HC Deb 09 February 1843 vol 66 cc312-35
Dr. Nicholl

rose, pursuant to the announcement in her Majesty's Speech, that measures for the improvement of the administration of the law would be submitted to Parliament, and in discharge of a duty cast upon him by the Government, to move for leave to bring in a bill to carry into effect certain recommendations of the Ecclesiastical Commissioners relating to the administration of justice in the ecclesiastical courts in England and Wales. The jurisdiction in those courts was of a mixed spiritual and temporal character. The spiritual inherent in the Episcopal, hardly came within the scope of Parliamentary legislation—the temporal derived from the law and custom of the land. The latter related chiefly, though by no means exclusively, to matrimonial contracts and testamentary cases. He conceived that the jurisdiction in matrimonial contracts was given to the ecclesiastical courts, partly in consequence of the fact that marriage at that period was regarded as a sacrament, and partly because the marriage law was chiefly founded on the canon law, a foreign law, adopted in part as the law of England, but little known to English lawyers or courts—only to be found in manuscript, or handed down by oral tradition. In the present day, however, marriage was, by the law of England, no longer regarded as a sacrament. Its validity or invalidity rested not on the canon manuscript law, but the statute law of the land, and on decided cases—it was dry question of law—the decisions must be according to that law—there was no discretion in the judge, nor had the courts had jurisdiction to release parties a vinculo matrimonii. All they had now to do in that respect was to inquire whether the marriage contract had been entered into according to the forms prescribed by the law of the land, or whether either party had been released by the misconduct of the other from the duty of cohabitation and maintenance. But suits of this nature involved questions affecting the most important interests of not only the immediate parties to them, but also their descendants, not merely rights of property, but of personal status and legitimacy. Suits were frequently carried on with great acrimony on both sides, and gave rise to questions of great nicety and delicacy in which the passions and feelings of the parties were much excited—where large masses of conflicting evidence were introduced, requiring on the part of the judge great knowledge of the law and principles of evidence—great power of sifting and weighing testimony, and the correct adjudication of which required an accurate knowledge of human nature, and of the springs of human action. Any one who recollected the celebrated judgments by Lord Stowell, in the cases of "Dalrymple v. Dalrymple" and "Evans v. Evans" must feel convinced that the judges of the courts in which they were decided required abilities and qualifications of the highest order. The next matters which had hitherto been confided to the jurisdiction of ecclesiastical courts, were testamentary cases. These came under such jurisdiction at a period when the bishops claimed the right to apply the property of intestate persons to pious uses, without even paying their debts. In the course of time, this claim had been considerably limited, the bishops were first obliged to pay the debts of the intestate out of his property before any of it could be applied to pious uses. Subsequent restrictions had, however, required that the property of the intestate should be distributed according to his will, and lastly, that it should be distributed to his widow and children, or next of kin; and, failing these, should go to the Crown. At the present day, then the basis and reason on which testamentary matters were referred to the jurisdiction of the ecclesiastical courts had ceased to exist. Another reason why they should not be allowed to remain under the present jurisdiction was the large amount of property for which probate was now taken, compared with what it had been formerly. In the years 1826, 1827, and 1828, or 1827, 1828, 1829, he did not recollect which, the average annual amount for which probate had been taken out in the prerogative Court of Canterbury alone, was not less than 43,000,000l. Suitors in courts in which questions affecting property to such large amounts were raised, ought to have the advantages of able judges instructed by able counsel, and practitioners constantly engaged in such matters attending courts, where questions relating to them were publicly discussed and decided, and in which there was sufficient business to keep up their knowledge of law. The want of such a tribunal occasioned discontent and dissatisfaction—miscarriage of justice—multiplication of appeals were carried on to a final hearing, which a properly appointed court would have decided on points preliminary to the merits of the case. At present, there were not less in England and Wales than 400 courts having jurisdiction to grant pro bates and administrations. They consisted of Archiepiscopal courts, bishops' courts, diaconal courts, archidiaconal courts, sub-diaconal courts, county courts, manorial and other courts. In many instances there were so many as three successive appeals, not merely upon the final sentence and on points deciding the real question at issue, but on every successive intermediate judicial act; an appeal from the Archdeacon to the Chancellor, from the Chancellor to the Arches, from the Arches to the judicial Committee, and previously to the appointment of that committee, there might have been an application to the Chancellor for a commission of review. There was a case in which the cause had originally commenced in the Archdeacon's Court at Totness, and thence there had been an appeal to the Court at Exeter, thence to the Arches, and thence to the Delegates; and all these proceedings had taken place while the question at issue was simply, which of two persons had the right of hanging his hat on a particular peg in the Church. These courts not only had to decide on the validity, but on the construction of wills. The question whether an individual was executor according to the tenor or not, was one which they must decide, as the foundation of the original grant; and if they decided it wrongly the handle of the property was given to parties who had no right to it, and who would not have to render the security required in the case of an administrator. Again, the next of kin being entitled to administration in the event of there being no executor, or no one willing to take it, or no general residuary legatee (who was entitled to exclude the next of kin)—a question might arise upon the residuary clause, whether it were general or limited, the decision upon that point involved not only the right of the person to administer the estate, but it generally went out to the world that whoever got the grant had obtained the position of residuary legatee. So, again, as to the questions upon the execution of wills under the new act—questions which were most difficult and delicate, and which arose daily in great numbers. In the Prerogative Court, when the doubt arose as to whether a will had been duly executed, the registrar took the objection, counsel were consulted—the matter was brought before the Court, and it was duly and publicly decided; whereas, in the country, these questions were disposed of by registrars in their chambers, with no means of advice or assistance. If probate were unduly granted or unduly refused, the property went in the wrong direction, and the error must be corrected by an expensive litigation. Surely there was ample proof of the necessity of some adequate tribunal to decide such questions. It was of the utmost importance that uniformity and accuracy of determination should prevail; but, unfortunately, sometimes where the superior judge, after careful consideration had pronounced a solemn adjudication, inferior judges refused to be guided by it. Difficulties arose too, from the multiplicity of their courts, as to searches for wills. It was almost impossible to know where a will should be looked for, unless a very recent one; yet it constantly happened that it was absolutely necessary in legal proceedings to know not only whether a will had been proved, but where, and how, and whether by competent authority. The custody of these documents was also most insecure and unsatisfactory. In too many places copies were not registered, and the originals were exposed to injury from damp, danger from fire, and ravages of rat6. Besides, persons who went to inquire about wills, if there were not copies, must be shown the originals, which had thus no protection from injury, interpolation, or abstraction; casualties which, in some cases, they had actually undergone. Another point was the insecurity of the grant of probate when made. If a person died possessed of personalty to the value of 5l. in any other jurisdiction than that in which he died, prerogative probate was required, which, if granted improperly, was only void and all mesne acts were good; but if a country court granted pro bate improperly, it was absolutely void, and all payments to executors or administrators were liable to be demanded over again. And this question did not arise on points easily discernible at the time, for whereas simple contract debts founded the jurisdiction where the debtor was at the time of death living, specialties were confined to the jurisdictions in which they were deposited at that moment; often questions very embarrassing arose here: of policies of insurance, for instance, some were simple contracts only, while others were under seal. The consequence of these difficulties was that, for instance, the Bank refused to transfer on any probate except prerogative; and the Court of Chancery acted on the same principle. Again, if the property were in two provinces, double probate was required; entailing, of course, double expense, delay, and trouble. The offices in these courts were also in a very unsatisfactory state. He spoke of the period when the commission made its report, as the courts had then been represented in their natural condition, unprepared for observation and inquiry. The sinecure registrarships alone cost the country 28,000l. a-year: the deputy registrarship, in addition, was 15,000l. a-year: the judgeships, exclusive of the provincial courts, were almost entirely sinecures, and cost 9,500l. per annum. He would not inquire who held these offices, or into the nature of the cases decided by those gentlemen. The great mass of the important testamentary and matrimonial causes were decided in the London courts, while the causes as to brawling, defamation, and similar proceedings, open to risk of persecution, were decided in the country. Of causes on defamation, there were, during the three years 1827–8–9, in London only three, in the country 328; for brawling, in London five, seventeen in the country; and of persons imprisoned in consequence of proceedings in the ecclesiastical courts, in London there were two, in the country sixty-seven. This showed that in Lon- don, where gentlemen of character and education practised as advocates, and judges exercised a proper degree of control, these species of cases were generally nipped in the bud, while in the country they came to perfection. It was the object of the measure he had the honour of proposing, to remedy the great mass of these serious evils, and he hoped it would do so effectually. His plan was to divide the ecclesiastical jurisdiction into that which was mixed or temporal, and that which was purely spiritual in its nature. The whole of the temporal jurisdiction he proposed to transfer to London, to a court of which the judge was to be appointed by her Majesty, with an appeal to the Queen in council. The spiritual part of the jurisdiction, such as correction of clerks and church discipline properly so called he would leave to the bishops, to be exercised in the provincial and diocesan courts, with an appeal to the archbishop, and thence to the Queen in council: "in all cases and over all persons ecclesiastical and civil within these dominions supreme." He proposed to abolish all peculiars, and to render them subject to the ordinary jurisdiction of the archbishop of the province, the bishop of the diocese, and the archdeacon of the archdeaconry within which they are respectively situated; this provision to extend not only to other peculiars, but also to those of the archbishops and bishops which had been exempted from the Clergy Residence Bill, the Pluralities Bill, and other measures. The bishop's court was to have jurisdiction in and throughout the diocese, and to be the court of all the archdeacons of the diocese. The first of these provisions was strictly in conformity with the Act of Parliament introduced by the noble Lord the Member for the City of London, for carrying into effect the first report of the ecclesiastical commissioners, and the operation of that act had only been suspended from 1836' to the present time as to the jurisdiction of ecclesiastical courts, in anticipation that some sweeping measure of reform would be introduced in the ecclesiastical courts. To the vicar-general of each province an appeal would lie from the diocesan courts. The only courts to be retained would be the court of the Master of the Faculties—the court of the Vicar-general of each province, and a court for each diocese, including separate courts for the dioceses of Bangor and Saint Asaph, and separate courts for Bristol and Glou- cester. He believed the whole number of the courts would be under thirty, instead of about four hundred, as at pre sent, the judges and all the officers of which were to execute their duties in person and not by deputy, and to be paid by salaries, while the fees were to be brought to a general fee fund, and he thought he might assure the House that there would be a large eventual saving from this measure. With the exception of this spiritual jurisdiction and of the jurisdiction in tithes and defamation, which would be entirely abolished, and in certain cases, which the bishop might, unless either party dissented, refer to his chancellor or a barrister, whose decision would be final and without appeal, all other matters of contentious jurisdiction were to be transferred to the London courts, from which, or under the authority of which, all wills and probates were to issue. The processes of the court were to extend throughout the whole of England and Wales, thus getting rid of all the difficulties which arose under the present system. As in cases where the property was of small amount, it was supposed that parties might prefer resort to the diocesan court to prove or to see the wills in which they were interested, he proposed that in properties of limited amount, sworn under the value of 300l. where so ever the effects were situated, parties should have the option of resorting to the London or to the diocesan court. In such cases, the diocesan court would have power, as a branch registry of the London court, and under a branch seal of the London court, and in the name of her Majesty, to issue probates and administration, and do all the necessary business with respect to them. Machinery, into the detail of which he would not go, was proposed to be introduced, to secure, as far as possible, adequate control and uniformity in the practice of these courts. Country proctors, under certain regulations, were to be admitted as proctors of the London court, and to have the right to practise in all matters to the same extent as the proctors of the London court. Being admitted proctors of that court, they might either continue, if they pleased, to practise in the country, or, if they thought fit to do so, come up to London. As to the smaller properties under 300l., he proposed that the proctors who remained in the country, and who would not be qualified to be admitted to the London court, should have exclusive jurisdiction of proving them in the branch registries. He should have stated that it was proposed that copies of all wills proved in London under 300l. should be transmitted to the country, and copies of all wills under 300l. proved in the country, should be transmitted to London; and that original wills under 300l. should be retained and registered in the country, provision being made to secure good and careful custody in every case. As to wills above 300l. proved in London, an abstract of the principal features was to be sent down to the country for the information of all parties who might be interested in them. AH grants already made, which, from want of jurisdiction in the court from which they issued, were made valid, unless already in litigation or abandoned. The jurisdiction in defamation, in tithes, and in smiters in churchyards, was abolished, and the statute of Edward 6th was repealed. The law, with respect to inventories and accounts—administration bonds and sequestrations was amended, simplified, and rendered more effective. As to the process of the superior courts, the House was aware, that formerly ecclesiastical process issued by the writ de excommunicatio capiendo. In 1812, the writ was changed to one of de contumace capiendo, a mere mutation of term without any change in the effect. One object of the present bill was to remove all that cumbrous and circuitous machinery, and to give the Queen's Court the same power of attachment and committal possessed by the High Court of Admiralty, and upon the same footing, and in addition, as the Admiralty possessed a power of selling the ship, the Ecclesiastical Court in London, it was proposed, would be clothed with the power of issuing a certificate to the Court of Chancery, and then a writ of sequestrari facias would issue from that court, as was already provided for in certain cases, and that writ would extend equally to persons having privilege of Parliament as to those who had not. There would also be a power of granting issues, of examining witnesses viva voce, of discharging persons imprisoned for contempt, as in the Court of Chancery. Another provision was also introduced, to guard against an abuse that might arise, which he hoped, would be approved of. Towards the end of last century a similar case had occurred, in which the abuse he alluded to was first attempted, and put a stop to by the high hand of the executive. The then judge of the High Court of Admiralty attempted to make his surrogate discharge all judicial affairs in his stead. It was proposed by this bill that the surrogate should not be competent to pronounce any judicial decisions, or to determine any really contentious matters, while to guard against inconvenience the judge of the admiralty was to be assistant to the judge of the London court. These were the general outlines of the measure. [Lord John Russell: What as to church-rates?] Upon that subject he did not propose to legislate in this bill, which however, would remove all questions upon it to the London court. He had now to state that this measure had been framed upon the report of the Ecclesiastical Commission, upon which had sat William, Archbishop of Canterbury; Charles James, Bishop of London; William, Bishop of Durham—the late Dr. Van Mildert, whom to name was to secure the highest respect on both sides of the House; Christopher, then Bishop of Exeter, now Bishop of Bangor, the Bishops of Lincoln, and St. Asaph; the late Lord Tenterden and Lord Wynford; the Lord Chief Justice Tindal and the late Chief Baron Alexander; Sir Christopher Robinson, Sir Herbert Jenner, Sir J. Nicholl, Dr. Lushington, Sir Edmund Carrington, and the late Mr. Cutlar Fergusson. These commissioners appointed under the Administration of the Duke of Wellington, in February 1832, made the report on which this measure had been based. They recommended the abolition of the Division Courts. At the meeting held on the 19th of September, 1831, at which that determination was arrived at, there were present the Archbishop of Canterbury, the Bishop of London, Lord Tenterden, Lord Chief Justice Tindal, Sir W. Alexander, Sir C. Robinson, and Sir Herbert Jenner. At that meeting the following resolution was adopted:— That it is expedient that the Diocesan Courts should not retain any power of granting probate or administration, but that the whole of their present jurisdiction, voluntary as well as contentious, should be transferred to the provincial courts respectively. This resolution, or at least a resolution to the same purport, had been previously printed and circulated, and, after careful search, he could not find that any dissent had been expressed with regard to it. At a meeting held on the 2nd of February, 1832, present the Archbishop of Canterbury, the Bishop of London, the Bishop of Lincoln, the Bishop of St. Asaph, Sir J. Nichol, and Dr. Lushington, the question as to the expediency of maintaining the jurisdiction of the provincial court at York having been re-opened, it was resolved— That after the fullest and most mature deliberation, the board have come to the conclusion that it is highly desirable to transfer the jurisdiction of the provincial court at York, as well as those of the diocesan courts, to the metropolitan courts of Canterbury, and that his Grace, the Archbishop of York, be conferred with on the subject. The Archbishop of York, however, offered some objection, and the more qualified passage which now appears in the report was adopted at a meeting at which the Archbishop of Canterbury, the Bishop of London, the Bishop of St. Asaph, Lord Wynford, Lord Tenterden, Lord Chief Justice Tindal, Sir J. Nicholl, Sir C. Robinson, and Dr. Lushington were present. It was evident from these minutes that it was the opinion of the board that the jurisdiction of the provincial court of York, both contentious and in the grant of probates and administration, should be transferred to the metropolitan courts of Canterbury; but in deference to the wishes of the Archbishop of York no specific recommendation was offered. In 1833 a Parliamentary committee was appointed to inquire into the duties of the High Court of Admiralty, and that committee, to which this report with reference to the ecclesiastical courts and the fourth report of the real property commissioners were referred, reported in favour of establishing one court in London and the appointment of the judge being vested in the Crown. In 1836 Lord Cottenham, who was then Lord Chancellor, introduced a bill into the House of Lords, by which it was proposed to place the whole jurisdiction of the London court, including the jurisdiction as to probates and administration, in the hands of a judge to be appointed by the Crown. Petitions were presented against that bill by the diocesan registers, which were referred to a Select Committee of the House of Lords, and they reported their opinion that the question ought to be confined to the consideration of how far it might be expedient to preserve the diocesan courts. The committee after referring to the reasons urged by the petitioners for retaining the diocesan courts, thus proceeded:— The committee find that the question to which the petitions relate has frequently been the subject of the most serious inquiry and consideration. In the month of February, 1832, the commissioners appointed to inquire into the practice and jurisdiction of the Ecclesiastical Courts of England and Wales made a report, in which, after enumerating the evils arising from the inferior ecclesiastical jurisdictions, they stated, that, to remedy those evils as well as to remove other inconveniences, they were unable, after a most careful consideration of the whole subject, to devise any measure so effectual and likely to be productive of so much convenience and advantage to the public as that of transferring the whole testamentary jurisdiction and the exclusive right of granting probates and administrations to the archiepiscopal courts of the respective provinces. At the close of their Report they, that is, the Ecclesiastical Courts Commissioners— Stated it to have been drawn up on the supposition that the provincial court of York was to be retained, but that a doubt had presented itself to their minds whether the arrangement which they had proposed for the improved administration of the ecclesiastical law would be rendered more complete and effective if the contentious and testamentary jurisdiction exercised by other courts of the province of York were transferred to the metropolitan courts of Canterbury; but they did not offer a specific recommendation on that head. The Lord's Report went on to state,— That in April, 1833, the commissioners appointed to inquire into the law respecting real property, made their fourth report, in which they stated their belief that greater general convenience would be obtained by the abolition of all district jurisdictions whatsoever. On the 15th of August, 1833, a select committee of the House of Commons recommended that all the courts in England and Wales, exercising ecclesiastical jurisdiction, or the power of granting probates and administrations, be abolished, except the Arches Court and the Prerogative Court of Canterbury, and that these two courts should be united; and they also recommended, that one court sitting in London should be the only court for the probate of wills and the granting of administrations. The Lords' Committee expressed their opinion in these terms:— The committee entirely concur in the opinion, that it will be expedient that all the courts in England and Wales exercising ecclesiastical jurisdiction in granting probates and administrations should be abolished, and that one court sitting in London should be the only court for the probate of wills and the granting of administrations. The bill was, he believed, amended in conformity with the report which recommended that the diocesan registrars should be empowered to receive wills for probate and applications for letters of administration when the property was under 300l. The bill was not proceeded with during that Session in consequence of the bill for regulating church discipline being deemed unsatisfactory, and it was considered that the measure for the regulation of church discipline ought to be disposed of before the House proceeded with the bill for the regulation of the ecclesiastical courts. A bill for regulating ecclesiastical discipline was introduced in 1837, 1838, and 1839, and ultimately passed both Houses in 1840. It was quite clear, therefore, that it had been the intention of the Government to introduce some measure for the reform of the ecclesiastical courts, and moreover in each successive year from 1836 to the present time, including the last year, a bill had been agreed to, which provided that all appointments and situations in the ecclesiastical courts except in the Prerogative Court of Canterbury, conferred since the passing of the act of 1836 should be merely pro tempore appointments; at least, that persons appointed to such situations should not ac quire any right to compensation for the loss of their offices if Parliament should see fit to abolish them. He believed the bill which he now submitted to the House would be found a great practical measure of legal reform. He considered that the provisions which had been introduced for affording compensation to parties whose interests might be affected by the measure, were sanctioned not only by justice but by expediency; for if, on the adoption of a measure of this nature, fair and adequate compensation was not awarded to those whose interests it might affect, an impediment was raised to the progress of Reform by the opposition which was excited among interested parties. He believed the operation of the bill would prove salutary and beneficial. All probates of wills would be according to one uniform rule; there would be one general registry for all wills, except those with respect to small amounts; great facilities for search and reference would be afforded both in London and in the country; and full opportunities would be afforded to parties of acquiring information as to their rights under wills; all suits of a vexatious nature would, in fact, be swept away; litigated cases of importance would be subjected to investigation before a duly qualified judge; and the episcopal spiritual jurisdiction would be preserved totally and entirely intact. He trusted the House would excuse him if, before he resumed his seat, he adverted to a subject personally concerning himself, the Archbishop of Canterbury, and even before the meeting of the ecclesiastical commission in 1829, with laudable public spirit and liberality, expressed his hope that no regard for the patronage in his gift would prevent the introduction of any measure which might be deemed expedient. He might inform the House that one office which would be abolished by this measure—the sinecure registrarship of the Prerogative Court of Canterbury—was worth 9,000l. a-year. No qualification was requisite in the person on whom the office was bestowed—it might, consequently, be given to any friend or relative—and this valuable patronage the Archbishop of Canterbury willingly and spontaneously renounced. The Archbishop felt, however, that it was essential—both as regarded himself and his successors—that an adequate salary should be provided for the vicar-general of the province of Canterbury, who would be called upon by the provisions of this bill to perform most important and responsible duties. Every one acquainted with the subject must be aware that it would be necessary that the individual who should henceforth fill that office should be selected from men of eminence at the bar. It happened that at the present time he (Dr. Nicholl) was the Archbishop's vicar-general, and he was therefore placed in a somewhat delicate position when he found it his duty to recommend an increase of the salary attached to that office. He trusted, that under any circumstances he should have not shrunk from his duty of recommending that increase; but he felt, that his recommendation when that of a disinterested witness was entitled to more weight. He, therefore, when he made the recommendation, announced to the archbishop and others his determination so long as he held the office, not to accept a larger salary for the future than the average of what he had annually received during the last three years. He felt, that if from any disinclination to resort to other counsels late in life, the archbishop wished to retain his services, those services ought not to be withheld. On the other hand, that the new and important duties which would devolve in the office, and which were not contemplated when he (Dr. Nicholl) was appointed. might render the archbishop desirous of placing the office in more competent hands. He therefore placed the office at the disposal of the Archbishop, at the same time stating, that if it was his Grace's wish that he should continue to discharge the duties he would willingly do so. The hon. Member concluded by moving for leave to bring in a bill to alter and amend the laws relating to the administration of justice in the Ecclesiastical courts in England and Wales.

Mr. Jervis

did not rise for the purpose of offering any opposition to the motion, at this stage, but as be had been instrumental, in conjunction with Mr. Sergeant Goulburn and the hon. Member for Yorkshire, in bringing forward a measure on this subject, he wished to point out some of the objections he entertained to the bill now introduced by the right hon. Gentleman opposite. He thanked the right hon. Gentleman for the very clear and lucid statement he had made, and for his explanation of the reasons which had influenced the Government in submitting this measure to Parliament. He cordially agreed with much that had fallen from the right hon. Gentleman. He considered it extremely desirable to abolish all the criminal jurisdiction of ecclesiastical courts, which he understood to be one of the main objects contemplated by this bill. He also thought it important to abolish many of the peculiar jurisdictions, for they led to great inconvenience and confusion, not only with regard to the actual deposit of wills, but from want of uniformity in the administration of the law. To this extent, alone, could he agree with the right hon. Gentleman, for he objected to the principle on which the bill was founded. If the principle of centralization was to be adopted, he considered that the measure of the late Government, which was proposed by the late Lord Chancellor, was infinitely preferable to that which was at present under their consideration. He thought, there was no reasonable ground for the distinction which was proposed with regard to the amount of property. Property under the sum of 300l. in value must, almost necessarily, belong to parties who did not occupy high stations in society; and the wills in those cases, would, in all probability, be drawn in no technical form—either by the parties themselves, or by a schoolmaster, or person of that stamp; and in such cases the registrars would frequently have infinitely more difficulty than with respect to property of larger amount, where the documents were formally and strictly drawn. It seemed to him, that there was no just ground for the proposed alteration. He thought there was no necessity for such a sweeping change as was proposed. He might be permitted to remind the House of the general scope of the bill which he had laid upon the Table of the House. Its object was to abolish all peculiar jurisdictions, to have new ecclesiastical districts, to abolish altogether the necessity for Prerogative probates, where the testator had bona notabilia, which was the main objection to the present system, and to require that, wherever the party died, there the will should be proved, so that parties who might be interested, knowing the place of the testator's death, might have ready access to the original will. In his opinion, local registries, open to all parties in the district, were infinitely superior to a central registration. The object of the bill to which he had alluded, was the abolition of peculiars, and the appointment of a court competent to decide all controverted cases. There was considerable foundation for the argument that a clergyman, who did not possess legal knowledge, was not the person best fitted to decide such cases, especially if he had not the assistance of an individual of legal education and experience. He remembered that the right hon. Baronet the Secretary of State for the Home Department, had urged as a reason why centralization to a certain extent should exist, that that system had a tendency to bring such an amount of business to the superior courts as to hold out inducements to gentlemen of talent and learning to follow the profession. If the House deemed that the present courts were unfit to exercise their jurisdiction—if it was thought, that where a caceat was entered, and where there was likely to be any contention, the case should be remitted to the superior court, he would have no objection to such a course, provided that the will, when proved, were remitted to the local registry for safe custody. The system proposed would, he thought, in many cases tend to throw the fees into the hands of the officers of the central courts. The local officers would by the measure be deprived of the whole of the lucrative and purely formal business of their courts without any just reason; and the purely administrative business of the local jurisdictions was to be thus transferred without any sufficient ground for it. Surely it was better for the persons in those jurisdictions to be able to consult proctors in their own neighbourhood in whom they had confidence, in order to be put into the way of compassing their rights. The effect of the proposed measure upon the profession would be, either to ruin all the proctors in the local jurisdictions, or to compel them to come up to town, and commence a doubtful rivalry with those who were already established here. No compensation or means of compensation was provided for the officer so removed. In another point of view also the measure would be prejudicial. It appeared that those proctors only were to be eligible to admission in the superior courts who had passed a legal examination, and were otherwise qualified. The effect of such a proposition would of course be, that those who had not been legally educated, and who were therefore to be presumed to be a less competent class of practitioners, would be left in the country, and would have to deal with those cases where the property was under 300l., and on account of which the most difficult questions often arose. Those, too, would be the persons who would have on occasions to act as the spiritual advisers of the bishop, and would have to decide upon such momentous questions as that, for instance, which had been referred to by his right hon. Friend—the right to hang a hat up in a pew. Every motive which could lead to the keeping up of the requisite degree of knowledge on the part of those who would have to decide on the majority of the cases in those local jurisdictions was done away with by this measure. But there was an inconsistency involved in the very principle of the measure. Last Session the Home Secretary brought in a bill of a nature materially affecting local jurisdictions, and he laid it down as a principle that the law ought always to be administered at each man's own door—that above all there should be no unnecessary distance between the principal in a case and the attorney who was to conduct his cause. Yet the very same Government were now proposing, through the right hon. Gentleman, a measure relating to subjects of a nature not dissimilar in regard to the demands of justice, involving questions of no greater difficulty or importance to the parties; but where, on the other hand, the parties in the cause were desirous of being present, and of themselves inspecting the original documents on which their claims were founded; in which measure it was proposed to take away justice from the doors of those inte- rested, and remove the jurisdiction from the local courts to the metropolis. Not only was the judicial jurisdiction of the courts taken away, but the administrative also. Were the administrative left, the hardship would not be so great upon the parties concerned. And all this inconvenience was to be caused merely in order to accomplish a central registration. All the prerogative districts still existed—Canterbury, York, Chester—all their privileges existed for spiritual purposes; and so that if a man's property were under 300l., they would still exist for the purposes of those jurisdictions which were now to be transferred to London, and in those cases which would still come before the courts in the different districts; a man dying in one might still have 5l. worth of property in the diocese of York, and 5l.worth in that of Chester, and so on. And even where the property exceeded the 300l. still the same difficulty might exist. The only real object they ought to seek to attain was, that where a man died there his will should be proved. The right hon. Gentleman continued the local jurisdiction where the property was uuder 300l.; but the same arguments that justified that step in the case of the poor man, justified it also in the case of the rich man. Where the will was made, there it ought to be proved, and there also it ought to be found when wanted. The right hon. Gentleman said, it was very difficult to preserve wills in those local districts. Was he prepared to name any authorized case of a will having been lost or destroyed within any recent period? [Dr. Nicholl: In the beginning of the last century.] He had heard of valuable documents having been destroyed at a more recent period in the Tower of London. No registry, however central, could prevent such a catastrophe as that. If you had all the original wills collected together in London, then you increased the loss should any accident occur; while, on the other hand, the danger was much lessened where the wills were scattered in different places throughout the country. But when the right hon. Gentleman spoke of the injury to be done by rats, surely that kind of injury was not likely to be decreased by the patronage this bill would give the Government; but of course the right hon. Gentleman could not mean seriously to rest his argument for the bill upon the danger to be apprehended from the rats. If there must be a system of centralization in this respect as well as in so many others, why not let copies of the original wills be transmitted to London. Copies were now transmitted to the Stamp-office for the purposes of the Government, and the very 6ame officers in whom the Government placed the trust of receiving those copies might be employed to receive the copies that would be required under such an arrangement. With all submission to his right hon. Friend, he must say that he did not think he had laid any just ground why the jurisdiction of these courts should be excepted from the operation of the general rule, that justice ought to be brought home to every man's door. The very fact of the alteration that had been made in the proposed measure, as contrasted with that of the Lord Chancellor, showed that the Government thought there ought to be a departure from the principle of centralization as regards the poor. He thought the same reason ought to prevail as regarded the whole question. If the transmission of copies would prevent all the evils that were urged as reasons for this measure, then he was sure that the country would be better satisfied that the wills should be kept in the spot where the parties were, so that all men, under due superintendance, might be able to inspect the originals, and so judge by the documents themselves, rather than on the information of parties at a distance, whom they would not know except by name—with whom they would have no personal statements—and whose statements could not possibly carry so much weight as would an inspection of the original will itself, under the guidance, and with the aid, of a professional adviser on the spot. The practice which it was now sought to supersede had been in use without any ill results from the earliest establishment of these courts to the present time. It was not his intention to offer any other opposition to the measure on this occasion, but he had felt bound to express his objection to the principle of centralization, as applied to these courts, between which and the other local courts, in which that principle was repudiated, he could see no substantial difference.

Dr. Stock

said, after hearing the speech of his hon. and learned Friend the Member for Chester, and that of his right hon. Friend the Judge Advocate, he had now, comparatively speaking, the two plans before him on which to form a judgment. The result of his consideration of them was, that he had not the slightest hesitation in saying, that of the Judge Advocate was entitled to the preference. His plan was an attempt to carry out some of the reform, suggested by the learned judges now at the head of the Admiralty Court, and he trusted that it would prove an effectual remedy for the evils it was sought to put an end to.

Sir It. Inglis

said, whatever other objections there might be to the measure proposed by his right hon. Friend, at least the Government could not be charged with precipitancy in regard to its introduction, for there was no question, he believed, as to which so much had been written and so little done since 1829 as that of the Ecclesiastical Courts. But while his right hon. Friend was clearly not guilty of precipitancy, he wished he could with as much ease acquit him of the charge of inconsistency which had been made against the Government by the hon. Member for Chester; or, that he could acquit the right hon. Gentleman, in his capacity of representative of the Government, of having violated that great principle of the laws of England, which requires that justice should be brought as near to every man's door as possible, instead of its being, as by this bill it would be, removed to the greatest distance. If that great principle were admitted right, as regarded all cases of a civil or a criminal nature, why should it not be extended with equal advantage in cases of testamentary and matrimonial affairs? Why should the principle avowed by the Government be, that the one class of cases should be disposed of on the spot, but that the other should be removed to the metropolis? Was it not obvious, that less time and less money would be occupied in the one case than in the other? And what was the evil which by this means it was proposed to remedy? Why, the ground urged by the right hon. Gentleman was, that many of the judges in those district courts were clergymen. Very amiable men, he admitted them to be. Did the right hon. Gentleman mean to say, that he could bring forward any instance of neglect of duty, of unsound judgments, or of judgments hastily formed and promulgated against the interests of the parties in the causes? Unless abuses could be proved in existing institutions, he looked upon the abolition of those institutions with anything but a feeling of favour. He must say, that in his opinion one great vice in our present system of legislation was a desire to centralise every thing. And with regard to the proposed removal of the jurisdiction in the present case to London, he must say, that however high was the personal character of the right hon. Gentleman, however much his motives in bringing forward this measure were above all exception, still it was impossible not to consider him the representative of the feelings and wishes of the great body of practitioners of London, who would naturally wish to bring as much practice as they could to their own particular courts in London, just as those in the country would desire to prevent them; and though his right hon. Friend was himself quite disinterested in his project, he could not but remember, that the practical effect of it would be not only to deprive parties in the country of the advantage of near professional aid, but also to deprive, without any fault being shown, those professional advisers of their natural share of local business. Those testamentary causes where the amount was small that would still remain, were exactly those that were least likely fairly to remunerate the professional conductors of them, and thus the standard of professional ability would be still less likely to be raised. Feeling as he did on the subject, and in the absence of any sufficient justification for an interference with the known and admitted principle of the law, he might refuse to vote for such a measure. But his taking that course would not be likely to produce the result which he desired, and he feared it might appear un courteous. He rather preferred to state his objections to his right hon. Friend, in order that he might, if he thought fit, take them into consideration before proceeding finally with the measure. He would, therefore, notice briefly the points on which he differed from his right hon. Friend. First, as regarded the matrimonial clauses. He had always felt, that while those encouragements to divorce which some continental countries afforded were by all means to be deprecated in this, still that the power of dissolving a marriage on account of any offence which either party might commit, ought not to be limited, as was too often the case, to those whose fortune allowed them to spend very large sums on the necessary proceedings. If it were right to bring justice to every man's door as regards all other courts, still more was it necessary as regarded the subjects to which he more particularly referred It was not fit that those evils which formed the greatest grievance of domestic life, should be redressed in the case of the rich, and go be redressed in the case of the poor. And therefore, while, as he said, he would strongly guard against the abuses which prevailed in other countries on the subject of divorce, he would not be averse to such an alteration of the jurisdiction of the courts appointed to try such cases as would open them to all, and not confine them, as now, to one class, and that the highest of all. Another point which he would submit to his right hon. Friend was, the omission of the contentious jurisdiction. All church-rate disputes and differences were, it appeared, to be removed from the local courts to London. Now, if there were any one kind of cases in which more than another a local jurisdiction was necessary, it was that of church-rates. In such cases it was desirable to have an immediate decision, and that could best be attained on the spot. Another point on which he differed from his right hon. Friend was his omission altogether of a legal cognizance by the courts of cases of brawling and defamation. His right hon. and learned Friend proposed to abolish all the courts in the province of Canterbury, and all in the province of York, except that of York itself; did he also mean to abolish the courts of the two universities? He should not consent to the introduction of the bill, unless his right hon. and learned Friend would leave untouched the courts of the two universities, which stood upon a different footing, took cognizance of a different class of suits, and had jurisdiction over a different class of individuals from any other courts. His right hon. and learned Friend talked of a registry of wills,—would it not be equally possible to have a general registry of legacies? That he was persuaded would be a great public convenience, and as a copy of every will was returned to the Stamp-office, ten additional clerks might suffice to make out an alphabetical list of the legacies. He trusted, that, by his making these suggestions before the actual introduction of the bill, his right hon. Friend, if there were any weight in them, might have a more convenient opportunity of considering them, than if they had been reserved to a later stage.

Lord J. Russell

was disposed, as far as he could follow the statement of the right hon. and learned Gentleman, to give his cordial support to the general provisions of his bill, founded, as it appeared to be on the report of the ecclesiastical commission. There was one provision in it, however, which was objected to by the hon. and learned Member for Chester, and on which he wished to reserve his opinion until he saw the details; he alluded to that provision by which it was proposed to leave wills under 300l. within the jurisdiction of the diocesan courts. Now as inferior proctors would be left in the country who were not qualified by their legal attainments to practice in London, questions of difficulty would arise upon testamentary instruments bequeathing less than 300l., which should not be litigated with less attention and learning than matters of greater importance. [Dr. Nicholl.—There will be no litigation in such cases.] The objection then would not apply. He could not at all agree with what had been stated by the hon. Baronet who had just sat down, being decidedly of opinion that the great number of these courts, and the confusion which arose in being compelled to go from one to others of them with respect to questions of property, rendered it extremely desirable that some such measure should be adopted as that proposed by the right hon. and learned Gentleman.

Mr. Elphinstone

strongly condemned the constitution of the diocesan courts. The chancellors in most cases were wholly unfit for their duties; the registrars whose names generally corresponded with those of the deceased bishops, were equally ignorant of their duties; and the consequence was, that the whole of the business being left to deputy registrars, who were generally speaking attornies practising in the cathedral town, very gross injustice was often practised, and when the cases came before the superior courts in London the most extraordinary and ludicrous mistakes were frequently discovered. With respect to wills, what the public required was, that the property of the testator should be distributed to those who were entitled to it with as little delay and expense as possible. In order to this he believed it was necessary that one central court should be established in London, with a registry attached, and every facility of access afforded to the public. With respect to the admission of proctors to practise in London, it would be necessary not only that a very strict examination should be instituted, but that a most vigilant control should constantly be exercised; otherwise the interests of the public would be very considerably compromised. Upon the whole, he thought if the right hon. and learned Gentleman succeeded in carrying this bill he would be entitled to the thanks of the country.

Mr. Hume

wished to know what was intended with respect to the fees. It was a wise regulation to have fixed salaries; but was there no alteration to be made in the fees? For many years the complaint of the expense attending wills had been general and extremely well-founded; were the public by this change to have business done at a lower rate of charge than heretofore? The recent reform in the Court of Chancery had, in this respect, been no improvement. So far from business being accelerated or carried through at less expense, the expense had in many cases been doubled. Was the public to be mulcted to the same extent in this instance? There ought to be a new schedule of fees, reduced in amount to the lowest scale, so that not one shilling should be taken from the suitor more than would pay for the business actually done. He had always been of opinion that the diocesan courts should be abolished; but now that they were about to establish county courts perhaps they would be better able to deal with the ecclesiastical courts if they knew beforehand what was to be the jurisdiction of the local courts. He was in favour of a general registry of wills, but he thought there might be inconvenience in bringing all parties to litigate in London. If parties prefered litigating in the county where they resided, he did not see why they should be prevented from doing so with regard to wills any more than other property. In the general objects of the bill he entirely concurred, and could not help thinking that the time had come when every civil matter should be entirely re moved from the jurisdiction of the clergy, who were often seen meddling, active, and troublesome in things quite foreign to their spiritual duties to which they ought exclusively to devote themselves.

Mr. Christie

hoped the opening of the courts in London to proctors from the country, who were duly qualified, would be taken as an available opportunity for relaxing the still existing restrictions upon the admission of persons not belonging to the Church of England.

Mr. Protheroe

did not think the diocesan courts entitled to favourable consideration. They had by no means fulfilled the duties assigned to them as regarded the custody of wills. He felt grateful to the right hon. and learned Gentleman for the plan he had proposed. It went far beyond what he had contemplated when he intended to submit to the House a reform of these courts. Great praise was also due to the Bishops for the manner in which they had consented to surrender their patronage.

Captain Pechell

expressed his approbation of the introduction of this bill, and hoped that it would be pressed forward without delay, so that by Easter all the iniquities of these courts in the country might be removed.

Colonel Sibthorp

rose to protest against the bringing forward of a measure of this nature. It was a measure of what was called "reform"—a thing which he detested as he detested the devil. It was an innovation, and he agreed with Mr. Pitt that in all innovations there was danger. He demanded, therefore, that there should be no undue haste in urging it forward. It embraced many matters that required to be gravely and maturely considered.

Leave given.

Bill brought in, and read a first time.