The Sun.
London, England, 1855-03-31 00:00:00

with a view of removing the restrictions which were at
present imposed upon the size and weight of newspapers
:Lod periodical pub;icatiee s, which it was prep sod to
retaiu by the bill ci the Cheecell ,r of the Excite-quer.
THE HOP DUTY.
Mr. FREW EN gave notice that after Easter he should
make a motion on the subject of the hop duty.
THE ECCLESIASTICAL COURTS JURISDICTION.
The SOLICITOR-GENERAL said that, in moving for
leave to introduce a bill to abolish the jurisdiction of all
the ecclesiastical and peculiar courts in England and Wales
respecting wills and administrations, and to establish a
distinct ceurt of probate and administration, he could not
help being struck with the many abortive attempts which
had been made to deal with this subject. Twelve succes-
sive Parliaments had been unable to accomplish the object
sought to be attained, and he had seen at least a dozen, if
not fourteen or fifteen, bills which had been introduced to
remedy the acknowledged evils of the present state of the
law on this subject. He was not sanguine enough to ex-
, pest that the measure he was about to introduce was not
open to a great number of the objections that had been
urged against its predecessors ; but he must _appeal to the
house to awaken to the necessity of accepting a measure
which put an end to the existing grievance, although it
might not be exactly the one which every one in his theo-
retical speculatiou imagined to be the best calculated for
the purpose. The necessity for some interference with the
present system had been acknowledged for a long period of
time, and had been admitted by many former commissions
and committees. And he wished to remark that the bill
which he was about to move for leave to introduce compre-
hended the things on which all the several committees and
commissions had agreed as being expedient. He would now
with the permission of the house, briefly refer to the res
commendations of-those committees and commissions. In
1832 a commission, consisting of persons holding a distin-
guished rank in the common law, equity, and ecclesiastical
courts, and also of several of the right reverend prelates,
was appointed to consider the state of the testamentary
jurisdiction: In their report, which was presented in 1833,
they recommended the abolition of the diocesan and pecu-
liar courts, and the concentration of the whole testamen-
tary jurisdiction of the kingdom in the Prerogative Courts
of York and Canterbury. At the same time, they added
their unanimous opinion that it would be still better if it
were possible to unite these courts into one, and to esta-
blish one metropolitan tribunal as the sole seat of the tes-
tamentary jurisdiction. In 1833 the Real Property Com-
missioners made their fourth report, in which they recom-
mended that the diocesans and peculiar jurisdictions should
be abolished, and that one metropolitan court should be
established, but they differed from the Ecclesiastical Courts
Commissioners in this respect, that, while the latter pro-
posed still to retain the testamentary jurisdiction in the
hands of an ecclesiestical court, the former contended that
this was within the legitimate province of the civil courts,
and they accordingly recommended that the testamentary
jurisdiction should he transferred to the Court of Chancery.
A. select committee which was afterwards appointed agreed
with the Ecclesiastical Courts Commissioners in recom-
mending that the testamentary jurisdiction—both ordinary
and contentious—of the whole kingdom, should be trans-
ferred to the Prerogative Court of the province of Canter-
bury ; and the same conclusion was arrived at by a select
committee of the House of Lords. The result, then, of the
recommendations of all these bodies of commissioners, of
great authority and experience united, was this, that there
should be one single tribunal established in the metropolis,
and exercising all the authority, both ordinary and con-
tentious, over the whole country, and that it should be a
civil tribunal ; for that there was nothing either in the
origin, the nature of the jurisdiction, the mode of its exer-
cise, or any of the peculiarities which characterised it,
which recommended its being continued in the hands of an
ecclesiastical tribunal. He had endeavoured to accomplish
this as the first objet of the bill he was about to describe.
Besides the reports of committees and commissioners to
which he had already referred, he must, however, call the
attention of the house to another. The second report of
the Chancery Commissions, which was rendered in 1851,
contained certain recommendations with reference to this
subject, upon which, however, the members of the com-
mittee were not unanimous ; for while some of the com-
missioners recommended the transfer of the jurisdiction to
one central metropolitan court, which was to be newly
constituted for the purpose, to be a distinct court, and to
have but a limited authority, others of the commissioners
recommended that the whole testamentary jurisdiction of
the country should be placed in the hands of the Court of
Chancery. All the commissioners, however, concurred
in disapproving of the present system. The bill that wes
introduced in the last session of Parliament was, to a
certain degree, founded upon the report of this commis-
sion. It proposed to transfer the testamentary jurisdiction
teethe Court of Chancery, in accordance with the reoom-
mendation of some of the Chancery Commissioners, and
with that contained in the report of the Real Property
Commissioners in 1832. To that plan, however, great ob
jectious were raised out of doors, where it was not under-
stood, and where it was supposed that it was proposed to
throw the testamentary business of the country into the
general mass of the business of the Court of Chancery,
and great apprehensions were in consequence expressed
with respect to the delays and confusion which might arise
from such arrangement. He had endeavoured to meet
that difficulty in the present bill, and to render it impos-
sible that nuch a misapprehension of the real object of the
measure should again arise. The first thing he proposed
to do by his bill was to vest the whole of the jurisdiction
in relation to wills and the grant of letters of administra-
tion, that was, all the authority to deal with matters of
testacy and intestacy, in one metropolitan court deriving
its authority from, and exercising its jurisdiction in, the
name of the Crown. It would be a civil court, and it
would be a distinct court; but for purposes he would ex-
plain it would be necessary that this tribunal should, as it
were, be constituted in a court of construction and admin-
istration, should partake of the fullest powers of that court,
and should be a portion of that court where the duties
which were properly incident to a court of probate might
be fully and effectually discharged. He proposed that this
court should be established in the Court of Chancery; but
it would be a distinct court, having a judge, officers, and a
clerk of its own, and would be called " Her Majesty's Tes-
tamentary Court." It would exercise a complete though
not exclusive jurieclici.... .11 to
• the proof of wills and the grant of letters of adminis-
tration. He proposed that, attached to this court,
there should be also in London a large and compre-
hensive Testamentary office. He proposed that this
Court should exercise exclusive testamentary jurisdic-
tion, in place of the 380 or 400 peculiar or diocesan
courts scattered all over the country. The Testamen-
tary office attached to the court would be open to all her
Majesty's subjects who came to prove wills or obtain letters
of administration, without the necessity of their employ.
ing any solicitor, proctor, or agent whatever. With respect
to those persons in the country who were unable or un-
willing to come to London to prove wills, the solicitors
throughout the country who, as commissioners of the
Court 'of Chancery, were authorised to take affidavits,
could be armed with authority to receive wills, to admi-
nister oaths, to supply information, and to require the ne-
cessary proof of circumstances requisite for the proof of
wills. They could then transmit the affidavits and the
depositions taken by them to the Testamentary-office to-
gether with the will. He proposed that these commis-
sioners should be furnished with printed instructions as
to the manner in which they were to perform their duties,
and with forms of depositions, affidavits, and declarations
to be made or signed by the parties applying for probate,
suited to the various circumstances that were likely to
occur. (Hear, hear.) Before the passing of the Wills
Act, which came into operation on the let of January,
1838, probate was a mere process for authenticating a will.
But since that law, the duty of the officers before whom
wills were proved—even what was called the common
form business—had partak m somewhat of a judicial cha-
racter, and had not, as before, been confined to matter of
routine. These duties, no doubt, demanded considerable
experience, attention, and care for their discharge. He,
therefore, thought that it would be utterly impossible,
having regard to the important circumstances that at-
tended the execution of these duties, to expect that they
could be satisfactorily performed by gentlemen acting alone
in the country, unless what was done by them was sub-
jected to the revision, superintendence, and further exa-
mination of appointed officers in the Testamentary-office
in London. He proposed, therefore, that although the
solicitor in the country would be required, as far ache was
able, to discharge these duties, yet he would have to send
up the will and all the documents connected therewith to
the Testamentary-office in London. When received in the
Testamentary-office in London, it would. be the duty of one
of the registrars thereto examine the papers transmitted and
see that the duties of the solicitor or agent in the country
had been properly discharged. If any question arose, the
registrar would consult the principal registrar; if any fur-
ther difficulty was felt, the judge sitting in chambers would
be consulted ; and if all the papers transmitted to London
were found to be correct and regular, the will would be
admitted to probate, and letters of probate would ba sent
down to the solicitor from whom the original will was re-
ceived. But here he proposed to make an important, and
ho hoped the house would think a valuable, alteration.
He proposed that the simple plan of printing wills should
be resorted to—(hear)—and that, instead of sending to the
party in the country the old-fashioned but inconvenient
and useless parchment copy, there should be printed at
least 50 or 60 copies of the will, and that one of those
printed copies sheuld be transmitted to the agent entitled
to receive it. (Hear.) The advantages of that plan had
already been experienced in the Court of Chancery with
regard to the printing of bills, and he thought the advan-
tage of the plan with respect to probate of wills would be
manifest on little consideration. First of all with regard
to the point of expense. Although at first sight is might
appear that considerable additional expense might be in-
curred, he was happy to say that the proposed plan would
be a means of producing economy. He found from the
charges made in the Prerogative Court —and the charges
in the diocesan courts were larger—that the charge for
making office copies of papers or parchments in the Prero-
gative Court was at the rate of 84. per folio of ninety
words ; and that charge was made for every copy which was
required. Sir R. Bethell explained at considerable length,
and with much exactness, the working of the new court
and office. With respect to wills of real estate, there
was at present this anomaly—that whereas the probate of
a will was conclusive as to personal estate, it did not
establish its validity as to real estate. It was time,
he thought, that this anomaly should be put an end
to, and he proposed that any person interested in
rerl estate under a will should have the power of
bringing forward that will in the court to have
it finally and conclusively established; so that the effect
would be competent to deal with all questions relating to
the validity or invalidity of wills, both of real and per-
sonal estate. Ile then proceeded to explain his scheme for
the compensation of parties for the loss of offices under the
bill, observing that its effect would be to disarm opposi-
tion to the proposed reform. The proctors, as a compen-
sation for the _ loss of their present monopoly, would have
secured to them for life au annuity equal to one-half of
the income derived from their professional practice. The
total amount of charge for all these compensations would
be 144,1001. To meetthis lie proposed to add to the fee fund
of the Testamentary Court, which would be 74,7461.,
charge of 3 per cent, upon the stamp, in lieu of the pr"oca-
tors' fee, which would yield 83,915/ , making an of 158,6611., nearly 15 would be required.
With respect to the advocates of Doctors'-commons, they
s,
would be admitted to act as barristers, and he had
doubt that they would, upon the whole, be r
t • noga by the exercise of their talents in a new
arena. e
Inga 1 cacemrs-
elusion, the Solicitor-General intimated that the Court of
Admiralty was under consideration, and that a bill upon
the subject of marriage and l
divorce was prepared, and
would shortly be introduced into that or the helother house
of Parliament. The subject !of
'thumb. die •p understood) to say, would likewise be considc.ei•eidn.; ho
was
Mr. NAPIER, without opposing the introduction of the
bill, adverted to the opinion expressed by the Lord Chan-
cellor last year, that the jurisdiction of the Ecclesiastical
Courts should be dealt with, not piecemeal, but as a whole;
and he contended that it would be wiser
and better, in
st,m(.l of a testamentary bill, to carry out a substantial -re-
form in every part of these courts,
Mr. MALINS said, although the evils of our t gee-
mentary jurisdiction alit een,'he thought,
one
ly oesag-
gerated, all agreed that should be vested in one Court,