Lords Sitting of 26 May 1845

MINUTES.
BILLS. Public. — 1a. Real Property Deeds Registration.
2a. Ecclesiastical Courts Consolidation; Calico Print Works; Railway Clauses Consolidation (Scotland) (No. 2).
Private.—1a. Whittle Dean Waterworks; Standard Life Assurance Company; Nottingham Waterworks; Glasgow Bridges.
Reported.—Southampton Docks; Scarborough Water; Hungerford and Lambeth Suspension Bridge.
3a. and passed:—Royal Naval School.
PETITIONS PRESENTED. By the Duke of Grafton, Bishops of Worcester, Gloucester, Winchester, St. David's, Cashel, Llandaff, Durham, and London, Earl of Mountcashel, Winchilsea, Cawdor, and Brownlow, Marquess of Breadalbane, and by Lords Redesdale, Kenyon, Farnham, Feversham, and Monteagle, from Godnestone, and an immense number of other places, against Increase of Grant to Maynooth Collage.—By Lords Dacre, and Campbell, from the Lord Mayor and others of the City of London, and from the Governors of St. Bartholomew's Hospital and others, praying to be heard by Counsel against the Charitable Trusts Bill—From Guardians of Bandon Union, and Ratepayers of the Navan Electoral Division, for Alteration of Bastardy Clause of the Poor Law Act (Ireland).—From Guardians of Cootehill Union, for Inquiry into the Operation of the Poor Law Act (Ireland).—From Wellington, for the better Observance of the Sabbath—From Chobham, for the better Regulation of Beer Houses, especially on the Sabbath.—By Lord Brougham, from Commissioners of the Court of Requests for Stockport, Brinnington, Edgeley, and Brinksway, for Repeal of Insolvent Debtors Act Amendment Act. — By the Lord Chancellor, and by Lords Brougham, and Stanley, from Incumbent of Eau, Tunbridge Wells, and from Merchants and others of Manchester, and 3 other places, in favour of the Increase of Grant to Maynooth College.—From Portadown, for Inquiry into the Course of Instruction adopted at Maynooth.—By Marquess of Normanby, from Manchester, and by Lord Faversham, from Mayor and others of the City of York, for the adoption of Sanatory Regulations in populous Districts.—From Romaldkirk, for Revision and Alteration of Rubrics, Canons, and Laws of the Church.—By Earl Manners, from Nottingham, against the Nottingham Inclosure Bill.—From Kintyre, and 3 other places, for Improving the Condition of Schoolmasters (Scotland).—From Carshalton, and 4 other places, in favour of the Calico Print Works Bill.—From Selkirk, Melrose, and Hawick, against the present practice of Granting Spirit Licenses to Toll Houses (Scotland).

MR O'DRISCOLL.
Lord Brougham, having presented a petition from Stockport against the 20 l. Clause in the Court of Requests Act, said he wished to put a question to his noble and learned Friend on the Woolsack, in reference to a statement which he had read in a foreign newspaper—copied, however, from an English newspaper — respecting an Irish magistrate, Mr. O'Driscoll, who had been twice removed from the Commission of the Peace, and twice replaced. And he must say that never in his life had he seen the administration of justice brought into more flagrant contempt than it had been by the outrageous conduct — that was, supposing the statement were not altogether a fiction—of this individual. If the circumstances detailed were true—though he was bound to tell their Lordships that it rested upon the authority of a newspaper—he hoped to have an answer to the question, whether Mr. O'Driscoll was still to be retained in the Commission of the Peace? The statement to which he referred professed to be a report of the
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proceedings in a case at the Skibbereen Sessions, and proceeded thus:—
"Mr. O'Driscoll (turning himself back in his chair); I don't understand this, and will not put the question.
"Mr. Galway: Mr. Fleming, I must ask you how you'll vole?
"Mr. Fleming (after some hesitation): I regret feeling bound by law to vote for informations.
"Mr. O'Driscoll, without saying a word, entered informations; and, after a few moments, said, 'By G—I don't understand those popularity-hunting magistrates.'
"Mr. Galway (standing): Gentlemen, is such language to be borne? Are our votes here as magistrates to be thus characterized by saying publicly that it is seeking popularity we are?
"Mr. O'Driscoll; Sit down, sir; hold your tongue.
"Mr. Galway: I will not, sir; and I tell you your observations are improper—very improper, sir.
"Mr. O'Driscoll; You had better sit down. I'll meet you elsewhere."
[A laugh.] Their Lordships laughed at this. Now, he (Lord Brougham) considered this language of Mr. O'Driscoll as a challenge to break the Queen's peace given by a presiding magistrate administering criminal justice at petty sessions, to another magistrate, his colleague, on the same bench, and in the same commission; and supposing such language were used, he must say it exceeded in indecency anything that he ever remembered to have occurred in the administration of public justice. The report went on—
"Mr. Somerville here interposed, and appeared to be expostulating with Mr. O'Driscoll on his conduct, when the latter said, 'I tell you, man, I did not mean him at all.'
"Mr. Galway: I am bound to believe you.
"Mr. Fleming: We understand you, Mr. O'Driscoll, that the matter is not to go further outside this court, in any possible way, otherwise we will bind you over."
So that here was a magistrate presiding at sessions, threatened by his brother magistrate to be bound over to keep that peace which, by the terms of his commission, he was the conservator of, but of which he had himself committed the grossest breach, by giving, while on the bench, and sitting as magistrate, a challenge to a brother magistrate to fight a duel. This was the amount of what occurred at the Skibbereen Sessions.
The Lord Chancellorsaid his noble and

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learned Friend must be aware that he had nothing to do with the appointment of Irish magistrates. With regard to the individual in question, his conduct had been investigated by their Lordships in consequence of what had occurred on a previous occasion; and he believed their Lordships were satisfied with the explanation then given. ["No, no."] This, he understood, was a charge against Mr. O'Driscoll for some subsequent conduct; and he (the Lord Chancellor) knew nothing, and could not have known anything until now, and with which, as far as his official duty was concerned, he had nothing to do. If, however, his noble and learned Friend wished him to do so, he would write to the Lord Chancellor of Ireland directing his attention to the statement, and requesting him to call for an explanation.
Lord Broughamdid not hold his noble and learned Friend in any way responsible in the matter. The question was, whether the Lord Chancellor of Ireland, seeing this statement in the public papers, had made any inquiry into its truth or falsehood?
The Lord Chancellor: If his noble and learned Friend would give him the newspaper containing the report, he would inclose it to the Lord Chancellor of Ireland, who would demand from Mr. O'Driscoll an explanation or not, as he might think proper.
Lord Broughamthen handed the paper to the Lord Chancellor.
The Earl of Mountcashelsaid, as Mr. O'Driscoll was a magistrate in the county with which he was more directly connected, and as he knew him well, he wished to be informed whether the charge was in respect to anything of recent occurrence?
Lord Brougham: Yes.
The Earl of Mountcashel: It appeared to him, then, somewhat remarkable—if he understood the noble and learned Lord right—that the reference to the circumstance was made in a French paper, and not in an English paper.
Lord Brougham: It is in an English paper.
The Marquess of Clanricarde: I have seen the same statement in an Irish paper.
The Earl of Mountcashel: I well remember that strong charges were brought against Mr. O'Driscoll on a former occasion; and that the whole subject having been fully examined, he was not found to
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be the guilty man. The truth of the matter is, that Mr. O'Driscoll is a Roman Catholic; and, being so, is also a Conservative. This is a crime not to be forgiven in Ireland. Other Conservatives are not much in favour in Ireland, but a Roman Catholic Conservative is a man condemned to all eternity. I believe several of the other gentlemen on the bench with Mr. O'Driscoll happen to be Roman Catholics, and bear great spite and animosity against him for the union I have stated, that being a Roman Catholic he is also a Conservative.
Earl Fortescue: As I felt it my duty to bring forward the charges against Mr. O'Driscoll last year, which were inquired into, though certainly I heard nothing in the House in the shape of any sufficient defence of that gentleman, with reference to his conduct on the matter with which I charged him at the time, and which rested, not on mere newspaper report, but on a conviction before that quarter sessions of which he was himself a member, I feel it my duty to repeat now what I then said, that his conduct on that occasion was most improper, and unbecoming a magistrate and a gentleman. I am, therefore, in no way surprised at the occurrence which has been referred to by my noble and learned Friend; and which I saw reported some days ago in an English newspaper, and also in an Irish newspaper; and which I intended myself to have mentioned in this House if my noble and learned Friend, with whom I have had no communication on the subject, had not done so. I believe the circumstances under which Mr. O'Driscoll was restored to the commission was, that the conduct for which he had been dismissed had resulted from irritability of temper produced by ill health; and his restoration to health would, it was thought, conduce to an amendment of his temper and prevent the repetition of such scenes. I can only suppose that he has had a serious relapse; but whether that be so or not, if what has been stated by my noble and learned Friend, and which has appeared in a great many newspapers, should, on inquiry, prove to be correct, I trust the Government will not allow Mr. O'Driscoll to remain any longer a member of the Commission of the Peace, in order that we may not run the chance of another relapse, occasioning further instances of his irritability of temper.
Lord Wharncliffe: I quite agree that more improper conduct than that which this report charges against Mr. O'Driscoll could not have happened; and I can by no means admit the excuse offered by the noble Earl Mountcashel as sufficient. The members of the magisterial bench must conduct themselves in a decent and proper manner, and like gentlemen; and they must remember that they are the servants of Her Majesty, and bound to keep the peace. But the matter is now in its proper course, my noble and learned Friend on the Woolsack having undertaken to communicate with the Lord Chancellor of Ireland, who will, if he think it necessary, open the question and call for an explanation.

MAYNOOTH.
The Bishop of Cashelpresented a petition against the grant from 270 of the clergy of the United Church of England and Ireland. The right rev. Prelate, in presenting the petition, said, their Lordships were aware that in this city there were generally about this time annual meetings of many religious societies; there were similar meetings in Dublin, and it was upon one of those occasions when there was a large assemblage of clergy, that this petition had been agreed to. They felt it their duty to express that, as endowed ministers of the Protestant Church, they could not be parties to the instruction of any persons in what they considered as erroneous tenets. He admitted that during the last century nothing could have been lower, nothing could have been worse than the Established Church in Ireland. From the time of Archbishop Boulter it had been sinking. Dr. Mant, who, as they knew, was an Englishman, and was likely, if anything, to be prejudiced in favour of the Establishment, in his History, said—
"The chief motive to his elevation was of a political tendency, the object of the English Ministry being to place in that situation a confidential adviser, who might support what was called the English interest in Ireland; and this will suffice to account for the non-appointment of Archbishop King, who was at the head of the Irish party."—Vol. 2, p. 418. "And the like motive avowedly actuated the public appointments, urging, as he did, the necessity of the English interest being constantly maintained by the selection of persons who could be depended on for maintaining it. It is remarkable, and it is calculated to excite entiments of dissatisfaction and disapprobation
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on perusal of the Primate's letters, that very little is, in fact, said of the religious, the moral, the theological, the literary, those who are put forward for vacancies in the episcopate, and that their recommendations rest, in a prominent degree, on political and secular considerations."
Archbishop King also, in one of his letters, said—
"We have nothing to trust to in effect but the prudence and diligence of the bishops and clergy to press and make the best advantage of a good cause; and if we consider the preferments that have been made of late, many are of opinion that much is not to be expected from them."
It was about this time that Dr. Rundle, who had been rejected as unfit for Gloucester, was thought good enough for Derry. The letter continued—
"I told you in my last that since my Lord Lieutenant was nominated to the Government about 18,000 l. per annum has been given in benefices to strangers, and not 500 l. to any in Ireland. The bishops sent us from Ireland follow the same track in many instances. The Bishop of Derry (Dr. Rundle?) since his translation to that See has given about 2000 l. in benefices to his English friends and relations. The Lord Primate hath had two livings void since his translation; one he has given, of about 200 l. per annum, to one of his Waltham blacks" (which Bishop Mant says was one of a well-known horde of deer-stealers in Hampshire), "whom he ordained priest; and the other to one Mr. Blennerhasset, whom they commonly call a Hottentot, I know not for what reason." "The Bishop of Waterford has not only given all livings of value in his gift to his brothers and relations, but likewise his vicar generalship and registry, though none of them reside in the kingdom."
At the same time he said he should be most wanting in gratitude if he did not offer his unfeigned thanks on the part of the clergy of that Church to the present Administration for what they had done in respect to the patronage of the Irish Church. Dr. Doyle, a most excellent Roman Catholic prelate, speaking of the clergy of the present day, in his evidence before their Lordships, said—
"Though many have personal property, still, generally, they are solely dependent upon their livings. They have only a life interest in them. They generally have large families, and are obliged to live with economy, and to husband all their resources, in order to educate their children, and make some provision for them. Their expenditure must, therefore, be small. Then, as to their benevolence, there are several of them who are

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extremely kind; and their wives and children, I believe, are not less well disposed Latterly, unfortunately for themselves and the peace of their parishes, they have almost universally been influenced by over-zeal in religion; and while with one hand they scatter a few blessings, with another they sow discord; and the clergyman and his family are among what we call 'proselyters,' who disturb the peace of the people, and do a vast deal of mischief, whilst they do some good."
And Dr. Cook, of Belfast, said—
"That he could speak of a great revival in the clergy of the Established Church. In speaking of a revival, he might appear to accuse them in former times of not being what they ought to be; but he was sure the Commissioners, the members of the Established Church, would wish him to speak the truth; and he must say, in past time they fell short of their proper standard, but of late their orthodoxy and zeal have had a most influential effect upon the orthodoxy of the Presbyterian body, and in turning many from Arianism."
Dr. Chalmers had the following eloquent passage on the same subject in his Lectures on Church Establishments:—
"The remedy is, not to abolish the Protestant Establishment of Ireland, but rightly to patronize it; nor can I imagine a wider contrast than between the wise and temperate reformers from Popery of 300 years back, who, despite the enormities of that system, let alone the material of its establishment, and only committed it to other and better hands, and the reformers of the present day, who have abridged and would destroy the Protestant Church; and that, too, in the face of a manifest revival in the zeal, in the character, in the devoted missionary spirit of its clergymen, who, unlike to those predecessors for whose errors—I should say, for whose crimes—they are not responsible, consecrate their whole time, and talent, and unrequited labour to the moral interest of their country; the martyrs of its now misplaced and excited violence, yet, we trust, the agents of its coming regeneration. The truth is, that among the Estabblished Churches of our Empire, that of Ireland, in the vital and spiritual sense of the term, is the most prosperous of the three. While its outward man perisheth, its inward man is renewed day by day. The hand of power may strip it of its temporalities, but we trust its indomitable spirit in the cause of a pure and scriptural faith will not so easily be quelled. Though despoiled of their rights, they will not abandon their duties. Like the Christians before the days of Constantine, they may, perhaps, have to win the ground over again—when the Church, purified by the discipline of adversity, will again arise in its strength, and, repeating the conquest of truth over a degrading superstition, will add
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another victory to the triumphs of former generations."
While receiving the endowments belonging to the Protestant Church, the Protestant clergy in Ireland had not departed from the path of duty by ceasing to support the cause of truth against that with which it was in a state of the greatest antagonism; and if ever they lost the affections and esteem of their countrymen, it would be through pursuing the inconsistent course of not defending that cause which they were bound to defend.
The Marquess of Normanbywished to put a single question to the right rev. Prelate with respect to this petition. He could not conceive for what purpose he had made the remarks which he had done, unless it were with the intention of attaching all the weight which now belonged to the character of the Irish clergy to the petition which he had presented. He entirely agreed with the right rev. Prelate as to the admirable change which had of late years taken place in the character of that Church; but he wished to ask the right rev. Prelate a question with reference to the exclusive weight which he attached to the sentiments of the petitioners, namely, whether many distinguished and eminent clergymen of his own diocese had not refused to sign the petition, and had not expressed to the right rev. Prelate their entire dissent from the sentiments contained in it? He would recall to the recollection of the right rev. Prelate the names of a few clergymen, who he was sure the right rev. Prelate would agree with him were amongst the most eminent—the Rev. Mr. Woodward, the Rev. Mr. Darby, the Rev. Mr. Heffernan, and the Rev. Mr. Paliser, rector of Clonmel.
The Bishop of Cashelsaid, that not one single clergyman in his diocese had refused to sign the petition. It was got up in Dublin, was signed in two days, and had not been sent anywhere else for signatures. The clergymen of his diocese were not asked to sign it. The noble Marquess having put this question, he would state, that he had seen in the newspapers an account of some address from the clergy of the diocese of Cashel, which it was said eight or nine persons out of 160 had signed. He begged to say that no such address had ever come to him. He believed, however, that nine or ten of the clergy of the diocese, in consequence

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of having heard that Her Majesty's Government considered the absence of petitions from the Irish clergy a favourable circumstance as regarded the Maynooth Bill, had drawn up a document, which was sent round the diocese; and perhaps before this Bill came before their Lordships, he might have to state that more than 100 of the clergy had signed an address against the grant to the College of Maynooth.
Earl Fitzwilliamsaid, the right rev. Prelate had by implication pronounced a somewhat severe judgment upon those who might not entirely agree with the clergy—as he would have their Lordships believe, the unanimous clergy—of the diocese of Cashel upon this question. He seemed to insinuate, at least, that those who did not partake in that unanimity were guilty of a very great dereliction of duty. The right rev. Prelate said, in effect, that parties ought not to enjoy the endowments of Protestantism, and not resist at the same time the teaching of that between which and something else there was the greatest antagonism. Now, be (Earl Fitzwilliam) knew perfectly well, that there was great difference in some points between the Church of England and the Church of Rome — a difference which made him prefer, in a degree not much less perhaps than even the right rev. Prelate, the communion to which he belonged. But to go the length of calling it antagonism was a little too much; unless, indeed, it were the antagonism merely of sectarianism, and not the antagonism of religion. Surely the right rev. Prelate did not mean to say, that those with respect to whom the sect to which he belonged was in antagonism, did not subscribe all the leading doctrines of their common religion? If he understood the scope of the right rev. Prelate's speech, his object was, to show that for a long period every clerical appointment in Ireland was made with a view to English, and not to Irish interests; but he could not conceive how his speech could be worth anything for the purpose for which he had presented the petition.

ECCLESIASTICAL COURTS CONSOLIDATION BILL.
Lord Cottenhamrose to move their Lordships to give a second reading to the Bill for the Consolidation of the Ecclesiastical Courts. If this were a new question,
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if it were the first time that he was asking their Lordships to give effect to a Bill, the object of which was to set aside the jurisdiction of a great many very ancient courts, and adopt a new jurisdiction to dispose of all ecclesiastical matters over which jurisdiction ought hereafter to be given, he should feel it his duty to enter at large into the subject, to induce their Lordships to adopt a proceeding which certainly was extensive in its operation, and upon which considerable difference of opinion might be supposed to exist; but this was a subject of all others the most exhausted; it was one which had been for many years under the consideration of this and the other House of Parliament, and he thought their Lordships would be of opinion, when they recalled to their recollection what had taken place in the other House of Parliament, and the Royal Commissions which had sat on the subject, that there could hardly be mentioned a subject for the consideration of Parliament on which there had been so uniform a concurrence of the opinion of all persons. Before he stated the object of the present Bill, he wished to relieve the case from every disadvantage which might arise from his being the individual who brought it forward. He had been induced to do so because he had been for many years the advocate of this measure, and because it fell to his lot in the year 1836 to propose to Parliament a Bill for this very purpose. The Bill which he had now to submit to their Lordships' consideration was precisely and identically, word for word, the same as the Bill which was settled in the Select Committee in the year 1836. There might be some small details of the Bill which might not be precisely adapted to the existing state of things, because, since that period, some alterations had taken place which might make some trifling alterations in the Bill necessary; but he was anxious to state that the Bill was not his, but the Bill of the Select Committee of that date. He, therefore, thought it better to present it in the form in which he found it settled by the Committee. It would be his duty, before he sat down, briefly to call to their recollection the various proceedings which had been had in Parliament on the subject; and, indeed, they were so numerous and so unanimous and conclusive as to the merits of this measure, that perhaps he might still leave it to the authority to be derived from the various investigations and opinions which had been communicated to Parliament;

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but there might be some of their Lordships who had not had these subjects under their consideration, and, perhaps, in a matter so important, in which the regulation of very important jurisdictions were aimed at, and in which the abolition of 370 courts was proposed, it might be considered his duty to state to their Lordships shortly what was the grievance, and what was the remedy which he proposed to apply. Their Lordships were aware of many of the matters which were subject to the jurisdiction of the Ecclesiastical Courts, which, in their importance, could not be exceeded by the matters submitted to the jurisdiction of any other courts. Their Lordships were aware that matrimonial questions—whether a man and woman who were supposed to be a man and wife were really married, the situation in which they themselves stood, the situation in which their child or children might stand, and all the rights incident to the state of marriage, were matters for the consideration and decision of the Ecclesiastical Courts. Questions, whether a marriage was originally void, whether it was within the legal requisites which enabled a party to contract marriage, or whether there was anything belonging to it which made it void, were matters for the consideration of the Ecclesiastical Courts. Again, questions arose, not where a marriage was actually void, but where it was voidable if declared to be so by a competent jurisdiction, that competent jurisdiction being the Ecclesiastical Court; also in cases where the marriage was in itself valid, and where the parties applied to be divorced, not a vinculo matrimonii, which was the province of Parliament, but a mensâ et thoro, it was the Ecclesiastial Court which had jurisdiction. These were most important subject matters of jurisdiction—these were matters in which the interest and welfare of that part of the community with respect to whom such questions might arise were peculiarly interested in having a valid and proper jurisdiction for the purpose of determining these important matters. Another most important subject of ecclesiastical jurisdiction was the power of deciding upon the validity of wills, and of granting probate, or decreeing the administration of assets of those who died without wills. He need not state the immense importance of this jurisdiction. Originally it was undoubtedly of little importance, because when those courts were constituted, the personal property of the inhabitants of this country was
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comparatively small. Those who were rich were the possessors of land; now the personal property of the country was enormously great, and most important interests were concerned in the due administration of the laws by which the granting of probate and the establishment of wills were to be regulated. It was not only in respect to this property that the jurisdiction of the Ecclesiastical Courts was important; for although it had no jurisdiction over freehold land, its jurisdiction in fact extended over questions which concerned a large portion of the landed interest; for instance, it had jurisdiction over matters concerning leases and terms for years. In the province in which their Lordships were now sitting, there was little property which was not leasehold—the freehold belonging to some proprietor, but all the houses built on the land were held for long terms of years. So that although the probate or administration granted by the Ecclesiastical Courts had no effect on the freehold interest, it had a direct effect on all that interest in land which depended on leases or terms of years. These were the two great subject matters of ecclesiastical jurisdiction. There might be others of minor importance, because the jurisdiction had been found to be so impracticable that it had almost fallen into desuetude. There was a jurisdiction over legacies; but few instances were found of that jurisdiction being called into action. There was a jurisdiction over matters of title, but the court was incapable of deciding on the rights of parties who had questions of title arising, so that very few suits were instituted for that purpose. One matter of jurisdiction was of very considerable importance, when we consider how much feeling had been excited on it; he meant the question of church rates. Their Lordships knew that the payment of church rates by those who were not members of the Church, had been a subject of great irritation in various parts of the country. He gave no opinion as to what ought to be the rule as to church rates. It was quite obvious that the building of churches must in some way be maintained; but their Lordships, in securing that object, would be desirous as far as possible of avoiding the irritation which proceedings in courts created. At present if a party had conscientious scruples against paying a church rate to the support of a Church of which he was not a member, the evil was very much aggravated, and his feelings were embittered, by his refusal leading to a protracted suit in the Ecclesiastical

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Court. Leaving the question of granting church rates untouched, means were suggested by the Bill now under consideration by which church rates might be collected without giving rise to that irritation. There were other matters upon which no doubt was entertained as to the propriety of abolishing the jurisdiction. The Ecclesiastical Courts exercised criminal jurisdiction in certain cases—in cases of defamation, of incest, and of quarrels, and brawling in churchyards—all which fell properly under the head of criminal jurisdiction, because it was exercised for the purpose of punishment—a punishment which was now regulated by Act of Parliament. There was no reason why these criminal offences should be taken notice of and punished by the Ecclesiastical Courts, any more than any other offences subject to the jurisdiction of criminal courts. He thought he had said enough to show that the jurisdiction exercised by the Ecclesiastical Courts was of great importance to the community; that it applied itself to matters deeply affecting the interests of the subjects of these realms—matters, which to be decided upon satisfactorily, ought to have a tribunal capable of coming to a proper conclusion. He would now call their Lordships' attention to the state of this ecclesiastical jurisdiction. It appeared from the Report of the Ecclesiastical Commission that there were no less than 386 Ecclesiastical Courts, some of them exercising jurisdiction over all ecclesiastical matters, some of them exercising jurisdiction over part, some having power to grant probates of wills, but not having power to grant administration of intestates' effects; in short, the jurisdiction was infinitely various, but every one of these courts had the power, unless limited by custom, of exercising jurisdiction over all these important matters. Now, as to the appointment of the judges of these courts. Almost all of them were appointed by individuals, many of them, he thought seventy, were attached to manors, and the judge, therefore, was appointed by the lord of the manor: so that if an unfortunate couple lived within a manor in which the lord had the franchise of holding the Ecclesiastical Court, the validity of their marriage might come to be decided by some person or other, whomsoever the lord of the manor might think proper to appoint. That, their Lordships might suppose, was an extreme case. So with regard to the property of persons who died within the jurisdiction; it was
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the individual who might be appointed by the lord of the manor who had to decide as to the validity of the deed, or as to the distribution of the personal estate. Some jurisdictions belonged to the archbishop, some were peculiar, some rectorial. That state of things ought not to be. Nobody had suggested, and nobody would suggest, that these 380 minor Ecclesiastical Courts ought to continue to have jurisdiction over these important interests. One great difficulty which arose from this multiplicity of courts, and which, in fact, would arise upon any number of courts, if they were to exceed the number of one, was the difficulty of ascertaining where the jurisdiction lay. That had driven almost all the business of the Ecclesiastical Courts into the Court of the Archbishop of Canterbury. It was part of the ecclesiastical law that these peculiar jurisdictions lost their jurisdiction as to matters testamentary, if the party dying had property under any other jurisdiction. The limit of that was 5l.; but then who was to ascertain whether he had 5l. anywhere else or not? To give an instance of the difficulty of ascertaining these facts. If a party died having leasehold property, the proper jurisdiction was in the place where the leaseholds were. If he had money in the funds, the proper jurisdiction was where the dividends were paid. If his property depended on judgments, the proper jurisdiction was where the judgments were entered. If part of the property depended on bonds, the proper jurisdiction was where the specialty happened to be found. If he had contract debts, the proper jurisdiction was where the debtor lived. If he died, and property was found upon him, then the jurisdiction was not where he himself was found, but where his proper domicile was. In all these cases the question arose where the will was to be proved; the result was that much more than four-fifths of the whole probate business of the country was transacted in the Prerogative Court of the Archbishop of Canterbury. If a party, not knowing whether there were bona notabilia in other jurisdictions, happened to administer the estate in a particular jurisdiction, the whole of the proceedings were void—not that the probate was voidable—not that something ought to be done and set right; but the whole jurisdiction was voidable from the commencement. How did that operate on the real property of the country? We knew that there was hardly an estate in which there was not a term of

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years. These terms were always vested in two or three or more trustees; these trustess in process of time died. It very seldom happened that attention was paid to the death of two trustees; the consequence of which was, that when the last trustee died, the term was vested in the personal representative of the surviving trustee. Who was the personal representative of the surviving trustee? He was the party to prove the will; but if he proved the will in the wrong jurisdiction, the legal title of the estate was gone. All this would be entirely remedied if there was no doubt as to the proper jurisdiction of Ecclesiastical Courts, and if all mankind knew that by obtaining probate in particular courts, they had got a proper representative of the individual in whom the property was vested. These difficulties were so great, and the difficulty which had arisen from them had been so much felt, that parties had had recourse almost exclusively to the Prerogative Court of Canterbury. But there, though safer, they were not safe. They were safe for this reason, that a probate granted by the Prerogative Court of Canterbury was not ipso facto void, but voidable. If erroneously obtained it might be set aside, but was not absolutely void; and until it was set aside it was available. The Prerogative Court had no jurisdiction except in matters where an appeal lay, so that where probate was granted in the Prerogative Court of Canterbury, of a will which belonged to a peculiar from which an appeal did not lie, the Court of the Archbishop of Canterbury had no jurisdiction to grant the probate. In the state of confusion and difficulty which attended the jurisdiction of the Ecclesiastical Courts, they would not be surprised that an opinion had been expressed by all the various Commissioners by whom this matter was investigated, and a uniform report made, that these minor jurisdictions ought not to be continued. They said that in matters even of minor importance which might happen to come before these courts, there was no hope of finding a competent judge to decide in these matters. In matters of wills there was no proper place of deposit in which they could be secured. Another great difficulty arose. It was necessary to ascertain testamentary dispositions. If it were not proved in the Prerogative Courts, how were they to prove it in inferior courts? Testamentary investigation was attended with great expense. One uniform opinion had been expressed
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by the result of all their inquiries, that all these inferior jurisdictions ought to be abolished. In former discussions some objections were made as to the abolition of diocesan courts. It was said, that it was quite right to abolish all peculiars and all subdivisions of the Ecclesiastical Courts; but why abolish the Diocesan Courts? For the same reasons which could be urged against the small ecclesiastical jurisdictions. There was not business sufficient to supply them—there was not business sufficient to pay the judge—there was no place provided where wills could be secured. There was great danger in the absence of all these securities, which ought to exist in every case where jurisdiction was confided. In 1832, there was inquiry made into the ecclesiastical jurisdiction, and the Committee reported against the Diocesan Courts. In 1833, a Commission was appointed to inquire into real property, who concurred in the same opinion. In the same year there was a Committee of the House of Commons upon the Admiralty Courts, and they reported against the existence of the Diocesan Courts. In 1836, a Select Committee of this House made some inquiry upon the same subject, with the same result, and, in 1843, a Bill was brought into the House of Commons for the purpose of abolishing them. It was on the authority of the Ecclesiastical Commission that he stated that there was not business enough to support these courts, from whose Report it appeared that the average number of cases for each was 1½ per annum. In the diocese of Salisbury it appeared that there was no contested suit for a number of years. In Chichester there was no suit of the kind for three years; and, it appeared that there were no proctors in the latter court—a pretty sure indication that there were no suits. He had struggled to obtain the establishment of local courts. It was said that it was inconsistent to establish them while they endeavoured to destroy the local jurisdiction of the Ecclesiastical Courts, but that depended upon what the new courts were to do. In matters where the presence of individuals was necessary, or where witnesses were to be examined, it was undoubtedly necessary to afford the means of examining them near to where the party resided, as that would save them much inconvenience and expense. A right rev. Prelate then present (the Bishop of London) could confirm his statement that parties were compelled sometimes to travel an immense distance to the Diocesan Courts.

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What he proposed was, the establishment of a central court in London to which all wills should be sent. In order to relieve individuals from expense when the property was small, the suggestion was that a surrogate should be appointed in the country by the judge of the court, who should receive the will, and after taking a copy of it, transmit it with the necessary papers to London, when it was to be deposited in the court; and in London, probate should be had. The surrogate in the country should keep a copy of the will, as well as the probate, for the convenience of the public in the neighbourhood. The question whether the Courts of the Archbishop of York and of the Archbishop of Canterbury should be preserved, was debated by the Ecclesiastical Commissioners in 1832, and the conclusion at which they arrived was, that there was the same objection to the preservation of these two courts as to the more numerous jurisdictions, and they reported in favour of the abolition of the jurisdiction of the Archbishop of York. The subject came again under consideration in 1833, when a Committee of the House of Commons also recommended the abolition of this jurisdiction. In 1836, a Select Committee of their Lordships' House also agreed that the jurisdiction of the Archbishop of York should be abolished. After great deliberation, this was the decision at which three separate inquiries arrived. The result of the various inquiries to which he had referred was an opinion that there should be only one court for this important business; and as to the smaller properties under 300 l., that the scheme should be resorted to in the way of giving the parties the convenience of a local registry, and yet secure the benefits to the public by a general registration. There was a provision existing in respect to the deposit of wills in London from the local courts. There would thus be a means of investigating testamentary dispositions of all persons as regarded personal property. There were very few wills which referred to real property only. In such cases probate was not necessary; but if both descriptions of property were included, there would be a registration affecting the real and personal estate. This part of the case was relieved from one of the objections which had been made against the registration of deeds—namely, that by the registration of deeds, they were exposed to the inspection of any persons who would be disposed to quarrel with the title of them were any defects to
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be found in them. That might be said in regard to the law as it at present stood; but this Bill would secure a general registration of all wills. Then as far as the jurisdiction over wills was concerned, his proposition was, that all business of the kind should be carried on in London. If it were necessary before they paid legacies to ascertain whether the debts had been paid, the Ecclesiastical Courts had no jurisdiction. With regard to church rates, the proposition contained in the recommendation of the Committee was not to interfere with them. The proceedings in the Ecclesiastical Courts were found to be very tedious and very expensive. The proposition, then, was to put the church rates in the condition of the poor rates. It was proposed to take away the jurisdiction in all criminal matters. With respect to sequestration, when the income of the clergy was sequestrated, care would be taken to provide means out of it for the due performance of their duties, and the remainder preserved for the benefit of the creditors. This was an outline of the Bill he proposed to their Lordships, and he thought he had said enough to show that the propositions were not his own, but those of authorities which their Lordships would be disposed to respect. This was no question of one set of public men set up against another. As early as 1812, Sir William Scott brought a Bill into the House of Commons for the purpose of setting aside all minor jurisdiction. He had already referred to the Ecclesiastical Commission of 1832. Upon this Commission there were six Bishops, three Chief Justices, and four of the most eminent civilians, who all concurred in the same opinion. In 1833, when the Report of the Real Property Commission was made, his noble Friend behind him (Lord Campbell) was at the head of it, and some of the most eminent conveyancers and lawyers in the country, who also concurred in the same opinion. In 1833, he found many of the leading Members of the present Administration concurring in the Report which recommended the abolition of these minor courts; and in 1836, his noble and learned Friend on the Woolsack, and some of the right rev. Prelates, were Members of that Committee, together with nearly all the lawyers in this House, which made a similar Report. In 1843, a Bill was brought into the other House, on the back of which were the names of Sir James Graham and the Attorney General, which Bill

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proposed the abolition of these courts. It might now be asked why, with all those concurrent opinions upon the subject, some measure on the subject had not long before this been passed into a law? As far as he was concerned, he was anxious to explain the circumstances under which he had brought the subject under their consideration. He had brought in a Bill in 1836, the Report upon which was referred to a Select Committee, which Committee made their Report on the 7th of August, in the same year. The difficulty in passing that measure was the proposition to abolish the Bishops' Courts; for if that had been conceded what would have become of the discipline of the clergy? In what way would the bishop have been able to arrest improper conduct in the clergy in his diocese? The remedy for that, however, ought to have come from the right reverend Bench. Unfortunately, it was not very easy to procure a general concurrence in a proper measure for this purpose. Why that concurrence was not earlier obtained it was not necessary now to inquire; but year after year passed by without any intimation that the right rev. Bench had come to any unanimous opinion on the subject. They did, however, at last agree, whether happily or not it was immaterial now to inquire. The measure, however, did not become law till 1840; and, until that period, therefore, all proceedings founded on the Report of 1836 were necessarily suspended. In 1841, he (Lord Cottenham) had a very serious illness, and on his return to the House he found matters in a state which did not promise a successful issue to any such measure. It was Easter before he returned: and if their Lordships would call to their mind the events of that time, they would find in them a sufficient justification for the course which he then adopted. In 1843, he was rejoiced to find a Bill brought in on the subject by his noble and learned Friend, and he would not inquire how it happened that that measure did not pass. It did not pass, however. In 1844, another unsuccessful attempt was made, and in the present year they had received an intimation from the Government that no intention existed on their part of legislating on the subject during the present Session. Under these circumstances, seeing no disposition on the part of the Government to proceed with any measure, he thought himself justified in taking advantage of the first opportunity which presented
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itself to call their attention to the subject. It was of no use to conceal the difficulties connected with it. It was supposed to interfere with private interests in certain localities, and consequently vehement opposition was to be expected; but he held it unworthy the dignity of Parliament to allow such considerations to fetter their course in applying a remedy to a universally acknowledged evil. The case would be different if a diversity of opinion prevailed; but the fact being otherwise, he trusted their Lordships would not hesitate in giving the measure their sanction from any apprehension of opposition out of doors, when they had in its favour the weight of the Report, supported by the concurrent testimony of all the eminent men who had turned their attention to the subject. The noble and learned Lord concluded by moving the second reading of the Bill.
The Question having been put,
The Bishop of Lincolnsaid, he was not about to offer any opposition to the Motion; but having been a member of that Commission to which the noble and learned Lord had referred, he felt called on to offer a few observations to their Lordships. The noble and learned Lord had rather exaggerated the inconvenience arising to the public from the wide extent of the diocese of Lincoln, when he supposed the possibility of a person being compelled to go from the Thames to the Humber; because in every archdeaconry there was an officer called a Commissary, the Chancellor, in fact, of the archdeaconry, to whom application might be made without entailing the necessity of travelling so great a distance. The question for their Lordships to consider was how the public convenience could be best promoted; and he trusted that the machinery of the present Bill would be so arranged that persons applying for probate would not be put to greater expense than under the present system. Another remark which he had to make was, that the proposal now brought forward was, in fact, a very different measure from that recommended by the Ecclesiastical Commissioners in 1832. One of their recommendations was that the provincial courts of Canterbury and York should be retained. The Court of Probate, he understood, was to be a lay court; and in one of the clauses of the Bill the power of excommunication was given to it. Did their Lordships, then, mean to vest in a lay court the power of

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excommunication? Another point to which his attention had been directed was, that by this Bill all matrimonial matters were to be transferred to these courts, including cases of divorce. Now their Lordships must be aware that by members of the Church of England marriage was considered as a divine ordinance, as a civil contract under a religious sanction; and he felt confident that they would be doing great violence to the feelings of the members of that Church if they decreed that a sentence of divorce should be pronounced by a purely lay tribunal, or at all events a lay tribunal in its origin. He begged to submit whether it would not be possible to transfer such cases to the Courts of the Vicars-general, a course which they might rely on it would be much more palatable to the feelings of the people.
Lord Broughamsaid, nothing could be more candid and fair than the statement of the right rev. Prelate. Nevertheless, he thought that his objections, or he should rather say, perhaps, his doubts, would be found, on a little consideration, and on an appeal to his own candid mind, to be destitute of any real or solid foundation; and even if they should tnrn out to be well founded, they would be more fitly urged in Committee, applying as they did to matters of detail. His answer to his noble and learned Friend's objection, respecting the extent of the diocese of Lincoln, was successful certainly as regarded the inconvenience of distance; but it was doubtful whether the multiplication of those archidiaconal courts of registration did not constitute a far more serious evil, because in gaining the benefit of proximity they would lose the advantage of centralization, and a man must necessarily be compelled to search several registers before he could ascertain whether the testator had bona notabilia in that diocese. He approved of the measure, as his noble and learned Friend on the Woolsack, and the Members of the Commission on whose Report it was founded, must approve of it. The Commission was issued by his noble and learned Friend who preceded him in office; but the Report was made to him (Lord Brougham), and on that Report he framed a Bill with some few, but very few, variations. He doubted whether it did not vary from the Report to the extent to which this Bill differed; in so far as regarded the maintenance of the two archiepiscopal metropolitan
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jurisdictions, for he remembered having a strong prepossession against keeping up those two particular jurisdictions, and in favour of centralization. He thought it would be only doing things by halves to keep them alive. Finding that a great opposition arose, the Bill was divided into five or six, and in 1833, he believed, they were brought in with the assistance of Dr. Lushington and Sir H. Jenner, Sir J. Nichol having expressed his approbation of them. In the Session of 1832 Parliament was so engrossed with the consideration of Parliamentary Reform that nothing could be done. In 1834 the Constitution of the Government was so entirely changed by the unfortunate secession of the noble Lord opposite (Lord Stanley), and the noble Lord on the cross benches (the Duke of Richmond), and the retirement of Earl Grey, that it might be considered a new Government, and the result was, that no step was then taken in the matter. Feeling the importance of legislating on a subject on which all, without distinction of party, were agreed, he asked the noble and learned Lord who succeeded him on the Woolsack whether the Government intended to take any steps in the matter, and was informed that the Attorney General had been instructed to introduce a Bill, and the Bill was in fact brought in. He now came to the other matter touched on by the right rev. Prelate—the spiritual jurisdiction. The right rev. Prelate asked whether spiritual matters, such as excommunication and matrimony, were to be disposed of by a lay tribunal? But his knowledge immediately suggested an answer; for who could be much more a layman than Dr. Lushington? Who less a priest than Sir J. Nichol? Who more secular than Lord Stowell? And yet all these, without any exception, administered these functions of a quasi spiritual nature. The right rev. Prelate, therefore, found it necessary to retouch his hypothesis; a bad symptom, as the right rev. Prelate's early studies would inform him, in an argument, and he qualified his statement by saying of "lay origin." If the jurisdiction involved matters of faith and doctrine, it might be improper to entrust it to lay hands. What possible difference could it make in the nature of a judge or of the court in which he sat, that he was appointed by the Archbishop instead of the Lord Chancellor? The Lord Chancellor

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was formerly said to be a spiritual person; his noble and learned Friend might hold that character, but he (Lord Brougham) was not aware of it. He was also reminded by a noble and learned Friend near him, of another high functionary, higher than the Archbishop of Canterbury, or the Lord Chancellor, whose conscience was in the keeping—the very safe keeping too, he felt assured—of his noble and learned Friend on the Woolsack. None would venture to dispute the power of that high functionary, whose character was of a mixed nature, partly spiritual and partly temporal, partly religious and partly secular, to make archbishops and bishops. A police magistrate was not a spiritual officer, yet a couple could go to Bow-street or Marlborough-street and be married on any day of the year. The present distinguished Prelates, the Archbishop of Canterbury and the Bishop of London, appointed the two Judges by whom the quasi spiritual power of excommunication and jurisdiction in matrimonial cases was exercised. The Bishop of London appointed the Vicar Principal, Dr. Lushington; and the Archbishop of Canterbury appointed the Dean of Arches, to whom an appeal lay from the Vicar Principal. The fact of these two Prelates appointing these judges had always been considered by lawyers, and those who had considered the Constitution of this country, as a great anomaly; and it had been heretofore so represented to those distinguished Prelates, who then expressed their willingness to surrender it to the Crown, provided that the Crown would also undertake to fill all the other appointments in the province. He was happy to find there was no opposition to the principle of the Bill; whether or no they should surrender any part of it to the objections offered, they would be better able to decide in Committee. Those objections were altogether raised by interested parties, the proctors, who were now striving to do the same by this Bill as the attorneys had done on a former occasion with respect to registration.
The Earl of Winchilseasaid, he regarded the Bill as one of great importance; but he quite agreed with the right rev. Prelate, as marriage was considered by members of the Church of England not merely as a civil contract, but also as a divine ordinance, it would be more palatable to them if the court which had to
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decide on divorce retained something of its ecclesiastical character. It was quite true that divorce was now pronounced by lay judges, but they were appointed by bishops. Such was the religious feeling of the country on this subject, that he believed the late Marriage Act was very little used; and it was found that marriage, when stripped of its religious character, was not so practically binding as when sanctioned by the religious ceremonies of the Church. He entertained great doubts as to the propriety of abolishing the registration of wills in the country, in consequence of which all persons wishing to inspect them would have to come to London. The expense of this might be no objection to many parties, but he thought it would occasion much inconvenience, and create much discontent, among the poorer classes.
Lord Campbellsaid, it afforded him great satisfaction to find that the Bill would pass almost unanimously. It did not, as was supposed, at all entrench upon ecclesiastical jurisdiction; for as to marriage, though, like the noble Earl, he wished to see it observed as a religious ordinance, at present by the law of England it was undoubtedly a civil contract. When he was Chief Commissioner of the Real Property Commission, he had strongly joined in recommending such a measure, and he sincerely hoped it would be carried into effect.
The Lord Chancellorsaid, he should give the Bill his anxious support. He should act inconsistently with the course pursued by the Government, if he acted differently, because it had been correctly stated that a Bill similar in principle, and almost corresponding in detail, was brought in by the Government in the other House in 1843, and was not successful from the circumstances to which his noble and learned Friend had alluded.
Bill read 2a.
House adjourned.