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could be brought to bear upon the question. It was admitted that the Duke of Marlborough had cut down, and was proceeding to cut down, timber originally planted for the orna. ment of the estates, to the possession of which the titles and dignities were annexed by Act of Parliament. In maintaining that he had no right to commit this species of waste, he was not driven to contend that he was debarred from cutting down trees of every description, and should not therefore consider the subject in that light. Neither should he here argue, after what had fallen from the Court, that the crown had any reversionary interest in the property. What he was about to submit was, in support of the title, both of the Marquis of Blandford and Mr Agar, to the remedy which they sought by the present bill. It appear ed to him, that there was some doubt with regard to this being a tenancy in tail. After the passing of the first act, by which the estates were conveyed in fee to the first Duke of Marlborough, it was thought better to unite the titles with the estates, and a second act was passed for that purpose. Now there could be no tenancy in tail so created of a title. Why also had a power of leasing been granted, if a tenancy in tail, which in itself implied that power, had been intended? It was admitted that the act restrained alienation, and there again it was without a material feature of such an estate. Al though the reversion of the fee was not in the crown, he should submit that the information by the AttorneyGeneral must be supported in point of form, as the crown had still an interest in the preservation of all estates granted at the national expense, and for the celebration of great public events. If he was right in this doc. trine, the appearance of the Attorney General was the more necessary in this case, since it was maintained on the

VOL. XI.

other side, that the present duke had a right to pull down Blenheim-house and leave it a blank, if he should think proper, Mr Agar was joined in this application, as possessing a vested remainder, subject to the antecedent limitations. Having made these observations on the form of these proceedings, he would trouble the Court with a few remarks on the general arguments adduced, with reference to the merits of the case.

The Vice-Chancellor now rose, it being half-past three o'clock, and the Master of the Rolls sitting at six. The further hearing was necessarily postponed.

DECEMBER 19.

The Solicitor-General was further heard on behalf of the plaintiffs. He contended that he was more confirmed than ever in argument, that the duke was not an heir in tail; first, because if he were so, and was to marry, ma king no settlement on his wife, then, at his death, she would be entitled to a dowry. In the second place, as the estates were limited to heirs male, and failing them, to the daughters, the title must go solely to the eldest daugh ter, while the estates must be divided equally among all the daughters, and this upon the principles of common law. Thirdly, he could not think it was the intention of Parliament that the successors of the great Duke of Marlborough should have a larger interest in the estates than the duke himself had; for they themselves had no claim to the property, except as his heirs. The old decisions of the Court on this subject had never been shaken, for the present Lord Chancellor had founded his judgment upon them. If the duke was permitted to cut down trees, and dilapidate the estates, he might also pull down the mansion, and at once obliterate every recollection of public gratitude for the services of his

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great ancestor. Another argument to shew it was not an estate in tail, was, that of the title descending to a daughter; that daughter might marry, and her husband would of course become tenant by courtesy. Assuming, for a moment, that the duke was tenant in tail, the Court was bound to interfere, and prevent him from committing an extravagant and imprudent waste. The country was deeply interested in this question, and they had a right to see that this monument of British gratitude was not destroyed, to gratify the caprice or satisfy the necessities of any possessor. God forbid that he (the Solicitor-General) should accuse the duke of sordid, selfish motives; but no person could answer for his grace's posterity. He concluded by hoping that the demurrer would be overruled. Messrs Heald and Sidebotham followed on the same side.

Mr Bell was about to reply, but the Vice-Chancellor did not think it ne

cessary.

The Vice-Chancellor delivered his judgment. He referred to the Acts of Parliament passed in the reign of Queen Anne, for vesting Blenheim-house and its domains in the Duke of Marlborough, as a mark of gratitude from the country, and a reward for his military achievements. He considered that the limitations in these Acts of Parliament left in the Duke of Marlborough the absolute ownership of the property, subject only to the disability of levying fines or recoveries, with a view to its alienation, or settlement, different from the course adopted by the legislature. All that had been done by Parliament was for the purpose of preventing the possessors of Blenheimpalace from injuring or defeating the rights of their successors. It did not lessen a single incident belonging to the rights of their successors. It did not lessen a single incident belonging to the rights of the possessor. It left

him, as a tenant in tail, in the enjoy ment of the common and statute law rights belonging to a tenant in tail, with the exception, that he was not to have the power of levying fines, or recovering, or doing any act tending to alienate the property. The legisla ture, therefore, left the then and every subsequent Duke of Marlborough ab solute owner of the timber. It had been said, that this estate, which was a national monument, would, by the exercise of the right insisted on by the defendant, be at the mercy of every successor. Arguments, ab inconvenienti, were of importance, when a Court was considering the intention of the author of a grant, or when there was any doubt as to the intention of the granter; but when there was no doubt, when the words were too plain to be misunderstood, arguments of inconve nience amounted to nothing. In this case he was of opinion the construction of the statutes under which the Dukes of Marlborough enjoyed Blen heim-house and lands, were clear and distinct, and that the argument of inconvenience ought to have no weight. Among other things, it had been said, that the Duke of Marlborough might to-morrow lay the whole of his estate waste, and reduce this noble mansion and spacious domains to a barren heath. True, he might do so. He derived an uncontrollable title from the legislature; he might do what he pleased with the property, with the ex ception of alienating it. Why did the legislature leave him at liberty to do so? The legislature had undoubtedly reposed confidence in the illustrious Duke of Marlborough, the first object of its gratitude and bounty, and intended the same confidence should be reposed in all succeeding Dukes of Marlborough, that they should deal with the property as became their rank and dignity; and was it for a Court of Equity to recal that confi

dence which the legislature had thought fit to bestow? Undoubtedly not. Inconvenience was an argument often fairly addressed to a Court, but the legislature had itself calculated on those feelings which belonged to all great and good minds; they had considered that the future possessors of Blenheim would feel a pride and an honour in maintaining that national monument which was a tribute by the country to their illustrious predecessor, and it could not be supposed that the present Duke of Marlborough would so far forget what was due to his honour as to deal improperly with his property,-Judgment for the defendant.

DECEMBER 21.

The Vice-Chancellor stated, that, in reconsidering the subject, he had discovered an act passed by the House of Commons, allowing 5000l. a-year out of the revenue of the Post-office, for the perpetual maintenance of the house and estate of Blenheim. This appeared to him to imply an obligation to preserve them in their complete and ornamented state. He saw ground, therefore, for reversing his own decision. The case, however, was appointed to be farther argued on.

DECEMBER 24.

The Vice-Chancellor suggested to the counsel on both sides the propriety of their arguing this case in the same way as if the Act of Parliament, granting the pension to the duke, had been alluded to in the pleadings.

Mr Bell, as counsel for the Duke of Marlborough, opened the case. He was perfectly aware of the disadvan. tage under which counsel laboured in supporting a demurrer; and before he proceeded to the consideration of the act, he thought it right to make two general observations. Unquestionably the commission of waste of some kind or other was incidental to an estate

like the present, and it was the duty of the other side to shew that there was some specific provision in the Act of Parliament, which prevented the Duke of Marlborough from having and using that right which other persons could do. If the legislature intended to take away the rights of the family of the duke, they would unquestionably have done so in the act, and their silence on that subject was, therefore, to be viewed as expressing a wish on their part, that the estates should rather be left to the honour of the noble family, to prevent and guard against any dilapidations. He was confident that the legislature never intended, and never would have introduced, such restraints into the act as were contended for by his learned friends. Had they done so, they would have condemned the noble dukes to inhabit for ever this house, whether ruinous or not, just as the Parliament of Henry III. did a celebrated baron of that time to dwell in his feudal castle, though such castles would now be viewed as dungeons. On the very same principle, no successor of the duke could be at liberty to cut down any timber, though he nevertheless might have planted a great deal. Supposing that the great duke had chosen to plant his grounds in such a manner, that the victory of Blenheim would have been described by the rows of the trees, and supposing one of his successors had chosen to plant other trees in the form of the twelve signs of the Zodiac, then, according to the arguments of his learned friends, none of these trees, however ludicrously planted, could be at any time removed by a successor, but must remain to all eternity ornamenting each other.

The Vice Chancellor thought the question did not go so far as it had been so humorously stated by Mr Bell, unless it was to be argued, that the Court was to prevent every kind

of cutting down. If the legislature had left the grant without restriction, the family had unquestionably a right to make such alterations and improvements as were necessary for their comfort and convenience, and also for the preservation of the property; but though this was the case, it by no means followed that any duke had a right to cut down or commit such acts as would amount to a destruction of the estate.

After Mr Bell and other counsel had farther argued the subject, the Vice-Chancellor pronounced his judgment, which he commenced by stating that he had, since he called the attention of the Bar to the particular act now in question, maturely reflected upon its provisions, and had just listened with the utmost attention to all the arguments which Counsel had urged concerning them. He felt himself bound to say, that he disclaimed for that Court any power of construing an Act of Parliament against the express intention of the legislature. It was the duty of Courts of Equity, as well as of Courts of Law, to decide according to the meaning of the act; but that meaning was often to be collected, not from express prohibitions, but clear and necessary implication from the whole language of the statute. Another principle as well established was, that when there were dif. ferent Acts of Parliament, in pari materia, or dealing with the same subject matter, such acts were to be taken as explanatory of each other. It was not enough to look at the provisions of one as decisively indicating the intention with which it was framed; that intention must be collected from an examination of all, and from the degree in which one modified or explained the other. The first question, then, in the present case, was, did the record impute to the Duke of Marlborough conduct which was inconsistent

with the restraining power vested in that Court? If the duke did not mean by this demurrer to assert his legal right to exercise those acts the intention of committing which was alleged in the petition, that was another question, into which the Court was not now called on to inquire. The proper time for that consideration would be when the motion for dissolving the injunction should be made. He agreed that the waste which he was charged with intending to commit must be regarded as waste ejusdem generis, the improper cutting down of timber, which he was described as having already committed. He must, however, be considered by this demurrer as asserting an absolute, unrestrained, and unqualified right to cut down any tim ber on his estates in the manor of Woodstock. But if he had no power to destroy Blenheim-house, as little could he cut timber necessary to its ornament and shelter; and this observation brought the whole question fairly before him. Now, on attending to the recitals of the three different Acts of Parliament adverted to, and especially to the language of the third, did not every man, he would not say every lawyer, see at once what had been the intention of the legislature? The first act took no notice of Blenheim-house, because the building was at that time only in progress, and its object was merely to carry the queen's bounty into effect, by vesting the fee of the estates granted by her majesty in the first Duke of Marlborough. The succession under the act was li mited in the usual way to his heirs in the male line; but it was afterwards thought desirable by the country, in order to give precedence to the duke's family, to confer some mark of preeminent distinction, and the succession was enlarged to his heirs female. This honour originated in the House of Lords, and when about to receive it,

the duke himself appeared to consider it as more provident to annex his estates to the title and dignities; and therefore exchanged his fee-simple for a fee-tail, qualified by statutory limitations. The second act was then passed, for the declared purpose of better settling on his posterity the honours, dignities, and possessions, which he had derived from the public gratitude for his eminent services; and for the annexation of the house and manor of Woodstock, to go with the said honours to his successors. Now the true construction of these acts could only be derived from the third, which passed immediately afterwards, and appeared to him to be most material. The first impression of a lawyer, in looking exclusively at the two former, must no doubt be, that a tenancy in tail, with all the incidents, not taken away by the words of the acts, had been created. They might, nevertheless, mean to annex the house as a distinct and inseparable subject, not as a mere incident, to the estate tail. They might mean to give an individual character to the house, and to regard it in itself as a monument for perpetuating the honours of the family. Let them look then at the title and preamble of the third act originating with the House of Commons, and making perpetual an annuity already granted for the queen's life of 5000l. out of the revenues of the Post-office. The second act on this subject, the 5th of Anne, ch. 3, might be supposed equivocal, but as explained by the one following, made by the same legislature, and almost at the same time, it left no doubt whatever on his mind. Its recital was extremely important, and manifested, in the clearest possible manner, what had been the purpose contemplated by the preceding act. It contained the following words :-' "In order that there may remain to all ages a record emanating from each of the

three branches of the legislature." The Sovereign had granted the house and estates, the Lords had settled the honours and dignities, and the Commons requested that they might be allowed to perform their part, by voting a sum of money for their maintenance. The three branches of the legislature had thus, each in the exercise of its peculiar functions, co-operated in the support of what was called a national monument, because erected by the queen as the instrument of the nation's bounty, and in order that a record might endure to all ages. The obvious meaning of such language, construed by the fair rules of implication, was, that the house was intended to be annexed to the honours and dignities of the family, as a distinct and inseparable subject. It seemed to him to amount to an absurdity to suppose the contrary, or to contend that, under these statutes, any Duke of Marlborough had a right to sweep such a monument from the face of the earth. These Acts of Parliament left him no power to destroy Blenheim-house, or any thing else necessary, either to its ornament or its shelter. He was not now called on to say, in what terms a Court of Equity would execute the provisions of those acts. That question would come properly before it, when the defendant's answer should be under consideration. The argument which had been attempted to be raised on the possible inconvenience which might arise from the exercise of such a jurisdiction, appeared to him to be of no weight. The Court was fully competent to distinguish between enjoyment and destruction; the argument failed therefore, because it was drawn ab absurdo; and it would be soon enough to consider the inconvenience, whenever a case involving it should be presented.

Demurrer over-ruled.

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