Imatges de pÓgina
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the whole, to 4291. 13s. 2d.; so that the difference, after deducting those charges, was, according to the indenture and the patent of the 30th of August, 1559, to be bestowed and employed for the maintenance of these Poor Knights. It appeared that the rents of the said lands of the new dotation exclusively of the rectories and prebends, were for several years, from 1558 to 1564, or later, applied according to such indenture and letters patent. He then came to King James I., who, on the 5th of October, 1603, confirmed the rights of, and granted an additional shilling a day to, the Poor Knights. Charles I., in 1623, also confirmed the ordinance of Queen Elizabeth. By an Act of what was commonly called the Long Parliament, passed in 1649, for abolishing deans, deans and chapters, canons, prebends, and other offices and titles of or belonging to cathedral or collegiate churches, and settling their property in certain trustees, the said deans and canons of Windsor were purported to be abolished, and the leases granted by them since the 1st of December, 1641, were made void; but it was provided that all rents and sums of money which before that date had been, or ought to have been paid towards any charitable use should be continued to be paid as they were before the 1st of December, 1641. But at the restoration of King Charles II. the dean and canons returned to their old place as trustees. Well, it appeared that, from the time of Charles II. to the reign of George II., the persons appointed to the places of the Poor Knights were generally of a lower grade or rank than were the persons who before or since that time had been appointed to such places, and, as well by reason of their poverty as of ignorance of their rights, were prevented from asserting, and they did not assert, their claim, to a share of the increased rents of the lands of the new dotation. But a great movement took place in the reign of George II. in reference to the position of these Poor Knights. Among those who interested themselves on their behalf was his (the Earl of Albemarle's) great-grandfather, who presented a petition on the subject in the year 1734, a counterpart of that which he himself had laid upon the table of the House a few days before. The case was referred to the law officers of the Crown, and the dean and canons were summoned to appear before them. The existence of the indenture of Queen Elizabeth was then denied, and as VOL. CXXXIII. [THIRD SERIES.]

there were then no means of proving its existence, the matter went no further. The opinion of counsel was taken on one point, to which he wished to call the attention of the noble and learned Lord on the woolsack. On a former occasion he asked his noble and learned Friend whether the Court of Chancery had any jurisdiction over the question relating to the claims of the Poor Knights of Windsor, and his noble and learned Friend declined giving any opinion. With great submission, he thought his noble and learned Friend was wise in so declining, because it was a question by no means clear, and one upon which another Member of Her Majesty's Government had expressed an opinion contrary to that which it might be presumed was the opinion of his noble and learned Friend. He was aware that it was very improper to allude to what took place in the other House of Parliament, but he thought he might do it as a matter of history. When an hon. Member asked the Secretary of State for the Home Department a question concerning the claims of the Military Knights of Windsor, Lord Palmerston said that "the natural course of bringing to a decision a question of the kind which was pending between the Military Knights and the dean and canons of Windsor would be a suit in Chancery; and he hoped he might be able to propose to the parties a method of bringing the question to an issue by a reference, which might save them from the expense and trouble of a Chancery suit, and he should endeavour to propose some such arrangement." Now, if he (the Earl of Albemarle) did not know his noble Friend to be one of the best-hearted men in all Christendom, he should say that that reply looked very like a threat of a suit in Chancery if the present expedient should not succeed. He would now refer to cases in support of his view of the case. The first authority he should bring forward was the opinion of William Fortescue, afterwards Sir William Fortescue, Master of the Rolls. In, or shortly before the year 1733, the Poor Knights of Windsor submitted a statement of their case to that gentleman, who gave his written opinion to this effect

"I conceive, if this was a case wherein the Crown was not concerned, that a court of equity would decree the Poor Knights to have an equal share in proportion with the other of the said charities; but, in the present case, it seems to me that the King may himself direct in what manner, and to which of the said charities the said improvements shall be applied, or may name and

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appoint any person or persons of the Order of celebrated cause of " Jarndyce v. Jarn-` dyce." He trusted, however, he had suc

the Garter so to do."

the dean and canons of Windsor were merely trustees of the property held by them, and that the Military Knights of Windsor were the cestuique trusts of that property. The noble Earl then referred to a document which had recently been discovered in the Ashmolean Museum, showing that payments had been made by the dean and canons of Windsor, under the will of Henry VIII., and also under the indentures of Edward VI. and of Queen Elizabeth, in their character of trustees only. He would only refer to one more fact in proof of the point he was endeavouring to establish. It appeared from the journals of their Lordships' House, that in 1597 a Bill was introduced to enable Arthur Hatch to hold a portion of the new dotation, certain lands belonging to the rectory and parsonage of South Moulton. On that occasion counsel were expressly directed to inquire and report whether the Bill contained anything to prejudice the Poor Knights of Windsor. They reported that it did not; and the Act which was subsequently passed-39 & 40 Eliz.--distinctly recited the fact that

Under this advice the Poor Knights peti-ceeded in showing to their Lordships that tioned George II., praying for relief. The King handed the petition to Lord Harrington, the Secretary of State, who referred it to the law officers of the Crown, who summoned the dean and canons before them, and they attended and objected to the King's prerogative in the case. Further proceedings were afterwards had before Sir Dudley Ryder, Attorney General, who made a report to the King, in which, after setting forth all the facts that had been produced before him, he said, he was humbly of opinion that the Poor Knights had not made out a title to any share of the improvements of the property. This opinion evidently rested upon the alleged non-existence of the indenture of the 4th of August, 1547. But since the month of May, 1845, Mr. Philip Hayward had discovered that very indenture. In support of the argument that the Court of Chancery had no jurisdiction in this case, he would advert for a moment to what had been done in regard to the appointment of the Chancellor of the Order of the Garter. That office was created by King Edward IV., who appointed Richard Beauchamp, the then Bishop of Sa-"His late Majesty King Edward VI. lisbury, to the office. The chapel of St. George, Windsor, being then within the diocese of Salisbury, Edward IV. declared that the Bishops of Salisbury should be also Chancellors of the Order of the Garter. But Edward VI. set aside, by his sovereign will, that declaration, and for about 120 years laymen filled the office of Chancellor. He did not see the Prime Minister in his place, but he might observe that in the reign of Edward VI. the First Minister of the Crown was made Chancellor of the Order. One Bishop of Salisbury, it was true, succeeded in the next reign, because he happened to be the son of an attorney, and because he knew there was no jurisdiction in the Court of Chancery over the appointment. But, should he (the Earl of Albemarle) be driven from the argument he was then urging, he had others which he could bring forward, for he felt it his duty to do all that was in his power to protect his brother officers-the Poor Knights of Windsor-and save them from the painful alternative of being thrown into that" Slough of Despond," the Court of Chancery. Why, if that were to happen, they would spend their 1s. a day, and would be involved in a suit as interminable as the The Earl of Albemarle

did, by letters patent under the Great Seal, grant this parsonage for the use of the Poor Knights of Windsor." He apo logised for having detained their Lordships so long, but still they must remember that the time he thus occupied in urging the claims of these Poor Knights was not so long as the Chancery suit with which they were threatened would occupy. If ever those Poor Knights were frightened in their lives, it must have been when they read the speech of the noble Lord the Secretary for the Home Department. He would not trouble their Lordships with quoting any more cases. He trusted he had said enough, at least to induce their Lordships to grant him a Select Committee. He must say that since his noble and learned Friend (Lord Brougham) had forced upon an unwilling Parliament and an unwilling Government the Act relating to the abuses of charitable trusts, there had been a disposition shown on the part of the Legislature and of the Executive to grant an inquiry wherever a prima facie case could be produced. But, somehow or other, it had happened that hitherto something had occurred to prevent these Poor Knights from having their case fully in

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quired into by Parliament. In 1835, a could not help thinking that there were Commission of Inquiry was instituted, but almost insuperable objections to the apon that occasion, although the inquiry ex-pointment of a Committee, and he asked tended from the dean down to the sexton, their Lordships whether they were likely yet the dean and canons actually ignored to be able to comprehend the merits of a the existence of the Military Knights, a complicated case, depending upon the conbody with whom they had now been asso- sideration of ancient deeds of the time of ciated for 500 years-the existence of men, Henry VIII., Edward VI., and Elizabeth; many of whom had obtained medals for gal- and whether they could come to a conclulant services in the field, unless, indeed, it sion on this claim of rights? He apprewas to be understood that those Knights hended that the proposed inquiry fell not were specified under the title of "ser- within the legitimate duties of that House; vants by the dean and canons. The and he saw insuperable difficulties in the noble Earl concluded by moving for the way of granting the Committee-not the appointment of a Select Committee. least being the impossibility of drawing a line between this and other cases, and of preventing, if the present Motion were sanctioned, the House from being made a general court of inquiry in favour of all persons believing themselves to suffer under a legal wrong. The noble Earl had imagined that the individuals whose cause he advocated would experience great difficulty in prosecuting their claim before a court of law; but it should be borne in mind that any parties not in a condition to bear law expenses might have their case, under certain circumstances, conducted without expense. There was likewise another course of proceeding which the noble Earl's clients might adopt; they might present a memorial to the Attorney General; and, if that functionary thought the case a fitting one for investigation, he could, ex officio, insti

THE LORD CHANCELLOR conceived that the proposition made to their Lordships by the noble Earl was one which, if sanctioned, would make that House a universal court of inquiry in all cases where persons fancied they suffered a legal grievance and ought to be encouraged in pursuing their legal remedy. He felt sympathy for the veterans whose case had found so able an advocate as the noble Earl; but it was quite out of their Lordships' power to do anything in their behalf. But the case stated to the House was purely a question of legal right. The case laid before them by the noble Earl was, that for several centuries too great a portion of the revenues of the charity had been appropriated to the dean and chapter, and far too small a portion to the Poor Knights. This was entirely a ques-tute proceedings. When this matter was tion of legal right for a court of law to mentioned to him some three or four weeks decide. Supposing the Committee granted, ago, he yielded to the suggestion which and that their Lordships came to the con- some one then made, that it might be reclusion that, according to the true construc-ferred to the new Board of Charity Comtion of these charters and deeds, the rights mission; but the learned persons comof the parties whose case the noble Earl posing that Board made an objection which advocated had for two centuries and a half was perfectly conclusive-namely, that been misunderstood, what could their Lord- they had no jurisdiction in the question, ships do but leave the parties where they for the Charity Act excepted from the were before, letting them assert their own jurisdiction of that Board all collegiate rights? The noble Earl had spoken with and cathedral churches; and these Poor some horror of sending the Poor Knights Knights, it seemed, were integral parts of to the Court of Chancery. Now, it might the collegiate church of St. George, Windbe a misfortune to be compelled to resort sor-a circumstance of which he was not to the Court of Chancery at all, but he at the time aware. Under these circum(the Lord Chancellor) believed that in re- stances, all that he could suggest was, spect to a question of this sort, where it either that these parties should of their was only to be established, aye or no, whe- own authority institute legal proceedings, ther a right existed, the Court of Chancery or present a memorial to the Attorney proceeded with as great rapidity as any General, satisfying him that it was a case tribunal could safely act. But whether in which he ought to interfere. He (the that were so or not, the Court of Chancery was nevertheless the proper tribunal to decide the case which the noble Eart had now brought before their Lordships. He

Lord Chancellor) doubted whether that officer would come to such a decision, because, where, whether rightly or wrongly, a state of things had gone on for about

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two centuries, that might not be deemed a | cial capacity as a Court of Appeal. very reasonable case for any interference showed the extreme inconvenience of the on the part of the Attorney General. Still, proposed course. At the same time, he it was open for these parties to pursue that could not help thinking that it was somecourse, and, if they did not take it, they what hard on these parties that they should, must then do as other persons did who in consequence of being excluded, by an believed themselves to be deprived of their exception in the Charitable Trusts Act, rights-they must have recourse to the from the cognisance of the Board appointordinary tribunals of the land. With re-ed under that Act, be driven to another spect to the proposed Committee, he conceived that the granting of it would be dangerous in itself, and might be a precedent for still more dangerous applications hereafter.

LORD CAMPBELL said, that having been alluded to, he would trespass for a few moments on their Lordships' attention. He had the greatest possible respect for the parties whose case had been brought before the House; but he must decline giving any opinion in that House on the case, even if his recollection enabled him to do so. But he remembered nothing at all of the merits of the case, which had been so fully pleaded by the noble Earl, from whose able advocacy it might be inferred, that if the noble Earl had devoted himself to the practice of the Court of Chancery he would by this time have been sitting on the woolsack. That House was not the tribunal to which, in the first instance, the parties ought to come, and he apprehended that the proper tribunal to take cognisance of such a case was the Court of Chancery. Let the clients of the noble Earl go into the Court of Chancery, and, with his assistance, their case would be most ably pleaded, and full justice would be done. He (Lord Campbell) would likewise repeat what had fallen from the noble and learned Lord on the woolsack, that the Attorney General, whatever might be his political opinions, would most eagerly and zealously attend to such a case if he thought it a fit one for interference.

LORD BROUGHAM said that, having been alluded to by the noble Earl, in consequence of having formerly taken a part in the great question relating to the abuses of charitable trusts, he wished to say that he could not approve of the present proposal for the appointment of a Committee. What such a Committee would have to inquire into would be whether the case of the Poor Knights or that of the dean and canons was the better in point of law. That was an entirely legal question; and, if argued before the proper tribunal, the Court of Chancery, it might afterwards come before their Lordships in their judiThe Lord Chancellor

and more expensive and more tedious and anxious course of proceeding—namely, an application to the Court of Chancery. Considering, then, that these parties had a case as against the chapter and against the Government, in so far as the Government, listening to the recommendation of the Ecclesiastical Commissioners, had taken possession of part of the canonries, to the exclusion of the rights of these Poor Knights, and considering the hardship they suffered in being excluded from the easy, summary, and cheap remedy afforded by the Charitable Trusts Board, he could not help expressing his earnest hope that the law officers of the Crown would lend a favourable ear to the representations of these gallant and meritorious persons; and he should hope that the costs of the proceedings, regard being had to the hardship of the case, would be borne not by the Poor Knights, but by the Government.

EARL FITZWILLIAM conceived that the speech of the noble and learned Lord on the woolsack constituted a powerful argument in favour of the Motion, because the noble and learned Lord had pointed out that, by a singular exception in the Charitable Trusts Act, whatever injustice might be done by collegiate establishments, there was no remedy under that Act. He, therefore, thought it was a case for the interference of Parliament. True it was that the noble and learned Lord on the woolsack had said that the parties might go to the Court of Chancery; but surely it must be obvious that it would be rather hard for these Poor Knights to enter into litigation with the Dean and Chapter of St. George's, Windsor-and what had passed in the course of the present discussion led him to think that the dean and chapter would be supported by the Government. It had been said that the Attorney General would act ex officio, but still the Attorney General must be moved. One of the duties of the Government was to inquire into cases like the present, where the parties might have a difficulty in proceeding at law. He should be glad to hear that

MR. J. WILSON said, the appointments had been made in accordance with the recommendation of the Commission, who found that the increase of business warranted the additional assistance.

the Government would bear the costs of SIR HENRY WILLOUGHBY said, he the suit, and then, indeed, much of the wished for some explanation with respect ground for the appointment of the Com- to the appointment of two additional semittee would be removed; but as he per-cretaries—an assistant secretary and an ceived no intention on the part of the architectural secretary—at 2007. and 4007. Government to do that, he thought it a year. expedient for Parliament to interfere, and he looked upon that House as being a more fitting branch of the Legislature for such interference than the other House. So far as he understood the case, it appeared to him that, unless there was some interference on the part of Parliament, it would be quite in vain for these parties to look for any remedy for the grievances of which they complained. It had been said that the House of Lords was not the place to pronounce, in the first instance, on a legal question, but still the House of Lords might be a very good body to inquire whether there was not a case proper to be brought before the legal tribunals.

THE EARL OF ALBEMARLE, in reply, said that, as the noble and learned Lords who had spoken considered the case a very hard one, he would not divide the House on the Motion, if he received any intimation from them that they would support him in some future Motion for an Address to the Crown to instruct the Attorney General to institute proceedings on behalf of the parties whose case he had brought before the House.

Motion, by leave of the House, withdrawn.

House adjourned to Monday next.

HOUSE OF COMMONS,

Friday, June 9, 1854.

MR. W. WILLIAMS said, he should be glad to know what this increased business might be.

SIR WILLIAM MOLESWORTH said, the Commission, consisting of Sir Stafford Northcote and Sir Charles Trevelyan, had considered the question of the amount of business transacted in the Board of Works, and reported that it could not be properly performed without additional assistance.

SIR HENRY WILLOUGHBY asked an explanation with reference to the assistant architect.

SIR WILLIAM MOLESWORTH replied, that the architectural assistant had been for some time employed by the Board of Works to carry on the works at the Embassy at Constantinople. On his return to this country he continued in office in connection with the Board, and was at this moment employed in their service.

MR.W.WILLIAMS said, he did not quite understand the appointment of the Commission to which the right hon. Baronet had referred. He was sure that, if the right hon. Baronet had come to that House and said he required more assistance in his department, no one would have refused it. Why was application not made to that House? SIR WILLIAM MOLESWORTH re

MINUTES.] NEW WRIT. For the City of Lon-peated that the Commission had been named don, v. Lord John Russell, Lord President of

the Council.

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in consequence of an application made to the Treasury; and when their Report was laid before the House the additional secretary was appointed.

MR. HUME said, he wished for some explanation as to the sum of 4017. inserted as the salary of the architectural assistant from November, 1853, to March, 1855, and would really like to know for what purpose such an office had been created?

MR. J. WILSON said, that the office referred to was not in any way a new office, but had existed for some time. None of the public money was wasted by having such an officer to assist them, because if Government did not employ him, they must employ strangers, and that probably at a much increased rate.

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