§ Sir R. H. Inglis
rose and said:* Those who were present in the early part of the evening, and those only, can adequately understand the all but unanimous opposition which the bill now under consideration appeared at that time to encounter in the House. From every side petitions were presented against the measure: I may observe, that up to the 31st March inclusive, there had been eighty-two; and in this day's sitting, perhaps half as many more have been received—not from one section only of the House, but from all* From a corrected report.785 indiscriminately. And there is this distinction in reference to the present measure, to which I cannot recollect a parallel in reference to any other; namely, that while there have been this number and variety of petitions against the bill, there has not been one—literally not one—petition in its favour. In the language, indeed, of (he petition from the Dean and Chapter of Norwich, which I myself presented a few days ago, those who agree on nothing else agree in condemning the Ecclesiastical Courts Bill. I wish my right hon. Friend (Sir James Graham) would consider this state of things. I respectfully urge him to spare, not his ordinary opponents, but the attached friends of his administration, from the necessity of resisting a measure of his Government; and to withdraw, before there be any actual collision between us, a proposition which so many of his own friends are compelled conscientiously to resist. I have already said that the opposition is general. I know that some object to the bill on one ground; some, on another; some, because the bill goes too far; some, because it does not go far enough. [Sir J. Graham: " Hear, hear."] I understand the cheer of my right hon. Friend; but I can assure him that, for my own part, I will never invoke the aid of any man except on my own principles. I will not attack the measure except on the grounds which I myself can maintain: but yet it must be obvious to my right hon. Friend, that if, without any compromise of my own opinions, I attack the bill on one side, I cannot be responsible for others attacking it in another way on another side. My own first objection to the measure is, that it is a change uncalled for by any necessity. It surely cannot be contended that change, without need, is in itself a good. Change in civil society is in fact an evil, except to remove a greater evil, or to insure a greater good. The disturbance of an existing institution requires these results in order to justify it. The proposed change effects the destruction of ancient institutions, and, at the same time, the ruin of individuals; while it also, indirectly yet necessarily, involves the hazard of injuring a very important branch of legal study and knowledge throughout the country. I am no advocate for the toleration of an abuse because it is ancient; but I say now, as I have always said, prove the abuse, and then reform it: prove the evil, and then remove 786 it;—but prove, also, that the good which you seek will be greater to the community than the evil which it entails will be to individuals.* Now, first, the proposed bill destroys about 380 ancient institutions. There are nearly 400 courts in England, which have existed, some, I believe, from the Conquest; all, for many centuries; and whatever may be said of the original introduction of the ecclesiastical law into England, or of the institution of these courts, or of the propriety of vesting in them a jurisdiction in matters testamentary the facts of the ancient standing of that law in England, of the courts to administer it, and of the matters administered, are all unquestioned. All of these courts, for one main function of their institution, the present bill destroys. It destroys them, without complaint on the one hand, without inquiry on the other. Yet, of the importance and fitness of inquiry, or, at least, of the propriety of the House receiving something like information on the subject at issue, before deciding it, those certainly must be persuaded, who moved for the reprinting of the famous Report of 1832 on the Ecclesiastical Courts. But if that report, contained in the big Blue Book which has been delivered this morning, be necessary to enlighten the House on the subject, the discussion ought now to be postponed: this large volume has not been ten hours in our hands; and a man can hardly yet handle its damp pages without the danger of rheumatism: if, on the contrary, the Blue Book be not necessary for the discussion of the measure, why was it ordered to be printed, at an expense which an hon. Member opposite (Mr. Hume), more easily than I, can calculate? In this volume, to which the framers of the present measure refer as their great authority, the destruction of about 380 courts was first projected. I am aware that, on this branch of the subject I shall not have the sym-* On this subject, I am happy to quote the forcible and just observation of Dr. Robert Philimore. (Study of the Civil and Canon Law, Lond. 1843, 8vo., p. 1.) "In our own age, the order of things seems reversed; every existing institution is called upon, in legal phrase, to show cause why it should not be destroyed the burthen of proof is shifted in a manner so contrary to common sense, equity, and reason, that those who defend what is established are required to demonstrate that it is not, instead of those who attack that it is, injurious to the public weal.787 pathy of many, who, nevertheless, concur with me in opposing the bill, of which this is one of the results. But it appears to me to be in principle so objectionable, that I cannot consistently refrain from urging the evil of it. Some of these courts are royal peculiars; some are lay peculiars; some clerical peculiars. In these terms, and throughout the discussion., I shall not confine myself to technical language; it is not difficult to clothe (he whole question with professional phraseology; but in a deliberative body, like the present, it is better to use the common-sense language of daily life. To the subject of the royal and lay peculiars I will ask the attention of the House at a biter period; and to the subject of that mixed character of peculiar attached to the temple in London I will not presume to advert at all: I will rather leave it to its natural defenders, the learned body whose rights and independence this bill despatches by one summary phrase. I now advert to the case of the clerical peculiars, not so much with a view to show their fitness to retain possession of any jurisdiction in secular matters of ordinary society, such as wills, as with a view to show bow completely and how suddenly, by one single word, the present bill destroys some of the most ancient and established institutions of the ecclesiastical system of England. Take, for example, the Deanery of Salisbury. The Dean of Salisbury exercises a quasi-episcopal jurisdiction over eighty-two parishes—almost half as many as are contained in the diocese of Durban); almost quite as many as were contained in the diocese of Rochester ten years ago. I find this statement of the fact in one of the returns made to the House (No. 232. of 1828, p. 38.)The very rev. the Dean of Sarum, by an ancient constitution of the cathedral church, has exercised peculiar and exempt episcopal jurisdiction over eighty-two parishes; the dean having ordinary jurisdiction over the prebends of the Church (in which the prebendaries exercise archiadiaconal jurisdiction, having formerly resided on their prebends) and peculiar jurisdiction in other parishes; and, as ordinary, visiting triennially the prebends, in like manner as the bishop visits the archdeaconries; and visiting annually the other parishes in his peculiar and immediate jurisdiction, according to the ancient statutes of the Church, and the constant usage for above five centuries past,I take the statement from the return: 788 but the date might have been placed much earlier—almost to the time of the first bishop who had his see in Salisbury, nearly 800 years ago. Is there any proof, is there the slightest allegation, of abuse on the part of the Dean of Salisbury? The actual dean and his immediate predecessors might, I believe challenge inquiry into their conduct. The present Dean visits and charges his clergy like a Bishop, and with great piety and discretion. Nor is this jurisdiction a novelty arising out of the Reformation. I beg the House to recollect that, by the lowest estimate of its antiquity, it has, on the contrary, existed for five centuries; for two centuries, 1 might almost say five, before the Reformation; for three centuries since. It is possible, though it may be feared not probable, that the bill, after all, does not contemplate the destruction of this jurisdiction without the shadow of a charge against the holder of it. But if it be not intended to destroy it, then it may be said, that the phraseology of the bill is singularly unhappy: and here I cannot but recollect the language of the Dean and Chapter of Norwich, to whose petition I have already adverted, and who, observing that by one form of words in the bill, all chapters and colleges, perhaps even the Universities, are made subject to the visitation of the nearest archdeacon, and being since told that such form of words was a mistake, and did not represent the mind and intentions of the framers of the bill, reply, that such a mistake, occurring in the first clause of the bill, deprives them of all confidence in those who so framed it. It is true that the obnoxious phrase occurs in other measures which, at different times, have been brought in by others, for the regulation or abolition of Ecclesiastical Courts: but this is no justification of its occurring here, if it have, as is believed, the meaning which the chapters affected by it have apprehended it to bear. The measure has by some been regarded as the attack of Doctors' Commons against all England. But I am happy to say, for the credit of Doctors' Commons, that all connected with its courts are not unanimous in favour of the bill. On the contrary, the ablest pamphlet which I have read on the subject, and which I respectfully recommend to my right hon. Friend (Sir James Graham), entitled, "Remarks on the Ecclesiastical Courts Bill," is, though anonymous, un- 789 derstood to be written by a very able and acute practitioner in the London Courts. If, then, even Doctors' Commons be not unanimous in favour of the measure, is the change asked by the country? 1 have already referred to the number of petitions against the bill, and to the absence of any single petition for it. In the words of the petition from Carmarthen, presented by an hon. Member whom I see opposite (Mr. Morris), the existing system is to be destroyed "in the entire absence of any expression of dissatisfaction on the part of the public." What, then, recommends the measure? Why, it is "centralisation." Now that word—whatever charm it might once have possessed—has lost that charm in the eyes of the people of England. It is no longer in itself likely to be received as the justification of this or any other great change. Yet half, at least, of the reasoning in favour of the present bill rests on the benefit of "a central system." However inconsistent may be such reasoning on the part of those who in other matters are carrying justice to every man's door, yet, for the sake of argument, I will admit, for the moment, that it is desirable, that there should be one great central court, to which should be transferred all the business of the 380 courts which are to be abolished. May I, without throwing ridicule on the arguments of the friends of "centralisation," try it by this test? namely, will they erect the new court at Northampton, as the actual centre of England? No; their real object is to take all the business from the country, and bring it all to London: the real object is not centralisation, as such, but their own metropolis—not one court, but that one court in Doctors' Commons. I will not attempt to point out all the objections which exist to the present measure, in what it destroys, and in what it creates.*Charles Bowdler, Esq.: I am glad to tale the opportunity of stating here my entire conviction that my right hon. friend (Mr. Nicholl), who retired from Doctors' Commons when he accepted the office of Judge Advocate has, personally, no more pecuniary interest in the measure than I have; that his own right of patronage under it is not more extensive than mine; and that he has no more an unworthy motive in urging the bill than I have in opposing it. I say this, because to his measure, though certainly not to himself, I am on fuller consideration move and more opposed.790 I feel that I am likely to need so much of the indulgence of the House on one grant division of the bill,—that which relates to the testamentary jurisdiction,—that I must leave to others the task of pointing out in detail the evils in other pacts of the bill. I select the question connected with testamentary jurisdiction as the more prominent ground of my objection, not because other matters which I find in this bill do not claim the highest attention on other grounds,—such, for instance, as the jurisdiction in causes matrimonial; such, also, as those which deprive the Church of its attribute of having any temporal sanctions in maintaining its discipline in any case; such as those which exclude from its cognizance altogether a whole class of questions which it has for centuries decided, and such as those which give an appeal from the decisions of a bishop, in matters purely ecclesiastical, to the Queen in Council, without providing that such council shall consist of members of the Church;—it is not from disregard to these subjects that I propose to pass from them to any other, but because I believe that the consolidation of all the business relating to "the wills" of England is, practically, the foundation of the whole proceeding. But, in passing, I would just notice one of the needless inconsistencies of the measure. Having by one clause destroyed at once all the peculiars, lay and clerical, of England, and having subjected chapters and colleges, and perhaps even the Universities, to the visitation of the nearest archdeacon, the bill proceeds, by another clause, to destroy the court of this very archdeacon. The Legislature by a late act gave increased functions to the archdeacon: he is still to remain the oculus episcapi,—he is still to visit; but in this function he is to be little more than a common informer, without the power of acting on the results of his visitation. But perhaps I may be told, as in the case of chapters being made subject to the archdeacon, that it is a mistake, and is not intended. All I can say is, that, on the face of the bill, the attentions which it effects, and which, I fear, are at all events intended, are alike extensive and impolitic; and therefore, if In one point I attribute to it a consequence not contemplated, enough of needless change still remains to justify my opposition. Again I say that I defend no abuse: but again I say, prove 791 that an institution is an abuse before you destroy it. The present mode of legislation is rather working in the reckless spirit of savage life, which destroys a tree to get at the fruit, than in the wise spirit of statesmanship, which will always look first to a remedy, before it destroys. My complaint is, that, instead of remedying defects, this measure works a wholesale and indiscriminate destruction. There have been insulated instances of abuse stated; and enough has been made of "the will kept in a hat-box" in some small country registry; but there is little wisdom in making such rare cases the ground of so wide a measure of abolition. I will prove that this is the exception; the present practice in the country courts, as reported to this House, and as I myself have it in evidence, is very different. I will not, of course, trouble the House with details on all or even on many of the registries; but I will take a few, by the fairest of all rules of selection,—the letters of the alphabet. I will, therefore, look neither to the north nor to the south of England; still less to the Whig or the Tory; but I will take two letters of the alphabet, B and C, and only a few instances from each. First, Bedford, which I have myself indeed visited; the original wills are all kept in a room under the same roof with the church; and in another building, copies of all those wills, from 1600, are to be found, transcribed in folio volumes, with indexes as regular as those in Doctors' Commons. Then, Barnstaple: the wills are kept in a fire-proof room, built by the registrar, at his own expense; and copies are made and kept in folio books, as in Doctors' Commons; and the registrar, with whom I have been in communication, states, in reference to the court there, that there has not been one appeal from its decisions in seven years. At Bristol, I learn, on the authority of Mr. Clark, who has officiated there for forty-four years, that the poorer classes obtain, instantly, probate of the wills of their friends without the employment of proctors or solicitors, by going direct to his office. Would the proposed change be beneficial to them? Mr. Clark adds, that there have been only two appeals during his time, and in those the judgments of his court had been confirmed. No appeals have been made from our decisions in the last ten years—is, indeed, the return made continually from the 792 greater number of the country court. William respect to the great proportion, in fact, there is very little business for decision, or for appeal. I have looked down whole pages of one of the returns to this House, and find one statement—no suits in this court for the last ten years. So far, therefore, as business is concerned, many of these minor courts might be abolished; but the same fact proves also, that they do no harm. But to return to my list. At Bodmin, as I see by a letter which I have received from Mr. Preston Wallis of that place, another advantage of the existing system is exemplified, which will be lost by the projected change and consequent transfer of all the original wills to London. He says:Within my own experience, I have known many instances of suits having been amicably settled by an inspection of the will of the deceased in the registry office; the parties have recognized their relative's handwriting, and been content. How is this to be effected at Exeter or in London? How are poor people to travel 100 or 300 miles to see and be satisfied?He takes these distances because the bill at all events carries the original documents to London, 300 miles; and then sends down copies to Exeter, 100 miles from some parts of Cornwall, and does not leave in that large county one single court of probate; whereas now, as Mr. Wallis states, half-yearly courts are held in each of its principal towns, and are so arranged that no party has to travel more than ten miles to prove a will. He adds:And when once the difficulty and improbability—of inspection by those interested in detecting frauds or forgeries—are known, it cannot be supposed that such practices will be less frequently resorted to.To show the value to the great bulk of the people, of their existing privilege of superintending their own business personally and on the spot, Mr. Wallis, in the same letter, states, that, of the 308 wills proved on an average of ten years in his court, 243 were sworn to by the parties either at Bodmin or in his registry circuits, and no more than sixty-three were sworn to by commission. The importance of a party being able himself to see the original will in which he is interested is also illustrated in a letter which I have received* Vide Parliamentary Paper, No. 386 of 1838. In the first fifteen returns there is no one appeal.793 from Mr. Davis, a venerable practitioner at Gloucester. This gentleman, who has the experience of nearly half a century, states:Nobody but those in the practice of it can tell how it appeases angry and litigant parties by taking them to the register office, and showing them the orignial document, the handwriting of the deceased, &c. &c. These are matters inherent in human nature, about which there is no arguing. At present, a will may be seen for a shilling. If deposited in the Commons, I will give you an idea of what the probable expense would be, by inclosing a skeleton of a probable bill.
|Mr. A. B. to C. D.|
|Attending and taking instructions||s||d|
|to search for the will of E. F.||6||8|
|Letter to Proctor or agent in London||5||0|
|Proctor's attendance to make search||6||8|
|His letter in answer||5||0|
|Attending you and communicating the result, and consultation thereon||6||8|
That is, 1l. 10s. for doing unsatisfactorily by deputy what is now done satisfactorily in person for one shilling. I hold in my hands another letter, addressed not to myself but to an hon. Member (Mr. Ferrand), the cause of whose absence from the House all will lament; and from this letter, written by Mr. Powell of Knaresborough, and referring to the views of people in that part of the country, I will read a short extract, exhibiting statements similar to those contained in the other communications, and. with them deprecating the proposed change.
We all know that a poor man is best satisfied with the contents of a will if he sees the will himself, and reads or has it read to him; and I have witnessed many a person who has travelled fifteen or twenty miles to this place to look at a will to see if it were signed by the testator, and who were the witnesses: this appeared to satisfy, for which he had to pay one shilling; and I believe the same charge only is made at York; indeed, I know it is so, because I have many times paid it.
These statements of the benefits of the local courts of probate, and of the evils of the projected change, are, however, incidental and collateral. I will therefore pursue my course of showing, by specimens taken alphabetically, that the sweeping charges against the country offices are unsustained by fact. The next place is Carmarthen. The petition of the mayor, aldermen, &c, to which I have already
adverted, affirms that the state of the registries of the diocese of St. David's is very satisfactory, and that the records are preserved with as much care as in the metropolitan courts. The case of Chester, which comes next in the alphabetical order, is, in every point of view, most important; as illustrating the advantages of the local system, and the expense and evils of the alteration now in question. But as I see opposite, the hon. and learned Gentleman who represents that city (Mr. Jervis), 1 will not intrude with any details on his province: I will only say that the wills are kept, originals and transcripts, with the same care as in Doctors' Commons; and with indexes as perfect: and as to the expense of the two registries I have been furnished with a paper purporting to be a tabular statement of the actual charges for probates and letters of administration respectively granted by the courts of Chester and Doctors' Commons for the two last years. In respect to the accuracy of this statement, I cannot, of course, vouch from personal knowledge; but I can assure the House that it proceeds from one who as to one half of the returns is necessarily the highest authority, and who as to the other half pledges himself to his belief in the statements which he has supplied to me. From this paper it appears, that whereas property in the estate of Knowles to the amount of 35,000l. was passed in Chester for 19l. 0s. 5d., the property of the same estate, sworn at Doctors' Commons to be under 16,000l. cost there the sum of 34l. 6s. 4d. Again: a probate for property at Chester sworn under 1,000l. in the name of Walkden, cost there 7l.2s. 0d.; while for 600l. in the same name in Doctors's Commons it cost 18l. 4s. 4d. Again: the charges at Chester, in the case of Cog-Ian, with property sworn under 25,000l., cost no more than 7l. 13s. 6d.; while for property sworn under 7,000l. in Doctors' Commons, the same estate paid 19l. 5s. 10d. I have taken the two first and the last entries in the year 1841. I could goon with other instances equally remarkable; but 1 must stop—adding only one observation, that though it might sometimes happen, as in the cases cited, that the highest charge was no great burthen on the property at issue, yet, on the other hand, it might, and did happen, sometimes, that the expense was an inconvenience and, at all events, such expense
ought not needlessly to be increased. As to the working of the courts, I have taken six, under the letters B and C, and I have found that the wills in the country are kept as regularly as the wills in London; I have found by the last instances, that the expense in the country is strikingly less than the expense in London; and I see by one of the papers which have been sent to me, that the searches for wills in the country for a given period were 7,758, while those for the same period in London were no more than 721; showing the interest which the country has in the case. Upon this, however, I lay no special stress. I feel bound to add that some of the judges of the local courts are men of eminent ability. I am sure that my right hon. and learned Friend the Judge Advocate (Mr. Nicholl) will be among the first to admit the high qualities of the distinguished judge, the Rev. William Bruce Knight, who presides as chancellor in the diocese of Llandaff: and there are many others fully entitled to the confidence of the suitors and the respect of the profession. The removal of all testamentary jurisdiction from the country courts will be a practical denial of justice: and though the evil is qualified in the present bill (very inconsistently, indeed, as I might easily show), by leaving to those courts a jurisdiction in the case of personal property under 300l.; yet, in point of act, if there were no other objection to the change, the difficulty of deciding whether such property be or be not within the prescribed limits, would often work great injustice.* As the law stands now, the validity of a will may be decided on the spot, by the country court, on the question or granting probate. I have before me at this moment the report of a cause, Cooper v. Hill, before the Rev. D. A. Williams, who presides in the court at Carmarthen. I have read the proceedings, and have no hesitation in saying that they appear to
* In cases of persons In trade, it will often be exceedingly difficult to ascertain whether the stock, furniture, and book debts do or do not exceed the precise sum of 300l. If it do, and the country probate shall have been taken in error, as for property under 300l., such probate will be worse than void, and the executor may be subjected to vexatious or ruinous proceedings. The limitation is also illusive: for, as Mr. dark of Bristol, whom I have already quoted, nays, "there are few tradesmen whose stock in trade, furniture, and book debts do
me not unworthy of any court. Yet the whole question at issue was not more than 100l.; while yet the expense of deciding it, if the cause were removed to London, and witnesses on both sides were to follow it, would soon swallow up the entire property. But that property was, perhaps, the all of the claimants; and, at any rate, when they got justice cheaply in the country, they ought not to be compelled to seek it in London, at the hazard, or rather the certainty, of losing the whole property before the decision. This is one of the cases in which the removal of the jurisdiction would be a positive denial of justice. But disputes about the validity of wills are not the only instances in which a wrong may be wrought by the removal of the original documents to London. Every one knows that in the case of the descent of freehold property, the production of the original will is frequently necessary. Take the case of the county of York. I quote from the same letter from Mr. Powell to Mr. Ferrand:—
You are well aware that upon every trial where the title to houses or lands is derived by a devise in a will, the original will must be brought into court. Now, if the will is to be brought from London to the York assizes, it will be actually depriving the poor person of his freehold, because he will not be able to raise the ways and means to bring down a person from Doctors' Commons to the assizes at York, perhaps at a cost of from 20l, to 30l., which, if at York, would not cost half as many Shillings.
And let it always be recollected, that while that expense is the same, whatever be the amount of the property passing by the will at issue, the practical difference to the suitor is very great, whether it be 20l. upon 50,000l. or the same 20l. upon 200l., and the evil of the expense of the charge is felt by the great mass of the people; and for them you are now legislating. When I last addressed the House upon this subject, I stated that the cen-
not exceed 500l. or 600l.; in most cases 700l. or 800l.; yet probably, on winding up the estate of the deceased, there may not remain, after paying all the debts due from the de ceased, a net residue of 100l., frequently not so much. In such Cases as these, every 1l. is of vast importance; and it is evident that to drive such parties as these to London, to transact a business which his always hitherto been done at home, without expense beyond mere court fees, is a great hardship.
tralization principle of the proposed measure, as then opened by my right hon. and learned Friend (Mr. Nicholl), was directly contrary, not more to fitness and equity than to all the precedents of later legislation, and to measures in analogous natters actually announced by the framers of the present bill. The removal of the country courts to London is contrary to the great axiom and duty of bringing justice, as near as may be, to every man's door—in many cases, it would bean actual denial of justice: and if, as I have proved, it would also in many cases be attended with a great increase of expense, such increase is itself a tax on the country for the benefit of London. Parliament has been endeavouring for the last twenty-five years to reduce the expense and delays of law by bringing questions before the tribunals nearest to the parties interested. Thus by the 59 Geo. 3rd, c. 12, the possession of parish houses may be recovered at petty sessions, instead of in the courts at Westminster or at the assizes. Again, actions for sums under 20l. may be tried in the Sheriff's Court, instead of at Westminster, or at the assizes. By the 6 and 7 Will, 4th, c, 96, ap3peals against parochial assessments are heard at petty sessions instead of quarter sessions. So, Spain, with respect to hike- ways, So, again, in reference to the late Bankruptcy Act. And what is the principle of the measure which my right boo. Friend, the Secretary of State, has announced his intention of bringing before the House in the course of the present Session, in relation to county courts? Is it not the principle that justice ought to be brought home to every man's door? Why then, should that which is right in civil matters not be applied to those which are called spiritual and ecclesiastical? or, rather, why, if it he right to give to a civil court jurisdiction in its neighbourhood, can it be right to take away from an ecclesiastical court, the jurisdiction which it has long exercised in its neighbourhood? If it bright to gift to persons living in Cumberland or Cornwall justice at their own doors In parochial assessments, why should they not retain the same advantage with respect to wills 1 The proposed removal, besides being in many cases a denial of justice, and in very many more an increase of expense to suitors, would also, as I believe, be the occasion of frequent fraud. In the country courts it is hardly possible
for any fraud to be committed by attempting to prove a will whilst the testator is living. I may appeal to an hon. Friend behind me, whether the will of a Lincolnshire farmer or gentleman could be proved at Lincoln in the lifetime of the party? All men are known to their neighbours. Ts the case impossible in London? Has it never happened in Doctors' Commons? A gentleman went abroad for six months, leaving his will in the hands of but attorney. On his return, he went, as he had been in the habit of going, to the Bank of England, to receive in person his dividends, and asked for those which had accrued on his stock during his absence. "Sir," said the clerk, "I am very sorry to tell you that you are dead. You have been dead some time. There is no stock standing in your name; it has all been sold out for your will has been proved." Could any transfer of a neighbour's property have been effected by such a fraud in any county in England? I believe, that in the case which I have stated, the bank, rather than suffer any inquiry, re placed the stock and paid up the dividends. It is not my object to depreciate the system of Doctors' Commons nor should I allude to this or to any other error or irregularity which has been committed under it, if its patrons had not seemed to desire to represent the country courts as inherently and incurably vicious, and their own unassailably perfect in all its parts. They desire to have all the wills in Stag-land taken up en mam to London, and placed in their care; while they would return attested copies to the country, Now, on this but point I may state a case which I have received from a most respeable practitioner in a distant county. He sent for a transcript of a will, in reference to some intended legal proceedings: on perusing it, he discovered such an obvious inconsistency, that he proceeded himself to Doctors' Commons, and examined the original will; when be found that two whole sentences had been omitted by the transcriber. Of coarse, such an error may happen anywhere; bat it will in general be corrected more easily if the original document be left in the neighbourhood of the party interested, 1 mention it, however, only to show that Doctors' Commons is not impeccable, and ought to have some mercy for the humbler court in the country. Again, the friends of Doctors' Commons talk of the danger
to which wills are exposed in the country repositories. I have already described the secure state of some of those repositories, taken alphabetically. But is there absolute security in London? First, what say Mr. Gostling and Mr. Dyneley, in their evidence in the appendix to the celebrated report of 1832? it is in p. 83—
Supposing" (they are asked) "the principal registrars were to die, the lease is made out to their executors and assigns probably; and therefore the office where the wills are kept would become the property, for the remainder of the lease, of their executors and assigns?
Their answer is, "Yes." Does this give the idea of a perfect depository?* But as to London generally — is it the safest place in the empire for the general collection of those documents which are the most important for the property of the people? Is it so safe, from fire for example, that all the wills of England ought to be gathered together there? How many of the public buildings of London have suffered from fire in the present generation The Tower has not been safe; Westminster Abbey has been in danger; the Royal Exchange has been, burnt to the ground; and we are now sitting within walls which remind us of a still greater conflagration. By some such calamity, or by some act of violence, all the wills of England might thus be destroyed. Whether such a catastrophe be or be not probable, it is at any rate more probable, when the documents are brought into any one spot, than when they are scattered over the country. These considerations, are not however, my chief objections to the measure. I must proceed to advert to subjects, which, if I were an advocate, seeking only for success, I should not touch; inasmuch as I know that they will be unacceptable to many whom I address. But as they powerfully influence me, and above all, as they involve, in my judgment, important truths, 1 am unwilling to refrain from stating them. At the intro-
* "Indeed, we are of opinion, that, even in the existing state of arrangements, it deserves very serious consideration, whether the Prerogative Registry, now the depository of the most important title deeds, both as to real and personal property, ought not to belong to the Government, instead of being, as at present, the property, on lease only, of the Registrars of the Prerogative Court of Canterbury, who hold their offices for life."—Report, p. 42.
duction of this measure, two months ago, my right hon. and learned Friend (Mr. Nicholl) called the attention of the House to the disinterested conduct of the Archbishop of Canterbury in having relinquished the patronage connected with the Ecclesiastical Courts in his province, and in having been willing to abandon the style and title of those courts and of his own office in them. I trust that I shall say nothing inconsistent with my reverence for the high station which the Archbishop fills in this church, and nothing inconsistent with the feeling of affectionate respect, if I may be permitted to use the phrase, which I feel towards his grace personally. But I deny the right of the Archbishop — I deny the right of any bishop — to surrender any patronage which they received with their sees. Let them denude themselves, if they please, of their own personal interest in the matter, by accepting for the time being the recommendation of any Minister of the Crown as to the appointment of any individual judge:* but the appointment of the officers in their courts is the inheritance of their sees; and they are not at liberty to compromise the powers and privileges of the establishment by a voluntary surrender of the original right. My argument does not apply to abuses: I have, over and over again, declared that I defend no abuse; but I require the maintenance of the institutions of the country till they shall be proved to be abuses. To the destruction of the institutions now in question, the Ecclesiastical Courts of England, and of the system with which they are connected, I have another and distinct objection. I regard the present bill as another wedge driven in to sever the Church from the State, the ecclesiastical from the civil polity of the realm. At this day and for 800 years, the Church is, and has been, the prominent institution of England. Ever since the Heptarchy, there has never been an age, except in the great rebellion, in which the prelates of
* Yet who are the men whom the Archbishops of Canterbury and the Bishops of London have selected? Are they not men who do honour to their science, and to their nation, as much as to their patrons? And are there any superior men, whom, for party politics, or for any other cause, these great dignitaries have passed over? Who appointed Sir Leolin Jenkins, Sir William Wynne, and Sir John Nicholl? I quote no living name; but, above all, who appointed Lord Stowell?
England have not taken the first place among the estates of the realm: at this day, the Lords Spiritual from the first of those three estates which surround the Sovereign. At this day, bishops hold their courts in every part of the kingdom; and in every such court, and consequently in every such district, the name and representation of the church are carried into civil life. Now, to apply to this system the analogy of the temporal power. How much of our reverential feeling for the throne and the monarchical institutions of the country is connected with the words, "The Queen's Writ, her Majesty's Navy, her Majesty's Land Forces, the Queen's Ambassadors, the Queen's Judges !" This House is a portion of the Queen's Parliament; and every act of the Legislature is the Queen's act. We cannot afford to part with this phraseology, as illustrating the constitutional doctrine, that the state of England is a monarchy, administered, indeed, by organs taken freely from the great body of the people, but still essentially monarchical as contradistinguished from democratical. Apply the influence of language and of institutions in the one case to the influence of language and of institutions in the other. Can any one doubt that the fact of all the property in England being, at the death of the owners, disposed of under the authority and in the name of an Archbishop of Canterbury, or of an Archbishop of York, or of a Bishop of Lincoln, is one of the means by which the state of The Church and its civil influence on society are maintained? Can 10,000 probates issue each year from the Prerogative Court of Canterbury, can as many more issue from the Diocesan Courts, without carrying into every corner of the land some impression of The Church being a great integral portion of the Constitution? I am not, for a moment, comparing the value of the real and spiritual claims and agencies of the Church, with the value of these extrinsic and temporal powers, I am only contending, that in respect to a Church established, these are some of the means by which it is sustained as an establishment: and 1 warn you against concluding, that because you may not, in the next three or four years, see any direct results of this measure, in weakening the power and influence of the Church, that therefore this prognostic is unfounded. Wait for thirty or forty years;
and then compare the social position of the Church, stript as this bill will strip it, with its actual state. For recollect, always, that the existing system places in every diocese and in every city and great town some layman, not merely attached to the Church, but officially bound up with its interests. Is it wise, for churchmen at any rate, to sweep this away? Again, the present system enables bishops to appoint to the office of Surrogate many of their clergy, whose small incomes are often eked out by the discharge of these duties. Is it fitting that this patronage, on the one hand, and these means of usefulness and emolument on the other, should be taken from the Church by the hands of churchmen? Observe, always, if there be a wrong in the existing system, correct it: if there be an imperfect good, capable of being improved, promote it: but do not change, without well-grounded assurance, that you are changing for the better; do not change for the sake of changing. And, more particularly in reference to the subject now immediately in question, do not shelter yourselves under the delusion, that you are acting under the authority of the Commissioners of 1832; since, while their report recommends much which I, for one, think objectionable, still that report, at all events, recommends the preservation of the Archbishop's Court in both provinces, and continues the name and agency of The Church. Nay, more, Lord Brougham's Bill, introduced in 1835 on this subject, recognised the rights of that jurisdiction. I feel another objection to the present bill. I have already referred to the clerical peculiars, which the bill destroys, It destroys also, at once and without the allegation of abuse on the part of the laity, who for centuries, had held royal and other peculiars in England, these their ancient and legal distinctions and rights. I have taken from one page, in reference to one diocese, (I do not mean that every page and every diocese would present such a list; on the contrary, the series is per-
Nothing is clearer than that the animus of the report is in favour of retaining the two provincial jurisdictions; though, at the close, there is an inconsistent hesitation; but the commissioners say distinctly, p. 67. "It is to be recollected that we proceed on the presumption that the jurisdiction of all the ecclesiastical courts, save the provincial courts of Canterbury and York, will be abolished,
haps unparalleled) the following list of peculiars, from p. 22 of the Parliamentary Paper No. 232 of 1828, being in the diocese of Lichfield. They stand together thus:—The Royal Peculiars;—Tettenhall held by the present Lord Wrottesley; St. Mary in Shrewsbury, y the bailiffs and corporation of Shrewsbury: Penkridge, by Lord Hatherton; Bridgnorth, by Thomas Whitmore Esq., formerly a Member of this House, from whom I have recently presented a petition to the House stating the convenience of his country court having jurisdiction of probate in a population of above 9,000 persons, Hereford being forty-four miles in one direction, and Lichfield about thirty in another;— that he and his ancestors had held this Royal Peculiar for upwards of 200 years; that they appointed the judges and officers; and he prayed, (and here I beg to call the attention of the hon. Member for Montrose to the subject) that, in the event of the bill passing, he and his officers might receive compensation for the loss of the income and places which they enjoy. The list in the diocese of Lichfield went on: — there were Peculiars, as manor courts: Burton-upon-Trent, held by the Marquess of Anglesey; Pashwood, by Earl Cornwallis; Knowle, by Henry Gres-wold Lewis, Esq.; Balsali Temple, by the governors of the hospital of Lady Catherine Leveson; Barston, by Mr. Hopkins; Baddesley Clinton, by Edward Ferrers Esq., Merrevale, by D. S. Dugdale, Esq.; Wembridge, by W. Charlton, Esq.: Longdon, by the Dukeof Sutherland; Har-lington, by Sir Hugh Bateman. I might proceed with other instances, to show how much is thus by a stroke of the pen taken from the landed gentlemen of England,—I believe without their being aware of the provisions of the measure. I will add two only to the list; one is the case of the Peculiar of Harefield in the county of Middlesex, held by my hon. Friend the Member for North Warwickshire (Mr. Newdegate). I mention it for the sake of adding some circumstances which the delicacy of my hon. Friend, when presenting this evening the unanimous petition of the parishioners against the extinction of this jurisdiction, could not permit him to state. My hon. Friend recently has expended 2,800l. in enlarging the Church of that praish. I do not mention this as if he had done more than his duty; but I do mention it as more than many others would
have done—as more than perhaps even ho would have done if he had been merely proprietor and patron. My hon. Friend felt that he and his ancestors had, except for a short interval, held this Royal Peculiar since the time of Edward 3rd; and they felt a more than proprietary interest in the well being of the place. And on this subject, as my noble Friend the Member for the city of London does not happen at the moment to be in his seat, I will take the opportunity of stating, what, in his absence, I can state with more freedom; that the late Duke of Bedford inheriting many Peculiars, largely and liberally maintained the churches in them at his own expense. He might have done this if he had been merely the proprietor of the estates or the patron of the livings; but he felt that he had a special and superadded duty as holding the Peculiar; and he acted accordingly. And this, I doubt not, has been the feeling of others also. I have many other objections, strong and distinct, to the bill now on the Table; some of those objections are to parts of the measure, and to principles involved in it, not less important, in my judgment at least, than any to which I have already called the attention of the House. But I have occupied so much of their time, and other Members are so prepared to state the case against the measure that I will not ask more of their indulgence for myself. But, having taken the liberty of recommending to my right hon. Friend (Sir James Graham) one work on the bill, the pamphlet entitled "Remarks &c.," I will venture to urge on his attention another also, a volume recently published by Archdeacon Robert I, Wilberforce, on "Church Courts and Church Discipline," I trust that these works, and a reconsideration of the whole subject, will induce my right hon. Friend to change his course. Entertaining as I do the most sincere respect for him, 1 entreat him to pause: I entreat him to withdraw the present bill, rather than adopt the advice of my right hon. Friend opposite, the Member for Devonport(Sir George Grey), that is, to refer the question to a select committee up stairs; though, indeed, I might prefer a committee to a perseverance in the present measure. For myself, however, I deprecate a government by committees. I wish that the ministers of the Crown should on their own responsibility, bring forward their own measures. Believing that the
present measure it ill considered, I urge my right hon. Friend to withdraw it; and if he think fit, to introduce another measure in another Session. I make this suggestion because I honestly believe that it still be impossible for her Majesty's Government to carry this measure through Parliament during the present Session. In saying this I feel assured that I am speaking the sentiments of many who, however reluctantly, will feel themselves compelled to vote against the present bill:—I say reluctantly, because, although they are as independent of the right hon. Baronet as he is of them, they are in the habit of giving their general confidence to him and his colleagues, and because they do not wish to give rise to an appearance of disunion, which yet I as well as they, feel it impossible to prevent,—which yet at the same time they equally desire to avoid. My right hon. Friend must, I repeat it, look to as much opposition from this side of the House as from the other. Taking into consideration these circumstances,—the opposition from both sides of the House, and the unequivocal opposition of the country to this measure, with so many petitions against it, and without a single petition in its favour,—I trust that my right hen. Friend will not press the further progress of the measure. It cannot, at any rate, be regarded as one of such urgent and vital importance as to require an instant adoption. For these reasons, I move that the bill be read a second time this day six months.
§ Sir James Graham
, Sir, my hon. Friend the Member for the University of Oxford, baa made so direct an appeal to me, that it is impossible for me to delay replying to the remarks with which my hon. Friend has prefaced the amendment that has just been read. I can assure my hon. Friend that if this measure had been hastily prepared, or if I thought, that further deliberation might change my views upon the bill now under the consideration of the House, I would willingly yield to the suggestion for delay. But the bill has not been brought forward prematurely, nor without ample preparation on the part of her Majesty's Government, and I should only be guilty of deception, if I were to lead any one to believe it possible that I could change my views respecting this measure. Considering the view which nay hon. Friend takes of this measure, it is quite natural and consistent on his part 806 to move that it be rejected, for he has stated to the House that he looks upon the bill as one that, if passed, would sever the connection between Church and State, would be a confiscation of valuable rights, and would be, on the part of the Archbishop of Canterbury, a surrender of privileges which he has no right to surrender. I feel bound to say, that I distinctly admit the truth of the statement made by my hon. Friend at the beginning of his speech, that I must be prepared for a very powerful opposition to this bill. I am aware, that many of the gentlemen with whom I am in the habit of acting, disapprove of the bill, and I am also aware, that among those to whom 1 am habitually opposed, there are likewise many from whom I must look for the most determined resistance to the measure. If I were not aware of the grounds of this opposition, I should only have to look at the volume I hold in my hand in order to ascertain them. When my right hon. Friend was at the head of the administration in 1835, an hon. and learned Gentleman, who previously as well as subsequently held the office of Attorney-general (Sir J. Campbell), who was then opposed to the Government, plainly told my hon. and learned Friend, the present Attorney-general and the then administration what would probably be the effect of a measure of this description, affirming that it would give umbrage to the country solicitors, a very powerful body, who would send in numerous petitions on this subject to the House, and would be able to induce many Members to vote against this salutary reform. Sir John Campbell then pointed out the difficulties which would attend a measure of this kind, and I now cite the opinion as a convincing proof that those difficulties have not been over-rated or misunderstood, but I, in the discharge of my public duty, being sincerely of opinion that this measure would be conducive to the public interest, and that it is not of a dangerous nature, as my hon. Friend who has just sat down believes it to be, have thought it my paramount duty, at all events, to submit the bill to the deliberation of Parliament. Anticipating the precarious support which this measure might receive en the opposition side, and aware also of the character of the opposition it would encounter out of doors, in the powerful quarters to which I have alluded, but believing firmly that it is wise in its 807 policy, and would be conducive to the public good, I can not shrink from asking for the opinion of the House on its merits. My hon. Friend says this measure is not called for and asks from whom it emanates. Never has a measure, effecting a judicial change, been proposed to Parliament, which rested on a concurrence of higher authority than the bill under discussion. First of all, it has been submitted to a commission composed of the highest ecclesiastical and legal authorities; and the bill embodies, with a very slight exception, all the recommendations contained in the report of that commission. When I had the honour of being at the head of the Board of Admiralty, it was necessary to bring under the consideration of a committee of the House the constitution of the Admiralty Court, and, immediately connected with it, the administration of the civil tribunals of Doctors'-commons. A committee was appointed in 1833, to which the question of the Admiralty Court was referred, and an hon. Gentleman whom I see opposite (Mr. Jervis) served on that committee. I am sure the hon. Gentleman, although differing from me in many respects, will agree with me in thinking that the committee comprehended some of the highest authorities in the House. The late Sir J. Nicholl, the present Sir H. Jenner Fust, Dr. Lushing-ton, and Sir Nicholas Tindal were all examined before the committee, and all gave their evidence strongly and decidedly in favour of the principal changes recommended in the report. A bill, founded on that report, was introduced by the Government of my right hon. Friend in 1835, and a bill similar to that, and almost identical in its provisions, was subsequently introduced by the Government of Lord Melbourne, under the immediate auspices of Lord Cottenham, the late Lord Chancellor. That bill, so framed, was referred to a committee of the House of Lords, which went through all the enactments, and made a report in favour of the bill, almost with unanimity, and with certain modifications, not very material, one of which was the admission of an exception in favour of wills below a given amount. We have, therefore, the highest ecclesiastical authorities in favour of the measure, the highest judicial authorities in favour of it, the authority of two or three ex-Chancellors, and of the present Lord Chancellor of England, in 808 its favour. That is my answer to the question of my hon. Friend—from whom does this bill emanate? My hon. Friend is strongly opposed to the abolition of 380 provincial tribunals. There may be some ground for objecting to the abolition of the diocesan courts, but it has been reserved for my hon. Friend to contend for the advantage of the dispersion through England of 380 tribunals, adjudicating on wills, claiming to be the separate depositaries of wills, and rendering necessary the doctrine of bona notabilia, which has been the source of more expensive litigation than any other part of ecclesiastical law. I can understand the argument in favour of preserving the diocesan courts, as contrasted with the concentration of the judicial authority in London, proposed by the present bill; but, till I heard the hon. Member for the University of Oxford, I had not supposed that a single Member would contend for the maintenance of 380 distinct local tribunals throughout the country. My hon. Friend asked whether there had been inquiry? I say, that the inquiry into this matter has been more full, more ably and competently conducted than in the case of any other-subject of the same importance. The committee recommended, that one court, sitting in London, should be the only court for probate of wills, granting administration, and exercising jurisdiction in the various other cases and matters enumerated, and that the judge or judges should be appointed by the Crown. Sir H. Jenner Fust, Dr. Lushington, and the Chief Justice of the Common Pleas, were examined with respect to the comparative economy of probate taken out in the country, and probate taken out in London, and all declared it to be their opinion, that under proper regulations, which were pointed out by them, and are now embodied in the bill before the House, the cost of probate would not be greater in London than in the country. My hon. Friend charged me with something like inconsistency because I am an advocate for granting facilities for the recovery of small debts in the country, and the extension of county courts for that purpose, while I was defending a measure which would concentrate courts having jurisdiction in probate of wills and administration in London. There is nothing inconsistent in proposing to deal with sums of small amount by local jurisdiction, while large 809 sums are left to be dealt with by the central authority. What is proposed with respect to debts is in exact conformity with what is proposed respecting probate. The local tribunal must from the necessity of the case, be an inferior tribunal, and it is only safe to entrust to the inferior jurisdiction command over property of small amount. My proposition is, that wills disposing of a large amount of property shall be tried before a superior tribunal, where they will have all the advantages of the attention of a judge of high station, who, through life, has been familiar with such causes. The hon. Gentleman has referred to the great advantage of having the wills deposited in the places where the trials are held. It is quite clear that London is the centre of litigation with respect to testamentary property of large value, and there must be great advantage in having in the metropolis a central register of wills. But is there no provision with respect to wills in the country? The bill provides that for wills under 300l. there shall be in each diocese a register, in which the original will shall be deposited; and with respect to wills beyond the value of 300l., though the original is to be registered in London, that there should be deposited in the diocesan register a copy of the will. It is calculated that expences will be immensely diminished under the proposed system. The right hon. Gentleman, the Judge Advocate-general, pointed out to the House, on asking leave to bring in the bill, that a large prospective saving would be effected, when the compensations granted by the measures should have fallen in. I am quite satisfied that ample justice will be done to all parties concerned by the compensations granted for the sinecure offices to be abolished, and that, when those compensations shall have ceased, there will be a large surplus available for any extension or improvement of the principles of the measure which it may be thought desirable hereafter to accomplish. Fears have been expressed with respect to fire, but I apprehend that no greater danger exists on that head in London than in York or Liverpool. Twice has York Minster been ravaged by fire, and I will venture to assert that for the last fifty years there have been more serious fires in Liverpool than in London. But these are ail minor points. I confess I think the 810 time has arrived when it is desirable to take the sense of the House upon the principle of the measure. The principle of the measure is, the concentration, under a judge appointed by the Crown, of the supreme jurisdiction in matters testamentary and matrimonial. It may be possible that the opinion of the House is opposed to it, but I feel bound to ask for its decision, I understood my hon. Friend to say, it was desirable either that Government should withdraw this measure, or should adopt the suggestion of the right hon. Gentleman the Member for Devonport, to refer the bill, after the second reading, to a select committee. I cannot consent to withdraw it, after the attention which the Government has bestowed on the details, after having formed a sincere opinion that the measure would be attended with benefit to the public, notwithstanding the injury which may be done to private interests. It is equally impossible for me to accede to the proposition of the right hon. Gentleman the Member for Devonport. Great advantages might be anticipated from the right hon. Gentleman's assistance on a committee, but I think that the details of the measure have already been investigated by authorities of superior weight to those which could be collected by any committee that could be appointed. The ecclesiastical commissioners have recommended all the details of this measure, which are sanctioned also by the report of the Admiralty committee. I have also the authority of my right hon. and learned Friend the Judge Advocate, acting on behalf of the Government; also the authority of the right hon. Baronet now at the head of the Government, who, in 1835, brought forward a measure almost identical with the present. I also on the part of Lord Grey's Government, proposed a similar measure, and bestowed great pains on the report of that committee. Under the administration of Lord Melbourne, the then Attorney-general and Lord Cotton-ham undertook the same subject, and bestowed infinite labour upon it. I have then the opinion of three chancellors in favour of the measure, I have the opinion of the ecclesiastical commissioners in favour of it; I have the opinion of Attorney-generals on both sides of the House in favour of it; I have the report of a committee of the House of Lords in favour of it, I have the report of a committee of 811 the House of Commons in favour of it. Upon principle, then, I cannot yield to the opposition to this bill, and the details of it rest upon the most minute investigation bestowed by the highest authority. With all deference, therefore, I must say, that if the House should think proper to reject this bill, I cannot offer any measure likely to be more acceptable in details. It is a question of principle to be decided upon by the House, and if it should be their pleasure to reject it, I shall deplore the decision. I shall believe that those reasons which I have already alluded to have been triumphant; and with pain I must come to the conclusion, that private interests have prevailed over public consideration; and that a measure, which in my conscience I believe to be sound and beneficial, has been defeated by a combination, such as I am unwilling to characterise.
§ Mr. Jervis
repudiated the insinuation cast on the motives of the opponents of this measure by the right hon. Baronet, who, in his Opinion, would have done better had he refuted the arguments urged in opposition to it, and proved the advantages likely to follow from its enactment, instead of bringing forward the authority of committees over which he himself presided—[Sir J. Graham: no.] Of which, at least, the right hon. Baronet was a member. This was the first measure of the kind on which an opportunity had been afforded of full discussion. The principal objection to the measure was, that it transferred the whole of the contentious, and a great part of the lucrative non-contentious business from different parts of the country to London. When so much stress had been laid on the benefits which would accrue from the enactment of the measure, the House ought also to be made aware of the gross abuses to which it would be liable. The court would be incompetent to an effectual discharge of its duties, and would be utterly ineffective in securing uniformity. These objections had been pointed out in the real property-report, and in a petition from the London solicitors—men who could have no personal interest whatever in defeating such a measure—not being allowed to practise in the court, the business of which was restricted to thirty-four practitioners, as he believed, some of whom got 1,000 guineas premium with their articled clerks. There might be conflicting decisions; the 812 Court of Chancery might decide one way and the Ecclesiastical Court another. With regard to the sanity of testators such conflicting decisions were not uncommon in the courts of common law and the ecclesiastical courts. He remembered a case in which this was flagrantly apparent. The case was "Tatham and Wright," in which a special jury found a testator insane with respect to his disposition of his real estate, whose will with regard to his personal property had been incontrovertibly established by the ecclesiastical courts. Nor was this to be wondered at, when in the one case the conclusion was arrived at by means of oral testimony, where the jury formed their judgment from the evidence and personal demeanour of the witness, and in the other the evidence was entirely composed of written depositions. An issue might be directed by the judge of the ecclesiastical court; but only after the expensive process of examining witnesses on paper had been gone through, in order to ascertain whether a doubtful point existed, which it was necessary to send to a jury. Such was the system which this bill designed to perpetuate; for it could not be called a reformation of Doctors' Commons. Why should not the poor man have justice brought to his door in testamentary matters, as well as in matters of civil rights? Why not establish an universal consistent system? The essence was too much neglected in conducting law reforms. The right hon. Baronet had failed to 'show the benefits which would be derived from the passing of this measure. Did he complain that ecclesiastical law was improperly administered in the country? Why not, then, send contentious cases when caveats had been entered to the superior tribunal in London, without depriving Suitors of the advantage of their local tribunals when no difference existed as to the testamentary disposition? But this was not the motive; the object was centralization. He could not understand upon what grounds a distinction was drawn between property above and under 300l. Was there greater difficulty in deciding one class of cases than the other? Was it hot, on the contrary, notorious that, in consequence of the want of technicality in the drawing up of wills bequeathing property of small value, much greater difficulty arose in adjudicating upon them than in the Case of large property where the instrument had been pro- 813 party prepared by competent persons? It was, in short, establishing One law for the rich and another for the poor. But there were many other serious objections to the measure. In the first place the expense under the proposed system would be considerably augmented. His hon. Friend the Member lot the University of Oxford read an extractor the comparative charges in Chester and London. By this comparison it was proved the office fees for proving a will in London were from 15 to 20 per cent. more than in Chester, and it must of necessity be so. There was a practice in London, not prevailing elsewhere, of charging an extracting fee-that was, according to the amount of property sworn to, a fee in increased ratio to the length of the instrument. From a table he held in his hand it appeared that it many cases the charge in London was double the amount of that in Chester. It might be Said that if the fees charged were extravagant the judges had power, by the 34th clause, to alter and reduce them, but still the expense in London must necessarily be larger than in the country. The person in the country who had to prove a will in London must employ a proctor or attorney, who must send it to a London proctor, and thus two separate bills must be paid for proving the same will. This, it should be remembered, was not the case of solicitor and agent, for now, under an Act of Parliament respecting the division Of protts, a proctor would be struck off the roll if he were known to divide the profits; and consequently, in the case they Were considering, the expense must be doubled. The observation of his hon. friend on the effect of this was well worthy of the consideration of the House. The right hon. Baronet said these wills, in every case, were contested in Chancery. But in every case respecting disputed property, at present the assize town being the town where these registers were kept a man was sent to the register office, there to examine the will at the expense of a few shillings, while under the proposed system a person must come down front London to the assize town in charge of the will and of course, at much greater expense. Was that no objection, and did it Or not deserve attention when they were not professing to reform the whole system, but were merely abolishing local jurisdiction co increase the profits of the central system? He thought also 814 the Chancellor of the Exchequer was interested in this measure, for with respect to stamps it could not fail to have a serious effect upon the revenue. It was already notorious that in the country no man would prove a will, unless compelled to do so, as, for instance, when obliged to establish his right to some disputed debt, and they might therefore depend upon it, that since hereafter the interest of the proctor would go along with that of his client, enough would be proved to recover the debt and no more. It should be remembered that by the proposed system they would leave but an inferior class of proctors. The practice now was for a solicitor who took Stamps for a large amount to give credit for them until the will was proved, but this would not be the case with the London proctor, who, although he did so now, would not do so under a totally different system. It appeared to him this measure would involve them in great difficulty, and for no object but to establish the favourite project of central registration. If this were so why, he would ask, should wills, if above a certain amount be registered in London? Why should not titles to property follow also? If this were not the object, why should the large wills be kept in town and the small ones in the country? Should he be told that it was for the facility of search? But he would tell the House that there was now a very easy means of search through the medium of the Stamp-office. He would advise hon. Gentlemen opposite to be on their guard, lest this system of registering wills in London might be the commencement of a plan for the general registration of title deeds as well. The right hon. Gentleman sneered at the notion of suitors wishing to inspect wills for themselves; but, judging from experience, he knew that suitors much desired to do it personally, and were not satisfied without it It was, therefore, of deep interest to the parties that they should have the power of doing so, and particularly since there were no countervailing advantages, or, at least, none that had been pointed out. He did not object to the abolition of the peculiars jurisdiction, nor to the alteration in the bonâ notabilia, which he conceived to be good; but by this measure the criminal jurisdiction of the ecclesiastical courts, courts, with respect to defamation, schism, brawling, smiting, and other offences, which they never heard of without an 815 accompanying desire for its reformation, was left untouched. The bishop's courts, with all their obnoxious jurisdiction in respect to the offences of simony, heresy, schism, incest, adultery, and various offences enumerated in clause eighty seven, remained to be worked by the inferior class of proctors who would be left by the bill, or if that were not the case, the bill was drawn in such a clumsy way, that no man reading it could suppose it had any other intention. He wished also to call attention to the salaries proposed to be given under the new measure. The judge of the Arches Court now received a salary of 3,300l. without any retiring pension; but by this bill it was proposed to take from him all the prerogative jurisdiction, place in his hands the contentious jurisdiction, and to give him a salary of 4,500l., with a retiring pension of two-thirds of that amount. At present the judges possessed little patronage, but this bill would give them the appointment of registrars, clerks, surrogates, and other officers. He complained that the bill would increase the salaries of all the officers of the courts. The salary of the Queen's Advocate for instance, would be raised to 500l. a-year. Every one must admit that the learned Gentleman who held that office discharged his duties in a most efficient and satisfactory manner. He must say that he considered this feature of the measure most objectionable. This bill precluded country registrars from practising, but an exception was made with respect to London. A great advantage was thus given to the London registrars, for while they might practise as proctors, the registrars in the country would be compelled to give up their practice as proctors or solicitors, and there was no provision for affording them compensation. He considered that the bill did not contain any features to recommend it to the House. On all these grounds, believing the measure to be unsanctioned by competent authority, he should support the amendment of the hon. Baronet.
§ Colonel Sibthorp
would support his hon. Friend the Member for Oxford in endeavouring to remove at one fell blow a Bill of that obnoxious character. If her Majesty's Government had made this an open question, many of the Members of the Government would not have supported the right hon. Baronet, the Home Secretary, on that occasion. When a similar 816 bill was brought forward by Lord Camp-bell, the right hon. Gentleman below him exclaimed against the creation of patronage; and yet now, forsooth, they brought in a bill which gave to Doctors' Commons, who were rich enough and idle enough—increased fees, increased salaries, with an almost unheard of patronage. But he objected to the bill on other grounds; he objected to it on the ground that it took from large bodies their vested rights without a shadow of pretence in their conduct for so doing. It was no measure of reform: it was a measure of revolution. He would say, "Don't remove these Courts at all; but above all, don't remove them to that greedy Doctors' Commons." The bill seemed to him nothing better than a dirty Doctors' Commons job— and he called upon the House to join him in convincing the Government that the independence of the House would not suffer a measure of this obnoxious kind to be forced upon it.
§ Mr. Brotherton moved the adjournment of the debate.
§ Sir G. Grey
said, if it were the pleasure of the House to continue the debate— [Loud cries of "No, no," "Adjourn," "Go on."] He wished to offer one or two observations to the House—but he did not wish to prolong the debate then against the sense of the House.
§ Sir R. Peel
said, that, if the debate had been commenced at five, he should have pressed the question to a division that night; but as the debate was not begun until half past nine, he thought it only right to adjourn it.
§ The House divided on the question, that the debate be adjourned.—Ayes 136; Noes 51: Majority 85.
|List of the AYES.|
|A'Court, Capt.||Buller, C.|
|Aglionby, H. A.||Busfeild, W.|
|Aldam, W.||Cavendish, hon. C.C.|
|Allix, J. P.||Cavendish, hn. G. H.|
|Antrobus, E.||Cayley, E. S.|
|Arkwright, G.||Clerk, Sir G.|
|Baring, hon. W. B.||Clive, E. B.|
|Baring, H. B.||Collett, W. R.|
|Baskerville, T. B. M.||Colvile, C. R,|
|Bateson, R.||Corry, rt. hn. H.|
|Bentinck, Lord G.||Courtenay, Lord|
|Bodkin, W. H.||Craig, W. G.|
|Boldero, H. G.||Darby, G.|
|Bowring, Dr.||Dickinson, F. H.|
|Bramston, T. W.||Dodd, G.|
|Broadley, H.||Duncan, Visct.|
|Bruce, Lord E.||Duncombe, hon. A.|
|East, J. B.||M'Geachy, F. A.|
|Eastnor, Visct.||Mangles, R. D.|
|Ebrington, Visct.||March, Earl of|
|Egerton, W. T.||Marshall, W.|
|Egerton, Sir P.||Martin, C. W.|
|Eliot, Lord||Marton, G.|
|Elpbinstone, H.||Maxwell, hon. J. P.|
|Esmonde, Sir T.||Meynell, Capt.|
|Feilden, J.||Mitcalfe, H.|
|Flower, Sir J.||Mitchell, T. A.|
|Fremantle, Sir T.||Mundy, E. M.|
|Fuller, A. E.||Napier, Sir C.|
|Gaskell, J. Milnes||Newport, Visct.|
|Gibson, T. M.||Nicholl, rt. hon. J.|
|Gladstone, Capt.||Ogle, S. C. H.|
|Gordon, hon. Capt.||Palmer, R.|
|Goulburn, rt. hon. H.||Palmerton, Visct.|
|Graham, rt. hn. Sir J.||Parker, J.|
|Greene, T.||Patten, J. W.|
|Grey, rt. hn. Sir G.||Peel, rt. hon. Sir R.|
|Grimston, Visct.||Peel, J.|
|Grogan, E.||Plumridge, Capt.|
|Grosvenor, Lord R.||Pollock, Sir F.|
|Hall, Sir B.||Pringle. A.|
|Hamilton, W. J.||Pulsford, R.|
|Hardinge, rt. hn.SirH.||Ross, D. R.|
|Hatton, Capt. V.||Round, J.|
|Heathcote, Sir W.||Sandon, Visct.|
|Henley, J. W.||Scarlett, hon. R. C,|
|Hepburn, Sir T. B.||Stanley, Lord|
|Herbert, hon. S.||Stuart, H.|
|Hervey, Lord A.||Stock, Mr. Serj.|
|Hill, Lord M.||Strutt, E.|
|Hinde, J. H.||Sutton, hon. H. M.|
|Hindley, C.||Tennent, J. E.|
|Hodgson, F.||Thornely, T.|
|Hodgson, R.||Trench, Sir F. W.|
|Howard, hn. C. W. G.||Trotter, J.|
|Howard, hon. E.G. G.||Tufnell, H.|
|Jermyn, Earl||Vernon, G. H.|
|Jervis, J.||Vivian, J. H.|
|Jocelyn, Visct.||Wellesley, Lord C.|
|Kemble H.||White, S.|
|Knatchbull, rt. hn. SirE||Wood, Col. T.|
|Lambton, H.||Wood, G. W.|
|Lascelles, hon. W. S.||Worsley, Lord|
|Lawson, A.||Wortley, hon. J. S.|
|Layard, Capt.||Yorke, H. R.|
|Leicester, Earl of||Young, J.|
|Lennox, Lord A.|
|Lincoln, Earl of||TELLERS.|
|Lockhart, W.||Barron, Sir H. W.|
|Lygon, hon. Gen.||Brotherton, J.|
|List of the NOES.|
|Ackland, T. D.||Collett, J.|
|Acton, Col.||Davies, D. A. S.|
|Astell, W.||Dawnay, hon. W. H.|
|Berkeley, hon. C.||Disraeli, B.|
|Blackstone, W. S.||Duff, J.|
|Bradshaw, J.||Duncan, G.|
|Brocklehurst, J.||Duncombe, hon. 0.|
|Bulkeley, Sir R.B.W.||Escott, B.|
|Burroughes, H. N.||Fellowes, E.|
|Clive, Visct.||Fox, S. L.|
|Colborne, hn. W.N.R.||Gisborne, T.|
|Gore, M.||Newdigate, C. N.|
|Gore, W. R. O.||Packe, C. W.|
|Gore, hon. R.||Paget, Lord A.|
|Gregory, W. H.||Polhill, F.|
|Hamilton, Lord C.||Richards, R.|
|Heathcoat, J.||Rous, hon. Capt.|
|Hollond, R.||Sibthorp, Col.|
|Hope, A.||Smythe, hon. G.|
|Howard, Lord||Spry, Sir S. T.|
|Ingestre, Visct.||Taylor, T. E.|
|Inglis, Sir R. H.||Tollemache, hon. J.|
|Jolliffe, Sir W. G. H.||Turnor, C.|
|Knight, H. G.||Wodehouse, E.|
|Lowther, J. H.||TELLERS.|
|Marsham, Visct.||Cochrane, A.|
|Morris, D.||Manners, Lord J.|
§ Debate adjourned.
§ The House adjourned at a quarter to one o'clock.