THE LORD CHANCELLOR
said: I have placed on the paper a notice that I should this evening call the attention of your Lordships to the jurisdiction of the Ecclesiastical Courts. The term "Ecclesiastical Courts," to those who are not familiar with the subject, would lead your Lordships to suppose that the matters with which I am going mainly to deal were matters of a spiritual or ecclesiastical nature. Had that been the case I should have felt diffident as to my competency to touch upon such a subject, which would present considerable if not overwhelming difficulties to a layman in addressing this House upon it, and I should have felt myself less fitted than a Member of the right rev. Bench to discharge this duty. In truth, however, although these courts pass by the name of Ecclesiastical Courts, Ecclesiastical matters—that is to say, matters which are in their nature purely Ecclesiastical—form but a small portion of the business which they transact. By custom and by law, indeed, the matters which are referred to these courts have come to be considered Ecclesiastical owing to their connection with these courts; but, in truth, they are mostly of an entirely temporal character. We learn from antiquarians—from those who have looked into our early legal history—that in the remotest ages of our history the temporal and ecclesiastical jurisdiction were united in one court—the County Court—in which the Sheriff or Alderman presided, assisted by the Bishop; and that there all causes, civil as well as ecclesiastical, were disposed of by the joint authority of the two, the Bishop, it has been observed, giving the weight of dignity, while the temporal officer possessed the means of enforcing the decrees. But however this may be, from very early, even prior to what lawyers call the time of legal memory,—that is, the accession of Richard I.,—a distinction was established between Courts Temporal and Courts Ecclesiastical. The Courts Ecclesiastical were created to deal with questions having reference to the interests of the Church; but 423 in process of time it happened—whether by abuse, by accident, or by a mixture of both, I cannot say—that those Courts came to have jurisdiction over matters which cannot, except technically, be described as of an ecclesiastical character; and it is for the remedy of abuses connected with the jurisdiction thus acquired by these Courts in matters testamentary and matrimonial that I propose to introduce a measure. With regard to the first of these matters, the jurisdiction of Ecclesiastical Courts may be described as having thus originated:—There has been a doubt among learned persons whether in early times, even as regards personal estate, an individual had at his death the power of disposing of that property by will. But this appeared clear that he had not the power of disposing of more than a part of it, and, that being the case, the question naturally arose, to whom did the personal estate, not disposed of, go at the death of the possesor? In the earliest times the rule undoubtedly was that it went to the Crown, upon the supposition that the Crown would dispose of it in piosusus. The right to take this undisposed of personalty was from time to time granted by the Crown to different subjects, chiefly to the Bishops of the different dioceses, or to other ecclesiastical functionaries there; though not rarely it was placed in the hands of lords of manors and other persons of influence and property, with regard to those dying within the range of their authority. The result of this was that the right to this property became vested in a great number of persons, from which, there naturally resulted great confusion and considerable abuses. The first attempt to remedy these abuses was by a statute passed in the reign of Edward I. (sometimes described as the English Justinian), by which it was enacted that the Bishops, who, generally speaking, were the persons to whom these grants had been made, and who had in other cases acquired by some means the right originally vested in the Crown, should be bound to discharge out of the personal estate which came into their hands the debts of the deceased. So matters remained until half a century later, in the reign of Edward III., when a further advance was made by enacting that, instead of the property being distributed by the Bishop, the Bishop should grant "administration" of the property before distributed by him to the nearest relations of the deceased. This led to the appointment 424 of an administrator, who, by the terms of the statute, was to have the same rights and duties as were possessed by an executor when the deceased had appointed one. As to the mode in which the administrator was to deal with the surplus, after the debts had been paid, this was a point unsettled by positive law for centuries; but by a statute of Charles II., called the Statute of Distribution, it was enacted that any surplus remaining over after the discharge of the debts should be distributed among the next of kin, the statute defining who are to be considered next of kin. And the law then enacted upon this subject continues with little alteration to this day. A man may now therefore dispose of all his personal property by will if he thinks fit; and if he does not dispose of it the Bishop grants letters of administration to some near relative, who pays the debts and distributes the surplus among the next of kin. I should observe that, the Bishops, being intrusted with the distribution of the surplus, it naturally followed that the same persons should have the right of pronouncing upon the genuineness of a will, which has pro tanto diminished the undisposed-of property, and these same Bishops therefore had the right of requiring that the fact of the existence of a will should be proved to them. They granted letters of probate: probatum est, that there is such a will. I have thus sketched out the history of the Testamentary Jurisdiction, and I think I need hardly say more to satisfy your Lordships that there is nothing essentially ecclesiastical in it, but that this is a subject of a purely temporal character just as much as the disposal of property under a deed or contract. Another important subject with which ecclesiastical courts deal in this country, not essentially ecclesiastic in its nature, is the subject of marriage and (in a qualified manner) of divorce. The right of deciding upon the question of marriage or no marriage, or whether there ought or ought not to be a divorce, arose in a very different manner from the jurisdiction of which I have hitherto been speaking; it arose in times anterior to the Reformation from the circumstance that marriage was a sacrament of the Church, and could only be dealt with therefore by those to whom the ordinances of the Church were familiar—by churchmen, and not by laymen. This, therefore, was a jurisdiction which existed in Ecclesiastical courts, and in Ecclesiastical Courts only. That is another branch, my Lords, of the 425 jurisdiction of the Ecclesiastical Courts with which I shall ask your Lordships to deal, and I will presently state the course which I shall venture to propose. These are the two most important branches of the jurisdiction of the Ecclesiastical Courts; but a third branch still remains, which is more of an ecclesiastical character,—that is the jurisdiction over the clergy upon questions of discipline, the right to grant faculties for pews, alterations in the church fabric, and other matters of a similar kind. These might no doubt be subdivided, but I think they are sufficiently indicated by embracing them in one class. I shall also ask your Lordships to deal with this branch of the jurisdiction of the Ecclesiastical Courts as being part of the general subject. I will now proceed to state to your Lordships the course which I propose to adopt—first, with regard to the testamentary; secondly, with regard to the matrimonial; and thirdly, with regard to the ecclesiastical jurisdiction of these courts. In order to make clear the proposals which I shall presently make as to matters testamentary, I have shortly explained to your Lordships the mode in which the jurisdiction of these courts originated upon such matters, and shown that, as a consequence, the manner in which they so first obtained jurisdiction. A large number of courts sprang up which had the duty of dealing with matters testamentary; so great, indeed, was the number that, according to the report of the Ecclesiastical Commissioners, which was issued about twenty five years ago, it appears that at that time there were no less than from 350 to 400 courts enjoying a testamentary jurisdiction, and granting probates. This is of itself a great evil, though the number was probably overstated, for it appears from a return which was laid before the other House of Parliament during last Session that the number of courts actually granting probate is not now nearly so great, for during the five years preceding, probate had not been granted by more than ninety-eight courts, although fifteen others were provided with machinery for exercising that jurisdiction. My Lords, when a person dies within the jurisdiction of one of these courts, primâ facie that court has jurisdiction to grant probate; but many persons have personal property not all within one diocese or district, and in such a case the probate taken out in any one diocese is absolutely 426 valueless and void, and the consequence is that most persons have recourse to the Prerogative Court; but this is liable to great inconvenience as the probate of the Prerogative Court is liable to be set aside if the testator had no property out of the district or diocese in which he died. That, my Lords, is a great practical evil, and one which was pointed out twenty-five years ago, but, although many attempts have been made to remedy it, whether from the conflict of interests or from other causes, all those attempts have proved abortive. It has, indeed, been said, my Lords, that the subject is one of second-rate importance and of first-rate difficulty, and so that no reform will ever be effected, but I trust that we shall be able during the present Session to give the lie to that view of the case. It is a point also of great importance that wills should be properly preserved and registered, and although in the larger districts the registers are perfectly efficient, nothing can be more unsatisfactory than the arrangement of many of the smaller courts in that respect, and the documents there kept, although of great value to those interested, are rendered extremely liable to loss or spoliation. There is also another great evil connected with these courts. The contentious business which is conducted in them mainly consists in ascertaining whether a testator was competent to make a will at the time of its execution, and then whether the will has been executed with all the necessary legal solemnities. Now, in all cases of inquiry into the competence of a testator to make a will, depending upon the state of his mind at the time he made it, there is, as may naturally be expected, a very vast amount of conflicting evidence, and the mode of procedure of the Ecclesiastical Courts is ill adapted to deal with cases of that description. The process of these courts is founded on the canon, or civil law, according to the practice in which all the evidence is reduced to writing, and tendered in that form; and the advantages which would result from oral examination, from seeing the demeanour of the witnesses, are therefore lost. There is another evil connected with this subject, which, although not of so practical a character, is nevertheless one with which I think your lordships ought to deal. I have stated that these courts, in their origin, had the power of disposing of the personal property of a man whether he died intestate or not, but no such right 427 has ever existed with respect to real estate. As regards real estate these courts have never had any power of granting probate. Two years ago, my Lords, I introduced a Bill in which, among other things, I proposed that the jurisdiction of Ecclesiastical Courts should be extended to real estate. That Bill was referred to a Select Committee, and after a full and careful inquiry my proposal was overruled by a large majority. At the time I felt that that Vote of your Lordships' Committee had damaged my measure, but I am not now ashamed or afraid to confess that further consideration has satisfied me that there would be great inconvenience in requiring probate in the case of real estate. With regard to personal estate, which may consist of goods in one place, stock in another, and debts all over the kingdom, it is necessary, in consequence of incidents connected with it, that some person should, as soon as possible after the death of the testator, be designated to represent him in order to dispose, collect, and arrange these matters. But with regard to real estate that is fixed, certain, and easily ascertainable, and passes, generally speaking, on death—supposing there is no will—not to several persons claiming as next of kin, but to one claiming as heir. Hence probate would be a most tedious, useless, and expensive process to apply to realty. There are, however, certain qualifications which I propose to introduce, and which I trust your Lordships will not hesitate to sanction. One great anomaly which exists under the present system is that the Ecclesiastical Courts decide only upon the validity of wills so far as the personal estate is concerned, while the real estate is decided by other tribunals. If a question, therefore, arises whether the testator were of sound or unsound mind, there may be a different decision with respect to the personal estate from that which may be given as to the real estate. There is a suit of this description pending before your Lordships' bar at the present moment. In the year 1842 a gentleman named Colelough died seised of a large real estate in the county of Wexford, and of personal property to the value of £120,000 or £130,000. The will gave all the property to the widow, and she obtained probate in the Prerogative Court of Ireland, and took possession of everything. In 1849, however, the heir-at-law brought an action of ejectment to recover the real estate in 428 Wexford, and the Court decided that the testator was a man of unsound mind, and that the will had been unduly obtained. The consequence is that, although the same piece of paper conveyed both properties to the widow, she has validly obtained possession of a large amount of personal property, while the question of the real estate, of some £7,000 or £8,000 a year, yet remains in dispute. Now, that is an anomaly which, as it appears to me, your Lordships ought to deal with. I propose, therefore, not that it should be necessary in every case of real estate to obtain probate, but that if there be a contest as to the sanity of the testator, and a caveat be entered against granting probate as to the personal estate, then that the heir-at-law as well as the next-of-kin shall be cited, and that that adverse proceeding shall litigate and determine the question both as to the personal and the real estate. I do not attempt to deal with these matters in a manner merely theoretical, but I look at what are the practical evils of which the public justly complain, and to those evils it is the bounden duty of your Lordships to apply a remedy. Now, without intending any sort of disparagement to those very able gentlemen who from time to time have presided in the Ecclesiastical Courts, I think that we should adopt the suggestion of the last commission, that the court of probate ought to be a Queen's court, and not an Ecclesiastical Court. I therefore propose to constitute one Queen's Court of Probate; but it should be observed that the duties of that court are practically almost entirely of a ministerial character. The real matter in which the public are interested is that there should exist the means of ascertaining cheaply and without delay, whether he left a will or not, and who is the representative of the deceased person. All that is necessary for that purpose is to have a good, clear, cheap, and expeditious system of registration of wills; because that is what in ordinary cases probate really amounts to, the practical duty of the court being the duty of the registration. The question has been raised whether, in transacting the ordinary business of proving a common will, the aid of proctors might not be altogether dispensed with. That is a point upon which my opinion has from time to time varied; but, on the whole, I think that the result of the evidence which was taken before the last commission 429 was to show that the business was done better, and it might be done cheaper, through the instrumentality of proctors than if no such machinery existed. I do not propose, therefore, at present to abolish the proctors; but if it should be found after experience that they can be dispensed with I should have no objection, when we had felt our way, to get rid of them. In the meantime, however, I propose that they shall be contined, subject to the power of the Lord Chancellor and the Judge of the court to add to the number of proctors, or to make new regulations with regard to them. Your Lordships will understand that this monopoly only applies to non-contentious business—to the proving of wills according to the ordinary form, or to what I call the common registration of wills. In these matters and none others I propose that they should have the same exclusive privileges which they have now; their number is very limited, there being in all only 120, of whom only about eighty practise; they are known to all the officers of the court, and there is the greatest attainable security against any fraud or impropriety in their conduct, and a man would be immediately struck off the list if any sort of fraud were discovered. So much with regard to wills proved in London. Now, looking at the matter with a theoretical view merely, it might seem desirable that all wills should be proved in London; but I am satisfied that that would not really tend to the convenience of the public. I therefore propose that there shall be, as at present, a number of district courts where wills may be proved as they now are. For that purpose I propose to retain all the present diocesan registries, and to add a few others, so as to make the number thirty in all throughout the kingdom, because some of the dioceses are so large and straggling that it is inconvenient for persons to have to go so far. I do not mean, however, to give these district registries a jurisdiction except in cases where the property does not exceed a given amount. Their operation will be confined, according to the recommendation of the last Commissioners, to cases where the personal estate is sworn under £1,500. When the property is of greater value it will be more convenient that the will should be proved in London. There will, however, be one important difference between wills proved under the Bill and wills proved in the diocesan courts as at present. I propose, whenever a will shall 430 be proved in a district court, to take away the power of questioning its validity, and render it a valid instrument in all parts of the kingdom. I intend to introduce a similar measure with respect to Ireland. [Lord CAMPBELL: What about Scotland?] There is more difficulty about Scotland, but I am in communication with the Lord Advocate, and I do not despair of succeeding in extending the principle to that country. What I have said thus far applies to the non-contentious jurisdiction of the courts in which out of the 30,000 administrations granted in the year, something like 29,950 are included, and under the Bill which I propose all non-contested wills may be proved in London if the parties please, but wills under £1,500 may be proved in the district registries, and whenever so proved shall be valid. Hitherto the Bank of England has represented that it would be put to great risk if called upon to transfer stock upon probates coming from small courts in the country; but I have been in communication with the solicitor of the Bank, and having apprised him of my intention to render valid wills once proved in the district registries, he has intimated to me that the Bank is satisfied with that proposal. So much for the non-contentious jurisdiction. With regard to the contentious jurisdiction the law at present is, that wherever a will is proved there the contest arises whether it is a valid will or not. That arrangement is very inconvenient, for where there is often neither Judge, nor barrister, nor legal assistance at all competent to deal with such difficult and delicate questions, and in such cases practically, the contest is removed by letters of request to London. What I propose, therefore is, that, with the exception I will hereafter mention, there shall be no contentious jurisdiction in the country—where it is all but impossible—but that it shall be carried on in the court of probate in London, as other questions are dealt with in the Superior Courts at Westminster. Very strong objections have been taken to the proceedings in the Ecclesiastical Courts, mainly arising from the tedious, expensive, and imperfect manner of taking evidence, and the decisions of those courts have failed to give satisfaction. Under the measure which I propose, the Judge of the court will really have next to nothing to do. The registrars will, in ordinary cases, determine whether a will is in due form or not, appealing to the Judge for assistance whenever they require it, and 431 when a question of fact arises whether, for example, the testator were a man of sound mind, or whether the will was duly executed, I propose that such questions should be dealt with exactly in the same manner as an issue is directed by the Court of Chancery to be tried in a court of law, and that nothing shall be done by the Judge, except sending them wherever they can most conveniently be tried. Some are of opinion that they ought to be tried by the Judge of the Court of Probate himself; but I cannot give my support to that theory. In the first place, nothing will be saved either in point of time or expense; and, in the next, the trial of a disputed fact such as the sanity or insanity of the testator, cannot be carried on in the ordinary progress of a cause. It must be proceeded with at a different time from that in which the ordinary proceedings are going on; whether the Judge of the Court of Probate tries it or not is of no consequence; and most assuredly it would be hard to compel witnesses to come from a great distance—from Exeter, Norwich, or Carlisle, for example—to give evidence in London before the Court of Probate, where the question could not be so well tried as by the Judge on circuit. What I propose, therefore, is, that the same course of procedure should be followed as in the case of a trial directed by the Court of Chancery. That brings me to a point upon which I have the misfortune to differ from many of your Lordships. At present the Judge of the Prerogative Court—my very able and learned Friend Sir John Dodson—is occupied a great portion of his time in the trial of questions of fact; and when all disputed questions of fact are sent to be tried by a jury he will have almost nothing to do. This being the case, I cannot honestly propose to your Lordships the creation of a new Judge. What I propose is, that one of the existing Judges shall discharge the duties of that court, and in this way a saving will be effected to the country. My proposal is that one of the Vice Chancellors shall be appointed to the discharge of this duty, though I am aware that on this point I have the misfortune to differ from some of your Lordships. It has been said that the Vice Chancellors are not proper persons to try questions of this kind, as they are unaccustomed to deal with matters of fact. I believe there will be no matters of fact, or very few, for them to try; but if there should, I propose that all the evidence 432 shall be vivâ voce; I grant, for the sake of argument, that the Vice Chancellors are not so familiar with the rules of vivâ voce evidence as the other Judges, but they will not be often called upon to apply them—[Lord BROUGHAM and Lord LYNDHURST intimated their dissent from this portion of the measure.] I may observe that motions for new trials, when heard before equity Judges have generally been disposed of in a most satisfactory manner; I have thought the matter over, and I hold to the opinion, that this part of the scheme is sound, but I will not persevere in it if another opinion prevails among your Lordships. With regard to the practitioners in the court, I do not propose that in contentious business the exclusive privileges of the proctors should be continued. My decided opinion is that the advocates in Doctors' Commons, the proctors, and all the practitioners of the common law courts should be at liberty to practise in the new court of probate at the discretion of the client. Thus far I have spoken of cases amounting to £1,500, but there may be wills of very small amount—say, £100 or £200—in which there is an actual contest, and it would be very hard that they should have to come up to London. We are therefore bound in such instances to find a remedy, and I propose that in cases where the personal estate is sworn under £200 it shall be within the competency of the County Court to decide the matter. The mode in which these courts are doing their business is such as to entitle them to our confidence, and, as occasions arise, to increase their jurisdiction, and accordingly I think they may be usefully employed in the discharge of this duty. This is the whole of the proposal which I have to submit to the House with reference to testamentary jurisdiction. I shall now proceed to the second branch of the subject, which is not less important than the first—namely, that which related to what were called matrimonial causes. Your Lordships are aware, that some years ago a Royal Commission, composed of very learned persons, was appointed to look into the question of divorce, and that this commission, having taken evidence on the subject, came to the conclusion that the present state of the law of England on that subject was highly discreditable. The simple fact is, that a divorce a vinculo matrimonii cannot be obtained in this country by any legal proceeding known to the constitution. It is true, a marriage 433 contracted under certain physical circumstances, may be declared a nullity, but that is not a divorce; to call it so would be an entire misuse of the term; it was a declaration that there never has been any marriage at all. For a century and a half it has been the practice of your Lordships' House if an act of adultery on the part of a wife has been established, and if the act has been followed by a divorce a mensâ et thoro obtained in the Ecclesiastical Court, to grant a private Act of Parliament—a privilegium—in order to make the husband a single man again, so as to enable him, if he so choose, to marry an other woman. In the case of the wife she can only obtain a divorce from her husband if adultery has been committed by him under circumstances which render it impossible for her ever to cohabit with him again, as, for example, when the adultery amounts to incest; and I believe there are only four instances on record in which your Lordships have granted such a divorce by dissolving the marriage at the instance of the wife. Now, the Commissioners reported, as I think every person of good sense must admit, that this was a state of things extremely discreditable to the country, and that a remedy was called for. One of two courses is open to your Lordships—either that you should not allow any such Bills to pass your Lordships' House—an opinion entertained by a noble Friend of mine the Chairman of Committees (Lord Redesdale); or, as the Commissioners suggested, that you should constitute a tribunal which should take cognisance of questions of divorce on similar principles to those that had regulated the proceedings of your Lordships in such cases. With that object I introduced a Bill last Session of Parliament, which was passed by your Lordships, but which went to the Commons too late to be passed into a law. After I introduced that Bill, my noble and learned Friend on my left (Lord Lyndhurst) took up the whole subject with his accustomed clearness, and adverted to the great grievance which pressed on married women, even independently of this question of divorce. He pointed out the injustice done to a married woman who might be divorced a mensâ et thoro from her husband, so as not to be under the obligation of cohabiting with him again. The law with regard to property acquired by married women under such circumstances is exceedingly anomalous, and with 434 the view of remedying that anomaly, the Divorce Bill of last Session was referred to a Select Committee, and some proposals were made by my noble and learned Friend (Lord Lyndhurst) with the object of mitigating, if not of removing, the existing evils. These proposals were adopted by your Lordships, and I propose to introduce them, with some alterations, in the Bill I am about to lay on the table. In the first place, I think that if a married woman has been deserted by her husband without lawful excuse for a certain time—say three years—it is extremely reasonable that she should be entitled to a decree of divorce or separation from the court to be constituted, which will enable her thenceforth to be mistress of her own property. She may employ her industry either in intellectual or in less elevated pursuits; but her husband will be precluded, if he should return, from claiming as his property any money she may have accumulated. It is difficult to define what period of desertion should give this right, but I think it is not unreasonable to say three years, and the precise period can be fixed at a subsequent stage of the Bill. I think no husband who leaves his wife without lawful excuse for a period of three years should retain the right of saying on his return, "I claim possession of all the property you have acquired since I left you." If, however, the husband and wife should desire to live together again, I think every facility should be afforded them for doing so, and, in order to encourage such arrangements, I propose that a wife who has earned money shall, under such circumstances, have the power of making a settlement just as she could do before marriage. Your Lordships are aware, that at present a settlement made after marriage is invalid as against a third person, but I propose so far to alter the law as to render a settlement made by a woman, under such circumstances as I have mentioned, equally valid with an antenuptial settlement. I propose, further, that even in cases where there is neither cruelty nor desertion a similar arrangement may be made by deed. This proposition has startled some persons; but practically such arrangements are now entered into. It is now legally competent to married persons to separate by deed, but the legal consequences of such separations are not exactly defined, and Lord Eldon contended, that if a husband or a wife so separated were to institute a suit in the Ecclesiastical Court for a restitution of conjugal rights the deed 435 would not be a bar to the claim, because the wife had no power to contract; since his time, however, the validity of these deeds has been established, but the object is effected in a most cumbrous manner. The wife cannot contract, and therefore she gets a trustee to contract with her husband. I propose to remove these cumbrous anomalies, and to enable persons to do directly what they can now only do indirectly, and that the wife shall in such cases have the same power over any property she may acquire as if she were separated by a decree of divorce of the Ecclesiastical Court. I will not now enter into further details of the Bill which it is unnecessary for me to describe, but which your Lordships will be enabled to consider when the measure is before you, but I will lay the Bills on the table and ask your Lordships to consent to the first reading. There is still another subject relating to ecclesiastical jurisdiction with which I propose to deal, and with reference to which I introduced a Bill last Session, which I had not the good fortune to carry. That measure was opposed not merely by right rev. Prelates, but by noble Lords for whose opinion I entertain very high respect; and I therefore withdrew it, in the hope that at a future time I might see my way out of the difficulty in which I was placed. Some few weeks ago I communicated with my most rev. Friend the Archbishop of Canterbury, who furnished me with the sketch or outline of a measure which is, I believe, generally approved by right rev. Prelates, and, adopting that sketch as the framework of the Bill I intend to introduce, I have no doubt that it will meet all practical evils, and I hope will be approved by the right rev. Bench. That measure relates to offences of the clergy, which may be classed under two heads—moral offences and doctrinal offences. At present the course of proceeding in such cases is artificial and cumbrous, and expensive to a degree hardly credible. If a clergyman is charged with any offence moral or doctrinal, he is summoned to answer the accusation, and if he admits his guilt the Bishop inflicts punishment. If the accused does not admit his guilt the Bishop has to issue a commission to five persons, one being his chancellor, another a barrister, a third a dignitary of the Church, and two other clergymen, who are empowered to summon before them witnesses in support of the charge, and the accused clergyman, and to inquire into the facts. These Commissioners sit and examine witnesses 436 at a great waste of time and enormous expense; they then report to the Bishop, but the case, instead of being concluded, was then only commencing, as their Report was only in the nature of the finding of a grand jury—a constat for further proceedings. If further proceedings are taken, the same dilatory and expensive course is pursued, and the expense of such proceedings is so great, that no one without a well-lined purse can venture to institute them. The remedy I propose, in conformity with the suggestion of my most rev. Friend is, that a Bishop may at any time file articles in his own court, in the simplest form, against an offending clergyman, and that the same course may be taken by any voluntary promoter. The accused is then to be cited, and if he admits the charge, the Bishop, assisted by his chancellor or vicar-general, will pronounce sentence. If the charge is not admitted, I propose that a jury, consisting of five persons, part clergymen and part laymen, shall be summoned, and shall decide upon the questions of fact. Their finding was to be conclusive of the facts, but the accused might still say that even admitting the facts there was no right to punish him, and I propose in such case to give the same power of appeal which now exists—first to the Court of Arches, and then to the Privy Council. I propose that the same course should be pursued in the case of doctrinal offences; except that I think the interests of the public, and particularly the interests of the Church, require that it should not be at the option of any one voluntary promoter to institute proceedings with reference to what are called doctrinal points. I think that before such proceedings are taken, a certificate ought to be given by a certain number of persons of station in the Church, declaring that there are reasonable grounds for instituting proceedings. I am sorry to say that, although this Bill is in preparation, I am not yet enabled to lay it upon your Lordships' table; but, as on a former occasion, I was more than once blamed for having dealt with these subjects separately, instead of having laid the proposed changes before the House at the same time, I have endeavoured to explain all the measures which it will be my duty to bring forward. I shall only conclude by saying that, if any of these Bills should not meet the approbation of this or the other House of Parliament, I cannot admit there is any such necessary connection between them that any one of them may not be passed, even 437 if the others be rejected. The noble and learned Lord then presented a Bill to amend the Law relating to Probates and Letters of Administration in England; and a Bill to amend the Law relating to Divorce and Matrimonial Causes in England.
§ LORD LYNDHURST
said, I desire, my Lords, to say a few words upon that very extensive scheme of legislation which has been submitted to you by the noble and learned Lord. And first, with respect to the testamentary jurisdiction, I am very apprehensive that the Bill proposed by my noble Friend will not generally be considered satisfactory, and I may state very briefly the reasons upon which I found that opinion. At the same time, it is not to be assumed, that in stating those reasons I express my own opinions on the subject. I shall reserve the statement of those opinions until the Bill reaches a subsequent stage. In the last Session the Attorney General introduced a Bill upon this subject into the other House, and the great objection urged against the Bill was, that it was a transfer of the jurisdiction of the Court of Probate to the Court of Chancery. That transfer was objected to by almost every Member of the other House whose attention was directed to the subject. It was said that it would be contrary to policy to add to the jurisdiction of the Court of Chancery, and I heard expressions used as strong, as this—no sane man would add to the jurisdiction of that court. In the present Bill, it is true my noble and learned Friend has not in terms transferred the jurisdiction of the Court of Probate to the Court of Chancery, but I will satisfy your Lordships that he has done so in substance. Whether that be a wise and proper course, I will take some subsequent opportunity of considering; I am now only suggesting the difficulties with which my noble and learned Friend will have to contend in the progress of the Bill. In the first place the Judge of the new court is to be an equity Judge, one of the Vice-chancellors, and is to hold the office only so long as he continues Vice-chancellor. Further, the orders and regulations with respect to the course of proceeding are to be framed by that equity Judge, not by him indeed alone, but by him assisted by another equity Judge, my noble and learned Friend the Lord Chancellor. Again, in the mode of enforcing the decrees of the Court the practice of the Court of Chancery 438 is to be followed. So far, then, this tribunal is to be an adjunct to the Court of Chancery, and the mode of taking evidence is to be the same as that of the Equity Courts, with respect to which, give me leave to say, that I have communicated with many of the practitioners and some of the Judges of that Court, and they concur in the opinion that it is most unsatisfactory. But to proceed further, the appeal from the present Court of Probate is to a most popular tribunal, the Judicial Committee. Every one approves of that tribunal. My noble and learned Friend, however, proposes to take the appeal from the Judicial Committee and to transfer it—to what? Why, to the appellate jurisdiction of the Court of Chancery, and from the appellate jurisdiction of the Court of Chancery to the House of Lords! Is not this Bill, then, a Bill to abolish the Court of Probate, and to make the jurisdiction of that court an adjunct to the Court of Chancery? One objection which has always been made to the jurisdiction of the Court of Chancery, and will be made to the proposal of my noble and learned Friend is, that when questions of fact have to be decided the court does not decide them, but calls in the assistance of another court. When, for instance, a case occurs in the City of London or in the county of Middlesex upon which a question of fact arises, the Judge does not summon a jury and try that question, but he sends it to another Court; the record is made up, it then goes down to another court, it is afterwards referred back to the original court, and ultimately judgment is pronounced upon it. Mark the inconvenience and inconsistency that arise in these cases. An issue is sent to be tried in Middlesex before my noble and learned Friend opposite (Lord Campbell)—a Judge profoundly conversant with the common law, having been accustomed to practise in courts of law every day for years. A question arises in the Court of Equity on my noble and learned Friend's decision, and a new trial is moved for. Before whom is the Motion made for a new trial, calling in question the decision of my noble and learned Friend not only upon the questions of evidence, but upon any questions of law which may have arisen in the progress of the case? Before a Judge who has never been in a court of common law in his life. It is an appeal from an enlightened Judge who has practised every 439 day in a court of common law to a Judge who is—I will not say utterly, but comparatively—ignorant of the subject. Are not these adequate objections to the species of tribunal which my noble and learned Friend wishes to establish? I am not now urging them myself; I am merely stating them as they will be urged in other places against my noble and learned Friend's Bill. Again, as the law at present stands, an heir-at-law cannot be divested of his property without the verdict of a jury; he has a right to insist upon it. But by this Bill a verdict will be by no means necessary. The question may be decided by a court without a jury, and not by a court of common law, but by a court of equity. I now ask your Lordships whether it is not probable that the Bill, when it comes to be considered and discussed in another place will not be thought quite so satisfactory as my noble and learned Friend seems to anticipate. My noble and learned Friend may be sanguine as to the successful management of the Bill, he may be able to combat many of the observations I have made, some of the arguments against it I might myself be able to refute, but those observations and those arguments are very likely to prevail against the Bill. The noble and learned Lord spoke of forty district courts. I did not quite understand whether they were new courts to be established or old ones continued. But what is the duty to be discharged by the registrars of those courts? They will have no more than a ministerial jurisdiction; they will only have to see that the wills are properly framed. Why are courts of this kind to be established or continued? You have County Courts all over the country. Why should not this jurisdiction be exercised by the registrars of the County Courts, who would be aided by the intelligence and supervision of the Judges, and the expense of these new courts saved to the country? Another very difficult part of the subject is that of compensation. You are transferring the jurisdiction from the Court of Probate, presided over by a learned Judge, experienced in the discharge of his duties and ably performing them, to a new tribunal. Why that court is to be abolished for the purpose of creating a new court as an adjunct of the Court of Chancery I cannot say, but I should be glad to know what compensation is to be offered to the members of that court. Your Lordships will surely require 440 some anticipation to be made by my noble and learned Friend as to the probable amount of that compensation, in order that you may consider whether you are not paying too highly for this transfer of jurisdiction. I said at the outset that I would reserve my opinion upon the details of the Bill, and would only state my reasons for thinking that it would not be satisfactory. Those reasons I have now stated, and it is for my noble and learned Friend to consider whether he will be able to overcome the objections to which I have directed his attention. Dismissing that subject, I now come to the Bill of my noble and learned Friend which relates to church discipline. The subject of that Bill is one of great importance, and I must claim the attention of your Lordships, particularly of the right rev. Bench, to the few observations I am about to make upon it. Our attention has been very much drawn lately to the statute of 13 Eliz., under which a prosecution has recently been carried on. By that statute the slightest deviation in doctrine from any of the articles of the Church of England may be made the subject of a prosecution, although that deviation may be sanctioned by the highest authorities—by rev. divines and right rev. Prelates, and the only sentence that can be pronounced is that of deprivation. There is no alternative. This is a very harsh state of things, and what is worse is, that every offence within the jurisdiction of the Act to which I have referred may also be dealt with as an offence under the general ecclesiastical law, and if dealt with there the punishment is not defined, but the sentence may adapt itself to the nature of the offence. I think this is a subject of great importance, and one eminently deserving your serious consideration, though I am not sure in adverting to it that I have made myself intelligible to your Lordships. My opinion is, that it would be desirable to provide that such offences should always be dealt with under the general ecclesiastical law, and not under the provisions of the statute. There is, however, a difficulty which has been pointed out to me as standing in the way. The statute to which I have referred, it seems, was incorporated in the Act of Union with Scotland; but I may remind your Lordships that in this particular matter now under consideration the Scotch have no interest or concern, and if we are desirous of relaxing or altering the law in this respect, surely no reasonable objection 441 to that course can be made by them. With reference to the third subject to which my noble and learned Friend has called your Lordships' attention—namely, the Divorce Bill, I shall say but a very few words upon that point, and for this obvious reason, that this Bill was before your Lordships last Session, and was discussed as well by your Lordships as by a Committee upstairs. I shall not, therefore, go over the merits of the Bill again, but there are two alterations in it, one an omission and the other an addition, to which I must briefly allude. The Bill of last year contained a clause by which in the case of a conviction and separation for adultery, the party guilty of the adultery should not be allowed to marry the accomplice. That clause has not been introduced in the present Bill. I regret, too, that my noble and learned Friend has not thought it necessary to incorporate in his Bill any provision for putting an end to a practice of which I cannot speak too strongly in terms of condemnation—I mean the action for criminal conversation. I say, my Lords, it is scandalous and wholly inconsistent with the manly character of this country for a man to attempt to satisfy himself for loss of honour and degradation by having recourse to a proceeding of that nature; and if no other noble Lord should seek to introduce a clause with the view of abolishing this form of action, I shall certainly think it my duty to do so at a subsequent stage of the Bill. The only remaining point to which I shall call your Lordships' attention is the addition made to this Bill by my noble and learned Friend on the point of separation. By that addition a husband and wife, without the intervention of any tribunal, and simply by a deed registered in some office, would be allowed to separate, and the wife would acquire by the deed a right to all future acquired property. I believe, my Lords, this is the first time that an attempt has been made to deal with the question of separation in this way; and I hope my noble and learned Friend will well consider this clause before it passes into law. It is a subject of the greatest gravity, affecting most deeply our domestic interests, and it ought not to become law without the most serious consideration. These are all the observations I feel myself called on to make on the subject under consideration, and I need scarcely assure your Lordships that they are not made in any spirit of hostility to the various proposals of the noble and 442 learned Lord on the woolsack, all of which, on the contrary, are of such importance as well to deserve the close attention of your Lordships.
THE BISHOP OF EXETER
expressed the pleasure with which he had listened to the speech in which the Lord Chancellor had propounded his plans to the House, and would content himself by simply saying further, in reference to the subject of Church discipline, that he hoped his noble and learned Friend would be of opinion, on reconsideration, that it would be better made the subject of a substantive Bill than form part of any general measure.
said: I am imperatively called on, my Lords, in the discharge of my duty, to express a strong opinion in corroboration of what has fallen from my noble and learned Friend opposite (Lord Lyndhurst) upon one part of the Bill of my noble and learned Friend on the woolsack. I hear with astonishment and dismay that it is proposed that any married couple any morning, if they have had a temporary disagreement, or in pursuance of some improper purpose long entertained, may go actually and obtain a divorce for all practical purposes, except marrying again. Those of your Lordships who may have read a book written by my learned Friend, Mr. Macqueen, will remember that they have in France what is called a separation de corps, the effect of which is that the marriage between the parties affected by it is dissolved for all purposes, except that they are denied the privilege of marrying again; but the matter must be decided by a judicial tribunal, there must be adequate reasons assigned for the separation, and an attempt at reconciliation on the part of the Judge. The common law courts at present viewed deeds of separation with great suspicion, but such deeds were nothing compared with the judicial proceedings proposed under this Bill, which would amount to a virtual divorce, except that parties would not be allowed to marry again. The foundations of domestic peace, and the security of married life in England will be shaken by this proposal, and I implore of my noble and learned Friend to reconsider this subject. I, of course, offer no opposition to the first reading of this Bill, and I hope that it will accomplish the reforms which for twenty-five long years have been desired in vain. I must say, however, that I have my misgivings on the subject, and begin to think that the Ecclesiastical Courts are immortal, and 443 bear a charmed life. At the same time there is no one better qualified than is my noble and learned Friend on the woolsack to fight with the difficulties which must be encountered, and I shall be happy to give my noble Friend any aid in my power to surmount those difficulties. With regard to the Court of Chancery, I have a sincere respect for that Court, but I do not think it is well imagined on the part of my noble and learned Friend to make a court of probate an adjunct to that tribunal. I know that in the other House of Parliament it is considered a dreadful calamity—a tremendous evil—when any person is forced to go into the Court of Chancery; and even among your Lordships, in spite of the opportunity many of them enjoy for seeing the ability with which the equity Judges discharge their duties, it is felt that for some purposes the Court of Chancery cannot very properly be selected for the performance of certain functions. Now, suppose an issue was directed to be tried as to whether a will had been properly executed, and whether the testator was of sound mind. That question would come before one of the Judges of the land either in the County of Middlesex or upon circuit; it might in due course come before me. Now, I should feel it no degradation to have one of my decisions reviewed by an Equity Judge; but, at the same time, without arrogating any superiority to myself, I doubt very much whether it would not be more satisfactory to the parties if the appeal were to go before my brethren in the Court of Queen's Bench and the Court of Exchequer Chamber rather than before a single Vice Chancellor. These are some of the arguments which will be used against the present Bill, and I trust that my noble and learned Friend, if it is not too late, will avoid the Court of Chancery, and make his new tribunal a common law court. Notwithstanding the difficulties pointed out I hope they will be surmounted. My learned friends and myself will all do our best to assist in this work, but I think my noble and learned Friend is not exactly in the right course at present, and that after consideration he may avoid some of the objections to which the scheme, of which your Lordships at present have a sketch, seem open.
said, that he also hoped that the difficulty in the way of this important measure would be overcome by his noble and learned Friend on the Woolsack; but at first sight a difficulty started 444 up, that his noble and learned Friend proposed to establish a new court under an equity judge to exercise a common-law jurisdiction. At least, if he understood the plan aright, the new court was in its procedure to follow the course of the common law. This being the proposition, and the Vice Chancellor being to sit as the judge in the new court, he was at a loss to know what occasion there was for taking the jurisdiction out of the hands of Doctors' Commons. If the jurisdiction was to be taken from the Ecclesiastical Courts, and placed in the new Court of Probate—that Court of Probate being as little a court of common law as the Ecclesiastical Courts were common law courts, and the Vice Chancellor being as little a common law judge as his right hon. and learned Friend Sir John Dodson, the head of the Prerogative Court—then he wanted to know why his right hon. and learned Friend might not discharge the same functions as well as a Vice Chancellor? As to the "common form" business, there could be no doubt that it would be quite as well—if not better—disposed of by the present eccclesiastical judges as by the Vice Chancellor; and as to the contentious causes, as far as he could see, they could be quite as well disposed of by the Ecclesiastical Courts, which at present had the disposal of them, as by the new Court. Here, then, was his difficulty. He wanted to see the necessity which existed for abolishing the Prerogative Court for the purpose of creating another Court of Probate under a Vice Chancellor; for it appeared to him that such a judge was as little likely to expedite the business—seeing that he was not a common-law judge—as the Prerogative Court itself. Then the Vice Chancellor was to direct an issue; well, could not the Prerogative Judge direct it in the same way? It must not be supposed that he was arguing against the abolition of the Ecclesiastical Court; on the contrary, he quite agreed that the Ecclesiastical Court ought to be abolished. To that he had no objection, as at present advised; but he should let a Court of Probate be constituted, not of Equity Judges, administering business after the rules of the Court of Chancery, or the rules of common law, but of common law, proved by the common-law Judges. With respect to another measure of his noble and learned Friend—the Clergy Discipline Bill—he could not help agreeing with the right rev. Prelate (the Bishop of Exeter) who had just now spoken, that it would be better to repeal 445 the 13th Elizabeth by a separate Act, and to treat the whole question as entire and separate. There was a case now before the Privy Council, with which they were all familiar, and which afforded just ground for complaint, inasmuch as he was sorry to say it had sequestrated, so to speak, his noble and learned Friend (the Lord Chancellor's) services in his judicial capacity in that House. And he believed that much time would not elapse before another case would come before the Judicial Committee—he alluded to a case that was much to be lamented by all friends of the Established Church—much to be lamented by all friends to the peace and harmony of the community, which he feared would ultimately find its way, and, probably, after no great lapse of time, to the same tribunal. Some check ought really to be imposed upon these Church cases, so that it should not be left at the option of any one individual, however well-intentioned he might be, but, unfortunately, not very wisely advised, to go before the Ecclesiastical Court, in the expectation that it would decide upon doctrinal questions, and so threaten, he would not say the disruption—Heaven forbid that should be the result!—but at least to disturb the peace of the Church and of the community. He thought that some check should be provided, so as to control individual caprice in promoting such suits; and he also thought that some such arrangement was advisable as the creation of a spiritual body to whom such questions might be referred for the purpose simply of ascertaining what was the doctrine or discipline of the Church, but leaving the ultimate decision of the question in the hands of the lay tribunal—the Judicial Committee. This would prevent—not disruption, for he apprehended no danger of that sort—but a continuance of that which at present existed in the nature of a disturbance or want of unity in that most venerable body, and tend to satisfy all parties in matters referring to the doctrine of the Church. Another matter relating to Churchmen and Dissenters required to be considered, and he trusted that he might receive sufficient encouragement to reintroduce a proposition contained in a Bill which he brought in two years ago for the removal of a serious grievance under which clergymen of the Church of England now laboured. Under the present system, if a clergyman, from conscientious motives, separated himself from the Church—if from conscientious scruples or conscientious differences of opinion he 446 had become a Dissenter, as he knew several had done to the great loss of the Church, and without any want of charity, he might add, to the great loss of the parties themselves, the seceders from the Church—if a clergyman thus entered into communion with a Dissenting body, and performed divine service as a Dissenting minister, he was, by the law as it now stood, liable at any moment to be brought before the Bishop, within whose diocese he was executing his functions, as a Dissenting parson, to be dealt with by him in the same manner as if he still belonged to the Church. Holy orders were on all hands regarded as indelible, and if, without in the slightest degree infringing that sacred principle, it could be enacted as part of the plan proposed to be brought before their Lordships that Church censure and all other Church discipline should cease to apply to parties who had separated from the Church, and that all civil disabilities and all the privileges of clergymen should cease likewise, he considered that it would be a wise and certainly a most tolerant addition to his noble and learned Friend's Bill. With respect, also, to Church discipline, he did hope that some measure would be passed for relieving the right rev. Prelates from the position in which they at present stood, of being compelled to enforce discipline by the prosecution of charges against clerks. They had no choice, but were almost compelled by law to prosecute; and yet what was the consequence? A right rev. Friend of his who was not then in the House—he alluded to the Bishop of Winchester—had, to his certain knowledge—for he (Lord Brougham) sat upon the Judicial Committee on the trial of the appeal—incurred expenses amounting certainly to upwards of £4,000, and he believed to above £5,000, in the prosecution of one such proceeding, not one farthing of which could he by possibility ever recover. He thought that common justice and expediency also required that provision should be made to meet such expenses out of the common fund, for it was the inevitable result of such a state of things that the right rev. Prelates could not have much encouragement to perform their duty. With regard to the question of marriage, although he entertained some doubt relative to the giving a power uncontrolled of separation, he generally approved of his noble and learned Friend's scheme. He was sorry that the Bill did not go further in granting divorces a vinculo at the suit 447 of the wife. As far as it did go it was in the right direction; but it did not provide the complete remedy that was required. He quite agreed with his noble and learned Friends as to the cruelty inflicted on the wife in cases of adultery on the part of the husband, and he concurred also in their remarks upon the suit of crim. con. which he thought ought, at any rate, to be put an end to. He quite concurred also in his noble and learned Friend's remarks as to the cruel injustice in these actions inflicted on the woman, whose character was at stake, and yet she was not permitted to be a party to the suit, when indeed she might be the victim of a conspiracy between the husband and the alleged adulterer. Possibly some remedy for this evil might be provided, should the action be still allowed, by requiring the plaintiff to give the wife notice, so that she might intervene for the protection of her character. But the action should be altogether abolished. On the other hand, he thought that seduction should be dealt with by criminal procedure as a public offence, and not by a civil action, as merely a private wrong. This was the opinion of those who had gone before us, men of the greatest name and highest authority; not only of Lord Erskine, but of Mr. Pitt and Lord Grenville. Some persons felt great difficulty in this, but, at all events, actions for criminal conversation ought to be got rid of as speedily as possible. He would not now speak of the state of the law, as it affected the property of married women, because he intended to introduce a Bill on that subject himself.
§ LORD WENSLEYDALE
said, the present was not the proper stage for their Lordships to make up their minds with regard to the details of the measure of his noble and learned Friend. He was aware, however, that there were some clauses which required further consideration, though there were also some which were not deserving the appellation his noble and learned Friend (Lord Lyndhurst) had given them. Speaking of the measure generally, it received his cordial assent, because he believed it would effect a great improvement in the law. It did away with a multiplicity of small jurisdictions, established one court, where all original wills could be seen, put an end to the inconvenience of bona notabilia, and all this without creating a number of new offices, involving the payment of enormous compensation to the possessors of the old. In his 448 opinion, the chief merit of his noble and learned Friend's scheme was, that the gentlemen who now officiated in the Courts would be employed in the New Court, and of course would receive no compensation; and these were usually the principal objections to many modern improvements and reforms. In 1830, he was engaged with Sir James Graham in the preparation of a Bill, the object of which was to improve the Court of Probate. For some reason or other that measure was not proceeded with; but in substance it was very like the present, and the reason which induced him (Lord Wensleydale) to support that plan was, that it worked on old foundations, and avoided the expense of compensation.
THE BISHOP OF OXFORD
said, he trusted the Lord Chancellor would not incorporate in his Bill the suggestion thrown out by Lord Brougham, towards the close of his speech, relative to ministers seceding from the Church. The Clergy Discipline Bill proposed to deal with clergymen who remained in the Church; and as the suggestion of the noble and learned Lord, which was, as far as he (the Bishop of Oxford) could judge, a very proper one, was to pass an Act of toleration protecting those who left the Church against the infliction of penalties, he would advise that it had better be treated as a separate measure. He trusted, therefore, that the measure sketched out by the noble and learned Lord (Lord Brougham) would be separate and distinct from the Clergy Discipline Bill. The noble and learned Lord on the Woolsack proposed to provide for the appointment of assessors to the Judicial Committee of the Privy Council from the Episcopal Bench, and further proposed to multiply those assessors, if necessary, so as to get something like a representative bench in the court; but that was not the proposal of the noble and learned Lord opposite (Lord Brougham). The proposal of the noble Lord was, that the Privy Council should decide, in cases in which doctrine came in question, simply and solely the legal question involved, and that machinery should be provided to enable them to learn what the decision of the Church was upon the point of doctrine. The proposal was, in fact, that there should be a reference on the subject of the spirituality to a spiritual body, in the same manner as in questions relating to foreign matters. Our law courts now obtained the decisions of foreign jurists, 449 and decided on the questions before them when they were put in possession of the opinions of those jurists. They could not make the Privy Council an Ecclesiastical Court by putting bishops upon it or having them as assessors. Let the Privy Council; decide the question of law, and let there be no admixture of the spirituality with the law. No such admixture would be caused by the proposal of the noble and learned Lord (Lord Brougham), which was, that machinery be provided to enable the Privy Council to obtain on the spiritual point that knowledge which they might require to enable them to come to a right conclusion. One serious objection to the appointment of assessors was this, if it were left to the Crown to appoint Bishops, however right and just the acts of those Bishops might be—however rightly they might conduct themselves, it would be impossible either for those who appointed them or themselves to escape the imputation that they had been named, in order that they might give a particular decision in a particular case. Thus the evil of temporary delegates would be revived, and revived in a most mischievous manner, besides bringing a reproach upon the highest officers of the Church.
said, that the proposal of the right rev. Prelate who had just addressed their Lordships was, that there should be a reference to an ecclesiastical body, and that their response should be binding.
THE BISHOP OF OXFORD
wished to correct the noble and learned Lord. He (the Bishop of Oxford) had advocated some such machinery as that suggested by Lord Brougham, and that noble and learned Lord had stated expressly that the opinion of the ecclesiastical body should not be binding in the particular case. The Privy Council was to take the opinion of that body, and then give such decision as they themselves should think best.
Then, if the opinion of the ecclesiastical body was not to be binding on the Privy Council, this lay tribunal was to decide on doctrinal matters. If their opinion was to be binding, they would supersede the Privy Council; if it was not, this proposed reference would make the Privy Council more odious, and be likely to bring about a disruption of the Church.
THE BISHOP OF OXFORD
was desirous of explaining what his meaning was, that the spiritual body should declare the general 450 holding of the Church, but that the Privy Council should be responsible for the particular decision.
THE LORD CHANCELLOR
did not think the difficulty of dealing with the spiritual part of the subject would be greater if the Privy Council had the assistance of assessors, than it would be if they were to take the opinion of an ecclesiastical body by reference. The assessors would be appealed to by the Judicial Committee as the Judges were when summoned to their Lordships' House. The question to be decided by the Privy Council was always a legal one. It was, had the party violated the law? He was of opinion that it would be very useful to have the assistance of right rev. Prelates on the Council; much more so than to have a distinct question argued before them on which they (the Bishops) were to make a report, which the Privy Council might or might not adopt, just as they thought fit. However, he would give the suggestion of the noble and learned Lord (Lord Brougham) and the observations of the right rev. Prelate (the Bishop of Oxford) his careful consideration, and communicate to the House the decision at which he had arrived before anything final should be done on the subject. His noble and learned Friend had asked why Sir John Dodson should not be the new Judge, his answer was, that he wished to get rid of the Prerogative Court altogether. As to his having selected the Vice Chancellor as the Judge before whom the cases to which he had before referred were to be brought, he should remark, that the Judge would only have one function to perform—to say whether he was satisfied with the verdict, or whether there should be a rehearing. The reason was, that there was always a Vice Chancellor in London, while the common-law Judges were absent from town during several months of the year. This was desirable, considering that these cases would be of daily—certainly of weekly occurrence. Otherwise, he (the Lord Chancellor) would have no objection to a common-law Judge, for there was nothing in the habits of a common-law Judge which unfitted him for disposing of such questions. By his plan there would be no additional staff or no additional salaries.
THE LORD CHANCELLOR
said, that he knew by experience that the time of the vacation Judge was already fully occupied 451 from ten o'clock in the morning till six or seven in the evening.
§ The said Bills were then severally read la.