HL Deb 16 February 1854 vol 130 cc702-32

I rise, my Lords, pursuant to a notice which I gave some days ago, to call your attention to the state of the law relating to testamentary matters. I cannot but feel that, after the exciting topics which have engaged your Lordships' attention on more than one evening, it will be a very difficult task on my part to arrest your attention on a subject so dull, so stale, and so unexciting as that which I feel it my duty now to bring before you. But dull and uninviting as it is, I believe it to be one of most essential importance, and therefore I am sure that I shall not in vain invite your attention to it. The subject of the testamentary jurisdiction of this country is one which has been considered by the Legislature, and every successive Government, for a period of now more than twenty years. It has been from time to time admitted that the law on that subject is in a most unsatisfactory state, that it requires the intervention of the Legislature, and that some remedy ought to be found for evils of a very practical and pressing nature. In order that I may not be supposed to be providing a remedy, if remedy it may be, for evils which are merely imaginary, I will, with the permission of the House, state what I conceive to be an outline of the evils, or of some of the evils, now existing with respect to our testamentary jurisdiction. In a very early statute—as long ago as the time of Edward I.—it was stated as admitted law, that the cognisance of all matters testamentary belonged to what was then called "holy Church"—in other words, that it was matter of ecclesiastical cognisance. That, I think, is of itself a very anomalous and a very unfit state of the law. There is no more reason why the jurisdiction as to wills should be matter of ecclesiastical cognisance than why the same courts should also entertain matters relating to deeds, or any other questions relating to the transfer of property. But if it were merely that there was this apparent anomaly—that the state of things actually existing does not square conveniently with our theories on the subject—I should have thought that at no time, and certainly not at the present time, would it have been fitting to have occupied your Lordships' attention with an attempt to remedy an imaginary and apparent inconvenience. But that is not the case. The evils of which we have to complain are not imaginary. When it is said that the cognisance of testamentary matters belongs to holy Church and to the ecclesiastical tribunals, what your Lordships are to understand is practically this—that the question whether an instrument which a deceased person has left behind him is or is not a will, may be entertained and decided by no less than 386 tribunals scattered over the Kingdom. There is in every diocese the diocesan court of the bishop, and—I do not know whether in all dioceses, but certainly in many—there are a number of other minor courts—commissary courts, archidiaconal courts, and courts of what are called "peculiars," It would be idle for me to attempt to define or explain the precise nature of these courts, and of the distinctions which exist between them. It is sufficient to say that in every diocese there exists a diocesan court, and that in most dioceses there are besides a number of other minor courts, from all of which appeals lie to the diocesan court. Besides these, there are, in a great number of districts throughout the country, tribunals of a much smaller jurisdiction—courts belonging to lords of manors, courts called royal peculiars, and other anomalous courts, all having a very petty jurisdiction, The whole of the courts referred to amount, as I have already stated, to the enormous number of not fewer than 386. From the diocesan courts there is an appeal to the supreme court of the province in which the diocese is situated; which, in the province of Canterbury, is called the Court of Arches. There is also a court belonging to the Archbishop of Canterbury called the Prerogative Court, which, in certain cases, has jurisdiction over all the dioceses in his province. Now, the very existence of such a number of courts is a state of things fraught with the greatest practical evils, arising from a variety of causes that will immediately suggest themselves to any one who considers the subject. In the first place, there is the multiplication of appeals; and then—a much more serious evil—there is the uncertainty that often exists as to what are the limits of each jurisdiction. The result of a mistake on this point is, that if you have gone to the wrong court, you will probably have proved your will before a tribunal which will be found to have given you no title whatever under it. Not only is there this evil arising from uncertainty as to the boundaries of the several jurisdictions, but doubts, as must naturally be the case, arise as to whe- ther one of these minor courts has or has not jurisdiction at all; and if it has not, then your probate is either void or voidable. Now, it is quite obvious, that that alone would furnish a reason why it is the duty of the Legislature to interfere. But that is not all. Very often there are contested matters with reference to the proof of wills that involve delicate and difficult investigations. There are subjects which it is exceedingly difficult to deal with, even in the Prerogative Court of the Archbishop of Canterbury; how then can it be expected that in these little petty tribunals there can be functionaries competent to deal with any questions not of the most ordinary character. It would be absurd to imagine it for a moment. Besides that, the original wills have to be preserved; and there are few of these small jurisdictions that have proper places to preserve these most important documents which regulate the title of property from generation to generation. The consequence of their being thus dispersed, and of their being entrusted to persons who are almost irresponsible for their safe custody, is, that original documents of the highest importance are no doubt sometimes lost. This appears to be of itself quite sufficient, if there were nothing more, to warrant me in saying that this is a subject which it is the bounden duty of the Legislature to attempt to regulate. But even suppose that all these minor courts were got rid of, and that there remained only the Prerogative Court, and the court of each diocese—you will have got rid of some of the difficulties, but by no means of all; because there would still remain this question:—In which Court is it that you should prove your will? For instance, a party dies in the diocese of Worcester or in that of Oxford. Is his representative to prove his will there, or in London? On what does that depend? On this question—Whether the person who dies has left what are called bona notabilia out of the diocese—that is to say, whether he has left property to the amount of 5l. out of the diocese in which he dies. Even that, however, is matter of doubt; for some lawyers think that there are only bona notabilia if the deceased has left property to the value of 5l. out of the diocese in which he dies; while others believe that all that is requisite is that he should have left property in two dioceses worth in the whole 5l. It is obvious that it must often be most difficult to determine what property a man has left out of the diocese. For instance, if a person dies in the diocese of Worcester, and somebody in that of Hereford owes him 5l., that would constitute bona notabilia out of the diocese, because a simple contract debt is supposed to be in that place where the debtor is that owes the money. Again, the deceased may have a bond, the obligee of which may reside in the diocese of London or Lincoln; then if he has died in the diocese of Worcester, that bond constitutes bona notabilia. But, further even than that: he may be a trustee under some friend's marriage settlement, and as trustee of that settlement, perhaps, he has a term of years, a mortgage, totally unknown to his representatives; it is at least a matter of doubt whether even what is called a mortgage term, which he holds merely as a trustee, does not constitute bona notabilia out of the diocese. That is what lawyers call a vexata quæstio; it is not quite settled; but the mere doubt is a great evil, and is quite sufficient to show that there is an evil requiring a remedy. What, then, is the consequence if, a testator having bona notabilia out of the diocese in which he dies, his executor proves his will in that diocese? That the probate is an absolute nullity, and that third persons are dealing with a person no more competent to give a receipt than a mere stranger. The whole proceeding is void, and may not only involve the executor in great embarrassment, but may lead others into embarrassments not less grievous or oppressive. But suppose that, in order to obviate these difficulties, an executor takes upon himself to prove the will in the Prerogative Court of the Archbishop of the Province—what is the result then? The prerogative probate is, of course, good, if there are goods out of the diocese. It is not void, even if it should turn out that there are not. But it is voidable if this can be proved; and a suit may be instituted to compel the executor to recall the prerogative probate, and to prove the will in the diocese in which alone the deceased left goods. These are evils of the present system which lie on the surface; but there is still another which I conceive to be of a very pressing nature—and it is this. Be the jurisdiction with one of these courts or with another, they have not cognisance of the whole subject which, in substance and truth, should come before them. I allude to the distinction as to the cognisance of wills of real, and of those of personal, property. It would be rather a speculation for an antiquarian than for a practical person to attempt to investigate what were the causes which originally gave to the ecclesiastical courts the cognisance of any testamentary matters; but one thing is quite certain, that they never had cognisance of testamentary matters as to real estate, that is, as to real estate technically so called. For, if I have an estate in a parish of one half of which I am owner in fee-simple, while I have in the other only an interest for 1,000 years—a sort of interest which is well known to lawyers, and which practically is just the same as a fee-simple—the ecclesiastical courts will have cognisance of the one half, and the temporal courts of the other half, although to the eye the whole property looks the same, and though it is essentially of the same value. This is obviously a distinction of an entirely artificial nature, arising from the refinements in our laws, and it is certainly an evil which we ought to remedy while we are about reforming the law. This is not an evil of an imaginary character, for observe what may happen, and indeed what has happened from time to time. The ecclesiastical courts having cognisance of personal property, and the temporal courts of real property, it may happen—and indeed has happened—that an ecclesiastical court has determined a particular will to be or not to be, as to the personal property, a valid will, while the temporal courts have decided just the contrary with respect to the same piece of paper, in so far as related to the real property. That did happen once in a case mentioned by Lord Hardwicke: the ecclesiastical courts decided that the will was good because the testator was of sound mind; and, afterwards, when the same will was brought in question in the temporal courts, it was decided that he was of unsound mind, and that the will was defective. The same thing happened again in the present century, in a case mentioned by Dr. Lushington. It might also have happened in a case in which my noble and learned Friend behind me (Lord St. Leonards) was counsel, and to which he referred in the able address which he made in this House early in the last Session. In that case the ecclesiastical courts held the will to be bad because the testator was subject to monomania; probate was refused, and the personal estate did not pass under the instrument called his will, but went to the next of kin. The same will embraced also bequests of real estate; and facts were brought before lawyers not connected with the ecclesiastical courts, and particularly before my noble and learned Friend, which sufficed to satisfy them that there was nothing to show that the testator was not perfectly competent to dispose of his property, and they, therefore, advised that the will should be supported and insisted upon before the temporal courts as to his real estate. The parties, however, upon this compromised the matter; and the conflict which might otherwise have probably arisen between the decisions of the two Courts did not take place. Is not this a very improper and a very anomalous state of things? It is, too, a state of things which cannot be remedied in the present state of the law, because there is no common court of appeal from the two jurisdictions. If two different tribunals were to decide upon the same matter, but eventually the proceedings before each conveyed to one higher Court, there might be inconvenience, but there need not be any eventual inconsistency in the administration of the law. Now, however, a person who is dissatisfied with the decision of the ecclesiastical court; can only go to the Judicial Committee of the Privy Council; and a person who is dissatisfied with the decision of the temporal courts can only appeal to your Lordships' House. In the case mentioned by Lord Hardwicke an appeal was brought before the House of Lords, who were satisfied that the will was either good or bad—I forget which—but just the opposite of that which was decided by the ecclesiastical courts; and application was made to the House to make an order against the ecclesiastical courts—but they said at once that they had no jurisdiction, and so the matter rested. I think I have now shown your Lordships evils not of an imaginary nature, not such as mere theorists may find fault with, but such as press practically on Her Majesty's subjects, and render it at least not inexpedient that we should attempt to find a remedy for them. This has been felt to be the case for more than twenty years, and attempts to remedy this state of things have been made from time to time; and I must say, as I remarked last year with reference to the Charitable Trusts Bill, that it is a marvel how those attempts, so often made for this long period, should have uniformly failed. In July, 1830, just after the accession of his late Majesty William IV., a commission—prepared just before the death of George IV., but interrupted by that event—was issued to functionaries of the highest character and distinction in the country, to inquire into the jurisdiction of the ecclesiastical courts, more especially as to wills. The Members who composed that commission were persons to whose opinions the country would naturally be inclined to pay an almost reverential deference. Amongst them were the Archbishops of Canterbury and York, the then, and I am happy to say also the present Bishop of London, the then Chief Justice Lord Tenterden, Chief Justice Tindall, and Chief Baron Abinger; Sir Christopher Robinson, the Judge of the Court of Admiralty; Sir John Nicol, the Judge of the Prerogative Court; Dr. Lushington, and Sir Herbert Jenner Fust. To them was referred the investigation of this difficult subject. There was at the same time an inquiry pending by the Real Property Commissioners, who also undertook to investigate this point. The Ecclesiastical Commissioners having pointed out some of the evils to which I have adverted, recommended as a remedy the abolition of all the ecclesiastical courts so far as wills were concerned, except the two courts of the provinces—the Prerogative Court of Canterbury and that of York. It is not difficult to discover that, although they did not recommend the step, they inclined to the abolition of the York court also; thus, in fact, constituting only one court, the Prerogative Court of Canterbury, and giving to it the sole jurisdiction on this subject. There were probably reasons which induced them to abstain from recommending the York court, In these two courts, then, the Commissioners recommended that all wills, whether relating to real or personal property, should be proved. They made recommendations also as to matters of detail, and the mode of trial, which it is not necessary to refer to. In the following year the Real Property Commission to which I have adverted, consisting of some of the eminent lawyers of the day—my noble and learned Friend the Lord Chief Justice (Lord Campbell) was at the head of it, and there were a great number of others, all being persons most highly skilled in real property law—took this subject into their consideration. They made a report, recommending the abolition of all the ecclesiastical courts in matters relating to the probate of wills; they did not, recommend, however, the same mode of amendment as that suggested by the Ecclesiastical Commissioners. They recommended that all wills should be simply registered, unless there was some dispute about them; and that in contentious cases all the busi- ness should be transferred to the Court of Chancery, as being the best tribunal to settle them. They made their report in the year 1833, the Ecclesiastical Commissioners having reported in 1832. At that time my noble and learned Friend behind me (Lord Brougham) held the Great Seal, and with the vigour which, on subjects of legal reform, has ever characterised him, he introduced a Bill, I believe in the same Session, for carrying that report, with some modifications, into effect; but that was the year of the actual passing of the Reform Bill, and it is not to be wondered at, therefore, that amongst more important concerns the ecclesiastical courts were forgotten. At the end of the year 1834, Sir Robert Peel came into office, and one of the first things that was done by Sir Robert Peel's Solicitor General, Sir Frederick Pollock, was to introduce a Bill to carry into effect those recommendations with more or less modification. Sir Robert Peel's Government only lasted for a few months, and my noble and learned Friend, who succeeded as Attorney General either took up that Bill or introduced a Bill which was attempted to be passed, but without success. Lord Cottenham succeeded to the Great Seal, and in the year 1836 introduced a Bill, which, however, did not succeed. It was introduced in this House, and read a second time; whether it went to the Commons I am not sure, but at all events, it did not pass; the fact was believed to be this, that there were such influences against those Bills, from the number of persons whose interests were or were not supposed to be affected by them, that it would be useless to attempt to pass them. This, too, was probably the reason that no further attempt was made for some time. No further attempt was made while Lord Cottenham held the Great Seal at that time. Sir Robert Peel again came into power in 1841, and it was announced in the Speech from the Throne, at the commencement of the year 1842, that the measure of a reform of the ecclesiastical courts would be taken up by his Government. A Committee of your Lordships' House was appointed to inquire into this subject, and a report was made of an elaborate character, which was communicated to the other House, and the Queen's Advocate, Sir John Nicholl, introduced a Bill for carrying into effect some of its recommendations. That Bill was read a second time in the House of Commons, but again adverse influences prevailed, and it was dropped. In the year 1844 my noble and learned Friend (Lord Lyndhurst) introduced a Bill, but that did not succeed; and in the year 1845 Lord Cottenham, then out of office, introduced the same Bill that he brought in in 1836. It was taken up by Lord Lyndhurst, then holding the Great Seal, and, I believe, passed your Lordships' House, and went down to the House of Commons; but nothing further was done with it, and from that time no further attempt in the way of direct legislation, has, I believe, been made. But though there was no further attempt in the way of direct legislation, my noble and learned Friend behind me (Lord St. Leornards) laid the foundation for legislation by a step which he took after he received the Great Seal. At the end of the year 1850, Lord Truro issued a commission to inquire into the state and practice of the Court of Chancery, with the view of amending it. The Commissioners made an elaborate report in the beginning of 1852, the substance of which my noble and learned Friend (Lord St. Leonards), to the great advantage of the country, embodied in separate Bills and passed into law, and they now constitute the law of the Court of Chancery. But my noble and learned Friend, feeling, no doubt the importance of the subject to which I am now calling your Lordships' attention, thought it would be very expedient to refer to those same Commissioners who had showed themselves so competent, and who had made a report which led to such immediate legislation, this vexed question, which no person had been yet able to solve. And to enable them to come to a correct conclusion, he added to their number several individuals not connected much with the Court of Chancery, but connected with the ecclesiastical courts, in order that, consulting together—the Chancery practitioners and Judges, and the ecclesiastical practitioners and Judges—they might make a report that would enable your Lordships, by following it, either in toto or in part, to solve this question. The original Chancery Commission consisted of my hon. and learned Friend the present Master of the Rolls, Vice-Chancellor Wood, Lord Justice Turner, the present Solicitor General, Mr. Justice Crompton, and several other eminent men; and there were added to their number Sir John Dodson, the present Judge of the Prerogative Court; Dr. Lushington, the Judge of the Admiralty Court, and Consistorial Court; the Queen's Advocate, and one or two other persons connected with the ecclesiastical courts. Those learned Gentlemen were engaged during the whole of the last year in investigating this subject. I was very much pressed, after receiving the Great Seal, in the course of the last Session of Parliament, to proceed at once to call attention to the subject, and to attempt immediate legislation in the course of last Session. And if I may occupy your Lordships by so unworthy a subject as the censure which an individual Member of this House has received, I may say that I encountered repeated attacks because I did not proceed immediately; but I thought it would not be wise or decorous to do so, as the matter had been referred to gentlemen of tried competence, who had shown already that they could construct a good measure. I thought it was more important to wait until we learned the views that were entertained by them on the subject, than to gain a year or six months in the passing of a measure of this kind, which could not be considered of that vital importance that it might not wait for a due season. The Commissioners have made a Report, to which I am now about to refer; and as I am not adhering precisely to their recommendations, but adopting a great portion of them, and varying them in some particulars, I wish to state my reasons for doing so to your Lordships. It should be stated that this report was assented to by all the members of the Commission, except the Queen's Advocate, with whom I have had a long conversation; and though he did not assent to all the suggestions of his fellow Commissioners, he seemed to me to have considered the subject very fairly and honestly. What they recommend is this: They recommend the abolition of the whole existing jurisdictions; and that the whole jurisdiction as to probates of wills and testamentary matters should be vested in a new Court, to be called the Court of Probate, and to be a temporal and not an ecclesiastical court; and they say that in that court every jurisdiction connected with the subject ought to be vested. In the first part of this recommendation—namely, the abolition of all the existing tribunals, and the transferring of their jurisdiction to a civil and not to an ecclesiastical court—I entirely concur. But I do not think that a new court ought to be created, and I have come to that opinion for the reasons which I shall state. My opinion is, that, subject to certain modifications which I shall pre- sently explain, by far the safest, and easiest, and simplest, and cheapest course to pursue, is to vest the whole contentious jurisdiction in the Court of Chancery, according to the recommendation of the Real Property Commissioners. I do not mean to say that the Court of Chancery shall have nothing to do with what constitutes now, and always did constitute, ninety-nine out of every hundred cases of the business of the Prerogative Court—that is, what is called the common-form business, or non-contentious jurisdiction; but I propose to deal with it differently from the other business. To constitute a new court in order to decide the contentious business, implies this—that there is a necessity for a new tribunal to work this machinery; but, my Lords, the Commissioners have investigated this subject, and have come to this conclusion—that in the present ecclesiastical courts there is not more (if so much) than sixty days in the year occupied in contentious business relating to wills; and I think, therefore, that it is objectionable, if it be nothing else, to constitute a new court that will have no greater amount of business to perform. To constitute a new court which would only be occupied sixty days in the year, is perfectly unnecessary, and a proceeding, if adopted, that would, at the least, require great explanation. There are four Judges in the Court of Chancery, of original jurisdiction; and if that contentious business can be dispersed amongst them, it would be only an addition of fifteen days' business for each in the year. It is impossible to speak with perfect confidence as to whether the existing staff of the Court of Chancery may be able to absorb that business, and discharge the duties attendant on it with their present functions. My belief is—and I say it from what I know of the present state of the Court, and of the anxiety of the Judges to give the fullest attention to their duties—that it is extremely probable that that contentious business can be absorbed by them. But if it be not so, still, looking forward to the increasing wealth and prosperity that may come upon this country, it may be necessary to increase the Judges of the Court of Chancery. In the process of time, we may have to appoint a new Vice-Chancellor, and the sixty days might be in that way disposed of. At any rate, unless some great advantage can be shown to be derived from having a new court constituted for the transaction of this business alone, I think the practicability of this business being thus absorbed, is conclusive against the institution of this new court. I confess, my Lords, that, independent of there not being sufficient business to occupy a court, there are other reasons which seem to me to make it extremely desirable that the contentious business of wills should not be delegated to any tribunal that has no other business to transact. I am well aware that in most of the practical transactions of life, it is desirable to have a division of labour; but I am of opinion that in the higher departments of human employment, and more especially in that of judicature, great subdivision of labour is inexpedient, I do not believe that a Judge who never considers any other subject will be so competent to deal with the question as to whether a will was unduly made, or whether undue influence was used by the priesthood, by medical people, by an attorney, or by any others that are able to influence the minds of those less powerfully minded than themselves, as a Judge will be who is in the habit of dealing with that, amongst other questions of wider range, to which his judicial capacity is applied; I am of opinion, therefore, that so far from its being an advantage that only a single class of cases should be submitted to each tribunal, it is a disadvantage. Those who have speculated on the subject may be aware of the opinion of a man, who, though eccentric, had yet very considerable powers of mind—the late Mr. Jeremy Bentham. It was his opinion that there should be no division at all of the judicial tribunals, but that the same tribunals should deal with the question as to whether a man should be hanged for murder, and as to whether a will was properly proved; he thought that every tribunal should deal with every subject. Perhaps that is running the theory to an extent that practically is inexpedient; but I think it is a view of the subject not to be altogether lost sight of. I do not see that there is any advantage in having this new court established. I think it would be of very considerable disadvantage, and, independent of that, there is not sufficient business to occupy it. When it was proposed by those who have heretofore introduced Bills on this subject to have a new court of probate, not connected with the Court of Chancery, but a court in itself, it was attempted to remove the objection to it in a way which was most to be avoided, by imposing upon it duties which are now dis- charged by the same court that discharges the testamentary business, namely, the disposal of matrimonial causes. Now what possible connection can there be between matrimonial causes and testamentary causes? They were both, though for different reasons, considered to be matters for ecclesiastical cognisance in former times; but when you are constituting a new court, it seems to be the most absurd thing in the world to impose upon it duties of a totally different nature, which you had the option of transferring to another court, merely for the purpose of giving it sufficient occupation. Therefore, I cannot concur with the majority of the learned Commissioners, who recommend the institution of a distinct court to take cognisance of the probate of wills. Having stated why I do not concur with them, I will state what it is I now propose, and what it is of the recommendations of the Commissioners that I have embodied in the Bill to which I ask your Lordships to give your assent. I adopt the recommendation of the Real Property Commissioners of 1833, and I propose to transfer this contentious business about wills to the Court of Chancery. I have stated to your Lordships that that is not the recommendation of the majority of the present Commissioners; but against the opinion of the Commissioners recommending the institution of the new Court of Probate, there is a protest by the present Master of the Rolls, by the present Solicitor General, and by Sir James Graham. Early in the progress of the Commission it was considered that the matters for investigation should not be left totally to lawyers; and two eminent laymen, not then connected with the Government, Sir James Graham and Mr. Henley, were associated with that Commission. Those three Commissioners I have mentioned took the view that I do—that to transfer the business to the Court of Chancery is the simplest and easiest mode of dealing with the subject. But of the other Commissioners, four, namely, Lord Justice Turner, Vice-Chancellor Wood, Sir J. Dodson, and Mr. Justice Crompton, were of opinion that the best thing would be to transfer the business to the Court of Chancery, but with this qualification, that it should be vested in the Court of Chancery as a sort of distinct and separate jurisdiction; something analogous, I imagine, to the mode in which bankruptcy business is transacted by the Court of Chancery, and, perhaps, lunacy. I confess I cannot understand the foundation for that recommendation; for, if the transfer the is to be made to the Court of Chancery, all argument is in favour of making the transference as complete as possible; because by doing so a great many difficulties may be avoided, and a great many advantages may be obtained.

I propose, therefore, to transfer to the Court of Chancery the contentious business; but, as I have already stated, ninety-nine out of one hundred of the entire cases belong to the class of business which is called "common form" business; that is to say, it consists in this—the will is brought by the party interested, probably, to his solicitor; by the solicitor it is brought to the proctor, who submits it to a certain functionary of the court, and great accuracy is necessary to see that all is right. It is afterwards submitted to the deputy-registrar of the court, and the will then passes. If there be any difficulty about it the registrar speaks to the Judge of the court; and if the difficulty cannot be removed, then it becomes contentious, and a Motion is made to the court. What I propose on this subject is this—I propose at once to transfer to the Court of Chancery all the staff as it now exists. I believe that the functionaries discharge their duties satisfactorily, and I believe that all of them should be transferred at once from the Ecclesiastical Court to the Court of Chancery. The business will go on in the usual way, except that it will be under the control of the Lord Chancellor, instead of being under the control of the Prerogative Court. I propose, as the registrars will not have the advantage which they now have of communicating from time to time with the Judge of the court—for that cannot be conveniently done in the Court of Chancery—to constitute one principal registrar, whose business it shall be to superintend all this common-form business, and secure by his experience what has been pointed out by the Commissioners to show the advantage of having the matter in one court—namely, that the court will become acquainted with all the details, and obtain knowledge which otherwise might not be attained. With respect to the disposal of those matters of detail, they must be kept, I think, in a separate office, and not in any of the other offices connected with the Court of Chancery. What then, it may be asked, are the advantages of bringing the business to the Court of Chancery, instead of establishing a separate court, as proposed by the Commissioners. I think the advantages are very numerous and very obvious. In the first place, the subject-matter is one with which the Court of Chancery has been eminently familiar from the very earliest times. It is true that the Court of Chancery has not jurisdiction with respect to the proof of wills, but it has the jurisdiction of what is called establishing wills in regard to real estate, and of enforcing the execution of trusts under a will, in regard to personal estate. Another circumstance in favour of transferring this jurisdiction to the Court of Chancery, is, that if any litigation ensue respecting the execution of the provisions of a will, there will be an obvious advantage in having the question brought before the same tribunal that has cognisance of the will itself. It is proposed that hereafter a Bill may be filed to prove the will, and to have the trusts carried into execution, all as one proceeding; and if there be any principle of jurisprudence more necessary than another, and to which, I belive, the public are looking most anxiously, it is this—that there should be as little bandying about as possible of suitors from one jurisdiction to another. My Lords, a great quantity of litigation will be avoided by this means, in this way. Nothing is so common (at least, it very often happens) as to have a Bill filed in the Court of Chancery to protect personal property, respecting which litigation is going on in the ecclesiastical court, for that court has no jurisdiction over the administration of the property pendente lite. That litigation may go on for a long time in the ecclesiastical court, and to prevent loss, the practice is to file a Bill in the Court of Chancery, to preserve the property pending the litigation in the ecclesiastical court. The Commissioners evidently had this evil in view when they proposed in recommending the institution of the new Court, and to give them jurisdiction on this subject:—but I doubt whether any newly constituted court will deal with any subject so well as the court that has been in the habit of dealing with it; and that again presents another argument in favour of the transference to the Court of Chancery. But there is another great advantage in having this business transferred to the Court of Chancery. The Court of Chancery is in fact the only court that construes men's wills. A man may, by his will, create a number of trusts, and give certain directions, and the Court of Chancery is the tribunal to construe what it is he has said, and how that is to be carried into effect. By the course I proposed of making the Court of Chancery the Court of Probate, it will constitute one and the same court—where the will will be proved, and where the construction will be put upon it. It is not alone in order to make matters square that that is an advantage; but, besides, there will be great advantages arising from it, on this ground—that every court of probate must be to a certain extent a court of construction, for, observe, a man makes a will or writes an instrument by which his will is made, and writes another instrument that is called the codicil, and it may be important to consider whether that codicil has or has not revoked the will. That will depend upon the construction to be put upon the language the testator uses in the codicil; the court of probate must construe the will, or rather the codicil, for that purpose, and gets out of the difficulty often in a very inconvenient way—by having a number of papers admitted to probate which cannot stand together, leaving the Court of Chancery to deal with them. All that will be avoided by having the will construed once for all, and that advantage will follow from having the court of probate and the court of construction one and the same. What I say now relates only to contentious business; I have already referred to the mode in which I think non-contentious business should be dealt with. A difference of opinion has arisen with respect to the continuance of proctors, and I propose eventually to get rid of proctors. I know the ecclesiastical authorities stick very strongly by the continuance of proctors, and I do not mean to impute to them sinister motives in doing so. But what they say is, If you let solicitors come into practice, they are a numerous body, and some of them may not be as reputable as they should be, and you run a risk that improper wills will be passed as proper wills; and it is thought proctors remedy that by being a sort of intermediate agents between the solicitors and the court. It is said there are not above eighty proctors who actually practise—that they are known to all the Judges as practitioners—that their faces are known, and that if any of them do anything wrong, they can be immediately found out—and that, it is said, is a security for their honesty in the discharge of their duty. I believe that is a consideration not entirely without weight; but I think it is a great misfortune in attaining something we ought to attain, if we cannot relieve the public from the necessary inconvenience and expense of having a double set of agents to conduct the same business; and I cannot but believe—when the new system has worked for a few years, and when we have increased, if we think necessary, the number of the officers of the court to check those wills—that the expense of a double set of agents may be put an end to. What I propose is, to maintain for a limited time the proctors; and that after that time the solicitors shall be allowed to practise as well as the proctors; the consequence will be that solicitors will get acquainted with the business of proctors, and proctors with the business of solicitors, and eventually the proctors, as a distinct class, may be entirely got rid of. I do not say that it is essential to the scheme, but I think that some way or other we ought to get rid of such an extraordinary anomaly as the necessity of employing double agency. That is the mode in which I propose to deal with the matter in London. But it cannot be lost sight of that there are persons in the country to whom it may be supposed to be a matter of great inconvenience to obtain probates in London—I mean persons of small property—and to whom, therefore, it may be a great convenience to have an opportunity of proving wills ill the country. I believe that is an advantage which is much more doubtful than parties commonly imagine, for, owing to the increased and increasing facility of communication, I verily believe that it is almost as cheap to send a will to London, or to come up to prove it, as if you were living next door to the registrar. I do not, however, feel bold enough to deal with the subject in that spirit; but I say this, that every person may prove a will in London who wishes to do so. In accordance with the recommendations of the Commissioners, I propose to provide for the proving of a will in the country where the property sworn to by the executor is less than 1,500l. The reason given for naming that sum was, that the ordinary stock of a farm of from 150 to about 200 acres was of that value. It is impossible to say what ultimately may be the sum fixed upon; but at present I will take the sum that was named by the Commissioners. I propose, then, that when a person shall die in the country, having property which the executor shall swear is under 1,500l. in value (his oath being taken to be conclusive on the subject), the will may be proved in one of the districts I propose to constitute. The Commissioners recommend—which I believe was recommended by the Commissioners in 1843—that we should divide the country into districts rather more numerous than the present dioceses, keeping as nearly as possible to the dioceses where it is not particularly inconvenient to do so. There are about twenty-six dioceses, and it is proposed that there shall be thirty districts; that a registrar should be attached to each, and whenever a person shall die within any district, the affidavit of the executor will be conclusive on the subject, and he may, if he thinks fit, prove the will in the country instead of proving it in London. That arrangement is, however, confined to non-contentious business; because it would be utterly impossible to have fit persons—where there must be such a small quantity of business—to deal with any of those delicate questions that from time to time arise as to the validity of wills. The registrar might have, for example, to decide a case of sanity or non-sanity, or what degree of non-compos is sufficient to induce a court to say that a man was not competent to make his will. To expect to get competent judges to decide such a question dispersed about the country, when they might not have in their court half-a-dozen cases in the year, would be preposterous. Therefore I propose to confine the country business to non-contentious business, which merely requires on the part of the registrar the examination of the will, and that he should see that the affidavit is proper, and that the necessary requisites have been observed. But even that is a matter not always very easy to deal with, and it is extremely important that inaccuracies on the subject should be avoided; and to afford security for that purpose, I propose that the party shall bring the will to the registrar, and that when the probate shall be prepared, the will shall be eventually sent up to London, to be kept where all original wills are to be kept. The probate will be sealed in London, the original will and probate being examined, to see whether the right forms have been observed. What has been done in the country will be looked over in London, the seal imposed upon it will be a seal imposed in London, and afterwards no difference will appear to show whether it was proved in London or in the country. The relations of dead people, I am told, are never satisfied unless they can look at the original will; and though I think there is no reason in that desire, I think also that we should consult the feelings of those persons and even their prejudices, and that we should be very delicate in dealing with them. Therefore I propose that for a period of six months the will itself shall remain in the country for examination. Under this plan, there will be one register kept of all wills in London, whether those wills be proved in London or in the country; and a proper index will be kept by which all persons may know where to find wills in which they are interested. I have now stated the scheme I propose, except with respect to one very important provision, to which I adverted at the commencement of my observations—we propose to make probate extend to real as well as to personal estate. On this point I am bound to state that the Commissioners are not unanimous. The great majority of the Commissioners think it to be essential; and I consider that it would be relieving the law from an anomaly; and that great advantage will be gained, if testamentary jurisdiction extends to all property, whether real or personal. My Lords, this is the measure which we have embodied in a Bill to which I have now to ask your Lordships to give a first reading. To sum up the contents of our scheme—we propose to abolish at once all existing jurisdictions relating to the probate of wills and the grant of letters of administration; to transfer to the Court of Chancery jurisdiction in all contentious matters, and in non-contentious business transacted in London; we propose that the subject-matter of the jurisdiction shall be all property left by will, whether it be real or personal estate; that in non-contentious business for cases where deceased persons have left a small amount of property which can be properly managed in the country, there shall be district registrars appointed, who shall be little more than persons who will examine the apparent accuracy of the instruments, and to see that they are regular, and to transmit them to the central registry, whether they are proved in London or in the country, so that the benefit of the system should be extended throughout the whole of the kingdom, whether the property be large or small. The noble and learned Lord concluded by presenting a Bill to transfer to the Court of Chancery the testamentary jurisdiction of the Ecclesiastical Courts, and to alter and amend the law in relation to matters of Testacy and Intestacy.


My Lords, I have listened with much pleasure to the able statement of my noble and learned Friend, in introducing his plan to your Lordships on this important subject. My noble and learned Friend has stated with great force and effect the evils of the existing system. The statement made by my noble and learned Friend is by no means exaggerated—that for upwards of twenty years this question has been the subject, I will not say of great controversy, but of very great complaint; but that there has been considerable exaggeration in the statements made out of doors on this subject I know; but such exaggeration is, however, inevitably incident to all such matters, because it must always be expected that where much real abuse undoubtedly prevails, much abuse that is unreal will in many minds be added to what actually exists. It has been said—and it is a very plausible assertion—that it is hard that persons wishing to prove a will should be obliged to employ two professional men, a solicitor and a proctor; but the fact is, that in the metropolis a person can go to Doctors' Commons and employ a proctor, which will be sufficient, without his having any occasion to employ a solicitor; and in the country, in the same way, the party is not bound to engage a London solicitor; he may employ a proctor without that intermediate assistance. Again, there is some exaggeration in the objection that, where you have one court of probate and another court of construction, and a will has to go before one court to have its validity tried respecting personal property; and the same will has also to go before a common law court to have its validity tried as regards real property, it may so happen, and it has happened, that conflicting decisions will be come to, and that while the ecclesiastical court declares the will to be invalid, its validity may be established by a jury in another court. It is impossible to deny the possibility of such cases occurring; but it was found by the Commissioners who inquired into the subject, that there had been only one case of conflicting decisions upon the validity of a will during a period of twenty-five years. How many cases of probate were there in those years? Why, the average number of provincial cases of probate was 12,000 in one year; and only fifty-four out of the whole 12,000 were contested, or 1,350 in the twenty-five years, whilst only in one case for those twenty-five years had there been a con- flict of decisions, that is, one in every 1,400. I only mention these facts to show that it is not in deference to the exaggerations either out of doors or within the House on this subject, that I have come to the opinion—in which I entirely concur with my noble and learned Friend—that there must now be a change made; and the only question is, as to the direction in which you shall move in effecting that change. My noble and learned Friend has referred to what passed in 1832, and afterwards in 1835, and I do not consider that I am at all inconsistent in approving of my noble and learned Friend's measure, because it differs in some respects from the measure which I myself proposed. The question is, shall there be another court of probate established, or shall we transfer to the Court of Chancery, the court of construction, the office of probate. If I had, in 1832, when I sat where my noble and learned Friend now sits, proposed an amendment of the proceedings of the ecclesiastical courts, by transferring the jurisdiction over wills to the Court of Chancery, I am sure I should never have ceased to hear of the transfer, ab ovo usque ad malum, to use my noble Friend's citation, but it would have been malum with the first syllable short; and the late Lord Kenyon, I am sure, would have exclaimed, on such a proposition for resorting to the Court of Chancery, as he once did, "What! could you have the heart to send any fellow-creature there!" having, on another occasion, described that resort by the phrase "abi in malam rem." Undoubtedly, in 1832, or even 1835, if any person had proposed to improve the system of the ecclesiastical courts, by transferring the business of those courts to the Court of Chancery, constituted as the Chancery then was, it would have been reckoned the most preposterous course that could be recommended. But happily we have lived to see great changes effected in the Court of Chancery of late years. There has been a great increase in the judicial force of that court, and consequently there has been a very great amount of despatch of business which was formerly unknown, and the want of which was the worst blot on that court. To allude to no further changes, there has been effected, only two years ago, the greatest of all improvements, the abolition of the Masters' offices; and this, and the other extensive alterations, have rendered the Court of Chancery, though still very far from being perfect, yet no longer what it was in 1832 and 1835, when the former measures on this subject were proposed. My Lords, I trust that the measure of my noble and learned Friend will be sanctioned by the House. Before seeing the Bill in print, and examining its provisions, however, it is of course utterly out of the question that I should now pledge myself to its details. I may mention that in some of the provisions of the former Bills to which I have referred, it was proposed to abrogate the jurisdiction of the ecclesiastical courts with regard to slander, defamation, brawling, and smiting in churches, and various offences of an immoral description, of which they have now cognisance, and, in some, an exclusive cognisance. That abrogation ought, no doubt, to be accompanied with the proper provision of another jurisdiction in the ordinary criminal courts. I must beg, also, my noble and learned Friend to consider whether the optional power suggested to be given to the court of probate by the measures of 1832 and 1835, of either trying issues itself or sending them for trial to a court of common law, might not now be given under the present Bill, to the Court of Chancery. The former measures also contained provisions relating to the punishment of ecclesiastical offences—a matter which might be dealt with in this Bill—not, of course, giving this jurisdiction to the Court of Chancery, but to another and a proper court; but probably my noble and learned Friend will propose a measure for that purpose. And, my Lords, I cannot speak, even thus incidentally, of criminal jurisdiction without expressing unmeasured satisfaction at what has passed elsewhere, which indicates that Her Majesty's Government have at length come to a determination on the important subject of the appointment of a public prosecutor, the want of whom is one of the capital defects of our criminal system, as I once and again, and especially at the end of the Session before the last, urged on the consideration of your Lordships. The continuance of this glaring defect was certainly no fault of mine or of my noble Friend's opposite, because, in 1834, we had prepared a measure to cure this great blot on our criminal jurisdiction. With the concurrence of my lamented Friend Lord Duncannon, then Secretary for the Home Department, I had prepared this measure, so framed as not to require a parliamentary sanction, in the first instance, but which, for being made general and permanent, would no doubt have required an Act of the Legislature. My Lords, I will only repeat that, reserving to myself the consideration of the details of the scheme which my noble and learned Friend has now submitted, I give my hearty support to the principle of the measure.


said, that he entirely concurred in the observations made by the noble and learned Lord who had just sat down, regarding the able manner in which his noble and learned Friend on the woolsack had introduced this measure. It was absolutely necessary that his noble and learned Friend should explain the reasons he had for introducing the Bill, and, therefore, their Lordships were very much indebted to his noble and learned Friend for the statement he had made. When he (Lord St. Leonards) came down to the House, not having had an opportunity of speaking to his noble and learned Friend on the subject, he felt afraid that he might feel it his duty to oppose what would be proposed. It was, therefore, with great satisfaction to himself, after what had fallen from his noble and learned Friend, that he could agree in a great part of what he had suggested. He thought it was impossible—and he thought they were all agreed upon that point—that the ecclesiastical courts could remain in existence any longer as they were now constituted—and it was with the view to their abolition that the Commission was issued during the Administration of his noble Friend (the Earl of Derby), and the only question which now arose was as to what body they should transfer these jurisdictions. Now, he conceived that the entire course and tendency of the legislation of the present day was, as far as was consistent with the established distinctions between law and equity, to give to every court the entire and undivided jurisdiction over the matters assigned to it; and nothing could be more anomalous than to establish a new court to decide whether a will was good or bad, while another court had to give its opinion as to what was the true construction of the instrument. The question of validity and the question of construction ought to be dealt with by the same tribunal. The questions involved in these cases were generally questions of law and fact, as well as of construction; and he quite agreed with his noble and learned Friend, that judges of an enlarged jurisdiction, from the quality of their minds and their experience, were more likely to satisfy the suitors than would be the case if the same persons were restricted to decide only on the simple question of the validity of wills. There was nothing in the cases which now came before the ecclesiastical courts with respect to testamentary matters which could not, with the greatest propriety, be decided by a common law or an equity judge. The present divided jurisdiction gave occasion to conflicting decisions, as had happened in the case which had been alluded to, and might have happened in the other case, which, however, was not compromised, but the heir at law and next of kin having succeeded in setting aside the will, and thus secured the personal estate, was advised to convey the small real estate to the disappointed devisees, without their concurrence, and thus prevent the conflict which would have arisen had a jury, upon a trial as to the validity of the will, as a devise of real estate, found in favour of the will. He believed, that the course now proposed would be satisfactory to the people of this country, and was convinced that a great saving of expense would be effected by the whole jurisdiction over wills coming into one court. He approved of the transfer being made to the Court of Chancery; and his opinion was, that the judicial staff of that Court was now greater than the existing amount of business was likely to find employment for, for some time to come. The Lord Chancellor now sat there regularly, together with the Lords Justices, with an appellate jurisdiction, the three Vice Chancellors, and the Master of the Rolls; but he remembered the time when only the Lord Chancellor sat there without a Vice Chancellor, and with the Master of the Rolls only sitting at intervals, and for short periods. No doubt, however, the progress of the country had since then brought a vast accession of business into the Court of Chancery, and the rapidity with which it was now transacted, especially under the new system, induced suitors to apply to that Court, where their cases were settled at a reduced amount of expense, which, compared with what they formerly cost, was perfectly astonishing. If parties were desirous to ascertain the true construction of an instrument, they could now go and state their case and obtain the opinion of the Court without delay and at the smallest expense. He was confident that the Court of Chancery was adequate to the performance of the additional business now pro- posed to be entrusted to it. It possibly might be desirable to continue the proctors for some time; but he was of opinion that this description of business, like all the rest of the business of the Court, ought to be thrown open to the general body of practitioners. Although agreeing thus far with the measure now proposed, he must say that he could not concur in one part of its provisions—namely, the extension of the requirement of the probate to real estate as well as to personal estate, or that it should be brought within the operation of the Court. That process was required in the case of personal estate, because it was necessary to observe great caution in granting letters of administration, otherwise the property might fall into the hands of a person who was not fit to be trusted, and the funds to which he was not fairly entitled might be wasted and dispersed. The case, however, was different with real estate, because that description of property was fixed, and there was no fear of its being dispersed like money; and with the safeguards at present thrown around it, any person having a legal claim to it who might be abroad at the time it was devised, if he turned up in the course of a few years, could establish his title to the property and obtain possession of it. Therefore, he thought there was no sufficient reason for extending probate to real property; and it should be remembered that, whilst they were affecting to facilitate the transfer of real estate, they were, in point of fact, adding a new and heavy burden to it, although it had sufficiently heavy burdens already pressing upon it. He hoped, therefore, that his noble and learned Friend would consent to reconsider this part of his scheme, and obviate this objection to it. He (Lord St. Leonards) concurred in the main provisions of the measure, and would lend his assistance in making it as effective and satisfactory as possible, and would have been glad if he had been able to agree also in the remainder. Whilst upon this subject, if the noble Earl at the head of Her Majesty's Government would forgive him, he would beg to call his attention for a few moments to a matter upon which he understood that the noble Earl had recently received a deputation—he alluded to the scheme which had been started by certain parties for the removal of the Courts at Westminster to what they called a more central position, in or closely contiguous to Lincoln's Inn and the Strand. He was not now about to enter into the details of that project; but he would observe that the scheme was vast, and, looking at the experience they had had of the cost of the Houses of Parliament, and over which, he might observe, they never had had the slightest control, it was perhaps fair to presume that the expense of its execution and of the erection of the large edifice proposed for the new courts would be very enormous. One proposition was that the new courts should be built on the vacant space in Lincoln's Inn Fields; but he thought that was objectionable, as the open square in that locality formed one of the not too numerous lungs which were highly necessary for the health of the inhabitants of the metropolis. Some years ago, a Committee of the House of Commons inquired into the propriety of removing the courts of law from Westminster, and he (Lord St. Leonards) at that time strongly opposed such a proposal. The promoters of this scheme had suggested that the Suitors' Fund in Chancery might be appropriated in aid of the outlay upon the project; but he considered that that fund could not be legitimately devoted to any such purpose, and he begged to inform them and to remind the House that by his Bill of the last Session for the further relief of the suitors, every shilling of the fund was already appropriated, as it ought to be, in rendering the administration of justice in Chancery cheap to the suitors. That fund, therefore, would not be touched. They next proposed to take credit for a very large sum as the value of the ground upon which the present courts of law at Westminster stood. But this was absurd: for the property already belonged to the country, and they need not therefore pay for it, and if they had it in possession, it would lead to vast additions to the two houses, which they did not require, and which would cost an enormous outlay, without any corresponding benefit. The Consolidated Fund alone could supply the funds; there was no other to apply to: he wished that to be well understood. He was willing to meet the general wish in favour of removing the Courts of Chancery from Westminster; but he did not see any reason for removing the courts of common law—in fact, as the objection against continuing those courts at Westminster was want of space, the removal of the Courts of Chancery would give plenty of room for other purposes. No position, in his opinion, was more convenient than Westminster Hall; there was a very good access to it, and it afforded accommodation for a large number of witnesses; he should exceedingly regret to see the proposed removal take place. The Lord Chancellor, the Lords Justices, the three Vice Chancellors, and the Master of Rolls, at present had courts at Lincoln's Inn; and all that was required was more accommodation for the Vice-Chancellors, now that they require to have constant communication with their chief clerks. The range of offices on the west side of Chancery Lane and abutting on the Inn were occupied by the Accountant General and other officers. Now the Masters' offices belong to the Crown and the above officers might readily be removed to Southampton Buildings; and the offices vacated might at a small expense be converted into courts and chambers for the three Vice Chancellors and their clerks. This would place the Court of Chancery wholly in Lincoln's Inn, and leave the common law courts with ample room at Westminster. As for the scheme which was now agitated by the parties to whom he had referred, it was gigantic in its proportions, and would cause enormous expense and risk, which, at the present moment, when the resources of the country were on the eve of being heavily taxed for great national objects, it would be most unwise and impolitic to incur. The noble and learned Lord, in conclusion, said, that he begged to support the general provisions of the measure which his noble and learned Friend on the woolsack had introduced, with the exception which he had already pointed out. At the same time, he also reserved to himself, like the noble and learned Lord who preceded him, the right of considering the details of the Bill when it was printed.


rose, to express the great satisfaction he felt at the proposals of his noble and learned Friend. Nearly a quarter of a century ago a commission, over which he had the honour to preside, had been appointed to inquire into this subject, and they had recommended the adoption of a measure substantially the same as that proposed by his noble and learned Friend. Though this delay had taken place, he did not think that blame was attachable in any quarter, but that up to the present time such a measure had not been passed; for every Government that had existed since that time, whether Liberal or Conservative, had been equally anxious for law reform, and had only been prevented by the natural difficulties of the subject from carrying it out as fully as could be desired. Perhaps there was little ground for regret at this delay, because the measure was likely to be more effectual now than it could have been at any prior season. He was glad to find that it was the opinion of such of their Lordships as had spoken on this occasion, that it was to the Court of Chancery that the probate of wills should be transferred. He most heartily approved of the principle that there should be but one court for one cause. We had in England suffered great vexation from the division of jurisdiction—a division which was necessary while the courts of equity were only building up their system; but which, now that the rules by which equity was governed were as well understood as common law, was entirely unneeded. As to the other point on which there had been a difference of opinion, he differed from his noble and learned Friend (Lord St. Leonards); and, though he had a most sincere respect for the opinion of that noble and learned Lord upon this subject, he was himself of opinion that there ought to be a probate of a will relating to real property, as well as of one concerning personal estate. He was convinced that such a provision, instead of occasioning an additional burden to the landowner, as his noble and learned Friend had anticipated, would relieve him from expense. He should be the last to wish to do away with what some wildly proposed to destroy—the distinction between real and personal estate; and he must say that he looked with alarm at what had recently taken place elsewhere, to which he might not more particularly refer. He might, however, say, as a matter of history, that when he had the honour of sitting in the House of Commons a proposal was made—indeed, leave was moved for, to bring in a Bill—providing that in the case of an owner of land dying intestate, his land should be divided equally among his children. He (Lord Campbell) then held the office of Attorney General. He felt it his duty to oppose this proposition; and he rejoiced to say that he had a large majority in his favour, and the proposition was rejected. He looked upon such a proposal as being most insidious and most dangerous to the institutions of the country. The effect of it would be, though it was said to leave to the landowner the opportunity of making a will, to do away with the law of primo- geniture, both in theory and practice, and that House would not long survive. In America there was such a provision; and he had been told, on undoubted authority, that in that country for a father to make any distinction between his children would be so odious, that he dare not do it; and the practical effect was, that the power to do so was a dead letter, and all the property was equally divided among the children. Such would soon be the case in this country. In a short time you would not have a country house left; nor would there be any person to hold office under the Crown who was not entirely dependent upon his salary. At the same time, he thought that there would be no danger to real property in allowing a probate of a will by which it was left. It was of the last importance that the validity of such will should be determined as soon as possible after the death of the testator, in order that persons purchasing of the heir-at-law or of a devisee might be assured as to the soundness of their titles. This was the only point of the measure in which a difference of opinion had arisen. While he so highly approved of what he had heard from the Lord Chancellor, he must express considerable disappointment that he had not heard more. He hoped that this arose from the delay of measures, and not from their abandonment. He thought the time had now arrived when we were to have a complete reform of the ecclesiastical courts, with respect to every branch of their jurisdiction. He had no objection to these courts when their jurisdiction was confined to spiritual matters; and if their jurisdiction were so limited he should wish that they should not only be preserved, but should receive new vigour. If Convocation could be reformed, so as to work in a manner advantageous to the interests of the Church, he, for one, should be rejoiced to see it revived; but he thought ecclesiastical courts should have jurisdiction only over spiritual affairs. These courts had, however, grasped at things purely secular, and this had operated much to the oppression of the subject. With regard to the jurisdiction of the ecclesiastical courts in questions of divorce, that jurisdiction had been based upon what was then the belief of the country—that marriage was a sacrament. Since the Reformation, however, marriage had been considered as a civil contract, and we had again and again legislated upon such a consideration. Now, therefore, the Church had no more to do with the decision of matrimonial causes, than with that of causes referring to the sale of real estate. Some time ago he had the honour to be appointed the head of a commission to consider the subject of divorces. That commission recommended that such questions should be removed from the ecclesiastical courts; and he trusted that his noble and learned Friend (the Lord Chancellor) would introduce a measure for that purpose. The law upon that subject was, he did not hesitate to say, a disgrace to the country. He saw no reason why all those causes should not be referred to one tribunal; and he believed that, with regard to divorces, their Lordships would gladly resign the jurisdiction which they exercised. As the law at present stood, marriage could only be dissolved by Act of Parliament, and their Lordships were aware how many sad scenes had been witnessed in that House in such causes. Actions for slander and defamation ought to be brought in the courts of common law, where they would be tried by a jury, rather than in the ecclesiastical courts, the imposition of a penance by which was not so effectual a punishment as the levying of damages. Brawling in church—another matter in regard to which the ecclesiastical courts had jurisdiction—was an offence at common law; and, though some time since the Bishops of Salisbury and Oxford strenuously defended the jurisdiction of the ecclesiastical courts in regard to it, he believed that, the greater portion of the community would be delighted to see that jurisdiction abolished. He therefore trusted that in the present Session of Parliament some measure for the reformation of these courts would be introduced and adopted; and, their secular jurisdiction being abolished, he should be heartily rejoiced to see their spiritual jurisdiction improve and flourish.


, referring to what the noble and learned Lord (Lord Campbell) had said upon the subject of primogeniture, said, he would mention to their Lordships an instance which had come under his observation, of the inconvenience which arose from an equal division of real property among the children of a man who should die intestate. About two years ago he happened to mention to the French Minister of Agriculture and Commerce, that in a part of that country from which he had just come there was a field, not more than half the width of their Lord- ships' House, the only things of value in which were four trees. The owner died, the field descended to his four sons; and the result was, that for the last few years each of these sons had been seised of one of these trees. Upon his mentioning this case, the French Minister said that this instance of the effects of division was nothing to what he had seen in a parish not far from Paris, which he named, where he had seen a field, one of the owners of which was seised on one undivided thirty-second part. What the tendency of this was, it was not for him to say; but he thought it right to mention this for the information of his noble and learned Friend (Lord Campbell), who took one view of this matter, and for that of those who took the other side.


, in reply, expressed his gratification at the manner in which his statement had been received. In reference to what had fallen from the noble and learned Lord who had last spoken (Lord Campbell), he had not on this occasion referred to other than the testamentary branches of the jurisdiction of the ecclesiastical courts, because it was his opinion that the reformation of those courts would be best accomplished by dealing with each subject separately, rather than by attempting too much at one time. He could, however, assure his noble Friend (Lord Campbell) that a Bill, founded in a great measure on the report of the Divorce Commission, was in the course of active preparation, and would early in the Session be laid on the table of the House. Looking at the whole subject, he had thought that possibly the failure of previous attempts to reform these courts had arisen from the Bills dealing with too many subjects, and thus enlisting against them a variety of interests. To avoid this he had thought it best to begin with this, which was the greatest subject, the testamentary jurisdiction; and he trusted soon to be able to lay upon their Lordships' table a Bill dealing with the subject of matrimony and divorce. The other subjects were under consideration, and as he thought they would be comparatively easy of settlement, he trusted that in the course of the Session they might all be dealt with. The task would be comparatively light, when the important portions of the subject to which he had alluded had been disposed of.

Bill read 1a.

House adjourned till To-morrow.

Back to