« PreviousContinue »
Difficulties, however, arose, as he afterwards stated, which retarded the introduction of the last of these measures, and other subjects of more exciting interest meanwhile pressed upon the attention of §. insomuch that it was not till the 18th of July, when the session was almost expiring, that any discussion on these measures took place. The Lord Chancellor then stated to the House the details of the alterations which he proposed. Adverting first to J. subject of bankruptcy, he commenced by E. a compliment to Lord rougham upon the improvements in that department of the law which he had introduced: “That system, however, excellent as it was, comprised within its jurisdiction only a circuit of forty miles round London. He proposed to extend the Metropolitan district to a hundred miles round London; which would add a fifth to the business of the Commissioners, without inconvenience to them. For the country it was proposed to appoint Commissioners at five central points, in five great towns beyond the London district, invested with the same power which was at present reposed in the London Commissioners. They would perform the same quantity of duty now performed by the London Commissioners having, a similar range and a similar jurisdiction.” The course with the Law of Lunacy was somewhat similar : “The Law of Lunacy was administered like that of Bankruptcy, the London Commissioners having jurisdiction for twenty miles round the Metropolis; and the country Commissions being, like those of Bankruptcy, directed to persons of little or no experience, though the
inquiries were of the nicest and most delicate character. He proposed that two Commissioners should be appointed, for the purpose of executing all those Commissions, not only in the Metropolitan districts, but throughout the country. From an examination into details, to which he need not advert, he was satisfied that those two Commissioners would be amply sufficient for discharging those and other important duties connected with lunacy. The payment of Commissioners by fees would be abolished; it tended to prolong the inquiry, and increase the expense; in one case, for instance, the expense of examining into the lunacy of a peron whose income was 191. 10s., had amounted to 2,104l. ; and in another case, the committee died, and it was necessary to appoint another. The Commissioners would be added to the visitors at present appointed to inspect the condition of lunatics. They would be taken from among the highest members of the Bar.” Lord Lyndhurst objected to any sweeping change of the existing County Courts; his measure went merely to extend their jurisdiction. County Courts were a part of our ancient system of judicature. They were presided over by the county clerk, whose jurisdiction extended to 40s. They might be held in any part of the county. If he appointed a particular place, and gave them a jurisdiction to the extent of 5l., and appointed persons of respectability and learning to preside over them, as he proposed to do by this Bill, he thought he did not innovate upon this ancient institution. He proposed further, that for the recovery of debts to the amount of 20l., persons should be appointed judges of these courts, who should not reside in the provinces where they administered the law, but that they should make circuits, like the judges of the land, into the provinces with which they were not acquainted, and where they had no local connexions or prejudices. He proposed that there should be six or eight circuits a year, to be made by barristers of a certain standing, to be appointed by the Crown; who should return to the Metropolis after the circuits, where they could mix with their colleagues in the profession, and thus there would be a security for the uniformity of the law they administered. Her Majesty in Council would appoint the times and the places for holding these courts.
Lord Cottenham expressed his
approval of the Bills as far as they went ; but complained of some omissions in them, especially the omission of any amendment of the law relating to Insolvency. Lord Brougham admitted that the measures were useful, though they fell short of the exigency. Lord Campbell, approving of parts of the Bills, regarded the omissions as so important, that he could not support the Bills as a whole. The Bills were then read a second time, and afterwards passed through the other stages unopposed, and went down to the House of Commons. Some attempts were there made to induce the Government to postpone the consideration of them, owing to the late period of the session at which they were introduced, and the press of business then existing. The Government, however, declined to defer the Bills, with the exception of that relating to the establishment of
County Courts, which, owing to the want of adequate time for the discussion of a measure so important and comprehensive, was put off till the following year. Another Bill, introduced by Sir James Graham, for the amendment of the law relating to the Registration of Voters in England, was, from the same necessity, delayed. An attempt was made by Lord Campbell earlier in the session, by three Bills which he proposed, to alter the administration of the House of Lords as a Court of Appeal, to alter the system of appeal to the Judicial Committee of the Privy Council, and to amend the administration of the Court of Chancery. He advocated change, on the ground that two co-ordimate appellate jurisdictions, that of the Privy Council and of the House of Lords, did not work well in practice. If then one were to be retained instead of two, he would prefer the House of Lords; that jurisdiction practically worked well. He would, therefore, make it the Court of Appeal from all other courts, abolishing appeals to the Privy Council. Its sittings should, however, be permanent, and not only during the session of Parliament. It should be presided over by the Chancellor, whose place in the Court of Chancery should be supplied by another judge, who might be selected from among the Vice-Chancellors. This plan would remove the absurdity of appeals from the Lord Chancellor at Lincoln’s-Inn to the Lord Chancellor in the House of Lords. The Lord Chancellor strongly objected to abolishing the appellate jurisdiction of the Privy Council. He thought it admirably adapted for the consideration of the subjects that came before it. Questions were brought before it, involving almost every kind of law on the face of the earth. There was the Colonial law, every kind of European law, every kind of Eastern law, Spanish law, French law, both according to the new code and the old, Dutch law, English law, both Common Law and Equity, the Colonial statutes, and in addition to these, the Oriental law, the Indian law, and the Mahomedan law : there was also the Ecclesiastical law. The constitution of the tribunal was admirably adapted to the purpose of dealing with questions embracing so vast a range of judicial knowledge. There were judges of England to decide on questions of Common Law, and the equity judges to decide upon matters of Equity. There were the judges of the Ecclesiastical Courts to decide upon questions arising out of the Ecclesiastical law ; and with regard to Eastern law, there were among the Judicial Committee two honourable and learned individuals, who had filled the highest judicial situations in the East, and who were able to give advice to the Committee on questions connected with Oriental law. As to the alleged inconvenience of the co-ordinate jurisdiction, there had not been a single instance of conflicting decisions in 200 years. Lord Brougham thought that the evils complained of by Lord Campbell existed rather in theory than in practice. Lord Cottenham expressed a hesitating approval of the proposed measures. The Bills were brought in, but did not pass the second reading. A question of much general interest respecting the Marriage Law
was raised in the early part of the session by Lord F. Egerton, who moved for leave to bring in a Bill to alter the laws relating to marriage within certain degrees of affinity. He stated that he did so not without expectation of encountering some serious opposition. Until 1835, a large class of marriages within the prohibited degrees were not void ab initio, but were voidable by a sentence obtained from the Ecclesiastical Court. In 1835, an Act was passed which rendered valid all marriages of that class previously solemnized; but in the progress of the measure another enactment was grafted on it, how, he knew not—which declared all such marriages thereafter contracted, void ab initio. The inconsistency of annulling prospectively marriages which were affirmed retrospectively, was felt at the time; and there was reason to believe, that, owing to the lateness of the session, consent was given to this part of the Act, without the deliberation due to the ultimate bearings of the new law. Thus the matter had rested from that time. It might be asked, whether it was discreet thus quieta movere? but whether the House agreed to this particular measure or not, circumstances had occurred which rendered it absolutely necessary that the attentive consideration of the Legislature should be given to the subject in all its bearings. He would make bold to say, that the law of 1835 did not go forth to the country with the sanction of the Legislature, after having been fully and fairly considered; neither was the law consistent with the practice of the British community, or with the Christian Protestant communities of Europe. He would further assert, that the law did not carry with it that weight which secured to our statutes obedience from all who were not determined and very profligate law-breakers. He could tell the House, that the statute had been resisted and evaded by men of a far different complexion than profigate and professed law-breakers. He believed he was entitled to say, that it had been evaded to a large extent by men of all classes—by persons of education, and by persons who had no other moral slur or taint upon their character than what this law, which they deemed to be unjustly founded, might be considered by some to convey. This alone, he thought, was a fact sufficient to show the necessity at least of considering whether, if they determined to retain the law, it was not necessary to make it effectual for the purpose for which it was intended; its main purpose being the prevention of great domestic unhappiness, and of frequent and expensive litigation with regard to the rights of inheritance and of property. That object had not been gained by the present law: and why? — because those persons who thought themselves morally and religiously entitled to infringe the statute, resorted not merely to countries beyond the dominion of the law, but, he had been told, resorted to Scotland itself for that purpose. The utmost uncertainty prevailed amongst lawyers as to the actual efficiency of that evasion; and lawyers of eminence were daily and hourly consulted as to the means by which the existing law could be evaded. The solicitors of London and other places had petitioned for a remedy for that state of things. He had understood that these petitions had been spoken of without
much deference to the opinion of that body. On such a subject as this, he had considerable deference for the opinion of a large body of solicitors, unless he thought that that opinion was biassed by professional views of their own interest. Attornies were, probably, better acquainted than any other class in society with the social current and stream of life running through all ranks and grades. They were often the archivists—he might say, the confessors—of families: and in this instance, he was disposed to think more favourably of their opinion, because what they were calling upon the Legislature to do was directly in the teeth of their own professional interests. He remembered a story of two foxhunters falling into a quarry: one of them was upon the point of warning the rest of the field of the danger, when the other said, “Lie still; hold your tongue, and we shall have them all in the pit presently.” Now if these attornies had been low-minded, self-seeking men, they might have said, “Don’t warn the Legislature of those evils; hold your tongue, and we shall soon have a plentiful crop of lawsuits pass through our hands, which will bring grist to the mill.” Some seven years had passed since this law was enacted : many children had been born from marriages which it was supposed the law treated as void; and he would venture to say, that the seeds of litigation were now lying dormant, which would by-and-by flourish, and yield a most plenteous harvest. That harvest he wished to prevent.
The Bill which he desired to introduce, was identical with that which Lord Wharncliffe had formerly brought forward in the House of Lords; and a principal point of it was, that it would enable a widower to marry his deceased wife's sister. Lord F. Egerton then entered into a consideration of some of the main arguments which had been urged against legalizing such marriages. One of those on which much stress was laid was, that the possibility of such a connection might create domestic dissensions and embitter the wife's feelings during her lifetime with harassing anticipations and suspicions regarding her sister.
It might happen that wives would be found of so jealous a disposition as to entertain such a suspicion 'of their husbands. But it was so difficult to provide against individual cases of the kind, that he thought they ought not to be contemplated in legislation. Such cases must be beyond the contemplation of those who were framing statutes for the general regulation of society. Again, it had been suggested that a measure of this kind would diminish to some extent the sanctity now supposed to invest, and which he trusted did invest, the character of the sister of a wife—that it would tend to lessen, if not to disperse, the halo of intangibility now surrounding the character of the sister of a man's wife. He owned that he felt no such apprehensions; and believed that, as the statutes upon this subject were of recent origin, another enactment in the direction which he wished the law to take would
poduce no such effect.
Those who objected to the measure were bound to make out a case of social expediency in opposition to it to a very great amount. Perhaps that House was not aware of the extent to which the existing law was evaded. Since 1835, in Manchester alone, ninety-one cases of evasion had been ascer
tained, and it was supposed that four or five times as many more had actually taken place. He mentioned an authentic case in which a dying wife desired to leave her children to the care of her sister, and enjoined her husband to marry the sister for that purpose; surely it was a great responsibility for the Legislature to interfere between a husband and such parting injunctions of a wife. The voice of Heaven was silent on this question, and that of man had been given with a hesitation and confusion of utterance which deprived it of its full authority. Up to 1835 the prohibitions rested on the Canons of 1603, Bishop Parker's prohibited degrees; by the present Bill it was proposed to set forth distinctly the degrees of consanguinity and lineal affinity to which the prohibition would apply. The existing laws in foreign countries countenanced the change. In the most Christian communities of Europe these marriages were allowed, under various restrictions. The restrictions, in the Protestant states of Germany, were chiefly directed against the crime of previous adultery; and in some instances they invested the Sovereign with a power of dispensation similar to that which in Roman Catholic countries lay in the Pope. The common consent of other Protestant Christian countries in favour of allowing these marriages rendered it to him more surprising that they should have been so long prohibited here. He concluded by moving for leave to bring in a Bill to amend the Act of 1835, intituled, “An Act to render certain marriages valid, and to alter the law with respect to certain voidable marriages, and to define the prohibited degrees of affinity.”