It is curious to observe society, in an advanced and artificial state, reverting by degrees to the primitive institutions of its ancestors; the movement, apparently retrogressive, is, in fact, progressive, for it casts aside products which have remained, although the reasons which led to them have long since ceased. Such a process is visible at the present day in several branches of our jurisprudence. We pass by the instance of county courts, which, flourishing in the time of Alfred, fell into comparative desuetude for centuries, but are now invested with almost ancient jurisdiction. We pass by also the system of pleading, once concise and simple, then subtleised and elaborated, and now simplified once again. The instance which we select, in preference to others, is the proposed transfer of the probate and divorce jurisdiction of the ecclesiastical tribunals to the temporal courts of our realm. The history of this jurisdiction may be briefly traced thus:

In the time of our Saxon ancestors there was no distinction between the lay and the ecclesiastical jurisdiction; the county court was at once spiritual and temporal, and the rights of the church and the laity were ascertained at the same time and by the same judges. The whole man was thus provided for by one tribunal, instead of taking his conscience to Doctors' Commons, and his body to Westminster Hall; he was recognised as a being possessing a duplex nature, and having interests in two worlds to provide for at one and the same time. It was a hard case indeed if neither the bishop nor the sheriff could hit the offender; the one commanded bailiffs and the other ecclesiastical censures, and were thus prepared either for the tender conscience or the hardened corpus. For this purpose the bishop and the ealderman or earl, or his deputy the sheriff, used to sit together in the county court, and had there the cognisance of all causes, a superior defeVOL. XVIII.

E

rence being paid to the bishop's opinion in spiritual matters, and to that of the lay judges in temporal, as at the present day, when, at times, Maule, J., sits by the Lords Justices Knight Bruce and Turner to administer law as well as equity.

The ecclesiastical court, however, was separated from the civil by William the Conqueror in order to gratify the foreign clergy, by whom he was supported. He prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were ordered to conform to the canon law. Henry I, among other restorations of the law of Edward the Confessor, revived this of the union of the civil and ecclesiastical courts. The clergy, however, did not relish being put on a level with the profane laity, and on the accession of Stephen they brought about a dissolution of the newly-effected union. About this time the contest began between the laws of England and those of Rome, the temporal courts adhering to the former, and the spiritual adopting the latter: "this," says Blackstone, "widened the breach between them, and made a coalition afterwards impracticable, which probably would have been effected at the general reformation of the church."

This separation being established, the only remaining question would be, what causes were spiritual or ecclesiastical, as pertaining to the "regimen of the soul?" The answer would determine the tribunal to which they should be referred. We propose to consider how causes testamentary and matrimonial, with which we are at present interested, were brought within the category. As to causes testamentary, they seem to have been first given to the clergy at the time of the last dissolution of the union of the lay and spiritual courts in Stephen's time*, and it came about in this manner.

The foreign clergy were early ambitious of this branch of power, but their attempts to assume it on the continent were effectually curbed by the edict of the Emperor Justin, (Cod. 1, 3, 41), which restrained the probate of testaments, as formerly, to the office of the magister census; for which the Emperor subjoins this reason-"Absurdum etenim clericis est, immo etiam opprobriosum, si peritos se velint ostendere disceptationum esse forensium." Afterwards, however, by the canon law, it was allowed that the bishop might compel, by ecclesiastical censures, the performance of a bequest to pious uses. This made a legacy to such

uses a spiritual cause, and afterwards intestacies were brought under the same denomination, when Henry I directed that the personal property of an intestate should be divided for the good of his soul; to which King Stephen added, " ecclesiæ consilio*." By the old law, the King is sometimes said to have been entitled to seize upon the goods of an intestate, and that this privilege was granted by him as a franchise to many lords of manors; and that afterwards, in favour of the church, the prelates were invested with this branch of the prerogative, which was done, says Perkins, because it was intended by the law that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased t. And as the bishop had thus the disposition of the intestate's effects, the probate of wills followed, for it was thought just and natural that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing the chattels was effectually superseded thereby. This power, obtained by encroachment, was grossly abused, until at length the ordinary was compelled to grant administration to the next of kin. Blackstone remarks on the strangeness of ranking testamentary causes among matters of a spiritual cognisance, as they are certainly of a "mere temporal nature," and states, that in almost all other (even in Popish) countries all matters testamentary are under the jurisdiction of the civil magistratet.

Although the spiritual courts have exclusive jurisdiction in establishing the will, yet the courts of equity have a concurrent jurisdiction with them in construing it; and it has happened that this jurisdiction has been exercised in a way to render the instrument, of which probate has been granted, ineffectual as a will. (See Gawler v. Handerwick, 2 Cox, 16; Thornton v. Curling, 8 Sim. 310). And where a probate has been obtained by fraud on the next of kin, the Court of equity will interfere; and since Lord Nottingham's time, it has been accustomed to administer relief to legatees. It should also be remembered that the jurisdiction of spiritual courts is confined to goods and chattels, and a devise of lands must be proved by the will itself.

Marriage, although in the nature of a civil contract conferring civil rights, was brought within courts spiritual by being made a sacrament. This was soon after the separation of the courts||; and the determination of questions of legitimacy and bastardy followed almost as of course. Blackstone, (3 Com. 92), speaking of this assumption of matrimonial causes by the church, says, "In the hands of such able politicians, it soon became an engine of great importance to the Papal scheme of an universal monarchy over Christendom. The numberless canonical impediments that were invented, and occasionally dispensed with, by the Holy See not only enriched the coffers of the church, but gave it a vast ascendant over princes of all denominations, whose marriages were sanctified or reprobated, their issue legitimatised or bastardised, and the succession to their thrones established or rendered precarious, according to the humour or interest of the reigning Pontiff, besides a thousand nice and difficult scruples with which the clergy of those ages puzzled the understandings and loaded the consciences of the inferior orders of the laity, and which could only be may be observed that the disposition of intestates' Visum ecclesiæ," was one of the articles confirmed theprelates by King John's Magna Charta. The

Comby Sweet, 494, note 4, the position that this prerogative is controverted.

the English Law, vol. 1, p. 72.

unravelled and removed by these their spiritual guide Yet, abstracted from this universal influence, whic affords so good a reason for their conduct, one migh otherwise be led to wonder that the same authorit should think them the proper judges in causes betwee which enjoined the strictest celibacy to the priesthoo man and wife. These causes, indeed, partly from th nature of the injuries complained of, and partly fro the clerical method of treating them, soon became to gross for the modesty of a lay tribunal* " question upon grounds that render it merely voidable If the spiritual court proceed to call a marriage i after the death of either of the parties, the courts common law will prohibit them from proceeding, be cause it tends to disinherit and bastardise the issue who cannot so well defend the marriage as the partie themselves when living might have done. The sacra mental nature of marriage was completely destroyed in the eyes of the law, by stat. 6 & 7 Will. 4, c. 85 allowing marriages to take place in a registered build ing, before the registrar of the district.

Thus a review of the history of these two branche of ecclesiastical jurisdiction shews, first, that they ar of a character naturally and properly cognisable by the temporal courts: secondly, that the reasons on which they were founded have ceased to exist; the ordinary is no longer entitled to the goods of an intestate; mar riage is not regarded by the law as a sacrament, but simply as a civil contract: and, thirdly, that the temporal courts do still exercise some jurisdiction over these ecclesiastical courts, such as prohibiting them from exceeding their powers, or even declaring a will void which they have declared proved. We have purposely confined our remarks to these two matters, causes testamentary and matrimonial; but we believe it will be found that objections of almost similar force may be raised against every part of the ecclesiastical jurisdiction in this country as exercised in the spiritual courts.

EXTRACTS FROM THE SECOND REPORT

OF THE CHANCERY COMMISSIONERS ON THE JURISDICTION IN TESTAMENTARY MATTERS.

As to the constitution of the proposed testamentary court, the Commissioners report as follows:

"We recommend that the court to be established should be called Her Majesty's Court of Probate,' and should hold its sittings at such place, in London or Middlesex, as your Majesty shall appoint; and that this court should be a superior court of record, and that the proceedings therein should be in your Majesty's name.

"We consider, that, from the nature of the subjects to be brought before the Court, there should be but one judge, whose decisions should be subject to appeal. The mode and course of appeal we shall notice in subsequent part of this report.

"We recommend that the qualification of the judge should be a standing of ten years as advocate of the Court of Arches, or serjeant or barrister at law, and that the judge of the court should be appointed by the Crown, and should hold his office during good beha viour, and be removeable upon an address by both Houses of Parliament. In order to provide for the

*The italics are ours, but are scarcely required, to mark the sly satire of the commentator, who truly adds, in a note, "Some of the impurest books that are extant in any language are those written by the Popish clergy on the subjects matrimony and divorce." The morbid state of a man devoted to celibacy, and speculating on marriage and divorce, is only too apparent from the Disputationes de Sancto Matrimoni Sacramento, by Sauchez, and similar works.

Cention.

occasional illness of the judge, we think that power should be given to the Crown to appoint some other person to act temporarily as judge whenever the occaSion should arise; and the judge should have power, during vacations and on other special occasions, to appoint, with the consent of the Lord Chancellor, some competent person to transact the necessary business ncident to the passing of probates and letters of administration, which is now transacted by surrogates, and such other business as may require immediate at"We think that the officers of the court should be ppointed by the judge, with the approbation of the Lord Chancellor; and that the subordinates of these officers should be appointed by the officers themselves, with the approbation of the judge. In order, however, that the new Court may have the immediate assistance of officers trained in the performance of similar duties, we think that it will be convenient that the present deputy registrars of the Prerogative Court of Cantercury, and the assistant clerks of seats, and such other officers of that court as are engaged in and competent to the performance of active duties, should become officers of the Court of Probate, and perform such duties as shall be assigned to them respectively by any general rules or orders of the Court.

there be no longer any distinction as to bona notabilia, and country courts continue to exist, this source of protection will be lost.

"It is, we think, evident that this protection would be best afforded to the public by a central court in London. The skill and vigilance required to guard against frauds or mistakes will, we think, be more certainly possessed and applied by officers in London under the immediate control of the judge, to whom they will have the opportunity of applying on any emergency, and to whom they will be immediately responsible. If the convenience of the public would permit it, we should desire that this protection should be afforded in all cases; but we think that this is not the case, and that the more perfect security afforded by the transaction of the testamentary business in London is not in all cases imperatively required. "The danger to be apprehended is from fraud or mistake, and this danger principally arises in cases of funded property. In the agricultural districts, where the continuance of the present local accommodation is most desired, the property of the deceased, where it is of small amount, rarely includes money invested in the public funds, or other similar securities, of which an immediate disposition can be made by virtue of the probate or letters of administration.

"We think, therefore, that in cases of small pro

"The judge and the principal officers of the Prerogative Court of Canterbury are at present paid wholly y fees. We think that this should not be the case in he Court of Probate, but that the judge and officers of hat court should be paid wholly by salaries.

"The deputy registrars of the Prerogative Court and ome of the other officers of that court are now allowed o practise as proctors; but we are of opinion that no fficer of the Court of Probate should be allowed, irectly or indirectly, to practise.

taining probate and letters of administration may reasonably be dispensed with; and the arrangement which we propose will, to a great extent, unite the advantages of local and central testamentary courts.

"We recommend that district offices, through which probates or administrations may be taken out in cases of small properties, should be established in different parts of the country as branches of the Court of Probate, each of such districts to comprise a county or counties, or some known division of a county or counties." (To be continued).

IN CHANCERY.

"We think that the registrars of the court in London nd commissioners in the country should be empowered o take affidavits, and transact other formal business low performed by surrogates.

"The establishment of a single court, holding its ittings in London or Middlesex, for the transaction of he whole of the testamentary business of England, hay probably be objected to under the apprehension of creased expense and inconvenience to persons residing a the country. We have, indeed, reason to believe, hat in cases of small properties such persons would ot be satisfied with any measure which would deprive hem of the means they have hitherto enjoyed of reorting to courts within their own districts for probates nd letters of administration. We therefore proceed to onsider this objection.

per

"We have already pointed out that the possession of probate or letters of administration enables a person t once to obtain and dispose of all the available onal estate of the deceased. Stock to any amount ay be sold in a few hours, and the produce irrecoerably lost, without the knowledge of the persons eally interested. It is indispensably necessary, therere, to provide the utmost practicable protection to the ublic against fraud or mistake.

"The state of the law as to bona notabilia has itherto secured this protection to the public to a very reat extent, a prerogative probate or administration aving been resorted to in all cases in which the deeased was possessed of any funded property; but if

The Lord Chancellor, under the powers of the 16 & 17 Vict. c. 78, intituled "An Act relating to the Appointment of Persons to administer Oaths in Chancery, and to Affidavits made for Purposes connected with Registration," has appointed the following gentlemen to be Commissioners for administering Oaths in Chan

cery:

To be London Commissioners.

Samuel Lepard, 9, Cloak-lane, City.
John Satchell, 6, Queen-street, Cheapside, City.
Nicholas Gedye, 14, George-street, Mansion-house, City.
David Gray, 20, Lincoln's-inn-fields.
Thomas Lott, 43, Bow-lane, Cheapside, City.
John Pike, 26, Old Burlington-street.
Charles William Hird, Portland Chambers, 75, Great
Titchfield-street, and 1, Hartland-terrace, Kentish-
George Peter de Rhe Philipe, Gray's-inn-square, and
town-road.
Simon Dunning, 25, Austin-friars, City.
4, Lloyd-street, Lloyd-square, Pentonville.
Thomas Hornby, 31, St. Swithin's-lane, City.
Francis Smedley, 40, Jermyn-street, St. James's.
Robert John Child, 11, Old Jewry, City.
Josiah Wilkinson, 2, Nicholas-lane, Lombard-street.
To be Commissioners in England.
John Parry Jones, Denbigh.
John Braddock Walmisley, Marple, Stockport, Cheshire.
John Brown Twist, Coventry.
Frederick Viel Jacques, Bristol.