The Sun.
London, England, 1855-04-27 00:00:00

tub-vying a plea of testamentary jurisdiction which had
- already endured for six centuries, and which, daring that
• great space of time, had wcrked well for the community,
and had adapted itself 4o the various emergencies and
contingencies of the age. It was a matter of great advan-
tage to legal practitioners that their chambers should be
situate within a convenient distance of the courts in which
they practised ; and in this respect the present system pre-
vailing in Doctors' Commons had much to recommend it.
The'Court of Probate was in the centre of Doctors' Corn-
-mons and the judge; the advocates, and the proctors were
placed within five minutes of one another, and thus the
public business was despatched with extraordinary expe-
dition. But this advantage would be destroyed if the
present bill were adopted, for it would be found impossible
to transfer the wills, and all tke machinery of testamentary
businet*, to the immediate vicinity of the Court of C baann
cery. It might be possible in theory, but it wouldbe d
wholly unmanageable in practice, and thus great delay
and inconvenience would be occasioned to the public.i
.With regard tocompensation, he denied that the praci; -
tioners of Doctors' Commons would be fairly treatedn old
'being, pensioned off on half their present income.a A
practitioner, who was in the enjoymen of verymla.Trge
Income, and who naturally wished for
. repose, lou
yiew such a proposal with favour, but it would be most
unfair to deprive of their profession, and to award
only half their customary revenues to men who
were not as yet in very large practice, and whose whole in-
come was not larger than was required for their
t
ro%o vnsu p
port and that of their families. He was pa
main-
tain that the system, as it now existed in Doctors' Com-
mons, though susceptible of certain amendments, was, on
,
*the whole, a good and effective one ; but it was an old say-
ing that you might as well kill a dog as give him a bad
time. People turned up their eyes with horror when they
'heard of Doctors Commons, and exclaimed, "Oh, what a
sink of iniquity !" but if Doctors' Commons were to be
doomed to destruction on account of such unfavourable pre-
judices, what, he should like to know, was to become of
the Court of Chancery? The fact was that the system at
present prevailing in Doctors' Commons was, in the main,
a sound and excel' ent one, aed it was greatly to be wished
'that the Government, instead of abolishing and destroying
it, had taken measures to strengthen it in its weak points,
and to amend its defects. The commissioners recommended
.that probate granted from one court should henceforth be
, good for the whole kingdom, and in that proposition
all the profession concurred. It was the circum-
stance of such an arrangement not being in force row,
Mr. Moore's pension, and some other grievances, that
bad brought so much discredit upon the ecclesiastical
sourts, but he believed the more the courts were themselves
examined into, the more the public would be convinced
their efficiency and usefulness. The object which he (Mr.
Melina) had in view *as to induce his hon. and learned
friend to withdraw that portion of the bill which proposed,
to refer the testamentary jurisdiction to the Court of Chau-
. cery. He knew it to be the universal feeling of the judges
of the land, the commissioners themselves, and the whole
legal profession, that the business of these courts could not
scarcely be better conducted than it was at present. If
neither the public nor the profession desired the 'change,
and if there was a general conviction that the change could
not be made without serious detriment to the public, be
wanted to know what justification his hon. and learned
friend had for pevisting in a bill which was so diametri-
cally opposed to the report of the commission, of which
he was a member? Had the noble lord at the head of
the Government examined into the matter ? for upon.
him rested a very heavy responsibility with regard to the
measure. Was it a measure simply of the Lord Chancellor
and the Solicitor-General, or had it been thoroughly
examined into and sanctioned by the Cabinet? Is:
the absence of any grounds for passing the bill, except
the gratification of a morbid appetite for change or aboli-
tion, he appealed to the justice and sense of the hon. and
learned member not to press the second reading of the bill,
but to accede to the moderate request which he had made.
Let these courts be turned into a temporal instead of an
ecclesiastical tribunal—let the appointment of the judge
rest with the Crown, and let them preserve that distin-
guished body of practitioners, whom, ho believed, could
not be got rid of without exposing the public to fraud and
evils of no ordinary magnitude. The hon. and learned
member concluded by moving that the bill be read a se-
cond time that day six months.
Mr- COLLIER thought that the measure would effect a
great improvement in the existing state of things. He sup-
norte I it, not because it reformed, but because it abolished
the ecclesiastical courts. Those courts had been condemned
from time immemorial. They had received their death-
blow every session, as long as the recollection of members
in that house extended back-. Commissions and commit-
tees had repeatedly sat upon them and decided against
them, and bill after bill Lad .been introduced, provieiog
for their decent interment; but still they remained
the Gattons and Old Serums of our jurisprudence, muck-
ing the civilisation of the age, and presenting a standing
reproach to the administration of justice. He trusted,
however, the time had at length come when they were
about to be altogether extinguished. He considered that
the jurisdiction of these courts might be satisfactorily per,
formed by the ordinary existing tribunals of the country,
without any additional judge, expense, or inconvenience.
There was nothing in a will which rendered it necessary to
be deals with by a separate tribunal. Why not give all
the common form of jurisdiction to the county courts? It
seemed to him desirable, as far as small matters were con-
cerned, that the county courts should have full and,com-
plete jurisdiction, because, under the present system, jus-
tice was strictly denied to the poor. Then what was to he
done with the jurisdiction when the property in dispute
was large? Let all disputes relating to wills be settled
by courts of common law. (Hear, hear.) These courts
at present decided whether a man was sane or insane at
the disposition of his real property. These were the
views he entertained. If it were said that the court
which granted probate should decide questions of admiui-
atration, he agreed with that proposition. It was most
desirable that lay members of the house should deal with
this subject as well as lawyers. By giving the courts
of common law the power to grant administration of per-
sonal property, and to leave the powers of administration
to the Court of Chancery, as well as directions to trustees,
they would do all that the country desired. Ho was pre-
pared to support the construction of the court suggested
by the hon. and learned gentleman (the Solicitor-General),
which he thought was as good a one as could be devised.
He would propose in committee clauses engrafting the
jurisdiction of the county courts on the clauses of the bill
where the estate was small, also that there should be trial
by jury, and he would take the sense of the house on the
question of compensations which were proposed to the ex-
tent of 140,0001. a year, though the vast majority of A-
cme; took their posts subject to their abolition. In simpli-
fying conveyances they deprived the conveyancers of large
profits, and there was no good reason why one set of men
should not be remunerated as well as the other. He would
give a general support to the measure, and vote for its
second reading.
Sir F. THESIGER said the principle they were dis-
puting was whether they would abolish the testamentary
jurisdiction of the ecclesiastical courts, and transfer them
to the Court of Chanceay.. The speech of the honour-
able and learned gentleman the member for Plymouth
was most inconsistent, for whilst he was opposed to almost
every provision of the bill, he yet would give its second
reading his support. The clamour raised against theecele-
siastical courts was, in his (Sir F. Thesiger's) opinion quite
unfounded, though of long standing. Upon the question of
testamentary jurisdiction in the ecclesiastical courts norea-
sonable and well-founded objection had ever been raised.
They had entrusted the consideration of this question to
commissioners, who had attentively considered the whole
case, and who, with one solitary exception, were in favour
of the continuance of the jurisdiction of the ecclesiastical
courts. These reports of the commissioners were from
1832 down to the present time, and their tendency was
to the effect he had stated. There was no ground what-
ever for the statement of the hon. and learned gentleman
the member for Plymouth that those courts were " uni-
versally condemned." He therefore contended that that
statement was entirely inaccurate. Besides, it should
be recollected that that the commissioners who Lad
been appointed were most able men,, who had
sought the beat evidence, and examined and weighed it
with the greatest care and deliberation. The Solicitor-
General was a member of one of those commissions ;
he was not often present at their sittings, but he yet
must know that the body of which be was a mem-
ber recommended the continuance of those courts. 'ire
objected to the transfer of the jurisdiction of those courts
to the Court of Chancery, especially as regarded testamen-
tary jurisdiction. Now, he asked the house what was the
use of appointing commissioners if, without any reason
they were at liberty to depart from their calmly and well: considered • judgment, and take a course exactly opposite
to their recommendation ? This bill
wt was contrary, not only
to the spirit, but even to the veryle ter of the report of
the commissioners. The hon
and learned gentleman the
Member for Plymouth said those courts had been generally
disliked. Well, if they were, they have a very Strong I principle of vitality in them, fortlTeyushad long stood their
ground against such undeserving and unretasee last
clamour.
In 1641 the humorists of the day made h
testament of Doctors' Commons. The hon.aestndwp and
gentleman then read a humorous account of the will,
which the Ecclesiastical Court, finding its days drawing to a
close, and being much shaken by a tit of " Westminster
ague," in order to avoid all further controversy, 4 1:
9.11(..0 e.e
peacefully, bequeathed its judges to Parliament, there to be
Cherished according to their merits ; its decrees to the Court
of Chancery, and all its manuscripts to the butchers, bak-ere,
and grocers of the metropolis. The hon. and learned gen-
tleman then went on to contend that the jurisdiction wbieli
the Ecclesiastical Court enjoyed was, and had been, t is-
creetly exercised; that it could not be tran4erred, as tiro
hon. and learned gentleman the Solicitor-General proposed
to transfer it, without great and manifest danger and in-
convenience to the public. He begged the house to re-
member that there were 18,000 wills annually proved in
the preeeut courts, which related to no less than 50,000,000/. d
of property. The stamp duty was paid without efalcatien
by the proctors. He also begged the house to remember
that there might be great- peril in transferring the
business of proctors to attorneys, for then the same man
who made the will might be admitted to prove it. Proc.
w...,'_re were now what attorneys could not bo under the new
-"'""n—efficers of the court who had a special duty to
'"-al, and who _would take care to point out imper-
peelitnesre any difficulty or suspicion arose before
and granted. He considered this a most rasa
li►ever bermeo experinient. What complaint bad they
seep tea- the judges of the Ecclesiastical Courts
a body of
~,!ter brought before them ? They bed
deeply ssariZltctising before them most learned ami
greatest importaneeZt profession- a circumstance of the
were so connected with his moment, because the Admiral tv
were frequently called the ecclesiastical-courts that they
greatest national inepestnara to decide qrtestions of ill
reason could induce the Sikrelii:e.att,
_re wanted to kno h
General to corn 70 wv
"1
ttis.dvantage could be derr'lt':..til
with such a measure?
public—what were the
from it—was it called for la
grounds that induced him to d'e
of all these qualified to judge eeeilZt!rvera the esperierce
Thesiger) knew what was the safe co -n"jel!
necessary, to build upon the old flora"- Was, if it was
They had a court long established, lonnedtartii°". (hear
recommended itself to the country. The ail'
alv,,lti,eh L i
member for Wallingford (Mr. Melina) had told --h—,:eaermt
that there was no desire to continue the local jete„.-„-,e'llt
They were all agreed to that, and also that the -
ecc maw
eal courts—at least in name--ehonld not be continue
said that the Prerogative Court and the Archers easq
should be blended in one court, to be called the Quee:es
Court of Probate. They, were there to decide upon tlr
principle of the bill. Would the house abandon what brit
been so long established ? Would they sweep away t :
•ocleeiastical courts which, as regarded their testamente
Jurisdiction, were freo from reproach ? Would the how e
introduce, for thejurisdiction sake of experiment and trial, a v
emu° v
b ond s
all who has had jurisdiction which had een c
disregard the ad experience in the court? Would they
o f whrse.tPothrt of the royal commissioners, and, ! a
sent measure? They bad werned them,
plioit manner, trqde.cji support the pr
mmissioners had, in the moat ee--
stituted, had done irem that the court, as at present con-
trary to their reports
hon. and learned friend
boy' Then would the house, cup-
ot the principle in the bill of his
One ef the Minority, and ut: Solicitor-General, who was
erlyabolish these courts which