by an order of the House, to prepare ano-stated, that from the circumstances they ther containing the names of the Spiritual had set forth, they had been led to think Lords also; from that Roll an alphabetical that persons who faithfully adhered to the list was afterwards made out, and the Protestant creed were debarred from the names were numbered from this, accord-protection of the Executive Government. ing to their position on the other Roll, in order to mark their precedence. Motion (by leave of the House) with drawn. THE LORD LIEUTENANT OF IRELAND SOCIATION. MOTION FOR CORRESPONDENCE. The reply they received from his Excellency was to the effect, that although he had never distinctly recognised the body called the Protestant Association, he had been in the habit of receiving any representations coming from them; but that upon this occasion he felt compelled to consider that they had used expressions insulting to himself and to his prede cessors in office-in fact, that they had VISCOUNT DUNGANNON rose to move cast a reflection upon the Executive Gothat there be laid upon the table a copy of vernment in Ireland. The Association, the Correspondence which passed during in their reply, denied that they had inthe month of April, 1857, between the tended to treat with disrespect his ExDublin Protestant Association and the cellency, or any other Member of the Lord Lieutenant of Ireland. The grounds Irish Government; but they added that on which he moved for this Correspondence they were anxious to claim for themselves were these. In one of the districts of that protection to which they were by law Dublin there was a certain large school, in entitled. The Lord Lieutenant then sent which a number of persons of both sexes, them another communication, in which he all Protestants, gave their gratuitous assist- stated that he understood them to have ance in the education of children. During withdrawn the offensive expressions used the latter part of the month of March, and in their memorial. He (Viscount Dunthe commencement of the month of April gannon) confessed, however, that he did last, mobs of Roman Catholics surrounded not see how it could be held that they had the building, ill-used and insulted persons withdrawn any portion of the language going in and out of it, and, among others, they had at first employed, or what there several ladies of respectability and station was for them to withdraw; for he did not were subjected to that treatment. It ap- conceive that there was anything offensive peared, moreover, that several policemen in the expression of an opinion, borne out witnessed those disturbances, and not only by facts, that Protestants did not receive a refused to take any part whatever in try- fair share of protection from the Execuing to suppress them, but actually gave tive. The Government and the Parliatheir countenance to the proceedings; for ment of the day might for a time regard upon one occasion, when two policemen with indifference proceedings of that chamet a body of women who were pursued, racter; but he believed the time must and assailed by a Roman Catholic mob, arrive when the feelings of the Protestants and were entreated to interfere, they not of Ireland would become aroused by the only refused to do so, but, by their laugh- injustice with which they were treated, ing and cheering, actually encouraged that and the attention of the Government and scene of riot and violence. In consequence of Parliament be directed to the subject. of repeated outrages of that description, If such acts as those which he had stated the Dublin Protestant Association thought had been committed by Protestants against fit to memorialise his Excellency the Lord Roman Catholics, he was persuaded that a Lieutenant, for the purpose of ensuring hue and cry would be raised from one end for their Protestant brethren the protec- of the kingdom to the other; and he did tion of the law. Now, he was not himself a member of that association, nor in any way connected with it; but he could state that it was composed of persons, not only of the highest respectability, but also of property and station, and that it was both a legal and a constitutional society, and not of an aggressive character. In their memorial to the Lord Lieutenant, they not say that such hue and cry would not be justifiable. He thought, however, it was not too much to expect that the protection accorded to one class of people in Ireland should be extended to every other. The Protestants who had been thus wantonly assailed were engaged in the meritorious duty of instructing the rising generation, and yet their efforts had been met by even worse outrages than any he had yet stated. It appeared that persons in the neighbourhood of these schools had had their houses violently entered; and that the inmates of those houses had been cruelly beaten, solely because they had sent their children to those establishments. It further appeared that the authors of those acts of violence had been encouraged to perpetrate them by a Roman Catholic priest, and by the teacher of a neighbouring national school. These were matters which loudly called for inquiry. and if Her Majesty's Ministers should refuse to institute that inquiry, it was high time the subject should be taken up by Parliament. He hoped the Government would have no hesitation in acceding to the Motion which he then made for the production of this Correspondence. EARL GRANVILLE said, he had no objection to the Motion. After the papers had been produced, their Lordships would be enabled to judge of the merits of the Clause 2 (Interpretation Clause). LORD ST. LEONARDS moved an Amendment, the object of which, and of other Amendments, which he intended subsequently to move, was to withdraw from the jurisdiction under this Bill all real estates, and to confine the jurisdiction of the Court solely to personalty. There was no difference of opinion, the business connected with probates, and letters of administration, should be removed from the Ecclesiastical Courts, to a Queen's Court of Probate; but the courts proposed to be superseded, never had, or could have, any jurisdiction over real estate. The Ecclesiastical Courts had exercised a jurisdiction over personal property, because it was necessary to have some one person to represent and administer that kind of estate. But, their Lordships' title to property did not depend on the Ecclesiastical Courts; they required no power from any court to enable them to inherit the estates of their ancestors, and they were able to devise their estates, where they had a devisable interest, without any regard to those There never had been any ground courts. why real property should be brought under the jurisdiction of the Ecclesiastical Courts, and, therefore, why should it now be brought under the jurisdiction of that Court which was a simple substitution for the Ecclesiastical Courts? It was said by persons extremely fond of uniformity that there was an anomaly in the validity of a will being decided by a Judge sitting in the Ecclesiastical Court, or in any new court, as far as regarded personalty, and by a jury as far as regarded realty; that the jury might come to the conclusion that the will was valid, and the Judge come to the conclusion that it was invalid; and that they might thus have two opposite conclusions by competent jurisdictions with respect to the same instrument. He believed that no one could quote two such instances within the recollection of any man. What he (Lord St. Leonards) would advise their Lordships to do was to leave the law as it affected real estate as it was at present. He would urge upon their Lordships the duty of maintaining untouched by this Bill the rights and immunities incident to their own estates and the rights and immunities of every landed gentleman in the kingdom; and he would especially caution them against a change which might tend to result in saddling the owners of real estate with probate duty in the way in which they had been already subjected to a succession duty. He might remind their Lordships that when a former Bill of his noble and learned Friend's (the Lord Chancellor) on this subject went before a Committee upstairs that very question, whether or not real estate should or should not be liable to probate, was most attentively considered and discussed, and that a majority of the Committee decided that real estate should not be made the subject of probate. It was true the present Bill did not propose to subject real estate to probate; but there were several clauses in it which brought real estate within the jurisdiction of the new court, and whenever there was a contest as to a will, the Bill enabled the heir-at-law, or the devisee of the real estate, to appear as a party in such contest. To that proposition he was entirely opposed, and he repeated that the law, of England as to real estate required no alteration. He therefore again called upon their Lordships to accept his Amendments, the effect of which would be to leave the law precisely as it stood at present, and to assimilate the Bill in respect to real estate to the one which had been so attentively considered by the Committee upstairs. Moved, to strike out the words ("Testament and ") and the word ("other"). property, and that the same necessity did not exist for probate of real estate that there was for probate of personal estate. In the case of personal estate it was neTHE LORD CHANCELLOR said, it cessary to have somebody to represent the did not appear to him that the Motion of deceased, to sue for the recovery of debts, his noble and learned Friend properly and to receive personal property, which raised the question which his noble and was of infinite variety, and probate with learned Friend had brought under the regard to that description of property was consideration of the Committee; but therefore absolutely requisite; but he did he (the Lord Chancellor) was neverthe- not think any such necessity existed with less willing that that question should be respect to real estate. There was, howraised at once and be discussed on the ever, this extraordinary anomaly - that first Amendment. That question was although, when a will had been proved as whether or not, to the extent to which to personal estate, the title of the executor this Bill affected real estate, it ought to was conclusively established to every paraffect it. With regard to the merits of ticle of the personal property-whether this point he owned that at a portion of in the shape of leasehold, money in the his noble and learned Friend's address he funds, railway shares, debts: if a question felt somewhat annoyed. He certainly did were raised whether the will was properly not like, for the sake of the character of executed, or whether the testator was of their Lordships' House, the sort of argu- sound mind, that was established once for mentum ad landowner or argumentum ad all as regarded personalty. But this was homines used by his noble and learned the anomaly, inasmuch as probate did not Friend, by which he appealed to the extend to real estate, the question which landed interest in the country as distinct had been decided as to personal estate from the general interests of the com- might, according to the existing law, be munity. He (the Lord Chancellor) on the reopened with regard to the real estate. contrary thought that all questions should His noble and learned Friend said that be decided not by the interests within the these cases were of very rare occurrence. House, but by the interests of the great That was true; and if there had been no body of the community. Now, what did ready remedy it might have been better to this Bill propose with reference to real bear the evil. But he (the Lord Chanestate? The Chancery Commissioners, cellor) considered that it might be remedied in their Report published in 1854, recom- so simply, so easily, and so effectually, mended that there should be one juris- that he should have thought himself wantdiction for real and personal estate, and ing in his duty if, when he was proposing that probate should extend to all pro- a plan for improving the testamentary perty of every description. He acted jurisdiction he did not include in it a reupon that suggestion when he introduced medy for such an anomaly. What he a Bill on this subject in 1854; but during proposed was, not that probate should be the discussions in the Select Committee, to required with regard to real estate in all which the Bill was referred, the general cases of wills disputed or undisputed; but opinion seemed to be that the alteration that if a will were disputed upon the would be attended with inconvenience; ground that the testator was insane, or and he therefore confined the measure to for any cause which applied to the whole personal estate. The Bill passed their will, all the persons interested under such Lordships' House in that form, but it did will should be cited immediately after the not pass the House of Commons. In testator's decease, and while the evidence 1855 and 1856 measures with the object was yet available, and the matter settled of improving the testamentary jurisdiction once and for all. He could not conceive were originated in the other House. But what possible objection there could be to as it was the opinion of his colleagues that such a course. His noble and learned it was advisable he should introduce a Friend had said that cases of the kind similar Bill into their Lordships' House referred to were of rare occurrence. this year, he had most attentively recon- they were; but since he (the Lord Chansidered the whole subject, and he had cellor) had had the honour of holding the satisfied himself that it would not be Great Seal the very question had arisen, desirable to act upon the recommendation and in a case of no small importance. In of the Commissioners with respect to real 1842 a gentleman died at Cheltenham, who VOL. CXLV. [THIRD SERIES.] 2 A So Kilmore, &c., Bp. Belper, L. Kingston, L. (E. Kings- Meldrum,L.(M.Huntly.) L. Brodrick, L. (V. Midle- Panmure, L. ton.) had made a will two or three weeks before | Bath and Wells, Bp. pro On Question, that ("Testament and ") stand part? The Committee divided:Contents 56; Not Contents 35: Majority 21. Clause agreed to. CONTENTS. Canterbury, Archbp. : Norfolk, D. Bath, M. Belmore, E. Combermere, V. Ponsonby, L. (E. Bess- Saye and Sele, L. Argyll.) Bagot, L. (D. NOT-CONTENTS. Berners, L. Clauses 3 and 4 agreed to. Clause 5 (Her Majesty to appoint Judge of the Court; the First Judge to be the present Judge of the Prerogative Court). LORD WYNFORD observed that, on the previous discussion on this Bill, the noble and learned Lord (the Lord Chancellor) had represented that it was the opinion of Dr. Lushington that one Judge would be sufficient for all the duties of the Admiralty, Matrimonial, and Probate Courts. He was informed, however, that that learned Gentleman had said that his opinion had been modified since the period when he gave his evidence some years ago, and that, considering the increase of business which had taken place in the Admiralty Court, and the probability of furGordon, V. (E. Aber- ther increase of business after the alteradeen.) tion of the present system, he was inclin Granville, E. cellor.) Ailesbury, M. Abingdon, E. Burlington, E. Clarendon, E. Eversley, V. Effingham, E. Fitzwilliam, E. Fortescue, E. Falmouth, V. ed to think that one Judge would not be adequate for the purpose. He therefore wished to know whether it was intended to leave the present clause as it now stood? A great part of the present business was conducted by paper out of Court, but if hereafter it should be conducted vivá voce, the more frequent attendance of the Judge in court would be rendered necessary, and, considering that the attendance of the Judge would also be required at the Judicial Committee of the Privy Council, he hardly thought that the services of one Judge would be sufficient. THE LORD CHANCELLOR was afraid that he had unintentionally gone beyond what his learned Friend authorized him to say. He had a conversation with him about a fortnight ago on the subject of the amount of business likely to come before the new Court of Probate, and was then told by him that twenty years ago he was examined before a Committee of the House of Commons, and gave his opinion that one Judge could do the business; but that since then the business of the Admiralty Court had no doubt increased, and that he could not now feel the same confidence that one Judge would be sufficient. Instead of representing the leaning of the opinion of that learned person to be now that one Judge could do the whole business, he thought he must state that the learned Gentleman was inclined to think, without expressing a confident opinion on the point, that one Judge would not be sufficient. It was, however, unnecessary to make any alteration in the present clause. Clause 23 (Court to have throughout all England the same Powers as the Prerogative Court within the Province of Canterbury). LORD ST. LEONARDS asked whether one Bill might not be introduced to apply to the whole of the kingdom? Why should Ireland be excluded from the advantage of such a measure? LORD CAMPBELL claimed justice for Scotland also. Surely his noble and learned Friend, with the assistance of the Lord Advocate, might devise some scheme to make the law with regard to probates and letters of administration uniform throughout the whole kingdom. THE LORD CHANCELLOR acknow ledged the desirability of such a measure, but said that he did not yet propose to make probates everywhere interchangeable. They would first make this Bill perfect for England, after which there would be no difficulty in framing an Act to extend to Scotland and Ireland. Clause agreed to. Clauses 24 to 36 agreed to. Clause 37 (Appeal to the Privy Council). LORD ST. LEONARDS moved an Amendment that appeal should lie to the House of Lords instead of to the Privy Council. He considered it to be a great constitutional question. It was essential that the Judges who had to decide questions relating to the property of the subject should be independent of the Crown. But the Judicial Committee of the Privy Council was a tribunal wholly unknown to the constitution of the country, and did not deal with questions relating to real estate, or such matters as were dealt with by this Bill; and a Privy Councillor was removeable at the pleasure of the Sovereign. LORD CAMPBELL said, he had not any serious fears of the Members of the Judicial Committee being under the influence of the Crown; but he thought that, constitutionally and wisely, the House of Lords was the proper Court of dernier ressort for all questions respecting the common law of England. THE LORD CHANCELLOR said, that the Amendment of his noble and hon. Friend (Lord St. Leonards) met his own views, and he would adopt it; indeed he had originally framed the Bill with an appeal to the House of Lords. Amendment made, and clause, as amended, agreed to. Clauses 38 to 95 agreed to, with verbal Amendments. Clause 96 (Compensation to Registrars, &c., of existing Courts). THE BISHOP OF LONDON observed that no provision was made in the Bill for the payment of the Chancellor and Registrar of the diocese of London. The office of Chancellor of that diocese was one of great importance, and had been held by men of high distinction, including Lord Stowell and Dr. Lushington. He hoped, therefore, that before the Report was brought up the noble and learned Lord would provide for the payment of those important officials, not only in the diocese of London, but in other dioceses. |