Lords Sitting of 23 February 1857

MINUTES.
Sat First in Parliament.—The Lord Carew, after the Death of his Father.
PUBLIC BILLS.—2aProbates and Letters of Administration; Chief Constables.

DIVORCE AND MATRIMONIAL CAUSES BILL—OBSERVATIONS.
LORD LYNDHURSTexpressed a wish that his noble and learned Friend on the woolsack would postpone the second reading of this Bill, which was fixed for Thursday next, until some day in the following week. He made that request because neither he himself, nor a right rev. Prelate, who took a great interest in the subject, could attend the House on Thursday.
LORD CAMPBELLsaid, he was prepared to give his best support to the Bill as it had been originally framed upon the Report of a Committee over which he had the honour to preside; but he strongly disapproved of a change which had subsequently been introduced into it, by which all married persons, tired of being together, might obtain divorces without the intervention of any legal tribunal. He could not be in his place in the House next week on the day for which the second reading was appointed; but as he believed that the provision to which he had just referred was calculated to destroy the morality and the domestic happiness of the people of this country, he should feel it his duty to come to town from circuit for the purpose of moving its omission, on the occasion of the third reading, in case it should not have been previously expunged by their Lordships.
THE LORD CHANCELLORagreed that the second reading should be postponed.
Second Reading put off to Tuesday, the 3rd of March next.

THE KURIA MURIA ISLANDS—

  ADDRESS FOR PAPERS.
  LORD POLWARTH LORD POLWARTH moved, that an humble Address be presented to Her Majesty for any Papers or Correspondence relative to the Cession of the Islands of Haski Jibleea and Ghurzoad by the Imaum of Muscat to Her Majesty, and their erection into a Colony; and also to call the attention of the House to a Licence granted on the 20th of February, 1856, by the Commissioners of Emigration to John Ord and others, giving them the sole and exclusive Right to raise and take away Guano from these Islands during five years. The noble Lord made some remarks, which were imperfectly heard, upon the great importance of guano to the agriculture of the United Kingdom, and to urge that the Government should encourage, as far as they could, the opening up of new sources from which an increased supply of guano could be obtained—and, consequently, deprecated any arrangement which, by giving a monopoly to private parties, should deprive this country of the benefit of the reduced price which enlarged supplies of this description of manure would otherwise secure. Not only in his opinion was this grant to Messrs. Ord liable to this objection, but he could not avoid expressing his surprise at finding that the
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  Emigration Commissioners had the power of granting exclusive licences without giving notice to Parliament.
  THE EARL OF CLARENDONsaid, that there could be no objection to give the papers asked for by the noble Lord, for the Government were desirous of laying before Parliament and the public the fullest information on the subject of any islands supposed to contain guano, and had the same feelings as animated the agricultural bodies with respect to the importance of taking measures to increase the supply. He had, at the request of the Agricultural Society and other bodies, directed a circular to be sent to our consuls in countries where either guano or nitrates useful for agricultural purposes were likely to be found, requesting them to give the earliest possible information if any supplies should be discovered. With respect to the particular islands referred to by the noble Lord, their history was this. Some time ago a Mr. Bell, of Edinburgh, informed him that Captain Ord had discovered in the course of one of his voyages some guano islands, the precise locality of which, of course, he wished to keep secret in order that no person should anticipate him in obtaining the advantage of the discovery. A good deal of correspondence took place on the subject; and at length Captain Ord having informed the Government where the islands were, it was arranged that he should accompany Captain Peel, who was then going out to that quarter, in order to point out the islands, to discover to whom they belonged, with the view of obtaining if possible their cession. Captain Peel accordingly, on his arrival out, communicated with our consul at the Court of the Imaum of Muscat, Mr. Freemantle, who was of opinion that they belonged to the Imaum. As the Imaum was then absent, Captain Peel went to the islands; the weather only permitted his landing on one, where he found no guano, but discovered some inhabitants, who told him they were the subjects of the Imaum of Muscat. He then returned and saw the Imaum, who expressed no doubt as to the islands being his, and said that he should have great pleasure in ceding them to Her Majesty. Captain Peel then again returned to the islands, which he inspected; and he reported that the quantity of guano was small in quantity and inferior in quality—in fact, that as guano islands they were valueless. He thought, however, that one

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  of the islands was important as a coaling station, and it was offered to the East India Company for that purpose. They did not, however, think proper to accept the offer, and the islands then passed under the Colonial Office, and it was supposed that the question of obtaining guano from them had been set at rest. However, at the end of the year 1855, Mr. Ord said that he found that the guano, although not so good as Peruvian, was yet sufficiently good to make it worth getting, and he said that he was willing to undergo the expense and trouble of ascertaining the fact if the Government would grant him a lease for five years of the island. Well, considering that he was the original discoverer, that the report on the islands was not favourable, and that there was a great chance that no guano would be discovered, the lease was granted. However, the Government in doing so, expressed an opinion to Captain Ord that no monopoly ought to be created of so valuable an article; whereupon Captain Ord had written to him an undertaking that every cargo of guano obtained on those islands should, as it arrived at Liverpool, be sold by public auction in the open market in lots, suitable to all purchasers. That letter was written in 1855, and lately the Colonial Secretary, in communicating with the firm at Liverpool, who were acting for Captain Ord, and had applied for protection for him in his labours, had informed them that the Government considered the pledge as binding. He had also that morning received a letter from that firm informing him that Captain Ord was willing to allow any ships whatever to resort to the islands for the purpose of loading guano, provided he received a royalty of £2 per ton.
  THE DUKE OF MONTROSEsaid, he considered a royalty of £2 a ton would be too much to give to Captain Ord and his party, and that it would have the effect of keeping up a high price to the consumer.
  LORD BERNERSalso thought the royalty too high, and objected that the arrangement made with Messrs. Ord and Co. was an infraction of the principle that colonial lands were public property. It was, he thought, somewhat contradictory that while the Government were endeavouring to put an end to the monopoly in regard to Peruvian guano, they should be actually encouraging monopoly in regard to the supply of the same article from
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  another part of the world. He had understood that on one of these islands, when a thin crust had been cut through, there would be found underneath a deposit of guano amounting to from 1,000,000 to 2,000,000 tons.
  THE EARL OF HARDWICKEsaid, that as it appeared that Captain Ord and the gentlemen associated with him were at present applying for the protection of an armed force to enable them to conduct their operations, the Government would be perfectly justified in taking advantage of that application, with a view to make a better bargain for the public. The price of Peruvian guano in this country was at present £15 per ton, and those gentlemen would now find themselves placed in a better position in the English market than they could have expected at the time the grant of the licence had been made to them.
  Lord POLWARTH and the Earl of CLARENDONsaid a few words in reply to these observations, which were inaudible.
  Motion agreed to.

PROBATES AND LETTERS OF ADMINISTRATION BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE LORD CHANCELLOR, on rising to move the second reading of the Probate and Letters of Administration Bill, said, that he knew no duty which must be more disagreeable to a Member of their Lordships' House than to have to direct their attention to a subject of a dry and technical character, and more especially when that subject was one which had been under discussion more or less for the last twenty years, and had occupied some portion of their Lordships time in almost every Session during that period. Their Lordships were aware that the object of this Bill was to remedy evils which had long been the subject of complaint, arising from the existence of numerous petty jurisdictions throughout the country, which, though in some few instances they were of a secular character, were for the most part ecclesiastical, with reference to the granting of probates of wills and letters of administration. They were aware that there existed about 100 different courts that exercised that jurisdiction. There was also a supreme court in each of the provinces of Canterbury and York, which had a jurisdiction in cases in which none was vested

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  in the inferior courts. For instance, if a person died within a district subject to an inferior court, having property beyond that district, that court had not the right of granting probate, and resort must be had to the superior court of the province. Then again, those superior courts were themselves liable to a similar limitation in respect of their own provinces. There were, therefore, two Courts of Prerogative jurisdiction, and there were the local jurisdictions themselves. Now, one great evil which had existed from time immemorial in consequence of this state of things was, that the local court had only jurisdiction if a person dying within the jurisdiction had no goods anywhere else. In that case the local court could grant probates and letters of administration; but these would be altogether null and void if it turned out that the deceased had bona notabilia out of its jurisdiction. That was a state of things altogether anomalous and inconvenient, and was, in fact, a blot on our judicial system, which successive Parliaments had endeavoured to find some way of remedying. There was another grievous evil in the constitution of those courts. They had all of them what was called a contentious jurisdiction—that was to say, if in any diocese a dispute arose as to whether a will was a genuine or valid one or not, this question was to be decided by the diocesan or local courts—courts which whatever might be their other merits (and it was no reflection upon them to say this) were scarcely competent to deal with matters which even the Courts of Westminster had always considered most delicate and difficult—namely, as to the sanity of a testator and his capacity for making a will. The local courts had to deal with these questions; but practically he did not think that a very great grievance, because where difficult questions arose, such cases might be at once transferred to the Court which sat in Doctors' Commons, where they might be disposed of through the instrumentality of persons well skilled in dealing with such subjects. There existed, however, this evil—that the procedure of the Prerogative Court was of a most cumbrous, inconvenient, and unjustifiable character—unjustifiable, he meant, according to modern and improved notions of what the course of judicature ought to be. All the extremely difficult and delicate questions to which he had alluded were decided in that Court, not by examining, ore tenus, those persons who knew the facts, and whose evidence might
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  lead a judge and jury to a satisfactory conclusion on the subject, but by written depositions, by a mass of papers which were flung down before the Judge, and through which he had to wade as he could. Now that was a most unsatisfactory mode of arriving at a conclusion on any point; but, if he had to select from the whole range of questions submitted for judicial decision those which were least likely to be satisfactorily decided upon written evidence, he should select the class of cases which usually came before the Prerogative Court for decision. He had been told that there were continually fifty depositions produced in that court in a single case, describing the testator as a person of sound mind, and fifty others on the opposite side describing him as totally incapable of making a will or of understanding anything about it. It was, indeed, a difficult matter at all times to arrive at the truth in such instances, even if witnesses cognisant of the facts were before the Court; but how much more difficult was it when the Court had no means of putting questions which might occur to it, and had to form a judgment upon conflicting depositions any one of which, perhaps, looked on paper as good as the other. There were a great number of other smaller matters which required remedying; but he would content himself for the present with those two which he had mentioned, and which he thought it most necessary to deal with; namely, the multiplication of small courts throughout the country, and the inconvenient practice adopted in the larger court at London. The object he had in view was to get rid of this mass of incompetent small courts and to improve the practice of superior courts in London. No one could doubt that this was a legitimate and a proper object, and the only question was, how far he had dealt satisfactorily with the matter in this Bill. In the course of the observations which had fallen from him in calling the attention of their Lordships a few nights ago to the subject of Ecclesiastical Courts generally, he had had the misfortune to be met with remarks I which had not given him much encouragement; but at the same time he trusted he should satisfy their Lordships that the present Bill had much to recommend it—more, in fact, than any other Bill which had yet been submitted to Parliament. In the first place, he proposed, (and to this he imagined there could be no objection) to abolish all the existing courts. Even sup-

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  posing that the Prerogative Court were as perfect as its most ardent admirers could desire, he thought it was the universal opinion now that the constitution of such a court should rest with Her Majesty or Her Majesty's advisers, and not with any ecclesiastical functionaries, however high in position. The establishment of a Queen's Court of Probate had been recommended by a Commission as well as by Committees, and the propriety of this course he thought could not be disputed. He proposed, therefore, to abolish all the local jurisdictions, and to constitute one Queen's Court of Probate. Now, he was aware that the point on which he had the misfortune to differ from his noble and learned Friends, and on which he still had the misfortune to differ from them (though, if their Lordships should be of a contrary opinion, the measure might easily be altered in this particular) was as to who should be the Judge of this new court. On this point he would say nothing until he had gone through the other provisions of the Bill, because he believed there were delusions prevalent in respect to it which a close examination of the subject would be calculated to dispel. In constituting this new Court of Probate, he thought he should not be acting wrongly if he tried to make as little practical change as possible, and to preserve (where he could do it without damage) the existing rules and practice. He proposed, therefore, that subject to the exceptions as to the taking of evidence, which he had just indicated, the present practice of the Prerogative Court should be adhered to by the Probate Court. He proposed to give to the Judge of the new court the power to make rules from time to time, and to alter the existing practice to such extent, as should, upon consideration, seem expedient; but it would, he thought, be much better to start with that system, which from previous experience would be intelligible to the functionaries. Then in order to exclude the notion that there was any desire to create patronage, and to damage existing interests, he proposed that the Gentlemen who constituted the present staff of registrars and other officers in the Prerogative Court should continue to discharge their various duties in the new court except in the cases of those persons who should be found incompetent from age or other causes to perform the services that would be required at their hands. The present rules of practice would prevail until altered by the Judge of the Court, who would, to
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  some extent, feel his way on the subject. He would now advert to what he considered the greatest change proposed by the Bill—namely, that instead of having disputed questions of fact tried in the imperfect mode which he had just pointed out, they would in future be decided by oral evidence taken before the Judge in open court. Those acquainted with the practice of the Court of Chancery knew that it would be hard not to allow parties occasionally to fortify some point by affidavit, and this privilege would be conceded, but its abuse would be guarded against, and it would be competent to the opposite party to require the oral examination of those who made an affidavit. With regard to the great questions, which would come before the Court, he proposed that they should be dealt with in the well-known constitutional mode in ordinary use for the trial of disputed facts,—namely, by an issue sent down to be tried before the Judges on circuit in whatever county the case arose. In a Bill which had passed through their Lordships' House for the further amendment of common law procedure there was a clause enabling parties, if they thought fit, to have disputed facts in a court of common law tried not by a jury, but by the Judge. To that proposal he had no objection whatever. He was not one of those who were absolutely and blindly enamoured of trial by jury; but he must say that an experience of some duration in courts of law and of equity had led him to the conclusion that there was no really satisfactory mode, or, at all events, no such satisfactory mode, of arriving at the truth as by a trial by jury. Undoubtedly, there would be great injustice often done if a jury were not very much guided by the Judge, and he was persuaded that unless the Judge felt it to be part of his duty to make a summing up, as it was called, of all the material facts detailed in evidence, pointing out to the jury their bearing upon each other, there would be no satisfactory security for the due investigation of the truth. It was not the mere fact that the trial was by jury, but the union of Judge and Jury, which afforded the greatest security for arriving at a just conclusion upon the case. For this reason he proposed that either party might always insist on the trial of a disputed fact by a jury, and not even by oral evidence before a Judge. As, however, it would be unjust to compel both parties, against their will, to embark in further litigation, and to go before a

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  jury, he proposed that, where both parties agreed, disputed facts should be settled by the Judge alone—and as the clause was drawn that would he the effect. Questions, however, as to whether the testator was of sound mind, or as to whether he was at the time of executing the will under undue influence, or whether the will was executed with the due formalities, might properly be referred to a jury. The next enactment which he proposed was—and he begged to say that all these enactments were in the Bill when he introduced it the other evening—that unless a new trial were ordered the verdict of the jury should be taken as conclusive as to the question of sanity or the other questions referred to it, and also that all the common law rules of evidence should guide the Court in trying the issue which might be raised. That was the way in which he proposed that all great questions should be decided; but there were also a number of smaller questions which arose, not indeed de die in diem, but from week to week, in which the practice of the Court at present was to refer the matter to the decision of the Judge—questions such as the effect of an erasure or of mutilation of the document, or referring to matters of that kind. These were the two great branches of business conducted by the Prerogative Court; and with regard to the latter branch, he believed—and that belief was founded upon the evidence which had been given upon the inquiries which had taken place into this subject—that it had been most satisfactorily conducted at Doctors' Commons. He proposed, therefore, that all that branch of business which he would call the noncontentious business should be left where it was at present, and that it should be left in the hands of the proctors and advocates of Doctors' Commons, who should have the privilege of exclusive practice in all such matters. He was aware that the question had from time to time been much controverted as to whether an exclusive privilege should be reserved to any particular class of practitioners, and in the Bill of last year that course had not been proposed. There was some advantage, no doubt, in having nothing of the nature of a monopoly, and it had been proposed last year that the proctors should be abolished, but with a compensation. He had himself assented to that proposal; but he was bound to own that further consideration and reflec-
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  tion had satisfied him that that would not be the wisest course to adopt. He believed that the compensation then proposed might have been arranged, and that it need not have entailed any charge upon the Consolidated Fund; but there would have been great difficulty in sustaining such an arrangement, because a new set of persons would come into existence, and would say, why should we compensate persons who formerly charged exorbitant fees? His noble and learned Friend near him (Lord Lyndhurst) had had the advantage of being able to effect great improvements in the practice of the Court of Chancery, and in doing so it had been necessary to compensate various officials, and, although the sums which had been paid were of a very large amount, he believed that, on the whole, those alterations had been the cause of diminished expenditure. He did not, however, think, when the matter came to be fully examined, that a proposal to compensate a whole profession could be sustained, and he therefore considered it to be his duty to consider what evil might result from the continuance of the present system. Now the sole evil was, that proctors had the power of charging an unreasonable fee; but surely that evil might be met by giving to some proper authority the power of diminishing those fees. On the other hand, both from the evidence taken before the Commission and from conversations he had held with persons well acquainted with the subject, he believed that the proctors operated as a useful intermediate check between the public and the Court, and that if they were done away with it would be necessary to appoint some official persons to sift the matter before it came before the Court, for the evil which might in many cases arise from hastily granting probate could not be exaggerated. The proctors were a small body, not exceeding 120 in all, of whom probably not more than 60 were in practice, all of whom were well known to the officers of the Court, and there was consequently a greater security afforded for the proper conduct of the matter at stake than there would be if 5,000 or 6,000 practitioners were admitted to practise in those Courts. For these reasons, he deemed it desirable, in the smaller and noncontentious business, to continue to them that monopoly which they now enjoyed, subject, however, to the provision for revision, and reduction of their fees. With regard, however, to the contentious busi-

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  ness, he could see no ground for maintaining a monopoly. It was well known, as regarded the proctors, that they did not look to large cases for remuneration, but to the multiplication of small cases; and it was only fair that in important cases the public should have a larger choice of advocates than was at present afforded to them by Doctors' Commons. He therefore, as regarded contentious business, proposed to throw open the practice to the whole profession. Having said thus much with regard to the practitioners, he would next state that, having abolished all the diocesan and district Courts, he was fully alive to the inconvenience which would result to the public if persons were compelled to come to London in all cases. He was aware that some persons held the opinion that under the improved system of communication that inconvenience would not be very considerable; but he did not wish to render himself in any way obnoxious to the charge of promoting a system of centralisation. What he proposed, therefore, was, to retain thirty-six district offices, solely for the registration and proof of uncontested wills, and he believed that that would be found quite sufficient for convenience of distribution. In these district Courts—as in the Prerogative Court—it was his intention to preserve as much as possible the persons who were at present engaged in them; and he mentioned this because he was not sure whether his intentions in this respect were clearly expressed in the Bill. He proposed that the district Courts should have no jurisdiction whatever in contentious cases, but that they should simply register wills and give probate where there was no dispute about them. Cases in which there was any contention must be brought up to be argued in the Court of Probate. He proposed that the original wills should be filed in the districts where they were made. This was a matter of dispute, he knew, and it had been urged that all original wills should be filed in London, and that copies only should be kept in the country. He thought, however, that this would be distasteful to people in the country, and he proposed, therefore, that the originals should be kept there, but that documents should be sent up every fortnight, giving in a popular form a list of all the wills proved, so that it might be known what wills were proved in the country, and that facilities might be given for examining them if necessary. He thought, however, that it would be de-
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  sirable in extremely small cases that there should be some means of allowing contentious cases to be tried in the country; and he proposed, therefore, in cases where the personal estate was sworn under £200, and where there was real estate, when such real estate was under the value of £300, that the County Court Judges should decide the question. He now came to a part of the subject on which he had no doubt there might be some difference of opinion. Probates of wills, as their Lordships were aware, related exclusively to personal estate. In the recommendations of the last Commission it was proposed that the distinction which existed at present should be removed, and that probate should be granted both for real and for personal estate. That was a subject on which he had heard great differences of opinion; but the conclusion at which he had arrived was, that to insist upon probate in the former case would be to impose an unnecessary burden upon the devisees of real estate, who did not, like the legatees of personal estate, take what was devised to them through the instrumentality of an executor. In the case of a personal estate it was absolutely essential that there should be some person in the character of an executor to realize all the property, to discharge the obligations of the testator, and to account for the surplus; but if a man died seised of one or two real estates, and left them to John Smith and James Jones, there was no reason why those persons should not at once go in and take possession, and there was no necessity, for any intermediate person between him who died and those who succeeded to the property. He did not therefore propose, as a general rule, that real estate should require any probate. But there were two matters in which he did propose legislation on the subject of real estate. When this matter was discussed three years ago in their Lordships' House the anomaly was pointed out, that, inasmuch as probate did not extend to real estate, this strange and hardly creditable state of things might, and sometimes did, exist—namely, that a Judge who had jurisdiction over the personalty might be satisfied of the sanity of the testator and grant probate of a will, whereas a jury trying the question of the real estate might decide that at the time of making the will he was of unsound mind, or vice versâ; so that the same instrument might be decided by two different tribunals, having jurisdiction

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  over two classes of property, to be the production of a sane man and of an insane man. He did not think that this was a grievance of a very practical nature, because it was one of rare occurrence. Two cases had happened since Lord Hard-wicke's time, and another was now pending before their Lordships' House in the shape of an appeal relating to a large property, which was heard at their Lordships' bar in July last, and in which no judgment had yet been given. That case was as follows:—A Gentleman, named Colclough, who had been formerly Member for the county of Wexford, died in the year 1842, having left a will by which he made his wife his sole executor and residuary legatee and devisee. His widow obtained possession of personal property under the will to the amount of nearly £150,000. Afterwards, the heir-at-law having contested her right to the real estate on the ground that the testator was of unsound mind, the jury decided at the Wexford Assizes in 1852 that the deceased was of unsound mind; and the case was now under appeal in the House of Lords. In order to meet such cases he proposed, where the question of sanity was legitimately raised upon a will affecting real estate, that the heir-at-law and other parties interested shall be cited and permitted to become a party, or to intervene for their respective interests, and that the question shall then be decided once for all. He proposed, further, for the convenience of the public generally, that in order to prove the passing of real estate, it should not be necessary to produce the original will from Doctors' Commons, but that the probate should be received as primâ facie evidence. He proposed, further, to give to the new Court the power, which, in truth, he thought they had now, although it was rarely exercised, of granting administration pendente lite, and of appointing an administration of real estate affected by the will, and of directing remuneration to such administrator or receiver. He also proposed to provide a place of safe custody where living persons might deposit their wills for safe custody. He proposed also that in case where a person had been appointed an executor and renounced, or where two persons had been appointed executors and one of them had renounced, I that the rights of the renouncing executor should cease as though he had not been named in the will. He now came to a point upon which he believed there was
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  considerable difference of opinion—namely, the appointment of the Judge of this new Court. He proposed that that Judge should be one of the Vice Chancellors. He was quite aware that that proposal would raise a great storm of opposition, because nothing was so unpopular, whether deservedly or not, as the name of the Court of Chancery. But, supposing that to be a well-founded objection, he did not transfer the business of the Probate Court to the Court of Chancery; he simply said that one of the present Judges of the latter Court should exercise the functions of Judge of the Probate Court, just as, till the establishment of the Lords Justices, one of the Vice Chancellors was, by Act of Parliament, constituted the Judge of the Court of Review. He should have had a much easier task if he had thought fit to propose the appointment of a new Judge or the continuance of an old one with a large salary and a staff of officers. He had originally so framed the Bill, but he found, when he inquired what the duties of the proposed Judge would be, that he could not honestly ask their Lordships to pass such a Bill on the faith of his statement that a new Judge was necessary. The Judge of the Prerogative Court sat now upon non-contentious business about twenty-four times in the year, or, farthest, thirty. The number of hours on each of these days did not average more than two. During the rest of the time the Judge was occupied in hearing and trying those great contested questions of sanity or insanity and the like which the Bill proposed to sweep away, leaving the Judge nothing, or little else, to do than to dispose of those minor matters which might be brought before him almost in foro domestico, and to direct the trial of issues as to the validity of wills by the courts of common law. His only other duty would be to direct a new trial in the event of a verdict being unsatisfactory. Now, without considering the subject of a new trial, had he or had he not made out a case for saying that there ought not to be a new Judge, if a Judge could be got who was discharging judicial functions now in some other court, and who had time to spare for the performance of additional duties? He thought he had, for he was persuaded that the business which occupied only thirty days in the year and about two hours each day would not be considered a duty that would warrant any Minister of the Crown in proposing the establishment

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  of a new or even the continuance of an old Judge. Where, then, could he find a Judge fulfilling all these conditions, except in the person of one of the Vice Chancellors, or—as had been suggested by a society which had made some very useful recommendations as to the amendment of the law—in one or more of the common law Judges? Now, he believed that, whatever other difference might exist between a common law Judge and a Vice Chancellor, there could not be the least doubt as to the superiority of the latter in all that respected the convenience of the public. The common law Judges were obliged twice every year to go circuit, while the Vice Chancellors were, comparatively speaking, always on the spot. He had heard it suggested, and the suggestion would probably be adopted by the Commissioners or the common law Judges, that there should be three circuits, which, of course, would increase the duties of the common law Judges. Moreover, the functions ordinarily exercised by a Vice Chancellor were infinitely more in analogy with those of the Judge of the new Probate Court than were the functions exercised by a common law Judge. He had no sort of antipathy to the common law Judges; on the contrary, he entertained the highest respect for them, it being his pride to recollect that, for eleven years, he had been one of their number; but he did not think that their habits or their practice would enable them to give the same satisfaction in non-contentious business as might be expected from a Vice Chancellor, who had been accustomed to deal with business similar to that which would come before him in the Probate Court. But it was said that his proposal to take away a Vice Chancellor would throw the proper business of Chancery into arrear. Upon that point he would refer to a return of the number of proceedings instituted in the Court of Chancery during the last six years. Their Lordships were aware that Lord Truro issued a Commission to inquire into the practice of the Court of Chancery, with a view to its amendment. The Commissioners made a Report, and a Bill, founded upon that Report, for simplifying and shortening proceedings in Chancery, was a few years ago passed into an Act. All those who wished well to the judicial establishments of the country would be glad to learn that the result of the change then introduced had been of the most beneficial
  1046
  description. He had before him a return of the number of proceedings instituted in the Court of Chancery during the last six years. Last year the number was 2,792, the year before it was 2,815, in 1854 it was 2,832. During the whole six years the number ranged from 2,500 to 3,000, the variation being so small that it might be accounted the result of accident. But what was the state of the Courts in the same period? Their Lordships must not imagine that he intended to attribute any merit to himself. His duty was not that of discharging the original business of the Court. That business was discharged entirely by the Master of the Rolls and the three Vice Chancellors, and he should be doing injustice to those very learned and able public officers if he did not mention the fact which he was now going to state to their Lordships. The state of the Courts was this:—Whereas, at the end of Hilary Term 1856, the causes which remained for hearing and disposal numbered 519, at the end of Hilary Term, 1857, they numbered only 245. Indeed, he should not be surprised if he were to find before Easter some one or more of the Courts having nothing to do. That was actually the case before Christmas, when, had it not been for the power vested in the Lord Chancellor to transfer causes from one Court to another, the whole business before one of the Courts would have been disposed of. He could not doubt, therefore, that there was ample time for one of the Vice Chancellors to take the work of the new Probate Court in addition to that which he now discharged. He did not propose to give any additional privilege or salary, and he was certain that if the Vice Chancellor to be appointed to the Probate Court should at any time be in want of assistance, the other Vice Chancellors would gladly relieve him of a portion of his other business. This brought him to the last point with which he would trouble their Lordships. He proposed that when a trial had taken place, if the verdict was unsatifactory to the Judge of the Probate Court, it should rest with him to direct a new trial. Such was now the case with regard to all wills of real estate when an issue was directed to he tried in the Court of Chancery; and although, if the question were whether or not there had been any misdirection of the Judge, a court of common law would be the better tribunal for deciding that point, yet

  1047
  the question whether or not there should be a new trial in cases of this sort did not ordinarily depend upon whether there had been a misdirection in point of law, but whether the verdict was satisfactory or the reverse. He appealed to his noble and learned Friend whether there had ever been any one function of the Court of Chancery more carefully or more satisfactorily discharged than that which related to such questions. He did not therefore see that there was any anomaly in trusting that discretion to the Vice Chancellor. He had now gone through the main portions of the Bill, and, although he had no right to ask their Lordships to look at it, as it were, ad misericordiam, he thought he was entitled to ask them to proceed with a friendly disposition towards the Bill, if he satisfied their Lordships that, whatever its demerits, it was far better calculated to the wants of the year 1857 than any measure which had preceded it. In 1842 or 1843 a Bill of Dr. Nichols on this subject was introduced, but that Bill fell to the ground. In 1844 his noble and learned Friend (Lord Lyndhurst) introduced another Bill, which proposed twenty-seven Diocesan Courts with contentious jurisdiction, although there were no practitioners, and two Archiepiscopal Courts—the Diocesan Courts having power to send these causes to be disposed of in the Prerogative Courts. The Diocesan Courts in the province of York might send causes to York, and if the Prerogative Court of York did not like them, that Court might send them to the Prerogative Court of Canterbury. He thought the simple mode proposed by this Bill infinitely preferable to that of his noble and learned Friend. His noble and learned Friend made no provision for taking of evidence vivâ voce. It was true he did provide that the Judge, if he thought fit, might, after the Commissions were returned, direct a witness to be summoned and examined, but he left the procedure as to evidence just as it was before. There was a power to direct trial of an issue; but his noble and learned Friend left the decision of the question whether the verdict was satisfactory, or whether there should be a new trial, to the Judge of the Court which directed the issue, who might be the Diocesan Judge, or the Judge of the Prerogative Court of York, or, the very good authority, the Judge of the Prerogative Court in London, The last thing he should ever wish to do was to attempt to raise the merit of his Bill by depreciating
  1048
  that of another. All he desired was, to satisfy their Lordships that this was a better measure than any which had preceded it. In the following year Lord Cottenham introduced a Bill, and Lord Cottenham's Bill was much more like the Bill he had now introduced. It constituted in the same way a Queen's Court of Probate; but he thought it gave to that tribunal unnecessary force and solemnity. He had not accurately examined what took place between that time and the time when he had the honour of receiving the Great Seal. He (the Lord Chancellor) introduced a Bill in 1854 which passed this House, but that Bill differed materially from the present, inasmuch as it did not constitute a Court of Probate at all, but gave the jurisdiction to the Court of Chancery, to be exercised by the Chancellor directing from time to time which Judge should dispose of it. Although it was an observation against the present Bill, he believed in theory that was the most correct course. But their Lordships knew that they could not always attempt the best course—only the best course within their reach. He believed all multiplication of Courts, by giving them particular jurisdiction, to be wrong in principle. He believed the theory insisted on by jurists, that there should be a sufficient number of Courts which should have jurisdiction over all questions and in all parts of the empire, to be unimpeachable, and he thought it would have been better if that plan had in this instance been adopted. He had explained why he had receded from it. Although the Judge was the Vice Chancellor, it was not in his character as Vice Chancellor, but because he had sufficient time to discharge the duties of the Probate Court. The Bill of 1854 failed in the House of Commons. Since that time two Bills had been introduced. A Bill was introduced in the last Session with his full sanction, by which a new Court was constituted; but, as it was felt there would not be work enough, it was proposed to give to the new tribunal some of the functions of the Court of Chancery, such as the power of administering estates. That Bill also provided for compensation of the proctors. He did not know that they would not have been justified in constituting a new Court with a new Judge, if they could not have found a Judge to discharge the duties of the office; but since the introduction of that Bill the business of the

  1049
  Court of Chancery had sensibly and gradually diminished. Therefore, assuming that it was perfectly right to make such a proposal in the last Session, it was not right to propose it now. He therefore proposed, as he had already stated, that a new Court of Probate should be constituted, that one of the Vice Chancellors should be the Judge of it, that functionaries exercising duties in the Prerogative Court should be retained, and also functionaries in the country, as far as possible; that it should exercise contentious jurisdiction in all cases, except very small cases, which would be disposed of in the County Courts; that there should be thirty-six district Courts—whether there should be more or less was a matter of detail; that all non-contentious business should be there disposed of; that the original will should be deposited in the district Court if proved in the district, or in London if proved in London; and that there should be registers in London of all wills, and also in the districts, so as to give every facility of reference. With these explanations he begged to move that the Bill be read a second time.
  Moved, That the Bill be now read 2a
  LORD ST. LEONARDSsaid, they were necessarily embarrassed by the constant changes in the whole form of proceedings which distinguished Bills on this subject; and the present Bill differed in very material respects from those formerly introduced by the noble and learned Lord himself. In the first Bill which his noble and learned Friend introduced, the whole jurisdiction over the Court of Probate was given to the Court of Chancery. He (Lord St. Leonards) at the time endeavoured to persuade their Lordships to confine the jurisdiction to a particular Judge, and was supported by his noble and learned Friend (Lord Lyndhurst), but he was entirely opposed by the noble and learned Lord on the woolsack, though now he had adopted it. In the next Bill, introduced with the approbation of his noble and learned Friend, Chancery had nothing to do with the matter. There was to be a new Judge, with a large salary, who was to have general superintendence of the law as regarded probates and wills. The noble and learned Lord then proposed, for the first time in this country, to subject real estate to probate. He (Lord St. Leonards) opposed the proposition, and with success, in a Select Committee upstairs, and he was glad to find that that idea was now abandoned. The
  1050
  next measure of the noble and learned Lord, creating a new Court of Probate with a new Judge, gave to that Court a general jurisdiction, and enabled it to assist in the administration of the laws relating to divorce and marriage. The present scheme, however, as he understood it, reverted to the first plan of his noble and learned Friend, and was to give to the Court of Chancery the whole administration of business relating to wills. It also adopted a suggestion which had been rejected, when he (Lord St. Leonards) proposed it, to give that particular duty to a single Judge. He was not very favourable to throwing that business into the Court of Chancery, although he was not a man to speak against that court. He knew that much abuse was levelled at that court by those who did not understand its working, but he believed in his conscience that it worked admirably and for the benefit of the public at large. He knew of no Judges who addressed themselves to their duties with more energy and ability than the learned Judges who now occupied seats upon the benches of the Court of Chancery. At the same time he was not inclined to increase the jurisdiction of the Court, and he entirely objected to casting any merely formal business upon a Judge of the court in addition to his present duties. If the figures quoted by his noble and learned Friend were correct, and there was not sufficient business to occupy all those learned Judges, the remedy was to abolish one of them. It was only in 1852 that the Master of the Rolls and the Vice Chancellors were called to perform chamber practice, the object being to abolish the Masters and to bring the Judges and their chief clerks into continual contact, so that instead of references to and reports from the Master, which involved delay and expense, the constant communication between the Judge and his chief clerk might allow the business to be disposed of at a far less cost than before. That system was found to work very well, and he hoped would not be disturbed, and especially that there would not be cast upon the Vice Chancellors additional duties, of a nature which, they were told, did not require any great powers of mind. To throw such business upon a Vice Chancellor, would be to impair his efficiency and unfit him for the discharge of the higher functions of his office. He believed there could not be a greater error committed than to throw upon the Vice Chancellor additional business of that description. His

  1051
  noble and learned Friend professed not to transfer the probate jurisdiction to the Court of Chancery; but if the particular Vice Chancellor to whom that business was delegated happened to be absent, as he must sometimes be, having the business of his own Court to attend to, then, under the direction of the Lord Chancellor, the probate business could be sent to be disposed of by the Master of the Rolls or one of the other Vice Chancellors. Surely that was nothing else than giving the business to the Court of Chancery under the directions of the Lord Chancellor? Then, again, appeals either of law or fact were to be made to the Court of Chancery, and thence to that House. It did certainly appear to him (Lord St. Leonards) that this was a Bill to hand over this particular jurisdiction to the Court of Chancery. Then, again, as to the Judge who was to be appointed, what was the course proposed? At present there was a Judge of the Prerogative Court thoroughly competent to decide upon any question that came before him, but who by the Bill would be relieved from much of the business which he now performed to the satisfaction of the public. If that were done, the Judge must be compensated or allowed to retain his present salary. A portion of the burden was wilfully and needlessly thrown on another person, and that person was the Vice Chancellor. This was, in his opinion, one of the most unnecessary changes ever attempted to be made in the law within his recollection. Why, he asked, should the people of England be called on to pay a Judge for doing nothing at a time when he was fully competent to discharge his duties? And why, being so competent, should those duties be transferred to other hands not so competent? Then there was another great difficulty in the Bill of his noble and learned Friend as regarded real estate. For the first time, and without any necessity, his noble and learned Friend proposed to take from every heir-at-law to an estate in this country the right—the established right, maintained at all times in Courts of Equity—of having the validity of a will adverse to his interests as heir-at-law tried by an issue. That was a right vested in every person in England, without distinction, whenever circumstances arose in which he might desire to exercise it, and he (Lord St. Leonards) trusted it might never be taken away. At present every heir-at-law was empowered to say, when his title was called in ques-
  1052
  tion, that he would not give up his right until a jury decided against him. [The LORD CHANCELLOR was understood to dissent from the view of the operation of the Bill.] He (Lord St. Leonards) had read the Bill carefully, and that was the construction which he put upon it. Again, if his noble and learned Friend wished to have a probate on real estate, he (Lord St. Leonards) had no doubt that the Chancellor of the Exchequer, in addition to the succession tax, would soon find it a sufficient reason for raising additional revenue by means of a probate duty in addition to the succession duty, notwithstanding that already real estate bore a greater amount of burden than personal estate. He certainly should have expected that the House would have been informed as to the amount of compensation to be paid to those who were displaced, and the amount of salaries of the new officers appointed under this Bill. How could their Lordships judge of the propriety of the measure unless they knew what the expense of it would be? It appeared that thirty-six Courts were to be established; those who presided over them having no contentious jurisdiction, but were simply to register wills in respect to which there was no dispute. Now, it constantly happened that instruments came before proctors which, though not contested, were, as their experience taught them, involved in some suspicion or of doubtful validity. In such cases—and they arose daily and hourly—they were obliged to submit the wills to the Judge, and take his opinion as to whether they should or should not be admitted to probate. It was precisely such points that were to come before the noncontentious Courts, and were, he supposed, to be decided by those Courts. Now, he wished to know whether the persons at the head of the new courts would be men of learning and experience, competent to deal with these questions, or whether they would be mere clerks or registers; and it was for this reason that he should be glad to hear what their salaries were to be. The professional character of these persons was of the utmost importance, because in the country they would stand in the place both of proctors and Judge, and upon them, therefore, would solely devolve the task to which he had alluded. In his opinion, the more these kinds of courts were multiplied throughout the country, the greater would be the confusion; and, so far as he could see, the expense. He was unwilling to

  1053
  detain their Lordships by any further observations at this stage of the Bill. When it came into Committee, he should propose those alterations which he thought would make the measure more likely to succeed than it was at present. At the same time, though he felt it impossible to agree with his noble and learned Friend as to the particular provisions of this measure, he should be ready in Committee to do everything in his power to render it effective.
  LORD LYNDHURSTsaid, he did not rise to oppose the second reading of this Bill. It had been his intention, however, to make a few observations respecting some of its provisions, but on looking around the House just now he had made a calculation that there was just one-third of a Peer to each bench; and, as he did not care to address empty benches, he should postpone his observations to a future stage of the Bill. He hoped their Lordships would think that he was justified at this moment in not replying to the observations of his noble and learned Friend on the woolsack.
  LORD CAMPBELLsaid, that like his noble and learned Friend, he was indisposed to address empty benches; but, as this would be his last appearance in the House before going circuit, he thought it necessary to say just a few words on the subject of this Bill. There could be no doubt at all as to the necessity of change, and his noble and learned Friend might have saved himself a great deal of labour on this point. All mankind were agreed here, and it was discreditable to the Legislature of this country that now, in the middle of the 19th century, there should exist all these Ecclesiastical Courts with separate jurisdictions, and with this doctrine of bona notabilia, nobody knowing whether a probate was good or bad. That a remedy was required no one disputed; the only question was, as to the manner of proceeding. Now, he had formerly opposed the Bill on this subject brought forward by his noble and learned Friend who had just addressed the House, and he confessed he was not at all satisfied with what his noble and learned Friend on the woolsack now called upon their Lordships to agree to. The sum and substance of his proposal was this—that wherever there was a contested probate, then to all intents and purposes it should become a Chancery suit. He disapproved of his noble and, learned Friend's plan for directing an issue. When a case came before the Vice Chancellor in the new
  1054
  Court of Probate, he must always see if there were ground upon which he ought to direct an issue to be tried. Should such ground exist he would direct an issue, just as in a Chancery suit. The case would then come before a jury, would go back to him, and he would have to say whether he were satisfied or not with the verdict. From his decision there will be an appeal to the Lord Chancellor or the Lords Justices, just as there now was with regard to a Chancery case, and afterwards there might be an appeal to this House. Now, were their Lordships of opinion that such a machinery would effect any advantageous change if substituted for the present mode of proceeding before a very learned Judge in the Prerogative Court, with an appeal to the Judicial Committee of the Privy Council, whose judgment was final in the matter? He could not conceive why questions of sanity of the testator or undue influence exercised over him should go before the Court of Chancery. This Bill would arm death with a new terror, every man who has made a will having the prospect before him of his family being involved in a Chancery suit. His noble Friend on the woolsack, having ceased to be a common law Judge, and having become the head of Equity appeared to belong to that sect of persons who wished to see everything else absorbed by Chancery, who admitted that the Courts of Common Law might decide in a case of assault, or in a case of a cask of beer sold and delivered, but they should not be allowed any jurisdiction respecting the execution of a will or the construction of a deed. Now, he had a very high respect for the Court of Chancery and for those who presided in it, but he had no desire to be absorbed by it. His noble and learned Friend should remember that all persons did not regard the Court of Chancery with the same favourable eye as he did himself, and that, in point of fact, a great deal of jealousy existed in the Lower House of Parliament of this absorbing power of the Court of Chancery. In his opinion, the new court ought to be a Queen's Court of Probate, guided by common law procedure, and presided over by a common law Judge. Having entered his protest against this jurisdiction being added to that of the Court of Chancery, he would, upon the present occasion, confine himself to expressing the hope that the Bill might be referred to a Select Committee, which he hoped would include his noble and learned Friend on the cross

  1055
  bench (Lord Wensleydale), and that it might come from that Committee in a form which would accomplish those objects which all had in view.
  LORD WYNFORDsaid, that although in this Bill the Lord Chancellor had got rid of many objections which had been urged against previous measures, there would be great difficulty in getting over the jealousy with which the House of Commons regarded the constant and silent encroachments of the Court of Chancery. In order to render a Bill of this sort advantageous, it was absolutely necessary that the rock of Chancery should be avoided. He was sure that the other House would require that any new Court of Probate should be a common law court, governed by common law procedure.
  LORD WENSLEYDALEsaid, that although there might be some doubt of the propriety of referring probates to the Vice Chancellors, there were many of the details of the Bill which deserve consideration, especially that which made the appeal to the Court of Chancery. He saw no symptom of the Court of Chancery swamping the business of the common law courts by the operation of the Bill, nor could he see any cause for alarm in its provisions. The machinery in the country would be virtually the same, but in the thirty-six district courts the same persons would be appointed as were now in the register courts.
  THE LORD CHANCELLORthought it right to make one or two observations in reply to his noble and learned Friend (Lord St. Leonards), who had not accurately represented the provisions of the Bill. Unless he (the Lord Chancellor) did not understand his own clauses, heirs-at-law would not be disinherited under this Bill without trial by jury. Objections had been made to the appeal provided by the Bill. Now the reason why the appeal lay to their Lordships instead of to the Judicial Committee of the Privy Council, was because real estate as well as personalty might be involved; and it had always hitherto been the habit on questions of real estate for the appeal to come before their Lordships, and he doubted whether questions relating to freeholds should be transferred to the Privy Council. All these things, however, were matters of detail which could be considered in Committee. Even the great question of who was to be the Judge could be there decided. The reason why he had not thought it right to propose a salaried Judge was that he was convinced that all the business of
  1056
  the Court might be done by the present Judges in Westminster Hall. He could not see the same objections as the noble and learned Lord (Lord Campbell), to the transaction of the business by the Court of Chancery; the Court of Chancery was no way concerned in the matter, except that one of the Judges of the Courts of Chancery was to exercise the functions of Judge of the new court, and as to the swamping of the common law courts, he saw no symptoms to justify the observation. Things had been laid to the account of the working of the Bill which in his wildest dreams he had never thought of.
  Motion agreed to.
  Bill read 2a. accordingly.
  House adjourned till To-morrow.