The Sun.
London, England, 1853-03-02 00:00:00

ECCLESIASTICAL COURTS.

Mr. COLLIER rose to move for a select committee for
the purpose of inquiring whether the Ecclesiastical Courts
might not be advantageously abolished, their jurisdiction
over all matters not purely ecclesiastical transferred to
other existing tribunals, and new courts established for
the purpose of dealing speedily and effectually with mat-
ters purely ecclesiastical ; and whether the jurisdiction of
the Court of Admiralty might not be advantageously trans-
ferred to local tribunals. He had not given this notice
until the intention of the Government, with reference to
the ecclesiastical courts, had been announced on the highest
authority. Had their announcement been satisfactory he
should not have interfered, but he was sorry to say it was
not so, as Government proposed to wait for the report of
the commission, and then only to interfere with the eccle-
siastical jurisdiction of the courts; whereas, in his opinion,
the better way would be to see whether they could not be
abolished altogether. (Hear, hear.) With respect to the
commission, he had this to say, that it was to a great ex-
tent composed of civilians practising in these courts, and
it was not unnatural to suppose that they would be inclined
to favour the courts in which they themselves practised.
(Hear.) The distinction between law and equity was bad
enough, but here, what with their civilian, their registrars,
their doctors, proctors, and surrogates, these ecclesiastical
courts were the greatest abuse that had lasted down
to modern times. They had over and over again
been reported against and condemned. In 1830 a
commission containing judges of the courts themselves,
after examining 30 or 40 witnesses, reported against them.
but recommended an inadequate remedy—the abolition of
all the courts except those of York and Canterbury. A
committee of the House of Lords fully considered the sub-
ject in 1845, and reported for the abolition of the testamen-
tary jurisdiction, and'a bill passed that house substituting
a central tribunal, but it was thrown out in the Commons.
Subsequently the Irish courts were subjected to an hives.
tigation, and they were equally condemned. The genera]
concurrence of opinion was for the abolition of the courts,
and his belief was that nothing short of that would meet
the exigency. First, as to their jurisdiction over wills,
and their administration. This jurisdiction was originally
usurped. Our Saxon ancestors, before the conquest, were
in the habit of settling these questions in the old county
court, and it was not until the Norman conquest that the
clergy got hold of the jurisdiction. The reason given might
perhaps amuse the house. It was said that ecclesiastics,
being in at the death of the testator, would know his in-
tentions better than any one else, and would know what
was good for his soul, which they generally ascertained
to be the appropriation of his property to pious uses. (A
laugh.) They took care that none went to payment of
his debts, and it was not until the time of Edward 111.
that they were compelled to depute administration to his
relatives. The number of these courts at present in exist-
ence was 372. (Hear, hear.) They were archbishops,
archdeacons, vicars, and manor courts, with several others,
and so numerous were they that it was almost impossible
to get at the limits of their jurisdiction. This led to the
greatest expense and uncertainty on taking out letters of
administration and in questions relating to the disposal of
the vastly increasing personal property of the country.
With respect to the expense, he found the salary of Sir H.
J. Fust to be for 1849, 3,9041. 13s. Bd., and that of Mr.
Moore, the registrar, 8,2651.175. 4d. (Loud cries of " Hear,
hear.") For this enormous salary the registrar never did a
single duty, although having for thirty years received the
sum of 300,0001. (Hear, hear.) He certainly could not
understand how the hon. member for Montrose had rested
for the last twenty-five years with such an abuse in exis-
tence. (Cheers and laughter.) (Mr. Hume—l attacked it
twenty-five years ago.) Yes, but the hon. member had let
it rest ever since. There were three deputy-registrars
with salaries 2,3221.125., andthree clerks 8321. 125., which
dwindled in 1852 to 8.51.175. 2d. Now these clerks did all
the business, while Mr. Moore got all the emolument. It
might he expected that the functionaries of these courts
would at least provide secure receptacles for the valuable
documents of which they insisted upon having the charge,
but the fact was that they were kept in an unprotected
room, next to a wheelrights, and there was constant dan-
ger that they might be all suddenly consumed. The com-
missioners had decided that a new building should be pro-
vided at the expense of the registrar, but their recommen-
dation had not been attended to. Again, it was almost
impossible to find a will. To a rich man it was difficult,
but to a poor man generally impossible. The suits in
these courts were most expensive. They could not deal
with - all the questions that arose relative to the ad-
ministration of personal property, and some of their de-
crees must be enforced by a suit at common law. In con-
sequence of these and other defects a will was often con-
tested in these courts at once ; in illustration of which he
would state a case that had occurred about ten years since.
A gentleman died in Devonshire about ten years ago,
leaving an ample provision for his wife—the will was con-
tested in the Ecclesiastical Court, on the ground that the
testator was insane when he made it. After a contest of
several years, that court decided that the man was insane
at thelirne of making the will, but the estate had then
got into the Court of Chancery, and they directed an issue
to be tried by a jury as to the sanity, who, six years after
the same question had been decided by the Ecclesiastical
Court, pronounced in conformity with that decision. But
in the meanwhile the estate had been all swallowed up in
costs incurred in the three courts, and the estate not being
sufficient, the poor widow was incarcerated in a prison.
(Hear, hear.) This showed the working of the system.
Now, with regard to the remedy he would suggest. In the
first place, they had the County Courts, which, on the
whole, had exercised a very satisfactory jurisdiction, and
he saw no reason why they should not entrust to those
courts that portion, at least, of the jurisdiction of the
Ecclesiastical Courts. He had drawn up a bill, in which
he proposed to give to the County Courts jurisdiction in all
cases of probate in the ordinary form ; and he suggested
that the probate should be granted in the county court of
the place where the testator had died, and that one
probate should do for the whole kingdom. (Hear, hear,
hear.) He proposed further to give to these courts
jurisdiction in all cases of whatever amount, with the
consent of the parties, and in cases of small amount, say
3001., without such consent. In cases of a large amount,
when the parties did not consent to avail themselves of the
county courts, jurisdiction should be given to some higher
court—he thought One of the courts of common law would
be preferable, as that would be the fittest for deciding on
questions of fact—as whether the party was insane—
whether there was any fraud—whether the will was pro-
perly executed, and others of a similar nature. The courts
of common law had also this advantage, that they exercised
a local jurisdiction at the circuits, which the Chancery
courts did not. Again, he believed the Court of Chancery
had already its hands full, and if more business were put
upon them an additional number of judges would be needed;
whereas there was, he understood, already a sufficient
amount of judicial force in the common law courts to dis-
pose of the business which he proposed to transfer to them.
It would be desirable for the judge of the county court to
have a complete jurisdiction in the matters he proposed to
refer to them, both in regard to law, and equity, where the
amount was under the limit, because if in such cases the
necessity to go into the Court of Chancery remained, the
estate would be swallowed up. At present, for the want
of some such ready jurisdiction probate was often not
taken out in small cases at all. One of the great de-
siderata in reference to testamentary law was a proper
and efficient system of registration of wills. He
proposed that there should he a local registrar
appointed by the judge of the County Court, to
whom the will should be taken in the first instance, and
that after probate it should be transmitted to the Registrar-
General in London, who shall keep all wills in his custody
in fire-proof places, and prepare an index for ready refer-
enee. There was already, he believed, the nucleus of such
a system of local registration in the registration above 10/.
Then with regard to divorces. At present the ecclesiasti-
cal courts had power to grant divorces e mensa et there,
but not e vineulo matrintonio. When the legislature recog-
nised the right of dissenters to be married out of the church,