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Gentleman said they would get into inex- | Australian colonies set great value, and it tricable confusion, because a similar course would be most convenient if a Bill for that would be pursued with regard to other purpose were carried into effect.

MR. G. BUTT said, he thought the difficulties pointed out by the hon. Member for Kidderminster (Mr. Lowe) had not been answered by the noble lord. The passing of a Bill to enable Her Majesty to assent to a portion and not the whole of the Bill of the Colonial Legislature was a course which, in his opinion, was open to very grave doubt. As he understood the law, a Bill sent to that House from the colonies must be assented to in its entirety, and not partially. He understood a part of the Bill was not to be assented to, as it was a matter which the Colonial Legislature had no power to frame a Bill upon. He thought, therefore, the noble lord ought not to press the Bill without further consideration. When the Bill came from the Colonial Legislature it was an entire thing; and he did not think it was competent upon principle, or, if competent, he considered it would be extremely inconvenient, that the noble lord should introduce a Bill to enable the Crown to assent to the valid part of the Colonial Bill, and to reject the other.

colonies. With regard to New South Wales, it was quite true a similar course would be adopted; but the constitution proposed by the Legislative Council of New South Wales differed in some important respects from that proposed for Victoria. În Victoria, for instance, it was proposed that a Legislative Council should be elected, in New South Wales, that the Legislative Council should be nominated by the Crown. With regard to the Legislative Council, the Government thought it right that the wishes of the colony should be consulted; but when the Bill was passed with regard to Victoria and with regard to New South Wales he did not apprehend there would be any difficulty about the other colonies. With regard to Van Diemen's Land, they had already a constitution which was strictly within the powers given by the Act of 1850, and that constitution having been laid before the two Houses of Parliament, had already been confirmed and approved by Her Majesty in Council. With respect to South Australia, the constitution was agreed to, but the Council afterwards had several discussions and divisions, the result of which was a desire to indulge the Legislative Council in their wish to have it referred back to them; and, accordingly, the matter was referred back, with discretion to the Governor to propose to the colony, whether elective or nominative, a Council in such a form that he might be able to consent without further reference to Parliament. But he thought it inconvenient to send this proposal to Victoria and New South Wales to be re-discussed, when it appeared their mind upon the subject was not changed. He should be quite ready, in discussing these several Bills, to point out in what way he thought they ought to pass. As the hon. Gentleman said the schedules would be open to discussion, and if hon. members should think parts of those schedules ought to be omitted, it was in the power of Parliament to alter them, though, of course, it was a matter of discretion whether they would do so. With respect to general legislation upon this subject, he would only say that a great desire was expressed in Australia that the management of the waste lands, and the revenues arising from them, should be at the disposition of the Colonial Government. It was a matter upon which the

MR. LOWE said, it was not his intention to oppose the introduction of the Bill. MR. ADDERLEY said, he was quite opposed to the introduction of the Bill, as it was not the Bill of the Colonial Legislature, but a new Bill altogether.

MR. J. BALL said, the Bill which the noble lord was about to introduce did not alter any portion of the Bill which had been passed by the Colonial Legislature. It was simply proposed that certain portions of the Colonial Bill should be omitted.

Leave given. Bill ordered to be brought in by Lord JOHN RUSSELL and Mr. JOHN BALL.

Bill read 1o.

The House adjourned at half past One o'clock.

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HOUSE OF LORDS,
Friday, May 11, 1855.

MINUTES.] PUBLIC BILLS.-1a Leases and Sales of Settled Estates; Ecclesiastical Property (Ireland).

LEGAL

MEASURES TESTAMENTARY

JURISDICTION BILL-TENANTS' COM-
PENSATION BILL.

LORD ST. LEONARDS rose to put some questions to his noble and learned

Friend on the woolsack relative to certain | He also wished to make a few remarks legal measures now before Parliament; upon the subject of fees paid to solicitors and his first question would have reference to the Court of Chancery. When he had the to the Testamentary Jurisdiction Bill. honour of holding the seals of office, he had Their Lordships were aware that the sub-approved of a certain scale of fees for the ject involved in that Bill, having been very solicitors practising in his Court. His fully considered before a Select Committee noble and learned Friend behind him (Lord of that House, a measure was prepared Lyndhurst) had, however, disapproved of last Session, which, after receiving the that scale, and its revision was contemsanction of their Lordships, was sent down plated by the noble and learned Lord on to the other House of Parliament. The the woolsack. Now, speaking generally House of Commons, however, did not pass on the subject, he would say that it was the measure into law; it had, however, much easier to increase a scale of charges been introduced into that House in the than to reduce one after it had subsisted present Session. It appeared to him that for a certain period. The complaint—and the proper course to have pursued this no doubt the just complaint of the soliSession would have been to have reintro- citors, was, that while there was a great duced the Bill in their Lordships' House; deal of unimportant and easily executed but that not having been done, it became business for which they were too well renecessary to call upon his noble and learned munerated, there was, on the other hand, Friend to state what were the intentions of a great deal of business well executed for the Government with respect to the other which they were not adequately paid. The branches of the Ecclesiastical Courts. He next question to which he wished to direct wanted to know what was to become of their Lordships' attention was the Tenants' the Arches' Court; and he hoped the Compensation (Ireland) Bill, which had noble Lord would be able to hold out to been brought into the other House of Parthem an assurance that they would not be liament, and which contained a retrospeccalled upon to offer any opinion upon indi- tive clause, giving compensation for imvidual features in the proposed plan of provements effected within a certain period. legal reform until the whole plan had been A measure on that subject also had been submitted to them. A promise had been before their Lordships, and referred to a made that a general plan for reform of Select Committee. Now, it had always the Ecclesiastical Courts would be brought been pointed at the Government of his forward. Up to this time, however, that noble Friend (the Earl of Derby) that promise had not been fulfilled. Now, they had introduced a measure embodying what he feared would take place was a retrospective clause. It certainly was this, that the Testamentary Jurisdiction impossible to deny the fact; and therefore Bill would pass in some shape or other, in that respect the Government of that day without their having had an opportu- and of this stood upon precisely the same nity of considering the general scheme, footing. For himself, however, he might unaffected by the decision of the other say, that he had been always opposed to House of Parliament upon a most import- the principle of such a clause, and that his ant part of it. No one could form a satis- opinion had never for a moment undergone factory opinion as to whether a measure any variation; still when he found that was applicable to the whole jurisdiction the Government of which he was a Memwithout a knowledge of all its features. ber had adopted such a clause circumIn reference to the Testamentary Jurisdic- scribed and defined within certain narrow tion Bill there was some reason to com- limits, he did not consider himself at liberty plain that no information had been given to stand in the way of that Bill being by Her Majesty's Government as to the passed into law. That Bill, however, did amount of compensation to be paid under not pass through the other House of Parit. He had heard it, however, estimated liament. A Bill on the same subject and at from 140,000l. to 150,000l. Now, that containing a retrospective clause had been was a very large sum of money, and would during the present Session introduced into have to be paid by the suitors from esti- the other House of Parliament; and he mated savings in other directions. At hoped it would be explained whether the the same time he could not help thinking Government had come to any definite conthat it required a great deal of sound clusion with reference to that Bill, and if argument to show how such a burden could they had, he hoped they would abide by be properly placed upon the suitors at all. them. He thought it might have been

VOL. CXXXVIII. (THIRD SERIES ]

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reasonably expected, holding the views appoint a number of chief clerks. He had which they did, that the Government itself had some experience of equity business in would have come forward with a measure, Ireland-and there was no reason for beand endeavoured to have carried it through. lieving that since then it was on the inInstead of that they had left the matter crease, except, perhaps, by the business of in the hands of a private individual-an the Incumbered Estates Court; but when hon. and learned Gentleman-who was he was there he would venture to say that known to hold very strong opinions in favour the judicial power was fully adequate to discharge all the business that came before He ventured to say that the Chancellor and the Master of the Rolls were quite competent to transact the whole judicial business of Ireland. He trusted, therefore, that any measure which the Government might have in contemplation to afford increased facilities for the transaction of equity business in Ireland, would not be incumbered by the appointment of judges who were not required. With regard to the Incumbered Estates Court, he would observe, that it was very unwise to make Ireland the subject either of experimental or exceptional legislation. Let her be governed by the law which was common to both countries. If the rule with regard to incumbered estates which was adopted in Ireland were a good one, let it be applied to England also; but whether such a court should be established for either country at all, involved, in his opinion, considerations relative to property the most momentous ever raised before Parliament; but he trusted that the Government would act with great caution in adopting the Incumbered Estates Court, with its present provisions, as a part of the Court of Chancery. Looking at all the measures to which he had referred, he contended that it was the duty of the Government to take them up, and to persevere with them until they became law.

of a retrospective allowance for the improvements of tenants in Ireland. The conse-it. quence was, that a measure had been introduced, which was now travelling up to their Lordships, and which, in all likelihood, would lead to a difference of opinion between the two Houses. At the same time, he was bound to add, that should the measure come up to their Lordships in the same form as that which had previously received their sanction, and limited and circumscribed as it was before, he could not feel justified in opposing, although he could not regard it even then with favour. But in the shape in which the Bill obtained a second reading from the House of Commons, he would state at once that it was one which he never could approve of, nor could any one that had retained the slightest regard for the rights of property. He would pledge himself to show, when the measure came before their Lordships, that there was not the slightest foundation for the assumption that any rule of equity had ever been propounded, or that there was any case in equity producible, sanctioning the principle contained in the clause in the Bill granting compensation for retrospective improvements. As for the subject of the Irish Court of Chancery, which had been taken up by an hon. and learned Friend of his, whose talents were very great, and for whom he entertained a great respect, he must say he could not at all agree with the Bills which had been introduced by him; and he most earnestly hoped that any measure to be introduced by Her Majesty's Government, altering the constitution of the Irish Court of Chancery, would not be based upon a supposed analogy of the Irish and English courts. He understood that it was proposed to create in Ireland three Vice Chancellors and to abo- | lish the offices of the Masters. Now there could be no doubt that the creation of three Vice Chancellors was not called for by the state of business in Ireland. In LORD ST.LEONARDS was very much England they were of necessity appointed, afraid that result could not be brought ¡ but not in lieu of the Masters, in whose about. It was easy to estimate quantity, place, and for the fulfilment of whose du- but it was much more difficult to estimate ties, it had only been deemed requisite to quality.

LORD LYNDHURST wished to explain that his objections to the present scale of fees in the Court of Chancery was based upon this principle: that costs were taxed according to the length of the proceedings; so that a bounty was thus held out to solicitors to lengthen proceedings as much as possible, and their interests and the interests of the suitors became consequently opposed. What he desired to see brought about was, that the scale of remuneration should have regard not for the length of proceedings, but for the value of work done.

THE LORD CHANCELLOR said, he honour to introduce a Bill last Seshad no right or inclination to complain of sion upon the subject of divorces; but it the questions which his noble and learned was not considered expedient to carry it Friend had put to him, and he would further at that time. The Testamentary endeavour to answer him with the same Jurisdiction Bill not having passed the frankness with which he had asked them. House of Commons, that Bill would be inThe first question related to the Bill now troduced in the present Session without pending in the other House, for the im- any alterations. He next came to the provement of the Testamentary Courts. Clergy Discipline Bill. In the first place, His noble and learned Friend had com- he contended that there was no necessary plained, as he understood, that the Bill connection between that and the other two ought to have been introduced in that subjects. It was a subject of a purely House this Session as it had been last. ecclesiastical nature. It might be perThe reason for the Government adopting fectly right to dispose of the two former, their present course was, that the Bill although the latter remained untouched; having been passed by their Lordships last but that had not been the course followSession, and thrown out by the other ed by the Government. It had prepared House, it was thought more desirable it a new Clergy Discipline Bill, which had should be approved by that House before been submitted to some of the Bishops, it was introduced for their Lordships' con- a portion of whom had approved of it, sideration. He had every reason to be- while others, he was bound to say, had lieve that in the form in which it now expressed disapproval. Within the last stood it would receive the sanction of the few days he had been engaged-and should other House, and it could then be dis- be engaged for the next few days-with cussed by their Lordships with greater the English Bishops to know the exact facility, inasmuch as its material points points of which they disapproved. The had been already fully considered in the Bill would, no doubt, receive material molast Session. The noble and learned Lord dification from their suggestions, but it had inquired what was the amount of com- was in a state of forwardness which enpensation. He (the Lord Chancellor) was abled him to state that it would be ready, not prepared to answer as to the exact when such modifications were made, to be amount. He certainly did not think it laid upon the table of the House. The was so much as 140,000l.-he thought it next question of his hon. and learned was not more than 100,0007.-but, be it Friend related to the Irish Tenants' Comwhat it might, no additional charge upon pensation Bill. He quite agreed with the suitors would be imposed to meet it; his noble and learned Friend that the quesbecause the fee, called the "proctor's fee,' tion was a most important one. He could now paid upon every probate, would be assure him that neither himself, nor, he continued until the compensation had been believed, any of his colleagues, had any defrayed, and it was calculated-though greater sympathy with the doctrine, abcalculations were sometimes deceptive-stractedly considered, of retrospective comthat they would be sufficient for that pur- pensation, than his noble and learned pose. The only hardship on the suitors Friend had. If it were erroneously supwould be, that, instead of the fee being posed that that was a principle that might removed at once, it would be continued for be acted upon in the abstract, according to a few years longer. A similar Bill to the the ordinary rules of equity in this counpresent had been prepared for Ireland, try, he (the Lord Chancellor) could not with some slight modifications, but it had agree to such a principle, nor did he bebeen thought advisable to postpone the in- lieve that such a principle had ever been troduction of that Bill until the other had enunciated by an hon. and learned Friend been disposed of. He agreed, to a certain of his in the other House, to whom reextent, that reforms in the other branches ference had been made. He (the Lord of the Ecclesiastical Courts, having re- Chancellor) had never communicated with ference to divorce and clergy discipline, his hon. and learned Friend on the subought, in order to make the reform of the ject; but he was sure that what his hon. Ecclesiastical Courts complete, to be dealt and learned Friend had said was, that with at the same time; but still they analogies for retrospective compensation were subjects which stood upon their might be drawn from decisions of Lord own footing, irrespective of the other Eldon and Sir William Grant, in the branches of reform. He had had the case of a person standing by and seeing

another building upon, and making improvements upon land belonging to him, without taking means to prevent it. This analogy, very imperfect, was merely alluded to in the course of the debate. He (the Lord Chancellor) had quite as little sympathy as his noble and learned Friend with the doctrine of retrospective compensation; but he was of opinion that the case of the Irish tenant was an exceptional case, which, for the peace of society, it might be important to deal with in an exceptional manner. That being the case, what had taken place? An hon. and learned Gentleman in the other House had introduced a Bill framed upon that principle, and going further than he trusted the Government would be disposed to go. A debate ensued, and the Government had undertaken to take the Bill upon themselves, provided the hon. and learned Gentleman who introduced it would be satisfied with limiting the retrospective compensation to an extent below that which was fixed upon when the Bill passed that House two years ago. They proposed to confine it to houses built by the tenant, and to roads and external fences made by the tenant. They also proposed to limit it to a certain defined period, the exact extent of which he did not recollect; but it was necessary that the work should have been done within a certain limited time. It was also proposed to extend it to certain cases in which the landlord should turn the tenant out of possession. However contrary to abstract principle it might be, and always protesting that it was a most difficult doctrine to justify, even when carried only to that limited extent, as a matter of compromise, the Government were willing to accede to it. His noble and learned Friend had objected to the Court of Chancery being quoted as an authority on this subject; but he (the Lord Chancellor) did not think it was intended to be said that the Court of Chancery had done precisely the same thing, but merely, as he had already explained, that it afforded a sort of analogy for doing so. The doctrine was cause, in the first instance, it had hapnot the doctrine of the Court of Chan-pened accidentally to be forced upon their cery only, but of the civil law and attention in Ireland. He was not able to of common sense; because, if he stood say that they would be prepared to introby while a man was making improvements duce such a Bill for England, neither on his property, under circumstances which would he say that they would not, but he knew must amount to a tacit encou- would only observe that a great deal of ragement on his part, that was held to care and consideration was necessary bebe equivalent to an actual declaration that fore such a measure was introduced. Difthe person making the improvement might ficulties might present themselves with

go on with them. He would not say that was the case of the Irish tenant, but it furnished an analogy that in the course of argument it was very reasonable to use. The next question of his noble and learned Friend had reference to six Bills which had been introduced into the other House by an hon. and learned Gentleman who had been the Irish Solicitor General under the Government of Lord Derby. Her Majesty's Government were sorry to see those Bills introduced by the hon. and learned Gentleman, not that they disapproved of the principles on which they were framed, but because they had issued a Commission to inquire into the state, impliedly, of the Court of Chancery in Ireland and of the Incumbered Estates Court, for the purpose of ascertaining whether the functions of that Court could be advantageously transferred to the Irish Court of Chancery. The Commission was directed to very learned persons in Ireland and England, and they had made very elaborate inquiries on the subject. Such of their Lordships as were connected with Ireland must know that the subject of their inquiry interested, in a vast degree, all the community in Ireland; for, unpopular as that Court, to some extent, had been in its inception, there was nothing to which a greater portion of the community would listen with more sorrow than to a proposal that the powers exercised by that Court should be abruptly brought to an end. That Commission, the members of which were very eminent men, and who were well acquainted with the subject, had made a very full inquiry, and had issued a report containing various recommendations; and he trusted that he should be soon able to lay a Bill on the table of the House to carry into effect a great portion, if not the whole, of those recommendations, and he could say that such Bill was in preparation. His noble and learned Friend asked if the Bill would extend to England, and he begged to inform him that it would not extend to England; but they ought not to stop short of a great reform be

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