§ MR. MALINS
said, he wished to put a question to the hon. and learned Gentleman the Solicitor General with regard to the Bill, which stood as the first Order of the Day. It was generally understood that since the Bill was introduced, and read a first time, material alterations had taken place in the views of the Government, and that the Bill had been compounded with the Bill of the hon. and learned Gentleman the Member for East Suffolk (Sir F. Kelly). If that were true, it followed that the House that evening was not in possession of the Bill which it had read a first time. He, therefore, wished to know, as the subject was of great importance—affecting great interests in the country—whether the Bill, which the hon. and learned Gentleman proposed to read a second time that evening, was the same which he had introduced, or whether it was some other Bill?
THE SOLICITOR GENERAL
Sir, in reply to the hon. and learned Gentleman, I beg to say that I will give him a categorical answer when I move the second reading of the Bill.
§ Order for Second Reading read.
THE SOLICITOR GENERAL
said, in moving the second reading of the Bill he wished to state that he was greatly indebted to the hon. and learned Members for East Suffolk (Sir F. Kelly) and Plymouth (Mr. Collier) who, in the interval of time afforded by the attention of the House of Commons being directed to other business of a more pressing nature, had contributed many valuable suggestions, with the view of improving the measure which he had the honour of laying on the table of the House. It would be easy for him in the course of his speech to explain the principles which he desired to enforce, more particularly by the aid of the provisions taken from the Bill of his hon. and learned Friend opposite. He did not think it would be necessary, nor was it his intention, to state at any great length the reasons why he conceived that the Ecclesiastical Courts, as far as concerned their jurisdiction in matters of testacy and intestacy, should be abolished altogether. During the last thirty years the House of Commons had had occasion to consider that question on numerous occasions. Several Commissions had also been issued for the purpose of inquiring into the matter. In the year 1832 a Report was made 1996 by the first Ecclesiastical Commission, which recommended the establishment of one tribunal for the purpose of the administration of the property of deceased persons. In 1833 a similar recommendation was made in the third Report of the Commissioners appointed to inquire into the law upon the subject. A Committee was appointed by the House of Commons in 1833, which made recommendations in August of that year, all of which were carried into effect by the Bill which he now asked the House to read a second time. In 1834 a Committee of the House of Lords concurred in the same recommendations, which were also contained in a Report of a Committee of the House of Commons in 1850. Finally, the Report of the Chancery Commissioners in December of 1853 contained suggestions to the same effect. It would, therefore, be unnecessary for him to adduce arguments why those concurrent recommendations should now be taken into consideration. It might, however, be desirable to inquire a little into the chief causes of complaint with respect to the present law, not so much for the purpose of arriving at a conviction as to the necessity of a change as for the purpose of drawing a conclusion as to the character, constitution, and power of the tribunal, which should be substituted for the existing courts. The authority of the Ecclesiastical Courts, in matters of this description, was originally a usurped authority. Hon. Members were no doubt aware that the authority of the Ecclesiastical Courts, in matters of this description, was not originally given to them by the common law of the country. The common law had disregarded the rule applicable to the ownership, distribution, and enjoyment of personal property. In former times, when a man died, the bishop of the diocese in which his property was situated and in which he died, interfered for the payment of his debts, on the ground that, so long as they were unpaid, his soul would not have repose. Hence the first interference of bishops in matters relating to the personal property of deceased persons. According to the principles of the law the power of granting administration belonged to the Consistory Court within the jurisdiction of which the deceased person resided at the time of his or her death. If a man died leaving £5 worth of property in the diocese of Canterbury, for instance, and £5 worth more in another diocese, it would be necessary, by the existing law, to 1997 take out administration in each. But these difficulties and absurdities were augmented by exempt and peculiar jurisdictions. If a man unfortunately happened to have personal property in any peculiar jurisdictions, it would be necessary to take out probate in each, and it was proved in evidence before the Committee that it was not unusual to have six probates of the same will in different parts of the kingdom. Now he asserted that there was nothing whatever in the nature of wills that should of necessity bring them within ecclesiastical jurisdiction. They were, in point of fact, all matters of a civil nature, and had no connection whatever with bishops or archbishops, deacons or archdeacons; and, in truth, the very state of circumstances out of which the courts had arisen had long since ceased to exist, and those courts could not in reality administer the whole of the estate of a deceased person. When a man died in England having bonâ notabilia, the will must be proved in the province in which he resided; and supposing it to be proved in the Court of the Archbishop of Canterbury, and a dispute arose, one decision might be given in the Court of Canterbury, another quite opposite perhaps in the Court at York; and if the deceased had property in Ireland also, the question might be decided in another way in the Prerogative Court of the sister kingdom. Then it might turn out that a common law tribunal would have to decide the sanity of a testator, and the propriety of his will with reference to real estate, while the Ecclesiastical Court, whose decisions were of no value in courts of common law, might arrive at a wholly different decision with reference to his sanity and the propriety of his will as far as it affected his personal estate. In fine, a man might be pronounced insane in the Ecclesiastical Courts and sane in the civil courts, or vice versâ. These were not imaginary circumstances, for it was well known among the profession that they were of constant occurrence. There was a case at the present time being argued before the House of Lords, in which a testator who died in Ireland had been found to be incompetent, and his will had been set aside in an Ecclesiastical Court in that country, while the same testator had been pronounced competent and his will had been established as a valid document in an Ecclesiastical Court and in a court of common law in this country. All these inconsistencies and absurdities arose from the 1998 existence of a number of independent, co-ordinate, and, therefore, frequently conflicting jurisdictions not responsible to a common Court of Appeal. The evils of this anomalous and unsatisfactory state of things had been very prominently set forth in the various Reports to which he had referred, and there was no question that it was highly desirable to put an end to them. Presuming that the existences of the evil Was admitted, and that a remedy was desirable, he would proceed at once to explain what would be the constitutional character of the new court which he wished to see substituted for the present varied, complicated, and conflicting description of authority. He would, therefore, propose to state what was the description of tribunal which he desired to see substituted for the Ecclesiastical Courts; and he begged the House to observe that in doing so he did not wish to limit the remedy to those courts, but that his earnest desire was to improve the judicial institutions of the country. There was no reason why everything connected with the proof of a man's will should not be decided by one tribunal, and why that tribunal should not have all the powers necessary for a proper administration of justice, which were now divided between three different or co-ordinate tribunals. He proposed, therefore, to abolish all necessity for resorting to the Ecclesiastical Courts in testamentary matters, and to substitute a tribunal which should have in itself all the powers of a court of law, which should be bound by the common law rules of evidence and trial, and which should determine once and for all the questions brought before it. He was under considerable obligation to the hon. and learned Members for East Suffolk and Plymouth for the manner in which they had brought to his attention the necessity of these courts being governed by rules securing the most simple, expeditious, and economical mode of administering justice, and more especially that they should not be allowed to fall into that unfortunate state in which the Court of Chancery was at the present moment with regard to the taking of evidence. He proposed, therefore, that this new tribunal should take evidence exactly as it was taken in the common law courts, and he had accordingly borrowed a few provisions from the Bills of the hon. and learned Members for the purpose of securing that object. Those provisions were matters of detail, and he thought the 1999 House would have no difficulty in considering the Bill when it was agreed that the new tribunal which it sought to establish was to be governed by those rules of procedure to which he had referred. By the principle of the present law, great delay took place in commencing proceedings in cases where there was a dispute between the parties, or where a question arose between two claimants as to which should administer to the estate of the deceased person. Of course, during the pendency of the dispute there was no representative—no means of collecting the estate, nor was it by any means possible to provide for the management of the real estate. In some degree the evil was sought to be remedied by instituting a suit in Chancery for the appointment of a receiver—an officer in the nature of an administrator, pendente lite, of the real estate. Of course there could be no reason whatever, whilst the dispute was pending, whether the will should be proved or not, or whether the deceased person had died testate or intestate, why the Court should not be armed, having all the necessary parties before it, with jurisdiction to proceed as far as it could, by the medium of its own officers, or by the medium of persons appointed by it, to collect, get in, and administrate the personal estate—to place it in a state of security—to invest it, and even, perhaps, to carry on the trade of the deceased man during the pendency of the litigation; and also, generally to superintend the real estate of which he might have died seised. That was one of the objects which he wished to secure by the Bill now before the House; and the House would see that, whilst in the trial of all issues and matter of fact it was desirable that the new Court should be armed with all the powers of the courts of common law, so far as those cognate and co-ordinate purposes of general benefit were concerned, it was desirable that it should also be armed with all the powers of administration which were now possessed by the courts of equity. But he wished it to be clearly understood that those latter powers were not to be mixed up with the Court of Chancery at all. He mentioned this in order to remove an apprehension which had been entertained that the peculiar business of the new Court would be drawn into the vortex of the general business of the Court of Chancery. That was the object which he had had in view on former occasions—it had 2000 been the object of the measure which he had before had the honour of introducing on this subject, though that object had been very much misapprehended and misunderstood. But, being warned by experience, he had taken care to introduce such declarations, and such unmistakeable enactments, that it would be impossible, he believed, for any man to state that the business or procedure of the new Court would be mixed up in any manner with the business and procedure of the Court of Chancery. He must now mention that there was one particular in which he had adopted the suggestions of his hon. and learned Friend the Member for East Suffolk (Sir F. Kelly); and, taking it from him, he (the Solicitor General) did not apprehend that the slightest inconvenience or opposition would arise from its adoption. He had originally proposed simply an appeal to the highest Court in the land—namely, the House of Lords; but in deference to the suggestion of his hon. and learned Friend he had introduced a clause giving an intermediate appeal to the Court of the Lords Justices of Appeal in Chancery, and he thought that the House would accept that proposition, recommended as it was by his hon. and learned Friend, as a security that no harm could result from its adoption. Another function which he desired the new Court to discharge he wished to explain to the House, for he thought that it would effect a great improvement in the state of the law of real property, and that it would be introductory to further improvements in the transfer of real estate; improvements which he hoped, at no distant period, to have an opportunity of submitting to Parliament. In the case of personal property the Ecclesiastical Court constituted a personal representative, and they all knew that the personal representative was, in point of fact, and in the theory of the law, the absolute owner of the estate. He had the unquestionable power of applying the personal estate to meet all the exigencies of administration; but, with regard to the real estate, there was no correspondent principle—no constituted legal representative; and the result was, that in numerous cases of wills imperfectly framed, with respect to the exigencies of the estate, and also in numerous cases of intestacy, where the heir was under disability, those things which were required for the personal estate could be done, but they could not be done for the real estate, because the law had not provided 2001 a representative of the real estate, armed with the same powers as the representative of the personal estate, for the benefit of creditors and devisees. He proposed, therefore, that the new Court should by the Bill have the power, under certain restrictions, of constituting a representative of the real estate in like manner as the Ecclesiastical Court now possessed the power of appointing a representative of the personal estate. He thought that many of the questions—that many of the difficulties which now arose in cases of administration, and which required a resort to the Court of Chancery—would be prevented by the introduction of this provision. But, independently of this consideration, it would be requisite to point out to the House that it constantly occurred in cases of wills and administrations of personal estate that difficulties arose with regard to the conduct of trustees, executors, or administrators; and what was wanted by the parties beneficially interested, as well as by legatees and creditors, was, that the whole conduct of the estate should be committed to some other party for the purpose of winding it up, so as to give them the same security as creditors would have under a bankruptcy. Now, what he therefore wished to propose was, that on the application of a certain number of the parties beneficially interested, the Court should be empowered to appoint an official administrator who, under the authority of the Court, would supersede the executors and administrators against whom complaints of inefficiency or misconduct had been properly brought forward and sustained. By such a provision as that there would be vested in the Court the amplest powers which could be required by any tribunal for undertaking a task which necessitated, on the part of that tribunal, that it should be invested not only with complete administrative authority, but with all the powers which belonged to a court of equity. Those were some of the functions with which the new Court was by the Bill distinctly invested; but there was another which hon. Members had no doubt noticed—namely, that the Court was to be allowed to grant certificates of intestacy. He must for a moment dwell on this point, for it afforded him an opportunity of calling the attention of the House to the very inconvenient, and he might say wretched, condition of the law on the subject. At present, if a man devised an estate by will, and he created under that will a number of successive 2002 estates—for instance he devised the estate to one for life, with remainder to another for life, with remainder to first sons, and so on. At the time of his death there might be no son of the second devisee in existence, and a question might, perhaps, arise whether the testator was sane or not. Proceedings might be taken, and the decision might be in favour of an intestacy. But that decision—that conclusion, was not binding on the son of the second devisee, who, twenty years after might come into existence and reopen the question. That was certainly a condition of the law which rendered the title to real property, when it was affected by will, so manifestly insecure, that it was marvellous that it should have been permitted so long to continue. In his own experience many such cases had arisen, and the difficulty was whether they would now permit property to remain exposed to contingencies of such a description or whether they would, for the advantage of the public at large, introduce a provision which would enable the proposed Court finally to determine for the benefit of all the parties interested in the question of testacy or intestacy. To meet that evil he had introduced into the Bill, a provision that the new court should have that power, and that when the certificate of testacy or intestacy had been granted all questions should be finally and conclusively determined as between the heir at law and all persons interested under the will which was the subject of litigation. He had now mentioned some of the functions of the court, and he would now state what its procedure would be. That procedure would be of the simplest kind. Hon. Members would find that in the Bill of his hon. and learned Friend (Sir F. Kelly) a form of procedure was suggested, so simple, as altogether to supersede anything like formal and technical pleadings. That provision he (the Solicitor General) proposed to incorporate in the present Bill, his great object being to regulate the proceedings of the Court in the simplest manner, introducing the practice which had been established in the courts of common law by the Common Law Procedure Act, and thus to prevent the possibility of expense, delay, or uncertainty, either in consequence of the pleadings or the mode of taking evidence. He would now pass from the constitution of the Court, its powers, and functions, to call the attention of the House to the manner in which wills would henceforth be proved if the provisions of 2003 the Bill should be sanctioned by Parliament. At present the House was aware that the greater portion of wills were proved in the Prerogative Court of the Archbishop of Canterbury. The constitution of that Court, and of the other Ecclesiastical Courts, had limited the power of practising in them to a select body of men—namely, the proctors. An analogous limitation had formerly existed in the Court of Chancery, where there had been the clerks in Court and the six clerks, whose offices, after having endured for a long time, to the great obstruction and inconvenience of the suitors, had been ultimately abolished by the authority of Parliament. In the Court contemplated by the present Bill the monopoly of the proctors would not be perpetrated. The difficulty with regard to the proctors arose not so much from the manner in which their duties had been performed—for he was happy to say that there was no body of legal practitioners more eminent for the care, anxiety, and skill with which they conscientiously discharged their duties than this body of men—he had no complaint to make of the manner in which their functions were discharged—but it was a great injustice to the people of this country that they should only be permitted to approach the Courts for testamentary purposes through the agency of a particular and privileged class of professional men. It was a manifest injustice when a party was desirous of proving a will that whilst in nineteen cases out of twenty it was necessary to employ a solicitor, that he should also be under the necessity—one which rendered the expense doubly onerous—of employing a proctor also to prove the will. It was, therefore, desirable that provision should be made to relieve the people of this country from a system which undoubtedly greatly added to the expense and onerous character of the professional employment required in cases in which it was only just that every possible relief should be afforded. He proposed that the mode of proving wills should hereafter be in the most simple, expeditious, and economical form. For that purpose the existing state of the law required that considerable caution and care should be exercised, in order that wills, which were defective in point of legal solemnity, should not be admitted to probate except under the superintendence of skilful and experienced persons. The House was, no doubt, aware that before the 1 Vict., commonly called the Statute of Wills, there 2004 was a great difference in the law with respect to wills of real and personal estate. Wills of personal estate previously to that time required, generally, no attestation—no particular solemnity attached either to their execution or form. Perhaps it was to be regretted that a Statute had been passed which had loaded the people of this country—unquestionably with great liability to danger—with respect to their testamentary dispositions. But that law had been passed, and it had been acted upon so long that it was now idle to allude to any complaints which might be made on that subject. But the solemnities required by the existing law demanded that great care and caution should be applied to the examination of wills before they were admitted to proof. He, therefore, proposed to establish in London a Testamentary Office consisting of a number of most able and experienced men, placed in such grades in that office as to secure to every will the supervision of one or more skilful and experienced persons, so that no danger could possibly exist of wills being proved deficient in the requirements of the law. He proposed that it should be competent for any man to bring a will, of which he was the executor, to the Testamentary Office, and leave it there for the purpose of being admitted to proof. He proposed that when the executor came to the Office he should see an officer, who would be able and ready to give him the required assistance to examine the document, and in a simple and intelligible manner to grant proof of the instrument presented, on his showing that the required solemnities had been complied with, and on his making the necessary affidavit. Those proceedings were proposed to be still further facilitated by a simple innovation, to which he attached the greatest weight—one which he hoped to see the herald of other essential and important improvements in the law. Every gentleman conversant with matters of this description had seen the exemplification or probate of a will issued by the Court of Probate. He saw that it was written on parchment—written in court hand—engrossed in a clerky manner. The document came forth with considerable pretensions in parchment, but it was altogether of the most unreadable and useless character for all purposes of practical utility. It was monstrous that the introduction of printring, which had done so much for all purposes of literature, science, and general civilisation, should have done so little for 2005 the improvement of the law. He believed that no greater improvement could be suggested than that which he proposed—namely, to deliver the people of this country from what he would venture to call "the tyranny of parchment." There was no earthly reason why every deed, every settlement, every will, should not be printed, whatever might be its length, on two or three sheets of paper, and made as plain and simple, and as readable, as any other document which was committed to print. What would be the benefit if this proposal were adopted? In the first place, if this plan were adopted there would be much greater plainness, and all men would be able to read these legal documents, which hitherto, by their character and very appearance, had repelled all but the skilful and initiated lawyer. He hoped that this system of printing would come into vogue, not only with regard to wills, but with regard to deeds and settlements. Surely there was no reason, at least he could never understand, why a gentleman's title deeds, instead of being a musty bundle of discoloured sheepskins, odious to look at, nasty to smell, and disgusting to handle, should not be bound up in a pleasing folio volume, containing also the family history—agreeable to read, and which everybody could understand without being forced to have recourse to the family solicitor. The more the parties understood them the less would they be the slaves of their legal advisers. The plan had been tried in the Court of Chancery with the happiest results. It had lessened the length of the pleas in that Court by at least one-half, and it had swept away the odious jargon, the vile verbiage, and the incessant tautology which used to disgrace those documents, and which still incumbered conveyances. All such absurdities had disappeared when the light of day was let in on those documents, and men became ashamed of writing in a style which abounded in useless repetitions. Benefiting by this experience he proposed that the copies of the wills admitted to probate at the Testamentary Office, instead of being engrossed on parchment, should be printed on paper; that the executor should receive any number of copies he pleased; that to each copy should be affixed a stamp to authenticate it; and that any copy so authenticated should be admitted as evidence in Courts of Justice. By such an arrangement considerable saving would be effected. At present in the Ecclesiastical 2006 Courts the cost per folio of ninety words of a will was 3s. 4d.; whereas, as he was informed, the cost of printing forty or fifty copies for distribution among the persons interested would not exceed 9d. per folio. He had formerly intended that one central Testamentary Office in London should serve for all the purposes of probate throughout the kingdom; but it had since been represented to him by his hon. and learned Friend the Member for Plymouth (Mr. Collier) that inconvenience might result if persons were deprived of the opportunity they had hitherto enjoyed of resorting to the various district offices to prove wills and obtain advice regarding them; and he had accordingly consented to modify his original plan. He therefore proposed to establish a distinct office in each County Court circuit. In England and Wales those circuits were sixty in number, eight of which were metropolitan and the remainder rural districts; and in each of the latter an Office would be provided for receiving all papers connected with the proof of wills and for granting letters of administration where the personal estate did not exceed £1,500. At the same time, it was deemed desirable that, before the probate was finally completed, the wills received in the local offices should be sent up to the Testamentary Office in London, there to undergo the supervision of a succession of officers of superior knowledge and experience to those likely to be possessed by the single officer of any particular country district. That safeguard, while it would cause no delay or additional expense, would be an effectual security to the public against the evils that would otherwise ensue if a will which did not comply with the regulations of the Statute were proved per incuriam by a district officer. For each of the district offices there would be an officer and a clerk appointed. That arrangement would of course lead to a diminution in the staff of the proposed Testamentary Office. That staff, when the Office was intended to be the sole place of probate, was to have consisted of a chief registrar, four other registrars, sixteen official proctors, and two Commissioners for the administration of oaths; but, inasmuch as there were to be fifty-two district officers, it was now proposed that the staff of the Testamentary Office should be reduced to a principal registrar, three sub-registrars, ten official proctors, and one Commissioner for the administration of oaths. The next 2007 point, the importance of which could scarcely be exaggerated, was the constitution of one place of deposit for all wills and of one general registry in the metropolis, together with subordinate registries in different parts of the kingdom. Many of the local registries were notoriously in a disgraceful state, valuable documents and papers being in some cases inaccessible, and in others mutilated and even destroyed from the want of due care in collecting them together and in providing for their preservation. He was indebted to Major Graham, the Registrar General, for several important communications relating to this subject. That gentleman stated that if the Testamentary Office was established, as proposed, at Somerset House, where the Stamp and Legacy Duty Offices already existed, accommodation could be afforded of the most convenient description for the reception of about 6,000,000 of wills in fire-proof rooms. It appeared that the number of wills annually made throughout the country was about 20,000. Not only might the originals of all wills be deposited in that secure receptacle, but by the system of printing there would be an opportunity of establishing local registries in different parts of the country in which printed copies might be preserved. The 45th section of the Bill also provided that copies should be sent not only to the chief registry in London, but to the Prerogative Office in Dublin, to the office of the Commissary of the County of Mid Lothian in Edinburgh, and by an alteration which he would suggest in Committee, also to the office of the clerk of the County Court district in which the testator died. Thus, a metropolitan deposit of all extant and future wills would be combined with local registries, in which printed copies of wills hereafter to be proved would be placed in safe custody. The whole of the wills proved in the Prerogative Court of Canterbury were now deposited in buildings the security of which had at different times been seriously questioned; and those buildings were held by Mr. Moore, the present Registrar, upon a lease which would expire at Lady-day of 1857. It would therefore be necessary, before that period, to provide for the custody of the whole body of wills of the Prerogative Court of Canterbury, for he had been told by Mr. Moore it would be impossible to renew the lease, and the state of those important documents was most perilous. In addition to the provisions he had detailed, he proposed to 2008 introduce a provision for the purpose not only of giving County Courts authority to entertain contentious suits when the property did not exceed £300, but also to entertain suits for the administration of estates which did not exceed a similar amount. He was indebted for this suggestion to his hon. and learned Friend (Mr. Collier), and the House would agree with him that this would be an improvement in the law with regard to the proof of wills, and that the great considerations of convenience, accessibility, and cheapness would be very much promoted by having a tribunal in which small estates not exceeding £300, might be readily administered and divided among the parties entitled, whether as creditors or legatees. He now came to a most important feature of the Bill—the manner in which it was proposed that justice should be done to parties at present interested by being holders of offices or monopolists of the practice at present existing in the Ecclesiastical Courts. He begged the particular attention of hon. Members who had interested themselves in this question upon public grounds to this part of the Bill. Before he approached the question of compensation it would be necessary to put the House in possession of what Parliament had thought proper to do on the subject. The necessity of abolishing the Ecclesiastical Courts and making a complete change in the law had been admitted by Parliament for a very considerable period of time. The Statute 6 & 7 Wm. IV., c. 77, declared that when offices in the Ecclesiastical Courts became vacant the persons appointed should be subject to all the regulations and alterations affecting the same which Parliament might afterwards provide, and should not acquire a vested interest in their offices or a claim to compensation. That Act was followed by the 10 & 11 Vict. c. 98, which enacted that all persons who had been appointed to offices in the Ecclesiastical Courts since the passing of the 6 & 7 Will. IV., or who might thereafter be appointed, should not acquire any clain to compensation. The House would agree with him that those enactments had been passed under the conviction that Parliament would at once proceed to discharge its duty of abolishing the Ecclesiastical Courts and constituting a new tribunal. Notwithstanding, however, the efforts made for discharging that duty, successive Bills, introduced by different Members of that House, had all failed 2009 from one cause or another. So numerous were those failures, that the stoutest hearts and the most able Parliamentary tacticians had given up the attempt to abolish those Courts and to carry into effect that which Parliament had contemplated. He could not think that Parliament would now be anxious to put those enactments in force against those gentlemen, while Parliament had abstained from carrying into effect that legislation which had been alleged as the reason for introducing the various measures he had alluded to. He could not, therefore, desire that the measure which he had the honour to introduce should be purchased at the price of enforcing those enactments that the parties might consider to have been abandoned or superseded by the neglect of Parliament itself. He did not, therefore, propose to purchase these reforms at the expense of gentlemen who had accepted their appointments with the conviction that Parliament was not prepared to act on those enactments. He was sure, therefore, that the House would agree with him, that liberality in a matter of this kind was the wisest policy, and that a great benefit would be ensured if they could accomplish the object contemplated by these minacious enactments, and thereby purchase the acquiescence of the parties who hold the different offices by giving them compensation. He thought he could show that it would be desirable to give compensation of the most liberal kind without any material prejudices to the interests of the community at large. The whole of the compensation that he proposed to give would be entirely paid out of the fee fund that would be created in the Court itself, and that not only without the smallest addition to the fees at present paid, but with great relief to the suitors in respect to fees. He had already pointed out that a great saving would be made by his proposal for printing wills; and a still greater saving by reason of persons proving wills not finding it necessary to employ a proctor as well as a solicitor, which at present nineteen out of twenty did. According to Returns made to Parliament, the office fees would amount to about £92,496, and the first entry, therefore, which he made upon the side of the fee fund was £92,500. In addition to other emoluments the proctors took a definite fee, which was regulated by themselves, called the "probate and administration under seal fee." It amounted to 3s. 4d. 2010 in the pound upon every stamp up to £60 inclusive, and 6d. in the pound upon all stamps exceeding that amount. The whole amount of probate and administration duty for the year 1853 was £996,950, and the amount of proctors' fees upon that sum would be as nearly as possible £89,000. He proposed that that proctorial fee should be added to the office fees, and together they made a sum of £181,500, which would be the annual amount of the fee fund from the whole of the testamentary and intestate business in England and Wales. He would now come to consider the amount of compensation to be paid. In the constitution of the Testamentary Office he proposed that there should be one chief registrar, with a salary of £2,500; three deputy registrars, with £1,500 a year each; two secretaries, at £300 a year each; ten official proctors, with salaries of £800 a year each; a record keeper, with a salary of £500; an assistant record keeper, at £200; two clerks of papers, at £300 each; a superintendent of printing, at £500; two assistants, at £200 each; a sealer, at £300; and twenty copying clerks, at £100 each. For printing, binding, and messengers, he added £12,000. Thus, the estimated total expense of the Testamentary Office would be £32,100 a year. The district registrars were fifty-two in number, and he proposed, in conformity with various reports, that they should have a salary of £500 a year each, and their clerks £100 each, with some trifling fees in addition. That would amount to £32,000, so that the first two items on the per contra side would be, say £33,000 for the Testamentary Office, and £32,000 for the district registrars and their clerks, making together £65,000. Then came the compensation to Mr. Moore, the Chief Registrar of the Prerogative Court, who was now an old man. He proposed that he should retire on the full amount of his income, which was £8,000 a year. To the Judge of the Court he proposed compensation also at the full rate—£4,000 a year. He next came to the Registrars and Deputy Registrars for the diocesan and provincial tribunals, and in considering the compensation to be given to them, he begged the particular attention of the House. With regard to many of those persons, there had been, he believed, some misgivings as to the kind of compensation to be awarded to them; and he thought that it was not, perhaps, undesirable, in discussing the 2011 subject, to point to the manner in which some of those offices had been filled up. In a pamphlet which had been lately published, and the statements contained in which he had verified, he found the following facts related with reference to the manner in which Registrars had been appointed:—One of the Joint registrars of the Episcopal Consistorial Court of Norwich is the Rev. E. Bathurst; he was appointed by the Bishop of Norwich, on the 24th of June, 1825, at the age of ten years. In the Consistorial Court of London the registrar is the Rev. R. Watson; he was appointed by the Bishop of London to that office on the 20th of July, 1796, at the age of eight years. The principal registrar and keeper of registers and scribes throughout the whole diocese of Winchester, and in the Commissary Court of Surrey, is Mr. Brownlow North; he was appointed to those offices by Brownlow North, then Bishop of Winchester, and confirmed by the Dean and Chapter of Winchester, on the 6th of December, 1817, at the age of seven (years) in reversion, and fifteen when in possession.' The register of the Consistory Court of Norwich is Mr. H. A. Bathurst; he was appointed by the Bishop of Norwich on the 24th of June, 1825, at the age of six years. The registrar of the Consistory Court of Llandaff is the Rev. R. Watson; he was appointed by the Bishop of Llandaff on the 1st of July, 1793, at the age of five years.The next was a tender suckling of three years; and, to crown the whole, in the Decanal Court of Wells the principal registrar was a lady, who had been appointed to the office when she was five years old. Those were the persons with whom they had to deal, and he proposed to give them their full emolument for the term of their natural lives. It appeared from the Returns that, deducting the salary of the Judge and Registrar, and Deputy Registrar, of the Provincial Court of Canterbury, who were otherwise provided for, the aggregate amount of the whole of the salaries of the provincial Judges, Registrars, and Deputy Registrars throughout England and Wales would be exactly £40,682 1s. 9d. But as the principle of the Bill before the House was to fill up all new offices as much as possible out of the holders of existing offices, the fifty-two Deputy Registrars would be employed, and, therefore, from that £40,682 there would have to be deducted fifty-two times £500, which would be appropriated to that purpose. Suppose, however, that they took from the existing Deputy Registrars only as much as £10,000—that would reduce the sum for compensation to Judges, Registrars, and Deputy Registrars to about £30,000. He 2012 came next to the proctors, of whom the total number in England and Wales was 149, and he was sure that he overrated the emoluments which each of those gentlemen derived from his testamentary business when he estimated them at a clear £700 a year. Erring, however, on the right side, he proposed to give as compensation to these 149 proctors an annuity for life equal to one half of that income. That, he thought, was a very liberal proposition; to the old man who wished to retire, what could be more desirable than to do so on an annuity equal to one-half his emolument? to the young man, what could be more encouraging than to receive a life annuity of one-half the profits he expected to derive from his profession? He was certain that those parties from whom the greatest opposition to Bills of this kind had proceeded could not have calculated the benefit they would derive from a provision such as the one he had described. £350 a year for 149 proctors would be £52,150, but from that sum must be deducted the annuities of the ten proctors who would be draughted into the Testamentary Office. There remained another class on whose behalf a strong appeal had been made to him—he meant the class of aged clerks—men who had grown old in service, and whose offices would now be extinguished. He considered that he should be beyond the mark if he estimated their salaries at £100, and, taking the number who would be entitled to compensation at sixty—and their title to compensation would, of course, depend upon the number of years they had been in service—that item, allowing one-half the amount of salary as compensation, would be £3,000. The sum total of the outlay of which he had now stated the different items was £160,000, and the sum total of the estimated receipts was £181,000, leaving a surplus of income over expenditure of at least £21,000—a margin quite sufficient to cover any error in calculation. The House must remember that the number of persons entitled to compensation would be gradually diminished, the surplus would gradually increase, and he calculated that in twenty years the payment of compensation would come to an end, and enable a reduction of one-half the fees to be made in favour of the persons who resorted to these Testamentary Courts. He had further to state that he proposed to make probate granted in England available in Ireland, and his right hon. and learned Friend the Attorney General for 2013 Ireland intended to introduce a Bill similar to this for Ireland, in which a provision would he inserted, making probate granted in Ireland available in England. The same provision was extended to Scotland, although the testamentary law of Scotland differed from that of England and Ireland. What he had stated to the House were the principal provisions of the measure which would be found to carry into effect the chief recommendations of the Chancery Commission, a few of which he would cite from their last Report:—That the testamentary jurisdiction of the Prerogative Courts of the Archbishops of Canterbury and York, and of all other courts ecclesiastical and manorial, or otherwise, exercising testamentary jurisdiction in England or Wales, should be abolished. That all questions of the validity of wills of real and personal estate should fall under the same jurisdiction. That such jurisdiction should be exercised by a single court. That a court should be established for the purpose of exercising jurisdiction in matters testamentary. That the Court should be a superior court of record, and that the proceedings therein should be in the name of Her Majesty. That persons interested under wills of real estate should be under the same obligation of proving such wills as now exist with respect to wills of personal estate. That the benefit which attaches to probate in the case of personal estate should be extended to devises of real estate. That after a will has been proved, the title of a devisee under it should not be open to question in other courts. That it is expedient that proceedings should be taken before the Testamentary Court for the purpose of establishing intestacy as to real estate. That such court should have power to grant certificates of intestacy, which should be conclusive in all other Courts.That the Court should have full and exclusive jurisdiction to determine all questions as to the validity of any instrument purporting to be testamentary, whether relating to real or personal estate, and whether or not made in execution of any power. That the Court should have authority, as to personal estate, to grant probates of wills and letters of administration as heretofore used in the Prerogative Court of Canterbury, but not confined as heretofore to the province of Canterbury. That the Court should have power, as to real estate, to grant probates of wills and certificates of intestacy. That probates, letters of administration, and certificates of intestacy should not be subject to be questioned or disputed in other courts. That the Court should have the power to determine any question of law, equity, or fact which may be necessary to be determined for the purpose of deciding any question of testacy or intestacy, or the right to any grant of administration, but not further or otherwise.He hoped the House would feel that the time had at last arrived for the settlement of the important question of testamentary jurisdiction. If they were of opinion that the Courts now in existence ought to be abolished, now undoubtedly was the time for their abolition. If their institutions 2014 were to be consolidated, he did not see how that object was to be attained except by the creation of a new tribunal, armed with all the powers of a Court of Law and Equity. If they desired to afford relief to the people of this country, and save them from the perplexities and uncertainty in which they now were, unquestionably the time was now arrived for establishing one Court to which all suitors might resort to ascertain and determine their rights. He had the authority of his hon. and learned Friends the Members for East Suffolk and Plymouth (Sir F. Kelly and Mr. Collier), to whom he was greatly indebted for the assistance they had afforded him in preparing this measure, for stating that, in consequence of an agreement which had been come to, they would abandon their Bills. He should propose, if the Bill were read a second time, that it should then be committed pro formâ, and then recommitted, in order to give hon. Members an opportunity of considering and expressing an opinion upon its details.
§ SIR FITZROY KELLY
said, he rose, if not to second, at least to support the Motion of his hon. and learned Friend the Solicitor General, that the Bill be read a second time. He had to express his earnest hope that this great measure of reform—so long demanded, so much required, and so often attempted, but attempted in vain—might at length be carried into effect for the benefit of the people. He deeeply regretted that owing to the circumstances under which the measure had been brought before them, his hon. and learned Friend had been precluded by the forms of the House from engrafting in his Bill the principal clauses of the Bill which he (Sir F. Kelly) had submitted to the House, so that the entire measure might have been submitted to them before the second reading. Those clauses, however, would be introduced in Committee when the united Bill, as he might term it, would be placed under their view in its entirety. He need not, he trusted, remind the House that the principal points of the Bill had been the subject of consideration by some of the ablest men; and that hitherto, though the question had been taken up by Committees and Commissions, every attempt to carry a Bill embodying their recommendations had failed. Adverting to former debates on the subject—more especially to the debates of last Session—he should endeavour to give the House a short, clear, and succinct 2015 statement of the real questions for consideration, in the hope that he should be successful in securing the consent to the second reading of the Bill of at least a large majority of those who had given their attention to the subject. They had, first, to look at the description of cases that were brought before the Ecclesiastical Courts, and to the mode of procedure therein. The first and greatest questions related to the cases in which wills were disputed. To suppose the case of a person who died, and whose will was contested either by his heir-at-law or others having interest, what means, what Court, by what form of pleading, evidence, and judicial determination, was the question to be settled to the satisfaction of the parties and the public? To illustrate the defects of the existing system, he might, perhaps, be permitted to allude to the well known case of the will of Mr. Dyce Sombre, which had been argued for ten days before the Prerogative Court. He would contrast the procedure that had taken place in that case with the course of proceeding which would take place under the Bill of his hon. and learned Friend if it became law. In the case referred to the testator died some five or six years ago, leaving a will which the executors, the East India Company, and others, claimed to prove. Its validity was denied by the next of kin of the deceased. The proceedings in the case had lasted for more than five years, and he undertook to assure the House that, if his hon. and learned Friend's Bill had been law in 1850, the case would have been determined within six months. [The ATTORNEY GENERAL: There was a Commission sent to India.] He was aware that a Commission was sent to India, but it turned out quite infructuous. [The ATTORNEY GENERAL: No, no!] Well, at all events, allowing a year for that Commission, the case had been going on for six years, and was still undecided. The cost to the different parties had not been less than £28,000, and for a tenth of that amount he believed the case might have been decided by a tribunal and form of procedure such as is now proposed to be established. Descending to details, he might state that the proceedings in the Ecclesiastical Courts were of a multiplied kind. The written matter in the case referred to occupied not less than 312 large folio pages of print, and as the evidence was given in writing, the whole proceedings, including the evidence, occupied two 2016 large folio volumes of more than 1,500 pages. Under this Bill the 312 pages would be reduced to the short and comprehensive form referred to by his hon. and learned Friend the Solicitor General, or to about half a page of writing, and the rest would never have been printed. In that item alone upwards of £2,000 expenses would have been saved if this Bill had been law at the time. They were all agreed as to the necessity of making justice cheap, speedy, and effectual. If this Bill were once the law, the proceedings in such a case as he had referred to would consist, not of 312 pages, but of a short statement to this effect:—"A. B. demand a probate as executors of X. Y. deceased, who died leaving a will appointing claimants his executors." The answer to that would be in three lines:—"C. D., next of kin to deceased, oppose the granting probate to claimants, because the deceased was of unsound mind." Now, those statements would constitute the entire pleadings. If a question of law was involved it would be decided by a court of law, but if a matter of fact was in issue, a jury would deliver their verdict. At the outside the trial would not last more than two or three days, and the matter would be decided. The great question which had been raised before the Commission was, whether in establishing a Court to decide cases of disputed wills, the pleadings and procedure of the Ecclesiastical Courts should be adopted, or the procedure of the Courts of Equity or of common law? It was upon that particular point that the merit of the Bill depended. He thought he might appeal to those hon. Members who had practised in the Ecclesiastical Courts to say whether they really thought that the system of administering justice in those Courts ought to be continued. The evidence being given in writing great expense and delay were the consequent result; but the manner of giving the evidence was even more objectionable than its expense or extent. Certain articles were put forth in which something like the case under consideration was stated on the one side and on the other, and from these articles the counsel for the parties had to form their interrogatories in writing. Supposing a will to be disputed, thirty, fifty, or perhaps 100, articles were put forth in support of the will, and forty or fifty witnesses were examined in writing on the interrogatories addressed to them. More than that, the cross-examination of the witnesses, also in writing, took place 2017 often in utter ignorance of what the evidence in chief had been. He believed that if any scheme could have been devised by the wit of man less adapted than another to the bringing forth of the whole truth of a case, it was this mode of written examination and written cross-examination. He wished, while dealing with the subject before them, to call the attention of the House to the mode of examining witnesses which existed in the Court of Chancery, as compared with that which prevailed in the Courts of Common Law. It was not his intention to deny that in the system of procedure in the Court of Chancery great improvements had of late years been effected, but those improvements did not extend to the manner in which the testimony of witnesses was procured. That testimony was generally obtained by means of affidavits, depositions, or in accordance with the system of interrogating witnesses vivâ voce before the examiner appointed for that purpose. In grave cases, however, sufficient confidence was sometimes not reposed in those officers, and in corroboration of that statement he might mention that an hon. and learned Friend of his had in one case been appointed specially to officiate as examiner, to the great expense of the parties connected with the suit. He might also observe that the examiners of the Court of Chancery had no power of deciding upon the admissibility or inadmissibility of any evidence which might be be laid before them. They simply had authority to take the evidence conditionally, the effect of which evidence was to be determined by a totally different tribunal. Well, what, he would ask, was the result which such a system produced? Why, that that test of the truth of a witness's testimony—namely, his appearance in open Court where the Judge and the jury would be enabled to form a just opinion as to his veracity—was altogether absent. He might be told, however, that the Court of Chancery—as well as the Ecclesiastical Courts—were empowered to examine witnesses vivâ voce if they deemed it proper; but what, he would ask, was the advantage of their possessing that authority if it were so rarely exercised as to have become almost a dead letter? There was, indeed, a very good reason why their power in that respect should rarely be exercised, inasmuch as the Judges who presided in those Courts were not, from their peculiar legal habits and training, generally speaking, competent to conduct 2018 the vivâ voce examination of witnesses. There were, of course, some exceptions to that rule. The present Lord Chancellor had enjoyed the advantage of presiding in a Common Law Court for a considerable period, with great success. Lord Brougham and Lord Lyndhurst were also conversant with the forms of procedure at Common Law; and before those learned Lords, while they sat upon the woolsack, vivâ voce evidence might, no doubt, most satisfactorily be dealt with. The same statement could not, however, be made with regard to those learned Judges whose experience of legal procedure had been derived exclusively from their practice in the Courts of Equity, or with respect to the counsel in those Courts, whoso legal education did not fit them for the entering satisfactorily upon the conduct of a vivâ voce examination. While upon that point, he might perhaps be permitted to say that it was most desirable that those young men who were preparing themselves for the Equity Bar should attend sessions and go circuit for some time with a view of rendering them fit to deal with the examination of witnesses according to the Common Law procedure, whenever in the course of their practice the necessity for doing so might arise. It was true, the power of adducing vivâ voce evidence was one which was but seldom exercised in the Courts of Equity, but upon those rare occasions upon which it was resorted to considerable advantages had resulted. Lord Justice Knight Bruce, who was familiar with the mode of procedure at Common Law, seemed to be fully alive to that advantage, and whenever an opportunity presented itself not only permitted, but called for, the vivâ voce testimony of the-witnesses in a suit. In one case which had been the subject of litigation for four or five years, and in which a mass of documents had been accumulated sufficient to load a cart, the question at issue had been satisfactorily disposed of in a few hours, before the Lords Justices, in consequence of their having given their assent to the production of vivâ voce evidence. It was therefore clear, that if the House were desirous of passing a Bill for the speedy and efficient despatch of public business, they must resort to the principles of Common Law procedure, with respect to the subject with which the measure before them proposed to deal. The system of procedure, as adopted in the superior Courts of Westminster, was now all but 2019 perfect; and in addition to that fact, he might urge, in favour of the view which he had just put forward, that the Commission of 1854, which had consisted of the present Master of the Rolls, Lord Justice Turner, Sir John Dodson, Dr. Lushington, the right hon. Baronet the Member for Carlisle (Sir J. Graham), and several other able and distinguished men, had unanimously given it as their opinion that the Common Law mode of procedure with respect to evidence was that which ought to be adopted in the Court of Probate. Authority and experience were therefore in favour of the principle of which he was the advocate, and if the House were to give its assent to that principle, as embodied in the Bill under discussion, it was to be hoped that the despatch of business in the new Court would be of a character at once cheap, speedy, and satisfactory to the public at large. There was another point connected with the subject before them to which he would next proceed to advert, and which related to the appointment of local Registrars, who would be empowered to administer justice upon the spot where the necessity for the exercise of their functions happened to arise. In dealing with that point, he would not attempt to deny that great advantages might very fairly be supposed to result from having one settled central Court of Probate, which would not only possess jurisdiction over the wills made in the metropolis in which it happened to be situate, but should have a general control over those which might be made throughout the entire kingdom. But while he was ready to admit that considerable advantages might accrue from the adoption of such a system, he must contend that they would be more than compensated for by the convenience, upon the score both of economy and expedition, which would be the consequence of having an experienced officer in various parts of the country, to whom application might be made for probate of a will, and to whom all the necessary information for obtaining that probate might be given vivâ voce upon the spot, thus enabling him to deal with the matter without that delay which otherwise must take place. In order to illustrate the inconvenience of the contrary system, he would put the case of a man who happened to die in Cornwall or in Durham, leaving by his will property to the amount of £1,000 or £1,500, to an executor, to be disposed of among the various members of his family. The executor must proceed 2020 to obtain probate of the will. In order to do that, he must either travel up to London at considerable expense, or entrust the matter to a solicitor, who would hard to send up his instructions to his agent in the metropolis, to be submitted to the registrar of the Metropolitan Court. Then the agent would have to transmit a reply to those instructions; objections, possibly, would be taken by the registrar to several points, which it would be necessary to have cleared up; and the result would be an accumulation of correspondence, tending to no small outlay of money and to great delay, before probate could be granted. Now, every inconvenience of that kind might be obviated, if, as the Bill provided, proper registrars were appointed throughout the various districts of the country, subject to the control and supervision of the central Court of Probate in London. Great facilities of obtaining probate would thus be afforded to the inhabitants of those districts—particularly those which were very remote—and from the benefit of such facilities, he must contend it was not just or right that they should any longer be debarred. He had received communications from proctors, solicitors, and men of business in all parts of the kingdom, requesting him to urge upon the House the appointment of local officers with power to grant probate. Next arose the question, whether the original wills were to be deposited in the registrars' offices in the various districts throughout the kingdom; or, whether they were to be placed in one central office in London? That was a question to which he was then unprepared to give any decided answer; but he might add, that the point to which it relates might be very properly dealt with in Committee, as might also the point, whether the seal by which the authenticity was to be given to the documents with which the Bill proposed to deal should be that of a district registrar, or that of the Central Metropolitan Court? An important matter, also, in connection with the subject before them, was the expediency of enabling the new Court of Probate to exercise a jurisdiction in the case of wills, disposing of real as well as of personal estate. For his own part, he had little to add to the observations of his hon. and learned Friend the Solicitor General; but he thought, the power of dealing with both descriptions of wills ought to be conferred upon that tribunal, and that under its operation the anomalies which now existed in reference 2021 to testamentary matters, and in consequence of which, a will declared in Doctors' Commons to be valid might by the verdict of a jury be pronounced invalid, should, as far as possible, be removed. He was also of opinion with his hon. and learned Friend, that it was desirable to give the new Court authority to construe wills, as well as to administer the estates, which by such instruments were created. There might, no doubt, be some objection to leave to the discretion of a single Judge the decision of the various points which might arise upon the construction of a will; but when the Bill came before the House in its amended form, it would be found that that single Judge would be enabled under its provisions to call to his assistance, in cases where any doubt presented itself to his mind as to the proper construction of the will, two Common Law or Equity Judges, by whose aid he would be enabled to arrive at a satisfactory conclusion. It should also be borne in mind, that from any decision to which the Judge of the new tribunal might come, an appeal would lie to the Lords Justices, and from them to the House of Lords, in the last resort. Now, the only important questions which remained to be considered were, whether the present body of practitioners—called proctors—were to be maintained in London under the operation of the Bill; and whether, in the event of their not being so maintained, they were to be allowed any compensation for the injury which, in point of emolument, they might be supposed to sustain? In answer to the first question, he should simply observe that, although considerable advantage might be expected to be derived from the services of men of experience and ability, such as he admitted the proctors to be, he was of opinion that a staff of officers selected from the solicitors to whom the practice of the Court would be thrown open, and placed under the immediate direction of the Court, would be found a very excellent substitute for the present practitioners. With reference to the question of compensation, which was a delicate one, he could only say that he trusted Parliament would never fail to deal in a spirit of justice and liberality with any class of Her Majesty's subjects, to whose interests its legislation might be directly prejudicial, and he felt confident that that spirit would, in regard to that class whose case was now more particularly under their notice, as far as possible 2022 obtain. Whatever amount of compensation, indeed, Parliament might bestow upon the present practitioners in the Ecclesiastical Courts, would be given without adding one shilling to the burdens of the community at large, inasmuch as day by day the taxes now imposed upon them in testamentary matters, in the shape of costs, pleas, &c., would undergo diminution, until at length, under the operation of the new tribunal, justice would be administered to them at a very moderate expense, and with the utmost despatch. In conclusion, he should merely express a hope that hon. Members generally would use their best efforts, so to improve the Bill in those particulars in which they deemed improvement might be made, as would enable them to send it up to the House of Lords in a satisfactory shape. His hon. and learned Friend, as well as himself, would be prepared to receive with all the attentions which they deserved, any suggestions which might be made to them with that view.
§ SIR JAMES GRAHAM
Sir, the hon. and learned Gentleman who has just sat down has expressed an earnest wish that we should send up to the House of Lords a Bill upon this important subject which may be satisfactory to the community. If I were to judge from the state of the House at the present moment—[there were only about thirty Members present]—I should not believe that the subject is regarded by hon. Members generally as being so important as it has, by the two hon. and learned gentlemen who have preceded me, been represented to be. Yet I am satisfied that the importance of this subject can hardly be exaggerated, and that out of doors our proceedings with respect to this measure are regarded with great anxiety. The hon. and learned Gentleman (the Solicitor General) has asked for the criticism of his learned brethren in this House upon the measure which has now been submitted to it, and I am afraid that any intrusion of mine upon the line of argument of the hon. and learned Gentleman in anticipation of the opinions to be pronounced by Gentlemen of the long robe may be considered impertinent. ["No, no!"] But having taken great interest in this subject, and having, as a Member of this House, tried my hand in vain at the improvement of this system, and having, as a member of the Chancery Commission, given to it my best attention, I may, perhaps, before other hon. and learned Gentlemen address 2023 themselves to the subject, he permitted to state the impressions which the Bill, as introduced by the hon. and learned Gentleman the Solicitor General, has left upon my mind. The subject would be a very difficult one even if it were clearly and substantially before us. Until the last eight-and-forty hours I was hardly aware that it would be pressed upon our consideration at this period of the Session. Within that time I have addressed myself to the consideration of the Bill as presented by the hon. and learned Gentleman the Solicitor General, and even upon that Bill, as it stands, it would be very difficult to form an accurate opinion. But, Sir, I have further to observe that the Bill originally presented is not the Bill we are now discussing. The measure has assumed an entirely different shape, as represented in the speech of the hon. and learned Solicitor General, and as confirmed in that of the hon. and learned Member for East Suffolk (Sir F. Kelly). The Bill, as printed, is not that the second reading of which we are called upon to support, much less is it that which we shall have to consider in Committee. On the whole, I am by no means disposed to resist the second reading of this Bill, but I must submit to my hon. and learned Friend the Solicitor General the expediency, if the House should to-night assent to the second reading of this measure, of going into Committee, pro formâ, with the least possible delay and reprinting the Bill, in order that we may see exactly the shape in which it is intended that we shall consider it in Committee. [The SOLICITOR GENERAL: To-morrow.] I may, however, perhaps, be permitted to express my opinion on certain points which arise on the consideration of the Bill as it is presented to us. Here I am met by a very great difficulty. The hon. and learned Member for East Suffolk (Sir F. Kelly) says that it is intended to give to this central Court of Probate the course of procedure of a court of common law. The Chancery Commission, of which, together with the hon. and learned Solicitor General, I was a member, made an exactly opposite recommendation. With my hon. and learned Friend and the Master of the Rolls, I differed from the Report of that Commission on the single point that it recommended that the Court of Probate should not form a portion of the Court of Chancery. The Solicitor General, the Master of the Rolls, and myself 2024 were of opinion that, to give this Court complete jurisdiction, it was absolutely necessary that it should form a part of the Court of Chancery, because, in our opinion, the same Court ought not only to give probate and administration, but also to construe wills, to divide the proceeds, and to administer justice with reference to the rights of parties. [The SOLICITOR GENERAL: That it should have power to do so.] The Master of the Rolls, the hon. and learned Solicitor General, and I were dissentients "as to so much of the Report as recommends that the testamentary jurisdiction should not be vested in the Court of Chancery, with all the powers and authorities of that tribunal, including the powers of construction and administration." As I read this Bill, it will erect by the side of the Court of Chancery a second Court of Chancery. The hon. and learned Gentleman the Solicitor General talks of the folly of co-ordinate tribunals exercising concurrent jurisdiction. That, as the Bill stands, is precisely the objection which I take to it. This Court of Probate, with power of construction and of administering estates, will perform all the most important functions of the Court of Chancery, and, at the same time, I do not see any power of ousting the jurisdiction of that Court with reference to these matters. We therefore have in this very case an instance of the folly pointed out by the hon. and learned Gentleman. If you deprive the Court of Chancery of these powers, and transfer them to this new tribunal, you take from that Court a large portion of its most important jurisdiction and its highest functions; and then the present judicial strength of the Court of Chancery will be infinitely greater than it need be. These are objections which lie upon the surface. Next I would call the attention of the House to another point, which appears to be one of very doubtful policy. At this time, when the whole question of the appellate jurisdiction of the House of Lords is about to be discussed in this House, there never was a moment less opportune for deciding what shall be the appellate jurisdiction in matters testamentary. Until we have decided the question what shall henceforth be the appellate jurisdiction of the House of Lords—and a more important constitutional and judicial question was never brought before this House, for you have that House, confitentes reos, saying that they are incompetent to exercise that 2025 jurisdiction satisfactorily to themselves—it is premature to decide that the sole appeal from the New Court of Probate shall, as the hon. and learned Solicitor General proposes, be to the House of Lords. But what is it that the hon. and learned Gentleman the Member for East Suffolk (Sir F. Kelly) proposes, and which, as I understood from the speech of the hon. and learned Solicitor General, is adopted by him? That, with a view to expedition and the saving of expense, there is to be introduced a double appeal, which I thought was, in these days, universally admitted to be a great evil. If you have a single well-constituted appellate tribunal, its great excellence will be that it is the sole tribunal of appeal. The multiplication of appeals is a source of great expense and great uncertainty. Now, Sir, I do not wish to carp at a tribunal so admirably constituted as that of the Lords Justices; but there is a vice in that tribunal. It is not a tribunal of appeal, but only a tribunal of re-hearing. Unless you change the constitution of that Court, you will, by the adoption of this proposition of the hon. and learned Member for East Suffolk, subject the decisions of this Court of Probate, which you intend to have, with the exception of an appeal to the House of Lords' final power and jurisdiction, to a re-hearing before the Lords Justices. That point, however, may be remedied in Committee, but to an unlearned person it appears to be an objection to the measure well worthy of consideration. The Bill, as it stands, provides for the transmission of all applications for probate from every part of the country to the central office in London, and for the transmission also of original documents to be sent up by the post. I should say that by that proposition the greatest possible facility was afforded to fraud. The hon. and learned Solicitor General no longer adheres to it, and I understand that district probate and district registration are to be allowed. It is very difficult to follow such important changes, resting only upon an oral statement, and at variance with the printed document; but I hope that there is to be district registration. My opinion is, that the antipathy to the local tribunals is to be traced to their ecclesiastical character, and to the fact that they are connected with church-rates, with Easter dues, and with various other subjects of controversy which vex the Churchman and infuriate the Dissenter. And I believe that the jealousy of the people of this country with reference 2026 to the transmission of all business of this description to a central office in London is so great that if you removed the evils to which I have adverted, their desire would be, that the facilities for local probate and local registration should not be destroyed. I am, therefore, glad to hear that it is intended to modify the measure in regard to this particular. Before expressing a definite opinion upon the measure, I must have an opportunity of considering it as printed with the Amendments. The hon. and learned Solicitor General has a horror of what he calls "the tyranny of parchment." I would remind him that there is another tyranny with which we are perfectly conversant—the tyranny of the press. This printing operation of his is, I must say, a most doubtful one. He is afraid of parchment—Deferar in vicum vendentem Thus et OdoresEt piper, et quidquid chartis amicitur ineptis.The objection there is taken to parchment documents, but I am very much afraid that the hon. and learned Gentleman's paper-printed wills will find their way to the village shop if transmitted to the Registrar as proposed, and that anything but safe custody will be the consequence. I know that the law is that the will is to be published; but what a publication will this be! Printed copies of the wills that have been admitted to probate are to be lodged in the Metropolitan Register Office of Births and Deaths in London, where they will be open to the inspection of any one who chooses to purchase the privilege, at the low charge of 6d. It will be like the Morning Star, which you may have on your breakfast table for 1d. I cannot but think that this Bill proposes to carry the publication of wills to an extent never before thought of, and I very much doubt whether such a proceeding be at all congenial to the feelings of the English people. Let the theory of the law be what it may, it is very certain that in practice inspection is not the rule, but the exception. The majority of men would probably object to the idea of their wills being posted up at Charing Cross, but the present Bill proposes a far more extensive publication than that. I am unwilling to dwell at too great length on the technical parts of this subject, which very possibly are beyond my sphere; but I may be permitted to remind the House, that when Chancery reform was under consideration a relaxation in the ancient system was proposed, to which I gave my 2027 assent, not without considerable mistrust and hesitation. The old rule in equity was, that you could do justice to no party unless you did justice to all parties; and that maxim gave rise to a nice question with regard to the presence of "parties." At length the relaxation to which I have adverted was introduced, and it was arranged that after a certain notice all parties interested should be held in law to be present, and that the business should be proceeded with even in the absence of some of them. I find that this principle has been imported into the present Bill by a clause, the 59th, which provides that there shall be no demurrer for want of parties, but that the suit shall proceed if the Judge think fit. I cannot help thinking that this principle requires in its application some other safeguards besides those which the clause provides, and that to adopt it without such guarantees would be very doubtful policy. Then, again, there is the question of the privileges of real representatives. The 62nd Clause enables the Court to appoint a real representative, and gives to the person so appointed the power to sell and mortgage under certain circumstances. I am distinctly of opinion that this is a provision which ought to be most strictly guarded, and that there should be a limitation as to the description of estate liable to such treatment. But I cannot find in this measure any conditions or restrictions whatsoever bearing on this important point. Nor does the Bill, as proposed by the hon. and learned Solicitor General, provide that there shall be a certificate of intestacy. [The SOLICITOR GENERAL: The Bill does contemplate such a provision.] There is, however, certainly nothing of the kind in the Bill as at present worded. There was such a provision in the Bill of the hon. and learned Member for East Suffolk, but in vain do I seek it in the measure now under consideration. Yet it is a matter of no small significance, and I allude to it the more emphatically on this occasion that the House may understand that we are not as yet in possession of all the information that we have a right to expect in discussing a measure of such great importance. Another branch of the question that deserves serious consideration is the proposal of my hon. and learned Friend the Member for Plymouth (Mr. Collier) to give a jurisdiction to the County Court Judges in cases of disputed wills. Now, that is a question of the gravest doubt. Those functionaries have undoubtedly worked a very great improvement in the administration of justice in the rural 2028 districts. They are doing more and more good every day, and they discharge their duties in a most satisfactory manner. Nevertheless, I am disposed to question the policy of allowing them to decide in the last resort contentious matters of probate and administration. [The SOLICITOR GENERAL: It is only proposed to give them jurisdiction up to a certain amount.] Well, but that does not affect the question of principle. If they be competent to decide cases of £300, I cannot see why they should not go further, and be allowed to decide on questions involving larger interests. The amount is of little consequence. The question for us to consider is, whether it be fitting that they should have any jurisdiction whatever in cases of wills. It is a matter of grave importance. It strikes me that there is not machinery in the County Courts for the exercise of any such jurisdiction. The issue Devisavit vel non may under this Bill be decided by the Judge alone, and without the intervention of a jury; yet of all issues that have ever been submitted to a Court of Justice there is none which may, with greater propriety and advantage, be left to the verdict of a jury than that which involves an inquiry into the state of a man's mind when he made his will. Yet, I repeat, I do not find in this Bill any clause to compel the Judge of the County Court to avail himself of the services of a jury in such cases. With respect to the provision which requires that all existing wills shall be transmitted to London, I think I am justified in asserting that there is the strongest local feeling against it. Access in their respective neighbourhoods to the original wills, at a moderate cost, is what the people of this country are accustomed to and what they desire, and it is a right which, unless some great counteracting advantage can be established, they will not be induced to abandon. What you want is copious facilities for the interchange of indices and copies. By that means you would attain all that you hope to effect by the proposed transmission of the wills to London. I will now take one glance at the question of compensation. It is the rock on which all reformers of the Ecclesiastical Courts have hitherto split. The hon. and learned Solicitor General admits the difficulty, but seems to imply that, at whatever cost, we must purchase success. There I differ from him. The hon. and learned Gentleman has stated that the steps taken in that matter in the years 1836 and 1847 ought to have served as a 2029 warning to all persons who had since obtained appointments in those Courts, that they were not to be entitled to compensation for their abolition. I do not contend that that rule ought to be rigorously enforced; and I agree with the hon. and learned Member for East Suffolk, that there is no greater obstruction to law reform than to let all the weight of a change fall with crushing effect on a few individuals. I have in my own person greatly sinned in the opposite direction, when, acting under the advice of my great and distinguished Friend Lord Lyndhurst, I thought it expedient to get rid of the six clerks in the Court of Chancery, by paying them what I have since felt to be an extravagant compensation. The hon. and learned Gentleman the Solicitor General says that we should purchase success at whatever cost; but he adds that there should be limits as to the classes, from which success by purchase is to be obtained. If we were to give compensation to the proctors, where are we to stop? The monopoly of the advocates is quite as close as that of the proctors; and if compensation is to be given to proctors and to advocates, as well as to the Judges and to Mr. Moore, with his £8,000 a year, I do not know what is to be the limit to the exorbitant outlay. The hon. and learned Gentleman the Solicitor General says that the cost will not fall on the public Exchequer. But I believe that fees levied from the suitors under the name of proctors' fees at a time when the proctors will no longer have any duties to discharge will form a burden all the more onerous, because it will fall on only one portion of the community. For my own part, I consider that it will be better to place that outlay on the Estimates, where it will undergo annual revision, rather than perpetuate it under the name of proctors' fees. I believe in law there can be no claim for compensation in the case. But I admit that in equity demands may there be put forward which the House should acknowledge, while at the same time moderation in those demands is indispensable. I am prepared to assent at once to the Motion for the second reading of the Bill; but hope that the House will have an opportunity of maturely considering it, and of ascertaining the opinion of their constituents with respect to its provisions, before they are asked to discuss its details, and I should recommend that for that purpose an interval of a week, at least, should be allowed to elapse between the printing 2030 of the measure and the consideration of the clauses in Committee.
§ MR. COLLIER
said, he could assure the right hon. Baronet who had just sat down that he need not have feared that his intervention in the midst of a series of legal arguments would be deemed presumptuous. Answering for himself—and, he believed he might add, for his hon. and learned Friends—he could say that nothing gave them greater satisfaction than to have the co-operation in the work of law reform of a statesman of such eminence, experience, and ability as the right hon. Baronet. It must likewise be matter of gratification to every Member of the House that they had at last approached the settlement of this long-vexed question; his learned Friends and himself whose painful duty it had hitherto been annually to declaim against the Ecclesiastical Courts might now hope that invective was about to be succeeded by action—that the Augean stable, a term for which they had been infinitely indebted to the noble Lord at the head of the Government, was at length to be cleared out, and these old, obsolete, and cumbrous Courts to be superseded by a tribunal more in harmony with the civilisation of the age. After the very able speeches which had been delivered that evening by the hon. and learned Solicitor General and the hon. and learned Member for East Suffolk (Sir F. Kelly), he would not detain the House by any lengthened observations. Being, however, called upon to relinquish a Bill of his own upon the subject, and to support one that was not properly before the House—for the hon. and learned Solicitor General had expressed his intention to make extensive changes in the measure under discussion—he wished to state explicitly, but briefly, the grounds and conditions on which he should give his adhesion to the Bill, the second reading of which they were then considering. As that measure at present stood, it would establish a Court which had been truly described by the right hon. Baronet (Sir J. Graham) as of somewhat dubious character and position, The right hon. Gentleman said, the new tribunal would stand by the side of the Court of Chancery, and certainly it would not be either exactly inside of that Court or outside of it, but rather in its vestibule—Vestibulum ante ipsum primisque in faucibus—His respect for the Court forbade his concluding the line. Without going the length 2031 of the hon. and learned Gentleman the Member for Wallingford (Mr. Malins), who believed Equity Procedure to be the perfection of human wisdom, and that if you ransacked the whole range of literature for models of conciseness, purity, and epigrammatic point, you would find nothing comparable to a bill and answer in Chancery, he freely admitted the important nature of the jurisdiction of Chancery, and the great improvements which had been recently made in its administration. He was not indisposed to admit the public advantages derived from the Courts of Equity; but still he distinctly objected to the transference of the jurisdiction of the Ecclesiastical Courts to the Court of Chancery, or to any other Court resembling in its proceedings the Court of Chancery, an objection he believed to be entertained by a great majority of that House. The main conditions on which he would support the present Bill were—first, that the new Court to be established should be essentially a Court of common law, that when any questions of fact came before it, such as the competency of the testator to make a will, alleged forgery or fraud, they should be investigated by a jury, unless trial by jury were waived by the express consent of both parties; and, next, that all those matters should be tried by vivâ voce examination, in open court, and with the ordinary procedure of nisi prius. For example, it was intolerable that a case like the celebrated one of "Hopwood v. Hopwood "—lately heard at Liverpool—should be decided on affidavits by a Vice Chancellor sitting in Equity. In his opinion there was no absolute necessity for creating a new Court to transact the description of business under consideration. He believed that the County Courts and the Courts of Common Law, with the assistance of the metropolitan and provincial registrars, could transact all the testamentary business of the country; but, not desiring to stand in the way of an undoubted improvement, he would refrain from pressing that particular portion of his opinions, and accede to the measure of his hon. and learned Friend the Solicitor General. The right hon. Baronet the Member for Carlisle questioned the expediency of conferring this jurisdiction on the County Courts; but he should have remembered that that jurisdiction was to be limited to cases in which the value of the property was under £300. Where the estate was so extremely small it could not be worth while to contest the will in a 2032 higher tribunal; and, therefore, to preclude the parties from taking the case into a County Court would be tantamount to a total denial of justice. The practical effect of the working of the present system was this, that where an estate was small the will was not disputed, or, if disputed, the lawyer swallowed up the whole property. He preferred what might be called a rough and ready kind of justice, administered by the County Courts, to no justice at all. With respect to the local jurisdiction, it stood thus: According to the Bill, every probate was to be granted by the Central Court; but there was provision that where the property was small, and the will disputed, the dispute should be sent to be tried in the County Court. In the Bill of the hon. and learned Member for East Suffolk it was proposed to provide for the local administration of the law in undisputed as well as disputed cases (a most desirable provision), accordingly district courts were established for the transaction of common form business; but the districts were not the County Court, but the Diocesan districts. The County Courts, however, were to try the disputed cases. If that provision were incorporated in the Bill, there would be a County Court jurisdiction for contested cases, and another distinct jurisdiction for uncontested cases of small amount. It would be manifestly inconvenient to have two sets of districts, and his proposition was to adopt the County Court districts for administering the law in uncontested as well as in contested cases where the amount was small. He was rather surprised to hear the hon. and learned Member for East Suffolk treat the monopoly of the proctors as an open question, because it had been decided by the House and by the country to be utterly unendurable. Such an exclusive body as that of proctors was an invention of this country. It did not exist in Scotland, in America, in India, or in any other country, and he felt assured that no difficulty would be found in proving wills by ordinary practitioners without the assistance of proctors. No doubt the compensation to the proctors would be liberal, but he must respectfully dissent from an assertion of his hon. and learned Friend (the Solicitor General) with regard to certain Bills passed in the reign of William IV., declaring that the holders of certain offices, when those offices were abolished, would not be entitled to compensation. The hon. and learned Solicitor General said, that because Parliament had 2033 not acted upon those statutes the statutes must be considered obsolete.
THE SOLICITOR GENERAL
said, it was a recommendation of the Chancery Commissioners, of which the right hon. Baronet the Member for Carlisle was a Member, that the proctors should be compensated.
§ MR. COLLIER
said, as far as he understood his hon. and learned Friend (the Solicitor General) he acquiesced in the compensation provisions with considerable reluctance, and he quite sympathised in the absence of cordiality which he had observed in his hon. and learned Friend. But the Solicitor General urged that, as the statutes of William IV. had not been acted upon, it would be dealing harshly with the proctors now to enforce them. But why had the statutes not been acted upon? Mainly because of the pertinacious opposition which those very persons had, for twenty years, offered to every attempt at reform. He objected to their availing themselves of their own wrong, and he maintained that Parliament had the right to refuse compensation without being guilty of any breach of faith. Compensation was not a question of justice, but of expediency. The true ground upon which it rested was, how much was it necessary to give to buy off opposition to the Bill. He concurred with the right hon. Baronet (Sir J. Graham) that the Bill would be much better without the clause giving appeal to the Lords Justices. If the Bill were amended as he had suggested, he should give it not only his assent, but his cordial support. He trusted Her Majesty's Government would make up for long delay by energetic action, and he was sure that if the noble Lord at the head of the Government succeeded in removing the foulest blot upon the administration of justice in this country, a task which had baffled a whole generation of law reformers, he would attain a triumph inferior to none which he had yet achieved.
§ MR. MALINS
said, he fully believed that it was impossible to exaggerate the importance of the subject under discussion. They had a system which had existed in this country for six centuries—perfectly established, perfectly well-known, in which, undoubtedly, some abuses prevailed which it was desirable to correct. [Laughter.] He for one had never denied the existence of abuses; but the question was, whether, to correct those abuses, 2034 they ought totally to abolish the system? The hon. and learned Member for East Suffolk (Sir F. Kelly) and the hon. and learned Solicitor General regarded the question as turning very much upon the contentious jurisdiction of the Ecclesiastical Courts. In the course of a year there were not less, upon an average, than 25,000 probates of wills and grants of administration in this country, and out of those 25,000 the number of contested cases did not amount to 100. If, therefore, the necessity of abolishing the Ecclesiastical Courts depended on the want of proper jurisdiction in contested cases it would be a matter rather for amending than for abolishing, and he considered that the evil might be cured by a simple enactment. The case of "Dyce Sombre" had been alluded to as one which exemplified the evils of the present system; but the House would remember that if a question arose respecting real estate, the Court of Chancery sent the issue raised of testacy or intestacy to a jury. In the case of "Hopwood v. Hopwood," the question was one of mental capacity. In the one case they went to a jury, and in the other to the Ecclesiastical Court, and, by appeal, to the Privy Council. It was very true that the case had been litigated for five years; but could anything be more simple than to follow the recommendation of the Ecclesiastical Commissioners, that questions as to the validity of a will with regard to personal estate should be referred to a jury, as was done with respect to real property? And if questions of the validity of a will on account of alleged incapacity were also referred to a Court of Law, in his opinion an entire remedy would be afforded. The hon. and learned Gentleman the Solicitor General said the present state of things could go on no longer, and there must be a new jurisdiction; but if written evidence were got rid of, there would be an end of the evil complained of. That disposed of the whole contentious jurisdiction. It was in consequence of the odium which had been cast upon the Ecclesiastical Courts in respect of other matters that the present question had arisen. The Bill of the hon. and learned Gentleman was greatly moderated from its predecessors; but, nevertheless, the House and the country had a right to complain of the conduct of Her Majesty's Government with respect to this subject. The Bill was a measure which required the most careful consideration, affecting, as it did, a great body of persons and so many interests. 2035 Yet it had been before the House since March, and the second reading was only sought on the 26th of June; and even then the Bill itself was not before the House, which was invited, upon a verbal statement of the hon. and learned Gentleman, to decide upon the measure which was proposed to be passed hereafter. The right hon. Baronet the Member for Carlisle (Sir J. Graham) had very properly said, that the hon. and learned Gentleman, the Solicitor General, was bound to have the Bill printed at the earliest possible moment, in order that the country might have time to consider it; but the period suggested by the right hon. Baronet—a week—was for too short. Here was a Bill affecting local districts, local Judges and very great interests, and after no less than four propositions to meet the case, upon the 26th of June a fifth system was started, but not placed actually before the House, to which Parliament, whose sittings were not expected to be prolonged much more than a month longer, was called upon to decide. The hon. and learned Gentleman, perhaps, was not to blame for the delay which arose from the force of circumstances, but the lateness of the Session constituted a good ground why the Government should pause before pressing the present measure. It would, in his opinion, have been far better to have postponed the Bills till next Session and then to have referred them to a Select Committee in order that a fully-considered decision might be arrived at. There were some portions also of the Bill of the hon. and learned Solicitor General to which he must dissent. The right hon. Member for Carlisle (Sir J. Graham) had pointed out, with great force, the objections to making the Court of Probate a minor Court of Chancery. The hon. and learned Gentleman the Solicitor General had dwelt with great earnestness, and he thought some exaggeration, upon the circumstance that the Ecclesiastical Court of York might decide that a man died intestate, and a Court of Law might decide quite differently. Such a thing might occasionally occur, but it would not happen, he thought, more than once in the experience of any lawyer. It certainly had not in his own. But were not such cases anomalies which it would be easy to remedy? There had been great abuses in the Court of Chancery, and there had been no difficulty in applying a remedy. The same thing had occurred in the Common Law Courts, which the hon. and learned Member for 2036 East Suffolk (Sir F. Kelly) thought were now near perfection. If there were those imperfections which the hon. and learned Gentleman the Solicitor General imputed to the Ecclesiastical Courts, would not the remedy suggested by the Chancery Commissioners for obtaining an uniform mode of deciding upon intestacy prove a sufficient remedy? The hon. and learned Members for East Suffolk and Plymouth believed they had made a convert of the hon. and learned Solicitor General to the system of Common Law; and he now proposed to have a Judge of a Court of Probate to decide upon the validity of wills, with power to summon a jury and direct them as a Judge sitting at Nisi Prius. But what difficulty was there in deciding upon questions of real estate at present? Instead of setting up a new Court, it was done by referring a simple issue to be tried before a competent and experienced Judge. But it was proposed by the hon. and learned Solicitor General to establish a new Court, and to give the Judge of that Court, inexperienced in such matters, the power of summoning a jury to try the question, instead of submitting it to a Judge who was in the daily habit of dealing with such matters. The hon. and learned Gentleman seemed to think that a Court having the power of administration should have the fullest powers of administering justice, but he (Mr. Malins) thought that part of the case had been strangely exaggerated. The hon. and learned Gentleman said that the Court which decided upon the factum of the will should also construe it. The right hon. Baronet (Sir J. Graham) had shown that if that plan were carried out it would take away the most important jurisdiction from the Court of Chancery, and transfer it to what might be called a small Court of Chancery. There was no necessity, in his opinion, for such a change, for there were no arrears of business in the Court of Chancery; there were now no complaints of want of despatch. The hon. and learned Solicitor General had said the factum and the construction of wills were mixed up together, but he (Mr. Malins) said there was no necessary connection between them. The question of construction and administration did not occur at the same time once in 500 times, and why should it be necessary to apply some thirty years afterwards to the Court which had sanctioned the will to give a construction of its intentions? He protested against the principle that while there was a Court of Chancery presided 2037 over by gentlemen perfectly competent to discharge this business, there being in it, as he had just stated, no arrears, or prospect of arrears, a second minor Court of Chancery should be set up to do that which could be done equally well by the existing tribunal. When the House went into Committee he should therefore feel it his duty to object to that part of the proposal made by his hon. and learned Friend. He would now come to the subject of local jurisdiction. He was glad to hear the right hon. Baronet (Sir J. Graham) express himself so strongly upon that point, and he very much rejoiced that the hon. and learned Solicitor General had given way. While, however, he thought it of the highest importance that justice should be brought home to every man's door in regard to wills, he could not agree with his hon. and learned Friend that the County Courts would be the proper places in which to decide those questions. The Judges of those Courts were generally gentlemen who had practised at the common law bar, and were hardly qualified by their previous experience to deal with cases of this kind, which often involved questions of very great delicacy and difficulty. Even if the Judges were qualified, however, the rules and regulations of the Courts themselves rendered them unfit places in which to deal with such business. The Judge of a County Court scarcely ever gave more than one sitting at a time to one town, and as the business was generally of a very easy character—such as the ordinary one of debtor and creditors—he was enabled to get through it at this one sitting without much difficulty; but if you threw upon these Courts intricate questions, like those relating to testacy or intestacy, he believed they would entirely break down. Ho therefore hoped his hon. and learned Friend would not persevere with that part of his project. All these points, however, must be carefully discussed in Committee; indeed, they would require so much attention that he felt satisfied justice could not be done to the subject in the course of the present Session; and, if he thought it would be of any use, he would appeal to the hon. and learned Solicitor General, and to the noble Lord at the head of the Government, whether, considering the period of the Session and the imperfect state of the measure now before the House, it was right to persevere in the attempts to carry the Bill into law during the present Session. He was satisfied the attempt would not be successful unless there were 2038 the greatest forbearance on the part of hon. Members generally; and, though he was prepared to exercise forbearance, he could not carry it to such an extent as to forego his right of discussing in detail every part of the Bill. He therefore warned his hon. and learned Friend of the great danger which existed that the measure would not be carried through in the present Session. He was exceedingly sorry to hear the tone in which the right hon. Baronet (Sir J. Graham) and his hon. and learned Friend the Member for Plymouth (Mr. Collier) had spoken of the rights of those to whom the hon. and learned Gentleman the Solicitor General conceded compensation. From the information which the hon. and learned Solicitor General had collected, it seemed that the average incomes of the proctors of Doctors' Commons were £700 a year, and the compensation proposed was to the extent of one-half their incomes. He should certainly support that proposition, and his only regret was that the hon. and learned Gentleman did not go further. Many of the proctors were gentlemen advanced in life; they had entered the profession under the idea, in which they were certainly warranted, that a system which had existed for six centuries would last beyond their time; some had articled their sons to the same profession; they had families to support; and on a sudden they found themselves, by a Legislative enactment, totally deprived of their occupations and of half their incomes, though all the claims upon them remained as before. The right hon. Baronet (Sir J. Graham) thought the proposed compensation was too much, and the hon. and learned Gentleman (Mr. Collier) almost ridiculed the idea of proctors being entitled to any compensation whatever. He (Mr. Malins) trusted, however, that the good feeling of the House would lead them to decide, that where it was necessary to pass a measure which deprived individuals of the means of livelihood, the public, who were to derive all the advantages from the proposed change, should make such compensation as the justice of the case required. The Commission which had been appointed to inquire into the subject had reported that it was expedient that the exclusive privileges enjoyed by proctors should be continued as regarded "common form" business. Now, "common form" business formed about ninety-eight per cent of the whole of the business conducted in those Courts. The hon. and 2039 learned Member for Plymouth ridiculed the existence of peculiar privileges, but the very profession to which he belonged was a privileged class, and, for his own part, he (Mr. Malins) had no hesitation in saying that the existence of the Bar of England as a privileged class was one of its greatest distinctions. The principle of privileged classes, too, was carried out in every branch of life, and it would be a most serious question to consider in Committee whether it would be advisable to put an end to a privilege which the Commissioners had reported to be advantageous to the public. It would then be for the House to decide whether it would agree to the payment of £50,000 a year for the abolition of what had been reported by the Commission to be for the public good, and upon that point he should certainly take the sense of the Committee. He would not oppose the second reading of the Bill; but at the same time he reserved to himself full liberty to object in Committee to the details of the measure.
§ MR. J. G. PHILLIMORE
said, that the hon. and learned Gentleman who had last addressed them, and the right hon. Baronet the Member for Carlisle, appeared to forget the persons by whom the jurisdiction of those Courts was exercised. It was exercised not unfrequently by clergymen appointed by the bishop of the diocese—such had lately been the case in the diocese of Chester—and there could be no doubt that a County Court Judge, who was either a Common Law lawyer, or a barrister at the Equity bar, would be much better fitted to exercise the jurisdiction of those Courts than a clergyman, who ought to be supposed not to have given much attention to the study of the law. He did not, he confessed, consider the Bill perfect, but still it went some way towards remedying a great grievance. According to the present Bill, a cause could not be tried in two different Courts, whereas in a cause which he recollected, the Judge of the Ecclesiastical Court was bound to suspend his judgment till the Court of Chancery had given its opinion, and it was quite open to the Ecclesiastical Court to give a judgment quite opposed to that of the Court of Chancery. His hon. and learned Friend (Mr. Malins) had stated that these Courts had existed for 600 years; but how did the jurisdiction of these Courts spring up? Why, they arose in the dark ages, out of the superstition of the laity, and the insolence of the ecclesiastics.
§ MR. J. G. PHILLIMORE
Godolphin, in the time of Charles II., had said that no one was so well qualified to dispose of men's property after their death as those who had had the cure of their souls during their lives. The advantage of the Bill, however, was, that it was neither a jest nor a mockery, but a fair and satisfactory method of settling a long agitated question.
§ SIR ERSKINE PERRY
said, he thought that if the County Courts were not fit to exercise this jurisdiction, it would be difficult to know to what tribunal reference could be had in country districts. He wished to bear his testimony to the facility with which this jurisdiction was exercised. The number of intestate cases was extremely small, and returns proved that out of 25,000 cases of wills not more than 100 had been contested. The Court over which he presided in India had this sort of jurisdiction; they took vivâ voce testimony, and it was found that in ordinary cases the Court could dispose of the cases with the greatest facility in a few minutes. The hon. and learned Solicitor General would find, however, that unless he attached his Registrars to the County Courts, the public would grievously complain of his Bill. The business of the Registrar was to be non-contentious, but questions would arise, and if references had to be made to the Registrar in London, great delay and expense would necessarily and as a matter of course accrue. The Bill gave an appeal to the House of Lords from the Court about to be formed, but the Judicial Committee of the Privy Council exercised the duty of deciding upon appeals of this kind with so much satisfaction to the public that it would be a deleterious change to transfer the appeal to a tribunal which, as the right hon. Gentleman (Sir J. Graham) had pointed out, had condemned itself.
§ MR. ROBERT PHILLIMORE
said, he, for one, had never defended the ecclesiastical jurisdiction over the temporal matters decided in the Ecclesiastical Courts, and he believed it to be most expedient for the country and for the Church that those jurisdictions should be severed. He contended, however, that the County Courts were a bad jurisdiction to which to transfer testamentary matters. He believed that it would be perfectly possible to make use of the existing machinery of the existing Courts, and to secularise that machinery. He could confirm the satisfaction given to the Bar and to suitors 2041 by the decisions of the Judicial Committee of the Privy Council, and he trusted that the appeal would not be removed to a Court of Appellate Jurisdiction which was now in a state of transition, and must be reformed before it could obtain the confidence of the country. He should not object to the second reading of the Bill, but he should reserve his opinion of the details of the measure until the House should have an opportunity of seeing it in its amended form.
§ MR. BOWYER
said, he was not prepared to vote against the second reading, but before the Bill became law, it would be absolutely necessary for the House to consider two fundamental principles. Why should there be a peculiar court having to deal with one class of instruments, and why should they not deal with wills as with other instruments? He saw no reason why the same law should not prevail in England as in other countries. If a man left him £100,000 in land he required no probate, and could take possession of the estate; but if that same man left him £5 he was obliged to get a probate, and he could not get it without employing a proctor and an attorney, with all the attendant expenses. Let there be a registry of wills; but was a probate necessary at all? The hon. and learned Member for Wallingford (Mr. Malins) said, that in the greater number of cases—98 per cent—the probate was uncontested. Why, then, should those wills be brought before any court at all, any more than an uncontested deed? He knew a case where a testator made a will appointing one executor, but in the body of the will he spoke of "executors." The will was not contested, and yet the will had to be sent to London; the proctor and registrar had doubts in consequence of the use of the word "executors," and the family were put to an expense of £40 or £50, and a delay of two or three months, although there was no doubt whatever that the will was perfectly valid.
§ MR. WATSON
said, it was not his intention to say that the Bill before the House was perfect; still, he regarded it as a step in the right direction, and he should, therefore, support it. He hoped that the Government were determined to abolish for ever the Ecclesiastical Courts, and thus to get rid of all that trumpery and rubbish of probates here and judicial Committees there, Peculiars here, and Peculiars there, which were a disgrace to the country. He was persuaded that by 2042 so doing they would confer a public boon which would elicit the gratitude of all classes.
THE SOLICITOR GENERAL
said, the Bill would be committed pro formâ to-morrow, for the purpose not of introducing new matter, but of incorporating certain clauses which he had already referred to as proposed by the hon. and learned Member for East Suffolk. He proposed to go into Committee on the Bill for discussion on Thursday.
§ Bill read 2o.