§ MR. BOUVERIE, after presenting a petition from Stockport praying for the abolition of the Ecclesiastical Courts, rose to bring forward the Motion of which he had given notice on that subject. The Motion, he observed, was one of no little importance, inasmuch as it concerned a material branch of the administration of the country, which he thought he would be able to satisfy the House was at present a reproach and a disgrace to our law. He had endeavoured to frame his resolutions so plainly that no one could misunderstand their meaning, and so as to involve a strong and sweeping condemnation of the constitution and practice of the Ecclesiastical Courts of England and Wales. He proposed these resolutions to the House because he felt strongly impressed with the impolicy and wrongfulness of allowing abuses of this character, which had long been acknowledged and proved to exist, to remain unremedied, and because he saw no disposition on the part of the Government to endeavour to remedy them. There was no other practical course open to him to propose to the House. Inquiry was useless, because it was exhausted. All that could be done by inquiry had already been done. It would be perfectly 101 useless for him to introduce a measure on the subject, which was necessarily one of much complication and detail; and, even if he were to lay a Bill on the table, he could never hope successfully to carry it through that House, much less through the other House of Parliament. He expected the Secretary of State to say—as was frequently said in such cases by hon. Gentlemen on the Treasury Benches—that the Motion he submitted to the House was an abstract resolution. He heard the right hon. Member for Tamworth (Sir R. Peel) say, the other day, that he thought the House ought never to accede to abstract resolutions, on this ground—that either the intention of the Mover was to found upon his resolution a simple measure, and that, in that case, it was better the measure should be laid before the House at once; or that the subject was one of great complication and detail, and in that case it was unfair to ask the House to commit itself to those details without knowing what they were. Now, if only a short simple measure was required to remedy these grievances, he should consider it his duty to ask the House for leave to bring in a Bill on the subject; but as the question was one of much complication, detail, and intricacy, requiring arrangements involving a great deal of attention and learning, he wished the House, by adopting the resolutions he proposed, to lay the basis of legislation, and to establish those principles on which a measure might be founded. During the last eighteen years, this subject had frequently been investigated, and, as he had before said, inquiry had been completely exhausted. Previous to 1832 a Commission, composed of the most eminent persons in the Church and in the profession of the law, including the late Archbishop of Canterbury, the present Bishop of London, the Bishop of Durham, the late Lord Tenterden, the late Lord Wynford, the late Sir N. Tindal, the late Sir J. Nicholl, and others, was appointed to inquire into the subject, and, after a lengthened investigation, they made a learned and able report, which, he contended, fully bore out the resolutions he was about to submit to the House. In 1833 the Real Property Commission, including Lord Campbell, Mr. Tinney, Mr. Hodgson, and Mr. Duval, investigated a large part of the subject—that which related to the testamentary jurisdiction of these courts, and they made a unanimous report strongly condemnatory of the system which was still allowed to exist. A 102 Committee of that House, presided over by the President of the Board of Trade, also sat in the same year, and having inquired fully into the subject, they laid a report upon the table strictly in harmony with the report of the Real Property Commission. All that could be done by inquiry had been done; but the abuses which were pointed out in these reports still existed. It was true that attempts had been made by several Governments to remedy some of these evils; by the Government of Earl Grey, in 1834; by Sir R. Peel's Government, in 1835; by Lord Melbourne's Government, in the same year; again, by Lord Melbourne's Government, in 1836; by Sir R. Peel's Government, in 1843 and 1834; and, last of all, by the present Lord Chancellor, when in opposition, in 1845. The Bills introduced on these several occasions passed through some stages, but all came to an untimely end before they received the Royal Assent. He thought these measures, or some of them, might he supposed to have failed, because they did not go far enough; because they did not deal with the evil as one which it was necessary to eradicate; because they endeavoured to reconcile two interests which were wholly incompatible—that of the public, and that of those who claimed a kind of tenant-right to the abuses of these courts; because they attempted to conciliate the hostility of those interested in the maintenance of the existing abuses; because that hostility, though confined to a small number of persons, was combined and vigorous; and because the public, who were interested in the abolition of these abuses, did not come forward to support the Government, and to insist on the adoption of the Bills which had at various times been introduced. Between these "two stools" the attempt at reforming these courts had hitherto failed. His (Mr. Bouverie's) object in making this Motion was to stir up and incite the Government to make a vigorous effort to grapple and deal with this subject; and it was more especially incumbent upon the Home Secretary, because in 1844 he was the person who, then in opposition, moved the rejection of the Bill of the right hon. Baronet opposite (Sir J. Graham) on the distinct ground that the measure then proposed was inadequate. He (Mr. Bouverie) must contend that nothing short of eradication would sufficiently deal with the evils existing in these courts; and to substantiate this, and the resolutions he had placed on the Paper, he would briefly 103 remind the House what these courts were, what they had to do, and how they did it. They consisted chiefly in the consistory or diocesan courts of the several bishops; there was one court in each diocese, and in some of these dioceses there was also the commissary's court, the commissary being a deputy of the bishop, and executing part of his jurisdiction in part of his diocese. There was likewise in each province the provincial court of the arch bishop—the court of appeal from the diocesan courts of his suffragans. There were also scattered over the country a number of archdeacons' courts, exercising, by grant or prescription, a part of the bishop's jurisdiction. There was formerly a great number of courts called Peculiars; but they had ceased to exercise any jurisdiction, and were for the most part no longer, he believed, in existence. As to the law administered in the ecclesiastical courts, it was—
such canons, constitutions, ordinances, and synodals provincial, being already made, which be not contrariant or repugnant to the laws, statutes, and customs of this realm, nor to the damage or hurt of the King's Royal prorogative.Such were the words of a statute of Henry VIII., upon which the law administered in these courts rested. How uncertain that law was, needed no stronger proof than the fact that the highest of our superior courts of justice only four months ago declared itself incapable of deciding what the provisions of that law were. The bar of these courts everywhere but in London was nil, with the exception, he believed, of York. Now, the bar here was a close monopoly. Nobody could practise in the ecclesiastical courts in London, unless he were a member of a close corporation in Doctors' Commons—a corporation, the privileges of which were confined to those who had taken the degree of doctor of civil law in one of our universities. The practice of these courts, therefore, was confined, not merely to those who had had a university education, but necessarily, from the rules of the universities, to those who were members of the Church of England; and, as was always the case in such monopolies, the result was doubly injurious—injurious to the profession itself in respect of its learning and its character, and injurious to the public who required its services. An eminent member of it, Dr. Lushington, when examined before a Committee of that House, was asked—Are you of opinion that graduation at one of 104 the universities is an indispensable requisite before being admitted to practise in that court?The answer was—Not, in my opinion, certainly; on the contrary, I entertain a very different opinion. I think that the profession has undergone great injury from being so close a profession, and being accessible to so few persons.But the more important consideration was, that the public was a sufferer. This branch of the profession was lucrative and honourable; and he would like to hear some good reason alleged in these times why this field for learning and talent should be closed to all who had not had a university education and become members of the Church of England. The Judges likewise must have taken a university degree; men like Lord Campbell, the late Sir W. Grant, Sir E. Sugden, the late Sir S. Romilly, could never either have sat upon the bench or practised in these courts. The Judges were appointed by the bishops, and it was entirely in the power of the bishops what should be the duration and amount of the authority delegated to them. There was no constitutional check upon them. By the Act of Settlement the Judges of the common-law courts were removable by the Crown on an Address from the two Houses of Parliament; and if one of those Judges were to misconduct himself, or prove grossly incompetent, Parliament would thus address the Crown, and he would be removed; but, however grossly a judge of an ecclesiastical court might misbehave himself, there was no such power of removing him from the bench. He (Mr. Bouverie) could not himself see how in these days any one could defend the position, that the appointment of judges exercising high jurisdiction upon civil questions, ought to remain in the hands of the bishops. He did not recognise any peculiar propriety or fitness in the bishops to make a good selection. Though he had not the same feelings of hostility towards bishops as were displayed by some hon. Members in that House, he could not help saying that in some very remarkable cases in the last few months eminent members of the bench of bishops had shown a total want of appreciation of the great principles of truth and justice. It was but a few weeks since a jury of the country found that one of them had been truly described as "a perverter of facts;" and another of them had had the candour to acknowledge that he had, as far as in him lay, affixed a lasting stigma upon the character of an eminent divine, without ever having read the book 105 upon which that condemnation was founded. He (Mr. Bouverie) did not see, then, that bishops were peculiarly qualified to be in trusted with this high constitutional function. Neither did he think it conducive to the best interests of the Church of which he was a member that they should have this power, or that there should be this mixture of temporal and spiritual power, or exercise of temporal jurisdiction by spiritual persons. On the contrary, this was a source of weakness and embarrassment to her; and, instead of strengthening her, this and other branches of her temporal power interfered with her independence and marred her efficiency. As for the origin of these courts, they were the purest relics of Papal authority existing in this country—the monument of the great struggle for temporal domination which was carried on previous to the Reformation. The bishops, at the Reformation, in the great scramble for the property and authority of the Church, picked up and appropriated this portion of the Pope's power; and they had acted out what was said to be the true principle for a good Judge—that of extending his jurisdiction, for they did all they could, in the early period after the Reformation, to extend the authority of these courts to everything cognisable in the ordinary courts; and, but for the firmness of Coke and his brother Judges, they would probably have succeeded. From that time, indeed, to the present there had been a constant current of complaint against the abuses and maladministration in the ecclesiastical courts. In the commission for the reform of the Church issued by William III., it was recited, "that there were defects and abuses in ecclesiastical courts." Burnet, in his History of the Reformation, said—Our ecclesiastical courts are not in the hands of the bishops and their clergy, but put over to the civilians, where too often fees are more strictly looked after than the correction of manners. I hope there is not cause for so great a cry, but so it is; these courts are much complained of.In the last century there was an inquiry in the House of Commons into these courts; a petition was presented from Derby, he believed, complaining of the abuses and exactions in them; a Select Committee was appointed, a report was made, and a Bill founded upon it was introduced, providing a remedy for some of the evils, but unfortunately it did not pass the House of Lords. It was not, however, because they had been bad and inefficient in past times, that he complained of them, 106 (they might have been very bad then, but useful and efficient now,) but it was because still at this day these courts were bad and inefficient, and in them bad law was badly administered by incompetent judges. If they were merely useless there would be ground of complaint, because, by means of them, a large amount of fees was annually extracted from the pockets of the people; but they had to decide some of the most important questions that could be brought before a tribunal. Take their matrimonial jurisdiction: they had exclusive jurisdiction in all suits for separation from bed and board, or for nullity of marriage—questions involving the nearest social relations, the legitimacy of children, the peace and honour of families. In no set of cases could it be more important that the tribunal should have the respect and confidence of the public. Then, again, there was the testamentary jurisdiction of these courts, and it was most anomalous and monstrous. They exercised the exclusive right of pronouncing on the validity of all wills of personal property, which included money, stocks, plate, leaseholds, everything, in short, except freehold landed estates; but they had no judicial power enabling them satisfactorily to determine the rights of the parties claiming under a will, nor could they administer the property under the will. Hence the litigants, after getting a decision there on the validity of the will, and paying one set of lawyers, one set of fees and will of costs, had to go into Chancery to have their rights under the will determined, and thus to pay another set of lawyers, another class of fees, and another bill of costs. This was a grievance constantly and daily operating. In a petition presented to the House a few weeks ago, signed by 130 most eminent solicitors in Liverpool, it was stated—That the civil jurisdiction of the ecclesiastical courts, especially in testamentary matters, proves almost daily a source of oppression and legal wrong to suitors. That your petitioners, in common with legal practitioners throughout the country, are often required to undertake all the labour and responsibility of civil suits, conducted in ecclesiastical courts, without being allowed to practise in such courts, or to receive any emolument for their labour, except by making separate bills; which to the suitors is the occasion of further expense, of great delay, and of increased vexation, loss, and other serious demage, which it is not in the power of your petitioners to prevent falling upon their clients.Still further, these courts could not look at a will, as regarded real property—when there was real property, the decision with 107 regard to the validity of the will was for a jury; and hence, occasionally, the very instrument which the ecclesiastical court pronounced invalid, on the ground of the testator's insanity, was by a jury pronounced valid as to real property. In Montgomery v. Clark, 2 Atk., 378, Lord Hardwicke said—I have often thought it a very great absurdity that a will which consists both of real and personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated, upon paper depositions only, in the ecclesiastical court, because they have a jurisdiction on account of the personal estate disposed of by it, I wish gentlemen of abilities would take this inconvenience and absurdity into their consideration, and find out a proper remedy by the assistance of the Legislature.This absurdity, however, still existed and still worked injustice. He himself (Mr. Bouverie) knew an unfortunate man, of the name of Clark, who had been twenty-one years in the Queen's Prison, under the operation of that anomaly. Mr. Clark took possession of a large amount of real and personal property to which he believed himself entitled under a will; the ecclesiastical court held the will invalid on the ground of the insanity of the testator; the Court of Chancery held the instrument valid, and confirmed him in possession of the freehold estate, and yet was obliged, in execution of the judgment of the ecclesiastical court, to order Mr. Clark to repay the produce of the personal property, which he had spent, believing it his own. What could be more monstrous? Here was a man imprisoned for a great part of his life on the score of the invalidity of an instrument, which the highest court of equity in the kingdom, that sent him to prison, actually decreed to be valid. Another branch of the jurisdiction of the ecclesiastical courts was on questions of church-rate. All questions with respect to the validity of a rate were under their cognisance. Now, these were the courts of the bishops; the judges were appointed by the bishops; the greater part of the judges were clergymen of the Church of England; and yet it was into these courts that a Dissenter, disputing the validity of a church-rate, must go and have that question decided. Would any one say that a Dissenter could feel the same confidence in the determination of such a court—the same satisfaction that full justice had been done him—as if the case had been before one of the common-law courts? The Commissioners, at any rate, did not think so, for they recommended 108 that the jurisdiction should be entirely removed; but this, like all their recommendations, had been neglected. There was only one point upon which their recommendations had been attended to, and that was with respect to the jurisdiction of these courts regarding discipline and correction of manners of the clergy—the only particular in which the jurisdiction affected the bishops themselves, and where they found, to their injury, the expensiveness and dilatoriness and inefficiency of their own courts. In that particular they induced Parliament to assent to a measure which took them out of the jurisdiction of their own courts. For the Clergy Discipline Act, 3 and 4 Victoria, cap. 86, provided—That no criminal suit or proceeding against a clerk in holy orders of the United Church of England and Ireland, for any offence against the laws ecclesiastical, shall be instituted in any ecclesiastical court otherwise than is hereinbefore enacted or provided.The ecclesiastical courts had jurisdiction also in cases of defamation. By the returns made to the Commissioners it appeared that one-ninth of the suits litigated before these courts were cases of defamation—suits for the use of words imputing an ecclesiastical offence, but words which were not actionable at common at law. Ordinarily these suits were for words imputing incontinence. The suits arose mainly among the humbler classes of the people, and all who had experience on the subject united in bearing testimony to their being a very great and serious evil. The Chancellor of Exeter was examined upon this subject, as follows:—Do you think it desirable that causes for defamation should be taken away entirely from the ecclesiastical court?—They are a very unpleasant description of suit, and I should think might be better settled elsewhere.Practically speaking, do you believe they are productive of any good?—I should doubt whether they are.So Mr. Granville Vernon, Chancellor of York:—Are your causes of defamation principally or altogether among the lower classes of the people?—Entirely.Are they often contested, or do they give an affirmative issue to the charge?—Usually contested. The existence of those causes is a very great grievance.Mr. Ward, of Chester, answered:—Would there be any great disadvantage to the interests of the public if those causes were entirely suppressed?—I think it would be a great benefit to the public,109 The offences were often of the most trivial kind—not, however, that words of the kind in question, even though spoken in heat and anger, were to he defended; but the penalty imposed was far from being trivial. The returns obtained by the Commissioners showed that, in some of these cases, the amount of costs inflicted upon the unfortunate defendants must have been absolute ruin. These courts had no power to impose a penalty in a direct form, but only to make the party do penance in a white sheet, but they could impose payment of costs. He would particularise two or three cases. In the case of "Harris and Drew," tried in the Bishop of St. David's court, which commenced in 1827 and ended in 1829, the defendant was ordered to pay 33l. 10s. 10d., and to be imprisoned until the money was paid. In "Joslin and Price," in the same court, began in 1828 and ended in 1830, the defendant was ordered to pay 30l. 6s. In "Elizabeth Hicks and Phœbe Gibbons," in the same court, begun in 1827 and ended in 1829, the defendant was ordered to pay 40l. 2s. 2d. The returns upon the table of the House showed that several persons were actually in prison for nonpayment of costs, their periods of confinement ranging from twelve months to one month. The use of such language as formed the subject of these suits was, undoubtedly, unjustifiable; but it was monstrous to inflict such heavy penalties upon persons of a humble class in life, for a comparatively trivial offence. How it must confound people's notions of justice to see a woman brought before the ecclesiastical courts for having spoken words in heat, and subjected to a ruinous penalty; when, if that woman were brutally assaulted by a man, and should bring the assaulter before a magistrate, the utmost punishment which could be inflicted upon him was a fine of 5l.! Such a state of things was revolting to one's sense of justice. If it was right to make a person civilly responsible for the use of such words, let a right of action in the common-law courts be given; or if it was right to make it a criminal offence, let the offender be punished in the police courts of the country; but he begged them not to let this monstrous iniquity continue to be perpetrated in the name of the Church, and, as the phrase went, "for the good of the offender's soul." Having shown what was done in these courts, he would now inform the House how it was done. Upon this point he was able 110 to adduce the best possible evidence, being that of persons of high authority, who pessessed the best means of forming a judgment as to the mode in which justice was administered in the ecclesiastical courts. He would first take the diocesan courts, and would read to the House the judgment which the Commissioners passed upon those tribunals. The Commissioners said—The diocesan courts are exempt from some of the objections which may be urged against the peculiar jurisdictions: but there are many reasons derived from the state of these courts in the present time, and the importance of some parts of the business arising there, which induce us to think that the transference to provincial courts of the jurisdiction hitherto exercised by them would be a great improvement in the administration of the ecclesiastical law. In the course of our inquiry we became early convinced of the impracticability of having judges duly qualified, together with a competent bar and skilful practitioners, to administer in the diocesan courts the testamentary and matrimonial laws, which involve matters of such very high importance to the parties litigant and to the public.That was the general opinion of the Commissioners; now he would refer to the testimony of individual witnesses. The first witness was the Lord Chief Justice of England, who, in speaking of the ecclesiastical courts in another place, in 1844, said—He would not enumerate eases of individual hardship; but there were some which would make their Lordships shudder. He had always been accustomed to consider these courts as nuisances, and he had never heard in any other court of cases of such extreme hardship as he had known of in these.The next witness was a person to whose evidence on a matter of this kind no one could object—the Bishop of London. The right rev. Prelate said—Now, with respect to the administration of some of the ecclesiastical courts, he must own that his experience of some of those courts had not given him the highest reverence for their administration of the law, and he thought it desirable that those courts should be placed on a better system, and a better administration of justice substituted.A high judicial authority, now a Member of the Government (Lord Campbell), speaking on the same subject, observed—He had had a rather extensive experience with respect to them; and he would venture to say he never heard a case before any one of these diocesan courts in which the grossest blunders were not made.—As to the cases brought from the archdiocese of York before the Privy Council, he could say, and he appealed to his noble and learned Friend (Lord Brougham) if they were not full of the grossest blunders, and constantly followed by reversals? ['Hear!' from Lord Brougham."]111 Perhaps he had already adduced sufficient evidence of the in competency of these courts; but, in order to strengthen this part of the case, he would quote the testimony of a gentleman whose opinions were entitled to the greatest weight in a matter of this kind; he meant the late Mr. Tyrrell. That gentleman said—The inconvenience of the jurisdiction of the ecclesiastical court has probably escaped the attention of the public on account of the small proportion of cases in which the validity of a will is disputed; but by the few persons who have had the misfortune to be involved in their proceedings, they are loudly condemned on account of the nature of their forms, their insufficient means of eliciting truth or doing justice, and their enormous expense. In the only two cases with the facts of which I am acquainted, 'Ingram v. Wyatt,' and 'Marsh v. Tyrrell and Harding,' I have the most perfect conviction that the sentences were wholly contrary to justice.It might be said that the opinions to which he had referred did not apply to the principal ecclesiastical court of the country—namely, the court of the Archbishop of Canterbury, which sat in the metropolis; but it would not be difficult to show that court was not free from the objections which attached to the other ecclesiastical courts. A case had occurred within the last few months which had drawn the attention of the public to the Arches Court in Doctors' Commons. He did not refer to that case with the view of shocking the House by a repetition of its disgusting details, but in order to direct the attention of the House to what had occurred in the court on that occasion, between one of the most eminent advocates of the court—he believed he might say its leading advocate—and the Judge who presided on the bench. What took place was, probably, fresh in the recollection of many Members. There was an unseemly contest between the judge and the advocate, the latter openly imputing corrupt motives to the judge in the discharge of his duty. Sir H. J. Fust, the Judge, complained of the following interrogatory, which Dr. Addams acknowledged that he had drawn himself:—Ask each witness, has not Mr. Nepean some, and what, family connexion, both with the proctors and counsel (or one of them) who are conducting this suit on the part of the producent, and with the judge in whose court it is depending; and upon your solemn oath has not the producent been buoyed or buoyed himself up (of course most fallaciously) wilh the prospect of its successful issue as resulting, or likely to result, from such connexion? Will you, upon your solemn oath, deny that you yourself have repeatedly heard, or have sometimes heard (or will you positively swear that you have never heard), the producent refer, either 112 directly or indirectly, to the connexion aforesaid as the ground, or one of the grounds, whereupon he relied for a sentence in his favour in the result of this suit?Dr. Addams justified the interrogatory in open court, and said—All I can say is, that it is an unfortunate state of things, even if it occurred only once; but it is of perpetual occurrence; I see a phalanx against me which quite oppresses me. I have borne it a long time.On a subsequent day the Judge, in the course of a long speech, entered into a justification and defence of himself from the imputations which Dr. Addams had cast upon him. It must not be supposed that what Dr. Addams said on that occasion was merely the language of an angry advocate roused by the difficulties of his case. He held in has hand a pamphlet published by Mr. Craig, a clergyman of the Church of England, which cast similar suspicion upon the proceedings of the court. [Sir F. THESIGER said that the case to which Mr. Craig's pamphlet referred was at present sub judice.] He (Mr. Bouverie) was not about to refer to anything which could prejudice either of the parties in the case; his object was merely to show the suspicions which prevailed with respect to the court itself. The Rev. Mr. Craig, the writer of the pamphlet, was the brother of one of the parties in the case; and in the following passage he referred to one of his brother's acts:—But one of his letters seems to have been worse than wrong—it was indiscreet. He ventured—in the contemplation of his gloomy prospect—he ventured to express an apprehension that he did not stand a fair chance in the Court of Arches, constituted as it is, and considering who were arrayed against him. This was unwise, and he has smarted for it. It was no doubt the expression of very needless and unfounded alarm, for they are all honourable men; yet it is possible that the proceedings and judgment in this case may make converts to his opinion. Many and serious are the complaints that have been made of injustice arising out of the family combination. Throughout this case, as it has seemed to me, and I have watched it narrowly (of the judgment I shall have something more to say presently), the interlocutory decisions have been very adverse to Mr. Craig. Whether they were so rightly or wrongly I cannot decide; but whatever may be said either in or out of that corner of the metropolis which goes by the mysterious name of Doctors' Commons, courts of justice ought not to be family preserves.He begged it to be understood, that he expressed no opinion with respect to the statements of Dr. Addams and Mr. Craig; but he thought that what had taken place in court was a most unseemly and unbecoming occurrence between a judge, on the 113 bench, and an advocate practising under him. As to the fact, however, which was the basis of the suspicion entertained against the court, there could be no doubt. On that fact he rested his case against the court. There was a monopoly of the bar, a monopoly in the practice of the proctors—and in both those branches of the profession were to be found intimate relations of the judge who presided in the court. He had no personal knowledge of Sir H. J. Fust; but he believed him to be an honourable, high-minded, and efficient judge, and it was part of his case against the court that, in consequence of the system which prevailed there, it was impossible to have a cause tried there without suspicion being cast upon the judge. The judge in that court exercised powers which no judge at common law possessed. He had no jury to assist him in the determination of matters of fact. The judge of a common-law court, in trying an issue of fact, was controlled and checked by the judgment of a jury of intelligent men. The judge in the ecclesiastical court had absolute power to determine matters of fact. That was not all; the judge in the ecclesiastical court had the most imperfect means of arriving at the truth. He could not hear the vivâ voce examination of witnesses. The practice was this:—The witness was examined in private by an officer of the court, upon the statement in the paper-pleading of the party who called the witness, who was then cross-examined by the officer from written interrogatories, framed by the other party before the examination in chief took place. All the advantages of cross-examination, and of observing the demeanour and countenances, the readiness, the hesitation of witnesses in giving evidence, were wanting in the ecclesiastical courts. He believed there was no mode on the whole so perfect for arriving at the truth with respect to controverted facts, as the vivâ voce examination and cross-examination of witnesses in open court. Such was the practice in our common-law courts. At any rate both methods would not be the best; and he felt, sure that the latter was most in accordance with the notions and feelings of the English people. One important branch of the jurisdiction of those courts related to the registration of wills. They claimed the privilege of registering wills relating to personal property; and, as in these times everybody had personal property, it followed that all wills must be registered there. The will was deposited, and 114 a copy made; and that copy, sealed by the court, and called the probate, was the evidence of the will on all questions, except as to the title to real estate. Of that the original will alone was the evidence. In point of fact, as far as succession was concerned, it was a register and depository of title. Considerable benefit had accrued from this arrangement, but its advantage would he greatly enhanced if it were properly carried out. The two great advantages of a register of title were security and accessibility. In both those points the system of registration in the ecclesiastical courts was most defective. [Here the hon. Member read extracts from the evidence of several persons examined before the Commissioners which fully sustained his statement.] The evidence he had adduced was conclusive that the registry of wills was insufficient, imperfect, and objectionable. But this resolved itself into a question of expense to the landed proprietor. This was, in point of fact, a burden on the land; it was a charge which ultimately fell on the person who had to make out his title, the vendor, or the mortgager, and was in many cases a considerable burden. Mr. Tyrrell, on this point, said—This peculiar jurisdiction in respect to wills was an important cause of the insecurity of titles, and one of the most frequent and oppressive sources of expense on the alienation of real property.But though a burden on landed property, it was extremely profitable to the gentlemen connected with these courts. It afforded them the means of extracting a very considerable amount annually from the public in the shape of fees. By a return made to the House four years ago, containing an account of the fees received by the several officers connected with the ecclesiastical courts in England and Wales, it appeared that the total amount of fees received annually was upwards of 106,000l., and that the amount received by the registrar's deputy-registrars was upwards of 60,0002. These fees were one of the main abuses of the ecclesiastical courts; and the existence of them was really the substantial difficulty in the way of getting rid of those courts. The parties who received them were naturally indisposed to favour any proposition for the destruction of a system from which they derived so large a profit. Many of the offices connected with these courts were sinecures, and some of them were lucrative. In the 115 court of the Archbishop of Canterbury he found that the principal registrar received 7,588l. a year; and there were clerks of the seal receiving sinecure salaries amounting to several thousands a year. In the diocese of Chester the registrar enjoyed 7,155l. a year. In the diocese of York the registrar received 2,636l. a year. Indeed, the document which he was reading to the House was rather a curious one. The names it contained of those who held sinecure places in the ecclasiastical courts formed a sort of index to the family names of the past and present bishops and archbishops of this country. Although he was not disposed to interfere with the present holders, or with what might be called their vested interests, yet it certainly was not right that the public should pay continually, without any hope of abatement, these vast sums for no sort of duty whatever. Besides, as a Churchman, he felt that these large sinecures so bestowed were not for the credit or advantage of the Church. The usual apology for sinecure offices had been that they afforded the means of providing a comfortable independence for persons who were eminent for their scientific attainments or theological learning; but he had never heard that any of these large sinecures had ever been enjoyed by any gentlemen who had so distinguished themselves. During the last fifteen years, since the evils of this system had been pointed out, nothing had been done to cut down the fees of these gentlemen. He would ask the House whether they were prepared, by rejecting the resolutions he was about to propose, to express their opinion that the public should continue to pay, without hope of relief, these large annual sums? He apologised to the House for the time he had occupied. The subject was not a very attractive or inviting one; but it was, nevertheless, a subject of great importance to the public. But he would say to his noble Friend at the head of the Government, who on a late occasion had declared that the people of this country were not in favour of constitutional and political reforms—[Sir G. GREY: No, no!] He understood his noble Friend, who was not now in his place, to profess himself adverse to great political changes such as those which were about to be proposed by the hon. Member for Montrose, believing that the people were equally opposed to change. Now, he would say to that noble Lord that he would be going a great way in establishing the people in that conviction 116 if he would show them that whenever any practical abuses and grievances were pointed out, there existed a readiness on the part of the Government to remedy them. Those were the ends they were all seeking. Political changes were merely the means to those ends; and if Government and Parliament would show a vigorous determination to apply an amending hand to these abuses they might depend upon it they would take the sting out of the Motion which his hon. Friend the Member for Montrose was about to bring forward. The hon. and learned Gentleman concluded by moving the following Resolutions:—That the Ecclesiastical Courts of England and Wales have been the subject of several public inquiries, which have shown them to be totally incapable of fulfilling the important functions they affect to exercise:—That these Courts have not only to decide questions concerning some of the most important civil rights of the subject, but they exercise a criminal jurisdiction, pretended to be pro salute animœ, which touches his property and personal liberty:—That the law they administer urgently requires amendment:—That their system of procedure is incompatible with the effectual attainment of the ends of justice:—That they are not only inefficient but costly:—And that their continued existence is injurious to the subject, and a scandal to the judicial system of the Country.
§ SIR G. GREYdid not intend to occupy the time of the House by following his hon. and learned Friend through the details of the speech which he had just addressed to the House. He certainly did not rise for the purpose of controverting those arguments which he had so ably urged, nor to contest those proofs which he had adduced to the House, and on which he insisted that there should be introduced some extensive change in the condition of the ecclesiastical courts of this country. He had had on more than one occasion an opportunity, of which he had availed himself, to express his views on this subject. He believed that the present state of the ecclesiastical courts justified most of the comments that had been made on their condition, and he was disposed to agree with very much that had fallen from his hon. and learned Friend. The object with which this Motion had been submitted to the House was stated by his hon. and learned Friend to induce the Government to take this matter up. His hon. and learned Friend had at the same time stated what was perfectly true, namely, that this subject was complicated in its details, and such as he, as an 117 individual Member of Parliament, shrunk from grappling with by introducing a Bill. The failures of successive Governments to introduce a perfect Bill on this subject, for the purpose of effecting a reform in the ecclesiastical courts of this country, justly deterred his hon. and learned Friend from undertaking so great a task. He admitted that it was a notorious fact that many inquiries had taken place into these ecclesiastical courts. There was an inquiry, which was conducted by Commissioners established by the Government of the Duke of Wellington in 1829, who made their report in 1832. There was a subsequent report of another body on this subject, that of the Real Property Commission, to which his hon. and learned Friend had adverted, and which contained distinct recommendations on this question, namely, the abolition of these diocesan ecclesiastical courts, and the transference of their jurisdiction to the other courts of the country. A Select Committee of the House of Commons, and subsequently of the House of Lords, had sat upon the subject of these ecclesiastical courts; and both of those Committees most distinctly recommended a very extensive change in the constitution of these courts, and the nature of the jurisdiction which they exercised. He was quite prepared to agree in substance to the recommendations which had emanated from those successive bodies; but when his hon. Friend said that he (Sir George Grey) was especially bound to take up this matter, because he was a principal opponent of the Bill introduced by the right hon. Gentleman who was his predecessor in office, he must say that accusation was not a very just one, for the Bill introduced in 1843 was founded upon principles similar to that affirmed in the recommendations of their Committees. He voted in favour of the second reading of that Bill. That Bill was afterwards committed pro formâ, and underwent extensive alterations, which he certainly thought a departure from the principle of the Bill as originally introduced. There was then no indisposition on the part of that House to entertain the Bill, although extensive modifications were made in it by the Committee. But in consequence of the formidable opposition which was raised to it out of doors, the Government, whose hands were full of other business, found it very difficult to deal with the question at such a period of the Session, and the Bill was withdrawn. With regard to the Bill 118 of 1844, he did not think that it had the appearance of ensuring an effective and national reform in these courts; and on that ground, because of the inefficiency of the measure, it was that he opposed it. He voted in the minority against the second reading of that Bill; and if he remembered rightly, that Bill was abandoned, and no further steps were taken in consequence of the manner in which it had been dealt with on the second reading. But the present Government had lately been paying careful attention to this subject; and his hon. and learned Friend the Attorney General had been engaged for some time in the preparation of a Bill which he would have submitted to Parliament in the course of the present Session had the Government any prospect of securing time and attention for the consideration of its details. He was sorry to see in modern times a prevailing disposition on the part of the House of Commons to think that every measure of importance must be taken up by the Government in one Session. The result of that was, that towards the end of the Session, the Government was overwhelmed with measures, which were necessarily withdrawn for the purpose of being introduced at a more fitting opportunity. Of this he was quite sure, that looking at this matter and the difficulty by which it was surrounded, it would be quite impossible for him to succeed in carrying a measure founded upon it in the present Session. He must say, therefore, that he thought it would be the wiser course to reserve its consideration to a future Session of Parliament. He agreed, as he said before, very much with what had fallen from his hon. and learned Friend. He agreed with him in many of the objections which he had urged against the present system. But he could not at present agree to the adoption of the resolutions which he had proposed, inasmuch as they affirmed that the proceedings in the ecclesiastical courts were a public scandal, and that the courts ought at once to be abolished. He could not, he said, agree to such resolutions when he had not a measure prepared to remedy the evils affirmed to exist. He would rather content himself by recording his declaration, that Her Majesty's Government considered that the courts needed an alteration, and expressing his hope that a Bill would be proposed by them in the next Session of Parliament. He hoped that the Government might then be able to 119 carry out its intention. The delay that would occur between this and the succeeding Session would afford an opportunity of giving the most ample and careful attention to this very important subject. Under the present circumstances, he would content himself with moving the previous question.
§ SIR R. H. INGLISsaid, the hon. Member for Kilmarnock might congratulate himself on the triumph which he had already gained without having taken a division on this subject. For, as in the case of the hon. Member for Cockermouth on a former occasion, so in the present instance, the object of the Motion had been gained even without a battle. He did not blame his right hon. Friend the Secretary of State for any inconsistency in the course which he had adopted in the present instance, as contrasted with former proceedings; because he admitted that the right hon. Gentleman, in opposition and in office, had given his sanction to the abolition, or at least to a great alteration of the system, of ecclesiastical courts in this country. When, however, his right hon. Friend pledged himself and the Government to the introduction of a measure for remodelling the ecclesiastical courts of England and Wales, it was hardly necessary that he should remind the right hon. Baronet that he had undertaken a task which no preceding Government—however hardy in their attempts—had been able to accomplish. And in one word he could inform the present Secretary of State why former Governments had failed in this respect, and why his own attempt would also prove a failure. His right hon. Friend had attempted to take justice from the doors of every man in every part of the empire, and to centralise it after the modern fashion—not perhaps in Doctors' Commons—Doctors' Commons might be given up—but in London. A return had some years ago been obtained on the Motion of his hon. Friend the Member for Lancaster, their late Chairman, proving that there were at present throughout the country about 360 courts in which wills might be registered. Was there no practical advantage in that? And when the hon. Member for Kilmarnock told them that, under the present system, difficulty was occasionally experienced in tracing the wills of individuals, did he forget the advantage which the people in remote districts had of registering wills without being obliged to come to London for that purpose? Was it not advisable, 120 for instance, that the people of Chester—[Cheers.] Who cheered at the word Chester? If he were not mistaken, he recognised that cheer to proceed from one who had never yet failed in his support of the ecclesiastical courts of England (Sir John Jervis). The hon. Member for Kilmarnock had alluded to the mode of examination by written interrogatories in the ecclesiastical courts. Were there no such interrogatories in the civil courts—in the Court of Chancery, for instance—and were not proceedings in the Court of Session of Scotland conducted in writing, which in England would be taken viva; voce? The hon. Member had alluded to the local courts as depositories of wills, and had said some remedy was required. Now, he had had occasion to pay some attention to this subject, and from his inquiries and observation, he could state that in very many cases the wills in the country depositories were as well arranged, as accessible, and as free from dust, as any of the wills in the great repository of London. He happened to know the proportion of wills which had formed the subject of litigation, and which had been produced in the country and in London, and also the number of searches that had been made; though the statement might show that the present system was susceptible of improvement, it did not prove that it was one which produced those unmitigated evils attributed to it by the hon. Member for Kilmarnock. In four years the number of searches in London produced seven wills; in the same four years in the country thirty-six wills. In the same period there were eighty-eight searches for wills in London; in the country 1320. Another point to which the hon. Member had referred was with reference to certain offices which he described as sinecures. To one of these cases he thought he would, on a reconsideration of it, apply a different term. The hon. Gentleman had stated that the registrar of the diocese of Chester held a sinecure worth 7,500l. a-year. He would ask his hon. Friend the Attorney General, than whom no man gave a more honourable, consistent, and generous support to such local institutions, would he not still support that at Chester? He believed, as politicians, no two were more opposed than the registrar of that court and his hon. and learned Friend; but he would ask the latter whether the office of the former was correctly described when it was called 121 a sinecure with 7,500l. a year? He believed the office of that court was as large and as extensive as any other provincial court, and was as well conducted. He had only heard of two instances in which its decisions had been impugned; and so far as the court of Chester at least was concerned, he thought there was no ground for the charges which had been made against the whole system. Then, again, at Exeter the administration of the chancellor there had always been such as to deserve the highest commendation. When it was said that all jurisdiction with respect to church-rates should be taten away from ecclesiastical tribunals, he would ask, was there not also a common-law court, before which the decision of such tribunals might be reviewed? and was not the latest decision of a common law court confirmatory of the decision of those who might be thought to be more specially interested in the preservation of that system with which those church-rates were concerned? Then, again, with regard to the question of their jurisdiction in cases pro salute animœ, he would ask would it be right to leave such questions to be tried by a miscellaneous body of persons who might be entirely opposed to the principles involved in such cases? He hoped his right hon. Friend the Secretary of State for the Home Department, in that general and sweeping concession which he granted to the hon. Member for Kilmarnock, did not mean to invade that part of the jurisdiction of the ecclesiastical courts, and that such cases as were now only to be tried by ecclesiastical courts were not to be thrown open to others, and that matters connected with ecclesiastical discipline should not be referred to individuals hostile to the Church. When the Government had made up its mind to grant all that the hon. Member for Kilmarnock might desire, it was not necessary for him to trouble the House at greater length on that occasion. It was quite clear, however, that no Bill would be brought in on the question during the present Session. But he would warn the present Government, in any legislation upon that question, unless they consulted the practical feeling of the country with respect to these local institutions, they would most assuredly fail, as they do served to fail, as every Government had done for the last fifteen years, who had attempted a like project; and such was no great encouragement to any Minister to meddle with these matters. In 122 conclusion, he warned them against any interference with existing interests, or any tampering with that great system which had brought justice in life and death to the habitations of the people of England as cheaply as it could be done.
§ COLONEL SIBTHORPwould have thought it a more satisfactory course if the right hon. Baronet the Secretary for the Home Department had met the proposition of the hon. and learned Member for Kilmarnock—a proposition which he (Col. Sibthorp) would designate as another job—with a direct negative. He could not avoid thanking his hon. Friend the Member for the University of Oxford for the course which he had taken on the present occasion. The right hon. Baronet at the head of the Home Department had said that he would bring in a measure to meet the evils of which the other hon. and learned Member complained; but he could assure the right hon. Baronet that he would be as ready to meet with him and his measure as ever he had been, and he trusted the right hon. and learned Attorney General would also act in a similar manner, and join him in defeating such a proposition.
The ATTORNEY GENERAL, after: what had fallen from his right hon. Friend the Secretary of State for the Home Department, announcing to the House that this subject had been maturely considered, and that a Bill was prepared, and would be introduced at an early period next Session, should not have ventured to trespass on the attention of the House if he had not been alluded to, both by the hon. Baronet the Member for Oxford University, and the hon. and gallant Member for Lincoln, with regard to the opposition to which he had been a party when measures were introduced for the amendment of the ecclesiastical law. During last Session a question was put to him by the right hon. Baronet the Member for Dorchester, whether he was prepared, following up the course he had taken in opposition, to introduce any Bill on this subject? He then stated that his attention had been directed long before he was in office to this important question. He believed, if the matter were fairly and boldly grappled with, a measure might be introduced for the reform of the ecclesiastical courts which would be perfectly satisfactory to all parties. He was not now about to enter into the details of the proposed measure; 123 but let him not be misunderstood. The Bill to which he had in part objected on a former occasion, as being based on the principle of centralisation, did not necessarily form the groundwork or the measure which he should propose. The two main objections offered to that Bill were, first, that it did not go far enough in getting rid of what was supposed to be an objectionable part of ecclesiastical law, namely, a shifting jurisdiction in bona notabilia; and, secondly, many thought it highly objectionable, when they proposed to take the common law to every man's door, that they should remove the ecclesiastical law to London. It was perfectly possible to meet the views of those who joined on either ground in the opposition to that Bill. He only wished the House not to presume that because the previous question had been moved, the Government were pledged to that Bill, or to the principle of that Bill, which was founded on the principle of centralisation, and which gave a shifting jurisdiction where there were bona notabilia. The question involved matters of great complication and detail; but he could assure his hon. Friend that not only had he given much attention to this subject before he was in office, but that since he had been in office he had prepared a Bill upon it, and that this Bill would even now be produced, were it not certain that it would provoke much discussion at a time when other Bills were on the table which it was important should be carried as soon as possible.
§ MR. HUMEexpressed his concurrence with the resolutions proposed by the hon. and learned Member for Kilmarnock, particularly with the last of them. He wished the right hon. Baronet had allowed the resolutions to be affirmed; but it was satisfactory to find the right hon. Gentleman intimating a general concurrence in the opinions advanced by his hon. and learned Friend. He hoped that hon. Gentlemen who had come into the House since his hon. and learned Friend had delivered his speech, would read the details to-morrow, and see how important it was to put an end to family compacts or family parties in the administration of justice, and to the system of fees which prevailed in the ecclesiastical courts. There existed formerly separate courts in Scotland called consistory courts. A few years ago Parliament passed an Act by which all those courts were abolished, 124 and their jurisdiction was transferred to the common-law courts—an arrangement with which the people of Scotland were very well contented. He hoped, therefore, that Her Majesty's Government, would bring forward early next Session a Bill to transfer the jurisdiction of the ecclesiastical courts to the common-law courts of this country.
§ MR. AGLIONBYtook it for granted that the hon. and learned Member for Kilmarnock would pursue the course usually followed on similar occasions. Having received a few civil words from the Government, he would no doubt accept a few promises, and the whole matter would end in smoke. As he (Mr. Aglionby) foresaw, therefore, that he should have no opportunity of recording his vote, he wished to state openly what his opinions on the subject were. He agreed with every one of the propositions embodied in the Motion of the hon. and learned Member; and he should just like to know what would be got by avoiding a division. He believed, that unless the public forced measures on the Government, they never would proceed with them in the way which the national interests required. It would be better that the Bill spoken of by the Attorney General should be introduced during the present Session, because then it might be canvassed and discussed before the next Session of Parliament.
§ MR. HUDSONconsidered that the people generally were well satisfied with the ecclesiastical courts, because appeals from them were very rare. He should not, however, oppose any Bill which did not recognise the principle of centralising wills in London.
§ MR. W. P. WOODexpressed his thanks to the hon. and learned Member for Kilmarnock for the service he had rendered, not only in his clear and temperate exposition of this case, but for his having obtained the assurance on the part of the Government which they had just received. It was deeply important to the best interests of that portion of the Church to which he belonged, that some steps should be taken at once to remove the enormous grievances existing in the ecclesiastical courts. He believed that the Church had suffered great damage by the existence of the miscalled ecclesiastical courts, or courts Christian, a still worse misnomer. It was therefore his anxious desire that the really spiritual jurisdiction of those courts should 125 be placed once and for ever upon a broad and firm basis. In the matter of the administration of wills, the only reason in that case for ecclesiastical jurisdiction was papal usurpation. He thought it would be extremely desirable that the Bill which Her Majesty's Government had under consideration should be laid on the table, even though there should be no prospect of passing it during the present Session, in order that the matter might be fairly considered, so as to give them a hope of its being passed early in the next Session. It was precisely twenty years since he listened under the gallery to the speech of Lord Brougham, which, though of six hours' duration, was heard throughout with as much attention as speeches of a quarter of an hour of the present day. That speech was the foundation of a large number of legal reforms which had since taken place. One of the first effects of that speech was the establishment of a new court of appeal in ecclesiastical cases; but, with the exception of one other Act, which was passed in 1847, on the subject of certain peculiar jurisdictions—with those two exceptions, nothing had been done to reduce the continually increasing grievances of the ecclesiastical courts. It had been said that these courts gave satisfaction; but in cases of tithes and of suits for legacies where the ecclesiastical courts had a concurrent jurisdiction with the Court of Chancery—not the most popular court in the country—the Court of Chancery was almost invariably chosen by the suitors. To show the utter carelessness with which records were kept by the local ecclesiastical courts, he might mention that, some four or five years ago, a forged will was placed in the following manner among them. The person who forged it coolly took away the original will, and brought it home with him. By the aid of some chemical preparation he effaced the original writing, and inserted what he desired. Having done all this, he brought it back, and placed it among the records again. The fraud was not discovered until some contest arose respecting the will, and then a solicitor of one of the parties was sent down to examine it, when some of the original writing being traced, it was clearly proved that a gross fraud had been committed. Another proof—if proof was wanting—was a fact which came under his own experience. There were, at the present moment, on the records of several of the local ecclesiastical courts no less than sixteen forged transcripts 126 of registrations of baptism; and there could be no cause of wonder that such was the case, as every facility for fraud was given by the officials. If a person asked for the transcripts of baptismal registration, the whole bundle was thrown down to him upon a string, and then he was able to search for what he pleased and insert what he desired; and that this opportunity had not been neglected there was ample proof. He could speak upon this subject, as he was interested in convicting a party for a forgery of this nature, who was transported for seven years. This party tore out the original page in the parish registry, in order to furnish himself with secondary evidence for the establishment of his case. What rendered this negligence the more annoying, was the fact that there was no process at law whatever by which they could get rid of the forged documents. There they were, and there they would stay for ever; and the only way you can get rid of their effect is to convict the parties of forgery, in order to damage the estimation in which they might otherwise be held. He was of opinion that they ought to withdraw the jurisdiction of temporal matters from the ecclesiastical courts. He was not prepared to withdraw any local jurisdiction. He only desired that temporal causes should no longer be a matter of ecclesiastical jurisdiction. Let them make the jurisdiction wholly temporal. Let them give it to the county courts if it so pleased them; but at all events they ought to take good care that there would be faithful guardians over such important records. These were the only observations which he thought fit at that moment to make; but when the proper time arrived, there were many other suggestions which might be made upon the subject. He did think that it was all-important that the interests of the Church of England should no longer be mixed up with these courts, whose oppression was only equal to their inefficiency. He knew of a woman who had been locked up in the Ipswich gaol for a period of three years for a contempt of court in not paying costs of a suit; her crime consisted in her having said in a churchyard, "you stole my husband's frill." In conclusion, he would only express his trust that the Government would give their special attention to the subject.
§ MR. BOUVERIEAfter what has been elicited from the right hon. Baronet the Secretary of State for the Home Depart- 127 ment, and seeing the general temper and tone of the House upon the subject, I do not think it is necessary for me to put the House to the trouble of dividing.
§ Motion withdrawn.
§ Previous question carried.