The Sun.
London, England, 1818-12-25 00:00:00

LAW INTELLIGENCE.

VICE-CILINCELLOWs' COURT', DEC. 24.
BLENEIEIM.
THE ATTORNEY-GENF.EAL V. THE DUKE OF MARL..

BOKOUGLI.

The paper of causes Navin;: been gone through,
this important question came on specially ; his
nouour having, as we before stated, expressed a
wish to hear Counsel farther on it.

Mr. Bet 1., in support of the Demurrer, con-
tended, that the Act of Parliament, which gave
the sum of 50001. to the Duke of Marlbor:ottgh
out of the Post Office revenues; could be taken in
no other light than that of a public one, and in
unison with the other two Acts of Parliament.
There were, he said, three questions in the pre- •
sent case : The first was, Could the destruction
of the house be restrained ? the second was,
Could an applicationio the Court of Chancery,
to prevent the cutting down timber, be maintain-
ed ? and thirdly, Would the Dem-tater Wed to
that application stand ? The commission of waste,
on an estate similar to the present, eouhl not be,
prevented by an order of a Court of Equity, and
it lay with the other side to show that there was
something in the present Act of Parliament which
would have the effect of preventing the present
Duke of-Marlborough cutting down the tin►ber
on the estate, or committing waste. He was con-
fident that it was nor the intention,of the legisla-
ture to give the Duke'of Marlborough less powers
than any other man and it that was the case,
which hi, Learned Friends had contended, the
successors of the Duke of Marlborough might
pl tot, though they coold not cut down timber.—
Had the Duke of nolhorough thought fit to
plant trees descriptive of the memorable Battle of
Blenheim on Ole estate, or had he thought fit to
plant trees in representation of the 12 signs of the
Zodiac, they must in that case have remained to
all eternity as ornaments of each other.

The VICE-CHANCIILLOR said the estate was a
gift of the Legislature, and it was open to every
succeeding Duke of Marlborough to improve and
ornament it in rite best way be could for his own
comfort.

. .
Mr. BELL said, though the mansion of Blen-
heim was began to be built in the reign of Queen
Anne,, it was not finished till the at George
I. when an Act of Parliament was passed for that
purpose.
The VICE-CHANCELLOR said, it was an histo-
rical fact that the reason the mansion was not
finished in the reign of Queen, Anne, was, that
the then Duke of Marlborough had in some men-
sure lost the favour of the Queen, who refq,ed
to advance any more money fur the completion
of it.

Mr. BELL proceeded: He went over a consi-
derable portion of the strongest arguments ad-
duced on the former occasion in support of the de-
owner, in the course of which he adverted to the
various Acts of Parliament made relative to the
present question.
The VICE-CHANCELLOK said, that on looking
into the recitements of the 'Act which gave the
pension, a difficulty arose as to whether that
pension was or was not given for the preserva-
tion of the honours of the family, inseparably with
the Mansion of Blenheim, the latter of which had
been specially introduced into the Act of
meat at the request of the Duke of Marlborough,
and was not therefore merely incidental to it.
The Doke also, it appeared, had given his con-
sent to settle the pension of 50001. on his heirs,
in order that it might go with the estate, honours
and dignities of his Grace.
Mr. Bart. said, it had been held in the case
of the Attorney-General and Davis v. the Duke
of Marlborough; that the pension and manor of
Woodstock were quite different, for the Lord
Chancellor in that case appointed a Receiver of
the land, but not of the mansion ; in fact, the
question relative to the house was not argued be-
fore his Lordship, The restriction of alienation
of the pension, he submitted, arose f►ow the
mode of payment ; for it was expressly directed
that the' receipts of the Duke or his successors
were to he personally given on the money being
paid. After contending of great length, the
Learned Council concluded that the same powers
were vested in a tenant entail, and that the Court
had no power to interfere to prevent the cutting
down timber.

The VICE-CHANCELLOR said, I►e bad put the
case in two ways when it was before the Court
on Monday List. The first was, did the Duke of
Marlborough intend to commit dest,ructiOn nn
the house ? for this purpose it would be necessary
to look at the record in the present case, which
stated that be intended to commit waste. If his

Grated:a intend to aeitroy the thanitiou, his
Hour most of course over-role the demurrer,
for if the family were bound to maintain the
house, they were also hound to maintain the tie-
cessary thither for shelter and ototament ; but if
the present Duke only intended to cur down such
timber as would be necessary for the purpole Of
repair and •keeping up the mansion-house, -then
his Honour would be called on to allow the de-
murrer. It had been argued that the gtotevlue
timber planted in the reign of Queen Anne must
be left standing to eternity ; his Flonoor did not
understand the meaning to be such, for every suc-
ceeding Duke was entitled to cut timber for the
benefit of the estate.
Mr. NVRAY followed on the same side, and ar-
gued at crinsiderable length. The question was
not whether the Legislature, had it been stated
that some of the facts now committed might have
happened,.would have nwle some enactments to
prevent them, but whetYier the mansion was not
intended to-perpetuate the services of the Duke'of
Marlborough, and if that was-the cave, was it not
a natural inference, that it was to last for ever ?
Could it be argtied that the grant haul been male
by Queen Anne in fee, when the only.serviee re-
quired to be rendered by the Duke and his heirs,
was the presentation of a red flag, to float on that
venerable pile, Windsor Castle; every - year. 1t
could not be maintained that any person in pos-
session of the estate conk' be restrained from doing
a-y I ttle act of ownership, which a tenant entail
could do. It would be going a monstrous length to
say that aCom t of Equit y had the powerof imposing
greater restraituts than those of the Legislature.
The Duke held the .estatewithont impeachment
of waste,. and if the mausion had been burnt
down, would he have been bound to have rebuilt
it ? The third Act of Pailiament, lit contended,
did not in the least alter the two former ones; it
merely•recit ed the provisions of them, and showed
that as the House of Lords and her Majesty Queen
Anne had been pleased to reward the services of
the Noble Duke, the [louse of Coin-mits might
also show the estimation in which they held his
services, and for which purpose they presented' an
Address to her Majesty for the purpose of mak-
log perpetual the pension given to his Grace to
go along with the honours and estate.
The VICH-CHANCELLOR said, " If the words
of the Act had been in effect, that the succeeding
Dukes should enjoy but not destroy the estate,
was the Court to be told of the inconvenience
that would arise ? That argument would go for
nothing "
Air. WRAY submitted, that what was held in
other casts as destroction, could not in this case
be held to be improvement..
The VIcE-CHANcELLoe said, " That argumetit
'would not have ally effect ; for, front the import-
anceand peculiar nature of the present, there was
no case applicable to it
Air. WHAT said, "If there were such an en.
actitient as his Ilonour bad • alluded to, it would
be necessary to make a new principle to he adopt-
ed to the present case. He submitted, in conclu-
sion, that the demurrer might to be ht Id good, tor
if the Duke was restrained as to the house, he was
also as to the timber ; but if not to the timber,
then he was not to the house."
Mr. lIANLON followed on the same side.

. .
The ,01.1CITOR-GENE2.II, rose to teply, bot

_ .
The ViCE-CHANCE.:I.I.Or, did not deem it neces-
sary. Ilia Honour said, he had given the east,
very great consideration, before he again called
on the Gentlemen to re-argue it. His Honoor
disclaimed, any such authority as:.tios,power of
overruling an Act of Parliament, fora Court of
Equity were bound in the same manner as a Court
of Law. The meaning of the Act of Pathan:eta
here was not to be taken from the mere espies-
sion, but by its \dick tenor ; and in doing so, it
was not only necessary to look into the Act itself,
but into all the Acts which ;Tilted to it. All
statutes therefore in pan materia must be looked
at, for the purpose 'of finding out the intent and
meaning of the specific Act of Parliament. The
question which arose on this part of the case •
caors, had the Duke of Marlborough done, -or
was it imputed to his Grace to have - done,
that which would warrant the Court in 're-
straining him Irons executing that right which
was contended for on his behalf ? The dis-
tinction which Mr. Bell had drawn was certainly
one of great force ; and-, in his Honour's opinion,
it was acting on a sound principle to restrain cjus- .
dens gene, is from committing waste The general
question Was as to the right of the Doke-to cut
down timber, and it was clear, that if the Duke
was entitled to maintain the mansion, he might
cut clown timber for necessary repairs, but then he
could not cut down that planted for ornament and
shelter. On this question his Honour was of opi-
nion that it was the intention of the Legislature
that the Dukes of Marlborough hail a right to
maintain the mansion of Blenheim. The Doke had
received the Manor of Woodstock fur his services,
but which having been destroyed, he got indict)
of it Blenheim, though the Act •of Parliament did
not state whether Blenheim was erecting at
the time ; that however was immaterial, for the
gift of it was subsequently confirmed' to him. The
Noble Family of the Duke had been distinguished
in a pre-eminent manner, and it was necessary
that the succeeding issue should be reVrained by
limitations, which, according to the importance
of the case,'aud its peculiar trture, should resider
it a lasting monument to foturity. The Duke,
acting with becoming prudence, bad applied to
the Legislature, through the CroWn, for the pur-
pose of having it directed that the previous titles
of his Grace should have the Estate of Blenheim
annexed to them, and that they should go toge-
ther; in consequence an Act of Parliament pass-
ed, which, atter reciting the previous titles,
provided that the successive tenants should not
defeat their issue by fine or recovery. It was en
this Act the ease principally turned, and the
question was, Did the Legislature mean the man-
sion of 'Blenheim to go with the titles and digni-
tics, or did it mean to separate theta ? Adverting
to the Acts of Parliameotj his Miitt . said the
list two were of great importance; f; in Ir s
Honoor's opinion, it was intended by tolmike
noeqiiivocal what was equivocal in the first one.
He could not hold any other opinion Oran that the
Duke could not destroy the house, fur lie could
not eutettain a doubt that it was not the 'wen-
Lion of the Legislature that it should last for all

ages, and that every succeeding ifiLke should keep
it in repair. This being the case, his Honour
could not lit fre r any other act of destroction to be
effinmitto on the estate. The question as to the
right to cut timber had better be arv,tted whenthd
'notion for dissolvin4 the Ininnction is made, foi'
all the duty 'imposed on the Court was to prevent
the destiltetion of the premises, anti therefore thO
demurrer must be overruled.