The Lord Chancellor
said, that he now rose to call their Lordships' attention to the Second Reading of the Ecclesiastical Courts Bill. This question had, at different times, been submitted to their Lordships' consideration. There was little of novelty in it, and in what he should have to state on the subject, in pointing out the general scope and nature of this Bill, it would not be necessary for him for that purpose to occupy many minutes of their Lordships' time. It might be convenient, however, that he should call their Lordships' attention for a short time to the history of these proceedings. It would be in their recollection, that in the year 1829, a Commission was appointed to consider the constitution of the Ecclesiastical Courts, and the general administration of justice by those tribunals. He had the honour, as a Member of His Majesty's Government at that period, of proposing the appointment of that Commission. The Commission made its report in the following year. The Commissioners consisted of several right rev. Prelates, some of whom were now present, and of many eminent persons in the various Courts of Law and Equity, and in the Ecclesiastical tribunals of this country. They considered the subject very fully and very minutely, and the result of their labours was a very comprehensive and talented report, drawn up with great ability and great judgment as he, (the Lord Chancellor) had reason to believe, by the Judge of the Consistorial Court, and that Report was afterwards presented to the House. Nothing was done immediately upon the recommendation of that Commission; but in the year 1833, a Committee of the House of Commons was appointed, for the purpose of again investigating the subject. The Report of the Commission was submitted to its consideration, and some of the Members of the Commission were examined before it as witnesses—he should mention particularly his late noble and learned Friend Lord Tenterden, and the present Chief Justice of the Court of Common Pleas. That Committee made its Report, corresponding, however, not entirely with the Report of the Commission, but in substance it accorded with that Report. In consequence of these proceedings, and the inquiries which formed the source of them, a Bill was introduced into that House by his noble and Learned Friend (Lord Brougham) who at that time held the Great Seal. The object of that Bill 1313 was to carry into effect the Report of the Commission. He (the Lord Chancellor) did not know precisely for what reason, but the fact was, that that Bill, after it had proceeded to a certain stage, was not prosecuted further. In the year 1835, after his noble and learned Friend had left office (he thought he was correct in that respect) the same Bill or a similar Bill with some alterations and modifications, was presented by another noble and learned Friend, who, in introducing it, made a very full statement of all he circumstances which had led to the proposed alteration of the law. Nothing, however, took place on that Bill, and he presumed for this reason, that almost contemporaneously with the bringing in of that Bill, Sir F. Pollock, who by that time had succeeded to the office of Attorney General, had brought in a Bill on the same subject in the House of Commons. He said that Sir F. Pollock asked leave to bring in a Bill. Whether or not, that Bill was brought in in consequence of the permission which was given, he was not in a condition to inform their Lordships; but almost immediately afterwards that hon. and learned Gentleman resigned his office, and afterwards his noble and learned Friend who was now sitting at the Table (Lord Campbell), and who succeeded to the office of Attorney General in the Government which was then formed, he also introduced a Bill corresponding in substance, or nearly so, with the Bill which had been brought in or suggested by his predecessors. That Bill was brought into the House in June. It was founded not entirely on the Report of the Commission, but rather on the Report of the Committee of the House of Commons, which deviated from the Report of the Commission in a particular to which he should presently have to call their Lordships' attention. Though that Bill was introduced in the month of June 1835, and although Parliament continued its sittings until the month of August in that year, no further proceedings took place in respect of it. Why that course was pursued by his noble and learned Friend he was not in a condition to explain. He apprehended that his noble and learned Friend felt some difficulties in his way; which induced him to abandon the measure for that Session. In the following year, 1836, the noble and learned Lord who preceded him in office (Lord Cottenham) introduced a similar Bill into this House. That Bill was read a first, and was read a second time and it was referred to a Committee, 1314 and a Report was made on it; but owing to some cause which his noble and learned Friend had not explained to him, and which he was, therefore unable to communicate to their Lordships, that Bill proceeded no further. That measure was also abandoned, and he (the Lord Chancellor) apprehended that it was abandoned in consequence of some difficulties which his noble and learned Friend anticipated in some other place, for considering the important nature of the subject, he was convinced that his noble and learned Friend would not have abandoned it, unless he felt it to be impossible to carry it through Parliament. Thus the matter rested. His noble and learned Friend during the time that be continued in office, until 1841, never resumed that measure, and he (the Lord Chancellor) could only explain that course of proceeding on the part of his noble and learned Friend in this way—for, knowing what he did of his industry and his desire to accomplish every improvement in the law which he thought practicable, it must have been from the conviction on the mind of his noble and learned Friend, that it would be impossible for him, with any reasonable prospect of success, to have carried that measure into law. This brought him to the last attempt which had been made by the Legislature on this most interesting and important subject. He meant the proceedings which took place in the other House last Session. A Bill, in part the same, extending as far as the measure of his noble and learned Friend's did, was brought into the other House of Parliament under the auspices, in fact, by a Member of Her Majesty's Government. That Bill was debated on the Second Reading with great ability on both sides. An adjourned debate took place, and though the Second Reading was carried, the circumstances were such as, he had reason to know, to make it impossible to carry the Bill in the shape in which it had been presented to the House. It was modified for the Committee—alterations were made—essential alterations in the structure of the Bill, to which he should have to advert, were made, and it was referred pro formâ, to a Committee, but the Session had arrived at such a period that it was impossible to carry it through that Session of Parliament, and the measure was not further proceeded with. Under these circumstances, he now felt it his duty to submit that measure, so modified, to their Lordships' consideration. He had thought it important to give this history of the Commission—of the Com- 1315 mittee of the House of Commons, and of the various attempts that had been made by various Administrations, and in both Houses of Parliament, to carry into effect the recommendations of the Commissioners. These attempts had hitherto failed, but he was desirous of carrying these recommendations into effect (though he believed it was impossible to carry all their recommendations into effect), and he wished to go as far as he could towards reforming the jurisdiction of the Ecclesiastical Courts by carrying into effect the Report of the Commissioners. He thought that their Lordships would concur with him in thinking, that nothing could be done for the improvement of the Ecclesiastical jurisdiction beyond that which he could now recommend to their adoption. If they thought that the measure was good—if they thought that any advantage would be derived from the proposal, he entreated them not now to reject it, because it did not, at first sight, appear to accomplish all that they were desirous of obtaining. He would now call their attention to the details of the measure. They were simple, but some of them were very important—first, with respect to the constitution of the Ecclesiastical Courts, it was proposed by this Bill to carry into effect the recommendation for the union of the Archiepiscopal Courts, which were known respectively by the names of the Arches Court and the Prerogative Court. This recommendation had proceeded both from the Commission and the Committee of the House of Commons. Nothing could be said in objection to this proposal, at least, as he apprehended. These two Courts were presided over habitually, though not necessarily, by the same Judge, they were attended by the same Bar, they were held in the same hall, and, for all practical purposes, they must be considered one Court. They were, however, at present, distinct Courts, and by uniting them a great advantage would accrue to the public. As long as they were divided these Courts had two sets of magisterial officers, but, by uniting them one set of officers would be dispensed with, and this would tend to release the public from a considerable charge, and, therefore, he apprehended there could be no objection to this proposal. He proposed also by this Bill to adopt the same course precisely with respect to the Courts at York. These Courts were subject to the same objection. This also was recommended by the Commissioners. He proposed, therefore, that 1316 there should be one Archiepiscopal Court at York, and one Court of the same description at Canterbury. The next point was the Diocesan Courts. Their Lordships were aware that every Diocese in the kingdom had a Court for Probate and for contentious jurisdiction in Ecclesiastical matters. These Courts were coeval with the existence of the British Constitution. Justice had been administered in them in all times in the matters to which he had referred. He proposed that these Courts should be continued. It was recommended by the Ecclesiastical Commissioners, on the contrary, that they should be abolished. It would be for their Lordships to say whether they would sanction a Bill for continuing these ancient tribunals of the country. It was said, that they imperfectly performed their duties; that they were not presided over by persons qualified to administer justice, and various objections were taken to their constitution. It did not appear to him to be a satisfactory reason to say that these ancient Courts should be abolished because some abuses might have crept into them. If the persons who presided over them were not duly qualified, in reference to the law which they had to administer, it was competent for their Lordships to rectify that evil. If there were any other imperfections in the working of these Courts, would not the same remark again apply? There could be no reason for abolishing these local Courts, which had existed for so long a period, if, by removing the present abuses and imperfections, they could be rendered competent to discharge all the duties with which they were entrusted. It was a part of this measure, not merely to continue these Courts, but to render them more efficient, by appointing individuals to preside over them duly qualified to administer the Ecclesiastical Law—either Advocates properly qualified or members of the other Courts of Justice in this country, duly qualified to administer justice impartially and correctly between the suitors in these Courts. This was one of the objects of the Bill, and he intreated their Lordships to consider well before they consented to abolish these tribunals; and, at all events, before they did so, to be thoroughly satisfied that they could not remodel them so as to make them advantageous for the public. Was there no alteration in the constitution of these Courts—no change in the character of the individuals who would preside over them—could no amendments be made which would make 1317 them more efficient for the purpose for which they were established? If they thought that this could not be effected, why then abolish them; but if, on the other hand, on a consideration of the whole of the proceedings, they should be of opinion, that with persons qualified to preside over them, and with proper subordinate officers, justice could be impartially and effectively administered by them, he must call upon their Lordships to continue these tribunals. There was another set of Courts very widely scattered throughout the kingdom, which he must class under the general description of Peculiars. Some of these either belonged to the Crown, some to the Archbishops, or to the Bishops, or to Deans, or to Rectors, or in some instances, even, to private individuals. These Courts were in number between 300 or 400. They were scattered all over the country, exercising the same jurisdiction, but restricted within narrow and confined limits. The objection to them was, that they had so little business—that the emoluments derived from them were so small—that it was impossible that they could be presided over by persons competent to administer justice properly between the suitors; it was also impossible to expect that the ministerial officers themselves could be well qualified, for it required a considerable degree of practice and experience to qualify parties for the discharge of ministerial duties in the administration of this branch of the law. These Courts had jurisdiction in granting Probates—in granting Letters of Administration—and as to all the contentious jurisdiction belonging to the Ecclesiastical Law. In many instances, in granting Probates or Letters of Administration, there was no controversy whatever—there was no contest—and consequently there was no person to watch the proceedings; there was no person to check any irregularity, or to inform the officer where he was ignorant. There might be what was called "truth in the common form," but the proceedings were ex parte. Ignorance on the part of the officer might, therefore, to a most important extent, affect both the rights of property and the rights of parties. But on this point he need not enter more into detail. His proposal was, to abolish all these Courts. This proposal had been recommended by the Commissioners; it had formed part of every Bill that had been introduced on the subject, and he was sure that their Lordships could have no objection to it. Then how would the system stand? In appearance, 1318 at least, he must submit most admirable. In every diocese throughout this kingdom there would be one tribunal for the purpose of dispensing law, for the purposes which he had mentioned. In the provinces of York and Canterbury there would be appellate tribunals, which would keep the law steady and uniform. That was the system which he recommended, and if they could get the law well administered, and if they could get able judges, as the heads of these tribunals, it did not appear to him that any superior system could be established. He must admit that in what he was now stating he was acting adversely to the opinions of the Commissioners, to the opinions of the Committee of the House of Commons, and to the sentiments of many persons for whose views of the subject he entertained the very highest respect. What, therefore, he stated, he stated with some hesitation. He did not give his opinion as one which ought to outweigh the opinions which he had referred to, but he was stating that if he had the power to abolish these Diocesan Courts, he ought to consider for a longer time whether by so doing he should be adopting a reasonable course of proceeding. But he had no such authority—he had no such power. He knew a noble and learned Friend of his who would support him. He meant his noble and learned Friend at the Table (Lord Campbell). He was proud to believe that, for he knew no man more steady, more constant, more firm, more unwavering, in any opinion which he had once deliberately expressed, and expressed after opportunities of full deliberation and inquiry, than his noble and learned Friend; and he knew that his noble and learned Friend, when Sir F. Pollock, as Attorney-General, brought in this Bill, one object of which was to abolish these Diocesan Courts, that proceeding was protested against by his noble and learned Friend. His noble and learned Friend said that be never could consent to such a course. He said that the systems of centralisation might be carried too far; that these courts were of great accommodation, and a great facility to persons residing in the provinces, and that to bring all the proceedings to London would be a dangerous and mischievous measure. He knew, from the usual sources of information, that his noble and learned Friend made use of these expressions. He also knew from communications which he had had with persons who were present in the House at the time, that these were the sentiments ex- 1319 pressed by his noble and learned Friend—and as he had before stated, he had so much experience of the constancy of his noble and learned Friend—of his firmness and his devoted perseverance in any opinion which he had once held, that he was convinced he should receive his support in carrying the measure which had been introduced to-night. But it was not upon the authority of his noble and learned Friend alone that he rested his support of this measure. He referred to another authority—he meant the authority of Lord Stowell, than whom there could be no greater authority in this country—a man who was most deeply learned in Ecclesiastical Law, and who was most profoundly conversant with every part of this subject. He thought that he (the Lord Chancellor) was in the House of Commons—he knew that one of his noble and learned Friends was—when Lord Stowell introduced his Bill on this subject; and what were the objects of that Bill? He proposed to maintain the Courts of the two Provinces and the Diocesan Courts, but he proposed to abolish all those Courts he (the Lord Chancellor) had designated under the general name of Peculiars. In fact, it was an outline of the Bill which he was now submitting to the House. There was really something whimsical in the course which was pursued by those persons who were opposed to the continuance of these Diocesan Courts. He heard on every side clamours for local tribunals, for bringing law and justice to every man's door. Here they found a system established which accomplished that object in reference to one important branch of law. That was the system established, and they were asked to proceed in an inverted order, and to abolish these Courts. Instead of altering these local tribunals they should endeavour to reform them. Make the experiment. As wise statesmen and legislators they should not overturn that which was established until they were satisfied that they could substitute for the existing system something better. He had had some experience—he had seen systems overturned, and other systems adopted in lieu of them; but in few instances had been realised the views of those who supported the alteration. Such was the infirmity of human nature, difficulties, objections, and obstructions which had not been before anticipated, and had not been guarded against, were found to attach themselves to the new system, which generally in its details was 1320 found to work imperfectly and disjointedly, and the measures which were found necessary to adjust it, the trouble, the time, the expense, and the anxiety, if applied to the old system which had been subverted, would in most cases have accomplished the object wished for more completely, more satisfactorily, and, in all probability, with less trouble and expense. He had thus stated shortly what the nature of this Bill was, as far as related to the alteration of the jurisdiction. He had stated the limits within which it was proposed to confine it. He must state that it was not open for him to decide in his own mind which was the best system, for he was satisfied that the system recommended by this Bill was the only one that was practicable. An attempt to do more might frustrate the object that they all desired, and they ought not, like froward children, to reject that which was offered to them, because there was something else which it was impossible for them to obtain. He would now state the minor objects of the Bill, which, trifling as they might appear, were really of considerable practical importance. One point recommended by the Commissioners was the alteration of the law with respect to "donatives." Their Lordships were aware that, in reference to a donative the Clerk was appointed to the Church by the authority of the grantor. It was not at all necessary that he should be presented to the Bishop, for institution or induction, and, when he was presented to the Church, the Bishop had no authority over him, and he was not bound to attend to the visitation of the ordinary. One of the objects of the Bill, therefore, was to place donatives on the same footing as "presentative benefices." This would make the system more uniform, and there would be no person in the Church who would be exempt from the jurisdiction of superior Ecclesiastical authority. Another subject to which the Bill referred was that of Tithes. Their Lordships knew that the Ecclesiastical Courts had jurisdiction with respect to Tithes. It was, however, a very limited jurisdiction, and it was one subject to the constant interference of the Courts of Common Law, and great inconvenience was unavoidably the consequence. It was therefore proposed, in conformity with the recommendation of the Ecclesiastical Commissioners, to take away this part of their jurisdiction, for the cases relative to Tithes which could conic before them had already been greatly reduced by the operation of 1321 the Tithe Commutation Act. Another subject to which the Bill related was the power of sequestration. The object of the Bill was to give relief to all those difficulties and obstacles which beset that branch of the Ecclesiastical Law; and to put the whole system in that respect upon one simple and intelligible footing. He had now stated all the alterations proposed to be effected by the measure. The main question upon it would, he was aware, arise on the subject of the Diocesan Courts. But with respect to another subject which be considered of the greatest importance, and which had just been suggested to him by his noble and learned Friend near him (Lord Brougham)—namely, the system of bona notabilia, he should take leave to add a few words. By the Ecclesiastical Law, as it at present existed, any tribunal granting the power of Probate to a Will within the limits of its jurisdiction, was powerless if the testator left any sum above 5l. in any other jurisdiction, and the parties to whom the devise was made would have to apply to the Prerogative Court. That course was attended with great inconvenience and expense—and that inconvenience was all the greater, because a Probate granted in ignorance of the fact would be altogether void for the parties. There was no disposition on his part to disguise that fact. But there were at present 350 Courts of Peculiars, to each and all of which that difficulty applied, and from which that mischief resulted. All these, however, were proposed to be swept away by the Bill before their Lordships, and the jurisdiction in the matter of bona notabilia confined entirely to the Courts of the Diocese, each of which was to have it over a great extent of country. His noble and learned Friend (Lord Cottenham) had said, that there were nice questions of law sure to arise on the subject of bona notabilia, but he (Lord Lyndhurst) could not agree with him on that point. Nice questions as to fact might arise he would freely admit, but all questions of law which could arise on it had been long since settled by a variety of decisions. The only difficulty, therefore, would be, as to the facts; as there would be none as to the law. He felt some curiosity to know the ground (Lord Lyndhurst) admitted that the way upon which his noble and learned Friend to get rid entirely of the inconvenience that existed respecting bona notabilia would be to abolish altogether the jurisdiction of the Prerogative Courts. But then the question arose whether, in doing so, too high a price would not be paid in propor- 1322 tion to the advantage that would be gained by the community. Frankly he was of opinion that such would be the case. With the Bill which he had introduced to their Lordships, he did not think that the evil complained of in that respect would be felt to any great or serious extent; and, under any circumstances, he was of opinion that there were ways and means of averting it. For instance, it might be enacted, that if measures were not taken to set aside a Probate within a given time, that Probate should be considered in law as valid; and it might also be made law, that all acts of the party to whom such Probate was granted should be considered valid until that Probate had been set aside. Those provisions would correspond with the clause in the Bill by which all void or voidable Probates were to be sanctioned until they should have been superseded. Those were the views be (Lord Lyndhurst) took of the question. He was quite satisfied that the measure, as it stood, was advantageous and important to the public at large, and he, therefore, intreated their Lordships to pass it into a law. If their Lordships thought, on further consideration of the subject in Committee, that they could safely adopt the suggestions and plan contained in the Report of the Ecclesiastical Commission on the point last mentioned, it would be perfectly competent for them to strike out the clause affecting it, and substitute whatever else they chose in its place. But be advised them not to do so without exercising the utmost caution; and, above all, not to attempt it unless they were fully satisfied, after the most careful and diligent inquiry into the subject, that the Establishment of the Diocesan Courts on an enlarged and improved footing, was not advantageous to the community, and that these jurisdictions, by the appointment of able judges, were not capable of being made lit instruments in the discharge of their duty, namely, in administering properly the Ecclesiastical Law of the country. Under these circumstances, he should move the second reading of the Bill by their Lordships.
§ Lord Cottenham
said, he had certainly felt some curiosity to know the ground upon which his noble and learned Friend was about to ask their Lordships to assent to the principle of the maintenance pf all the Diocesan Courts, and when his noble and learned Friend stated that it was impossible to carry any other measure than that new proposed, he was more surprised, 1323 because it could not be for want of Parliamentary power either in that or the other House, that the Government would be prevented from carrying a different measure. There might be inconveniences and difficulties into which he should not further inquire, which made his noble and learned Friend unwilling to abolish these Courts, and even induced him to bestow a panegyric upon them, although condemned by everybody who had investigated the subject, at least for the last twelve Years, for such was the effect of the report of the Ecclesiastical Commissioners, the real Property Commissioners, a Committee of the House of Commons, a Select Committee of their Lordships' House—all concurring in this, that the abolition of the Diocesan Courts was essentially necessary, and with a view to any real improvement in the administration of the Ecclesiastical Law. His noble and learned Friend had been a party to the inquiries that were made, and must have concurred in the opinions expressed. He must have been of the same opinion at the conclusion of the last Session of Parliament, and what had changed his opinion and converted him into a strenuous advocate of those Courts, he had not informed the House. Their Lordships were aware that the Ecclesiastical Courts had jurisdiction in all matrimonial questions, and over all testamentary documents and letters of administration, and in what way as the system existed, were these important questions decided? By 340 different Courts, not, all having the same extent of jurisdiction, but all of them having jurisdiction of a similar nature in these important matters. His noble and learned Friend had stated good reasons why some of those minor Courts should not be allowed to exist; but his noble and learned Friend did not bear in mind that the same reasons which he had himself advanced for the abolition of the minor Courts applied to the Diocesan Courts, and that the panegyric which he bestowed upon the one ought to be extended to the other. The Peculiar Courts were ancient as well as the Diocesan Courts, and if antiquity was a merit, they possessed it in common. His (Lord Cottenham's) object was to show that the same reasons which made his noble and learned Friend condemn the small jurisdictions should lead their Lordships to the conclusion that the Diocesan Courts should also be abolished. He must call the attention of their Lordships to the extraordinary state of the law, although he was not prepared to say that a 1324 measure could be at present laid before Parliament, which would effect a satisfactory adjustment of the anomaly of which he complained, but which must sooner or later become a subject of legislation; he referred to the absurd distinction which existed with regard to the jurisdiction upon a will affecting land and one relating to money. The same document generally bequeathed both land and money, where the testator had any land at all; but not only were the tribunals which were to adjudicate upon the subject-matter contained in the same piece of paper different from the first, but while, with respect to money the probate of the will was conclusive as to title, a document bequeathing freehold land might be tried twenty or thirty times over, and in short without any limit, unless a Court of Equity interfered. So far, as regarded money, it was the subject of probate. The Ecclesiastical Courts had nothing to do with realties or freehold property; but money and leaseholds for years came under the jurisdiction of the Ecclesiastical Courts, and might be proved in solemn form—the judgment of the Ecclesiastical Courts against parties attempting to prove in that form being final against them, so far as money or personal interests were concerned. With respect also to freehold property, there existed no means of establishing a trust under devise by the Ecclesiastical Law; in such a case the Court of Chancery must be applied to for the purpose. These were not the only inconveniences that existed. The tribunals of appeal were different in the two cases. For if a question of law arose, whether real property should pass by a will, it ultimately came before that House; but if the question related to personal estate, it went before the Judicial Committee of the Privy Council, and there would probably be contradictory decisions upon the same document. He was not observing upon these points for the purpose of founding objections to the Bill upon them, because it did not profess to remove them; but he objected to establishing or new modelling thirty or forty courts having jurisdiction in wills relating to personality, being satisfied that it would be necessary, sooner, or later, to establish a principle upon which all wills should be referred to the same tribunal. He admitted, that some good would be done by abolishing the Peculiars, but he objected to new modelling the Diocesan Courts retaining to them the power they possessed over wills bequeathing personal 1325 property. Those matters had been fully considered by the Commission which was appointed under the Government of the noble Duke, which made its report in 1832. The time which elapsed between the period of the Commission being issued and the making of the Report, the body of evidence which had been taken, and the names of the eminent individuals who had been so properly appointed, entitled their recommendations to very great weight with their Lordships. There were upon the Commission the Archbishop of Canterbury, the Bishop of London, the Bishop of Durham, the Bishop of Lincoln, the Bishop of St. Asaph, the Bishop of Bangor, Lord Tenterden, Lord Chief Justice Tindal, Lord Wynford, Sir William Alexander, Sir John Nichol, Sir Christopher Robinson, Sir Herbert Jenner, Sir E. Carrington, Dr. Lushington, and Mr. R. C. Fergusson. This combination of ecclesiastical and judicial authority, ensured a mass of information which would induce their Lordships to give the snore attention to their Report. And what was their Report? The Commissioners stated, that although there might he some doubts as to some particulars, yet the Commissioners were united in the recommendations contained in the Report. And amongst these recommendations the first and primary one was the abolition of the Diocesan Courts. The Commissioners proposed in the body of the Report to retain the Provincial Court of York, making it the Ecclesiastical Court for the province of York; and the Provincial Court of Canterbury the Ecclesiastical Court for all the parts of the country which came under the jurisdiction of the see of Canterbury. But they stated in the conclusion that doubts were entertained whether or not it was expedient also to abolish the Provincial Court of York, and transferring the whole jurisdiction to the Court of Canterbury. Upon this the Commissioners expressed no opinion, but left it open for consideration. With respect to that part of the jurisdiction of these Courts to which his noble and learned Friend had last referred—the subject of bona notabilia—there could not be a greater grievance than the law upon that point; but like many other grievances it produced some good. The rule was at present, that if a person died and had property to the amount of 5l. in more than one Ecclesiastical Jurisdiction, either of them could grant a probate. What was the consequence? Not knowing where the whole of a man's property might be situate a pro- 1326 bate might be obtained, and then, finding that he had 5l. worth of property elsewhere, there would be an end to the probate. There was hardly an estate of any value in the country which was not in some way or other affected by settlement. It was the constant habit to introduce into settlements terms of years for particular purposes, so that in investigating the title to an estate let their Lordships conceive the difficulty. There was a term of years, then the title could not be made good without getting in that term—then one must trace the representative of an individual; he would find that, the deceased died in some particular jurisdiction in the country; could he then venture to administer to the deceased's estate, which be must do in order to get that term? If he did, he would get the term, and might then think perhaps that he was entitled to the estate, but subsequently finding that the deceased had been possessed of property of the value of 5 l. in some other jurisdiction, he would have to set to work and go over the same ground. That constantly happened. The evidence given before the Commission was quite conclusive as to the extreme danger and the great expense attendant upon these investigations. All that arose from the doctrine of bona notabilia, and formed one strong leading argument for the abolition of the Diocesan Courts. The extent of the evil had led to the very general process of taking out a prerogative probate. The result of continuing the 380 separate jurisdictions where the property might be in different jurisdictions, was quite obvious; and the plan proposed by his noble and learned Friend was subject to the same objection, in cases where part of the property might lie in one jurisdiction, and part in another, for the expense and trouble which would attend such a case, under the proposed arrangement, would be quite as great as they were already. It would increase another grievance, for it would have a tendency to make people go to the Diocesan Courts instead of the Prerogative Court. The subject had been frequently enquired into, and the recommendations had been all of a similar nature. The Report of the Ecclesiastical Commissioners recommended the abolition of the jurisdiction of those Ecclesiastical Courts in matters affecting Legacies, in brawls in churchyards, in defamation, in incest, in adultery, and in Church-Rates. Now, this Bill appeared to have for one of its objects to give extended jurisdiction to 1327 Ecclesiastical Courts in matters affecting legacies; but the only satisfaction he (Lord Cottenham) had, as regarded that proposal to extend the jurisdiction, was, that it would not be effectual, as the Ecclesiastical Courts would be incapable of exercising that jurisdiction. There were no complaints of the Equity Courts. Why share their jurisdiction with other Courts wholly incompetent to it? Before the Ecclesiastical Courts could act in the case of a legacy, the functions of a Court of Equity, which it did not possess, should be fulfilled—the debts of the testator should be got in—receivers should be appointed for the estate—the devise should be apportioned—and, in short, every thing should be done which it was incompetent for an Ecclesiastical Court to perform. If a legacy was charged upon land, they could not stir; and in marshalling the assets of the estate of a testator they could not move. Yet, the Bill of his noble and learned Friend contained Clauses continuing the power of interference in them, and even extending it in some instances? Having directed the attention of their Lordships to the very important jurisdiction which it was proposed to extend, he should now make an observation upon the proposal with respect to the Judges of those Courts. The Judges of those Courts were not appointed by le Crown as the Judges in the Courts of Law were, but by individuals, and the Bill did not propose to alter the mode of their appointment. Now it should be recollected that it might frequently happen that questions affecting some of the highest and most important interests in the country might be decided by those Judges; by Judges not acting upon authority derived from the Crown, or the Parliament, but appointed by individuals. If such great powers were to be given to Judges, then it was only just and fair that the public should have the protection that the persons appointed to the office, however respectable they might be, should not be appointed by individuals. The Bill proposed that the Diocesan Courts should be presided over by Barristers of a certain standing, which was certainly an improvement. It was proposed that they should hold their office during good be haviour, and to that he should certainly make no objection; but if there were grounds to believe that the conduct of any one of those Judges was not such as it ought to be, and that it would be expedient to remove him, how was it proposed to effect that object? it was proposed that he should 1328 be removed in the same way as the Judges of the Superior Courts of Law. How was that done? By an Address to the Crown, so that in such a case the Parliament would have to Address the Crown, praying for the removal of a Judge appointed not by the Crown, but by a Bishop. That must be the way in which it was intended to proceed, for he presumed it was not intended that the Parliament should Address the Bishop for the removal of the Judge. If the Judges were appointed, on the contrary, by the Crown, that absurdity would be obviated, and the public would have a guarantee in the responsibility of the Government to Parliament for the propriety of the appointment? That proposition, as regarded the appointment of these Judges, was made in several Reports on the subject of Ecclesiastical Courts; and there was a provision to that effect in every Bill that had been brought in since the subject had been enquired into until the introduction of the present Bill. The Commission appointed to enquire into Ecclesiastical matters made a Report on the subject in 1831 or 1832, and the Commissioners of Enquiry into the portion of it which referred to Real Property, had it also brought under their attention in consequence of the evils that had arisen from so many outstanding terms, which he before described to their Lordships. That Commission consisted of individuals eminently qualified to form an opinion, as their Lordships would see, when he described to them the men of which it was composed. His noble and learned Friend near him (Lord Campbell) was at the head of the Commission; there were two Masters of the Court of Chancery upon it, and there were four of the most experienced conveyaneers in London also Members of it. No Commission could be composed of individuals better qualified to form an opinion than that Commission; and they all agreed in recommending one Court of Probate and Administration. He should also call their Lordships' attention to the recommendation of another Commission which, from its composition, might be looked upon as the highest authority. It was the Committee which was appointed by the House of Commons in 1833; and when he read the names of some of those who composed it, their Lordships would sec the weight which any recommendation coming from it ought to carry. Sir J. Graham was at the head of the Commission; and amongst those who composed it were Sir Robert Peel, Sir Frederick Pol- 1329 lock, Sir John Nichol, Dr. Lushington, the present Chancellor of the Exchequer, and Mr. Abercrombie. Those were names which their Lordships would admit were deserving of the very highest respect. It was a Select Committee to inquire into the Jurisdiction of the Admiralty Courts, and the connection of some of these Courts with the see of Canterbury led to the inquiry affecting the subject now before them. In the report of that Committee they recommended the abolition of all the Diocesan Courts, arid the appointment of a Court for the settlement of questions of Probate and Administration—it also recommended the abolition of the Jurisdiction of the Courts in the Diocese of York, and that the whole Ecclesiastical Jurisdiction should be placed in the Court of Canterbury, and that the Judge should be appointed by the Crown. That mode of appointment was approved of in the report of the Ecclesiastical Commissioners, and in the Report of the Real Property Commissioners. It would thus be seen by their Lordships that there was a large mass of authority in favour of the abolition of the Diocesan Courts. In 1836 there was an inquiry before a Committee of their Lordships' House upon the subject now before them, and in the same year he (Lord Cottenham) introduced a Bill, embodying the alterations that had been recommended. His noble and learned Friend (the Lord Chancellor) had expressed a considerable degree of curiosity to know what had become of that Bill which he (Lord Cottenham) brought in during the year 1836, and he would endeavour to satisfy his noble and learned Friend's curiosity on that point, or rather to assist his memory as to what had happened to the Bill. In 1836 he brought in a Bill for the purpose of carrying into effect the recommendation of the Ecclesiastical Commissioners, and on that occasion his noble and learned Friend, if he remembered correctly, moved to have it referred to a Select Committee. It was referred to a Select Committee, and his impression was, that it was referred to that Committee on the Motion of his noble and learned Friend (the Lord Chancellor)—he was confident, at all events, that it was not moved for by any noble Lord on the side of the House at which he (Lord Cottenham) was in the habit of sitting, a fact which would appear quite evident to their Lordships from the list of the names which composed the Committee. Out of twenty names, there were only six names of noble 1330 Lords who were in the habit of supporting the Government then in office. It was, however, immaterial from what side of the House they were selected for the purpose of instituting that inquiry, but it was a Committee which, like the others, consisted of individuals whose names were a guarantee of their ability to form an opinion, and of the respect which was due to their recommendation. Amongst the names on that Committee were the Archbishop of Canterbury, the Lord Chancellor, the President of the Council, the Earl of Devon, Lord Eldon, the Bishop of Lincoln, the Bishop of St. Asaph, the Bishop of Bangor, Lord Ellenborough, Lord Langdale, Lord Plunkett, Lord Denman, the Marquess of Lansdowne. The Committee, after frequent meetings, made a short report, from which he should read one or two passages. Before that Committee, as before all the others, there was an inquiry into the objections that were made to the abolition of the Ecclesiastical Courts. The objection was this:—It was said, that at present there was considerable advantage in cases where persons possessed of small properties died, as the next of kin or the representative could prove the will, or take out Administration, in the district near where the party so dying had presided. In cases of large properties, that argument could not have effect, for it was not to be supposed that such large properties could be confined to one Diocese, generally speaking; but then in such cases they were brought before the Prerogative Court. It was, however, alleged that in cases of small property, there was great public advantage in the power to prove the will or the administration near the place where the person had lived. The report of the Committee to which he was referring, adverted to the Report of the Ecclesiastical Commissioners, to the Report of the Real Property Commission, and to the Report of the Committee of the House of Commons on the subject; and having referred to those Reports, their Lordships' Committee stated that they were unanimously of opinion, that it was expedient that throughout England and Wales the Ecclesiastical Jurisdiction in Probate and Administration should be abolished, and that one Court should be established in London to be the only Court of Probate and Administration; and it was recommended also, that consistently with this alteration, arrangements should be made for securing to persons living at a distance from London all the convenience 1331 and advantages which they received from the Ecclesiastical Courts. It appeared from the Report of the inquiry respecting Ecclesiastical Courts that four-fifths of the cases of Contention were in Doctors' Commons, and that the greater part of the business was "common form" business—that was, when a person dies, the necessary and usual proofs were made and the Probate was granted, no one being called on to disprove it; but if it were afterwards disproved, application was made to recall it, the Probate standing, however, if not disproved. In the country an officer, called the surrogate, took the necessary proofs, being empowered to administer the oaths, and if there was no will he took the proof necessary for the granting of Letters of Administration, and having transmitted them to the higher authorities, the Probate or Letters of Administration were in due course returned. It was said, with reference to the appointment of a Court of Probate and Administration, that in the country there was usually a great anxiety to see the will of the deceased person amongst those who expected something under it, or who, being next of kin, were desirous to see if they were excluded by the will; and that if those documents were sent to London, and kept there, they would necessarily be deprived of the opportunity of seeing them. To meet that difficulty, the Committee recommended that the documents should be left in the hands of the surrogate for fourteen days after the death of a party, in order that all those interested might have an opportunity of seeing them, and at the expiration of fourteen days the surrogate should transmit to the Court in London those documents, in order that they might be registered there; and after such registry copies might be sent to the country, in order that those interested might have an opportunity of inspecting them near their places of residence. But it was recommended that there should be one general register of those documents in London. The Committee stated that they were of opinion such an arrangement would be of great public advantage, and would remove many evils that now exist; for whilst the central registration would produce general advantage and convenience, there were means provided by which inspection of the wills in each diocese might be afforded within the diocese; and all the advantages of the present system, as regarded the proofs of wills, or for administrations 1332 in cases of small property, would be secured by providing means to administer or prove the wills for the survivors in such cases. That objection was therefore met by this proposal; but another question arose, and it was this—some right Rev. Prelates, and other Church dignities said, if you abolish those Courts and this jurisdiction, how shall we exercise a jurisdiction over our clergy? It was necessary to provide means for that jurisdiction, and he (Lord Cottenham) brought in a Bill for that purpose. It passed their Lordships' House, and went to the House of Commons, but it was there lost, in consequence, he believed, of the lateness of the period in the Session when it was introduced into the House of Commons. It was too late to pass it, and like many other Bills of that year, it was returned. Now that was an account of the Bill of 1836, with respect to which his noble and learned Friend had expressed such curiosity. It would be seen, therefore, that an attempt was made on that occasion to remove the objection with respect to the jurisdiction over the clergy; for such a Bill was necessary if they abolished the Diocesan Courts. That Bill which he had introduced, was in accordance with the recommendation of a Committee of their Lordships' House, and was sanctioned by the highest authority, and the reason why, when they thought it had passed all its trials, it was returned, was in consequence of the late period of the Session at which it was introduced. No further progress was made, therefore, with reference to that subject until the Bill of 1840 was introduced, regulating the jurisdiction which his Bill of 1836 was intended to affect. Until that measure had passed it was impossible to abolish the Diocesan Courts, but then no further difficulty existed. 1841 was not a good year for the progress of legislation on this subject; 1842 passed away also without legislation upon it; and in 1843 a Bill was brought in, after ample time for preparation—the Bill was brought in by Her Majesty's Government. It was brought into the other House of Parliament by Sir J. Graham, Dr. Nichol, and the Attorney General; and it was to be supposed that such a course would not have been adopted without consulting the other Members of the Government, or without the concurrence of his noble and learned Friend (the Lord Chancellor). One could hardly suppose that a Bill, which proposed to abolish the jurisdiction of so many of those Courts, would have been brought in without the 1333 concurrence of all the Members of the Government, and without the favourable opinion of his noble and learned Friend who had to-night spoken so highly of the Diocesan Courts, and described them as so perfect. It did seem, indeed, strange that when his noble and learned Friend thought these such excellent tribunals, another portion of the Government should have introduced a Bill for the purpose of abolishing them. It was a strange thing to see such a course adopted, particularly as it was so well known that Her Majesty's Government had the advantage of being so united, and of agreeing so well upon all their great measures. He must, however, consider that proposition in the Bill of 1843 as the proposition of Her Majesty's Government, and that Bill proposed to abolish the Diocesan Courts; indeed, it was in most respects very much like his Bill of 1836. Now, he wished to know, that recollecting that a Bill of that nature was introduced by Her Majesty's Government last year, how did it happen that his noble and learned Friend on this occasion asked them to support a Bill of an altogether different character—to adopt quite an opposite course? The 5th section of the Bill to which he referred provided that matters of Probate and Administration, and matters of Contention, should be brought before the Court of Arches, and that the Judge should be appointed by the Crown. There were some arrangements in it that might be found inconvenient enough, and whilst he admitted to his noble and learned Friend that it was in many respects similar to his (Lord Cottenham's) Bill, he should disclaim the reservation of a certain jurisdiction in the registrars which it proposed, for the purpose of cases of probate and administration under 300 l. a year. He referred to the Bill of last year, in order to show that there had been no difference of opinion at either side of the House as to the course which ought to be adopted with respect to the Diocesan Courts. His noble and learned Friend had stated that several alterations were made in the Bill after its introduction. He (Lord Cottenham) did not know what those alterations were, nor was he anxious to ascertain—he was only desirous to know at what period the Government changed their opinion, for they brought in a Bill now which was directly opposite to the Bill of 1843. He did not wish to occupy their Lordships' time, but he felt it necessary to call their attention to the very mature investigation which the subject had received 1334 from the highest authorities, and those best capable of forming an opinion, and he would show their Lordships that the Diocesan Courts could not by possibility perform those duties well. He would show that they were not adequate to those duties which they were called on to perform. It was necessary, in order that they should be able to perform their duties, to have them more constantly employed, and he would ask, were their Lordships of opinion that the public ought to go to the expense of keeping up an establishment which was not adequate to the performance of its duties? The Appendix to the Report of the Ecclesiastical Commissioners stated that in the years 1827, 1828, and 1829, the testamentary and matrimonial cases in the Diocesan Courts were 499, of which 147 were cases of Citation, and were not contested, and 110 were cases of Administration. The witnesses, namely, the registrars of the Courts, stated, that of the testamentary suits only one-tenth were subjects of litigation, and the others passed as matters of course; thus, nine-tenths were matters of course, which did not call for the interference of the Judges; so that 438, not being subjects of litigation, deducted from 499, left 61 cases. Say, then, the business in the Courts of Peculiar were a quarter, that made 16, which, added to 61, made 76; and 76, divided by 3, left 25; so that there were twenty-five litigated cases for thirty-two Courts, which it was proposed to continue. Then as to the Judges of those Courts. They were nominally Judges, it was true, but many of them did not profess to administer the law, and were permitted to appoint deputies. He would not say the deputies were underpaid, for they had little or nothing to do, and one of those Judges had received but two guineas in a year—now, that Judge might be called on to decide questions affecting the legality of issue, questions affecting property to any extent. It was evident from the fact he stated that the Diocesan Courts had not a great deal to do, and although the sum which that Judge received was small, it might be thought that perhaps it was a handsome remuneration for doing nothing. Now, with regard to the alleged convenience arising from the Diocesan Court to persons administering or proving wills in cases of small property, it appeared from the Appendix to the Report of the Ecclesiastical Commissioners, that parties in the country were often put to great inconvenience in consequence of the distance to which they had to go to the 1335 Diocesan Court, and this was to be found even in the present arrangement, which was far more concentrated and convenient than formerly. A man at Greenwich having business at the Diocesan Court would have to go to Winchester. [Lord Campbell: No, to Canterbury; a man in Southwark would have to go to Winchester.] I was adverting to the fact, that under the existing system, which was stated to be so convenient, persons had in many cases to go very great distances; from Berwick to Durham, for instance, a person would have to go 78 miles; from Montgomery, to Bangor, 85 miles; from Brecon to St. David's, 98 miles; from Rye to Chichester, 80 miles; from Penzance to Exeter, 121 miles; and when it was recollected that the journey, in many of those cases, was to a great extent by cross roads, it would be seen how much inconvenience often arose under the present system. Then they should consider the enormous expense, for four-fifths of the contentious business and a much larger part of the uncontested went to the Prerogative Court, and he had already shown the small amount of business for which it was proposed to maintain the thirty-four Diocesan Courts, all of which must have Judges, Registrars, and so on, so that the expense would be very large, and even if there were some advantages arising from maintaining those Courts, they were advantages which would be purchased at a heavy expense. What difference could it make to add one-fifth more to the business of the present Court in London; whilst it gives the advantage of having a Court in which the public could have confidence, and able to do all the business with convenience to the suitors, and without additional expense? Why should they maintain those Courts, and incur expense that might be avoided? They had not got the sum the new system was to cost—the Bill was blank as to that, but if they wanted Judges fit to preside in Courts where important matters were to be decided they could not get them without giving reasonably ample salaries, for no man was fit for a Judge who had not experience himself in private business; then, in order to remunerate such men for giving tip their business, it would be necessary to give them a considerable salary, and that would involve very great expense. If they referred to the Fee Fund, he was sorry to say it was likely to be a larger one, by large payments from the pockets of the suitors; for the report stated that they amounted to 1336 58,000 l. per annum. An enormous amount of taxation, then, would fall upon a particular class for the maintenance of these courts; and this contrary to the opinions which his noble and learned Friend had himself declared in 1841 and 1843—contrary to the strong recommendations of the Ecclesiastical Commission, of which his noble and learned Friend was a Member. If his noble and learned Friend—if the Members of the Government generally—thought they were wrong in the Bill of last year, the motives and reasonings which had brought about the change of opinion ought at any rate to be clearly stated to the House. Perhaps some other Cabinet Minister would yet supply the explanation on this head which had been omitted by his noble and learned Friend. His great objection to the present measure was, that it impeded, or rather put an effectual stop to all future improvement. Had it not been for this circumstance, though it by no means went so far as he wished, yet he should not have opposed a measure going in the right direction merely because it did not go far enough; for he was not one of the froward children of whom his noble and learned Friend had spoken. But the material objection was, that it raised a barrier against future improvement, Under the sanction of Parliament, they proposed to re-organize, to re-construct these courts in the various dioceses, in a way which went to perpetuate the evil; for the supporters of the present Bill could not possibly give it their aid, and hold themselves authorised in the next or a future year to give their support to a Bill for destroying these courts, which they now talked of re-establishing on an amended and solid basis. But why should they be re-established at all? All the sound evidence, all the best authority pronounced them an evil of great magnitude, and her Majesty's present Government only the very last Session brought in a Bill for abolishing them as such. Surely the Government ought at least to make some attempt at a satisfactory explanation of this very extraordinary change in their views. The hon. land learned Lord on the Woolsack had done nothing of the sort. He (Lord Cottenham) could not but think there must be some reason which had not been stated by the noble and learned Lord. The Government certainly had no ground to apprehend any want of support in that House to a Bill like that of last year, if they would introduce it; nor did he see what reason there was to anticipate opposi- 1337 tion in the other House. After considering the subject in every point of view, he was altogether at a loss to understand where any difficulty of a serious nature could arise to impede the progress of a really satisfactory measure. Surely the Government were not afraid that the country proctors would not turn them out of office if they did what was right in this matter. He did not impute any improper motive to the Government for having come to this new view of the subject, but certainly he was entitled to say that last year they quite concurred in all he had now stated, while this year they proceeded in a totally different direction. Why was this? He believed the opposition to the Bill last year arose from the circumstance that it did not propose any compensation to the country proctors for the loss of office, a very natural subject of complaint for those parties, no doubt. But the present Bill did provide compensation to the country proctors who might suffer, not from the loss of office, but from the loss of business in the particular Courts of Judicature affected by the measure. Now, such a provision as this would, he presumed, very materially mitigate the opposition of those Gentlemen to the reproduction of a Bill like that of last year. But the remarkable thing in the present case was this: the Bill abolished Courts of Peculiars, the business of which would be transferred to the Diocesan Courts; compensation was provided to the proctor for the loss of his business in the Peculiar Courts, yet all the while he would transact the same business in the Diocesan Courts; so that he retained his business and got his compensation into the bargain. Thus a man who had been doing a business of 100 l. a year in a Peculiar Court, would go and transact it just the same in the Diocesan Courts, and would receive compensation for 100 l. a year, as though he had lost instead of retaining it. Surely, it was somewhat extraordinary, that after what had been said by the highest authorities on the subject of the present system—after what had been said by the Ecclesiastical Commissioners—by the noble and learned Lord himself—the noble Lord should now speak of it as though it were a perfect system which retained these Courts, as the Bill before them proposed to do. In order to give the Government an opportunity of reconsidering the subject, and of bringing in a Bill more calculated to satisfy the country, he would move that the Bill be read a second time that day six months.
The Bishop of London
said, that, being one of those who had signed the original Report of the Ecclesiastical Commissioners, and as having supported the Bill which had been brought in for the purpose of carrying the recommendations of that Report into effect, he felt himself called on briefly to explain to their Lordships why, under these circumstances, he should not consider it inconsistent to give his support to the Bill now before the House. He supported the present Bill, because from all the information he had been able to acquire, and from the fullest consideration of the subject, he thought it the best Bill which the Legislature was in a condition to pass, without giving so much dissatisfaction to a great body of the public, as greatly to counterbalance the advantages that might otherwise be derived from a measure of this kind. With reference to the recommendations of the Ecclesiastical Commissioners, he wished to say this, that there were some points of that Report about which he was not perfectly satisfied, but he had therein yielded in a great degree to what he was entitled to regard as the superior judgment of the learned Commissioners, who were more practically acquainted with the working of the Courts; on one point, indeed, he had held a very decided opinion—an opinion which he still retained, that it would be far better to transfer the testamentary jurisdiction, among some other incidentals to ecclesiastical Law, to the Common Law Courts. But he had submitted to the judgment of those who considered that any violent disruption of this jurisdiction from the courts which now exercised it would be attended with many serious evils; and that it would be better to leave the jurisdiction where it was, at all events for the present, taking measures, at the same time, for improving its administration in every possible way. Now, with respect to what had fallen from his noble and learned Friend opposite (lord Cottenham), he must be permitted to say, that he had not by any means understood his noble and learned Friend on the Woolsack to say that the present system was the best that could be devised; but he spoke of it as preserving that which was theoretically the right system. He thought it an advantage that every Bishop should have within his own diocese the means of administering the law. He thought it hardly fair for his noble Friend (lord Cottenham) to represent the present measure 1339 as a measure which proposed to create thirty-four new courts. It should rather be considered that there were in all 384 Courts exercising ecclesiastical jurisdiction, and that of these the Bill professed to abolish 350, leaving thirty-four, which were to be remodelled and improved in their constitution. Now, with respect to the administration of some of the Ecclesiastical Courts, he must own that his experience of some of those Courts had not given him the highest reverence for their administration of the law, and he thought it desirable that those Courts should be placed on a better system, and a better administration of justice substituted. With respect to testamentary jurisdiction, being of a civil nature, it might be wished that the whole of the testamentary jurisdiction should be in the hands of the Common Law Courts. It might be questionable whether, in their anxiety for the better administration of the law, the Ecclesiastical Commissioners did not go too far in recommending the abolition of those Courts. Perhaps their Lordships were not aware that those Courts discharged other functions, which could not be discharged with propriety by any other Court whatever. After various attempts to give effect to the recommendations of the Ecclesiastical Commissioners, he thought that the present Bill was one which was likely to be attended with less dissatisfaction. His noble Friend had alluded to the Petitions which had last year been presented to that and the other House of Parliament on this subject. Those Petitions expressed the sentiments not only of the country practitioners but of other practitioners also, and represented the feelings of a large body of the clergy and laity of the country on this subject. Indeed, a much stronger feeling existed, and to a greater extent, than he was first aware of; and he considered the question now to be, whether those Courts would not, if remodelled, have the effect of remedying to a great extent the evils which arose from them. He could not but feel when the present Bill passed into e law, that those Courts would be a great support and consolation to the Bishop of each Diocese, limited as the Bill proposed, and presided over by proper Judges; for he admitted the justice of the principle that it was not expedient that they should be presided over by Clergymen. Upon the whole he did not think he was guilty of any inconsistency in sup- 1340 porting the present Bill, were he even disposed—which he would not say he was—to maintain the unimpeachable wisdom of the Ecclesiastical Commissioners; for, although this Bill did not go so far as they recommended, it went a great way, and got rid of the crying evil of the Peculiar Jurisdictions. For these reasons, and seeing that the system of Diocesan Courts, even supposing it to be an evil system, could not be abolished without creating a great deal of opposition and unfriendly feeling on the part of those whom it was more desirable to conciliate, he would be content with the present measure, although it did not accomplish all the good that might be desired.
agreed with the right Rev. Prelate, that there was quite enough of good in the measure to reconcile him to take it; while he also agreed with his noble and learned Friend near him in wishing it had gone a great deal further. This legislation originated in a Bill which be (Lord Brougham) had had the honour to bring before Parliament many years ago, and subsequently at different times, down to 1835, when he gave it up almost in despair; and his experience had taught him that which he did not think his noble and learned Friend near him was aware of, the very great difficulties that lay in the way of legislating upon this subject. When engaged in legislating upon that subject, if he saw one party or one deputation, he was sure he saw 200 or 300; if he received one memorial or remonstrance, he received 500. With the single exception of the Registry Act, whirl was defeated by the same influence, he never remembered so powerful a host of adversaries raised against any one measure he had any concern with in the way of legislation. The opposition the Reform Bill met with out of doors in 1831—not in Parliament, but out of doors—was really a joke compared to the opposition to the Registry Act; and there was a remarkable instance of it. After their Lordships threw out that Bill on the 10th of October, 1831, he remained in the House in consequence of judicial business until the 20th, and he then went down into Westmoreland to enjoy his long vacation of eleven days. During that time the country was never so much excited as it was on the Reform Bill; the people were in a rage against the Government, and against Lord Grey in particular, because his Government would not take the wise advice of proroguing Parliament one day and meeting 1341 two days afterwards to propound the same Bill. They were almost torn to pieces. Lord Grey received deputations in the dead of the night, who told him that be was a doomed Lord. He also was a doomed Lord, and his noble Friend there. Such was the extreme excitement which prevailed on the Reform Bill; and that from the capital to the remotest provinces. Well, after the eleven days' vacation, that most melancholy tragedy, incident to that agitation, took place,—the Bristol riots, which tended to increase the agitation and excitement. On his return from Westmoreland, if he saw one bill on the subject of Reform, or advertisement, or placard affixed to private mansions and public buildings, and exhibited at other places of public resort, upon the all-absorbing subject of Reform, he was sure he saw a score calling upon the landlords not to stiffer themselves to be robbed by the detestable Registry Act. He mentioned this to show that it was the very same interest which opposed that Act which lately and now tip to the present hour was at work to defeat the first and best Bill upon this subject which he and others of the Commissioners and Committee were most anxious to have carried, as the most complete and advisable measure. The interest to which he alluded consisted of the country practitioners, the landed Gentry, and those under their influence, who formed themselves into a kind of league to support the practice of the Local Courts, and to prevent any enlarged measure of reform; and he was one of those who believed that the Government would find insuperable difficulty in carrying this measure, not in that, but in the other House. The business of that House, then, would be not to send down measures to the other House, which they had not a fair and reasonable prospect of being able to carry. It was not a mere inconvenience they would have to deal with, but an insuperable difficulty. As, therefore, he could not get all he could wish, he was bound to take all he could get, and if he went into Committee with the Bill, he should go there to make it what he wanted it to be, or if not that, at any rate the best Bill that could be carried in the other House. He certainly, however, proposed to go into Committee, with the full intention of doing his best to remove from the measure any feature which might at present tend, as his noble and learned Friend suggested, to impede further improvement in this direction, to prevent onward legislation, when people 1342 should come to their senses upon the matter. Now, it certainly appeared to him that, to appoint thirty Judges for life, with good salaries—and good salaries they must be—would tend to impede, if not totally to obstruct, the introduction of a better measure at a more favourable time; but in Committee he should endeavour to prevail upon them to keep their power in their hands, and therefore he would have those officers made removable, and make them take their offices with a notice or warning not to complain if a Bill should pass to render their services in those Diocesan Courts no longer essential and necessary. [The Lord Chancellor: That is provided for by the Act. It is not intended that any compensation shall be given them.] That removed a very great difficulty, no doubt. But he had thought that those officers were irremovable, that they held office for life. But his objection was at an end. His noble and learned Friend had not forgotten the case of the Welch judges. His noble and learned friend (Lord Cottenham) had said the argument about Local Courts had no bearing upon the question. He might think so, but he (Lord Brougham) was of a different opinion. He had been often told of the inconsistency of centralizing one day what he was localizing another; and no doubt he was liable to that charge, as regarded the Diocesan Courts. But be felt that there were good reasons for giving local jurisdiction, so as to bring home the diocesan jurisdiction to the suitor. Had there been in the Local Courts a most respectable man fit to be a Judge, then, as far as possible, it would have been right to give him the jurisdiction which this Bill reserved to the reformed Diocesan Court. He submitted his Local Courts Bill to the Common Law Commissioners, who differed from him upon one point; they struck out the testamentary jurisdiction. One of their reasons was, that there was a Diocesan Court already established there; and this Bill to abolish Diocesan Courts was not then brought in. The principal ground for his supporting this Bill was, undoubtedly, the abolition of the Peculiars; that was the greatest improvement that could be possibly made. The right Rev. Prelats (the Bishop of London) would bear him out in saying that a very great scandal was removed from our ecclesiastical as well as our judicial establishments by the abolition of those exceedingly imperfect courts of judicature, the Peculiars and Exempts. He had hoped that the temper of the times 1343 would have enabled them to go further; but as the case stood their Lordships should reserve to themselves with the option the power of hereafter legislating upon this subject, if so advised. Upon the whole, he was disposed to give his concurrence to the second reading of the Bill, reserving to himself the power of making such suggestions with regard to the details in Committee as hereafter might seem to him to be desirable.
said, he must express his unfeigned astonishment, after what had been said by his noble and learned Friend, that there had been no explanation of the motives which had induced Her Majesty's Government to abandon the Bill introduced last Session. His noble and learned Friend who last addressed the House, had endeavoured to make an apology for the Bill being in its present shape, and had certainly made the most of his materials; but he did not suppose that his noble and learned Friend was present at the Cabinet when this subject was debated; nor could he suppose that his noble and learned Friend was one who spoke as the organ of the Government, for the purpose of communicating to the House and to the public information upon this subject. The House, then, was entirely in the dark with respect to the motives which had induced the Government to introduce this Session a measure so entirely different from that of last Session. There were present five Members of the Cabinet, perhaps six; and no doubt they had all made themselves masters of the subject. There was the noble Duke at the head of Her Majesty's Government, he could master anything. No doubt the noble Duke knew the advantages and disadvantages of the Bill of last year as compared with this one. The noble President of the Council, who had long presided there with much benefit to the public, was well acquainted with our judicial system in all its details; but he remained silent. There was the noble President of the Board of Control, versed in matters connected with finance—and he said nothing. There was the noble Secretary for the Foreign Department, who, though no soldier, was well acquainted with the Church militant and all its difficulties—but he was dumb. All were silent. The right rev. Prelate had given no explanation whatever of the reason of the change: on the contrary, he had strongly confirmed 1344 the objection of his noble and learned Friend, because that right rev. Prelate had told the House he would even then be ready to support the Bill of last Session. [The Bishop of London: "No, no!"] He had understood so; and it would be most extraordinary if it were not so, because that right rev. Prelate not only was a Member of the Commission along with the Archbishop of Canterbury, and paid, as he always did, in other cases, the greatest attention to the subject, but, after seven years' deliberation, he signed the recommendation contained in the Report of the Commissioners. He presumed that his noble and learned Friend who had spoken last had left the House, as he did not see him either in his usual place on the woolsack, or in the seat which he occasionally occupied on that (the Opposition) side of the House; he would therefore abstain from adverting to some of the topics which had fallen from his noble and learned Friend. It was, clear, however, that his noble and learned Friend on the woolsack had changed his opinion on this subject. What was decisive on this point was, that a Bill on this subject, and similar to that of last year, which in 1836 passed the House of Commons, was sent up to that House; and he knew not what reason there was to suppose that a similar Bill would not now be passed through that House; and, above all, when it was recollected what powerful influence the Government possessed in that House He still believed that if the Government wished to carry such a general measure as that of last year, there would not be the slightest difficulty in the matter. His noble and learned Friend on the woolsack anticipated that he (Lord Campbell) would oppose this Bill. Now, he could only say in reply, that he considered that he should be guilty of great inconsistency if he did not do so. He felt satisfied that this Bill preserved all the expensive and vexatious litigious proceedings in cases of marriage, adultery, defamation, testamentary cases and Church-rates, for jurisdiction in all these matters was reserved to all the Diocesan Courts. Again, this Bill preserved all the vices of the law respecting cases of bona notabilia, by which a probate was void, if proved only in one diocese, and there appeared to be goods to the amount of 5 l. in another diocese. It preserved also all the distinctions now existing between the Prerogative Courts of 1345 the two provinces of Canterbury and York. The right rev. Prelate would recollect, that the Real Property Commission, of which he (Lord Campbell) had had the honour to be a member, recommended that there should be only one court for the trial of such cases for the whole of England and Wales, and he presumed that the right rev. Prelate still adhered to the opinion which he then gave as one of those Commissioners. It was obvious that there could be no injury to the Church in adopting such a proposition. God forbid that he (Lord Campbell) should wish to interfere with the proper jurisdiction of the Church in all matters which properly belonged to it; for instance, in all cases of Church discipline or orthodoxy he had no wish to interfere; but what had the Church to do now-a-days with marriage or wills? He would not say that in former times, when marriage was regarded as a sacrament, the Church ought not to have had some authority, but this had long since ceased to be so—since the period of Lord Hardwicke's Marriage Bill; and above all, since by the recent Act, marriage had become a civil contract, and all questions as to its validity in any case resolved themselves into the interpretation of an Act of Parliament, and, as a matter of course, to be referred to the Queen's Judges for decision. These were often of a most difficult nature, and they required on the part of the Judge a profound knowledge of the law, and he thought, therefore, all these matters were most properly referred to the Superior Courts of Law. The right rev. Prelate said that he regretted that the Church had ever anything to do with the jurisdiction as regarded wills. But how did the Church get possession of this jurisdiction? It was, that formerly, when a man died intestate, the Church claimed his personal property for the purpose of saying masses for the good of his soul. It, therefore, was supposed to have an interest in every case of a will, and got possession of this jurisdiction accordingly. Now the Church could put in no such plea; and, in fact, it ought to have no more to do with testamentary causes than with questions involving real estates. They might just as well claim the right to try tithe cases, insurance cases, or charter parties cases, as those respecting wills. He conceived that the only proper course to adopt was, to have one general court, 1346 sitting in London, which should have general jurisdiction in all those questions which now went to the several Diocesan Courts. He was in favour of having Local Courts, where he could obtain them with advantage, but then two essential principles were involved in the case. The first was, that there was sufficient business for the court to transact, and the second was, that the business of the court should be such as to enable them to get competent Judges to do it. With regard to the Diocesan Courts, they possessed neither the one nor the other of these requisites. His noble and learned Friend (Lord Cottenham) had stated that such was the small quantity of business before these courts, that they had each only the fraction of a cause in a year before it. Was it possible, he would ask, to have good Judges under such a state of things? To deal with marriages and wills required a knowledge of the civil law, and of the practice of the Ecclesiastial Courts, which were guided by civil law; and those only who had practised in Ecclesiastical Courts, who were familiar with the civil law and its practice, were competent to be Judges; but then there were thirty-four of these Judges to be selected; and it was obvious that from the small amount of business that it was no very easy matter to obtain that number of efficient persons. The right rev. Prelate said, that in some instances business was well done in the Diocesan Courts; he (Lord Campbell) would only say, if such was the case, they must be very rare instances indeed. He had had rather an extensive experience with respect to them, and he would venture to say that he had never heard a case before any one of these Diocesan Courts in which the grossest blunders were not made. Even the Archiepiscopal Court at York was not an exception. He had never heard any one praise these Diocesan Courts, unless it was his noble and learned Friend on the woolsack, who seemed to consider them as the very perfection of the judicial system. He must be allowed to express his surprise that his noble and learned Friend did not attempt to make a better defence for the Government than he had made. In 1836, when his noble and learned Friend occupied a different position in that House, he, towards the close of the Session, took a review of the business which had been gone through, and he was particularly eloquent on the state 1347 of the Ecclesiastical Courts. His noble and learned Friend then said:—The next great branch of this promised reform of the law was the consolidation and reconstruction of the Ecclesiastical Courts; let us see what course His Majesty's Government have pursued on this important subject? My noble Friend, the noble Duke near me, when in office, issued a Commission for the purpose of inquiring into this extensive subject.His noble and learned Friend then proceeded to panegyrise the report of the Ecclesiastical Commission, and he did not then eulogise the Diocesan Courts as he now did. His noble Friend proceeded to say,That Commission made a report, which was prepared, he believed, by Dr. Lushington—a report distinguished for the information and learning which it contained, and which led to the preparation of a Bill handed by us to our successors in office. My noble and learned Friend was from time to time reminded of the importance of the subject, and called upon to adopt some legislative measure with respect to it. A Bill, indeed, had been introduced; but as on some parts of the measure a difference of opinion existed, they were referred to the consideration of a select Committee, who afterwards made a Report, which was laid upon your Lordships' table. From that time to the present, the Bill has been allowed to slumber—not the slightest attempt has been made by the Ministers of the Crown to pursue this important measure.This was the Bill which was prepared in the year 1835, and which his noble and learned Friend taunted the late Government for not having the power to carry. But what had been done by the present Government? It could not have been expected that they would have brought forward a measure on the subject in the short Session of 1841, immediately after their accession to office; but in February, 1842, the Government induced Her Majesty to address the Parliament thus:—Measures will be submitted for your consideration for the amendment of the Law of Bankruptcy, and for the improvement of the jurisdiction exercised by the Ecclesiastical Courts in England and Wales.That declaration was made by Her 1348 Majesty in February, and, though Parliament sat until August, no Bill on the subject was introduced into either House. His noble and learned Friend said, that it was deemed better that the Bill should come from the other House. If that were the case, why was the measure now introduced into that House? What he complained of was, that the Bill was not introduced into the House of Commons in 1842, at which time the prejudices against the plan involved in the measure of last year did not exist to anything like the same extent to which they had been excited. If the Bill had been brought in in 1842, he would venture to say that the Government could have passed it with the greatest ease. He had asked several times why the Ecclesiastical Courts Bill had not been brought forward, and he could on no occasion obtain a satisfactory answer. Again, at the meeting of the Parliament in 1843, the Royal Commissioners said,We are commanded by Her Majesty to acquaint you that measures connected with the improvement of the Law will be submitted for your consideration.Now he had no doubt that this passage referred to the Ecclesiastical Courts Bill. Such a measure was asked for again and again in their Lordships' House, but no one ever saw it. In the other House of Parliament a measure certainly was brought forward, having for its object the establishment of one Court for the decision of all questions relating to wills and matters testamentary, and no measure was ever more panegyrised, or received such wide support. That Bill was brought forward in a very able speech, by his learned Friend Sir William Follett; and Sir James Graham, who had maturely considered the subject, as he was Chairman of the Committee of the other House on the inquiry into the matter, also in a most able manner supported the Bill. No measure of a Government could have been more warmly supported or panegyrised than this measure was when it was first introduced. His noble and learned Friend used to ask why did not the then Government carry this and other measures through that House? He could only say, that, unfortunately, a great desire existed on the part of some parties to act in such a way as to enable them to say that the Government had not power to carry measures which they deemed beneficial. But the Government which succeeded them in 1349 office did possess that power; why then, he would ask, did they not carry this Bill? That Bill was founded on the plan of the Ecclesiastical Commissioners, and which was so much praised by his noble and learned Friend in 1836—this Bill was brought forward by the present Government last, year, and he should like to have some explanation why the Government chose to abandon altogether the great principles contained in it. His noble and learned Friend made, in 1836, a remark upon the then Government which, as regarded them, was wholly misapplied, but which was, with respect to the present occasion, strikingly appropriate. He said, that the measures which they themselves recommended and prepared, they, without the least regard to what they had previously said, tamely abandoned at the dictation of any section of their supporters. That was what had been said with reference to the late Government; and, it appeared to him curiously applicable to the present. There was much mystery in this transaction, which ought to be cleared up by an explanation from some Member of the Government.
The Bishop of London
said, that whatever might have been his opinion of the plan suggested by the Ecclesiastical Commissioners, he had taken care that night not to express any opinion upon the subject, or what course he might have pursued.
The Lord Chancellor
said, he rose for the purpose of meeting the challenge which his noble and learned Friend had thrown down. He had asked what were the reasons which induced the Government to depart from their original plan? Did his noble and learned Friend suppose that he (the Lord Chancellor) did not concur in the wisdom or the policy of the Bill introduced into the House of Commons last year? He could assure his noble and learned Friend that he was entirely mistaken in supposing that he had differed from his Colleagues as to that measure. Nothing that he had said, could, for a moment, warrant such an assumption. He, in common with the rest of the Cabinet, had anxiously wished to carry into effect the plan proposed by the Ecclesiastical Commissioners. His noble and learned Friend now asked, why abandon that measure, and substitute another, from which the best parts of the measure of last year were omitted? Neither or his noble 1350 and learned Friends had exercised their usual industry, when they made complaints of this nature; for if they had looked to the progress of the Bill through the other House last Session, they would have seen ample reasons to induce the Government to pursue the course which they had now taken. The second reading of the Bill was certainly carried by a majority, after a long and warm debate, but it was obvious to every Member of that House, from the tone that prevailed, that the Bill could not be carried to a third reading in the shape in which it then was. The Bill was materially altered in Committee and assumed an entirely new form, and it was apparent to the Government that it could only be carried in that new form. The question then for the consideration of the Government was, whether the entire measure should be abandoned, or whether the Bill should be carried in its altered shape, for some of the provisions still left in it were of the utmost importance. The Government determined to adopt the latter course, and the present Bill was, as nearly as possible, a copy of the Bill as it passed through Committee in the other I louse last year. This was the history of the Bill in the last Session; and he believed that if a Bill embodying all the suggestions of the Ecclesiastical Commissioners passed that House without delay, and was sent at once to the other House, the same course would be pursued with it as was taken with respect to the Bill of last year, if it was not thrown out altogether. He repeated, then, that the Bill now under consideration was essentially the Bill which went through the Committee of the other House last Session. If he believed that they could pass the large measure through that House, and if they were satisfied that they could not carry it through the other House, he conceived that it was wise and prudent not to attempt that which the experience of the past showed could not be done. He believed, therefore, that the proper course to pursue was, to introduce a measure, not going to the extent that he could wish, but going to the extent that they could calculate upon its success, and which would still be productive of much good. If his noble and learned Friend thought that he could carry such a Bill through the other House, let him try and persuade the House in Committee to make such alterations as would cilia the object which he had in view. But he (the Lord Chancellor) was satisfied that his noble and Learned Friend could 1351 not succeed; he, therefore, must rest content to confine himself to that measure of good which was contained in this Bill. Such was the explanation of the course taken by the Government with respect to this Bill, and in respect to which every Member of the Cabinet fully and entirely concurred. They one and all were convinced that the Bill should be brought forward in its reduced shape, because they were satisfied it could be productive of great good, and because they were satisfied that they could not carry a measure which went so far as the former Bill. As for expressing an approval of the Diocesan Courts, and as for the charge of inconsistency which had been brought against him, both his noble and learned Friends had entirely misapprehended, he would not say misrepresented, what had fallen from him; for at the commencement of his observations, in rising to move the second reading of this Bill, he distinctly and unequivocally stated that he greatly preferred the Bill of last year. The present Bill, he might add, was founded on a Bill which was introduced into the other House in 1813, by Lord Stowell (then Sir William Scott), and he never should be ashamed to acknowledge that he had adopted a Bill on such a subject on the high authority of an individual, so eminent and learned in matters of this kind. He now thought that he had given a satisfactory explanation as to the conduct of the Government, and had shown that there was no ground for the charge of inconsistency which had so harshly been brought against him.
§ Amendment negatived. Bill read a second time.