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William L. Clements


I iltlKlrawi ^^

American History

i' K V.) I' h R r Y o ^









15' VICT 0 RIJl, 1852.






^tconb Folume of tj^e ^tsston.








3o I







I. SiTBJECTs OF Debate in the House of Lords. II. Subjects of Debate in the House of Commons. III. Protest.

I. Subjects op Debate in the House of Lords.

March 23, 1852. Page

Law of Wills Amendment Bill Bill read 2^ ... ..^ ..• 1

Commerce with Rio de la Plata Question of Lord Beaumont ... ... 9

March 25. District Courts of Bankruptcy Abolition Bill Bill presented by Lord Brougham

Bill read 1* ... ... ... ... ... 53

Indian Affairs The Burmese Question postponee? ... ... 65

Law of Wills Amendment Bill House in Committee Bill to be reported,

March 26 ... ... ... ... ... 59

Consolidated Annuities (Ireland) Motion for Select Committee Motion agreed

vO ... ... .•• ... ... vMr

March 26. Law of Wills Amendment Bill Amendments reported Bill to be read a Third Time, March 29 ... ... ... ... 171

The Incumbered Estates Court (Ireland) Question ... ... 171

Proclamation for Assembling Parliament Bill Bill read 2^ ... ... 174

March 29. Confiscation of the Territories of Ameer All Morad Motion of the Earl of Ellenborough for Papers, &c. Motion agreed to ... ••• 238

March 30.

The Crystal Palace Question ... ... ... ... 343

Digest of the Statutory and Criminal Law Presentation of Petition by Lord

Brougham ... ... ... . ... »•• 343

Dissolution of Parliament Question ... ... ... 345

Administration of Justice in Lunacy Motion of Lord Lyndhurst for Returns,

agreed to ... ... ... ... ... 348

Mr, Robert Owen— Presentation of Petition by Lord Brougham ... 368


Apbil 2, 1852. Pagt

The East Iiidk Companj's Charter— Motion of the Eari of Derby, '' That a Select Committee be appcnnted to Inquire into the Operation of the Act for the better Gofiniuent cf Her Majes^'s In^an Territories" ^Molion agreed to .... ... ... ... ... 5^

The Endowment of MajDOoth Qoestion ... ... ... 580

Afbil 5. War vith Aya ^Motion of the Eail «f EI]flDboroii|^ £or Papers, ^. Motion 4igreed to ... ... ... ... ... 647

Foreign Eefiigees Modem of Lord Beaomcmt for Papers, &c. ^Motion ^oUk-

^WlflHW^ ... ... ... ... ... 00 «/

Patent Law Amendment (Ko. 2) Bill House in Conmiittee ^Report to be re- eeiTed, April 6 ... ... ... ... ... 682

Afbil 6.

Treaty with Bel^um Qoeadon ... ... ... ... 774

Loss of the '' Birkenhead"— Qoeation ... ... ... 775

Adjournment of the House Statement of the Earl of Derby ... ... 775

The Indian Press— Statement of the Earl of EUenborough ... ... 776

Aprtt. 19.

Master in Cha^ioery Abolilion Bill— Bill lead 1* ... ... 798

April 20. Cdlege of Maynooth (L^laod) Aet Question of the Marquess of Clanricarde ••• 873

April 22. St. Albans Disfttmchisement Bill ^Bill read 2' Motion of Lord Redeedale, ** That the Petitioners be heard by Counsel agunst the Bill" ^Motion agreed to List of the Not-ConletU ^Protest ... ... 968

April 23. Case of Jotee Pershand Motion of Lord Broughton for Papers, 4c. ... 1027

Masters in Chancery ^Explanation of Lord Campbell ... ... 1109

St. Albans Disfranchisement Bill Order of the Day read, for Hearing Counsel against the Bill : no Counsel appeared Bill reported ••• ... 1110

April 27. Admixture of Chicory with Coffee Presentation of Petitions by Viscount Torrington and the Duke of Montrose ... ... ... 1192

April 29. General Rosas The Aff&irs of the RiTer Plate Question ... ... 1278

Sanitary State of the Metropolis Motion of the Earl of Shaftesbury, ** That the Sanitary State of the Metropolis requires the Immediate Attention of Her Majesty's Goyemment" Motion o^eed to ... ... ... 1283


II. Subjects of Debate in the House of CommoKs.

March 23, 1852. Page

The Hop Duty Motion of Mr. Frewen, for a Repeal of the Excise Duty on Hops

Motion vnihdravm ... ... ... ••• 19

Foreign Refugees Motion of Mr. Monckton Milnes for Papers, &c.-^Motion

ivithdrcnon ... ... ... ... ••• 28

Egypt and Turkey Motion of Mr. Anderson for Papers, &c. Motion toith-

drawn ... ... ... ... ... 30

River Fergus Drainage Motion of the O'Gorman Mahon, " That the Board of

Works in Ireland be directed to complete forthwith the Drainage Works on

the River Fergus" }ilLoi\OTi withdravon ... ... ... 40

Bomeo^Motion of Mr. Hume for Papers, &c. Motion agreed to ... 43

St. Albans Disfranchisement Bill Amendments made ... ... 45

March 24. Protection from Dangerous Animals Bill Order for Second Reading read Amendment of the Attorney General, '' That the Bill be read a Second Time this day Six Months'' Amendment and Motion withdravm ... ... 46

March 25.

Metropolis Water Supply Bill Motion of Lord John Manners, for an Instraction to the Committee Motion agreed to ... ... ... 76

London (Watford) Spring Water Company Bill Order for Second Reading read Amendment of Mr. Halsey, '' That the Bill be read a Second Time this day Six Months" Amendment ne^aftoed Bill read 2^ ... ... 79

The Maynooth Grant Question ... ... ... ... 85

Elective Franchise Motion of Mr. Hume, " For Leave to bring in a Bill to Amend the National Representation, and for taking the Votes by Ballot" Motion negatived Division List ... ... ... ••• 86

March 26. Burdens on Land Statement of Mr. Slaney ... ... ... 175

Supply Ordnance Estimates House in Committee House resumed ... 178

Ways and Ways Interest on Exchequer Bills Hou«e in Committee House resumed ... ... ... ... ... 192

Apprehension of Deserters from Foreign Ships Bill Order for Second Reading read Amendment of Mr. Chisholm Anstey, " That the Bill be read a Second Time upon this day Six Months" Amendment tDtthdrauon Bill read ... 193 Charitable Trusts BUI Order for Cpmmittee read Amendment of Mr. Alder- man Thompson, " That the Bill be referred to a Select Committee" ^Amend- ment fjoithdraron ^BiU considered in Committee House resumed ••• 208 Corrupt Practices at Elections Bill House in Committee— House resumed ... 237

March 29. Edinburgh and Canongate Annuity Tax Abolition Bill Bill read 2^ ... 264

Militia Bill Order [20th February], " That Leave be given to bring in a Bill to Amend and Consolidate the Laws respecting the Militia," read Question agreed to ... ... ... ... ... 267

Supply— Exchequer Bills— Report of Committee brought up ... ... 339

MttKihester and Salford Education Committee Committee appointed ... 341


Maech 30. P(ig^

National Defence— Commercial Steam Navy— Motion of Mr. Anderson, " That Measures should he adopted with a view to render the Commercial Steam Navy promptly available for the National Defence, in case of Emergency" Motion %DUhdravm ... ... ... ••• 369

Import Duties on Wines Motion of Mr. Anstey, for the Appointment of a Select Committee to Inquire into the Revenue derived from the Import Duties on Wines Select Committee appointed ... ... ... 395

The Ballot Motion of Mr. H. Berkeley, •* For Leave to bring in a Bill to cause the Votes of Parliamentary Electors to be taken by way of Ballot" Motion negatived Division List ... ... ... ... 406

March 31. Tenant Right (Ireland) Bill Order for Second Reading read Amendment of Sir Emerson Tennent, •* That the Bill be read a Second Time upon this day Six Months " House adjourned without putting the Question ... 439

April I.

Westminster Bridge Question ... ... ... 475

Foreign Refugees Motion of Mr. Monckton Milnes, " That this House has observed with regret in the Correspondence respecting Forei^ Refugees laid upon the Table a Menace on the part of a Friendly Power," <kc. Previous Question, *' That the Question be now put," put and negatived ... 477

Harwich Borough Motion of Sir De Lacy Evans, for Leave to bring in a Bill for appointing Commissioners to Inquire into the Existence of Bribery in the Borough of Harwich 'Motion negatived ... ... ... 526

Harwich Writ Motion of Mr. T. Duncombe, " That Mr. Speaker do issue his Warrant to make out a New Writ for the Borough of Harwich" Motion mthdrawn ... ... ... ... ... 542

Municipal Corporation Acts Amendment Bill House in Committee House cesomcd ... ... ... ... ... 545

April 2. The Eari of Derby Explanation ... ... ... 583

Pablic Business Dissolution of Pariiamcnt Statement of the Chancellor of the Exchequer ... ... ... ... 588

Harwich Borough Motion of Mr. T. Duncombe, " That Mr. Speaker do issue his Warrant for a New Writ for the Boroush of Harwich" Amendment of Mr. Bouverie, " That no Warrant do issue this Session of Parliament for any New Writ for the Borough of Harwich" Amendment tcithdrawn Motion agreed to ... ... ... ... ... 591

Repayment of Advances Acts Amendment (Ireland) Bill Order for Second Reading read Amendment of Mr. F. French, " That the Bill be read a Second Time this day Six Months" Amendment negatived Bill read ... 602 Corrupt Practices at Elections Bill House in Committee House resumed ... 636 MUitia Bin— Bill read 1* ... ... ... ... 646

April 5.

The MiUtia Question ... ... ... ... 683

Ministerial Policy Statement of Lord John Manners in reply to Mr. Osborne 684

The Ionian Islands Statement of Sir John Pakington in reply to Mr. Hume 718

Supply Kafir War House in Committee— -House -resumed ... ... 734

Cormpt Practices at Elections Bill House in Committee House resumed ... 768

April 6.

Seimre of Publications in Belgium Question ... ... ... 778

The Loss of the "Birkenhead "—Question ... ... ... 780

BmnI and the Rirer Plate— Question ... ... ... 781


Apbil 6, 1852 continued, ^^^

Public Business Question ... ... ... ... 7o3

Ballast Heavers (Port of London) Motion of Mr. G. Thompson, for Leave to

bring in a Bill Motion a^re^d to ... ... ... 783

County Courts Further Extension Bill House in Committee House resumed

Bill reported ... ... ... ... ... 793

Suitors in Chancery Relief Bill House in Committee House counted out ... 797


April 19. .

East India Company's Charter Motion of Mr. Herries, for the Appointment of a Select Committee to Inquire into the Operation of the Act, &c. Amendment of Mr. Anstey, for the Appointment of a Local Commission |of Inquiry in British India Amendment negatived Select Committee oppotnted ... 806

Passengers Act Amendment Bill House in Committee House resumed Bill reported ... ... ... ... ... 869

April 20.

Public Business Resolution " That Orders of the Day have Precedence of Notices of Motion," agreed to ... ... ... 890

Outrages on British Subjects in Tuscany ... ... ... 892

Frome Vicarage— The Rev. Mr. Bennett Motion of Mr. Horsman ** For an Address to Her Majesty to direct Inquiry to be made whether due Respect was paid to the Decrees of the Church of England in the recent Institution of the Rev. Mr. Bennett to the Vicarage of Frome" Motion negatived Division List 895

Hungarian Refugees Motion of Lord D. Stuart for Papers, &o. Motion agreed to ... ... ... ... ... 943

April 21. Irish Fisheries Bill Order for Second Reading read Amendment of Capt, Jones, ** That the Bill be read a Second Time this day Six Months" Amend- ment and Motion withdrawn Bill withdrawn ... ... 950

Building of Churches &c. Bill Order for Second Reading discharged Bill withdrawn ... ... ... ... ... 960

Parish Constables BUI— BUI read 963

Enfranchisement of Copyholds BiU House resumed W\ reported ... 964

Industrial and Provident Partnerships Bill BiU read .,. ... 967

April 22. Paper Duty Taxes on Knowledge Motion of Mr. MUner Gibson, "That Arrangements be made that wiU afford a Repeal of the Duty on Paper " Debate ac(;oumed tUl May 12 ... ... ••. ••• 983

April 23. Maynooth Question ... ... ... ... 1028^

Foreign Tariffs Question ... ... ... ... 1029

Colonel Outram Explanation of Sir James Hogg, relating to what passed in a Previous Debate ... ... ... ... 1030

Militia BUI Order for Second Reading read Amendment of Sir Do L. Evans, " That the BiU be read a Second Time upon this day Three Months" Debate ad;oumed tiU April 26 ... ... ... ... 1035

April 26.

The late Archbishop Murray Question ... ... ... 1111

Legal Education Question ... ... ... ...1111

Loss of the ' ' Birkenhead ' ' Question ... 1112

MUitia Bill Adjourned Debate Order for resuming Adjourned Debate [April 23] read Debate resumed Amendment of Sir De L. Evans negatived

—BiU read ••• ... ... ... ... 1114



rtJM MflCioa of Sir Eiwi


«r Mr. Ajiai^ iv P«pa% 4^— H

.. 1330

ike BSI Wra^a SecoMi Taiw if«Ktka ^ Si

... 1S15

ExaenmiB M ocant «f tfe

«r Mr. HrrvmL •*

y. iSor Fijen.. 4«l Mddoa

... 1317





Fifth Session op the Fifteenth Parliament of THE United Kingdom of Great Britain anb Ireland^


OP THE Reign of




Tuesday, March 23, 1852.

MhruTEg.] PuBUc Bill. 2* Law of Wills Amendment.


LAW OF WILLS AMENDMENT BILL. RDER of the Day for Second Reading,


The LORD CHANCELLOR: My Lords, I rise to move the Second Reading of a Bill for the Amendment of the Law with respect to Wills. When I introduced this Bill the other night, I stated to your Lordships the difficulties which it was in- tended to guard against. By a statute passed in the reign of Charles II., all devises in writing were to be attested and subscribed by three or four witnesses, in the presence of the testator ; and it was said that a will was good if the name of the testator was found at the head of the will ; and therefore, if a man, for example, began in these terms *' I, John Styles, do make this my will," that was held to be a sufficient signature. Now, my Lords,

VOL. CXX. [thibd series.]

this was thought to be an abuse; and, in order to guard against such an abuse, a new Act of Parliament was passed in the first year of Her present Majesty, for the amendment of the law of wills, which provided that every will should be signed at the foot or end thereof by the testator, in the presence of certain witnesses. I have stated to your Lordships that the effect of that enactment was (and I dare say it was a surprise upon those who framed the Act) that, unless the name of the tes- tator followed immediately after the dispo- sition of the will (if there was, for example, a little more than an inch of space left, on which the name might have been intro- duced), if the name was placed a little lower, the case was tried, not by the rule of law, but rather by the rule of space, and the will was held to be void; and, upon that construction, my Lords, hundreds of wills have been held to be invalid, and misery and wretchedness have found their way to hearths where wealth, peace, and comfort ought to have found their habita- tion. My Lords, the proposition is to


3 Lm:ofWllU {LORDS} Amndmeml BiU, 4

amend ihe presets Law. bj proT-dln^. iLa:, :o wtica I ref-ir. will. I think, r€m«dT a

w*L<re she^e <:: the te*CA:cr :* i:Qz*i r-irj zr^rac ibo**. Tie Ac*: c: PariiAxncnt

af^«f ihe wZ. so x* :o zi^e. It iis rlooe :: Eer rr'rs^'i: ITd'rscT. as I liATe told

and Ktsadoc & sazcsioa :o ^e will iiscif vicr L:nisi:cs. r^i^iires a wiH w be signed

u M SCOW ifcis it was iiitecded :o &: ihe :>:c or end ier«*;f. b. the presence

nzfieccii the will bj Ae si^aanrr« *f»rthe , of tw-^ wiciess^s. Tha.:, nj Lcrd*, I

▼ill that ihill be held to be nllJ. Now. bive dLsrcsed of. It ihen 2r:es on to re-

aiT Lords, no (pes^oa e^er arose ii the q-:r»; thi: the *ij:ac;ire «;: the testator

rass anaiber ct wills which were rrrade afzer ihall :e nad-* :r xtkncwLedz^Hi in the pre^

th« Stac«e of Frauds in the rsijpi of iec■^fi cf the witc<*5e«. N-jw. mj Lords,

Charges II.. which I h±^^ E-snrl^n-'d no this di^c-zlij bjj arisea Troa that h vas

qtxesti«:c. I saj. e^er arrse is ::• wcetL'2r z-:z 7z-\i.r-i^i zj :!:f Sii:i:e ■:: Frauds

the came cc th-* tescaicr *:>^Izj ifier :h^ :i- ti::* ii£:il:7 ca* :!•:▼ iris^c- To or

will was ia. :3 prvcer place or z-jc. a=i Li:riii:'.rs w:l z^tir Iz. nizd that what the

therewn? the r^sfno^al of ihe obstacle Aj: r"-:*:.-^* :*. that the *:^a:ixre of the

which has been cccasi-.-ced bj the dec:- :csta::r ?!iaI1 ";e lade :r ichno vled^ed in

sioos will remove all tl:e i: acuities, and the presence :f tie witzesses. Now, mj

no qaesticn hereafter can arise, as it ap- Lcr'is. it zrim 'iiaprrens tliat when a man

to se, mv L*)nis. with re^rd to the has caie ills w:.l azd called In the wit-

e^ecation oi sach a wul. Mt Loris, I be- zesses t.: Attest [\. lie is izxiocs that they

fiiiTe there ▼ill be a general concurrence iz shonid n<:t iee azj port >jf the proTisions

this measure, and I beiie^e that coch:^^ of that will -. iupcijse. ::r eiampLe. that

can be more desirable, as people die daiij. it is wrltt-f:: .s a sheet of letter paper

and as men most make their wills, aid as ▼m bave it bcr'jrf j-:a, and two senrants,

a great majoritj of wills would be held to perhaps, conte :a:j t je r^jcci to witness the

be Talid but ?:r the rule ci !aw I have re- wi!!. and tiie tds:at»:r iesiris that they

ferred to: azd. indeed. I know that mazv ^h-^ild :oc rriad izj p-:r-:on of the will by

of TOUT LordsuiiK. in conseijience of what ^'azcizj: ir-ir 'Sij.z -rart which is above the

Tou have heard, have done e.iactlv what 1 *ir^a:-i.-e. izl tl:a: :a^ "zdice^i a man fre-

have vione myself namely. I have lockid inj^tlj t-: :Md Iotti the -rill so as to hide

at my jwn wiil to «e whether it was ex^- zr-.zi tho -viizesses the p«:rt:":n above the

cuced so ss to carry my cwn intentions si^arjre. izd in iofz^r so he has folded

into etfecc. havin;c * ▼enr ^reat doubt in ii:wn the sijcnatuTe itseii. And. mr Lords,

my mind whether the appearance of the it has heen hold tl:a: as the statute re-

thinjc -pon paper mijiht not : a validate it. ^lires that the sijrint'^i'e- not the wilL

for I might have put my aame a little should be made lad ickr.o^led^ed in the

lower than the rule of law re*juired. And ?:rvseQce o: the w-fjesses. -.inless thev have

I think. mT Lcnis* that it is of the ntmosc seen the si:rxature. the will is void. Now.

imnortance that a man * will should be mv Loris. that ^:i5 .:c"*fr the intendoa;

considered valid and sacred where the mere jnd ^v-lth y-jur Lcrisii^ps* p«ri*m;ssiun, I pro-

form 00 ly is in qtwstion. and the substance pose to amend t::at *ca:;i -jf the Law in this

is not in dispnce. Therefore I pnjpode. manner, bv ;fnact:nj: that if the signature

▼ith your Lorlshfps* penuissioo. to ca-Ty -:£ tlse tL*s:a:or be n '.'s pr.-per place, and

the Bill through all its stages now. so that it is 'v:t ir:-'^ to ha^e been placed there

yoor Lonlships may be enabled to nass aft^T the witnesses idiji-jd their signatures*

tibe measare before Faster, and send it and if the t^'srarjr it the time acknov-

down to the other House immediately. :odj:ed the histrmieiit to be his will, that

Xy Lords, there are other points which [ that shall be soificienc. y :w. my Lords,

hftf« eodeaToured to cope with, and which I enter.a:ncd a hone wh:ch hi^pe I hare

LT be open co more observation, asd rather ibamioned ^v-^hin the last quarter

1 A may draw from some of my noble oc an hoar but 1 had honed that this pro-

aed Frwnds objections to its pas- position was :rec rr-.-m jojeccicn. and would

▼ichoQC more mature oonsidenition : ^lcet w-h none r^jm anr n mv noble and

my Lords^ if that should be so. I o:i;i lear'ied FHtuds. becaiiso. :* a testator ac-

diac I should at once n»el nivrjcl: kn-'w-cdix'-'s J 3 nstrunient to be his will,

withdraw those clauses, been use snd if '.ho w-ll ov-mo tj be oxamined. and

I a pat f^irward nothin:; that, in 'tiv •.■:o •unie oc the toscar'jr is r'ljund to be in

▼iil endantcer the irnciual nica- ts an»pcr nlacc it the ond ^jt the will,

I me which I thiuk so exceed- where s uic aa:i:r-'r .' ^Vjat -a ic. mr

.6. My Loidiik ^e two ciuuaes Locds^ that you hare to guard againat ?

L CkmaUor


Law of Willi

{Mabcr 23| 1852}

Ammdmtfii Bill,


Thdrd ii the signature— *the testator has signed it, and, properly speaking, it is not his will unless he has signed it. If, there- fore, he did that which was requisite at the end of it, which is necessary to give effec- tual operation to it, I ask your Lordships whether it is reasonable to allow men*s wilb to he set aside upon a distinction of that sort? I should promise your Lord- ships that if any obstacle be opposed by any of my noble and learned Friends to this provision being carried now a provision which I should think it not proper to attempt to force upon your Lordships^f any of my noble and learned Friends should have any objection to offer, I shall think it highly improper to attempt to ask your Lordships to pass this provision without full consider- ation beinff given to it; and, therefore, I shall withdraw it, so as not to endanger the ultimate success of the whole measure, though undoubtedly I shall introduce it for further and more mature consideration upon another occasion. My Lords, there is another improvement, if your Lordships should think proper to concur in it, that I propose to introduce. The statute requires that the witnesses should sign in the pre- sence of the testator. And, my Lords, it has very often happened, that when a man is making his will in extremis when he is lying in bed, and is incapable of being moved, but in a state of perfect capacity of mind it has frequently happened that witnesses who have come round the bed- side, and witnessed the execution of the will, and seen it signed by the testator, all due solemnities being observed, in order not to disturb him, have retired to the ad- joining room, and there attested the will; and then the question has arisen Is that, or not, a compliance with the statute, which requires that a will shall be signed by the witnesses in the presence of the testator? Now, my Lords, in order to meet the difficulties of the case with a natural desire to give effect to men's wills, where there is no fraud, and where the statute has been substantially complied with the Courts have made this distinction, that if the witnesses sign in such a position in an adjoining room that they are within the line of sight, so that the testator, if he liked, might see them (although nobody pretends that he did see them), the will is good; but if they happen to retire a little beyond the line of sight, the table, for ex- ample, being out of view, and they all sign the will, the will is Toid. Now, my Lords, what has been the consequence? Why,

my Lords, this that juries hare not been found who would, though upon their oaths, fnd a will so signed to be void. They would not find a will to be void, though it was clear that the testator was not in a position in which he could have seen the witnesses sign. And, my Lords, we have had several instances of this sort. Seve* ral trials have been sent down to juries once, twice, and thrice, to decide that question upon a will, in cases in which there was no doubt about the fact that the witnesses were not within the line of sight, and the juries have, upon every occasion, returned a verdict in favour of the will, refusing obedience to the law, because they thought that a verdict according to the rule of law would be stripping the rightful owners of their just possessions. Now this is an invitation which should not be held out to juries to compel them to come to a verdict at variance with their own conscience. My Lords, there is un- doubtedly a difficulty, and I will state to your Lordships what one of the results of this stato of things is, and which is really almost absurd and almost ludicrous. The statute applies to a blind man*s will as well as to the will of a man who is pos- sessed of his eyesight; and it has been held, therefore, that under the statute, although the witnesses are to sign in the presence of the testator, yet if they sign in the presence of a bhnd man that it is a good signature. But your Lordships will be astonished when I tell you that the Courts have made this rule, namely, that the same rule that which I have spoken of to your Lordships as to the line of sight applies as well to a blind man as to a man that can see ; and the Courts have decided that if a blind man is not in a position in which, if he was blessed with sight, he could see, his will is void. And so, in the case of a man being wholly incapable of seeing, if the witnesses are there, his will is good if they happen to sign within the line of sight. Now, my Lords, surely these are anomalies in the law of England which ought not to be allowed to prevail; and I must say that the first case that I put to your Lord- ships, in which men wills have been held to be void because the signature was not in the proper place, is a case which in its operation is a disgrace to the country. My Lords, it is very easy to point out what I have been stating to your Lordships upon the last head. It will not be, perhaps, so easy to persuade

B 2

Law of Wills


AmendmtfU BUI,


some of tny noble and learned Friends tlmt I have provided a satisfactory remedy, althou^^h I have often and anxiously taken the subject into consideration. But, my Lords, this no hasty conclusion of mine. I have no doubt some of my noble and learned Friends will think that I have not provided in the most satisfactory manner for the solution of this question ; but what I propose to provide for is this, that where witnesses, without fraud, and as part of the same transaction, without quitting the house or place where the will is signed, do sign a will after seeing the testator sign it, all due solemnities being observed, that shall be held to be a valid will. Now, my Lords, no doubt it mny be said that this would open a door to some fraud or some substitution of one will for another. My Lords, these are not the dangers, after all, which we have to avoid. It may be said, that because the dangers have not oc- curred, the law has prevented them. But the law has not struck at fraud ; the law has destroyed a man's will which was open to no substantial objection : but the law has not prevented the frauds which, when- ever the parties had been determined to carry them into execution, they have been able to do in spite of the law. I do not say that they have all been successful-^ they have attempted it skilfully, and it may be successfully in some cases, and they have taken care to adhere to all those rules which would destroy men's wills, in attempting to impose the solemnities re- quired. Now, my Lords, I must state in conclusion that if any of my noble and learned Friends object to either of these two clauses, I will not retain them. But if I should have the concurrence of my noble and learned Friends to the first clause, which I expect, I shall be very well content. If not, I shall listen with respectful attention to what they have to suggest. But, my Lords, I cannot pro- mise that I shall not, upon a future occa- sion, bring into your Lordships' House a measure founded upon these propositions, which may be then more fully considered. And, as I am addressing your Lordships upon the subject, and speaking of future measures, I would draw your Lordships' attention to a measure as to wills which may require the attention of this and the other House of Parliament. The statute of the first of Queen Victoria for the first time imposed the same solemnities upon the disposition of personal estate as in tbo time of Charles II., with yariations,

77k« Lard Chancellor

were imposed upon the disposition of estate ; and it was said, how absord is it that you cannot dispose of half an aere of land without three witnesses, and yet yon may dispose of 100,000L of personal es- tate without any witnesses. Tet people do not desire every day to alter the testa- mentary disposition of their real eetate, but they make variations in the dispo- sition of their personal estate by eodi- cil and by legacy to be payable out of their personal estate, howeyer large it may be; but no man can make the sligbtest alteration in his will : he cannot giye 51., nor alter a legacy, without calling in two witnesses. It was said of no ordinary man that he had ten thousand freaks whieb died in thinking. I might say with equal truth that owinc^ to the difficulties wbicb


the law throws around them, many ten thou- sand legacies have died in thinking. These arc points, however, which we must eon- sider hereafter. The noble and learned Lord then moved that the Bill be now read 2».

Lord BROUGHAM had no objection to give the Bill a second reading. He en- tirely approved of the course suggested by the noble Lord on the woolsack, of striking out, for the present at least, all but the first clause, and agreed with him that at all eyents that clause should be passed. If there were any difficulty, it was not so much with the second as with the third clause; but with reference to those two propositionSp he desired further discussion. As to the case about which there were two or three trials, he supposed the noble Lord meant that of the late Duke of Roxburgh's will. He (Lord Brougham) was counsel at the trials, and the question was, whether the signatures of the witnesses were affixed within the line of sight. His Grace died in the house in St. James's Square; before his death he lay in a room next the draw- ing-room; the will was signed by him, and then taken into the drawing-room to be attested. The whole matter turned upon whether the witnesses signed upon a table between two windows, or upon a table in the centre of the room. If it bad been signed upon the table between the two windows, it would have been, by the rule of law, in the presence of the testa- tor; but if upon the centre table, it would not have been, by the same rule, in the pre- sence of the testator, the wall intervening. Of course great consequences followed the distinction made by the rule; but serious consequences were apt to follow almost all

Cimmeree m^

{March 23, 1852} Bio De La Plata.


rules laid down. The business of the law- giver was not to avoid laying down rules, but was so to frame the rules that the mi- nimum of contradiction and anomaly should be involved.

Lord CRANWORTH expressed him- self in favour of the principle of the Bill, but thought that some of the evils of which his noble Friend on the woolsack had com- plained, arose rather from wrong decisions of the Judges, than from the imperfectioDs of the law. These evils, however, required remedy, whatever might be their cause; and he should therefore not oppose the second reading of the Bill.

The Earl of ELLENBOROUGH thought that his noble and learned Friend on the woolsack was perfectly justified in introducing this Bill; but should have been better satisfied had he consolidated all the statutory provisions relating to wills into one general measure,

BiU read 2\


Lord BEAUMONT said, that the sub- ject to which he wished to draw the atten- tion of their Lordships, and on which he rose to ask a question, though of great importance in a commercial country like this, was not one likely to possess any general interest for their Lordships. It bad often been his lot to bring this ques- tion before their Lordships and it had also been brought before them by the noble Earl behind him (the Earl of Harrowby), and by several other of their Lordships; but on all former occasions the principal points raised had been the conduct of some diplomatic agent or naval officer in the Rio Plata, and the merits or demerits of the policy which such diplomatic agent or naval officer had pursued. He should not on this occasion criticise the conduct of any of our officers, or the policy adopted by our difierent Administrations, though he might have occasion to refer to certain transactions in the Rio Plata, and to the great contrast in the instructions sent out to our agents by the different Governments of this country. He wanted on this occa- sion to obtain information as to the present position of affairs in that part of the world, and to impress upon Her Majesty's Minis- ters the necessity of observing the opera- tions there, and of not letting the present opportunity pass by without attempting by negotiation to do that which he thought was the only legitimate object we ought to have in view to establish peace in that

quarter of the globe, in order that com* merce and the arts attendant upon peace might hereafter flourish there. The coun- tries watered by the tributary rivers of the Plate opened a large field for the enter- prise of European commerce, and possessed means of communication almost unrivalled in the world. These physical advantages had hitherto been turned to no account. Foreign vessels seldom ploughed the waters of the Parana and Paraguay, nor were busy marts of trade to be found upon their banks. Every one of their Lord- ships must have observed that, while on the northern part of the great Ameri- can continent there was an active and energetic race, who were advancing with such rapidity in civilisation and power as to seem destined to form the first nation and the finest people in the world, there was in the southern part of it another race, which was always lagging behind which made no advance in improvement or civili- sation, or which, if it did make any ad- vance, made it at a snail's pace which, being the descendants of Spanish and Por* tuguese settlers, were far behind the de- scendants of the Anglo-Saxon race in all the arts and sciences; and which was mop- ing in ignorance and grovelling in super- stition, notwithstanding the neighbour- hood of more enlightened countries. He attributed this, in a great degree, to the bad propensity of their Governments to exclude them from all intercourse with Europeans ; that was the marked and most unfortunate policy of all the coun- tries watered by the vast rivers which would otherwise be the arteries through which trade and civilisation would flow into the interior of South America. But now as freedom of action amongst the States form- ing the Argentine Confederation, which from a federal republic had fallen into an absolute despotism, had been restored, a new turn seemed to have taken place in its affairs, a new page seemed to have been opened in its history, and an opportunity was afforded for the powerful maritime nations of Europe to interfere, with just reason and right, to induce that republic by negotiation to adopt