The Sun.
London, England, 1844-03-22 00:00:00

injurious to real property. There was hardly an estate
but what was affected by settlements ; many of these
were for terms of years, and, in order to make out a
title to an estate, it was necessary that all these terms
should be got in. The conveyancer, in making out a
title might find that one of those persons had died in a
peculiar jurisdiction, and it would be necesssary to to •
out administration ; but he could not venture to take
out administration in the peculiar, or in the diocesan
court, because, if it could be proved that the person
had died worth 51. in any other jurisdiction, the
administration would be void, and the title bad. That
was one strong argument for the abolition of the diocesan
courts. The report of this Commission recommended
the abolition of the jurisdiction of ecclesiastical courts
in matters which they specified—in matters of legacy
and burials in church-yards, in matters of defamation,
insult, adultery, and church-rates. But his Noble and
Learned Friend proposed to extend the power of these
courts in matters of legacy. Now, why should they do
so? Was there any complaint of the courts of equity?
The ecclesiastical courts could not exercise the juris-
diction conferred on them in legacies, unless they had
full control over the estate of the testator. Such a
power would be perfectly inconsistent with the consitu-
tion of the ecclesiastical courts. It should be recol-
lected that the judges of the ecclesiastical courts were
appointed by individuals, and not by the authority of
the Crown or of Parliament—judges appointed by
individuals in a court where the greatest interests
might be at stake !—(Hear, hear.) The public
ought, in such cases, to have protection in the
appointment of judges. They ought at least to gain that
guarantee which the responsibility of Government con-
fers. It was provided that, in case the diocesan courts
were to be continued, barristers of a certain standing
were to be appointed to preside over them. That cer-
tainly was an improvement. Then these judges were
to hold office during good behaviour ; but if this good
behaviour did not exist, and if it was found expedient to
remove one of these judges for misconduct, still the
Noble and Learned Lord proposed that they were only to
be removed in the same manner as the judges in the
superior courts. How was that ? By an address from
both Houses of Parliament to the Crown. But those judges
were appointed by individuals—by the Right Rev. Bishops ;
then hew absurd was it to propose that both Houses of

Parliament should address- the Sovereign to remove a
functionary appointed by an irresponsible individual, for
he presumed the Noble and Learned Lord could not
mean that the Houses of Parliament should address the
Bishop.—(Hear, hear.) If the Crown were to remove
judges, the Crown shouli appoint them. These matters
had been made subjects of inquiry by the Commission in
1832, and also by the Commission of real property,
which consisted of individuals connected with the law,
and who were eminently qualified to discharge its du-
ties. His Noble and Learned Friend near him (Lord
Campbell), was at the head of it, and it comprised
many eminent first-rate conveyancers. They all
agreed in recommending that there should be
only one court for probates and administrations.
A Select Committee of the House of Commons was ap-
pointed in 1833 to inquire into the Admiralty Courts at
the head of which was Sir James Graham, Sir R. Peel,
Sir Frederick Pollock, Dr. Nichol', Dr. Lushington, Mr.
Abercrombie, and the present Chancellor of the Ex-
chequer were Members of it. The Committee naturally
extended its inquiries into the jurisdiction of other
courts, and after a very patient investigation they re-
commended the abolition of all the diocesan courts, and
the appointment of probate and administration courts.
They recommended the abolition of those minor courts
in which strictly legal matters were dealt with, and they
recommended that all ecclesiastical jurisdiction should
be concentrated in the Court of Canterbury, and that
thejudge of this court should be appointed by the
Crown.: In 1836 a Select Committee of that House was
appointed, and in the same year he (Lord Cottenham)
brought in a Bill for carrying into effect the recommen-
dations of the Ecclesiastical Commission. The Select
Committee was appointed, he believed, at the instance
of his Noble and Learned Friend (the Lord Chancellor),
and the Bill was referred to them for consideration.
This Committee consisted of the present Lord Chancel-
lor, the then Lord Chancellor, Lord Langdale, Lord
Denman, Lord Abinger, Lord Brougham, Lord Plun-
ket, the Archbishop of Canterbury, the Bishop of
London, the Earl of Devon, the Bishops of Lincoln, St.
Asaph, and Bangor. The Committee, after a protracted
and pains-taking investigation, made a Report, from
which he would read some extracts. In cases of small
property, it was said to be an advantage that there should
be local courts, so that parties in the country might not
be put to trouble and expense. The Committee, after
referring to the Reports of the Committees above-men-
tioned, came to this conclusion—that they were entirely
of opinion that all courts in England and Wales ex-
ercising ecclesiastical jurisdiction over probates of wills
and administration should be abolished, and that one
court sitting in London should be the only court for
probates of wills and granting letters of administration.
They were of opinion, however (and it would be per-
fectly consistent with the plan), that arrangements
should be made so as to secure to parties residing at a
distance from the metropolis all the conveniences they
now enjoyed from the diocesan courts. The Report of
the Ecclesiastical Commission stated that four-fifths of the
contentious business was transacted in Doctors' Commons,
as well as a much greater portion of what was termed
the common form business—that signified when a per-
sonal affidavit was made, the probate was granted
without any further formality or expense, and this was
what occurred in 99 cases out of 100. Throughout the
country there would be surrogates, officers of the ecclesi-
astical court, authorised to administer the oath, who
would transmit the will to the court in London, through
the intervention of the proctors, and those letters of ad-
ministration would be sent down to the individual
making the application. But it was urged that persons
in the country were often desirous of seeing the
will of the testator, for the purpose of seeing
the handwriting, &c., and that they would
wish to have an opportunity of consulting the will
from time to time. Now, to meet both these reasonable
demands, it was recommended that the original will
should be left in the hands of one of those surrogates
nearest to the place of the legatee, or applicant, for
fourteen days after the death of the testator, and that a
correct copy of the will itself should entirely remain
with this officer, so that parties might have a full oppor-
tunity of inspecting it. It was further recommended in
the Report of their Lordships' Committee that there
should be a registry of all wills kept in London. A
difficulty arose in the abolition of the diocesan courts,
for some of the Right Reverend Bishops urged, with
great force, that they were necessary for the
proper discipline of the clergy. To meet this incon-
venience he (Lord Cottenham) brought in a Bill which
passed through this, but was lost in the other House of
Parliament. In 1843 her Majesty's Ministers brought
in a Bill providing for the discipline of the clergy. It
was endorsed by Dr. Nicholl, Sir James Graham, and the
Attorney-General. This Bill recommended the aboli-
tion of the diocesan courts. How very strange and in-
consistent did it seem, then, to see his Noble and Learned
Friend on that night panegyrising those very courts
which his colleagues had thought it right to
destroy ?—(Hear, hear.) That Bill recommended that the
judges of the courts should be appointed by the Crown.
He disapproved of any measure in one session of Parlia-
ment which would have a tendency to contradict that of
a former one, upon which the decided conviction of the
House was strongly declared. It was a measure which
required to be weighed well and duly-deliberated upon
before they pronounced any opinion upon it. He thought
that it was fraught with much mischief, and therefore
he hoped that the Noble Lord by whom it was intro-
duced would consent to its withdrawal, or so alter and
modify it as to deprive it of the many objectionable
features by which it was marked. In conclusion he
should move that the Bill be read that day six months.
The Bishop of LONDON said that as one of the Com-
missioners who originally signed the Report for Eccle-
siastical Reform, he felt called on to say a few words, in
order to defend himself from the charge of inconsistency
which might be preferred against him in now supporting
the present reading of the Bill. He did not understand
his Noble and Learned Friend on the Woolsack to say
that the present measure was the most perfect thatcould
be devised, but that it was the best which could be de-
vised so as to ensure its passing.—(Hear.) If a measure
of ecclesiastical reform was passed against the feelings
of a large portion of the public, it might counterbalance
the good which otherwise might be expected from it.
There were certain improvements suggested by eminent
men on the subject, with which, if he did not altogether
agree, he thought he ought to submit his judgment to
them on them. He thought there were some ecclesias-
tical courts which ought to be abolished altogether,
but there were others which, if reformed, he
thought might be rendered useful.—(Hear.) He
thought the Noble and Learned Lord who had spo-
ken last had not fairly stated the case, when he said that
the Bill created 34 new courts. The fact was that of
384 courts, it abolished 350, leaving 34 which were to be
remodelled and improved. With regard to the report,
he must say that his own experience of diocesan courts
was such as not to impress him favourably with regard
to them ; but there were many reasons to account for
their falling into the state from
rescue them by the present
.Bill. There was. evidence
which they proposed to
which justified the Commissioners in. reporting that the.
meoluthrotsu.t mHuecbheldieetvredi-
finuennettins of
transferredthos et
oc otehret s
this to be true with regard to the testamentary courts,
provincialmighte
but he did not profess tohavemastered the whole ques-
tion of testamentaryjurisdiction. He was anxious to
provide for a more efficient administration of the ecclesi-
astical law, but he was not now prepared to go so far as
to abolish diocesan courts, for he believed that
some of the functions now performed by those courts
could not be so well performed by the provincial warts.
petitions were presented against the transfer, represent-
ing the feelings of a larger body of the clergy and laity,
feelings stronger than he believed to exist when he
signed the report. The question - was whether those
courts might not reform the abuses which existed in
them, retaining all that was valuable.—(Hear, hear.)
With regard to the judges he was aware of the abuses
which existed in this respect, but in many
cases there wero judges who performed their
functions with satisfaction to all parties. He was pre-
pared to say that clergymen ought not to preside in
courts of justice. This was one of the provisions of the
Bill. Even if the entire of the recommendations of the
Commissioners were right, and not carried into effect in
the Bill now before the House, he did not think he was
liable to the charge of inconsistency in supporting it so
far as it went. He was very glad that the courts of
peculiar and exempts, one of the worst parts of the
ecclesiastical jurisdiction, were to be abolished. He
supported the measure, because from all he had heard,
and all the consideration he was able to give the sub-
ject, it was the measure which was most likely to pass.
Lord BROUGHAM said that though he should sup-
port the second reading of the Bill, he could have
wished it had gone a great deal further.—(Hear.)
The subject was first brought forward in a measure
which he, when in office, proposed to Parliament, and
which he gave up in 1835. ILis Noble and Learned