§ MR. COLLIER
said, he rose to move for a Select Committee for the purpose of inquiring whether the Ecclesiastical Courts might not be advantageously abolished and their jurisdiction transferred to other existing tribunals. He had not given notice of the Motion till the intentions of the Government had been announced from the highest authority; and if that announcement had been as satisfactory with respect to the Ecclesiastical Courts as it had been in reference to the Law Courts and other subjects, he, would not have meddled with the question. But he understood the Government intended to wait till a Commission, appointed just before last Christmas by their predecessors, and which was only intended to inquire into the testamentary jurisdiction of those Courts—which had been inquired into over and over again, and uniformly condemned—had made its Report. The material point to consider was, what was to be done with the rest of the jurisdiction; and, inasmuch as the Commission could not settle that matter, it seemed far better that a Committee of that House should take the whole subject into their consideration. He might at the same time observe, without the slightest intention of disparagement to the Commission, that it might have been more satisfactory to the branch of the profession to which he belonged, and to the public in general, if the legal members of it had not consisted entirely of Chancery barristers and of civilians practising in the Ecclesiastical Courts, the latter of whom it was not too much to suppose somewhat in favour of the proceedings of the Courts in which 852 they practised, and with respect to whom it might justly be said, they were likely to enter upon the inquiry with some prejudice. Now, he ventured to say, that of all the abuses at present existing in this country, there were none at all comparable with that of the Ecclesiastical Courts. There was already, curiously enough, a system existing in which law and equity were administered in different courts and by different Judges; but that a third system of administering justice—a third series of Courts, with doctors and proctors, clerks of the seats and deputy clerks of the seats, surrogates, apparitors, deans and judges—should exist also, was a reproach to the civilisation of this country. These courts had, with the most wonderful success and pertinacity, resisted hitherto every attempt to reform them. While the Chancery Courts and the Courts of Common Law had been reformed and amended, these Ecclesiastical Courts, which had been reported upon over and over again, and had been condemned whenever they were reported on, still subsisted without the smallest change. Not to weary the House with reference to ancient times, in 1830 a Commission of practitioners and Judges in these Courts was appointed, who, after examining as to the whole system, reported strongly in condemnation of them; but the measure they proposed was extremely inadequate, as it was only to abolish them all except the Archiepiscopal Courts of York and Canterbury. But in 1834 the Real Property Commission proposed that all these Courts should be, without exception, entirely abolished. In 1845 a Committee of the House of Lords, after finally considering the subject, reported that the testamentary jurisdiction of these Courts ought to be abolished; and a Bill was carried through the Upper House for the purpose of substituting a central tribunal for probate and administration of wills. Very possibly, if the County Courts had then existed, the Lords would have transferred a considerable portion of that jurisdiction to them. This and several other measures had been introduced into this House, but, by some influence or another, had been uniformly defeated. A Committee, appointed so lately as 1850, had reported in terms of the most unqualified condemnation of the whole system of these Courts. The Irish Ecclesiastical Courts likewise had been inquired into by a Committee, over which the present Solicitor General for Ireland had presided, and they 853 had reported as strongly against them as the English Committees and Commissions had reported against the English Ecclesiastical Courts. Now, the question to be considered on the present occasion was, if it was worth while to stop short with the testamentary jurisdiction of those Courts, or with any measure short of an entire abolition of them? Let them see what the jurisdiction of the Ecclesiastical Courts was; and, first, their jurisdiction in cases of wills and administrations of estate. This jurisdiction had been usurped origin ally, for our Saxon ancestors had been in the habit of settling all questions of that kind in the old County Courts; nor was it till the time of the Normans that the ecclesiastics contrived to seize on this jurisdiction over the effects of the deceased. The reasons assigned for their seizing these powers would probably amuse the House. It was said that an ecclesiastic, being commonly "in at the death" of the testator, would know his intentions better than any one else, and that if that was nut the case, he would at all events know what the testator ought to have meant, and would determine that his property should go in pios usus, or that, being more conscientious than a layman, he would take more care his estate should be devoted to the payment of his debts. But it appeared these anticipations were not altogether realised, for the ecclesiastics took possession of the estates themselves, and deprived widows, and children, and debtors of their rights, contriving to appropriate all the effects of the intestate to their own uses. In the great charter of John, an attempt was made to prevent this practice, but it did not succeed, nor did a subsequent provision to the same effect; so that it was not till the reign of Edward I. that a statute was passed, requiring the ecclesiastics to distribute the effects of the deceased to the creditors, nor till the time of Edward III. that that object was really effected and carried out. What was more to the point, however, was, how was the jurisdiction of these Courts administered at the present day. In this country there were no less than 372 Ecclesiastical Courts. They consisted of Archiepiscopal Courts in York and Canterbury, of Diocesan and Diaconal, and Archidiaconal Courts in each, of Prerogative Courts, and Courts of Arches Now, in the first place, it was difficult to decide in what jurisdiction a man died, so that probate should be taken out to his will or administration to his effects in the pro- 854 per Court. Suppose, for example, probate was taken out in Exeter, but it turned out that the deceased was possessed of bona notabilia above the value of 5l. in any other diocese, the probate was utterly void, and an action could be maintained against the executors on the probate by showing there was 5l. of bona notabilia in another diocese. The consequence was, that in general it was necessary to obtain probate in the metropolitan Prerogative Court, which was attended with great expense and inconvenience. If, however, the deceased had bona notabilia in another province, the executor must go and get a probate in the Prerogative Court of that province also. Moreover, that probate was of no use in either Scotland or Ireland. Now, considering the great increase of personal property, and the doubts which existed as to the exact nature of bona notabilia, it was desirable that a person should be enabled to have perfect security in taking out probate—a security which could not now be had. Such a state of things appeared to demand inquiry. But, even in obtaining probate, supposing it to be secure, there was great expense. One had to pay in most cases not only an attorney, but a proctor; then came the fees charged by the various officers; and, in order to show what these were, he would read an extract from a return moved for by the hon. Baronet the Member for Marylebone (Sir B. Hall), with respect to the Prerogative Court of Canterbury. He would take the year 1849. First came the judge, Sir Herbert Jenner Fust, whose income was 3,904l. 13s. 8d. Next came the registrar, the Rev. Robert Moore. It appeared that this gentleman, the Rev. Robert Moore, received for the duties of this office no less a sum than 8,265l. 17s. 4d. a year. As to this gentleman, he was informed he had never performed a single duty connected with the office, but had discharged the duties of his various employments, which had for the last thirty years yielded an average of 8,000l. sterling per annum, by deputy. In the course of that period the Rev. Robert Moore had received an income of not less than 300,000l., without having performed one service attached to his office. Why, it was only last night that they had heard a long debate, and a discussion which lasted a considerable time, merely on granting a pension of 700l. a year to a gentleman whom all agreed to have performed important services with advantage to the country. How was it, then, that this mon- 855 strous sinecure, a greater than which had never existed in this country, should have endured so long? Without the slightest disrespect to the hon. Member for Montrose (Mr. Hume), he must express his surprise and wonder how he had been able to sit quietly and endure it. [Mr. HUME: I brought the case forward twenty-five years ago.] Why, that made his case against the hon. Gentleman the stronger. If the grievance had provoked the hon. Member twenty-five years ago, why had he allowed it to go on ever since? Besides this great sinecurist, there were the Archbishop's registrars, three in number, with 2,322l. 12s. a year; then came the three clerks, who in 1849 enjoyed an income of 833l. 12s. In 1850, however, for some reason or another, these clerks' incomes were reduced to 85l. 17s. 2d. each. Now, these were the men who did all the business. Such being the incomes paid to the officers of these Courts, the least the public had a right to expect was, that there should he decent accommodation for the wills in their charge, and that they should be kept in secure places. The Reports which had been laid before that House, however, showed that the records and muniments of one Court were kept in a room close to a carpenter's shop, and over a yard filled with billets of wood and shavings, so that they would all be destroyed if a fire took place; they were placed in bad, damp rooms, and up to the present moment no proper place had been provided for their custody. Besides, the registry was conducted on such a system that it was almost impossible to find a will' where it ought to be. A will could not be found by a rich man without considerable expense; to a poor man it was impossible. These Courts were destitute of all perfect jurisdiction—they could not pronounce final judgments in many cases—they could not try by jury, and, being unable to examine witnesses vivâ voce, the result was, that they caused great expense to the parties by taking evidence on interrogatories. They had also no power to order the administration of an estate, nor to order trustees or executors to pay legacies—powers which the Court of Chancery had. The Ecclesiastical Courts could take a bond from an administrator for the duo administration of assets, but they could not enforce that bond, for payment of which recourse must be had to the Courts of Common Law. The House would further observe that all the jurisdiction of 856 which he had been speaking related to wills of personal property, for the Ecclesiastical Courts had no power to deal with wills devising real property, which was a great defect in the administration of the law. The consequence of this was, that a will could be contested in three Courts at once, and he would state a case which recently occurred as an example of this:—A gentleman in Devonshire died about three years ago, leaving to his widow, to whom he had been much attached, a handsome provision of between 200l. to 300l. a year. His will was contested on the ground that he was insane when he made it; but the Court came to the conclusion that he was perfectly sane at the time. Meantime, the estate had got into Chancery. Six years afterwards a jury was empanelled at Exeter to say whether the man was insane or not. They found him sane, and that he had been sane all his life. Now here was one will which became the subject of litigation in the Ecclesiastical Court, the Court of Chancery, and the Court of Common Law; and the widow, for whom the testator had made an ample provision, was imprisoned in consequence of the ruinous costs of these proceedings. The County Courts had been tried and had been found satisfactory, and there was no sound reason why Parliament should not intrust a portion of testamentary jurisdiction to them. He would suggest that probate should be granted within the jurisdiction of the County Court in the district in which the testator resided at the time of his death, without reference to the question of bona notabilia, and that one probate should do for all parts of the United Kingdom. It seemed to him, also, that the County Courts might be intrusted with jurisdiction over wills involving property to any amount if the parties chose to submit to that jurisdiction; but if more than 300l. were at stake, jurisdiction in disputed cases should be given to other Courts; and the question was, whether it should be given to the Courts of Common Law or of Chancery. It seemed to him more desirable to give that jurisdiction to the Courts of Common Law, because, for one reason, those Courts exercised their functions locally, while the Judges were on circuit, which was a great convenience to the suitors, and because the Court of Chancery at present had its hands full, and any increase of business would render necessary an increase in the number of Judges; whereas, if he were rightly informed, the Common Law Judges 857 could perform the additional functions which would devolve upon them without any additional assistance. It would be very desirable for County Court Judges to have an equitable jurisdiction where estates were under a certain amount. At present, in cases where the estate was under 500l. in value, it was never worth while to go into Chancery; and he would therefore give a summary equitable jurisdiction to the Judges of the County Courts. He had a further suggestion to make relative to the instrumentality of the County Courts with respect to registration. One of the great desiderata of the day was a proper system for the registration of wills; and what he proposed was that the will should be taken in the first instance to the registrar—the Judge might appoint one of his clerks to the office—of the County Court in the district of which the testator dwelt at the time of his death, and, upon probate being granted, it should be transmitted to a central registry in London, where an index of all the wills in the country should he kept, and copies of the indices should be also preserved in the district Courts. He understood there was already a nucleus for the establishment of such a registry in the County Courts—namely, an office in process of formation for the registration of all judgments above 10l., and he would make that available for the purpose of effecting the registration of wills. He would now add a few words with regard to the remaining jurisdiction of the Ecclesiastical Courts. Those Courts had unlimited power of granting divorces à mensa at thoro, but not vinculo matrimonii. He thought, however, that when this country had recognised the right of Dissenters to be married out of the Established Church, and when marriage was recognised as a civil contract, there could he no reason why that jurisdiction should he confined to the Ecclesiastical Courts. Even in Roman Catholic countries, where marriage was a sacrament, the power of divorce à mensa at thoro was exercised by the civil Courts; and in France, and the Protestant countries of Prussia and Holland, that power was exercised by the ordinary civil tribunals. He was aware that a Committee had been sitting for two or three years to consider this question. He did not know when their Report might be expected, but he hoped it would deal thoroughly with the subject under their investigation. He would not now go into the question as to the mode of granting a 858 divorce a vinculo matrimonii; but he would merely observe that it was a great hardship upon a poor man that it was utterly impossible for him at present to get rid of his wife. He recollected a case where a poor man was convicted of bigamy, who defended himself by referring to the fact, which was proved on the trial, that his wife had been guilty of gross misconduct. The Judge, however, pointed out to him that he ought to have gone to the Ecclesiastical Court in the first instance, afterwards to a Court of Common Law, and finally to the House of Lords, when he would have obtained a divorce; and finished by sentencing him to one week's imprisonment. The Ecclesiastical Courts had another jurisdiction over the enforcement of Church-rates, and he must express his hope that those Courts would not be long troubled with that jurisdiction, but that the subject of it would be abolished, and that, too, by the present Government. The other functions of the Ecclesiastical Courts were partly civil and partly ecclesisiastical; they had jurisdiction over heresies, fornication, solicitation of chastity, procuration, power of ordering penance, and the power of passing sentence of excommunication, but they were not allowed to exercise it. These Courts, in fact, were the mere shadow of what they were; they belonged to days gone by—to days when there was one Church to which every man man belonged, when people were unconscious of the meaning of Protestantism and of Protestant Dissenter, and to days when the Church had all the power, because she had all the knowledge. Those days, however, had passed by, and with them had passed the vitality of these Courts. Their influence had gone, their censures were laughed at, and he trusted they would be no longer allowed to play their fantastic tricks in Doctors' Commons, amidst, he might say, the contempt of the country, but that they would be abolished, and that the judicial institutions of the country would be placed upon a footing more consonant to the feelings and the civilisation of the age. A word now upon the subject of vested interests. He knew they were great favourites with that House and the country, and he was far from denying their claims. It would be necessary, therefore, that compensation should be given to those interests. It might also be said, that the civilians and proctors who practised in those Courts were entitled to compensation. Now, he 859 did not desire to say one word in disparagement of those gentlemen. The Bar practising in Ecclesiastical Courts was a body of learned and honourable men; but he did deny the right of any body of practitioners to say that abuses should be perpetuated for their benefit. It seemed to him that it would be as reasonable for the members of the Common Law Bar to object to the County Courts, which certainly diminished their practice, and to demand compensation; it would be equally as reasonable for innkeepers on the post roads to demand compensation for the loss of business they had sustained by the introduction of railways. The fact was, they must all go on with the times, and it would be impossible therefore, in his opinion, to recognise the right of the practitioners in any Court to set up a claim of vested interests. He thought, however, the proctors should be admitted as attorneys, and admitted to practice in the Courts of Common Law, while the civilians should be admitted as barristers to practice in the other Courts, and he believed that if this were done, their learning and ability would secure to them the same amount of practice in the new Courts as in those in which they had been in the habit of practising. As to another jurisdiction possessed by the Ecclesiastical Courts, that of the Court of Admiralty, he had not the same complaints to make. In many cases that was a highly beneficial jurisdiction. The Court of Admiralty had powers which the Courts of Common Law had not. It had power over the vessel itself, which was an extremely useful power, and in cases of collision it had also the power of ordering an equitable adjustment of the damage between the parties, according to the extent to which they were blame-able. The Court had jurisdiction, too, over cases of salvage; and the practice of consulting two Trinity Masters was also in many cases extremely beneficial. It was felt, however, by the seaport towns, one of which he had the honour to represent, that the local administration of the jurisdiction of the Court of Admiralty would be very useful. They complained, and with some justice, that all cases had to be sent to London for trial; that there was the double bill to the parties of a proctor and solicitor; and that considerable delay and expense were incurred; whereas the shipowners in those towns said they saw no reason why this jurisdiction should not be administered by local tribunals. It seemed to him that it would be matter worthy of 860 consideration by the Committee whether the County Court Judges might not exercise this jurisdiction very beneficially, or it might be conferred upon some of the Recorders of the seaport towns. He thanked the House for listening with so much patience to what he feared, from the nature of the subject, had been a very dry statement; but he had endeavoured to condense his observations into as small a compass as possible. If he were accused of rash and wanton innovations, and of destructiveness, as regarded existing institutions, he would adduce a precedent very strongly in his favour—namely, that what he proposed to do in this country had already been done substantially in Scotland, where the Commissary Court and the Admiralty Court had been transferred to the Sheriff's Court and the Court of Session. He had no desire to effect any rash and violent changes; he preferred that our institutions should be adapted to the progress of the times, and that they should be acted upon by public opinion. But public opinion had never been brought to bear upon law reform; the subject had been shrouded hitherto in almost impenetrable obscurity as far as the general public were concerned; they had been scared away from investigation by the sight of cartloads of law books in mediaeval jargon, and had left the whole question in despair in the hands of the lawyers. Those gentlemen, he confessed, were upon the whole chargeable with not having done what they might have done with regard to law reform, and they had never properly carried out the maxim well known—cessante ratione cessat lex. He trusted that the reforms so urgently needed would be thoroughly and satisfactorily carried out on the part of the Government; but he believed, with respect to our Ecclesiastical Courts, that they were the vulnus immedicabile of our judicial system, and one the only remedy for which was the knife.
, in seconding the Motion, said he agreed in every word of what had fallen from the hon. and learned Gentleman, and hoped the Government would give their sanction to the appointment of a Committee from whoso inquiries nothing but good could result.
Motion made, and Question proposed—
That a Select Committee be appointed for the purpose of inquiring whether the Ecclesiastical Courts might not be advantageously abolished, their jurisdiction over all matters not purely Ecclesiastical transferred to other existing tribunals, and new Courts established for the purpose of
dealing speedily and effectually with matters purely Ecclesiastical; and whether the jurisdiction of the Court of Admiralty might not be advantageously transferred to local tribunals.
The SOLICITOR GENERAL
said, he was exceedingly happy that this subject had been introduced to the attention of the House, and he thought they must all agree that a more vivid and striking delineation of the evils attendant upon the ecclesiastical branch of our judicial system could never be presented to the House than that which had just been given by the hon. and learned Gentleman. He was sorry to say that in the whole of that representation he recognised nothing but confessed, acknowledged truths, which had been ascertained for a long period of time, and about which they need no longer inquire; but there still remained a subject, the difficulty of which could not be exaggerated, and that was, to ascertain the mode in which the remedy was to be applied, so that it might be effectual, and that it might be applied even further than the hon. and learned Member had suggested—so that it should extend not only to the evil and anomaly of the jurisdiction of which he complained, but to the evils and anomalies which existed in an almost equal degree by reason of the establishment in this country of so many discordant and antagonistic jurisdictions. Would it be believed that in a country so far advanced in science and civilisation as our own they should have endured for ages this striking and ridiculous anomaly—that you elaborated justice by the monstrous process of allowing one Court to proceed upon principles, and by a rule of procedure which was confessedly opposed to the established principles of the highest degree of justice, and that you sought to remedy the evil by setting another Court to catch and arrest it in its career of injustice? He could assure the House that the evils were not confined merely to Ecclesiastical Courts, but they extended to other jurisdictions; and before an effectual remedy could be devised, there must be a consolidation of these conflicting jurisdictions, in order that justice might no longer be divided, as it was now, into different degrees and different qualities, but that there might be one kind of justice, derived from one common fountain, administered in all the tribunals. The intention of applying a remedy to the existing evils, would, he trusted, be completely acted upon by the present Administration. But it was 862 undoubtedly necessary that, in accomplishing those measures which were required, the Government should proceed to effect them in a complete manner; and, though he was exceedingly reluctant to interpose any delay—though he was extremely unwilling to suggest a course which should savour, or appear to savour, of a disposition to put off investigation—yet he was obliged to remind the House that inquiries were pending at this moment on three most important subjects comprehended in this Motion. There was now sitting a Commission for the consolidation of certain branches of the law; and to the same body was referred the important subject of the testamentary jurisdiction of the Ecclesiastical Courts, not for the purpose of inquiry into the evils existing in that jurisdiction, for, he believed, they were generally acknowledged, but for the purpose of considering the manner in which that jurisdiction could be transferred to some other tribunal or tribunals, so that justice in that respect might be completely administered. Though he was perfectly well aware of the necessity of measures being brought before the House, yet he was deeply impressed with apprehension lest the progress of this great reform might be retarded if the matter were referred to a Committee of that House; and lest, when another body were of necessity prosecuting their inquiries, discordant Reports should be received for the suggestion of remedies wholly inconsistent with each other. He trusted that the hon. and learned Gentleman would rest satisfied with the assurance, founded on a conviction of the existence of the evils that prevailed, which was given when a noble and learned Lord in another place stated, that, after waiting a certain time for the Reports of the Commission, he should, if they were not presented, or the remedies proposed were not effectual, himself bring forward a measure, which, he trusted, would prove an effectual remedy for the cure of those evils which existed, and for the complete prevention of similar evils in future. Having thus reminded the House of that assurance, and having stated that which he thought would convince the House that the existence of those evils, and the necessity of legislating on the subject, were fully acknowledged by the existing Administration, he begged his hon. and learned Friend would not press the Motion, because he (the Solicitor General) was sure the House would 863 agree in the opinion that further inquiry was not necessary. Inquiries they had had in abundance; but remedies they had not devised. Therefore it was that, if an effective Report were not laid before the House within a reasonable time, he should prefer much that the hon. and learned Gentleman should bring in a complete and effectual measure in the shape of a Bill. If the matter were referred to a Select Committee, the result would be no addition to the knowledge they already possessed. He (the Solicitor General) should say that his own anxiety was to see some measure brought forward which should at once provide a complete remedy for existing evils with reference to the jurisdiction of the Ecclesiastical Courts in divorces and other respects, and which should remove existing anomalies. Another reason for not pressing the Motion was, that a Committee had been appointed by the House of Lords to inquire into the Law of Divorce. The Report, with a sight of which he had been favoured, would be presented very shortly. The hon. and learned Gentleman would then have an opportunity of directing attention to the subject; and that course, it might be suggested, would be more conducive to the ends which the hon. and learned Gentleman had in view, than the appointment of a Committee of Inquiry, which would add nothing to the conviction already entertained with respect to the necessity for legislation on this most important subject.
§ SIR BENJAMIN HALL
said, he must, in the first place, thank his hon. and learned Friend the Member for Plymouth (Mr. Collier) for having relieved him from a duty he had intended to impose on himself. As he had taken a part in the reform of ecclesiastical abuses, and especially of the Ecclesiastical Courts, it was satisfactory to him to find that the course he had taken for some years was now about to be taken by a gentleman occupying the high office of one of the law advisers of the Crown. What had fallen from the hon. and learned Solicitor General gave the House the assurance that a full and ample measure of reform would be brought forward; and he entreated the hon. and learned Member for Plymouth not to take a division, but to be content with the assurance which had been given. With respect to inquiry he agreed with his hon. and learned Friend the Solicitor General that it was quite unnecessary. There was a book full of evidence and information on the Ecclesiastical Courts. The sum and substance was contained in 864 a few lines, which stated that the Committee, in conclusion, invited attention to the evidence taken before them, as showing that the attention of Parliament ought to be directed without delay to the necessary remedies. That Report was made in 1851. He had reason to believe that it had been under the consideration of the Government of which the noble Lord (Lord John Russell) was the head, and he knew that it was under the consideration of the present Government. He wished the House to see how the duties of Ecclesiastical Courts were performed, and he begged to call attention to a statement in the evidence, which showed that a Judge, whose name was given, had not been seen for twenty-eight years in his Court, and made his appearance in the diocese only at visitations; yet in all suits in the Court there was a heavy fee levied for the Judge, and for that fee the Judge did nothing. That was a fair sample of the Judges of Ecclesiastical Courts; and yet, because he had brought forward these abuses, he had been censured by persons holding high authority in those Courts. It was, therefore, a great satisfaction to him when a member of the bar brought this matter so clearly and concisely before the House, and when the hon. and learned Solicitor General acknowledged that those ecclesiastical tribunals were "striking and ridiculous anomalies," and thus proved that all his statements had been founded upon facts which now had become so offensive to the public that they would no longer be endured.
§ MR. MAGUIRE
said, he hoped the hon. and learned Member for Plymouth would not consent to withdraw his Motion unless an assurance were given that the measures of the Government would apply to the Irish as well as to the English Ecclesiastical Courts. If those Courts were odious here, they were doubly so in Ireland, where they were entirely under the control of those who differed from the great body of the people in religion. Every Catholic attorney and counsellor was excluded. Those were not mere "shadows of a former grievance," as they had been described; they were substantial and real grievances. A Bill proposed by the present Solicitor General for Ireland had been referred to a Select Committee, before which Mr. Hamilton, a member of a celebrated firm in Dublin, gave evidence far more striking in regard to the Irish Ecclesiastical Courts than that which had been cited with reference to the English. In 865 the case of "Downes v. Donovan" the assets were 600l., the costs exceeded that amount; and in another case while the assets were hundreds, the costs were thousands. It would appear that a proctor took three days to go from Cork to Dublin, a distance of 120 miles, though a railway existed by which the journey might have been made in a few hours; and the same time was taken to return. The proctor took care to charge four guineas a day, and was not able to travel more than forty miles a day. There were charges made for ideal briefs, for briefs that never had any existence, and the same briefs that had been used in one Court were charged again when used in a second and a third. A more perfect system of extortion and robbery did not exist. When Mr. Hamilton was examined on behalf of the proctors, he could not defend the system; he could only say that that was the custom—that he found these things existing, and he only did as other proctors did. There were many cases in which the conduct of Catholic clergymen had been before these tribunals, and it was not just that such cases should be investigated by persons all of a different persuasion. With the best intentions, they might view things through a different medium. It was not fair that there should be no Catholic Judge, or counsel, or proctor. He hoped he should learn whether it was the intention of the Government to include Ireland in their promised reform. It was wanted more there than in England.
§ MR. ROBERT PHILLIMORE
said, he must bespeak the indulgent attention of the House under the circumstances which compelled him to address it; he was aware he was addressing an audience with minds, to a certain extent, averted beforehand, and with whom he could have very little hope of succeeding if he offered himself as one opposed to the reform of the Ecclesiastical Courts; but he was happy to be able to state, that the charge brought by the hon. and learned Member (Mr. Collier), that the profession had sedulously resisted all attempts at reform, was entirely unfounded. He could appeal to the right hon. Gentlemen the Members for Midhurst and Morpeth (Mr. Walpole and Sir G. Grey) whether there was not laid before them a measure of reform drawn by himself and another advocate of the Ecclesiastical Court, which went, in many respects, quite as far as the 866 reforms suggested by the hon. and learned Member (Mr. Collier)—a measure comprising the abolition of all sinecures whatsoever, the abolition of more than 300 Courts, the insuring the appointment of proper officers, duly qualified by a legal education for those that remained, the introduction of vivâ voce evidence, a very great alteration in the mode of conducting suits in these Courts, tending to produce that which every man must wish to see—cheap, speedy and effective justice. He owed it to himself and to the profession to which he belonged, to say that they had long desired a searching, effective, and, if you would, a sweeping reform; but they asked that both sides should be heard before the House came to a decision, and he thought they had a right to expect that the House should be quite satisfied, on impartial evidence, that the tribunals to which they transferred this jurisdiction were in all respects, especially in the very material points of expense and delay, superior to those from which they were about to take it. It was hardly necessary for the hon. and learned Member (Mr. Collier) to go back to Magna Charta and Edward III. to raise a prejudice against these ecclesiastical tribunals; they had faults enough of themselves, God knew, without going back to that date, and he was not about to defend them. He never had been an advocate for those abuses; and the only question which he had thought could be fairly submitted to the House was, whether they were satisfied that by no possible reform could any part of the present system be made efficient for the administration of justice. If they were so satisfied, he, for one, would offer no opposition to their annihilation; but, if they were not so satisfied—if they thought reforms could be introduced which would preserve what was valuable in the system, and secure this blessing of cheap and speedy justice, let the House at least consider—let it at least hear both sides, which it had not been in the habit of doing on this question, before they came to an adverse conclusion. Perhaps it was a natural bias of the hon. and learned Member (Mr. Collier), but so it was, that all his proposed reforms tended to bring business into those Courts in which he was a distinguished practitioner. He did not omit in his indiscriminate attack even the Admiralty Court, against which he was not able to bring a single allegation, and of which he (Mr. Phillimore) could prove that no Court in the 867 Kingdom administered justice more speedily and effectually; and when he remembered and named its existing president, formerly a distinguished Member of that House, Dr. Lushington—when he remembered other names, those, among many others, of Sir George Lee, of Dr. Lawrence the friend of Burke, and another name, which, if he did not bear it himself he might mention, once not unknown nor unhonoured in this House. Then you could not take up an American law-book without seeing Lord Stowell described as the "spotless magistrate of nations," and his decisions as giving law to both hemispheres. The mention of these names entitled him to maintain, that the study of civil and international law had produced some of the most distinguished men this country had had to boast of. These and other considerations on which at this late hour he would not dwell, warranted him in suggesting, that these tribunals, with all their defects, might have something in them which ought to be preserved. There were two tests to which all were agreed that the efficiency of justice must be put—expense and delay. He certainly had heard with some astonishment that these evils as existing in the Ecclesiastical Courts would be cured by a transference to the Courts of Common Law. A few years ago he made some research into those cases in which he could compare the delays and expenses in the two Courts; and though he should be very sorry to be supposed not to be a hearty reformer of the Ecclesiastical Courts, he would give the hon. and learned Member (Mr. Collier) this challenge—where he would produce an instance of expense and delay in the Ecclesiastical Courts, he (Mr. Phillimore) would produce a much greater in the Courts of Chancery or Common Law. He said this, not as a reason why the Ecclesiastical tribunals should not be reformed, but because, when they were attacked, their defects ought to be judged by a comparison with those of other tribunals, and there ought not to be a prejudice created against them by pointing to such cases as that of the Rev. Mr. Moore—a scandal and abuse which Parliament had never enabled the Ecclesiastical Courts, though most desirous, to purge themselves from, or by alluding to the large number of public jurisdictions called Peculiars, as if they were any necessary part of the system, or as if it were the fault of the Courts in which he practised that they had not been long ago 868 swept away. Let the House be just: who was really to blame for the continuance of these evils? Parliament itself, and no other institution. Sir W. Scott, in 1813, passed a Bill through that House for the abolition of the Peculiars: it was rejected by the Lords. In 1836 was passed the 6 & 7 Will. IV., c. 77, by a clause of which Peculiars were destroyed, and one Court left for each diocese. Why had it not taken effect? Because that House in its wisdom passed an annual Act to suspend the operation of this part of the Act of William IV., by itself, therefore, breathing every year vitality into the worst part of the system complained of, and which would be otherwise extinct, and thus allowing the existence of these detestable peculiar jurisdictions so continued by the House itself to be a ground for the indiscriminate demolition of the whole system. He could assure the hon. and learned Solicitor General that in no one would be find a more active, though in many a more effective, supporter of any reforms he might bring forward respecting his profession, than in himself (Mr. Phillimore). But when he heard it said that these Courts had been condemned by every Commission that ever sat, he could not forget that there was one in 1832, signed by illustrious names—Chief Justice Tindal, Lord Ten-terden, Lord Wynford—which, so far from condemning them, actually advised that the jurisdiction over real property should be tranferred from Westminster-hall to these very tribunals which were now stigmatised as sinks of iniquity; and Lord Lyndhurst in 1844 sent down to that House a Bill in which many of these reforms were adopted, but nevertheless the basis of the Ecclesiastical Courts was preserved. It was said that the expenses in those Courts were so enormous; let the House hear an instance or two. There were cases tried by common as well as ecclesiastical law, which therefore afforded a means of comparison. There was a case, unhappily notorious, the Braintree Church Rate case; the expense in the first cause was—in the Consistory Court of London, 111l. 14s.; in the Queen's Bench, on application for prohibition, 244l. 17s. 6d.; and in the Exchequer Chamber, 216l In the second cause, the expense in the Consistory Court was 153l; in the Arches (appellate) Court, 84l; in the Queen's Bench, 245l.; and there was the Exchequer Chamber besides. Let the House consider these things before transferring the jurisdiction of the Ec- 869 clesiastical Courts to the Common Law Courts. In another case there was a very curious question of law upon the construction of the 21st of Henry VIII., c. 5s, 3; the same point was raised in the Prerogative Court and in the Court of Exchequer; the costs in the former were 35l., in the latter above 200l. [Harrison v. Harrison, 2 Robertson's Reports, 406; Venables v. E. I. Company, Exchequer, July 11, 1848.] A testator died in 1845 possessed of large personal property; there was a suit in the Ecclesiastical Court to ascertain the true will, spurious documents being produced; the genuine will was ascertained and pronounced for; the cost were 846l. The parties who had alleged the spurious documents were prosecuted for forgery; and the law costs were 1,500l. [Wintle and Dowding v. Slack and Others.] Again, the present Lord Chief Justice Campbell, a most distinguished Judge, did not exactly agree with the hon. and learned Member (Mr. Collier) in the great advantage of transferring causes as the hon. Member proposed; for, in 1832, Lord Campbell stated before a Committee, after referring to the number of new trials granted in the Common Law Courts, that trial by jury would be absolutely intolerable if it were not for the power of granting a new trial; for, sometimes from ignorance, and more frequently from prejudice, juries gave verdicts which were absolutely unjust. Non meus hic sermo est. It was the opinion of Lord Chief Justice Campbell, and he (Mr. Phillimore) doubted very much whether any great advantage would be derived, either by the suitor or by the public, by handing over these cases to be tried by a jury. With respect to other portions of the attack of the hon. and learned Member, but from an apprehension of exhausting the patience of the House at that late hour, he could show, and would be prepared to show, when the proper time came, that they were characterised by much inaccuracy and great exaggeration. He could show, for instance, that there was not wanting the unbiassed testimony of eminent solicitors like Mr. Freshfield, as to the ease and celerity with which wills were found in the Prerogative Court, and that the custody of the wills was not in the condition described by the hon. and learned Member. But for these remarks there would be another and better opportunity. He should be sorry if, in the few remarks which it would have been pusillanimous in him not to have offered to 870 the House, he should be regarded as the advocate of what he really detested—the many and great abuses of the Ecclesiastical Courts. His had been no oratio pro domo meâ but there were more difficulties in the way of providing an effectual remedy for the evils which he admitted and deplored, than many hon. Members were aware of. It was impossible for Courts which were at least coeval with, if, indeed, they were not prior to those of Westminster-hall—which had existed for 800 years—not to have their roots intertwined with many interests and considerations which did not at first sight present themselves; and it was in the process of setting these Courts free from those interests, which were in the present instance of no light or unimportant character, and of preserving the advantages of the Courts while their abuses were removed, that, as his hon. and learned Friend the Solicitor General well knew, the difficulty consisted. He had to apologise to the House for the length into which he had been unintentionally led to occupy their attention; but it had proceeded from his anxiety not to allow the opportunity to go by of saying, that he and the branch of the profession to which he belonged, would eagerly hail an effective and searching reform in the Ecclesiastical Courts.
The ATTORNEY GENERAL
hoped the hon. and learned Member for Plymouth (Mr. Collier), would allow him to prefer an earnest request, that he would not press this Motion to a division. From the whole course of this discussion, he believed he might say that they were all agreed as to one thing, that the abuses of the Ecclesiastical Courts were intolerable, and could no longer be suffered to exist. The only question was as to the remedy. In such cases the great matter was to ascertain the existence of abuses, for when once these were universally admitted, the difficulty as to the application of a remedy was no longer felt. He agreed with the hon. and learned Member for Plymouth, that the knife should be applied, but they must apply it with discretion; and when it was said that they ought to transfer this jurisdiction to the Common Law Courts, he agreed with the hon. and learned Gentleman who had just spoken, that this was a measure which should not be adopted without the greatest deliberation. He was satisfied that at the present moment the machinery of the Common Law Courts, and their system of procedure, would not 871 be adequate to supply the necessities of the cases. That their machinery might be greatly improved, and their procedure go remodelled as to include matters which now properly belonged to the jurisdiction of the Court of Chancery, he entertained no doubt—indeed he hoped that before a very considerable time elapsed, they would have all the Law Courts acting according to one common procedure formed on the true principles of jurisprudence. But as matters now stood, if they transferred the ecclesiastical jurisdiction to the Court of Chancery, they would have a system not calculated to deal with questions of fact; and on the other hand, if they transferred it to the Common Law Courts, they would have a system well calculated to deal with questions of fact, but not such a procedure as was necessary in the cases that were tried in Ecclesiastical Courts. He thought that they must wait, and see how far they could improve the system and procedure of the Law Courts, and make them operate in one harmonious jurisdiction, before they decided to what quarter they would transfer the jurisdiction of the Ecclesiastical tribunals. He only asked for a short interval for consideration, and he was sure the House generally, as well as the hon. and learned Member for Plymouth, must feel that the present Government could have no object in delaying for a single hour longer than was necessary the reform of so objectionable a system. He hoped the result would be satisfactory, and he recommended the postponement of a decision until the reports of the two Commissions now engaged in examining the jurisdiction in questions of testamentary disposition and divorce were received.
MR. J. D. FITZGERALD
said, he felt bound to say that unless a measure were speedily introduced by Government for the improvement of the ecclesiastical jurisdiction in Ireland, he should think it his duty himself to introduce a Bill for that purpose. It was not merely the religious evil already alluded to of which they had to complain in Ireland, but the monstrous system of appeal which prevailed there, with all its manifold abuses. The facts of the case being all ascertained, and there being no necessity for further inquiry, he submitted that they were entitled to a statement of the intentions of Government on this head of the subject.
§ VISCOUNT PALMERSTON
said, he would take that opportunity of answering the appeal of the hon. and learned Gentle- 872 man. He trusted that what had been stated by the Lord Chancellor in another place, and what they had heard that evening from his hon. and learned Friends the Attorney General and Solicitor General, must satisfy both the House and the public that Her Majesty's Government were earnest in their intention to sweep away what he might call the Augean stable of the Ecclesiastical Courts. If the House placed confidence in the intentions of Her Majesty's Government to make those legal improvements which had been shadowed out, he thought they could not for one moment suppose that the Government would be prepared to reform the legal arrangements of England, and to leave the legal arrangements of Ireland unreformed and unimproved.
§ MR. HADFIELD
said, he wished to know whether the hon. and learned Solicitor General intended to bring in a temporary Bill, for making one probate sufficient for the whole of the United Kingdom?
The SOLICITOR GENERAL
said, he could assure his hon. Friend that this branch of the subject had engaged their attention, and he was enabled to state that it was proposed to abolish the present practice of probate, and to establish in lieu of it one general system of registration.
§ MR. WHITESIDE
said, he hoped the hon. and learned Member for Ennis (Mr. J. D. Fitzgerald), would not bring in any Bill on the subject of the Irish Ecclesiastical jurisdiction until the entire subject now under consideration of the House should have been fully matured by the Government. He wished the House to understand exactly the state of the case as regarded Ireland. The Committee on which the Chancellor of the Exchequer, as well as the Solicitor General for Ireland, sat, and which investigated the subject of ecclesiastical jurisdiction and its abuses in Ireland, found no such abuses existing there as those which prevailed in this country. It was true that complaints were made that the proctors and advocates were of the Protestant religion; but there was no indisposition on the part of the Primate and the other authorities in 1837 to admit Roman Catholics to practise in those Courts, and there was no reason for not doing away with the exclusively Protestant character of those Courts. Again, one of the Judges of the Irish Courts was examined before the Committee, and asked whether Attorneys in the mass, should be 873 made Proctors of the Court. He answered that he thought not, and that the limited number of Proctors effectually prevented the commission of frauds in respect to the transfer of money at the banks on administrations obtained by false documents. He admitted that the system was a monopoly which he should rejoice to sec reformed; but he hoped that measures with that object would be taken with due deliberation.
§ MR. BOUVERIE
said, that as a Member of the Committee his general impression from the evidence was, that though the abuses in the Irish Ecclesiastical Courts were not of the same specific character as those which existed in this country, yet there were great abuses as to costs and expenses which called loudly for a remedy. The hon. and learned Member for Tavistock (Mr. R. Phillimore) came, he believed, from Doctors' Commons, and it was well that they should have Gentlemen from that place, who professed a desire to reform the Ecclesiastical Courts, in the House of Commons. He (Mr. Bouverie) must say, however, that he somewhat mistrusted the warm professions made by that hon. and learned Gentleman of the earnest desire for reform which existed among the advocates in Doctors' Commons. There was one reform of the Ecclesiastical Courts which would no doubt be extremely palatable to the hon. and learned Member for Tavistock—the abolition of 340 Courts, which had before been attempted in Parliament. Some eight years ago the right hon. Member for Carlisle (Sir J. Graham) was seduced into making that proposal in Parliament, in order that Doctors' Commons might have the whole Ecclesiastical business of the country. The right hon. Gentleman found, however, that he could not carry his proposal through the House. The hon. and learned Member for Tavistock might be assured, if there was such a feeling then, that that feeling was ten times stronger now. Such a reform as the advocates of Doctors' Commons were anxious to accept, would not go down in that House or in the country. He hoped the hon. and learned Member for Plymouth (Mr. Collins) would not press for the Committee.
§ MR. R. PHILLIMORE
said, that the hon. Member for Kilmarnock was mistaken in supposing that the object of the proposal to which he had referred was to abolish certain Courts in order to transfer the business to Doctors' Commons. On the contrary, the measure went upon the 874 principle of preserving all the Diocesan Courts.
§ MR. COLLIER
begged to express his thanks to the law officers of the Crown for the very explicit statements they had made on the subject. If such statements had been made before, he would not have thought it necessary to bring the matter before the House. He might, perhaps, be allowed to suggest that it was desirable the Commission now inquiring into the testamentary jurisdiction of the Ecclesiastical Courts should have power to inquire into the whole of their jurisdiction. With the permission of the House he would withdraw his Motion, and leave the question in the hands of the Government, on the understanding that if it was not dealt with as he had every reason to hope and believe it would be, he should think it his duty to take up the subject again. It was impossible now to contend that the Ecclesiastical Courts ought not to be reformed, for the only possible way of maintaining them was by reforming them; but he did not desire to reform them, because he believed a reform of those Courts would be one of the greatest evils that could happen, as it would continue them for twenty years longer. These Courts had been tried; they had been found wanting; sentence had been passed upon them, and they ought to be executed. It had been said that some of the advocates of Doctors' Commons were exceedingly anxious for reform. If that were the case, they had been grievously disappointed, and he sympathised with them, for, somehow or other, no reform had taken place. It was said that the abolition of 340 Ecclesiastical Courts out of 372 had been proposed. That arrangement would have left 32 Courts remaining, which he considered would be 32 too many. He thought these Courts should be altogether abolished, and that some new and simple Courts should be established, under Judges appointed by the Crown, for the purpose of dealing merely with questions of Church discipline. The hon. and learned Member for Tavistock (Mr. R. Phillimore) had intimated that, as he (Mr. Collier) belonged to the Common Law Bar, he desired to transfer the jurisdiction from the Ecclesiastical Courts to the Courts of Common Law. Now, he (Mr. Collier) proposed transferring by far the greater portion of the jurisdiction to the County Courts, in which he did not practise; and, with regard to the jurisdiction in cases of divorce and other matters, he thought it would be far 875 better to give it to the Courts of Chancery, instead of to the Courts of Common Law. It had been said in the course of the debate, that it was not desirable to try such questions as the sanity of a testator by a jury, but that it was better to leave such matters to the decision of an Ecclesiastical Judge. He (Mr. Collier) thought, however, that it would be found very difficult to convince the country that their rights were safer in the hands of an Ecclesiastical Judge than in those of a jury. In his opinion the power of trial by jury ought to be optional; but he would never consent to any one being deprived of what he regarded as one of our most valuable rights—that of trial by jury.
§ Motion, by leave, withdrawn.