Northern Times.
Liverpool, Merseyside, England, 1859-06-03 00:00:00

LAW INTELLIGENCE

COURT OF COMMON PLEAS

Before Lord Chief Justices Cockburn, and Justices

Williams, Willes,.and Byles.

f THE EARL or SHREWSBURY V. SCOTT AND OTHERS
The Attorney*-General, Mr. Rolt, Q.C., Mr. Manistv,
Q.C., Mr. -Ellis, and Mr. Harmen (instructed by Mr.
Richard Nicholson, of Spring-gardens), appeared for the
plaintiff, and Mr. Sergeant Shee, Sir R. Bethell, Mr.
Badeley, Mr. R. Hall, and Mr. Archibald (instructed by
MeSSrs. Currie and Williams,'Of Lincoln's-inn-field,;), were
for the defendants. • •
On Wednesday, the. Attorr._
said he would call their lordsli
of the law as affecting

eral, in continuation

•
ttiou to the state
his family in the year 1720, when

the 6 Goorge 1., cap:'29, was pursed.
Mr. Justice Williams said when this rule was moved I
•
took the liberty to ask Mr. Sorg
this act passed, there was any
papists from aliening their lands
tho plaintiff's counsel azree with that

;cant Shee whether, when
statute which prevented
4 and he said "No." Did

' The Attorney-General. said it was pat
that they could alien the inheritanp,
could part with their estate for life might be another matter
The act (Geo. 1.) imposed this absolute
alienation affecting papists ''and protestants
nobody could alien except on the condition of takin

t of his • argument

though. whether they

restraint o

oaths_in a certain manner, though no dou

object ova

d.become
d in 1846.

protestants at au early age. Earl John,- who
obtained the passing of the 6th and 7th Vic., cap. 28, which
repealed the proviso in the 6th Geo. 1., which enacted that
the oaths must be taken. before any earl could
and no doubt his obj
for fature earls to become protestants

alienat

was to take away the indneemen

It was argued on

et the
whole clause as against alienation, and so gave power to any
earl to alien. blf that were so, it entirely defeated tt
objeet•of the 6th Geo. I
the earl

lat the Emancipation Act of 18

), repealed in eff(

As in 1720 so in 1813, everq male membet
of the family appeared before th

ad it a

latter data

His learned friend

aid that

earl could alien the estates, conveying them away absolutely ;
and yet Earl John petitioned the legislature to enable him
to do that which it was said he had already power to do.
The Lord Chief Justice said it might be considered safer
to obtain a special act of parliament; but that could not b,
considered as an admission that the 9th George IV. had no
the effect now contended for
The Attorney-Gener
further than this

lid not wish to pi
hat Earl John and his leg

the matter

sidered it necessa

was this fact
and '7th Vic

held these esta

.t in tail

and subject to the
if his learned frie

as right, the
itrtrA itself h

in effect declare

iat the

stated what the law was. Was there
saying that a court of law could do such a thing . as
there any instance in our history where a clear, plain recital
in an act of parliament of what the law was had ever been
controverted in a court of law ? Could any court of law say
to the Queen, Lords, and Commons, "You do not know
what the law is ?"
The Lord Chief Justice : There was no declaration of
'hat ^C but only a recital in a private act of

the law was,
liament, and could it be con,.
course of a legal argument became convince
did not correctly state the law, they
recital contrary to their own convict

tended that if the court in the
recital

were still to follow the

The Attorney-General submitted that no court could act
contrary to a statement of what the law was made by the

legislature,

-The Lord Chief Justice did not expnt to hear the
Attorney-General of England say that such was the law.
The Attorney-General simply submitted what his view
was without presuming to do more. He thought it was not
competent for any court of law to go to war with the legis-
lature as to what the law was. The act of 1813 recited the
clause in the act of 1720, and afterwards expressly stated
the effect of that clause in these terms :—" Whereas it is
expedient that the proviso contained in the said act of: the
Geo. 1., whereby an exception from the clause restrictive
of alienation is made in favour of any taker of the settled
estates who should within six months after he should attain
the age of eighteen years take the oaths and subscribe the'
declaration therein respectively referred to, and who should
continue a Protestant, should be repealed." This had been
stated by the legislature, and it has been so stated after the
bill had, accordinc, to custom, been submitted to the opinion
of two of the purges. After this, what argument could be
found to convince the court that the law had been incor-
rectly stated ? Even if the whole clause and proviso were
repealed by the 9 Geo. IV., still he submitted that as the 6
and 7 Victoria repealed in terms the proviso, it in effect
revived the clause against alienation, minus the proviso.
The Lord Chief Justice asked what was the object in
applying for the 6th and 7th Vic., cap. 28 ?
The Attorney-General : Earl John, in 1843, had no male
children ; and the next in succession to the earldom was
John, his first cousin, a boy whose father was dead, and
whose mother afterwards married a Protestant Greek. Over
her and the bay Earl John had no control. The next in
succession to the boy John was Bertram Arthur. lie had
lost his father also, and over him and his mother Earl John
had no control. Earl John was exceedingly unwilling that
the parents of these two children should be subject to a very
strong inducement to bring up these children Protestants,
and therefore the act was applied for. If they were Protes-
tants, they could alien the estates. Now, as to the effect of
the Emancipation Act, that act was intended to remove
disabilities and incapacities imposed on Catholics, and had
no operation in reference to Protestants. It had no appli-
cation at all to private acts of parliament, or to this
clause restrictive of alienation which applied to Protestants
as well as Catholics. Even if the Emancipation Act dis-
pensed with taking the oaths referred to in the proviso about
alienation yet there was not one syllable which touched the
second condition, that to enable any earl to alien he must
continue a Protestant from 181 years of age until he was
21. In addition to the 6 and 7 Viet., c. 28, there were
other private acts passed in connection with this family, and
under those acts large estates have been purchased, and in
terms settled upon the trusts named in the 6 Geo. 1., inclu-
ding, of course, the restrictive clause in reference to
alienation. On what conditions, then, did Earl Bertram
hold those estates? Why clearly subject to the restrictive
clause. The only remaining point raised by the defendant's
counsel was that Earl Gilbert was, at the time of the death
of the Duke of Shrewsbury in 1717, incapable of taking, or
if capable of taking, was at the date of the settlement
in 1718, and of the passing of the 6 Geo. 1. cap.
29, incapable of settling the reversion ; and therefore that
such reversion was not by the 6 Geo. 1 cap. 29 effectually
limited to the persons to whom the earldom should
descend, and come as mentioned in the said act. The
answer to this was twofold. It was submitted that
under the penal laws in force at the time, Earl Gilbert was
not disqualified from alienating the reversion or any other
estate to dome into effect after his own death ; but the
second and principal point was that, whether he had or had
not capacity to alien his reversionary interest in the estates ;
the act of the 6 Geo. 1., cap. 29, had done so, and the
legislature was omnipotent. The two penal laws in force
at time were the 1 James 1., cap. 4, and 11 and 12
William 111., cap. 4, and those acts only deprived papists
of the right to enjoy estates for life, but placed no restriction
upon their dealing
wasdeal theingw case of ~
iththereveTrshioonrn.
by v. In supportFleetw Fleetwood, view
there
Browne, which had been decided in the House of Lords,
the case of the Earl of Derwentwater, and that of " Mallom
v. Bringlow "in Willes. It was submitted that if this had
been a mere settlement not sanctioned by act of parliament,
it would have been valid ; but when, on the petition of all
the members of the family, the legislature sanctioned that
settlement, it was contended that the legality of the settle-
ment could not be in any way questioned.
The argument in this case was continued yesterday

morning.
Mr. Holt, in resuming his argument, drew attention to
the state of the law affecting Papists at the time when the
6th George 1., cap. 29, was passed. At that time there
was in force the Ist Jas., cap. 4, the 6th section of which
said that any person who should go abroad and reside at
any papist seminary or college of Jesuits, should, in respect
of him or herself only, "and not in respect of his or her
heirs or posterity," be incapable of holding or enjoying any
lands. The 3 Jas. 1., cap. 5, Acts 16, said that no person
sent abroad to be educated as a papist should enjoy any
lands until he should take the oaths and receive the sacra-
ment of the Lord's Supper. The 3 Car. 1., cap. 2, was
an act to restrain any person being sent "to be popishly
brought up beyond the seas," and enacted that no such
person should enjoy lands during his natural life ;" and the
act 11 and 12 Win. 111. said that a papist who should not
take the oaths should, in respect of him or herself only,
i e
nb
tust subject
ofan
e s t
atote. that
and not in respect of the heirs or posterity, "be incapable
of taking lands ;" that the protestant next of kin should
enjoy the profits ; but in case he committed any waste, the
party disabled should recover treble damages. The object
therefore, of all these statutes, was to prevent papists enjoy-
ing
disabilitytheir
idn ga lthe their
lives,
incidents
this were so, then Earl Gilbert, the jesuit, was possessed
the reversionary interest in the Shrewsbury property, aof