor to the heir at law, but to a distant cousin of his own. Rightly or wrongly, the Treasury took that to be, as they believed it was, the expression of the wish and will of the individual who was the founder of the family. Well, the illegitimate son came to Scotland and lived a se- eluded life; he saved money, but was, and remained, on terms very far from friendly with the relatives of his father. He sought to conceal the property he possessed. Only that morning a letter had been received from Messrs. Andrews, his agents, stating that for 20 years they had invested in their own names, without accounting to him, a large proportion of the fund which was now claimed. At the time of his death they said they had a sum of £28,194 standing in their names in the Bank, and that the object with which this arrangement was made was to conceal the fact that the property in question was his. With that view he only received £50 half-yearly, and that not because he wanted money, for he had £10,000 in the Bank of Scotland, and a considerable sum in hand, but because he had no friendship for the relations of his father, and, on the contrary, an antipathy to them. The strong presumption, his agent added, was therefore, that he did not desire that his property should go amongst them. In fact, if it were not for the honesty of his agents, it would have been impossible for persons who now claimed to have known that the sum they claimed was the accumulation of the savings of the deceased. But, again, they had received notice that it was very probable the deceased had made a will, though the will had not yet been discovered. ["Oh!"] Well, in another case a will had turned up, and the principal sum was claimed after 50 years, together with 4 per cent interest. His hon. and gallant Friend had laid stress on the answers he had given on this subject in Parliament; but what he had said was said from a sense of responsibility, and what he had done was done under the advice of the Law Officers of the Crown. If the Treasury had been made aware of any intention whatever on the part of the deceased to benefit any particular person, it would have been their wish to give full effect to that intention, but they had no such evidence. The Treasury found that the deceased had the reverse of any intention to benefit his relations on the father's side; and, as trustees for the State and guardians of the public purse, the Treasury did not consider it their duty to make free with large grants of the sum at their disposal. Stress had been laid on the fact that the custom of Scotland on the subject had been constant and unvarying; but that assertion was not borne out by the facts of the case. Every case had been dealt with according to its circumstances, and it was not possible to deal with these cases in any other way. Again, it had been said that the Treasury treated applicants harshly; but the Treasury had a duty imposed upon them, and whether it was right or wrong, morally—and he thought it morally right that for the benefit of the State things should be as they now were—they had to administer the law. It was not for them to decide whether the policy of the law was right or wrong; but if they exercised a large and generous discretion in giving away the funds of the State they would be accountable, not only to Parliament, but to their own conscience. There was no Department of the Government more responsible than that of the Treasury. They were called to account if they proposed Votes to Parliament which, after careful scrutiny, they deemed to be necessary; they were called to account if they failed to recognize the claims of individuals who complained that they were not treated with due liberality. If it became their duty to tell Parliament that Ways and Means could not be found, they were liable to be accused of want of economy and watchfulness. The duty of acting at the Treasury was in other respects far from being enviable and agreeable. It might be very easy to say "Yes "to the repeated applications that were made to the Treasury; but great pressure was brought to bear upon them by constituents, members of the Press, and the public; and they were urged to do their duty to the State, resisting claims and charges which ought not properly to be imposed upon them. In the present case various claims had been made. The solicitors —the Messrs. Andrews—believed that the deceased intended to give them the sum left in their custody — namely, £28,000—and if the deceased trusted them with this large sum for 20 years without exacting any accounts from them, any claim for consideration made from that quarter must, no doubt, be considered. There were 17 cousins, on whose behalf claims had been advanced, and there were four other classes of Petitioners who thought that the money should be given to public objects in Kilmarnock. The minister of the High Church at Kilmarnock confirmed the statement that the deceased entertained an antipathy against his relations, and he inferred that the deceased, probably, intended to leave him a legacy: it would clearly, therefore, he very difficult to get any evidence as to the wishes and intentions of the deceased. The law, however, gave this property to the State, leaving a discretion to the Treasury as to its distribution, which was a matter of prescription, and not of law. The relations, whose claims were the subject of the Motion now before the House, had already been provided for to the extent of one-half the original property, and there was no evidence that they were on amicable terms with the deceased, or that he intended to benefit them by his will, but the contrary. Was it the wish and intention of Parliament that the Secretary to the Treasury should be accessible to all the influences which were brought to bear in cases of the kind, and so to make a large distribution of the funds which the law gave to him to administer, not for his own benefit, but for the benefit of the State? If so, then Parliament ought not to require the discussion of Votes of money at all, and Ministers should be allowed at their discretion to give away the money of the State as they might think fit in obedience to the strong pressure that might be brought to bear upon them in particular cases. Let Parliament alter the law if it pleased; but if the law gave this property to the State, it was not right that the Secretary to the Treasury should be squeezed and pressed to distribute this money in the manner most agreeable at the moment to the feelings of Members of that House.


while admitting the responsibility which Parliament imposed upon the Treasury, and that the Treasury were in duty bound to look after all sources of revenue, and admitting, at the same time, that this was a matter of prescription rather than of legal right, wished to point out at the same time that this prescription had, from long use and wont, all the force of law, and he thought it was not too much to ask the Government not to depart from the usage which in these cases had been immemorial. The Secretary to the Treasury had said that the law gave the property in question to assist the reve- nues of the State; but property so acquired would never assist the revenues of the State, and would never do any good to the State. It was property which, got in such a way, ought to, and would, carry a curse with it, for it was very little short of plunder to deal with it so. The only point in the speech of the Secretary to the Treasury which required a reply was that which arose on the letter of the Messrs. Andrews, where it was said that the bastard was on unfriendly terms with Paterson. He (Mr. Anderson) was authorized to contradict that assertion; on the contrary, he continued to visit Paterson as long as he visited any one. The Andrews family were themselves making a claim to the property, and it was to their interest to make out that the man was on unfriendly terms with his relatives; but the statement was absolutely without foundation, and the alleged antipathy did not exist. As for the part of the estate that was otherwise settled it was an entailed estate, and therefore its settlement did not touch the point at issue. It was important that the House should come to a vote upon this question. He trusted the Government would give way to the general feeling of the Scotch Members in the matter. It was a question on which Scotch Members intended to vote "solid"—both sides of the House would vote together.


implored hon. Members not to come to a hasty decision upon this question, which was one of very great importance, extending far beyond the case immediately before the House. It involved a question of law and of practice in dealing with property of this nature. He described a case which came under his notice, when he held office at the Treasury. A man of high birth and large property had a legitimate daughter, a legitimate son, and an illegitimate one, and the latter, having received a commercial education, became the partner of a wealthy tradesman, who bequeathed him his property. He willed it to his only friend, his mother, who died a few days before him, and there being no one to take the property, the legitimate son and the children of the legitimate daughter claimed it as being next of kin. The Treasury refused to accede to that claim. What would have been the effect of their conceding it? It would have been a reward to them because their father had begotten the bastard. [Laughter.] Hon. Members laughed; but that was really a case which came before him a few years ago. Surely there was a confusion of ideas when people spoke as they did of the moral claim of the nearest of kin of a bastard. The principle underlying the distribution of the property of an intestate to his nearest of kin was that the State looked upon them as having presumably been his best friends, his supporters and companions in life. But this was not a presumption which held good in the case of a bastard. He had been probably ignored and rejected as an outcast by those who would, in a case of legitimacy, be presumably entitled to his property. The Treasury acted upon the principle of looking first of all to see if there was any written declaration, however informal, of the wishes and intentions of the intestate bastard, and if there was they were always disposed liberally to give way to that. They also looked about to see if he had any relations on the mother's side, any particular friends who had assisted him, who were those who throughout life had been his neighbours in the scriptural sense of the term. If there were any cases of that kind the Treasury was always disposed to consider them. There was always the difficulty that the nearest of kin in blood could not be assumed to be the persons to whom the intestate person was most attached. In deciding this question the House must not only look at the particular case before it, but at the general principles. No one who knew the Chancellor of the Exchequer and the hon. Gentleman the Secretary to the Treasury would accuse them of dealing hardly or unjustly with any case brought before them. He felt it his duty to support those who had charge of the administration of these estates, and he should unhesitatingly give his vote with the Government upon this question.


fully admitted that this was a broad question, and that it must not be decided by isolated cases; but he thought the House ought to know that there had been cases in which the relatives of the putative father had received allowances and the relatives on the mother's side had not been allowed at all.


said, this was a very difficult case, and one which most of them must wish to avoid giving judgment upon. Before he gave his vote or abstained from voting, he wished to ask one question. He understood by the terms of the Notice that this was the first time that the estate of an intestate bastard in Scotland had not been given to the next of kin. The Secretary of the Treasury in his reply had not met that particular point, and he should be glad to hear from the Solicitor General whether there was any precedent for not giving the estate of an intestate bastard to the next of kin. If there was not, he confessed he should feel strongly inclined to vote for the Motion.


observed that the way in which he should vote would be determined by the answer given to the question—was there any reciprocity in the matter? If the legitimate relations of a bastard had a right to claim the result of his savings there should, in his opinion, be the alternative that the bastard children should have the same rights as the legitimate in the distribution of property.


maintained that until this case arose it had been the universal practice of the Exchequer of Scotland to allow the property of the intestate bastard to go to those who would have been his next of kin had he been legitimate. He should like to know what the Government really meant to do with this money; did they mean to keep it altogether or distribute it among the relatives of the deceased, or were they going to wait until a will turned up? Their answer to these queries would decide the vote he should give.


said, he had listened to this debate with considerable pain and sorrow, because instead of this question having been argued in that House on grand and equitable principles, the meanest and most contemptible Nisi Prius views had been brought to bear upon it. He hoped the Leader of the British House of Commons would instruct his followers to look upon the matter in the light Pitt would have done, who would have been ashamed to pocket money derived from such a source. He defied anyone to produce an instance where the immemorial custom of Scotland had been departed from as it had been departed from now. He dissented from the view which had been put forward, that this was simply a question of law, for he agreed with those who held that prescription had overridden law, and the House ought on that occasion to pass a vote which would give prescription the force of law, and do an act of justice, rather than allow the Government to retain possession of money to which they were not entitled. He considered that the fact of the deceased not having made a will showed that he believed his property would go, according to custom, to his sister and her children. He did not believe there was any will in existence. He sincerely hoped from the essence of his heart—[Laughter]—he supposed it was allowed in Parliament to speak of the essence of one's heart—that the hon. and gallant Gentleman would succeed in carrying this Resolution.


as an English lawyer, would venture to put before the House some circumstances which he thought would justify them in rejecting the Motion before the House. He should have concurred in much of what had been stated on both sides if the statement of the hon. and gallant Member (Colonel Alexander) could be substantiated by facts. If it had really been the immemorial custom in Scotland that property of this kind had always been treated in the way in which it was suggested that the property in this case should be treated, then he agreed that the course taken by the Treasury was an extreme one, and one not likely to find favour with the House. But that was exactly, he thought, where the hon. and gallant Gentleman had failed. That was not, and never had been, the custom in the history of Scotland. Escheats by bastardy, like every other escheat, belonged originally to the superior feudal lord. About the 16th century the Crown succeeded to those escheats. In 1707, in pursuance of the Articles of Union, an Exchequer Court was established in Scotland, in the two-fold character of a Court of Law, and also as a Board, administering Treasury funds very much as they were now administered by the Lords of the Treasury; and down to 1829, or even a later period, the Court of Exchequer in Scotland did exactly what the Treasury claimed to do now. In the cases of small estates, and when it could be done without injury to the revenue or the Crown, the property might be distributed rather in the way of charity, if it was not thought desirable to insist on the extreme rights of the Crown. A Committee sat in 1832 to consider the propriety of abolishing the Court of Exchequer in Scotland, and distributing its duties differently; and the result was that from 1882 to 1835 the distribution of these estates was given to the Woods and Forests, and after that time it was entrusted to the Lords of the Treasury. Chief Baron Abercrombie, who was examined before that Committee, described the principle on which the property of intestate bastards was distributed by the Court. He stated that the property was disposed of in the same way as property of that kind was distributed by the Treasury in England — that they always reserved a portion as a charitable fund, and generally distributed the remainder among those persons who appeared to have been most attentive to, and most in the confidence of, the deceased. He believed that to be the practice at this hour, and that the Treasury in England acted on that principle—the principle of an absolute discretion, remembering that they were trustees of the real heir, should one ever turn up. In the year 1730 a book on the subject was compiled, and was printed in 1820 under the superintendence of two Barons of the Exchequer, and it described the practice which had prevailed in the distribution of these estates as that which had been stated in the evidence of the Chief Baron. Sir Henry Jardine, who was examined before the same Committee, concurred in the evidence which had been given by the Chief Baron, and it appeared that a discretionary power had always been given to the Baron. [Mr. W. E. FORSTER inquired if that was an English or Scotch precedent?] It was purely a Scotch precedent, and it was clear that the practice which began in 1707 was carried down to the time at which the work to which he had referred was published. He thought the Motion now before the House was inconsistent with the principle that an immemorial practice existed that the estate should be administered according to the same, principle that it would have been if the deceased person had died intestate. This matter, however, involved far wider considerations than were involved merely in the discussion of the particular case before the House. The policy of the law was to encourage marriage, and to re- fuse to acknowledge illegitimacy; and it would be most injurious to lay down a general proposition to the effect that the property of a bastard intestate should be treated in the same way as if he had been properly married, and his issue bad been born in wedlock. As far as the particular case before the House was concerned, he could only say that the duty of the Law Officers was to give to the Crown the best advice in their power in view of the facts presented to them. With reference to the discretionary power which was in certain cases exercised by the Crown, the right hon. Gentleman opposite (Mr. Forster) had asked him whether he could point to any instance in which the Crown had taken to itself the whole property of an intestate bastard. He confessed that he was unable to adduce any such instance. On the other hand, he thought the right hon. Gentleman would feel the relevancy of this observation—that the instances in which any question of this sort had arisen during the time within which the discretionary power of the Commissioners had been exercised had been very rare indeed. But, no doubt, the discretionary power of the Crown had been exercised in such cases whenever they had occurred, as in cases of unclaimed dividends or treasure trove; and he could see no difference between these cases, except so far as the technical law of bastardy operated. For this reason, and also because he knew how beneficially the discretion of the Crown had been used, he could not wish to see it taken away.


said, it was clear that before this case there had not been a case of this sort in which such a large sum of money had not been divided amongst the friends of the deceased. He wished to point out that the feeling throughout Scotland was that the money ought to be given to those friends; and therefore the House ought to confirm the Resolution and not allow the Government to rob those friends of £40,000. A comparison of legal opinion must be in favour of Sir Samuel Shepherd, whose views were opposed to that of a late Speaker (Mr. Abercromby), and he could not believe that any Lord Advocate could think otherwise.


said, the absence of the Lord Advocate, to whom the hon. Member for Edinburgh (Mr. M'Laren) had referred, was due to indisposition, and that though the law on the subject had been sufficiently stated, the Government was somewhat at a disadvantage. However, the Lord Advocate would in all probability have corroborated the statement the House had just heard. He (the Chancellor of the Exchequer) could only say that this was one of those questions which caused a good deal of anxiety to the Treasury. This question had been considered by his hon. Friend the Secretary to the Treasury and himself. They had given it their best attention, and they had had before them the opinions of the Law Officers of the Crown. The equity of the case, as well as the law, had been well considered, and he believed that neither the House nor the Government could agree to the proposition which they had been asked to affirm—namely, that it had been the immemorial usage to appropriate the estate of an intestate bastard to those who would have been his natural heirs. He denied altogether that there had been any such immemorial usage. The immemorial usage had been the other way. There could be no doubt, in the first place, as to the law that, when the bastard died intestate, his estate escheated to the Crown. In olden times when it escheated to the feudal lord he took it as a part of his profits. When the Crown deprived the feudal lord of that privilege it took the estate as part of the Crown revenues; and when in a later day a milder system was introduced, that system was not founded on the rights of the case, but on the discretion and, so to speak, the charity of the Crown. A proof of it was that the Crown always mentioned that a portion of the estate was given in charity, which showed that there was no immemorial usage to give it to the next of kin. Then it must be borne in mind that in former times there was greater reason for exercising more charity in the case of a bastard in Scotland than in England, because a bastard in Scotland was subject to peculiar disadvantages not applicable in England. Even if he had children of his own, he was unable to make a will in their favour until 1836. Therefore, there was the more reason that the Crown, when it became possessed of the bastard's property, should in charity make over to his children that which had come to the State. The Legislature took the circumstances into con- sideration, and removed the difficulty by giving the bastard power to make provision for his family and friends by making a will. But the Legislature did not think it right to go beyond that; it left the case of the intestate bastard in the same position as before. From that it might be gathered that the Legislature left the estate of the intestate bastard to be disposed of at the discretion of the Crown. It was perfectly well known to Mr. Paterson that such was the law. He could at any moment make a will, and he must have known that if he did not his property would come into the hands of the State, and might be disposed of in any way at the pleasure of the State. There was no evidence that Mr. Paterson had any desire to leave his estate to any particular person. The Government were asked whether they knew of any case in which property to any considerable amount had been left undisposed of by a bastard. They knew of no ease in point; but did the right hon. Gentleman the Member for Bradford (Mr. W. E. Forster) know of any which would support his view? What was the argument drawn from immemorial usage? It was that some expectations had probably been entertained by the relatives of the bastard which had been disappointed. If that were the case with his own children or some one whom he had encouraged to hope, it would be hard to disappoint them. But there was not a scintilla of evidence that there were any such expectations. Under these circumstances, he could only appeal to the House to consider this case fairly and upon its merits. It was natural that everyone should desire to benefit an individual in such a case rather than the State. But let the House consider what the position of the State and the Treasury was. Let them bear in mind that the exercise of discretion in this matter was a duty which was imposed on the State and the Treasury, and which was exercised under a strong sense of responsibility to the public; and let the House rest assured that in the decision of this case they had been actuated by the most thoroughly public-spirited motives.

Question put.

The House divided:—Ayes 135; Noes 197: Majority 62.—(Div. List, No. 195.)

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