Lords Sitting of 18 May 1857

MINUTES.
PUBLIC BILLS.—la Dulwich College.
2a Probates and Letters of Administration.

THE IMPROVEMENTS IN ST. JAMES'S PARK—QUESTION.
THE EARL OF MALMESBURYsaid, he wished to put a question to the noble Earl the President of the Council in reference to those alterations made in the piece of water in St. James's Park, which he had before brought under the notice of the noble Earl. Their Lordships would remember that on Friday night the noble Earl had founded his justification of those alterations principally, if not exclusively, on sanitary considerations, and he wished to know whether his noble Friend would have any objection to lay before the House any correspondence which might have taken place between the Board of Health and any other public department with respect to the sanitary condition of St. James's Park, or any official document that Board might have issued recommending such steps as those which had been taken in that quarter by Sir Benjamin Hall. It appeared from the reports published in the public press of the statement made by his noble Friend on Friday that Sir Benjamin Hall had received no authority from Parliament to carry out those changes. Now, if that right hon. Gentleman had acted in the matter on the Urgent recommendation of the Board of Health, such a fact would, no doubt, furnish a partial excuse for engaging in that work without the consent of Parliament, but would afford no ground for throwing the cost of the undertaking on the national exchequer. As the sanitary laws at present stood works similar to those going on in St. James's Park, were executed throughout England at the expense of the local proprietors. In the city of Salisbury, works of a precisely similar character had been constructed out of purely local rates, which amounted to not less than two-thirds of one year's rental of that city; and, in other places, the burden had fallen very heavily on the owners of property. He did not propose to go into the argument about the recreation of the people and the adornment of the metropolis—it would be childish to suppose that; he was not as much in favour of such things as anybody

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else—but he wished to see the expense put on the proper footing, and if, as his noble Friend, the President of the Council was reported to have said, and no doubt correctly, these alterations were necessary on sanitary grounds, the expense ought to fall on the inhabitants of the metropolis, and not on the country generally. Sir Benjamin Hall seemed to have acted in that case from the mere exercise of his own judgment, and he (the Earl of Malmesbury) should be glad to know whether any communication had taken place between the right hon. Baronet and the Treasury, in order that their Lordships might ascertain whether the Treasury had given him any authority for following the course he had adopted.
EARL GRANVILLEsaid, he did not think that in his address of Friday last he had put the case for those improvements on mere sanitary grounds so exclusively as his noble Friend seemed to imagine. But he certainly did say that owing to the dirty state of the water in the Park, containing as it did a great deal of offensive matter, the improvement had been thought desirable on sanitary grounds. The present Chief Commissioner of Works had formerly been President of the Board of Health, and in that capacity had become perfectly acquainted with the unwholesome condition of the lake in the Park. He consulted the Board of Health with respect to those works, and had received from that Board a recommendation that they should be carried into effect. The Treasury had also given their sanction to the undertaking; and he could have no objection to the production of the correspondence that had passed between the different officers of the Government upon the subject. As his noble Friend had, very properly, taken an economic view of that matter, he was very glad to be able to inform him that there would be effected in the supply of water to St. James's Park a saving of not less than £900 a year, which formed a sum equivalent to the interest on the whole of the expenditure that was to be incurred.
THE EARL OF MALMESBURYthought he knew what the noble Earl meant; he believed that when the facts came to be fully investigated it would be found that no such saving as his noble Friend had just stated could in reality be effected. He believed in fact it would be the other way.
THE EARL OF EGLINTONwished to
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know whether any similar improvements were to be made in the Serpentine?
EARL GRANVILLEsaid, he was not aware that any such improvements were at present in contemplation.

MESSAGE FROM THE QUEEN— MARRIAGE OF THE PRINCESS ROYAL.
A Message from The QUEEN, delivered by the Lord President, and read by the Lord Chancellor as follows:—
"VICTORIA R.
"Her Majesty having agreed to a Marriage proposed between the Princess Royal and His Royal Highness Prince Frederick William of Prussia, has thought fit to communicate the same to the House of Lords:
"Her Majesty is fully persuaded that this Alliance cannot but be acceptable to all Her Majesty's faithful Subjects; and the many Proofs which the Queen has received of the affectionate Attachment of this House to Her Majesty's Person and Family leave Her no Room to doubt of the ready Concurrence of this House in such Measures as may contribute to the Conclusion of the Marriage of Her eldest Daughter, and may be suitable to the Dignity of the Crown and the Honour of the Country:
"V.R,"
EARL GRANVILLE: My Lords, in accordance with the invariable practice, that when a Message of this character is received from the Crown your Lordships agree to an Address in reply on the same evening, I now rise to move an Address which I am sure will meet with your Lordships' unanimous assent. Many of your Lordships have had opportunity of observing how completely Her Royal Highness the Princess Royal has fulfilled those expectations as to her life and character which were justly to be formed from the education she has received and the example which has ever been presented to her. I believe, too, that some of your Lordships have had opportunities of observing that the character, manners, and feelings of the Prince whom Her Royal Highness is about to marry are such as to promise a more than usual measure of happiness from the union. Your Lordships, I am sure, are

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ready to testify in every way your desire to promote the comfort and happiness of the Parents of the Princess Royal, and to contribute to whatever may reward them for the manner in which they have discharged their domestic duties and the care and attention they have bestowed on the education of their child. I do not think it necessary to trouble your Lordships with any further remarks, but will move at once—
"That an humble Address be presented to Her Majesty, to return to Her Majesty the thanks of this House for Her most gracious communication of the intended marriage between the Princess Royal and his Royal Highness Prince Frederick William of Prussia, to express their satisfaction at the prospect of an alliance with a Prince of so illustrious a family, which they doubt not will contribute to the happiness of Her Majesty and of Her Royal Highness as well as prove conducive to the best interests of this kingdom; and to assure Her Majesty that the House will immediately proceed to the consideration of Her Majesty's gracious message in such a manner as shall demonstrate the zeal, duty, and affectionate attachment of this House to Her Majesty, a just sense of the merits of Her Royal Highness, and a due regard to the dignity of the Royal Family and the honour of this country."
THE EARL OF DERBY: My Lords, I am sure that your Lordships will unanimously agree to the Address which has just been moved by my noble Friend. As I understand him, the Message from Her Majesty, so far as relates to the details in connection with the marriage, will have to be considered by your Lordships on some future occasion. We are therefore now only called upon to express our feeling of loyalty and attachment to Her Majesty, and the satisfaction with which you witness any event which can contribute to Her happiness and the happiness of the Royal Family. Those feelings are, I am convinced, entertained, not only by every Member of this House, but by every member of the community. It has been the good fortune of Her Majesty that her marriage, unlike Royal marriages in general, was one not founded on considerations of policy alone, but on a personal acquaintance, personal esteem, and personal attachment. I hope and believe that the same remark may be applied to that marriage to which the attention of your Lordships is now directed; and I feel assured that your Lordships can express no better wish for the future happiness and welfare of the young Princess whose marriage is about to be celebrated, than that, as she enters into wedded life under the same auspices as her illustrious mother, so in the course of it she may enjoy the same happiness,
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merited by the same domestic virtues. I have much pleasure in expressing my entire concurrence in the Address.
Motion agreed to: Address of Thanks and Concurrence Ordered, Nemine Dissentiente, to be presented to Her Majesty: the said Address to be presented to Her Majesty by the Lords with White Staves.

PROBATES AND LETTERS OF ADMINISTRATION BILL.

  SECOND READING.
  Order of the Day for the Second Reading, read,
  THE LORD CHANCELLOR, in moving the second reading of the Bill said, that as it was not many weeks since he had the honour of drawing their Lordships' attention to the subject of testamentary jurisdiction, and had on that occasion gone somewhat at length into the question, he did not now propose to go again over the same ground, but should merely point out the evils which it was proposed to remedy, and the enactments by which he trusted the remedy would be accomplished. Their Lordships were aware that it was a subject which had engaged the attention of the Parliament and the country for considerably more than a quarter of a century. When his noble and learned Friend (Lord Lyndhurst) held the Great Seal, he issued two Commissions—the Ecclesiastical Commission and the Real Property Commission. The Ecclesiastical Commission was directed to several eminent judges and divines; the Real Property Commission to eminent lawyers, presided over by the present Lord Chief Justice of the Queen's Bench, and the attention of both Commissions was directed to the unsatisfactory state of the jurisdiction in matters testamentary. The Ecclesiastical Commissioners in their Report, pointed out the enormous inconvenience which resulted from the great multitude of small jurisdictions, having authority only within very narrow limits, and recommended the sweeping away all smaller jurisdictions and concentrating the jurisdiction in the two Prerogative Courts of Canterbury and York. But with the exception of that change, they would have left the administration of the law, in reference to probates, pretty much as they found it. The Real Property Commissioners took a different view. They thought that the non-contentious jurisdiction, which formed much the larger portion of the whole, should be concen-

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  trated in one office instead of being dispersed over a great number, and that the contentious jurisdiction should be referred to the Court of Chancery. The Reports of these Commissions were made, the one in 1832, and the other in 1833. It might be asked why nothing had been done at that time for the purpose of carrying out the recommendations of one or the other Commission. The fact, no doubt was to be attributed to the fact, that more pressing and engrossing subjects—the Reform Bill, the Poor Law Bill, the Tithe Commutation Bill, the Municipal Reform Bill—then occupied the public mind, and the attention of the Government, and rendered it impossible effectually to introduce a measure at the same time upon the not less difficult subject of testamentary jurisdiction. But in 1835 and 1837 Bills having reference to this subject were introduced, one by his noble and learned Friend (Lord Campbell) another by the late Lord Cottenham, and another by the present Lord Chief Baron Pollock, then Attorney General; but they were merely laid on the table for consideration, and led to no practical result of any kind. As time rolled on, the subject was continually renewed without any practical effect; and in 1843 an attempt was made to put an end to these annual discussions by his noble and learned Friend (Lord Lyndhurst) who introduced a measure upon the subject. That Bill never became law. In the following Session a Bill, not exactly the same, but founded on very much the same principles, was introduced by Sir John Nicholl, then Judge Advocate. That Bill did not pass through the other House of Parliament—at all events, it never became law. In 1845 Lord Cottenham, who did not then hold the great seal, introduced a measure of his own, which passed through their Lordships' House, and was sent to the Commons; but it never got beyond the first reading. In 1846, and during the time Lord Cottenham held the Great Seal, the reform of testamentary jurisdiction was not attempted. The matter remained quiescent during his tenure of office. Reforms had during that time been attempted, and some of them were effected in other branches of the Ecclesiastical Courts, but no attempt was made to grapple with the question of testamentary jurisdiction. In 1850, Lord Truro issued a Commission to distinguished lawyers to inquire into the state of the Court of Chancery. He made a Report which led to the adoption of many amendments
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  still in force in the practice of that Court. In 1852, when Lord St. Leonard's received the Great Seal, he added the names of several persons intimately connected and familiar with the practice and proceedings of the Ecclesiastical Courts—Dr. Lushington, Sir John Dodson, the Queen's Advocate, and Mr. Rolt—and the Commissioners were directed to look into this question of testamentary jurisdiction specifically. They made their second Report in January, 1854, and what they recommended was the establishing of a Queen's Court of Probate, that should have jurisdiction over the whole kingdom. They also recommended that there should be distinct courts throughout the country, to the number of from twenty-four to thirty; that the Probate Courts should have the exclusive power of granting probate, both of real and personal estate; that there should be an Accountant General of the court, who should be also the Accountant General of the Court of Chancery; and that there should be an appeal to the Court of Chancery, and from the Court of Chancery to the House of Lords, or direct to the House of Lords. He (the Lord Chancellor) thought it his duty to submit a Bill, framed to embrace those recommendations, soon after the Commissioners had made their Report. The Bill received great consideration in a Select Committee, and on the suggestion of Lord St. Leonards all the provisions connected with real estate were struck out, and the Bill made to apply to personal estate only. The Bill underwent minor alterations, but that was the principal change it received in Committee, and with that change it received the assent of their Lordships' House. The Bill went down to the other House, but there shared the fate of others which had preceded it, in consequence probably of the opposition of a powerful body dispersed over the country, who considered that the measure would prejudicially affect their interests. Another Bill was introduced into the House of Commons in 1855, which adopted part of the machinery of the Bill which went down from this House. The Commissioners, it would be remembered, recommended that the Court of Probate should be connected with the Court of Chancery. They proposed not that it should form absolutely apart of the Court of Chancery, but that there should be an appeal from it to the Court of Chancery, and that the Accountant General should be the same for both those courts.

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  But it appeared that a difference of opinion had prevailed among the Commissioners as to whether they ought or ought not to adopt the recommendations of the Real Property Commission which had conducted their inquiries some twenty years before, that the contentious business should be entirely transferred to the Court of Chancery. In favour of that course it was argued that the Court of Chancery, being the court whose province it was to construe the meaning of the language used in a great number of wills, it was extremely convenient that the same court should also be the court to decide whether the document did or did not constitute the will. Only a minority of the Commissioners, however, recommended that course; there were three dissentients, and they thought the proper course would be to make it an integral part of the Court of Chancery. In his (the Lord Chancellor's) Bill of 1854, he had taken the view of the dissentients, and proposed to make the contentious business an integral part of the business of the Court of Chancery; and though he had since receded from that view, he could not say that the dissentient minority in that Commission had not the greater weight of argument on their side. He found, however, that proposal was distasteful to the other House of Parliament and the country generally, and that it would be hopeless to connect this Court of Probate with the Court of Chancery, however desirable some might think such a connection to be. A Bill was introduced in 1855, and again in 1856, into the House of Commons by his learned Friend the Attorney General. The Bill of 1856 was not founded upon the notion of making the Court of Probate part of the Court of Chancery, but it gave to the new Court of Probate the functions of the Court of Chancery in the interpretation and construction of wills. That Bill, however, was not very cordially received in the House of Commons, and he must confess that it did not appear to him a very successful or useful mode of dealing with the subject. The Bill did not reach their Lordships' House. He in consequence thought the best course would be to introduce a Bill again into their Lordships' House, free from what appeared to be the vices of the former Bill. In the last Session of Parliament, therefore, he introduced a Bill in which his object was to dissever this new court altogether from the Court of Chancery; but he thought it would be better to make one of the Vice
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  Chancellors the Judge of the new court; and the Bill contained a provision for carrying into effect that suggestion. That proposition he made because he considered that there would be very little for the Judge of the Probate Court to do; and therefore that it would be better that the duties of that court, which would be for the most part of a formal nature, performed by a Judge from another court, than that you should establish or retain a court for the discharge of duties which might be adequately performed without such a machinery. After the Bill had been read a second time he went through it again, in order the more completely to dissever the new court from the Court of Chancery; but the dissolution taking place about that time, nothing more was done with that Bill, and with the close of the Parliament it fell, with all other Bills then before Parliament, to the ground. It therefore became his duty to re-introduce the measure, which, on his Motion, their Lordships read a first time last week, and which he should now ask them to read a second time. In the present Bill he proposed that the present Judge of the Prerogative Court should be the first Judge of the new Court of Probate. The learned Judge of that court was now paid by fees, which was the most objectionable mode of remunerating a Judge for his services, and most unbecoming for a Judge appointed by Her Majesty. He (the Lord Chancellor) therefore proposed, by the Bill now under consideration, to give the Judge of the new Court of Probate a salary of £4,000, which was about the amount he now received by fees. That was also the salary of the Judge of the Court of Admiralty: and as that Judge would receive a retiring allowance of £2,000 a year, he (the Lord Chancellor) proposed to award the Judge of the new Court of Probate a retiring allowance of the same amount. There would be in his (the Lord Chancellor's) opinion, but little work for such a Judge to do, inasmuch as disputed matters of fact would have to be determined by juries. The most satisfactory course would be to have such matters in dispute brought under the cognizance of juries in the common law courts, and such an arrangement as that would necessarily leave the duties of the Judge of the new court extremely small. Indeed, he had thought at one time that no Judge would be necessary; but having had the suggestion forced upon him, as it were, that the Judge of the Prerogative Court should be the Judge of the new

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  court, he meant to propose—but not in the present Bill—that the same Judge should also be the Judge of the new Matrimonial and Divorce Court. He proposed, also, that the course of procedure in the new court should be altogether altered. He proposed that the whole should be done by vivâ voce evidence, just as it was or might be done in the Court of Chancery. Of course, each person might state his case, if he chose to do so, by affidavit, but subject to an examination vivâ voce by any person interested. He did not feel that he should be justified in concealing from their Lordships his belief that the new court, even with the addition of the matrimonial and divorce business, would not be adequately employed. Twenty years ago a Committee of the House of Commons was appointed to inquire into this subject, and his right hon. Friend the present Judge of the Admiralty Court, Dr. Lushington, then gave it as his opinion before that Committee that the whole Admiralty, testamentary, and matrimonial business might be perfectly well discharged by one Judge. He (the Lord Chancellor) did not think that the lapse of twenty years had produced such a change in any department of that business as to render that opinion of his right hon. Friend Dr. Lushington inapplicable to the present day. On that point, however, he had thought fit to consult Dr. Lushington, and his right hon. friend had told him that, though independently of the war, which was now at an end, the business of the Admiralty Court had increased materially, he was far from satisfied that the evidence he gave twenty years ago might not be repeated now, and that the same Judge might not well discharge all the duties of Admiralty, Matrimonial, and Probate Courts. He (the Lord Chancellor), however, did not on that point rely alone on his right hon. friend Dr. Lushington, but there was one circumstance which assured him of the probable accuracy of that opinion. There was but one chamber in Doctors' Commons in which the business of all the courts there—namely, the Admiralty, the Arches, the Prerogative, and the Consistory—was transacted, and that court was found ample enough for the sittings of them all. They did not altogether, in fact, sit more or not many more days than the Court of Chancery. Taking that fact in connection with what was stated to him, as the result of the experience of so eminent a Judge as
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  Dr. Lushington, he thought he was justified in stating that the probability was that one Judge would be sufficient to discharge all the duties of the new court. He therefore proposed that on any vacancy occurring in the office of Judge of the Court of Admiralty it should be lawful for the Queen to appoint the Judge of the Probate Court to be also the Judge of the Court of Admiralty. When the office of Judge of the Admiralty Court, who was now also Judge of the Consistory Court, was abolished, it was reasonable, he thought, that the Judge of the Court of Probate should be placed upon the same footing as to salary with the Judges in Westminster Hall, and should receive £5,000 a year. He proposed then, that in the first instance the present Judge of the Prerogative Court should be the Judge of the Court of Probate, and that power should be given to Her Majesty, when the office of Judge of the Admiralty became vacant, to appoint the Judge of the Court of Probate to be Judge of the Court of Admiralty; or, on the other hand, if the office of Judge of the Court of Probate should first become vacant, to appoint the Judge of the Court of Admiralty—but not without his consent—to be Judge of the Court of Probate, and that thenceforward the two offices should be united in the same person; and that such Judge should then be placed on the same footing as regarded salary and retiring pension as the Judges at Westminster. He proposed, as he had already stated, that evidence should be taken in the new Court vivâ voce, that the rules of evidence as to all questions of fact adopted in the Common Law Courts should be acted upon in the Probate Court, and that all questions of disputed facts should be tried by a jury, unless the parties to the proceedings wished otherwise. He proposed that to this court all contentious questions of probate should be referred, whether they related to the sanity of testators, to the revocation of wills, or to their due execution. There might, however, be cases where the property was of very small value, which might reasonably be referred to the decision of the County Court Judges. He would recommend that, where property was sworn under £200 personalty, and £300 realty, the Judges of County Courts should be entitled to try questions as to whether the testators were of sane mind, and whether the had been duly executed; and that the finding of such Judges should

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  be conclusive. They had still to consider, however, what course should be taken with regard to probates of wills of persons in the country, which, though not relating to very small amounts, did not deal with considerable property. At present, if all the property of a person was in a particular diocese—for instance, that of Lincoln or Norwich—it was only necessary to prove the will in that diocese whatever might be the amount of the testator's property; but if he held property to the value of £5 out of that particular diocese the probate was altogether void. That anomaly he (the Lord Chancellor) proposed to remedy, and to provide a means of enabling persons to prove wills which did not involve very large amounts in the various dioceses. With this object he proposed the establishment of districts. The last Commission recommended the formation of thirty districts; but when the subject was considered in 1856, persons who were acquainted with the requirements of the various localities recommended that thirty-six or thirty-seven districts should be established; and upon that suggestion he had acted, taking care that the districts should, as far as was practicable, coincide with the existing diocesan districts. Of course, for this purpose the registrars would be the officers of the Court of Probate, and not of the Ecclesiastical Courts. He proposed, as far as possible, to retain the present registrars. He did not propose, however, that these district registrars should possess any contentious jurisdiction whatever, for it was impossible that they could exercise such jurisdiction satisfactorily. They were not attended by any bar, and, although many of them might be gentlemen who were competent to decide contested legal questions, that was not the general character of such officers. He proposed, therefore, that the registrars should have power to grant probate only in cases where there was no contest, and also only when it was sworn that the testators died within the limits of the districts, and that their property was below the value of £1,500. Under the existing system, as he had said, if a will was proved in a particular diocese, and the testator possessed property out of that diocese, such probate was absolutely void. If there was any property in a particular diocese, and, nevertheless, the will was proved in the Prerogative Court, such will was not absolutely void, but was voidable. This seemed to him a very anomalous
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  state of things, and he therefore proposed that any persons who chose might prove wills in the London court, whether the testators died in the country or not. He also proposed that every month there should be remitted to the London court from each of the provincial districts a list of all the wills proved in such districts, together with a copy of each will, which should be kept under proper direction in the Probate Court of London, so that any person might at any time see a copy of the original will wherever it had been proved. It was most important, with reference to the transfer of property, that persons should be enabled to ascertain to what charges it was liable, and if a person died who possessed property which was dispersed over different districts, it might be necessary to institute a search in numerous places—a proceeding attended with considerable inconvenience and expense. He further proposed, in compliance with what he found to be a very general feeling, that the original wills should be left in the respective districts, and that copies only should be transmitted to London. He did not propose, however, that copies of the wills proved in London should be sent to the provincial districts; but he would provide that at certain stated periods lists of all the wills proved in London, with the names of the testators, the executors, and such other particulars as experience might suggest, should be printed, with proper indices, and transmitted to all the district registrars, and to certain places where they might be conveniently consulted. The consequence would be that in London persons might see copies of all the wills which had been proved anywhere in the country, and in the districts they could see all the wills proved in each district, and lists of those which had been proved elsewhere. This arrangement would, he thought, afford as great facilities for consulting wills as the public could require. The Bill would contain another provision which, although not precisely germane to the question of proving wills, would, he believed, be found of great advantage. It frequently happened that, upon a person's death, his surviving relatives did not know where to look for his will. It might not be discovered among his papers; he might have changed his solicitor; and much difficulty often resulted from this uncertainty. He (the Lord Chancellor) proposed that at the Probate Office in London there should be a

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  department in which all persons who thought fit to do so might deposit their wills, so that at their deaths their surviving relatives might have no difficulty in knowing where to find them. He would not refer to some other details of the measure, which might be more conveniently considered in Committee, but he might observe that a complaint had been made that in the first measure he had brought forward on this subject he had proposed that probate should be extended to real as well as to personal estates. It was true that, in conformity with the recommendation of the Commissioners, he had made such a proposal in the Bill of 1854, but not in the Bill of last Session. That proposal was discussed most ably and at very great length in the Select Committee to which the measure was referred by their Lordships. He then stated—what he did not hesitate now to repeat—that he was satisfied the recommendation of the Commissioners would be rather injurious than beneficial. It might be said, "If you have probate as to personal estate, why not require probate for real estate?" but there were substantial—not technical—differences between real and personal estate. With regard to personal estate, it might be distributed all over the world, and there must be some one to represent the testator in person—some one who was entitled to sue for and recover all that the testator, had he been alive, might have sued for and recovered. Personal property was, so to speak, infinite; it was dispersed all over the world; and the inconvenience would be very great if there was not a person to stand in the shoes of the deceased. The same necessity, however, did not exist with regard to real estate. A great millionaire might have half-a-dozen real estates, but that was an exceptional case, few persons, even among the wealthy classes, having more than one or two real estates; and there was no difficulty in the persons to whom real estates devolved entering on the possession without the instrumentality of any third person at all. It was true that by recent legislation real estate, after the exhaustion of the personal estate, was made subject to the payment of debts; but that was not an ordinary condition of real estates; and to impose on the devisee of a real estate the necessity of having it always proved, for the sake of an imaginary symmetry, would, he believed, be imposing on real property an unnecessary burden.
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  Therefore the present measure, like the previous one, did not propose any enactment of that sort. There had been cases, however, though not certainly of frequent occurrence, which had presented an anomaly revolting to the minds of those who looked at this subject theoretically. Supposing the Court which had to decide on the validity of wills decided that a will, disposing of real and personal estate, was good because the testator was sane, the heir-at-law might still dispute that the testator was sane, and bring an ejectment to recover the real estate. That was a course which he had a perfect right to pursue, and, in point of fact, there were cases in which this anomaly had occurred, that the very same instrument had been, in a suit respecting the personal estate, decided to be the instrument of a sane person, and, in a suit respecting the real estate, had been decided to be the instrument of an insane person. It appeared to him that, without making probate necessary as a preliminary for succession to real estate, this evil might be met by a provision he proposed in the Bill of last Session, and which he renewed in the present Bill. He proposed, whenever there was a contest as to the validity of a will, on the ground that the testator was insane, or that the will had not been executed with due formality, that the Court should cite not only those who were interested in contesting the validity of the will as to personal estate, but likewise those interested in the real estate, so that that which was substantially the same question as to both should be decided once for all. He was aware that in making this provision he should encounter the opposition of a noble and learned Lord not now present (Lord St. Leonards), who thought that the evil of connecting probate with real estate would more than counterbalance the advantage. On that point it was for their Lordships to decide. The Bill was so framed that the provision was not essential to it; but he could not but think that it would be a blot on the legislation of the country if they did not remove an anomaly which was so easily remedied. There was another minor provision which he was desirous of explaining to their Lordships. At present, whenever it was necessary to prove a devise in the Common Law Courts or the Chancery Courts, the original will must be produced. This was often an expensive proceeding, and was frequently only a matter of form. He

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  proposed that whenever a lawsuit was going on in which it was necessary to give evidence of the devise of the real estate, notice might be given by one party to the other side that he meant to rely on the probate, and that that should be primâ facie evidence of the devise, unless notice was given by the other side that the original will must be produced. In such case it should be in the discretion of the Judge to decide which party should bear the costs of the production of the original will. He thought that this would be a useful modification of the present law. He also proposed in the present Bill an alteration in the matter of appeal. He proposed in the Bill of last Session that the appeal from the decisions of the Court of Probate should be to the Lords Justices of Appeal, and thence to the House of Lords, or per saltum to their Lordships' House; but in deference to the feeling that that would prove a costly proceeding, he now proposed that the appeal should be to the Judicial Committee of the Privy Council. He confessed he thought the other course the best; but he made the alteration, as it appeared that no proposition connected in word or name with the Court of Chancery would have any chance of success. Another question was that of compensation. As several persons would necessarily be deprived of office under the present Bill, he proposed that they should be compensated, unless they should be appointed to corresponding offices under the new arrangement. All these reforms were to a certain extent costly as to compensation, but he believed that, on the whole, the granting of compensation was just and expedient, for there was a strong feeling against making reforms at the expense of individuals. Their Lordships were aware that about twenty years ago an Act was passed declaring that if any person obtained office in any ecclesiastical court, with the exception of the Prerogative Court, after the passing of that Act, he should not be entitled to compensation. That Act was renewed from year to year, and in 1847 it was renewed without making any exception of the Prerogative Court. What, then, was to be done in reference to those numerous persons who had accepted office since the passing of those Acts? He thought that it would be very unfair to treat those persons as having no right to any compensation. It was the practice of the Legislature, when it deprived a person of an office
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  he held for life, to give him, by way of compensation, the full amount of his emolument; and, when the person who was removed from an office had held it on the tenure of being removable at pleasure, it was the practice to grant him a reasonable compensation in respect to the duties he had performed. He, therefore, proposed, notwithstanding those Acts of Parliament, that compensation should be given to these persons on the footing of persons who held office removable at pleasure. In dealing with persons in this situation, who had devoted themselves for many years to the discharge of their duties, to remove them without some compensation would be extremely hard, and he believed such a course would not be in conformity with the practice of Parliament or the feelings of the country, and therefore he proposed to give them compensation on the principle he had stated. He proposed that every officer should be paid a salary except the district registrars. It was impossible to fix a salary for them, because the districts would differ so immensely, and what would be the services to be rendered could not be told beforehand. He proposed that their remuneration should continue to be made, as it had heretofore been without complaint, by fees. With respect to fees to be taken by the officers of the court and by officers of County Courts a table was to be made out by the Judge of the Court, assisted by the Lord Chancellor and a Judge of the Common Law Courts, calculated to meet the expenses of the Act. Though the Government were willing that the Consolidated Fund should guarantee the payment of salaries and compensations, they did not think that any part of the expenses connected with the probate of wills should be thrown on the public. The fees, therefore, would be varied from time to time, so as to meet the whole expenses of the court. There had often been a discussion in that House as to the manner in which the privileged practitioners in the Prerogative Court should be dealt with—he alluded to the proctors. It was very difficult to admit that the members of an entire profession could have a right to compensation in consequence of an improvement in the law, and he did not believe that the public would tolerate such a thing as the compensation during life of a whole profession. He thought, therefore, that the most rational course to adopt was to retain those practitioners, without

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  letting in other practitioners, unless it should be found necessary, providing at the same time against, exorbitant charges by fixing their fees by authority and by subjecting their costs to taxation, as in the courts of common law. There was no reason why the proctors should not receive adequate and handsome remuneration for the services which they performed, but he thought it desirable that their fees should be regulated in the manner that he had pointed out. In the Bill of 1854 he proposed that the proctors should be continued for a limited number of years; but he now saw no necessity for letting in any other class of practitioners, and he proposed, in conformity with the recommendation of the Commissioners and with two petitions which had been presented by Lord Overstone—one from upwards of a hundred of the first merchants in London, and another from an equal number of the most respectable firms of solicitors—to continue the proctors as at present. Having thus briefly stated the outline of the measure, and expressed his readiness to discuss the details in Committee, the noble and learned Lord concluded by moving that the Bill be now read 2a.
  THE BISHOP OF BANGORwas understood to state that all the objections which he had entertained against the Bill when it was first introduced remained in full force, and to complain that, contrary to the recommendation of the Commissioners, a clause had been smuggled into it for transferring the business of the diocesan courts to the provincial courts. He believed that the measure was calculated to produce a great deal of expense and unhappiness throughout the country, and thought that, if existing courts were improved, and were properly conducted, there would be no necessity for such a measure.
  THE BISHOP OF LONDONsaid, that it was not the intention of his right rev. Friends to place any difficulty in the way of the passing of this Bill, and he trusted that they would always be found ready to concur in any measure which was likely to conduce to the public good. There was one point, however, which in their opinion deserved to be considered in Committee, and it was this—there were certain very important functions performed by the officers of the existing courts—the registrars and the chancellors—for whom, as the Bill at present stood, no remuneration would be made; and, as this was a matter affecting the public service, it was thought that their
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  Lordships would not wish that officers performing important public duties should be unremunerated. Abundant provisions were made in the Bill for secretaries and others to be appointed by the learned Judges who were to preside, but there were certain duties intimately connected with the episcopal office, and with the welfare of the Church, which would hereafter have no remuneration. It was the desire of his right rev. Brethren that this matter should be considered in Committee, in order that the persons who still continued to perform those important public functions should, if possible, be so remunerated that the Bishops might retain in those offices persons who were fully competent to discharge the duties, and who would obtain the confidence of the country.
  LORD CAMPBELLsaid, that he should give his cordial support to the second reading of the Bill. Last Session objections were taken to several parts of the scheme of his noble and learned Friend, and he had himself been desperately afraid that a disputed probate would involve individuals in an interminable Chancery suit. He rejoiced, however, to find that his noble and learned Friend now avoided the very appearance of approaching the Court of Chancery, and this, he thought, was a most wise resolution. It seemed to him that the Court of Probate, according to this Bill, would be established in a most satisfactory manner, and that the country might now at last hope to see the objects which had so long been in view well accomplished. There were details in the Bill which would be better discussed in Committee; and a good many of the proposals regarding procedure would probably require consideration. But there was one point which, as he conceived, touched the dignity of his brother Judges in the Common Law Courts, and to which he could not help alluding. It was proposed that this new Judge of the Court of Probate, for whom he had a most sincere respect, should take precedence immediately after the Vice Chancellor, and therefore before all the puisne Judges of the Common Law Courts. Now he thought this ought not to be. The new Judge was ultimately to receive £5,000, the same salary as the puisne Judges, and he considered it would be no disparagement to him if he took precedence among the puisne Judges according to seniority.
  Motion agreed to; Bill read 2° accordingly, and committed to a Committee of the Whole House on Friday next.

  POSTAL COMMUNICATION BETWEEN HOLYHEAD AND DUBLIN—QUESTION.
  VISCOUNT DUNGANNONasked the noble Duke the Postmaster General whether any final arrangements had been made by the Government with the Dublin Steam Packet Company, relative to the postal and passenger communication between Holy-head and Kingstown; what was the nature of such arrangements; and how soon they were likely to be carried into effect? He thought it essential that the steamers should be of larger size than those at present employed.
  THE DUKE OF ARGYLLsaid, it was natural that noble Lords connected with Ireland should take a deep interest in this subject. He was happy to inform the House that another and an amended proposal had been made by the Government to the Company about a week ago, with a view of securing a more rapid communication between London and Dublin. No answer had yet been returned by the Company, and he, therefore, thought it inexpedient to enter into details of the proposed arrangement. Suffice it to say, the Government was anxious to do all in its power to remedy the inconvenience complained of; but on some of those points the greatest difficulty had arisen. He must point out to the House that it undoubtedly tended to encourage companies in making undue demands when they heard it stated by Members of both Houses of Parliament that considerations of economy were of no moment on questions of this kind. They naturally expected that the pressure of the Irish Members would secure them a larger amount of public money than was due to them, and this much increased the difficulties of the Government in dealing with them.
  THE MARQUESS OF CLANRICARDEsaid, he did not object to economy, but he looked on the subject in question as so important, that economy was scarcely a consideration. It was not a mere question of carrying the mails, but of facilitating intercourse between the two countries. He trusted, therefore, that his noble Friend would not take the Parliamentary view of the subject, but the more extended national one. Moreover, the matter was scarcely one of economy, because when the Government did it some ten years since without the aid of any company, it was done infinitely better. The average passage of the Llewellyn on the Holyhead station in 418 trips was four hours and eleven minutes, and the Banshee four
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  hours and seven minutes, for that which now took four hours and a half. What was wanted was, that not only should letters go quicker, but that there should be plentiful personal accommodation for the passenger public.
  EARL FITZWILLIAMbore testimony to the inconvenience of the boats now employed, as regarded the hours of starting.
  VISCOUNT DUNGANNONsaid a few words in reply. Speedy communication between London and Dublin was all-important, and the public had a right to expect it.
  THE MARQUESS OF CLANRICARDEcomplained of the inconvenient manner in which passengers were landed on the quay at Kingstown. This was done nearly in the dark, and amidst the utmost confusion. This might be remedied by a very little extra expense.
  THE DUKE OF ARGYLLsaid, this rested entirely with the companies; but it was part of the proposed arrangements that jetties should be provided. The mail packets, of necessity, left and arrived at a certain hour, without reference to the convenience of passengers, which was, however, considered as far as possible. It was probable that the whole correspondence would soon be laid before the House.
  House adjourned at Seven o'clock, till To-morrow, half-past Ten o'clock.