RESOLUTION. (Hansard, 23 July 1860)

MR. DANBY SEYMOUR
said, he rose to move, as an Amendment, the following Resolution, That, in the opinion of this House, the state of the Ecclesiastical Law in England and Ireland, and of the courts in which it is administered, and especially the Act commonly called the Clergy Discipline Act, require to be amended and reformed, and that it is incumbent on the Government to direct a measure to be prepared for that purpose. When in the early part of the Session he brought in a Bill to allay these dreadful disturbances which had taken place in one of the parishes of the Metropolis, he received a notice from the vestry of St. George's-in-the-East, to the effect that no remedy would be applicable while the Ecclesiastical Courts remained as they were. These Courts were still between 200 and 300 in number, 56 of them being Diocesan Courts. Every offence against ecclesiastical law was commenced in one of those courts, in which the Bishop himself did not sit, but the Chancellor or Vicar General, whose duty it was to advise the Bishop. A large proportion of those Judges were clergymen, 53 but were possessed of the most slender legal attainments, and on the authority of Lord Cranworth he might say that in nine cases out of ten the rev. gentlemen were not properly qualified for their office. When the Bill of the noble Viscount's Government was introduced in 1856 great jealousy was evinced on the part of the Bishops at the increased powers proposed to be given to the Chancellors; but the object of the Bill was only to increase the authority of those functionaries and restore them to their ancient importance. It was proposed to reduce their number to six, and to pay them, not by fees, but by salaries of sufficient importance to attract to the office Judges of an ability calculated to bring the ecclesiastical law of the country into a creditable position. The present Chancellors were in most cases relatives of the Bishops; but considering the important duties they had to perform they ought to be Government and not episcopal appointments. The whole state of the ecclesiastical law was in great confusion, and those gentlemen might be well employed in reducing it to a system. In every one of the courts there was a separate registrar and staff of officers, some of whom received most lucrative allowances. In 1850 a Committee was appointed to inquire into the whole subject—that Committee was presided over by the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie), and it was ascertained in the course of their inquiries that two ladies had held the office of registrar. In 90 cases the duties of the office were discharged by deputies, and in 17 cases minors had been appointed registrars. The registrar of Norwich was the Rev. E. Bathurst, who was appointed at the age of ten, in June, 1825, and his income was £1,427 8s. 2d. per annum. The registrar of London was the Rev. R. Watson appointed at the age of eight, on the 20th of July, 1776, and receiving £495 a year. The registrar of Winchester, Mr. Brown-low North, was appointed in December, 1817, at the age of seven, in reversion, and of fifteen when he came in possession of his office; his income was £860. The registrar of Llandaff was also appointed at the age of five years. The amount annually levied on the public by these courts was £49,215 in England and Wales alone, many of the fees being illegal and some of them quite contrary to the canonical law. The gross revenue of the Prerogative Court in the year ending the 30th of March, 1848, was £30,832, of which £3,900 was paid 54 to the Judge, and £8,500 to the registrar, who did nothing whatever for the money; the duties of this office being discharged by deputies who received separate salaries. Frequently there was no regular table of fees, and they were levied according to custom simply and the pleasure of the Judge. It might be expected that for the handsome incomes these gentlemen drew the records of their several courts would be well kept, but the Returns showed that the contrary was the case. He would refer the House on this point to the appendix of the Report of the Ecclesiastical Courts Commissioners in 1832, which contained the latest official information on the subject; and he believed that the case was not now materially altered. According to that Report the records were in many cases kept in private houses; in scarcely any instance was the building fire-proof; in some it was damp; and in some the documents were exposed to the ravages of mice. But how were the fees levied? No less than £29,500 was derived in the shape of fees on marriage licences, and were a direct tax on the laity. The fees varied very much in amount, from £1 2s. in the diocese of Norwich to £2 12s. 1d. in the diocese of Worcester. That was a grievance which the Government themselves had recognized, and the remedy for which they had proposed from year to year. It could not be said by the clergy that this was altogether a matter which related to them, because as he had shown one-half of the money which went to support the courts and the officers attached to them was derived from a tax levied upon the laity. The mode of procedure which was adopted in these courts was very defective, and differed from that of all other courts. It was a remnant of the antiquated system of ecclesiastical procedure by libel and allegation, and involved processes the very names of which were not known to the greater number of the members of the legal profession. There was no trial by jury, and practice in the courts was confined to a select few. It was a close monopoly, and the system pursued was as disgraceful as that of the Palace Courts, which were swept away some time ago by the breath of public opinion. The delay was frightful, and as an instance he might refer to the case of Mr. Craig, which lasted four years, when the Judicial Committee decided there was no ground for the action, and Mr. Craig was dismissed on paying his costs. Again, the notorious case of the Rev. Bryan 55 King and St. George's-in-the-East reflected the utmost discredit on the ecclesiastical law and ecclesiastical tribunals of this country. The Rev. Bryan King declared that those Eucharistical vestments, which had engendered such unhappy disputes in his parish, were used in 50 or 60 other churches, and their adoption was still extending. The case of St. Barnabus Church was another illustration of the existing law. The proceedings were instituted in January, 1855, and, although prosecuted with diligence, it was only in March, 1857, that the judgment of the Privy Council was pronounced. The highest ecclesiastical authorities were dissatisfied with the state of these courts. What was the opinion of the Bishop of Cork with reference to this subject in a pamphlet which he had lately published? That rev. Prelate stated that, in his opinion, the present state of the ecclesiastical law and Ecclesiastical Courts tended greatly to afford shelter to grave delinquents, and to prevent the effectual punishment of immorality and the expulsion of irreligion. The report of the Upper House of Convocation stated that the present state of the law touching the discipline of the clergy was unsatisfactory and needed Amendment, and that the great delays which attended proceedings in those courts frequently amounted to a denial of justice. That took place in the year 1853. But the reform of the Ecclesiastical Courts was a measure which had been more or less contemplated ever since the Reformation. The veteran statesman, Lord Radnor, when Lord Folkestone, had taken the initiative of late years in the reform of these Courts. Even Lord Stowell himself, though a strong Tory, had taken steps for the reform of the Ecclesiastical Courts. In 1832, a Commission was appointed, consisting of most distinguished men, the result of whose labours was the Church Discipline Act of 1840. That Act was so total a failure that its machinery had literally never been used. In 1847, the Bishops made an attempt to amend or alter it, but without success. The Bishops, he feared, had too much prelatic pride, and wished too much for increased power, to undertake the necessary ecclesiastical reforms. He objected to the Church Discipline Act of 1840, that no suit could be originated under it without the Bishop's sanction, and that he complained of as a gross encroachment on the rights of the laity. As the law at present stood, although the Bishop might himself declare that idolatry was preached 56 in the church of St. Barnabas, no layman could initiate proceedings in respect of it. The Government when they introduced the Testamentary Jurisdiction Bill, in 1854, wore taunted for not having dealt with the other branches of ecclesiastical jurisdiction. They, therefore, brought in a Bill in 1855, and showed it to the Bishops, by whom it was disapproved. A Bill almost precisely similar was prepared by the present Attorney General, and introduced by Lord Cran-worth, in the House of Lords, in 1856; but again the Bishops, who had tried their own hands at legislation and failed, hindered what the Government proposed. The Bill of 1856 had for its objects to constitute one appellate tribunal for the Church of England and Ireland, India, and the Colonies; to establish central registries in London and Dublin for the custody of ecclesiastical instruments; to reduce the number of above fifty ecclesiastical Judges to four; and to provide an uniform and expeditious procedure; in short, as was stated by Mr. Stephens, who drew the Bill for the present Attorney General, it was intended to make justice in the Ecclesiastical Courts as cheap and quick as in the County Courts of the country. The real objection the Bishops had to that Bill of 1856 was, that it deprived them of their patronage; but the professed objection was that it would give too much power to the Archbishop and to the Crown upon appeals. The Bishop of Exeter led the opposition to it, and, although Amendments were offered to meet their views, the Bishops refused to allow the Bill to be read a second time. It was rejected by a majority of nine; eighteen English Bishops voted against it. The Irish Bishops, however, formed a noble exception to this. They unanimously supported it, and addressed a statement to Lord Palmerston, urging the necessity which existed for such a measure of ecclesiastical reform. At their request, a Bill for Ireland was introduced by the Earl of Derby's Government in 1859. It passed the House of Lords, and two readings in the House of Commons; but was stopped by the dissolution of Parliament. At last the present Government introduced a measure, mutilated and imperfect; but still a faint copy of what the Earl of Derby endeavoured to carry out far more effectually last year. Now, the Church Discipline Act of 1840 had failed to work satisfactorily, because no proper machinery was provided, no class of assessors, specially devoted to ecclesiastical law, no control 57 over the diocesan registries or regularity of procedure. The Bill of 1856 would have supplied all those defects. As the law now stood, there were in some cases three or four different Courts of final appeal. If a clerk were refused institution to a benefice, he might proceed in the Ecclesiastical Court, with an appeal to the Judicial Committee of Privy Council, although some point of doctrine might be involved in the case. Or the patron, whether the Crown or a layman, might proceed against the Bishop under a writ of quare impedit in the Court of Queen's Bench, with an appeal to the House of Lords. In such a case as that of the Rev. Mr. Gorham, involving the doctrine of baptismal regeneration, there might he three conflicting decisions by the three final Courts of appeal. But under the Bill of 1856, which the Government ought to have allowed the Attorney General to bring in again this year, a single Court of appeal was provided. Now, he (Mr. Danby Seymour) had proved that the Ecclesiastical Courts were too numerous and inefficient. Their supposed administration of justice was a mere satire on law and common sense. Their patronage had been abused; their fees were illegal and exorbitant, yet these Courts could not support themselves but by an unjust exaction from the laity for marriage licences. Their procedure was barbarous and obsolete; they were injurious to the interests of the Church and of morality. A case, then, for reform had been made out. There were two courses open to the Government:—they might either reform the Courts according to the Bill of 1856, or abolish them altogether, fusing them in the general administration of justice. It was the latter course he should like to see adopted. The testamentary and matrimonial jurisdiction had been taken from these Courts, and he did not see why they might not be also deprived of their other business. If the Bill of the Attorney General was necessary in 1856, it was much more so now. The only opposition to it in either House would have been by the bench of Bishops. If the Government were not afraid of their opposition in 1856, he wished to know why the present Session was to be allowed to pass without a Bill being brought in for their correction. At all events, he trusted that the Government would give a pledge that a Bill for the purpose would be brought in at the commencement of the next Session.

§ LORD FERMOY
seconded the Motion.

§ SIR GEORGE GREY
said, that the hon. and learned Member had invited the attention of the House to this subject under unfavourable circumstances. The House was very thin, and the Motion was made as an Amendment upon the Motion for going into a Committee of Supply; though it was quite obvious that the House was very much behind the usual time for the consideration of these Votes. The hon. and learned Member asked the Government to give a distinct pledge that they would bring in a Bill on the subject the first thing in the next Parliament; but what would be the value of such a pledge, since it was impossible at the present moment to foresee what subjects would demand the earliest attention of Parliament? He could, however, assure the hon. Member that it was from no indifference to the importance of the subject that he abstained from giving such a pledge. He, therefore, trusted the hon. and learned Member would leave the Government to choose their own time for dealing with the question.

§ MR. NEWDEGATE
said, that although he did not approve of the great change by way of a remedy which the hon. and learned Member for Poole had proposed, he thought that the House was indebted to the hon. Gentleman for the great research he had displayed in bringing the subject under their consideration. The evils, arising from the lapsed condition of the Ecclesiastical Courts, and indeed of the Ecclesiastical jurisdiction of the Church of England were such as urgently called for some measure of a remedial character. He had himself suffered from the complete collapse of the Ecclesiastical Courts, and he knew many other persons in the midland counties to whom the state of those Courts had been productive of an utter denial of justice. The expenses entailed upon Bishops, if they proceeded regularly with the trial of ecclesiastical offences in the regular Courts would be so enormous that they were fairly excusable for availing themselves of the powers vested in them by the Church 59 Discipline Act, and thus refusing to proceed to preliminary inquiries, which would only manifest their impotence. Many officers of the Ecclesiastical Courts were utterly incompetent to discharge the duties which the law imposed upon them. He did not want completely to break up the ecclesiastical judicial system of the country'; he wished to retain the authority of the Bishops, but to secure to them the advantage of the service of competent assessors and of a competent bar, and such compensation for their expenses, as would render procedure not ruinous to them. But immediate action, he repeated, was eminently needed in the matter. Under the existing state of things many of the laity were becoming alienated from the Church, and the Bishops were accused of a most arbitrary denial of justice, while the real fact was that it would be literally ruin to them to act in many cases, now that their incomes had been so enormously reduced.

§ LORD FERMOY
said, that it was not the fault of the hon. and learned Member that his statement was made at so late a period of the Session; for he had experienced the difficulty which all hon. Members unconnected with the Government felt of finding an opportunity to submit questions to the consideration of the House. So far from his learned Friend having acted unreasonably in bringing forward this question, he did not know any subject of a more practical character, or one to which it was more desirable that the attention of the Government should be given. The Government of the Earl of Derby, as well as that now sitting on the Treasury benches, was pledged to reform the Ecclesiastical Courts. He agreed with his hon. and learned Friend in thinking the measure which had been introduced for Ireland a weak and mutilated Bill, and that it would be much better to deal with the question in both countries simultaneously. What was required was that in the Ecclesiastical Courts justice should be administered as speedily and cheaply as in the County Courts, and he respectfully asked for an intimation on the part of the noble Lord at the head of the Government that a Bill, framed with this object, would be introduced early next Session.

§ MR. LEFROY
said, he hoped the Government would persevere with the measure they had introduced, which would be a useful and important measure for Ireland.

§ COLONEL SYKES
said, that as an Episcopalian, he regretted the scandals which sometimes occurred, and which were irremediable, from the fact that no power existed in any authority to punish the delinquents. He hoped that legislation would promptly take place.