Sitting of 6 July 1857

MINUTES.
PUBLIC BILLS.—1° Militia Ballots Suspension; Metropolitan Police Stations, &c Insurance Companies; Mutual Companies.
2° Land Tax Commissioners; Names; Smoke Nuisance (Scotland) Abatement.

CAMBRIDGE BOROUGH ELECTION.

  REPORT
  House informed, that the Committee had determined,—
  That Andrew Steuart, Esquire, is duly elected a Burgess to serve in this present Parliament for the Borough of Cambridge.
  And the said Determination was ordered to be entered in the Journals of this House.

  ST. JOHN'S, CHESTER—QUESTION
  MR. SALISBURYsaid, he wished to ask the right hon. the Secretary of State for the Home Department if an Order in Council has been issued to close the graveyard attached to St. John's Church, in the city of Chester; the date of such order, and if the same has been enforced?
  SIR GEORGE GREYsaid, such an Order had been issued, and he had no reason to believe that it would be modified.

  RIVER DEE—QUESTION.
  MR. SALISBURYsaid, he would now beg to ask the First Lord of the Admiralty if he will lay on the table of the House copies of all correspondence which has passed between the Admiralty, the authorities of the city of Chester, and other parties in the counties of Chester and Flint, since 1840, respecting the state of the river Dee?
  SIR CHARLES WOODsaid, he had no objection to lay on the table such parts of the correspondence as the hon. Member desired. That correspondence, however, had gone on for the last sixteen years, and it was undesirable to entail upon the country the cost of printing the whole of it.

  CASTLE DITCH, CHESTER—QUESTION.
  MR. SALISBURYsaid, he would also ask the hon. Under Secretary for War if a plot of land under lease from the principal officers of Her Majesty's Ordnance to Mr. James Martin, dated July 3, 1851, and known as "The Castle Ditch," in the city of Chester, is required by the authorities for building purposes, and the nature of the erections proposed to be put on such land.
  SIR JOHN RAMSDENsaid, there was no present intention on, the part of the authorities to take a plot of land known as "The Castle Ditch," Chester, for building purposes.

STATUE OF RICHARD CŒUR DE LION.

  AQUESTION.
  MR. HANKEYsaid, he wished to ask the right hon. the Chief Commissioner of Works whether any decision has yet been made as to the spot where the statue of Richard Cœur de Lion, by Baron Marochetti, purchased by subscription, and presented to the nation in 1856, is to be erected.
  SIR BENJAMIN HALLsaid, no decision had yet been arrived at, as to the exact spot where the statue should be placed; but Carlton Gardens had been suggested.

  PETTY SESSIONS (IRELAND)—QUESTION.
  SIR GEORGE FORSTERsaid, he would beg to ask the Chief Secretary for Ireland whether the Treasury has come to any decision as to the unappropriated annual

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  balance of fines and penalties (Ireland) being applied in future in aid of salaries for petty sessions clerks; and if so, whether he is prepared to bring in a Bill this Session to provide for payment of petty sessions clerks by salary in place of fees, as at present?
  MR. H. A. HERBERTsaid, it was his intention to bring in a Bill in, he hoped, a very few days, to provide for the payment of petty sessions clerks by salary in lieu of fees, and also that a Bill was in course of preparation for applying the unappropriated annual balance of fines and penalties (Ireland) in aid of such salaries.

  THE "ONEIDA"—QUESTION.
  MR. H. BERKELEYsaid, he wished to ask the Secretary to the Treasury, in reference to the statement of the First Lord of the Admiralty that the steamer Oneida had been condemned by the Government surveyor, under what circumstances the said vessel was employed in the conveyance of Her Majesty's mails from this country and Australia, notwithstanding such Report; and whether it be a fact that he has offered to the Royal West India Mail Company to extend for two years beyond the time now prescribed the subsidy of £270,000, which they already receive from Government, provided they consent to amalgamate with the European and Australian Mail Company, the owners of the said steamer Oneida, and undertake the Australian mail contract.
  MR. WILSON, in reply, said, the Oneida was not employed for the purpose of conveying the regular mail to Australia. It no doubt carried a mail, but that mail was an ordinary transit one, which any other vessel might have carried. The circumstances to which his hon. Friend alluded were these:—The Oneida was one of the vessels offered by the European and Australian Company for the purpose of performing their contract. According to the rule of the Government, she was surveyed by the Admiralty surveyor at Southampton before she left this country. That survey took place on the 18th of October in last year, and the Oneida sailed on the 19th. On the 20th, the day afterwards, the surveyor reported to the Admiralty, and on the 21st the Admiralty made a Report to the Treasury; but of course it was then impossible to prevent the departure of the steamer. An intimation was,
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  however, immediately made to the company that the Oneida would not be accepted under their contract for the performance of the service. Before she returned, as was known, the Oneida broke down; but, he must repeat, she had not been accepted by the Government. With reference to the other portion of the question, it had been already suggested to him that an arrangement, such as that stated by his hon. Friend, might be carried out; but the Government had come to no conclusion upon the matter, nor had a formal proposition been made on the subject. When such a proposal was submitted, it would, of course, be considered with a due regard to the interest of the public.

  THE KRUGER COLLECTION—QUESTION.
  MR. STIRLINGsaid, he would beg to inquire of the hon. Secretary to the Treasury the name of the artist or amateur upon whose recommendation the collection of pictures formed by Herr Krüger were purchased for the National Gallery; and whether the purchase was effected with the knowledge and advice of the trustees of the National Gallery?
  MR. WILSONsaid, that the purchase to which the hon. Gentleman had alluded had been made a few years ago, when, in point of fact, the trustees of the National Gallery were in a state of transition. It took place immediately after a Report from a Committee of the House of Commons, which practically put an end to the old constitution of the Board of Trustees, and before the new constitution was established. The purchase had not been made with the advice or even with the cognizance of the trustees as a body, but under the immediate advice, he believed, of Mr. Dyce. Sir Charles Eastlake saw one of the pictures which was sent home, but he was in no way responsible for the purchase either of that picture or of the collection; neither were the trustees of the National Gallery.

  GUANO—QUESTION.
  MR. BAXTERsaid, he would beg to ask the First Lord of the Admiralty why no vessel of war proceeded to Bird Island, in the Pacific, before December, 1856, although, as it appears from the printed papers, Mr. Miller, Her Majesty's Consul at Woahoo, had made known to the commanders of all Her Majesty's ships that

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  touched at that port since August, 1854, and also to the Commander in Chief of Her Majesty's Naval Forces in the Pacific, the purport of Mr. Hammond's circular despatch of May, 1854, directing diligent search to be made for deposits of guano; and whether Bird Island has since been taken possession of by the United States?
  SIR CHARLES WOODsaid, that he could give no precise information upon the subject beyond that which was contained in the papers already before the House. He had no doubt, however, that the reason why no vessel had been sent to Bird Island was attributable to the demand upon our naval resources during the war.

PROPERTY-TAX AND POPULATION RETURNS.

  RETURNS MOVED FOR.
  MR. DISRAELIsaid, he rose to move an Address to the Crown for—
  "Returns of the annual value of all Real Property rated under Schedule (A) of the Income Tax, for the year ended the 5th day of January, 1857, in each County or Parliamentary Division of a County in the United Kingdom, exclusive of the Real Property in each Parliamentary Borough, comprised within each such County or Division:
  "Of the annual value of all Real Property, rated under Schedule (A) of the Income Tax, for the year ended the 5th day of April, 1857, in each Parliamentary Borough in each such County:
  "Of the Population of each County or Parliamentary Division of a County, from the Census of 1851, not including the Population within any Parliamentary Borough in such County:
  "And of the Population of each Parliamentary Borough within each County."
  THE CHANCELLOR OF THE EXCEQUERsaid, that it had not been the practice to grant Returns of this sort on the ground that it was not considered desirable to divulge their contents. He bad, however, no objection to make the present Return, inasmuch as it exclusively related to Schedule A; but if a similar Return should be moved for with respect to Schedule D, the Government would not consider themselves bound to agree to it.
  MR. DISRAELIsaid, that the Returns for which he had moved related to real property, and bore upon the question of the franchise. He had no intention to move for similar Returns under Schedule D.
  Motion agreed to.

  NEW WRITS—MOTION.
  SIR GEORGE GREYsaid that, in the absence of Viscount PALMERSTON, he rose to move the following Resolution:—
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  "That in all cases when the seat of any Member has been declared void by an Election Committee, on the ground of Bribery or Treating, no Motion for the issuing of a New Writ shall be made without two days' previous notice being given in the Votes."
  He felt the full force of the observations which had been made by the right hon. Member for Buckinghamshire (Mr. Disraeli) on Friday last, and he thought, under the circumstances, that two days' notice, as now proposed, would be preferable to seven days' notice, as originally intended. Two days' notice would prevent surprise in moving for a new writ, while it would not have the effect referred to by the right hon. Gentleman, of practically disfranchising a constituency during the whole of a Session or recess.
  MR. DISRAELIsaid, that it appeared to him that the Resolution, as now worded, was a just and expedient arrangement.
  MR. T. DUNCOMBEsaid, he was not at all surprised that the right hon. Gentleman opposite should cheerfully accede to the Motion proposed by the Government. On Friday he (Mr. T. Duncombe) had felt it his duty to propose the revival of a Resolution which was tantamount to a Standing Order of the last Parliament, it having been passed at the commencement of that Parliament at the instance of the noble Lord the Member for the City of London, He was sorry not to see the noble Lord now in his place, and indeed he thought the House ought not to dispose of this Resolution in the noble Lord's absence. It might be postponed for a week without any inconvenience. He protested against the course adopted by the Government, and thought it would be much better to adopt the Resolution in its original form, which required seven days' notice to be given of the Motion for the issue of a writ where a Member was unseated for bribery or corruption, and thus gave greater weight and solemnity to the proceeding. He had handed over his Resolution to the Government with the view of its being again proposed, certainly not with any expectation or belief that the Government was about to mutilate, and cripple, and fritter away that valuable Resolution in the way now proposed. The modification was proposed in consequence of something that had fallen from the right hon. Gentleman opposite, namely, that six weeks might elapse from the Report of a Committee to the issuing of the writ, in consequence of the evidence not being printed on which the House had to form an opinion. The seven

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  days' notice was originally agreed on in order that the House might have the opportunity of judging whether the writ ought to be suspended at all. It should be remembered that now the evidence taken before Committees was always printed from day to day; and he had ascertained that in a case of this kind, after a Committee had sat six or seven days, or even a fortnight, the evidence of each day being ready in type, and merely requiring to be put together, three days longer would be quite sufficient for it to be printed for the use of the House generally. Therefore the objection that a month or six weeks might elapse, did not at all apply. The object of the Resolution of the last Parliament, passed in 1852, was to enable the House to ascertain whether it was necessary that a Commission should be issued on a joint address of both Houses to the Crown, under Lord John Russell's Act, to inquire on the spot into acts of bribery and corruption. In the previous Parliament, commencing in 1848, it was only necessary to give notice of a Motion for the issue of a writ, no time being specified. The greatest inconvenience arose from this. The question of issuing a writ was a question of privilege. An hon. Member had nothing to do but give notice that he would move the issue of a certain writ, if it had only been suspended for a day. It was not at all settled at what hour such a Motion should come on. The mover might bring it on at any hour of the night; he might take advantage of the absence of those who were expected to oppose it, or might bring it on the next night. It was in consequence of that, that the noble Lord the Member for the City of London, in the following Parliament, amended the Resolution by requiring seven days' notice; and the House agreed to it. That Resolution had worked well all through that Parliament. The writs for five places were suspended in consequence, and Commissions of Inquiry were issued upon the evidence laid before the House. He hoped the House would not consent to fritter away that valuable Resolution in the absence of the noble Lord. [Cries of "Order!"] He thought he was not out of order. He should move, as an Amendment, the original terms of the Order of last Parliament, namely, that seven days' notice should be given, instead of two, as was now proposed. He would only say that if this proposal was a specimen of the noble Lord's promised Reform Bill, it was a very
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  bad omen for the future. He begged to move, as an Amendment, that seven days' notice should be given of any Motion for the issue of a writ.
  Amendment proposed, "To leave out the word 'two' in order to insert the word 'seven' instead thereof."
  MR. MILESsaid, it was not the case on Election Committees that the evidence was printed from day to day, though this was done on other Committees. Consequently there would be great difficulty in having the whole of the evidence struck off in a short time. But the real fact was, that any delay in the issue of a writ was only necessary to give sufficient time to enable the hon. Members who had sat on the Committee to be in the House, as on the statement of their opinions, and more particularly that of the Chairman, who always took voluminous notes, the House would be in a condition to settle whether, after the expiration of two days, the writ should issue. It would be in the option of the House, after that delay had taken place, either to delay the writ further, or to order it to issue. Of course, if it should appear to the House from the statement of the Chairman of a Committee that considerable bribery had taken place in any constituency, the House would exercise a sound discretion in delaying the issue of the writ until the whole of the evidence was before them. This it could do in two days, as well as if it were delayed for seven. He was decidedly in favour of the shorter time.
  MR. DIVETTsaid, that as far as his experience had gone, he was decidedly in favour of the Amendment. He did not think that two days was by any means sufficient. He could not at all understand how this compromise had taken place between the Government and the right hon. Gentleman opposite. A feature had arisen at the last election which called for the very serious attention of the House; he meant the number of cases where extensive bribery was proved to have been committed, but without compromising hon. Members or their agents. It was incumbent upon the House, if it meant to put down bribery, to order a prosecution in every case of that sort. It would be a perfect disgrace if these Reports were allowed to pass without steps being taken by the House to secure a prosecution in every case where bribery was proved to have taken place, but without the cognizance of the Member or his agents, though

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  of course hon. Members should not be held responsible for acts of which they were innocent. Unless this were done, it was a perfect farce to talk of putting down bribery or treating.
  MR. HENLEYobserved, that he thought the Government had come to a very fair decision, A very well-grounded jealousy had been expressed against the undue delay of a writ. As to prosecuting parties against whom bribery had been proved, the issuing of the writ had nothing to do with that. Of course no one would think of taking the step of moving that a prosecution for bribery should be instituted until they had the opportunity of reading the evidence. He thought two days would be quite long enough for the purpose proposed. It was no hardship to a constituency to have their writ delayed two days; but he thought a delay of seven days was unreasonable.
  MR. SOTHERON-ESTCOURTsaid, the seven days' notice had been a Standing Order of the House for the last five years; it had fully and completely carried out its object, and it would be very unwise in the House to depart from the precedent without sufficient reason. In 1848 a Resolution was come to that no writ should be moved for without notice, no time being specified. In 1852, when many cases of bribery were reported, it was thought desirable to fix the notice at seven days. A Resolution to that effect was drawn up by Lord John Russell, and he had the honour of proposing it. He believed that it had never operated in any way disadvantageously, either to the House or the parties interested. For his own part, he could not understand why the Government should propose a notice of two days rather than three or any other number, and he thought the House would do wisely in adhering to that course which had been sanctioned by experience.
  SIR GEORGE GREYsaid, it was a mistake to suppose that there had ever been a Standing Order on the subject; the Resolution in both cases was merely passed as a Sessional Order. The reason why two days was fixed on was that the writ might issue at the earliest possible period, provided, in the opinion of the House, there was no reason for delaying it further. As the House met at twelve o'clock on Wednesdays, it was necessary to require two days' notice, otherwise a writ might be moved on Wednesday morn-
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  ing, upon notice given late on the preceding night.
  Question put, "That the word 'two' stand part of the Question."
  The House divided:— Ayes 190; Noes 138: Majority 52.
  Main Question put, and agreed to.

  PROBATES AND LETTERS OF ADMINIS TRATION BILL—COMMITTEE.
  Order for Committee read.
  MR. MALINSsaid, that he would repeat the statement he had made on the second reading, that he was not about to offer any opposition to the Bill, seeing that it was in accordance with the Report of the Chancery Commissioners. On the contrary, he should support it on one under standing—that was, that compensation should be made to those whose prospects in life would be ruined by the Bill, namely, the proctors. He should not, therefore, offer any opposition to the Speaker leaving the Chair; but he, and those acting with him, did so with the full understanding, that if the Government did not assent to the introduction of such clause as would effect the object he had in view, every opposition would be offered ultimately to the progress of the Bill.
  MR. HADFIELDsaid, that he must deprecate the opposition of the proctors as unfair. The admission of the principle of compensation would involve an enormous sum, with the certainty, as far as could be ascertained, that the business of the parties would be immensely increased by the new Act. He protested, therefore, against the principle of compensation to a class of monopolists, who prevented justice being done to the country.
  MR. W. N. HODGSONsaid, that he did not rise for the purpose of opposing the House going into Committee on this Bill, but to put a question to the Attorney General in connexion with the new system it was about to establish, for he doubted whether the present Bill would effect any improvements in the existing practice in reference to probates and letters of administration. That point could only be determined by a knowledge of the scale of fees which it was proposed to levy in the new district courts. He thought, therefore, that the House was entitled to the fullest possible information on the subject of those fees before going any further with the Bill, that it might be seen whether

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  it would have the effect of making the probate of wills cheaper than formerly. Judging from what he had seen of the Bill, he was of opinion that, unless very material alterations were made in Committee, the proving of wills would not only be dearer than at present, but also less expeditious. Of late years there had been a feeling generally prevalent in favour of law being made as cheap and accessible as possible, and that feeling had been to some extent recognised both by that and the other House of Parliament; but that course had not been adopted in the present measure; for he doubted, if the measure passed into law, whether any economy would be found to result from it. For himself, he thought the present system was in the main much better adapted for the proving of wills than the Court of Probate about to be established. He should have thought the best course would have been to put an end to all the minor courts, and to establish a court in each diocese, with the power of proving wills to any amount. By this Bill, as it stood, an executor could only prove to the extent of £1,500 in any of the diocesan courts, so that where the estate was above that amount, probate would have to be taken out in London, which would be much less convenient than the proving a will in the diocese in which the testator died. He objected also to the proposed transfer of the contentious jurisdiction relating to wills to the Judges of the County Courts. He thought that a most objectionable clause, because the Judges had not been appointed to their present offices in consideration of their attainments in ecclesiastical, but of their attainments in common law; and why this new power should be given to them he was at a loss to conceive. He hoped, therefore, that clause would be modified in Committee. His opinion was, that where they had had a proper Judge of the diocesan courts in the country, very little, if any, complaint had been made against the present system of proving wills; and that the great odium which had been brought upon that system, arose from the enormous sinecures which had long existed in the London courts; but he did not think the present Bill would provide any remedy for this defect, or save any money to the country. He trusted that the hon. Gentleman the Attorney General would favour the House with the amount which the establishment of the new courts would cost the country, and the
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  amount of fees which suitors would have to pay.
  SIR HENRY WILLOUGHBYsaid, the House was going into Committee without any information whatever on the most material point of this important Bill. He (Sir H. Willoughby) had brought the question of compensation before the Attorney General on a former occasion, and the hon. Gentleman had stated that the House should have sufficient information on the subject. That information had not, however, been furnished. He (Sir H. Willoughby) wished, therefore, to know how many officers of the present courts were to receive compensation for their offices under the Bill? and how many Judges there were to be, and what was to be the cost? The enormous amount of compensation in this country exceeded the whole cost of the administration of the law in any country in the world. There were also twenty-one clauses in the Bill in red ink, and he should wish to know what was the meaning of that. He thought that the House of Commons, and not Her Majesty's Treasury, ought to settle the principle on which compensation should be granted, and that some information should be given on that point before going into Committee.
  COLONEL SMYTHsaid, he begged to support what had fallen from the hon. Baronet (Sir H. Willoughby). He (Mr. Smyth) admitted the necessity of legislation on this subject; but unless the House received a pledge that the proctors were to receive a sufficient compensation, he thought that they would be justified in not allowing the Speaker to leave the Chair.
  THE ATTORNEY GENERALsaid, that whilst he recognised the strong feeling which existed in many quarters in favour of compensation for the proctors, he must observe that on the present occasion two or three hon. Gentlemen had spoken demanding additional compensation for this body, whilst another hon. Gentleman had deprecated any compensation whatever. Every description of compensation had been offered, and each scheme would far better be discussed in Committee. Any statement on his part would only lead to a desultory conversation. It was, then, not from want of courtesy, but merely to prevent a waste of time in a general discussion of the question of compensation, that he asked hon. Gentlemen to allow the Bill to pass into Committee on the general promise that, when they came to the particular

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  clause of the Bill, the subject should receive the fullest consideration.
  House in Committee.
  Clause 1 agreed to.
  Clause 2.
  MR. COLLIERsaid, he rose to move to substitute in page 2, line 11, the words "Office of Probate" for "Court of Probate," with a view to further Amendments, the effect of which would be to give all the contentious business to the Superior Courts of Common Law. The business of the Ecclesiastical Courts was of two kinds—the common form and the contentious. The common form consisted of proof of wills with respect to which there was no dispute, and, as had been stated by the Lord Chancellor, might more properly be disposed of by a registrar than by a Judge. The contentious business included all the cases in which wills were disputed. The main questions arising in those cases were, whether the testator was sane, whether he was fit to make a will, whether he was under undue influence, was fraud practised, or was the will a forgery? This Bill did not give the determination of those questions to the new court, but provided that the new court should send them to the Superior Courts of Common Law. The Bill proposed to send a case before Court A, which was to send it to Court B, which Court B was to send it back to Court A. This principle he (Mr. Collier) contended was altogether a vicious one. To the question, what, then, would the new Judge have to do, the Lord Chancellor had supplied the answer—next to nothing. What he (Mr. Collier) proposed was, that as the common law courts were to have nine-tenths of the contentious business, they should also have the remaining tenth, and that consequently the whole of the contentious business should be transferred to the courts of common law, and that the non-contentious business should be done by a registrar under the direction of those courts. He would give the courts of common law powers to make orders, to frame issues, to cite parties, and to make persons parties to an issue, so that all questions in dispute might be settled. No one would deny that this was the cheapest plan, as it would save a court, and it was the simplest plan, because it did away with a jurisdiction by transferring the business to the ordinary tribunals of the country, as had been done in Scotland. There seemed to him to be only two objections—that the Judges of the Superior Courts of Common Law had not time to exercise this jurisdic-
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  tion, and that they were not competent to do it. As to the first, the County Courts had greatly relieved the common law courts of business. On the Western Circuit the cause list used to contain upwards of 500 causes. Latterly it had not contained above fifty. Owing to the Common Law Procedure Act the number of rules granted by the Superior Courts in the course of a year, from being upwards of 30,000, had become less than 3,000. That showed the House the extent to which the business of the courts of common law had been affected by the County Courts and the simplification of procedure. Moreover, a Commission was now sitting for the purpose of inquiring whether the number of the common law Judges might not be diminished with benefit to the public. Under these circumstances it seemed difficult to contend that the Superior Courts of Common Law had not time to do the business which he proposed to transfer to them. The next question was, were they competent to it? Several of the common law Judges had from time to time been members of the Judicial Committee of Privy Council, which sat as a court of appeal from the Ecclesiastical Courts, and he had never heard it alleged that those Judges were incompetent to perform that portion of their duties. It seemed to him that there were only two alternatives before the Committee. They must either have no new court at all, or have an efficient one. The Bill proposed to establish an inefficient court. He would therefore submit his Amendment to the Committee transferring the business to the courts of common law; and if not successful in effecting that object, he would then endeavour to make the new court as efficient as possible, by proposing that it should have the power of summoning a jury, and not be compelled to send the issues which arose in the cases that came before it to another court to be tried.
  MR. ATHERTONsaid, he hoped that his hon. and learned Friend would not proceed with the series of Amendments which he had propounded to the Committee. If his hon. and learned Friend had any hope of accomplishing the object which he had in view, he ought to have taken an opportunity of opposing the second reading of the Bill. The foundation upon which the measure rested was the establishment of a Court of Probate, presided over by a Judge. His hon. and learned Friend wished to dispense with the court and Judge, and to

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  substitute a registrar and an office. So sweeping an alteration ought not to be proposed by way of amendment in Committee. He thought that his hon. and learned Friend underrated the amount of business which would have to be transacted by the new tribunal. At the same time he admitted that there might be ground for complaint upon that score; but his lion, and learned Friend had himself pointed out the appropriate remedy—to give the new Judge more to do. It would be, a pity to constitute a Court of Probate, the Judge of which should be a mere transmitter of issues, to the other courts; but he, had some reason for believing that the Attorney General would, at the proper time when they came to the 32nd clause, assent to a proposition to the effect that the Judge of the Court of Probate, instead of being compelled to send for trial in the courts of common law all issues of fact arising before him, should have the power himself to dispose of them, An additional amount of business might be thrown upon the new Judge by intrusting to him the duty of hearing and disposing of Motions for new trials. The Bill was not the best that could be desired, but it was a great improvement upon the existing law, and as such he would give it his support. He hoped, however, that it would contain some provision for compensation to those who were likely to be affected by it.
  SIR FITZROY KELLYsaid, that as it was his misfortune to be unavoidably absent when the Bill was read a second time, he wished to take the present opportunity of making a few observations upon some of the principal points involved in the measure. He cordially and entirely approved most of the provisions of the Bill. Last Session he had the honour to submit to the House a measure which embraced, with few, small, and partial exceptions, the main improvements for which they were now indebted to the Government. They were all agreed in accepting that provision of the present Bill which at once and for ever put an end to the testamentary jurisdiction of the Ecclesiastical Courts. As the entire common form business was to be committed to the charge of local officers of long standing, and both the proving a will and granting of letters of administration were to be under the control of one court, he did not anticipate that the fees would he excessive; on the contrary, he thought they would be less than hitherto. He entirely approved all those clauses of the Bill, with some slight modifications, which
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  gave the local business to the local registrars. Among the many other inestimable provisions of the Bill this stood pre-eminent, that officers who must have been entitled on every principle of justice to large compensation for loss of office, might be continued in office, and if they were they would, of course, not be entitled to any compensation. That part of the Bill which would give to the proposed court jurisdiction over real as well as personal estate with regard to the proving of wills was a great improvement, and would go far to remedy the grievance of which his hon. and learned Friend the Member for Plymouth (Mr. Collier) had complained, because it would certainly prevent the Judge from having scarcely any business to transact, The Judges of the Courts at Westminster Hall were undoubtedly the best qualified Judges in the land to administer the law under this Bill, and if the Government were prepared to inform the House that those eminent personages had sufficient leisure time to undertake that task, he should most willingly vote for the proposition of his hon. and learned Friend. But so far as he had communicated with the Judges, he must say that it was extremely doubtful whether their labours at Nisi Prius were not so great as to preclude the possibility of their undertaking any additional business. For several days there had been no less than six Nisi Prius Courts sitting in the metropolis, each court sitting several hours, a day. If, however, the Government were satisfied that, without prejudice to their other duties the common law Judges could dispose of the business of the Probate Court, the expense of the new court might be saved. With respect to what had fallen from the hon. and learned Member, for Durham (Mr. Atherton), he had to remark, that if the contentious business was to be transferred to a common law court, it became important to consider how the business was to be conducted, and what jurisdiction was to be conferred on the new court. He had heard with great satisfaction what had fallen from the hon. and learned Member. The suggestion of the hon. and learned Member for Plymouth (Mr. Collier) so nearly resembled the plan which he had himself ventured to propose in his Bill of last year, that he trusted the Government would adopt it. It was stated by the Lord Chancellor, and by his hon. and learned Friend the Attorney General, that the main object of the Bill was this—

  981
  that the business of the court should be carried on and justice administered there upon common law principles. He felt bound, however, to point out that this could never be the case until the Bill was materially amended. In the first place, the fifth clause enacted that the Judge of the Prerogative Court of Canterbury should be the first Judge of the new tribunal. Now, he submitted that it was somewhat unusual to impose upon Parliament the responsibility of appointing the Judges; he apprehended that it was for the Ministers of the Crown to advise Her Majesty who should preside in Her Majesty's courts. He should therefore suggest the omission of this part of the clause, leaving the hands of the Government entirely free as to whom they might think fit to appoint. He should likewise suggest an Amendment upon another clause relating to the Judge. It was proposed that until the union of the Admiralty with the testamentary jurisdiction took place the Judge should receive a salary of £4,000 a year only, whereas the permanent and final salary was to be £5,000. Now, as it was essentially necessary that the Judge of this new court should be at least upon an equality in point of station, experience, learning, and ability with the Vice Chancellors and the Puisne Judges of the courts of common law, he saw no reason why he should not also receive the same salary. With regard to the rules and regulations for the conduct of business in the new court, the only further change necessary was that to which both his hon. and learned Friends who had just spoken had referred, and which would make this Bill exactly conformable to the measure introduced by him in the last Session. The duty of transacting the whole business of this court ought to be imposed upon the Judge. If he were competent—and no doubt he would be—there was no reason why he should be a mere minister in the office held by him, and should send issues to be tried by other courts; he ought to be enabled to try cases in the same way as other Judges in Westminster Hall. The result would then be, that while the common form business was left in other hands, and those best qualified for it, the contentious business of the country, with the exception of that portion of it intrusted to the County Courts, would be tried by the new tribunal in London, which would decide on all questions of law and of fact, with the aid of other Judges who might be called
  982
  upon to render assistance. With the single exception of issues to be tried at the assizes, which he would have the same right to direct as the Vice Chancellor, the new Judge would thus have jurisdiction to determine all causes relating to wills in his own court. It had been observed that the new tribunal would have too little to do, at all events until the Admiralty was united with the testamentary jurisdiction. He had already suggested—and he doubted not that the suggestion would he adopted by the Government—the introduction of a clause enabling the Judge of this court, in case Her Majesty required his services, to sit as a member of the Judicial Committee of the Privy Council. If, therefore, it should happen—though he apprehended no such thing—that at certain periods of the year the Judge should have too little to do, he would then be enabled to render assistance in the administration of justice upon the Judicial Committee, which sat, he believed, for some fifty or sixty days in the year, and would then have ample occupation. Under all the circumstances of the case, he hoped his hon. and learned Friend the Member for Plymouth would not deem it necessary upon that occasion to press his Amendment to a division.
  MR. MALINSsaid, he should oppose the Amendment. His hon. and learned Friend (Mr. Collier) proposed to send all contentious business to courts of common law, leaving a registrar to deal with common forms. That Amendment raised a very important point, and he was surprised that his hon. and learned Friend had eat down without attempting to show how it was to be carried into effect, There were 25,000 wills and administrations in England every year, or nearly eighty a day. How, he asked, was that mass of business to be got through a court of common law? This Bill was mainly founded upon the Report of the Chancery Commissioners. And he (Mr. Malins) would remind the Committee, that they stated in their Report that the probates of wills and granting administrations were not mere subjects of registration; that they often involved delicate points, the neglect of which would be very prejudicial to the public interest; and they refused to recommend the transfer of this business to the Court of Chancery or to any court generally occupied by other matters, believing that it should be transacted by no court in which testamentary jurisdiction was not the primary occupa-

  983
  tion of the Judge. They also stated, that they carefully considered the question, but were of opinion that the machinery of the courts of common law was not adapted to the transaction of the testamentary jurisdiction of the country. Out of the 25,000 probates of administration taken out every year, there were not upon the average more than 100 contentious cases. How, then, were they to deal with the enormous quantity of common form business? His hon. and learned Friend the Member for Plymouth (Mr. Collier) said, "by means of a registrar;" but the Commissioners stated in their Report, that it was of the highest importance that the common form business should be controlled by a Judge eminently qualified by his knowledge of that branch of the business to decide, and to decide immediately, all questions which might arise. He apprehended that the Committee would be of opinion that the Report of the Commissioners ought to be adhered to, and that it would be out of the question to refer this business to the courts of common law. The question arose, however, whether it would not be better to give the Judge of the testamentary court the power of summoning a jury over which he might preside, instead of sending the contentious business to be tried by the common law courts, and this he thought was a question which deserved consideration. His hon. and learned Friend the Member for Suffolk (Sir F. Kelly) had suggested that there would be a great increase of business in consequence of the court having jurisdiction over wills of real estate, which the Court of Probate had not hitherto had to deal with. It was very seldom indeed, however, that men made more than one will in order to dispose of the whole of their property—personal as well as real. In extraordinary cases, a person might wish to dispose of his real property so differently from his personal property, that he might make two wills; but the instances were very rare. He (Mr. Malins), in an experience of twenty years, did not remember more than five instances in which a will affected the real estate only. One will usually disposed of both personal and real property, and then it was necessary to be proved. The additional business brought to the court, therefore, in consequence of giving it jurisdiction over real estate, would not be appreciable. He would next say a few words with regard to the supposed occupation of the new Judge. If that functionary should be
  984
  appointed a member of the Judicial Committee of the Privy Council, ample provision would be made for the employment of any time he might have to spare in his own court; but the Committee need not be afraid that he would have much of that time; and in any case it would be better that he should be underworked than that he should be overwhelmed with business. He (Mr. Malins) had only further to observe that no new public charge would be incurred by the establishment of the proposed office, because the personage who would receive the appointment would be the Judge of the existing Prerogative Court.
  SIR FITZROY KELLYsaid, that the statement which he had made, and to which his hon. and learned Friend (Mr. Malins) had referred, had merely a reference to the fact, that if there was a will for the personal property and a will for the real estate, the former only was proved at present in the Prerogative Court, but that the will in reference to the real estate should also be proved before the proposed new court, and that the court would by that means have an additional duty to discharge.
  MR. BOWYERsaid, he entirely concurred in the principle of the Amendments proposed by the hon. and learned Member for Plymouth, because they tended to get rid of a most unscientific distinction of jurisdictions. Under our present system, there was what was called a testamentary jurisdiction; but the distinction between testamentary and other jurisdictions with regard to questions of property was a purely historical distinction, and was based upon no one principle of jurisprudence or policy. If a court were required to administer wills only, why should there not be a court of leases and a court of mortgages? He contended that the distinction was ridiculous, and that its absurdity was shown by the fact that, after all, there were many cases with regard to wills which could not be decided exclusively by the testamentary jurisdiction. With respect to the amount of occupation that would be provided for the Judge of the new court, it was avowed that he would not have enough to do if he had jurisdiction only over contentious cases. But with respect to the business in. common form, he (Mr. Bowyer) wanted to know why a probate should be necessary for a will any more than for a deed. There ought to be a registry of wills and of deeds also; but probate he held to be an error which had resulted

  985
  from the history of the Ecclesiastical Courts and from the separate jurisdiction in regard to wills. If a will were not disputed, why should probate be required? He knew a case in which, in consequence of the existing requirements of the law, much delay and needless expense had been incurred. A will, which was altogether undisputed, happened to have mentioned in one part a single executor only, and in another the word was written in the plural number. When the will was sent up to the Prerogative Court in London this discrepancy was discovered, and, though everybody concerned was perfectly satisfied with the will, the question went before the proctor, and then to the registrar. The attorney in the country had to come up to London several times, and a bill of £20 or £30 was run up, which, after a delay of two months, the parties had to pay, though the validity of the instrument was completely undisputed. Such a case was sufficient to demonstrate the absurdity of the proposed jurisdiction over undisputed wills. Understanding that the principle of the Amendment which had been moved by his hon. and learned Friend the Member for Plymouth was, that the place where the common form business was to be transacted should be the office of a registrar, and not a court, while the contested business should go to the common law courts, he should give his support to it.
  MR. ATHERTONobserved, that he could not agree in the statement of the hon. and learned Member for Plymouth, that the courts of common law had not at present sufficient business to employ them.
  MR. COLLIERexplained. He did not say that they had not sufficient to employ them, but that they would be able to transact the business he proposed to transfer to them.
  MR. ATHERTONsaid, that the result of his experience was that, though, to the credit of the courts, a certain kind of business had diminished of late years in consequence of interference on the part of the Legislature—the scandalous business, he called it, such as that whereby a person who had put his name to a promissory note was enabled to force the holder of it to recur to costly litigation before he could recover—yet business of another kind had very much increased. Appeals had multiplied five or six fold, and a single case of appeal from the Queen's Bench must be heard by the staff of the other two courts. Business had, indeed, so much increased,
  986
  that it was hardly possible to obtain a sufficient attendance of Judges for sittings in error and for the ordinary sittings out of term; and where one court used to sit for the disposal of cases before juries, two were now continually sitting for that purpose. Therefore, though he had formerly approved the proposition of the hon. and learned Member for Plymouth, yet he had not approved it as an Amendment upon the present Bill, and it must be borne in mind that a statement of the business of the courts made two years ago was not a statement of the business in the present day.
  MR. WHITESIDEsaid, he wished to suggest to the Government the justice and the expediency of allowing parties to prove wills over £1,500 before the local courts. It was just as easy to prove a will of £30,000 as a will of £300, and people in the country ought to have the option of having recourse to the cheaper and more expeditious mode of proceeding, instead of being obliged to come to London.
  MR. AYRTONsaid, he hoped the important question involved in the Amendment would not be decided on the narrow issue of whether the Judges of the courts of common law were fully occupied or not. He conceived that the Bill was founded on the soundest principles of law reform in placing the jurisdiction with respect to common form business and contested wills in one single court, and not allowing it to be exercised by any Court at Westminster to which any suitor might choose to resort. It was at all times difficult to distinguish between ordinary and contentious proceedings, because questions might arise in respect to the former class of cases in which the opinion of the Judge would be required. There was an immense number of cases of what he might term an intermediate description, between those which usually came before the Court of Chancery and the ordinary Probate Court, and he was of opinion that they should be submitted to a court over which one Judge of great experience in such matters should preside. But if questions arose with reference to a will or wills, sanity or insanity, they should try the question by summoning a jury just in the manner in which issues were sent to be tried from the courts of equity at present. He could not conceive that there could be a greater error than to enunciate the doctrine that it was not consistent with the principles of English jurispru-

  987
  dence to set up distinct courts for the purpose of dealing with distinct classes of questions. On the contrary, they found the Queen's Bench dealing with a particular description of cases arising out of criminal law, the Court of Exchequer took cognizance of all revenue cases, and the Common Pleas had a distinct branch of jurisprudence intrusted to its jurisdiction. He thought, therefore, that the proper course was to remit questions relating to the validity of wills and the granting of administration to a separate and distinct tribunal, and he considered that, such a principle being admitted, the court so established should have complete and exclusive jurisdiction over the matters which came within its cognizance. He did not dispute that in the Colonies, where the community was much, smaller, it might be necessary to have one court to take cognizance of all these matters; but he contended that in a large and highly civilized society, such as existed in Great Britain, the same advantage would be found from the division of labour in the administration of justice as was apparent in everything else.
  MR. DUNLOPobserved, that at the time of the Reformation all the Ecclesiastical Courts in Scotland were abolished, and a Central Court of Probate was established in Edinburgh, with provincial Commissioners. About thirty years ago these district Commissioners Were merged in the sheriffs of counties, whose duties were somewhat analogous to those of County Court Judges in this country, and the jurisdiction of the Central Court of Probate was transferred to the Court of Session. He only wished to state that, under this arrangement, no difficulty had been experienced in dealing with the business relating to the administration of wills in Scotland, but he was unable to judge whether the business of the common law courts in this country would preclude their undertaking similar duties.
  THE ATTORNEY GENERALsaid, it was his desire to speak as little as possible while the Bill was passing through Committee, but it would hardly be courteous to his hon. and learned Friend if he permitted his Amendment to pass without a few observations. The object of his hon. and learned Friend's Amendment was to commit the testamentary business of the country to the Superior Courts at Westminster Hall, where it would be transacted by the fifteen Judges. Hon. Members must, however, be perfectly aware that, in
  988
  consequence of the peculiarities of the law relating to this subject, it was necessary that it should be administered by persons possessing great experience and a thorough knowledge of the mode in which the business had hitherto been transacted. With regard to the observations of the hon. Gentleman who last addressed the Committee, he probably had the law of Scotland in his mind, but the law of that country was very different in this respect to the laws of England. Many hon. Members were doubtless aware, that in Scotland every document, however informal, purporting to be a will of personal estate, might be at once admitted to confirmation, and that consequently little care or legal skill was required in receiving such instruments and giving them confirmation. In the first year of the reign of Her present Majesty a statute was passed which effected a great improvement in the previously existing law of England with reference to wills. That statute rendered it necessary that a great amount of care, and even of legal skill, should be applied to such instruments before they were admitted to probate. He had been surprised to hear an hon. and learned Friend of his express an opinion that the whole business of proving a will was really a work of Supererogation. Hon. Gentlemen must remember that when a man died it was necessary to constitute a representative to distribute his estates, in order to prevent a scramble for the property. Who that representative should be was determined according to the tenor of the will itself if the testator left directions on that point; but if not, it must be determined by certain rules of practice. In a great variety of cases, no doubt, there Was no contest, but as persons were permitted to make their own wills, instruments of the most irregular and imperfect character were constantly brought forward for proof. Those documents frequently contained obliterations, erasions, interlineations, and alterations; it was often difficult to ascertain whether such changes were intended to be final, or what was technically termed deliberative; and very close investigation of a large proportion of the 25,000 wills which were annually proved, was necessary in order to arrive at a satisfactory conclusion as to whether the requirements of the Statute of Wills had been complied with. The duty of making this investigation, which devolved upon the Judges, was most onerous and important, for, if a will which ultimately turned out not to

  989
  satisfy the statute was admitted to probate, or if it should prove that a previous will was in existence, the consequences might be most calamitous. If probate was granted to the wrong will, the person constituted representative of the deceased might go to the Bank of England, or to any public company, and possess himself of stock or personal property to a large amount; and if such instrument should subsequently turn out to be invalid, the new representative might call upon the Bank or the company to pay a second time the sum which they had paid to the alleged representative of the testator. The business, therefore, of ascertaining what wills ought or ought not to be admitted to probate, when exercised with regard to the whole of this kingdom, required considerable time and care, and could only be duly performed by practised and experienced persons. He did not think it possible that such a duty could be discharged by the fifteen Judges. If it were thrown upon them it could only be performed in chambers; the consequence would probably be that one Judge would apply a rule to a particular set of cases, while the next day another Judge might lay down a precisely contrary regulation, and the most destructive discrepancies would thus arise. He considered, therefore, that the business ought to be committed to one court, where it would be governed by uniform rules. In addition to this he had just received a communication from the Lord Chief Justice, stating that it would be physically impossible for the common law Judges to undertake the discharge of this business, whether of the common form business merely or of the contentious jurisdiction. The Report just received from the Commission appointed to inquire into this subject and which would be published in a few days, also showed that it would be impossible to add to the duties of the common law Judges without injuriously affecting the interests of the country. In order to get some notion of the amount of common form business, he had caused inquiry to be made, and he found that in two days during the ordinary business transacted in, the Prerogative Court of Canterbury, fourteen documents regarding wills were reserved for the personal examination of the Judge, in addition to the business which the Judge performed in court. The Committee would therefore see how much time must be devoted to the business of the court when the testa-
  990
  mentary business, not of the province of Canterbury only, but of the whole country, was submitted to one Judge, more especially if the Judge were also to be the Judge of the Court of Marriage and Divorce. It would, at all events, be absolutely necessary to have a distinct tribunal, and a Judge of the highest order of mind to preside over it. His regret was that the powers to be given to this court were not larger than those proposed to be given by the Bill. It was thought desirable, however, to follow as closely as possible the recommendations contained in the Report of the Commissioners, but he concurred in the recommendations expressed by many of his hon. and learned Friends, that the Judge of the new court should have the power of deciding issues when they arose within the jurisdiction of his court, and when they might be conveniently tried before the Judge. It would probably happen that, instead of having issues sent to a jury, the parties would often be wise enough to request the Judge to try the cause, and himself discharge the functions of a jury. It was, in fact, impossible to comprehend all the various duties that the Judge might have to perform, and instead of being open to the imputation of having nothing to do, his apprehension rather was, that if the Judge of the Court of Probate also became Judge of the Court of Marriage and Divorce, his time would not be adequate to the discharge of all these duties. He proposed to give the Judge a power of trying all the issues that arose in his court, but if it were found that these issues could be more conveniently tried in the country, or if the time of the Judge were so occupied that he could not try them, he would have the power of sending them to a common law tribunal. As it was proposed that the Judge of the new court should sit in Westminster Hall, where he might have the assistance of the most competent members of the common law bar, there was no reason why the Judge should not try all the issues that came before him. He (the Attorney General) would not enter into the various questions which the Bill might give rise to, but he hoped to be able to give such explanations on each clause, as to satisfy the Committee that the Bill had been framed with care and caution.
  MR. COLLIERsaid, he was gratified to find that the hon. and learned Member for West Suffolk (Sir F. Kelly) concurred with him in thinking that the Courts of

  991
  common law were the best possible tribunals for the exercise of this jurisdiction, and he hoped that at some future time the House might legislate in this direction. He did not share in the apprehension of the hon. and learned Attorney General, to the effect that the common law Judges could not deal with questions of this kind without giving rise to conflicting decisions. No one could doubt their ability to do so, and he thought that by arrangement among themselves they might so simplify the business of the courts that no inconvenience would result from giving them this additional jurisdiction. In the face, however, of the statement made by the Attorney General, that it was the opinion of the Lord Chief Justice of England that he could not deal satisfactorily with this excess of business, he would not press his Amendment. He would not allow his own peculiar views upon a particular point to stand in the way of the final settlement of this question, which was so devoutly desired by the country at large; and, therefore, as it was now determined there should be a Court of Probate, he would devote his attention to making that court as perfect as possible.
  Amendment, by leave, withdrawn.
  Clause agreed to.
  Clauses 3 and 4 were also agreed to.
  Clause 5.
  MR. M'MAHONsaid, the clause enacted that the Judge should be an advocate of ten years' or a barrister of fifteen years' standing. He did not see why the barrister should be of five years' longer standing than the advocate.
  SIR FITZROY KELLYsaid, that the usual qualification for a Judge of the Superior Courts of Westminster was that he should be a barrister of fifteen years' standing, and for a Judge of the Ecclesiastical Courts that he should be an advocate of ten years' standing. The clause was, therefore, in strict conformity with usage. He wished to express his gratification at the speech of the Attorney General, as he thought the Committee very much indebted to the Lord Chancellor and to his hon. and learned Friend for having brought the Bill into such a shape as would, he thought, ensure its passing into a law during the present Session. He would suggest the omission of the proviso to this clause.
  THE ATTORNEY GENERALsaid, he was willing to omit the last three lines of the clause. It was possible that the right
  992
  hon. Gentleman who was now Judge of the Prerogative Court of Canterbury might not desire to accept the new office of Judge of the Court of Probate. It would be a great good if he did, but the clause, as it stood, laid an imperative obligation upon him to be the first Judge of the Court of Probate.
  SIR FITZROY KELLYobserved, that the omission of the proviso would by no means preclude the Government, if they thought fit, from appointing the learned gentleman who now occupied the position of Judge of the Prerogative Court to a similar position in the new tribunal if he should be disposed to accept that office. He might be permitted to add that no person could be better entitled by his many eminent qualities and by his experience to such an appointment.
  MR. MALINSsaid, he wished to express his entire concurrence in the last observation of his hon. and learned Friend, but at the same time he would observe that the effect of leaving out the proviso would be to remove that learned gentleman, because, on the passing of the Bill, the Prerogative Court would cease to exist altogether; the learned Judge would be out of office, and it would be entirely optional as to whether the Government would reappoint him. He thought that there ought to be a proviso in the Bill that the present Judge of the Prerogative Court should be the first Judge of the new Probate Court, providing he should be willing to accept such office.
  MR. AYRTONurged upon the Committee the propriety of making the compensation which might be granted to the Judge of the Prerogative Court for the abolition of his present office of a conditional character. He did not see why such compensation should be granted to him if he were to decline to preside over the new court, the duties of which, from his previous experience, he must be peculiarly competent to discharge.
  The Motion for the omission of the proviso, as well as the clause itself, was then agreed to.
  Clause 6.
  MR. W. N. HODGSONsaid, he wished to ask whether it was the intention of the Attorney General, before the Bill passed through Committee, to lay upon the table of the House the scale of fees to be established in the new court, of the salaries of its officers, and of the annual expenditure connected with its working?
  MR. CHAIRMANsaid, that as the clause did not relate to the payment of fees or salaries, that was not the fitting time to raise any discussion as to the pecuniary provisions of the Bill.
  Clause agreed to; as were also Clauses 7 and 8.
  Clause 9 (Transfer of the jurisdiction of the Admiralty Court to the new Court of Probate).
  MR. ADAMSsaid, he wished to ask the hon. and learned Attorney General whether he had considered the effect of this clause, and had finally made up his mind upon it. If so, it would be hopeless for him (Mr. Adams) to move any Amendment upon it. Still he must repeat the objection to the contemplated transfer, which he had urged upon the second reading of the Bill. The objection to it which he then entertained he still continued to hold. He could see no analogy between a jurisdiction which involved the decision of facts connected with disputed wills, and one which dealt exclusively with questions relating to shipping. The Judge of the Court of Admiralty, he might add, frequently found it expedient to call to his aid two of the Elder Brethren of the Trinity House, in order that they might, by their more practical knowledge, throw light upon the cases which came before him, and he (Mr. Adams) could not help thinking that those cases could be still more satisfactorily dealt with by a jury of nautical men conversant with our trade and shipping than by the Judges of the Admiralty Court, even with the advantage which the assistance of those Elder Brethren afforded. The hon. and learned Gentleman the Attorney General had remarked that the new Court of Probate would be rather over than under worked. Now, he (Mr. Adams) should, under those circumstances, venture to suggest that the Judges of the Superior Courts at Westminster—although they might not have sufficient time at their disposal to deal with the entire probate business of the country—would be enabled at least to discharge that portion of the duties of the new Court which it was proposed to transfer to it from the Court of Admiralty. Thus a better tribunal for the performance of those duties would be secured, while the Judge of the Probate Court, who it was said was likely to be overworked, would be relieved from some of the business which the Bill sought to place under his jurisdiction. He might also be allowed to remark
  994
  in reference to another point that, while he by no means meant to argue in favour of the continuance of the Diocesan Courts as at present established, he was of opinion that the Bill should enable the registrars of those Courts to grant probate to any amount in the country districts in cases where there was no contention, instead of that amount being limited to £1,500. If that course were taken, the public would be saved the additional expense of resorting to a central tribunal in London, and the claim of the registrars themselves to compensation being disposed of to an extent corresponding with the business still left in their hands. Those points, but especially that to which he had first adverted, he ventured to press upon the notice of the Attorney General, and he trusted that by acceding to his views in the matter the hon. and learned Gentleman would add another claim to the character of a law reformer, to which he was so well entitled.
  MR. W. WILLIAMSsaid, that the hon. and learned Gentleman need not be afraid that the excess of business would render the new Court of Probate unable to discharge its duties, for the business transacted by the Admiralty Judges was so insignificant that it scarcely deserved mentioning. He spoke of their ordinary business, because he admitted that in the late war their duties were considerably increased. In times of peace, however, it was so slight that he considered it was monstrous there should be a special court for its transaction.
  THE ATTORNEY GENERALsaid, the clause was only permissive, and did not in the smallest degree direct anything to be done. Neither did it point out the manner in which the functions of the two Courts should be discharged after the amalgamation had taken place. The amalgamation, indeed, could only be accomplished by an Act of Parliament, and he trusted a Bill for that purpose would be prepared and brought in during the next Session, when the hon. and learned Gentleman the Member for Boston (Mr. Adams) might avail himself of the opportunity of proposing any Amendments to it which he might think necessary. Undoubtedly, he (the Attorney General) had satisfied himself that there were some duties belonging to the Court of Admiralty and the proposed Court of Probate which would be best discharged by a single Judge; but when the present Bill bad passed the office

  995
  of Judge of the Court of Probate would assume quite a different character, for he would be then in reality a Judge of common law, aided in the discharge of his functions by a jury, and therefore in every respect a proper recipient of the office of the Judge of the Court of Admiralty whenever it might devolve upon him.
  MR. ATHERTONsaid, he wished to correct an error into which the hon. Gentleman the Member for Lambeth had fallen with respect to the extent of the duties performed by the Judge of the Admiralty Court. It was well known to the profession that there was not a more active, painstaking, or intelligent Judge, in the country, than the right hon. Gentleman who at present filled that office, and yet the business which came before him was sufficient to employ him during a period in the year as long as that in which any Judge of any of the courts of law or equity was occupied, while the way in which the functions of his court were discharged was such as might well make it the envy of any other court in the kingdom. The Court of Admiralty had a peculiar jurisdiction—the jurisdiction in rem., which the court a of common law would find it difficult to administer. They had at present more business than they could discharge; and, if the Admiralty jurisdiction were transferred to them, it would be the last straw on the camel's back.
  MR. W. WILLIAMSsaid, that when the present Judge was appointed, he (Mr. Williams) moved for a Return of the average number of days, and of the average number of hours in each day, on which his predecessor had sat for many years before his death, and his impression was that the number of days was twenty-one, and five hours each day.
  SIR FITZROY KELLYsaid, the hon. Gentleman should have included in the return the number of days which the Judge of the Admiralty Court sat in the Privy Council. He (Sir Fitzroy Kelly) did not in the least object to the present clause, and the less so as he learnt from the Attorney General that he contemplated future legislation before the proposed amalgamation could come into operation. When, however, the subject came again to be considered, he hoped the House would pause before it transferred the jurisdiction of the Court of Admiralty to a court of common law. It was true that suits of the same character were tried in both courts, but there were great and essential differences
  996
  in their modes of proceeding, The Court of Admiralty possessed a jurisdiction in rem., by which justice was often more effectually done between the parties than in a court of common law, especially in cases where a foreigner was one of the litigating parties; and he hoped if the transfer took place it would be a complete one, so as to preserve intact, though under different auspices, that jurisdiction of the Court of Admiralty by which, as at present constituted, it so admirably administered justice between man and man. In a case of collision tried in the common law courts, if it could be proved that the plaintiff was at all in fault, the verdict went for the defendant, but in the Court of Admiralty justice was done to both parties.
  Clause agreed to.
  Clause 10 (provides for the establishment of district registries),
  SIR ERSKINE PERRYsaid, he rose to propose an Amendment, the object of which was to establish district courts, to be presided over by the County Court Judge in all County Court districts, except those of the metropolis. He said be had received many applications, from people in the country deeply alive to the change in the law which this Bill would effect, and suggesting that the jurisdiction given by it to the County Courts should be a little more direct than the Bill proposed to make it. The Bill itself was founded on the Report of a Royal Commission, composed of Judges accustomed only to complicated cases, and when they made their Report, the question of giving jurisdiction to the County Courts was summarily disposed of by them, on the ground that those courts had then no machinery requisite for the purpose. It had been, however, since found expedient, that jurisdiction should, to a certain extent, be given to the County Courts. What he desired to introduce into the Bill was quite in accordance with the Report of the Commission. He did not wish to increase the jurisdiction of the County Court Judges, but what he proposed was to associate with those Judges a registrar in those matters in which they already had jurisdiction. At present in Devonshire, the county with which he was politically connected, there were ten local courts in which probate might be obtained, while the Bill before the Committee, as it was at present framed, would reduce that number to two, held in Exeter and Bodmin; and the result would be that in cases where the sum to be administered was

  997
  under £200 the matter would be referred back to the County Court, and by cases being bandied about from one tribunal to another great expense and inconvenience would be incurred. What he proposed, therefore, to remedy that evil was that, instead of establishing a local registrar in each district, a registrar should be attached to each County Court circuit, who would be, not only an officer of the County Court, but also an officer of the central court in London, and who in any contentious case would be able to assist the Judge as regarded all matters of nicety. By the present Bill forty-one registrars would be appointed, and if his proposal were acceded to the number would only be increased to fifty-one. He hoped that the House would be induced to assent to his proposal, which he was convinced would be advantageous, both in point of economy and of convenience to the suitors, and which did not in any way infringe upon the principle of the old officers being transferred to positions under the new jurisdiction. He would, therefore, conclude by moving to leave out after "established" and insert "district courts to be presided over by the County Court Judge in all County Court districts except those of the metropolis (Nos. 40, 41, 42, 43, 44, 45, 47, and 48), and a public registry shall be attached to each court, the registrar whereof shall be under the control of the Court of Probate."
  MR. ATHERTONsaid, he would support the Amendment. It would be a great hardship to compel those, whom death had deprived of their friends, to undertake long and expensive journeys for the transaction of business which might be satisfactorily despatched by tribunals already established in their immediate neighbourhoods for the administration of justice among the poorer classes of the community. By one of the clauses of the Bill the "contentious" business under a given amount was to be transferred to the Judges of the County Courts, and it could not reasonably be contended, therefore, that the "common form" business could not be conveniently disposed of by the registrars attached to the same courts. If the Judges of the County Courts,—men with an exclusive common law training, who never came within scent of Doctors Commons—were admitted to be competent to the despatch of the more difficult "contentious" business, he would like to know upon what ground it could be maintained that the officers next below them in education and professional attain-
  998
  ments would not be as competent to the transaction of the merely formal "common form" business.
  MR. COLLIERsaid, that the Amendment of the hon. and learned Member for Devonport (Sir E. Perry) raised a very important question. According to the Bill as it now stood the County Court districts were established for the purpose of exercising a contentious jurisdiction in the country, while another set of districts, which were substantially the diocesan districts, were established for the purpose of dealing with non-contentious business. He held it to be entirely wrong that there should be two sets of districts for the purpose of exercising a local jurisdiction. In the Bill of last year the diocesan districts were adopted as those which ought to exercise the local jurisdiction; but during the progress of the measure the County Court districts were substituted. He thought it extremely important that they should adhere to that Amendment, The diocesan districts were antiquated and inconvenient, whereas the County Court districts had been recently settled in accordance with the Report of a Commission which had made inquiries with respect to the position of towns, roads, railways, and other circumstances relating to the public convenience. In the event of the Attorney General agreeing to alter Schedule A, so as to put it in conformity with the arrangement of last year, by which the County Court districts were adopted, he would advise his hon. and learned Friend the Member for Devonport to withdraw his Amendment; otherwise, so strongly impressed was he with the desirability of adhering to the County Court districts for the local administration of justice, he would support the proposition of his hon. and learned Friend, suggesting a slight alteration in its terms.
  MR. BECKETT DENISONsaid, he could not support the Amendment, as he preferred the clause as it stood at present. As one of the Members for Yorkshire, he would be content to see York inserted in the schedule as the central place for proving wills, no district being mentioned at all.
  THE ATTORNEY GENERALsaid, that some alteration might be necessary in the principal places mentioned in the schedule, but be could not listen for a moment to the proposal of the hon. and learned Member for Devonport (Sir E. Perry). As far as the argument from convenience was concerned, he would remind the Committee,

  999
  that the convenience of persons dwelling in the country was in a great measure determined by use and wont, and he could not see how it would be promoted by compelling them to go to different places for the purpose of proving wills from those to which they had been in the habit of resorting. In his opinion, it was highly desirable that the present Bill should be founded as far as possible upon the existing order of things. Accordingly, the districts had been so arranged as to preserve the office of the registrar wherever it now existed, and by that means he hoped not only to keep the business in the channels in which it had hitherto been accustomed to flow, but to prevent the necessity of awarding compensation in a large number of cases which would otherwise have to be submitted to the consideration of the House. The hon. and learned Member for Devonport, however, desired to abolish the diocesan districts, to take away the existing registrars, and impose upon the people in the country the necessity of travelling about with the County Court Judges. A County Court Judge went to a variety of places; his registrar accompanied him, and yet that officer, as far as he could understand the Amendment of the hon. and learned Member for Devonport, was to be the person who should receive the necessary papers for the proving of wills in common form where the personal estate did not exceed £1,500. The Bill proposed to put the business in the hands of experienced men, conversant with the duties which they would be called upon to perform. It also provided securities for the proper conduct of that business by requiring them to communicate with the Judge of the Probate Court in London, and he should regret to see it transferred to persons whose previous occupation had been altogether of a different kind, who had quite enough to do in their present offices, and who were itinerant with the Judges to whom they were attached. He was afraid that he did not clearly understand the Amendment. It proposed that the district court should be presided over by the County Court Judge. Was the County Court Judge to prove wills? Such was not the proposition of the hon. and learned Member, but if the registrar was to transact the business, what was meant by the words that the district court should be presided over by the County Court Judge? The Amendment would destroy the arrangement proposed to be made by
  1000
  this measure, and would introduce such confusion that the Bill would become discordant and inconsistent with itself.
  MR. COLLIERsaid, that all he contended for was, that the registrars should be attached to the County Courts, instead of the diocesan districts, and nothing he had heard from the hon. and learned Attorney General had tended to change his opinion. Still he thought that it would be more convenient to discuss that question upon the consideration of the schedule, and therefore he recommended his hon. and learned Friend to withdraw his Amendment for the present.
  SIR ERSKINE PERRYsaid, in reply, that he was not surprised that the Attorney General should object to his Amendment; but he quite misunderstood its object, for he (Sir E. Perry) would never have proposed it had it been calculated to produce the effects which were attributed to it by the hon. and learned Gentleman. He never proposed that the registrar should travel about with the Judge of the County Court, or be the person for granting probate. The hon. and learned Gentleman also objected to his Amendment on the ground that, instead of attaching these registrars to diocesan districts, he proposed to attach them to the County Courts; but what he really suggested was to the effect that while the Attorney General proposed to appoint forty-one registrars, he (Sir E. Perry) proposed fifty-one, who should be located in the most central spot in their districts, and not travelling about with the Judge. The principle of his Amendment was, that justice be provided for the poor as near their own doors, and at as cheap a rate, as possible; and the best mode of fulfilling those objects would be by giving the jurisdiction to the County Court Judge, and having a registrar attached to the district of his court. He could scarcely, however, hope for sufficient support to push his Amendment, and, under the circumstances, he thought the best course he could adopt would be to withdraw it.
  MR. CROSSLEYsaid, he would suggest that Wakefield instead of York should be taken as the seat of the chief registry for Yorkshire.
  Amendment, by leave, withdrawn, and clause agreed to; as was also Clause 11.
  Clause 12.
  MR. ROLTsuggested the consolidation of the 12th and 13th clauses, so that there might be one general clause in reference to clerks and subordinate officers.
  THE ATTORNEY GENERALsaid, he must oppose the consolidation, on the ground of the disparity in the nature of the employment of the officers named in the two clauses.
  Clause agreed to.
  Clause 13 (Clerks and Officers in the Prerogative Court shall be transferred to like offices In the Court of Probate).
  MR. DIVETTsaid, be begged to move as an Amendment, after the word "court" to insert "and all managing clerks who have been continuously employed in any diocesan court for fifteen years and upwards immediately before the passing of this Act,"
  THE ATTORNEY GENERALsaid, that there was no class of persons for whom he felt greater sympathy than for the managing clerks and those who filled subordinate offices, but he did not think that this was a convenient time to deal with their case, which might—although he must not be considered as giving any pledge or promise—be considered in another part of the Bill. He was almost afraid that the words were sufficiently large to comprise the managing clerks of proctors who practised in these courts, and, of course, it would be impossible to accede to such a proposition. The clerks designated by the Amendment were persons filling what might be called, without offence to them, a species of menial capacity—they were the servants of persons themselves holding offices in the courts, whereas the clerks designated in the clause were of an entirely different character. Under that name they discharged duties assigned to them in the constitution of the court, and not under the direction of any masters.
  MR. DIVETTsaid, he was only anxious that the persons who now discharged these duties should not be thrown aside and have other persons appointed in their places in the new court, and if the Attorney General would consent to take their case into consideration in another part of the Bill, he would not press his Amendment.
  THE ATTORNEY GENERALsaid, that there was no fear but that in the arrangement of the new districts those persons who had filled corresponding offices in the old system would be the first to be appointed to the new offices.
  SIR FITZROY KELLYsaid, he had no doubt that these managing clerks would be maintained in their employments. The district registrars of course could not per-
  1002
  form their duties without the assistance of clerks, and it could scarcely be supposed that they would not retain the persons who had been so useful in that position.
  MR. ROLThoped that this clause was meant to include those persons who discharged duties in the present courts not for themselves, but as the deputies of those whose offices were sinecures.
  THE ATTORNEY GENERALsaid, that these persons were undoubtedly included in the clause.
  Amendment, by leave, withdrawn.
  THE ATTORNEY GENERALsaid, it would be necessary to alter that part of this clause which gave power to the Judge of the new court to make these appointments. All these appointments must be made preparatory to the new court entering upon its duties; but the Judge of the new court in reality might not be in existence at the time. The old court must continue to discharge its functions until the very moment before the new court came into operation, and the present Judge might possibly decline to accept the office of Judge of the new court, so that at the time when it was absolutely necessary that these arrangements should be made, the functionary by whom alone they could be made according to the clause might not be in existence. He proposed, therefore, in the place of "the Judge," in line 14, to insert the words "the Lord Chancellor."
  MR. HENLEYsaid, it was of great importance to the working of the new system that the Judge should have the fullest confidence in all the functionaries under him, and he hoped the Amendment, which had come upon them rather suddenly, would be well considered before it was finally adopted.
  MR. ROLTobserved, that he thought the Lord Chancellor, to whom, of course, every one would give credit for desiring to make the best appointments, could not possibly have the same means of judging as to the fitness of the persons to be appointed as the Judge of the court.
  THE ATTORNEY GENERALsaid, that the Lord Chancellor would much prefer that the Judge should have the appointment of these officers, but it was utterly impossible, as he had already explained, so to arrange the machinery of the Bill, All these appointments must be made before the new Judge took office, but he could assure the Committee that the Lord Chancellor, as soon as the new Judge had been selected, would in every respect

  1003
  take the opinion and consult the wishes of that gentleman, whoever he might be.
  Amendment agreed to.
  Clause, as amended, ordered to stand part of the Bill, as was also Clause 14.
  Clause 15 (provides for appointment to offices and for fees).
  MR. MALINSmoved, as an Amendment, the omission of certain words, with the view of inserting others, to provide that the remuneration given to registrars and other officers should be by salary, instead of fees. It seemed to be an infringement of the principle now generally acted upon to introduce the principle of remuneration by fees into the Bill. The district registrars were to be persons who were to give their whole time to the discharge of this business, and therefore they ought to receive salaries.
  THE ATTORNEY GENERALsaid, he objected to the Amendment, which would have the effect of giving to a registrar who had a great deal to do, the same remuneration as one who had much less to do. He was desirous of securing the close personal attention of the officers to their duties, and the way to secure that was to pay them by fees proportioned to the duties they performed.
  MR. ROEBUCKremarked, that he thought that, where a service was imposed upon a man for the benefit of the State, the State should pay him, and not the person who required the service.
  MR. MALINSsaid, the County Court Judges were at first paid by fees, but this was found to be so objectionable that recourse was had to salaries. If they were to act on the principle that every man should be paid for what he did by fees, they would be led back to the system of paying the Lord Chancellor and other high functionaries in that way.
  MR. HENLEYobserved, that he was favourable to the principle of paying by salary, but in the present case he thought the Government had come to a wise conclusion, for it would be impossible at once to adopt the system under this Bill. After a year or two, when they had experience of the working of the measure, they might adopt the wiser principle of paying by salary, for by that time they would be in a position to fix a proper scale of salaries. But he thought that at present it would be too great a disturbance of the existing practice.
  MR. ROEBUCKsaid, the work might be as hard in a small district as a large one, while the fees would be very different.
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  He also wished to ask on what principle the fees were to be regulated.
  THE ATTORNEY GENERALsaid, that they would be regulated by the amount of the stamp and the length of the probate. He would observe, however, that, in the first place, the price of the stamp would be regulated by the amount of the estate, a less stamp being required for a small than for a large estate. In the next place, a small estate generally required but a short enumeration of items, whereas in a large estate there was ordinarily a multiplication of trusts, &c., so that the fees would in effect be regulated according to the amount of the property.
  MR. BRISCOEcould not see why the public should be called upon to pay for the registration of wills, and therefore hoped the Amendment would not be pressed.
  Amendment, by leave, withdrawn.
  Clause agreed to.
  Clauses 16 to 23 agreed to.
  Clause 24.
  MR. WESTHEADsaid, he wished to know whether surrogates who might be appointed Commissioners would have to take affidavits with respect to the probate of wills, which affidavits might be presented at the district courts?
  THE ATTORNEY GENERALsaid, he could not undertake to say that it might not become requisite, in making the rules and orders for the practice of the Court of Probate, in some way to alter the duties now performed by surrogates; but it would be the desire of those who framed those rules and orders to give those gentlemen, and the clerical surrogates more especially, as full a measure of remunerative employment as they now enjoyed.
  MR. BARROWasked whether the Commissioners would have power of administering oaths to, and taking the affidavits of, persons for the purpose of taking out probate, without the necessity of the present expensive application for a special commission for the purpose.
  THE ATTORNEY GENERALsaid, one of the objects of the clause was to prevent the necessity of those special commissions which were now directed by the Prerogative Court at considerable expense to the parties, and in general orders to be issued powers to that effect would be expressly given them.
  MR. STEELmoved an Amendment,: after "probate," to insert "provided that in every city, borough, and town throughout England containing not less than 5,000 inhabitants, the Judge shall appoint the

  1005
  registrar of the County Court of the district in which such city, borough, or town is situate, or some other fit and proper person within such city, borough, or town, to be such Commissioner or Commissioner." In the district with which he was connecten, which was in the diocese of Carlisle, no surrogates had been appointed.
  LORD HOTHAMsaid, that he was given to understand that there was considerable difference between the duties of the surrogates in the province of York and of those in the province of Canterbury. The duties of the surrogates north of the Trent were now nearly the same as those of proctors in the province of Canterbury. Their emoluments would, therefore, be diminished to a far greater extent by this Bill. What he wished to know was, whether in framing the orders to which the hon. and learned Attorney General had referred, special provision would be made for securing to the surrogates in the province of York the same amount of remunerative employment they now possessed.
  THE ATTORNEY GENERALsaid, he could not but admit the correctness of the distinction pointed out by the noble Lord, but he could not venture to say that under the general rules and orders the exceptional case of the surrogates of York would be treated in such a way as to leave the remuneration of those gentlemen as large as at present. He would suggest, however, that the peculiar position of those gentlemen would be better dealt with by a special clause, which could be brought forward at a subsequent period. With regard to the Amendment of the hon. and learned Member for Carlisle (Mr. Steel), he (the Attorney General) thought it unnecessary, as in the clause now under discussion power was given to the Judge to appoint as surrogates such persons as he might think fit.
  Amendment, by leave, withdrawn.
  Clause agreed to; as also was Clause 25.
  Clause 26 (regulating the Procedure of the Court).
  THE ATTORNEY GENERALsaid, he had to propose as an Amendment to the clause to leave out the word "procedure" in the first line, the words "all manner of procedure" in the sixteenth line, and then to omit the last four lines of the clause. His great object was to render the practice of the courts as expeditious, as simple, and as economical as possible. It was, however, deemed essential not to abrogate
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  in toto the whole of the existing practice, as it would be difficult, in the first instance, to provide by the new rules and orders for every case of contention that might arise. His Amendments were framed to meet the contingency, and the clause would then stand thus—
  "The practice of the Court of Probate shall, except where otherwise provided by this Act, or by the Rules or Orders to be from time to timo made under this Act, be, so far as the circumstances of the case will admit, according to the present form and manner of the Prerogative Court."
  SIR FITZROY KELLYwas understood to accept the Amendment, and at the same time to express a decided conviction that the pleadings of the new court would be very much more simplified and more expeditious than those of the old court.
  MR. BOWYERsaid, he would move to amend the clause by striking out the words "so far as the circumstances of the case will admit." He thought the effect of these words were loose and dangerous, and would place the whole practice of the court in the hands of the Judge.
  THE ATTORNEY GENERALassured the hon. and learned Member that these words would have precisely the opposite effect. The probability was that a great number of cases would arise which could not be provided for except by recurrence to the old practice, especially as the Bill would bring into the court many cases of a character different from those which came before the Prerogative Court.
  MR. BOWYERsaid, that the words would apply to all matters to be brought before the court. It would be easy to introduce words restricting the dispensing power to the new cases. With that view he would propose the insertion of the words, "In all matters which do not lie within the jurisdiction of the Prerogative Court."
  THE ATTORNEY GENERALsaid, he was utterly unable to understand the meaning of the hon. and learned Gentleman's Amendment.
  MR. BOWYER: I shall not trouble the Committee by dividing, but I will just state what the effects of my Amendment would be. [Cries of "No!"]
  Mr. BOWYER'SAmendment having been negatived, the Amendments proposed by the ATTORNEY GENERAL were agreed to.
  Clause, as amended, ordered to stand part of the Bill.
  Clause 27 struck out.
  Clauses 28 to 31 inclusive, agreed to.
  Clauses 32 and 33 postponed.
  Clause 34 (Appeal to the House of Lords).
  MR. MALINSsaid, he would propose to insert the words "Judicial Committee of the Privy Council" in the place of the words "House of Lords." The former court had always given the greatest satisfaction to the public, while the House of Lords as a Court of Appeal was most expensive and dilatory, and although a very decided opinion had been pronounced against it by the House of Commons last year, nothing had yet been done for its improvement.
  Amendment proposed, in page 11, line 20, to leave not the words "House of Lords, in order to insert the words "Judicial Committee of Her Majesty's most honourable Privy Council,"—instead thereof.
  THE ATTORNEY GENERALsaid, he fully appreciated the great value of the Judicial Committee of the Privy Council as a Court of Appeal; but there was a reason why it should not be had recourse to in the present instance. If the Bill became law it might happen that questions might arise in the common law courts either the same or of a cognate character with questions which arose before the Court of Probate. Then, the questions arising in the common law courts would be carried to the House of Lords, while those in the Court of Probate would, if the Amendment were agreed to, be carried to the Judicial Committee of the Privy Council. This would lead to considerable inconvenience. No doubt, it was most desirable that one great Court of Appeal should be established, but in the mean time he thought it was not desirable to make the new tribunal an exception with regard to the course of appeal from other courts. He might add that he was sure that any change in this respect would not be acceded to in another place, and he would deprecate any alteration which might lead to anything like a collision between the two Houses of Parliament, and which might thereby endanger the success of the Bill. For these reasons he trusted that the Committee would adhere to the clause as it stood.
  MR. CAIRNSsaid, he hoped that his hon. and learned Friend the Member for Wallingford would take the opinion of the Committee upon this Amendment. He (Mr. Cairns) thought that it was a matter of great regret that we had two Courts of Appeal in the last resort in this country; but, seeing that there were two such courts,
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  and that they had now the advantage of a choice between them, surely they should select the best. The House of Lords had never yet had anything to do with the appellate jurisdiction in matters of probate. The Judicial Committee had performed its work to the satisfaction of everybody, and he objected to the jurisdiction being taken from it without some reason assigned. He did not see why any objection should be taken in another place to the proposed Amendment, inasmuch as the Bill had been introduced into the House of Lords by the Lord Chancellor with the appeal running to the Privy Council. Fortified, then, by the opinion of the Lord Chancellor, and by an experience of the advantage of appeals to the Privy Council, he should support the Amendment.
  THE SOLICITOR GENERALsaid, that no doubt the appeal at present lay from the Ecclesiastical Court to the Judicial Committee, but at present the Ecclesiastical Court dealt only with personalty, and it dealt with it in a peculiar manner, the procedure being analogous with the procedure of the Judicial Committee of the Privy Council. By the Bill, however, it was proposed that the powers of the Court of Probate should extend to wills of real estate, that the old form of procedure should be abolished, and the new court empowered to try issues of fact before a jury. Consequently all the incidents attendant upon the trial of issues on matters of fact in a common law court would arise in the Court of Probate, and in that state of things it must be apparent that the House of Lords would have an advantage over the Judicial Committee of the Privy Council as a Court of Appeal, because they could summon the common law Judges to their assistance, which the Judicial Committee of the Privy Council could not do. The Committee had decided to approximate the proceedings of the Court of Probate as much as possible to the proceedings of the common law courts, and he said, therefore, that they should allow the appeal to follow in the same direction.
  MR. COLLIERsaid, that the question was simply this:—They had decided, in point of fact, upon the appointment of a sixteenth common law Judge; should the appeal from fifteen of them he to the House of Lords, and from the sixteenth to the Judicial Committee to the Privy Council? He apprehended that that would be an anomaly which the Committee would not sanction.
  MR. BOWYERobserved, that the Attorney General, who argued that, because the Court of Probate was to some extent assimilated to a common law court, therefore the appeal should go to the House of Lords, assisted by the Judges of the common law courts, seemed to forget that the Chief Justices of the common law courts and all the Judges of those courts who were Privy Councillors were not merely assistants, but actual members of the Judicial Committee of the Privy Council. His broad objection to the clause as it stood was that, whereas there were always some Judges versed in ecclesiastical law sitting at the Judicial Committee of the Privy Council, there was no Judge of that sort sitting in the House of Lords. The Judicial Committee, with few exceptions, had given the greatest satisfaction, while the House of Lords was one of the worst Courts of Appeal in the world. Two Sessions ago a Committee of the House of Lords themselves reported that the appellate jurisdiction of that House was in an unsatisfactory state, the attempt then made to alter it had failed, and yet nothing since had been done to improve it. Yet it was now proposed to send a new class of appeals to that tribunal. The Judicial Committee of the Privy Council, to which appeals now went from the testamentary courts, sat at all times of the year; and some of the most important cases came on in November and December. If the House of Lords were made the Court of Appeal, it would be shut up for six months, and there would thus be a denial of justice for half the year. They could not reckon on the attendance of many law Lords on appeals in the House of Lords. There was the Lord Chancellor, and Lord Wensleydale had been recently created a Peer for the purpose; but they could not reckon on the regular attendance of Lord St. Leonards and Lord Lyndhurst. In the Judicial Committee there were five Judges regularly attending, besides Sir John Dadson.
  MR. ROLTsaid, that, speaking with some experience, he would venture to assert that the House of Lords was as able, excellent, and distinguished a tribunal for the final hearing of great and important causes as ever sat in any country. That had been its character down to the present time, and great and eminent men sitting in that House had imparted lustre to the administration of the law. He could not concur with the Members who decried it as
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  a Court of Appeal, for nothing had occurred to cast discredit on it except some cases which had been tortured into the basis of an accusation. In reference to the particular question under consideration he conceived that there were inconveniences connected with the Judicial Committee of the Privy Council as a Court of Appeal in reference to the time and mode of hearing causes. It was not always the same tribunal, for one day there might be four members of the Judicial Committee hearing causes, and the next there might be four different members, and sometimes a case was adjourned for two or three weeks. He did not make that statement for the purpose of establishing that the Judicial Committee of the Privy Council was inefficient, for he admitted that any great tribunal would be subject to inconveniences of that kind. In the House of Lords there was no great arrear, and he was not aware that appeals to the ultimate tribunal should be so encouraged as that that tribunal should hear in one week a cause decided only the week before. At present the House of Lords heard in one Session appeals brought forward in the preceding Session, and he did not see that they could desire greater expedition. With regard to the expense of appeals to the two tribunals of the Privy Council and the House of Lords, he was not aware that there was any difference, as the papers were printed in both. The Court of Probate being now constituted a court of record, the appeal was properly to the House of Lords; the cases taken before the Judicial Committee were properly those arising in the Colonies and in courts which were not courts of records. The matter had been fully considered by the Commission, and he hoped the Committee would adhere to the clause as it stood.
  MR. HENLEYsaid, that as one of the Commissioners, he wished to state that the Commission came to the unanimous opinion that the questions arising under the Bill should go, in the way of appeal, to the House of Lords, in preference to the Privy Council. The main reason for that conclusion was this,—that now, for the first time, the landed property of the country was subject to probate. The new Court of Probate was to deal in the same way with real property as with personal property; and it was only fair, therefore, that there should still be an opportunity of appealing to the tribunal of last resort, which now dealt with questions affecting landed property. The Report of the Commissioners

  1011
  was unanimous on this point, and if the Committee went to a division, he must support the appeal as it now stood.
  MR. MALINSsaid, his only object in making his proposal was, that the Committee might have an opportunity of selecting the best appellate tribunal. He did not see much weight in the argument that, because the Court of Probate was to have jurisdiction for the first time over landed property, the appeal as to landed property ought to continue to lie to the House of Lords. The simple question for the Court of Probate was one of will or no will; and the mode of executing a will, whether it dealt with real or with personal estate, was the same. If the question, for example, related to the capacity of the testator, why should not the same Court of Appeal that decided in a case of personal estate also decide in a case of real estate? The hon. and learned Gentleman (Mr. Rolt), who lauded the House of Lords, was not a Member of Parliament last Session, when the House almost unanimously condemned that assembly as a Court of Appeal. After being put to the great delay and expense of approaching this much-vaunted tribunal of last resort, the suitor found it composed of only two Judgès,—a state of things which, with every respect for the Lord Chancellor and Lord Wensleydale, was not, and could not be, satisfactory to the country. If this Court of Appeal was to be retained, why had not the Government taken steps to place it on a better footing? The most important appeals from the Lord Chancellor himself were heard by the Lord Chancellor assisted by one, or at most two, other Judges; whereas the Judicial Committee of Privy Council had always four or five of the most eminent Judges to decide on the questions which came before it, and consequently these anomalies could not exist. It was said that, as appeals from fifteen common law Judges now went to the House of Lords, there could be no reason why appeals from the sixteenth Judge about to be appointed should not go to the same tribunal. But the Judge of the Court of Probate was not to be a common law Judge; and therefore this argument entirely fell to the ground.
  THE ATTORNEY GENERALsaid, he thought nothing could be more unconstitutional, or more opposed to existing rules, than, to confer this jurisdiction on the Judicial Committee; nor could anything be
  1012
  more impossible in practice. The Judicial Committee was only created at the expense of the ordinary tribunals of the country, some of which had to be shut up while it was exercising its functions as a Court of Appeal. The Court of Chancery, for example, had then to be closed, and they were also obliged to draw away one or two common law Judges from their other duties. The Judicial Committee, as at present constituted, was inadequate to the discharge of more than it now accomplished. It had not the power of entertaining a single appeal from any common law or equity court in Westminster Hall; and therefore, when they were about to create a court with a jurisdiction partaking both of common law and equity, it would be an anomalous proceeding to send its judgments to an appellate tribunal different from that to which the other courts were subject. They should adhere, then, to the existing rule, and not establish one that would lead to conflicting decisions. If the appellate jurisdiction of the House of Lords required amendment, let them amend it when they saw the prospect of their coming to anything like a unanimous conclusion on that subject. But, at all events, the Committee ought not to countenance the present proposal, which would utterly destroy this Bill, and would impose on the Judicial Committee of Privy Council a jurisdiction over a large class of cases which it could not possibly discharge.
  MR. NAPIERsaid, that only last week, the Lord Chancellor, Lord Brougham, Lord Wensleydale, and Lord St. Leonards, assisted by the common law Judges, sat to hear appeals in the House of Lords, than which no more efficient or more dignified tribunal could be found in any country in the world. It was said that that House, last Session, almost unanimously condemned the appellate jurisdiction of the Upper Chamber. That was entirely contrary to his own impression of the feeling evinced by the House. Uniformity of decision on questions affecting the property of the country was indispensable, and to secure that object the House of Lords should be their tribunal of last resort.
  MR. MALINSbegged leave to withdraw his Amendment.
  The Committee, however, would not allow it to be withdrawn.
  Question put, "That the words 'House of Lords' stand part of the clause."
  The Committee divided:—Ayes 271; Noes 27: Majority 244.
  On the Question that the clause be agreed to,
  MR. MALINSsaid, he wished the Committee distinctly to understand that he greatly regretted they had had the trouble of dividing. He had been desirous of withdrawing his Amendment, and he thought it was not fair that the division should have been forced upon him under the circumstances.
  Clause agreed to, as were the following Clauses to 39 inclusive.
  Clause 40 (Probates and Administration may be granted in common form by the District Registrars in certain cases).
  MR. WESTHEADsaid, he rose to move the omission of the words after the word "affidavit" in line 30, and the insertion of the following words:—"and such probate or letters of administration shall have effect over the personal estate of the deceased in all parts of England accordingly." The object of his Amendment was to enable executors, or persons taking out letters of administration, to do so in the district court whatever the amount of personalty might be. It was stated that four-fifths of the wills proved in England related to amounts below £1,500, and the limitation proposed would be of great practical inconvenience, while he could not conceive what good reason there could be for debarring testators from obtaining probate of wills to any amount of personalty in the district courts.
  Amendment proposed, in page 13, line 30, to leave out from the word "affidavit" to the end of the Clause, in order to insert the words "and such Probate or Letters of Administration shall have effect over the personal estate of the deceased in all parts of England accordingly,"—instead thereof.
  MR. CAYLEYsaid, he should support the Amendment, and would appeal to the right hon. Member for Oxfordshire (Mr. Henley), who was a member of the Commission, to explain upon what ground the limit of £1,500 was adopted. In many instances the machinery in one manufactory might be worth £1,500, and in another worth £2,000, and why should the executor of a man whose machinery was worth the former sum be enabled to take Out letters of administration in York, while the executors of a person who possessed machinery worth £2,000 was obliged to come to London. The same observation
  1014
  would apply to household furniture, which in many cases was worth £2,000, £3,000, or £4,000, and in such instances probate could not be obtained in the district court, but the wills must be proved in London. Besides, he had another objection, which was founded on the centralizing nature of the Bill.
  MR. HENLEYregretted, that he could not give a satisfactory answer to his hon. Friend's question, for he must honestly say that he was unable to assign any reason for the adoption of the limit of £1,500. He (Mr. Henley) divided in the Commission against the limit of £1,500, and he was in a minority of one. He must say, however, that persons whose opinions were entitled to much greater weight than his (Mr. Henley's) were strongly in favour of adopting a lower limit than £1,500, and in several of the Bills which had been introduced or shadowed out of late years, it was proposed that the powers of proving in country districts should be limited to a much lower sum than £1,500. For his own part, he would have been glad to see the limit extended to £2,000, or even higher; but, as some concession must be made when differences of opinion existed, he would rather have this measure with the limitation to £1,500 than run any risk of its defeat. If, however, those who had charge of the Bill would extend the limit, he believed it would be a boon to the country, for £1,500 would not cover the value of stock upon a great proportion of farms.
  MR. MOWBRAYsaid, he would express a hope that the hon. and learned Attorney General would accede to the suggestion of the right hon. Gentleman, for the only object of the clause seemed to be to take business out of the hands of the proctors in the country, and transfer it to Doctors' Commons. As, however, the clause had reference to "common form" business only, there was necessity for the limit.
  MR. ROEBUCKsaid, he would wish to ascertain from his hon. and learned Friend the Attorney General what reason existed for fixing a limit at all. There Was just as much necessity for the employment of officers possessing integrity and intelligence in the granting probates of wills in cases in which the sum involved did not exceed £100 as in those in which it reached £10,000. If, then, the same qualifications were required in the former as in the

  1015
  latter cases, why fix a limit? He saw no good reason why it should be done, while there were many strong arguments against the adoption of such a course. The tendency of the present day was to bring the law home to every man's door, in a cheap and efficient manner, and he should like to know why that which was a sound policy had been departed from in the present instance.
  THE ATTORNEY GENERALsaid, that the point to which his hon. and learned Friend who had just sat down, as well as the hon. Member who had immediately preceded him, referred, was one which had been the subject of frequent deliberations upon the part of the Commission. That deliberation, he might add, had depended not so much upon the preconceived notions of the members of the Commission as upon the evidence of the very experienced solicitors, and other practitioners who had been examined before them, and all of whom had concurred in representing the great dangers which must attend the unlimited extension of the sum with respect to which probate should be granted in the country districts. He had not been aware that the point would have been pressed so much upon their attention that evening, but since the discussion with reference to it had arisen, he had looked over some passages of the Report of the Commissioners, as well as of the evidence which they had taken, and he found in the Report the following distinct expression of opinion upon the part of the Commissioners:—
  "We think it evident that protection would be best afforded the public by the establishment of a central court in London. The skill and vigilance which are required to guard against fraud and mistakes will be, we think, most certainly possessed by officers in London, under the immediate control of a Judge, to whom they will have an opportunity of applying in any emergency that may arise, and to whom they will be immediately responsible."
  Such was the opinion of the Commissioners, and be might remind the Committee that the practical working of the law as it stood, owing to the doctrine of bona notabilia, was to bring every cause in which the sum involved exceeded £500 or £600 within the jurisdiction of the Prerogative Court. Now, if probate were granted upon an imperfect will, or to the wrong parties, and an executor or administrator were appointed to take possession immediately of the estate of the testator, and it should be afterwards found that probate
  1016
  had been improperly granted, those persons who might have paid money under its operation would have to pay it over again. The question, therefore, was one in which bankers and public companies, as well as the community at large, were deeply concerned, and the Commissioners, taking these matters into consideration, had concurred in the expediency of a thorough and frequent examination of the documents produced being entered into before probate could with any degree of security be granted. One of the witnesses who had been examined before the Commission—he meant Mr. Trevor, of the Legacy Duty Office, a gentleman of great experience and intelligence—stated, in reply to a question which had been put to him, that, in his opinion, one tribunal for the proof of wills would be found more efficient than a great number, in consequence of the uniformity in dealing with those instruments which it would be calculated to produce. He had gone on to say, that since the passing of the Wills Act, he had known probates of wills to be granted in the diocesan courts in cases in which the document had been obliterated, and in which no inquiry had taken place, as to whether the obliteration had occurred before or after the completion of the will. Such was the nature of the proceedings which were sometimes observable in the diocesan courts as they stood, and he did not therefore think that the Committee would be warranted in assuming that each individual registrar would be competent to exercise over wills that same careful superintendence that would be exercised by the officers successively, through whose hands they must pass in the Court of Probate in London. He might also refer to the evidence of Mr. Shepherd, who had been examined before the Commission, and which went to establish the justice of the view which he had urged upon the Committee. The testimony of men of experience in such matters having then been opposed to the continuance of the power of granting probate to an unlimited extent in the case of the diocesan courts, the Commissioners had come to the conclusion that for the benefit of the country districts, liberty should be given the registrars of those courts to grant probates to some fixed amount, but that that liberty ought to be confined within very narrow limits. His right hon. Friend the Member for Oxfordshire (Mr. Henley) was quite right in stating, that several

  1017
  members of the Commission had been desirous to fix that limit at even a lower sum than £1,500, but it had not been deemed expedient to take that course; while he was of opinion that, as great critical nicety, great care, and a knowledge of law were required in dealing with wills, it was desirable that the district registrars should not be intrusted with the granting of probates in cases in which a larger amount was involved. Some limit must be taken, and, if he was not mistaken, the present limit had been fixed by his right hon. Friend the Member for Oxfordshire, who had stated that, in his opinion, the farmers, whose interests would be affected, would rarely be found to possess bona notabilia exceeding the sum of £1,500. [Mr. HENLEY was understood to express his dissent.] He had understood the right hon. Gentleman to have said so, hut, be that as it might, he felt perfectly confident that any hon. Gentleman who looked carefully into the evidence which had been taken before the Commissioners, and at their Report, would feel that they had acted wisely in adopting the course which they had pursued. He hoped, therefore, that the Committee would not consent to a proposition, the effect of which would be to subject wills involving large amounts of property to a comparatively insufficient examination.
  SIR JOHN TROLLOPEsaid, the argument of the hon. and learned Gentleman sought to establish the expediency of a strict reliance being placed upon the evidence of the solicitors and other practitioners who had been examined before the Commission. Now, so far as he (Sir J. Trollope) recollected the evidence which had been adduced before that Commission, it had emanated from persons who were connected with the courts in London, and the whole tendency of whose testimony had been in favour of the system of centralization. His own experience went to prove that the business which had been brought under the consideration of the district courts had been most satisfactorily discharged, and he should wish to know from the hon. and learned Gentleman, whether property which did not exceed a sum of £1,500 was not of as much value to the person who possessed it as a larger sum would be to the person whom the hon. and learned Gentleman seemed to take it for granted would, if he were empowered to do so, seek for probate in the district courts. Now, everybody must be well aware that those who had a large amount
  1018
  of property at stake brought their business up to London. He should like, however, to know why the shopkeeper upon one side of the street, who had property involved only to the amount of £1,000 should be enabled to transact his business at a comparatively trifling expense in the district courts, while a farmer upon the other side, because he happened to possess some hundreds more, should be compelled to resort to the central court in London. He thought the reasoning of the hon. and learned Gentleman in support of this view upon the matter was of a character the most unsound. He objected to any limitation at all, and should, therefore, vote in favour of the Amendment,
  MR. ROEBUCKsaid, he thought the statement of the hon. and learned Attorney General was an argument against the whole Bill, rather than in favour of this particular limitation. He seemed to fancy that there must be some essential difference1 between the will of a rich man and that of a poor man, and that he was now making an experiment in corpore vili. The hon. and learned Gentleman appeared to think that a testator dying, and leaving property worth only £1,500, was a person so poor and unworthy, that any inefficient officer might administer his estate—but that a man dying worth a greater amount of property required the exercise of a far higher amount of intelligence in the distribution of his effects. But as the hon. and learned Gentleman had talked of evidence, he (Mr. Roebuck) would ask the Committee to look how these matters were managed in America. There they had local courts of probate, which were regarded as great safeguards of the constitution, and appreciated by the whole population. He believed that to make the law local, and not central, would be to make it beloved by the people, and more efficient for the purposes for which it was instituted; and, as he wished to see law cheap, efficient, and brought home to every man's door, he would therefore support the Amendment.
  MR. ROLTsaid, no doubt the estate of the poor man was entitled to as much protection as the estate of the rich, but a mistake committed in dealing with farming stock was more easily remedied than in dealing with funded property. In the former case, an erroneous probate might be recalled before the property was converted; but in the latter, a day, an hour even, might be sufficient to render the

  1019
  mistake irretrievable. Probate might be granted, through carelessness, mistake, or fraud; and, by virtue thereof, £100,000 in the funds might be transferred before the error could be corrected. It was that consideration, therefore, which had led the Committee to the conclusion that, in cases of larger amount, the granting of probate ought to rest with the more efficient and central court. As to the argument, that parties ought be left to make their own selection, the object here was to prevent those having the choice who had no right to choose.
  MR. ROEBUCKsaid, the hon. and learned Gentleman who last addressed the Committee assumed that all property under the value of £1,500 must necessarily be farming stock, and that all above that sum was money in the funds. He would ask the hon. and learned Gentleman whether a mistake committed in the granting of probate would not he quite as fatal where the money in the funds, which was the subject of it, was below £1,500, as it would be where the sum was £15,000? If they wanted integrity in the administration of an estate above the value of £1,500, he (Mr. Roebuck) contended they wanted it equally with respect to property below that amount The hon. and learned Gentleman's argument, then, went for nothing.
  Question put, "That the words 'and that the personal estate of the deceased' stand part of the Clause."
  The Committee divided:—Ayes 131; Noes 162: Majority 31.
  MR. AYRTONsaid, after the decision which had just taken place, it seemed to him that, it probates were in any manner to be taken in the country, they must be sent to the central registrar to be checked. In that case the clause must be modified, and he therefore moved that the Chairman should report progress, in order to give time for further consideration.
  THE ATTORNEY GENERALsaid, the proposition now before the Committee was, that the following words be insert ed:— "That such probate, or letter of administration, shall have effect over the personal estate of the deceased in all parts of England accordingly." The practical result of the introduction of these words would be this—that probate granted by the district registrar would extend to personal estate, whether in England, Scotland, or Ireland. One evil thing had been done already, [Laughter]. Hon. Gentlemen might
  1020
  laugh, and undoubtedly those who were desirous of destroying the Bill had cause to do so, hut the proposition, if adopted, would utterly destroy the Bill, and it would be impossible to persevere with it. Unless the House should come to some better appreciation of the subject on bringing up the Report, it would be impossible to proceed with the measure. He could not consent to the introduction of the words, or anything fatal to the Bill. If the Motion for the introduction of the words was pressed, the sense of the Committee must be again taken upon them, and it was his determination to give the House the opportunity of deciding whether it would have the Bill at all, by expunging that unfortunate decision.
  Motion for reporting progress, being, by leave, withdrawn, the question was put, "That those words be there inserted." The Committee divided:—Ayes 141; Noes 139: Majority 2.
  House resumed.
  Committee report progress; to sit again on Thursday.

SUMMARY PROCEEDINGS BEFORE JUSTICES OF THE PEACE BILL.

  COMMITTEE.
  Order for Committee read,
  House in Committee.
  Clause 1 (Justices, on application of a party aggrieved, to state a case for the opinion of a Superior Court).
  MR. HENLEYsaid, he wished to inquire who was to pay the costs of rearguing a case before the Superior Courts at Westminster. He did not think that justices of the peace were of themselves competent to frame cases to be argued before the Superior Courts. Moreover, he thought that the appeals under the Apt would throw a great increase of business on the Superior Courts, with regard to which it had been already stated that evening, that they were sufficiently occupied.
  THE SOLICITOR GENERALsaid, that appeals would only take place in the exceptional cases in which difficult points of law were involved, and in which parties might think it worth while to dispute the legality of the decisions of magistrates; and the party appealing would be required to enter into a recognizance conditioned to pay all the costs consequent upon the appeal.
  MR. HENLEYsaid, he would beg to the hon. and learned Gentleman

  1021
  that there were many cases in which the complainant would not take the matter before the Court of Queen's Bench.
  THE SOLICITOR GENERALthought that it was not likely that there would arise a case in which the defendant would appeal, and the complainant would not think it worth his while to defend it.
  MR. HARDYobserved, he was anxious to know what the particular evils were which this clause was intended to remedy? The defect of this Bill was that they were bringing before the courts questions of law which might arise before the justices, and yet they did not provide the proper means for doing so. It appeared to him that no case was shown why this clause was necessary.
  MR. NAPIERsaid, he would confess that the Bill, as far as it went, was a good Bill. The proceedings by certiorari were most circuitous and inconvenient. The magistrates who had the power of disposing of the questions before them, would be able to say whether there were any grounds for an appeal. Although the Bill did not meet the whole case, so far as it went it had his hearty consent. He hoped that it would be extended to Ireland.
  MR. J. D. FITZGERALDsaid, that he had considered this Bill carefully, and he so highly approved of it, that he was prepared to support the Amendment to extend it to Ireland. The Court of Quarter Sessions was admitted to be a bad tribunal for determining questions of law. The Pill, therefore, provided that such questions should be tried before a more competent court.
  MR. HENLEYsaid, he did not think it fair that they should cast upon the justices, who were acting in the matter without any pay, the expense of taking those questions before a higher tribunal. It was a very harsh proceeding to impose such a burden upon the magistrate, who had not the slightest personal interest in the matter, and drag him up to town at an expense of some £10 or £20. The Bill did not provide the proper machinery for carrying out the appeal. He would suggest that the cases ought to go through the Home Office.
  MR. MASSEYsaid, practically, there was not at present the means of reversing the decisions of a magistrate on a point of law. The right hon. Gentleman said it was hard to throw upon the magistrate the expense of referring these cases to a higher tribunal, but the party he thought
  1022
  most to be considered was the convicted or injured individuals. That appeared to him to be an inconvenience so unimportant compared with the interests of the party aggrieved by the magisterial decision, that he thought it was scarcely worthy to be taken into consideration. He did not believe that there was any danger of this remedy being abused. A certain amount of expense must be incurred by the party applying for an appeal, which he thought would be in itself a sufficient safeguard against any improper or vexatious proceedings in that direction.
  MR. HENLEYsaid, that the Home Office were the natural protectors of the magistracy, and they had no right to put the latter to the expense of the proceedings on appeal. Let them carry the case up to the House of Lords if they liked, but they had no right to call upon them to pay the expenses of rearguing cases before another tribunal. If a magistrate was wrong either in fact or law, it would be equally a case of injustice to subject gentlemen who were working for nothing to this expense.
  MR. NAPIERsaid, the right hon. Gentleman had misapprehended him. In most cases there were two parties to the question, and those two parties alone would be necessary to be represented before the court. It was for the magistrate to grant the appeal, but he was not bound to follow up the case and go to the expense of supporting his decision in a superior court.
  MR. NEWDEGATEsaid, that it was obvious that there was no provision to make both parties follow up the appeal, and if the magistrate refused to allow an appeal he would be liable to the imputation of being a shabby fellow who was afraid to allow an appeal because of the expense.
  SIR GEORGE GREYsaid, that the same thing might be said of appeals from the Court of Quarter Session. It was his opinion that they could not give the magistrates a large increase of jurisdiction unless an appeal was allowed, nor did be think when one or two cases had been decided, that the appeals would be so numerous as was apprehended. He could mention a case in which a person had been convicted, and sent to prison for a trifling assault. It certainly seemed to him a case for an appeal, but no means were given to the prisoner to carry it out under the present law.
  MR. HILDYARDsaid, that no answer had been given to the question so repeatedly asked as to what would be the position of a magistrate when a question of law was raised. He believed the effect of this Act would be that magistrates would be harassed by unscrupulous attorneys and dragged into the Superior Courts, when, even if the judgment was affirmed, the magistrates would be saddled with heavy expenses. If they gave a power of appeal they ought to make a provision for the expense.
  THE SOLICITOR GENERALsaid, the impression seemed to be that the expense was to come out of the private pockets of the magistrate, whereas, in the first instance, it was in his power to refuse a frivolous appeal; and, secondly, all the magistrate would have to do would be to write down on a piece of paper the point of law on which he had based his conviction, hand it to the party applying for it, who would be bound under recognizances to pay all the costs of the appeal, and the appeal would be decided on that case, the only thing being that if the point of law was wrongly stated it might be sent back. The magistrate might go to the expense of arguing the case or not, at his pleasure. In all the cases that would be decided by the Act there would really be two substantial parties—namely, the complainant and the person convicted. He did not see in this Bill any of the evil consequences imagined by hon. Gentlemen opposite.
  MR. HENLEYsaid, it would be a perfect fallacy for a magistrate to sit down and write a case for himself. Not one would venture to do it, especially when the defendant had the privilege of choosing his own court. He thought that the Home Office ought to bear all the expenses of the appeal.
  MR. HILDYARDsaid, he wished to point out that the fifth clause gave power to the court to grant such costs as it might think fit, and therefore it gave power to grant costs against magistrates.
  MR. MILESsaid, that every clause of this Bill would require the greatest attention. Considering the lateness of the hour (twenty-five minutes past twelve) he should move that the Chairman report progress.
  Committee report progress; to sit again on Thursday.
  House resumed.
  House adjourned at a quarter before Two o'clock.

MINUTES.
PUBLIC BILLS.—3a Dulwich College; Militia (Ireland) Act (1854) Amendment; Oxford University.

THE SCHOONER "MARIA"—QUESTION.
THE EARL OF MALMESBURYwished to put a question to the Secretary of State for Foreign Affairs relative to a case of some hardship. It was the case of a Captain Ouseley, commander and part owner of the schooner Maria, which had been seized by the Venezuelan Government. It appeared that a boat had been detached from the schooner in order to pro-
948
cure provisions at Caraccas. On board the boat there were some few yards of cloth which the crew intended merely to barter for the provisions of which they stood in need. They were, however, accused of smuggling, and the boat was consequently seized. The captain was brought before the authorities of the country, and fined 100 dollars for a breach of the Custom House rules of Venezuela. Not satisfied with this, the Government of that country also seized the schooner, which was then engaged in a regular and legitimate trade—that of carrying cattle to Demerara. The seizure occurred on the 7th of March, 1856. Since then a correspondence had taken place between his noble Friend (the Earl of Clarendon) and the brother-in-law of Captain Ouseley; and it appeared that no notice whatever had been taken of this transaction by our Chargé d'Affaires at Caraccas, and that no communication on the subject had been sent by that officer to the Foreign Office in answer to inquiries that had been addressed to him regarding it. In the meantime, Captain Ouseley had presented a bill against the authorities of Venezuela for damages to the amount of something like £3,000. He wished his noble Friend to explain, if he could, how such a proceeding as this, affecting a vessel that was British built, British manned, and British owned, should have taken place without any interference on the part of our Chargé d'Affaires on the spot, or without the knowlege of the Foreign office being drawn to it.
THE EARL OF CLARENDONwas sorry that he could not afford his noble, Friend the explanation he desired. It was perfectly true that neither before nor since the information relative to this case had been given to the Foreign Office by the parties interested had he received any Report on the subject from our Chargé d'Affaires at Caraccas. As soon as the circumstances came to his knowledge he put himself in communication with the Commissioner of Venezuela, who was then about to return to that country, and requested him to be good enough to lay the matter under the notice of the Venezuelan Government. Since then, however, he had not heard anything of that gentleman's proceedings. Although he had not yet succeeded in obtaining any information respecting this transaction, he trusted that before much longer he should receive some explanation on the subject.

CONVEYANCE OF TROOPS TO INDIA.

  QUESTION.
  THE EARL OF CARDIGANwished to ask the noble Lord the Secretary for War whether it was true that the reinforcements of European infantry and cavalry about to be despatched to India for the purpose of suppressing the serious insurrection which had broken out in that country were to be sent out in sailing vessels instead of in steamers? After what had happened during the war in the Crimea, the Government would be profiting little by past experience if, when they had so many war and merchant steamers at their command, they sent out these troops, whose speedy presence was required to meet a critical emergency, by sailing vessels.
  LORD PANMUREsaid, he could assure the noble Earl that the most attentive consideration of the Government had been given to this question of the best means of sending reinforcements to India with the greatest expedition possible. The difficulty in the use of steam vessels was the delay necessarily caused by coaling. This operation made it necessary for steamers to call at several ports; whereas sailing vessels were able to shorten the course by keeping further from shore. The result was, that the sailing yessels arrived at their destination as soon, if not sooner, than steam vessels. It was on a conviction that this would prove the case in the present instance which had induced the Government, after an attentive consideration of the matter, to give the preference to sailing vessels.
  THE EARL OF ELLENBOROUGHsaid, that he could not speak on that matter from very recent experience; no doubt steam navigation had since then greatly improved; but when he was in India no steamer made so good a passage as a sailing vessel, and this arose in consequence of the coaling difficulty referred to by his noble Friend (Lord Panmure). He should add, that this was the most favourable season at which a sailing vessel could start with troops for India.

  ALLEGED REVIVAL OF THE SLAVE TRADE—EXPLANATION.
  LORD BROUGHAMsaid, he found he had exaggerated the number of what were called free negroes about to be conveyed to the French colonies from the coast of Africa. He understood that the number was not 20,000, as he had stated, but
  950
  10,000. He was sure that no scheme for the revival of the slave trade would obtain the assent of the Emperor of the French. His noble Friend (the Earl of Clarendon) had also been charged with conniving at this virtual re-opening of the slave trade; but he (Lord Brougham) felt confident that no one would regard such a scheme with more suspicion than his noble Friend (the Earl of Clarendon). It must be admitted that there was the greatest difference between carrying off free negroes, or whatever they might be called, to a slave colony, and carrying them to colonies in which slavery was abolished. Yet, as regarded the Africans, even although they might be carried to colonies in which slavery was abolished, yet any scheme of this kind ought to be viewed with distrust, and to be most carefully and scrupulously watched.
  THE EARL OF SHAFTESBURYsaid, that some misunderstanding existed with regard to a deputation that recently waited upon the First Lord of the Treasury on this subject. The main object of that deputation was to represent to the Prime Minister some facts connected with the increase of the slave trade and the necessity of repressing it, not so much on the coast of Africa as by means of additional gunboats and steamers on the shores of Cuba. The want of free labour in some of the colonies was certainly a matter of discussion among that deputation, and one gentleman, gave an opinion on that subject. But as far as he (the Earl of Shaftesbury) was concerned—and he believed he might say the same for the other members of the deputation—their opinion was, that to endeavour to set on foot a scheme for carrying free negroes from the coast of Africa would be to all intents and purposes a revival of the slave trade, the most accursed crime that ever was perpetrated.
  THE EARL OF MALMESBURYsaid, he should be sorry if their Lordships should run away with the idea that if some plan were adopted, or could be discovered, for free labourers from Africa, that that was necessarily a renewal of the slave trade. If that were clearly shown, there was an end of the matter. But on the score both of policy and humanity the question was worthy the consideration of those who wished to take a broad and statesmanlike view of the subject. On the other side of the Atlantic there were millions of acres that could not be cultivated by white men, and if they were not culti-

  951
  vated by blacks they must remain sterile; while millions of negroes willing to labour were confined to the coasts of Africa. On the other hand, looking at it in a philanthropic point of view, there might be a danger of renewing the slave trade. He trusted, however, that their Lordships and the Government would not take it for granted that any efforts or experiments in the direction which the French Government were now taking must inevitably result in the revival of the horrors of the slave trade.
  THE EARL OF CLARENDONsaid, he had made inquiry into the matter in consequence of the speech delivered by his noble and learned Friend the other evening, and he found that the condition of the assent of the French Government to the contract was that it should be an engagement of free labourers, and that the negroes should be sent to those colonies where labour was wanted. It was intended to take all possible securities against abuses; but he agreed with his noble and learned Friend, that no plan of this sort, however carefully it might be devised, could be safely carried out without a liability to the revival of the slave trade.

INDIAN ADMINISTRATION—THE CIVIL SERVICE.

  RETURNS MOVED FOR.
  THE MARQUESS OF CLANRICARDE, in rising to move for Returns relative to the Civil Service in India, said, that as he believed there was no objection to their production, and as there must before long be a general inquiry into the administration of the Indian Government, he would not detain their Lordships at any length. When the present disturbances were put down—and he had no doubt they would be quelled at much less cost and with much less difficulty than some persons supposed, Parliament must inquire into the causes of the state of things which recent events had proved to exist in the Indian army. To suppose that this was a mere question of greased cartridges was absurd. The Returns which he desired would be of great service in the prosecution of these investigations, and would show what was the amount of administrative force at the disposal of the Indian Government. At present he spoke upon imperfect information, but it appeared to him that they were expecting the present Governor General to administer the affairs of India with the
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  same number of civil servants that were at the disposal of the Indian Government in 1846, when our territory was much smaller in extent. To show their Lordships that he had not adopted that opinion without due authority, he should quote a passage from the Minute of Lord Dalhousie, which had been laid upon the table of their Lordships' House in the course of the last year. He learned from the 12th paragraph of that Minute that "in eight years four Indian kingdoms had passed under the sceptre of Her Majesty, and that various chieftainships and smaller districts had been brought under her sway." Among the smaller acquisitions the Governor General enumerated Khyrpore, Ungool, Sikkim, some Nepaulese sirdars, Mundote, the Nawab Nazim of Bengal, and the States of Central India. Then there were, besides these, the Punjab, Rangoon, Nagpore, Sattara, Hyderabad, and Oude; the population thus brought under the dominion of this country amounting to nearly 11,000,000 of souls, while the extent of territory thus acquired amounted to 207,637 square miles. It also appeared, from a Return which had been laid upon the table of their Lordships' House that the amount of revenue derived from those recent additions to our territory in India was £4,330,000 per annum. That in Europe would be a large and important country by itself. Notwithstanding that large increase, however, in the extent of our territory, he could not ascertain that any corresponding addition had been made to our civil service in India. The number of the covenanted civil servants in that country were, he found, in 1846, 431, while in 1856 it was not more than 432. It was quite clear, therefore, that we were imposing upon the Governor General of India the task of ruling an empire of considerably-enlarged proportions with precisely the same staff as had been appointed in 1846 to administer the affairs of a much smaller territory. How long, he would ask, were we to continue that policy? Was our Indian Government to be the only Government in the world which was not to possess that elastic character by which the number of the public servants was adapted to the requirements of the State? What was the resource which, under those circumstances, was open to the Governor General when a demand for an increase in the number of the civil servants arose? Why, in

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  the case in which an office of high importance was to be filled, he was debarred from going beyond the covenanted service, and from calling to his aid any member of the uncovenanted civil service, however qualified such person might be. What was the consequence? He was obliged to resort to the military department, and to take officers away from the duties of their profession to fill civil employments. Thus, when an increase in the number of civil servants in India became imperative, a diminution of the military force was the invariable result. He had heard it stated, that the number of officers who were under those circumstances taken away from their regiments, amounted to no less than 25 per cent. That such a state of things existed he attributed to the fault of no individual; he deemed it to be the result of the system—and he trusted the Government would, by agreeing to the production of the Returns for which he rose to move, place their Lordships and the country in a position to obtain accurate information upon a subject so important to the efficient administration of the affairs of our Indian empire. The noble Marquess concluded by moving that there be laid before the House a
  "Return of the Number of Officers belonging to and employed in the Civil Service of the East India Company, distinguishing those in the Covenanted from those in the Uncovenanted Service, and in receipt of not less than £400 a year Salary, on the 1st of January, 1846, and a similar return for the 1st of January, 1856;
  "And, also, Return of the Number of Military Officers employed In Diplomatic, Political, or other Civil Services, on the 1st of January, 1846, and a similar Return for the 1st of January, 1856."
  THE EARL OF ALBEMARLErose, to express a hope that their Lordships would have the assurance of the Government that a full and searching inquiry into the condition of India in all its branches would be instituted. If such an inquiry took place, it would, he thought, be found necessary to make very material changes in the policy which had hitherto been adopted towards that country, and especially in one portion of that policy—he alluded to that by which the annexation of the territories of princes whose dominions bordered upon our own was brought about. In the adoption of that system, indeed, might be found one of the causes which had led to the mutinies which had lately taken place. In support of that reform he might state, that about fifteen months since he had had along conversation with an intelligent Mahomedan Native of India in reference to
  954
  the annexation of Oude, and the gentleman in question upon that occasion observed to him, "If you annex Oude, you will find that disaffection will break out among the Native troops, and for this reason—they are all drawn from the agricultural, but not from the peasant class. They are what you would call in this country yeomen, or small landlords. They are of the highest caste, being either Rajpoots or Brahmins, and are of a most inflammable character. They number about 50,000, and will necessarily be deprived of many of their privileges by the annexation of their territory." Such was the opinion of the gentleman to whom he had referred; and he might add, that it had also been pointed out to him that the new land revenue system which the Government had introduced into the North-Western Provinces of India, and which was made to follow the annexation of this new territory, was regarded by the Natives as a great hardship, inasmuch as under its operation every man's property was surveyed, and each of those 50,000 sepoys would thus be compelled to make out his title to the land in his possession. He understood that Her Majesty's Ministers might rely upon the fact that 140 petitions had already emanated from the sepoys of Oude in reference to that subject, and he therefore trusted that the Government would institute the most minute inquiries into the System to which he had adverted. He had only that morning received a newspaper from India, called the Rising Sun, dated May 20, which contained a quotation from another journal, complaining of the irritating nature of the survey of the lands in that country.
  Motion agreed to.

  HIGH AND LOW WATER-MARK—RIGHTS OF THE CROWN—PETITIONS.
  THE EARL OF DERBYpresented Petitions from the Llanelly Railway and Dock Company, under their common seal, and from David Lewis, of Shadey, Carmarthenshire, complaining of the Enforcement of the Rights of the Crown between High and Low Water-Mark. He was very much afraid that he should very imperfectly do justice to the merits of the petitions which he had been requested to present to their Lordships, because those documents involved many serious and complicated questions of law, which he felt his utter incompetency to deal with. At the same time,

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  if the House allowed him, he would draw their Lordships' attention for a few minutes to some matters of detail; and he hoped he should, at all events, be able to satisfy their Lordships that the subject-matter of these petitions was one deserving of their consideration, as involving the general rights of subjects of the Crown. The documents had reference to the rights of the Crown to the land between high and low water-mark, round the whole kingdom, and not only to the nature of those rights themselves, but to the manner in which of late years it had been sought to enforce them. The two petitions were from different parties, and some of the allegations were different, but as they proceeded from the same locality, and were to some extent connected, it would he convenient that he should state their substance at the same time. The first was from Mr. Lewis, a gentleman who had considerable property on the coast of Carmarthenshire, and who was at one time the Member for the county; the other was from the same neighbourhood, from the Llanelly Railway and Dock Company, incorporated by Act of Parliament in 1828. It would first be necessary for him to state to their Lordships a few particulars connected with the locality to which these petitions referred. Mr. Lewis's property is on the side of an inlet from the British Channel, running nearly north and south, on the shores of which there is at low water a large expanse of sand uncovered by water. The land beyond the sand on both sides of the inlet consists of banks of mud, behind which, in some places, was a considerable extent on both sides of land which is occasionally flooded at high spring tides, but generally speaking partook of the character of salt marshes. The petitioner had retained possession of his property, partly consisting of salt marshes, on this inlet, undisturbed and undisputed, until 1845; he had exercised all the rights of ownership over it of which such property is capable, and had sunk a shaft in the salt marshes in order to work the coal which lay beneath, and this had been leased to a copper smelting company. Even so long ago as 1807 and 1812 these marshes had been expressly excluded from the enclosure Acts which applied to the neighbourhood, as the property of Mr. Lewis and his predecessors. It was under these circumstances that in 1845 Mr. Lewis found that an information had been filed against him, which recited that the sea shore BO far inland as the tide flowed belonged to Her
  956
  Majesty, and claimed for the Queen the property up to the highest point reached by the tide, including the shaft which had been sunk. Mr. Lewis lost no time in filing an answer to that information, and he availed himself of the valuable assistance of Mr. Bethell; but it was not until 1851 that the Master of the Bolls pronounced a decree directing that the Crown should proceed against other parties before Mr. Lewis, by a trial at bar. The cause of this was a claim on the part of Lord Cawdor to manorial rights. This claim after some time was compromised between Lord Cawdor and the Crown; who, having got rid of this opponent, proceeded once more against Mr. Lewis. He could not but express his regret that this compromise had taken place between Lord Cawdor and the Crown, for if Lord Cawdor had turned out to be entitled to manorial rights, of course these proceedings could not have been taken against Mr. Lewis. When the case next came on that gentleman laboured under two disadvantages. One was, that Mr. Bethell, who had in the first instance been his counsel, had now become Solicitor General; and his services being now required by the Crown, he argued against him, with the advantage of all the information which he had derived while he was on his side. The next disadvantage was, that in 1847 the South Wales Railway had obtained an Act for the construction of a line along the sea coast, on a line pointed out by the Admiralty, and the embankment of this had much improved the character and the value of the salt marshes. The Lord Chancellor ultimately decided that the landward boundary between the property of the Crown and the subject was the medium line of all the tides occurring in the course of nature throughout the year. This definition, he thought, left matters much where they were before. He was aware that it had been entrusted to a civil engineer of great eminence to lay down that medium line; but Mr. Rendel having unfortunately since died without having determined the boundary; another person had been appointed to perform the duty, the suit was still lis pendens, and. Mr. Lewis was debarred from the free exercise and control of his own property. Now, it appeared to him that the judgment did not at all satisfactorily conclude the question. Besides, was it in the competency of the Crown to lay down a line which should at all times be the line of demarcation between the Crown and the

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  landed proprietor? That seemed a very doubtful point, and one on which the course pursued was contrary to the authorities, both ancient and modern, on this subject. In Scratton v. Brown, Mr. Justice Bayley laid it down—
  "That the Crown by a grant of the sea shore could convey not that which at the time of the grant is between the high and low water-marks, but that which from time to time shall be between the two termini. Where the grantee has a freehold in that which the Crown grants, his freehold shifts as the sea recedes or encroaches."
  But if the doctrine was to be laid down that the medium line of all the tides of the year was to be the boundary between the Crown and the proprietor, it set aside the doctrine of the possibility of gain to the proprietor by accretion. And if the Crown could dispose of that which lay between him and low-water mark, it was possible for it to interpose another proprietor between him and the sea, and thus do him very serious injury. To return, however, to the case of the petitioner. While the matter was still under adjournment, a notice, dated August, 1856, was served on the tenants of a farm of Mr. Lewis, three or four miles up the inlet, stating that slag and rubbish had been deposited on the foreshore belonging to the Crown, and asking them if they were willing to take a lease of the foreshore. Mr. Lewis said that his tenants were bound to do nothing contrary to his interests; that he himself could not, while the question between him and the Crown was pending, do anything to recognise those rights on its part which he disputed, The Crown replied that in that case they should take what steps they thought fit without regarding his interests. What he now complained of was in the first instance the great delay that had taken place, and the great uncertainty to which he was subjected as to the rights which he had exercised without contest for so long a time. And in the second place he complained that while he denied the right of the Crown altogether, and claimed a right himself by prescription, he was compelled—having no interest in this question—to fight on the part of the public as to how far the right of the Crown, when they had a right to the foreshore, should go, and where the medium line should be drawn. The case of the Llanelly Dock and Railway Company was even, he thought, still stronger than that of Mr. Lewis. That company was authorized by an Act of Parliament
  958
  which received the sanction of the Crown in 1828, to form a railway and dock. They consequently formed a dock, and had taken and held lands, expended money, executed works, and carried on the railway in conjunction with the docks for thirty years; and it was at the end of that period they received notice from the Woods and Forests stating that they had taken for the construction of their railway land the property of the Crown, between high and low water mark, and they must enter into a composition with the Crown or take a lease of their own works. In reply the Directors expressed their surprise and stated that there was no ground for the claim made. Some time after this another letter was received from the Woods and Forests, which, while abandoning the claim first made, they stated that Mr. Rendel was then engaged in making a fresh map of the shore, and that when that was finished the Company would be again communicated with. Here, then, were the Woods and Forests first setting up one map and then telling the Company that if they did not compromise the matter they would be proceeded against, and at a subsequent period admitting that their map could not be relied upon, but that when another map was completed the claim would be renewed. He ventured to call their Lordships' attention to this case, because it was clear that if a period of sixty years' prescription was required for the security of the subject against the Crown, notwithstanding an Act of Parliament, there was no one dock or harbour which had been made for the last sixty years, under an Act, and which might have had an indefinite amount of money expended upon it, which might not be liable to be taken by the Crown. This claim, which was, he believed, entirely of a novel character, and utterly unknown to the law of England, affected not one individual, but the whole country, and proprietors of land all round the country. No one disputed that, within certain limits, the Crown had the dominion between high and low water mark—what he did not believe was, that the Crown had such a right as it could lease, sell, or make the means of profitable transactions by way of lease, or by forcing compositions. He believed that the right in the Crown was one to be exercised for the public interests, for the protection of public property, and to prevent the sea coast—the great highway of the couutry—being monopolized by

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  individual proprietors, or the public being debarred from the use of it. A great authority who wrote in the time of Queen Elizabeth (Callis), said—"Rex habet proptietatem, sed populus habet nsum ibidem necessariam." Mr. Justice Bayley laid down that—
  "Primâ facie the Lord of the Manor is entitled up to high water-mark; but between, high and low water-mark, the ordinary high and low water-mark, the right is primâ facie in the Crown. The right of the Crown is not in general for any beneficial interest to the Crown itself, but for securing to the public certain privileges in the spot between high and low water-mark; and if any nuisance is committed on that spot, then the Crown has the power of proceeding to rectify such nuisance."
  Woolrych commenting on this, said:—
  "If the King were to make the seashores of the realm a source of private sale and profit, he would, according to what is said before by the Judges, be acting contrary to the trusts for which the ownership of the shore was vested in the Crown by the common law."
  And yet the Crown is now applying this right in dozens and hundreds of cases, not for the benefit but to the injury of the public, and to the aggrandisement of the Crown property by compelling the adjacent proprietors to pay a sum by way of compromise, or to accept a lease under the Crown, paying a sum for it. This seemed making such a use of the Crown property as, by the authority he had just quoted, was contrary to the common law. There were two cases to which he wished to call their Lordships' attention, as illustrating the restrictions which the law imposed upon the exercise of this power by the Crown. In the Attorney General v. Burridge, it was laid down "that the Crown could grant by letters patent all the land between high and low water-mark, but subject to the public right of passage, and that the restriction of such right was a nuisance, and a matter of fact to be inquired into." In the second case buildings had been erected by the corporation of Portsmouth, between high and low water-mark, which were ordered to be abated by a decree, inasmuch as they intercepted the flux and reflux of the tide, and it was held to be no defence that the buildings were placed there by grant of the Crown by charter to the corporation. No general order could be allowed to prevail against the public rights. Therefore, according to the law, the Crown was entitled to certain rights on this portion of the soil, but only for useful public purposes, and for the prevention of encroachments; but, beyond that,
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  the Crown had no rights. There were involved in these petitions two important points—first, as to the nature and extent of the rights of the Crown, whether they were absolute possessory rights, or mere fiduciary rights, to be exercised in trust for the benefit and protection of the public; and next, the manner in which the rights of the Crown had in fact been exercised. He could not see, even setting aside prescription and all rights founded on enjoyment for periods of a shorter duration than sixty years, how it could be contended that those rights could be valid against the provisions and powers of an Act of Parliament, sanctioned by the Crown itself. If this principle were admitted no dock or harbour in the kingdom would be safe. It followed almost as a matter of coarse that almost every wet dock must be made on that part of the Crown lands between high and low water-mark. It is the natural place for a dock; and therefore, every dock constructed within the last sixty years, even under Act of Parliament, would be liable to be seized if it infringed on the alleged rights of the Crown between high and low water-mark. He thought this could not be sanctioned by Parliament. It was plain that the mode in which individuals were called on one after another to uphold a public principle was most vexatious. Every individual who now submitted to aggression, or compromised the claim, or took a lease, strengthened the case against his neighbour, and the Crown might thus gradually acquire against the subject powers that it was never intended it should possess. The second case not only set aside the rights of the subject—it went the further length, that for sixty years the provisions of an Act of Parliament should be no security. He thought these were subjects well worthy the attention the House and of the Government. The petitioners prayed the appointment of a Select Committee to inquire into the rights of the Crown, and the manner in which they had been exercised. He did not intend to press that upon their Lordships at present, but he did hope that the Government would take some steps to quiet the apprehensions that prevailed from one end of the kingdom to the other with respect to the new and unheard-of claims of the Crown; and that they would set at rest matters which appeared to be involved in some doubt. It should be declared distinctly by Act of Parliament what was

  961
  between the Crown and the subject; what were the rights of the Crown to land between high and low water-mark; and what was the extent to which those rights should go.
  LORD STANLEY OF ALDERLEYsaid, that many years ago, the attention of the Government was called to the encroachments taking place on the coast of Carmarthenshire, on that portion of the soil comprised between high and low water-mark. The opinion of the law officers of the Crown was taken on the point in 1839. In 1845 an information was filed against the petitioner and others, to assert the right of the Crown, and so matters continued for some time, until the verdict was found for the Crown against Lord Cawdor. Some of the persons against whom informations had been filed took leases from the Crown for the land they had occupied between high and low water-mark. And in 1855 the question between the Crown and Mr. Lewis was referred to Mr. Rendel, to decide as to what should be the high and the low water-mark on the property of that gentleman, according to the principle of the decision of the Lord Chancellor, Mr. Justice Maule, and Mr. Baron Alderson, that that line should be the medium of the tides of the whole year. The carrying out of this arrangement had been interrupted by the death of Mr. Rendel; but, in May last, Mr. Bidder—who had been named by Mr. Lewis as the person he wished to have as arbitrator—was named as his successor. The present position of the matter was this:—that Mr. Lewis did not deny the right of the Crown; on the contrary, he acquiesced in it, be cause the verdict in the case of Lord Cawdor, which involved the same question, was not appealed against. He had accepted an arbitration, not to decide on the rights of the Crown, but within what limits the Crown should exercise those rights.
  THE EARL OF DERBY: That agreement was without prejudice to the right by prescription.
  LORD STANLEY OF ALDERLEYsaid, the verdict to which he had referred was not subject to any exception, and had not been appealed against. Although a railway might be carried over a portion of the shore, the rights of the Crown remained the same as they were before. Therefore, as far as Mr. Lewis was concerned, there could be no ground whatever of complaint. The Government had never
  962
  treated the party with harshness in seeking to enforce the claims of the Crown, As to the Llanelly Docks, although twenty years might have passed by, the rights of the Crown were not thereby given up. Surely it was the duty of the parties constructing the docks to ascertain, before doing so, that the title to the ground was a good one. He thought that the noble Earl opposite would be the last person to allow the opposite doctrine to prevail. The noble Earl said that there was no beneficial interest in the Crown. Now, how would the noble Earl like to have such an argument turned against his own claims to a portion of the shore near Liverpool. The right of the noble Earl to the foreshore was a grant from the Crown, and, of course, the Crown could give to the noble Earl, or to his ancestors, no rights that it did not itself possess. If, then, the Crown had no beneficial interest in the foreshore, the noble Earl could have no beneficial interest in the foreshore of Liverpool. If the claim of the Crown be unjust, and if it ought to be upset, he hoped that the noble Earl would be prepared to return the very considerable sum he had received from the Birkenhead Dock Company. The legal question he would leave to those who were more qualified than himself to speak upon it; but, after what he had said, he trusted that their Lordships did not suppose that those claims of the Crown were unfounded, or that the Government had used any harshness in enforcing them. The Government would have abandoned their duty if they did not enforce them.
  LORD WYNFORDsaid, that it might be recollected that, last Session, he warned certain Scotch proprietors not to attempt to improve the docks and ports of Scotland before they had satisfied themselves that no demand of this kind could be made on them by the Crown, He had then in his eye, not only the subject matter of these petitions, but a number of other cases in which the department of Woods and Forests had cruelly pressed on proprietors, and there were numbers of instances in which the proprietors of land on the sea-shore, and on the banks of navigable rivers, were not able to deal with their property in consequence of the vexatious course taken by the Woods and Forests. He would not go further into the matter, but would merely say that he was surprised to hear the noble Lord say that a verdict had been given for the Crown in one case, when, in point of fact, the case

  963
  was settled by a compromise. He was also surprised to hear that Mr. Lewis had submitted his claim to arbitration since Mr. Rendel's death; for it was stated in the petition presented that day, that no other arbitrator had been appointed. The property in question, to his knowledge, lay far above high-water mark.
  THE LORD CHANCELLORsaid, that the doctrine laid down that evening was rather startling; for the noble Earl, setting out on the assumption that the Crown had the right to the disputed shore, said that the question was whether it had been properly asserted; and he gave, as one reason why the right should not be asserted, that the Crown held the shore, not for its own benefit, but for the use of the public. It seemed strange to say that the Crown, which held the land for the use of the public, should not assert its right: for the more strenuously it asserted it, the more it would seek to preserve the land for the use of the public. If the Crown allowed property of this kind to be encroached on year after year, and did not claim it for the use of the public, the Crown deserted its duty, and, in fact, gave up what belonged to the public to the neighbouring proprietors. The noble Earl said that the assertion of these rights was inconsistent with the making of docks, and of those in this case especially; but, if the dock company had a title which was good against the Crown, why was it not set up in answer to the information? When he (the Lord Chancellor) was one of the law officers of the Crown, he, in conjunction with his noble Friend the Lord Chief Justice (then Attorney General), was consulted with regard to the rights of the Crown with respect to this question, and they gave what, of course, they considered a sound and correct opinion, which, however, was not acted on until the Government of Sir Robert Peel, when Sir Wm Follett gave directions to have informations filed. What the Cause of the delay was he did not know, but the trial did not come on for several years afterwards; but at length it was decided that the Crown had the right to the littus maris. The matter came before him (the Lord Chancellor) by way of appeal, to decide what the littus maris was. The civil law carried the doctrine very much further than was ever recognised by the law of England; and, the matter being one involving a question of common law, he obtained the assistance of Mr. Justice Maule and
  964
  Mr. Baron Alderson, who heard the case with him. It was most elaborately argued, and they came to the conclusion that the rights of the Crown were bounded by the middle line between the highest and lowest point to which the spring-tides reached. Then came the point, how was that line to be drawn? The matter came before him by petition, and it was arranged, with the consent of both parties, that an engineer should be named, who, with the decision of the court in his hand, should draw the required line; and Mr. Rendel was selected, If Mr. Rendel had been guilty of any delay, it was Mr. Lewis's fault, for not forcing him on; but no complaint was made of his proceedings. When Mr. Rendel died, it was necessary to appoint another arbitrator, and Mr. Bidder was appointed. With regard to Mr. Bidder's having been appointed with Mr. Lewis's approbation, he bad in his hand a letter from Mr. Lewis's solicitor, in which he stated that he was Willing to accept Mr. Bidder's arbitration. What had been the cause of the delay, he (the Lord Chancellor) did not know; but the matter stood thus:—that the Crown, on its own part, or rather on the part of the public, had asserted certain rights, in which it had been successful.
  THE DUKE OF BUOCLEUOHsaid, that as regarded the proceedings of the Woods and Forests, there were many complaints of the vexatious manner in which this part of the business of the department was conducted. He knew of a case in which a disputed right of this kind had been suspended over a proprietor and his father for years and years, and no decision had been come to. It would be a desirable thing for the public, if the Woods and Forests were compelled to bring these matters to a speedy trial.
  LORD CAMPBELLwas understood to protest against the doctrine which had been laid down, and which was calculated to produce uncertainty where none existed, with regard to the rights of the Crown, which was unquestionably entitled to the soil of the sea-shore between high and low Water-mark.
  LORD BROUGHAMsaid, there was no doubt about the law; but there ought to be some limit between the rigorous and the capricious exercise of these rights of the Crown. This was not, however, a subject for legislation, as the rights of the Crown were undeniable; but the Crown could only deal with them so as to benefit the public.
  LORD WENSLEYDALEagreed with his noble and learned Friend on the woolsack and his noble and learned Friend (Lord Brougham) that it would be entirely useless to legislate oh this subject, as the law was perfectly clear, The sea-shore belonged to the Crown for the benefit of the public; but there was a difficulty in interpreting what was the foreshore, and the question came before the Lord Chancellor, who, with the assistance of two of the common law Judges, had laid down the proper line. There could be no doubt that the sea-shore was held by the Crown for the benefit of its subjects, and the Crown had a right to grant the land to any one it pleased, provided that the grant was net inconsistent with its rights.
  Petitions read, and ordered to lie on the table.
  House adjourned at Seven o'clock; till To-morrow, half-past Ten o'clock.