The Sun.
London, England, 1857-02-11 00:00:00

IMPERIAL PARLIAMENT.

HOUSE OF LORDS.—(YESTERDAY.)
The LORD CE{ANCELLOR took his seat on the wool.3ack
at five o'clock.
Lord LUCAN gave notice that on Thursday next he
should put a question to her 111jesty's Government as
to whether they were about to take any steps to inquire
into the expenses to which Scotch and Irish peers were
subjected in proving their title to vote for representative
peers.

Lord KINNAIRD brought in two bills upon the
subject of education in Scotland. The first related to
parochial schools, and was similar to the one introduced
last year. The other one was to promote the instruction
of young persons employed at night in factories.
The bills were severally read a first time.
AGRICULTURAL STATISTICS.
Lord WYNFORD asked whether it was the intention
of her Majesty's Government to introduce a bill this
session similar to the one of last year with regard to
agricultural statistics. - There was much anxiety abroad
to know the intentions of the Government on the
subject.
Lord STANLEY of ALDERLEY said, having con-
sulted some persons interested in the subject during the
recess, and finding that such a measure would not meet
with their concurrence, he was unwilling to introduce
such a measure, however much he might personally
wish it. It was not, therefore, his intention during the
present session to introduce a similar measure. At the
same time if the agricultural interest evince any
desire for the enactment of such a law, he should
have no objection to introduce a measure or to support
any proposition for the purpose.
Lord FAVERSHAM said it was entirely owing to
the machinery of the bill of last year that it became so
unpopular.
After a conversation between Lord STANLEY and Lord
DUNGANNON, the subject dropped.
THE INCOME TAX.
Lord BROUGHAM presented a petition, numerously
signed, from Aylesbury, praying for arepeal of the income
tax. The petitioners complained of the injustice and
inequality of the impost, and they prayed that the tax
might be utterly abolished as regarded all incomes under
1501.; that the additional 9d. should be repealed, and
that the first 1501. of a person's income should be exempt
from taxation.
ECCLESIASTICAL COURTS.
The LORD CHANCELLOR then rose to call their
lordships' attention to the Ecclesiastical Courts. Had
their lordships possessed less knowledge on this subject,
they might, perhaps, have supposed that the tribunals to
which the notice on the paper referred were occupied
entirely with the consideration of spiritual affairs. Had
that been the case, he should have risen in the presence
of the right rev, bench before him with considerable hesi-
tation, for the subject would then have been one present-
ing to a layman addressing that assemply considerable, if
not overwhelming, difficulties. But, in truth, notwith-
standing the name of these courts, ecclesiastical matters,
properly so called, formed but a very small portion of
their jurisdiction. By custom, no doubt, many things over
which they had control had come to be considered as hav-
ing something ecclesiastical, which were in fact perfectly
temporal in their nature. Early history seemed to Meow
that originally the ecclesiastical and temporal jurisdiction
were united in onecourt; but even prior to the time of legal
memory—the reign of Richard I.—there was evidence
that a separation existed. It was from the history of the
gradual rise of this separate jurisdiction that the way in
which matters not strictly ecclesiastical came under the
jurisdiction of these courts would be shown. In the first
place, he would refer their lordships to the testamentary
jurisdiction of the ecclesiastical courts, a jurisdiction ob-
viously involving nothing of a strictly spiritual or eccle-
siastical nature. It had been a doubt amongst the
learned whether persons had in the early period of our
history a power of disposing of personal property ; but I
it appeared pretty clear that a right existed to dispose of
part of such property. Then the question arose, to
whom did the undisposed part go ? the answer to which
was that the crown took that portion in order to distri-
bute it in "pious uses." The right to take this :indis-
posed of personalty was from time to time granted out
by the crown to subjects, chiefly to the bishops, but
sometimes to the lords of manors, who chanced to
be powerful nobles. Hence the right to receive undis-
posed of personalty became distributed amongst very
many persons, and great confusion and many evils seemed
to have been the result. Accordingly, in the reign of E'-
ward 1., it was enacted that those persons who had the
right to receive undisposed of personalty should be bound
to pay the debts of the deceased. So matters remained
until the reign of Edward 111., when an act passed that,
with respect to property disposed of by the bishop, the
bishop should grant administration to " the nearest
friend of the deceased." Tuis led to the appointment of
an administrator, who, by the terms of the statute, was to
have the same rights and status as were possessed by an
executor when the deceased had appointed one. By the
statutes of Charles 11., the manner in which the adminis-
trator was to distribute the undisposed of personalty was
laid down. Of course the undisposed of personalty failing
under the consideration of the bishop, the question of the
validity of wills, which 2a ro Canto diminished that midis-
posed of personalty, also fell under the same jurisdiction,
and hence arose the right of granting probate of wills.
He had thus sketched out the history of the testamen-
tary jurisdiction, and he thought that history showed suffi-
ciently that there was nothing essentially ecclesiastical in
it. Another subject of ecclesiastical jurisdiction which
was not essentially ecclesiastic in its nature, was the right
of determining upon questions of marriage and divorce.
This branch of jurisdiction arose in a very different man-
ner from the one of which he bad already spoken. It
arose in those times before the Reformation, when mar-
-1 riage being considered a sacrament of the church was a
subject which could only be fully considered by ecclesias-
tics. There remained beyond these two classes the class
which embraced matters which might be considered strictly
ecclesiastical, such as thejurisdiction over the clergy upon
questions of discipline, the right to grant facilities for
pews, and so forth. These might no doubt be subdivided,
but they were sufficiently indicated by embracing them in
one class. Having said this much as to the history and
present position of the subject, he would briefly point out
some of the resulting evils. In consequence of the way in
which ecclesiastical jurisdiction in testamentary matters
had been granted out, there were at present between 350
and 400 courts having right to grant probate. That in itself
was a sufficient evil to require some remedy. From
returns which had been made, it did not, however, appear
that within the last five years probates had been granted
by more than 98 of these courts, although many others
had granted probate within a slightly longer period, and
still kept up the machinery necessary for doing so, By
law these courts had each an exclusive right to grant
probate, or letters of administration within a certain
district ; but if the person dying possessed property in
more than one district, then probate or administration
must be obtained from the prerogative jurisdiction of
the archbishop. Many evils were consequent upon this
state of the law. Probate might be granted in a district
court, and it afterwards turn out that there was property
in another district ; in such a case the probate would be
void. It also very often happened that the places where
wills were kept, especially in the small districts where
little was done, were far from being secure, and hence
those documents, which were of great value to those inte-
rested, were rendered extremely liable to loss or spolia-
tion. There was also another evil arising from the course
of procedure in the ecclesiastical courts. That pro •
cedure was based upon the civil law, which admitted
only of written depositions for the taking of evidence.
Now, inasmuch as the validity of wills depended upon
the state of mind of the testator at the time be executed
them, when a contest arose upon that point the evidence,
as their lordships would suppose, was naturally of a very
complicated and conflicting character. It was in such a
case most necessary to see the demeanour of the wit-
nesses ; but this advantage was lost by the form of pro-
cedure. Another evil which was sometimes brought
forward, but which he did not consider of such great
practical importance, was this—that these courts bad
no jurisdiction to grant probate of real estate. In
the bill which had been introduced three years ago
to their lordships he had proposed to extend the juris-
diction of courts of probate to real estate. That bill
was referred to a select committee, and in that com-
mittee the proposition which he had' made was over-
ruled by a large majority. At ,the time ho had con-
sidered that by leaving out tbat provision the usefulness
of the bill was materially diminished, but further re-
flection on this subject had convinced him that he was in
error in that opinion. There was a great and essential
difference between real and personal property. The lat-
ter might consist of goods in one place, stock in another,
furniture in a third, and debts all over the kingdom; and
hence it was necessary that upon the death of a person
some one should be appointed to stand in his place, to
dispose, collect, and arrange these matters. But the
former was fixed, certain, and easily ascertainable, and
passed, generally speaking, on death—supposing there.
was no will—not to several persons claiming as next of
kin, but to one claiming as heir. Hence probate would
be a most tedious, useless, and expensive process to ap-
ply to realty. As the law stood there was this anomaly,
that the ecclesiastical courts deciding on the validity of
a will in the case of personal estate, and there being no
probate of real estate, if a question arose, for example,
whether a testator were of sound and disposing mind,
there might be a disposition of the two kinds of property.
What he proposed, therefore, was not that in every case
of real estate it should be necessary to obtain probate;
but that in cases in which the validity of the will was
contested, the heir-at-law as well as the next of kin
should be cited, and that the proceedings which took
place should determine the question with regard both to
realty and personalty.
Lord BROUGHAM—Is the heir-at-law to be bound
without an issue ?
The LORD CHANCELLOR—No. Looking to the
practical evils of which men justly complained, and with-
out any disparagement to the able judges who presided
in the ecclesiastical courts, he proposed, in accordance
with one of the recommendations of the commission
which had inquired into the subject, that the court of pro-
bate should be a Queen's court, and not an ecclesiastical
one. In other words be proposed to constitute one court
of probate. The duties of such a court must practically be
almost entirely of a ministerial character. What the public
were interested in was, that the facits,,hould beascertained
as cheaply and as expeditiously as possible after the death
of the deceased, whether he left a will or not ; and all
that was necessary for that purpose was to have a good
system of registration. A s regarded the proctors, he was
convinced that the business would be done better and
cheaper through their instrumentality than it could be
through any other. The proctors were persons who in
consequence of the smallness of their number, there being
in all only 120, of whom only about 80 practised, were
known to all the officers of the court, and there was the
greatest obtainable security against any fraud or impro-
priety in their conduct. Instead, therefore, of proposing
to abolish them, what he proposed was to continue them,
giving to the Lord Chancellor and the judge of the court
power to add to their number, 8) much with reglircl to

the wills proved in London. Theoretically it might seem
desirable that all wills should be proved there ; but he
felt convinced that that would not be agreeable to the
Ipublic. He proposed, therefore, to retain all, or nearly
all, the present diocesan registries, and to increase their
1 number so as to make about 80 different registries for.
the whole kingdom. The necessity for an increase arose
from the fact that some of the dioceses were so large
and straggling. Many persons had thought that it
would be better to let all uncontested wills be proved be-
fore registrars of the county courts ; but he could not
concur in that opinion, believing as he did that such
persons were not likely to have the requisite amount of
knowledge. He proposed to limit the proving
of wills
in the district registries to cases in which the property
was sworn under 1,5001. There would be one important
difference between the wills proved under the bill and
wills proved in the diocesan courts at present ; the pro-
bate would be valid all over the kingdom, and if the bill
passed, he should propose a similar arrangement for Ire-
land.
Lord CAMPBELL—What about Scotland ?
The LORD CHANCELLOR said there was more
difficulty in the case of Scotland, but he was in commu-
nication with the Lord Advocate, with the view of ex-
tending this provision to that country, and he did not
despair of seeing it extended to the whole kingdom.
What he had said thus far applied to the non-contentious
jurisdiction, affecting 29,000 out of 30,000 wills in the
year, and the effect of his proposal was that, though
all wills might be proved in London, in cases in which
the property was under 1,5001., probate might be taken
out in the district registries. It had been urged as an
objection to diocesan probate having jurisdiction out of
the diocese, that it would expo-e the Bank of England
to great risk in regard to the transfer of stock ; but he
was happy to state that he had been in communication
with the solicitor to the Bank on the subject, and that
that objection had been removed. With regard to the
contentious jurisdiction, as the law stood the contest
arose wherever the will was proved ; but, practically,
there being neither judge nor barristers in the country,
the contest was removed by letters of request to London.
What he proposed was, to provide that all contested
cases, with one exception, which he would mention,
should be carried to the Court of Probate in London.
The proceedings in the ecclesiastical courts had been fre-
quently objected to on the ground that they were tedious,
cumbrous and expensive. Under the measure which he
proposed the judge of the curt would really have next
to nothing to do. The registrars would, in ordinary
cases, determine whether a will was in due form or not,
appealing to the judge for assistance whenever they re-
quired it, and when a question of fact arose, whether,
for example, the testator were a man of sound mind, or
whether the will was duly executed, he proposed that
such questions should be dealt with exactly in the same
manner as an issue was directed by the Court of Chan-
cery to be tried in a court of law. As regarded the court
in which such matters were to be decided, he thought it
would be a most extravagant proceeding to compel wit-
nesses to come from Carlisle, Exeter, or Norwich, to give
evidence before a Court of Probate, where the question
would not be so well tried as before a judge on circuit;
and, in his opinion, therefore, mere questions of fact
should be decided as such questions were when they had
come before the Court of Chancery.- This brought him to a
part of his measure which he knew would not be approved
by some of their lordships for whose opinions he had very
great deference. The present judge of the Prerogative
Court—an able and learned friend of his—Sir John Dod-
son, had a great deal of his time occupied in deciding
dry questious of fact, which might easily be decided by a
jury. This being the case he (the Lord Chancellor) could
not honestly propose to their lordships the creation of a
new judge ; what he proposed was to constitute an exist-
ing judge the judge of the new Court of Probate, and, in
order to prevent unnecessary expense, to trausfer all the
officers who hold situations in the Prerogative Court to
the new court, with corresponding names and ernelu.
merits. He was persuaded that the whole of the business
could be discharged efficiently without the appointment
of a new judge. Whom did he propose to fill that office ?
He knew very well that was a mater on which there
was likely to be a difference of opinion ; but what he pro-
posed was, that one of the vice-chancellors should be' aps
pointed to discharge the duties of the new office. He
granted that the vice-chancellors were not so familiar
with the rules of viva voce evidence as other judges, but
they would not often be called upon to apply them.
Lord BROUGHAM and Lord LYNDHURST intimated their
dissent from this portion of the measure.
The LORD CHANCELLOR observed that motions
for new trials, when heard before equity judges, had ge-
nerally been disposed of in a most satisfactory manner.
Having thought the matter over, he was of opinion that
that part of the scheme was sound ; but he would not
persevere with it if it were deemed otherwise. With
regard to the practitioners in the new court, he proposed
that the monopoly of the proctors should be abolished,
and that proctorsand counsel generally should be allowed
to practise indiscriminately. He further proposed that
the rate which prevented a proctor from sharing with a
solicitor the fees arising out of the proving of a will
should no longer be in force, His noble and learned
friend (Lord Brougham) bad attributed to him some
feeling against the county courts. In reality be enter-
tained no such feeling, and he thought the manner in
which those courts performed their duties was such as
to deserve confidence, and to create a desire to extend
their jurisdiction. He now proposed that in disputed
will cases, in which the property was sworn under
2001., it should be competent to those courts to decide
the matter, and that special rules should be devised to
Iregulate their procedure. Now, such were the altera-
tions which he proposed to make with reference to the
testamentary jurisdiction of the ecclesiastical courts.
(
He should now proceed to the second branch of the
subject, which was not less important—namely, that
which related to what were called matrimonial causes.
Their lordships were aware that a royal commission
was appointed some years ago to inquire into the whole
subject of divorce. That commission Caine to the con-
clusion that the present state, he would not say of the
law, but of the practice on the subject, was highly dis-
creditable. There could by law be co divorce a menea
ei ihoro. But although no such thing was known to
the law, it had been the universal practice of that
house, if the fact of adultery on the part of the
wife had been established by an action at law, and
had been followed by a divorce a mensa et thoro in
the ecclesiastical lcourt, to grant a private act of Par-
liament, a privilegium, to the husband, which made
him a single man, and enabled him to marry again.
A similar indulgence had been granted to the wife
under very aggravated circumstances, but there were only
four instances of teat kind on record. The commission
considered, what he thought every person of good sense
must admit, that that was a state of things which was
extremely discreditable. One of two courses was open to
their lordships—they might either say that no such bill
should pass, which a noble friend of his (Lord Redesdale)
contended was the proper coarse' or they might constitute,
as the commissioners suggested, a new tribunal to take
cognisance of-such cases, on the same principles that had
regulated the procedure of their lordships in such cases.
In the last session of Parliament he proposed a bill for
this latter purpose, which passed tlu-ir lordships' house,
and went to the House of Commons too late to be passed
into a law. After the introduction of that bill, his
noble and learned friend on his left (Lord Lyndhurst)
drew the attention of the house to the great griev-
ances that pressed npon married women. Inde-
pendently of the que •tion of *divorce, if a married
woman were treated cruelly by her husband, she
might ob ain a separation a mensa et thoro.
Such a separati n, however, did not give her any of the
privileges o f a single woman, and when the bill was re-
ferred to a select committee a proposal was made to re-
medy this anomalous and not very creditable state of the
law. He proposed to adopt the clause then suggested
with some little addition. In the first place, if a woman
was deserted by her husband for a certain period, say
three years, without lawful excuse, she would be entitled
to a decree of divorce from the new court, which would
render her thenceforth mistress of her own property, and
of whatever she might acquire by her exertions, intel
lectual or otherwise, so that her husband could not claim
it if he returned. It was difficult to define what period
of time ought to give this right, but he suggested three
years. Their lordships, however, might think it reason-
able to make some provisions for the chance of the
parties desiring to come together again if the husband
returned. He proposed in that case to empower the
wife, if she had earned any property in the interval,
to make a settlement of it, as if it were before
marriage, and render such a settlement after mar-
riage valid against third persons. He further
proposed, even in case there was no desertion, to enable
parties to effect the same object by deed. Their lordships
were aware that deed§ of separation had become common
of late years. The principal objection to them was that
no person could tell exactly what the legal consequences
of such a deed were, Lord Eldon always held it would
be no answer to a suit for the restitution of conjugal
rights by either party, as the wife bad no power to enter
into such a contract. Since his time, however, the vali-
dity of these deeds had been established ; but the object
was attained in a somewhat cumbrous manner. The wife
appointed a trustee, who contracted for her, and the hus-
band contracted with the trustee. He proposed.
to
enable the parties to contract between themselves,d
ng
and
d
in such case to give the wife the same rights
aeover
deeehrer
event of her having obtained property as in the
into further details on
Thee bill
firs
ton r
read-
ing. of divorce. He would not enter
table, and ask their lordships
the subject at that moment,b
third •t to which
t teoroans only lay
d which formed the subject of the third
be had referred, an
ing. He had still to deal with thepoint
' l
bill —viz., the jurisdiction of these courts in matters of an
ecclesiastical nature. In the course of last session he had
introduced a bill on this subject, which, however, he had
not had the good fortune to carry, as it met with a great
deal of opposition, not only on the part of the right rev.
bench, but also of those on whose opinion he was accus-
tomed to rely. He had applied himself again to the sub-
ject, and a few weeks ago he received from a right rev,
prelate a sketch of a bill which had received the sanction
of the right rev, bench, and which he had adopted as the
framework of the measure he now intended to propose,
towa
on
ndrt
aehle.d
iwhichpartTvi
The
ee hd
presentc f i hn otop hoped dwe wouldouclergymendri3different
eorbf
withe epn
proceedings
pechp)
eai
erocsdhs vie
nes
g_d
this .8 ofmi
nh
ei
these
a ehhi
sae
ed
andt o
matters
dd ee ae l.
was artificial,cumbrous, and expensive, to a degree that was
hardly credible. If a clergyman was alleged to have been
guilty of any offence, either moral or religious, the bishop
issued a commission to five persons, of whom one was to
his chancellor, another a barrister, another a dignitary,
and the two others clergymen. These commissions sat
and examined witnesses at a great waste of time and
enormous expense. They then reported to the bishop ;
but the case, instead of being concluded, was then only
commencing, as their report was only in the nature of
the finding of' a grand jury--a constat for further p
hags. He proposed, as a remedy far these evils,.n
bishop should be empowered to file articles in his
of voluntary
regis-
try, either of his motion, or at the suit . ,
and ~ , _
?MOW. The party was then to be oxtoa, it or
that
sr the

denied the charge a jury of five, part laymen and part
clergymen, was to be summoned to inquire into the ques-
tions of fact. Their finding was to be conclusive as to
the facts, but the party might still say that, even ad-
-1
mitting the facts, there was no tight to punish him. In:such case be would have the same right of appeal as at
present—first to the Court cf Arches, then to the Privy.
Council. The same course of proceeding would be fol-
lowed in the case of doctrinal offences, except that ha
thought it was for the public interest not to allow a mere
voluntary promoter to inetitnte proceedings in doc-
trinal questions. (Hear.) Before the bishop took any
steps, it should be certified by a certain number of emi- • nent persons that there was reasonable ground for pro-
ceeding. This last bill was not yet in a fit state to lay
on the table, n.nd he had only mentioned its provisions in
order to useet the objection that he ought not to inter-
fere with one branch of these jurisdictions unless; he in-
tended to deal with all. He hoped that all these mea-
sures, would meet with the approbation of their lordships,
and that of the other house of Parliament ; but if any of
them should be rejected, he would not admit it was a ne-
cessary consequence that because they threw over one
bill they should not pass the others. In conclusion, he
had only to thank their lordships for the attention with
which they had heard him.
Lord LYNDHURST wished to say a few words on the
avne rdy
lextensive
ischeme of
He legislationwa a
apprehensive
proposed
that by hti b
theen ol es
pro-
posed plan of testamentary jurisdiction would not be sa-
tisfactory, and he would state some of the objections
likely to be urged against it ;,but in doing so it was not
to be assumed that he was stating his own opinion, as
be intended to reserve it for a future stage of the bills.
Last session the Attorney-General had introduced a bill
on this subject, which met with strong objection ; but
the strongest opposition was on the ground that it pro-
posed to transfer the jurisdiction of the Court of Probate
to the Court of Chancery. In the present bill the noble
and learned lord did not in terms propose to transfer the
jurisdiction to the Court of Chancery, but he proposed
that the judge of the new court should be an equity
judge, for he was to be a Vice-Chancellor, and should
hold the office only so long as he continued to be a Vice-
Chancellor. The orders to regulate the course of pro-
ceedings were to be drawn up by an equity judge assisted
by the Lord Chancellor. Again, the mode of enforcing
its decrees were copied from that of the Court of
Chancery ; and the mode of taking was to be the
same as that of the equity courts, which some of
the judges of those courts had pronounced to be
most unsatisfactory. At the present the appeal from
the Court of Probate was to an eminently popular tribu-
nal, the Privy Council, but this bill proposed to make
the appeal first to the appellate tribunal of the Court of
Chancery, and thence to their lordships' honed. Another
objection whioh might be made to the proposed court
was that, whenever a question arose which required to
be decided by a jury, the court could not entertain, it, but
should call in the aid of another court ; so that wherever
a question was to be decided, for example, in Middlesex,
an issue should be directed to another court, a record
made up, and the case sent down for trial; such a course
must produce numerous inconveniences and inconsisten-
cies. An issue might be tried before a judge eminently
conversant with common law and the deal practice of it,
yet if any question arose as to his decision a new trial
might be granted by a judge almost totally unacquainted
with the rules of evidence and the practice at common
law: At present an heir-at-law could not be deprived of
his property without the verdict of a jury, which he had
a right to insist on; but the proposed bill would deprive
him of that privilege, and place him at the mercy of a
court of equity. He feared that when the bill came to be
discussed, it would not be considered quite so satisfactory
as the noble and learned lord seemed to anticipate. The
noble lord had spoken of district courts. He (Lord Lynd-
hurst) did not well understand whether they were new
courts or old ones to be eontinued, but the deputy re-
gistrars were to perform a large amount of ministerial
functions, and there was no reason whatever why those
functions should not be entrusted to the officers of the
county courts, which would give the additional advan-
tage that the officers would be aided in discharge of their
duties by the intelligence and supervision of this judge.
The question of compensation involved in this transfer
was a very important one, and he thought some data
should have been given to enable the public to ascertain
what amount of compensation might be claimed for the
aholitioa of these 311 courts, and so enable them to judge
whether they might not be asked to purchase this trans-
fer too dearly. He submitted these points to their lord-
ships' consideration, and it would be for the noble and
learned lord to consider whether his b'ills were likely to
mimeo! in their present shape. As to the bill relating to
church discipline, he wished to saw a few words on a
point of great importance. Attention had lately been very
much drawn to the statute of the 16th Elizabeth. Under
that statute the slightest deviation from any of the Arti-
cles of the Chuech subjected a clergyman to prosecution, although such deviation might have been sanctioned by
the highest authority, by reverend divines, or right rev.
prelates;
and the only judgment which could be pro-
nr)uneed was a sentence of deprivation. That was a very
hard state of things, and what is worse, that any of those
offences might also be dealt with under the general eccle-
siastical law, in which case the judgment would not be
deprivation, but ceusure or admonition, or other punish-
ment adapted to the offence. lie thought it would be
desirable to provide that such offences should always be
dealt with under the general ecclesiastical law, and
not under the provisions of the statute. There was only
one difficulty in the way, which, however, he did not
think would prove insurmountable; it was that the sta-
tute of Elizabeth had been incorporated in the Act of
Union with Scotland. It had, however, been introduced
then merely for the protection of the English, and if
they wished to modify the provisions, as they had done
others affecting themselves, he did not think the Scotch
bad any right to interfere, It only remained for him to
direct their attention to the very important subject of
divorce; but he would only say a few words, as the bill
bad been before thew during the last session, and con-
fine himself to two alterations-- one of admission, the
Other of addition. The omission was that of the clause
introduced last cession in committee by a right rev, pre-
late, to the effect that parties convicted of adultery
should not be alto wed to intermarry, the object of which
was to prevent any previous understanding or conspi-
racy. The clause was not in the present bill, but he
thought that as it passed the house last session it ought
to have been retained. He regretted the noble and
learned lord did not propose to do away with that scan-
dalous and disgraceful proceeding, the action for crimi-
nal conversation. It could no longer be defended on the
ground that it wasia necessary foundation for a bill in
that house, as a divorce bill would be no longer obtain-
able. It was a disgrace to the manhood of the nation
that a man should attempt to satisfy himself for loss of
honour and degradation by a pecuniary recompence, and
be would bring the matter before them at a future stage.
The addition to the bill was the proposal that a married
couple should be enabled to separate by consent without
the intervention of any legal tribunal, but by a mere deed to be registered in some office' winch would give
the wife a right to all future acquired property. He was
old enough to remember how deeds of separation had
step by step crept into use, but they had always been re-
pudiated by the courts, and this was the first attempt to
give theme legislative sanction. Ile feared that a system
of separation would have 4 tendency to produce illegal
cohabitation, and be trusted their lordships would give
it full consideration before they adopted it as a law. He
did not mean to say that something of the kind, under
proper restrictions and regulations, would not be advis-
able ; but a question of so grave a character—so
deeply affecting all domestic relations, required the
must ample consideration. He had made these observa-
tions for the purpose of enabling their lordships to form
an opinion of the questions which would be raised during
the progress of these bills.
The Bishop of EXETER considered that the very im-
portant question in the statute of Elizabeth to which the
noble and learned lord referred had better be made the
subject of a substantive enactment than be included in
the bill now proposed to be introduced.
Lord CAMPBELL bad heard with astonishment and
dismay the proposal that a married couple should be en-
abled any morning, either on account of some temporary

disagr,emeut, or in pursuance of some previous ;nb,un--
derstanding, to get what was a divorce for all practical
purposes except marrying again. From the report of
Mr. Maqueen, they were aware that there was a pro-
ceeding in France called "separation des corps," which
produced the same effect; I. u; that would only be ob-
tained atter a long investigation. Under the sanction of
the solemn judgment of the tribunal, it could not be ob-
Tahned,
common t o all pralcatwi
_cal courts
always looked with suspicion
ob-
tained at the pleasure of the parties, but good reason
should be shown, and the judge was bound to attempt
to reconcile them. In no Christian country were parties
pur-
poses,alloweddissolve
to separate
the
marriage. themselves,
in that respect
on deeds of
separation, but these would be as nothing
with those judicial proceedings Which compared
do with the marriage. The would altogether
tic peace and the security of ma • foundations of domes-
would be shaken by this propel' irried life in England
of his noble and learned friend to ' and he would implore
He should offer no opposition t reconsider this subject.
bill, which he hoped, when to
the first reading of the
pass into a law. He hoe properly
amended, would
would be able to surmount is noble and learned friend
his way, but he felt powerfully
the difficulties which lay in
noble and learned friendPwerfally the observatons of his
had sincere respect for the
(Lord Lyndhurst). He
not think that it was th e Court of Chancery, but did
in the matter of will e tribunal to which jurisdiction
s should be delegated. He thought
it would be much
moreii l agreeablei a the
parties that the app e
to one of the courts of common law—the
mattero
Court'sof Queen's
Bench or the Exchequer Court, for instance—than to a
single V. ice-Chancellor. These objections would be
raised against the bill, and be trusted his noble friend
would reconsider the subject, and avoid them by amend-
ing the measure in these respeits. (Hear, hear.)
Lord BROUGHAM said that his first difficulty with
regard to the measure of his noble and learned friend
was that it proposed to create a new court of equity to
exercise a common law jurisdiction. If Vila yurisdic-
ti in was to be entrusted to a Vice-Chancellor he did
not know what occasion there was for taking it out
of the bands of the present juirge,
of Doctor's Com-
mons. A Vice-Chancellor being as little of a common
the judges who
law judge as presided in Doctors' Com-
mons, he wanted to know why Sir J. Dodson could not
exercise the same jurisdiction which this-measure pur-
ported to vest in the new Vice-Chancellor. Of course
it was not to be supposed from this that he WES opposed
to the abolition of the ecclesiastical courts. With regard
to the Church Discipline Bill he agreed with the right
rev, prelate that it would be better to make the repeal of
the 13th of Elizabeth a separate measure. The Judicial
Committee of the Privy Council bad been recently occu-
pied for two days with tee hearing of a cause relating to
shurch discipline, and he believed it would occupy one or
two days more. And when that cause was concluded he
feared that the other cause (the case of Archdeacon Deni-
son), so much to be lamented by ail friends of the Esta-
blished Church—of its peace and harmony—would LIM..