18 MARCH 1843, Page 11



OF the numerous defects of our institutions, none is more glaring than that the Church should have any jurisdiction in secular affairs : and it would be difficult to say why there should be two kinds of law in the same country, so conflicting that an act may be legal according to the one and illegal according to the other. Upon no sound principle has the hierarchy or the civil law any more concern with the testamentary disposition of a man's per- sonal property in England, than with its acquirement, or with any other manner of divesting himself of it, or with his lands ; and it is still more unseemly that the Ecclesiastical Courts should have exclusive cognizance of the most revolting matters, in- volving details of such gross indecency as to be unfit for conversa- tion. In these days, the Church has quite as much as it can accomplish in performing the sacred duties for which it exists ; it would probably acquire vigour if its secular functions were re- moved. The world is disposed to invest the priesthood with so holy a character as to think that it becomes polluted by unnecessary and intrusive contact with mundane relations; and least of all does it like to acknowledge episcopal or clerical authority in causes which ought from their very nature to belong to lay tribunals.

Yet the power which in ages of the grossest ignorance and bigotry the Church acquired from the Popes * in civil affairs, and among others over wills and testaments, has survived all the changes of the Reformation. But in the nineteenth century, when the abuses of the system became so intolerable that a great alteration was demanded, it is extraordinary that the impropriety and incon- sistency of allowing the Ecclesiastical Courts to have jurisdiction in affairs of personal property were not made the foundation of a reform. Such an idea was not, however, entertained by Whigs or Tories ; and although a great improvement is to take place, ecclesiastical authority over matters essentially and absolutely tem- poral is augmentedt and confirmed, instead of being diminished or abolished. If, indeed, the jurisdiction of the Church over wills and testaments, or its custody of records, had been justified by the man- ner in which the duties have been performed, there might have been some show of reason for the measure. But it is notorious that do- cuments in charge of the clergy are often in a most discredit- able state, and that unnecessary impediments exist to the use of them. It is proverbial that a clerical custos is generally a more formidable hydra than even the keepers of public records under the old system ; for the clergy are less liberal, and are amenable to no lay authority. College-libraries are frequently in a wretched condi- tion, and access to them by the public is all but impossible ; Parish- registers have often been very carelessly kept ; while of the tran- scripts ordered by the 52d Geo. III. c. 146 to be sent to Diocesan- registries, the Commissioners say, " These copies are not trans- mitted with regularity, nor are they when received so arranged as to admit of easy access." The wills in many Diocesan and other provincial registries are ill-arranged and badly-indexed ; while in some places there is no index whatever. Indeed, we know of an instance in which a party making a search, accidentally brought to light a series of wills extending over a period of ninety years, which were altogether unknown to the keeper, or to any other person. When it is remembered that wills are sometimes the only evidence on claims to property, such neglect may have a fatal operation on individual rights ; and the fact affords the strongest proof of the necessity of the interference of the Legislature. At Doctor's Commons, many of the existing regulations impede inquiry ; and the management is susceptible of improvement in almost every department. Though not satisfied of the efficiency of any measure that does not proceed on the principle of benefitina° the any by relieving the Ecclesiastical Establishment of every duty which is not strictly of a spiritual nature, we readily admit that Dr. NicsioLes Bill, now lying on the table of the House of Commons for a second reading, will effect most valuable improvements.

After many centuries of inconvenience, anomalies, and abuse, the Government of GEORGE the Fourth, in January 1830, issued a Com- mission, consisting of several Bishops, Judges, and Civilians, to inquire into "suits and matters" in the Ecclesiastical Courts; into the practice and pleading therein, whether any amendments could be made; into the jurisdiction of Ecclesiastical Courts, and whether such jurisdiction might be usefully altered. This Commission was terminated t by the grant of a new Commission, consisting of the same persons and of two others, by WILLIAM the Fourth, on the 5th July 1830. In January 1831, the Commissioners made a special Report, re- commending the abolition of the jurisdiction of the Court of Dele- gates, and the transference of the right of hearing appeals to the • A clear and succinct account of the manner in which the Church acquired jurisdiction over wills and testaments, and of "the flagrant abuses" that en- sued, may be found in Blackstone's Commentaries, Vol. IL pp. 494, 495. The lords of some manors have now the power of granting probates of wills. These courts are very properly to be abolished; but the jurisdiction is transferred to the new Ecclesiastical Court. $ The preamble to the present bill erroneously recites, that 6EORGE the Ronsth issued a Commissiou on the 28th January 1829; and that the said Gotamissioners, in pursuance of such Commission made their Repart to WIL- LIAM the Fourth on the 15th February 1832: whereas the origin& Cominia- sion was issued not in January 1829 but in January 1830, and the Report was made not under that Commission hut under the new Contutisdices *Me 5th July 1830.

Privy Connell; which measure was carried into effect by an act of Parliament. On the 15th of February 1832, the Commissioners made their general Report, containing a very able statement on the history and e mulition of the Ecclesiastical Courts, and proposing such large and important reforms as even to exceed the hopes of the most sanguine advocate for improvement. With striking con- sistency, however, the Reforming 'Whigs left to their successors the merit of completing what the Tories had proposed before they quitted office in 1830.

It will doubtless surprise many of our readers to learn, that besides the greater or Archiepiscopal and Diocesan Courts, Eccle- siastical jurisdiction is exercised by nearly three hundred "Pecu- liars," as they are termed ; which are thus described in the Report of the Commissioners-

" The Peculiar jurisdictions in England and 'Wales, with the Manorial Courts, amount in number to nearly 300.

These jurisdictions are of several kinds : Royal Peculiars ; Peculiars be- longing to the Archbishops, Bishops, Deans, Deans and Chapters, Archdeacons, Prebendaries and Canons, and even to Rectors and Vicars; and there are also mom:: of so anamolous a nature as scarcely to admit of accurate description. In some instances, these jurisdictions extend over large tracts of country, embracing many towns and parishes, as the Peculiar of the Dean of Salisbury. In others, several places may be comprehended, lying at a great distance apart from each other. Again, some include only one or two parishes.

" The jurisdiction to be exercised in these different Courts is not defined by any general law. It is often extremely difficult to ascertain over what descrip- tion of causes the jurisdiction of any particular court operates; and much in- convenience results from this uncertainty.

"This variety of jurisdiction has proceeded from different causes, connected with the history of the Church, which it is not necessary here to specify. The Peculiars were alwa3s considered as interfering with the beneficial exercise of the authority of the Bishop of the diocese ; and proposals have been advanced,

at different times, to remove the inconvenience. * * * " We think that the whole jurisdiction of these Peculiars, both contentious and voluntary, should be abolished ; and we are induced to come to this con- clusion by the following among other reasons.

" With respect to the contentious jurisdiction, it is wholly impossible that justice can be administered efficiently and with satisfaction to the public. In the majority of the Peculiar Courts, and perhaps in all, there neither are nor can be efficient and experienced judges, officers advocates, or practitioners. The emoluments are too small, and the number of causes too few, to insure these re- quisites for the due administration ofjustice. Consequently, no confidence is re- posed in these tribunals ; and delay arises, and expense is incurred, in applying tor letters of request, or in resorting to other means of escaping the jurisdiction. In some cases, too, the grievance is enhanced by the multiplication of appeals. With regard to testamentary cases, the Inconvenience is the greatest. There cannot be expected, and in fact there are not to be found, safe places of custody for the wills to be deposited in the registries ; and thereby the most important titles to real and personal estate may be endangered. In admitting testamentary papers to probate in common form, according to the existing state of the law, an accurate knowledge of the rules which ought to govern the practice is very essential ; but where the opportunities of acquiring experience are few, such accuracy cannot be attained. In cases where it is necessary to make searches, the multiplication of courts for the probate of wills, of course, greatly increases the trouble and expense. On the question of bona notabilia, nany difficulties result from these searches, and sometimes more serious injury. "It would be easy to set forth many other reasons, inducing us to suggest the entire abolition of these jurisdictions ; but as we are not aware of any one benefit which would result from their continuance, we conceive that the cir- cumstances already stated will suffice. We therefore propose, that the peculiar jurisdiction should be abolished ; and that every place should be subjected in all respects to the Bishop, within the limits of whose diocese it happens to be locally situate, as if no such peculiar jurisdiction had ever existed."

The Commissioners also proposed to abolish the Diocesan Courts, and to transfer the jurisdiction hitherto exercised by them to the Provincial Courts. The Manorial Courts which exercise a t6stamentary jurisdiction are not numerous ; and as they were of little advantage to the lords of the manors, and liable to all the objections of the Peculiars, the Commissioners also recommended their abolition.

The Commissioners seem to have been convinced of the utility of establishinu one general registry for all wills and administrations in England and Wales, including those of the province of York; but they only recommended that testamentary Jurisdiction should be transferred to the Archiepiscopal Courts of the respective pro- vinces. To remedy the inconvenience, or, as the Report properly calls them, "mischiefs," of the Local Courts, the Commissioners said they were unable, after most careful consideration of the whole subject,

- - - u to devise any measure so effectual, and likely to be productive of so much convenience and advantage to the public, as that of transferring the whole testamentary jurisdiction, and the exclusive right of granting probates and ad- ministration, to the Archiepiscopal Courts of the respective provinces.

" By this measure, the uncertainty as to the validity of grants, and the insufficient custody of testamentary documents, will be altogether removed : increased facility will be afforded for the examination of wills and administra- tions, and the discovery of personal representatives; and nearly all the expense and trouble attending the assignment of terms will cease to exist.

Patronage will be in some cases abolished, and in others diminished; but as all patronage is a trust for the benefit of the public, the loss will be cheerfully submitted to, when arising from improvements materially conducive to the public advantage." In 1833, a Committee of the House of Commons, to which the Report was referred, recommended the abolition of all Courts exercising Ecclesiastical jurisdiction, except the Court of Arches and the Prerogative Court of Canterbury ; and suggested that those Courts should be united. In 1836, Lord Chancellor COT- TENHAM brought in a bill very similar to the present one; and it was referred to a Committee, which also recommended the abolition of all Local Courts, and that one Court in London should be the only Court for testamentary proceedings. In this view we concur : but Dr. Nicaom., yielding to the opposition raised against that plan, proposes to retain one Court in each diocese, with limited powers; by which he has injured the general plan without con- ciliating the opponents of improvement.

The present bill, after enacting that every Peculiar shall form' part of the province, diocese, and archdeaconry in which it is locally situate, and regulating " donatives," proceeds to abolish every Court of Ecclesiastical jurisdiction, except the Courts of the Arch- bishops and Bishops, and transfers all testamentary and contentious" jurisdiction to a new Court, to be called " her Majesty's Court of Arches," which is to sit in London, and from which Court there is to be no appeal except to the Queen in Council. The Dean of the Arches, who must be an advocate of ten years standing, is to be appointed by the Crown, with a salary of 4,600l., and, after fifteen years' service, a retiring pension of 2,250/. He is to be inca- pable of sitting in the House of Commons : he may be assisted by the Judge of the Admiralty; but, except in case of the illness of the Dean of Arches, or of a vacancy in that office, it does not appear under what circumstances such assistance is to be asked or rendered. The whole patronage of the new Court is to be vested in the Dean of the Arches; consisting of three Registrars at 1,400/. each, a fourth Registrar at 1,0001., seven Clerks of Seat at from 400/. to 600/. a year each, and fourteen other officers at from 1201. to 4201.; forming a corps of officers whose united salaries will amount to upwards of eleven thousan I pounds per annum ! All wills are in future to be proved in the new Court of Arches in London, except of persons dying in any diocese whose personal effects shall be sworn under 300/. ; in which cases, wills may be proved in the Bishop's Court of such diocese, or in the said Court of Arches. It is consequently compulsory that all wills shall be proved in London if the effects exceed 300/. This arrangement has been objected to, on the ground of expense and inconvenience. It is said that while justice is to be brought home to every man's door by County Courts, it is inconsistent to destroy Local.Courts for proving wills. Yet the cases are by no means alike. An indi- vidual may be frequently involved in suits, each requiring many witnesses for its determination. A man's will is proved but once ; and all the necessary evidence for the purpose can be taken in the place where he died, and might, under proper regulations, be transmitted to and proved in London at no greater expense than if the measure were completed in the country.

By the new plan, an efficient court is at once obtained for all testamentary proceedings of importance ; instead of being sub- jected, in the first instance' to such imperfect local tribunals as now have testamentary jurisdiction, from which local courts, when any litigation takes place, appeals become indispensable. The Commissioners thus speak of Diocesan Courts, and make the following important facts the principal ground for recommending their abolition— "In the course of our inquiry, we became early convinced of the imprac- - ticability of having judges duly qualified, together with a competent bar and skilful practitioners, to administer in the Diocesan Courts the testamentary and matrimonial laws, which involve matters of such very high importance to the parties litigant and to the public. The returns which have been obtained from the Diocesan registries show that the annual amount of business, and the emo- luments of the judges and other officers, and of the practitioners in these courts, make it impossible, in the greater number of dioceses, that efficient courts can be maintained. This is a defect, which, if it cannot be removed, outweighs all the advantages that may sometimes attend the exercise of Episcopal jurisdiction within the local limits of the respective dioceses. From these considerations, it appears to us to be advisable to recommend the transfer of the whole con- tentious jurisdiction to the Provincial Courts."

It is not generally known that the present plan resembles the system established during the Commonwealth, when local jurisdic- tion was abolished, and judges were appointed for the probate of wills and for granting administrations throughout England and Wales, whose court sat in London.

To secure both a general and a local registration, a copy of every will proved or administration granted in a Diocesan or Provincial Court is to be sent to the Court of Arches within twenty-eight days ; and, on the other hand, copies of all wills proved in London, of persons dying in any particular diocese, if sworn under 3001., and a list of all other wills of persons dying in any such diocese, are to be sent to the Registrars of that diocese. The mere fact of a person dying in any diocese, is not so strong a reason for having a record of his will in that diocese, as his having for any length of time resided, or baying had property in any other diocese, is a reason for recording it there ; facts which could always be ascer- tained from the executor or next of kin. For example, A B may have property and been long resident in the diocese of Exeter ; but he dies while on a visit to a friend, or during a journey, in the diocese of Carlisle : what possible benefit would those interested in his affairs derive from the registration of his will in a registry: five hundred miles from his property ?

All existing testamentary records are to be transmitted to the Court of Arches ; but no provision is made for securing for the- General Registry copies of the numerous early wills in the private register of the Archbishop of Canterbury, and possibly in similar registries of other Bishops. Nor does there appear to be any pro- vision in the bill for transmitting to the General Registry any other records than testamentary—such as marriage-bonds, proceedings in suits, act-books, &c., all of which are of great value. The most serious omission in the bill, and one to which we earnestly hope attention will be paid, is, however, with respect to fees and indexes; which in fact involve the use of those important records. All fees are in future to form a fee-fund ; and their nature and amount are to depend absolutely on the Dean of the Arches. No complaint can be made of the fee of one shilling which is now demanded for. inspecting a will: but the examiner ought (as is the practice in Record Offices) to be allowed to make any extract he pleases for that sum ; whereas he is strictly prohibited from copying more

than the date and the name of the executors. If office-copies be wanted, the fee should be as small as possible ; but the copy so obtained ought to be strictly accurate. At present, such copies are usually full of errors ; and those parts which are in Latin are transcribed by persons entirely ignorant of the language, and in a way to be unintelligible. Yet these copies are paid for as true copies, and signed by the three Deputy Registrars, who, under the bill, are to become the new Registrars. The present index at Doctor's Commons, whirls is written in a hand illegible to numerous per- sons, is very unsatisfactory. The publication of an improved index ought to be one of the earliest acts of the new Court, and be fol- lowed by similar publications of indexes to the provincial wills, 8:c., as soon as they are received and arranged. Judging from the past, the hopes of improvement in fees and indexes are but faint, inasmuch as the new system is to be intrusted to the same hands as the present one, and no new bleed is to be infused from other sources. It is the more necessary that Parliament should make some provisions on points so essential to public convenience as fees and indexes, because, unlike the other public records, Govern- ment will have no sort of control over records belonging to the Court of Arches.

The most important of the other clauses of the bill are those by which the jurisdiction of Ecclesiastical Courts in matters of tithes is abolished, and the Act of the 5th and 6th Edward VI. against fighting and brawling in churches is repealed. The original contentious jurisdiction in simony, heresy, blasphemy, incest, &c. is not to be transferred to the Court of Arches ; but it may proceed to divorce and enforce the separation of parties within the prohibited degress cohabiting without lawful marriage. Clauses occur relating to stsquestrations ; for transferring certain pending Suits to the Court of Arches ; and for giving power to Bishops to appoint persons for deciding summarily matters relating to scats in churches, monuments, leases, &c. By the 36th clause, it is pro- vided that evidence may be taken vied voce in court, " if the judge shall think fit" ; an alteration in the mode of proceeding which might perhaps be rendered still more beneficial if either party had the right of insisting upon evidence being taken in that manner.

While none but advocates and proctors are eligible to the com- fortable offices of Registrars of the Court of Arches, barris- ters of five years standing may be Provincial Registrars ; who are to be nominated by the respective Diocesans, with salaries varying from 2001. to 600/. But we greatly doubt whether barristers might not with equal propriety, and with considerable public advantage, be permitted to practise in Ecclesiastical Courts, and also be eligible for the appointment of one or more of the Registrarships in the new Court.

A very strong opposition is setting in against this bill ; and there is some danger that the public may be sacrificed to professional in- terest. Country attornies have taken fright, and are exerting their influence over Members of Parliament, more especially over those calling themselves "Liberals." The measure is denounced as a job, because great partiality is shown- throughout for the interests of Doctor's Commons: but we suspect that the opponents are quite as strongly actuated by personal considerations. No one can doubt that the measure is absolutely called for, and that it will effect much public good. Ought, then, the clamour of country so- licitors, deputy-registrars, and proctors, or the petitions which they will doubtless instigate their clients to present, to be of any avail ? What legal reform has not been similarly impeded ? Is it right or expedient that there should be in one diocese no fewer than from twenty to thirty-eight petty Courts exercising Ecclesiastical jurisdic- tion; or that such a state of things should be continued as is thus described in the Report of Commissioners specially appointed to in- quire into the subject, (among whom were the Archbishop of Can- terbury, the Bishops of London, Durham, Lincoln, St. Asaph, and Exeter, Chief Justices TINDAL and ALEXANDER, the late Sir Jonx NICHOLL, Sir CHRISTOPHER ROBINSON, Sir HERBERT JENNER, and Dr. LUSHINGTON,) and whose propositions have been sanctioned by two Parliamentary Committees?

"The law on the subject of bona notobilia is extremely complicated and ill-defined; but we do not deem it necessary to enter into any minute discus- sion of the principles on which it is founded, nor the decisions which have occurred : it is sufficient to say that, in all cases where probate or adminstration is taken out in any court within the province of Canterbury, except from the Prerogative Court, or perhaps a Royal Peculiar, and in some cases other Peculiars, if it should afterwards appear that the deceased died possessed of bona notabilia within anotherjurisdiction, the probate or administration is null and void. Bona notabilia are said to be constituted by the possession of per- sonal property to the amount of 5/. in another jurisdiction. "The same observations apply to the province of York. Where there is personal estate in both provinces, there must always be two probates or grants of administration."

The unusual length of' this article shows the importance we attach to the subject. Class interests are so formidable in the House of Commons, that it is desirable the public should have accurate information on a measure which is very likely to be mis- represented, because it relates to a state of things of which not one person in ten thousand is aware, and which is injurious to all ex- cept a few local solicitors, registrars, and proctors.