HC Deb 05 July 1853 vol 128 cc1231-51

rose to move for leave to bring in a Bill to transfer the testamentary jurisdiction of the Ecclesiastical Courts to the Courts of Common Law and the County Courts. It might he in the recollection of many Members of the House that he some time ago moved for the appointment of a Select Committee to inquire into the whole of the jurisdiction of the ecclesiastical courts. Upon that occasion he attempted an explanation—feeble and inadequate, no doubt— of some of the principal defects and abuses of these courts. He on that occasion called the attention of the House to the nature of their jurisdiction, which he showed to be usurped, and to which they had originally no title. He pointed out that that jurisdiction was spread amongst many courts, such as archiepiscopal, episcopal, rectorial, peculiar, diocesan, and diaconal, amounting in all to not fewer than 372. It was often very difficult to define the limit of jurisdiction of each of these courts. On the last occasion on which he spoke on this question, he showed the inconvenience arising from the present law relating to bona notabilia, which occasioned the necessity of obtaining two, and even sometimes more than two, probates of the same will. He called attention to the defective machinery by which the business in those courts was administered, the cases being decided entirely on written depositions, and not upon the viva voce examination of witnesses. Those courts had no machinery for trying cases by jury. He showed that it was necessary to employ a proctor, and sometimes two proctors, as well as an attorney in them, and thus to incur double charges. He called attention to the enormous sinecures in those courts, by which vast amounts of money were paid to persons who performed no services whatever—some of those sinecure offices were filled by old men, others by women, and some by children, whose services were performed by deputies, and by deputies' deputies. He showed, also, that notwithstanding the vast sum which the public had for so long a period paid in respect of those courts, up to this moment there was no proper registration in the case of wills. The public had not that access to wills which they ought to have, and there was no adequate place for then-custody and preservation. Such were the defects in the present jurisdiction of wills, that litigation with respect to a will had often to be carried on in three courts at once—that was to say, in a court of common law, in the Court of Chancery, and in an ecclesiastical court. He reminded the House that commission after commission, and committee after committee, had sat upon those courts, and had uniformly condemned them. That a number of Bills had been introduced into that and the other House of Parliament, for the purpose of dealing with their abuses, but that by some influence or other all these efforts at reforming the ecclesiastical courts had failed. Although reforms had been effected in almost every other department for the administration of justice, the abuses of the ecclesiastical courts, which had been condemned for more than twenty, he might say fifty, years, resisted reform and improvement with the most extraordinary pertinacity and success. He ventured to say that the state of those courts was a reproach to the times in which we lived, and a disgrace to the civilisation of the age. Upon the occasion he referred to, his hon. and learned Friend the Solicitor General was pleased to say that he recognised in the statement which he (Mr. Collier) made nothing hut the acknowledged truth; and he understood that the Solicitor General, as well as his learned Colleague the Attorney General, concurred in the opinion that it was necessary to deal speedily and effectually with these enormous abuses. The noble Lord the Secretary of State for the Home Department stated that it was the intention of Her Majesty's Government to lose no time in cleansing out this Augean stable. Many Members took part in the debate, and not a voice was raised in favour of these courts, with the exception of that of his hon. and learned Friend the Member for Tavistock (Mr. R. Phillimore), who, with that judgment for which he was distinguished, did not venture to defend these courts, which he adopted as his clients, but simply spoke ad misericordiam. On that occasion, relying upon the assurance of Her Majesty's Government that they would bring in a Bill to deal speedily and at once with these disgraceful abuses, he (Mr. Collier), at the request of the Attorney and Solicitor General, withdrew his Motion, but with an intimation that if the Government were not prepared to deal with the question, he should think it his duty to proceed with his proposed measure of reform. He should state that since then a measure had been sketched out by the Solicitor General—a measure, no doubt, of a somewhat comprehensive character, with part of which he agreed, and from part of which he differed—with respect to these courts. He should have been extremely glad to have seen that measure introduced into that House; but he understood that Her. Majesty's Government were not prepared to proceed with any measure whatever on this question during the present Session. He did not say that for the purpose of throwing any blame on the Government. It might be there were impediments in their way with which he was not acquainted; but seeing they were not prepared to deal with the subject, he had resolved, though he knew it was too late to pass a measure through the House that Session, to propose his measure for their consideration. In doing so, he did not propose to go over the ground which he occupied on the last occasion; he had done with the abuses, and would now deal with the remedies. The Bill which he proposed to introduce would deal with the testamentary jurisdiction of these courts, and with the testamentary jurisdiction only. They had jurisdiction over many other matters, such as church rates, brawling in churches, and defamation; and he might be asked what he meant to do with the rest of their jurisdiction? His answer was, that no doubt every department called for the attention of the House, but that the testamentary jurisdiction was their great source of pabulum and nutriment; and it was believed that if they were deprived of that, all the rest of their functions would in the course of time cease. He could only say that if such a calamity should happen, the country, he had no doubt, would support itself under it with fortitude and resignation. It would be a melancholy pleasure, no doubt, to hear the hon. Member for Tavistock announce their funeral oration; but no man was better qualified than he to undertake that office for his clients. He (Mr. Collier) trusted that he proposed to deal with this subject in a straightforward manner. He saw no mode of effectually and thoroughly settling this question short of the abolition of every ecclesiastical court in the kingdom, and transferring all their jurisdiction that was of a useful character to the other tribunals, and having new and efficient ecclesiastical courts, if that were thought necessary, for the purposes of church discipline. The House was aware that the jurisdiction of these courts consisted in granting probates of wills and letters of administration with respect to the effects of persons dying intestate; that they decided all disputes as to the right of probate or right of administration; in other words, their jurisdiction might be shortly stated as comprising all disputes concerning the devolution of the personal property throughout the kingdom. Probate of wills applied to personal property only. At present disputes concerning the devises of real property were tried in the courts of common law in the shape of actions of ejectment, brought by the heir against the devisee, or vice versa, by actions for rents and profits, or by an issue of devisavit vel non directed by the Court of Chancery—for the Court of Chancery had hitherto considered itself incompetent to deal with those questions of fact which arise upon disputed devises, and had sent them to be tried by courts of common law. As the law now stood, if there were a dispute concerning the devise of personal property and real property, you might carry on the dispute as to the personalty in the ecclesiastical courts, and from them you might have to appeal to the Judicial Committee of the Privy Council; if you went into the Court of Chancery, with respect to a will, the Lord Chancellor might send you to a court of common law for the purpose of trying issues of fact as to a devise; the matter might be removed from the Exchequer Chamber, and thence to the House of Lords—so that you might have three processes of litigation going on at the same time. Now, he proposed to abolish the testamentary jurisdiction of the ecclesiastical courts altogether; and herein his Bill differed from that sketched out by his hon. and learned Friend the Solicitor General; for his hon. and learned Friend proposed to abolish all the courts except the diocesan. He (Mr. Collier) proposed to abolish them altogether. Then the next question was, what was to he done with this abolished jurisdiction? They must do one of two things: they must either give this jurisdiction to new courts to he created, or to an existing court, or existing courts. Now, the complaints which he had most generally heard were, that we had not too few hut too many courts; and he did think that the public had reason, before they were saddled with the burden of a new court, to demand satisfactory explanation, showing that the existing courts were not available for the purpose. He ventured to think that we had existing courts available for the transaction of all the testamentary jurisdiction of the country, in a manner entirely satisfactory, and with very slight modifications. In all questions of law reform, he thought it was of the utmost importance to adhere to established principles, otherwise our legislation would be but patchwork—our laws would be devoid of all harmony. Now, one of the most important principles in legislation recently recognised by the House and approved by the country, was, he thought, that of the local administration of justice—that of bringing cheap and speedy justice, as far as possible, to every man's door. For that purpose, before the county courts were established, a Commission instituted inquiries as to the most convenient divisions of the country for the purposes of the local administration of justice. Inquiries were made as to the situation of the large towns, as to the nature and extent of the population, and its distribution, the state of the roads, and other particulars; and the districts of the county courts were mapped out with a view to the convenience of the public. It seemed to him very desirable to adhere as much as possible, in all further local legislation, to those districts. It was very inconvenient to have many districts for the local administration of justice. We had too many separate divisions of the country already. We had districts of assizes, districts of sessions, districts of county courts, districts of bankruptcy commissioners, and districts of ecclesiastical commissioners. Now, the Scotch, he thought, had the advantage over us in that respect; for, as far as he was acquainted with that country, the divisions of the sheriffs' courts were divisions for all purposes, and certainly for ecclesiastical as well as civil purposes. It seemed, then, important to him to adhere to the districts of the county courts; and he proposed that all wills, respecting which there Was no dispute, should be proved in the county courts. He proposed to divide the country into districts, corresponding with the circuit of each county court Judge. Bach county court Judge went a circuit, comprising many districts, and he proposed to make that circuit a district for ecclesiastical purposes. He proposed that the will of every person who dwelt at the time of his death within the jurisdiction of the circuit of a county court Judge, should be proved in one of the county courts of that district. By that means, there would be a local administration of justice, and they would, at the same time, get rid of all the difficulties attending the law of bona notabilia. At present, if a man died possessed of goods above 5l., out of the diocese in which he died, probate had to be granted by one, and sometimes by both of the Archbishops. He proposed to do away with all this law of bona notabilia, which gave rise to great difficulties and expense, as it was difficult in some cases, such as those of a testator dying possessed of railway shares, canal shares, &c, to determine in what particular diocese or province they were situate. That extremely expensive and unsatisfactory system he proposed to do away with entirely, and to adopt a simple system—namely, that of proving a will in a certain ascertained district, within which the testator lived at the time of his death, and with respect to which very few eases of dispute were likely to arise. He proposed, also, to introduce a new system of registration—that was to say, he proposed that every will should be taken to a county court, and there registered; that probate of it should be granted, and that the original should be sent to a registrar general in London, who should have an office for the purpose of registering all the original wills in the kingdom, so that there should be no difficulty in finding any will whatever, by any person. That plan would remedy a very great defect in the present system. In order to carry out this system, he proposed that the county court Judge should appoint one of the present registrars of the ecclesiastical courts to some office which would facilitate the process which he (Mr. Collier) ventured to introduce. That plan would be attended with the advantage of enlisting experienced officers in the management of matters of detail; and, at the same time, of avoiding compensation for abolished offices. He proposed to extend this system of the proof and registration of wills to wills of real as well as personal property; and, he must say, that it seemed to him desirable that their course of legislation should tend, as far as possible, to an assimilation of the law of real and personal property. He had the precedent of the Bill of the Chancellor of the Exchequer to justify his (Mr. Collier's) assimilation of the proof of real to that of personal property. If that were done, the collection of the revenue would he greatly facilitated with respect to the duty upon the devolution of real and personal property. But the jurisdiction of the ecclesiastical courts, at present, might be divided into what were called the common and the contentious forms. The common form was that in which no dispute about the will occurred. He saw no reason of departing, in matters of small moment, from the principle already recognised, of trying disputes in the localities in which they arose. He accordingly proposed, where the property left by the will was of a certain amount—say about 300l.— that any dispute relating to it should be tried by the county court Judge of the locality in which the parties dwelt. To do otherwise—to compel a party, in all cases where the dispute was very small, to try his case in London, would be, in fact, to close the doors of the courts of justice against a man. Where the property was small, the property was never worth litigating. It frequently happened that, where the property left was small, and a family dispute arose, the case was never submitted to a court. If the family should be so foolish in those cases as to go to law, the consequences were ruin to all, and probable fraternisation in gaol. He therefore thought that he ought to propose that, with respect to contentious jurisdiction in all matters under 300l., the county court Judge of the district in which the claimants resided, should have jurisdiction in matters of wills. He proposed also to give to the county courts equitable jurisdiction in all matters below 300l. He knew it was said that county court Judges were incapable of exercising such jurisdiction. He had read a pamphlet which had been published by the proctors of Doctors' Commons with reference to the proposed reform of the ecclesiastical courts. They set forth that the difficulties and perplexities connected with the proceedings in Doctors' Commons were so great as to make it utterly impossible for any other body of men to transact the testamentary business of the country. According to those gentlemen, all the routine business which was transacted with the greatest ease by the practitioners in Doctors' Commons, was such as to entirely overwhelm men of ordinary understanding. They spoke as if the most serious and fatal consequences would accrue to England if any interference were made with the proceedings in Doctors' Commons. According to their statement, Doctors' Commons was one of the most vital institutions of this country—one without which this country could scarcely preserve its existence. If their statements were true, neither a Russian nor a French invasion, nor the loss of our Indian empire, could operate half so prejudicially to England as an invasion of Doctors' Commons. Now, he ventured to think that the difficulties of the administration of justice in those courts had been greatly exaggerated. It was very easy to puzzle the uninitiated with technical statements and difficulties; but he ventured to say, that if any half-dozen of attorneys or barristers set their heads together, they could produce cases full of technicalities quite as puzzling to the unintiated as those on which the practitioners of Doctors' Commons prided themselves. He believed that the county court Judges could with ease transact the business that he proposed to transfer to them. He had consulted some of the most eminent of the county court Judges on this subject—men who stood high in their profession—and they were unanimously of opinion that the county court Judges were perfectly competent to this jurisdiction. And in making this proposition he was only proposing such a system as had been already adopted in the courts of Scotland. In Scotland the jurisdiction of the commissary court had for many years been transferred to the Court of Session, and he had yet to learn that any difficulty had been experienced by that court in the transaction of the business. In the United States of America, the same principle was in operation; and in our own country down to the time of the Conquest the county courts had this jurisdiction. He had every reason, then, to believe that this jurisdiction might be exercised with perfect satisfaction by the county court Judges. But it was unquestionably necessary that some superior court should have jurisdiction in cases where the amount claimed was considerable, and for the purpose of revoking probates that might have been improperly granted; and for the purpose of appealing against the decision of inferior courts. The question then arose whether the jurisdiction should be given to the courts of common law or of Chancery. That was a very serious question. He proposed to give this appeal to the courts of common law, and he would shortly state his reason for making that proposition. In the first place, the courts of common law could exercise this jurisdiction without imposing the burden even of another shilling upon the country. No additional Judges would be required, and scarcely any additional expense. The county courts had, of course, abstracted a great deal of business from the superior courts, and the Judges of the latter courts, had in consequence a great deal of time left on their hands, and they would be ready and willing to devote it to the transaction of this kind of business. It could hardly be said that these Judges were incompetent to transact this business, because several of them were already Members of the Judicial Committee of the Privy Council, and as such sat to hear appeals from the ecclesiastical courts. Whether, therefore, he considered the amount of business before the courts of common law, or the experience of the Judges of those courts, he thought he was justified in proposing that they should have jurisdiction in wills where the matter in dispute was of considerable amount. He agreed that expense was not the only object, but that the question was, whether this species of jurisdiction was adapted to the courts of common law or not. The questions which arose before granting probate of a will were such as these:—Was the testator sane at the time of making the will?—Was any fraud or undue influence exercised over him?—Was the will properly executed? As the law at present stood, these questions would be decided in the ecclesiastical court, without a jury, and upon written interrogatories. But, with respect to real property, these questions were now decided by the courts of common law in actions of ejectment and issues of devisavit vel turn. He, therefore, proposed to retain in the courts of common law the jurisdiction which they now possessed to try the validity of devises of real property, and to give them also the jurisdiction possessed by the ecclesiastical courts in the matter of personal property. Moreover, it should be borne in mind, that the Judges visited the provinces twice in the year, and that constituted an important consideration. It was a matter of enormous convenience that persons residing in distant places, as Northumberland or Cornwall should have an oppor- tunity of having these cases tried on the spot, without incurring the expenses of a trial in London. There were other reasons why the courts of common law would be peculiarly qualified to exercise this jurisdiction, because the Court of Chancery had hitherto declined it, on the ground that all those questions respecting the validity of devises were questions of fact for a jury and a common law court to decide, and that it would be a serious inroad on the constitutional practice of the country for a court of equity to decide upon such disputed questions of fact without the intervention of a jury, and with the examination of witnesses viva voce in open court. He was one of those who thought that suitors ought to have the option of having their causes tried before a single Judge, with or without the assistance of a jury; but if the Court of Chancery was to do hereafter what it did at present—namely, send these questions to be tried by a jury, he asked why should they not send them at once to a court of common law, without requiring the suitors to take a circuitous route and to pay a double toll? But it might be said that the Court of Chancery, having the power to construe a will after it had obtained probate, ought, on the principle of the fusion of jurisdiction which was now so much in vogue, to try all questions subsequently arising with respect to that will. Now, by fusion of jurisdiction, he did not understand that any suitor was to say at his own option that his case was to be tried in one court or another, thus disregarding the careful principle of a division of labour; but he understood by it that, when a court had cognisance of a matter, it was to take full and complete cognisance of such matter. As an illustration of the inconvenience of the existing system, he might mention the case of the bellringing at Clapham, "Soltau v. Du Helde," in which the Lord Chief Justice said that he could give damage for the nuisance occasioned by the bellringing, but he had no power to restrain it by injunction—for which remedy the party must go to the Court of Chancery. But his principle did not trench on the principle of the fusion of jurisdiction; for it was one thing to try whether a will was valid, and another to decide on its construction and to administer the assets under it. The questions which he wished to refer to the courts of common law to decide were questions of fact, similar to those which fell within its ordinary jurisdiction; and he would leave to the Court of Chancery still to deal with all equitable questions relating to the administration of assets, and all questions of construction. By this course he believed that he should be carrying out the sound principle of fusion. He had stated the provisions of his measure thus fully, because he wished that all the Members of the House should take an interest in thoroughly understanding questions of law. There was no reason why law should be a mystery. He remembered the memorable words of the Master of the Rolls in that House, who said that he saw no reason why any proposition in respect to jurisprudence should be so abstruse that a man of ordinary apprehension could not understand it; that when points of law were very abstruse they were not very valuable; and that many of the technicalities by which the law was surrounded were merely kept up for the purpose of creating costs. Consequently those who wished to reform abuses were desirous of making the case thoroughly understood. He (Mr. Collier) feared that during the present Session nothing would be done in the shape of law reform. A report from the Common Law Commissioners had recently been presented, which was of the most satisfactory character, and for which the country was mainly indebted to the enlightened services of the Attorney General. In that Report the Commissioners took the true direction of law reform, and recommended that the superior courts of common law, which anciently had an equitable and legal jurisdiction (and their equitable jurisdiction they ought never to have parted with), should have an enlarged jurisdiction conferred upon them, so as to enable them to administer full and complete justice in every case brought before them. It appeared then to him desirable to give to the superior courts of common law complete jurisdiction where the matter was above 300l., and the power of hearing appeals from the inferior courts. He would now advert to some other provisions of his Bill. He proposed to add to each county court an officer, to be called the Clerk of Probates, appointed from the experienced officers of the present ecclesiastical courts, and by this means a large amount of compensation would be saved. He also proposed to consolidate the whole metropolitan county courts districts into one Court district for the purposes of this Bill. It would no doubt be necessary to make compensation to those officers who were deprived of office; but he did not think that Parliament would be justified in giving com- pensation to mere practitioners—to the civilians, and proctors, who, he believed, from their learning and experience, would follow this jurisdiction wherever it went, and whose assistance, he was persuaded, would be eagerly sought after by the suitors. He proposed to give the proctors the power of practising as solicitors and attorneys in any superior court in the kingdom. He would not trouble the House by going through the minor points of his Bill; but he must express his hope that he had made his statement intelligible. It might be said that this was a somewhat sweeping measure; but he did think that the time had come when sweeping measures of law reform were absolutely necessary. Within the last few years they had had many large and sweeping measures of reform—reform in our representative institutions, which he trusted would be followed by a larger instalment of reform next year —reform in our municipal institutions— reform in our financial and fiscal systems; and he hoped that a sufficient Bill for the future government of our Indian empire would be passed during the present Session: but all our efforts in the cause of law reform during the same period had been little better than patchwork. He knew that the country did not take the same interest in matters connected with the administration of justice as in the; grant to Maynooth, and the reason was that those who were inclined to agitate: were not acquainted with the subject, and those who were acquainted with the subject were not disposed to agitate. The cause of law reform had never had its Covent Gardens or Exeter Halls; and he said it would be creditable to the Legislature if it were to deal with these questions without any pressure from without. Law reform had been left almost entirely in the hands of lawyers; and though it could not be said that they had disregarded it, he was afraid that the legal mind generally laboured under a malady which he might describe as an undue preponderance of the Conservative element—too great an attachment to forms and precedent; and the con-sequence of this was, that the machinery by which the administration of the law in! this country was carried on, had become more inconvenient and cumbrous than was known in any other country. What was old was retained, and what was new was joined on to the old, and many parts of the machinery were so clogged by the accumulation of dust and rubbish from the middle ages that courts of equity were often obliged to intervene to restrain the common law courts from doing what would be positive iniquity. The suitor in equity was often compelled to resort to a court of common law—the suitor at common law was often compelled to resort to a court of equity; and here there was a third system —that of the ecclesiastical—which possessed none of the advantages or recommendations either of a court of equity or of a court of common law. Many men applied themselves to the study of the common law, the ecclesiastical law, or the equity law, separately; but few applied themselves to the study of the laws of England as a whole, and, though they had a number of good lawyers, they had comparatively but few comprehensive jurists. He did trust, then, that Parliament would deal with this matter, and that his learned Friends the Attorney General and Solicitor General would be prepared, if not in the present, at any rate in the next Session, to take up the question. In conclusion, he would venture to suggest to the noble Lord the leader of that House, whose name was associated with so many measures of reform, that there was the new and untrodden field of law reform before him, in which trophies were to be won as honourable as any of those which he had heretofore gained. The hon. and learned Gentleman concluded by moving for leave to bring in his Bill.


seconded the Motion, saying that the speech which had been made on this subject some time ago by the Solicitor General had given the greatest satisfaction; but as no measure had been introduced by the Government, he hoped that the House would give its best consideration to the measure of his hon. and learned Friend (Mr. Collier), as well as to the clear and able statement by which he had introduced it.

Motion made, and Question proposed— That leave be given to bring in a Bill to transfer the testamentary jurisdiction of the Ecclesiastical Courts to the Courts of Common Law, and to the County Courts.


I have listened with the greatest pleasure to the speech made by my hon. and learned Friend in moving for leave to bring in this Bill. Indeed, I may say that this House must be anxious to see the results of the workings of a mind which has showed itself so capable of maturing the whole of a most difficult and complicated subject; for my hon. and learned Friend has proved by his speech that he has dived deep into the recesses of the whole matter. At the same time, my hon. and learned Friend has, I think, shown in the able and comprehensive speech which he has made, that the subject is exceedingly complicated, and full of very considerable difficulties. My hon. and learned Friend said that there is this peculiarity with regard to law reform, that we have had no Covent Gardens or Exeter Halls to agitate on the subject—that the public mind seemed to be careless in regard to it. I think that fact, which is not to be questioned, does in some degree afford a proof that there is some mitigation of the deficiencies which exist in our legal system; for it is plain, if the ultimate results obtained by the administration of the law in this country were not substantially sufficient, there would be then Exeter Hall and Covent Garden meetings crying out for great comprehensive and speedy changes. I think it, therefore, fair to infer from that fact that the ends of justice are generally well and effectually obtained. But this does not affect the fact that these very ends are arrived at by circuitous and thorny paths, through sloughs and quagmires and delays, during which people often break down, and others pass a great portion of their lives without accomplishing any result; and the fact that justice is obtained in this way is no reason why we should not apply a remedy to evils which have been so clearly and so comprehensively pointed out. I can assure my hon. and learned Friend that Her Majesty's Government are not less sensible than he is, I will not say of the expediency, but of the necessity, of applying practical remedies to those evils; but I think he has shown to all those who have listened to his able and admirable speech, that this branch of the subject is peculiarly full of difficulty. It is said that right is a single thing, and that wrongs are multifarious; but here the wrong is single, and the remedies must be multifarious; and this being the case, it is clear that Her Majesty's Government would not be justified in dealing with the matter without very great deliberation, and without perfectly satisfying themselves that the remedies proposed are the best which, in their judgment, can be applied. I have stated on a former occasion that Her Majesty's Government intended to propose a measure. The time of the House, as everybody must know, has hitherto been so fully engaged with other topics, that it would have been utterly impossible for us, even if we had had it prepared, to have launched it with any expectation of carrying it through Parliament during the present Session. Besides, a Commission was appointed by the late Government to consider this subject; and as it is hopeless to bring in a Bill this Session with any chance of its passing, Her Majesty's Government, under the circumstances, have thought that it would be better to wait for the report of that Commission, which, no doubt, would throw considerable light on the subject. All that I can is, that if a measure has not been proposed by the Government, it is not from any indifference on the subject, or from any change in our intentions with respect to this matter; but it has arisen, first, from the great pressure of public business in this House; and, next, because we thought it better, rather than laying a Bill on the table, and letting it stand over until next Session, to delay proposing any measure until we had the benefit of the report of the Commissioners, and the leisure which the recess affords for deliberately weighing the propositions which it may be our duty to submit to the House. The Government agreed most frankly to the bringing in of this Bill. I therefore beg to assure my hon. and learned Friend that I trust Her Majesty's Government will he able themselves, at an early period of next Session, to propose some measure on this subject which will be calculated to correct the evils which he has so fully and so ably pointed out to the House.


thought the country had just reason to complain of the grievous annoyance and inconvenience to which it was subjected, in consequence of the existence of those evils to which the hon. and learned Gentleman (Mr. Collier) had alluded; and he regretted that so long a period had elapsed without the introduction of any measure on the part of the Government. He was grieved to say that the confidence of law reformers generally in the present head of the law was not so great as in his predecessor. He must say for himself and his constituents that great confidence was placed in the late Lord Chancellor, but that an equal confidence was not felt in the present one. He must further observe that the country was much disappointed that the scheme of law reform, so ably indicated by the present Solicitor General, had been laid on the shelf; and he believed the fault did not lie with the Solicitor General, who found himself fettered, and could not perform the promise which he had conditionally made to the House. He feared that hon. and learned Gentleman could not afford to him that aid which he would he otherwise disposed to give, in carrying through that small measure which stood on the paper for to-morrow. The question of law reform was one of the greatest importance —it was one which involved an immense amount of property; and it could not be denied but the present state of the law inflicted losses and inconvenience, not only on the owners of large properties, but on small properties, to an incalculable extent. It affected the whole personal property of the country — funds, railway shares — in fact, hundreds of millions. He felt sorry that the measure of the hon. and learned Member for Plymouth would not afford any relief to Ireland or Scotland—it simply related to England and Wales. He would just mention a few cases to show the evils of the existing system. In one case, where four members of one family died in five years, the executor was obliged to prove the wills in York, Canterbury, and in Ireland, and to take out confirmation in Scotland—ten probates and two confirmations were obliged to be taken out in five years on account of that one family. In another case, where a testatrix had 580l, in the funds, the cost of the probate, including 11l. duty, was 60l. He had lately received a letter from a highly respectable gentleman relative to a property wholly in Cheshire. It appeared that an Act had been passed for amalgamating a railway with the London and North Western; and after taking the first probate, it became necessary to prove a second time, to enable him to give a title to the shares in consequence of the amalgamation, and the principal office having been removed from Manchester to London. In a case which occurred at Sheffield, two administrations to recover property of the value of 50l., cost 22l. In the case of one small estate in Ireland, the proofs exceeded the value of the property. In another case, a testator died, leaving property under 100l. in value; but it being necessary to take out probate in Chester and Canterbury, the cost was nearly 20l. In one case with which he was acquainted, the cost to recover 25l. was 20l.; and in another case the expenditure attached to the probate at Canterbury exceeded the amount of the property. He would like to hear something from the Government a little more specific than they had yet heard; and he also desired to know when the promised report of the Commission would appear, and whether the public might be assured that in the next Session of Parliament a measure would be brought forward, by which those intolerable grievances would be remedied. The country had a just claim on the Government to remove those annoyances, inconveniences, and caprices, since a new system of fiscal regulations was to be imposed, by which increased revenue was to be derived from the property affected by these courts. It would gratify the public if the Government would state their intentions, so that they might inform their constituents on the subject.


said, as his noble Friend the Secretary of State for the Home Department had assented to the proposition of the hon. Gentleman to bring in this Bill, he would not now take up the time of the House by offering any very extended observations on this subject. Still he must say one or two words on the general question. When his hon. Friend the Member for Plymouth brought forward a Motion on a former occasion, and moved for a Committee to inquire into the abuses of Ecclesiastical Courts, it was objected that in 1850 a voluminous report with the evidence was laid before the House, which went so fully into this question; that it was almost impossible to conceive any further inquiry was either necessary or expedient. His noble Friend had truly said that this was a very complicated subject; he (Sir B. Hall) thought that that was the very reason why the Government themselves should have brought in a Bill in preference to allowing an independent Member to undertake a task so important. With reference to the Commission which was now sitting, no statement had been made by any Member of the Government as to when that Commission would be likely to make a report; and, consequently, they did not know whether they would have time to consider that report previous to the introduction of a measure by the Government during the next Session of Parliament. But from what had fallen from his noble Friend, he thought it possible that that report would be made before the end of the present Session, or, at any rate, during the recess, so that there would be time to consider a Bill before Easter next. The hon. Gentleman had said truly, that although the public mind had been attracle to the subject by the statements continually made in reference to those abuses, no great meetings on the question had been held in Exeter Hall or in Covent Garden, as when other points of great magnitude had been brought before the House; and his noble Friend, in alluding to this statement, had come to the conclusion that the ends of justice had been, generally speaking, attained. But the abuses of these courts had attracted public attention, and many other great abuses had been reformed without such meetings; and was it to be supposed that these meetings must be invariably held before they were to expect the reform of public abuses? If such an announcement was to be made by a Minister of the Crown, he (Sir B. Hall) would undertake that Exeter Hall and Covent Garden, and Drury Lane as well, could easily be filled to discuss that subject in a week. But when his noble Friend said that the ends of justice had been attained, he would call his attention to a recent correspondence which had taken place between the Bishop of Bath and Wells and Archdeacon Denison. It appeared, so far as his memory served him—and he regretted that he had not brought the papers down to the House—that the Archdeacon intimated to the Bishop his desire that some question, in reference to ecclesiastical discipline, should be considered by the Ecclesiastical Courts; and the Bishop replied, that while he should be happy to see the question tried before these courts, and that he would offer every facility for that purpose, the expense of a cause before these tribunals would be so great that it would be impossible for him to undertake it, even in a question of so much importance to the Church. Such a statement coming from one of the dignitaries of the Church—one who was to some extent the president over one of these courts, and had the appointments of its officers, ought to show the Government the necessity of bringing in a Bill so necessary to the interests of the laity, that the subject might be fairly considered, and that the expenses might be duly diminished. In order to show that the attention of the public really was very much attracted to these abuses, he would quote one or two statements from a paper which had been extensively circulated by hundreds and thousands, and several copies of which had been sent to him, which included an extract from a return which was laid upon the table of the House in the spring of last year, and which set forth the enormous sums received by the various officers holding sinecure appointments in those courts. The effect of these sinecures was to render the administration of justice so expensive, that in the case just referred to, the (bishop himself was compelled to abstain from trying a question of the very greatest importance to the interests of the Church. There was one case which particularly excited public attention —he might almost say disgust—it was stated in that paper that one individual, whose name was mentioned, had held his sinecure office fifty-three years, during which period he had received 577,399l. In the diocese in which he (Sir B. Hall) resided, there was a rev. gentleman, of whose name he had never heard, at any rate for the past forty years—the Rev. R. Watson —who was appointed at the age of five years registrar of the Ecclesiastical Court. He was the son of a bishop, and had held his office for fifty-nine years, and received altogether from that sinecure office 40,803l.; and, not content with that, the right rev. Prelate, his father, got him appointed to a registrarship, also a sinecure office in this diocese, at the age of eight, and this he had held for fifty years, and received 27,720l. from this source for literally doing nothing. There was another who had received a similar sum in the diocese of Norwich—a diocese in which there were some of those appointments well worthy of the consideration of the House—a Mr. Bathurst appointed at the age of six; he had received 13,600l. from his office. There was also the Rev. E. Bathurst, appointed at the age of ten years, who had received from a similar appointment 38,000l.; another in the same diocese had received 16,800l. The paper showed that the total sum received by sinecurists, according to the returns presented to that House, for offices in connexion with these courts, for which they had done nothing whatever, was 1,146,128l. 14s.9d.


These are living sinecurists?


replied in the affirmative, and added that they were now going on receiving the money, and doing no duty whatever. The paper, however, from which he read these extracts was very incorrect as regarded the total amount; for it appeared to have been drawn up before the remainder of the returns ordered by the House had been presented; and, consequently, the sum of 1,146,128l. fell very far short of the whole sum which subsequent returns prove to have been received by the sinecurists. The hon. Baronet con-eluded by expressing a hope that some full, comprehensive, and efficient measure would be introduced to correct these abuses.


said, there was one thing on which he took it they were all agreed, both in that House and out of it, and as to which even Doctors' Commons hardly ventured to raise a; dissenting voice—namely, that the jurisdiction of the ecclesiastical courts in matters testamentary did require great and complete-reform. But, on the other hand, it must be admitted that the mode of carrying out that reform was a matter of considerable difficulty. Whether they should establish one single court apart for the purpose, with all proper guarantees for a good and simple system of procedure, the evidence being taken in the manner in which it was taken in the courts of common law, was one question. On the other hand, whether they should transfer the jurisdiction to some other court, and, if so, whether to a court of common law or to a court of equity—the one possessing a peculiar aptitude for the trial of wills, the other having better machinery for the administration of the property of a person deceased, was another question. At the same time, he did not mean to say that was not a question with which the Government might perfectly well grapple; but it did so happen that there was sitting at that peculiar conjuncture a Commission of persons of very great ability; and, under these circumstances, it was deemed better to wait until they had reported the result of their deliberations, and to see what measures they might recommend to the consideration of Parliament. They had been led to suppose that the report was on the eve of publication; and the moment it was before the House it would be the duty of the Government to turn their most anxious attention to the subject. In the meantime, the House would agree with him that they and the country were largely indebted to the hon. and learned Member for Plymouth (Mr. Collier) not only for having brought the subject for ward, but for the care and attention which he had bestowed upon it, and the singular ability with which he had placed it before the House. Every one must rejoice at the manner in which the subject had been discussed and ventilated; all were agreed on the necessity of some measure, and he trusted that another Session of Parliament would not pass over their heads without a great reform on this subject.


said, that as far as Scotland was concerned, they already possessed a speedy and cheap mode of administering justice in these matters by means of the Sheriffs' Courts, and he was happy to say that they did not require any measure on this matter 'for that country.


thanked the hon. and learned Member for Plymouth for introducing a Bill to remedy these abuses, which would prove a great boon to the commercial portion of the community.

Leave given.

Bill ordered to be brought in by Mr. 'Collier and Mr. Hume.

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