HC Deb 07 February 1856 vol 140 cc384-406

said, he rose to move for leave to bring in a Bill "To transfer the Testamentary Jurisdiction of the Ecclesiastical Courts to the Superior Courts of Common Law and to the County Courts." He did not attempt to conceal that he approached with much diffidence and anxiety a subject that had hitherto baffled all at- tempts at legislation. When be considered that these Ecclesiastical Courts had been condemned by a Commission more than twenty years ago, which condemnation had since been confirmed by other Commissions and Committees, and by the unanimous voice of public opinion—when he remembered that Bills to the number of fifteen had been introduced to take from them this jurisdiction, but from some cause or other had all failed—when he remembered, how many younger and robuster abuses had sunk beneath the reforming spirit of the age, while these Gattons and Old Sarums of our judicial system were still suffered to survive, he could not but entertain a superstitious fear that, like the Struldbrugs of Laputa, they were destined to an immortality of decrepitude and decay. But he trusted the House was not yet prepared to give up the question. His plan, at all events, had the recommendation of novelty, and he believed it was almost the only possible plan which had not yet been tried and failed. He had introduced a similar measure three years ago, on which occasion he made a statement of some of the principal evils of the existing system: the truth of that statement was recognised by his hon. and learned Friend the Solicitor General, and the First Minister of the Crown, then Home Secretary, promised that the Government would lose no time in cleansing this Augean stable. Under those circumstances he left it in the hands of the Government, but nothing was done in that Session. In the next Session a Bill was introduced for transferring the jurisdiction of the Ecclesiastical Courts to the Court of Chancery. That proposition did not meet with any very cordial reception, and failed. In the following year another Bill was introduced, giving the jurisdiction to a separate tribunal, neither exactly in the Court of Chancery nor out of it. That also failed, and he therefore trusted the House would consent to the introduction of the measure he had prepared. The proposition from which he started was this, that the Ecclesiastical Courts were past mending, and it was necessary that they should be abolished. It was true that his Bill only dealt with their testamentary jurisdiction, whereas these Courts also possessed jurisdiction in divorce and Church discipline. How these jurisdictions came to be centred in one set of Courts, it would be more curious than useful to inquire; it was enough to say that there was no necessary connection whatever between them. If all possible jurisdictions were shaken up in a bag, and the first three which came to hand taken out, there would probably be fully as much connection between them. The law of divorce was in a state most discreditable to this country. As it now stood it was a law for the rich, and not for the poor. The qualification which a man must possess to get rid of his wife was a mere property qualification. If he had £1,000, he might do so; if not, though she might be a notorious prostitute, and the paternity of her children an open question, there was no possibility of getting rid of her, but he was tied for life to a loathsome and degraded creature. If he married another he was guilty of felony; but a humane Judge, in such a case, would perhaps sentence him to only a day or a week's imprisonment, on consideration that, although his nominal offence was bigamy, his real offence was, not possessing £1,000. The law relating to Church discipline was not in a much better state, and it therefore was necessary that these jurisdictions should be dealt with. But as he knew the difficulties in the way of a private Member passing one Bill, he had not incumbered himself with three. Should this Bill, however, which dealt only with the testamentary jurisdiction, pass into a law, he was prepared to deal with the other jurisdictions, if the matter should not fall into abler hands. He should not have thought it necessary to say one word on the evils of the present system, had not an attempt been made last Session by the hon. and learned Member for Wallingford (Mr. Malins) to show that the Ecclesiastical Courts were the victims of a popular prejudice, and that in reality they were perfect models of purity and despatch; indeed, as far as he understood his hon. Friend, if there was any institution of which he was more proud than another, and which he would point out with greater satisfaction to foreigners, it was our Ecclesiastical Courts—however high his respect for Common Law, however profound his veneration for Chancery, still, in his opinion, the pure well of justice undefiled was to be found in the dark and sequestered precincts of Doctors' Commons. In the first place, he would observe that this testamentary jurisdiction of the Ecclesiastical Courts was usurped by the ecclesiastics from the old County Courts of the country on the pretext that they were more conscientious than laymen; and this they showed by appropriating the effects of deceased persons to themselves, until they were compelled by Statute to make a more equitable distribution of the property. The exercise of this jurisdiction was altogether worthy of its origin. At present we had 372 Ecclesiastical Courts in this country—episcopal, archiepiscopal, diaconal, archidiaconal, rectorial, manorial, and peculiars of every description—presenting such a grotesque and motley array as was disgraceful to the country. The characters of the Judges were equally varied, comprising bishops, lawyers, old women, rectors, lords of manors, colonels in the army, boys and girls, exercising their functions by deputies and deputies' deputies, and with their offices settled in remainder two or three deep. In the present state of the law, a will was, primâ facie, provable in the jurisdiction where the testator had dwelt at the time of his death; but if it turned out that he had bona notabilia to the extent of £5 out of the district, the probate so obtained was utterly worthless, and it was necessary to take out a probate in the Court of the Archbishop of the province. For that purpose a person could not apply himself or by his attorney, but must employ a proctor, one of a class of persons who had a monopoly of that business, consequently he had two bills to pay. But when he had got the metropolitan probate, if it turned out that there were bona notabilia out of that jurisdiction, he must get the other Archbishop's probate; and even then that probate was not good for Scotland or Ireland. When a will was proved, it was not necessarily in a place of safe custody. Many of these register offices were scattered throughout the provinces; and a Commission had reported that the register office of the Prerogative Court was not fire-proof, that it was inconvenient, and in every respect defective. Indeed, although the Registrar of that Court had received upwards of £300,000 for doing nothing, he had never thought it his duty to provide a proper registry for the safe custody of the wills in his charge. But the testamentary jurisdiction of these Courts was not only cumbrous and costly, but limited and inefficient, for it dealt only with personal property. Where real property was concerned, proceedings frequently became necessary in the Court of Chancery; and in many cases that Court directed an issue to be tried by the Courts of Common Law. Thus three jurisdictions were brought into play, it might be, in one single case; three sets of legal machinery were grinding, crushing, and tearing in pieces the unfortunate estate. He might mention a case of Nicholls v. Remigo, where the Ecclesiastical Courts found the testator to be insane as to disposition of his personalty—a jury to be sane as to the disposition of his realty by one and the same will—Nicho lls took possession of the realty because he was sane, Remigo of the personalty because he was insane: but the costs had swallowed up the whole of the property; and the end of it was that the lawyers turned out both Remigo and Nicholls, and took possession of the property; and then they only got 10s. in the pound of their bills. That was a case going on at this moment. Now this was a state of things permitted to exist in the middle of the nineteenth century. The House would surely agree that it was high time to put an end to it. It was discreditable to the country, and not very creditable to the House. His next proposition was that there was no necessity for any new tribunals, but that the existing Courts of the country were sufficient to deal with this jurisdiction. The common complaint was, not that we had too few, but too many Courts, and it was owing to the conflicting jurisdictions of our Courts that much of the complexity of our law arose. We had Courts of Common Law, and Courts of Chancery, which, by the bye, ought never to have existed, for the Common Law Courts ought to have exercised both jurisdictions. In addition to these we had another set of Courts recently established by Parliament—the County Courts; and with these three sets of Courts, it would be very discreditable if we were not able to deal with all the judicial business of the country. It was most important to deal with this question on broad and general principles. One principle of most general application in the law was, that when claims or disputes related to small amounts they should be settled by local tribunals. On that principle County Courts had been established—certainly against the wishes of many eminent members of the legal profession—yet no experiment in modern legislation had been more successful, or had given more general satisfaction to the country. Instead of sneering at those Courts, let them accept, and improve, and extend their jurisdiction; and the proper mode to extend that jurisdiction was, not so much to give them jurisdiction over matters of large amount, as over every matter of small amount. Above all, it was a matter of much importance that the right men should be appointed Judges of these Courts. Let not the County Courts be made a shelf for superannuated practitioners. There were in Westminster Hall a large class of able men, well versed in the theory and practice of their profession, and not too old to adapt themselves to a new system, who would be disposed to barter for the prospect of high professional eminence, or a possible peerage for life, immediate competency and independence. If such men were selected, there was no species of minor jurisdiction with which the County Courts might not be safely intrusted. Why should not justice, in matters testamentary, be brought home to the poor man by means of the County Courts as well as in other matters? It had been stated on behalf of the proctors, that questions relating to wills involved such a degree of difficulty and intricacy that it was necessary to have peculiar Courts and a body of practitioners whose attention was confined to such subjects to deal with them. A kind of manifesto had also been issued by those gentlemen last year, in which they set forth an array of difficulties attending even the common form jurisdiction—unable to defend their position, they sought to conceal it by a cloud of dust—for example, they dwelt on the difficulty of deciding what documents constituted a will if it was written upon more than one sheet of paper, or if the signature was at any other part than the bottom of the instrument. But there were equal difficulties in every branch of the law. Why should a will be more difficult to deal with than a contract or lease or policy of insurance, or any instrument by which a man disposed of property during his life? What was the law with regard to wills in other countries? Nearly thirty years ago the Commissaries' Courts in Scotland were transferred to the Sheriffs' Courts, and he had never heard that the latter had been found incompetent to exercise jurisdiction in this matter. There were no proctors or Ecclesiastical Courts in America, and he had never heard that any inconvenience was experienced from the want of them. In India there were no Ecclesiastical Courts, and he would appeal to his hon. and learned Friend the late Chief Justice of Bombay (Sir E. Perry) whether any difficulty or inconvenience had been felt in that country from the absence of this peculiar jurisdiction. In the jurisprudence of no other country was there any institution similar to our Ecclesiastical Courts. It was a mere prejudice to suppose that there were any peculiar Courts, or any set of special practitioners required for dealing with the subject of wills. He was aware that the Commissioners reported against transferring this jurisdiction to the County Courts, but they did not examine a single witness as to whether or not those Courts would be competent to exercise jurisdiction of this kind. Now, he had consulted a great number of Judges of County Courts on this point, and their unanimous opinion was, that the County Courts were fully competent to exercise this species of jurisdiction. His Bill, therefore, proposed to give the Judges of the County Courts jurisdiction in all cases where there was no dispute about the will, or where the property in question was of small amount. He also proposed that the circuit of each County Court Judge should be a district for the proof of wills, and the Registrars of the present Ecclesiastical Courts should be appointed Registrars under his Bill, for the purpose of securing experienced men to superintend the new system at its commencement, and to avoid the necessity of giving them compensation. He likewise proposed that every will should be proved in that County Court district in which the testator lived at the time of his death—that it should not be necessary to employ either proctors or attorneys for that purpose, and it entitled a poor man to go with the will he sought to prove, to require a form of affidavit, and to prove it without any expense, unless there was an objection made to it. He further proposed that every original will should be sent for registration to Somerset House, where an extremely complete system of registration existed, where there was room for the deposit in fire-proof offices of all the wills of the kingdom for the next 500 years, and there every will could be inspected in a few minutes. These arrangements presented a striking contrast with those which existed at present in Doctors' Commons. He proposed that wills relating to real as well as personal property should be proved in these Courts in all those cases where the will was undisputed, and that one probate should be good throughout the whole kingdom. Provision would be made for proving the wills of persons who died abroad, in the Metropolitan County Courts, which would be consolidated for purposes of probate. All the provisions would apply to wills relating to real as well as to personal property. In cases above £300, the Bill provided that any person interested might require to have the will proved in one of the Superior Courts; but in cases where the property was under £300, the County Courts would decide every dispute regarding them; for not to allow them to do so would practically amount to a denial of justice to the poor. These Courts were to have full legal and equitable jurisdiction, where the amount of property was under this sum. These were the provisions of the Bill with regard to the County Courts; he believed they would have the effect of bringing this part of the administration of justice to the door of the poor, and he trusted they would meet with the approbation of the House. The next question that arose was, what was to be done with the jurisdiction over property above £300 in amount, as to which there was a dispute. That might be transferred either to the Courts of Common Law, or to the Court of Chancery, or to a new Court. The amount of litigation in such cases being small, he thought it would be unnecessary to saddle the country with the expense of a new tribunal for the purpose of adjudicating upon it; and as between the Courts of Common Law and the Court of Chancery, he preferred the former, for the following reasons. In the first place, the Courts of Common Law were not fully employed, and if this now class of jurisdiction were transferred to them they would have less business to deal with than they had before the business which was now decided by the County Courts was taken away from them. The Court of Common Pleas especially had a good deal of leisure time; and if it was thought advisable to transfer the testamentary jurisdiction to one of the Common Law Courts only, his Bill might be easily adapted to that end. If, on the other hand, it was transferred to the Court of Chancery, it would be necessary to appoint another Vice Chancellor. But the Courts of Common Law were moreover peculiarly fitted to have jurisdiction in such matters, because they now determined the validity of wills, as far as they disposed of real property, and his proposition was that they should determine it also with respect to personal property. The House, perhaps, recollected the case of Hopwood v. Hopwood, which was tried at Liverpool a year ago, in which the question of the competence of the testator to dispose of land was decided by a Judge and jury. But as the law now stood, the validity of the will as to personalty might be disputed in the Ecclesiastical Courts, who might come to a decision opposite to that of the jury. If his plan was adopted, the verdict of the jury would be conclusive of the validity of the will, not only with regard to real but to personal property, and nothing more would have to be done than to apply to a Common Law Court to grant probate. The Common Law Judges also visited the provinces by going circuit, which the Chancery Courts did not; this was an additional reason for giving this jurisdiction to the Courts of Common Law rather than to the Court of Chancery. It might be said, that as the Court of Chancery had the power of administering the assets and dealing with trustees and executors, it was right it should also decide cases of probate. The Commissioners had not adopted that view, for they had not recommended it; and the argument itself, though plausible, was not satisfactory. What he proposed was, that the Courts of Common Law should decide all questions relative to the validity of wills, and grant probate or refuse it. The questions on which the granting or withholding probate depended were these—did the testator execute the will? was he sane or insane? was fraud practised on him? was the will a forgery? what documents constituted a will? With the exception of the last, all these questions were now dealt with by a jury, and could not be satisfactorily dealt with by a Court of Chancery. Even if the jurisdiction were transferred to the Court of Chancery, that Court would still send these questions to be tried by a jury, and therefore could not determine the whole matter relating to wills. It was true that where probate or administration were granted in the Common Law Courts the aid of Chancery might, in some cases, be required to assist in the administration of the assets, or to deal with the executors and trustees. But these constituted a totally different class of questions. The aid of Chancery might be required if there were no dispute as to the will, and if there were a dispute the aid of Chancery might not be required, the Court of Chancery possessing the machinery for determining one set of questions, and the Common Law Courts for determining the other. What he proposed was, that when the Court of Common Law decided whether the will was valid with respect to the realty, it should also decide with respect to the personalty; and that the Court of Chancery should at the same time retain its jurisdiction with respect to trustees and executors; and this arrangement was consistent with the principle of division of labour, as long, at least, as separate Courts of Law and Equity continued to exist—and if we waited until Law and Equity were perfectly combined, we should be granting the Ecclesiastical Courts a new lease of indefinite duration. On the subject of fusion of Law and Equity he would only say, that it appeared to him that the proper direction of Law Reform was rather to give to the Common Law Courts that equitable jurisdiction which they ought never to have parted with than to increase the jurisdiction of the Court of Chancery. There were also provisions in the Bill for the compensation of those persons whose offices were taken from them, and for permitting the advocates of Doctors' Commons—a most able and accomplished class of practitioners—to practise in the Common Law or Equity Courts, where he had no doubt their ability would secure for them a full share of the business, especially in the class of cases with which they were so familiar. He also proposed that the proctors should emerge from the darkness of Doctors' Commons into the full light of day, and exercise their profession in a more enlarged sphere and with greater benefit to themselves as well as to the public. These were the outlines of the Bill he desired to introduce. He had endeavoured to deal with the question broadly and comprehensively, and upon principle. Seeing no reason why justice in testamentary matters should not be extended to the poor as well as to the rich, he had given the minor jurisdiction to the County Courts; and he trusted that in that respect he should have the concurrence of his hon. and learned Friend the Solicitor General, who, in an able and comprehensive speech, had before proposed that this very jurisdiction should be given to the County Courts; but for some reason or other that proposition was not carried into effect. He proposed to give the superior jurisdiction to the Courts of Common Law, because deciding as they did the validity of testamentary jurisdictions of real property, it seemed convenient that they should also decide as to dispositions of personalty; and because they could exercise this jurisdiction without any additional burden to the country. He believed that if these provisions were adopted, much saving, both of expense and litigation, would be effected; and that the plan would constitute an important step towards the simplification of the law, and rendering symmetrical and harmonious the administration of justice.


, in seconding the Motion, said, he did not understand whether the hon. and learned Gentleman had stated whether the Bill would extend to Ireland and Scotland, and make one probate or one confirmation operative throughout the United Kingdom.


said, he intended to have stated, that the Bill would extend to Ireland and Scotland.


said, that provision, he considered, was highly necessary, for it appeared to him a most profligate mode of administering the law, that at present no less than five probates might be required to entitle an executor to administer the personal estate of his testator throughout the United Kingdom. He deeply regretted the present state of the law with regard to our Ecclesiastical Courts, but he was afraid there were influences at work adverse to reform be yond the power of any Government. He never went amongst professional men anywhere without being asked "How do you get on with the Probate Bill?" And sometimes the inquiry was made by sufferers amongst commercial classes. It was allowed that this measure of law reform was more pressing than any other. In Manchester if a person took out administration to a will in the diocese of Chester, the effect would be that, if a five pound debt were discovered to be due to him in Durham, that circumstance alone made the probate at Chester null and void. What a state of things was that? The hon. and learned Gentleman, the Solicitor General, about three years ago, had promised a measure which was allowed by everybody to be a very good one, but the hon. and learned Gentleman had not been able to carry it into effect. The comptroller of legacy duty, Charles Trevor, Esq., stated in his examination before the Chancery Commissioners— It has occurred to me to be desirable that one grant of probate should be sufficient for the whole United Kingdom. It is necessary that there should be a grant, because it is right that the executor should have a title; and whether there be one court of probate only, or many courts of probate, one grant should, I think, be a sufficient title for an executor for the whole of the United Kingdom."—Answer to Q. 341. And when (Q. 342) he was asked, "You think that whenever a will is proved it should be once for all?" he replied, "Yes; that an executor may get a title, by which he shall collect all his testator's estate." The Return prepared with respect to the Ecclesiastical Courts in 1852 made an Englishman perfectly ashamed to look at such a document. The patronage in those Courts was bestowed in a, manner which was scandalous, and ought not to be endured for a moment. A lady was appointed a Registrar; babes in the cradle were appointed Registrars; and persons, without being called upon to perform any duties worth the name, were paid an enormous amount of income—an amount which it was perfectly shameful to think of. But the influences that prevailed were ecclesiastical, and he supposed it would be said the Church was in danger if they were to take away the Ecclesiastical Courts. The higher the patronage went in the department of ecclesiastical authority, the worse the case was. With regard to the sinecure enjoyed by the Rev. Mr. Moore, that gentleman happened to be the son of an Archbishop; and he was appointed in 1799, at the age of twenty-two, and, therefore, for fifty-seven years he had received an enormous income—£7,000 or £8,000 a year—without rendering any services whatever. These were the kind of evils which stood in the way of improvement. The next Archbishop appointed his grandson, aged sixteen, to the reversion, and if the Rev. Mr. Moore had then died that youth would have come into the possession of the income at that age. In 1849, the very year after his appointment—the present Archbishop nominated his son as second reversioner to this enormous income. It was stated in the Return I that the age of that son was not known, but surely his father must know the age, for he had baptised him on the 23rd December, 1824. He had obtained from a friend a register of this young man's birth, from which it appeared that he was twenty-four years of age when he obtained the second reversion of that lucrative office. It was argued that the reform now proposed would inflict a serious injury on the proctors, but they were by no means a numerous body. In London there were only 120 proctors altogether. In Lancashire, the most populous county in the kingdom, there would be no damage done to that profession by the present Bill; for there was not, and never had been, a single resident proctor in all that county. In Yorkshire there were only some eight or ten proctors; and in Chester only three or four; and in point of fact, among a population of 5,219,590 in the province of York there were not more than thirty proctors for all these persons. Where he (Mr. Hadfield) came from they did not resort to proctors in proving wills, but the management in proving wills was given into the hands of surrogates—clergymen who knew not their right hand from their left in matters of law. There were not, he believed, in Great Britain more than 160 to 170 proctors altogether, and these were the gentlemen whose exclusive rights were insisted upon, and some of whom said in their examination that it would be unsafe to take this practice out of their hands, and intrust it to the care of about nine thousand solicitors in various parts of England. These were the difficulties which were in the way of all attempts at reform of the Ecclesiastical Courts. He should have liked the present Bill to have been in the bands of the Government, but under the circumstances he would give it his humble support. The grievance was one that extended into so many ramifications, that if he (Mr. Hadfield) were to occupy the House for days, he could not give them all the existing information of the bitterness and the wrongs, and confiscations of property which had taken place under the present mode of granting probates. The expenses were frightful, especially to small estates, and the losses sustained by persons who had to take out probates were enormous. Let it he remembered that these expenses had to be borne by bereaved families, by widows and by orphans. He spoke from personal knowledge when he mentioned one case in which the whole amount of the estate did not exceed £6,700. Of this sum £6.200 was in the province of York, with £500 and a small arrear of interest, in consols, in the province of Canterbury. The executors paid £120 duty, which was enough for the whole estate, which did not amount to £7,000; but because £500 and interest had to be administered to in London, there was £11 duty more; the full duty (£120) had to be paid in Yorkshire, and the special duty (£11) in London. The probate expenses in Yorkshire were £16 5s.; and in London, upon £500 and interest, the executors had to pay £42 14s. 4d. The whole expenditure consequent on both probates was near £200; of which sum, £70 were for legal and incidental expenses, and £42 and upwards by reason of administration in London. A profit of £250,000 a year was made by the Government, in consequence of the way in which those wills were dealt with, by obliging persons to prove on the amounts of the testator's estates without deducting debts due by them. This was shown in Mr. Trevor's examination, in reply to Questions 238 to 246. He had in his possession a Return showing that no less than £80,000,000 had been taken from personal property alone, before real estates had been subjected to any duty whatever. What could be more galling to a Scotchman or an Irishman than to be dragged into an English Ecclesiastical Court, if any of the property to which he had to administer happened to be in England? In some cases property changed dioceses even after administration bad been granted; and in consequence the will had to be proved in another Court. It would be ludicrous, but for the losses and vexations consequent on these transactions, to describe the state of the law. A short railway between Sheffield and Rotherham, of the value of many thousand pounds, was one day entirely in the diocese and province of York; but, next day, it became amalgamated with the Midland Railway, and, consequently passed into the diocese of Lichfield, and in the province of Canterbury. A professional friend told him of a probate having been taken out at Chester, for an estate including shares in the Manchester and Crewe Railway, in that diocese, but before those shares could be sold the railway had become part of the London and North-Western Railway, and his client had to administer again for the same property in Doctors' Commons. In small properties he could prove cases where the expenses of administration exceeded the value; and he had been assured by the chairman of a considerable railway, that his company had been induced to allow transfers under an indemnity, in order to save the ruinous expenses that would have been otherwise incurred. Was it more than an act of justice that Her Majesty's Government should relieve the people of England from the harpies who now preyed upon them; and, by adopting a measure such as that now before the House, or that proposed by the hon. and learned Solicitor General in the last Session of Parliament, enable them to prove a will economically, and honestly to account for the duty due to the State without being subjected to unnecessary and exorbitant charges? The present taxation for probate and legacy duties, was, probably, £3,000,000 per annum, or would amount to that sum in a short time; and he appealed to Her Majesty's Government to shield this class of the people from vexatious and burdensome charges, imposed by ecclesiastical authorities, which rendered no adequate services for which these great expenses were imposed. He contended that it was alike the interest of Government, and of the people, to abolish the present system of extortion.


said, the speech of the hon. and learned Gentleman who bad brought forward the measure did not appear to bear upon the question then under consideration, which was a Bill to transfer testamentary jurisdiction from the Ecclesiastical Courts to the superior Courts of Common Law and to the County Courts. It certainly was most desirable that it should not be needful to take out many probates when one probate ought to be sufficient, and that facilities should be given for trying issues of fact by juries. He was surprised, therefore, that the hon. and learned Gentleman should have dwelt upon abuses which every one admitted and every one deprecated. However, the real question was, whether the present Bill should be entertained. He presumed the noble Lord at the head of the Government did not object to the introduction of the Bill. [Viscount PALMERSTON intimated that he did not disapprove of it.] He regretted, however, to say that he despaired of any good whatever being accomplished by the Bill. He believed the plan too crude to be productive of any benefit. For his own part, he wished to see matters put upon a better system, litigation cheapened, but so that it might be good and safe, for cheapness alone did not comprise all that was desirable. As there might, however, be some provisions in the Bill that would be useful, he would not oppose its introduction.


said, he was too sensible of the difficulty of encountering the evils against which this Bill was directed, and too much mortified by the recollection of the failure of his own attempts to deal with the subject, to reject assistance from any quarter, especially from his hon. and learned Friend the Member for Plymouth (Mr. Collier). At the same time, his hon. and learned Friend must not think that he regarded the measure as by any means one which was sufficient to attain the end which all had in view. In his opinion, its effect would be only to transfer the evil from one jurisdiction to another. That evil was not confined to the fact that a matter having in its nature nothing spiritual was administered by an ecclesiastical jurisdiction; there was the further grievance that it was often necessary to go to several tribunals to accomplish what should be done in many cases without the intervention of any Court at all, and, in all others, by the authority of but one. He was happy to announce that the Government had determined to introduce not merely a measure for the extinction of the testamentary jurisdiction of the Ecclesiastical Courts, but a series of measures having for their object the utter abolition of all these tribunals. Nothing less than this would satisfy the requirements of the case, and apply an effective remedy to the evils inherent in the present system. He hoped that the Government would find it possible to gird itself to this important task, keeping also in view the necessity of completely remodelling the law of marriage and divorce. With respect to probate, he entirely concurred in the propriety of having one for the whole of the United Kingdom, and a, provision to that effect should form a prominent feature in any measure he might hereafter submit to the consideration of the House.


said, he was sure the country would hear with satisfaction the announcement of the hon. and learned Solicitor General that he was about to deal with this question on a scale and with the completeness far exceeding that of any measure hitherto introduced. He saw with great satisfaction that the Bill to be introduced by the hon. and learned Member for Plymouth proposed to give the County Courts jurisdiction in testamentary matters. For he was sure that the want of this jurisdiction in these Courts was the source of a moral injustice. He could not agree with the hon. and learned Member for Weymouth (Mr. Butt) that these Courts could not advantageously administer such a jurisdiction. Nor could he agree in the remarks which had been made to show that the transfer of the jurisdiction of the Ecclesiastical Courts to a Court of Common Law would not succeed. He had never heard a valid argument against such a proceeding, and it would indeed be strange if tribunals which were daily in the habit of construing instruments of the most complicated character should find themselves "at sea" in attempting to interpret a will. But, come what might of these suggestions, he hoped that the hon. and learned Solicitor General would be warned by the bitter experience of last Session against the folly of inserting in any Bill that he might hereafter introduce on this subject a provision for transferring to the Court of Chancery the testamentary jurisdiction at present residing in the Ecclesiastical Courts. He hoped that the Bill would receive the careful and candid consideration of the House, and that it would not be met by alleged practical difficulties, which had never been proved in the working of this jurisdiction through the medium of a Court of Common Law.


said, that it was agreed on all hands that great evils existed in the present system of the Ecclesiastical Courts, and the object which he had in view in objecting to the present and other similar Bills was not to retain those Courts, but to establish a fitting tribunal in their place. He had objected to the proposal which was made the year before last, substantially to transfer the testamentary jurisdiction to the Court of Chancery, a tribunal which he believed to be quite unfitted for such business. The hon. and learned Member for Reading (Mr. Keating) was of opinion that a Court of Common Law was best qualified to receive the testamentary jurisdiction, but he (Mr. Malins) thought a worse substitute for the Ecclesiastical Courts than a Court of Common Law could hardly be found, except perhaps the Court of Chancery. If the Government was really anxious to settle this question satisfactorily, they should adopt the recommendation, nearly unanimous, of the Commission of 1853, for the establishment of a distinct court of probate, to which should be transferred the business of the Ecclesiastical Courts. In England there were annually 25,000 wills and letters of administration at present proved in the Ecclesiastical Courts, involving an amount of some £50,000,000 in personal property alone; and, considering that such vast interests were involved in the question, Parliament, before abolishing the present jurisdiction, ought to take care that the most fitting tribunal should be selected to administer such important matters. Complaints had been made, and justly, of the evil of having to prove the same will in several jurisdictions, an evil which would be cured by the creation of one court of probate with complete jurisdiction throughout the kingdom. The hon. and learned Gentleman, the Solicitor General, appeared to hope that a portion of the testamentary business of the country would be intrusted to the County Courts, but he (Mr. Malins) regarded such a step as most unadvisable. The County Courts were already fully occupied, and it was impossible for the Judges of those Courts, sitting only occasionally, and being mostly selected from the Common Law bar, quite unacquainted with the subject of wills, to deal satisfactorily with such delicate questions as testamentary disputes involved. It was certainly true that out of 12,000 wills and administrations taken out of the Archiepiscopal Court of Canterbury only forty were contested, but those which were not disputed required careful examination, in order to ascertain that the requirements of the law had been fulfilled. If a single court of probate were established, it would be able to ascertain whether the particular forms and acts required by law had been complied with before admitting any testamentary paper to proof. At present contested cases were heard in the Ecclesiastical Courts upon written evidence, a system which certainly ought to be terminated, and vivâ voce evidence taken before a jury. He would urge upon the Government that, if there was any desire to settle the question speedily, they should adopt the recommendation of the Commission, and bring in a Bill to establish a court of probate, by doing which, with only a slight concession in those who opposed the present proposal, they would command almost universal assent, and completely remedy the evils which every one admitted now to exist. If they did not, but persevered in the attempt to transfer the jurisdiction either to the Courts of Common Law or Chancery, he warned them that they would meet with another in addition to the many difficulties which had attended previous attempts to deal with this subject.


said, he should support the Bill. Everybody in the country, including Doctors' Commons, admitted that some change was necessary in the present system of testamentary jurisdiction, and it was a matter of surprise with him that a jurisdiction, not only most inconvenient, but usurped, should have been so long tolerated, after the ideas in which that system had originated had become obsolete. For himself he approved of the substitute of existing Courts, as proposed by his hon. and learned Friend (Mr. Collier), as being competent to deal with the subject, and as saving the expense attending the creation of a new jurisdiction. He was not of opinion that there was that magic attaching to a Government Bill which the hon. and learned Member for Wallingford (Mr. Malins) seemed disposed think belonged to it. Why, the Courts of Common Law had frequently devolved upon them the duty of determining every possible point that could be raised in reference to wills—namely, the competency of the testator, proper execution, and the question of undue influence or fraud. The hon. and learned Solicitor General seemed, however, to think that inasmuch as it was the intention of Her Majesty's Government to attack the Ecclesiastical Courts in the amplitude of their jurisdiction, and to devise a substitute for that tribunal, that the particular branch of their jurisdiction referred to by the present measure could not be satisfactorily dealt with in a piecemeal fashion. Now, for the life of him, he could not comprehend why a proposal for conferring the testamentary jurisdiction of the Ecclesiastical Courts upon the Courts of Common Law should not be accepted simply because Her Majesty's Government intended to grant still more extensive jurisdiction to the Courts of Common Law. He hoped, therefore, his hon. and learned Friend would proceed with his measure.


said, he imagined that the House would now see that the prolonged resistance of the Ecclesiastical Courts to the siege which had been laid to them, arose in some degree from the various opinions of lawyers respecting their substitute—the Common Law lawyer saying there was nothing like the Common Law Courts, and the Equity lawyer that there was nothing like the Court of Chancery; both concurring that the Ecclesiastical Courts ought to be destroyed, but differing extremely as to who should seize the spoils. It would be well if the hon. and learned Member for Plymouth (Mr. Collier) endeavoured to tread in the footsteps of that great law reformer, Sir Samuel Romilly, who warned young law reformers against being betrayed into exaggeration, by telling them they diminished whatever they exaggerated. The hon. and learned Member had made at least three statements of the grossest inaccuracy. The first was, that the Ecclesiastical Courts were condemned by a Commission twenty years ago, when, in fact, so far from condemning, they suggested assimilating probate on realty to the same system of probate on personalty as prevailed in the Courts of London. The second inaccuracy was, that colonels in the army, old women, and boys were Judges; when there was not a single Ecclesiastical Court in the country the Judge of which was either a colonel in the army, an old woman, or a boy. [Mr. COLLIER: I should have said Registrars.] The judicial office and the office of registration were very different things. It was true, however, that great abuse prevailed with respect to the persons who filled the office of Registrars. The third misstatement was, that there were grave defects in the custody of the wills; when, in the report of the Committee, to which the hon. and learned Member (Mr. Collier) had referred, Mr. Freshfield, the solicitor to the Bank of England, stated that, in searching for wills of old dates, in the Prerogative Court of Canterbury, it was an extreme case if they were not found within half an hour, and it would be fanciful to suggest anything in the form of improvement. The hon. and learned Solicitor General, in a most emphatic and solemn statement to the House, had said, that it was the intention of Her Majesty's Government not merely to deal with the subsidiary question of testamentary jurisdiction, but with the far graver questions of marriage and divorce, and the discipline of the clergy. He ventured to express a hope that the Government, if they introduced such a measure, would stand or fall by it—that they would pass it, and not withdraw it. It was not creditable to Parliament or to the Government that year after year—now for nearly thirty years—measure after measure should be proposed, that abuse and exaggeration should be applied to the existing law and to those who ministered it, and that at the end of every Session the whole measure, with many apologies, should be withdrawn. He thought it expedient, both for the State and the Church, that the temporal and ecclesiastical jurisdictions of these Courts should be severed, and to such a measure he would give his hearty support; but ho did not think it desirable, expedient, or creditable that measures should be brought in year after year, and not one of them passed into law.


said, the House, knew very well that he was no lawyer, but as he had suffered all his life from the abuses of which the hon. and learned Member (Mr. Collier) had complained, he thought it was his duty to rise and confirm, his statements. It was idle for the legal Members of that House to talk of one branch of the law as being better than another. What cared the public whether justice was administered to them by this Court or that?—all that they asked, and were entitled to, was that their cases should be dealt with by the Law Courts ably, cheaply, and expeditiously. He hoped that the hon. and learned Member would not withdraw his Bill, but that he would press it forward in order to urge the Government to take some steps to prevent the robberies which were at present committed upon the people by the Ecclesiastical Courts.


said, the Bill contained two distinct propositions—that the County Courts should exercise jurisdiction over wills to a certain amount, and that for wills above that amount the Court in London should have the same jurisdiction as one of the Courts of Common Law. He trusted that the jurisdiction of the County Courts would be extended to wills, for there was nothing in cases of small amount that could not be cheaply and easily decided by the Judges of the County Courts, with the aid of a jury, when the parties wished it. A more important question was, whether the probate business of this great metropolis ought to be intrusted to a Court of Chancery? He was not insensible to the importance of maintaining a bar able worthily to administer the civil law of this country, and at the same time devoting its attention to matters of international law. He thought that if the County Courts had a contentious jurisdiction in cases where the amount did not exceed £300, and if all the grave cases came up to be decided by a separate Court of Probate in London, we should have an excellent Court for the poor man, and we should be able to perpetuate a bar such as he had described.


said, it was manifest that the Ecclesiastical Courts were indefensible. Every question which came before them with reference to wills might be, and ought to be, dealt with by a Common Law Court. Equity had nothing to do with such questions. In the State of New York there was a County Probate Court, which granted probates available for every county throughout the States, and why should there not be in England a court of probate with a jurisdiction similarly extensive? He hoped that this measure would be extended to the Ecclesiastical Courts of Ireland, the practitioners in which were regarded as the robbers of widows and orphans, and as no better than undertakers. He regretted that the question of marriage and divorce had been introduced on the present occasion. If the Bill were not proceeded with simply as a measure to abolish the testamentary jurisdiction of the Ecclesiastical Courts, another thirty years might pass away without any alteration taking place in that universally condemned jurisdiction.


said, he hoped the hon. and learned Solicitor General would not be deterred from bringing forward the sweeping measure he had stated he intended, and thus rescue the law of marriage, the law of divorce, and the law of the Ecclesiastical Courts from the disgraceful state in which it had been. He hoped that in a question of such weight as the one before them, the House would not be influenced by any private consideration. He believed that much of the present mischief was to be traced to the egotism of the bishops. That evil had not existed to any great extent in London, for there it had been kept down by the influence of public opinion. Many of the evils of the present system arose from the frightful nepotism of the bishops, who had the power of appointing local Judges, and who in many instances appointed their own relations and persons totally unfit for those offices. The custody of wills was at present in a shameful state. His hon. and learned Friend the Member for Reading (Mr. Keating) was aware of a case which had lately occurred there, which was a case of forging a will. The wills were kept in a loft, wrapt up in baskets. A person took a will from amongst these, altered it as he desired, kept it for nearly two years, and then replaced it. Was that the way in which wills should be kept? He thought archbishops and bishops should not be permitted to name these important functionaries. The Archbishop of Canterbury had the power of nominating the Judge of the Prerogative Court, but he trusted such an anomaly would not be allowed to continue, for he thought a great portion of the present evil was occasioned by the ignorance of the persons who were appointed to those important offices.


said, he desired to express his thanks to the House for the kind manner in which they had received his Bill, and the satisfaction he had felt on hearing the statement of his hon. and learned Friend the Solicitor General, in favour of giving this jurisdiction to the County Courts, of allowing probate of wills without the intervention of a proctor or attorney, and of the probate being valid through the whole kingdom. He had introduced this Bill for the solution of a difficult question, but if the Government intended bringing forward a great measure, he should be happy to merge his Bill in theirs, and give the Government every assistance in his power. The statement to which his hon. and learned Friend (Mr. R. Phillimore) had objected—that the testamentary jurisdiction of the Ecclesiastical Courts had been condemned by a Commission more than twenty years ago—was founded upon the recommendation of that Commission to transfer the jurisdiction to Chancery. He had not intended to say that old women, colonels, and boys and girls were Judges in these Courts, but that they were Registrars. He must reassert his statement that wills were kept in an improper manner in the Prerogative Court of Canterbury, and his authority for it was the Report of a Commission to the effect that they were deposited in a building which was not fireproof, and was situated next to a chandler's shop. His hon. and learned Friend had also said that it was discreditable to go on year after year meddling with this question without settling it. But why had it not been settled? Because its settlement had been opposed by his hon. and learned Friend and the Proctors. [Mr. R. PHILLIMORE dissented.] His hon. and learned Friend had certainly opposed the Bill he had brought forward, and all the fifteen measures which had been introduced at various periods had been defeated in consequence of the opposition of interested parties. The hon. and learned Member for Wexford (Mr. M'Mahon) was desirous that the Bill should be extended to Ireland. He hoped that this would be done. Again he begged to thank the House for their kind reception of his Bill.

Leave given.

Bill ordered to brought in by Mr. COLLER and Mr. HADFIELD.