Lords Sitting of 22 April 1861

MINUTES.
PUBLIC BILLS—1a Queen's Prison, &
2a Wills of Personalty by British Subjects; Post Office Savings Banks.
3a Lunacy Regulation.

WILLS OF PERSONALTY BY BRITISH SUBJECTS BILL.

  SECOND READING.
  LORD KINGSDOWNsaid, my Lords, the subject which I have undertaken to bring before you is so important, and at the same time so embarrassed with difficulties, that I must throw myself upon your indulgence if I am unable to explain it either as clearly or as briefly as I could wish. I will point out first the evils which appear to me to arise from the existing law, and then the remedies which the Bill to which I am requesting your Lordships' assent proposes to apply to them.
  The Bill is confined entirely to personal estate. Your Lordships are aware that in England, and I believe in most countries which have adopted and maintained the feudal laws, a great distinction has always been made between what we term real and personal estate, and what on the Continent is generally described as moveable and immoveable property—a distinction not only with respect to inheritance, but also with respect to transmission whether by conveyance, inter vivos, or by testamentary disposition. As long ago as the reign of Charles II. an Act was passed requiring certain forms to be observed in the execution of wills of real estate. This Act is usually called the Statute of Frauds, and has often been said to have occasioned more frauds than it has prevented. With regard to personal estate no forms were required till the year 1837; it was sufficient that a testator had declared in writing in what manner he desired his personal property to be disposed of at his death. In 1837 this distinction was abolished. It was said to be absurd that an instrument insufficient to pass an acre of freehold land should be sufficient to pass a thousand or ten thousand acres of leasehold adjoining it—that however the existing law might have been suited to times when the personal estate of a man of the highest rank was usually of small amount, and consisted of things which were really mobilia —things which could be carried about with him—it was

  861
  little suited to the present times when a testator's personal estate often exceeds his real in value, and includes not only leaseholds, hut money in the public funds, canal, and railway shares, and other things of a like description, which, although by English law treated as mobilia have in truth a local character, and are connected with and inseparable from the county to which they belong. It was provided, therefore, by the Act of 1837, that the same formalities should he required in order to give effect to wills, whether of real or personal property, and that in both the signature of the testator and its attestation by two witnesses should be required. There can, I think, be no doubt that the intention of the Legislature in passing this Act was to establish a system of uniformity—to provide that the same will as to all property subject to English jurisdiction, whether real or personal, should be good or bad; that the absurdity of its being good as to part and bad as to part should be abolished. Unfortunately, by the rules adopted by English courts of justice this object has been entirely defeated. The mischief of defeating many wills for defect of form has been incurred, but the advantage of uniformity has not been secured. A will may still be good as to one species of property and bad as to another. With respect to real estate in England, a will, if it complies with the necessary forms, and the testator does not formally revoke it, remains good, wherever he may die, and whatever may be his domicile at the time of his death. But as to personal estate it is otherwise. The validity of a will of personal estate depends on the question whether it is valid according to the forms required by the law of the country where the person who made it was domiciled at the time of his death. No matter where it was made—no matter that it was perfectly good when it was made—no matter that the testator never had the smallest intention to revoke or to alter it—still if the law holds him to have acquired at his death a foreign domicile, his will is good for nothing, unless it conforms to the laws of that foreign country. Now the inconveniences of this are enormous. The evil proposed to be remedied by the Act of 1837 is at once introduced. The will is good as to real estate in England—bad as to personal estate; freeholds pass to the devisee; leaseholds go to the next of kin. In this state of the law no man living abroad knows how to make his
  862
  will. If he makes it in the English form it is probably bad as to his personal estate—if he makes it in the foreign form it is bad as to his realty. No prudence can enable an Englishman to guard against the chance of his will being set aside, as it affects his personal property if he dies abroad. If he is leaving the country, uncertain whether he may ever return, or may settle abroad, he probably desires to settle his affairs before be goes; he send3 for his solicitor, and makes by will such a disposition of his property as he wishes to take effect at his death; he leaves his will in England to guard against accidents, secure that whatever happens to him the provision which he has made for his family will take effect at his death. He is unhappily quite mistaken in this expectation. If he be held by Courts of justice to have acquired before his death a foreign domicile, whatever the meaning of that mystic term may be, he is also held as to his personal estate to have revoked his will. What is the effect of this rule? A man who goes abroad often cannot tell where he may be settled at the time of his death, and cannot know, therefore, according to what law his will is to be made. He leaves his own country, perhaps for the benefit of his own health or that of some member of his family. He finds it necessary to try different climates; he may move from France to Naples, from Naples to Madeira, or Malta. All these countries may have different testamentary laws. Is he to make a new will at each change of residence? When it is remembered how many Englishmen in the present day live and die abroad, your Lordships will easily see how often the evils arising from this rule are likely to occur. But it is not in cases of foreign domicile only, nor even principally, that the mischief occurs. The same question arises continually with the same inconvenience between a Scotch and English domicile. Scotland has maintained, I think wisely, the law which was till lately that of England with respect to wills of personalty. It exacts, I believe, no particular forms—certainly a holograph will—one wholly written and signed by the testator—is sufficient in Scotland, as in all reason it ought to be everywhere. Now, our countrymen on the other side of the Tweed, with all their patriotic attachment to Scotland, are not indisposed to seek their fortunes elsewhere—in England it may be, or in the British dominions in India, where, for testamentary purposes,

  863
  the English law prevails. A Scotchman makes his will according to the law of Scotland; if he dies in India, or in England, or anywhere out of Scotland, a question probably arises whether he has not acquired an English or a foreign domicile; and if that question is decided in the affirmative—if his domicile at his death be English, certainly—and if in any other country, probably—his will is good for nothing.
  Now if your Lordships will for a moment consider the effect of setting aside an honest will—the misery to individuals, in many cases the utter ruin of whole families, which result from it—you will hardly, I think, maintain a rule of law which produces such consequences, unless there be some imperative necessity for it. But whether genuine wills are defeated or not by the result of the inquiry, the inquiry itself is an enormous evil. It is quite useless for any purpose of justice, and the uncertainty and expense which attend it are enormous. When once the testamentary power is admitted, all that can be really material to know is whether the instrument propounded as containing the last wishes of the testator is a genuine instrument, and whether the testator has ever revoked it. If it is genuine the forms are in themselves worthless. How can the genuineness of the instrument in the least degree depend upon the place where the testator happens to die domiciled? Why is an intention to be presumed to revoke a will by a death abroad, when the testator may have contemplated dying abroad, and when, perhaps, his will was made for the very purpose of providing for that contingency? But observe what the inquiries are which in such a case the rule requires:—First, you are to inquire where, in point of fact, the testator was domiciled at his death. Secondly, what is the testamentary law of such country—both questions in many cases of extreme doubt and difficulty. I do not know whether your Lordships are aware of what constitutes domicile by the law of England. I sincerely hope you are, for if you are not, I am sure it is quite out of my power to inform you. I have argued a good many such questions at the bar; I have joined in the decision of several at the Judicial Committee; but as to any definition of the meaning of the expression what is sufficient, or what is not sufficient to establish a change of domicile for the purpose of succession, I am quite at a loss
  864
  to say. It is constituted as the law expresses it animo et facto. You must inquire not only into all that a man has ever said, written, or done, but into all that he intended to do; where he was born; who were his parents; where he was brought up; when he quitted his own country, and with what view, and for what purpose; how long he remained abroad; where was the bulk of his property; how often he changed his residence; where he resided at his death; where he contemplated being buried;—and a thousand other circumstances; and, then, setting the indicia of an intention to abandon his domicile of origin against the indicia of an intention to retain it, the Court is to strike the balance, and decide whether the original domicile has been changed, and in what country a new one has been acquired. So difficult is this question that the best lawyers are unable to say where is their domicile, or by what law the testamentary disposition of their personal estate is to be regulated. We have all heard my noble and learned Friend on the Woolsack declare his doubt whether he is domiciled in England or in Scotland; indeed, I think he added, or in Ireland. But, my Lords, if my noble Friend at the head of the law is unable to decide such a question in his own case, in what position are unlearned men placed who are expected, in making their wills, not only to know their actual domicile, but to foresee where they they may happen to be domiciled at the time of their death. My Lords, the ignorance to which I plead guilty on the subject of domicile is shared by the highest living authority in such matters. In a case of Maltass v. Maltass, decided by Dr. Lushington, that great Judge thus expresses him self—
  "Even at this day, although so many powerful minds have been applied to the subject, there is no universally agreed definition of the word domicile—no agreed enumeration of the incidents which constitute domicile. This is expressed in the following remarkable language of Histius, 'Verum in iis definiendis mirum est quam sudent doctores.' Indeed, I think there are no less than fourteen or fifteen different definitions of this word. The gradations from residence to domicile consist both of circumstances and intention. Nice distinctions have and must prevail, such as cannot be defined beforehand."
  Such being the nature of an inquiry into the question of domicile, your Lordships may imagine that the expenses of conducting it must often be enormous. In a case of Lord v. Colvin, now pending in

  865
  the Court of Chancery, it has been necessary to ascertain the domicile at the time of his death of a Scotchman who went to India, and there acquired a large property. I have been assured by one off the counsel in the cause that the costs of the inquiry, including those of all the parties, who are very numerous, have been not less than £30,000.
  But when you have determined the domicile, if it is found to be in a foreign country, you have another question not loss difficult behind. You have to ascertain what is the law of that foreign country, and what judgment it pronounces on the instrument offered as a will. This law is a fact to be ascertained by the examination of witnesses, by the opinions of advocates and other experts—gentlemen not to be consulted without the payment of heavy fees, with the additional expense, perhaps, of bringing them over to this country. When they are examined their opinions may differ. An English Judge, ignorant it may be of their language—almost necessarily ignorant of the precise force and meaning of their legal phraseology—has to decide between them, and possibly thinks it fit to examine for himself decisions and decrees of foreign Courts, which it is hardly possible that he should very clearly understand. In addition to all this, it is not unlikely that the law of domicile itself is understood in the foreign country in a sense different from that which prevails in England. Is it possible that justice should be done under such a system, or that all the money expended in these inquiries should lead to any satisfactory result? A very memorable and very melancholy instance to the contrary occurred a few years ago in a case of Bremer v. Freeman, which excited much attention both in this country and abroad. A lady of the name of Calcraft, the daughter of an Indian officer, having an English domicile, went abroad. She went to France; afterwards to Italy, where she married or formed a connection with a gentleman of the name of Allegri, which name she adopted. She afterwards returned to France, and took lodgings in Paris. The bulk of her property, both real and personal, was in England; and in 1842 she gave instructions for her will to a solicitor in England, who prepared it of course in the English form, and in that form it was executed by Madame Allegri in Paris. It seems probable that if she had died soon after making her will, it would have been held that she had not lost
  866
  her English domicile, and that her will was good; but she lived until 1853, remaining in Paris till she died. By her will, amongst other dispositions, she had bequeathed personal estate to the amount of, I believe, above £10,000 to a young gentleman of the name of Freeman. On her death her will was propounded for probate in the Ecclesiastical Court; but it was disputed by the next of kin as regarded personal estate, on the ground that the testatrix at the time of her death was domiciled in France; that the validity of the will must be governed by the French law, and that the will was not executed in the form which the French law required. To this it was answered that in fact the testatrix never had, even according to English notions, abandoned her domicile of origin, and acquired a domicile in France; but that at all events she had not acquired a domicile in Franco according to French law, nor the right of disposing of her property by will according to that law; for that the authorization of the French Government was necessary for that purpose, and that such authorization had never been obtained, and that the will in its English form would by the French tribunals be held to be good. On these various issues the parties went to proof. Evidence was given on one side to show that the lady had settled in France and altogether abandoned her country, and evidence to show the contrary was given on the other; and witnesses were examined to prove the law of Fiance. The Judge of the Prerogative Court admitted the will as good, but his judgment was reversed on appeal to the Judicial Committee, and the will as to personalty was held to be invalid. The evidence given by the French lawyers shows in what insuperable difficulties the decision of questions of this sort is involved. On the part of Mr. Freeman, five gentlemen practising in the French courts were examined: on the part of Mr. Bremer, three. Five lawyers held that Madame Allegri never acquired a French domicile according to the law of France. Three thought that she had acquired such domicile, but admitted the point to be doubtful. Three held that by the law of France a will to be good must be executed according to the law of the place where it was made; in other words, according to the lex loci. Three held that it might be executed either according to the lex loci, or the domicile of origin of the testatrix. All held that if made according to the lex loci it would be

  867
  good, and not one adopted the English rule that its validity would depend on the domicile of the testatrix at her death. In this confusion and conflict of testimony the Judges seem to have thought themselves justified in examining for themselves the French law; and a most able and elaborate judgment was given, setting aside the will on the ground that the testatrix at her death had according to the rules of English law acquired a French domicile, and that by the rules of the same law her will must, therefore, be governed by the forms required to be observed in France. The result was that a genuine will, containing beyond all doubt the intentions of the testatrix at her death was defeated. Mr. Freeman lost his legacy—his costs amounted to £2,700; the costs on the other side to £2,876; the whole litigation being utterly beside the only question really important to justice, namely, whether the instrument propounded for Probate contained a true account of what the testatrix intended to be done with her property at her death. Now, I desire not to be understood as intimating any opinion on the decision in Bremer v. Freeman. It carries with it all the weight that can belong to the authority of the very ablest Judges. The judgment was pronounced by my noble and learned Friend opposite (Lord Wensleydale) whose name will go down to the latest posterity in the law, not more by a very memorable determination of your Lordships of which he was the subject, than by many admirable judgments of which he has been the author. It was concurred in by Dr. Lushington, of whom I have already spoken; by Sir William Maule, since dead; and by one still living, who is the impersonation of every moral and intellectual quality which goes to constitute a perfect Judge, though physical infirmities have for some time deprived the country of his services—I mean Sir John Patteson. I do not complain of the decision as contrary to English law; but what I do complain of is that such should be the law. I maintain that it is inconsistent with reason and justice, and that as long as it continues it is likely to produce the same mischief as it produced in Bremer v. Freeman.
  Another great evil of the existing rule is this. It defeats honest wills for non-compliance with English forms, when the testator has no means of complying with them, because he cannot ascertain what they are. Take an ordinary case. An Englishman
  868
  travelling abroad is taken ill; he sends for the doctor, and as a consequence, perhaps, has very soon to send for a lawyer to make his will. The lawyer knows what forms are required by his own country, and he observes them; but be knows nothing of the forms required by English law. For this defect, the English Courts refuse to acknowledge the will. A remarkable instance of this occurred in a codicil made by the late Marquess of Hertford. During one of his visits abroad, while he was at Milan, he made a codicil bequeathing a large amount of stock in some of the American funds to Mr. Croker. The codicil was perfectly good according to the Austrian law prevailing at Milan. If it had not been for the Act of 1837 it would have been perfectly good in England; but though the codicil was made out of England, it was held that the English statute applied, and that as the Marquess at his death was domiciled in England, the English forms must be observed. The codicil was found to be invalid, and Mr. Croker lost his legacy.
  To remedy these various inconveniences I propose to enact that as regards the formalities of its execution it shall be sufficient, if a will of personal estate complies with what is required either by the laws of the country where it is made or with those of the domicile of origin of the testator; and that no will good when it is made shall be revoked or altered merely by a subsequent change of domicile of the person who made it. It is said that to introduce such provisions would be to interfere with the principles of international law. Now, I have as much respect for international law as most people, and have as little disposition to infringe any of its rules—especially at a time when in its higher and nobler object of regulating the intercourse between nations it must, I fear, be considered as extinguished or at best as in abeyance. But I am sure that your Lordships—those at least who will take the trouble of investigating the subject—will be satisfied that the effect of what I propose is not to alter the law of nations, but to restore it in England as it once existed there, and as it still exists in every other civilized country in Europe. England, no doubt, has departed from it, and the United States of America have followed her example; but till a comparatively recent period the rule which I propose to reestablish was the law of England, and it only ceased to be so in consequence of a

  869
  decision in a case of Stanley v. Bernes which occurred, I think, about the year 1830. In that case an Irishman beyond all question domiciled in Portugal under an authorization giving him all civil rights, made a will in the Portuguese form disposing of his property in Portugal; and another, or a codicil, in the English form disposing of his property in England and Ireland. The English will was disputed on the ground of the Portuguese domicile, but it was admitted to probate by Sir John Nicholl, a very able Judge, after careful consideration and in a well-reasoned judgment, in which he observed that up to that time no such objection had ever been made, that many such wills had been established, and that a British subject had not the power exuere patriam or to give up the right of disposing of English property by such a will as the forms of English law required. This decision was unhappily reversed by the then court of appeal in such matters—the Court of Delegates—the very worst tribunal, probably, that the wit of man ever devised for the purpose of administering justice. It consisted of two or three common law Judges, who at that time were not much accustomed to the study of the civil or canon law, and of a certain number of advocates in Doctors' Commons not engaged in the cause. Now, as the ablest advocates were pretty sure to be engaged in the cause the Delegates were usually, of course, of less reputation; and by a tribunal thus constituted the judgments of such men as Sir John Nicholl or Lord Stowell were to be reversed. What were the reasons of the Court of Appeal in Stanley v. Bernes I do not know; there is no record to be found of them, and I am told that it was not the habit of the Court of Delegates to assign any reasons for their decisions. I remember, soon after that case was decided, talking of it with one whose early death was one of the greatest losses that the law of this country ever sustained—Sir William Follett—and he agreed with me in lamenting the determination though he was one of the counsel on the winning side. But whatever it decided it could not decide against the principle that a will of personal estate, which is good as to form according to the law of the country where it is made cannot anywhere be rejected for want of form—that the rule of lex loci regit actum extends to testamentary as well as to other instruments. The law of England admits it in other cases—Why does it re-
  870
  pudiate its application to wills? It is observed in contracts—in the most important of all contracts the contract of marriage—why is it to be thus capriciously rejected in one particular instance? The ground of the rule exists as much in regard to wills as to anything else—namely, that a man may easily obtain advice as to the law of a country where he happens to be, hut cannot probably obtain advice as to the law of another country. The case of Stanley v. Bernes could not decide anything against this rule, for the facts of the case did not involve any such question. The rule is of universal application; it is adopted by every country in Europe except England. On this point all the advocates who were examined in Bremer v. Freeman agreed, though differing in everything else; yet so strongly is the opposite opinion rooted here that in the judgment of the Judicial Committee it is considered as detracting from the value of the opinion of the French lawyers in other matters, that they should entertain notions so inconsistent with the law as laid down in Stanley v. Bernes. That this is the law of France can admit of no doubt; it is expressly provided for by the Code Civil. Article 999 of the 1st Book expressly declares that a Frenchman who shall happen to be abroad may make his testamentary dispositions either by holograph writing signed by him, or according to the forms in use in the country in which the instrument shall be made. In the time of the Duchess of Kingston, whose case is referred to in Bremer v. Freeman, the law of France on the subject was unsettled. There could be no doubt of her domicile, that it was French. She had been convicted in England of bigamy in 1776; immediately afterwards she went to France, and in 1777 obtained letters of authorization to acquire property and dispose of it by will. In 1786 she made a will in the English form, disposing of real and personal estate both in France and England. She died in France and Mons. Target the French Attorney General gave an opinion which has acquired much celebrity, in which he pronounced in favour of the will, both as to French and English property, on the ground that the subject of any country, when abroad, may make a will according to the forms required by the law of that country, which will be good everywhere. It never seems to have occurred to him that the domicile at the death was material. The question whether the lex loci regit actum applied

  871
  to wills, he considered as at that time unsettled in the law of France. It is now settled in the manner which I have already stated.
  I cannot, of course, expect your Lordships to listen to citations from the jurists to prove the proposition that the general rule acknowledged in Europe is that a testator abroad has the option of making his will, either according to the forms which prevail in the place where it is made, or according to the forms of his domicile of origin; according either to the lex loci or the lex patriae. But I will refer your Lordships to treatises of learned men in which the authorities are collected and discussed, and in which the authors of those treatises have come to the conclusion which I have represented to be the law. Mr. Burge, whose Commentaries are the text-book of English lawyers, and whose work was published about thirty years ago, after citing a profusion of authorities observes—
  "In the jurisprudence of Spain, Holland, France, and the greater number of the States of Europe, if the testament be made with the forms prescribed by the law of the place where it was executed, it will be valid, and will effectually disdispose of property situated in another country, where the law prescribes different forms."
  The learned author here speaks of property generally, without distinction, both moveable and immoveable. Again, in commenting on the Duchess of Kingston's case, and the opinion of M. Target, to which I have already referred your Lordships, he says—
  "This opinion proceeds on a principle which is admitted by jurists, that although a will made with the solemnities of the lex loci actus may be valid, yet if it was made with the solemnities of the lex loci rei sitce in respect of immovables and the locus domicilii in respect of moveable property, it would also be valid."
  This observation, it is clear from what I have already stated of the circumstances of the Duchess of Kingston case, applies to domicile of origin, and not to domicile at the death. Dr. Phillimore, who has published his valuable work on international law much more recently, and has examined, I believe, the works of all the eminent writers on the subject up to the present, time, including some distinguished foreign jurists still living, thus sums up the result of his inquiries—
  "As to the form of the instrument—the jurisprudence of the Continent wisely, justly, and philosophically, allows an option to the testator to adopt either the form required by the lex loci actus
  872
  or the form required by the lex domicilii. The adoption of either form is as the jurists say, facultative, not imperative, though the general maxim is locus regit actum. England, and the North American 'United Status unwisely, arbitrarily, and unphilosophically compel the testator to adopt the form prescribed by the lex domicilii."
  But, my Lords, I can refer your Lordships to a yet stronger authority, that of all the Judges in Scotland as to what the law of that country is, and as to what they consider to be the general rule of international law. A case has just been decided in the Court of Session of Purvis' Trustees v. Purvis' Executors, on the effect of a will made in Sumatra by a Scotchman upon Scotch personal estate, the will being valid according to the law of Sumatra; and the Judges have been unanimous in favour of the will on the principle of locus regit actum. The question was considered so important that the division of the Court of Session before which the question was brought for decision, consulted the other Judges. The consulted Judges gave a most able and valuable opinion in what they say—
  "We hold it to be the settled Jaw of Scotland that the Scotch statutes in question are not imperative as to writings of this nature executed in a foreign country, but that such writings are receivable here as valid or authentic expressions of testamentary will, if executed according to the formalities which would make them valid as wills or testaments in the country of execution."
  Upon examining the Scotch authorities, they observe that they think it unnecessary to support by any reasons what they hold to be the established law; yet they add—
  "That there seem to he the strongest grounds for having originally adopted, and for now adhering to that rule, instead of holding that wills are only good if executed according to the law of the party's immediate or ultimate domicile, without reference to the place of execution."
  After stating these reasons, with some of which I have already troubled your Lordships, they proceed to another point on which it is the object of this Bill to introduce an alteration in the law—
  "Supposing," they say, "a testator domiciled in a foreign country at the time when he makes his will makes it according to the forms there required, it seems unreasonable to say that his change of domicile to a country where a different form of authentication is required by local statutes, is eo ipso, to operate, as a revocation of that which will was validly made at the time when it was made. Change of domicile may change the rights of third parties and the powers of the testator; but it cannot alter the fact that he has expressed his intentions as to his succession, and has preserved that writing without alteration or visible revocation."

  873
  After discussing this subject they proceed:
  "We do not think it necessary to advert to the civil law, or to notice the works of international jurists on this subject. We shall merely say, that although some difference of opinion exists amongst them, the preponderance of authority appears to us to be very clearly on the side of that opinion which we have already expressed. We agree with those Continental jurists who lay it down that a testator making his will in a foreign country has his option to follow either the formalities prevailing in the place of his domicile, or those of the place of execution."
  My Lords, the extracts which I have read are from the opinion signed by the Lord President and eight other Judges. Lord Kinloch gave a separate opinion, which, upon the matter now in question was, perhaps, still more precise and pointed than those which I have already laid before you. After declaring that by the law of Scotland the locus regit actum is just as applicable to wills as to other deeds; that it is a principle so deeply embedded in the law as to preclude it from being disturbed, and at the same time so accordant with reason and sound policy that he has no inclination to disturb it, he proceeds—
  "To hold the deeds to be authentic instruments docs not in the least determine the effect to be given to them, which is matter for consideration after they have been received and read. Neither does it preclude the Court from holding, in any after case which may raise the point, that a will or other deed executed abroad, according to the solemnities of Scottish law, is valid, although not executed with the formalities of the place of execution. There is no inconsistency in recognizing a deed well executed according to the lex loci, and at the same time not rejecting a deed executed according to the lex fori."
  The opinion of the consulted Judges has, I understand, been adopted without any dissentient voice by the Court, and a decision has been pronounced in conformity with it. I should observe that the Judges in this case, in entire agreement with the general law of Europe, discard altogether the question of domicile at the death, with all its frightful consequences of expense and injustice. The law of Scotland upon this subject I desire to make the law of England. As to making the law of this and of foreign countries, on the subject of wills of personal estate, in all respects correspond, it is absolutely impossible by any contrivance to do so while the distinctions established in the English law between real and personal property remain as they are. No country except England and Ireland, I believe, treats lands and houses held for long terms of years at a pepper corn
  874
  rent, or mortgages and other property connected with land and having a local character as subject to the rule that mobilia sequuntur personam. To apply the rule to property which really is immovable is to depart altogether from the principle on which the rule is founded, and to hold that the power of disposition over them ought on that ground to be governed by the law of the place where a testator happens to have his domicile at his death, is going further than I imagine any one will contend to be reasonable.
  I am aware, my Lords, that the Bill which I have the honour to recommend to your Lordships goes but a little way; if it should pass many inconveniences will still remain, particularly as regards intestacy, to which this Bill does not extend—but some anomalies will be corrected, and, what is much better, serious practical evils will be removed. A domiciled Englishman or Irishman will be enabled to do what a domiciled Scotchman may do already; he will be enabled, if he is obliged to make his will abroad, to make it either in the forms which prevail in the place where it is made or in those of his own country. A Scotchman will be able, having made his will, to go to England; and an Englishman, in the same predicament, will he able to go abroad, without the apprehension that, if he should never return, all his intentions with respect to his property at the time of his death may be disappointed. At all events, whether he be Englishman, Irishman, or Scotchman, he will be spared the risk that in useless inquiries into his domicile at his death, and into the law of the country of that domicile, one-half of his property will be wasted in order to accomplish, or, as is just as likely to happen, to defeat his wishes as to the other half. I venture, therefore, respectfully to request your Lordships' assent to this measure, of which it is the object, and I believe will be the effect, to assimilate on a very important point the laws of England and of Scotland; to place both in harmony with the general international law of Europe, and to prevent forms which are said to be the handmaids of Justice from being used as impediments and obstructions in her path, The noble and learned Lord concluded by presenting a Bill
  Moved, That the Bill be now read 2a.
  LORD WENSLEYDALEsaid, a Bill somewhat similar in character to the pre-

  875
  sent had been introduced in their Lordships' House on a former occasion, and did not receive their Lordships' sanction. His noble and learned Friend had now introduced a measure embodying the same principle. He entertained so high a respect for the noble and learned Lord by whom this his Bill had been introduced that he was almost induced to hesitate before offering an opinion with regard to it; but he entertained the very strongest objection to the principle on which it was founded. That was not the time for entering into a consideration of the details of the measure, but he would venture to trouble their Lordships with a few observations on the principle itself. No point in the law of nations is more firmly established than that the succession to real estate is governed by the law of the country where the property is situated—it must descend to those who are heirs by the law of that country. It can be taken from them only by a will with the formalities required by that law; but with respect to personalty the maxim of mobilia sequunter personam must prevail. The cause of this distinction has been so satisfactorily explained with so much clearness and good sense by Mr. Justice Story that he would venture to trouble their Lordships with a short extract from his most valuable work on the conflict of laws. He says—
  The probability is that this doctrine had not its origin in any factitious annexation of personal property to the person of the owner, or their incapacity to have a fixed situs, but in an enlarged policy, growing out of their transitory nature and the general convenance of nations. If the lex loci rei site were generally to prevail in regard to moveables it would be utterly impossible for the owner in many cases to know in what manner to dispose of them during his life, or to distribute them at his death, not only from the uncertainty of their situations in their transit to and from different places, but from the impracticability of knowing with minute accuracy the law as to transfers in the different countries in which they might happen to be. There would be serious evils pervading the whole community, and equally affecting the subjects and interests of all civilized nations. A sense of general utility, therefore, must have first suggested the doctrine, and as soon as it was promulgated it could not fail to recommend itself to all nations by its simplicity, its convenience, and its enlarged policy. But be the origin of its policy what it may it has so general a sanction amongst all civilized nations that it may now be treated as a part of the jus genium."
  It had accordingly been, as he believed, universally held among such nations that the succession to personalty is to be go-
  876
  verned by the law of the domicile of the owner at the time of his death, and it seemed to follow inevitably as a corollary from that proposition, that if there is a will which alters the established rule of succession, that will must be executed with the formalities which the law of the domicile requires. This question was decided more than thirty years ago by the then Court of Delegates, in the case of "Stanley v. Bernes." His noble and learned Friend (Lord Kingsdown) had spoken slightingly of that Court, but he (Lord Wensleydale) knew that particular case was most fully and carefully considered by himself and his colleague, and not decided until after much deliberation; and he had the satisfaction to know it had been since approved of and been considered as firmly established, at least in Great Britain and America, and sanctioned by the great authority of Mr. Justice Story. Indeed it would not be doubted if the rule of international law is, as it unquestionably is, that the succession should be governed by the law of the domicile at the time of the death of the testator, to attempt to change this established law of nations by a statute of this country alone would be useless, and productive of inconvenience. It could only apply to personal property within the territories of this realm, not to that in any other country, at the time of the death of the owner. That country would recognize the law of nations only, and if the will of the owner was not in the form required by the law of the country of the domicile would not permit it to be taken by the legatee. Questions would arise as to property, ships for instance, in this country at the time of the testator's death, but afterwards removed into another, which would not recognize the English law. The proposed change, therefore, might be productive of great inconvenience, and was at the same time entirely unnecessary, as it was in the power of every one to make his will in a form which would be perfectly secure whatever his domicile might be by making the instrument conformable to the laws of both domiciles, if there happened to be a question whether his domicile is in one or the other. For instance, in the case of a doubt by the testator whether he was domiciled in England or France it would be perfectly easy to make an holograph will, which is good without witnesses in the latter country, and execute it in the

  877
  presence of two witnesses, who should subscribe it in the presence of the testator, which would make it valid by the law of the former. It would not be necessary to make duplicate wills. Why make an useless, perhaps inconvenient attempt to alter the law of nations—which would be without effect, unless all civilized nations concurred in it—when the remedy is so easy without any change whatever? There are some consequences arising from a change of domicile, which no enactment as to the form and ceremonies of a will could not cure. For example, the law of some civilized countries prevent a man from bequeathing the whole of his property, as for instance, that of France prohibits a man from taking a certain share of his estate from his children; that of Geneva obliges him to leave some part to his heirs, when he has no children. These consequences no enactment as to form of a will can prevent. He perfectly agreed that nice questions would often arise as to domicile, and it was impossible to avoid them. It was difficult to make a scientific definition of that term complete in all its parts, but a practical one was easy; and, as of late times, it had been always held that the domicile of origin continues until it has been abandoned "animo et facto," and a new sole domicile acquired, much fewer questions of nicety and difficulty will occur. The noble Lord then remarked on the case of Bremer v. Freeman; commented upon by the noble Lord opposite. He said it had been most carefully considered in conjunction with one of the highest authorities in this country on international law, his friend, Doctor Lushington, and with Sir John Patteson, and the late Sir William Maule, eminent lawyers. The law of France was decided upon the evidence as a matter of fact, and on that evidence he believed the decision was perfectly correct, and could not be questioned. Whether the evidence was all that might have been given was quite another question. It was conflicting, and probably much more might have been made. He certainly was impressed with the notion that the able French lawyers who gave their written testimony had notions very different from ours as to the authority of the deliberate judgment of Courts, which they seemed to consider of no value except to those who had the good fortune to obtain them. They treated them as almost worthless compared with the opinions of practising lawyers; and they did not appear
  878
  to have made the law of nations as generally understood as their peculiar study so much as many other foreign jurists. He thought the proposed Bill was quite unnecessary, and that it might he productive of much inconvenience.
  Amendment moved, to leave out "now" and insert "this Day Six Months."
  THE LORD CHANCELLORsaid, that the subject was by no means free from difficulty; but guarding himself from being in any way pledged to support the Bill, he must deprecate opposition to it in that stage as discourteous to his noble and learned Friend, who had brought forward the measure with a very able and elaborate speech, and the House should reflect that no one was more competent to deal with the subject than his noble and learned Friend, to whom the country was already greatly indebted for the attention he had devoted to that and kindred subjects. Great evils had been shown to arise from the present system, and the remedy which his noble and learned Friend recommended, was certainly worthy of their Lordships' careful consideration. He would be delighted to see a rule laid down by which the vexed question of Lord Campbell's domicile could be settled. When Lord Chief Justice, he was held to have a domicile in England, on account of the duties he had to perform in virtue of that office; but when he became Lord Chancellor no one could tell whether his domicile lay north or south of the Tweed. When he retired from his official labours he hoped he might be able to establish his domicile without dispute, so as to leave no doubt as to the law by which his will should be decided. He felt bound to say that he was not sanguine as to the result of the measure now submitted to their Lordships.
  LORD ST. LEONARDSsaid, that though he could not approve of the measure, he entirely agreed that it would not be well to refuse it a second reading. It could not be disguised that the great object to be accomplished by the measure was to allow gentlemen to pass their lives and spend their money on the Continent, and still to have all the benefit of the English law without being subject to its authority. An Englishman domiciled in France could not dispose of his property as he thought proper, as he could by the English law, because the French law had undertook the disposition of one-half for him; but if a man chose to abandon his native domicile and assume a French do-

  879
  micile, he must abide by it with all its disadvantages. He did not see why an Englishman who chose to go and reside at Paris should be released from the obligation of making his will in conformity with the Wills Act. His hon. and learned Friend Sir FitzRoy Kelly introduced a Bill on this subject in the other House in 1858; it passed that House and came up to their Lordships, but, though that Bill did not go one-half so far as this, their Lordships refused to assent to it. He did not see why a man should be able to evade the English law by going over to France; and he thought that the utmost extent to which they ought to go was to allow a man the power to dispose of his property by a will made abroad attended by the same formalities as if the will had been made in England. The Bill affected to decide the question of domicile generally, but English legislation could only decide it municipally. If all countries agreed to an international assimilation of the law of domicile, it would be most desirable, but we could not legislate generally. The object of the law of 1846 was not only to produce uniformity with regard to all testamentary dispositions of property, but, likewise, to guard against an incautious disposal of personal property by throwing round all property that kind of solemnity which had hitherto been applied to real property only. In conclusion the noble Lord said he approved of the object of the Bill, and if the noble Lord who had charge of it would consent to refer it to a Select Committee, he would be happy to render him all the assistance in his power in improving it as far as possible.
  LORD CRANWORTHsaid, that the subject abounded in difficulties. The principle of the law was, that a man who took up his domicile in a country was to be supposed to have adopted the laws and regulations of that country in which he was domiciled; and, whatever the Legislature might enact, the principle of law which he had just cited must obtain if a man died intestate. He doubted whether they would not find infinite difficulty in legislating that the property of a British subject was to pass, not by a will framed by the law of the country in which he was domiciled, but according to the law of this country. He feared lest in stopping one hole they might make several others. There was, however, a practical evil to be remedied, and their Lordships must do the best he could to
  880
  correct it. He should offer no opposition to the second reading.
  LORD KINGSDOWNsaid, the object of the Bill was to remove defects in our legal system, and he did not think that inability to accomplish all was a reason for not attempting to accomplish any.
  Amendment (by leave of the House) withdrawn.
  Original Motion agreed to; and Bill read 2a accordingly; and committed to a Committee of the Whole House on Tuesday, the 30th instant.

POST-OFFICE SAVINGS-BANKS BILL.

  SECOND READING.
  Order of the Day for the Second Beading read.
  LORD STANLEY OF ALDERLEY, in moving the second reading of the Bill, said that its object was to give greater facilities for the investment of the savings of the industrious classes, and to give to savings banks depositors a Government guarantee through the medium of the Post Office. The existing savings banks were found to be insufficient in number, inadequate in the accommodation they afforded, and insecure as to the repayment of the deposits until the money had passed into the hands of the Commissioners for the Reduction of the National Debt. The numbers of the savings banks had undoubtedly increased, but not in proportion to the increase of the money circulating among the working classes. There were, for instance, fifteen counties in which no savings banks existed at all; there were probably 100 towns with populations varying from 10,000 to 30,000; he held in his hands a list of upwards of twenty populous towns containing more than 10,000 persons where no savings banks existed; and of the 624 savings banks that did exist, only twenty were open daily, while the majority were available for the receipt of deposits only once or twice a week. This of course often neutralized the saving disposition of the working-man; for it was obvious that when a working man formed a good intention to invest his small savings there was a danger lest he should spend his money if there were no savings bank in his neighbourhood, or if some few days must elapse before he could invest it. Great losses had occurred to the depositors in savings banks from the want of security. During the period since savings banks had been established these losses amounted to

  881
  not less than £229,000. In many cases the loss had fallen on the depositors, while in others it had been made good by the trustees. The manner in which it was proposed to remedy these inconveniences was by the adaptation of the money-order offices in connection with the post offices throughout the kingdom. The effect of the measure would be to give Government security for the money invested, which the Government would be enabled to give, because the measure would be administered by officers of their own, as it would he carried into effect by the machinery of the Post Office, every postmaster at present gave security, and additional security would be required, if necessary. Their Lordships would, perhaps, be surprised to learn that a similar plan had been prodosed in 1807 by Mr. Whitbread, before savings banks Were established. Mr. Whitbread brought in a Bill in which he proposed to make use of the machinery of the Post Office as savings banks. The Bill passed a second reading, but it was then dropped. The plan had been since revived, and had been lately advocated in some admirable letters by Mr. Sykes, and the Government with the assistance of two able gentlemen in the Post Office Department had matured the present plan. The depositor would go to a money-order office, would receive a book from the postmaster, in which his name and the amount of his deposit would be inscribed, and this book would be conclusive evidence against the Government. It would be the business of the postmaster to transmit the name and address of each depositor, with the sum invested, to the Postmaster General, and the depositor would then receive a letter from the Postmaster General informing him that such an amount had been placed to his name and credit. If such a letter were not received within ten days, the depositor would be requested, by instructions printed in every book, to write to the Postmaster General, and until an answer was received from the Postmaster General his name in the book would be a sufficient security. Ten days' notice must be given when money was to be withdrawn. It would then be paid to the depositor without charge or deduction. The depositor would also have this advantage—that, if he deposited the money in one part of the country, he could have it repaid at any other part. Thus, a man who deposited money at Bristol could receive it at York, Belfast, Aberdeen, or wherever he might happen to
  882
  be. It was somewhat remarkable that nine-tenths of the depositors were domestic servants, clerks, &c., and that only one-tenth belonged to what was usually meant by the term the working classes; yet large numbers of these latter were in the receipt of wages far exceeding the incomes of many that possessed savings banks accounts. He hoped that working men, when they received their wages, would be induced, before going home, to invest a portion of them at these receiving houses, and if so, the results could not but be highly beneficial as inducing the spread of thrifty habits among the working population. The interest to be given 2½ per cent was not such as would put this scheme in unfair competition with existing savings banks, and their Lordships would understand that in the meantime it was to be put in operation only as an experiment. If it should prove that the extension of the system was demanded by the public it could only be by reason of the greater security and the greater facilities the new institutions would offer.
  Moved, That the Bill be now read 2a.
  LORD COLCHESTERadmitted the great facilities which this system would hold out to the deposit of small sums on the part of the working classes; but when the noble Lord said that the Post Office had officials in every town who could be entrusted with the management of these banks he thought the statement was hardly correct; for while there were 2,500 money offices in the kingdom there were only 800 head offices; the rest were what were called sub-offices, managed by small tradesmen found on the spot, and who were, therefore, as a rule, unfitted for this particular work. The Bill did not state whether its operation was to be confined merely to towns in which there were money-order offices corresponding with the head Money Order Office in Loudon, which formed an entirely distinct department of the Post Office. The noble Lord went on to describe the way in which the money would be sent up from the local post-office to the Postmaster General, and would be transferred by him to the Commissioners for the reduction of the National Debt. But the question was how the local postmasters were to be remunerated, and from what fund it would be paid. That it would not be a small financial operation was pretty clear. From a Return made in 1859 it appeared that the number of deposits made in that year was £1,500,000,

  883
  and that the sums deposited amounted to nearly £2,000,000. Allowing that each depositor paid in or withdrew money only once a month there would be no fewer than 18,000,000 transactions to be accounted for yearly. Their Lordships would thus see the enormous amount of business which even the present savings banks had to transact, and might thence be able to judge of the extent of labour which would fall upon the local post-offices and the central office in the event of the scheme proving as popular as was anticipated by its projectors. It was said that there was a want of security in the existing banks, but he saw from a Return that there was security given by the officers of the present savings banks to the extent of considerably more than £600,000. He regretted to say that no plan of the scheme had been laid before them, and no estimate of the expense. The noble Lord said, indeed, that a Report had been drawn up in the Post Office on those subjects; and perhaps, before going into Committee on this Bill the noble Lord would be good enough to lay that Report before the House.
  LORD MONTEAGLEsaid, that his noble Friend's Bill seemed to rest upon the supposition that the progress of the existing savings banks had not been satisfactory, and that it was, therefore, necessary, instead of remedying defects in the existing system, to destroy it entirely and to substitute for it a system totally different, which it was thought would more adequately carry out the object for which savings banks were instituted. But he (Lord Monteagle) denied that the progress of the existing savings banks was unsatisfactory. The very contrary is the truth. He was old enough to remember the introduction of the present savings banks. They were begun in 1817, exclusively as a benefit to the poorer classes, and with a view to promote their moral and social welfare; but since then new and very different elements had been introduced into this question, and great interests of a political and financial kind had become involved in the working of the system. At the present moment the amount deposited in the savings banks was no less than £40,000,000 sterling. This showed the immense importance of these institutions, and spoke loudly as to their success. Yet the Government proposed to interfere with their very existence; and this, as his noble Friend (Lord Colchester) had said
  884
  without any estimate of the expense at which the new system was to be worked, or, even shadowing forth any plan by which it was to operate. If their Lordships thought that the deputy-postmasters throughout the country wore all competent to undertake the new and varied duties of the savings banks he could assure them they were entirely mistaken. Many of their Lordships were connected with savings banks, and took an interest in their proceedings, and they knew that the duties of the actuaries, clerks, and other officers consisted, not only in giving receipts, but in making calculations of interest to be added or deducted from the deposit accounts with other calculations which the postmasters, in the majority of districts, were hardly unequal to; in fact many of these parties deputed the duties of the post-office to their wives or sons and daughters. But there were already 1,800 officers in the savings banks engaged in performing those functions; in fact, in a large portion of those banks there were experienced actuaries employed who were paid highly, and who performed duties of which the postmasters as a class would be incapable as they were of working a biquadratic equation. If proper officers were to be employed their salaries would require a new Post Office Estimate. He had heard a noble Lord say that the Estimates as they stood made his hair stand on end; and were they now deliberately to augment those Estimates still further by being compelled to engage officers who would be competent to deal with forty millions of money? He had often had occasion to admire the pluck and courage of the noble Lord (Lord Stanley of Alderley) who was at the head of the Post Office; but those qualities were never shown in a stronger light than when he undertook the oversight and superintendence of the millions of money that would pass through his department in connection with the savings banks. But he objected on higher grounds to the Government proposal for undertaking the management of forty millions of the capital of the country. He objected to the centralization which would be the effect of this measure. The principle of non-interference with the local management of our local and charitable institutions was one which was justly appreciated in this country; and if there was one thing more than another on which it behoved the Government to interfere cautiously it was with the capital of the working classes.

  885
  There had been times in the history of this country when the connection of the Government with the savings banks would have been anything but a safeguard and protection to those institutions; on the other hand, there was nothing in which the connection between the upper, the middle, and the lower classes was more valuable than in their administration of the savings banks. His noble Friend spoke of the great losses that had been incurred under the present system. But had there been no loss sustained in the Government establishment of the Post Office and in other revenue departments? In point of fact the savings banks losses were less than one-half the amount stated by his noble Friend, for while he stated the amount of money that at different times was placed occasionally in jeopardy he made no mention of the money that had been paid in to avert the danger and make good losses, nor of the amount received from defaulters and their sureties. It might be said, indeed, that such compensation was only paid through the generosity of men acting as trustees. But it must be remembered that originally the trustees of the savings banks were personally responsible for the whole amount deposited, and it was only when the deposits became so enormous that the trustees became uneasy, and induced Parliament to relieve them of that responsibility. But, in additon to that voluntary responsibility there was security to the amount of £700,000 actually lodged by the 1,800 persons officially connected with the management of the savings banks; and he believed that was a larger amount of security against abuse than his noble Friend held from all the persons now employed in the Post Office. He must remind their Lordships that our system of savings banks was no new subject. A few years ago it was referred to a Committee of the House of Commons presided over by a Gentleman whose name was esteemed wherever probity and intelligence, and a deep interest in the welfare of the working classes were held in honour—he meant Mr. Sotheron-Estcourt. That Committee in its Report recommended much larger changes in the system, changes, too, of a very different description from any to which his noble Friend invited their attention. Their Report called attention to the mode in which the savings bank deposits were now administered. They were nominally entrusted to the Commissioners for the Reduction of the National Debt, but of
  886
  this board, the real and sole acting functionary was the Chancellor of the Exchequer. By his command over the sales and investments of these funds the Chancellor of the Exchequer acquired a power to which, as at present administered, he (Lord Monteagle) had very strong objections. He did not speak of any particular Chancellor, for his objection to the principle applied to himself when he had the honour to be Chancellor, as well as to the right hon. Gentleman who now held that office, though he had not used this authority in the same manner or to the same extent as it had been applied in later times. When the Chancellor of the Exchequer found that any particular stock or fund—Exchequer bills, for example—did not appear to have a favourable aspect in the market, he was empowered to apply the funds of the savings banks in making large purchases of that stock; and was thus enabled to give to that stock a fictitious value. In the same way that purchases were at one time effected, at another sales were made, and the market was thus unduly influenced at the pleasure of the Chancellor of the Exchequer, who thus might be turned into the largest stock-jobber in England; or, at least, the Chancellor of the Exchequer was the largest dealer in public stock of any man in England, and exercised a command over the largest amount of capital. That was not right. It should be remembered that when the Chancellor of the Exchequer went into the market to buy or to sell, he went with a capital of forty millions at his back, and knowing what he intended to do in his financial operations; while the persons with whom he dealt had no such knowledge; so that he had an advantage over others which was only to be paralleled by the case of a person who went to the gambling table with loaded dice. This was even avowed and justified. When the subject was mentioned in the House of Commons, the late Mr. Wilson said it was quite true that at a time when Exchequer bills were inconveniently low the Government were enabled to raise their market value by the employment of the savings bank money and purchasing bills in the way which he had just described to their Lordships; and Mr. Wilson defended the practice by saying that it was very beneficial that the Chancellor of the Exchequer should have the power of purchasing Exchequer bills when the price fell so low as to endanger their being returned on his hands for money, as he thereby

  887
  raised their value and prevented the necessity of raising the interest. But that system of dealing with the public securities was not, he (Lord Monteagle) considered to be tolerated. He did not wish to take away from the Chancellor of the Exchequer any legitimate power which be ought to possess, but he desired that be should in such cases apply to Parliament and obtain his authority from them. As the law stood at present these financial operations were conducted in secresy—a practice wholly indefensible. Precedents were not wanting for proceedings such as he alluded to, but not to the same extent. He (Lord Monteagle) when in office had funded Exchequer bills bought with savings banks money—but not with money produced by sale of stock. He believed the Chancellor who had employed those funds most usefully and most justifiably was his late esteemed Friend Lord Althorp, one of the most constitutional as well as the most conscientious of men. But his noble Friend had acted with the knowledge and the approval of Parliament. In later times the practice had been greatly, and, as he considered, dangerously extended. In one case a transaction to the extent of £7,000,000 took place, although at the time it wanted but three days to the assembling of Parliament when, consequently, Parliamentary authority might have been sought for. Exchequer bonds had also, within a few years, been issued, and payment fixed for certain periods, but, though these securities had arrived at maturity, it was not convenient that they should be paid; and securities which the stock market rejected were only kept afloat by applying the money of savings banks, in order to repair a financial error, and influencing the price artificially. Such a course—in time of war especially—was also said to be convenient and necessary, as borrowing to pay off the bills returned for money, and borrowed at a higher interest, was thus averted. But neither Mr. Pitt, in the midst of all difficulties and foreign subsidies, and loans, nor anybody else ever dreamt till the year 1828 of making the public credit depend on savings banks, and not on the securities of the State and the revenue raised from taxation. But there were other constitutional objections which deserved notice. No principle was better established than that any person lending money to the Treasury or to the Crown without Parliamentary sanction committed a misdemeanour against the State. In the charter of the Bank of Eng-
  888
  land a clause was introduced forbidding money dealings between the Bank and the Treasury except sanctioned by the Crown with Parliamentary authority. Yet in the present case, and under the Bill before the House, forty millions sterling were left to be dealt with at the mere verbal fiat of the Chancellor of the Exchequer according to his view of the exigencies of the moment. He, therefore, objected to the unauthorized interference of the Chancellor of the Exchequer with the funds of the savings banks on any pretence whatever. Under the present system the savings banks were managed by the country gentlemen of England, by the clergy of all persuasions, and by the respectable middle classes, who give up their time willingly for the benefit of their humbler neighbours, and from whom, without any fault that could be proved, these useful duties were now to be withdrawn and transferred to the hands of the servants of Government. What would happen in case difficulties were again to occur, such as those cases in which good and generous men had put their hands deep into their own pockets in order that the depositors might not suffer? In one at Hertford, where a deficiency amounting to £10,000 was discovered, Lord Salisbury, the late Lord Cowper, Lord Melbourne, and their fellow-managers agreed to subscribe £1,000 each for the purpose of making good the amount of deficiency; but, reflecting that one of their number was a clergyman, not in affluent circumstances, in addition to their individual contributions, one tenth each, they divided the odd thousand pounds among them, and subscribed the clergyman's share in addition to their own contributions. Such was the spirit which the Bill now proposed as about to crush. He, therefore, denied the expediency of change, on the ground that it would affect the welfare of the savings banks, and that it was an attempt to effect without necessity a great Government centralization. He objected also on constitutional principles, as tending to free the financial Minister from his just dependence on Parliament, and placing large sums of charity funds at his disposal. The only comfort which he had derived from the speech of the noble Lord who moved the second reading was his assurance that the measure was to be of an experimental character. He should not trouble their Lordships to go to a division; but, awaiting the result of that experiment, next year he should take the

  889
  liberty of moving for a Committee of inquiry into the whole subject, to compare the working of the new system with that which for nearly a half century had been the glory of England and had served as a model to the whole of Europe.
  LORD REDESDALEdid not rise to oppose the second reading of the Bill; but he wished to point out that under the system which it proposed to establish there would be no opportunity of comparing the depositors' books and the ledgers, according to the practice in existing savings banks; and he feared that owing to this and other difficulties the accounts would soon get into a state of confusion, extrication from which would be almost impossible. He also called attention to the 10th Clause, authorizing the transfer of deposits from existing banks to post-office banks, or vice versâ, but requiring the signature of two trustees to each transaction. This clause would entail so much trouble upon trustees of savings banks as to render persons unwilling to accept that office; and as it was entirely unnecessary—because its object could be effected by the depositor drawing his money out of one bank and paying it into the Other—he recommended that it should be omitted from the Bill. This scheme was said to be an experiment, and in his opinion it was one which had better be tried for two or three years in certain localities only, before it was extended to the whole kingdom; otherwise, he was afraid that it would produce much disappointment to the public, and a great loss to the nation.
  THE MARQUESS OF CLANRICARDE, from his own experience as to the Money-Order Offices, when filling the office of Postmaster General, was of opinion that the new system would cause inconvenience, and would very materially interfere with the Post Office in the performance of its proper functions. In regard to money-orders, that was not a purpose for which the department was properly intended, and the performance of which had only been undertaken under great pressure. He did not believe that as yet any correct estimate had been made as to the probable results of the measure. He did not think this could be looked upon as a mere experiment, because he did not see the possibility of the Government stopping short, unless the system should prove at once to be a complete failure, which he did not apprehend. It might be quite right that the Government should provide the labouring classes the opportunity of investing their
  890
  money; but it ought to have been stated exactly what was proposed to be done to effect this, and how the money deposited was to be invested. He trusted that before the Bill passed the information which had been asked for would be given to their Lordships.
  LORD STANLEY OF ALDERLEYsaid, as to the danger of allowing the Chancellor of the Exchequer to use the savings banks' money in the way he thought most advantageous to the public interest, it was an objection against the present state of things, and did not, therefore, constitute a special objection against the new system. It was a power which had been used, he believed, very much for the public good by the noble Lord (Lord Monteagle), when he occupied the office of Chancellor of the Exchequer; and when the expediency of entrusting such a power to Ministers was at that time challenged, the noble Lord defended it with his usual ability, and urged that it was a power that should be given, and, indeed, could not be entrusted to any other person than the Chancellor of the Exchequer. Now, however, the noble Lord gave the same principle his strongest condemnation. As to the objection against removing the management of the depositors' money from the trustees of the savings banks, he willingly admitted that in some instances trustees had generously made up deficiencies out of their own pockets; but he thought that depositors ought not to be left to the accidental generosity of any one; and one object of the Bill was to provide them with legal security for their money. In answer to the objection on the subject of expense, it was confidently hoped that the Post Office Savings Banks would not lead to any charge upon the Revenue. It was contemplated by the Government in introducing this Bill that, looking to the low rate of interest they gave—namely, £2 10 s. per cent. and comparing it with the market rate, there would be left ample means of defraying all the expenses of this establishment, inasmuch as the existing savings banks, which gave a much larger rate of interest, contrived to defray all their expenses. The experience they had had in respect of the money-orders issued by the Post Office afforded them an opportunity of judging how far its machinery was suitable for the new purposes to which it was now proposed to apply it. The money-order branch of the Post Office was, in fact, a bank of transmission, and the

  891
  savings bank would simply be a bank of transmission and detention—there would be only ore additional duty imposed upon it. It had been said that the Post Office could not undertake the duties of a savings bank, as the transactions would be so numerous as to overwhelm any public department. Now, the amount of deposits in the savings banks in 1851 was £16,250,000, but in the money-order office in the same year the transactions amounted to £26,506,000. Then as to the comparative security, the loss in respect of post-office orders had, out of transactions amounting to £350,000,000, only been £5,696, and of that sum £5,000 was prior to 1851, and mainly in respect of two branches, namely, Jersey and Barnet; and during the last ten years the loss had only been about £900. The loss at Jersey arose from the money being transmitted in mercantile bills, a practice since prohibited. They had reason to believe the proposed savings bank business would be carried on with equal security to the public, facility to the depositors, and without imposing any expenses on the State, inasmuch, as from the transactions connected with the money orders they had derived a profit, and the public had not paid sixpence towards the maintenance of that branch of the Post Office. His noble Friend opposite (Lord Colchester) had said something as to the remuneration to be given to the officials, and expressed a doubt whether it would be good enough to secure persons of a sufficiently high character and ability to fit them to conduct the necessary operations; all he could say was, that if the present officials were competent to conduct the money-order business, which they had done with great ability and fidelity, he saw no reason why they should not perform the duties in connection with these proposed savings banks. All the business of keeping the accounts was to be done at the central office in London, and the duties imposed on the postmasters was simply that of receiving and transmitting the money, for which service he thought the remuneration proposed to be given was quite sufficient.
  After a few words from Lord and Lord in explanation
  On Question agreed to.
  Bill read 2a accordingly, and committed to a Committee of the whole House on Thursday next.
  House adjourned at a quarter before Nine o'clock, till To-morrow, half-past Ten o'clock.