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

THE- INCOME TAX.

Lord BROUGHAM presented a petition, numerou-ly
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
150/. ; that the additional 9cl. should be repealed, and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 a tdressing that assemply considerable, if
not overwhelming, difficulies. 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 show
that originally the ecclesiastical and temporal jurisdiction
were united in one court; 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 iu the early period of our
history a power of disposing of personal property ; but
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 undis-
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 confu-ion 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." This lad 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 IL, 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 pro Canto diminished that undis-
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 be bad already spoken. It
arose in those times before the Reformation, when mar-
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 werd 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 he 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 filch 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
forwards 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 bad 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 bad made was over-
ruled by a large majority. At the time he had con-
sidered that by leaving out that 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 he 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 facts should be ascertained
as cheaply and as expeditiouslyas 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 imprc-
prie
• ty in their conduct. Instead, therefore, of proposing
to abolish them, what be proposed was to continue them,
giving to the Lord Chancellor and the judge of the court
power to add to their number. S) much with regard to

the willa proved in London. Theoretically it might geolll4
desirable that all wills should be proved there ; but he
felt convinced that that would not be agreeable to the
public. He proposed, therefore, to retain all, or nearly
all, the present diocesan registries, and to increase their
nurn!;er 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 be 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 wh'ch the piopetty
wa4 sworn under 1,600/. There would be one imp rant
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 it the bill
passt,d, he should propese a similar arrangement for Ire-
land.

Lora CAII NIELL —What abort. Sdo,l tut] ?

Trio LORD CHANCE LL! tR ietid there was mere
difficulty in the cast of Scot! eel, hut he -vas in commu-
nication :kith the Lord A. ivoctte, with the vie -v of
in-
tending tbis provision to that country, and he did not
despair of seeing it extended to the wleds kiegefein.
What he had said thus far applied to the non•contentious
jurisdiction, affecting 29,000 out of 30,000 sells in the
year, and the effect of his prrposal 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 expose 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 bad 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 court 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 mite 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 la et. 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 questions of fact, which might easily be decided by a
jury. This being the case be (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 expen,e, to transfer all the
officers who hell situations in the Prerogative Court to
the new court, with corresponding names and emt-lu-
ments. He was pemaded that the whole of the business
could be discharged efficiently without the appointment
of a new judge. Whom did be propose to fill that office
He knew very well that was a matter on which there
was likely to be a difference of opinion ; but what he pro- j
posed was, that one of the vie--chancellors should be at -
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 he abolished,
and that proctors and counsel generally should be allowed
to practise indiscriminately. He further proposed that
the rate which prever.ted 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) had attributed to him some
feeling against the county courts. In reality he 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
';heir jurisdiction. He now proposed that in disputed
will cases, in which the property was sworn under
208/., it should be competent to those courts to decide
the matter, and that special rules should be devised to
regulate 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 came 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 no divorce a mensa
et there. 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 ntensa et there in
the ecclesiastical icourr, 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 twat hind 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 course, or they might constitute,
as the commissioners suggested, a new tribunal to take
cognisance of-such case-, on the same principles that had
regulated the procedure of their 1 irdships in such cases.
In the last session of Parliament he proposed a bill for
this latter purpose, which passed their 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 question of divoree, if a married
woman were treated cruelly by her husband, she
might ob ain a separation a mensa et thoro.
Such a separatt n, however, did not give her any of the
privilegesre-
ferred f
o aselect committee
of 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
ith 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 cold 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 deeds of separation had become common
of late years. The principal objection to them was that
no person could tell exectly 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 had no poser 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-
bandan contracted with the trustee. He proposed to get_
rid of this cumbrous and anomalous proceeding,
and
d
enable the parties to contract between themselves,
in such case to give the wife the same rights over
aecree d her
property as in the event of her having obtained
assent to the first t only lay the bill on the
of divorce. He would not enter into further details on
the subject at that moment, bu
table, and ask their lordships to t
the third point to which
°
read-
ing. He bad still to deal wit
jurisdiction of these courts in matters of an
he had referred, and which formed the subject of the third
bill—viz., the
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. Ile 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 bad received the sanction
of the right rev. bench, and which he had aeoieddtlrTglhoartphheloesateeeeadptodambrtffdooaaaeptstr
iddotwt
ceesoheaaerce::
aussoedr, unuasi rffelhdewdeorhib:teeexphn
prt nwoeeocuhi
proceedings
approvedecisvdhsieien,ntstthgoisnsoanaidfnb.d
toafwwrrnnaeai dormst
doc-
trinal.
re.dwthi
Tovi f
icari
hchdr:
eteandooffei
presenthunet ohltmeoperegtmrdywcoetmwuo
hardly credible. If a clergyman was alleged to have been
guilty of any offence, either moral or religious, the bishop
hisfssucehdaancc
eolmlocur,isatonthteorfivae bpaerrrsiosntesr,, oafnowthhte)
rmaodniegnwiatas
ryto,
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 ef.
the finding oe
of a grand jury—a nstat ter further proceed
ings. He proposed, as a remedy far these evils, that the
bishop should be empowered to file articles in bil
nt a ry
and regis-
try, either of his motion, or at the suit of avo he
promoter. The party was then to be cited,