Imatges de pÓgina

MR. LOCKE KING, in seconding the Motion, said, he begged to return the hon. and learned Member his best thanks for bringing this question under the consideration of the House. This was a step in the right direction. He heard with much satisfaction a Motion of this kind coming from the opposite side of the House. He would take this as an earnest of much larger measures of reform, and he hoped he might claim the support of the hon. and learned Gentleman upon a future occasion.

THE SOLICITOR GENERAL said, he also must express his satisfaction at seeing this subject brought before the House. The great principle of the law of England was to bring every description of property within one general system of legislation. About thirty years ago a decision took place in the Court of Chancery in respect to this subject, which undoubtedly proceeded upon a mere fallacy. That decision had, however, been repeated by another Judge, and now that view of the law was firmly established. That decision had the effect of declaring that nothing could be done by a married woman in the way of alienating her personal property during coverture which would bind her in the event of her surviving her husband. That, however, was quite at variance with the principle of the law which recognised an analogy and correspondence between the ownership of real and of personal property. He approved of the main objects of the Bill, without binding himself to the details of the measure.

signment be made by the wife, she being simple deed to waive her right to equity of under coverture, the act could not be re- settlement. In order to avoid all these cognised in law. If she be desirous of difficulties in the existing law, and to do raising money, no person dealing with her away with these anomalies, he now asked could have any security, for if she outlive leave to introduce the Bill. her husband any deed she may have entered into for the purpose of alienating her property would become void as against her. The fact is, that the present defective state of the law holds out an inducement to a married woman to alienate her interest in personal property, with the idea if she survived her husband of claiming it not withstanding. Such property was therefore comparatively valueless, so far as making it available to meet the exigencies of the family in the lifetime of the husband. The law says it will protect the married woman against the undue influence of her husband; and it further in effect says that if she outlive her husband it is beneficial for her to disregard what she may have done in the way of alienating her property, and to do that which was dishonest. He (Mr. Malins) thought that he could not do a greater service to all parties concerned than in using his best endeavours to remedy this anomalous state of the law. The law ought either to disable the married woman from dealing with her real estate, or to enable her to deal with her personal estate. He proposed to confer upon a married woman the same power of alienating her personal property; of making it the subject of family settlement; of selling, mortgaging, or of dealing with it in any way she and her husband may think proper, as she now possessed in respect to her real estate. There was one other object which he wished to effect. At present when a married woman came into possession of property, it was the rule of the Court of Chancery that she was entitled to what was called a settlement of equity, which was generally held to amount to one-half of the property. The practice of the Court of Chancery was, that a married woman should appear before a Judge or Master in Chancery, who examined her in private as to her wish to have this settlement made, or whether she waived her right. He (Mr. Malins) had had a good deal of experience in this matter, but he never knew a married woman claim her equity of settlement except in one instance, and that was under a misapprehension. He proposed to provide that, without personal appearance before the Court, which was always expensive, and often inconvenient, a married woman might be at liberty by a Mr. Malins

Leave given.

Bill ordered to be brought in by Mr. Malins, Mr. George Alexander Hamilton, and Mr. Follett.


MR. HUME said, he wished to move for the appointment of a Select Committee to inquire into the state of the Prerogative Court. He had abstained from bringing forward this question till the Report of the Commission, which lately sat on the subject of the Prerogative Courts, was laid on the table of the House; but in that Report the only paragraph which he found in relation to this subject was a statement that the custody of testamentary instruments was most unsatisfactory, and that

the great number of places occupied by | be deposited in London, and therefore it such deposits rendered it difficult and ex- was high time that inquiry should be made pensive, and in many instances impracti- how those wills could be best placed for cable, to make those researches which often the purposes both of safety and accessibecome necessary. In the appendix, three bility. witnesses spoke of the state of the country MR. MALINS said, that the second deposits for wills, and one of those wit- reading of the Testamentary Jurisdiction nesses, Mr. Trevor, said not one of them Bill was fixed for the 29th instant, and was fire-proof. With regard to Doctors' that, among other subjects, that relating Commons, he had himself examined it yes- to the custody of wills would then come terday, and the room was so narrow and under the consideration of the House. It inconvenient that it was scarcely possible was extremely inconvenient, therefore, that to pass the fifteen or sixteen persons who when a discussion upon that question was were there engaged in making references. about to take place in a few days, the GoBesides, the accumulation of wills during vernment should accede to such a propothe last 300 years was enormous. There sition as that which had just been made was in fact, no room for more; and it was by the hon. Member for Montrose. He a curious circumstance that the property might also observe, that for the last two where they were deposited was leasehold, centuries wills were accessible in the most that the lease expired in 1857, so that if easy and ready manner to all who might they did not take immediate steps, the wish to see them. In fact, in those cases property, wills, and all, would fall into the where the names of the parties and the hands of the proprietor. He was anxious, date at which the will was made were therefore, that they should now inquire known, the instrument might be procured where better accommodation could be pro- in ten minutes, at a charge of only 1s. A cured. He would suggest that they should Commission had also investigated the subbe removed to Somerset House, and placed ject, and under those circumstances he under the care of Major Graham, the Re-trusted the hon. and learned Gentleman gistrar General of Births, Deaths, and Mar- the Solicitor General would be induced to riages, whose admirable and carefully pre-pause before he assented to the appointpared statistical information respecting the ment of the Committee. public health was generally appreciated, and where great convenience would be found from having the wills placed in connection with the registers of mortality.

THE SOLICITOR GENERAL said, that the question was one of paramount importance. It was one that had engaged the attention of successive Governments. He now hoped that we were on the eve of seeing something done to remedy the evil. He only regretted that the Motion had not been so worded as to point to the great convenience of having a place of deposit of wills adjoining that place of great statistical information, which was in immediate connection with the subject of wills, and which was so admirably arranged by the intelligent officer to whom the hon. Member had alluded. If such a plan could be effected it would prove of the greatest possible advantage, not only to the lawyers, but to every class of persons connected with property.

MR. HADFIELD said, he begged to thank the hon. Member for Montrose for bringing forward this subject. By the Testamentary Jurisdiction Bill, which had passed the House of Lords, it was proposed that all wills throughout the country should

MR. HUME, in reply, said that if the hon. and learned Gentleman referred to the Report of the Royal Commissioners, he would find that they had not investigated the subject of the custody of wills. The appointment of the Committee would not interfere with the question he intended to bring upon the Motion of the second reading of the Testamentary Jurisdiction Bill; and under any circumstances, whether that Bill passed or not, it was quite certain that a proper place must speedily be found for the deposit of wills. Motion agreed to.

Select Committee appointed—

to inquire into and report upon the state of the present public registry of the Prerogative Court, used as a Testamentary Office, and whether a better office can be established for the

keeping and preservation of Wills.


Queen's Message [15th May] considered.

Resolved, Nemine Contradicente

"That an humble Address be presented to Her Majesty, to return Her Majesty the humble thanks and to express the just sense we have of Her Majesty's goodness, and of Her care for the secų

of this House for Her Most Gracious Message,

-pear most expedient."

rity of the Country, manifested by Her Majesty's was no doubt of the importance of the 468 gracious declaration, that She will call out and service the Admiralty had the power of embody the whole or such part of the Militia of the United Kingdom as to Her Majesty may ap- He was not prepared to recommend any awarding the maximum fixed by the Act. alteration in the law as it now stood with respect to bounties; but he thought this question would be best discussed when they arrived at the 11th clause, which had special reference to bounties to be granted on capture of enemies' armed ships or privateers. The Bill, however,

Ordered-That the said Address be presented to Her Majesty by such Members of this House as are of Her Majesty's Most honourable Privy Council.


Order for Committee read; House in did introduce an important change in Committee.

Clause 1 agreed to.
Clause 2.

SIR GEORGE PECHELL said, he wished to call attention to the several cases in which he considered that the Board of Admiralty had not exercised the powers vested in them to grant rewards for the capture or destruction of pirates. Formerly a sum of 201, a head was allowed for every pirate captured, and 57. a head for every pirate killed; but in the year 1850 the law was amended by a Bill brought in by the right hon. Member for Portsmouth (Sir F. Baring) which empowered the Admiralty, after a judicial decision that the case was one of piracy, to award such rewards as they deemed reasonable to the officers and seamen engaged in the capture and destruction. Several such cases had occurred since 1850, and he must complain that the Admiralty had not in those cases exercised the authority vested in them of awarding compensation. In fact they placed the power in abeyance. This was a hardship and a breach of faith towards the officers and seamen engaged in such transactions; and he asked for some explanation.

SIR JAMES GRAHAM said, that previously to 1850 the law in respect to the bounties in question was in an unsatisfactory condition; but the Act of 1850 had placed them upon a footing which was at once just and regular. No bounty was now paid to the crews serving on board Her Majesty's ships against pirates, unless there was a previous judgment in a court of competent jurisdiction that the parties killed or captured were actually pirates. Such a judgment having been given, power was reserved to the Board of Admiralty to award remuneration according to the circumstances; and since he had been in office the Board had awarded it in two cases, taking into account in both the importance of the service performed and the risk of life. In cases where there

respect to bounties. At present, when bounty was awarded it was paid to the should be made, not to the agent, but to a agents; but Clause 11 said that payment public officer appointed for the purpose. The reason was, that when bounties were paid to agents they were paid on account of the parties entitled, and there was no power to compel them to account or to hand over the balance. This clause would obviate that evil.

Act of 1850 clearly intended that bounties SIR GEORGE PECHELL said, the should be paid for the capture or destruction of pirates. He had moved for returns of the adjudications under it, but they had not been presented, and he believed no awards had been made.

already stated that the present Board of SIR JAMES GRAHAM said, he had Admiralty had made awards in two cases.

would ask, then, why the returns were SIR GEORGE PECHELL said, he not given? One of the cases of which he complained was that of the Janus, which was engaged in the capture of pirates on Africa. In that case the Admiralty Court the Mediterranean coast of to reward as for 800 men; but the Board had declared that the crew were entitled of Admiralty, notwithstanding that award, asserted that the law did not empower them to accede to it. This was the point he wanted to have cleared up; and he would remind the right hon. Baronet that this case was totally distinct from that of the agents to which he had alluded.

repeat that the present Admiralty had put SIR JAMES GRAHAM said, he must the Act of 1850 into force. They had made two awards for the distribution of bounties, both to a considerable amount.

system of bounties for killing men was MR. HUME said, he considered the inhuman. It resulted in a sad slaughter of innocent men; and as there was a higher prize for killing than for capturing, it held out a premium for inhumanity.

Hundreds of thousands of pounds had been paid to reward the slaughter of innocent men. In hundreds of cases men were slain for the sake of the bounty who were not pirates at all. It was an atrocious system, discreditable to the country. MR. OTWAY said, that the clause enacted that the Act should come into operation in 1854. The effect of inserting the date 1854 would be, that it would operate retrospectively, and thus materially affect the interests of officers who up to this moment had had the arrangement of prizes. Cases were now in litigation of slavers, the proceeds of which had not yet been realised. If this Bill was passed, these proceeds would be taken out of the hands of the agents who had conducted the case from its commencement, and placed in the hands of some Government officer. The agents, consequently, would be mulcted of their just payment.

SIR JAMES GRAHAM said, the main object of the Bill was one of a prospective character with regard to the war with Russia. Prizes were coming in gradually, and it was necessary that this Bill, or a Bill in the nature of a Prize Bill, should be passed without delay. As regarded agents, it was unnecessary for him to remind the House of the losses occasioned by the failures of such parties. It was decidedly against the interests of the men engaged in the active service of the war that the agency system should be allowed. With regard to the officers, it frequently happened that the agents were very much in advance to them on account of prize money, so much so that it was a matter of indifference to them whether the prizes were distributed or not. But in cases of failure, the loss fell grievously upon the great body of the men. It was, therefore, the duty of the Government to see that precautions should be taken against the evils which existed in the last war; and the Bill had been deliberately framed with the view of securing that the prize money should be fairly distributed to the advantage of the great body of the crew, apart from the case of the officers. The Bill would materially affect the distributable amount of prize. Hitherto agents had received 5 per cent upon the money distributed on account of the men, and a very high percentage on account of the officers. With regard to the men, the percentage would be saved by the distribution being through a public officer, and be added to

the distributable proceeds among the whole crew. With respect to the officers, there was nothing to prevent the appointment of agents; and where the majority of a crew, including officers, agreed to appoint a particular agent, the agent would receive 2 per cent instead of 5 per cent, as during the last war. On the whole, therefore, he did not think the interests of any party had been disregarded by this Bill; and he hoped the Committee would not yield to any representation proceeding from agents, which might lead them to act in a manner inconsistent with the interests of crews.

SIR GEORGE PECHELL said, he had never heard of any deficiency on the part of the Navy agents, and he did not consider the proposed arrangement at all satisfactory.

SIR GEORGE TYLER said, he had never heard of any great defalcation among Navy agents in this country. He knew many of them, and believed them to be an honourable class of men. At all events it was not fair to condemn the whole body for the faults of a few. With regard to the Bill, he thought they had better go on, and take the clauses in the order in which they stood.

MR. OTWAY said, that the right hon. Baronet at the head of the Admiralty had made the most unfair insinuation that he was the advocate of the Navy agents, and that he, the right hon. Baronet, was the advocate of the officers and seamen. He had no more connection with Navy agents than the right hon. Baronet had. The right hon. Baronet knew that all his (Mr. Otway's) earliest associations were with the Navy. If he had thought that this Bill would act in favour of the officers and seamen, he would have been the last person to have offered any objection to it. The right hon. Baronet assumed that very large sums had been lost by the defalcations of Navy agents in England. [Sir J. GRAHAM: Not in England.] That was the question. If the failures had taken place in the West Indies, what security was there in this Bill that they would not take place again? By whom would prize money in the West Indies be paid? [Sir J. GRAHAM: By the Commissariat.] Since the right hon. Baronet has been so unsparing of his aspersions on private agents, and so much in favour of Commissariat agents, he would refer the right hon. Baronet to a paragraph in a morning paper of the other day, in which the failure of an important functionary of the

Another was

Admiralty Court was announced to no less | 10,000l. was recovered. an amount than 66,000l. He challenged the case of a London agent to the amount the right hon. Baronet to prove his asser- of 24,000l., of which not more than tion that 300,000l. or 400,000l., or even 12,000l. was recovered; another in Jaanything like 30,000l. or 40,000l., had been maica to the amount of 115,000l., of lost by the failure of Navy agents in this which not more than 70,000l. had been country. There were numerous cases in the recovered. The last case was that of a late war in which the agents of captors London agent, in 1844, to the amount of had procured the condemnation of prizes 6,000l., of which not more than 2,3001. against the opinion of the law officers of was recovered. During the war great the Crown. There was a capture made by failures took place, and heavy losses were the Lapwing, in which the energy displayed sustained. With respect to abuses in the by the prize agent secured 68,000l. to Admiralty Court, when he was at the Adthe captors; and the case of the Sama- miralty in 1830, all the offices were regurang, in which the agent, under like cir- lated, and all the appointments placed cumstances, had procured the distribution under the control of the Judge of the Adof 13,000l. Would the right hon. Baro- miralty Court; and when the Committee net say that the interests of the officers recalled the name of the present holder of and men would be less looked after by that office, Sir Stephen Lushington, they their own private agent than by Govern- would not doubt that any offenders would ment officers? No one could suppose that be brought to a summary and strict acthe whole of the business connected with count. With respect to the failure of the prizes during a long war could be carried Registrar of that Court, alluded to by the on by the present staff of the Admiralty. hon. Member for Stafford, no securities Within the last fortnight he had made in- had been taken on his appointment, but quiries among a great many officers re- ample precaution and security had been garding the proposed alteration, and he taken in the appointment recently made. had not met with one single officer who Under the old system the Registrar of the approved of it. Admiralty, for a certain period after the condemnation of the prize, kept the proceeds under his control; but by this Bill the money, immediately on being realised, would be paid into the public account. It had been asked where the seamen would go for their money. They would have to go to the Paymaster General or to the Accountant of the Navy. The money would be paid into the public account, and the public would be responsible. With respect to insurances on prizes, that point had not been overlooked, and directions had been given that the prizes should be insured. The hon. Member had assumed that no private Navy agents would in future be employed, but that was not the case. If the majority of the captors thought that their interests would best be consulted by their appointing agents, there was nothing in the Bill to prevent them doing so. The agent's commission was fixed at 24 per cent, with an addition of 3 per cent on the private share of the captain, so that it could not be said that the interest of agents had been much neglected.

ADMIRAL WALCOTT said he thought Navy agents had three great incentives to act in the interest of those who appointed them-first, from the honourable confidence reposed in them; secondly, from the 5 per cent they received upon the net proceeds of the capture; and thirdly, from the conviction that the conscientious discharge of their duties would lead to the extension of their business. He believed the Bill would not meet with that success which its promoters calculated upon.

SIR JAMES GRAHAM said, he thought that it would be more convenient to proceed as the hon. and gallant Member (Sir G. Tyler) had suggested with the clauses as they stood. But after the speech of the hon. Member for Stafford (Mr. Otway), he must refer to one or two points. He had not stated that the loss sustained had been from the failure of Navy agents in this country, but from the failure of Navy agents generally. He would not mention any names, but he held in his hand a list of cases showing the losses sustained by failures of agents from 1812 to the end of the war. One of these was an agent in the West Indies, who failed to the amount of 33,000l., of which not more than 19,000l. was recovered; another for 21,000l., of which not more than

Mr. Otway

Clause agreed to, as was also Clause 3.
Clause 4.

CAPTAIN SCOBELL said, he would remind the Committee that in the course of last Session he had endeavoured to intro

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