Page images
PDF

notice in this place, that the number seven is frequently used in Scripture as a number of perfection. In the sacred books, and in the religion of the Jews, many events and mysterious circumstances are set forth by this number.—Maurice's Indian Antiquities, Vol. II. p. 252.

It is part of the duty of a Brahmin, in the performance of his ablutions in the river, as we are informed in the Ayeen Akbery,* to sprinkle water over his forehead, breast, and shoulders, seven times. In the Eleusynian Mysteries, the same number is specified as necessary, as Apuleius, who had been initiated, informs us: his words are, " Septies submerso fluctibus capite, quod eum numerum principive religione aptissimum divinus ille Pythagoras prodidet."f It should be observed, moreover, that those purifications of the body by water were intended to inculcate the necessity of a similar purification of the soul from the impure adhesions of vicious passions and propensities.

The idol of Lingam, a deity similar to the Phallus of the Egyptians, is always to be found in the interior and most sacred part of the temples of Striva. A lamp is kept constantly burning before it; but when the Brahmins perform their religious ceremonies, and make their offerings, which generally consist of flowers, seven lamps are lighted; which De la Croze, speaking from the information of the Protestant missionaries, says, exactly resemble the candelabras of the Jews, that are to be seen in the triumphal arch of Titus.— Sketches of the Hindoos, Vol. I. p. 203.

LOCAL TESTAMENTARY COURTS.*

Reasons assigned by the Ecclesiastical Courts Commissioners, and by a Committee of the Houte. of Commons, for the Abolition of the Local Testamentary Courts; with Answers thereto.

It should* be premised that there are Local Testamentary Courts and Registries in all the dioceses in England and Wales, situate at the undermentioned cities and places.

Province and Diocese of Canterbury—at London and Canterbury. Diocese of St. Asaph—at St. Asaph.

Bangor—at Bangor.

Bath and Wells—at Wells and Taunton.

Bristol—at Bristol and Blandford.

Chichester—at Chichester and Lewes.

St. David's—at Caermarthen, Brecon, Haverfordwest, and
Cardigan.

Ely—at Cambridge.

Exeter—at Exeter, Barnstaple, Totness, and Bodmin.

Gloucester—at Gloucester.

* Ayeen Akbery, Vol III. p.217.

t Apuleii Metamorph. Vol. I. p. 254.

J Our readers are indebted for this able and interesting paper, to a gentleman, whose knowledge of ecclesiastical laws is equalled only by the courtesy of his manners, and his devotion to those principles in Church and State, which it is the object of our Miscellany to uphold. ,

Diocese of Hereford—at Hereford.

Llandaff—at Llandaff.

Lichfield and Coventry—at Lichfield.

Lincoln—at Lincoln, Leicester, Aylesbury, Bedford, Huntingdon, and Hitchin.

London—at London and Chelmsford.

Norwich—at Norwich and Bury St. Edmund's.

Oxford—at Oxford.

Peterborough—at Peterborough and Northampton.

Rochester—at Rochester.

Salisbury—at Salisbury and Oxford.

Winchester—at Winchester, and London (for the parts of
Surrey.)

Worcester—at Worcester.
Province and Diocese of York—at York.
Diocese of Carlisle—at Carlisle.

Chester—at Chester, Richmond, and Lancaster.

Durham—at Durham. The registries (out of the metropolis) contain several Millions of original wills and records of administrations, which are accessible to the public on payment of a small fee, varying from one shilling to halfa-crown. The Ecclesiastical Commissioners, in their Report to His Majesty, dated 15th February, 1832, have recommended the abolition of these local courts and registries, (except the Prerogative Court of York,) and the transmission of all wills and records of administrations now lodged in such of them as appertain to the province of Canterbury, to London, and in such of them as appertain to the province of York, to York, there to be permanently retained.

In addition to the local registries above mentioned, there are scattered throughout the country, registries belonging to peculiar jurisdictions; but these are not noticed, as all are agreed on the propriety of their abolition.

A committee of the House of Commons have also, in a report dated 15th August, 1888, concurred in recommending the abolition of the local courts and registries. It should be understood, that the Archbishops of Canterbury and York have each their Courts of Prerogative —the one in London, the other at York; and that the Ecclesiastical Commissioners, although they recommend the abolition of all the Diocesan Courts in each province, do not recommend the abolition of the Prerogative Court of York. The committee of the House of Commons, however, in their report, are for sweeping all courts and registries away, except a Court of Prerogative in London. It is necessary to keep this distinction in view, during a perusal of the subjoined remarks.

The following sets forth the principal reasons assigned by either the Ecclesiastical commissioners or the Committee of the House of Commons, for the abolition of the Local Testamentary Courts; and an attempt is made to reply thereto.

Reason I.—That great advantages will be afforded to the public by the abolition of the country courts, and the transfer of their jurisdiction to one court in London; and that such transfer need not be productive of any inconvenience, nor burthen the suitors with any additional expense.—{Report, Committee of the House of Commons, p. 7.)

Answer.— Probates and administrations are now granted in the country, through the medium of surrogates, who are resident in almost every market town. The business is therefore transacted at (as it were) the doors of the parties interested, and the original will or record of administration lodged in an adjacent registry. In case these facilities are withdrawn, the expenses to which parties resident in the country will be put, will be materially increased: correspondence with agents in London, postage, carriage, delay, risk, &c, will place them in a most disadvantageous situation, as compared with those resident in the metropolis. This would be a manifest injustice under any circumstances, but when the small amounts of the personal properties to which grants made in the country generally relate, are taken into the account, the injustice becomes greatly augmented. Probates and administrations taken out in the country, average about 2-1,000 in number annually,—of these, 4,700 relate to properties under 100/.; 7,000 to properties under 2001.; and nearly 12,500 to properties under 1,000/. Thus the large properties of persons resident in London, and in respect to which grants are made from the court in Doctors' Commons, will be exempt from the additional expense and inconvenience, to which, in case of the proposed new system being carried into effect, the small properties left by persons resident in the country will be exposed.

REASON II.—Uncertainty as to the validity of grants would be removed by the abolition of the country courts, and the transference of their authority to the archiepiscopal courts in each province.—(Vide Report of Ecclesiastical Commissioners, p. 24.)

Answer.—The prerogative courts of the two archbishops are anomalies— they were unknown to the common law, and are the creatures of the Canons— they are claims founded on legatine authority, and therefore engrafted on archiepiscopacy by something like usurpation. Originally, and according to the ecclesiastical common law of England, (if I may be allowed the expression,) the exclusive power of granting probate of the testament of a deceased party, rested with the bishop of the diocese in which the party died,—the power of granting administration, in case of an intestacy, with the bishop or bishops, in whose diocese or dioceses the effects lay. To obviate the inconvenience arising from several grants, a prerogative was vested in the archbishop of the province, when effects to a certain amount were found in two or more dioceses within the province, and after several alterations, the Canons of 1603 fixed the amount at 5/.—so that if a party died possessed of goods or good debts to the amount of .">/. in any other diocese than that wherein he died, he was to be deemed as having died possessed of bona notabilia—or of goods sufficient to found the jurisdiction of the archbishop's court of prerogative. Owing to various causes, but principally to differences of opinion as to what do and what do not constitute bona notabilia, this rule (in the province of Canterbury more especially) has been most strangely perverted and disregarded, and it has become the practice to obtain probates and administrations from the prerogative courts, without there being the slightest pretence of bona notabilia.

It is necessary for public convenience, that peculiars of all descriptions should be abolished. If this were done, the uncertainty as to the validity of grants would be as effectually removed, by vesting a clearly defined jurisdiction in matters of probates and administrations in the Ordinary of each diocese, and the Metropolitan of each province, as by making the courts of the provinces the only tribunals for the exercise of testamentary jurisdiction—at the same time, no injury or injustice would be inflicted upon parties resident in the country; and supposing indexes, as far as related to each diocese, of all wills and administrations proved or granted in the metropolitan courts of the provinces, were annually transmitted to the registries of each diocese, and vice vertd, indexes of all grants made in (he dioceses sent to the metropolitan courts, a great public convenience would be achieved.

Reason III The insufficient custody of testamentary documents will be

altogether removed, Sec.—(Report of Ecclesiastical Commissioners, p. 84.)

Answer.—A registry in each diocese, or county, or district of a diocese, must be more secure than a general registry in London, in which all the wills in the kingdom might be destroyed by lire, or popular commotion, and thus the possession of all the properties in the kingdom be rendered insecure. From the returns made to the ecclesiastical commissioners, it appears, that in fourfifths of the dioceses, the places of registry are secure and commodious. In some few dioceses, other accommodations are wanting, and the registries are not in such a state as could be wished. These are defects, however, which mav be easily rectified, and it ought to be made obligatory on all registrars, to provide proper and fire-proof repositories for all the documents entrusted to their care, and these repositories should be subject to annual and imperative inspection. It should, however, be remarked, that according to the evidence of Mr. I'rotheroe, (who, it is well known, has taken infinite pains on the subject) given before the Ecclesiastical Commissioners, " a very general reform has taken place in the keeping of testamentary records throughout England, and that in a great number of courts, the present deputy registrars have devoted a great deal of time to the management of their records; that they have spent money of their own in providing accommodation for those records; and that they have shewn « very laudable desire to accommodate the public."

Reason IV.—Increased facility will be afforded for the examination of wills and administrations, and the discovery of personal representatives.—(l'age 94 of Report of the Ecclesiastical Commissioners.)

Answer.—The use of country registries must be best ascertained by the number of searches made at them for wills and administrations, and the convenience of their position duly estimated by the residence of the persons making the searches.

Returns have been obtained from nearly all the country courts in the province of Canterbury; and from these it appears, that 8479 searches have, on an average of three years, been annually made for wills and administrations. Of this number, 368 only were made on behalf of persons resident in London: thus proving that the possessors both of real and personal estates interested tinder such wills and administrations, as well as the estates themselves, are to be found within the districts over which the courts extend.

If registries in the dioceses, or districts, be sustained, the individuals making 5335 of these searches will have their present facilities of continuing their searches in person; but if registries in London and York only be determined upon, those persons must incur considerably greater expense. And as it is notorious, that many searches are made, having reference to very small interests, by persons who are unable to sustain travelling expenses, and who, after walking to the country registry, can scarcely afford to pay their shilling for the search, hundreds will be virtually deprived of the privilege of making a search at all.

Local registries have this further advantage; that, as most wills form the titles to real property, and all actions relating to real property must be tried in the county where the estates are situate, the wills may be produced at the assizes at the smallest expense. If registries be retained in London and York only, an officer from such registries must be subpeened, and produce the will at the assizes, at an expense of little less than 20/.; but if the registry be sustained in the county town, the expense of producing the will would not exceed one guinea.

If the will itself be contested, it must necessarily, if deposited in the local registry, be more accessible to the witnesses who have attested it, or been acquainted with the testator's hand-writing, and who may he required to give evidence, than if placed in a metropolitan registry, where it cannot be inspected previous to the trial, unless by the witnesses taking journeys to London or York at an enormous expense. i

Reason V.—And nearly all the expense and trouble attending the assignment of terms will cease to exist.

Answer.—The diocesan or district court being usually situated in the county, in the centre of the properties affected by the wills and administrations, and near the residences of the possessors of estates, must necessarily be more accessible than one in London or York; particularly at periods of assize, public meetings, fairs, markets, &c; and, independently of these considerations, it is well known that the trouble and expense attending the assignment of terms, must be unavoidably less than if courts only were retained in London and York.

Reason VI.—The rules already in force in the Prerogative Court are welli adapted to guard against the chances of illegality, fraud, or imposition; therefore, that Court ought to possess the whole of the testamentary jurisdiction.—• (Evidence given before the Committee of the Houte of Commons.) . .- .

Answer.—The evidence of Mr. Freshfield (Solicitor to the Bank of England) given before the committee of the House of Commons,—that of Mr. Gwynne (Comptroller of the Legacy Duty Office),—and that of Mr. Maule (the Solicitor to the Treasury) given before the Ecclesiastical Commissioners, prove, that whatever the rules of the Prerogative Court may be, that Court has, in point of fact, afforded facilities to frauds and impositions which have been carried on in London to a considerable extent. The Right Honourable, the eminently respected, and learned judge of that court, has been very anxious to prevent the recurrence of such evils, and has established rules and regulations for the purpose. One of the principal of these is, that all commissions to swear executors and administrators, shall be executed before the rector, vicar, or officiating minister of the parish or chapelry, whore the parties to be sworn, or one of them, reside. It will be perceived, however, in a moment, that although well-intended, this regulation is no, adequate check. In populous parishes, (and to them the fraudulent are most likely to resort) a large proportion of the inhabitants are frequently personally unknown to the sedentary and unobtrusive clergyman—many are Dissenters who never approach the Church—and in watering places, such as Brighton,, Bath, Cheltenham, Leamington, &c. the regulation entirely fails in the accom-. plishment of the object intended, as parties are there only temporarily resident, and still sufficiently so to come within the effect of the regulation. The truth is, there can be no adequate guard against the commission of frauds in these matters, except by a system of local courts and local officers. The latter almost invariably personally know either the parties who wish to take out probates or; administrations, or the attorneys whom they employ. ,

Reason VII.—"In admitting testamentary papers to probate in common, form," say the Ecclesiastical commissioners, " 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."—(Page 22 of Report,)

Answer.—This observation may apply to the courts and registries of peculiars, but it does not hold good with respect to the diocesan and archidiaconal courts and registries, in which (as before stated) several thousands of grants pass every year. When, however, that part of the Report of the Commissioners comes to be acted upon, which will render inadmissible as testamentary dispositions, all imperfect papers, and establish one general method of execution of wills, devising both real and personal estates—there will be an end of this objection to the retention of the local testamentary courts.

Vol. xvir. No. xi. 4 T

« PreviousContinue »