The Sun.
London, England, 1845-05-27 00:00:00

BILL.

Lord COTTENHA rose, pursuant to notice, to move the
second reading of the Ecclesiastical Courts Consolidation
Bill. If this had been the first time on which
their Lordships had been called upon to set aside
the jurisdiction of Ecclesiastical Courts, and to adopt a
new course of proceeding in regard to them. He should have
felt it his duty to enter at large into the subject,
but that was a subject which had been so often be-
fore their Lordship's House, that it was almost
exhausted. And he should not, therefore feel compelled to
dwell upon it at great length. He thought their Lordships
would be of opinion, taking into consideration the reports which
had been made on the matter in another House, and the
Royal Commissions that had sat upon it, that he would be
exercising a sound discretion in taking up as little of their time
as possible. This was also the more necessary, as the result of
all the reports and commissions on the subject had been a
perfect concurrence in the object which the present Bill sought.
Before, however, he should state the remedies which he
wished to be applied to the state of things with which he found
fault, he wished to relieve the case from the disadvantage
under which it laboured, from the circumstance•of its being in-
troduced by him. In 1836, a Committee• had sat upon the
question, and the Bill at present before their Lordships was
identically the same as had been settled by that Committee.
There might be some details which would require alteration,
but he was anxious to present it in the same state. He would
now proceed to detail the grievances, and the remedies he pro-
posed to apply. In questions of matrimony—a question
whether a man and a woman (who was supposed to be his
wife), were really married, these courts had jurisdiction. In
all cases, too, where there was a question of the validity or in-
validity of marriage, and on the various relations by which the
parties themselves were affected, as well as their children—in
questions of choice, and of a mensa et thorn, these courts had
jurisdiction. Another important matter upon which they were
called upon to decide, was wills. Although they had no au-
thority over freehold property, they had over leases and terms
for years, an.l all questions which arose out of there. So that
although no immediate effect was perceived, freehold property
was materially affected by their jurisdiction. There were other
matters of less importance, but which in their results greatly
concerned the public interest—he meant legacies,
matters of tithe, and church-rates. The latter, particularly,
had occasioned great disputes in the country, all of which were
referred to these Courts. They also extended their jurisdic,
tion to criminal cases—defamation of character, cases of incest-
and quarrels and broils in churchyards. Now there was no
reason why these offences should be punished by an Ecclesias-
tical Court more than any other:But the greatest fault he found
with them was the variety of their jurisdiction and the impos-
sibility almost of knowing, when a grievance had occurred, where
to apply for redress. By the report of the Ecclesiastical Com-
missioners there were 386 of these Courts. Some of them ex-
ercised jurisdiction over all ecclesiastical matters ; some only in
part ; some over probates of wills ; others over the appointment
and regulation of those who were administrators to estates.
There were also 70 of them who were judges over manors, and
in cases where an unfortunate couple were living together, the
validity of whose marriage was called in question, the case came
before them. There was such a subdivision of ecclesiastical
was
bee eligible.
difficulties
oughtt functions that any
The of those who were filling the more subordinate
situationstowhbeiea judge. Now that state of things
existedmultiplicity of
fortheth
ceougrrtesat point
soionnt one of
h e
greatest
not
to
to ascertain where the jurisdiction' lay—what court had the
g. The consequence of this was, that the
power of adjudicating.
Archbishop of Canterbury. The Noble Lord then instanced
s toafn
ot
eh
de
great majority of cases were brought ita the
some of the eases of difficulty which occurorfetdhunder the ex-
isting state of the laws. Now, four-fifths
driven into the Prerogative Court of Canterbury.ese Theeas were
evil in cases of probates of wills was, that even if the
partiesdttt,
great
had obtained probates of the will and had administered
estate, and if afterwards it was found out that 5/. to the
belonged to the estate rme,,vt,..re tie, the whole of the trans..
actions that had previously taken place, were void. That,
hedtwAs a great =ow/mei:lee. In cases also of

trusteeship, where the last party on whom the trust devolved
had found the will proved in a wrong jurisdiction, the whole
proceedings became void. Now this state of things, and other
grievances and ineonveniences, would be remedied if the Bill
befere their Lordships were passed into law. The difficulties
at present were so great, the inconveniences were so severely
felt, that parties were obliged to have recourse exclusively to
the Court of the Archbishop of Canterbury. But they
were not safe even there. The probate under this
jurisdiction was not void, but voidable ; and, until
it was set aside, it was available. (Hear, hear. )
This was the difficulty as the law now stood, but it was one
very easily removed, and he therefore proposed to do away
with it. Their Lordships would not be surprised that
every Commissioner had recommended that they should be
done away with. With regard to wills, there was no proper
place where they should be kept, and still more, there was a
difficulty to ascertain what testamentary disposition an indivi-
dual had left, or who were his personal representatives. As
these difficulties were so much felt, it was no matter of wonder
that the several Committees and Commissioners had recom-
mended the abolition of all these inferior courts. The same
objection held with respect to the Diocesan courts. In 1832,
and again in 1E33, the Commissioners had recommended the
abolition of the Diocesan courts, as there was not
sufficient business to engage them. In that same year a
resolution of a similar kind had passed the
other House of Parliament. In 1836 a similar resolution had
passed that House, and again in 1843 a Bill had been brought
into the House of Commons for a similar purpose. In Salis-
bury it was proved that there had been no suit for three years,
and at Chichester and Norwich there was, at the time the re-
port was made, no business whatever. This matter had been
fully considered in the report of 1836, and he thought that the
recommendation to establish one general Court in London for
the administration of all effects under testamentary documents
was a good one. With respect to the objection that this
Court would do away with all local jurisdiction, he must ob-
serve that in one diocese, from Penzance to Exeter, was 120
miles; and iu Lincoln, he believed that the distance was not,
in some cases, much less. He proposed to adopt precisely
the same plan in proving a will as was now used, only that
the bill should be sent to the central Court in London.
instead of being sent to the diocesan Court. The only dif-
ference he would make was, that the original will should be
kept by the Registrar of the Court fourteen days, for the
inspection of all those who might have a right to inspect it,
and then that a copy of it should be taken, as was now taken,
and then the original should be returned to the executors.
With respect to the Prerogative Court of the Archbishop of
York, all the Committees from 1832 to 1836, save of those that
examined witnesses, were all unanimous in the abolition of
one Court. The whole amounted to this, that there should be
but one Court, and with respect to small property relief might
be devised. There would then be one central Court in
London, in which from the copies being kept there an
opportunity would be given of investigating the tes-
tamentary dispositions of property in all future time.
So far as the jurisdiction over wills or granting probates, it
would be all centred in this single court. There were also
some other things which it was improper to confide to an eccle-
siastical court, as for instance in the payment of legacies under
trust. These legacies in some particular instances could not
be paid without the interference of the Court of Chancery, and
he thought it would be better, therefore, at once to transfer
this business from the ecclesiastical courts to that court. With
respect to church-rates, be proposed to class them with the
poor-rates. There was every machinery in appeal to quarter
sessions, or otherwise, for their recovery. With respect to
tithes, it was proposed to transfer all jurisdiction respecting
them to the Court of Chancery ; and with respect to all penal
proceedings, he proposed to transfer them to the civil tribunals
of the country. Such was an outline of the Bill, and this was
no action of a set of men against another set of men, but was
intended for the general benefit, in :which all parties were
united. As early as 181'2 he found Sir William Scott, together
with the three Chief Justices and four of the most eminent
Judges, concurring in this view. The same feeling
had prevailed in the opinions of all the Committees
up to 1843. How was it that he was thus en-
gaged in the carrying this Bill through the House ?
In 1836 he had brought a Bill to effect these objects into the
House, but great difficulties had occurred at that time in
carrying the Bill into effect. It was said that it would do
away with the Bishops' courts, and therefore destroy the dis
cipline of the clergy. This was unquestionably a difficulty,
but he thought that it was not for him to meet it. He thought
that the Bishops ought to meet it themselves, and provide for
the discipline of their own clergy. Year after year passed by
without the Bishops concurring in the measure intended to
effect these objects. At length they concurred, and a measure
was introduced which, however, did not become law until
August, 1840, so that from the time the report of the
Ecclesiastical Commissioners was made, until the passing
of the measure to which he alluded, all proceedings
were suspended, no plan having been in force for the proper
management of the clergy. In the early part of the session of
1841, he had a serious illness, and when he returned to the
House, he found that matters were in such a state that any Bill
he might have brought in would not be carried. He was, there-
fore, happy to see the matter taken up by the present Govern-
ment, and rejoiced that in 1843 a Bill was brought into the
House of Commons. He would not stop to inquire why that
Bill was not passed. Another attempt was made in 1844,
which met with no better fate. In the present year he had
abstained from bringing forward this measure, because he
thought it was net in his province to interfere, and thought it
better to leave it in the hands of the Government, but the
Government had announced in the other House of Parliament
that they did not intend to bring in any Bill for that purpose
during the present session. Finding, then, this to be the case,
he considered that, when he could best effect this object, he
would do so, and had therefore brought the present Bill before
their Lordships. It had been opposed, on the ground that it
would interfere with the private interests of certain localities.
No doubt, opposition must be expected ; but, if all public men
agreed in the importance of the measure, and if the Houses
of Parliament had expressed their approval of it, and
considered that it would go far to amend the
administration of justice, he should not expect to
hear that the public should be prevented from obtaining a good
measure because it did not suit persons in certain localities in
the country. If Parliament were to be influenced by such mo-
tives as these, and were to discountenance the Bill, it would
not be very creditable. He had no wish to exclude Members
of either House of Parliament from expressing their senti-
ments on the subject ; on the contrary, he considered that
their opinions should be treated with respect ; but if they were
found to arise from private, and not from public interests, he
thought it would be highly derogatory to Parliament not to
pass the measure. He trusted that if their Lordships were of
opinion that the measure was a proper one, they would not
hesitate to give it their sanction, without any apprehension as
to the opposition which it might create out of doors. It was
the opinion of all the eminent men by whom it had been consi-
dered, that it was intended to do great good, and he trusted,
therefore, that their Lordships would allow the measure to be
read a second time.

The Bishop of LINCOLN said he was not about to offer
any opposition to the Noble and Learned Lord, but having
been one of the Ecclesiastical Commissioners to whom he had
referred, he was desirous to make a few observations. He
entirely agreed with the Noble Lord, that one of the principal
questions involved in the Bill was, how the convenience of the
public would be promoted by it, and trusted that its machinery
would be so constructed, that persons requiring a probate
would not be put to greater expense or inconvenience than
under the present system. In one clause of the Bill, which
was very different from the one recommended by the Ecclesi-
astical Commission in 1842, the power of excommunication
was giv,,n to the Court, to be established under the Bill. Did
they mean to invest a lay court with a power like this ?
All matrimonial as well as divorce cases were to be referred
to other courts. Marriage was of divine origin, having reli-
gion for its foundation, and was binding by a civil contract,
so that such powers ought not to be invested in any but a spi-
ritual court.

Lord BROUGHAM thought that the objection, or rather
the doubts, which were entertained by the Right Rev. Prelate
would be found on a little consideration to be without founda-
tion. He would submit it to his own judgment—the best
judgment he could submit it to—his own mind. If they had
a good foundation they would meet with due attention in the
Committee. When he was in office in 1832 he framed a Bill
on this subject, with some alterations from a report which had
been made to him. It was divided into six parts, and was
brought in by Dr. Lushington and Sir Herbert Jenner Fust,
but from the excitement caused by the Reform Bill in that
session nothing was done with respect to it. In 1833 it was
found impossible to pursue the measure, and in 1834,
from the changes which took place in the admi-
nistration of affairs, they were not proceeded with.
With respect to the objection raised by the Right Rev. Prelate
as to the court being invested with the power of excommuni-
cation, he thought no man was better able to discharge his
duties as one of the members of this lay tribunal than Dr.
Lushington. The late Sir W. Scott, afterwards Lord Stowell,
administered such affairs ; but then the Right Rev. Prelate
retouched his hypothesis, and said "of lay origin." Excom-
munication, though it sounded very large, and not very tem-
poral, yet was purely so in its object, and was like outlawry,
compelling a person to put in an appearance. The spiritual
jurisdiction of the ecclesiastical courts was vested in the Bishop
of London and the Archbishop of Canterbury, the first of
whom appointed the Vicar-General, and the other the Dean of
the Arches, and a greater anomaly, or one more offen-
sive to sound principle than this, did not exist. It
had always been so treated; and he knew, from a
communication he had with the two Right Reverend
Prelates in 1833, that they were perfectly willing that this
anomaly should be put an end to, and the power of appointing
the two judges vested in the Crown, but they required that
the Crown should take upon itself the duty of providing the
different judicial officers and judges of the Admiralty and
Arches Courts. He had felt it to be his duty to state these
objections to the Bill, and it only remained for him to hope
that they would be removed when the Bill was committed.
The Earl of WINCHILSEA said marriage was not only a
civil contract, but a thing of Divine ordinance, and so far there.
fore as matrimony was concerned, he did not think it advisable
to disturb the present jurisdiction of the Ecclesiastical Courts.
He objected to that part of the Bill which would abolish local
diocesan courts for the registration of wills, because he thought
it would entail expense on the poor man while it benefited the
rich. A rich man could easily inspect a will in London, but
a poor man could not accomplish this so easily.
Lord CAMPBELL said there could be no doubt the pre-
sent state of the ecclesiastical courts was highly objectionable.
It was allowed that the Church had nothing to do with the
probate of wills or with actions for defamation of character, or
with the revision of tithes, or with brawling in church-
yards, but yet the Church had the power of appoint-
ing the judges who tried these cases. But the Noble Earl
who had just sat down had alluded to matrimony. Now he
perfectly agreed with the Noble Earl that marriage'was some-
thing more than a eivil contract ; but still that was no reason
why matrimonial disputes should not be settled in a civil court.
The only real objection he had heard urged against the Bill
was the necessity that existed for local courts ; but as he did
not think it was possible that the functions of an ecclesiastical
local court could be properly performed, it was, therefore, in-
dispensably necessary that there should be one great central
court.

The LORD CHANCELLOR said he should be acting in-
consistently if he did not support the second reading, because
the Bill agreed in principle with one brought forward by the
Government in 1843.

After a few words from Lord APING ER, which did not
reach the gallery, the Bill was read a second time.
CALICO PRINT WORKS BILL.
This Bill was read a first time, and ordered to be read a
second time on Friday.
RAILWAY CLAUSES CONSOLIDATION (SCOT-
LAND) BILL.

The amended Scotch Railway Clauses Consolidation Bill
was read a second time, and ordered to be committed on
Friday next.
Their Lordships then adjourned till Friday next.

HOUSE OF COMMONS, May 26.
The SPEAKER took the Chair at Four o'clock.
WHITTLE DEAN WATERWORKS.

This Bill was read a third time.
YORK AND SCARBOROUGH RAILWAY DEVIA-

TION BILL.
This Bill was also read a third time.
CORNWALL RAILWAY.
Mr. PENDARVES presented petitions from landowners
and others in the county of Cornwall against the proposed
Cornwall Railway.

-WATERFORD UNION.
Sir W. H. BARRON presented .p.tition from the guardians
of the Waterford Union, praying the House to equaliac the roar
rates in all the different utlions.