§ Order for Second Reading read.
§ MR. ASSHETON CROSS, in moving that the Bill be now read a second time, said, that it was not his intention to press the Motion to a division, as he felt it would be hopeless to attempt to carry the measure this year; but in consequence of the great Care and attention which had been bestowed on it "elsewhere," he felt it his duty to make a statement on the subject, in order to prepare the way for some further step next Session. He also wished that an opportunity might be given for some discussion upon it. Its object was to remedy the great delay and expense which attended all ecclesiastical proceedings, and to improve the existing state of things under which a large amount of fees was collected from persons scarcely able to pay them, while a small amount of work was done in return. He would not enter into the state of the Ecclesiastical Courts in former years, for the Act of 1840 effected a great improvement 189 in the previous condition of things; but, nevertheless, a great deal had still to be done before those Courts could be put into a proper state, and the expense and delay of conducting suits there could be put an end to. The delays and expense of the Ecclesiastical Courts were altogether indefensible. Since 1867 rules had been passed regulating the procedure that materially tended to shorten the delay and to diminish the expense of suits, and the Bill proposed to go farther in both those directions. He would give one or two instances of the expense and delay of these Courts as at present constituted, and also of the great expense which Bishops had to incur in instituting proceedings in them. In the Purchas case the costs amounted to £5,000, but no one was able to enforce the judgment; and in the Bennet case the costs, though not taxed, would, he was informed, exceed £8,000. No doubt, in those cases large sums had been paid for the assistance of eminent legal authorities; but putting that aside, the expenses, independent of delay, were such that the House ought not to tolerate its continuance one moment longer than was actually necessary. Indeed, the most rev. Primate the Archbishop of York had publicly declared that "endless delays and consequent miscarriages of justice" were the result of the present constitution and procedure in the Ecclesiastical Courts, and he recommended that they should be assimilated to Common Law Courts. Beyond that, however, a convincing argument that a reform of these Courts was actually wanted was to be found in the number of serious attempts that had been made to legislate and pass Acts for the purpose of removing the matters of injustice complained of since 1840. The Bishop of London introduced a Bill in 1847, 1848, and 1849, which had to be abandoned. The Government then took up the subject, and the Lord Chancellor of that day (Lord Cranworth) brought in a Bill for the purpose of regulating these Courts, but it was lost by a majority of 8. The most singular part of the case was, that whereas the whole of the English Bishops voted against it, all the Irish Bishops voted in its favour. In 1869 the Earl of Shaftesbury took it up and introduced a Bill, and the Archbishop of Canterbury brought in another. Both Bills were referred to a Select Committee, 190 who reported that one of the Bills should be proceeded with, but owing to want of time the Bill fell through. In 1870 the Earl of Shaftesbury again brought in his Bill, but it being said that the financial basis of the measure was unsound, in order to obtain the required information the Bill had to be put off till 1871; but owing to the illness of the Archbishop of Canterbury it did not then come on. This Session it was again introduced by the Earl of Shaftesbury, and it was to that Bill he asked the House to give a second reading, although he could not say he assented to all its provisions. The fees received annually by Bishops in the shape of visitation fees amounted to £880; by their secretaries, to £10,648; by their chancellors, to £8,600; by their registrars, to £21,500; by their apparitors, to £1,166; by their surrogates, to £14,500; and by their proctors, in the shape of compensation, to £2,500. In the archdeaconries the fees amounted to £11,999, making, in all, £71,794 7s. 6d. Taking the 27 dioceses, that gave to every Bishop's secretary £400, every chancellor £300, every registrar £800, every apparitor £43, the surrogates £530, and every archdeacon's official £300 for doing diocesan work during the year; and it almost appeared as if these officers had been created for the express purpose of swallowing fees, and the fees were created for the express purpose of being swallowed. The amount of practical work to be done could be done better and very much cheaper, for there were fees paid to these officers when practically there was no duty attached to the work they were supposed to perform. He wanted to make the various officers more useful, and to pay them according to the work done. The actual work done by the officials of these Courts in 1868, in suits for dilapidations, sequestrations for debt, and the like, was very small, amounting only to 21 cases; in 1869, to 12; in 1870, to only 6. In 1868 there were 6 appeals entered before the Judicial Committee of the Privy Council, and I only was heard. In 1869 5 were entered and 4 heard; in 1870 only 3 were entered, and 2 heard. The diocesan work, such as issuing faculties, &c., in 1868, related to 159 matters; in 1869 to 174; and in 1870 to 169. In fact, the whole of the business could be done by a much less expensive staff than 191 existed at present. The fees were drawn from various sources; from marriage licenses there were received nearly £40,000 per annum; from the institution and ordination of clergymen—a class of persons least able to pay fees—there was exacted £13,773; for visitations, and matters of that kind, £13,000; for consecration faculties, &c., £3,300; and for miscellaneous diocesan business, £1,800; and for contentious business, about £500 per annum. The fees were different in all the dioceses, instead of there being an uniform charge throughout the country. If, however, he intended to seriously press the second reading of the Bill, he should propose some alteration in it. Its main principle was that the local work should be done by local officials, but for everything of a contentious character requiring a legal decision there should be one supreme Judge appointed by the Archbishops of Canterbury and York, with facilities for taking cases direct before that Judge, and thereby avoid the delay and expense of the inferior Courts. The second part of the Bill, to which he should strongly ask the House to assent, provided that rules and orders for regulating the procedure in the Ecclesiastical Courts should be revised, that the fees should be paid in stamps, and that the officials should be paid by salaries. He objected to all the registers being brought to London, considering the documents safer in different places than if brought together in one building in London. He objected to the appointment of a Judge for the two Provinces, to be paid a very large salary. His impression was, that the Judge had only six cases coming before him, and that being so, the longer he was on the Bench the worse Judge he would become. He thought it was a very good thing that the Judge should be mixed up with the Common Law Judges in some sort of way. What he had to suggest was this—the House might be surprised to hear that the Dean of Arches had only emoluments of somewhere about £30 a-year. [Mr. GLADSTONE: £10 only.] Well, no one would say that £10 was sufficient; but there was another ecclesiastical officer in Canterbury who was called Master of the Faculties. The present Judge was very old, and could not be supposed to be actively employed, but his salary amounted to £700 or to £800 a-year. 192 If, on the expiration of his holding the office, the Mastership of Faculties could only be joined to the office of Dean of the Arches, it would contribute something towards the salary of the Judge, and a Judge able and efficient in matters ecclesiastical could be obtained for the office. He thought the Dean of the Arches was also a Judge in the Admiralty Court; but whether he was a Judge in that or in any other Court, he ventured to suggest that by attaching a salary of somewhere about £800 a-year to his office, they would get a Judge who would do all the work required, and who would be also very usefully employed. With regard to diocesan work, what they practically wanted was a thoroughly good officer, call him whatever name they pleased, secretary or anything else, who would practically have to keep all the fees of the register, and discharge all the duties of the Bishop's secretary. His impression was, that they would find in town that some solicitor would be very willing to take all those different duties upon him for a moderate salary. In regard to contentious business, he would give all possible facilities, so as to save all the expenses attending upon the inferior Courts, for he was of opinion that in cases of doctrine especially, it was very unsatisfactory to have them decided by a local Court. Do not let them have the delay and expense of the inferior Courts, but give every facility to Bishops and suitors for having the case brought up before the Dean's Court and tried. The main principle of the Bill was right, but the details were not. He most earnestly pressed this matter upon the Government. No greater satisfaction would be given to the public than in cheapening the expenditure and proceedings of this Court, not for the purpose of making them too common, but for the purpose of doing away with the scandal arising from the delays and expense and from the fees. He also pressed the matter on the attention of the Government in order to do away with the waste of public money which was now extorted from the public. With regard to marriage fees, he was not in favour of their abolition, for he did not see why those who desired to be married by license should not pay for that luxury. He desired that really proper officers should be provided, to be paid according to the work they did, not by fees, but by 193 salary, and if the Government would do that they would confer a great blessing on the country.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Assheton Cross.)
MR. GLADSTONEsaid, he gathered from the purport of the speech to which they had just listened, that the subject had been brought forward with the view of giving to other hon. Members an opportunity of stating their views to the House, and that the hon. Gentleman would probably end by withdrawing the Motion, and discharging the Order for the second reading of the Bill. They had now arrived at too late a period of the Session for carrying forward any such legislation. He must, however, tender his thanks to the hon. Member for his clear, comprehensive, and remarkably interesting statement, which showed his complete acquaintance with the subject, and must say that he was quite prepared to accept the proposition of the hon. Gentleman, that there was an urgent case for legislation in connection with this matter. As to the plan which the hon. Gentleman had sketched at the close of his speech, he had clearly shown that there were many portions of the Bill which there would be no disposition to press, and the general basis of his plan appeared to be a very sound one. The proposal to create an authority which would have the power of revising the present rules of procedure in the Ecclesiastical Courts appeared to be a very eligible method of proceeding, and with that view, it would be necessary to consider whether it would not be practicable to effect a union between the office of the Dean of Arches and those of the Master of Faculties and the Judge of the Prerogative Court of Canterbury. Looking at the matter from a certain distance, and having regard to the necessity of making some improvement in the position of the Dean of Arches, it appeared a natural course to ascertain whether there could be united with the office any other provided with salary and not burdened with important duties. He, therefore, heartily approved, if it might be found practicable, with the assent and approval of the Archbishop of Canterbury, to effect an arrangement of that kind. He thought the hon. Gentleman had stated what was rational and fair with 194 respect to marriage fees, for it was not necessary to presume to set out with a fixed conclusion that a total abolition of such fees was requisite. There was, therefore, no reason why they should assume that there would be any difficulty in providing the sums which would be really necessary for the maintenance of a moderate staff of diocesan and ecclesiastical officers throughout the country. The hon. Gentleman went on to say that with regard to all contentious business, that he would give every possible facility for throwing it at once into the hands of the Dean of Arches. He (Mr. Gladstone), hoped it would not be presumptuous, if he reserved his opinion as to the desirability of adopting that view in its full breadth. As to the class of cases concerned with the doctrines and ritual of the Church, he could at once subscribe to the opinion of the hon. Gentleman, that there could be no advantage in dealing with questions of that kind in a local Court. He had, however, been told by those who had experience, that in regard to questions relating to the conduct of "criminous clerks," it was not to be assumed that they might not be heard with advantage sometimes in diocesan Courts. And if the principle was laid down that the Dean of Arches was to become a Judge of the First Instance, and not to possess the advantage of being a Court of Appeal, then they ran the risk of multiplying the cases which would be carried forward to the ecclesiastical branch of the Privy Council. With that reservation, he felt disposed to accept the hon. Gentleman's proposition. When it was said that there was a great deal of difficulty, delay, and cost attending the settlement of ecclesiastical matters, he thought, however sanguine they might be in their expectations, and however earnest in their desires to diminish them, they must bear in mind that a certain portion of that difficulty arose out of the nature of the subject-matter which was brought to trial. In regard to questions of doctrine and ritual that was obvious. The necessity arose when that class of cases came forward, for learned investigation into the history of the matter to which they referred, and he agreed very cordially with the hon. Gentleman's hope, that for the future the occasions might be very rare in which either the Church or the public mind was to be distracted 195 by cases of that kind. Although he trusted that a great deal might be done in reference to these and other cases, both to expedite and cheapen the course of justice, they should never cease to feel the effects of the very peculiar nature of the matters which were brought to trial. He had, however, to take exception to the hon. Gentleman's assumption that this was a question which could only be dealt with by Government, and also to his strong recommendation to the Government to take it up. It would be improper for the Government to hold out an expectation that it could deal with this question consistently with the other demands upon its time. He therefore hoped the hon. Gentleman would not think that he (Mr. Gladstone) was practising the old trick of retorting upon him, if he recommended him to bring forward a measure himself. He had to say, with the greatest sincerity, that there could be no one more competent to deal with the subject; and, if he would do so, the Government would be desirous to render him all the assistance in its power. The only recommendation he would offer was, that if the hon. Gentleman undertook to introduce a measure, he should do so early in the Session, so as to avoid competition not only with Government measures, but with those of independent Members, among whom, late in the Session, the competition became really formidable.
§ MR. GOLDNEY, in rising to move that the Bill be read a second time that day month, said, he objected to the enormous powers which were to be given under the Bill to the new jurisdiction, and to the total deprivation of the Common Law Courts of the jurisdiction they at present possessed. He hoped to see the time when the mere non-contentious business would be carried on by the registrars the same as in County Courts; and when all the contentious business should go before one of the ordinary Judges, assisted by a jury if necessary. He did not think that the Bishop's secretary was an officer who should be paid by fees at all; and his existing fees, which were principally derived from presentations to benefices, were very heavy, though most of that work done was merely mechanical. The multiplicity of fees payable to unnecessary officials for every step taken by the laity in connection with the Church—church 196 building, for instance—had the effect of impeding persons whose feelings and anxieties were for Church extension and increasing the facilities and accommodation of the Church, taking those steps which were necessary to carry out the benefits intended. The present Bill would make an entirely new government for the Church, to be carried on by ecclesiastics, and he should deeply regret to see a measure which would shut out the laity from all action in this matter pass. For that reason he should move the rejection of the Bill.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day month."—(Mr. Goldney.)
§ DR. BALLexpressed his doubt of any private Member being able to pass a Bill of that kind without having assistance from the Government. The Irish Bill was, no doubt, brought forward by private Members, but then Lord Palmerston promised the Government support. He would suggest that a Bill upon the question should be brought in early next Session, and should be referred to a Select Committee composed chiefly of lawyers. After that the Government could see whether they would support it or not; for without that support it would be useless further to proceed with it. The Irish Bill contemplated proceeding by rules and orders prepared by the Church authorities, but only to have force when sanctioned by the Lord Lieutenant in Council. That Bill cheapened, simplified, and expedited proceedings in the Courts, and a great reform was accomplished by it. He did not see how in England they could much cheapen proceedings, except in cases where there were disputed questions of fact; but in such cases, there might be great improvement effected. Therefore, he was decidedly in favour of that portion of the Bill relating to the reform of the procedure by means of a new set of rules and orders, though it did not go upon the same footing as in the Irish Bill. He did not see the use of the system which prevailed in England, but which had never been established in Ireland, of holding a preliminary inquiry. It served no useful purpose, while it entailed great and needless expense; and he might take this opportunity of expressing his dislike of a repetition of 197 evidence in all legal proceedings. He was entirely opposed to visitation fees, which were really a tax upon a clergy not at all well paid; neither could he agree with the recommendations of the Marriage Law Commission as to marriage fees, for he preferred a license to banns, on account of the greater security against clandestine marriages of minors given by the former, and he thought that if the reduced fee of 5s. customary in Ireland was adopted in this country, a revenue might be raised which, without oppression, would supply the revenue required for this scheme. As to the clause inserted on the Motion of Lord Romilly, providing that the records should be brought from the local registries and deposited in the Public Record Office in London, it was, in his judgment, very objectionable to remove the documents from the localities with which they were connected, and, indeed, it would be scarcely less absurd to propose that the famous Roman remains at Chester should be lodged in the British Museum. He would offer no opinion on the proposed constitution of a new tribunal by the appointment of a single Judge, except to suggest that the Judge should have something to do besides hearing ecclesiastical causes, because the mind of a Judge naturally expanded when he had to consider a variety of subjects; whereas if he had to deal solely with the cases contemplated by the Bill, he would run the risk of gradually ceasing to be a lawyer and growing into a theologian. In illustration of the advantage of the mind of a Judge having been expanded by consideration of a variety of subjects, he might be allowed to refer to the extraordinary moderation, learning, and accuracy of the judgments delivered in the Committee of Privy Council, because they were delivered by men of great intellect, who were trained to apply their minds to the impartial consideration of documents and evidence, and who would do so without feeling; for a thoroughly practised lawyer had no feeling at all, any more than a mathematician had about the problems he was working out. In conclusion, he expressed a hope that, whether the Vicars General were retained or one new Judge for all the dioceses appointed, the tribunal should be a real Court.
§ MR. MONKsaid, he also hoped that a measure would be introduced next 198 Session embodying the procedure of the Irish Act. Notwithstanding the legislation of 1854, there was still great and unnecessary delay in the procedure of these Courts, and he agreed in the opinion that the work might be done more cheaply. But it was an error to suppose that there was a different set of fees in every diocese. There was a table of fees fixed by statute which alone could be legally taken throughout all the dioceses; but he admitted that some of them were too high, and that the table was open to revision. He strongly objected to the proposal to make the Archbishops and the Bishops the chief Judges in the diocesan Courts. By the proposed arrangement, there would be as many Judges in the Ecclesiastical Courts as there were under the present system, and he believed the number might be advantageously reduced to three. The Bill now before the House would require to be carefully sifted, and should therefore be submitted to a Committee. With regard to the financial part of the scheme, he thought that after the Report of the Marriage Law Commission, it was absurd to suppose that £40,000 would continue to be raised by marriage fees, and he was also of opinion that visitation fees ought not to be maintained. Instead of £70,000, therefore, the amount would probably be reduced to £30,000, which might be sufficient to pay three or four Judges, as he had suggested, and also to remunerate the registrars for performing, in addition to their present duties, those of the secretaries to the Bishop as they did until 20 years ago.
§ MR. BERESFORD HOPESir, I must begin by most sincerely thanking my hon. Friend who has the charge of this Bill for the manner in which he has conducted it to-day. He might have followed the too common precedent of asking us to read the Bill a second time pro formâ and, if so, he would have done that which, however common, is fraught with considerable mischief. Every year that I sit in this House, I am more satisfied that nothing can be so mischievous as to ask the House out of mere laxity, or, perhaps, good nature, to read a Bill a second time, on the understanding that the step is to mean nothing. It always must mean something, and the flabby ambiguity of the contrary assumption 199 never fails to assert itself in some vexatious result. Either the House agrees with the principle of the Bill, or it does not. If it does not, then it condemns itself by the act of colourable agreement, for a second reading which means nothing is playing fast and loose with forms of this House. But a second reading per incuriam may he a reading which is intended to carry some significance, and then the manœuvre is very like stealing a march in favour of a doubtful and unaccepted principle. But my hon. Friend has had the moral courage to bring this Bill fully before the House with the express statement that he dissents from many of its provisions. He therefore invites us to the consideration of a question which is unripe, indeed, for legislation, but which is quite ripe for the consideration of those who care for the interests of the Church. There is an aspect of it which has been touched upon by preceding speakers, but certainly not dwelt upon with the prominence which its importance demands. They have mainly treated of the formal bearings of the matter. I desire to look at it from the side of expediency, and to ask, what should be the policy as to its tribunals of such a body as the Church of England, which is both a Church—that is, a spiritual corporation, and, at the same time, an Establishment—that is, a member of the State? From this point of view, it seems to me that the ideal of a Church judiciary would be one which should be strict, anxious, and careful, but withal merciful in all questions touching the moral conduct of the clergy; but, on the other hand, tolerant in those matters upon which varieties of opinions are not only inevitable, but essential in a body constituted as we find the Church of England; and that it should be an organization calculated to appease and not to encourage litigation on points of doctrine or ritual where debate can never be stirred up without leaving behind it the roots of bitterness. Now, the fault of this Bill is that it tends to provoke, not to appease, litigation on questions of doctrine and of ceremonial. It creates a Judge at an enormous salary to try a class of suits which, as we have heard, do not amount, on an average, to more than six a-year. What will such a Judge, with a salary of £3,000 a-year, become but a chartered 200 privateer, cruising about the wide seas of men's opinions for rich prizes of intolerance and persecution? Besides—as has been pointed out by preceding speakers—it is a valid objection to the project that we in the Southern Province have already sent a Judge, as the Bill contemplates, in the Dean of Arches, who for the last few years has discharged his anxious duties on the moderate salary of £30 a-year. With this office used to be united the light labour and sufficient stipend of the Mastership of the Faculties. Then re-unite them. But we are told that would not be enough; we must have one Chief Judge for the two Provinces. Why need there be one Chief Judge for the two Provinces? Have the two Provinces been asked their opinion, or is it the crotchet of a theorist? When we recollect that ever since there has been a Church of England, now deep in its second thousand years, there have been two Provinces—united in one communion indeed, but distinct in their habits, and each the heir of an illustrious history—we may be convinced that this is a scheme which has not emanated from the Church itself, but has been elaborated in the closets of some philosophers. At the same time, there is nothing in the provincial constitution itself to militate against a personal union of the offices of Chief Judge without legislation. There is nothing to prevent the two Archbishops from respectively appointing the same person to the analogous office in the two Provinces. But look at this Bill. The two Archbishops are jointly to appoint one Judge. Well and good. But if they differ as to their man, who is to decide between them? Are they to toss up, or to draw lots? And then their appointment is to be confirmed by the Queen. Now, with the highest respect for monarchy, I cannot see why a novel Prerogative should be conferred upon the Crown. It has never before claimed the right of granting or withholding its sanction to the appointment of Ecclesiastical Judges, and these are not times to stretch the Prerogative in that direction. Does this sanction mean that if the two Archbishops differ the conflict is to be settled by the Prime Minister? If so, on what principle is he to carry out his decision? Is the discord to be compromised by a harmless nonentity being promoted, or by Church 201 differences being dragged into the political arena?
So much for the proposal of creating a new ecclesiastical jurisdiction in a Judge at a salary which, if he is a conscientious man, he can only earn by fomenting, not by appeasing, Church litigation. The Bill is, if possible, more objectionable in another detail. By it the Prelates are, in the first instance, to be their own Judges, and the highly paid lawyer only figures as assessor or substitute. He must be a bold man who can expect to carry the assent of this House to a proposition which runs so counter to the whole spirit of the age. In all other branches of the Judiciary the principle is to delegate decision to the jurisconsult, and to invoke the expert to advise. In the Ecclesiastical Courts we are brought in face of controversies where judicial experience has to moderate between theological prepossessions; and yet the proposal of the Bill is to put the theologian and not the jurist on the Bench—to make the partizan-expert Judge, and the jurisconsult adviser. A Bishop, in proportion as he is a good and earnest Bishop, must feel the difficulty of acting as an impartial Judge, because all his feelings and sympathies will be those of an advocate in favour of what he personally believes are the "higher law" interests of religion. Therefore, to put the Bishop or Archbishop upon the judicial bench is to place upon it the advocate, the administrator, the executant, the partizan, where the Judge is wanted. It maybe argued that a check is provided in the provision of the one assessor Judge being common to both Primates. This is, however, wholly delusive. The respective Archbishops may have been appointed by two different Prime Ministers, and may be champions of two rival schools of theology; while the business of the learned gentleman, with £3,000 a-year, will be to say Amen to the Archbishop of Canterbury, and Amen to the Archbishop of York alternately, and that very possibly upon incongruous rulings of virtually similar questions. Another great deficiency of the present Bill is, that while it provides for the Bishops being what they had better not be—namely, Judges—it makes on provision for trying the Bishops themselves, if, unhappily, the opinions or the conduct of a Bishop should invite judicial inquiry. 202 Humanum est errare, and it is no disrespect to the high office of a Bishop to face the contingency. It is, happily, a very rare one; but it has existed. Yet this Bill, which professes to reconstitute the whole system of ecclesiastical procedure, and which provides for the trial of criminous clerks, omits to make any provision for the trial of criminous Bishops, and thereby stands self-condemned.
I pass to another point. The Bill neither repeals nor re-affirms the Church Discipline Act; but it deals in the most vague and nebulous way with the whole system of appellate jurisdiction, and breaks down entirely when it comes to the chief point. The Court of Appeal in the Bill is the Court of Appeal at present existing—that is, the Judicial Committee of the Privy Council. Well now, upon the whole, I am not prepared to propose any new Court of Appeal as a substitute for the present system. I have no thought of doing so; but I venture to make one suggestion of reform—a reform that has been steadily growing in favour from day to day with all who have calmly and impartially considered the question—that is, to strip the Judicial Committee, as a Court, of its illusory claims to be in any respect a spiritual body, founded on the presence in it of a minority of selected Prelates, and to leave it as a tribunal of lawyers constituted to judge the questions which come before them from a legal, and not from a sentimental, an expedient, or a doctrinal position. Let the Committee become a court of lawyers, to interpret documents according to their legal bearing, and you may leave it the highest resort of ecclesiastical controversy. But I find nothing at all of such a reform in this Bill. The same select number of Prelates will still be Members of the Committee. For these Prelates, officially and personally, I have the highest respect. But just because they are efficient as Prelates, they cannot be efficient as Judges. If they are hardly qualified—as I have argued—to sit in their own provincial or diocesan Courts, still less can they be qualified to form a part of the highest Court of Appeal. If the Judicial Committee are in want of experts to advise them upon any question of theology, they need not be limited to the two Archbishops and the holder of the See of London—they may have 203 a choice not merely of the whole Bench, but of the entire faculty of theology in the two Universities. Let the Committee be empowered to seek its information from experts such as these; but let it subside into the legitimate and logical attitude of a court of lawyers, dealing with facts as facts, and documents as documents. This is the first, the best, the most obvious reform that we need in our ecclesiastical procedure, and I hope that my hon. Friend, when he brings in that Bill of his own—which I trust he will do next February—will not forget it. As to Clause 50, which provides for the transference of all wills from the country to one gigantic receptacle in Fetter Lane, I say nothing—the feeling of the House has been clearly expressed against it. On the question of fees, too, I need say nothing. That has also been unmistakably condemned by the House. But I merely would point out that, while the right hon. and learned Member for the University of Dublin lays down 5s. as the reasonable charge for the great majority of marriage licenses, this Bill could only be worked by one in which a fee of 10s., at least, was the normal sum. That one fact is surely sufficient of itself to condemn the Bill. I am not sorry that this Bill should have been so fully debated, even on this late day, as it has raised a question which is worthy of being discussed. I believe there is a general impression that something must be done to reform our ecclesiastical judicature, and I think that we have, through the present discussion, reached the conclusion that that something is not contained in the Bill before us.
§ MR. WHITWELLsaid, he objected to the Bill, because it added to the power of the Bishops, while it interfered with the rights of the clergy themselves; and he hoped that when its provisions were more generally known, the latter would see that their rights were maintained.
MR. HENLEYsaid, he regretted that his hon. Friend had brought on the measure at that period of the Session, when both the House and the subject itself were placed in an unfair position. It would have been much better had the Bill been referred early in the Session to a Select Committee, when its various provisions might have been carefully considered, and the objections to it 204 stated, and possibly removed. The Bill did not attempt to alter or correct the system under which persons who were charitably inclined were put to great expense in distributing their charity for ecclesiastical purposes, and, supposing the Bill pased, cases in which questions arose would go, as heretofore, to the Supreme Court of Ecclesiastical Appeal for decision. In these Courts, the number and amount of the fees demanded and paid were something extraordinary. Twenty-five years ago he, in company with the late Sir James Graham, in the Fees Committee, looked carefully into the question, and came to the conclusion that as a matter of sport, there was nothing to equal the tracing out of the fees, except rat-hunting in a barn, which hon. Members would grant was first-rate sport. When in the course of his examination, he came to the details of the question, he found that it came pretty much to a case of many people helping one another to do nothing, and he feared that ill-natured people might be inclined to describe the present Bill as a kind of excuse for continuing a similar state of things. Under the existing arrangement the clerks now employed would have to be pensioned off after a certain length of service, and he would suggest the advisability of adopting a plan by means of which, on the termination of current engagements, the payment of these large and useless fees might be got rid of altogether.
§ MR. RAIKESsaid, they had a twofold problem to solve—namely, what should be done in the way of reforming the Ecclesiastical Courts, whose procedure was dilatory and expensive; and what steps should be taken, if any, in regard to the fees that supported those Courts, and that were said to be excessive. As to the first point, it was generally admitted that the procedure was somewhat slow, and no doubt expensive as well; but the House should bear in mind, that all these ecclesiastical questions were difficult to solve, and that they involved careful and elaborate consideration; that the best legal ability was requisite to solve them, all which could not be done without great expense. With reference to the fees, the total amount received was £71,000 a-year, which represented the whole expense of keeping up the legal machinery of the Established Church of England. 205 Divided among 27 dioceses, that would be about £2,500 for each—an expenditure which admitted of a favourable comparison with the amount paid for legal charges by some of our great public companies, of which we were so proud, in the 19th century. Putting on one side the chancellors, registrars, and Bishops' secretaries, and on the other, the surrogates and archidiaconal officers, the expense in those 27 dioceses would amount to £47,000, being from fees received by chancellors, registrars, and secretaries. That was at the rate of £1,500 for each diocese. The right hon. Gentleman the Member for Oxfordshire asked what these fees were paid for. They were paid for securing the legalization of some 15,000 marriages, for the legal title of every incumbent to his benefice, for the consecration of churches, for the consecration of cemeteries, for the careful custody of diocesan records, for the services of a competent legal adviser to the Bishop, and for other purposes. On the whole, therefore, he thought the money was well spent. The surrogates were the deputies of the registrars in granting marriage licenses; the necessity of every applicant being obliged to present himself personally at the registrar's office, being thus abolished. A very large sum of money was paid to them. The archidiaconal officers appeared to him to be a little out of the scope of the Bill. Possibly, their number might be reduced, or their services might be less highly paid than was the case at present. When so much was said about their services, it was well to bear in mind the Chinese system of paying physicians. They paid them nothing while they were ill; but as long as they were well the physicians received a salary. As to the appointment of a travelling Judge, if the Judge were the key of the arch, and he was taken out of the Bill, the rest of the fabric would fall to pieces. Oases of doctrine and ceremonial should be separated from cases criminal, and it was desirable that, at all events, these latter cases should be heard in the neighbourhood where the cases were alleged to have taken place. He objected to the local records of the country being removed from their ancient sites, such as York and Carlisle, for if we deprived them of their muniments, we should deprive them of that of which they were exceedingly proud. 206 He was very glad that his hon. Friend was not going to press his Motion to a division.
THE ATTORNEY GENERALsaid, that, substantially, all that the Government had to say had been already said; and it would, therefore, be undesirable for him to make more than a few observations. Having taken a deep interest in these matters, he could honestly say that the subject was one which he had very much at heart; and that anything he could do—any suggestion he could make—was heartily at the service of his hon. Friend opposite. Agreeing in the main objects of the proposition, he asked to be allowed to point out two or three things which he hoped his hon. Friend would not undertake in his new Bill. He thought it would be hopeless for his hon. Friend to attempt to undertake the creation of a great and highly-paid ecclesiastical officer. There was no call for such an appointment, and, moreover, there were several grounds upon which that proposal was open to objection, not the least cogent of which was the fact that by confining a Judge to one particular and narrow branch of law his judicial faculties were limited, and the chances of obtaining the greatest men as Judges were decreased. There were instances to the contrary, as in the cases of Sir Cresswell Cresswell and Lord Penzance, but hon. Members must admit the truth of the general principle he had laid down. If it were necessary to increase the judicial force in matters ecclesiastical, that could be done, without much difficulty, by an arrangement which should comprehend the Judges of the Probate and Admiralty Courts. In every case in which of late years similar projects to that of his hon. Friend had been brought forward they had been almost immediately suppressed. The right hon. and learned Gentleman the Member for the University of Dublin had said that no dealing with the ecclesiastical part of the subject would at all affect or grapple with the question of the Church Discipline Act. In questions of doctrine it would be of no kind of use to go into an inquiry. He was not at all disposed to give up the preliminary proceedings against clergymen in cases of alleged misconduct. In four instances which had come under his own knowledge, to the satisfaction of every human being who had heard the preliminary 207 inquiry, the charges broke down entirely. But he thought that the proceedings should be retained where the charges were of a personal nature; and he should hesitate before agreeing to their suppression. As to fees, many of them might well be abolished; there were other cases in which it appeared necessary that they should be retained. But, in point of fact, in many cases the fees had already gone. It was a great mistake to allow fees to be paid to officials for work which they did not do; but in many cases fees were paid for doing nothing. That would require a good deal of consideration, and it was a fair question for the consideration of that or any other House of Commons. As to the plan suggested for removing the records to the Record Office, he did not think it could possibly be effected. Everybody was aware of the very great debt which this country was under to Lord Romilly, the Master of the Bolls, for the able discharge of that portion of his duties which related to the preservation of the public documents. No language could be too strong in commendation of him for his discharge of those duties. The public documents were far more accessible than formerly; and from time to time copies and extracts from valuable portions of them were published. We sometimes heard of the loss of certain public documents, and he, therefore, did not wonder at a wish being expressed by some provincial authorities that their documents should be transmitted to the new Record Office in London. He did not, however, concur in that desire. Some provision must be made for a reform of the Courts by which the ecclesiastical business of the country was transacted, and on that point he concurred with his hon. Friend. Although a recent judgment of the Judicial Committee in an ecclesiastical appeal had reflected great credit on the institution, a desire had been expressed to eliminate the ecclesiastical element from the purely judicial, but there also appeared a suggestion to add Bishops and Archbishops to that portion of the Court which should deal with the religious questions. To that he thought there was considerable objection.
MR. HINDE PALMER, with reference to the prospect of their having a similar Bill in the next Session, thought it desirable that the House should adapt 208 it a little more to what he conceived to be a Rule of the House affecting all ecclesiastical measures. The Bill had been drawn with a full regard to the ecclesiastical members of the Church, and a smaller regard to its lay members. When the former Act came before the other House, the Bishop of Peterborough, considering that Clause 33 gave too much consideration and regard to the lay members of the Church, gave. Notice that Clause 33 be rejected by the House of Lords. Lord Shaftesbury, who introduced the Bill, seeing the powerful opposition, withdrew the clause. One of the most important propositions ever made in the House of Lords was that clause, which gave to the laity of a parish power to take the initiative in complaining against any of the numerous alterations which were then being made in the mode of performing the Church service. Well, the next year's Bill must contain a similar clause to that which was struck out of the Bill of Lord Shaftesbury. The Lord Chancellor said, he thought the laity had been lately aggrieved by alterations being made in the mode of conducting the service, and that without any notice being given that such a course was about to be taken. A clergyman, he said, had driven away his own parishioners, but he obtained a congregation from the adjoining parishes. The Bill now before the House did not go to anything like the length of putting a stop to that mischief. The people who felt aggrieved ought to be able to apply for the redress of those grievances; otherwise there would be no chance of carrying the Bill.
§ MR. COLLINSsaid, the course thus commended would have the effect of setting every parish in the kingdom by the ears. The last speaker had sought to revive the "aggrieved parishioner" who, he believed, had been dead and buried these three or four years, and thought it would be wise to give power to three or four old women in the Channel Islands to lay their Church grievances before the Court which he proposed to establish, and demand in any diocese a rigid adherence to the law. He (Mr. Collins) had been an attendant at Divine worship from the time that he was four or five years old, and on no occasion had he heard any Archbishop, Bishop, priest, or deacon perform the service in the manner provided for 209 by the Act of Uniformity. Strong as the Church of England was in the affection of the people, such a power as that vested in three parisioners, would be more prejudicial to it than any of the Bills of the hon. Gentleman the Member for Bradford, or the hon. Gentleman the Member for Birmingham. The Bill would confer great power on the Archbishops and Bishops. Now, he had great respect for the judgment of the Bishops, when acting in their ecclesiastical office; but when they were acting under an Act of Parliament, he did not know that there was anything of ecclesiastical law, or gospel, or anything else which would lead him to suppose that there was any special virtue in their judgments. Indeed, the Bill was tainted with some of the worst faults that could mark a measure coming from the hands of the Bishops. Instead of protecting the laity, it would give more power to the Bishops. It would enable the Archbishops sitting in their own Court, to decide the cases on their own views, independently of their chancellors. That would be a despotism such as the laity never would submit to, and never ought to. He rejoiced to know that the Attorney General had emphatically pronounced against the principle of the Bill, and had admitted that it was desirable to get rid of the ecclesiastical element from the Judicial Committee of the Privy Council, whenever that body should be re-constituted. Whatever might be the result, he thought that the afternoon's discussions would not have been wasted, because it would teach the Episcopal Bench—if it could be taught anything—that they were not to send down to the Commons Bills of that sort, magnifying their own office, and that the laity of the Church of England would never consent, even in small matters, to be governed by Bishop-made laws.
§ MR. ASSHETON CROSS, in reply, said, he had never intended or desired to carry the Bill to a second reading, and since he had addressed the House, he had spoken to the hon. Member for Chippenham on the subject, and they had agreed that the best course would be to negative both the Motion for the second reading and the Amendment.
§ Question, "That the word 'now' stand part of the Question," put, and agreed to.
§ Main Question put, and negatived.