PROPOSED REFORM OF THE ECCLESIASTICAL COURTS.
IF any man had a very precious cargo of goods to send from England to the ancient island of Taprobane or Serendib, now called Ceylon, it is not likely that he would seek about the world to find a vessel after the pattern of the old medixval galley, with a quarter-deck rising many feet above the water, a beak stretching out horizontally nearly in the position of our bowsprit, only so constructed as to spoon the water and to render bury- ing very probable, and with port-holes for the oars beneath the gunwale. Nor would he seek for a commander to navigate his vessel on the principles which were orthodox in the middle riga. Yet, such a course would not be very unlike what most of us have been compelled to adopt when we are intrnsting to an unknown voyage the most valuable cargo that we ever venture—namely, our whole property invoiced in our wills. We are obliged to con- sign the custody of the will to an officer of the Ecclesiastical Courts, whose vade-mecum was laid down at a time when galleys were in use and before Columbus and compasses had improved navigation. He stows away that parchment cargo in buildings a comparison with which would be a libel on the galley. If all the wills of the country were stored in the ancient ruins of its castles, they would have a better preservation than they have now in coal- cellars, barns, or in the hands of registrars that have let them be used up for waste paper' or other registrars that have turned them into a *rate trade. The general character of these Courts, however,—wilish &nage an enormous fee to anybody who should rashly undertake the task of seeking out a will, in order to
find that it has been lost or destroyed,—is already sufficiently well known. Their enormities, indeed, are so exhaustless, that we believe farther search would turn up further monstrosities, as we see in the last pamphlet on the subject, by Mr. Downing Bruce.* Some time back we gave an account of a will favourable to a certain Mr. Paver, a clerk in the Registrar's Court of York, which will had been destroyed and a new form fraudulently substi- tuted. It is now discovered that the same Mr. John Paver had been carrying on a special business as searcher into marriage. licences and other documents, and that he had taken possession of such documents in order more fully to monopolize the trade. It would seem, however, that Mr. Paver did but turn to a more in- telligent account those abuses which others have enjoyed in the mere wanton destruction of wills and valuable records.
Surely the time has come for correcting an abuse which future readers of history will regard as almost incredible in a country so far civilized as ours is. The time has come, not only because the abuse has been long enough exposed, and because a sufficient num- ber of influential persons perceive that the private interest of every one in the country is involved in the question, but also because official persons have donfessed that the evil cannot longer be suf- fered to continue. The subject of Ecclesiastical Courts and their jurisdiction was mooted last session in several forms, and was post- poned to the session now ensuing, for more effectual treatment. It would not occasion surprise if the subject were alluded to in the Royal Speech ; and indeed it is known that it has been under the consideration of official men thoroughly competent to grapple with it and to arrange a better system.
As it is observed in the pamphlet to which we have alluded, it cannot be contended that the Ecclesiastical Courts exercise juris- diction over wills as a matter of right. These courts exist as the remnants of a true ecclesiastical system : they were instituted for carrying out ecclesiastical law, and if they have any surviving function it is to execute the behests of ecclesiastical authority. Thus, if the sinful public is still willing to do penance standing on a stool in a white sheet .in church under sentence of an eccle- siastical judge, the Ecclesiastical Courts are the proper tribunal to award the sentence. If the public is willing that its marriage re- lations should be subject to the sole authority of an Archbishop, the Ecclesiastical Courts would be the proper tribunal for enter- taining all references on subjects of matrimonial litigation. But since we have transferred the temporal authority in matrimonial matters to temporal officers, the officers of the Church only re- ceiving the temporal authority as temporal functionaries,—and since we are not willing to refer questions of adultery or seduction to the quaint jurisdiction of the Archbishop's functionaries,—even in that part of their duties the Courts are functi officio. But the custody of temporal property has long ceased to be a proper subject of ec- clesiastical power ; and so long as they retain jurisdiction over wills, the Ecclesiastical Courts are persevering in an encroachment upon the functions of the Courts of Chancery or Bankruptcy, or other temporal authority. Even if they ever had the right as an abstract position, they have forfeited it by the manner of execu- tion. If they have a right to the custody of our wills, they have no right to their destruction ; if they have a right to register our wills, they have no right to prevent us and all who are interested in them from having free access to them.
There is less difficulty in dealing with the subject, since a com- plete machinery already exists for fulfilling all the duties that these courts can profess to perform. There is not a duty which they perform that could not be better fulfilled by some other court. Even matrimonial questions would be much better arranged under an improved practice, and in a court not trammelled by the quaint and antiquated procedure of an ecclesiastical system. In the matter of wills especially, which is the most extensive, con- stant, and complicated part of their business, the substitution is easy and complete. We have already a public department charged with the duties of registering births, marriages, and deaths : that department has shown an efficiency exceeding the bare fulfilment of its duty; it has supplied the public with extremely valuable information on incidents of population, matters of health, and even, as we see by the recent volume of Mr. Horace Mann, on matters relating to the religious distribution of the people. It is a complete machinery, existing all over the country, for the purpose of regis- tration. We have also likewise distributed over the whole coun- try, one at least in each county, judicial courts which are tribunals of record, and which might be very properly employed in carrying out the judicial and ministerial part of the routine business. There cannot, therefore, be any difficulty whatever in finding officers in every district to register every will ; officers who already know every person in the country, and who have a complete arrange- ment, not only for indexing the population with all its mortal in- cidents of birth, marriage, and death, but also for giving every- body an easy access to that index at a fee not above the reach of the poorest person in the land. If we could only place wills on equality in this respect with births, marriages and deaths with which will-making is so closely connected, we should have all that could be desired. Unlike many reforms, therefore, the proposed reform of the Ecclesiastical Courts requires no creation of any new public department, but only a transfer of valuable property from the hands of mediteval servants, who keep that property in ruins and cellars, to the custody of thoroughly efficient public officers, with every means for accurate registration and inspection.
• "An Account of the Present Deplorable State of the Ecclesiastical Courts of Record ; and Proposals for their Complete Reformation." By William Downing Bruce, Req., of Lincoln's Inn, Barrister-at-law, F.S.A., tirc.
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