§ Order of the Day for the Second Reading read.
§ LORD CRANWORTH, in moving the Second reading of the Bill, stated that it was founded on the Report of a Commission issued in the year 1832, when his noble and learned Friend opposite (Lord Brougham) occupied the woolsack. That 1075 Commission recommended the abolition of the ecclesiastical jurisdiction on two subjects—defamation and brawling, and to render persons charged with those offences amenable to the common law courts; and his noble and learned Friend five years ago introduced a Bill to carry the recommendations of the Commission into effect, so far as regarded defamation. That Bill, however, was confined to England; it did not extend to Ireland; and one object of the present Bill was to extend the provisions of that very useful Act to the sister kingdom. With regard to brawling there was no very exact definition of that offence that satisfied his own mind. According to the 6th of Edward VI. it consisted in making a riotous disturbance in any church or churchyard; and the punishment to be inflicted for the first offence was, that the party guilty was to be prohihibited ingressu ecclesiœ—a punishment, he feared, not very likely to deter those who were guilty of such an offence from its repetition—the punishment for the second offence was that the party guilty should lose one of his ears; but there might be those who had lost both ears, having been punished in this way more than once, and then they were to be branded in the face. This Bill, which had been introduced in the Commons and by them sent up to their Lordships, made the offence a civil one, and enabled the civil authorities to deal with it.
§ Moved, That the Bill be now read 2a.
LORD BROUGHAMsaid, that the Bill to which his noble and learned Friend had alluded, was the production of his hon. and learned Friend, Dr. Phillimore, than whom no one could be better fitted to legislate on this subject, from great experience in the Ecclesiastical Courts, and who had most ably performed his duty by carrying the Bill through the other House of Parliament. His noble and learned Friend had done perfectly right in extending its provisions to Ireland.
THE BISHOP OF EXETERsaid, he rose to oppose the Bill, and in the first place to complain that it had been introduced into the other House without the slightest explanation of its provisions or its grounds. He understood the noble and learned Lord (Lord Cranworth) to say that the object of the Bill was to carry out the recommendations of the Ecclesiastical Courts Commission of 1832; and it was true that that Commission recommended the extinction of the jurisdiction of the Ecclesiastical Courts 1076 over laymen; but he wished his noble and learned Friend had stated more fully and more satisfactorily the recommendation of the Commissioners. It might be inferred from the statement of the noble and learned Lord that the recommendation, of the Commissioners was simpliciter to get rid of the jurisdiction over the laity on these subjects of the Ecclesiastical Courts; but his noble and learned Friend must forgive him for reminding him that this recommendation was accompanied with a condition that with respect to the laity there should be given, in lieu of the jurisdiction of the Ecclesiastical Court, an indictment by which a person found guilty was to be liable to imprisonment; and he thought it would have been more satisfactory if that recommendation or some equivalent had been adopted in the present Bill—they ought not to remove the present remedy without some substitute. But he must frankly say that it had been his misfortune never to be able to see the reason for the recommendation so far as concerned the laity. It ought not to be expected, and could not be expected, that the Church would forego her right and her duty to tell the laity what was their duty; and, although it was a very disagreeable thing, when they departed from that duty in any important particular, to visit them with the censure of that Church. He was not desirous that these censures should be backed by any temporal penalties. The censures of the Church were intended pro salute anima—were intended to operate not on the body but on the soul. He did not coincide with the definition given by the noble Lord of "brawling." Violent and indecent behaviour did not constitute "brawling." Brawling was the interruption by words only of Divine service, and acts of irreverence in the course of the prayers of the Church. That was a very grave offence—it was a sin of a very high nature when wilfully and especially if pre-meditatedly done. The State at present gave the Church the power of pronouncing its own censure, which, in the first instance, was an admonition not to repeat the offence. If that was not effectual, and the party was contumacious, then they went on even to excommunication. It was true that that sentence of excommunication was followed up by an act of the temporal Legislature, which imposed grave punishment. He for one deeply regretted that any such punishment attended such excommunication—it weakened rather than 1077 strengthened the Church's authority. The punishment was six months' imprisonment. They ought, indeed, to be glad that the Legislature in the time of George III. had introduced a change and an amelioration in the term of imprisonment as formerly carried out; and he could wish that the Legislature of Queen Victoria would go further and relieve the Church altogether from the scandal of being practically prevented, in the present state of society, from exercising its proper spiritual powers by having the temporal penalty of imprisonment appointed to enforce them. They did not wish to be assisted in their jurisdiction by any penalties imposed by the State; they wished only to tell sinners that they were sinners, and to exhort them to repentance; and if they refused to repent, then to tell them further that they cease to be members of the Church of Christ, and must not be permitted to join in the communion of the faithful. He was astonished that the Commission of 1832 should have gravely proposed to give up that jurisdiction, though he wished it were totally freed from all temporal penalties. He had said that the sentence had been actually inflicted by the Ecclesiastical Courts in one recent instance, and that it had had a beneficial effect; and he must remind their Lordships that the ecclesiastical jurisdiction which was to be removed if this Bill passed was the only means by which it had hitherto been found possible to reach any one of the offenders connected with the riots in St. George's-in-the-East. That offender was not of the lowest class. He was known and summoned, and proceedings having been taken in the Ecclesiastical Court, the sentence was that he should be admonished not to offend again, and should pay a sum nomine expensarum—the costs of the proceedings. This sentence was passed on the 17th April, and by a coincidence which it is difficult to believe merely accidental, on the 19th the present Bill, abolishing all such jurisdiction for the future, was laid en the table of the House of Commons, but with absolute silence as to any of its objects, and it had been now introduced into their Lordships' House without any statement of the provisions of the Bill, or of the reasons which had made it necessary. He doubted, indeed, whether the noble and learned Lord had even once read the Bill he now wished their Lordships to read a second time. When he considered that the existing law to which he had adverted was the only one 1078 that could reach these and similar riots in St. Georgo's-in-the-East in a spirit of law, justice, and religion, it was monstrous to be now told that such a remedy was to be removed. He did not agree that the Church should be relieved of the duty of visiting sin with censure; and if the offender said, "I do not care for that," of telling him that he should no longer be allowed to be a member of the Church. They had no right to say that the Church should not proceed in her own courts to exercise purely spiritual jurisdiction. It had been stated that this Bill provided that the offender might be brought before the magistrate; but in truth there was no such provision.
THE BISHOP OF EXETERThat statement made him the more confident that the noble and learned Lord had not read his Bill; and he wished that he would do them the kindness of looking at it. Such a provision was just what he wanted. The statute of Mary enabled any one to bring such an offender before a justice of the peace, having first apprehended him upon the spot; and why this statute had not been had recourse to in reference to the scandalous proceedings in St. George's-in-the-East it was not for him to say. To him this was utterly unintelligible, particularly as they had heard that the Government functionaries were desirous to use all their means to put an end to such proceedings. By the present Bill the offender might be "convicted before two justices of the peace;" but how could they proceed under such a clause against the persons who were committing these riots? for they were of such a class that it was not known who they were, and therefore they could not be summoned. There were hundreds—he believed thousands—of children who were employed every Sunday night, in all sorts of riot, and insult, and outrage. The summoning of such parties was a mockery. Some few persons, indeed, who were supposed to be known, had been summoned, and then it turned out that they wore not known. Why had the statute to which he had referred not been brought into operation? and why had not the police been told that they had authority and power, and therefore the duty to apprehend those who were guilty of those disturbances of Divine service? This was distinctly the law of the land, but that law had not been once, as he believed, 1079 called into action. They were told that nothing could be done, and certainly for ten months nothing had been done; the consequence was that atheism and riot was the normal condition of a large district of the Metropolis. Could this go on with impunity, and would not the principle be enlarged so as to extend beyond religion, to law, to justice, and possibly to Parliament itself? The tendency of such a state of things was to destroy all law; they ought to put down these riots, and they must do it unless they would have the law in this country become a mockery. But those who from their official position were bound to endeavour to suppress these disturbances had found it consistent with their duty to decline doing so. He thought that it was very unfortunate that there should be any attempt to frame new laws until the effect of the old ones had been fairly tried; and he lamented that the law of the Church had not been put in force in reference to ornaments placed in this church—a question with which he believed the law was perfectly able to deal. The clergyman was not bound to provide vestments—they were to be provided for him by the churchwardens. But the main thing which seemed to attach to this individual was the introducing of strange ornaments into the church; a cross was placed on the altar, and flowers and other things were introduced in various parts of the church. Whether these things were right or not he would not himself undertake to say, but the law of the Church was clear that the clergyman had no right to put the ornaments there. He spoke not lightly upon this subject, for he had not only had a legal opinion upon the matter, which fully justified his own, but he had written to that distinguished man the Judge of the Court of Arches, and therefore the highest appellate authority before whom the question could go, and that very learned person fully confirmed the view which he (the Bishop of Exeter) had taken. Some things were prescribed, and some things were used without prescription; but a clergyman had no right to introduce any new ornaments; the ornaments as he had said, were entirely under the control of the churchwardens, and that control carried with it a duty. There were special ornaments which it was the duty of the churchwardens to place in the church, and to see that they were used even on the Lord's table. It was not, however, for 1080 them to introduce any novelty—and much less had any one else the power to do it—without the authority of the Consistorial Court, given by means of a faculty. That faculty costs a sum of £7 or £10 to obtain it, and, therefore, the practice was where all parties agreed, such as in the having a curtain, or any other trifling matters, to dispense with a faculty; but when the peace and comfort and decency and religion itself, of a district were at stake, he must say that the persons who obtruded these things ought to be told that they wore exceeding their legal powers. It was, indeed, very possible that when these things had been once placed in the church they could not be removed without a faculty, however illegal they may have been in the beginning; but upon that he gave no opinion, though, as to the right of the churchwardens to have charge of the ornaments in the first instance, he had, as he had said, the sanction of the highest authority. If the clergyman in question had been called to an account, and threatened with an ecclesiastical commission against him in the first instance—he was sure his right reverend Brother would forgive him for the suggestion—he would have been brought to his senses, and the country would have been spared a great deal of the scandal which had arisen. On the other hand he must repeat that he lamented deeply that nothing had been done to stop the parties who had been guilty of those riots. He would refrain from entering further into this painful subject, but he could not express in too strong terms his sense of the duty which existed of putting down these enormities of which all were so much ashamed. Under these circumstances he would move that the Bill be read a second time that day six months.
§ Amendment moved, to leave out ("now") and insert ("this day six months.")
THE BISHOP OF LONDONsaid, their Lordships would, perhaps, excuse him for making a few remarks upon this question. He had not been in the slightest degree aware that this Bill had any connection with those unfortunate outrages which had disgraced a portion of his diocese; whether there was or not the slightest connection between the introduction of this measure into the other House of Parliament and those outrages he was not prepared to say. He thought, however, that it would have been well if the heads of the Church had been made 1081 aware that this Bill was passing through the other House of Parliament, as they would then have had time to examine it. He, and he believed his right rev. Brethren, had not seen the Bill until that day, and therefore he had no doubt, that the noble and learned Lord would have no objection to let several matters in the Bill stand over for consideration until they went into Committee. What his right rev. Brother (the Bishop of Exeter) had said in reference to the Ecclesiastical Courts generally was so important that it could not be discussed without consideration. He hoped that he should be allowed to say a few words in reference to those unfortutunate circumstances which had been referred to. He thanked his right rev. Brother for having pointed out the real state of the law on the matter, and he would only say that the words which his right rev. Brother had used were well worthy of attention, and from his known knowledge of the law and his experience in carrying it out, he hoped that those words would have the desired effect with those whom they wished to bring under obedience to the law. His right rev. Brother had pointed out that no change could be made in the arrangements of the church except with the sanction of the Ordinary. In times of peace, however, the Ordinary was generally willing to allow innocent changes to take place; and no doubt in many churches of this Metropolis, no evil being anticipated, during the time of his revered predecessor, many such changes were allowed. For his own part he did not think it would have been becoming in him to introduce a new state of things at once, and to insist that every one of the clergy of his diocese should return to the exact arrangement in their churches which existed at the time of consecration unless it could be proved that every alteration had been made by virtue of a faculty. Among other churches in which alterations had been made was this unfortunate church of St. George's-in-the-East, and until it became absolutely necessary to regard it as an exceptional case he was willing that this church should be treated like any other of the diocese, and that the changes should be allowed to continue. But when he perceived that there was a disposition to carry these changes further, then, as his right rev. Brother had pointed out, it was his duty, and he did, in fact, send his officer to inspect the church and report to him as to certain changes which had 1082 taken place within the week preceding his visit; and finding that these changes had been made without the authority of any faculty, lie gave orders, under his hand and seal, that those things that had been put up should be summarily removed by the proper officers. That order was carried into effect. Unfortunately, the execution of the law in the Ecclesiastical Courts was a slow process. His right rev. Brother had pointed out that his duty was to take some proceedings as regarded what occurred on last Easter Sunday, when certain flowers and other decorations were placed upon the Communion table. He was glad to tell his right rev. Brother that he had taken such proceedings. Owing, however, to the ecclesiastical law being so slow, an offence might be committed in August, and every one might be aware of it by reports in the public newspapers, and it might even undergo investigation in other courts of justice; yet, though no effort might be omitted and the proceedings carried on with all possible rapidity and with no inconsiderable expense to bring the offenders to justice, August might be succeeded by Christmas, Christmas by May, and May might be verging into June, without the public being in possession of the fact that any proceedings whatever had been instituted. Now, he could illustrate this by stating what had taken place in reference to St. Georges-in-the-East in the Ecclesiastical Court. Proceedings had been taken against a person, who, he believed, was one of the first of the offenders in point of time; the offence was committed not later than September; and yet it was not until very recently that this case had been adjudicated. But slow as these Courts were, slow as venerable, he had no doubt that when their vengeance did come down on a victim, it was a matter not to be trifled with. People were in the habit of thinking that these Courts might be trifled with, but the most hardened offender would not feel indifferent when he came to pay his lawyer's bill. As to their spiritual power, all right-minded men would be ashamed to be put in the position of not being allowed to enter their church: but the enormous expenses wore perhaps more regarded in this day, the costs of the lawyers, the pecuniary penalties which might be imposed nomine expensarum, and the imprisonment which would follow unless the fine were paid, constituted a very heavy punishment. On the contrary the 40s. penalty imposed by this Bill would be 1083 nothing to a rich man in case he were foolish and weak enough to take part in these disturbances, and he thought it absolutely necessary to consider in Committee whether the proposed penalty was sufficiently severe. One other matter to which his right rev. Brother had called attention was of the deepest importance, namely, that this Bill, professing to embody the recommendations of the Report of the Commissioners omitted this most important point, that it should apply only to lay persons; and he thought that it would therefore be necessary to insert the words, "any person not being a clerk in holy orders." Brawling embraced a variety of offences, and it often happened that the only mode of bringing a clergyman to justice was to charge him with the offence of brawling; and in some instances of brawling the sentence might be a suspension for three years. It therefore followed that it would be ridiculous that for such an offence a clergyman should be brought before a magistrate, instead of before an Ecclesiastical Court, and that he should be fined 40s., instead of being suspended for three years; in addition to inserting the words he had mentioned, in reference to clergymen, he thought it would also be necessary to consider whether the penalty proposed was sufficiently severe as regarded laymen.
§ LORD CRANWORTHsaid, the last thing he could have apprehended was that the Bill would be charged with giving rise to the riotous and disgraceful proceedings in St. George's-in-the-East; he could likewise assure his right rev. Friends that the measure had not been framed with any intention of screening the low rabble who were guilty of such misconduct. He had been informed that the Bill was, in fact, framed at the end of last Session, but that it was too late then to introduce it. He might further add that his hon. Friend who had brought the Bill forward in the other House had communicated with leading men on both sides of the House, who expressed their entire approbation; and therefore, though his hon. Friend stated fairly and candidly what the Bill was, as there was no opposition it' did not lie in his power to create a discussion. Whether the penalty proposed by the Bill was or was not sufficient was not a matter affecting the principle of the Bill; that was a detail to be discussed and settled in Committee. The principle of the Bill raised this question, whether the Ecclesiastical Courts, possessed as they were in some 1084 cases, and frightfully powerful in others, by punishing persons incidentally by enormous costs—whether the Ecclesiastical Courts maintained a satisfactory jurisdiction and mode of operation; or whether a more simple course was not desirable of dealing with what was really a civil offence before civil tribunals. The right rev. Prelate who had moved that the second reading of the Bill be deferred for six months could not feel more strongly than himself the necessity of preventing offences caused by the introduction of practices at variance with the ancient usages of the Church; and he remembered being associated with the right rev. Prelate on a memorable occasion, and going with him in opinion as to what were the ornamenta—he used the Latin word, because it expressed not merely "ornaments," but "furniture"—what were the ornamenta of the church—and they were agreed that no ornamenta were allowable, or at all events advisable, but those which were sanctioned by Act of Parliament or the canons. What he now asked of their Lordships was that they should give the Bill a second reading; and he would, in that case, engage not to move the Committee till Tuesday week, in order to give the right rev. Prelates a full opportunity of considering the measure, and he would be ready to listen to any suggestion from them with the most respectful attention.
THE BISHOP OF EXETERsaid, that after the explanation of the noble and learned Lord, he would withdraw his Amendment.
§ LORD EBURYremarked that if, as had been observed, the Ecclesiastical Courts were slow in their operation there was one thing that was much slower, and that was the amendment of the law. This matter had been under discussion in Parliament as long as he could remember. The riots had been carried on in St. George's-in-the-East a long time, and no remedy had been applied. In presenting some petitions on the subject a short time ago, he suggested that the law should be looked into, and he hoped that means would be discovered for removing the scandal which was now doing immeasurable injury to the Church.
THE LORD CHANCELLORsaid, that as it seemed to be understood that the Bill was to be read a second time he refrained from saying a single word on its merits; but he could not refrain from directing attention to the state of the administration of the ecclesiastical law. According to the 1085 law, as it stood at present, it was a great hardship that the whole costs of a prosecution, instituted by a Bishop for the good of the Church, should fall upon the Prelate, who acted in the matter only in obedience to the law.
§ Amendment (by leave of the House) withdrawn. Original Motion agreed to.
§ Bill read 2a accordingly, and committed to a Committee of the whole House on Tuesday, the 22nd inst.
§ House adjourned at a Quarter past Seven o'clock, to Monday next, Eleven o'clock.