HC Deb 09 May 1838 vol 42 cc1043-50
Mr. Barron

moved the second reading of a Bill "to Consolidate the Jurisdiction of the several Ecclesiastical Courts in Ireland into one Court, and to enlarge the powers and authorities of such courts, and to alter and amend the law in certain matters ecclesiastical." We understood him to say, that this Bill was worthy of the support of every hon. Member of that House, to whatever party he might happen to belong, because it was a measure, having for its object the establishment of a legal machinery, which would enable persons who were compelled to enter into litigation with respect to legacies, and matrimonial and other weighty causes, to obtain speedy and cheap justice. At present it was impossible for the poor man to get that justice in Ireland, and it was perfectly ridiculous to say, that he could, when the decision in cases arising out of disputed wills, which was anxiously looked for by the litigating parties, was procrastinated, year after year, until the property was wasted away, and passed into the hands of other persons, who, whatever doubts might have been started as to the intention of the testators, were never intended to have enjoyed it. Besides this, it was frequently the case that the expenses were far beyond the amount sought to be recovered, and parties were ruined in addition to losing their rights. He proposed to establish a new court of probate and divorce in Ireland, having the whole of the jurisdiction in granting probate of wills and administration, and of the contentious ecclesiastical jurisdiction. The bill being consistent with that which was the germ and essence of the British constitution—namely, trial by jury—it was proposed that the court should have power to direct in any suit depending of probate and divorces, trial by jury of any issue on any question of fact. It was well known that monstrous abuses had prevailed in the Ecclesiastical Courts of Ireland, because the judge had not had the power to send cases to a jury. It was also intended to give power to the court in suits concerning granting of probates of wills or letters of administration, to appoint a time for the summary hearing and determination of such suits, and to depart from the old practice of taking written depositions, and to take evidence vivâ voce, with liberty to cross-examine the witnesses. He proposed, that the appointment of ecclesiastical judges in Ireland in future should be vested in the Crown. As to the objection, that this would take away the patronage from the primate of Ireland, he would answer it by stating, that the Archbishop of Canter- bury had refused to exercise the power in England, feeling that he was not in a situation to enable him to judge of the fitness of a person to fill such an office. The opponents of the bill had not dared to say, that there were not monstrous abuses existing in the Ecclesiastical Courts of Ireland, and they only objected to it on the ground that the appointment of the judge would be taken away from the primate, Let hon. Members divide the House on the principle of the bill, and he should be ready to meet them on it, but let them not fight a little, paltry, by-battle on a question of patronage. He, moved, therefore, that the Ecclesiastical Courts Bill be read a second time.

Mr. Goulburn

felt, in common with many hon. Members, a great objection to this bill, and it was not necessary to follow the hon. Member through his excursive speech, as the objection which he entertained was directed against the manner in which this bill had been brought forward. This bill proposed to abolish the Ecclesiastical Courts in Ireland, and to appoint other courts to discharge the duties now performed by them. He confessed, that he was not very fond of encouraging individual Members of Parliament to deal with questions involving a great alteration in the judicial establishments of the country without the sanction of the Government. He had not heard any Member of the Government express his approbation of this bill, and, therefore, on that ground alone, he could not give it his support. But here was another reason why he could not assent to the second reading of the bill. The Government had announced an intention of bringing forward a measure for the purpose of improving the Ecclesiastical Courts in England, and had sent out a Commission to inquire into the working of those courts in Ireland. Now, was it advisable, under these circumstances, that they should be playing at cross purposes, and that an individual Member of the House should, on his own responsibility, bring forward a measure on a subject with which the Government had announced their intentions to deal, acting as they must upon the best legal advice, and possessing all the advantages of official information? He might further observe, that the objects of the Hon. Member's bill were not carried out by the bill itself. The bill professed to consolidate the jurisdiction of the several Ecclesiastical Courts in Ireland into one court, and by way of doing this, it constituted an Ecclesiastical Court in Wexford, Kilkenny, Westmeath, and Longford, and in every county and riding of a county in Munster, Connaught, and Ulster. [Mr. Barron: No.] Such provision was contained in the bill, and if the hon. Member had not read his own bill, that was an additional reason why the House should not proceed with it. Clause 66 gave the Assistant-barrister's Courtin those counties power to grant probate of wills, and do every thing that the Ecclesiastical Courts did. Thus the hon. Member would multiply the jurisdiction of Ecclesiastical Courts throughout the whole country in a bill which bore upon the face of it an intention to consolidate those courts. But the hon. Member had gone further—he had given the same power to the clerk of the peace and the deputy clerk of the peace; for it often happened, that the assistant-barrister did not reside within the county, and it was sometimes important that probate should be granted immediately. Was that an improvement of the existing law, or would it not be more advisable to leave the conduct of a measure of this kind to the Government? Another objection to the bill was, that the assistant-barristers were mostly common lawyers, but they were to decide, in granting probate, according to the Ecclesiastical law. He did not think, that such an arrangement as this would be likely to produce much satisfaction. He would not detain the House by going into a detailed examination of the other objections to the measure, but he should oppose it on the ground that the Government had already announced a determination to introduce a bill for the improvement of the Ecclesiastical Courts in England, and that they were the proper parties to carry out such a measure. He moved, therefore, as an Amendment, that the bill be read a second time that day six months.

Mr. Hume

agreed with the right hon. Gentleman, that the Administration of the day ought to take charge of a question of such importance as the one now under discussion; but if they neglected to do so, that was no reason why others should not bring forward the subject. As to the objection that the Government having undertaken to introduce a measure respecting the Ecclesiastical Courts in England, the hon. Gentleman ought not, therefore, to have brought forward a similar measure for Ireland, he confessed he could not perceive the force of it at all. The reform of the Church Establishment was first begun in Ireland, and that by the Government to which the right hon. Gentleman gave his support. Why, then, should not the reform of the Ecclesiastical Courts begin in Ireland also? The objection as to the multiplicity of the courts created by this bill was equally unfounded. The local courts which the bill was intended to establish were for the purpose of saving the parties, in cases in which small amounts of property only were concerned, the trouble and expense of coming up to Dublin. Surely that, instead of being objectionable, would confer a great advantage on the people of Ireland. The right hon. Gentleman had not, in his opinion, stated any thing which at all militated against the principle of the bill.

The Chancellor of the Exchequer

conceived, that it was quite natural that his hon. Friend (Mr. Barron), having been connected with the Committee that sat on this subject last Session, should introduce a bill embodying the result of the evidence taken before them. At the same time, he was aware, that that Committee had not made any report upon the subject. This increased the difficulty of the position in which he found himself placed, for he confessed, that he had not even read the bill; and, if he had, he did not possess the necessary technical knowledge to form a judgment, unaided by others, upon it. Feeling himself in this difficulty, the course he would venture to suggest to his hon. Friend, while admitting the undoubted right of any individual Member to bring forward this question, was not to withdraw but to postpone the second reading of his bill until the Attorney-General for Ireland, who was now absent from indisposition, was in his place, who, he was sure, would, no less from inclination than a sense of public duty, give every consideration to it. The House was entitled to have the opinion of that right hon. and learned Gentleman, who was thoroughly conversant with the Ecclesiastical Courts of Justice in Ireland.

Mr. Barron

begged to state, in reply, to the right hon. Member for Cambridge, that he had not been anxious to introduce this bill; but he certainly thought it was the duty of the House to legislate upon the subject. He had called the attention of the Attorney-General for Ireland to the subject previous to last Christmas, and that right hon. and learned Gentleman then told him that he was so completely overwhelmed with public and private business, that he found it would be impossible for him to introduce a bill of this description during this Session; but he would gladly assist him in bringing forward the present measure. He wished to add, that this bill was drawn up by one of the most distinguished practitioners in Ireland —one who was now a judge, and who was second to none in professional skill, particularly in this very matter. The bill, so far from creating legal difficulties, would take the power out of the hands of the small attorneys and would give it to those learned in the law. He was not anxious to press the bill at that moment.

Second reading postponed.