WILLS AND ADMINISTRATIONS.

HC Deb 30 March 1855 vol 137 cc1429-64

THE SOLICITOR GENERAL

rose to move for leave to bring in a Bill to abolish the Jurisdiction of all the Ecclesiastical and Peculiar Courts in England and Wales respecting Wills and Administrations, to establish a distinct Court of Probate and Administration, and otherwise to amend the law in relation to matters testamentary. The hon. and learned Gentleman said, that in doing so, he was oppressed with the recollection of the many abortive attempts which had been made during the last thirty years to accomplish the object which he was new about to attempt to effect, and which he was sanguine enough to believe would now be attempted for the last time. The grievances to which he now hoped to put an end had been acknowledged, and had occupied the attention of successive Parliaments, for a period extending over that length of time. Such, however, had been the pertinacity with which every attempt to reform these courts had been resisted, and such had been the success of the efforts of the numerous persons interested the maintenance of these testamentary courts, that he believed as many as ten or twelve successive Parliaments had been quite unable to accomplish a change, and that during that period about a dozen or fifteen Bills which had been introduced for the purpose of providing a remedy for the acknowledged abuses had failed. Something, perhaps, was to be attributed to the peculiar disposition of the people of England; for when any grievances complained of in their institutions were proposed to be reformed or amended, there was always very great difficulty in conquering the feeling which they entertained, and which particularly distinguished the people of this country—the feeling that the institutions under which they lived were the best possible for the purposes for which they were established, and that there was no necessity for altering them. That difficulty having been overcome—after the grievances had been pointed out and proved, and something in the way of remedy proposed—the people at once transferred their attention from the grievances to a criticism of the proposed remedy, and refused to entertain them unless they were satisfied that they were the best that could possibly be imagined; and accordingly every proposal which had been made to apply a remedy to the evil now complained of had been met by a great number of objections, and the Bills had been rejected. He was not so sanguine as to believe that his measure was not liable to a great number of objections; but he earnestly hoped that, as attention had been awakened to the absolute necessity of providing some measure calculated to put an end to the evils complained of, this measure would be accepted, although it might not exactly accord with the views of every individual who might entertain theoretical speculations of his own, and who might think that it was not the best adapted to provide a better system as a substitute for the present system of jurisdiction, which was acknowledged to be imperfect, and the grievances of which he would now attempt to describe. He would, however, under the circumstances in which the House was now placed, not attempt to detain them by enumerating the many evils Which resulted from the jurisdiction of the present courts, and which imperatively demanded the interference of the Legislature, as that had been done on many former occasions; and the necessity for such interference had been acknowledged, as he had before observed, for a great period of time. But it would perhaps be well to look back for the purpose of ascertaining what had been done by the many Commissions which had been issued and the Committees that had been appointed, in order to ascertain what grievances had been acknowledged and exposed by the several inquiries into the subject. From the experience to be derived from these inquiries he now hoped to be able to devise for these evils other expedients, and to construct a measure which would include, and comprehend within it, at all events, those things which the several Commissions and Committees had thought fit to recommend to the notice of the House.

It would be remembered that, in the year 1830 a Commission was issued to a great number of distinguished persons—eminent Judges, both of the courts of law, the courts of equity, and of the ecclesiastical courts, and with whom certain members of the right reverend bench and eminent statesmen were associated—in order to ascertain what remedies should be applied to the existing state of things regarding testamentary jurisdiction. The Commissioners made a report in the year 1832, and the result of their deliberations was, that they recommended the abolition of that numerous body of smaller ecclesiastical and peculiar jurisdictions which were spread over the whole face of the country; and that the whole of the testamentary jurisdiction should be consolidated into the two Prerogative Courts of Canterbury and York. But though they recommended the preservation of these two courts, yet they gave expression to a unanimous opinion that it would be still better if those two courts of Canterbury and York were united into one establishment, and made one metropolitan tribunal, as a court for disposing of the whole testamentary business of the country. Very shortly after this report was made—in the year 1833—the Real Property Commissioners made their fourth report to Parliament. In that report they recommended, in like manner, that all diocesan and peculiar jurisdictions should be absolutely abolished, and that one metropolitan court should, in like manner, be established for carrying on the business of those jurisdictions. These Commissioners differed, however, from the recommendation of the Ecclesiastical Commissioners in one particular, and the difference was well justified by a passage which was to be found in the report of the Commissioners themselves. In the report of the Ecclesiastical Commissioners it was stated that the jurisdiction of such a court had in it nothing of an ecclesiastical character, and they admitted that it was one of purely a civil nature; and, on this point, the Real Property Commissioners remarked, that it was a strange anomaly, and one which required to be put an end to without delay, that there should exist in this country courts of purely civil jurisdiction which they did not derive from the Crown, the fountain of justice, and which did not exercise their functions in the name of Her Majesty. The Real Property Commissioners recommended that the whole jurisdiction of these courts should be transferred to the Court of Chancery. Subsequently to that report, in the same year, a Select Committee was appointed by the House to consider the subject; and when they made their report, among many important and valuable suggestions, they stated that they concurred in the opinion expressed by the Ecclesiastical Commissioners, that the whole of the jurisdiction should be centred in one tribunal, which should be locally situate in London; but the Committee recommended that the tribunal to be erected should not belong to the Prerogative Court of Canterbury, and that it should be extended to include the whole testamentary business of the king- dom. Subsequent to that period, a Committee of the House of Lords was appointed, and they also arrived at the conclusion that there should be but one testamentary court, and they recommended an entire abolition of all the minor jurisdictions in the kingdom, and that all the jurisdictions, whether ordinary or contentious, should be centred in one tribunal in the metropolis. The result, then, of the whole examination of the subject and the authorities collected by all these numerous Committees, composed of men of great ability, political sagacity, and legal experience, was, that there should be but one single tribunal, and that established in the metropolis, for the purpose of disposing of all the testamentary business of the country, both ordinary and contentious, and that that tribunal should be a civil tribunal—that there was nothing either in the history or the origin of these courts, the nature of their jurisdiction, or the mode of its exercise, which could lead them to recommend that such jurisdiction should continue to be vested in an ecclesiastical tribunal. This he had endeavoured to accomplish as the first object of the Bill he was about to describe. But, besides the reports of the Committees and Commissioners to which he had referred, he must now call the attention of the House to another. It would be in the recollection of the House that, after the several reports mentioned had been presented, a report was made by the Chancery Commissioners at the end of 1837, and a second report of the Chancery Commission appointed in 1850 was made in 1852, in which their attention was expressly directed to testamentary jurisdiction. Those Commissioners were not entirely unanimous on the nature of the court to be established. Some of the Commissioners recommended that the present jurisdiction should be transferred to one central metropolitan tribunal, but that it should be a distinct court, with limited authority. In this respect the report of the Commissioners was not very harmonious with itself, for while they recommended a court with a limited authority and a prescribed course of action, they said it was expedient that that court should be armed with the fullest powers appertaining to a court of final construction and universal administration. They recommended that the court should be so constituted as to be able to entertain all the subjects belonging to an ordinary court of probate, and all those incidental to a court of equity. A Bill was brought in during the last Session of Parliament, which, to a certain extent, was founded on the recommendations of this Commission. The Bill proposed to transfer the testamentary jurisdiction of the present courts to the Court of Chancery, in conformity with the opinions expressed by some of the Commissioners, and in conformity to the opinion of the Real Property Commissioners of 1833. To that Bill, which was very little understood out of doors, great objections were raised, which he had recently seen repeated. It was said to be the intention to throw the whole of the business, including the proof of the wills and the grant of letters of administration, into the general mass of business of the Court of Chancery. Now, nothing of the kind was intended; but he confessed that the Bill was so expressed as actually to lead to that impression. The result, therefore, was, that from these and other causes that Bill could not be proceeded with; and, warned by the nature of the objections raised last year, he had now endeavoured in his Bill to avoid all those difficulties, and to render it impossible that any such misapprehensions should be again entertained.

The first thing he proposed to do by this Bill was to vest the whole jurisdiction in relation to wills and in relation to granting all letters of administration—that was, the authority to deal with all matters which might be called matters of testacy and intestacy, in one metropolitan and central court, deriving its authority from, and exercising its jurisdiction in, the name of the Crown. It would be a civil court—a distinct court for all purposes, which he would shortly explain to the House. It would be necessary, according to his view, that the tribunal should be constituted in a court which was already a court of construction and administration—that it should participate in the fullest powers of that court and be itself a portion of the court, in order that the duties incidental to a court of probate might be fully and efficiently discharged. He proposed that the court should be established in the Court of Chancery; but that it should be a distinct court, having a judge and officers, and clerks of its own, and to be called "Her Majesty's Testamentary Court." It would exercise a complete, though not exclusive, jurisdiction upon all subjects relating to the proving of wills and the granting of letters of administration. He proposed to attach to the court, and to be also locally situated in London, an office having large and comprehensive testamentary duties. He proposed also to abolish entirely the whole of the jurisdiction now vested in 380 or 400 peculiar and diocesan courts, which were scattered over the whole of the country, and which, if it were worth while to enter into a description, would present a most ludicrous and absurd spectacle of divided jurisdiction, and make hon. Members wonder how it was possible that they should exist in a civilised country. The testamentary office attached to the court would be open to all Her Majesty's subjects to come in and prove wills and obtain letters of administration, without the intervention of, and without the necessity of employing any solicitor, any proctor, or any agent whatever. It would be the duty of the officers, at the head of this office, to promote the means of giving information, and to explain and give every information to all persons who might think proper to come in person for the purpose of proving wills. In cases where persons resided in the country, and where it would not be possible for them to come to the office personally, for the purpose of proving wills, the solicitors throughout the country who were Commissioners of the Court of Chancery would be armed with authority to receive wills, and to administer oaths, and to supply information, and to obtain such evidence as might be required as necessary proof, and requisite for proving all wills. They would procure affidavits, and take depositions, which would afterwards be deposited in the Testamentary Office of Wills in London. The Bill was framed so as to render this practicable, and so that there should be no mistake upon the subject which was a very important one; and in order to show the efficiency and economy of the plan, he would describe the machinery which would be set at work by the Bill. He proposed that there should be issued to all Commissioners for taking affidavits in the Court of Chancery—who, probably many hon. Members of the House were aware, were persons in the profession of the law, who had been recommended to the Lord Chancellor especially, on account of their good conduct for the appointment—that there should be issued printed forms of instructions with regard to the mode in which they should proceed in the exercise of their new duties. They would be furnished with printed forms of affidavits for taking depositions and making declarations in conformity with the provisions of the Act and with the various circumstances of the case. Printed declarations would also be issued to be signed by the parties applying for the proof of wills. In former times, and before the Act 1st Vict. c. 26, the probate of wills might be described as a mere process for authenticating the instrument; but since the passing of that Act—which herein perhaps might be thought not a very wise one—the duty partook of somewhat a judicial character and was no longer confined to what might be described as a mere matter of business. The duty of proving a will was now performed by officers to whom the ordinary business, which was technically called common-form business, had been assigned. Many duties were discharged by these officers which required a certain degree of attention, and which required also some skill on their part. When a document was produced to a solicitor or a proctor for the purpose of being proved as a will, it was the duty of that solicitor or proctor to examine the instrument to see whether it were duly attested, whether it appeared on the face of it to be signed in the manner required by the law, whether it bore any mark of interlineation or erasure, whether it consisted of one or more papers, whether there was a special nomination of executors or not, or whether there was a provision for a residuary bequest, and also to ascertain who the person was who appeared to be entitled by the terms of the instrument to have probate granted him. All these duties being as important in character as they were minute and numerous in detail, it was scarcely reasonable to expect that they should be performed with perfect and absolute accuracy by a person acting in an individual capacity in the country, unless his acts were subjected to the supervision and superintendence of the appointed officers in the General Office of Testamentary Jurisdiction in London. What he should propose, therefore, was, that the solicitor or proctor in the country should, after submitting the will to such an examination as he had described, send the document with all necessary accompanying documents up to London to the Testamentary Office; and when it was received there, it would be the duty of a registrar of that office to examine the papers so transmitted, in order to ascertain that the duties devolving on the agent in the country had been properly discharged. If any difficulty should arise, there should be a reference first to the registrar highest in authority, and then, if necessary, to a Judge sitting in chambers. If the will should be found to be in all respects a regular document, it would be at once admitted to probate, and letters to that effect might be transmitted without delay to the solicitor in the country; and thus all necessary arrangements would be both simplified and expedited.

And here he proposed to make an important and, as he thought, a most valuable alteration in the present law. He proposed that the simple process of printing should be at once resorted to—and that, instead of sending down the inconvenient oldfashioned and useless parchment copy engrossed by a lawyer's clerk, the documents, the moment they were proved in the Testamentary Office to be correct, should forthwith be printed; that some fifty or sixty copies—as convenience might dictate—should be struck off; that the proper stamp of the office should be affixed to one copy, and that there should be appended to all the others a seal representing the stamp affixed to the principal copy; and, finally, that the will, so proved, printed, and authenticated, should be forwarded to the executor or the agent of the executor. The advantage of this system had already been experienced in the Court of Chancery with regard to the printing of Bills; and there could be no doubt that it would work in an equally satisfactory manner when applied to the printing of wills. The question of expense was important; but he was happy to say that, in this respect, there would be no detriment, but rather benefit. At first sight it might be supposed that it would involve a material addition of expense—but this was not so; on the contrary, it would produce much greater economy. The present charge in the Prerogative Office for engrossing and making office copies of papers or documents was at the rate of 8d. per folio, which meant a sheet of ninety words. But then that charge was made for every copy, and as the same charge was made for entering it in the registry, scarcely any will was admitted to probate at a less cost than 1s. 4d. a folio; and as several office copies were usually required, it could scarcely be expected that under the present system the charge for copying a will admitted to probate could amount to less than from 2s. per folio, and the parties could only get one, or at most, two copies of the will. But the system which he proposed to introduce would occasion a great improvement in this respect; for, according to the most accurate estimate that could be formed, he found that the charge for printing and supplying 100 copies of a will would only be 9½d. per folio; so that the executor might receive any number of printed copies of a will that he required for a sum of money little more than one-half of what he had to pay for the cumbrous, perplexing, and misleading copy on parchment—he so characterised the parchment copy, because, from his experience in courts of justice, he was aware that many of the errors, misapprehensions, and mistakes made with regard to the meaning of testamentary documents arose from the difficulty which unlearned persons experienced in collecting the meaning of an instrument, when they had to read it in a written form, and more particularly in that form of writing known as "engrossing." The reading of a printed paper became so simple, and was so intelligible to the ordinary persons who wished to know the meaning of the will, that he hoped he might not be too sanguine in expecting that the introduction of a printed copy would facilitate the apprehension of the meaning of the instrument, and prevent much mistake, and, by preventing much mistake, prevent also touch litigation. But there was another and an obvious advantage which he was sure the House would anticipate him in understanding. The great object which they had in view was to establish in the metropolis and in the country registries of documents which would be of use, not only for the people immediately interested, but which would be also of use for statistical purposes; and, without any additional expense, by printing the copies, a copy could be registered in the Testamentary office, another copy could be filed in the office of the registrar of births, deaths, and marriages, and thus those instruments when collected would form an important addition to our statistical information. And, by making one probate universal in the three kingdoms, they would be enabled to send a copy to Ireland or to Scotland, or to the registrar of the diocese, or to the clerk of the peace, or the parish in which the testator might have died. The instrument, when thus printed and sealed with the seal of the court, would be sent down to the executor, and he could afterwards have whatever copies he might require, instead of copies merely of extracts, as under the present system. This was the form in which he proposed that letters of probate should be sent to persons at a distance. For those who were willing to come to the Testamentary Office there would be officers ready to give every necessary information that could facilitate the proving of wills and to swear them to their affidavits. So much, therefore, with regard to the ordinary form of proving wills where no dispute or controversy occurred.

With regard to cases of dispute or controversy, he proposed that the mode of procedure should be of the simplest and most expeditious character. Caveats would be entered in the Testamentary-office in the same manner as they were now entered in the Perogative Court. If it were necessary to have a suit to determine the sanity of the testator, or any other matter touching the validity of the will, a suit should be commenced in the simplest and most summary form, by a simple claim in the Court of Probate wholly devoid of any legal technicalities. The claim would be filed in the court against the parties who were interested in the question. The suit would then proceed either by a vivâ voce examination of the parties—which was a power which he desired to give to the court, and which, he hoped, it would exercise in the fullest manner—or by Written deposition, according to the nature of the case. There were various other provisions in the Bill which it would be beyond the present purpose to enumerate, but which were intended to make the proceedings under it easy, simple, speedy, and economical. Hon. Gentlemen present, who were familiar with the practice of the courts, were, no doubt, aware that a great alteration hail been made in the jurisdiction of the Court of Chancery. His great object in fixing the Court of Probate in the Court of Chancery was to add to the former the functions of a court of administration in addition to those of a court of probate. This was a matter of such deep importance, and one which, sooner or later, must concern all, that he might perhaps be pardoned if he detained the House a few moments while he pointed out the great necessity of this provision. Under the present system, supposing there were a controversy about granting probate, or letters of administration, nothing could be done to collect or administer the property until that controversy were settled. The result, therefore, according to the present state of things, was that, if there was a suit in the Ecclesiastical Court, it became necessary to have another suit in the Court of Chancery to enable the parties to obtain some authority to prevent the estate going to ruin, and to enable them to get legal power to collect and preserve the property. But at present, the jurisdiction of the court was very imperfect, and although it could give the parties authority to collect, they could not give authority to administer the property. The result was, that the whole of the affairs of an estate were suspended, to the great detriment of those who were interested in it, during the time that the will was in litigatoin in the Ecclesiastical Court. If, however, there were added to the ordinary functions of the court of probate the functions of a court of administration, there was no reason why the ordinary duties of administration should not be performed while the other questions were pending; and it was accordingly proposed that the court which entertained the question of what person ought to be admitted to probate, or of the validity or invalidity of a will, should be empowered to receive, to collect, and to administer the estate up to the time when it was handed over to the person entitled to it. It was palpable, therefore, that as long as probate and administration were severed, the authority was insufficient, and the parties interested in the property were mocked in their desire to have one uniform tribunal capable of answering all the purposes of the case. Neither was it possible to have a comprehensive and complete remedy, unless resort were made to a court which could give probate and administration also. This was the reason why he was anxious that the court of probate should be a court with the power and authority belonging to that tribunal which, in the present day, was the only tribunal known to this country which could discharge at once the functions which belong to a court of construction and of administration. There was at present this absurdity in the existing system, that the Ecclesiastical Court had no power to construe a will except for the purpose of determining to whom the probate should be given, and the interpretation of that court was not binding upon the tribunal to which the will might afterwards be submitted for the purpose of ascertaining the rights of the parties interested under it. A court of probate which was not also a court of construction might put an interpretation upon a will which might be afterwards held to be incorrect by a court of final construction; and it was plain, therefore, that if we wanted uniformity of jurisdiction, and not to drive persons first to one tribunal to get a small piece of justice, and then to another, and afterwards to a third; and if we wished to put an end to the anamoly of the present state of things, we must give to the new court of probate all the power, all the authority, and all the functions which were necessary not only to enable it to discharge the functions of a court of probate, but of a court of jurisdiction also. These were the reasons which induced him to endeavour to make the new court one which would answer every purpose of the suitors resorting to it, and he believed he could best accomplish this object by connecting it with the Court of Chancery, a court of administration and construction, not to give it a separate and independent character. Various improvements had recently been made in that court with regard to the administration of estates. In former times when a person was left a legacy under the will of a testator, it was necessary for him to file a bill in chancery against the executor or administrator to recover the amount; but under the present system he had only to go to the chambers of a judge, where he could get a summons for a few shillings, which he could serve on the executor or administrator, and by that means bring him within a day or two, before the court to answer why the debt or legacy was not paid. He knew repeated instances in which the parties had gone personally without the intervention of a solicitor, and obtained a summons; and, when the executor had attended in obedience to the summons, the clerk said, "Why have you not paid the legacy or the debt?" Sometimes the executor offered some excuse, and, if it were not satisfactory, the clerk said, "We must make an order for you to pay the money." This generally led the executor to pay, and thus in the course of a few days, the money was recovered at an outlay of a few shillings only. He, therefore, thought that the new court should be a part of a tribunal the procedure of which had been thus rendered simple, cheap, and inexpensive, and that he was not exposing this measure to any apprehensions, such as those which were entertained with respect to the Bill of last year, and which he had seen expressed in the ordinary journals of the day—that by transferring this jurisdiction to a court with the same procedure and powers as the Court of Chancery, the individuals who resorted to that court would be exposed to delay, expense, and those other kinds of objection which formerly might, with propriety, have been urged against the procedure of the Court of Chancery. So much for the manner in which he proposed that the new court should act in matters relating to wills of personal estate.

Many Members of the House would probably be aware that in the Reports of the Real Property Commissioners and the Chancery Commissioners, recommendations had been constantly made that there should be no distinction upon the subject of probate, between wills relating to personal estate and wills relating to real estate. Wills relating to the one or other were seldom found to be contained in separate instruments. It was rare to find that a man made a will relating to his personal estate, and another will relating to his real estate. He might do so legally; but hon. Members were probably aware that though the probate of the will was conclusive with regard to the personal estate—and great benefits and advantages had resulted from that rule of law—yet the probate of the will, granted as it was, after proof of the execution of the will, did not carry with it any evidence, or have any effect whatever with regard to the title to real estate. Our law, therefore, in the present state of things, produced this singular anomaly, that they required the same mode of execution, and the same attestation with regard to wills whether they related to personalty or realty; yet, after the will had been established in the proper court as one of personalty, the validity of the same instrument was not established as regarded real estate. Nay, there was still a stronger absurdity. One and the same will might give rise to half a dozen different and conflicting determinations. A man made a will with regard to his personal estate, and in the Ecclesiastical Court he was pronounced to be of sane mind and understanding, and probate was granted. Neat day the heir-at-law brought an action against the devisee, and the court of law sat in judgment on the same question, and came to a different conclusion. Another devisee of another portion of the property might again Contest the same question, and the court of law might come to a different conclusion from that of the first. The decision of the Prerogative Court might be carried by way of appeal to the Judicial Committee of the Privy Council, whose decision was final and irreversible. The decision in the other case might be taken to the House of Lords, whose decision was equally final and irreversible. Thus, they might have with respect to the same instrument two final and irreversible courts arriving at conclusions directly in the teeth of each other—the one pronouncing the will to be invalid and the testator insane, and the other pronouncing it valid, and that the testator was of sound and disposing mind, and of sufficient testamentary capacity. It was high time that this anomaly should be put all end to; and that there should be a power of arriving at some final conclusion with regard to the validity of wills of real estate. In the Bill of last year it was proposed that wills of real estate should be proved in the Court of Probate in like manner as wills of personal estate. That was a provision which excited great alarm—an alarm that was increased by the mere circumstance that the expressions used were, that such a Bill should be proved "in like manner as a will of personal estate." Probably that alarm arose from the supposition that it was intended as the first step towards applying the probate duty to land; and, not being desirous of giving occasion to a similar apprehension, he had not incorporated in his Bill those clauses of the former measure relating to the proof of wills of real estate which had given rise to those terrors in the minds of some hon. Gentlemen, and induced the belief that there still existed in the procedure of our courts of equity those abuses which were at one time urged as a just and serious ground of complaint against that tribunal. There was, however, in existence in the Court of Chancery a procedure which would answer the same purpose, and would not afford the same grounds for apprehension and alarm. They had long been in the habit, in courts of equity, of entertaining bills for the purpose of establishing wills of real estate, and by declaring the residuary fund to be available for all purposes in reference to the establishment of the will. He proposed that, in the Court of Probate, any person interested in real estate under a will should have the power of bringing forward that will for the purpose of having it finally and conclusively established. In the present state of the law this evil existed—a will might be found, after the death of the testator, creating a variety of successive estates—estates in remainder—and the result was that the heir-at-law most probably entered on the possession of the property, and yet it was utterly impossible for him to say that he should ever have a conclusive title to that estate, or that the alleged incapacity of the testator should be considered as finally settled; for as each successive estate in remainder came into possession, the remainder-man had a right to try the question with the heir-at-law. Hon. Members might be aware that it was impossible that in cases of this kind the question of testamentary capacity or incapacity of the testator could be finally determined. He therefore proposed that, in the Court of Probate, these questions should be brought on claims or bills for establishing wills, or for pronouncing conclusively for the testacy or intestacy of an alleged testator, and the questions would be once for all determined in those cases. The result would be that the court would be enabled to pronounce either for the validity of the will or for the intestacy of the testator, and a title would be created by the decree, either fully establishing the will, or delivering to the heir-at-law a certificate of the intestacy of his ancestor, which would make his title secure. By this mode the object of granting probate of real estate would be accomplished, and an end would be put to a variety of evils which now required the application of some such effectual remedy. In effect, the new tribunal—if he had succeeded in conveying his meaning to the House—would be an exclusive court for all questions relating to the validity or invalidity of wills, whether of real or personal estate.

There was another object sought to be attained by the measure of which the House would at once see the advantage. According to the present state of the law the executor represented the testator, as regarded his personal property, and had most complete power over his personal estate; but with regard to real estate there was no person who so represented the testator. If it were necessary to sell a part of the real estate to pay debts or legacies, or to pay portions, or to raise money by way of mortgage—for all the purposes which arose in the course of the administration of an estate when the real estate was called on to be auxiliary to the personal estate—from the want of a person to deal with the real estate, neither of these objects, so useful and necessary, could be effected without resort to the Court of Chancery and the institution of a regular suit. He proposed that the Court of Probate should be enabled, in certain cases where it might seem necessary or expedient, to appoint, with respect to the real estate, a person whom he would describe as "the real representative," and that he should have, for all purposes of administration, power and authority, with respect to the real estate, correspondent with the power and authority over personal estate vested in the executor. These were the means by which an efficient administration of real and personal estate would be accomplished by the power and authority which it was proposed to give to the Testamentary Court.

The next subject, which was of extreme importance, was, to consider how he proposed to deal with the numerous class of persons—the judges, the registrars, the officers, and the proctors—who would be thrown out of employment—who would be deprived of their offices by this sweeping and universal change. Before he spoke further on this subject, it would be necessary to remind the House of what had been done by former Parliaments on this subject, and in anticipation of the time when the reform—now, he hoped, about to be accomplished—would take place. By the Act of 6 & 7 Will. IV., c. 77, it was provided— That in case the office of judge, registrar, or other officer of the ecclesiastical courts of England and Wales, except the Prerogative Court, should become vacant during the period therein mentioned, the persons who should be appointed thereto should accept and take such offices subject to such regulations and alterations as thereafter might be made by Parliament; and should not, by reason of such appointment, acquire a vested interest in any office, or a title to any compensation in respect thereof; in case such office should thereafter be abolished by Parliament. The time specified was twelve months, or to the then next Session of Parliament. That Act had been continued by subsequent statutes, down to 10 & 11 Vict., c. 98, by which Act the enactment was renewed in rather more stringent terms. The words were— Every person who shall have been appointed after the passing of the first-recited Act, or who shall be appointed after the passing of this Act, to the office of judge, registrar, or other officer of any ecclesiastical court in England, shall hold the same subject to all the regulations and alterations affecting the same, which may hereafter be made by Parliament, and that he shall not acquire any claim or title to compensation in case the same shall be hereafter altered or abolished by Act of Parliament. It perhaps might occur to some hon. Gentleman that advantage might be taken of this enactment; and he was not prepared to say that there might not be cases in which they might be justified in taking advantage of that enactment. In looking over the appointments made in the diocesan courts, he had been shocked and grieved with many instances which had fallen under his observation. He had met with an instance of a right rev. Prelate appointing his son to the office of registrar—a boy seventeen years of age—and other instances in which appointments had been made of persons of still tenderer years. He had seen other appointments not consistent with that moral sense of obligation which ought always to guide and direct the appointment of individuals to public offices. But, notwithstanding instances of this kind, he thought that, as a general rule, the House would agree with him that, as those statutes had not been acted upon at all, and had been treated as a species of dead letter by Parliament—for they had been renewed from year to year—it would not be wise or just, or in conformity with the feelings of hon. Gentlemen, that an appeal should be made to those statutes, for the purpose of setting them up against any reasonable claim to compensation which might be brought forward by officers who might be dispossessed of their offices by the present Bill. He had examined the subject with some care, in order to ascertain that, with still very great relief to the people of England, by continuing merely the fees which were now paid for some period of time, both an adequate and a fair compensation might be given to all persons who were now in the enjoyment of offices proposed to be abolished, without resorting to either of those enactments which prohibited such compensation. He would, in Committee, endeavour to make intelligible the whole of the figures on which his plan of compensation was based, and he trusted it would be found that the plan was well grounded, and that it was a merciful and compassionate plan; that it was one which would have this benefit—that it would contribute to effect this reform by disarming that opposition which for the last thirty years had been successful in battling and defeating it. He would now enumerate those persons who were entitled to compensation. He was obliged to begin with an individual whose name was probably familiar to most hon. Gentlemen, and who certainly stood in a position not very encouraging to the feeling or temptation to give him the full amount of compensation which he (the Solicitor General) proposed. It appeared that there prevailed in the Prerogative Court the most reprehensible practice of granting the office of the registrar of the court during the life of the occupant of the office. He was sorry to say that that practice, not only appeared to have been continued by archbishop after archbishop, but that the particular mode of dealing with the office had received the sanction of the House in a manner which would make it idle and absurd for them to complain of the practice which had been adopted. He would state the facts from the Report of the Commissioners. The last grant to the office was made by Archbishop Moore, in 1799, to the Rev. George Moore, the Rev. Charles Moore, and the Rev. Robert Moore—three of the sons of the archbishop. The Rev. Robert Moore was now entitled to all the emoluments of the office. That gentleman had been blessed with a long life, and since the year 1799 he had been in the enjoyment of a most perfect sinecure, amounting to 8,000l. per annum. Fifty-six years enjoyment of a sinecure of 8,000l. a year! In the year 1828, the Rev. Charles Moore being dead, the Rev. George Moore and the Rev. Robert Moore, being then the surviving grantees, declined to make the usual surrender to enable Archbishop Sutton to regrant the office, and a private Act of Parliament was passed, enabling the Archbishop of Canterbury for the time being, with the confirmation of the dean and chapter, to appoint to the office of principal registrar notwithstanding any prior grant; so that, nevertheless, there should not be more than three lives in the office at one and the same time. How that Act passed—who were asleep at the time—he did not stop to inquire; but, to a certain extent, it certainly stopped the right of the House to complain of a practice which it had itself thus formally acquiesced in, however reprehensible it might be. In virtue of that act, Archbishop Sutton made a grant to his grandson, Viscount Canterbury, subject to the rights of the Rev. George and the Rev. Robert Moore. The Rev. George Moore was since dead, but the Rev. Robert Moore was now alive; and after the passing of the Act of the 10 & 11 of the Queen, the present Archbishop of Canterbury, in the year 1849, had made a grant of the office to Robert George Moncrief Sumner, Esq. He (the Solicitor General) did not mean to include the name of that gentleman as a person entitled to compensation. The three lives now were the Rev. Robert Moore, Viscount Canterbury, and Mr. Sumner. The Rev. Robert Moore, it appeared, had a right also to the building in which the wills were kept; and, therefore, it would be necessary, during the few remaining years of his life, to give him, as compensation, 8,000l. a year. When a grant of an annuity of 3,000l. a year was made by Parliament to Viscount Canterbury, there was a provision inserted that that annuity should cease when he came into the emoluments of this office. Therefore, when that event occurred there would be a saving of 3,000l. a year to the country. The returns made to Parliament in 1833 comprised the whole amount of the fees and income received by the Judges, registrars, and various other officers of the different diocesan, peculiar, and other courts now proposed to be abolished. It appeared from these returns that after deducting the proctors—to whom he would not then refer, except to say that they were well provided for—that the whole income receivable by Judges, registrars, and other officers was something less than 38,000l. He thought himself that it was some considerable sum less than that amount; but he was desirous of taking a large margin, and if he erred to err on the right side—the compensation to Mr. Moore would amount to 7,000l., and the total sum requisite for the officers whose offices would be abolished would be 42,000l. The expenses of the Prerogative Office of Canterbury were 19,000l.; and, as it was now proposed to augment the Testamentary Office, and thereby considerably increase its expense, it would be safe to compute the cost of the new office at 38,000l. The present Dean of Arches of the Prerogative Court of Canterbury might possibly retire from office; his salary was 4,000l. The aggregate of the sums above enumerated was something less than 100,000l. per annum. Then there remained the question of the proctors. It was first proposed to give to these gentlemen a priority of business in the new court for some time: but that course was afterwards thought to be not fair towards those gentlemen. He had a great desire to meet, in a liberal spirit, the fair claims of all these gentle- men with regard to the probable loss in their professions; he believed, however, that their apprehensions of loss would turn out to be unfounded, and that when they emerged from the shade of Doctors' Commons into the light of day, and exercised their profession on a more extended arena; their experience, skill, and sagacity would enable them to compete successfully with solicitors now practising their profession in the courts of Westminster Hall. At the same time, they were entitled to some reasonable equivalent for the risk of loss of practice which they would, at least, at first have to incur. This Bill, therefore, proposed to secure to these gentlemen for life an annuity equal to one-half the clear income now received by each of them from the testamentary branch of their business. That allowance, if it erred at all, would do so on the side of liberality, because the junior class of those who would receive it would, in addition, have a larger field opened to their professional exertions by this measure, while the seniors of the body would receive a handsome retiring pension. The number of proctors in London did not exceed 120, whose own estimate of their professional incomes, derivable from all descriptions of business, did not average more than 700l. per annum for each. Computing the incomes of the country proctors at the same amount, though they could hardly be so high, the compensation, at the rate of one-half their incomes, to be provided for the entire body would be 52,150l. Adding this item to the other charges before-mentioned for the Testamentary Offices, allowances to officers of diocesan and peculiar courts, compensation to Mr. Moore, &c., the whole would amount to 144,150l. To meet this charge the annexation of the business of all the minor courts to that of the Prerogative Court, and the continuance of the fees of the latter tribunal would, according to the returns, provide a fee fund of 74,740l. This would be the aggregate of the fees of this court. The great saving to the people at large by the change proposed would be in the fact of the public being only obliged to employ one legal man, and not, as heretofore, two—a proctor and a solicitor—which induced the payment of two bills of costs. In the fees of court he did not propose at present to make any material deduction, save in what was called the proctor's fee, which was now calculated on a per centage of the stamp on the letters of probate or administration; and as proctors were to be abolished that would of course entail the abolition of the proctor's fee. The substitute for this fee he proposed should be this. By a return made to the House, he found that the proctor's fee, if the property was sworn under 100l., was 9s. 2d., or within 10d. of the amount of the stamp, which was 10s. He proposed that in future 3 per cent should be charged on the stamp, so that the public, under the new Bill, when the property was under 100l. would be relieved of the proctor's fee, but would have to pay 1s. 6d. on the stamp. When the property amounted to 8,000l. or 9,000l., an approximation to the fee now paid to the proctor would be charged. The present fee now paid on such a sum was 3l. 8s. 2d., and the proposed charge under the substituted per centage on an amount so large would be 3l. 7s. 10d., so that the charge would be always found less than that now paid. So, too, where the estate was 600l., the proctor's fee of 2l. 4s. 10d. would only be 1l. 13s. This substitute for the proctor's fee be proposed should be paid into the testamentary fund. The income that the proctors would derive from the per centage fee would amount to the sum of 87,953l.; and this, with other fees, would yield a total of 158,661l., which might be taken as the sum likely to be paid yearly in future to the fee fund of the court. That sum of 158,661l. was what they would have in order to meet the current charges of 144,000l.; thus leaving a margin of 15,000l. for other purposes. And this would be effected without any increase in the stamp duty. It must not be considered that the 144,000l. would be a permanent charge against the fee fund—such would not be the case; and if the business of the court increased the fees would be augmented, and the fund would be increased proportionately. This fund would be raised without entailing any new burthen on the suitors of the court. He hoped this was a plan which all might support, because it did not burthen the public, or deal injuriously with vested interests. He must now be allowed to express his obligation to the Registrar of Deaths and Marriages for the information and assistance he had rendered; and he had been informed by him that there were at present ample fire-proof rooms for the reception of all wills which now existed or which were likely to exist, for many generations to come. With respect to the locality and security of documents, abundant means would be devised to secure those objects, and a great convenience would be obtained by the public.

There was another class of gentlemen yet to be considered, the advocates of Doctors' Commons. He proposed they should be admitted to all the advantages enjoyed by barristers-at-law, and, no doubt, in the case of the more eminent the Lord Chancellor would feel it his duty to confer the privilege of silk gowns. He had no doubt they would be gainers by the change. They also possessed valuable property in connection with the present courts; he proposed that they should have every facility for disposing of it, and that they should have every compensation to which they were fairly entitled. There was another tribunal he wished to deal with—the Court of Admiralty; but, as a proposal for changes in that court were still under consideration, he might say he hoped the result would be to throw it open to the bar at large—a result he much desired to see.

As it would not be right, in effecting a reform of this kind, to leave in existence matters which would interfere with the uniform character of the scheme, he had to inform the House that another important subject, the establishment of a tribunal for all matters relating to marriages, was under consideration. A Bill on the subject was very nearly prepared, and immediately after the Easter recess it would be brought into that or the other House of Parliament. Both measures, therefore, might be considered together, and both, after discussion, would, he hoped, be brought into such a shape as to admit of their being passed into law.

There was one provision which he regretted that he had not been able to introduce into the present Bill. In proposing to bring to a metropolitan tribunal the whole of the jurisdiction now exercised by courts of inferior jurisdiction in the country, he was aware of the extreme advantage of giving to persons in the country the benefit of local administration for small estates. Therefore, it had been his desire to confer on County Courts the power of administering to next of kin intestate property which did not exceed the value of 300l., and also of adjudicating, on a remit for that purpose by the Court of Probate, en all contested matters where the estate to be administered did not exceed the like sum. Objections, however, were felt to this provision in quarters entitled to respect, on the ground that, however desirable such an enactment might be in the abstract, at present the condition of County Courts was not such as would enable them with benefit to exercise such jurisdiction. He was afraid that that objection might arise from the peculiar bias of a lawyer's mind, which was not satisfied in respect to any amendment of the law, unless a great amount of protection in the administration of justice was provided. A very high price for our advanced state of civilisation was paid in the great complexity and intricacy attending the administration of justice, but in reference to small estates he thought they might be satisfied with the administration of what might vulgarly be called rough and ready justice, sufficient for the purpose, and preferable to a costly administration, which, in case of small properties not able to support great expenses in law proceedings, amounted to a denial of justice. He should, therefore, be glad to invite attention to this subject, though he could not now introduce any provision with respect to it, in order that the House might consider whether it would object to make the experiment he had suggested.

These were the principal points which he now had to submit to the House, and, seeing the interest which existed on the subject out of doors, he hoped the House would forgive him for having trespassed so long on its time. The Bill contained a clause for rendering one probate universal for England, Scotland, and Ireland, but he had some misgivings as to the practical working of that particular provision in respect to Scotland, on account of the different systems of law that prevailed in the two countries; and if, on discussion, it was thought that it would not work with facility, its application to Scotland might be omitted from the Bill. In conclusion, the hon. and learned Gentleman referred to the subject of the Church Discipline Act, with respect to which, he said, he had not now the authority of the Government to speak; but he had prepared a measure relating to it, which would be laid before the Government for their consideration. He would now move for leave to bring in a Bill to abolish the Jurisdiction of all the Ecclesiastical and Peculiar Courts in England and Wales respecting Wills and Administrations, to establish a distinct Court of Probate and Administration, and otherwise amend the Law in relation to matters testamentary.

MR. NAPIER

said, he did not rise to offer any opposition to the introduction of the Bill, or to comment upon the details which had been brought forward so clearly and ably by the learned Solicitor General. What struck him as somewhat extraordinary in listening to the speech of the hon. and learned Gentleman was, that he remembered that last Session, when a testamentary jurisdiction Bill was passed through the House of Lords, and had come down to the Commons, but no decision was come to upon the measure, the Lord Chancellor gave as his reason for not proceeding with the Bill, that it was necessary to consider the whole subject of the jurisdiction of the ecclesiastical courts, and that it would be idle to deal merely with the question of testamentary jurisdiction alone. The House appeared to him to be placed in a curious position, for last year the same Lord Chancellor, the law officers of the Crown being the same, made that statement, and now they were called upon, instead of dealing with the entire subject of ecclesiastical jurisdiction, to deal with only one branch of it—a testamentary jurisdiction Bill—a vague promise only being given that a marriage and divorce Bill was under consideration, and he believed that the hon. and learned Solicitor General had stated that there was some intention of considering the question of Church discipline. He did not deny that the proposed Bill might be, as far as related to testamentary jurisdiction alone, a very excellent Bill; but it was testamentary jurisdiction which mainly supported the staff of the ecclesiastical courts, and if that jurisdiction were removed from them, these courts would be left in a mutilated condition for other jurisdiction in matters of marriage divorce, and Church discipline. He perfectly agreed with the Lord Chancellor in the opinion he expressed last year, as to the propriety of legislating upon the whole subject, and in consequence he felt some difficulty in knowing how to give his support to the present instalment of reform. The Bill, as far he had been able to gather, differed from that of last year, inasmuch as it proposed, instead of transferring testamentary jurisdiction to the Court of Chancery, to establish a Court of Probate to which that jurisdiction should be given. When that proposition was made last year the Lord Chancellor stated that in framing the Bill which he then introduced it was framed against the recommendation of the majority of the Commissioners, but that the recommendation of that Commission had been protested against by the Master of the Rolls, the Solicitor General, and the right hon. Baronet the Member for Carlisle (Sir James Graham); and yet the Solicitor General now proposed to contravene the principle of the Bill then introduced and to establish a new Court of Probate. The Bill introduced last Session passed through the House of Lords, and how could it be expected that a Bill entirely contravening that measure, even if passed by the House of Commons, would receive the assent of the other House of Parliament? It appeared to him that the course taken between the two Houses of Parliament, and by the same persons, was precisely that best adapted to secure the rejection of the Bill, and to defer an important measure of reform, which, however, ought to embrace the whole subject of the ecclesiastical courts. The hon. and learned Gentleman did not propose to enact any new system of Church discipline, and yet the present state of the law on that subject was most unsatisfactory, and there was a delay in the procedure which amounted to a denial of justice. The Lord Chancellor said it was important to have a reform of the ecclesiastical courts, and yet by this measure the ecclesiastical courts were to be left in a worse position than before. The hon. and learned Gentleman was proposing a testamentary Bill hi direct contradiction to that which received the assent of the House of Lords. Now that this subject was being dealt with, would it not be easier and better to carry out a substantial measure of reform in every department of the ecclesiastical courts, to accompany this Bill concerning testamentary jurisdiction by a marriage Bill, and have, moreover, a Church discipline Bill? The present state of Church discipline, while it was disgraceful to the Church, was also most injurious to the interests of religion. There ought to be a tribunal which would claim and possess the confidence of members of the establishment, and which would exert authority as a court of appeal in matters of discipline. At present, even in the case of a delinquent clergyman, he believed the cause could not proceed without a kind of begging-box going round for funds to carry the case forward. Was this a decent state of things as regarded the Church? So far, however, from treating this matter as a whole, the hon. and learned Gentleman only took up a part of that large scheme of reform which was proposed last year. There ought properly to be a similar Bill for Ireland. [The SOLICITOR GENERAL: "Hear!"] and the wise course would be to take the ecclesiastical courts of the two countries, and to deal with them, not by piecemeal, but as a whole, embracing in the measure the three subjects of testamentary jurisdiction, marriage and divorce, and Church discipline. If the Solicitor General did this he would have the support of both sides of the House, and every assistance would be given to him in order to carry out a perfect and complete reform of the ecclesiastical courts.

MR. MALINS

said, he would not oppose the introduction of the Bill. The subject was one of the very greatest importance, and every proposition respecting it deserved the serious consideration of the House. To the Bill introduced last year into the House of Lords he had been prepared to offer his most determined opposition; but in the month of July the Government had thought proper to withdraw the measure. He congratulated the hon. and learned Gentleman on having now brought in a Bill so materially different from its predecessor; but he still objected to the proposal that the testamentary jurisdiction should be transferred to the Court of Chancery. The Commission of 1853, composed of men of the highest eminence, and free from any particular bias, had reported against adopting that course by a majority of ten to three, and had recommended the establishment of a Court having testamentary jurisdiction, but entirely unconnected with the Court of Chancery. The hon. and learned Gentleman now proposed to establish a distinct court which should be a branch of the Court of Chancery. Now he (Mr. Malins) confessed that he could not collect from the remarks of his hon. and learned Friend any reason why testamentary jurisdiction should be transferred to that Court. Last year he presented two petitions against the plan now proposed by the Solicitor General; one petition had also been presented, signed by the Lord Mayor and by 258 leading bankers and merchants of the City of London, who expressed their anxiety and alarm at the proposed transfer of the testamentary jurisdiction to the Court of Chancery, and who bore testimony to the satisfactory manner in which the business was conducted in the Prerogative Court of Canterbury, with accuracy, despatch, and security for the public interest; there was also another petition from professional men, from a body of solicitors, although against their own interest, since the measure which they opposed would have thrown open the testamentary business to the profession at large, instead of its belonging to an exclusive class of proctors; but they represented that, in their opinion, the mode of conducting the common form business in the Prerogative Court was very satisfactory, and that it could only be necessary to make some improvements, and a change of name, calling it the Court of Probate, instead of an Ecclesiastical Court; but they prayed that its business might still be conducted by the present body of practitioners in Doctors' Commons. By the present system there was never any difficulty in obtaining probate of a will in two or three days, and it was not even necessary to employ a solicitor. There was a very accurate registration of wills, and we might go and ask for the will of any person within the last two centuries, only giving his name and the year in which he died; we might see that will in a few minutes, or have it copied for a moderate fee; and every gentleman who had acted as an executor must be aware that it was not the proctor's Bill, but the Government stamp, which constituted the expense of proving a will. To show the extent of this business, in the year 1852–3, there were between 13,000 and 14,000 wills proved in the Prerogative Court of Canterbury, representing property of more than 50,000,000l. sterling; and, in addition to those, 5,000 administrations were granted, making altogether about 18,000 grants of testamentary jurisdiction out of that Prerogative Court. Such was the common form business of the Court. The other part of its business was the contentious business; and how many of the wills proved in that year were opposed? Why, only forty; of which cases some were protracted and others not. Now, it was proposed to break up that business and transfer it to the Court of Chancery, and for this change the public would have to pay 42,000l. a year to compensate the proctors for the loss of their emoluments. The country would gain nothing, only this Court, instead of being called Her Majesty's Court of Probate or Testamentary Court, it would be called a testamentary branch of the Court of Chancery. What reason had his hon. and learned Friend assigned for transferring this business to the Court of Chancery? The only reason offered was, that sometimes, while a will was contested, the Court of Chancery was applied to for the protection of the property pendente lite; but in the Court of Vice Chancellor Stuart, where he (Mr. Malins) practised, there had not been a single motion of the kind for the last two years; and he believed that if the records of the Court were searched, there would not be found three applications for a receiver pendente lite. With regard to personal property, the testamentary courts now had power to grant limited probate, and if they had no power over real estate, neither would the proposed Court. According to the hon. and learned Gentleman, a great object of this Bill was to give the Testamentary Court the power of for ever settling the validity or invalidity of a will. The hon. and learned Gentleman said that for a long period the practice had been to allow an heir-at-law contesting a will to bring actions of ejectment, one after another, until he was stopped by a court of equity, but the hon. and learned Gentleman forgot that the Court of Chancery had recently decided that wherever a devisee claimed under a will, and the heir-at-law threatened litigation, he might file a bill against the heir-at-law, praying to have the will established against him. He quite agreed that the practice of the Court of Chancery had been immeasurably improved, and such a Bill would be a very simple matter, not occupying more than four or five printed pages. It would set out the will and pray to have it established against the heir-at-law. The heir-at-law must then either come in and contest it, in which event he would be entitled to try the question by an issue, or he must admit the validity of the will, and there would be an end of the matter. If that could be done now, there was no necessity to give as a new power what already existed. He thought on these grounds the hon. and learned Gentleman had failed to show any reason for abolishing the present Court. All were agreed that it ought to be a temporal and not an ecclesiastical court; and if it were a separate court now, by this measure the court would still be separate, though it went under the name of a branch of the Court of Chancery. It could not be said that the business was inefficiently performed, either by the Judge, the advocates, or the proctors. All the evidence was to the contrary, and more especially it went to show that it was a great protection to the public to have the business in the hands of a limited body of men of great respectability, whose experience easily detected any attempts at fraud. The existence of a body of men like the proctors, only 120 in number, most respectable practitioners immediately under the eye of the Judge, who were responsible for the accuracy of the documents they proposed for probate, was a very great safeguard; for if the solicitor who drew the will had been guilty of a fraud, he was bound to take it to the proctor, whose experienced eye would probably detect what was wrong. It was now proposed that, instead of a proctor, independent of him who drew the will, any country solicitor, who was a commissioner for administering oaths, should take a printed form of affidavit, and send it filled up, by post, to the officer of the court for examination. Upon such a transaction as that, the safeguard against any fraud was to depend. It was not likely that any salaried public officer would ever perform the duty with as great vigilance as a professional man like the proctor, whose reputation depended upon it. The security was so great now, that a forged will was almost a thing unknown; the public would lose that protection, but would gain no other advantage; and the Government would not gain anything, for the amount of the stamp would be the same. He admitted that many of the peculiar jurisdictions throughout the country had brought the present system into some disfavour; and he concurred as to the propriety of abolishing them; but why should the whole body of proctors—the Court which worked admirably, and the Judge who did his duty to the entire satisfaction of the public—be superseded by a new court with inexperienced practitioners? Why should 42,000l. a year be paid to a body of men as compensation for refraining from duties which they were anxious to perform, and which they had hitherto performed without any complaints being made against them? His hon. and learned Friend had said, as he understood, that it being impracticable to give testamentary jurisdiction to the County Courts, all will cases would be brought to one metropolitan tribunal. That was contrary to the legislation of late years, which brought justice to every man's door; and, contrary to the recommendations of the Commission, that in all cases of wills below a certain amount they should still be allowed to be proved in the country, and deposited there for inspection. What an expense it would be to oblige all those people to leave their homes and come to London for the purpose. He trusted the Government would take that seriously into their consideration. The Commissioners were perfectly satisfied that the duties were well performed, and that the officers could not be abolished without injury to the public; he therefore thought it advisable still to retain some of these small jurisdictions, as recommended by the Commissioners, for the deposit of wills of limited amount, where the cost of proving them would be small, and where they could be inspected at a moderate expense. He, therefore, saw no advantage in opening the business to the whole profession, at a cost of 40,000l. The Solicitor General had stated none beyond transferring the business to the Court of Chancery. The new jurisdiction could not advance a step until they had decided whether the instrument was a will or not; they would then have to determine who was entitled under it. Upon general principles, he thought that the Court of Chancery, being totally inexperienced, was not adapted to decide the question whether a testamentary document was a will or not. At present we had a vast establishment for this purpose, with extensive buildings, and more were required. How the Solicitor General was to find room in Lincoln's Inn, or out of it, for the new business, he could not conceive. He trusted the hon. and learned Gentleman would thoroughly reconsider the matter, and would come to the conclusion that Doctors' Commons ought to be maintained, with its establishment of advocates and proctors. Of the latter there were about 120; it was not proposed to compensate the whole of those, but only those who were in good practice.

MR. KEOGH

said, that whatever might have been the preconceived opinions of gentlemen with respect to these tribunals, they must have listened with satisfaction to the speech of the hon. and learned Gentleman who had just sat down (Mr. Malins), because, though they might have been accustomed to think that the ecclesiastical courts were not the least expensive or cumbrous in the country, they had the assurance of the hon. and learned Gentleman that they were in every respect the most valuable courts that human ingenuity could devise, and that, amid their numerous merits—all of which he had not time in his short speech to enumerate—the most remarkable was that they cost the country scarcely anything. Everything that could be desired was, according to his hon. and learned Friend, to be found in Doctors' Commons, and the only regret was that the establishments there were not extensive enough, and the jurisdiction of the courts not sufficiently enlarged. All that his hon. and learned Friend seemed to think necessary for the perfection of Doctors' Commons was an increase of the establishments and an extension of the jurisdiction; and, holding this opinion, he was, of course, opposed to the Bill now before the House. He (Mr. Keogh) however, believed that notwithstanding all that had fallen from the hon. and learned Member for Wallingford, the public were right in the view which they had long since taken of these courts, and of the course that ought to be pursued with regard to them—that was, that they were an abomination which ought to be instantly swept away. The argument of the right hon. Gentleman the Member for the University of Dublin (Mr. Napier)—"why propose this partial reform, when you leave behind such great abuses."—was the old argument used against every reform that had ever been brought forward. The right hon. Gentleman had asked, "Why don't you deal with the matrimonial jurisdiction? Why don't you deal with the Church discipline question?" Now he recollected that in the year 1850 he himself had introduced a Bill for the reform of the ecclesiastical courts in Ireland, which was subsequently referred to the consideration of a Select Committee of which the right hon. Gentleman was a Member; but so far was he from taking the view of the question which he put forward on the present occasion, that the right hon. Gentleman had actually voted against almost every reform which was proposed in that Committee. Great injustice had been done to the proposal of his hon. and learned Friend the Solicitor General. As far, however, as he understood, that proposal was simply this—to transfer to a court in connection with and forming a part of the Court of Chancery, and therefore having all the powers of administration and construction that were vested in the Court of Chancery, the jurisdiction of the Ecclesiastical Courts. The hon. and learned Member for Wallingford (Mr. Malins) had, indeed, told the House that these courts were inexpensive, and their form of procedure very rapid. All he could say in reply was, that a Committee, on which the right hon. Gentleman the Member for the University of Oxford (Mr. Gladstone), the right hon. Gentleman the Member for the University of Cambridge (Mr. Goulburn), and the right hon. Gentleman the Member for the University of Dublin (Mr. Napier) had sat, in 1850, had come to the most opposite conclusion. The House might rest assured that the only possible way of reforming these courts was to copy the example set in Scotland some forty years ago, and sweep them away altogether and transfer their jurisdiction to the ordinary tribunals of the country. It was said that these courts entailed no expense on the country; but it was the opinion of a Committee that sat on the subject, that the expenses of the Ecclesiastical Courts in Ireland—and they were not more expensive than the same courts in England—reached an amount out of all proportion to the property involved. Having such feelings on the subject, it was, therefore, a matter of the greatest satisfaction to him to be able to state that on the very first day after the Easter recess he would be able to lay upon the table a Bill proposing to do for the Irish courts what the Bill of his learned Friend proposed to do for England; and as for the question which had been addressed to his hon. and learned Friend, why have you not prepared a Bill with reference to the matrimonial jurisdiction and with reference to Church discipline? he was able to state that on the first subject his hon. Friend had already prepared a Bill; and with regard to the second a Bill had also been prepared, which, however, had not as yet received the sanction of the Cabinet.

MR. ROBERT PHILLIMORE

said, he was convinced of the necessity of severing the spiritual from the civil jurisdiction of these tribunals; but he would reserve his observations on the details of the measure before the House for the Committee. It must be remembered, however, that there really was an ecclesiastical jurisdiction properly so called, of these courts, which it was important to ameliorate and preserve. The right hon. Gentleman (Mr. Napier) asked why the Government did not deal with that jurisdiction and institute a proper appellate court in cases of ecclesiastical offences? But it would be found that a more difficult problem could not be proposed to Parliament. Hon. Gentlemen should bear in mind the difficulties of this question, as to the reform of the civil jurisdiction of these courts, and that this was the forty-fourth year since the first attempt was made to reform the testamentary courts by Lord Stowell in 1812, and that after that no attempt was made until Lord Grey's Government. Mr. Phillimore then enumerated the various Bills brought in by successive Governments up to the present time. He thought, however, that the Solicitor General, in attributing the opposition to any reform solely to the pertinacity of those who had vested interests in these courts, had given a most inadequate cause for such a continuing effect. With regard to the profession connected with the ecclesiastical courts in London, he would challenge contradiction when he said, that all the reports as well as all the evidence that had been taken on the subject had borne unvarying testimony to the great ability with which all persons connected with them had discharged their duties. The Attorney General for Ireland (Mr. Keogh) had spoken of the enormous expenses of these courts. He (Dr. Phillimore) could not give an opinion as to what these expenses might be in Ireland, but in England the fees would bear comparison with those of the common law courts and the courts of equity, and he recollected that in the Braintree case, the expense of the application for a prohibition had cost twice as much as both in the Queen's Bench and the Exchequer Chamber, as it had cost in the Ecclesiastical Court. He thought that the compensation proposed to be given to those who would be injured by this act would afford those parties no good ground for complaint, seeing that it was the same in principle, though less in degree, as that which had been awarded by Parliament in the case of the reforms of the Common Law and of Chancery, and of the Consistorial Courts of Scotland; as far as he himself was concerned, he might be permitted to say that, his first speech in this House had been to declare his earnest readiness to reform the abuses of the Ecclesiastical Courts, and that during the short time in which he had enjoyed the honour of a seat in this House, that he had, by the indulgence of the House, been enabled to carry two measures through this House, one in the last Session for introducing vivâ voce evidence into the Ecclesiastical Courts, which had become law; another for abolishing their jurisdiction in suits for defamation, which he hoped was about to become law. He should certainly vote for the first reading of the Bill committing himself to this principle only—that it was high time that the House of Commons, acting upon its resolution so often expressed, should take away the civil jurisdiction from the spiritual courts, and that it was an anomaly not justified by reason or practice, or the state of religion, or the state of feeling in this country, to continue to the archbishops and bishops' courts the power of dealing with the administration of intestates' effects and testaments of persons of all religions and classes in this country.

SIR JOHN PAKINGTON

expressed his disappointment at being obliged to infer, from what had passed that night, that the Government intended to deal with only one branch of the important question of the reform of the ecclesiastical courts. The Attorney General for Ireland (Mr. Keogh) had misconceived the observation of the right hon. Gentleman the Member of Dublin University, when he imputed to him a sentiment of opposition to the plan of the Government. The right hon. Gentleman (Mr. Napier) merely expressed his regret, which was perfectly justified, that the Government had not availed themselves of that opportunity of settling the questions of church discipline and matrimonial jurisdiction simultaneously with that relating to testamentary matters. If the latter question were adjusted separately as now proposed, the two other branches of ecclesiastical jurisdiction, it was to be feared, would be left in a very unsatisfactory state. The Lord Chancellor, in the other House, in withdrawing the Bill of last Session on this subject, intimated that the Government would, during the recess, consider it, with a view to legislation on the whole subject. This was not a party question, but one on the necessity of settling which both sides of the House concurred; and it was therefore most desirable that the Government should grapple with it in all its bearings.

MR. HADFIELD

thought the country much indebted to the Solicitor General for introducing this measure, as the improvement of testamentary jurisdiction was one of the most urgent of law reforms. The country now obtained a revenue of about 3,000,000l. annually from wills and intestacies, and, therefore, the legal processes incident to the distribution of property ought to be facilitated and cheapened as much as possible. Some doubt had been intimated whether the Bill would be applicable to Scotland; but he was glad to hear that it was intended to extend it to that country, where it was quite as much wanted as it was in England.

MR. BOWYER

said, he differed from many of the opinions which had been expressed, but he thought the measure con- tained many valuable provisions; it would very much improve the law and simplify in a great degree the administration of justice in testamentary matters. But he thought some further simplification was requisite. He thought a separate exclusive court and jurisdiction for testamentary matters was unnecessary. In his opinion wills ought to be dealt with in the same manner as deeds and other instruments inter vivos. The Solicitor General proposed that there should be one branch of the Court of Chancery exclusively for probate of wills, but this must lead to the same inconvenience as if there were two separate and distinct courts, because that court would not be able to entertain questions relating to the construction of wills, which must be referred to the ordinary tribunals of the country; so that there would still be two separate courts having jurisdiction over these matters. The recommendations of the Real Property Commissioners avoided this difficulty by maintaining the principle which he now contended for—that the administration of wills did not differ in any essential respect from that of deeds, and should be dealt with by the same jurisdiction. The question of probate had not been grappled with, and was deserving the attention of his hon. and learned Friend. If probate was not necessary for real property, why should it be required for personal property? As for questions relating to capacity and the construction of wills, he regarded a separate and peculiar jurisdiction as wholly unnecessary for their decision. So also with questions of intestacy. The best plan to adopt would be to get rid of separate testamentary jurisdiction altogether, and allow these questions to be left to the ordinary court of law, to be decided in the ordinary course of the administration of justice. That was the course pursued with regard to wills of real estate, and it was supported by the practice of every other country in Europe, and by the doctrine of the civil law.

THE LORD ADVOCATE

was ready to admit that uniformity of law between England and Scotland was a very desirable object, but apprehended that its attainment would be a matter of considerable difficulty. The important question of allowing probate in England to run in Scotland and confirmation in Scotland to suffice for England which was involved in the extension of this Bill to Scotland, would require very great consideration. It must be a reciprocal right, and great care would also have to be taken in adjusting the jurisdictions of the two countries on a fair and equal basis.

After a few words in reply from the SOLICITOR GENERAL, Leave given.

Bill ordered to be brought in by Mr. SOLICITOR GENERAL, Sir GEORGE GREY, and Mr. ATTORNEY GENERAL.

Notice taken, that Forty Members were not present; House counted; and Forty Members not being present,

The House was adjourned at half after Twelve o'clock till Monday 16th April.