The Express.
London, England, 1859-06-01 00:00:00

TITS ZARL OF effilir,BVllT 111C011' AND WHIM

The hearten of this ease vas reeemed this aserning.
The Attorney-Om:oral. Mr.itolt, Q.C., Mr. Manisty Q.C.,
Mr. Ellie, and Mr. Hannan (instructed byltr. Riehd.Nichei-
son. of Spring-gardens), appeared for the plaintiff, sad Mr.
flenesat Shen Sir R. Beaten, Mr. Badeley, Mr. R. Hall,
and Mr. Archibald (inetracted by Me•ors. COMM and
Williams, of Lineolo's-impflelds), were for the dadendeats.
The Attorney-Oenera4 is coutiourvion, said he would cell
their lordships attention to the state of the law es diecon
this family in the year 1720, when the 6 Gterffo 1., ay. 99,

.
was peened.
Mr. Justice Williams said when this rule wee nand he
took the liberty to ask Mr. fierjeant Mee whether, when
thin tot passed, there was any statute which promoted_ papists
from aliening their lands, end he said "No." Did the
plaistiff's counsel agree with that ?
The Attorney-General said it was part of hie argument
that they could alien the Mheritence, though whether
they could Fart with their estate foe life might
be another matter. The act (Om. I.) imposed this
absolute restraint on alienation affecting papists sad
roteetents alike, for nobody could idles except on the out-
dill= of taking ratan oaths in a certain manner, though
no doubt the object was to Induce future tar% to ammo
then religion and berms@ mob tants at en early age. Bed
jan, who died in 1818, obtained the passing of the
end 7th Via., cap. 28, which revealed the proviso
M the 9th Oets. I» which enacted that the oaths meet be
tabs before nay mei could alienate, and no doubt his object
was M take away the boduennent for future earls to become
te. It was argued on the other side OM the Mk
111., er, at all events, that the Inonolpetkin Ant cf
1828, repealed In effect the whole clause egainst alientelen,
and so gave power to any earl to alien. If that
wore go It entirely defeated the chief object of
Ihe Bth Geo. I.—that of annexing the estates he
the earldom. An in 1720 so in 1843 every male member of
the family append before the legislature, and it was im-
portant to coneider what was the state of the law at this
latter date. Hie learned friend said that at that time say
earl could alien the estetes conveying them away absoluseiy
end yet Bari John petitioned the legislature to mashie him to
de that which it wee said he had already power to do.
The Lord Chief Jostles said It might be considered safer to
obtain a special bet of parliament ; but that could not be
coneideend as an admhsion that the 9th George IV. had not

the effect now coateadol for.
The Attorney-Gessral did not wish to pc the matter
further than this, that Earl John sad his logel advisers con-
sidered it neawry to obtain en set of parla-
ment. There wee this fact, however, that the act
passed in 1843, the 6th and 7th Vie, cep.
28, expressly declared that Earl John held these estates as
tenant In tall ander the act of Geo. I, and subject to the
restrictive clause against alienation; and if his lamed
friend's argument was right the court would In effect declare
that the legislature Itself had strongly stated what the law
wag. Wee there any authority for rayiug that a
court of law could do such • thing Was there say
Instance in our history whom a clear plain recital In en act
of parliament of whet the low was had ever been cot:tre-
nded IS a court of law ? Could soy coat of law say to the
IstarLords, and Commons, " You do not know what the
ie "
The Lord Chief Justice—There was no declaration of
what the law was, but only • recital in a private act of per. 12-
liament, and could it be contended that if the court in the ;;,‘"
wane of • legal argument became cosanc-.d that the is
recital did not correctly state the law, they were still to
follow the recital contrary to then own coated= ? •
The Attorney-Geaeral submitted that no court could sot
contrary to a statement of wL the law woe made by the
The The Lord Chief Justice did not expect to her the
Attorney • Gerund of Be gland gay that such was the law.
The Attorney .General simply submitted whet his view
was without presuming to do more. He thought it was sot
competent for any court of law to go to war with the legate. a
ture sa to what the law was. Tee act of 1842 recited the gLea
chose in the eat of 1720, sad afterwards expressly stated the
effect of thee dense in these torsos:—`e Weenies It le expo- ""
dent that the revise contained in the said set of the 6th
Geo. 1., whereby en mention lam the claws iostrielve of
alienation is male biome, el esq Warr of the NOW sedates --
who should within sin maths site be eitenid stela the age e""
et =yes tele the air awl entintribe the deetera-
lien sellassi le. arl who Alai son-
taws • poteitet,7l4=l be eepuisi." This had been stated
by the legislature, end it hen been en stated ate •r the bill had, es.
eseeedieg to custom, been enifinkled to the a pinion of two
a the judges. Aber this, what argument could
he head to convince the coed that the law hid been
heerrealy elated P Even if the whole clause sad proviso
were repealed by the 9 Oct. IV., still he submitted that u gE
the 6 sad 7 Valerie repesled In WIWI the proviso, it to effect
revived the clause "goad alienation, dams the proviso.
The Lord Chief Justice said what wee the object in
applying for the 6th and 7th Viehwis, tap 26 P
The Attorney-Geeneral—Berl JAL, 1a 1843, had no
swig children ; sad the next inOMOOPPiOn to the earldom wee
John. his first coals, • boy whose balm was dead, end
whew salter aftermath married • protestant foresk.
Over bast and the boy Earl John hod no control. The
sea Is eaccesslon to the boy Jobs wee Bertram pt
Attlesr. lie had lost his &thee also, sad over
lan mad by mother Earl John had no control.
led John wee actedicely unwilling that the parents of
Owe two children should be subject to a very strong induce-
mat to bring up these children protestant', and therefore
the act was applied for. If they were proestants they weld
alien the estates. Now, se to the effect ante Emendation
Act, that act was Intended to rem we diabilitke and ince-
parities impact on catholic*, sod had no operation
reference to protestata. It had no appliestica
at all to private act. of parliament, or to this I
clause restrictive of alien vi m which applied to protestant'
is will se catholice. Even if the Emencipation Act dis-
pensed with taloa the oaths retired to in the proviso about
alienation, yet there was not ODA n Debt* which touched the
second condition, that to enable say earl to alien he suet
continue a protestant front 18j yeas digs until he was 21.
la addition to the 6 and 7 Vict. c. 28, there were other pri-
vate sets pawed in connexion with this family, and under j
those acre large estates have been purchased, and in terms 1
settled upon the trusts nemod in the 6 Geo. including, of
course, the restrictive dame in reference to allegation. Oa
what conditioas then did Ball Bertram bold
those estates ? Why cleirly abject to the re-
al fictive dome. The only M 111610113, pent raised by the
defendants counted was ilia Earl Oaken was at the tiros
of the death of the Duke of Shrewsbury ta 1717, Incapable
of taint, or if capable of taking, wee at the date of the set-
tlement in 1716, and of the peeeng of the 6 Geo. 1 cap. 29,
incapable of eliding the reversho ; sad therefore that sooh
reversion wee not by the 6 Gee. I cap. 29 effectually
limited to the persona to whom the earldom should
descend, end 00030) as mentioned in the sail act.
The &sewer to this was twofold. It we. submitted that
ander the penal laws in force at the time, Earl Gilbert wee
not disqualified from alienating the reversion or any other
estate to come into effect miter his own death; but the
second and principal polot was that, whether he had
or bad n.t rapacity to alien his reversioaary In-
terest in the Woes ; the act of the 6 Geo. 1., cap. 29. had
dose so, and the legislature wee omnipotent. The two
peal laws in farce at the tiros were the 1 JUDOS 1., cap 4,
sad It and 12 Willem 111., cap. 4, and those act* only
deprived papists of the right to enjoy 'meta f.r lib., but
plated no restriction upon their dealing with the reverska.
In support of this view there was the we " Thnenby v.
Fhetwood, ' 6 Browne, which had been d-tided In the Homes
of Lords, the age of the Earl of Derweat-
water, and that of " Mullen v. Bringlow" Is
Willes. It wee eubcaitted that if trite had been
a mere settlement ant auctioned by act of parliament, it
would have been valid; but when, on the petition of ell the
members of the family, the logisloure anctional that tootle-
mat, it wee oratended thee the legality of the settlement
could sot be in soy way question. el.
(The ease was petite Aiag when our reporter left.)