HC Deb 26 June 1857 vol 146 cc451-95

Order for Second Reading read.


in moving the second reading of this Bill, said, it would be altogether superfluous for him to dilate on the evils and grievances attending the continuance of the present system of obtaining probates of wills and letters of administration, in the Ecclesiastical Courts. Those evils had been so long admitted, had been the subject of so man; Reports of Committees of that House and of the other House of Parliament, and had formed matter of inquiry and recommendation for so many Commissions, that he might well assume that there would be found no difference of opinion with respect to them. In fact, for nearly thirty year different Governments had attempted to accomplish the change now proposed, and unquestionably these Courts would have long since succumbed to the attacks made on them if their assailants had not been divided in opinion as to the edifice to be erected in the place of that which all were unanimously agreed to pull down. He should, however, in a few observations call the attention of the House to the state of the existing law in order that the House might be enabled to judge how far the provisions of the Bill, which he was presently about to state, met the necessities of the case and were calculated to remove the evils complained of. The House was aware that anterior to the Statute of Wills of 1837, a remarkable difference existed between wills relating to personal estates and wills relating to landed property. Under the old law, a will of personal estate needed no attestation, and a most informal document might be admitted to probate, while a will conveying real estate required to be attested by three witnesses and executed with peculiar solemnity. In 1837 an Act was passed taking away altogether that distinction, and requiring that all wills, whether relating to personal estate or to real estate, should be executed and attested in one and the same manner and with the same solemnity. It might naturally have been expected that the Ecclesiastical Courts, the jurisdiction of which the House was aware was confined entirely to wills of personal estate, would have been abolished, and their instruments, the effect and character of which was to be determined by one fixed law, should have been made subject to the view and impress, as to their authenticity, of the ordinary tribunals of the country. That being the state of the law, the anomalies which had previously existed became more glaring and more mischievous, namely, that whilst they had one single form in which the will must be affirmed, there were nevertheless, two tribunals to which it must be submitted, first with regard to its validity so far as related to personal estate, to the Ecclesiastical Courts; and then to the ordinary tribunals of the country so far as it related to real estate. If there were both real and personal estate, and there were any contest relative to the sanity of the testator or to the execution of the instrument, that subject could not be determined by one single tribunal once for all, but the parties were compelled to take the matter to two different courts having different forms of procedure, and which might arrive at different and opposite conclusions. And this was not a mere hypothetical case, because such cases did occur. Only in the last year they had witnessed one of the most glaring examples of this. A testator in Ireland was pronounced by the Ecclesiastical Courts of that country sane as to his personal estates, but in the courts of common law, in reference to the real estate, he was pronounced insane. And again, in England, he was found to be sane as to his real estate, while there had been no probate as to his personal estate in England. Could anything be more monstrous? And yet such cases occurred perpetually in the present state of the law; and not only was there this difference of opinion between the Ecclesiastical tribunal and the ordinary tribunal, but the same conflict and variety of decision might arise between the ordinary tribunals of the land as to real estate. For instance, if a man died, having land in Surrey, a jury in Surrey might find him insane, but if he had also land in Middlesex, a jury in Middlesex might find him sane. The first conclusion, therefore, this state of the law seemed to point to was the expediency of appointing a tribunal competent to decide once for all on the validity and invalidity of wills, whether relating to real or personal estate, or to both. The next thing to be considered with respect to the Ecclesiastical tribunals was that their mode of arriving at a decision was different from the form of the ordinary tribunals of the land. He believed that all hon. Gentlemen who had attended to the subject would admit that matters relating to the sanity of a testator could not be tried in a satisfactory manner except before a jury, for there was no other mode by which the evidence could be so well tested or examined. The proceedings of the Ecclesiastical Courts, however, were formed on the model of the civil law procedure, and constituted a very cumbrous mode of dealing with the question, and the conclusion was arrived at quite in a different manner from that in which a jury in a common law tribunal came to a decision. It was undoubtedly a great desideratum that the Probate Court should have one uniform and simple mode of trying disputed facts through the medium of a jury, unless all parties were desirous of submitting the case, when there was no necessity for the sifting of evidence, to the determination of the Judge. These were the two conditions necessary to be observed in order to make the proposed change of jurisdiction conducive to the three great requisites—uniformity, simplicity, and economy, and he should now proceed to state to the House how he proposed to effect them. The Bill proposed to abolish at once all the existing Ecclesiastical and peculiar courts in which wills were at present adjudicated on. The House was probably aware that their name was legion. There were some 400 of these courts, which existed in every corner of the country, and they were so many pitfalls into which the unwary suitor was entrapped, and in which he was entangled. Their existence, indeed, was of no manner of use except to produce the most admired confusion, embarrassment, and disorder, which so often prevailed in our system in consequence of the extreme tenacity with which we clung to old institutions long after they had ceased to be of the slightest practical benefit. Under this Bill, however, they would be entirely swept away, and a single Court of Probate would be established in their place. In the ordinary process of proving a will in common form—or, to simplify the matter, he would say of authenticating a will—it was necessary to have the assistance of a court in consequence of the great number of minute and technical forms, the observance of which was required by the statute of wills. The new Court of Probate would be the tribunal where wills would in future be proved in common form, or authenticated, subject to rules of procedure much more simple, and he hoped, also, much more economical, than those which were now in force. The Court of Probate, possessing this universal jurisdiction, would of course be located in the metropolis, but for the convenience of the country at large districts would be formed, and local registries would be established, to which the executors of deceased persons who had a fixed abode within any district, and whose personal property did not exceed the value of £1,500 might resort, if they chose, in order to prove wills, without applying to the principal or metropolitan registrar. The limit of £1,500 had been fixed, because, although the concession must unquestionably be a great advantage to persons living in the country, upon whom a heavy burden might be imposed if they were required to come to the metropolis to obtain probate, it was thought that wills relating to a larger amount of personal property and to real estate could not be examined in the local districts with the same amount of care and experience which would be applied to them in the metropolitan registry. In order to show the danger of extending the jurisdiction of the district, registraras, he would suppose the case of a will admitted to probate with a want of some proper solemnity, and which might ultimately turn out to be a will which ought not to have been admitted to probate at all. The executor under such a will might go to the Bank of England, to a railway company, or to any public company issuing stock, and obtain a transfer of the testator's stock, and convert it to his own use. If the will under which these proceedings took place proved to be informal, and another will was subsequently admitted to probate in favour of different parties, the Bank of England or the companies would be compelled to make good the property they had parted with upon the faith of the antecedent informal, or improperly proved instrument. It had, therefore, been deemed desirable, in conformity with the recommendations of the Commission, while giving the country the benefit of local registrars, to limit their jurisdiction to the sum of £1,500, and to insist on all the more important cases being taken to London where, of course, greater care and accuracy could be ensured. The establishment of local registries would also have the advantage of enabling original wills to be retained in the districts in which the testators had resided. Persons in a humble position of life residing in the country were frequently anxious to have the opportunity of examining the wills of their relatives, and satisfying themselves by personal inspection that such wills were the genuine acts of the testators; and under this Bill the district registrars would be enabled to grant probate of wills to the limited amount he had mentioned, and to retain the original wills in their custody, transmitting copies for registration in the metropolitan court. The form of proving the will, therefore, might take place at the option of the parties either at the principal registry in London, or, if the amount did not exceed £1,500, at the local registry. There was, however, another form of proving wills, which was not so simple as that which he had already described, but which provided a more solid and formal means of ascertaining the validity of such instruments. He alluded to what was technically called, in the Ecclesiastical Courts, the proving of a will in solemn form—a process which was resorted to when, although there might not be any immediate question as to the validity of the instrument, the parties interested were anxious that testimony to its due execution and to the sanity of the testator should be recorded and preserved. In cases, also, where it was probable that doubts might subsequently be raised as to the validity of a will, it was desirable to obtain a formal examination and proof of the instrument. The Bill provided a mode by which this object might be attained in a manner which would render the will conclusive in point of validity, both in the case of personal and real estate. It would be merely necessary that a person desiring to prove a will should bring it before the court with a simple allegation that it was the will of a testator of sound and disposing mind, and that it had been duly executed in conformity with the law. The heir at law, next of kin, and every other person interested in contesting the instrument, would be cited to come into court to see and hear the will finally concluded and established. The witnesses to the document, and any others whose evidence might be deemed requisite, would then be examined before the Judge of the court, and, when this testimony had been taken, the sentence would conclude and settle the validity of the will. Hon. Members would see that this enactment would be most beneficial in its operation, for under the existing system wills relating to real estate might be contested at a distant period. Suppose a man made a will in the present month of June by which he devised his real estate to his son for his life with remainder to his children. Supposing that in the month of August he made a second will by which he made a different disposition of his property. Suppose, too, that the son took the property under the later will, and that thirty or forty years afterwards he (the son) also died. In a case like this his eldest son might raise a question as to the validity of the second will, and claim the property under the will of June. The result was, that in the present state of the law no certain title could be given to real property in a great variety of cases where a will formed one of the links of the claim. Well, that would be altered by the institution of the tribunal which would be set up by the Bill, for that tribunal would proceed at once to try the validity of the will; and having decided that, it would thus finally conclude all question on that score. The next species of business with which the court would have to deal was what was called the contentious business, which would comprise the suits instituted by parties hostile to any particular will. With respect to this jurisdiction, he must warn the House not to derive their opinion from the clause in the Bill which made the procedure of the Ecclesiastical Courts the form of procedure under the Bill, for it was necessary to commence with some foundation until new forms were arranged and new orders could be suggested for the subsequent practice of the court. He had, however, the authority of the Lord Chancellor for stating, that should the Bill pass in its present form orders would be shortly framed for the purpose of bringing the procedure and practice of the court into the simplest possible form, and for assimilating them to the mode adopted at common law. The procedure would be of the simplest possible kind. There would be an allegation of ten words by the plaintiff, which would be met by a, response of about half-a-dozen more on the part of the defendant; the whole process would be referred to, and conducted by, a Court of Common Law, and the verdict, if not set aside by an order for a new trial, would be embodied in the order of the court, and be final with the parties. With regard to the constitution of the court, the present Judge of the Prerogative Court might, if he pleased, become the Judge of the new court in the first instance, but it was not proposed that the new tribunal should derive its occupations and functions from the testamentary business alone. It was proposed by the Bill that, as soon as ever the office of Judge of the Court of Admiralty became vacant, the Court of Admiralty should be united to the new Court of Probate, so that one Judge would preside over both tribunals, and the two existing tribunals be consolidated into one; and he trusted, in a future measure, to have the opportunity of asking the House to render the procedure in the Court of Admiralty much more simple, general, and useful than it now was, so that the one tribunal to be constructed out of the two existing tribunals should answer the purposes of both, in a manner the most beneficial to the public. But the functions of the Judge of the new court would not stop there. The House would probably, before long, have their attention directed to the Marriage and Divorce Bill, which, as well as this, had originated in the other House of Parliament; and, in the event of that Bill passing into a law, it was provided by it, as it now stood, that the Judge of the Court of Probate should be one of the Judges in marriage and divorce cases. Accordingly, the new Judge of the court about to be established would have a long range of duties to discharge, and his time and attention would be fully occupied by those several departments. This, therefore, was the mode in which, according to the Bill under consideration, the jurisdiction would be established, and those would be the opportunities henceforth afforded for proving wills. But the jurisdiction of the court would not stop there. One of the great inconveniences felt under the existing system was, the want of a tribunal charged with the duty of preserving the property of a deceased person during the litigation about the validity of his will, or the rights of the representatives. It must have occurred to many hon. Members, that if there was a dispute touching the sanity of a man of wealth dying, and leaving a will which was likely to be contested, in the present state of the law there could be no representation while that dispute lasted. The consequence was, that his real estate was neglected, and his personal estate was not collected or properly administered. The present Bill armed the new court to be established with power to appoint, ad interim, a manager of the deceased's personal estate, and, ad interim, a receiver of his real estate, so that care would be taken of both while the litigation was pending. Those were the principal functions which the court would have to discharge. Its daily and ordinary functions would chiefly have reference to questions that might arise on the proving of wills in common form. With regard to the officers of the court, it was proposed, so far as it was possible, to transplant the officers of the existing tribunals to the new tribunals. As far as it was possible, the officers of the Prerogative Court would become the officers of the new court, and the diocesan registrars would also be transferred to the district registries, so far as that could by possibility be done. The officers to be added to the court would be exceedingly few in number—not more than four—and that addition would not involve any great expense. There were many other provisions in the Bill with regard to other subjects, to which he thought it desirable to call the attention of the House. He would particularly beg to refer to the relations which it would be necessary to establish between the metropolitan registry and the district registries. Those would require a good deal of attention, and would, probably, give rise to some discussion when the Bill was in Committee. One question might be, whether it was desirable that papers should be taken from the district registries to the principal registry, to have the approbation of the principal office in London before they were finally admitted to probate. No doubt that would interpose delay, and occasion some additional expense, and therefore that course had not been thought advisable. The House would also have its attention directed to the question of caveats as between the registries in the country and the metropolis, with the view to the prevention of error, and he meant to propose a clause which he hoped would tend to remove all difficulty in matters of that kind. In addition to the provisions he had stated, one great improvement was proposed to be effected, by all the existing wills being collected from all the various depositories throughout the country in which they now were, and brought to one great principal place of registry. To that great place of principal registry copies of all wills proved in the country, but not proved in London, would also be brought; and the Bill proposed to make arrangements which ultimately, after a few years, would lay the foundation for access to improved information with regard to matters of title throughout the country, including, among other things, a system of indices which would be compiled, and copies sent to every district registry, and also to the principal cities of Edinburgh and Dublin. By this means great facilities would be given for obtaining knowledge of facts which at present could only be arrived at by a tedious and protracted search. Another advantage which would be accomplished was, that of creating a place of deposit for wills when made, in which a person about to travel abroad might lodge his will, and to which members of his family might have access at his death. There were many other provisions for the purpose of removing existing difficulties and of introducing improvements into the present practice with which he would not trouble the House; but he might state that there was hardly an inconvenience suggested in the Reports of the different Commission on the subject Which the Bill did not aim at meeting, and, if possible, removing. That being the state of the case with regard to the court, he should next call attention to the case of the various officers in the present courts throughout the country, whose courts would be abolished by the operation of the present Bill if it passed into a law. This was a part of the case which he approached with pain and reluctance, since it was impossible to doubt that in some quarters the expectations of suffering and loss were very great. But, first of all, the House of Commons, in dealing with a subject of this nature, were bound to look at what former Parliaments had placed upon record for their guidance. These enactments would establish the conclusion which he had before stated, that the Ecclesiastical Courts had been long ago condemned by Parliament as institutions that ought to be abolished. So long ago as 6 & 7 Will. IV. a statute was passed in consequence of the changes made by the Ecclesiastical Commissioners, which contained an express enactment, that from and after the passing of the Act no officer appointed to any office in any diocesan court, in any peculiar court, or in any ecclesiastical court, except the Judge and Registrar of the Metropolitan Court of Canterbury, should be entitled to any compensation if his office were abolished. That Act was passed in 1836, and twenty-one years' warning had therefore been given to the holders of these offices. Nor had the Act been permitted to remain a dead letter, for during the interval repeated attempts had been made to accomplish the destruction of these tribunals. The right hon. Gentleman the Member for Carlisle, than whom no one had more distinguished himself in his endeavours to reform these tribunals—no one had more distinguished himself by his zeal to accomplish the overthrow of these mischievous tribunals—was in office when this particular statute passed, and it was repeated by 10 & 11 of Her present Majesty, by which it was most positively enacted that no officer of these courts should be entitled to compensation if his office were abolished. That enactment affected the Judges, the deputy Judges, and the Registrars of the country courts, and also of the Prerogative Court of York. He admitted that it did not comprehend the proctors and all the other officers of the court. He did not now bring forward a Bill to repeal or fly in the face of these Acts of Parliament, and he proposed that all those officers who held their offices anterior to the passing of the Act 6 & 7 Will. IV. should receive full compensation. As to all those who had received their offices since the passing of that Act, one could not bear to turn them adrift without compensation, and he therefore proposed that they should be regarded as holding their offices during pleasure, and should receive compensation as on that principle. Thus, the one class of occupants would be held entitled to a freehold tenure, and the others would be regarded as holding their offices during pleasure, and would, of course, be treated in a different manner; but no one would go without compensation. There remained another class of meritorious officers to be provided for, whose condition he owned, in a great degree, excited his sympathy, and it would be for the House to consider whether the compensation to them should or should not be enlarged beyond the words of the clause. He alluded to the managing clerks of the Registrars and officers of the Metropolitan Court of Canterbury. The Bill provided compensation for these persons who might be supposed to be too old to enter into a new employment, and those who had served in this capacity for fifteen years would receive compensation under the Bill. He now came to another class of persons—the proctors, to whom the Bill secured a portion of their present monopoly. The condition of the proctors must be described with some distinctions. The Bill continued to proctors of the Prerogative Court of Canterbury a monopoly of what the Bill designated, by a term borrowed from their own vocabulary, as the "common-form" business. They would have the exclusive right of all the business of proving wills and obtaining letters of administration in the Metropolitan Court in cases where there was no contest and no dispute. Those who had read the Report of the last Commission would see that a number of proctors were examined by the Commissioners, and that they seemed to agree that if they could get the "common-form" business secured to them for a certain time they would have no cause to complain. The office of a proctor appeared gradually to have acquired a monopoly in the Ecclesiastical Courts, and the proctors relied upon a particular statute, 53 Geo. III. How this statute was passed he knew not, but that statute prohibited the proctors from associating their business with that of ordinary attorneys and solicitors and from any participation in their profits. This statute had given the proctors a complete monpoly of the gains of their office. The monopoly of the proctors of the Prerogative Court was so far recognised by the Bill that they would secure the benefit of all the gains of the common-form busi- ness. The House would also recollect that by the abolition of the Chester Court, in which the number of wills proved was very great, and also by the abolition of the Prerogative Court of York, and the diocesan and country courts the business in the London Court must be very greatly augmented. The present estimate was that the Prerogative Court of Canterbury transacted one-third of the common-form business of the country, and the House would judge what an amount of business the persons practising in this court would be likely to obtain from the introduction of all the common-form business in cases where the personal estate exceeded £1,500. But he did not rely exclusively on this source of income. The Bill would consolidate three Courts—the Admiralty Court, the Marriage and Divorce Court, and the Court of Probate. The House would observe how greatly the functions of the Court of Prerogative were augmented by the Bill. At present the Court of Prerogative dealt with contests arising from personal estate alone. Hereafter there would be brought into that court contested cases of real as well as personal estate. If the personal estate were not very considerable, the real estate might be of great value, and, remembering how constantly business ran in the same channel in which it had been accustomed to flow, he thought he should not be wrong in anticipating—and he sincerely and earnestly hoped his anticipations might be realised—that the condition of the proctors would be improved instead of injured by the Bill. The House would recollect that on former occasions he had presented things under a different aspect. It was his desire to have thrown the court open by abolishing the monopoly of the proctors, and he therefore thought it right to give them compensation. The Bill of last year and the preceding year proposed to give them annuities for life amounting to half the clear gain which, upon an average of some years, they had derived from their testamentary business. But he had been unable to please these gentlemen by his proposals, and principally through their opposition he had been prevented from carrying his Bills. What the present Bill proposed was to give them a monopoly of the "common-form" business in addition to the advantages he had mentioned. It was impossible, with regard to practitioners in courts, to do anything more than merely speculate whether a change would or would not be for their advantage. It would be idle, indeed, for that House to assume to itself the power of prophesying as to the future, and, predicting with confidence that loss would result to individuals, to proceed to vote away the public money, when it might after all turn out that such generosity was wholly misplaced. They could not on public principle recognise the right of legal practitioners to a vested interest in the profits they might derive from the delay, inconvenience, loss, and suffering to suitors consequent on the defective state of the law. Such, persons, therefore, had no claim to compensation for improvements in the law which introduced expedition, simplicity, and economy in its administration. What would be said of the physician, the surgeon, or the apothecary, who, on some important discovery being made in medical science—like that of Dr. Jenner, for example—which afforded the means of mitigating much human suffering and of preventing disease, should think of demanding to be indemnified by the country for the abridgment of his professional gains? Therefore, he could not admit the right of the legal practitioner to compensation for changes of this kind made for the public good. The case might be different when a man's office was entirely done away with, but when the office was retained, and his practice and profits were to a great extent continued, the right to compensation could not be allowed. He believed he had now referred to all cases of compensation except that of Viscount Canterbury, whose right of succession to the office of registrar had been recognised by an Act of Parliament, 9 Geo. IV., and they had consequently no other resource but to provide that nobleman with an annuity. He had now gone through the matters to which he thought it right to call the attention of the House. Some hon. Gentlemen might imagine that the Bill ought to contain further provisions; but its main object was to effect those amendments in the law which had from time to time been suggested by the calmest and most temperate advisers as lying within the limits to which legislation on this subject should extend. The measure, though by no means as large and comprehensive in its character as previous schemes of this kind, would, he thought, be received with general approbation. It was founded, as far as it went, on a sound and just view of the case; and he believed it was calculated to remove all the most pressing evils, and meet all the most important requisi- tions which had been brought forward within the last thirty years by the greatest minds which had studied this question. The hon. and learned Gentleman concluded by moving the second reading of the Bill.

Motion made, and Question proposed, "That the Bill be now read a second time."


said that, under ordinary circumstances, he should not have trespassed on the attention of the House; but having had the honour to be a member of the Commission to which the Attorney General had referred, and this Bill being conceived very much in the spirit recommended by the majority of that Commission, with whom he had the good fortune to agree, it was only right that he should express his approbation of it by seconding the Motion before the House. He had always thought that among the various improvements which were demanded on this subject, the four chief points were first—that, if a will dealing with real and personal property was by due legal process declared to be valid, it should enure as a good instrument both for real and personal property, and be readily carried out anywhere within the four corners of the kingdom. There might be a good deal of disputation as to the construction of wills and the administration of assets, but the amount of really contentious business in regard to wills was practically found to be almost infinitesimal. He rejoiced, therefore, that the Government had now directed their attention to the discovery of a convenient mode of conducting the "common-form" business, because it had hitherto been too much the habit of our great jurists to overlook this, which was, after all, the most important branch of the question, and to allow their views to be moulded chiefly by their own experience in the contentious cases. In fact, this circumstance accounted, to a great extent; for the failure of many previous attempts at legislation of this description. Another matter of complaint was the evil connected with the doctrine of bona notabilia, which loudly called for a remedy, and which this Bill would entirely set to rights. He must also express his satisfaction that this measure would furnish an index which would enable parties to find out where wills had been proved, and letters of administration, had been taken out; and thus the frightful expense incident to searching here and there, and employing attorneys to perform all those blessed journeys, which often ended in nothing but vexation and disappointment, would be wholly got rid of. He regretted, however, that advantage was not taken of the vast depository of information at Somerset House, the will stamp department, by means of which that excellent public officer, Mr. Trevor, stated that parties could easily learn, at the cost of 1s., where any will had been proved, or letters of administration had been taken out, within the last forty years. If this could be grafted upon the Bill, a great boon would be conferred upon the present generation, and the public saved an endless amount of trouble; whereas, the effects of this clause would not be felt for many years to come. Another valuable feature of this measure was, that it fully recognised the advantage of local jurisdiction within given limits. The people, and more especially the poorer classes, ought to have facilities for dealing with wills and obtaining administration, brought as far as possible home to their own doors. In turning his attention to the "common-form" business, as the hon. and learned Attorney General had done, he had avoided the rock on which so many of his predecessors in this enterprise had split. No doubt changes such as those now proposed must create a great deal of disturbance; but he believed this Bill would effect them with as little injury as might be to existing rights. It was wiser to pass a, measure which would effect a great practical benefit than to strive unsuccessfully for something which might be more theoretically perfect, as the House had striven on this subject for the last thirty years. The Bill of the hon. and learned Gentleman contained the principal alterations which he (Mr. Henley) had for years wished to see effected in the granting of probates of wills and letters of administration, and he thought that the House and the country were much indebted to the hon. and learned Gentleman for waiving his own views and propounding a practical measure, which would in all likelihood receive the approbation of the Legislature, rather than as the bent of the hon. and learned Gentleman's mind would, in all probability, have inclined, one more theoretically perfect, but which would be rejected. There was a question of detail with regard to the constitution of the proposed Court of Probate, upon which he wished to observe, that when the Bill came to be discussed in Committee, it might be well for the House to consider whether or not the Admiralty Court should be amalgamated with the Court of Probate. He could not help thinking that such a step would have a tendency to overload the new court with business, and he threw out the hint now, merely that the point might receive due attention. There was another provision of great importance in the Bill—that by which every precaution would be taken for securing the means of taking care of property during litigation. This was a thing greatly needed and would give the greatest satisfaction to the country. As to the procedure of the proposed court, he, of course, must leave that matter to be dealt with by the legal Members of the House. He would, however, observe, that he hoped the sanguine expectation of the hon. and learned Gentleman as to the simplification of the process would be fulfilled. The hon. and learned Gentleman had stated, that the length of the process would be diminished one-half by his Bill, and sanguine as was his expectation in that respect, he (Mr. Henley) must say, that nobody was more capable than the hon. and learned Gentleman, of providing an effectual remedy for any evil to which he might direct his attention. He hoped that part of the provision with respect to the transmission of wills, by which the title to property was to be proved, would remain open for further consideration in Committee. People living in the country were very jealous about the custody of their documents of title. He was quite sure that the Bill would not facilitate the proof of their titles, and he therefore hoped that those documents would be allowed to remain where they were. Many of them affected the title of a poor man to a small cottage, and if all the wills of the country were to be hustled together, and sent to London, such a man could have little hope of vindicating his rights. The clause on that subject was rather obscurely drawn. He had received many communications from persons living in the country on the subject of the Bill, from which it was evident that they assumed that all wills, both past and to come, were to be kept in the district in which the property affected by them was situate. On no point were people living in the country more anxious than on their documents of title being easily accessible. It was more important that wills made up to this time, than those to be made hereafter, should be thus accessible, because the probates of the latter would, under this Bill, be ad- mitted as evidence with regard to the property affected by them. In speaking upon the question of compensation, the hon. and learned Gentleman had altogether omitted to notice the claim of the proctors practising in the courts out of London to compensation. He (Mr. Henley) had no complaint to make of the manner in which he had dealt with the claim of the London proctors. Those practising in the country he believed were very few, and chiefly in Chester, York, and Exeter. They were not solicitors as well as proctors, and as solicitors were empowered to practise in the district courts, this Bill would unquestionably deprive them of all their business. He hoped that the House would consider their claim to compensation in a fair and liberal spirit. With regard to the proctors practising in London, he confessed that, after having sat on Commissions and Committees on this subject, he could not undertake to say whether they would lose or gain by the proposed change. The observations of the hon. and learned Gentleman on that point ought to be received with some reservation, and he hoped that the Government would not preclude the House from freely discussing it. The Bill would take away from the London proctors a class of business which was wholly irrespective of the amount bequeathed, that was to say, all wills relating to the funded property of the country. Under the present system, every will relating to funded property, whether of large or small amount, had to be proved in London. That class of wills undoubtedly gave a great deal of business to the London proctors. He was at first disposed to open the profession to solicitors, but the testimony which he had heard convinced him that the safety of the public would be best consulted by keeping it as it was. It seems there is a statute which prevents proctors from entering into partnership with solicitors, in other words, of sharing the spoils with them, when the solicitors brought them business; and the testimony conclusively established the fact that the present limited body of practitioners stood even-handed between the court and the client—that if the proctor observed anything in the will brought to him by his client, upon which he thought there rested the shadow of a shade of suspicion, he directed the attention of the court to it, feeling that, as an officer of the court, it was his duty to do so. It might be very difficult for the Judge of the court to be well acquainted with the character of each of the 150 proctors who practised in his court; but, if the business were to be thrown open to 10,000 or 11,000 solicitors, how was it possible for him to acquire such a knowledge of their moral reputation as would justify his reposing that confidence in them which he might well repose in the present limited number of the practitioners? The evidence was irresistible as to the great security with which the "common-form" business had been hitherto transacted, and he did not think it would be wise to disturb the existing system for the sake of the imaginary advantage of opening the business to solicitors.


said, that with reference to one suggestion of the right hon. Gentleman, he wished to explain that he had omitted to mention that a distinction should be recognised between the proctors of York and Chester and those of London, and that he thought they stood upon a different footing. This case was under consideration. He had neglected, also, to point out that there was another class of persons entitled to the greatest consideration—he meant those clergymen who acted as surrogates, and who would be converted into commissioners by the Bill. Perhaps the House would also allow him to state that a provision was introduced into the Bill for disposing of contentious cases with regard to real estates, where the amounts involved were very small, through the agency of the County Courts.


said, that he intended to support the Second Reading of this Bill, believing it would be a very great improvement upon the existing state of things, anything worse than which, indeed, it was difficult for the imagination to conceive. He would not dwell upon the merits of the measure; they had already been ably pointed out; but he felt bound to say that it possessed very serious defects—so serious, in fact, that if he did not think they could be remedied in Committee he should have some doubt as to the course he ought to pursue. His objections were twofold. In the first place, he deemed it unnecessary to create a new court at all; and, in the second place, the court which was about to be created was an inefficient one. He was justified in supposing that this was not the Attorney General's Bill, though, having it in charge, his hon. and learned Friend, of course, felt bound to say all he could in its favour. The Bill introduced by his hon. and learned Friend last year was not only a different Bill, but might be said to be diametrically opposed to the one before the House. That was the largest—this might be described as the smallest possible measure. The former Bill of his hon. and learned Friend proposed to consolidate three jurisdictions respecting wills—the jurisdiction of the Ecclesiastical Courts, which related to the validity of wills in personalty; the jurisdiction of the Courts of Common Law, in wills involving realty; and the jurisdiction of the Court of Chancery, which related to the administration of assets real and personal. His hon. and learned Friend proposed to unite these three jurisdictions, and if that proposal had been acceded to, undoubtedly a new court with a new Judge would have been required. Whatever might have been its defects—and of those, as the Bill was dead and gone, he would not speak—that was a bold and comprehensive idea; the measure was throughout conceived in no narrow or pettifogging spirit, and was not unworthy of his hon. and learned Friend's great reputation. The present, however, was, he repeated, the smallest possible measure. Instead of consolidating three jurisdictions, it dealt only with one—that of the Ecclesiastical Courts, and actually cut that in two, giving the greater and more important part of it to the Courts of Common Law, and reserving the residue for a new Judge. It called into existence a new court with all its paraphernalia of officers, trainbearers, &c., saddling the country with precisely the same pecuniary burden as the measure of last year, whereas it would transact only a small portion of the business arising out of one of the three jurisdictions which the other Bill united. It established a new Judge and a new court for the purpose of dealing with a portion only of the jurisdiction of the Ecclesiastical Courts—namely, that which related to non-contentious matters, and some questions of law; while all the important issues on the great questions of fact, such as the sanity of the testator, the question whether undue influence was exercised upon him, whether the will was a forgery, or whether it was duly executed, were not to be tried by the new Judge, but by the Courts of Common Law. This Bill perpetuated what he thought might be described as the game of battledore and shuttlecock—well-known in our judicial system—whereby a suitor was with a good deal of noise knocked about from court to court, generally losing a portion of his feathers at each flight. In the present instance he would go into the new court, with its affidavits and interrogatories, which the proctors would take care to maintain as long as possible; next he would be sent into a Common Law Court, then he could come back into the Court of Probate, and the chances were that Chancery would claim him besides. Now he (Mr. Collier) contended that if the suitor in all important cases was to go to the Courts of Common Law in the end, he might just as well go there at once. There was no necessity for a new court to try cases of no great importance, referring all great questions of fact which arose to the Courts of Common Law. In place of this, he proposed that the Courts of Common Law should transact all contentious business, and that all the non-contentious business should be disposed of, not by a new Judge, but by an office and a registrar with a salary—say, of £1,500 a year. Such an officer would be able to transact satisfactorily all the "common-form" business, while the contentious business would be transferred at once to the superior Courts of Common Law. Among the complaints made respecting the administration of justice in this country he had never heard it said that we did not possess a sufficient number of courts. There were Courts of Common Law, Courts of Chancery, Ecclesiastical Courts, Courts of Bankruptcy and Insolvency, County Courts, Courts of Quarter Session, and what not, and it was owing to the conflict of their jurisdiction that much of the scandal attaching to our law arose, and that such expense, and occasionally ruin, were inflicted upon suitors. They had recently witnessed an example of this conflict of jurisdictions in the struggle between Chancery and Bankruptcy for the carcase of the Royal British Bank. Well, at this moment a Commission was sitting to inquire whether the fifteen common law Judges should not be reduced in number, because they had not enough to occupy them in consequence of the County Courts having taken away a great part of their jurisdiction; and it would be a strange thing to create a sixteenth Judge at the very moment when this Commission might say that fifteen were too many. If the House came to consider this matter, what was there with respect to a will of greater interest and complexity, or which made it more diffi- cult to deal with, than a deed or contract, or any instrument whereby a man disposed of his property during his life? The civil law drew no such distinction, instituted no peculiar mode of proceeding with respect to a will, and created no privileged or monopolizing practitioners in will cases. In no other civilized country, indeed, besides our own, was such a distinction recognised. In America the County Courts dealt with wills; in India no courts of probate, no doctors, no proctors, existed, and his hon. and learned Friend the late Chief Justice (Sir E. Perry) would probably bear him out in saying that no difficulty was found there in transacting the testamentary business by the ordinary tribunals. But there was an example nearer home. About thirty years ago the Commissary Courts of Scotland, which succeeded the old Ecclesiastical Courts of that country, were abolished precisely as they now proposed to abolish the Ecclesiastical Courts in England. Was a new court created to fill their place? Not so. The Scotch would not endure, would not pay for, any new tribunal. The jurisdiction was transferred to the ordinary tribunals of the country—to the Sheriff's Court and to the Court of Session—and he should be very much surprised indeed to hear from any Scotch Member that these tribunals were incompetent for the business transferred to them, and that a new court was desiderated. He wanted to know why the Courts of Westminster Hall should not do in England what the Court of Session could do in Scotland? He said, then, that there was no necessity for a new court, but that this jurisdiction of the Ecclesiastical Court was in the nature of a diseased excrescence upon our judicial system, which a healthy action would remedy and absorb. The Lord Chancellor, in introducing a Bill very nearly similar to this, last Session, said— Under the measure I propose the Judge of the Court will have really next to nothing to do. The registrars will in ordinary cases determine whether a new will is in force or not, appealing to the Judge for assistance whenever they require it, and when a question of fact arises—for example, whether the testator were a man of sound mind, or whether the will was duly executed—I propose that such questions should be dealt with exactly in the same manner as an issue is directed by the Court of Chancery to be tried in a court of law, and that nothing shall be done by the Judge, except sending them wherever they can most conveniently be tried ….. This being the case, I cannot honestly propose the creation of a new Judge. That was on the 10th of February in this present year; yet, now, in June, a Judge was proposed who would confessedly have next to nothing to do. The Lord Chancellor, in introducing the present Bill, had been induced, he believed, to propose the new court and new Judge against his better judgment. Indeed, the noble and learned Lord stated that the suggestion had been forced upon him—whether by the proctors or not he (Mr. Collier) did not know—but he still expressed his opinion that the new Judge would not have enough to do. That being so, he made the new functionary assistant-judge in the Divorce Court; but, even then, he would not have sufficient to occupy him, and so, some time or another, although when was not stated, the Admiralty jurisdiction also was to be given to him, and then it was supposed that he would have something to do. But what a medley of jurisdictions was given to this court—wills, ships, and marriages; what on earth had they to do with one another? They might just as well take the various branches of our law alphabetically, and refer them in threes to different jurisdictions—thus, bankruptcy, burglary, bills of exchange, or poaching, parish law, and piracy. Or they might shake up all the jurisdictions in a bag and put them together three at a time, just as they came out: the system would be quite as sensible and intelligible as the one now proposed. But this did not seem to him to be the plan on which they ought to proceed, and to legislate upon such a principle—if principle it could be called—did not say much for the hopefulness of the cause of law reform. It was most important for the purpose of reducing to order and harmony the entangled system of our laws, not merely to look to the exigency of immediate operations, but to take a comprehensive view of the entire judicial system, and to deal with each part in reference to the harmony of the whole. Upon a review of the main provisions of this Bill, then, he thought that he was justified in saying that it saddled the country with a new court where a new court was not necessary; that the court which it provided would not be an efficient one, and that the Judge of that court, if he were a man of active mind, and had a great appetite for intellectual and judicial nutriment, would be starved—that he would be fed upon husks and straw while the fatted calves of litigation would be devoured by others. He (Mr. Collier) should endeavour by means of Amendments in Committee to reduce that new court to an office with a registrar, and to refer the whole of the contentious business to the Courts of Common Law. That would be in accordance with the Bill which he had introduced four years ago, which had often received the active assistance of his hon. and learned Friend the Solicitor General, and he was sure that the fact of his hon. and learned Friend being now in office would make no difference in his opinion. He objected, also, to the jurisdiction of the Court of Admiralty being given to the new court, because he was of opinion that it ought to be transferred to the Court of Common Law. The latter courts decided cases of collision and awarded damages, and he could not see why they should not be entrusted with the power of apportioning damages between the vessels themselves. There were some other points of detail to which he entertained objections, and he would say one word with regard to the appeal. There was a provision in the Bill allowing an appeal to the Judicial Committee of the Privy Council, who were again to hand the case over to the House of Lords. Here was an instance of the shuttlecock and battledore system again. With respect to the administration of the law, it was of the utmost importance to give the County Courts jurisdiction in cases of probate, because not to do so would amount to a denial of justice to the poor man. But he could not understand why the County Court districts should be adopted for contentious purposes, and the diocesan districts for non-contentious. Nothing could be more unsystematic than to have one set of districts for trying the contentious, and a different set for trying the non-contentious questions. This would very much limit the public accommodation. There was only one place of registration for Westmoreland and Cumberland for instance—namely, Carlisle. Peterborough was the place of registration for part of Northamptonshire, Huntingdonshire, and Cambridgeshire. He should take the sense of the House whether the County Court districts should not be adhered to. His hon. and learned Friend the Attorney General adopted his proposition on that point in the Bill of last Session. These were the outlines of the objections he felt to the present Bill, and he should submit clauses for the purpose of introducing the Amendments he had pointed out. He was strongly of opinion that they ought alto- gether to get rid of the old cumbrous and obsolete Ecclesiastical Courts, and transfer he jurisdiction to the ordinary tribunals of the country.


said, he should certainly despair of the cause of law reform if the views expressed by the hon. and learned Member for Plymouth (Mr. Collier) were adopted. He should not, however, follow his hon. and learned Friend through all the details which he had brought before the House, and which were more fit for consideration in Committee, but would merely observe that, as a member of the Commission whose recommendations the present Bill substantially carried out, he understood that the great crying grievance requiring remedy consisted in the multiplicity of independent jurisdictions with respect to the probate of wills and the grants of letters of administration, and the difficulty, nay, almost practical impossibility of determining with anything like certainty the particular jurisdiction which had to deal with particular cases. That inconvenience had been admitted for nearly the greater part of this century, but it was a grievance arising, not from any defect in the original constitution of the tribunals, or from any abuse of the jurisdiction exercised, but from the rapid increase of wealth in respect to personal property, from the formation of canals and railroads, by which the amount of personal property had been so greatly increased and complicated that the simple jurisdiction, which was amply sufficient when these tribunals were first instituted, became wholly unfit for the purpose of regulating the succession to personal property. To meet the inconveniences arising from this state of things some remedy was of course required. Various remedies were suggested, but he would now refer but to three—namely, reducing the existing testamentary tribunals to one or two, and improving the jurisdiction where it was defective; transferring the jurisdiction to some existing court or courts, as the Court of Chancery or the Courts of Common Law, and lastly, the creation, of some new court, which should deal with the whole subject. According to his notions of law reform these subjects were even yet hardly quite ripe for discussion in that House. They were mixed questions of law and fact, which he felt his hon. and learned Friend and every hon. Member in that House must be unacquainted with, unless they had taken great pains to inform themselves on the subject. It was idle to attempt to legislate on the subject without knowing the whole facts and exactly how the law was administered in these tribunals. To obtain that knowledge required patient research, so that the investigation was fitter for a Select Committee or Commission. Upon this subject there was a Royal Commission in 1830, which reported in 1832. That was followed by a Select Committee of that House, by a Select Committee of the House of Lords, and again by a Select Committee of the Commons; and lastly there was the Chancery Commission issued some years ago, to which a supplemental Commission was issued in 1850. This Commission had all former proceedings submitted to it, and yet, in addition, it devoted a considerable portion, of time in examining witnesses, ascertaining the state of the law, and inquiring respecting the course pursued in the Ecclesiastical Courts. The constitution of the Commission was numerous and varied. It consisted of one of the Lords Justices, the Master of the Rolls, the two Vice Chancellors, one Judge of the Common Law Courts, the Dean of Arches, the Queen's Advocate, the Attorney General, two gentlemen from the Chancery Bar, the right hon. Member for Carlisle, and the right hon. Member for Oxfordshire. When he mentioned as members of that Commission Lord Justice Turner and Vice Chancellor Page Wood, he felt that their great legal knowledge and judicial impartiality afforded a sufficient guarantee that everything which could be done would be effected to apply some proper remedy to the inconveniences which were felt to exist. He thought it would be a sound proceeding, in attempting law reform, for that House to consider, and, in the main, to adopt what such a Commission recommended. The Commission came to the conclusion that the right course to pursue was to sweep away the existing multiplicity of jurisdictions and establish one tribunal in London in their stead. His hon. Friend said that the new tribunal would have nothing to do, but his hon. Friend totally misunderstood the nature of "common-form" business. The bare authentication of the will was not all that was required, for it was really business of importance, requiring great checks, great knowledge, and great experience. When a will existed it was necessary to decide who was to be the executor to deal with the personal estate. In a large proportion of cases there was either no executor named or the executor renounced the probate, or it was doubtful who was the executor. In cases of intestacy, it was necessary to determine who was entitled to administer—often a question not easy of solution. Then there were the difficulties arising on the deaths of heirs or administrators before the estate was fully administered. These were questions of the highest importance, and his hon. Friend was mistaken in supposing that it could be satisfactorily disposed of by some one gentleman in an office with £1,500 a year. If they were to proceed in that way in effecting law reform, they would find that they would be sacrificing the rights of property. A large proportion of the "common-form" business necessarily went to the Judge to consider, and it must not be supposed that, because the Judge did not sit in open court for six hours every day he had, therefore, nothing to do. He thought it might be very possible to engraft upon the business of the Testamentary Court a portion of those legal proceedings which were based on the civil law. Three members of the Commission—the Attorney General, the right hon. Baronet opposite (Sir James Graham), and the Master of the Rolls—were in favour of transferring the testamentary jurisdiction to the Court of Chancery, but the majority were opposed to such a measure; but, whether it were transferred to the Court of Chancery or to a Court of Common Law, it would only become a separate department of such court, for the business was so considerable that it would afford occupation enough to a department. Whether the business were transferred to the Chancery or Common Law Courts, or elsewhere, there would necessarily be a new and distinct department with its own officers. The Commissioners, after carefully considering the subject, arrived at the conclusion that it was not desirable to transfer the jurisdiction either to the Courts of Chancery or Common Law, but that the best course would be to create a new and independent court, which should deal with the whole of the business, and he (Mr. Rolt) would oppose any attempt which might be made in Committee to prevent the establishment of such a tribunal. There were certainly some provisions of the Bill which he did not fully approve, but he thought the time had arrived when hon. Members ought to be prepared to sacrifice their opinions as to matters of detail in order to carry into effect a great reform which would sweep away the existing multiplicity of jurisdictions and establish a single jurisdiction in their stead. One question of considerable importance which had been mentioned during this discussion was that of compensation. He believed there was no reason to fear the rejection of this measure because it provided some compensation for those who would sustain loss in consequence of the legal reform which it would accomplish, and he had no doubt the noble Lord at the head of the Government would be grateful to the House if it enabled him to do justice to those whose interests would be affected. He considered that compensation ought to be afforded to a greater extent than was contemplated by the Bill in its present form. If he could agree with the Attorney General that the object of the measure was to secure a monopoly to the proctors, he, for one, would oppose such a monopoly. He denied, however, that the office of proctor was a monopoly. It would be as reasonable to speak of his hon. and learned Friend's monopolizing the office of Attorney General as to speak of the monopoly of their offices by the proctors. Those gentlemen were officers of the court, and if they were abolished to-morrow, a new body of clerks or officials must be created, under some other name, to supply their places. The only question would be whether or not the new officials should receive the same fees as the proctors. It was absolutely necessary, when many thousands of wills were proved annually, that a body of officials should exist whose experience enabled them to detect attempts at fraud, and to advise upon the nice questions which were constantly arising. Parliament might transfer the business to others if they pleased, but the Judge of the court would find it necessary to appoint officials who would perform the duties of proctors under some other name. He believed that if the House was satisfied this measure would deprive the proctors of a considerable portion of their business, to the detriment of the public, they, as well as the Government, would be prepared to do justice to those gentlemen. This subject had received long and careful consideration. The present Bill was the fourth measure relating to testamentary jurisdiction which had been introduced since 1852, and he hoped the House would be of opinion the time had arrived when any petty difference as to questions of detail should be disregarded, and when an attempt should be made to remedy the serious grievances which resulted from the existing multiplicity of jurisdiction. He wished, before he sat down, to correct a misapprehension on the part of the Attorney General, who, as he understood, stated that a Bill previously introduced on this subject had been opposed by the proctors, because it only proposed to afford them compensation to the extent of one-half the amount of their receipts. If he (Mr. Rolt) was correctly informed, the proctors, although they did not think that measure harmonized with the Report of the Commissioners, did not as a body offer any opposition to it, but would have been perfectly content if it had passed. He hoped the House would assent to the second reading of the present Bill, and that it would receive such Amendments in Committee as would ensure its passing into a law.


observed, in explanation, that when he said the new court would have next to nothing to do, he did not use his own words, but those of the Lord Chancellor. The hon. and learned Gentleman seemed to suppose that he (Mr. Collier) was expressing his own opinion.


said, he had, on former occasions, uniformly opposed the measures proposed on this subject by the Government; but he was much gratified at finding he was able to give his support to the second reading of this Bill, which would carry into effect the views he had advocated during the last four years. He entertained some objection to the details of the measure, but thought on disputed points some arrangement might be made which would be generally acceptable when the Bill was in Committee. The great evil which he desired to see removed was the existence of so many different jurisdictions, amounting to some 400 in number. One great evil in the present system was the rule as to bona notabilia, which required a will to be proved in every diocese where the testator had property. He had always said these subjects ought no longer to be matters of ecclesiastical jurisdiction, but should, on the contrary, be dealt with by a court emanating directly from the Sovereign, as the fountain of all justice, and therefore to the proposal for a new Court of Probate he gave his cordial support. He thought, however, that this principle would not be carried out in a satisfactory manner under the Bill as it then stood, as he strongly disapproved, for instance, of the proposal that an appeal should be to the House of Lords instead of the Privy Council. But he would reserve to himself the right of objecting to matters of detail, and, with that reservation, give his general support to the Bill, but upon one understanding. This was a measure which destroyed great interests, and called on many persons in the country to make great sacrifices, and he was therefore gratified to hear his hon. and learned Friend the Attorney General concede that the case of the proctors of the Prerogative Court of York was entitled to consideration in reference to the question of compensation. Those proctors of the Prerogative Court of York were a privileged body of men, whose offices had existed during several centuries, and who had succeeded to their business only by slow degrees and after great pecuniary sacrifices in early life; and he would say, if a Bill had passed that House which abolished the rights of such a body of men as that without awarding them compensation, it would have been anything but a creditable piece of legislation. He was, therefore, glad that his hon. and learned Friend (the Attorney General) had, as soon as their case was stated to him, conceded the pressing nature of their claims. The principle, then, being conceded, he (Mr. Malins) came to questions of fact; and if his hon. and learned Friend was right in conceding the claims of the proctors of York and Chester, it followed that he must make a similar concession where the same state of things existed. But his hon. and learned Friend had stated that he could not grant the concession with regard to the proctors in London, and gave as a reason for that distinction that the House could not compensate where improvements were to be made. But the principle of his hon. and learned Friend was either right or wrong, and if the principle was wrong why did he compensate the proctors of York, seeing that they, too, were to be the victims of an improved practice? [Viscount PALMERSTON: Because the Bill sweeps their offices from the face of the earth.] The noble Lord said their offices were to be swept from the face of the earth. Because, therefore, the proctors of York, as such, were to be swept from the land the noble Lord would award them compensation, but would refuse it to a class of men whose interests would be so damaged by the operation of this Bill that they would hereafter gain only £100 by their practice where they now earned £400. These were men, about 120 in number, of station in society and of great respectability, and many of whom had large families depending upon them. They had privileges which they and those who had gone before them had enjoyed for six centuries; many of them were men of great age, some of them of middle age, and others who were just commencing life; and was the House prepared to annihilate, as it were, 120 families, and send them destitute into the world? Although the Bill preserved to the London proctors the "common-form" business in Doctors' Commons, he was convinced that the privilege they had enjoyed would be gone in substance, and hereafter exist only in name, and that they would be deprived of at least four-fifths of their emoluments. If the Bill, in preserving to the London proctors the "common-form" business had preserved to them the great bulk of their practice, he (Mr. Malins) would have been the first to say that theirs was not a case for compensation; but if it destroyed, as he submitted it would, the great bulk of their business, then he contended they were, on principle, as much entitled to compensation to the extent of their loss as the proctors of York, and that in a case of public necessity, where public interest required the privileges of individuals to be abolished, public justice also required that those whose privileges were abolished should be compensated for the loss. He had that very evening presented to the House the petitions of two young men, one of whom had paid £840, and the other £900 premium, on being articled to the profession of a proctor, in addition to the stamp duty of £120 to the Government in each case. He had seen these gentlemen, who had devoted seven years to the study of their profession, and they had stated to him that they were willing to forego all the loss of time they had spent in making themselves familiar with a profession which would now be practically valueless to them by the operation of this Bill, but they appealed to the justice of the House that they should be at least reimbursed the money they expended on their entrance to it. He repeated that the effect of the Bill on the London proctors would be to deprive them of something like seven-eighths of their present emoluments. He was surprised to hear his hon. and learned Friend the Attorney General say that the London proctors would have their business, in- creased by the present Bill. The number of wills proved and administrations granted in England was about 25,000 a year; of these not more than 100 were contested, so that it appeared that the non-contentious business produced the greater amount of their profit. The Attorney General, however, proposed to throw open the contentious business to the profession; another class of cases he gave to the County Courts, while he required that in all cases where the property did not exceed £1,500 it should be proved in the district courts; and if the statement of the London proctors were true, that four-fifths of their business would be lost if the present Bill passed, it was reasonable that, like the proctors of York and Chester, they should receive compensation. This was a question of fact; and in Committee he should go into statements which would place it beyond all doubt. And he would warn the noble Lord, that if this fact were proved he would yet meet with difficulties in passing the Bill, if he did not concede a principle which the House and the country were satisfied was founded in justice. He yielded, however, to no one in the desire to see this question settled, and a single Court of Probate established. He should, therefore, support the second reading, but he did not thereby pledge himself to support the future stages of the Bill unless a fair and full measure of justice were given to those concerned. Last year the Attorney General proposed to compensate the proctors to the amount of half their receipts, calculated on an average of the last five years, by means of the fee fund, so as not to throw any additional burden upon the public. The same principle ought to be conceded by this Bill, and carried out in the same manner; and a clause to that effect would be proposed in Committee. If the hon. and learned Gentleman would grant fair and just compensation by means of the suitors' fund there would be nothing to prevent the Bill becoming law during the present Session.


said, that the city of York, by its ecclesiastical jurisdiction, had authority to a considerable extent over at least twice the population of Scotland, and over an immense amount of real property. The case of the proctors of York was, however, different from that of their London brethren. In some respects they formed a body quite unique. Their constitution had been unchanged since the year 1311. Eight proctors existed then, and the same number held office now. They took their offices by seniority. Each proctor had a clerk, and each clerk in the order of his seniority took the place of a proctor when a vacancy occurred. They did not practise as attorneys, and under this Bill their occupation as proctors in York would be entirely gone. The county of York, under this Bill, would be divided into four districts—the East Riding, the North Riding, certain parts of the West Riding, and the Leeds district, containing the populous towns of Leeds, Sheffield, Huddersfield, &c. The effect of the Bill would, therefore, be to impose some inconvenience upon the residents near York, for those who lived one or two miles from the city on one side would have to go to Hull, and those who lived a mile or two on the other side would have to go to Richmond to prove their wills. He was glad to hear the assurance given by the Attorney General that attention would be paid to the equitable claims of the proctors of York to compensation.


said, that he also agreed in the opinion that minor differences must be sunk in dealing with this question. The objection had not been rightly stated as to the existing tribunals. The complaint was not so much to the number as to the conflicting powers and limited jurisdiction of the existing 400 tribunals. So far as these were local courts, giving administration and probate upon simple terms, they did good; nor was he without apprehension that in forming one grand court the taking out of probates and administration might become more expensive to the country than at present. He was glad therefore that the views of the Commissioners against local courts had not prevailed, and that jurisdiction had been given in certain cases to the County Courts. The sound principle evidently was to allow them to exercise jurisdiction, whether contentious or not, at the option of the suitors, who were the best judges whether the courts satisfied them or not, but with the utmost facility to any of the parties to go before the Superior Court in London whenever they chose. The Bill proposed to appoint registrars throughout the country to give administration in non-contentious cases. Why those functionaries should not be attached at once to the County Courts he was at a loss to imagine. These, however, wore points upon which he would not dwell, his principal object in rising being to say a few words upon the claim advanced on behalf of the proctors for compensation. It might be deemed an ungracious step for any one belonging like himself to the legal profession, to stand up and answer the arguments which had been laid before the House upon that subject; but, nevertheless, he ventured to entreat the noble Lord at the head of the Government not to listen to the plausible appeals which had been addressed to him, unless a much stronger case were made out than anything which the House had yet heard. Feelings of benevolence were easy enough to indulge when the purse was large and did not belong to the benefactor. Last year the Bill on this subject would have saddled the country with compensation to the extent of £100,000 a year, and he believed that the clause in question was one of the main reasons of the measure being lost. The proctors, it was said, had offered to accept a monopoly of the "common-form" business for ten years as a sufficient compensation to them if the courts after that time were thrown open to the profession. This Bill, however, proposed to give to them a perpetual monopoly. That was a subject deserving the attention of the Government and the House. For his own part, after considerable experience in law reforms, when he presided over a Court of Justice, he bad always found every step in the way of improvement impeded by appeals for compensation, and he had been obliged after consultation with the Government authorities, to consider each case on its own footing, subject to the general principle that officers of the courts must yield to the public necessities. He was in hopes however, that in the event of the new court being established, and with the additional practice which the Divorce Bill, now under discussion in another place, would produce, the proctors would succeed in acquiring a larger amount of practice than they had hitherto enjoyed; and, if so, it would be a waste of the public money to accede to the claim advanced on their behalf by the hon. and learned Member for Wallingford. They knew by the experience of the present Session that the noble Lord was extremely powerful, and could carry any measure he chose, but they had also seen that on questions of economy the House asserted a will of its own, and he trusted the noble Lord would not listen to the claims urged on him, but adhere to the principle he had already adopted, and carry he Bill as it now stood.


said, that he felt grateful to the Government and the House for the consideration which they were evidently disposed to give to the claims of individuals who would be affected by the operation of this Bill, and he could assure them that no body of gentlemen could be more entitled to their consideration than the proctors of York. Some of them were so aged that they could not be expected to remove to London. He wished to call the attention of the Attorney General to one defect in the Bill. When the measure passed, a person residing within half a mile of York, if he wanted to make his will, would have to go fifty or sixty miles for that purpose. He would have preferred to have a local jurisdiction altogether; but if that were not to be the object of this Bill, at least he trusted that York, a very ancient city, the centre of a populous district, would be named one of the places in which wills might be proved. It had long possessed that jurisdiction, which he hoped would not be taken from it now.


said, he rose for the purpose of congratulating the House, and the country at large, upon the prospect which, judging from the unanimity of sentiment which had been expressed on all sides that evening, they now had of witnessing the accomplishment of a great measure of legal reform. From the time he had first commenced the practice of his profession this subject had engaged the attention of all legal reformers, and since he had the honour of a seat in the House various Bills had been introduced. All were agreed on the necessity of reform, but while they were contending as to the proper mode of destroying the existing jurisdiction, that jurisdiction continued; and unless some such measure as this was introduced, coupled with a strong appeal to the common sense of the House to forgo all minor differences, Doctors' Commons would yet flourish for many years. It was very gratifying to see that while the hon. and learned Member for Plymouth (Mr. Collier) excepted in some degree to the Bill before the House, he did not maintain that it was not calculated to get rid of the evil which it was intended to cure, but merely said that it did not effect that object in the best possible way. The hon. and learned Gentleman bad always been of opinion that the jurisdiction of the Ecclesiastical Courts should be transferred to the Courts of Common Law, and had in 1852 introduced a Bill to that effect, and had repeated that course in various subsequent Sessions. He (the Solicitor General) had given his support to those measures of his hon. and learned Friend, but he could not forget the fact that not one of the Bills which had been introduced for the purpose to which he had referred had ever been read a second time. The transfer of jurisdiction in small matters to the County Courts was a feature in the Bill of his hon. and learned Friend the Member for Plymouth (Mr. Collier) which met with his (the Solicitor General's) approval, and he rejoiced to think that in the present Bill the same feature appeared, as it contained provisions for referring to local and cheap tribunals disputes on property of deceased persons which was of little value. Looking at this as a practical measure, which would effectually get rid of existing evils, and, by uniting various opinions as to the best mode of getting rid of them, insure its safe passage through the House, he felt not the slightest hesitation in doing that in office which he would have done out of office—namely, give the Bill his unqualified assent. In one sense this would be a new court, but it would be constructed of materials at the disposal of the Legislature, and thereby many difficult questions, including that of compensation, would be avoided. He did not doubt that the court would be fully occupied, when, in addition to the "common-form" business, it had to dispose of questions of marriage and divorce, and matters now disposed of in the Admiralty Court. The hon. and learned Member for Plymouth, when he spoke of the transfer to the Courts of Common Law, must have contemplated the ultimate transfer of all that business: otherwise the Admiralty Court and a new court for marriage and divorce would be required; but he thought the Judges of the Common Law Courts, notwithstanding the Commission which was now sitting, would scarcely be prepared to take upon themselves that additional burden, and he doubted whether the machinery of those courts would enable them to deal with the whole business in a manner satisfactory to the public. Again congratulating the House at the prospect of getting rid at last of widespread grievances, he would conclude by expressing his hope soon to see this useful and practical measure passed into a law.


said, he also desired to express his congratulations to the Attorney General in having at last introduced a Bill which promised to bring this long-pending controversy to a conclusion. The framers of this Bill had steered clear of the rocks on which former measures had been shipwrecked. One great fault of these measures was, that they tended unduly to centralize not only the legal business but the deposit of the wills in London. This Bill, however, was clear from those objections. Another difficulty incident to former measures was, that they tended to throw the decision of all questions affecting wills into the Court of Chancery. With that objection he sympathized to a great degree. He believed that many objections to the present system were rather founded upon sentiments arising out of their ecclesiastical character, than upon real existing faults and grievances. Now, the Court of Chancery was open to the same kind of objection; and he was therefore glad that this Bill did not propose in any way to transfer the jurisdiction to that court; a fact, which he thought would be very satisfactory to the country. He was not desirous of entering into matters of detail on that occasion, but he did not think that the case of the city of York called for any especial consideration from that House. But the case of the York proctors stood upon quite a different footing from those of Canterbury, and he hoped that the House would be ready to consider carefully any fair claims they might have. He could only, in conclusion, say how much he rejoiced at the prospects of an early settlement of this question, and he hoped in Committee they would unite in endeavouring to make the Bill as perfect as possible.


said, he was quite ready to join in the congratulations which had been expressed at the prospect of the measure meeting with the approbation of the House. He thought the unanimity with which it was attended was owing to the discretion of its framers in not going too far, but accommodating themselves to the necessities of the case, and thus steering clear of the objections which had been fatal to former propositions. This was not the time to discuss minute details, yet as the distinction between principle and detail was somewhat fine, he would throw out some suggestions for the consideration of the right hon. Gentleman the Attorney General. He quite agreed that, as they were going to establish a Supreme Court, to be called the Court of Probate, the Judge of that court, with respect to salary and other provisions, should be placed in a position to give him weight and importance, and when they had assigned to him such a position, the next care must be to give him something to do. He was surprised to find that, with regard to the contentious business, in every case in which the heir-at-law desired to dispute a will the matter would be withdrawn from the Judge of the Court of Probate, and sent to be tried as an issue at common law. He was quite aware that there was no satisfactory way of deciding claims to real estate except by the verdict of a jury, but he wanted to know why that decision could not be obtained under the direction of the Judge of the Court of Probate? It had been the disgrace of the legal system of this country that it had been in the habit of bandying suits from one court to another. A suit was instituted in one court, handed over to another to decide a question of fact or of law, and then brought back to the court in which it was instituted for ultimate decision. That was exactly what it was proposed to do with regard to cases in which the heir-at-law disputed the will. It might be right to appeal to a jury, but why could not that be done before the Judge of the Court of Probate—why need it be handed over to the courts of common law? If the Judge of the Court of Probate were competent to sit at the head of that court, he was also competent to direct a jury in the trial of a question of fact relating to a will. According, however, to this Bill, the Judge of the Court of Probate, with all his special knowledge of the law applicable to wills, with all his peculiar aptitude for investigating questions affecting the sanity or insanity of the testator, or the exercise of undue influence on the part of the person obtaining the will, was not to direct the jury, but they were to be directed by a common law Judge, whose experience was entirely confined to a different branch of the law. That was an anomaly which he trusted would be corrected when the measure went into Committee. Another provision that excited his surprise was, that all appeals from the Court of Probate were not to lie to the tribunal to which all such appeals had hitherto gone—namely, the Judicial Committee of Privy Council—but were to go to the Judicial Committee of Privy Council at stage No. 1, and then to be referred by that court to the House of Lords at stage No. 2. Of all the courts of the country none was more popular than the Judicial Committee of Privy Council, and no part of the business of that court was more satisfactorily transacted than the appeals from the Ecclesiastical Courts respecting wills. This provision appeared to have crept into the Bill in another place out of deference to the prejudices of those who had charge of the measure. In the last Parliament they had a discussion on the appellate jurisdiction of the House of Lords, with the result of which they were all familiar, and nothing that had since occurred had furnished a substantial remedy for the complaints made against that tribunal. Was there, then, any valid ground for taking away this appellate business from a court which had heretofore discharged it to the satisfaction of the suitors, and transferring it to a tribunal which had never yet possessed it, and which was not, to say the least, in the very best odour with the public? No doubt it would be wise to allow contentious cases of trifling amount to be decided in the County Courts, but, singular to state, it was proposed that appeals in regard to those will cases were to go to the same Common Law Court as ordinary appeals from the decisions of the County Courts. Surely this was multiplying courts of appeal with a vengeance and laying a foundation for differences in practice and decision. These appeals from the County Courts ought, beyond all doubt, to lie in the first instance to the new Court of Probate, and should then follow the course of appeals in the other cases tried there. It was then proposed that forty-one country districts should be established for the proof and registration of wills, where the property was under £1,500, and in the office of each country district the original wills were to be kept. Therefore, for the safe custody of these documents forty-one distinct buildings of solid construction and fireproof, together with as many separate staffs of officials, would be indispensable—an arrangement that would yield no advantage at all commensurate with the great expense it would occasion. He thought that it would be much better to have a central registry for wills in London where the advices might be kept, leaving copies only in the country. As the measure stood a will for less than £1,500 might be proved in any district in which it was sworn on affidavit that the deceased resided, and that proof was conclusive. The person who obtained probate on such affidavit might at once proceed to London and transfer any stock which stood in the name of the deceased. Now, supposing a person wanted to lodge a caveat against the proof of a will, how would he be able to do it. It was certainly proposed that a caveat might be lodged at the central court in London, and that notice of that should be forwarded to the district in which the deceased was said to reside, and should there prevent the proof of the will. But how would that affect the proof in any of the other forty courts to which a person might go, either wilfully or by mistake, in order to prove the will? He thought that provision ought to be made for notifying immediately by electric telegraph, for instance, to all the country courts a caveat lodged in the central court in London. He next came to the question of compensation to the parties, which he admitted to be one of extreme difficulty. The observations, however, which had been made by the Attorney General that night on that subject were not marked by his usual spirit of fairness. The London proctors might or might not be entitled to compensation, but that question ought to be left open for a fuller discussion in Committee. The hon. and learned Gentleman had described the principle of compensation as altogether vicious and absurd, and said it would be as reasonable for physicians to claim to be indemnified for the losses they sustained by the discovery of new methods of medical treatment as for the proctors to demand indemnification for the results of alterations in the rules and practice of their profession. If that were the hon. and learned Gentleman's present opinion, he had certainly changed his mind within a very short time, because, in the Report of the Commissioners to which his name was attached, it was stated that it would be necessary, in common justice to the proctors, that compensation should be made to them if their business were thrown open. True, the hon. and learned Gentleman said that when he expressed his former opinion he intended to abolish the whole trade of the proctors, whereas now he meant only to modify their rules and practice. But it should be observed that the passage of the Report to which he had just referred did not speak of the abolition of the office of the proctors, but simply of throwing open their business.


was understood to say he did not propose to abolish the office of proctors, but to give them that which in their evidence before the Commission, they had said would content them, namely a continuance of the "common-form" business.


said, he was aware the hon. and learned Gentleman never spoke of abolishing the office of the proctors, but the Report which he had subscribed declared that if their business were thrown, open they ought to be compensated. The hon. and learned Attorney General said that the proctors had expressed themselves satisfied with the manner in which this Bill would deal with them, but what they really said was that if the "common-form" business were left to them untouched and unaltered they would be content to give up the contentious business. Would this Bill leave the common-form business untouched and unaltered? It proposed to deprive the proctors of all "common-form" business with regard to wills in the country under £1,500 value. And what proportion was that of the whole of the business?—seventy-nine per cent. Had not the proctors, then, a claim to compensation? Their case was very peculiar. It was perfectly idle to compare it with that of barristers, physicians, or other professional men. They were in number about 100. Their profession had grown up with an existing state of things which obliged them to pay an enormous fee for permission to enter it. If that fee was paid merely as the price of a monopoly of trade, he admitted that a great deal might be said against giving them compensation; but, according to the sound view taken by the Commissioners, the fee was not paid for a monopoly of trade, but in order that certain officers might legally take part in the business of a court established for the proof of wills. It was said that the officers who practised in the Ecclesiastical Courts at York, and throughout the country were entitled to compensation. Their claim only complicated the case the more. If they ought to be compensated, so ought the London proctors. But that question had better be adjourned until the Bill was in Committee. It was the sincere desire of himself and of many hon. Gentlemen around him to contribute to the improvement and to facilitate the passing of the Bill; and he, therefore, hoped that the hon. and learned Attorney General would do something on his part to render the future discussions upon it of practical effect.


said, that he fully concurred in the general principle of the Bill, but he wished to call the attention of the Government to the position of the House in regard to it, and the difficulty which would he met with when they came to discuss it in Committee. It would he very inconvenient if they were asked to discuss a Bill which would abolish a considerable number of offices, and substitute others, without being supplied with authentic information as to its financial operation. The Government ought to furnish hon. Members with a tabular statement or estimate of the pecuniary burden which it would impose upon the people of this country, and of the effect which it would produce upon the incomes of the proctors and other persons who claimed compensation. It was quite obvious that the Government already possessed information on those points, for it must have been very easy to ascertain how large a portion of the proctors' income was derived from the probates of wills disposing of estates under £1,500, which were to be transferred to the local courts. It was clear that if they deprived them of eight-tenths of their income in this way, and also took from them the exclusive practice in contentious cases, they must be very severe sufferers. He was the last man to advocate compensation to any person, and he thought that the House committed a very unfortunate mistake when they commenced the practice of compensating men on the ground of their offices having been abolished for the sake of the public good. The principle of compensation was unsound and wholly indefensible, but as it had been admitted and acted upon so long, it would be the greatest injustice now to raise that general question. So long as the House thought that Viscount Canterbury should he compensated for an office which he had never held, but only expected to hold (and which, in fact, this Bill would abolish) and should be treated as if he actually held it and discharged its duties, it would be a great scandal if the House were to deprive a whole class of people of almost the whole of their incomes, by preventing them from discharging their duties, and yet allow them no compensation. It ought to be distinctly understood that the offices to be created by this Bill were to be filled by persons who were already employed under the present system in the transaction of business corresponding with that which would attach to the new offices to be created by the Bill. The observations of the hon. and learned Member for Belfast (Mr. Cairns) as to questions of fact being left to a jury under the supervision of the court, applied only to cases arising in London, because, with regard to all other trials throughout the country, the court would be on precisely the same footing as any of the courts at Westminster, which left questions of fact to be tried before a court of assize. In that respect, therefore, the Bill was in conformity with the existing system. But, with regard to trials in London, he thought the Bill was open to the objection raised by the hon. and learned Member for Belfast, because he could not understand why a man who was fit to preside in a Court of Probate was not fit to superintend an investigation before a jury, and take their verdict, instead of sitting, as the Judge of the proposed court would do, one half of the year doing nothing, while he sent the business to be transacted by Judges who were already fully occupied with their present duties.


said, he also begged to tender his thanks to the Government for the introduction of that which he believed, upon the whole, to be a very valuable measure. There were, no doubt, objections to some of its details, but the subject was one with respect to which persons holding different opinions must be contented to enter into a compromise, in order that a practical result might be obtained. The hon. and learned Gentleman who had just sat down seemed to think that the system of giving compensation was an unjust one; but, upon that point, he was entirely opposed to the view which the hon. and learned Gentleman had taken, although no doubt there might be, in particular instances, an unfair application of the principle. If they interfered with the rights of public servants, they ought not to do so without making a fair compensation to those persons. With respect to the observation of the hon. and learned Member for Belfast (Mr. Cairnes) to the effect that the issue involving disputed facts should be tried before the Judge of the new tribunal, he would only say that he believed those facts would be more satisfactorily dealt with before a jury directed by a common law Judge, who might, from the nature of his duties, be assumed to be more competent to deal with such questions. He was also of opinion that the House of Lords now constituted an excellent court of appellate jurisdiction, and that there could therefore be no objection to its being the court of last resort under the operation of the Bill. That, however, was a point which might be more satisfactorily dealt with in Committee, and the same remark, he thought, applied to the question of compensation, in reference to which his own feeling was, that the proctors were entitled to consideration. He was the more strongly disposed to maintain that view because, from the evidence which had been given before a Committee of which he had been a member, it appeared that no case of fraud had been made out against the proctors in the discharge of their duties, notwithstanding the facilities which were presented for its commission in dealing with small amounts of property. Seeing that the Bill had been brought forward in a friendly spirit, he thought they ought all to unite, both in the House and out of it, to give their best assistance to forward the Bill when it came into Committee, and to come to an understanding on the few points on which they were likely to differ with respect to it.


said, he should vote for the second reading of the Bill, in the hope that due consideration would be given to the claims of those who might suffer by its passing into a law. There was, in his opinion, but a very slight difference between the entire abolition of an office and the taking away of nine-tenths of the profits which it afforded.


said, that he trusted the Government would not peril the success of the Bill by being too niggardly in reference to the amount of compensation to be granted to those parties whom its operation would affect. He wished particularly to recommend to the attention of the hon. and learned Gentleman the Attorney General the proctors who practised in the various diocesan courts, whose emoluments the Bill would entirely destroy. He would also suggest, whether it was necessary to confine the limit to £1,500 with regard to wills which might be proved in the country. With regard to many probates the amount was not material, and where there was no difficulty, he thought an option should be given either to take it out in the country or to have recourse to the court in London. The point, however, upon which he was most anxious to dwell, was the transfer of the Admiralty jurisdiction to the new tribunal. That jurisdiction was one of the most anomalous character, and if that portion of the Attorney General's proposition were carried out, it would be placed in a more unsatisfactory position than at present. It related principally to the decision of disputed facts connected with shipping, and might, in his opinion, more properly be confided to the consideration of a jury acting under the direction of a common law Judge, than to the Judge of the Court of Probate, or to the Judge of the Court which had hitherto dealt with such cases. The point was one which he should feel it to be his duty to press upon the notice of the House when the Bill went into Committee.


said, he would not enter upon the general principle involved in the Bill. This had been well alluded to by the hon. and learned Member for West Gloucestershire (Mr. Rolt), and he congratulated the House on the presence of that hon. and learned Gentleman, whose ability and knowledge would be of great assistance in its deliberations. The measure was probably as good an adjustment as was possible of this difficult question, which had so often been ventilated, but had never been brought to a satisfactory conclusion. He had some doubts, however, whether it was wise to establish any tribunal which would not possess complete control and authority over all the matters which were likely to be submitted to it. He could not agree with his right hon. Friend (Mr. Napier) that it was advisable, in order to secure a division of labour, to transmit a portion of the testamentary business from one court to another. By one of the clauses of the new Bill, it was provided that the new Judge of the Probate Court should, if necessary, have a common law Judge to assist him, and why, therefore, should he not be empowered to try any issue which might arise? Again, he was fearful that the County Courts, upon which the Bill conferred a jurisdiction in certain cases, would introduce various customs and give many conflicting decisions, unless there was some tribunal to keep them to a uniform and correct standard. The only way in which this evil could be remedied was, by taking care that you had one, and only one, Court of Appeal to which these questions should be referred. As to the question of compensation, that must be left for consideration in Commit- tee. At present, he would only express his concurrence in the thanks given to the Attorney General for settling a very difficult question in the most practical manner perhaps in which it could be settled.

Motion agreed to.

Bill read 2o, and committed for Friday next.