Sitting of 6 April 1853

PROBATES OF WILLS AND GRANTS OF ADMINISTRATION BILL.
Order for Second Reading read.
Motion made, and Question proposed, "That the Bill be now read a Second Time."
The SOLICITOR GENERALsaid, he thought it necessary that they should have a very clear understanding of the grounds on which this Bill should be admitted, on the part of the Government, to be read a second time. The purpose of the Bill was one, the importance of which could scarcely be exaggerated. It would be in the re-
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collection of the House that he had stated, on a former occasion, that in case the Report of the Commission which was sitting on this and cognate subjects was not presented within a certain period, he would consider it his duty to lay on the table of the House a measure which would embrace the whole subject—that subject upon which there had been incessant but fruitless attempts to legislate ever since 1830. The present Bill, it would be observed, was directed only to a very fragmentary part of that extensive subject. It was directed exclusively to this particular mischief; the necessity which at present existed, in consequence of very defective machinery, of having, on many occasions, probates granted, and administrations taken out, in different Ecclesiastical Courts. By way of introducing the matter, though he believed it was familiar to almost every hon. Member, the House would probably indulge him while in as few words as possible he sketched the present state of our ecclesiastical jurisdiction in this respect. There was, at present, the Prerogative Court of the Archbishop of Canterbury and the Prerogative Court of the Archbishop of York; and the probate of a will or an administration granted in one province, was now of no avail in the other province. There were, besides, the Diocesan Consistorial Courts of the Bishops of Dioceses; and, again, independent of these jurisdictions there were, at least, 300 smaller tribunals scatterred over the country, which were called Peculiars' Courts, each of which, over a particular area had a right of jurisdiction of granting probates of wills and letters of administration. The consequence of such a complication not unfrequently was that a will had to be proved, first in Canterbury, and secondly in York; that then a further probate was required in Scotland, and even again in Ireland; and by the evidence which came before the Commission he had referred to, it would appear that there were numerous cases in which it had been found requisite that the same will should be proved, in different courts, not less than six times. To this description of mischief this Bill to a certain extent addressed itself; but, unfortunately, it was so badly worded and so imperfectly expressed, that in the attempt to remedy the evil, it would in point of fact, render the evil ten times more insufferable than it was at present. He alluded, particularly, to the first section, which provided, with a very inade-

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quate view of the subject, that any probate of a will or letters of administration—
"that shall be granted, in England or Ireland, by any court or authority having jurisdiction to grant such, in respect to any part of the personal estates, shall be, in all such cases, equally valid and effectual, in respect to the whole of the personal estate;"
and if the Bill were permitted to pass in that form of words, and if the same will must still be proved in a dozen different tribunals, the result would be that there would then be a dozen different probates all of conflicting authority. It was clear, therefore, that the good intent of the Bill had been completely marred by an imperfect and insufficient form of expression. He admitted that this difficulty, and the other difficulties arising out of bad wording, could be remedied in Committee, and, no doubt, if the Bill was to proceed at all, it was to the Committee only they would have to look. But he would humbly suggest to the House that the best course would be this—that the Bill should be allowed to be read a second time, but only pro formâ, and on the clear understanding that it should remain on the table of the House until an opportunity should be afforded the Government of bringing in that larger measure on the whole subject to which he had before adverted; and then, if the opportunity thus afforded should not be taken advantage of within a reasonable time, he would of course not be entitled to object to this particular Bill now before the House going into Committee; and in Committee it would be his earnest desire so to amend the Bill, and engraft on it such provisions, as would render it at all events a very considerable instalment of the much-needed and long-promised reform with respect to the testamentary jurisdiction of the country. With this view he would proceed to state, in a few words, the additional provisions which he thought it would be necessary to incorporate in this Bill, and in consideration of the desirableness of which he was alone justified in making his present proposal to the House. The first thing which they should attempt in this matter was the total abolition of the Peculiars Courts' jurisdiction. They stood at present in a very singular predicament. Legislation had long ago been aimed at them; and they were doomed to be extinguished by the Act of the 6 & 7 Will. IV., c. 77. In truth this jurisdiction, which had ever been an opprobrium
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to the civilisation of the country, had been continued, from time to time, in a very extraordinary way, by the means of annual Acts passed for the strange purpose of suspending the operation of that very Act of 6 & 7 Will. IV., c. 77. In fact, these Courts had been kept alive by what might be regarded as an annual Act of Indemnity. But this could not be expected to go on much longer; and, if the larger measure should not be brought in, and if this Bill, also, with amendments introduced into it, should not be passed into a law, he warned those persons who were concerned in bringing in those annual Acts of suspension to prolong the existence of these mischievous Courts, that he should be prepared to appeal to the sense of the House whether the object of the Act he had quoted ought any longer to be thus avoided? The abolition of these Peculiars Courts would place the testamentary jurisdiction of the country in a new position. The Diocesan Courts would remain with the two Courts of the provinces of Canterbury and York; and the proposal which he would hereafter submit to the House would have for its object, among other things, to abolish altogether the metropolitan Court of the Archbishop of York; and to establish one Court of Probate, to take effect throughout the whole of England and Wales, upon all subjects of contentious jurisdiction. The phrase "contentious jurisdiction" might require a little explanation for the benefit of those Gentlemen who were not conversant with legal phraseology. There were three forms of proving a will. One, which was called in technical language proof of a will in common form, consisted, in reality, of nothing more than than bringing in an affidavit of the due execution and attestation of a will in the manner required by the law; and then, if on the face of the document there appeared no objection to the admissibility of the Act, the will was proved without further acts. This was proof of a will in common form; and with the exception of about one-tenth or one-twentieth of the wills proved in the country, all wills might be said to be proved in that form. Obviously it would be very desirable that this should be permitted to be done in the manner most econonomical for the purposes of those persons who are resident in the country, and who ought not, unless from paramount necessity, to be compelled, for such an object, to resort to a metro-

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politan tribunal. The proposal, therefore, would be, that there should remain to the Diocesan Courts, who would remain unaffected by the abolition of the Peculiars Courts, the power of entertaining the questions of the probates of wills in common form; not giving them contentious jurisdiction, which implied litigation and complicated procedure; not giving them the power of having wills proved in solemn form by the elaborate examination of witnesses; but leaving them to retain in cases of estates not exceeding a limited amount—of about 1,000 l. or 1,200 l.—the power of receiving and passing wills in common form. He would, however, only be in favour of giving the Diocesan Courts this power with certain qualifications and conditions. The first condition which he would attach would be of this nature. The Diocesan Courts were presided over by the Chancellors of the Diocese, and these Chancellors were judicial officers appointed by the Bishop of the diocese. In many of the Diocesan Courts these Chancellors were gentlemen who had been duly trained in the profession of the law, and undoubtedly fulfilled the functions of their offices with great ability, and to the eminent satisfaction of the persons whose interests were affected by these Courts. But this was not the case universally; and his proposal would, consequently, be to allow testamentary jurisdiction to the extent he had mentioned to be retained in the Diocesan Courts, subject to the condition that in every diocese the Chancellor shall be a lawyer of a certain standing at the bar, and of certain qualifications in the profession of barrister. There was another condition as necessary to be attached. The House would bear in mind the great advantages that were to be derived connected with the probates of wills, as indicating the value of estates, from a system of general registration; and he would propose that every will proved in the manner he had stated in the Diocesan Courts should be transmitted to the general registry of wills to be established in London, in which all the wills at present scattered among the various Diocesan and Peculiars Courts, and in future to pass through the Diocesan Courts, shall be congregated, copies only being kept for reference in the registries of the Diocesan Courts. With these qualifications, he would be for leaving the power of proving wills in common form in the Diocesan
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Courts; for the House could not but be aware that it would be a hardship in the average cases of persons resident in the provinces to make it necessary for them, for this purpose, to have to resort to the metropolis. But even in the proving of wills in common form questions and difficulties arose; and it would be proposed that in all such instances the matter should be referred for decision to the Metropolitan Court. Not only, then, would all contentious jurisdiction connected with the determination of suits arising out of disputed wills be centred in the metropolis; but, also, all cases that might arise in course of determination of wills in common form would, in the same manner, be referred to the central tribunal. Connected, further, with these Diocesan Courts, he would propose to extend to County Courts powers of administering estates; and he would do so for what he regarded as satisfactory reasons. The House would, he thought, coincide with him in the necessity of combining the powers and jurisdiction in these matters, as much as possible, in the same tribunal; for the great evil at present existing, in addition to the other evils of ecclesiastical jurisdiction, lay in the circumstance of the jurisdiction of proving a will and granting administration being exercised by a tribunal which was perfectly distinct from the tribunal to which appertained the power of administering the estate and effects of the deceased party. In continuing, therefore, these powers to the Diocesan Courts, which it would be desirable to continue, for a variety of reasons, in addition to those he had already stated, it would be proposed that there should be given to the County Courts, collaterally with the Diocesan Courts, the right of administering, to a certain amount, the effects of deceased persons. With regard to the Metropolitan Court, what he proposed was that that Court should be at once transferred, as it at present existed, with all its staff of experienced practitioners, namely, proctors, registrars, and clerks of the see—to the Court of Chancery. He said to the Court of Chancery for the same reason he had just given; for the Court of Chancery was the only tribunal to which the administration of the property of deceased persons belonged; and, therefore, the only Court which would have the power of exercising the authority to take cognisance of wills affecting personal estates, and also of wills affecting real estates. The House

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was aware that there was at present a great anomaly in the system in this respect. You proved a will in Doctors' Commons, and the proof of that will, when decided on by that tribunal, is binding with respect to personal estate; but then the decision of that tribunal as to the whole of the personal estate is not of the smallest effect or operation with respect to the validity of the same instrument so far as it affects real estate. The result, as was only to be expected, was great confusion, a variety of conflicting decisions, and of contradictory determinations—he was not speaking theoretically—but of what was found to occur in practice; the same instrument being valid as a will as regards personal, and inoperative as regards real estate. The only mode in which this evil could be remedied would be to vest in the one tribunal power finally to determine the validity of a will as an instrument affecting both real and personal estate; and to give that power to the tribunal which has jurisdiction to carry into effect the direction of the instrument with regard to either portion of the property. The result of that arrangement of the jurisdiction would be this: that the Diocesan Courts must be regarded as Courts placed in connexion and relation with the metropolitan tribunal, namely, the Court of Chancery, which would become the great Court of Probate; and thus another anomaly in our system would be done away with. At present, the Ecclesiastical Courts are not regarded as Queen's Courts, but as deriving their power from some sort of spiritual authority; but by a transfer of this ecclesiastical jurisdiction to the Queen's Court, the Court of Chancery, that anomaly would be done away with; and the whole of the jurisdiction, as to proofs of wills, and administration of estates, would henceforth be regulated and controlled by one tribunal; the whole business would flow in the same channel, and be guided by the same principles; there would be one Court of Appeal, with the same course of procedure; there would be no necessity for resorting, for the same end, to different tribunals; the ends of justice would be simply and adequately served; and all the exigencies of the case would be answered and discharged by the same Court. This would introduce, not only conformity but convenience into the system; and would, in fact, accomplish all that had been so often and so vainly attempted before. In his opinion, the failure of previous efforts
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in this direction was attributable to two causes. One cause was, that until the late reform in the Court of Chancery there had been a great disinclination, whatever the desire for a change, to transfer the jurisdiction of the Ecclesiastical Courts into that Court, which, indeed, had laboured under a degree of discredit hardly inferior to the reproach attaching to the Ecclesiastical Courts themselves. But the imperfections of the Court of Chancery had now been nearly, if not entirely, done away with; and the time had obviously come to make the transfer with the certainty that the jurisdiction in respect to wills and to the property of deceased persons, dying intestate, would be regulated in a manner satisfactory to the community at large. There was, however, one reason which presented an obstacle, to accomplish such a transfer, and that consisted in a difficulty with regard to the question of compensating the persons whose interests would be affected by the change. To avoid this difficulty altogether, he would ask the House to go along with him in the recommendation that all the present officers of the existing Court, the proctors and registrars, the clerks of the see, and others, should at once become officers of the Court of Chancery, for the purpose of administering this new great jurisdiction, and that there should be given to them, for a certain definite period, the conduct of the business of the proof of wills in common form. He made this proposal because he was very far from being insensible to the value and importance of securing the services and retaining the experience and ability of that meritorious body of men, the Equity registrars, and the proctors of the Prerogative Courts. If this arrangement were accomplished—if they were so transferred to the Chancery Court, and the rights secured to them for a certain period, the duration of which might be hereafter considered, with respect to the business of proving wills in common form, then he thought that they would be precluded from all complaint, and, further-more, that their professional emoluments would be found not to suffer materially by the transfer. In this way the Legislature would avoid all that remonstrance and those objections which on former occasions had stood in the way of the desired reform. In connexion with the same subject, it would be necessary to remind

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the House that on the former occasions the Legislature had provided that the officers of the Ecclesiastical Courts should take their offices subject to future changes made by Parliament, and should not, upon such change, be entitled to compensation; and he adverted to the point in order to suggest the care which had been manifested at former periods to smooth the way for such a proposal as he now made. He found that the Act 6 & 7 Will. IV., c. 77, already alluded to, provided that—
"In case the office of judge, registrar, or other officer of any or either of the Ecclesiastical Courts in England or Wales (except the Prerogative Court of Canterbury) shall become vacant, the person thereunto appointed shall not, by such appointment, acquire any vested interest in such office, nor any claim or title to compensation in respect thereof, in case the same shall be here-after abolished by Parliament."
There would be no difficulty, therefore, he apprehended, in dealing as he had proposed with regard to the Peculiar or the Diocesan Courts, the rights of whose officers might otherwise stand in the way of reform; for he apprehended there could scarcely be an instance that would not fall under the operation of the Act he had referred to. All these changes having been effected, the jurisdiction, no longer ecclesiastical, on the subject of wills, would stand in this way. Whenever a person dies, having a fixed place of residence within the limits of the jurisdiction of any or one of the existing Diocesan Courts, provided his estate does not exceed a certain amount, it will be competent for his will to be proved in the Diocesan Court of his diocese; but if any question arises touching the proof, or there is any litigation or dispute affecting the will, the decision of the question, with the litigation, must be removed to the Court of Probate in London. The like rule will apply with regard to the effects of persons dying intestate; and, in the event of a person dying having no fixed residence in a diocese, or dying abroad, then the will and the administration of the estate shall be proved and granted by the Metropolitan Court of Probate alone. Wills will have to be transmitted, where-ever proved, to the Metropolitan registry. Administration will also be registered in London; and the utmost facility will thus be given for the proof and manifestation of title to real and personal estate; and the evils which at present prevailed from wills being scattered, and hid, almost in-
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accessibly, in the obscure depositories of the provincial courts, will be completely obviated. The consequence will be that the metropolitan tribunal, the Court of Chancery, will possess at once the power not only of determining the will, of directing it to be carried into effect, but finally of distributing the whole of the real as well as the whole of the personal estate. All questions will therefore be at once transferred to one final place of resort, namely, to the House of Lords, as the Court of Appeal, instead of being decided, as such questions now are, some in the Committee of the Privy Council, and some in the House of Lords, which being entirely independent jurisdictions, not unfrequently arrive at opposite conclusions. He had now sketched the principal provisions of the measure, which with other attending provisions it would be his wish to submit to the House of Commons; and he would urge those points on the House with the less reluctance, that they involved no more than had been approved of by successive Commissions, had been embodied in a variety of Bills, and had been confessed and acknowledged to be desirable alterations, from 1830 downwards. He might refer to the various attempts made to carry such changes into effect. In 1835 a Bill was brought in to the House of Commons in conformity with the recommendation of the Commissioners, who reported in 1832–3 for establishing one Probate Court in each province. In 1835 another Bill was brought in for the establishment of one Court only for both provinces. In 1836 a Bill was brought in for the establishment of one Court for England and Wales. In the same year there was a Bill proposing what he had now proposed, namely, one central Court and a variety of local Courts. In 1843 a Bill was brought in for establishing a single Court of Probate. There was another Bill of the same kind in 1844, and another to the same effect in 1845. There had therefore been in point of fact a series of attempts to carry the provisions he had sketched into effect; and though he was aware that there were many cases in which they would have to wait for a more full development, yet he thought they had both material and information to proceed at once upon, as well as being in possession of opinions of great distinction, from men of every variety of political creed, all concurring in the propriety and necessity of the establishment of one Me-

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tropolitan Court for the proof and administration of wills, such Court to be aided only and in a subordinate way by the provincial Courts. The other objects that would be accomplished by such a measure were important in other points of view; but in order that he might anticipate some possible objections, he might at once state that there would be in that measure a plan for the regulation of caveats in London alone; so that they might be entered in London, and then immediately communicated to the Diocesan Court. The result of that would be that there would be no necessity for searching a variety of Diocesan Courts for the purpose of ascertaining whether there was any objection to the proof of a will; the objection would in future be in the caveat in the Metropolitan Office. And there was another important point. The House was aware, no doubt, of the difference that arose in the administration of estates by reason of the imperfection of the jurisdiction of Ecclesiastical Courts to provide for the administration of property pending disputes. This would be entirely removed by centralising in the Court of Chancery the right of determining the probate of a will, and the right to grant administration; that Court before or pending probate would have full power to administer the estate; and consequently no difficulty, touching the collection of debts, the disposal of property, or other embarrassments that now constantly sprung up, would possibly occur. He had now completed his list of the benefits that he believed would flow from such a measure as he would, on a subsequent occasion, ask the leave of the House to bring in. He had only to say, in conclusion, that if it was perfectly understood that the present Bill was to lie on the table until he had that measure ready, he would not resist the second reading; but if that were not understood, he could not accede to the second reading.
MR. HUME: Would your large measure include Ireland and Scotland?
The SOLICITOR GENERALsaid, he was obliged to the hon. Gentleman for reminding him of that point. Undoubtedly it would be desirable to make probates granted in one country of universal effect in the other country; and by the measure he comtemplated, though there would be modifications to meet the different circumstances in Ireland, the probate of a will would be of universal effect and ac-
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ceptance throughout the United Kingdom.
MR. HENLEYsaid, be was sure that the House and the country would regret that some notice had not been given of the intention of the hon. and learned Gentleman the Solicitor General to develop a measure of such an extensive and important character, calculated to produce such beneficial results, so that all those who took an interest in the subject might have had the advantage of hearing the exposition which the hon. and learned Gentleman had just given—an exposition which, under existing circumstances, could not have been anticipated at a time when they were considering a Bill so very limited in its operation as the one immediately before the House. The hon. and learned Gentleman commenced his speech by referring to a Commission now sitting upon this as well as other subjects, and went on to say that it was not only his intention to deal with this subject whether the Commission should report or not, but he also indicated the outlines of an extensive scheme—not dealing in general matters, but in all its possible details. The hon. and. learned Gentleman had thus shown that in his own mind he had completed his measure, and he might, therefore, now, if he thought fit, lay such measure upon the table of the House. He (Mr. Henley) confessed he thought that the country had some reason to complain that a measure of this sort should have been announced in what seemed to him to be an irregular manner. As the hon. and learned Gentleman intimated, he held to himself the power of either bringing in this Bill at once, or of letting the present measure lie dormant for any period it might seem fitting to him that it should so lie; and it might be at the very close of the Session that the hon. and learned Gentleman would, perhaps, avail himself of the machinery of the present Bill to introduce all those changes which, by the usual forms of the House, should properly be introduced in an independent way, after due notice had been given, thus affording all parties an opportunity of giving the subject the fullest consideration. It seemed that in the measure which the hon. and learned Gentleman meant to bring forward, it was intended to render the acts of the Court in London, in respect to probates, of equal authority in the other parts of the United Kingdom. He wished to understand the hon. and learned Gentle-

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man correctly as to the extent of the proposal he had made?
The SOLICITOR GENERALsaid, he intended to propose that there should be a Court of Probate in Dublin corresponding to the Court in London, and the probate granted in either would run throughout the United Kingdom. That, he considered, was a very important addition to any previous proposition.
MR. HENLEYsaid, that he had so understood the hon. and learned Gentleman, and he repeated his observation, that upon a subject of such extensive importance he regretted that such a statement should have been made without notice, or in so thin a House. He also understood the hon. and learned Gentleman to say he would propose that all the country courts, except the Diocesan Courts, should be abolished.
The SOLICITOR GENERALsaid, what he intended to say was, that the Diocesan Courts were to have jurisdiction to grant probates of wills to a certain amount in common form, but not in a case of what was called contentious jurisdiction.
MR. HENLEYhad rightly understood the hon. and learned Gentleman when he used the word "peculiar," that he meant to include in that word Courts of archidiaconal jurisdiction. There was one part of the hon. and learned Gentleman's statement which he confessed he could not see the reasoning of. The hon. and learned Gentleman said that this measure, so far as the local machinery was concerned, was to be confined to probates in what was commonly called common form. The reason given for proposing to continue this jurisdiction to such Courts was because they were presided over by gentlemen of legal ability, who were quite competent to deal with the subject; and he then alluded to the Chancellors who had, he said, with great advantage to the public, presided over those Courts. The hon. and learned Gentleman, however, went on to say that he would require those Chancellors to have a good legal education, to a certain extent; but he did not say what kind of legal education this was to be. Now it so happened, as far as his (Mr. Henley's) experience went, that in proving a will in common form, the Chancellors in those country courts had nothing whatever to do with such business. The work was really done by the Registrar, or deputy Registrar.
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He therefore thought that it would be much more to the purpose to secure a competent legal education to the Registrars than to the Chancellors. The hon. and learned Gentleman went into the question of compensation somewhat largely; and, as he (Mr. Henley) understood him, having made up his mind to transfer the whole of the jurisdiction of those Courts to the Court of Chancery, he meant to transfer with it the whole of the clerks and officers of such Courts in London. He wished to know whether he had understood the hon. and learned Gentleman right, that it was his intention to have the common form of business disposed of by the Court of Chancery?
The SOLICITOR GENERALreplied in the affirmative.
MR. HENLEY: Well, but the hon. and learned Gentleman had not stated into what hands he meant to throw the contentious jurisdiction, nor had he informed them what was to be the position of the advocates of the Ecclesiastical Courts. He wished the hon. and learned Gentleman would state whether he intended that this business for the future was to be opened to the Bar at large, or whether it was to be confined exclusively to the proctors and advocates of Doctors' Commons?
The SOLICITOR GENERAL: It would be thrown open to the Bar at large.
MR. HENLEY: Then it appeared that so far as the business of contentious jurisdiction was concerned, which formed some considerable portion of the business of the proctors and advocates of Doctors' Commons, it would be carried in future to a Court in which such persons had no experience; and, therefore, the change would be tantamount to shutting them out from any share of the practice. The business would necessarily pass out of their hands to the hands of the solicitors and barristers of the Court of Chancery. He saw the hon. and learned Member for Tavistock (Mr. R. Phillimore) in his place, who must necessarily feel considerable interest in the measure of the Government, and he was somewhat curious to know how this declaration by the hon. and learned Solicitor General squared with that hon. and learned Gentleman's feelings. There was one other point to which he begged to draw the attention of the hon. and learned Gentleman—he meant that which had reference to the subject of compensation. He Un-

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derstood the hon. and learned Gentleman to say he intended to carry the whole of his scheme out, because, in consequence of the 6 & 7 Will. IV. c. 77, the parties were shut out from the right of receiving compensation.
The SOLICITOR GENERALwas here understood to express his dissent.
MR. HENLEY: Well, then, the hon. and learned Gentleman did not indicate in what way or from what fund the parties who were not privileged under the Act referred to to receive compensation were to receive this advantage. Under all the circumstances of the case he thought it would have been more fair to the question itself, as well as to the House and the country, if the hon. and learned Gentleman, instead of proposing to read the present Bill a second time, would have moved its postponement until they were informed whether it was or it was not the immediate intention of the Government to introduce a larger measure on the subject. He thought it would be hardly just and fair for the hon. and learned Gentleman to seek to engraft a measure of the extent indicated, upon a Bill of this kind, after it had passed through a second reading. He threw it out as a suggestion, whether it would not be more advisable to postpone the second reading of this Bill, than passing it for the purpose of letting it lie dormant for an indefinite period. The subject was of vast importance, and should not be discussed in this irregular manner. They should wait until they had the measure in all its details before them, when it would be entitled to much more serious consideration than even the clear and lucid statement of the hon. and learned Gentleman himself. In this subject the country had long taken a deep interest, and he could only hope that the hon. and learned Gentleman would be more successful in his efforts to deal with it than it appeared any of his predecessors had ever been; but he (Mr. Henley) thought that the long list of failures, extending over a period of eighteen years, to which the hon. and learned Gentleman referred, was by no means calculated to give him encouragement in his present course. In conclusion, he must express a hope that legislation on this subject would not be postponed until the end of the Session.
MR. R. PHILLIMOREbegged to tender to the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) his thanks for the kind and wholly unexpected sym-
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pathy he had bestowed on that body with which he (Mr. Phillimore) had the honour of being connected. He trusted the profession would escape the dreadful fate which the right hon. Gentleman had portrayed; and he was sure, at all events, that their claims would be duly considered in any measure that might be brought in by the Government. Of this, however, he was certain, that no body of persons had a right, upon the grounds of private advantage alone, to oppose their claims, whatever they might be, as an obstacle to the accomplishment of any great public improvement. He did not know whether the hon. and learned Gentleman the Solicitor General's statement was exactly in accordance with the forms of the House; but he was certain that every Member must feel grateful to him for one of the most clear and lucid statements upon a subject of great interest which it had ever been his good fortune to hear. He himself could vouch for the extreme accuracy of the hon. and learned Gentleman's statement. He was not aware that in any part of that luminous and historical narrative, there was a single error or misconception. Now he was free to admit, that the principle of the measure immediately before the House was excellent, and it was one which it was most desirable should be recognised; but it sometimes happened that the means a person used to bring about a certain result, actually defeated the end which he had in view. So it was in the present instance. If this Bill passed in its present shape, he submitted that the confusion which at present existed upon the subject, would be greatly, however unintentionally, increased. The hon. Member (Mr. Hadfield) who had charge of the Bill appeared not to be at all aware of the consequences of the provisions contained in the second clause. He (Mr. Phillimore) would endeavour to illustrate the mischief which such a clause, if agreed to, would occasion. A person dies in Dublin, who has some property in Dublin, some in York, and some in Canterbury. The value of the property in Dublin and York is 20 l. respectively, but in Canterbury the value of the property is 500,000 l., which is lodged in the Bank in London. Well, probate is taken out from the Dublin Court, and the party possessed of it comes over to the Bank in London, and, showing his authority, says, "Here is a probate of a will in which I am executor; give me the money standing in the deceased's name."

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The Bank, under such circumstances, must pay over this money, although the probate was taken out of a Court in a district where the amount of the property of the deceased was only 20 l. Well, as soon as the money was thus paid, another person who had a claim upon the property of the deceased takes out probate in the court of York, and on applying to the Bank of London, armed with his authority, he is informed that every farthing of the money had already been paid to the first applicant. The confusion might be still further increased by a person in Armagh putting in his claim, and declaring that the deceased died intestate, and, that as administrator duly appointed by the Court of Armagh, he laid claim to the whole of the personal property; and still further, by a person in the province of Canterbury or the province of London claiming as executor under a later will. There was no doubt a great advantage arising from the power which existed of entering a caveat, so as to prevent the granting of such probate; but, by the present Bill, how was a party to know that he had reason to apprehend some person was seeking improperly to possess himself of the property of the deceased, or to know where he was to enter the caveat? The House would at once see the embarrassments to which such a state of things must lead. At present a man could, by entering a caveat, prevent a probate being taken out in such cases; but under this Bill no such protection could be obtained. He had, therefore, no hesitation in saying that if the present Bill was passed, the mischiefs which now existed, instead of being remedied, would be very greatly increased. If the Bill was to be read a second time, he would recommend that it should be so under the stringent limitations proposed by the hon. and learned Solicitor General. He concurred in the opinion expressed by the right hon. Gentleman the Member for Oxford-shire, that the Registrars of the Diocesan Courts should be required to have as good a legal education as the Chancellors. He did not, however, agree with him in thinking that the business of common form concerned the Registrars exclusively, for some of the most difficult questions arising did not arise out of contentious jurisdiction of the Court, but out of cases which belong to the voluntary jurisdiction, and in which the parties were willing to abide by the decision of the Court. It should be also understood that it was the habit
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of every Registrar who properly understood and executed his duty to communicate upon all points of difficulty with the Chancellor, who was generally not resident. He hoped that the hon. and learned Gentleman the Solicitor General, in his measure, would take care to provide that the Registrar as well as the Chancellor should be officers duly trained by legal education for the duties which they had to discharge—that the duties of neither should be any longer performed by deputy—and moat especially he hoped that all sinecures would be abolished and rendered wholly impossible for the future.
The LORD ADVOCATEsaid, he wished to make a single observation in relation to the matter, in so far as it affected Scotland. The object of the sixth clause of the Bill before the House was not only to make the probate of a will in England good and effectual in Scotland, but also to affirm the principle that wills proved in Scotland should be good in England. That unquestionably was a very desirable thing, and one he was anxious to promote; but, as the Bill was now worded, there was not a single expression in it applicable to the mode of procedure in Scotland. As the hon. Gentleman who promoted the Bill had, however, expressed his intention of communicating with him on that point, and as he believed provisions might be introduced in Committee to make effectual the object intended, he would support the second reading of the Bill.
MR. COWANsaid, he had received a petition from the managers of fourteen life insurance companies in Scotland in favour of this Bill. They referred to the hardship and expense to which many persons connected with them, whether as share-holders or having their lives insured, were subjected in consequence of the present law, and prayed for a change. When it was considered that the liabilities of these companies amounted to 33,000,000 l., the opinion they expressed was surely entitled to great weight in that House. He had heard the statement of the right hon. and learned Lord Advocate with great pleasure, and he trusted the Bill would be allowed to go to a Committee, in order that necessary improvements might be made.
MR. HUMEsaid, he thought the hon. Gentleman who had just spoken could not have heard the statement of the hon. and learned Solicitor General, or he would not have suggested that the Bill should be pressed forward. A more able and com-

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prehensive statement he had never heard; and he must also say he was delighted with the observations that fell from the hon. and learned Gentleman below him (Mr. R. Phillimore), and which showed so excellent a spirit of self-sacrifice for the public good. There was one point about which he (Mr. Hume) wished, for the satisfaction of the people, to be clearly explained—he meant the sinecures incident to some of the Ecclesiastical Courts; and he desired to ask the Solicitor General whether the Bill he intended to introduce would make provision for the complete abolition of sinecures—whether, having a proper regard for vested rights, it would include the prospective abolition of all those sinecures which had long been the disgrace of those Courts?
The SOLICITOR GENERALsaid, in answer to the question of the hon. Member for Montrose, he had not the least difficulty in stating that it would be one of the provisions of the measure which he trusted soon to bring forward to abolish all those sinecures, which had been the opprobrium of the profession to which he belonged, and which he might also say had been the opprobrium of that House; because, when they spoke of sinecures that were at present enjoyed, and especially of one by a gentleman whose name had been very often before the country, Mr. Moore, they must remember that the House solemnly sanctioned the grant of the reversion of that office; and it, unfortunately, would be incumbent on him in the measure which he had to bring in to provide for the abolition, not only of a sinecure in possession, but of a sinecure in reversion, which must be done at the expense of the country.
MR. WALPOLEsaid, the only question now to be considered was, whether they should at once read the Bill now before the House a second time, or postpone the second reading until they had the larger measure promised by the hon. and learned Gentleman the Solicitor General before them. He confessed he did not think that they would gain anything by reading the Bill a second time. On the contrary, if he understood the proposition of the hon. and learned Gentleman correctly, they could not, in fact, embody in the present Bill the features of the larger measure that was to be proposed, without a distinct instruction being given to the Committee. For that reason, he suggested to the hon. Gentleman (Mr. Hadfield) who had the conduct of this Bill, to consent to its being read a
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second time that day month, instead of being read a second time on that occasion. By such an arrangement, they would have the opportunity of seeing what the Government really intended to do on the subject, and also of amending the present Bill, if it were thought advisable to do so. Another observation he wished to address to the hon. and learned Solicitor General, who, he assumed, represented the Government on this subject. The hon. and learned Gentleman had announced a very large measure for improving the jurisdiction of the Ecclesiastical Courts, or rather of altering the ecclesiastical law in reference to testamentary matters. In regard to those proposed improvements, so far as they had been explained by the clear and able statement of the Solicitor General, he (Mr. Walpole) might say that he entirely concurred with the hon. and learned Gentleman, who was already aware of the fact. Though he concurred in the opinions expressed by the hon. and learned Gentleman in respect to those improvements in the testamentary jurisdiction of the country, and as to the mode in which they were to be carried into effect, he believed that the hon. and learned Gentleman the Solicitor General, would find that when he was dealing with this great subject, it would be absolutely necessary for him to deal with the jurisdiction of those Courts in all other matters. He suggested that when the hon. and learned Gentleman brought in his Bill it ought to comprehend the whole of the jurisdiction now administered in the Ecclesiastical Courts. If, however, the hon. and learned Gentleman thought that such a measure would be too large to pass this Session, he (Mr. Walpole) would withdraw the observation which he had made. The principal matter, no doubt, for consideration, was the testamentary jurisdiction of the Ecclesiastical Courts. They ought, however, to recollect that if they took away that jurisdiction and transferred it to the Court of Chancery, they would leave the Judges and practitioners without any matter to remunerate them in order to induce them to continue in those Courts. He might say it was the intention of the late Government to introduce a measure on this subject, similar to that comprehended in the clear and able statement of the hon. and learned Solicitor General.
MR. HADFIELDsaid, he thought it only reasonable that the Bill should go to a second reading, as the expectations of the country on the subject were very great.

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At the same time, he believed there was no one more competent to deal with the question than the hon. and learned Solicitor General, and he was perfectly willing to give him time to bring forward his proposed measure. He would agree to put off the Committee for a month, and if at the end of that time the Solicitor General had not prepared his scheme, then he should be entitled to go on with his Bill. With that understanding he would propose to read the Bill a second time now, and to go into Committee on that day four weeks.
MR. MULLINGSsaid, he was surprised that any expression should have been used that day to consent to the second reading of this Bill, because he was perfectly satisfied this Bill could not be made to work without determining a great deal which was matter of principle, and ought to be discussed by that House. In cases of intestacy some of the next of kin might live in one county and some in another, in which there might also be property; and under this Bill there would be a race run as to which should get administration first. He thought the proposal which had been made that this Bill should be altogether postponed, for the purpose of allowing the hon. and learned Solicitor General to bring in his large measure, would be much more fitting than to allow the second reading of this Bill. For these reasons he should move that this Bill be read a second time that day six months.
MR. SPOONERseconded the Amendment.
Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
Question proposed, "That the word 'now' stand part of the Question."
MR. WALPOLEsaid, he wished to explain an observation which he had made as to the intention of the late Government on this subject. What he wished to say as to the intentions of the late Government was, that they meant to bring in a measure after the Report of the Commissioners they had appointed to inquire into the whole question of the ecclesiastical bodies had been received. His own individual opinion on that branch of the subject which related to the testamentary jurisdiction was pretty much at one with that entertained by the hon. and learned Solicitor General; but what he wished to say was, that that individual opinion was not the conclusion of the late Government,
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and that the late Government had not considered or come to any determination upon the matter.
The SOLICITOR GENERALsaid, he had understood his hon. and learned Friend precisely in the way he had now described.
MR. MALINSsaid, that every person who was cognisant of the inconvenience at present attendant upon the administration of property must concur in the object of the Bill before the House, and in the desirableness of removing those inconveniences. But the manner in which it was proposed to carry that object into effect, involved considerations of the highest importance; and he thought it could scarcely be accomplished by any private Member of the House, especially when they found that the Government themselves had this very subject under consideration, and that it had formed part of an inquiry by Commissioners appointed by Her Majesty. Although the hon. and learned Solicitor General had given them an elaborate description of a Bill which at some future period he intended bringing into that House, still he believed it would be better if a discussion were taken upon the Motion for leave to introduce that Bill, than upon the statement the hon. and learned Gentleman had now made as to what he should do hereafter. He was satisfied, however, that the evils sought to be corrected by the present Bill were so great, and the remedy required so urgent, that it would form one of the prominent subjects in the Solicitor General's measure; and he thought therefore it would be better to postpone the second reading of the Bill until that measure came before them.
MR. GEORGEsaid, the hon. and learned Solicitor General, as he understood him, intended that probate should extend not only to personal property but to real estate, and therefore the obtaining of probate for a matter of 100 l. in England might affect large real estates in Ireland; and if that were so, he thought full and due notice ought to have been given of so important a measure. There was another point in reference to Ireland. The Solicitor General proposed a concurrent jurisdiction in England and Ireland in reference to probates, and then they would have the Lord Chancellor of England deciding on the title of Irish estates, and an Irish Lord Chancellor deciding on the title of estates in England. He should therefore vote for the Amendment that the Bill be read a second time that day six months.
MR. R. PHILLIMOREsaid, he would suggest that the hon. Member for Sheffield (Mr. Hadfield) should comply with what appeared to be the general feeling of the House, and consent to postpone the second reading until that day month.
MR. HADFIELDsaid, he would consent to postpone the second reading for a month.
Amendment and Motion, by leave, withdrawn;—Second Reading deferred till Wednesday, 4th May.

AGGRAVATED ASSAULTS BILL.
Order for Committee read;—House in Committee.
Clause 1.
MR. PHINNsaid, that upon looking over the Bill, it had struck him that the punishments of the Bill were not sufficiently deterring in their nature to meet the evils which it was proposed to remedy. He had proposed to submit certain clauses which would extend corporal punishment in cases of assault. It was certainly a great anomaly that the power of inflicting corporal punishment should be still retained for larceny and other lighter kinds of offences, but that it should not exist as a means of punishment in more serious cases of assault. After the intimation which he had received from the Chairman of Committees, that the clauses with regard to felony would not come within the scope of the Bill, it was not his intention to press them on this occasion, but he thought that it would be desirable to consider them when the question of consolidating the whole of the criminal code was brought forward. He should, however, at a subsequent stage of the Clause, propose that power should be given to the magistrates to inflict corporal punishment in the cases contemplated by this Bill.
MR. BARROWsaid, he wished to move the insertion of words in the clause requiring that the trials of offenders should take place in open petty sessions. His anxious desire in proposing this Amendment was, that two justices sitting in a private room should not have power to convict a person upon the immediate impression which an ex-parte statement might produce. He hoped he should be pardoned for applying to his brother magistrates that which he felt applied to himself—Homo sum: humani nihil à me alienum puto; for he confessed he was not proof against the tears or the sufferings of an injured woman or a helpless child. The clause gave two justices of the peace power to inflict the punishment
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of confinement, with hard labour, for six months, in cases of aggravated assaults on women and children, and, looking to the amount of punishment, and the disgrace involved in it, he thought it important that the persons charged with these offences should not be deprived of the safeguard which the public hearing of a case always afforded. He was not desirous of sheltering the really guilty from due punishment, but he was anxious to give protection to the really innocent. He proposed, therefore, that the hearing of these cases should take place only in open petty sessions. It had been suggested that that would delay very much the punishment which ought to follow immediately upon the commission of those aggravated assaults; but he was not aware that the infliction of punishment without due deliberation for an offence, however aggravated, necessarily tended to improve the administration of criminal justice. That, at all events, had not been the character of legislation in this country of late years. The objection was, that in some counties the petty sessions were held but once a month. But he was surprised to hear this, for in his own and other counties with which he was acquainted, they were held twice a week. In cases of affiliation the system of conducting the inquiry in open court had been in operation for a considerable time, and he saw no reason why, in cases of aggravated assault, the same course should not be adopted.
MR. FITZROYsaid, he thought that the adoption of the Amendment would be tantamount to the rejection of the principle of the Bill. The object of the Bill was to enable the magistrates, before whom a complaint for violent assault upon a woman or child was brought, to adjudicate upon the case while the injury was recent and evident. The Amendment would necessarily lead to delay, and thereby frustrate the ends of justice, as in many cases if the hearing of the charge were deferred, such an amount of influence would be brought to bear on the complaining parties, that they would ultimately not come forward to press it. Cases of affiliation stood upon totally different grounds.
MR. HENLEYsaid, he presumed that by "open petty sessions," his hon. Friend (Mr. Barrow) meant the ordinary periodical petty sessions of the magistrates. As the Bill stood, he did not think it would, in the country districts, carry out the object of the proposer. The hon. Under Secretary for the Home Department (Mr.

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Fitzroy) had told them on a previous occasion that he wished these cases to be decided before the woman had been acted upon by those influences which were generally brought to bear against her; and they all knew that a woman, however angry at the first, was very forgiving as soon as the smart went off. But in the country the difficulty would be to get two magistrates together, and he believed that in ninety-nine instances out of a hundred there, the warrant or summons would in consequence be made returnable at the petty sessions. In practice, that, he thought, would be the result, whilst the delay would seldom exceed three days on the average. Further, he was of opinion that such cases as these ought to be sent to the petty sessions. For a very aggravated offence, the punishment would be a 20 l. fine, or six months' imprisonment at hard labour; and it was scarcely right to subject a man to that heavy punishment, unless the trial was held in such place, and under such circumstances, as that he might be able to obtain legal advice, if he thought proper. It was now, he was happy to say, the universal practice in this country for no decision of a judicial character to be adopted except in open petty sessions; and where a party was apprehended under a warrant, it was certainly of the utmost importance that he should not be condemned unless in a Court where he could have legal assistance if he chose to require it. He believed, also, that more substantial justice would be done by letting these cases go to the ordinary petty session tribunal—which would, in practice, be the operation of this Bill—than by any other mode that could be adopted. Under the first clause these cases were to be heard by two justices of the peace, or by one magistrate of a Police Court. That, he thought, seemed like an assertion that one "paid magistrate" was equal to two "unpaid."
MR. BARROWsaid, he meant by the words "open petty sessions," to necessitate the sending of these cases of aggravated assault to "open petty sessions;" for as the clause now stood one magistrate might send for a brother magistrate living in the next house, it might be, hear the case in his own house, and at once resolve upon a conviction. He was the more desirous of pressing his Amendment, because it was clear, from what had been stated by the hon. Gentleman (Mr. Fitzroy), that he did, in fact, wish that two justices should have it in their power to convict,
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even though it were on the spur of the moment.
CAPTAIN SCOBELLsaid, he fully concurred in the Amendment of the hon. Member for South Nottinghamshire (Mr. Barrow). As a magistrate himself, he thought that to give larger powers to two justices in cases of aggravated assaults, than they now possessed in ordinary assaults, would be most injudicious and improper. All assaults were now heard in petty sessions, and it would be reversing the natural order of things to give greater power to magistrates sitting in private, than to the petty sessions. The increase of punishment proposed also rendered it necessary that the inquiry should take place in the most deliberate manner. Let them remember that they were now establishing a precedent, and making the punishment fivefold what it was before. Indeed, he thought that six months' imprisonment was too heavy a sentence to allow the petty sessions to inflict. Four months, with hard labour, was ample for all aggravated assaults, and he hoped the clause would be altered in that respect.
MR. PACKEsaid, he apprehended that the intention of the hon. Member (Mr. Fitzroy) was simply to extend the powers of the Act 9th Geo. IV. to cases of aggravated assaults. The process under that Act was for one magistrate to issue his warrant against the defendant, who had then to appear and answer the charge before two magistrates. That was the mode in which common assaults were now dealt with; such, he presumed, was the way in which this Bill was designed to operate, and for his part he saw no great difficulty in carrying it into effect. With regard to the Amendment of the hon. Member for South Nottinghamshire (Mr. Barrow), he confessed he did not see the use of it. It was well known that in all cases heard before two magistrates the proceedings were conducted in open court, and that the parties were at liberty to employ legal advisers if they wished. He was somewhat surprised at the remarks which had fallen from the hon. and gallant Member who spoke last relative to giving magistrates the power of inflicting the punishment proposed by the Bill. The hon. and gallant Gentleman must have forgotten that at this moment magistrates had the power of committing for six months with hard labour on charges of stealing fruit and vegetables. He (Mr. Packe) thought the country had reason to be obliged to the

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hon. Member (Mr. Fitzroy) for introducing the Bill, and that the Committee ought to assent to its provisions.
MR. NEWDEGATEwas understood to say, that in order to prevent magistrates from laying themselves open to the charge of acting on the impulse of the moment upon ex-parte statements, it was desirable that the hearing should take place in open petty sessions at the time and place when and where the petty sessions were usually held, where the magistrates of the district, their clerk, legal gentlemen, and the public press were all present.
MR. BARROWsaid, he merely wished to have the opinion of the Committee on the question of "open petty sessions." If that were agreed to, he should then be ready to propose words for effecting the object mentioned by the hon. Gentleman.
MR. BONHAM CARTERsaid, the important point was to have the case heard, not at the "usual time," but the "usual place" for holding the petty sessions. No delay ought to occur in hearing such cases, and he thought that as the object of the Amendment was simply to insure publicity, there could be no difficulty in so wording the clause as to attain that end. If it were so framed as to provide that the place of hearing should be open, then they would have all the publicity that was necessary, and that without depriving the person assaulted of her remedy.
MR. BARROWsaid, that publicity would not be secured by a petty sessions held on any other than the usual day of bolding the petty sessions.
MR. PHINNsaid, he wished the Committee to refer to the Act passed a short time since, which gave the magistrates the power of inflicting corporal punishment on juvenile offenders, and in which ample provision was made for ensuring due publicity. He would suggest that, instead of the words proposed by the Amendment, the words "in open court" would be preferable.
MR. NAPIERsaid, he believed it would be impossible to carry out the substance of the clause if the words of the Amendment were adopted.
MR. CROWDERsaid, he would suggest, that the object of the hon. Gentleman who moved the Amendment would be obtained, whilst the difficulties that it had created would be removed, by inserting words to the effect that such cases should be determined by two justices of the peace
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sitting at the place where petty sessions were usually held.
After a few observations from several hon. Members, Mr. BARROW withdrew his Amendment, and the words suggested by Mr. CROWDER were substituted.
MR. STAPLETONmoved that the words "upon a female or upon a male child, under the age of twelve years," be omitted from the clause. He said that, by omitting these words, the effect would be to give a wider operation to the Bill. If the measure passed as it stood, the Committee would be consenting to occasional legislation, and placing upon the Statute-book a law which would not carry to their legitimate issue the principles which that House had affirmed.
MR. FITZROYsaid, he could not object to the punishment for aggravated assaults of a general character being made efficient; but by this measure he did not profess to deal with the general subject. On the contrary, he confined his attention, as much as possible, to a remedy for a particular evil. The clause, as it stood, did, in his opinion, meet the evil, and therefore he hoped the Amendment would not be pressed.
Amendment withdrawn.
MR. PHINNsaid, he believed this was now the proper time for him to introduce his proposal to give magistrates the power of inflicting corporal punishment in the cases contemplated by the Bill. He proposed to give them this power in the full assurance that it would not be abused, and to confine it by considerable restrictions. He regretted to say that two consecutive days hardly ever passed without some extraordinary case of violence upon females being brought forward in the metropolitan police courts; and one of the most able of the magistrates presiding in those courts (Mr. Hammill) had stated that he could see no end of the present system unless the Legislature conferred upon magistrates the power of inflicting corporal punishment. For his own part, he was of opinion, that in cases of this description they ought not to indulge in spurious philanthropy or mawkish sensibility. They ought to look at the person injured. It must be remembered that women rarely complained, and that children seldom brought their cases before the magistrates except some severe injury had been inflicted, the climax of a long series of ill-usage. It was not for

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angry words and even for blows that wives brought their husbands before the bench; for, as he had just said, the woman rarely complained of her husband, or the child of its parent, until brutality had arrived at such a pitch that life was insecure. It was from this point of view that he asked the Committee to consider the proposition he was about to make. There was a strong feeling abroad, he knew, against the infliction of corporal punishment; but let him suggest a personal case. Suppose any hon. Member in passing along the street saw some ruffian assault a woman or a child, would he measure the weight of the blow with which he would knock the fellow down. Then he asked the Committee not to look too much to the case of the person who was to suffer the punishment for this offence, but rather to those who, from their age and sex, were in want of the protection of the law. Corporal punishment was not so unusual upon the Statute-book as many hon. Members might be led to suppose; for the power of administering it had been conferred upon magistrates to a considerable extent. He found that by the 7 & 8 Geo. IV. c. 29, s. 39, that upon a second conviction for damaging shrubs to the amount of 1s., two justices of the peace had the power of ordering the infliction of this punishment. Upon a second conviction of stealing live or dead wood, the justices had the same power; and upon a second conviction for stealing vegetables, the magistrates might order the same punishment. Were not women entitled to the same protection as vegetables, or dried wood, or shrubs? He did not find that the powers thus given to magistrates had been abused, or that they had been much exercised; but magistrates, like other persons, were subject to the control of public opinion, and they would not recklessly inflict such a punishment unless in cases where public opinion went along with them. He believed, that in order to deter men from the offences to which this Bill related, and to render them scandalous, shameful, and disgraceful, public opinion should be in this country the same as it was in France and other parts of the Continent. In France a blow inflicted upon a man was deemed a very serious crime against the State; but we had regarded it, compared with offences against property, as one of a lower grade. But he hoped that by rendering it disgraceful a state of public opinion would be matured which would be more powerful than
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law itself in preventing the evil. As he had stated already, the evil had grown to such an extent that some stringent remedy was absolutely nescesary. He had carefully considered under what sanctions such a remedy could be provided; and, to use a rather hacknied phrase, it appeared to him that there were three courses open to the consideration of the Committee. In the first place, the person convicted might have the right of appeal. But this, as it appeared to him, would defeat the object; for the Chairman of the Middlesex sessions had assured him, that whenever the magistrates committed a man to the sessions for assaulting his wife, it was almost impossible to get the woman to appear against her husband. Such an instance had occurred that very morning. A case occurred in which the police magistrate, thinking his power not sufficient to punish the offender, who had endangered his wife's life, committed him to the sessions. But the woman would not appear. She could not be put under recognisances, because she was married. For these reasons he thought the appeal could not be adopted. Another suggestion was, that the magistrate should be empowered to empannel a jury, who should decide the question. But that would be a violation of principle. The right province of a jury was to decide upon facts. The fact of the assault in such cases was hardly ever in dispute. The question was, whether the assalt was sufficiently aggravated to draw down this punishment upon the offender. For this the jury could have no proper function. The third course was of another kind. He assumed that in aggravated cases the magistrate, if he thought proper to order the infliction of corporal punishment, would accompany it with some portion of imprisonment. He (Mr. Phinn) therefore proposed that no punishment of this nature should be inflicted until eight days after conviction, and that within twenty-four hours after conviction the depositions should be transmitted to the Secretary of State. It would then be open to the friends of the offender, or to the offender himself, to appeal to the Secretary of State. It might be thought that this was but a clumsy expedient. He was not wedded to it at all, and would accept any other that would effectually carry out the object he had in view. At the same time he commended the subject to the attention of the Committee, and hoped they would

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sanction the principle at least of his proposition.
Amendment proposed—
"Page 2, line 10, after the word 'paid,' to insert the words, 'and if a male to be privately whipped, in addition to such fine or imprisonment as aforesaid.'"
MR. FITZROYsaid, he believed the punishment proposed by the hon. and learned Gentleman would be quite inconsistent with the feeling of the age, and the spirit of modern legislation. That feeling was not excited in any sympathy for the persons to whom flogging would be applied, but against an exhibition which must tend to brutalise the public mind. When it was said the moral feeling of the country was lower than that on the Continent, that was of itself an argument against habituating the public to the sight of brutal punishments. He not only thought it would be ineffective and mischievous, but materially tend to defeat the object of the Bill, which was to inflict certain and speedy punishment, because if it were made imperative on magistrates to sentence offenders to be publicly or privately flogged, it would shake their inclination to convict at all under such circumstances. He was quite sure it would also tend to prevent complaints being made, even in cases of aggravated assaults. Considering that complaints would principally be made by wives against their husbands, or by women cohabiting with men, it was obvious that they would not be inclined to subject their husband or paramour to so degrading and brutal a punishment. The object of legislation was to draw public sympathy as much as possible towards the victim, and to throw as much odium as possible upon the perpetrator of the outrage. This proposal would have precisely the contrary effect. Whatever the crime, the sight of a man undergoing corporal punishment would direct public sympathy towards him, and divert it entirely from the person he had injured. He believed further that, as had often been found in cases of capital punishment, the offender would think himself exalted into a hero in the eyes of his associates, and merely nerve himself to bear the infliction with fortitude, without being made at all sensible of the heinousness of his offence. He believed nothing could be more fatal to the utility of this measure than the introducing a punishment abhorrent to the spirit of the public mind. Although corporal punishment might be inflicted in cases of outrage upon the Sovereign, in the last two in-
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stances it was not applied. If the principle were admitted, they had better go further, and adopt a lex talionis, and inflict all punishment, not by way of deterring, but by way of vengeance—they had better perpetrate on the offender the same injuries he had inflicted on his victim. The one system would be no more barbarous than the other, and he therefore entreated the Committee to resist the introduction of the words proposed.
MR. PHINNsaid, the words "publicly and privately whipped" were to be found in every Act of Parliament in which corporal punishment was inflicted; but he was quite willing that the punishment should be privately administered.
MR. NEWDEGATEsaid, he considered that the public were greatly indebted to the hon. and lerned Gentleman (Mr. Phinn) for the manly way in which he had come forward to propose the only effectual prevention of the brutal outrages in question. He did not think there was any public feeling against corporal punishment. There had been a great deal of maudlin philanthropy of late, but he was not prepared to say that a long imprisonment was the best way of meeting such cases. When corporal punishment had been inflicted two or three times, people would take warning, and the Act would fall into desuetude. Certainly the hon. Gentleman's idea of making a man a hero by giving him a whipping was a very strange one.
CAPTAIN SCOBELLsaid, he regretted that for the first time he must take a different view from that of his hon. and learned Colleague. Perhaps the hon. and learned Gentleman never saw a man flogged, for had he seen it, he thought he would not press his Motion. If their horse or dog offended them, would they tie the animal up and lacerate his back? He was sure they would not; but that was what they would do with their fellow-creature. They should recollect that flogging lacerated, cut through the skin, and if once seen, it was a sight which would never be forgotten. Objections were felt against its infliction under martial law, and those objections were of still greater weight against its introduction into the civil law. Could it be supposed for a moment that a man would ever forget that his wife had procured his being flogged? No. They would send back a scarified man to be as comfortable with her as he could under the circumstances. During the twenty-five years he had sat as a magistrate in petty

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sessions, he had never seen such a sentence passed. It would be harsh in the extreme, and he could not consent to increase the punishment beyond six months' hard labour.
MR. PACKEsaid, it was a new punishment, for although cases had been cited, in which the law awarded corporal punishment, he was not aware that it was ever acted up to, the rule being to limit it strictly to culprits under the age of sixteen years.
MR. AGLIONBYsaid, he would support the proposed Amendment. He did not advocate the infliction of corporal punishment as a general rule, but in cases of extreme depravity he thought it might be resorted to with good effect. At the Manchester sessions it was frequently ordered, and was found to work well. The hon. and gallant Gentleman (Capt. Scobell) talked of a man's skin being lacerated by the lash; but he did not seem to value the skin of poor women, whom the Bill was designed to protect. He did not think that a flogging would procure much public sympathy for the brute who should be convicted of ill-treating a woman. All of what were called gaol offences were punishable by the lash. He remembered a case at the Manchester sessions where a man who had been convicted took off his clogs and threw them at the Chairman's head. The man was immediately ordered to be taken back to the prison, and soundly flogged. The offence had never been repeated; and the punishment had had a very beneficial effect. He hoped the Amendment would be agreed to.
LORD LOVAINEsaid, he believed there were persons who could not be reached by any other punishment, and it was for that class, and that class only, which was so utterly degraded, that he recommended its infliction. He could not conceive how any parallel could be drawn between these crimes, which left with the victims effects perhaps for life, and any ordinary offences. He confessed he could not comprehend the distinction between a man who beat his own wife, and a man who beat another man's wife, except that the atrocity was greater in the one case than in the other. He should vote for the Amendment, and he hoped the words would be inserted.
VISCOUNT PALMERSTONsaid, that supposing public opinion were, for the time, to go with the proposition now made, public opinion, it must be remembered, was constantly ebbing and flowing, and it was
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impossible to say how soon the reaction would take place. The Committee should bear in mind what was the object of the Bill before them. The main object was to increase the punishment to be summarily awarded to every man brutal enough to commit violent assaults on women and children. He did not at all admit that a man was more entitled to commit these injuries upon his own wife, than upon another man's wife. On the contrary, he thought that it was a greater offence. His own wife was more entitled to expect protection, and another man's wife had her own husband to guard her from injury. Why had it been necessary that a summary mode of proceeding should be preferred in cases of this description? His hon. Friend (Mr. Fitzroy) had clearly explained, that if time were permitted to intervene between the offence and the complaint founded upon it, and the punishment to follow, those domestic influences of terror or affection which might be brought to bear, would defeat the ends of justice, and give impunity to the offender. Then let the House consider how this proposition would operate. They wanted, on the one hand, to encourage the victim to complain, and on the other hand to inflict a punishment sufficiently severe to deter from the commission of the offence. Suppose a wife to have had injuries recently inflicted upon her: if she felt that the punishment which her husband would receive would be a severe one, and such as would prevent the repetition of the offence, she would make her complaint, and seek the protection of the law; but if the punishment, besides being severe, were to be a degrading one, and one which would leave upon the husband marks which would remain for life, the wife would be deterred from making the complaint, because she would share in the disgrace which she would bring down upon her own husband and family; and, in the next place, by inflicting upon the man marks which would last for life, they would sow the seeds of domestic resentment, which it could not be the object of the Legislature to implant. The first objection applied to public whipping, which would be a disgraceful exhibition; and the wife would be pointed at by her neighbours for the rest of her life as the woman who had occasioned her husband to be flogged. He thought that that would tend adversely to the object which they had in view. Then it was said by the proposer of the Amendment that he would omit "public" flogging; that he would not

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go back to the days of the cart's-tail, but that there should be a private whipping. Now, what was the object of punishment? He held that it was not revenge upon the offender. We did not measure punishment in proportion to the degree of criminality attaching to the person who had committed the offence. If we did, it would be right to follow the example of other ages, and to pursue the offender with torture in imprisonment; we should inflict bodily punishment in prison adequate to the magnitude of the offence committed. But we had abandoned that system, and the main object of punishment in these days was by public example to deter others from committing the offence. It was for the protection of society, and not for vengeance upon the individual. If a whipping such as had been described by the hon. Member for Cockermouth (Mr. Aglionby) were inflicted upon a man for throwing his heavy iron-bound shoes at a Judge, it would probably not be very severe, and, if promptly executed and publicly made known, it would no doubt accomplish its purpose; but, in cases of the nature under consideration, if they were deliberately to inflict a slight whipping it would have no effect, while if it were to be so severe as to leave permanent marks upon the person, then it would be open to the objection which he had already stated—it would tend to produce lasting resentment between a man and his wife, and that was what the Legislature did not desire to do. The Bill of his hon. Friend, he thought, would probably answer the intended purpose. It gave to the magistrate power to increase the duration of imprisonment, to add to it hard labour, and in other cases, which he apprehended would not be very frequent, to add a pecuniary fine. Then, was it not better for the Committee to see what the effect of this amendment of the law would be? He thought that it would be successful. It offended no public feeling. Public feeling went with it. He would admit, even, that it went further; but he would rather go short of public feeling than exceed it. He said, then, let this amendment of the law be tried. If it should prove insufficient, Parliament, at some future period, could have recourse to stronger measures; but he really thought that it was wiser in Parliament to adapt its remedies to what was sufficient, than to run the risk of overstepping public feeling and sympathy and doing a mischief, perhaps, in spite of their best intentions.
MR. PHINNsaid, the principle of the noble Lord, of abstaining from legislation because of the flux and reflux of public opinion, would put an end to all reform, because there was no question on which public opinion might not change. It appeared to him that all who had argued against his Amendment had exhibited a morbid sympathy for the offender, instead of a proper and wholesome sympathy for the victim of his brutality. No magistrate would inflict this punishment in the case of a husband proceeded against by his wife, unless he saw that the brutality and barbarity of the man had reached such a pitch that they never could live together any longer. The argument of the hon. Gentleman the Under Secretary of State, that this provision was contrary to the whole tone and spirit of modern legislation, was based on false premises, as numerous Acts of Parliament, in the last twenty years, gave power to inflict corporal punishment. The noble Lord (Viscount Palmerston) preferred imprisonment; but his (Mr. Phinn's) objection was, that the punishment of prolonged imprisonment fell with the greatest severity on the wife, who frequently had to seek the protection of the workhouse. The existence of the power to inflict corporal punishment would prevent the necessity of its frequent application. The Statute-book teemed with Acts by which that punishment could be inflicted, and he hoped the noble Lord, to be consistent, would at once propose their erasure. With regard to its efficacy, a friend of his, the Recorder of a provincial town, found that the place was infested with London pickpockets, and having to pass sentence on a very gentlemanly specimen of the class, he told him he had contemplated imprisonment and transportation, but had not, perhaps, contemplated a whipping. The young delinquent began to cry and implore for mercy, which the Recorder granted on condition that he told his London friends that such would inevitably be the fate of the next that was convicted before him, and the place was never troubled with a London pickpocket afterwards. When Recorder of Portsmouth, he had adopted the same course, and with the same result.
MR. WALPOLEsaid, that, according to the speech of the hon. and learned Gentleman (Mr. Phinn), he ought to bring in a Bill for the public whipping of all pickpockets; and in the same speech the hon. and learned Gentleman advised the

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noble Lord (Viscount Palmerston) to bring in a Bill to repeal the power of whipping any persons at all. The hon. and learned Gentleman had reminded the Committee that the power of inflicting corporal punishment was not resorted to until other remedies had failed. Common prudence would suggest that they should attempt at any rate to put down these brutal offences by increased powers, instead of running the risk of outraging public opinion by adding a brutalising punishment when it could possibly be put down by other means. He agreed that public opinion would justify it; but he also agreed with the noble Viscount that it was extremely doubtful whether the public opinion would remain at the same point when the experiment was once tried. The hon. Member for North Warwickshire (Mr. Newdegate) said, for brutal offences men ought to be punished as brutes. Now, punishment was to deter people from crime, and to humanise and civilise those who had committed it. He believed firmly that by this Amendment they would brutalise, and not humanise, the persons whose feelings they wanted to correct. The hon. and learned Gentleman (Mr. Phinn) objected to imprisonment, because it deprived the wife of her protector; but would a man who had been whipped at the complaint of his wife be likely to go back and protect her? There was no chance of it; but there was a chance if the punishment was proportionate to the offence, of its having a reformatory effect. He believed that public opinion would go against a brutal punishment, and they would be compelled, very speedily, to change the law which it was attempted by this Amendment to enact, merely for the purpose of putting down an offence before having tried the experiment of putting it down by more ordinary means.
SIR JOHN SHELLEYopposed the Amendment, on the ground that the punishment provided by the Bill should be tried before recourse was had to the last and most degrading punishment which it was in the power of the law to inflict.
MR. HENLEYsaid, he objected to that portion of the Amendment which gave an appeal to the Secretary of State within eight days after the sentence had been passed, and before which time the punishment could not be inflicted. It showed that the hon. and learned Gentleman had not confidence in his own propo-
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sition, and that it was altogether a most objectionable plan.
MR. DEEDESsaid, he did not understand whether the vote which they were going to, involved that portion of the proposition relating to the appeal to the Secretary of State. If it did, he should, though very unwillingly, vote against the Amendment.
MR. PHINNsaid, that he had introduced that portion of the proposition to satisfy some friends of his own, who thought that there should be an appeal; but he wished to take the division upon the abstract question of giving power to the magistrate to inflict this punishment.
SIR JOHN PAKINGTONsaid, he wished to know in precise terms whether the hon. and learned Gentleman proposed to accompany his Amendment with the provision of appeal; because he was not prepared to vote for giving an appeal, but he was for giving the power to award corporal punishment.
MR. PHINNsaid, he would withdraw the clauses relating to the appeal.
MR. HUMEsaid, he should oppose the Amendment, for it was a retrograde step, after all the efforts which had been made to put an end to flogging in the Army and Navy.
Question put, "That those words be there inserted."
The Committee divided:—Ayes 50; Noes 108: Majority 58.
MR. PACKEsaid, he wished to propose the addition of words whereby magistrates should be empowered, if they thought fit, at the expiration of a sentence, to bind the party to keep the peace for any time not exceeding six calendar months.
Amendment agreed to.
MR. FITZROYmoved to add to the clause a proviso to prevent an appeal to the quarter-sessions against any conviction under the Act.
MR. BARROW,who had a notice on the paper that he intended to move a proviso for giving a power of appeal, similar to that contained in the Malicious Injuries Act, 7 & 8 Geo. IV., c 30, s. 38, said, that he could not agree to the Amendment which had just been proposed by the hon. Member for Lewes. He thought that in all cases of convictions under summary jurisdiction which involved imprisonment there ought to be a power of appeal, and unquestionably he thought there ought to be such a power in those cases which, like this, involved not merely imprisonment, but

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imprisonment for six months, with hard labour, and the disgrace of being convicted of an aggravated assault. He assumed, of course, that the person appealing was innocent, otherwise the appeal would do him no good.
MR. FITZROYsaid, he thought the Committee would agree with him, that to allow the power of appeal would destroy the whole principle of the Bill, which was to secure that summary conviction should be followed by speedy punishment. According to the notice which the hon. Member had upon the paper, twelve days might elapse between the day of conviction and the meeting of the quarter-sessions, and during that period the wife might be subjected to improper influences in order to induce her not to appear against her husband.
MR. HENLEYsaid, it was a fixed principle in all Acts of Parliament of this description, that if there was a penalty of imprisonment beyond two or three months, the power of appeal should be given, and he objected to any exception in the present case.
MR. PACKEsaid, he saw great difficulty in allowing appeals in cases like the present. With regard to what had been said by the hon. Member for Oxfordshire (Mr. Henley) about its being a new principle to refuse appeal in cases of assault, it was quite the reverse. By the 9 Geo. IV., c. 31, sec. 37, it was provided that magistrates should have summary powers to try cases of assault, and no power of appeal was allowed in those cases. It was intended to carry out the same principle in the present Bill, and he thought that they ought also to follow the same course with regard to appeals.
MR. BARROWsaid he would withdraw his proviso.
Amendment agreed to.
Clause, as amended, agred to; as were also the remaining clauses.
The House adjourned at three minutes before Six o'clock.