HC Deb 26 April 1855 vol 137 cc1806-30

Order for Second Reading read.

Motion made, and Question proposed—"That the Bill be now read a Second Time."

MR. MALINS

said, he rose to move that the Bill be read a second time that day six months. He trusted that the House would not consider that he wished to perpetuate any abuse in these courts, or in any matter connected with the administration of justice. He would yield to no man in his desire to improve that administration, but there was a great difference between improving and abolishing. If his hon. and learned Friend (the Solicitor General) had, instead of abolishing these courts, confined himself to making their practice as perfect as possible, he and those who acted with him would have lent the hon. and learned Gentleman their best assistance to effect his object. But Government refused to take warning by what had occurred last year, and this year had brought forward a measure which, though differing considerably in some of its details, was essentially the same as the Bill of last year. Government, it appeared, had deliberately made up their minds last year to a particular course, but this year they had departed, to a certain extent, from that course, and this was a good reason why Government was not entitled to call upon Parliament to sanction the Bill before the House. The question was one of great difficulty, and involved a subject which of necessity could be but little known to Members of that House. He would briefly state what was the object of Government by this Bill, and what was the object that, in his opinion, ought to be kept in view. The object of the Bill was to totally abolish the existing Testamentary Courts and the Ecclesiastical Courts of the country, and to transfer their business to the Court of Chancery. Now, this business was the testamentary business of England, involving the right to the whole of the personal property in the country, and it was proposed to include also all real property. This must, sooner or later, affect every person possessing property to the amount of 20l., at which sum it was proposed to fix the obligation for taking out probates. What was the present law? When property was left by will no executor could act until the will was proved; and when this was done the Court issued the probate by which the executor was empowered to take possession, and to admi- nister the whole of the property of the testator. In case no will existed, and the widow did not take out letters of administration, the Court usually granted letters to the next of kin. Now, the number of wills proved in 1852 was 18,703, and 7,068 letters of administration were taken out, making a total, in round numbers, of upwards of 25,000 testamentary grants in one year. The probate duty paid in that year amounted to nearly 1,000,000l. sterling. Three Commissions had reported on this subject, and they all concurred in one principle—with which he and those who acted with him also agreed—that the time was come when it was necessary to abolish the ecclesiastical jurisdiction of these courts. The Judge of the Prerogative Court of Canterbury was appointed by the Archbishop of Canterbury, and the Judge of the Prerogative Court of York by the Archbishop of York; but the business of those courts was of a temporal character, and, therefore, the courts themselves ought to be temporal and not ecclesiastical. This Bill proposed that the courts should no longer be ecclesiastical; that the Archbishops should no longer have the appointment of the Judges, and that the business of these courts should be transferred to the Court of Chancery. But upon what principle, for what reason should the transfer take place? Wills must be proved in some court or other, but why should that court be the Court of Chancery? The hon. and learned Solicitor General told them the probate of a will and the construction of a will were so much mixed up together, that the authority to deal with such a matter ought to be in the hands of one court, but he (Mr. Malins) thought he could satisfy the House that proving a will and determining its construction were totally different things. Questions of the greatest nicety and delicacy often arose as to who should take possession of a man's property immediately after his death. If the House would consider the great opportunities that existed for fraud with respect to the management of a deceased person's property he felt satisfied they would be slow to make an alteration which would have the effect of sweeping away the existing system and an existing order of men, whose experience in the business was a great security against the commission of fraud. The number of probates granted in one year was about 25,000; but questions as to the construction of wills did not exceed two per cent of that number. A Return which he had, showed that the whole bills filed in the Court of Chancery from October, 1853, to October, 1854, amounted to 2,900; and from October last to April, 1,200 to 1,300. If the House would reflect that bills filed in Chancery had relation to every kind of engagement between man and man, they would admit—the whole of those bills not exceeding 2,900 in one year—that one-sixth was a moderate estimate for the suits with regard to wills. There was, therefore, only one in fifty of the wills subject to probate with regard to which any litigation took place. If he were right, what became of the argument of the hon. and learned Gentleman that the probate of wills and questions as to the construction of wills should come before the same court. But to revert to the position assumed by the hon. and learned Solicitor General, he must contend that the probate of a will and the construction were not inseparable; on the contrary, they were two distinct things: and even suppose they agreed to send the two matters to the same court. the practical working of such a plan would still be as it was at present. The will would have to be proved in the first instance, and then, if there was any dispute about its construction, the parties would have to begin de novo, as it were, and set forth all that had been done in the preliminary pleadings. Practically speaking, therefore, there would be two courts in operation under this Bill; at one period of the day the court would be a court of probate, at another a court of construction; and since it could not be maintained that the act of proving a will was inseparably connected with the act of construction, he was at a loss to discover the advantage to be obtained under the change proposed by this Bill. Another point which the hon. and learned Solicitor General urged in support of his plan for placing the two things in the hands of one court was this—he said it was highly desirable that the court to whom such matters were referred, should have the power of dealing with the estate during the period that a will was under contest. Now, was that a sufficient reason for a sweeping change in the law? Was the House aware of the number of wills contested in the course of a year? Why, in the Prerogative Court of Canterbury, out of 12,000 wills proved in a year, on an average not more than forty were contested, and, except in rare cases, such as that of Mr. Dyce Som- bre, where the points involved were of a peculiar and unusual nature, the contests were mostly brought to a termination within the space of two or three months. The fact was, the Ecclesiastical Courts had become unpopular with the country from circumstances beyond their own control; abuses had crept into them in connection with the patronage which they gave to the archbishops; but those abuses he certainly did not consider were a sufficient ground for abolishing the courts themselves. His hon. and learned Friend the Solicitor General, in introducing the measure, dwelt at some length upon the great abuses which had occurred, such as the appointments of Mr. Moore, of Mr. Manners Sutton, of the son of the late Archbishop of Canterbury, and of the grandson of the present Archbishop of Canterbury. But there was not a proctor or practitioner in that court who did not lament that such a state of things had existed, and was not as anxious to prevent their recurrence as his hon. and learned Friend. These cases had, however, nothing to do with the practice in the Ecclesiastical Courts, and it might just as well be said that because three or four years ago great abuses had existed in connection with the Court of Chancery that court ought to be abolished, as to say that the Ecclesiastical Courts ought to be done away with because certain abuses had been permitted with regard to them. There certainly were abuses, but they were capable of an easy remedy, and nothing could be more unjustifiable than to attempt to abolish the existing state of things, unless the necessity for doing so was shown to be of an overwhelming nature. As his hon. and learned Friend had stated, various Committees and Commissions had been appointed to inquire into the subject of the proceedings and practice of the Court of Chancery, and the result of their inquiries showed that it was principally the machinery which was defective and required remodelling. A Commission was issued by the Government of Lord John Russell in 1851, who made their Report in 1853, and the changes that were introduced in consequence of the Report of that Commission made the Court of Chancery as effective as any which existed in this country. In 1851 the Government of Lord Derby issued a Commission to a learned body of men to inquire into the system and practice of pleading in the Courts of Chancery, and the law and jurisdiction of the Ecclesiastical and other Courts in relation to matters testamentary. In that Commission were to be found the names of Sir John Romilly, Lord Justice Turner, Vice-Chancellor Kindersley, Sir William Page Wood, Sir John Dodson, Dr. Lushington, the Queen's Advocate, Mr. Justice Crampton, the Solicitor General, the right hon. Member for Carlisle (Sir James Graham), his hon. Friend the Member for Oxfordshire (Mr. Henley), and Messrs. J. Rolt and W. James, of the Chancery bar, all men distinguished for learning and ability, and of various parties in politics, so that the Commission could not be charged with any political bias. That Commission came to the conclusion that it was not expedient to transfer the jurisdiction of matters testamentary to the Court of Chancery. At page 16 of that Report, after giving their reasons, and very fully, they expressed the following as the deliberate conclusion at which they had arrived:— We think, therefore, that the interests of the public would not be consulted by the transfer to the Court of Chancery of the uncontested testamentary business. It could not, we think, safely be so transferred as part of the general business of that court; and if transferred to a separate department (which for all substantial purposes would be a separate court), the transfer would be attended with all the inconveniences without any of the advantages incident to the constitution of a distinct court. He wanted to know of what utility it was to issue Commissions and obtain the opinion of the most learned men, if the Government of the day were to set that opinion at nought, and bring in a measure diametrically opposed to their advice, especially upon such a matter as this, which was one affecting the property of every individual in the community? Now, he would ask the attention of the House to the evidence given before the Commission. The bar at Doctors' Commons consisted of an exclusive body of practitioners, advocates, and proctors. No one but a proctor could prove a will, and no one but an advocate could be heard in the courts at Doctors' Commons. The Commissioners, however, called before them some eminent members of the profession—solicitors who were now excluded from practice in these courts, but upon whom the present Bill proposed to confer the right to practise in them. The evidence of these gentlemen was, in his opinion, entitled to peculiar weight, and he thought the House would also attach considerable importance to the petition he had presented that evening, signed by 163 of the most eminent soli- citors in London, and 111 of the first firms of Bankers and Merchants, who expressed their opinion that the exclusive body in Doctors' Commons should be maintained as a protection to the public, and who repudiated the boon which the hon. and learned Solicitor General proposed to confer upon them by the Bill now under discussion. The first witness to whose evidence he would refer was Mr. Lavie, of the firm of Oliverson, Lavie, and Peachey, a distinguished commercial lawyer, who was examined at considerable length. Mr. Lavie, when asked his opinion as to the expediency of opening the business of probate to solicitors generally, instead of restricting it to proctors, said he entertained a very strong impression that it was most undesirable; that it would be very prejudicial to the public and very much regretted hereafter, if such business were thrown open to attorneys; and he proceeded to state that, according to his experience, the business, particularly with respect to probates, was extremely well done in Doctors' Commons, and that he did not know that it could be better transacted in any other place, although there were some details with respect to which improvements might be introduced. Mr. Lavie added, that he thought the check with regard to the respectability of practitioners in the courts of Doctors' Commons was a material safeguard to the public, and that the admission of attorneys, who resided in distant parts of the country, to prove wills, would be attended with very dangerous and mischievous results. This Bill, however, not only proposed that attorneys in any part of the country might prove wills, but that they might send up wills by post for proof, without attending themselves at all. Mr. Lavie further stated, that in a case where fraudulent wills had been presented to the Bank of England the perpetrator of the fraud had had the greatest difficulty in obtaining the assistance of respectable proctors, and had never gone a second time to the same proctor; while, if he could have resorted to any attorney in a remote part of the country, he would have been enabled to carry out his designs with much greater ease. The charges, Mr. Lavie said, seemed to him to be particularly moderate, but he stated that he regarded the safety of the public as the most important consideration; and that he did not think it would be preserved if all attorneys were allowed to prove wills. Mr. Lavie further added, that he considered it very expedient to leave Doctors' Commons much as it was, making such improvements as might easily be effected. He (Mr. Malins) would also ask hon. Members to refer at their leisure to the evidence of Mr. Young, of the firm of Desborough and Young, who was one of the most important witnesses examined upon the subject. Mr. Freshfield, the solicitor to the Bank of England, was also examined, and he wished to remind the House that the Bank had taken a very decided view against the Bill. Mr. Fresh-field, in reply to a question as to whether he thought it would be desirable to throw the courts open to solicitors, said it appeared to him, confining his attention to the question of probate in London, that it would be attended with no advantage to open the courts to attorneys, but the contrary; that he did not think such a course would add any facilities whatever to the public; that he did not think it would diminish the expense; and that he did not think the business would be so well done. He also said that he thought it would be much better to entrust the business to a small body of practitioners, that body being under the control of the court. He went on to state that the question was not one of excluding attorneys, but admitting them for the first time; and that the control exercised by the court over its officers could not be so well exercised over a large body; that his impression was, that the present system was one which attained accuracy in a very high degree. He further said that the Bank of England had under its notice about 4,200 probates and letters of administration per annum, one-sixth of the number being letters of administration, and he could not speak too highly of the accuracy with which they were prepared. That was remarkably strong testimony in favour of the mode in which business was transacted in Doctors' Commons; and the 163 gentlemen whose petition he had presented to the House also expressed their satisfaction on that point. In 1832 the father of Mr. Freshfield gave equally emphatic evidence in favour of the system pursued at Doctors' Commons. A proposition was, however, now made for the entire abolition of that system, for the purpose of throwing the business into the Court of Chancery. The court was to be transferred he knew not where, nor did, he believed, the Solicitor General. The wills were to be deposited he knew not where, nor did either the Solicitor General or the Lord Chancellor. This system, which gave so much satisfaction, was to be abolished, as it appeared to him, merely for the sake of change; and the effect of that change would be to throw a great number of persons upon the world, and put the country to the expense of something like 100,000l. a year for compensation to gentlemen for not performing their duties when they were perfectly competent and willing to perform them with satisfaction to the public. Amendment was, as he had previously said, required; but the hon. and learned Gentleman would be satisfied with nothing less than destruction, and now proposed to abolish, at one fell swoop, a system which had been conducted for six centuries, and adapted itself to the requirements of the times, and to begin the world anew with a system which it would take a century to get in order. Where was the business to be conducted? The Government were not prepared with any plan for building new courts in places which would be the most convenient for the practitioners. The right hon. Baronet the Chief Commissioner of Works had told them that he was not aware of any place that would be fit for the purpose. There could not be a greater advantage to the administration of the law than to place the Judge in the centre of his business, and he might mention one fact in illustration of this assertion. Four years ago the Court of Chancery always sat at Westminster Hall in term time, and at Lincoln's Inn during the vacation. The business was so much better conducted during the vacation that an application was made to Lord Cottenham to sit at Lincoln's Inn in term time. His Lordship agreed to do so for two terms out of the four, and the change had worked so well that the present Lord Chancellor had acceded to a similar application, and the Court of Chancery now sat entirely at Lincoln's Inn. The gentlemen at the common law bar who resided in the Temple were exposed to great inconvenience in consequence of the distance of the Courts at Westminster and Guildhall. Now, the Court of Probate was in the centre of Doctors' Commons, amidst the offices of the advocates and proctors, and every facility was thus afforded for the transaction of business. It was not in law alone that the advantages he had alluded to were recognised. The underwriters of Lloyd's and the bankers of Lombard-street clustered round their respective centres of business. Now, supposing these Courts to be abo- lished, what substitute was to be provided for them? His hon. and learned Friend proposed to transfer them all to the Court of Chancery. But the transfer would be a transfer merely in name, for there was no accommodation in the immediate vicinity of the Court of Chancery. Under such circumstances, he asked why should the present state of things be disturbed? Now, with respect to the question of putting the proctors on half-pay. Such a proposition did not meet the justice of the case. Perhaps an old practitioner whose income was very large might be ready to retire on half-pay, but a man whose whole income was only just sufficient to live upon would find himself in a somewhat awkward position under such an arrangement. But to the junior members of the Court the Bill would afford no compensation at all, and great injury would be inflicted upon those clerks whose present position had cost them 800l. or 900l. And all this was to take place without any saving being effected to the public, because the stamp duties on probates were to be increased in order to provide what was called a compensation fund. Seeing that there was a great concurrence in the general principles of the Report he had referred to, he regretted that the Solicitor General had not taken a less extreme course. The hon. and learned Gentleman might have turned the Ecclesiastical Court into a temporal court, the judge to be appointed by the Crown instead of by the archbishop, and he might have made certain improvements with respect to which all would agree; but there was no excuse for the entire abolition of a system under which the business was well conducted, and at a moderate expense. It was a true saying, that if they gave a dog a bad name they might as well hang him, and so it was with the Ecclesiastical Courts. Certain persons took up a cry against them without knowing why, and Doctors' Commons was styled a terrible sink of iniquity. Well, then, his reply was, if a popular cry of that kind was to be taken as the measure of whether a thing was right or wrong, what would they say with respect to the Court of Chancery, improved and improving as he hoped it was? if a sink of iniquity was to be abolished, had they a better chance, in the public estimation, of finding a purer place by going to the Court of Chancery? It was said that the Lord Chancellor would make an order respecting the sitting of the Court. Now he (Mr. Malins) would venture to predict that if the Bill should pass in its present state, and the Court should continue to sit where it now sits, until an order to the contrary should be made by the Lord Chancellor, it would remain sitting there during the life of the last surviving practitioner in the Ecclesiastical Courts. He submitted to his hon. and learned Friend that it would have been far better if he had acted upon the recommendation of the Commissioners for removing the existing evils of the Court, and improving its practice. There was no more pretence for abolishing these courts than for abolishing the Court of Chancery. The Chancery system had been amended, and was working satisfactorily, and the system now under consideration ought to have been dealt with in a similar manner. Why, as he had just said, could not the Ecclesiastical Court have been converted into a Temporal Court, leaving the appointment of the Judge to the Crown, instead of the archbishop, and retaining the old practitioners, instead of throwing the Court open to the profession at large. Now, with regard to the common form business. As the law at present stood, when a will related to real estate, the question of the validity or invalidity of the will was submitted to a jury. Up to last year, when the will related to personal estate, even vivâ voce evidence could not be taken on the subject. The Commissioners recommended that the Court of Probate should have the power of submitting all wills to the decision of a jury. He perfectly concurred in that recommendation. He thought there could be no two opinions as to the desirability of probate being granted over the whole country, for it was most preposterous that a probate granted in York should not apply to Canterbury, and vice versâ. It was this state of things, the pension of Mr. Moore, and other abuses of that sort, which had really brought these Ecclesiastical Courts into disrepute. What he wished to accomplish by his Motion was to induce his hon. and learned Friend the Solicitor General so far to modify his Bill, as to remove from it those portions which proposed to transfer the jurisdiction of the Ecclesiastical Courts to the Court of Chancery. The petitions which he had that evening presented from a large body of the merchants, bankers, and traders of the City of London, headed by the Lord Mayor, and from 163 solicitors of the highest respectability practising in the Court of Chancery, against the Bill, showed that the change was not desired by the public or by the profession. Several of the eminent persons who had sat on the Commission had assured him personally that they were satisfied that this business could nowhere be better conducted than in Doctors' Commons, and that the transfer would be detrimental to the public. What justification, then, could his hon. and learned Friend have for bringing forward and persisting in this measure? Had the noble Lord at the head of the Government given the Bill his minute and deliberate consideration? for a heavy responsibility would rest on him if he allowed it to have the sanction of his position without a due examination of it. Had the right hon. Baronet the Home Secretary, under whose more particular cognisance these matters came, and who, having himself for some time practised in the Court of Chancery, might be presumed to understand the subject, given it his careful attention? In short, was this the Bill of the Lord Chancellor and the Solicitor General only, or had it been considered and sanctioned by the whole Cabinet? He appealed to his hon. and learned Friend to try the principle of amendment instead of that of abolition. Why not turn the Court from an Ecclesiastical into a Temporal Court, vest the appointment of the Judge in the Crown, and improve its mode of procedure instead of abolishing it altogether? If his hon. and learned Friend would consent so to modify his Bill, he could assure him that from that side of the House he would receive every assistance in passing it with all speed, and in making it as perfect and efficient a measure as possible.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."

Question proposed, "That the word 'now' stand part of the Question."

MR. COLLIER

said, he should support the second reading of the Bill not because he believed it the best possible measure, but a great improvement on the existing state of things. He should support it, because it was founded on the principle not of reforming, but of abolishing the Ecclesiastical Courts, these Gattons and Old Sarums of our judicial system. When his hon. and learned Friend the Solicitor General entered on the contest in which he is engaged with these courts, he did not seem aware of the extraordinary tenacity of life possessed by his foe. Twice, during two successive Sessions, did he enter the lists with Doctors' Commons, twice did Doctors' Commons apparently succumb to rise with renewed vigour, and this was the third assault of his hon. and learned Friend. The contest put him in mind of that of Evander with Herilus:— Nascenti cui tres animas Feronia mater (Horrendum dictu) dederat, terna arma movenda Ter leto sternendus erat. It would be indeed a proud day for his hon. Friend when he should be able to say, Cui tamen omnes Abstulit hæe animas dextra et totidem exuit armis. Having no wish to defer that day, he should abstain from taking any course which might endanger the Bill, at the sonic time he took this opportunity of stating his views as to the best possible mode of dealing with the subject. He held that there was no necessity for any separate Court of Probate at all. He thought the business of probate could be performed by the existing tribunals without the creation of a new court, or a new Judge, or any additional expense to the country. He held that there was nothing in a will by which a man disposed of his property after his death which made it more difficult to be dealt with than an instrument by which he disposed of his property during his life. In no other country was there a separate court to deal with wills. In Scotland they were dealt with by the Sheriffs Court and the Court of Session, and in America they were dealt with by the ordinary Courts and the County Courts; and even in this country, in former times, the County Courts had jurisdiction over wills until the jurisdiction was usurped by the Ecclesiastical Courts. The manifesto of the proctors pretended that the validity of a will was surrounded with so many technicalities and legal difficulties which none but a proctorial intellect could unravel them; but these legal difficulties were in reality no greater than those which arose with reference to deeds, leases, mercantile, and other contracts which were daily disposed of by the Courts of Law: nay, no greater than those sometimes disposed of at Quarter Sessions with reference to the settlement of a pauper. In his opinion no new or separate tribunal was called for, but the ordinary existing tribunals were sufficient. Let the County Courts be used for the purpose. Those courts were established for the local administration of jus- tice; their districts were marked out with reference to population, roads, railways, and other tests of public convenience. Why not use them for this as well as other branches of the administration of justice? Let them have jurisdiction in all cases of Probate in the common form. Let the County Court be the place where the poor man might take his will for probate, and let the original be sent to the central registrar's office, and let copies be kept in the County Court. That was enough for all uncontested cases. With regard to the contested cases, when the property was small, and if it was under 500l., it was not worth while to go into Chancery, or into any central court. When the amount was small, and a will was opposed, the question should be tried on the spot in the County Court; and the estate be administered on the spot. At present, however, justice was denied to a poor man in contested cases. Where the property was small the member of the family who happened to occupy it kept possession: the rightful owner submitted to exclusion as a less evil than a suit in the Ecclesiastical Court, and so things remained unless some active-minded attorney happened to interfere, which interference commonly resulted in the property being absorbed in costs, and the family fraternizing in prison. In his opinion, all these questions should be dealt with by the County Courts, and in that he did not differ from the hon. and learned Solicitor General, who said on a former occasion that he fully recognised the County Courts, and who, he believed, was not averse to this jurisdiction being conferred upon them. The next question was, what was to be done when the property in dispute was considerable. All such questions might be settled in the common law courts without the addition of another Judge. The courts of common law decided whether a man was sane or insane when real property was devised by will, nor would the country ever be satisfied unless such questions were tried by a jury. How did the law now stand? A jury might decide that a man was sane with reference to the disposition of real property; and the Ecclesiastical Courts might decide that he was insane with regard to his personal property. He would say, let questions of real and personal property under wills be decided by the same tribunals. Such were his views as to the best mode of dealing with this subject. The questions to be decided in the case of a disputed will were, the sanity of a testator, whether the will was forged, whether or not undue influence was exercised over him, and so forth, questions which ought to be tried by a jury whether they related to real or personal property: some other questions which occasionally arose more of law than of fact, such as what papers constituted the will? whether it was regularly attested? and so forth, might well be determined by the Common Law Judges, some of whom, as members of the Judicial Committee of the Privy Council, were in the habit of deciding these very questions on appeal from the Ecclesiastical Courts. Holding these opinions, however, he knew that if he were to insist upon them, the effect might be to throw out this Bill; and he was unwilling to do so, for he regarded it as a vast improvement on the present system. If the principle of establishing a separate court were admitted, it seemed to him that the court now proposed by the hon. and learned Solicitor General was as good a court as could be devised. He intended, nevertheless, to propose in Committee some clauses, engrafting a jurisdiction of the County Courts upon the system set forth in this Bill; and he should also propose that, in all disputed cases, parties should have a right to claim trial by jury. He also should feel it his duty, probably to take the sense of the House upon some of the provisions relative to compensation. The proposed compensation to the proctors seemed to him extravagant. If such claims of compensation were admitted, others would arise. The common-law bar had been deprived of a large income by the institution of the County Courts; and if a law were passed to simplify titles, conveyancing attorneys would be deprived of some of their profits; and were they also to be entitled to compensation? He (Mr. Collier) should support the Bill, subject to the modifications which he desired to introduce in it.

SIR FREDERIC THESIGER

said, he could not help expressing his surprise at the speech of the hon. and learned Member for Plymouth (Mr. Collier); for after having distinctly stated that he objected to every part of the Bill, he concluded by saying, as it was better than nothing, he should vote for the second reading, with a view of introducing some modifications of his own in Committee. Notwithstanding what had been said by the hon. and learned Member, he (Sir F. Thesiger) asserted that, with the exception of some part of the criminal jurisdiction of the Ecclesiastical Courts, which had of late years been gradually withdrawn, to the testamentary jurisdiction of these Courts there had never been made any well-grounded objection; and, so far from their having been subjected to general and universal censure, whenever a strong opinion had been expressed it had always been in favour of them. He was only anxious to have the best possible jurisdiction on this subject, as it was one of vital importance, and concerned the whole of the personal property of the kingdom. His feelings were very strong with respect to the course taken by the Solicitor General. They had, from 1832 to 1854, appointed Commissions for the purpose of deciding what it would be best to do with the jurisdiction of these Courts; and these Commissions had, with one solitary exception, reported in favour of their continuance. The hon. and learned Solicitor General was a Member of one of those Commissions, and he being in a minority of three to nine was perfectly aware that the Commissioners had recommended that the jurisdiction of these Courts should not be transferred to the Court of Chancery. The Commissioners said, that in their opinion, the interests of the public would not be consulted by a transfer of the uncontested testamentary jurisdiction to the Court of Chancery, and that such a transfer would be attended with all the inconveniences, without any of the advantages, incident to the constitution of a distinct court. The conclusion, therefore, at which they arrived was, that the testamentary jurisdiction ought not to be transferred to the Court of Chancery. What was the use of appointing Commissions to report their opinions upon important subjects, if, without any reason being assigned for such a course, measures were afterwards introduced utterly at variance with those opinions? Notwithstanding this Report, his hon. and learned Friend the Solicitor General proposed to create a fourth Vice Chancellor, to give him the powers possessed by the other Equity Judges to apply to his Court all the orders and regulations applicable to the Court of Chancery, and to allow an appeal from his decision to the Lord Chancellor—a proposition which was an entire violation both of the spirit and of the letter of the Report of the Commissioners. If the Ecclesiastical Courts had been so universally condemned as was asserted by their opponents, there must be some strong principle of vitality in them, or they could not have lived so long. Their existence had been threatened as long ago as 1641, and a humourist of the day had on that occasion drawn up a will for Doctors' Commons, of which he would read a small portion to the House, because he thought his hon. and learned Friend must have taken it as the model of the present Bill. It was to this effect:— I, Doctors' Commons, in the parish of St. Benedict, Paul's-wharf, London, being very aged, and finding by general computation that my time draws to au end, and being much shaken, both in body and mind, with a Westminster ague, yet of perfect mind and memory, to avoid all suits and controversies that hereafter may arise concerning my estate or any part or parcel thereof and to the intent and purpose that my contentious days may be consummated and ended in peace, do constitute, &c., this my last will and testament. For my personal estate (having never been possessed of any lands) I willingly bequeath my reverend judges, vicars-general, chancellors, commissaries, archdeacons, deans and chapters, and their surrogates, and also all high commissioners, judges, delegates, and legum doctores quoscunque to the High Court of Parliament, there to be cherished according to their merits and deservings. Then I bequeath all my registrars, deputy-registrars, proctors, examiners, and public notaries to the Court of Common Pleas at Westminster, to be admitted attorneys (if no prohibition be posted to the contrary). He then bequeathed his incontinent articles to Bloomsbury, Longacre, and other like places of good-fellowship; his libels of defamation to prudential scolds; his decrees to the Court of Chancery, in case they wanted any; and all the rest of his writings, rescripts, manuscripts, and superfluous papers whatsoever, to cooks, bakers, grocers, and chandlers. He believed he had accidentally brought to light the source from whence his hon. and learned Friend had derived his Bill. The testamentary jurisdiction of the Ecclesiastical Courts consisted of two perfectly distinct parts—the common form business and the contentious business—and there was not the slightest ground for an imputation upon the manner in which either portion of that jurisdiction was exercised. There was no foundation for maintaining that that Court was so bad and corrupt as to be incapable of reformation, and must consequently be utterly abolished. The duties of proctors in transacting the common form business were of immense importance, no less than 18,000 wills having been admitted to probate last year, involving property to the amount, he believed, of more than 50,000,000l., and he would state what was the opinion of the Commissioners with regard to the proposed abolition of that body. They said the evidence they had taken had fully satisfied their minds that this business had been carefully and efficiently transacted by the proctors, and they thought that to throw it open to attorneys and solicitors would be attended with no advantage, but on the contrary, with considerable detriment to the public. The most eminent attorneys, whose interest it would be to obtain a share of the business, had expressed a similar opinion, and his hon. and learned Friend the Member fur Wallingford (Mr. Malins) had presented a petition from the principle firms in London in favour of the continuance of the present system. If attorneys were admitted indiscriminately, the persons who would have to prove the wills would be the very persons who had made them, whereas it was part of the duty of proctors, who were not only agents of the parties, but also recognised officers of the Court, to point out to the Court any objections that might be raised to the wills before they were admitted to probate. If the Attorney were admitted to prove the will no such objection could be made. But it was proposed to admit 10,000 persons to deal with personal property to an enormous amount, and, although the attorneys were a highly honourable body of men, yet in so large a body there must be men of a different character; and let the House see the opportunity for fraud which would be furnished. An attorney had only to prove the will; he could then go to the bank and draw the money and get possession of all the funds. By this rash and dangerous experiment the Solicitor General proposed to trust to unknown hands, and to many who were possibly likely to abuse it, the duties which had been faithfully performed by the proctors. With regard to contentious jurisdiction, there were strong reasons for alleging that nothing could be more satisfactorily conducted than the business of the Court under the present system. The Judges of those Courts had been men of the highest intelligence and character, and whose judgments were studies for legal minds. What complaints were ever heard of the judgments of the Judges of the Ecclesiastical Courts on testamentary matters? Some of the counsel practising in these Courts were among the most learned and deeply read members of the profession, and at the present moment that learning was of the greatest importance, because connected as the Admiralty Court had been with the Ecclesi- astical Court, great advantages had arisen from the intimate acquaintance with international law possessed by the bar of these Courts. But his hon. and learned Friend proposed by his Bill utterly to destroy that advantage of having a skilled body of men qualified to discuss questions of such vital importance. He would beg to call the attention of the House to a passage in the Report of 1832. The Commissioners and Chief Justice Tindal in that report agreed in declaring that the connection between the Ecclesiastical and Admiralty Courts had been most useful, and that it was most desirable that the civil law should be well understood, especially in time of war. He had heard in the course of the debate the odious word "monopolists" applied to the profession practising at Doctors' Commons; but he would remind the House that the Common Law bar and the Chancery bar were practically divided, and that to the great advantage of the public and the credit of the profession. What reason had his hon. and learned Friend the Solicitor General for coming forward with such a measure? Had it been called for by the public or recommended by any authority on which the House could rely? Why did his hon. and learned Friend depart from the recommendations of the Commissioners, who had given their attention to the subject? He regarded the present measure as a rash and untried experiment, for which the country would have to pay a most enormous price in the way of compensation. They had a Judge presiding with great credit in a Court of testamentary jurisdiction, and yet his hon. and learned Friend had resolved that he should not remain there, although he was to continue to receive his entire salary as compensation for his removal from office. Compensation was also to be given to proctors and other persons, and they were called upon to pay this sum for an experiment which they had no reason to think would be satisfactory; even where the Court was to sit was to be matter for future consideration; and he would submit that when they were called upon to abolish the present Court, they should receive information that would enable them to adopt a safe course in making a change in the present system. The safe course, in his opinion, would be to adhere to the old foundation. It was true that it was not adapted in some respects to the present time, but instead of abolishing it they should attach to the present foundation the changes which the process of time had rendered necessary. He and those who acted with him had no desire to continue the local jurisdictions that had been condemned. The Ecclesiastical Court was a name which it was not desirable to retain, but let the Perogative Court and the Arches Court be blended in one Court, to be called according to the recommendation of a high authority, the Queen's Court of Probate. Then the Court would be built upon such a foundation as would adapt itself to the circumstances of the times. The whole of the machinery was already in existence for such a court, and it would give more satisfaction than the Court of Chancery. Anything more unsatisfactory, anything more extravagantly expensive than the course of examination in the Court of Chancery was hardly possible to be imagined. Yet, when this testamentary jurisdiction should be transferred to that Court, then immediately all the rules, orders, and practices of that Court were to be applied to it, and among the rest, the very cumbersome and expensive mode of taking evidence. With regard to written evidence, his belief was, that in a great number of cases where the evidence was of a complicated and conflicting character, the Judge would be better able to consider and contrast the evidence when written than when given vivâ voce, though in some instances it might be advantageous to have a vivâ voce examination. There could be no difficulty in having a jury in the Probate Court. It was in vain that his hon. and learned friend (Mr. Collier), who objected to every clause in the Bill, was willing to allow it to go into Committee, in the hope that the jurisdiction would be transferred to the County Courts. Let not the House deceive itself by any such notion. They were there to decide upon the principle of the Bill. Were they prepared to abandon what had been so long established? Would they sweep away the Ecclesiastical Courts which, with regard to testamentary jurisdiction, were as free from reproach as any court in the kingdom? Would they introduce, for the sake of experiment and trial, a new jurisdiction utterly disregarding the opinion of those Commissioners to whom they had intrusted this important question, and who had stated that all the existing machinery ought to be continued, and who had declared it to be their opinion that the present Ecclesiastical Courts might be reformed and adapted to the requirements of existing circumstances; or would they, contrary to the advice of those Commis- sioners, adopt the principle of the Solicitor General, one of the small minority of those Commissioners, and abolish those courts which had so long stood, not only for the advantage of themselves, but for the benefit of the public at large?

MR. ROUNDELL PALMER

said, he intended to vote for the second reading of the Bill, but certainly not because he was in any degree disposed to disparage the opinion of the majority of the Commissioners of 1832. With regard to the proctors, he admitted that they had ably discharged their duties, but it did not at all follow that because the gentlemen whose duty it was to administer an existing system had done it with advantage to the public, that, therefore, the system itself was one which ought to be supported. The question really was, whether this was a proper subject for law reform; and, if so, whether the reform proposed was one deserving the approval of the House of Commons? There had been an opinion long existing in the country that this was a proper subject for reform; and he thought that very good reasons had been assigned, for the opinion that the present testamentary jurisdiction was altogether in a state unworthy of those improvements which had taken place in other branches of the law. It was absurd to suppose that they could deal with this subject upon the notion that the existing system was a good system and was working well and satisfactorily in the country. The fact was, that they must recast the whole system, and the question that naturally arose was, how it was to be done? One great evil which would be remedied by the principle of the Bill was that division of jurisdiction that at present existed in a matter which was unity in itself, and which required to be consolidated. Why should it be necessary, in the nature of things, that you should have one court to decide what constituted a will and another court to construe the purport of that will? There was no ground whatever for such a distinction in principle. It appeared to him to be absurd to say that the Court of Chancery, after having determined how an estate should be distributed, should have no power of determining the instruments for its distribution. In cases of wills made by married women under special powers, and of instruments which were sometimes executed to avoid some Statute, such as wills made in the form of a deed to avoid the law relating to legacy or mortmain, the present system appeared to him to re- quire alteration, for even in cases of bequests fraudulently obtained, the Ecclesiastical Courts could not deal with the subject beyond the question of testamentary intention. The subject of real estate was only dealt with to a partial extent by the present Bill, but yet the way in which it was dealt with was a great step towards a consolidation of the whole subject of testamentary jurisdiction. The present system gave rise to great absurdities; for instance, in a case of litigation with regard to the validity of a will, first, there was a suit in the Ecclesiastical Court, then at the same time a Bill was filed in Chancery to manage the estate and take possession, and then there was another suit about the real estate sent to be tried by law upon an issue directed by the Court of Chancery. Such a state of things was a disgrace to the jurisprudence of the country, and he should support the second reading of the present Bill because he thought that it tended to establish the consolidation of all testamentary jurisdiction. The Bill appeared to him to be a much nearer approach to the recommendations of the Commissioners and to that which hon. Members opposite appeared to him to wish for than any one would imagine who had heard the strong language which had been applied to it in the course of the discussion. In all points but one it did, or enabled to be done, what the Commissioners recommended; and as to common form business, it appeared to him to give the power of adopting all that was useful in the present system, the working of which was so much praised by hon. Members opposite. Perhaps it might be said that his reason for taking the course he proposed to adopt was that he was a Chancery lawyer, but he thought himself entitled to take that course when he considered how much of the business of the Court of Chancery referred to testamentary matters, and that, in fact, that Court had for centuries exercised the entire administration of property under wills. If consolidation was aimed at, therefore, he thought this testamentary business must be transferred to the Court of Chancery. As to the question raised about proctors and attorneys, he did not believe there was any weight in the argument that there would be greater liability to frauds in the concoction of wills under the new than under the old system, for the attorney had now just as great opportunity for malpractices as he would have then. But that assurance which the integrity of the proctors gave would still not be lost to the public. There would be a staff of officers of the Court selected from the very quarter in which these proctors practised—from among the proctors themselves—who would bring into he new Court all that experience, caution, and character which was obtained under the present system. Again, with regard to the advocates and the peculiar learning they possessed, it would undoubtedly be much to be regretted if that branch of learning should become extinct in consequence of the change contemplated; but, as long as you had in this country important branches of law to be administered upon the principles of that learning, he could not doubt that there would be persons who would find it their interest to qualify themselves in it. Altogether, it appeared to him that the objections made to this Bill were founded upon misapprehension of its nature, and that although the subject was difficult, and although reasons of very considerable force had been given, and might be given, in favour of a different arrangement, yet the plan now proposed recommended itself to his mind as an approximation to, or at least the first step towards, that consolidation of the whole testamentary law under one jurisdiction which, as it appeared to him, ought to be the object of their legislation. For these reasons he should give his support to the second reading of the Bill.

MR. WHITESIDE

said, he was quite unprejudiced in this matter, for he belonged neither to the Court of Chancery, nor to the Ecclesiastical Courts, and he thought their lot hard when they had to choose between the two. The hon. and learned Gentleman the Solicitor General was naturally of opinion that there was nothing like leather; in other words, that there was nothing like Chancery. Now, the House would recollect that the Bill introduced last year came before them in four shapes; and that after all the alterations and amendments introduced in it the measure was withdrawn, when it was found that the House would not support it. Everybody owned then, as they did now, that the Ecclesiastical Courts ought to be reformed, the only question being how these reforms should be accomplished, and bearing upon this point there was one important question and reply in the evidence taken before the Commission, which seemed to him of the greatest importance. One of the witnesses was asked—"Does one will in 100 of those admitted to probate come into Court for administration or construction?" The answer was, "I believe not." From this, then, it appeared that where one will was the matter of dispute, ninety-nine were not disputed, and his own experience went to show that in such cases there was no Court in the kingdom the business of which was so cheaply, so well, and so rapidly transacted as the Ecclesiastical Court. The recommendation of the Commissioners involved a cheaper, quicker, and better plan than that which was proposed by the Bill, and he saw no reason why it should not be adopted in preference to the measure before the House. Every proctor who practised in the present Court was known to the Court, and he believed that of late years there was scarcely ever a case in which a forged will had passed Doctors' Commons. No frauds were practised under the present system. The Bank of England, private bankers, and professional men generally approved of it, and the only persons who objected to it were practitioners in the Court of Chancery. Reform, properly speaking, meant amelioration and improvement; but to change when nothing was to be gained was not to reform. He objected to the proposed measure because it did not reform, and because there was not an evil in the existing law which it would really remedy. He therefore asked the House to adopt the Bill recommended by the Commissioners, which would remove every abuse, and settle every difficulty, and which had been strongly advocated by the Bank of England. He trusted that they would not yield to ignorant clamour against the Ecclesiastical Courts, and send the whole of this business to the Court of Chancery, which it had taken upwards of forty years to reform. The safe and prudent course would be to reform the Ecclesiastical Courts, which would be infinitely preferable to transferring the whole jurisdiction of those Courts to the Court of Chancery.

MR. HEADLAM

said, that the people of this country had much reason to complain of the course adopted with respect to these courts, both by the Government and the Legislature. It was now more than thirty years since the propriety of reforming these courts was first mooted, and during that time changes had been introduced into all the other courts of the realm and into many of its institutions, but all attempts to reform the Ecclesiasti- cal Courts had been uniformly rejected. And he could not help feeling that this Bill appeared very likely to meet the fate of its predecessors; for, although he was inclined to vote for its second reading, he could not deny that it was open to serious objections, for there were many evils that would result from its adoption. The one which pressed most upon him was as to the manner in which it would affect the poor people. The greater number of wills brought in for probate related to sums under 100l., and the proof of wills, could not, like other legal matters, be avoided. Now, he felt that this measure must necessarily increase the cost and difficulty of proving wills, by compelling all wills to be proved at a central office. They were now proved by the Registrar in the nearest county town, without the intervention of an attorney or a proctor, at a cost of 2l. or 3l. But if this Bill were passed the will must pass through the hands of a country solicitor and his town agent. There would be fees to both, and probably a correspondence between them, which would, of course, accumulate costs, besides the fees of the court itself. Then there was another thing. The rules of the new court must be very stringent in order to prevent causes of fraud occurring. But if so there must be numerous checks entailing heavy expense, and preventing any person passing his will without professional assistance. Now, the necessity of these forms was now dispensed with, since the person coming to prove a will was in all probability known to the Registrar, and was not, therefore, likely to attempt to practise a fraud upon him. Besides, there could be no doubt that there must be a very large staff of officers in the new court to perform the duties now discharged by the proctors, and if so, of course the fees for their payment must necessarily be heavy. He would not at this time allude to the necessarily large amount that would be required for compensation. He thought they had not yet considered fairly what were the wants of the people of the country on this subject. The first great evil in connection with these courts was one which was rather a matter of feeling. There ought to be nothing of an ecclesiastical character about courts having jurisdiction of a testamentary character. The Judges ought to be appointed by the Queen, and all connection between them and the ecclesiastical organisation and the ecclesiastical divisions of the country cease. If this evil were removed, and some defects in the method of procedure were removed, he believed there would be no difficulty in establishing district courts which would give general satisfaction, and would attain the objects sought for both inexpensively and efficiently. Under the present Bill they were about, at an enormous expense to the country, to establish what he would call a non-effective establishment; and he for one should cordially give his vote against the measure.

MR. R. PHILLIMORE

moved the adjournment of the debate.

Debate adjourned till Monday next.