HL Deb 11 May 1855 vol 138 cc384-95

rose to put some questions to his noble and learned Friend on the woolsack relative to certain legal measures now before Parliament; and his first question would have reference to the Testamentary Jurisdiction Bill. Their Lordships were aware that the subject involved in that Bill, having been very fully considered before a Select Committee of that House, a measure was prepared last Session, which, after receiving the sanction of their Lordships, was sent down to the other House of Parliament. The House of Commons, however, did not pass the measure into law; it had, however, been introduced into that House in the present Session. It appeared to him that the proper course to have pursued this Session would have been to have reintroduced the Bill in their Lordships' House; but that not having been done, it became necessary to call upon his noble and learned Friend to state what were the intentions of the Government with respect to the other branches of the Ecclesiastical Courts. He wanted to know what was to become of the Arches' Court; and he hoped the noble Lord would be able to hold out to them an assurance that they would not be called upon to offer any opinion upon individual features in the proposed plan of legal reform until the whole plan had been submitted to them. A promise had been made that a general plan for reform of the Ecclesiastical Courts would be brought forward. Up to this time, however, that promise had not been fulfilled. Now, what he feared would take place was this, that the Testamentary Jurisdiction Bill would pass in some shape or other, without their having had an opportunity of considering the general scheme, unaffected by the decision of the other House of Parliament upon a most important part of it. No one could form a satisfactory opinion as to whether a measure was applicable to the whole jurisdiction without a knowledge of all its features. In reference to the Testamentary Jurisdiction Bill there was some reason to complain that no information had been given by Her Majesty's Government as to the amount of compensation to be paid under it. He had heard it, however, estimated at from 140.000l. to 150.000l. Now, that was a very large sum of money, and would have to be paid by the suitors from estimated savings in other directions. At the same time he could not help thinking that it required a great deal of sound argument to show how such a burden could be properly placed upon the suitors at all. He also wished to make a few remarks upon the subject of fees paid to solicitors to the Court of Chancery. When he had the honour of holding the seals of office, he had approved of a certain scale of fees for the solicitors practising in his Court. His noble and learned Friend behind him (Lord Lyndhurst) had, however, disapproved of that scale, and its revision was contemplated by the noble and learned Lord on the woolsack. Now, speaking generally on the subject, he would say that it was much easier to increase a scale of charges than to reduce one after it had subsisted for a certain period. The complaint—and no doubt the just complaint—of the solicitors, was, that while there was a great deal of unimportant and easily executed business for which they were too well remunerated, there was, on the other hand, a great deal of business well executed for which they were not adequately paid. The next question to which he wished to direct their Lordships' attention was the Tenants' Compensation (Ireland) Bill, which had been brought into the other House of Parliament, and which contained a retrospective clause, giving compensation for improvements effected within a certain period. A measure on that subject also had been before their Lordships, and referred to a Select Committee. Now, it had always been pointed at the Government of his noble Friend (the Earl of Derby) that they had introduced a measure embodying a retrospective clause. It certainly was impossible to deny the fact; and therefore in that respect the Government of that day and of this stood upon precisely the same footing. For himself, however, he might say, that he had been always opposed to the principle of such a clause, and that his opinion had never for a moment undergone any variation; still when he found that the Government of which he was a Member had adopted such a clause circumscribed and defined within certain narrow limits, he did not consider himself at liberty to stand in the way of that Bill being passed into law. That Bill, however, did not pass through the other House of Parliament. A Bill on the same subject and containing a retrospective clause had been during the present Session introduced into the other House of Parliament; and he hoped it would be explained whether the Government had come to any definite conclusion with reference to that Bill, and if they had, he hoped they would abide by them. He thought it might have been reasonably expected, holding the views which they did, that the Government itself would have come forward with a measure, and endeavoured to have carried it through. Instead of that they had left the matter in the hands of a private individual—an hon. and learned Gentleman—who was known to hold very strong opinions in favour of a retrospective allowance for the improvements of tenants in Ireland. The consequence was, that a measure had been introduced, which was now travelling up to their Lordships, and which, in all likelihood, would lead to a difference of opinion between the two Houses. At the same time, he was bound to add, that should the measure come up to their Lordships in the same form as that which had previously received their sanction, and limited and circumscribed as it was before, he could not feel justified in opposing, although he could not regard it even then with favour. But in the shape in which the Bill obtained a second reading from the House of Commons, he would state at once that it was one which he never could approve of, nor could any one that had retained the slightest regard for the rights of property. He would pledge himself to show, when the measure came before their Lordships, that there was not the slightest foundation for the assumption that any rule of equity had ever been propounded, or that there was any case in equity producible, sanctioning the principle contained in the clause in the Bill granting compensation for retrospective improvements. As for the subject of the Irish Court of Chancery, which had been taken up by an hon. and learned Friend of his, whose talents were very great, and for whom he entertained a great respect, he must say he could not at all agree with the Bills which had been introduced by him; and he most earnestly hoped that any measure to be introduced by Her Majesty's Government, altering the constitution of the Irish Court of Chancery, would not be based upon a supposed analogy of the Irish and English courts. He understood that it was proposed to create in Ireland three Vice Chancellors and to abolish the offices of the Masters. Now there could be no doubt that the creation of three Vice Chancellors was not called for by the state of business in Ireland. In England they were of necessity appointed, but not in lieu of the Masters, in whose place, and for the fulfilment of whose duties, it had only been deemed requisite to appoint a number of chief clerks. He had had some experience of equity business in Ireland—and there was no reason for believing that since then it was on the increase, except, perhaps, by the business of the Incumbered Estates Court; but when he was there he would venture to say that the judicial power was fully adequate to discharge all the business that came before it. He ventured to say that the Chancellor and the Master of the Rolls were quite competent to transact the whole judicial business of Ireland. He trusted, therefore, that any measure which the Government might have in contemplation to afford increased facilities for the transaction of equity business in Ireland, would not be incumbered by the appointment of judges who were not required. With regard to the Incumbered Estates Court, he would observe, that it was very unwise to make Ireland the subject either of experimental or exceptional legislation. Let her be governed by the law which was common to both countries. If the rule with regard to incumbered estates which was adopted in Ireland were a good one, let it be applied to England also; but whether such a court should be established for either country at all, involved, in his opinion, considerations relative to property the most momentous ever raised before Parliament; but he trusted that the Government would act with great caution in adopting the Incumbered Estates Court, with its present provisions, as a part of the Court of Chancery. Looking at all the measures to which he had referred, he contended that it was the duty of the Government to take them up, and to persevere with them until they became law.


wished to explain that his objections to the present scale of fees in the Court of Chancery was based upon this principle: that costs were taxed according to the length of the proceedings; so that a bounty was thus held out to solicitors to lengthen proceedings as much as possible, and their interests and the interests of the suitors became consequently opposed. What he desired to see brought about was, that the scale of remuneration should have regard not for the length of proceedings, but for the value of work done.


was very much afraid that result could not be brought about. It was easy to estimate quantity, but it was much more difficult to estimate


said, he had no right or inclination to complain of the questions which his noble and learned Friend had put to him, and he would endeavour to answer him with the same frankness with which he had asked them. The first question related to the Bill now pending in the other House, for the improvement of the Testamentary Courts. His noble and learned Friend had complained, as he understood, that the Bill ought to have been introduced in that House this Session as it had been last. The reason for the Government adopting their present course was, that the Bill having been passed by their Lordships last Session, and thrown out by the other House, it was thought more desirable it should be approved by that House before it was introduced for their Lordships' consideration. He had every reason to believe that in the form in which it now stood it would receive the sanction of the other House, and it could then be discussed by their Lordships with greater facility, inasmuch as its material points had been already fully considered in the last Session. The noble and learned Lord had inquired what was the amount of compensation. He (the Lord Chancellor) was not prepared to answer as to the exact amount. He certainly did not think it was so much as 140,000l.—he thought it was not more than 100,000l.—but, be it what it might, no additional charge upon the suitors would be imposed to meet it; because the fee, called the "proctor's fee," now paid upon every probate, would be continued until the compensation had been defrayed, and it was calculated—though calculations were sometimes deceptive—that they would be sufficient for that purpose. The only hardship on the suitors would be, that, instead of the fee being removed at once, it would be continued for a few years longer. A similar Bill to the present had been prepared for Ireland, with some slight modifications, but it had been thought advisable to postpone the introduction of that Bill until the other had been disposed of. He agreed, to a certain extent, that reforms in the other branches of the Ecclesiastical Courts, having reference to divorce and clergy discipline, ought, in order to make the reform of the Ecclesiastical Courts complete, to be dealt with at the same time; but still they were subjects which stood upon their own footing, irrespective of the other branches of reform. He had had the honour to introduce a Bill last Session upon the subject of divorces; but it was not considered expedient to carry it further at that time. The Testamentary Jurisdiction Bill not having passed the House of Commons, that Bill would be introduced in the present Session without any alterations. He next came to the Clergy Discipline Bill. In the first place, he contended that there was no necessary connection between that and the other two subjects. It was a subject of a purely ecclesiastical nature. It might be perfectly right to dispose of the two former, although the latter remained untouched; but that had not been the course followed by the Government. It had prepared a new Clergy Discipline Bill, which had been submitted to some of the Bishops, a portion of whom had approved of it, while others, he was bound to say, bad expressed disapproval. Within the last few days ho had been engaged—and should be engaged for the next few days—with the English Bishops to know the exact points of which they disapproved. The Bill would, no doubt, receive material modification from their suggestions, but it was in a state of forwardness which enabled him to state that it would be ready, when such modifications were made, to be laid upon the table of the House. The next question of his hon. and learned Friend related to the Irish Tenants' Compensation Bill. He quite agreed with his noble and learned Friend that the question was a most important one. He could assure him that neither himself, nor, he believed, any of his colleagues, had any greater sympathy with the doctrine, abstractedly considered, of retrospective compensation, than his noble and learned Friend had. If it were erroneously supposed that that was a principle that might be acted upon in the abstract, according to the ordinary rules of equity in this country, he (the Lord Chancellor) could not agree to such a principle, nor did he believe that such a principle had ever been enunciated by an hon. and learned Friend of his in the other House, to whom reference had been made. He (the Lord Chancellor) had never communicated with his hon. and learned Friend on the subject; but be was sure that what his hon. and learned Friend had said was, that analogies for retrospective compensation might be drawn from decisions of Lord Eldon and Sir William Grant, in the case of a person standing by and seeing another building upon, and making improvements upon land belonging to him, without taking means to prevent it. This analogy, very imperfect, was merely alluded to in the course of the debate. He (the Lord Chancellor) had quite as little sympathy as his noble and learned Friend with the doctrine of retrospective compensation; but he was of opinion that the case of the Irish tenant was an exceptional case, which, for the peace of society, it might be important to deal with in an exceptional manner. That being the case, what had taken place? An hon. and learned Gentleman in the other House had introduced a Bill framed upon that principle, and going further than he trusted the Government would be disposed to go. A debate ensued, and the Government had undertaken to take the Bill upon themselves, provided the hon. and learned Gentleman who introduced it would be satisfied with limiting the retrospective compensation to an extent below that which was fixed upon when the Bill passed that House two years ago. They proposed to confine it to houses built by the tenant, and to roads and external fences made by the tenant. They also proposed to limit it to a certain defined period, the exact extent of which he did not recollect; but it was necessary that the work should have been done within a certain limited time. It was also proposed to extend it to certain cases in which the landlord should turn the tenant out of possession. However contrary to abstract principle it might be, and always protesting that it was a most difficult doctrine to justify, even when carried only to that limited extent, as a matter of compromise, the Government were willing to accede to it. His noble and learned Friend had objected to the Court of Chancery being quoted as an authority on this subject; but he (the Lord Chancellor) did not think it was intended to be said that the Court of Chancery had done precisely the same thing, but merely, as he had already explained, that it afforded a sort of analogy for doing so. The doctrine was not the doctrine of the Court of Chancery only, but of the civil law and of common sense; because, if he stood by while a man was making improvements on his property, under circumstances which he knew must amount to a tacit encouragement on his part, that was held to be equivalent to an actual declaration that the person making the improvement might go on with them. He would not say that was the case of the Irish tenant, but it furnished an analogy that in the course of argument it was very reasonable to use. The next question of his noble and learned Friend had reference to six Bills which had been introduced into the other House by an hon. and learned Gentleman who had been the Irish Solicitor General under the Government of Lord Derby. Her Majesty's Government were sorry to see those Bills introduced by the hon. and learned Gentleman, not that they disapproved of the principles on which they were framed, but because they had issued a Commission to inquire into the state, impliedly, of the Court of Chancery in Ireland and of the Incumbered Estates Court, for the purpose of ascertaining whether the functions of that Court could be advantageously transferred to the Irish Court of Chancery. The Commission was directed to very learned persons in Ireland and England, and they had made very elaborate inquiries on the subject. Such of their Lordships as were connected with Ireland must know that the subject of their inquiry interested, in a vast degree, all the community in Ireland; for, unpopular as that Court, to some extent, had been in its inception, there was nothing to which a greater portion of the community would listen with more sorrow than to a proposal that the powers exercised by that Court should be abruptly brought to an end. That Commission, the members of which were very eminent men, and who were well acquainted with the subject, had made a very full inquiry, and had issued a report containing various recommendations; and he trusted that he should be soon able to lay a Bill on the table of the House to carry into effect a great portion, if not the whole, of those recommendations, and he could say that such Bill was in preparation. His noble and learned Friend asked if the Bill would extend to England, and he begged to inform him that it would not extend to England; but they ought not to stop short of a great reform because, in the first instance, it had happened accidentally to be forced upon their attention in Ireland. He was not able to say that they would be prepared to introduce such a Bill for England, neither would he say that they would not, but would only observe that a great deal of care and consideration was necessary before such & measure was introduced. Difficulties might present themselves with respect to England, requiring consideration; and, therefore, he could not undertake to make any pledge on the subject. He had thus disposed of all the questions asked by his noble and learned Friend, except the question of costs in the Court of Chancery. His noble and learned Friend was wrong in supposing that the object of the Commission was to increase fees already settled—the question of fees in the Court of Chancery had yet to be inquired into, and it was now under consideration.


thought that these desultory discussions, without any Motion being before the House, respecting measures that were pending, was very inconvenient. During the time he was connected with the Government the practice pursued was, before any important question was brought forward, to subject it to discussion by the leading Members of the Government who were likely to take a part in the debates for carrying that measure through. He did not think that that course had been pursued by the present Government, although he had no doubt of their sincerity in seeking to attain a sound and an enlightened measure of law reform. He bad no doubt that the affairs of the country would be safe in their hands, and he was prepared to give them his sincere and disinterested support; but he questioned whether they could successfully carry out any great measure of law reform, unless there was full concert between all the Members of the Government before that measure was brought under discussion in Parliament. He would, therefore, advise the Government that, before any measure of law reform was proposed, they should be certain that all the Members of the Government were prepared to support the whole measure.


said, that not being acquainted with the merits of the legal measures generally, he would not express any opinion upon them; but with respect to the measures that related to Ireland, he wished to make a few observations. He had heard with great satisfaction that the Government were determined to act upon the Report presented, though not published, and to do away with the anomalous state of the law which now prevailed in Ireland in reference to the Incumbered Estates Court, and to transfer the business of that Court to the jurisdiction of the Court of Chancery. The grievance arising from the operations of the Incum- bered Estates Court was very great indeed, not to those under its operation, but to all those outside of its operation. The value of real property throughout Ireland was affected by those operations, because the forced sales in that Court led to the depreciation of the whole rental and property of Ireland, and because by a sale under that Court a better title could be obtained from a person in debt than from a person who was perfectly solvent. It was a state of things that ought to be put an end to, and in altering the law no principle should be adopted with respect to Ireland that would not be equally applicable to real property in every other part of Her Majesty's dominions; because it was not fair or wise to say that property in Ireland should be treated in an exceptional manner. He wished he could feel confident that that principle would also be adopted with respect to the Tenants' Compensation Bill. He denied that Ireland now presented an exceptional case; and they should not apply a law to that country that was not applicable to England or any other part of Her Majesty's dominions. It had been said that extraordinary circumstances justified the application to Ireland of an exceptional principle. He did not admit that extraordinary circumstances would justify the adoption of such a principle for permanent legislation; but even if they did, the extraordinary circumstances that had been urged as a justification had totally disappeared in Ireland. He had given notice of a Motion for certain returns with regard to the relations of landlords and tenants in Ireland; and he was sure it would appear from those returns that there were no more disputes there than in any place else, that there was no litigation between landlord and tenant of any consequence in that country, and that there was the utmost confidence under the present state of the law on the part of the tenant who took land from a landlord. But there was not confidence amongst persons who wished to invest money in. real property in Ireland in what might be the course of legislation. There was great doubt and apprehension entertained by persons who were going to purchase property in the Incumbered Estates Court in Ireland, or who desired to invest their money in property in Ireland, in consequence of the Bills that had been introduced into the House of Commons. He hoped the Government would be unanimous in adhering to sound principle, and that no principle would be entertained by them except one that could be thoroughly maintained. If there was any doubt entertained with respect to the condition of Ireland, the fair way was to appoint a Committee to inquire into the state of Ireland at the present moment; but he asked of their Lordships not to legislate now for Ireland as for an exceptional case.

Back to
Forward to