ECCLESIASTICAL COURTS' CONSOLIDATION BILL. (Hansard, 12 February 1836)

§ The Lord Chancellor

said, that in rising for the purpose of laying on their Lordships' Table a Bill for the Consolidation of the Ecclesiastical Courts, and for the more efficient administration of justice in them, he should not enter into much detail upon the subject. At the same time it might not be inconvenient, as the subject was one of great importance, and the grievances it was proposed by the Bill to remedy, of considerable extent, shortly to state the outlines of the intended mea- 325 sure. Their Lordships were doubtless aware of the amazing variety of questions which, according to the existing state of the laws, might be brought under the jurisdiction of the Ecclesiastical Courts; and the reason probably why the country had escaped from many of the grievances and inconveniences which the nature of the existing laws was liable to produce was, that in very many of the cases to which he was about to refer, the powers of these courts had fallen into desuetude. One of the most important jurisdictions of the Ecclesiastical Courts was in questions of probates of wills, and in granting administration of the property and effects of an intestate. In former times, when the property of the country consisted chiefly in land, the importance of this jurisdiction was not so great as it was at the present time, when so large a portion of the property of the country was in the shape of money and other personality. It now became a most important consideration, therefore, how far the law as it stood provided for the due administration of what was required to be done in this matter. Another important branch of the jurisdiction of the Ecclesiastical Courts was, that in reference to matrimonial contracts, questions as to the validity of marriages in the first instance, questions arising after marriage between the parties, and questions as to the restoration of conjugal rights, all questions of the utmost importance in themselves, affecting, as they did, obligations and rights most solemnly entered into and agreed upon between parties, which should not be interfered with except upon sufficient grounds, of pure necessity, all these were questions which the Ecclesiastical Courts had to decide upon. But although these were some of the most important duties of the Ecclesiastical Courts, they were by no means all which fell within their province. These Courts held jurisdiction at present over matters of legacies—a very imperfect jurisdiction, it was true, for in all cases of legacies with trusts attached to them, and in all cases of legacies connected with church or landed property, these Courts were prevented from adjudicating. Their jurisdiction, therefore, upon such matters as these was very limited, and of very little use. Another part of the jurisdiction of the Courts was in matters of tithe. But this jurisdiction entirely ceased in any case of prescription or modus; and so it resulted, that in 326 almost the only cases where the interference of those Courts could be of use, they were prevented from interfering. A very simple course was, therefore, open to every one, upon being sued in one of these Courts upon a matter of tithe, and that was to put up a plea of prescription or modus; and, by so doing, remove the case from the jurisdiction of the Court. Another matter in which the Ecclesiastical Courts now hold jurisdiction was that of churchrates—duties which they were very ill adapted to execute, and which, it was thought, might be much better performed by another process. He would pass over one or two other minor matters in which the Ecclesiastical Courts now held jurisdiction, and which were not included in the provisions of the present Bill, amongst which were questions connected with pews and seats in churches. He proposed to leave the authority of the bishops over the clergy in matters of church discipline untouched in substance, though in form of execution he had some amendments in contemplation. The proceedings at present were not only dilatory, but exceedingly expensive, not only to the party accused, but too frequently to the accuser. Some provisions to remedy this might be introduced in a future Bill to regulate the proceedings with respect to the clergy, and which, would have the effect of giving the bishops a more salutary jurisdiction. Amongst other duties which still attached to the Ecclesiastical Courts, were those which they were said to execute pro salute animæ, as to the suppressing of immoral practices; but it appeared that whenever their attention had been called to matters of this kind, it had been attended with very great expense, and with very little benefit. He would pass over other slighter heads of their jurisdiction, as for instance, against indecent brawling in church-yards &c, in which they possessed very extensive -powers if they chose to execute them. The processes by which the Courts were called upon to act in these cases were those of admonition, penance, excommunication, and others. Statutes of comparatively recent date, whilst they confirmed the principle and nature of the judgment of these Courts, pointed out a different course of action. Having stated some of the powers and duties of these Courts, he would now state the number of them, which was no less than 386. Many of these Courts had been constituted upon 327 a much better footing than others. About 300 of them were peculiarly constituted during the time of popery when jurisdiction was given in these matters to particular monastic institutions, and also to certain manors, the jurisdiction of which remained to the present day. He need hardly draw their Lordships' attention to the very great inconvenience which must necessarily be felt on account of the great number of these courts by all parties who happened to be concerned in matters within their jurisdiction. There being for instance so many courts to which a party might resort for the purpose of proving a will or obtaining administration, how was it possible for any person wishing to object to such a process to find Out where it was being carried on? The course such a person had to pursue was, to issue a caveat; but, amongst 360 courts, which should he resort to in the first instance for the purpose of tendering his caveat? and how long might be not be going from place to place, in hopes of finding out the court in which it was available? It so happened, however, that parties were afraid of applying to any of the Local Ecclesiastical Courts upon matters of this kind, on account of the inconvenient state of the law, by which it was provided, that if part of the deceased person's estates, to the amount of only 5l. was within the jurisdiction of another court, the process, when taken out, would be invalid. In consequence of this it happened that the course generally pursued was to take out probates of wills and administration of the effects of an intestate in the Prerogative Court of London. It was scarcely possible also to suppose that judges could be found for all the Local Ecclesiastical Courts who, aided by counsel, experienced as they themselves should be in ail the intricate points of law on these subjects, should be able to decide upon such matters. An absolute necessity, therefore, appeared to exist for the establishment of some comprehensive and settled plan upon the subject. Another evil resulted from the great number of these courts—namely, the multiplicity of appeals. There was an appeal first to the Bishop's Court, then to the Court of the Arches, and from thence, until very recently, there was an appeal to the Court of Delegates, and there was now a last appeal to his Majesty in Council; and so it happened that parties could appeal to every one of these 328 courts, at every stage of the proceedings, indeed as was very frequently practised, before the cause had stirred a single step. He admitted that that very privilege at present tended greatly to prevent the increase of the other evils which would result from the constitution of these courts parties being generally induced to appeal at once from the inferior courts, as a preliminary step not on account of any matter connected with the merits of the case, but because they were anxious to escape from the authority of an inferior tribunal. The importance of having some general place in which all documents affecting property might be deposited, was a question which had been much discussed. An objection had been raised against this proposal, from an apprehension that it might lead to the publicity of circumstances connected with many persons' titles, which they might wish to keep private. This objection could not apply to the matter of wills, which could not be acted upon till after probate had been granted; and when once this was obtained, the contents of the will itself were open to all who were fortunate enough to find out where it was deposited. Now, if one certain place were fixed upon at which probates on all wills could be obtained, it was evident that persons might more easily resort to them, which he apprehended would be a great convenience. The measure which he was about to submit to their Lordships on this subject, was one which had received particular consideration from many of the ablest authorities of the law. In 1812, the late Lord Stowell proposed a measure in the House of Commons for the purpose of destroying the jurisdiction of the inferior Ecclesiastical Courts. In 1830, an Ecclesiastical Commission was issued, and in 1832, the Report of the Commission appeared, signed by the Archbishop of Canterbury, the Bishops of Durham, Lincoln, St. Asaph, and Bangor, by the then Chief Justice of the King's Bench (Lord Tenterden), by the present Chief Justice of the Common Pleas, by Sir W, Robinson, Dr. Lushington, Sir Herbert Jenner, &c. It was hardly possible to have higher authorities than these; and it was the object of the present Bill to carry into effect, some of, but not all, the alterations which those eminent individuals had recommended. Amongst other of these recommendations was that for destroying all the Local Ec- 329 clesiastical Courts, and the only exception, in respect of which there appeared to exist the smallest question in the minds of the Commissioners, was that of York; as to the propriety of maintaining which, there was stated in the Report to remain some doubt amongst the Commissioners. But he had the sanction of what he was about to propose, not only of the Ecclesiastical Commission, but also of the Real Property Commission, which concurred in recommending the consolidation of these Courts. The method by which the present Bill was intended to effect this object, he would now very briefly state to their Lordships. In the first place it was proposed, that there should be one general Court in London for proving all wills; the jurisdiction of all Local Ecclesiastical Courts being entirely abolished. The Bishops, however, it was proposed, should still hold their jurisdiction over their clergy, excepting only in criminal proceedings, in which it was proposed to abolish it altogether. The jurisdiction in matters of tithe was also to be taken from the Ecclesiastical Courts, which were found to be wholly insufficient in authority for the purpose, and would be transferred to the Court of Exchequer. The jurisdiction of these Courts in respect to Church-rates would also be abolished, and all disputes connected with those payments subjected to (he same course as those connected with Poor-rates—viz. appeal to Quarter Sessions. The Bill also abolished the authority of the Ecclesiastical Courts in the repression of immoral practices, which would) be left to the ordinary operation of the Common or Statute-law. The Bill further abolished the power of these Courts over cases of defamation, and regulated the mode to be pursued in the sequestration of livings, a matter of great importance to clergymen, and all those connected with them. These were the general objects of the Bill which he had the honour of laying upon their Lordships' Table, and which he hoped would prove satisfactory to them, and beneficial to the public.