HC Deb 25 February 1862 vol 165 cc710-20

said, he rose to move that it was expedient that the Ecclesiastical Statutes be revised with a view to their consolidation, and he did so upon two grounds. The first was, that ecclesiastical matters were at length claiming the attention of the Government, and the Home Secretary had given notice of a Bill for the reform of the Ecclesiastical Courts, to which his own Motion might be said to be supplementary. The second ground was, that the consolidation of the statutes was regarded as a work which ought to occupy the attention of Parliament, more especially at a time when it was not occupied with the consideration of subjects of an important external character, and when the Session was likely to derive its character from the promotion of measures for effecting important internal improvements. The Commission for Consolidating the Statute Law had resolved, after mature discussion, that the best way of carrying out this consolidation was not by any general system, but by choosing groups of statutes devoted to one particular subject, and consolidating each group separately. With regard to the consolidation of the statutes generally, the first Motion was brought forward by Lord Brougham in 1833, when a commission was appointed to consolidate the criminal statutes. They reported in 1835, and then the matter lay dormant until 1853. In 1854 another commission was appointed, and existed till 1859, when it ceased. It made several valuable reports, and left many materials for future consolidation. The result was, that there had been three great consolidations of the law of late years — the Bankrupt Act in 1849, which paved the way for the amended Act of last year; the Customs Act in 1853, when from 1,000 to 1,500 statutes were consolidated; and the criminal law consolidation of last Session, which had also given universal satisfaction. He then asked the House to consolidate the Ecclesiastical Statutes, without which the reform of the Ecclesiastical Courts would be extremely imperfect. These statutes had been collected by an eminent ecclesiastical lawyer, Dr. Stephens, in two large volumes, containing 2,270 octavo pages. The collection extended up to 1846, and if these statutes were brought together at that time, they would probably occupy 3,000 pages. Of the ecclesiastical laws, one class related to religious and the other to temporal matters. In the first division were all the statutes relating to the Book of Common Prayer of the Church of England, and the Thirty-nine Articles, and such other statutes as might be considered as the foundation of the Church both in England and Ireland, or illustrative of her history. He had explained to the hon. and learned Solicitor General that he was willing to amend his Motion, so that none of these statutes should be in any way touched by it. The distinction between the temporal and religious statutes was well known to ecclesiastical lawyers, and might be made without any difficulty. It was possible to keep them on the Statute Book; but collected and bound in a separate form. The second class of statutes were those relating to temporal matters. These were far more voluminous than the others; there were, he believed, about 2,300 of them altogether; there were 26 Church building Acts; there were 40 or 50 Acts relating to glebe leases, clergy leases affecting church property in England and Ireland; there were 78 Acts relating to Church discipline. It might be thought desirable not to touch the last class of Acts, and the same might be said of the Acts relating to dilapidations. They might however be consolidated without alteration. Then there were 39 Acts relating to the augmentation of benefices; to the residence of the clergy, 31; and there were 11 statutes relating to vestries. Many of these Acts had been recommended as special objects of consolidation by the Statute Law Commission in its various reports. The number of these statutes that had been passed, especially since 1800, was perfectly extraordinary. In the reign of George IV. the number of statutes passed relating to ecclesiastical matters was 265; in the reign of "William IV. There were 136, and in the present reign, down to 1846, there were 173 passed. Taking as a standard the average number of statutes passed in the three years preceding 1846, there had been passed since then about 432 statutes. The total number of statutes was about 2,400, and, deducting the purely religious and eleemosynary statutes, that would leave about 2,283 to be considered. Then allowing 700 for repealed statutes, there would remain about 1,500, which could be consolidated without in any manner interfering with the religious statutes. The Statute Law Commissioners stated that of the Acts passed since 1800 three-fourths had either expired or become obsolete. That report was signed by men of great eminence—by Lord Lyndhurst, Lord Brougham, Lord Stanley, and the present Lord Chancellor. But it was perfectly indifferent whether the number was 1,500 or 500: if it was large, it made it imperative on the Government to consider how they could be presented in a more compendious form; if the number was smaller, there was no difficulty in the matter. In either case, when the Ecclesiastical Courts were occupying the attention of the Government, the ecclesiastical law ought also to be considered. He would remind the House that one of the last things it did in the last Session was to pass a Bill repealing many hundreds of obsolete statutes, with the object of preparing a revised edition of the Statute Book, in which the laws of the land might be presented in the most compendious form possible. He asked the House to carry out that intention; the present was a fitting time for the work, as there was not likely to be any urgency or press of business to prevent it. Since the Statute Law Commission expired, two gentlemen of great learning and ability had been employed in the expurgation of the Statute Book; that was, in picking out the expired, repealed, and obsolete Acts; they were beginning at the beginning of the Statute Book, and going gradually through it down to the present time. He need not say they had not advanced far in their labour. Some years would probably elapse before they completed their work. But their labour had nothing to do with the Motion he submitted; because their task was confined to the expurgation of the Statute Book; they were not employed at all on the consolidation of the statutes that remained. What he proposed was more comprehensive; it was both to expurgate the statutes relating to temporal ecclesiastical matters, and to consolidate those statutes that remained into-the smallest possible compass. Now, the ecclesiastical law was a particular study, and a matter of special knowledge. It involved the deepest interests, both of the clergy and laity. The revision should therefore be confided to special hands, and treated as a special subject; if accomplished, it would be a great step gained towards the consolidation of the whole statute law, and would be a reform that, he hoped, would prepare the way for an English code. He was glad to find that the Government intended to propose a reform of the Ecclesiastical Courts; but there were two evils to be remedied—bad law and bad judges. The reform of the courts would touch only the judges, of whom nineteen out of twenty had been declared by high authority to be incompetent to their office. The reform would not touch the other evil of bad, inconvenient, and expensive law, under which it was often said it was better to submit to a wrong than resort to such law to obtain a remedy. It might be said that the state of the Ecclesiastical Law was not a real grievance, or that the grievance was only felt in a few cases. But on this point a distinguished prelate, whose merit had received a just reward by one of the last Acts of the patronage of the present Government, the Bishop of Killaloe, had stated that the present state of the Ecclesiastical Law and the Ecclesiastical Courts tended to shelter great delinquents and render difficult the expulsion of religious error; and within the last week the Record, the organ of that party in the Church from which the Government had selected several of the prelates who adorned the episcopal bench, had declared that the Ecclesiastical Law, with its discordant statutes and anomalies, was enough to warrant any amount of indignation. That law governed 20,000 clergy, and the laity were deeply interested in it, both ecclesiastically and in a pecuniary point of view. The lay patronage amounted to nearly £2,000,000, all of which was governed by that law, but neither the clergy nor the laity were able to ascertain what their rights or liabilities were, without going to an ecclesiastical lawyer. It was perfectly possible to make that law clear and plain. That was the opinion expressed by the Lord Chancellor when in that House, and he did not believe that the noble and learned Lord had changed it since his elevation. No fresh constitution of the Ecclesiastical Courts would do that. What was needed was the consolidation of the Ecclesiastical Statutes as proposed by his Motion. A work like that would stamp the present Session, for which at present there was no work provided. As yet there were literally but two Bills of any importance before them, and when they had passed the Highways Bill and the Bill for making the road across Ken sing-ton Gardens there was no reason why hon. Gentlemen should not be allowed to return to their constituents. Since his elevation to the Woolsack, Lord Westbury had endeavoured to be a great law reformer; it was in that capacity that he wished to be handed down to Parliament. He had much work before him, but to do it all he would require the strenuous support of the House of Commons. Public attention had been recently called to the work of consolidation in a remarkable speech delivered by one of the most rising statesmen of the day, the noble Lord the member for King's Lynn. He told his constituents that one of the most important works which the present Parliament would have to undertake would be the consolidation of the statute law, and, from the opinions which were known to be entertained on the subject by some hon. Gentlemen on the other side of the House, there was no doubt that if the party opposite came into power, that would be one of the first measures which they would take up.

Motion made, and Question proposed, That it is expedient that the Ecclesiastical Statutes be revised, with a view to their consolidation.


said, he quite agreed with the hon. Gentleman that the subject to which he had called attention was a large and important one, and that in several of its branches there could be very little difference of opinion as to its being desirable to improve the law. But to agree to an abstract resolution in the terms proposed by the hon. Gentleman would be inexpedient and productive of no advantage. The hon. Gentleman had referred to the very learned and able publication of Mr. Stephens, which obviously had suggested to him the terms of I his original Motion. That Motion was for the consolidation of the Ecclesiastical and Eleemosynary Statutes, which happened to be the title of that learned gentleman's voluminous work. He was not surprised that his hon. Friend, on taking up that work, should have been alarmed and astonished at the great magnitude of the Ecclesiastical and Eleemosynary Statutes. His hon. Friend had accurately stated that these two volumes contained 2,270 and odd pages, and that, if continued down to the present time, the work would contain somewhere about 300 more. The statutes mentioned in them were 2,283, and considerable additions had since been made to the number. No doubt, the first exclamation of hon. Gentlemen would be, "What an appalling mass of statutes, and what enormous need there must be for consolidation." But if they would take the trouble to look a little more carefully into the volumes, their alarm and astonishment would be considerably diminished, because it would be seen that almost every statute became an Ecclesiastical Statute under the touch of Mr. Stephens. A close examination of the Statutes comprised in the book immediately repelled the idea of consolidation. Not only did Mr. Stephens's volumes contain those Acts which most persons would recognise as being part of the ecclesiastical law — Acts relating to the constitution of the Church, its primary and normal relations to the State; Church Discipline Acts; Church Building Acts; Acts relating to tithes and commutation of tithes; Acts relating to cathedrals, bishops, deans, and chapters, and the like; but in addition to these a great part of the bulk of the book consisted of Acts which only referred to ecclesiastical matters in the most partial and incidental manner. For instance, the last Statute of Limitations contained a clause which applied to ecclesiastical property; therefore the Statute of Limitations appeared in Mr. Stephens's book. The Municipal Corporation Act was also there, because municipal corporations had advowsons which required to be sold. All the Acts relating to the registry of births, deaths, and marriages, all the Marriage Acts, all the Burial Acts, were also mentioned. There also appeared in it the Acts for the government of Canada, and the Act for providing for the regency of the kingdom in case of Her Majesty having been removed while the heir to the Crown was a minor. Not only that; but his right hon. Friend the Chancellor of the Exchequer would be surprised to hear that his old friend the paper duty found a place there. It so happened that books of a certain description, published at the two Universi- ties, were exempted from the paper duty, and the Act concerning the paper duty therefore, figured among the Ecclesiastical Statutes. The Metropolitan Police Act was there, because it contained provisions forbidding certain things being done on the Lord's Day; the Prisons Acts, because they regulated the appointment of chaplains; the Bakers and Sale of Bread Act, because bakers might not sell bread on Sunday; and the Evidence Acts, because parishioners were empowered to give evidence in certain parish cases. The House would thus see at once that under the name of Ecclesiastical Statutes many things were brought together which in no essential point came in contact either with the Church, the clergy, or with religion. These, instead of being proper subjects for consolidation, absolutely repelled consolidation, and to attempt it would be to create confusion and not order. At the same time, there was left a certain residuum more properly ecclesiastical, and that divided itself into various branches. He could not for a moment adopt his hon. Friend's division into religions and temporal. There was hardly an Act on the Statute Book to which that division was appropriate. Except so far as the services of the Church and the Thirty-nine Articles were concerned, there was hardly an Act which was not, primarily and properly speaking, temporal and concerning temporal matters. The great constitutional statutes which fixed the relations of Church and State were one class of Ecclesiastical Statutes; and as he understood, that his hon. Friend did not think it expedient to tamper with them, they might be dismissed from consideration. He then came to those statutes—and they were not so numerous as his hon. Friend supposed—which related to Church discipline, and entered into the body of the special law to which the clergy were subject. As to the administration of that law, there was undoubtedly considerable room for improvement, but there was no uncertainty as to what the law was. And here he could not help observing that much of the latter part of his hon. Friend's speech had reference rather to the improvement of the law than to its consolidation, and the pamphlet of the right rev. Prelate he quoted alluded to the evils of the present law and the amendments which it required. That was a delicate and difficult subject, and any one who successfully undertook it would be a benefactor to the public.

But amendment ought surely to precede consolidation; it would be desirable to get the law into the state in which they wished it to be before they proceeded to consolidate it. The practical question when dealing with consolidation was, what were the branches of the law which were in a state in which it was at once practicable and convenient to consolidate the scattered statutes for the purpose of putting the law into a clearer and more legitimate state. He was far from denying the expediency of performing that process in respect of some portions of that great mass of law which was grouped together under the name of ecclesiastical, but if the Government committed themselves to doing it as to the whole, they would be giving a most idle promise, which there would be no chance of their redeeming in the current or even in a dozen Sessions. There were some things which fell within the general scope of the Motion which it would be expedient to do, and his hon. Friend would have done good service in pointedly calling attention to them. In fact, he believed he did not state too much when he stated that the Government would profit by his suggestions, and would direct their attention to the consolidation and revision of the law upon those topics. For instance, the Church Building Acts were extremely numerous; they related to an important subject, and occasion was constantly arising for reference to them. They were a very ill-drawn set of Acts, each prepared without due consideration of the others, and their consolidation and revision would be attended with great advantage. He thanked his hon. Friend for having directed attention to that subject. It would not be overlooked by the Government, and he hoped that the day was not far distant when a Bill would be presented for the amendment and consolidation of that purl of the law. To the subject of residence houses, which was closely connected with that of church building, attention might also, with great propriety, be directed. Nor did he say that the Government should stop at those points, or that other branches of the law kindred to them might not properly be dealt with. What he submitted was, that it was not expedient for the House, by adopting this Motion, to pledge themselves to a very great undertaking, which could not be entered upon without a large staff and a very considerable expenditure, in addition to that which was now being devoted to the progressive work of the improvement of the law. A specimen expurgation statute was passed last Session; two gentlemen of very great ability and aptitude for the work were now engaged, under the direction of the Lord Chancellor, in the continuance of that work, and his Lordship hoped during the present Session to submit to Parliament a Bill which would remove from the statute book all useless, obsolete, and repealed statutes which had been passed between the time at which legislation commenced and the end of the reign" of Henry VII. That would be no inconsiderable progress, and the work would go on with as much expedition as was consistent with its careful and conscientious performance. Surely, it was desirable that before consolidating the Ecclesiastical Statutes a similar process should be applied to them. He thought that his hon. Friend might leave the direction as to the order of that work to those who had it in hand; and he would remind him, in conclusion, that the commission to which he had alluded did not recommend the undertaking of this Herculean task of a general consolidation of everything which could be called ecclesiastical law. They preferred the course which the Government thought it morewise to adopt—that of dealing with particular subjects on principles similar to those on which they had constructed other Consolidation Acts.


said, he entirely sympathized with the motives which had induced his hon. Friend to bring the subject before the House. One more important, he thought, could not engage their attention. He concurred, however, with his hon. and learned Friend the Solicitor General that it would be inexpedient for the House on a matter of such magnitude to commit itself to the terms of a somewhat vague resolution. The Solicitor General had placed the real question in a. very plain and intelligible form before the House, and had promised on the part of the Government that as regards the statutes relating to church building, they would at once apply themselves to the work of consolidation; and those statutes certainly required, more than many others, to be so dealt with. He had also intimated that the statutes relating to residence should be consolidated, and that other groups should be dealt with in u similar manner. He (Mr. Freeland) thought that this was the proper course to pursue to effect a few simple reforms in the law, and to present results in a definite shape to the country. He thought that this would prove a far more satisfactory course than launching out into vague resolutions, the scope of which the country could not appreciate. He hoped that the Lord Chancellor would maintain in another place his character as a law-reformer. "Under the circumstances, he hoped his hon. Friend would not press his resolution to a division.


said, they had several immense volumes of statutes on ecclesiastical law which might he reduced within very small limits; and he believed that if they were consolidated, and the repealed Acts taken out of the way, it would be a boon to the student, the profession, and the country at large. He was glad to see a prospect of the Church Building Acts being reduced to something like an intelligible form. He was sure the Lord Chancellor was in earnest in the matter, and he hoped now something would be done. At the same time he trusted that the Government, in prosecuting legal reforms, would not confine their attention exclusively to ecclesiastical measures.


said, they had often been promised consolidation, not only of the Ecclesiastical Statutes, but of the laws generally. And he wished to know, before they went into the matter before them what had been done in respect to the consolidation of various other laws? He was aware that, at the instance of the hon. and learned Gentleman the Member for Suffolk (Sir FitzRoy Kelly), several gentlemen had been employed to condense and consolidate various branches of the law. Among other subjects taken up, a Bill had been prepared embracing the whole of the law with regard to aliens. The measure passed last year was not strictly an Act for the consolidation of criminal law, but only of what were commonly called Sir Robert Peel's Acts; and, owing to the course which had been adopted in consolidating with them certain portions of Lord Campbell's Acts, considerable practical inconvenience had arisen. Some of the clauses only having been repealed and others left standing, it became necessary to consult two Acts for the future instead of one.


said, he could not take credit for having induced the House to adopt any species of law reform. He had only been instrumental in getting rid of the Commissioners, and he felt glad at having done so, because, so long as they occupied the ground, nothing was done in the reform of the law. He thought they ought to proceed first with the expurgation of the old statutes, and then go on with the consolidation of the remainder. With regard to the matter now under consideration, he was of opinion that his hon. Friend had done good service in bringing forward the question, and he hoped he would accept what he might call the pledge of the Government, and alter the wording of his Motion, so that it would stand as a simple declaration in favour of the consolidation of these Acts.


said, that while not going to the full extent with the argument of the Solicitor General he thought that the instalment which the hon. and learned Gentleman had promised would do something. The fact that the Solicitor General called Dr. Stephens's book a jumble of everything, showed the necessity for a complete consolidation.


I meant no disrespect to Dr. Stephens.


said, he knew no reason why the Ecclesiastical Statutes might not be consolidated in one or two years. He ventured to express a hope that the Church of England and that of Ireland—or, more properly speaking, "the United Church of England and Ireland"—would be dealt with as one. If the Government did not treat them as one, but dealt with the Act of Union as waste paper, he hoped they would call together the Irish Parliament to deal with Irish Church matters.


in reply said, that he could not accept the amendment proposed by the hon. Member for Surrey, because he thought there was more to be hoped from the promised measure of the Solicitor General than could be got from what the hon. member (Mr. L. King) proposed. As he understood, there was at present no work of consolidation going on, but only expurgation by two gentlemen. If that state of things were allowed to continue, half a century might elapse before the desired object was accomplished. The Statute Law Commissioners had reported that, to a great extent, amendment and consolidation might go on together. After what had been stated by the Solicitor General he would, with the permission of the House, withdraw his motion.

Motion, by leave, withdrawn.