The Bishop of Exeter
rose to put a stop, if possible, to the further progress of a bill which, in his conscience, he firmly believed to be the greatest blow that ever was struck against the Church of England, as a church. The bill professed to effect that which, he contended, it was beyond the competency or the power of any Christian Legislature to effect. The bill, in fact, went to put an end to the existence of any ecclesiastical court having the power to decide causes involving the correction of clerks, except the Court of Arches; it went 604 to deprive the bishops of a power which they had long exercised in their respective dioceses. Now, he must be permitted to say, that their Lordships and the other House of Parliament, and her Majesty, ail joining in this legislative act, could not effect that which this bill presumed to effect, because there was a jurisdiction given to a Christian bishop which no human laws could interfere with. He would ask, if there were any amongst his right rev. Brethren near him who supported this measure, how they could reconcile to themselves the main provisions of the bill, when they considered those texts of Scripture from which he had been in the habit hitherto of deducing, and from which the most learned theologian had always deduced, the divine origin of episcopacy, and the power with which it was clothed? Those texts, upon which every theologian relied, gave a great power and jurisdiction to the bishop, even to the extent, where it was necessary, of pronouncing excommunication. That power it was now sought to take from the episcopal body by the provisions of this bill, and he should resist to the utmost any such attempt. In arguing this question, he was forced to refer to sacred authority. He was unwilling to quote Scripture in that House; but on this solemn occasion he was compelled to do so. In the 1st Epistle to Timothy, the special order of St. Paul was, "Against an elder receive not an accusation but before two or three witnesses." And in the Epistle of St. Paul to Titus, bishop of Crete, it was set forth, "A man that is an heretic, after the first and second admonition, reject," or excommunicate. These texts, and others of a similar nature, which might be quoted, proved the divine origin of episcopacy, and of the power which was attached to it. Now, he would ask such of his right rev. Brethren as might support this bill, how they would dispose of this important question, how they would reconcile their abandonment of the authority thus conferred on them with the rule laid down in Scripture? Not only was it the direction of St. Paul that they should exercise this power, but it was clearly recognized in the office for the consecration of bishops. When the bishop was consecrated, a question was asked by the officiating archbishop or bishop, and was answered by the applicant for ordination, which question and answer he should read. The ques- 605 tion was, "Will you maintain and set forward as much as shall lie in you, quietness, love, and peace, among all men; and such as be unquiet, disobedient, and criminous within your diocese, correct and punish according to such authority as you have by God's word, and as to you shall be committed by the ordinance of this realm?" Here an independent authority, the authority of "God's word," was clearly recognised. There was, it was true, a further power committed to the bishop "by the ordinance of this realm"—a power to enforce the authority derived from a divine source. The law of the land only gave additional strength and force to the power which the bishop originally possessed "by the word of God." What, then, was the nature of those bishops' courts that were now sought to be done away with? They were intended to enforce the spiritual power of the bishop, and were as old as Christianity itself. They were courts which, formed for such a purpose, and based on such authority, whatever their human laws might affect to do, could not be extinguished. When the applicant for consecration was solemnly asked the question which he had read to their Lordships, he answered—"I will so do, by the help of God;" and, having thus answered, he could not be released by any law that man could make from the sacred obligation which he had thereby incurred. Human law might deprive a bishop of his see. In that case he, of course, had no place in which to exercise his jurisdiction. But he maintained, that, without depriving him of his see, no human law could prevent him from the full exercise of his episcopal jurisdiction. He spoke advisedly; but he spoke not in a spirit of defiance, when he said, that should this bill become law, he should not feel himself at liberty to obey its main instructions or directions. To other laws he would cheerfully conform; but this would be a law, if the bill were passed, that would strike at the very root of the essential discipline of our Christian Church; and he felt, that he should be a traitor to that Church if he supported it. He plainly and openly, then, declared, should this bill pass into a law, that if a clergyman in his diocese conducted himself criminally, he would call on that clergyman to answer to him for his actions, on his oath of canonical obedience. Over the clergyman's civil state he had no power; but he had power over him in a 606 spiritual point of view, "and," (said the right rev. Prelate) "before his master and my master, I will remind this erring clergyman of his folly or his vice, I will reprimand him for it; and if he will not obey the remonstrance, I shall proceed to that sentence, which this bill tells me I shall not pass—I shall proceed to excommunicate him. Then, if this be done, your Lordships in Parliament may pass a bill of pains and penalties against me, you may deprive me of the seat which, I now hold (but of which I shall never make myself unworthy); you may rob me of my see, you may take from me my robe, but my integrity to Heaven I shall maintain inviolate." The bill, if it passed, would work a monstrous injustice. It would transfer all that power which properly belonged to the bishops of this Church to one court, the Court of Arches. Now, he had written to the chancellor of his own diocese as to what was the uniform practice in that diocese with respect to cases brought before the bishops' court, and that gentleman stated that the uniform practice, so far as he knew—was a practice followed by the best and ablest men. The chancellor of the diocese stated—"Within my experience, and I believe always, the bishop has himself presided at the hearing and the giving of sentence. After the pleas have been completed, and the evidence taken, according to the ordinary forms of the court, the whole is submitted, with the observations of the proctors on both sides, to the bishop; or if there has been a hearing by counsel, the bishop has always himself been present, and the bishop has always himself given the sentence as judge." Now, the bill, if it were passed into a law, prevented the bishop from thus proceeding. The third clause of the bill set forth, "that all suits now pending in any ecclesiastical court (other than the Court of Arches) shall be and the same are hereby removed and transferred before the Court of Arches; and the same suits, and all suits for the correction of clerks now pending in the Court of Arches, shall there be proceeded in, either according to the law and forms and in the manner heretofore in force and use in the said court, or in the manner directed by this act with respect to suits hereafter to be instituted, according to the discretion of the judge of the said court; and the decisions of the court of Arches in such suits may be appealed 607 from, and such suits proceeded with before the judicial committee of her Majesty's most hon. Privy Council, as if this act had not passed. Now, he would ask of the most rev. Prelate, was it ever known in the history of the Church, that the court of the metropolitan should have jurisdiction in provincial cases, except where the bishop himself was the party accused, in cases of laches or dereliction of duty. He spoke most confidently when he said, that no such practice ever prevailed; and he asked his right rev. Brethren, if any of them disputed the doctrine, to state the grounds upon which they founded their opinion; and, if they did not dispute it, he called on them to say how they could agree to a bill which introduced an entirely new and hitherto unknown practice. He knew, that the Archbishop in one point differed, with respect to his authority, from the provincial, until this country threw off its connexion with the Church of Rome, and exercised an original jurisdiction. But this was not the case since the Reformation. And on what was that original jurisdiction founded? It was founded on the fact, that the Archbishop was the representative of the Pope, as the head of the Church. It so happened, that some centuries ago the Archbishop of Canterbury claimed jurisdiction in the see of Hereford; but that claim rested simply and solely on the fact, that he was the legate of the Pope. And he must argue, that the supremacy of the Pope having long since been put an end to, the Archbishop of Canterbury could not lawfully, according to the essential discipline of the Church, exercise an original jurisdiction in any diocese whereby he interfered with the power of the bishop. But this bill went further. It attempted to do that which be never supposed, that the most presumptuous Legislature would have insisted on. He considered the Archbishopric of York to be as independent of Canterbury as Canterbury was of York, and yet by this measure suits instituted in the archdiocese of York were to be submitted to the Court of Canterbury. He should be glad to know, had the bishops of the archdiocese of York given their assent to this bill? He knew not. But he thought, that if such assent had not been given, it was most improper to have introduced this measure. But he might be told, that at some private meeting of 608 bishops a majority had assented, not to this bill, but to some measure of a similar nature. But he must say, that that House, in dealing with such sacred rights as this bill affected, ought not to be worked upon by any such proceeding, however worthy the individuals who were parties to it might be. It ought to be clearly proved to their Lordships, that the assent and consent of the parties who would be affected by this bill had been unequivocally given before they agreed to it. No such proof had been afforded; and if any right rev. Prelate stood up and stated, that an assent was given at some particular meeting, he must declare, that in his opinion such was not the way in which assent should be given on so important an occasion. He must further say, that an assent given in such a manner was by no means sufficient. He would ask was there one bishop of the archdiocese of York, who heard the observations he had made, who would make an answer, when he asked of him on what principle known to the Church of Christ had he given his consent, if such consent had been given, to a bill that took from the bishops that power which they possessed by divine authority? It was the object of the ancient temporal law of this land to endeavour to prevent the free subjects of this nation from being harassed by ecclesiastical suits instituted far from the diocese in which they resided. With that view, the 23d of Henry 8th, c. 9, was passed. That statute was introduced just before the Reformation, when men's minds were most alive not only to the corruptions, but to the usurpations, of the Church of Rome. At that time, and before Henry had separated from the Church of Rome, a bill was brought in and passed, which prohibited process from being sued out in the Archbishop's Court, with reference to cases originating out of his jurisdiction. The Archbishop was restrained from calling persons before him in cases occurring in different dioceses, unless where the bishop was afraid of proceeding against the accused party in his diocese, was guilty of any important omission, or had neglected his duty. With these exceptions, the statute of Henry 8th forbade, that to be done which the noble and learned Lord on the Woolsack now called on their Lordships to do. It would not, he presumed, be considered any disparagement to the 609 noble and learned Lord who now presided in the Court of Chancery, and who was Speaker of that House, to observe that the bill to which he had referred was passed when Sir T. More was Lord Chancellor. It was passed under the sanction and authority of that most virtuous man, who, though he yielded up his life rather than recede from his conscientious belief in the supremacy of the Pope, yet, on behalf of the King's subjects, opposed the idea that individuals whose cases might be investigated in the provinces, should be called on to answer in the court of the Archbishop of Canterbury. To the 10th and 11th clauses of the present bill, he felt the strongest objections. The 10th clause enacted, "that when all the several pleas in any such suit shall have been made up, and before any witnesses shall have been examined, but not afterwards, it shall be lawful for the bishop of the diocese to whose authority the defendant may be subject, or if he is subject to the authority of more than one bishop, for the archbishop of the province to enter a noli prosequi in such suit, provided the judge of the said court shall have made such bishop or archbishop a special report, that in his judgment the suit is frivolous or vexatious, or otherwise improper to be proceeded with." Now, the prosecutor might be Heaven knew whom; but the bishop, not being the prosecutor, having nothing to do with the matter as prosecutor, was called on by this clause, at the suggestion of a third party, to enter a noli prosequi. Now he would ask the noble and learned Lord on the woolsack, whether it was ever known that a noli prosequi was entered at the instance of a party having nothing to do with the suit? The 11th clause enacted, "That when all the several pleas in any such suit shall have been made up, and before witnesses shall have been examined, or afterwards, it shall be lawful for the judge, on motion in open court, on behalf either of the promoter of the suit or of the bishop of the diocese, to whose authority the defendant may be subject, or, if he is subject to more than one bishop, on behalf of the arch bishop of the province, to suspend the defendant from performing any spiritual offices during the pendency of such proceedings; and thereupon it shall be lawful for the bishop of the diocese within which such defendant may be beneficed, licensed, or serving, to provide in the mean time 610 for the performing the duties of the cure, by sequestration or otherwise, as in the case of non-residence." This, he contended, was contrary to a principle of the canon law, both ancient and modern, which provided that the bishop himself should pronounce sentence in case of suspension or other penal visitation. He should unhesitatingly say, that in point of public policy a more unjust and inexpedient measure never had been presented to either House of Parliament. There was nothing that could more tend to dissolve the connexion between the bishop and his clergy, than to take out of the hands of the bishop jurisdiction over the conduct of the clergy of his own diocese. If the bill passed into a law, he should be obliged to send them to the metropolis for every offence of which they might stand accused. But, apart from considerations of this nature, the importance of which could hardly be overrated, he must call their attention to the fact, that the bill involved most important private interests, and involved them in a manner that gave impunity to guilt, and robbed innocence of its best protection. Could anything he so calculated to work injustice, as that an act of the Legislature should declare, that a man was not to be called to account for real or alleged misconduct in the country where he was best known. The man might live, or the offence might be committed in Durham or in Cork, but the legal proceedings must take place in London. In accusations against the clergy, as against other individuals, but especially in cases affecting the clergy, it was of the utmost moment to know what sort of reputation the accused bore in his own immediate neighbourhood. Surely, it was there, that men could best judge of the probability of charges. If the clergy were deprived of the advantages which a local trial gave them, could anything be easier than for any malicious man, having a long purse, to terrify into submission any neighbouring curate, against whom he might think proper to prefer an accusation, for what country curate would attempt a defence in Doctors' Commons? Having said so much on the merits of the bill itself, he should trouble the House with a remark or two on the subject of authority. The noble Duke opposite, one of the greatest and best of reformers, when he was at the head of the Government in the reign of George 4th, had his attention 611 directed to a case long pending in the ecclesiastical courts, and which by the conduct of one of the parties had been transferred from one court to another, until such a delay had taken place, and until such costs were incurred, that hardly any adjudication could lead to a just result. Thereupon the noble Duke issued a commission to inquire into the state of the law, and to report to the Sovereign thereon, suggesting such remedies as to the commissioners might seem most expedient and best calculated to remedy the evils to which he had directed their attention. That commission included the most reverend prelate then in the House, it included several of his right rev. Friends; amongst the commissioners was the noble and learned Lord opposite, and several of the most eminent judges of the land. They proceeded to the task which the noble Duke had assigned them with the greatest zeal and industry, and made such a report as was not often made. Those commissioners gave their opinion decidedly in favour of preserving to the bishop his ancient jurisdiction over the clergy of his diocese, although they thought he might delegate to his chancellor jurisdiction respecting disputed wills and other questions of that nature; the report distinctly stated the doctrine relative to the canon law in this particular, and this he found to be in exact accordance with the opinions which he had taken the liberty of stating to their Lordships on the subject of the present bill. The language which the commissioners used in their report was this:—"With respect to the tribunal which we recommend, we remark that it will restore to the bishops that personal jurisdiction which they originally exercised, and which was afterwards delegated by them to their chancellors and officials. The doctrine of the canon law is, that although the trial of causes of certain descriptions may be properly intrusted to a lay judge, to the bishop himself belongs inquisitio correctio punitio excessuum scu amotio a beneficio." Agreeably to this principle, the power of deprivation is reserved to the bishops in person, and the same principle seems to apply to the case of suspension, and to the infliction of any other censure which may affect a clergyman's spiritual functions. Their Lordships, of course, would not overlook the fact, that the name of the framer of the present measure was included in the 612 commission. The noble and learned Lord who brought it in, might have acted as midwife; but the parent of the bill was one of the commissioners. He begged the House to contrast the declarations of the report with the measure then on their table, which violated every recommendation of the commissioners. For example, the commissioners said, the bishop ought with the aid of an assessor, to hear and determine all matters relating to the conduct of the clergy. His right rev. Friend near him had said, that great advantages would accrue if the whole of the recommendations of the commissioners were attended to; surely, then, that right rev. Prelate must now vote against the bill. It was expected, that the report made at the instance of the noble Duke would, in 1834, have led to some measure; but, as their Lordships were aware, no such result ensued. The Session of 1834, was called "the do-little Session;" and certainly nothing in that year was done with reference to the measure in question. It was stated, however, by Sir John Campbell, in 1835, he not being then Attorney-general, that when he had filled that office, a bill in accordance with the recommendations of the commissioners had been prepared; but he and his Friends thought, that if brought in, there would, at that time, be no chance of its being carried. This led to the year 1835; and thus was he enabled to say, that his late Majesty's Ministers had expressed sentiments diametrically opposed to the present bill. In 1834, 1835, and 1836, successive Ministries declared in favour of adopting the recommendations of the commissioners. The most rev. Prelate near him, said, in reference to the measure introduced by the noble and learned Lord opposite, that the subject was one of extreme difficulty and importance. The most rev. Prelate called upon every Member of that House, lay and spiritual, to use their best endeavours for the purpose of making the bill as perfect as possible. There was not a whisper against the principle of the measure; it underwent some slight alterations in Committee, but the bill passed their Lordships' House unanimously. It was, however, not passed by them till the 2d of August, when there was no hope of its passing the Commons. In that hon. House, it was not even read a first time; and they did wisely and well on so short a notice not to take the bill into their consideration. The year 1837 was 613 allowed to pass without any renewal of the bill, and now, at this late period of 1838, a totally different measure was laid on their table. A very learned personage, who had been a member of the commission, had told them in terms, that he thought the scheme agreed to in 1832, to be wholly impracticable. Now, this same learned personage had agreed to the report of the Committee in 1832, calling upon Parliament to agree to that very project which, in 1838, he declared that he had always thought calculated to increase the existing evil, and, in short, impracticable. That learned personage was now in the decline of life, and his opinion, which might have possessed much weight when he was six years younger, was, at present, of considerable less value in his (the Bishop of Exeter's) estimation. He could answer for it, that the report which was thus pronounced to be impracticable, had been carried into effect in his (the Bishop of Exeter's) diocese and elsewhere. It was true, that the bishops had been asked, whether this scheme was agreeable to them; but at the first meeting which had been held upon the subject he (the Bishop of Exeter) had arrived rather late, and he had been obliged to tell the meeting that, upon a matter of such grave importance, he could not make up his mind at once; but at the same time he did not shrink from fairly stating his belief that the measure would involve an extinction of the practical functions and authority of the bishops. He was unable to attend the next meeting; but he had been favoured with a copy of what he understood to have received the sanction of a majority of the bishops. No bill was, however, at that period submitted; and he had gone down to the country, not knowing that his brethren had assented to any measure of this description. Upon his arrival at the place of his destination in the country, he found, among his Parliamentary papers, one which struck him with very considerable surprise—namely, the bill which was now upon their Lordships' table; a measure, which, so far from having, like other bills, been elaborated with any ordinary degree of care, had sprung forth a perfect Minerva from the head of the noble Lord, complete at its birth. Almost immediately afterwards, the committee upon the bill was, he found to his infinite astonishment, appointed. Upon his ascertaining this, he started 614 forthwith to town directly after dinner, to oppose its further progress. It was a measure affecting the most important interests and essential functions of the clergy, on behalf of whom he earnestly appealed to their Lordships. The clergy of this country had not yet had an opportunity of knowing one fraction of the provisions of the bill. If it was a bill for the regulation of master chimney-sweepers, it would have been proceeded with in a more careful and patient spirit. Surely, it was not to be endured that such a bill should pass from their Lordships to the other House of Parliament, in the absence of many of those who would be the most likely to give it a careful consideration, to be dealt with by a summary process, and hurried indecently through the House. He, therefore, did not believe that their Lordships would grant a third reading to the bill, but that they would rather agree with him when he proposed, that it should be read a third time that day six months.
The Archbishop of Canterbury
observed, that if hard words and insinuations could secure the fate of this bill, its doom might be considered as sealed. If, according to the right rev. Prelate's statement they had been influenced by a desire to devise a measure which would become destructive to the legitimate influence of the bishops as well as to Church discipline generally, they would have just fixed upon the present bill; and yet, according to the right rev. Prelate, the measure had emanated from individuals who were entitled to the highest respect. The right rev. Prelate had paid some compliments to him which he was aware, that he did not deserve. He had also alluded to the very eminent judge who presided over the court of Admiralty, and he had indulged in insinuations, which he had heard with the utmost concern, with respect to that revered judge's faculties being impaired. Now, he could say from personal knowledge, that those insinuations were unfounded. But the attacks of the right rev. Prelate were not confined to that revered judge; but he had chosen to impute to the Lord Chancellor, that he did not act in this matter upon his own motion, but was prevailed upon by the representations of others to take charge of the bill. Now he would scorn to shelter himself under the wing of others, or to decline to take to himself his full share of responsibility in this matter. The bill, however, which had 615 not been framed without consulting the entire bench of bishops, for no fewer than two preliminary meetings had taken place, which were numerously attended. Upon one of those occasions the right rev. Prelate had attended, and objected to the bill, but certainly not in the terms of reprobation which he had chosen that night to employ, nor anything like those terms. There was, he believed, only one other Prelate who objected to the bill upon that occasion, and who did so simply on the ground, that he was satisfied with the working of his own court. He was requested by that body of bishops to carry the heads of the bill to the Lord Chancellor, as having received their approbation, and they being desirous, that it, should be carried into effect. He did not imagine that their Lordships would be much influenced by the assertion of the right rev. Prelate as to the interference of this bill with the inherent rights of the Church. Most of the right rev. Prelate's observations upon this subject applied to a perfectly different state of things from the present, when the Church was an independent society, not at all connected with the State, and its affairs were managed by its own officers. Referring to the Reformation, and especially to the Revolution a great deal of business was committed to them which did not properly belong to them, and yet was judicially disposed of by the chancellors nominated by them. The case which had been referred to by the right rev. Prelate afforded a very sufficient illustration of the evils attending upon the old mode of proceeding in the ecclesiastical courts. At present either party might appeal, from the courts of inferior jurisdiction, or from the diocesan courts to the Court of Arches. Now, this was the state of things from which the bishops who had acted with him were desirous of relieving the Church. According to the plan now proposed, there would be only one appeal to one of the courts from a final sentence or from a decree having the effect of a final sentence. But it was said, this was taking away the jurisdiction of the bishop and transferring it to another court. But a cause might at present be removed at any time to the Court of Arches; at least, this was the case both with the inferior courts and the greater part of the diocesan courts. It was extremely desirable that cases of this kind should be heard before a sufficient court, 616 one competent to decide the questions which came before it, and to carry its decrees into execution, with a bench of advocates who were able to do justice to both parties. Would the right rev. Prelate say, that the courts at present in existence furnished any such means? The consequence of the continuance of the present mode of procedure would be to continue the inefficiency of the present state of things. When the right rev. Prelate spoke of innocent persons being dragged up to London, it was no more than they were exposed to at present, and he considered that it would be much better for them to have their cause heard before one competent court than to be subjected to an inquiry before a court of inferior jurisdiction, and then to have the cause removed to the Court of Arches. With respect to the feelings of the clergy on this subject, what other feelings could they have but a desire that justice should be done on those who were a disgrace to the clergy? He was sure that there was not a respectable clergyman in England who contemplated being dragged before this tribunal, He would, however, tell their Lordships what the clergy did object to in the bill of 1836, the history of which had been given at so much length, and that was, a provision that the clergy should serve on juries, to judge their brother clergymen. To return to the present bill, their Lordships would recollect that the present courts must be presided over by bishops who could not retire, like the judges, when they were superannuated or infirm. But the court proposed would always be competent, and as its jurisdiction would be extended over England and Wales, there would be no questions about local jurisdiction. He hoped he had shown, that there was nothing new in the Court of Arches taking original cognizance of these cases. The alteration suggested would also much diminish the expense of the present process. He repeated, that he made himself responsible, not for the details of the bill on anything he did not understand, but for the principle on which this bill was framed. If he was wrong, as very likely he might be, and he was shown that he was wrong, he was very ready to give it up. He had been actuated by no other motive than a desire to make the discipline of the Church as effective as possible, and of removing a blot which had long shamed the Church—namely, 617 that offences had been committed with impunity by clergymen, while any attempt to punish them by prosecution bore more severely on the prosecutor than the prosecuted. He should not shrink from the odium of unpopularity which such unfair observations as he had heard that night might tend to create against himself and other authors of this bill. He was not disposed to weaken episcopal authority, nor to invade the privileges of the forum domesticum. The right rev Prelate said, that supposing a measure of this kind to pass, he would avail himself of the spiritual powers given him by the supreme head of the Church, and that he would call on the offending clergyman, by his oath of canonical obedience, to repent of his errors, and to amend his life. But did this bill interfere with the forum domesticum? Did it not leave the full exercise of those powers to every Bishop on the bench? Of those powers the Bishops could not divest themselves, but so far from being weakened by the bill, they would be strengthened when it came into operation. It was impossible to suppose that any Bishop would carry on a prosecution against a clergyman when he might carry his object into effect by the milder methods of persuasion and reproof. A prosecution was only resorted to when the reformation of a criminal was hopeless, and he had no other course to pursue. Some invidious attacks had been made upon the 10th and 11th clauses of the bill, which gave the Bishop power to suspend clergymen pending prosecutions against them: but after the bill had been read a third time he would propose a clause which would, perhaps, meet the views of the right rev. Prelate. He would not now go further than to say, that ecclesiastical courts had been before their Lordships for many years, and had been the subject of frequent discussions, and that it was now time to put an end to it, in order, that the enemies and friends of the Church might not have it in their power to say, that crimes could be committed by clergymen with impunity. No remedy could be proposed for the existing evils which were admitted, that would not be met by objections from some parties; but still he held the principles on which the bill was now opposed by the right rev. Prelate were erroneously founded, and that, as no mode of amendment could be expected to give universal satisfaction, he trusted their 618 Lordships would now allow the bill to be read a third time.
The Bishop of Exeter
rose to answer two questions put to him by the most rev. Prelate. The most rev. Prelate had asked if he could prevent a cause being now brought originally from the provincial or diocesan court into the Court of Arches in London. He begged most distinctly to say, that he could. The most rev. Prelate said, that the report contained directly the contrary; he would put the report into the hands of the most rev. Prelate, and entreat him to point out the passage. He had, as was his duty, made it his business to ascertain what was now the practice, and he had asked his own chancellor whether he granted letters of request ex debito justitiœ or ex gratiâ, and he had been informed, that so far from being a matter of course, he (the chancellor) always deliberated whether or not he should grant them, and had added, that there was then a case in his court in which he had refused them. He had learned also, that it was impossible in all the cases of the correction of clerks to find a single instance in which by letters of request the causes had originated in the Court of Arches. The next question put to him was, as to the party who pronounced now the sentence of deprivation. As the law now existed, the sentence was pronounced by the bishop, not coming up to the Court of Arches, but in his own diocesan court. If the sentence was appealed against, it came to the Court of Arches, and then went back to the diocesan court, where the Bishop pronounced sentence. He protested, that such was, he firmly believed, the state of the law at present.
said, that he was that some of the right rev, bench who had served on the commission should have an opportunity of addressing the House on this subject; but as none of them rose he was desirous, mixed up as he had been with this question, of offering a few observations to their Lordships. He entirely agreed in what had fallen from the most rev. Prelate in the very candid and temperate statement which he had made with respect to the object he had in view; he was sure that no man who knew the most rev. Prelate as he (Lord Brougham) had long had the happiness to do, or any one who by reputation knew the most rev. Prelate could have the slightest doubt of the entire and absolute 619 purity of his intentions—of that purity which had influenced the whole of the most rev. Prelate's career. The most rev. Prelate might now differ in opinion from those with whom he had before agreed—he might now have a new view of the subject from that which he entertained when on the commission, and this was an additional ground for confidence in the candour of the most rev. Prelate. But it was one thing to give the most rev. Prelate credit for candour, and it was another thing to consider he had been wrong in his views in 1830—again in 1832, and again in 1835, when a bill on this subject had been most fully discussed in Committee, and without opposition. He (Lord Brougham) had listened with the utmost attention, as he always did, to every thing that fell from the most rev. Prelate, especially upon ecclesiastical matters, and with an extreme desire to learn what had produced so great a revulsion and change of sentiment in one who had agreed with him (Lord Brougham) on a former occasion. He had listened with profound respect to the most rev. Prelate, but from the beginning to the end of his speech he had been unable to discover any single shadow of argument against the report of the commissioners, or against the bills founded upon it three or four different times by the Government of the noble Duke opposite (the Duke of Wellington), by the Government of the noble Viscount near him (Viscount Melbourne), and by the Government of Earl Grey—bills all intended to give that report full and immediate effect. The arguments of the most rev. Prelate had been confined, not to a comparison between this and former remedies, but between this bill and no remedy at all for the present defective state of the ecclesiastical jurisdiction. He had no wish to interfere between the two right rev. Prelates, both of whom were eminent ornaments of the Church, but he could not help feeling but that the right rev. Prelate was justified in complaining that the recommendations of the commissioners had been so completely departed from in the present bill. The most rev. prelate appeared to be surprised at the strictures passed on this measure by theright reverend relate. He (Lord Brougham) would only say on this point—Tantæne animis cœlestibus iræBut he thought that the most rev. Prelate 620 did not state the facts of the case quite fairly when he referred to the extreme case of Mr. Free, and asked whether for such a case of delinquency there should not be provided a remedy. The right rev. Prelate, however, did not say that such a state of things should be allowed to continue, for he distinctly stated it was a very bad state of things, and that a remedy should be provided, but that the present measure would not be an efficient remedy. He (Lord Brougham) agreed with the right rev. Prelate that there should be a remedy, but that the former one that was proposed was infinitely better than that proposed in this bill. The most rev. Prelate said, that the court recommended in the report of the commissioners, and proposed in the former bill, was not so perfect a court, as there was not so much legal knowledge in it as there was in the court of Arches. The report did not propose, as had been supposed, that the Bishop should preside in this court; but it recommended that he should have an assessor. It did not propose, that the Bishop should be personally sitting in foro domestico, but that he should be there by deputy. The present bill, if passed, would take the immediate jurisdiction from each Bishop, and would provide that all cases should come up to Doctors' Commons from all parts of the country, even the most remote. Therefore, if the conduct of a curate residing in Wales was called in question the case must be brought up to London; and the same with a poor parson in Cumberland, in Berwick-on-Tweed, or at the Land's-end. According to this bill every case must originate in Doctors' Commons, although the commissions had unanimously recommended that the case should in the first place be heard before the Bishop or his assessor. He was satisfied that it was better that the matter should commence in this way, as was proposed in the other bill, than that every matter of this kind should be dragged up to London. Now, this bill would really disable a Bishop from proceeding in case of delinquency if he was at all anxious as to the amount of the expenses he was likely to incur. The Bishop of the diocese, be it recollected, was liable to all the expenses of this proceeding, for he must defray the charge of bringing the witnesses up to the Arches Court, and their maintenance here, and the employment of counsel, and all the 621 other heavy expense of proceeding in this dilatory court. He entertained great respect for Sir John Nicholl and his nephew, Sir Herbert Jenner; but, notwithstanding all his respect for these learned judges, he must most strongly object to the mode in which the business was conducted in their court. In their court the judge never saw the face of a witness, but the evidence was taken by depositions, and the form in which it was taken was as objectionable as the system which existed in the old court of session in Scotland before it was reformed; and the form of the pleadings in this court was in conformity with the inconvenient, verbose, and antiquated mode provided by the civil law. Instead, therefore, of examining the witnesses vivâ voce on the spot where the character of the poor clerk might be known, the whole of the parties were to be dragged up from the most distant parts of the country to Doctors' Commons, where the witnesses would not be questioned in open court, but where they would have to make depositions which would have to be written out, then printed, and, after the lengthened proceedings on one side and the other, judgment might be given; then the case might be carried to a Court of Appeal, and the whole proceedings would have to be gone over again. This bill, therefore, had first the bad quality of preventing a Bishop doing his duty, unless he were willing to incur the responsibility for the heavy expense that necessarily would be entailed by such proceedings as were directed in this bill, in this most expensive court; and, secondly, it enabled a malicious person—if there could be such a being on the bench of Bishops—to subject the clergy of a diocese to ruinous expense, by adopting proceedings against them in this court. If they went on legislating in this way, by passing a bill unanimously, for two consecutive years, and then in the following year passing a measure every enactment of of which was contrary to those in the previous bill, he did not see how they could obtain any respect for the proceedings of that House. He did not see how they could ever hereafter get men of great learning and acquirements to act as commissioners if their labours were to be treated with the contempt which they had been, by adopting in this bill, principles directly at variance with their recommendations, There were 622 fifteen commissioners, men the most eminent for their learning and acquirements, who had inquired into these matters, and after they had expended, much time and pains on the subject they unanimously adopted a report, to which they affixed their names and signatures. The report gave the reasons why the commissioners adopted the various recommendations contained in the result of their labours, and all of which recommendations had been embodied in the bill which had wisely been suggested by them. He had entertained not the slightest doubt on this part of their labours, and he had himself introduced a bill which he might almost say had been prepared by the commissioners for the carrying out the object which this bill was brought forward for the purpose of effecting. The same measure had been brought forward twice in the other House by Sir F. Pollock, but in consequence of the late period at which it was brought forward on both occasions it had not passed the other place. In 1836 the bill, however, which he had introduced passed through all its stages in that House, but at too late a period of the Session to be passed into a law. But what did Sir John Nicholl do? After agreeing to the report and signing it he had taken active steps to call upon the Legislature not to carry the recommendations of the commissioners into effect. No new light struck him on the subject until 1838, when he found out that all the recommendations introduced into the report—which he had signed and sealed, and which he had taken such an active part in preparing—were fallacies, and that it was advisable to frame an enactment on principles diametrically opposed to those of the former bill. The only explanation which he had deigned to give was in a letter which he had sent to other commissioners, in which he said that, as an objection had been made to the recommendations of the commissioners—but he did not say from whence or what was the nature of the objections, or upon what they rested—it would be better to introduce another bill, of a different nature from the former. This bill had in consequence been introduced, and it was diametrically opposed to the recommendations which were contained in the report to which Sir John Nicholl had set his seal and signature. Now, he thought that the least this learned individual could do was 623 to lay those lights before his colleagues in the commission to see what effect they might have upon them. He would remind the House that, in addition to the most reverend Prelate, two other right reverend Prelates, of great eminence, were on this commission, and concurred in the report; there was also Chief Justice Tindal. Was the opinion of that learned judge in this matter to be regarded as nothing? There was also his noble Friend who formerly held the office of chief justice of the Common Pleas. Was his opinion to be regarded as nothing; and was he not to be informed of the reasons which induced Sir John Nicholl to change his opinion? Was the opinion of Dr. Lushington, who was one of the commissioners, and who was the most eminent practitioner in the civil courts, and who, indeed, was the author of the report, to be regarded as of no weight or authority on this subject? And here, alluding to the report, he begged to state to the House that just previous to its publication the late Lord Tenterden told him that it was by far the ablest report that had ever come from any commissioner, and he found that this high opinion of its merits was fully borne out when he came to peruse it, He had read this document most attentively, and he found that it was drawn up with much learning, and the reasons that were given for the various recommendations embodied in it were most satisfactory, and fully justified the introduction of every clause that was to be met with in the old bill. It now appeared, however, to that learned person, Sir John Nicholl, that there were some objections to the establishment of the forum domesticum in each diocese, but what they were he did not deign to state; but it was determined in this bill that in every case the parties should appear in curiâ Sanctœ Mariœ de Arcibus, which was held to be the real forum domesticum of each and every one of the English dioceses. This reminded him of the old argument that had been urged in justification of imposing taxes on the then British settlements in America, now the United States, namely, that they were held to be part and parcel of the manor of East Greenwich. That was always part of the old plea in legal proceedings regarding America, and was held to be a sound argument for taxing that country. It now appeared that the new light that had broken on the mind of Sir John Nicholl 624 was something analogous to this, and they were, in consequence, called upon to throw to the winds all the recommendations of all the other commissioners. For his own part, he was most decidedly opposed to this bill, and in favour of the old measure. He did not think, if the recommendations of the commissioners were to be treated in this way, that any man of learning or eminence would consent to serve as a commissioner again. It was clear that those who agreed with the provisions of this bill must differ in toto cœlo from all the enactments of the former one, and yet they had not beard a single reason why the former should not be adopted in the place of the latter, which was the result of the labour of so many learned individuals. One other ground of objection to this bill was the time in which it was brought forward in this House. If it passed it would be within a week of the time in which the former bill was sent down to the other House, and which was thrown out by it, in the sessions of 1836, because it came down at so late a period to be considered. Such he also ventured to foretell would be the result of the present bill, should it pass that House. They were now, however, called upon to pass this measure, and to give up their own opinions for that of one commissioner, who showed that he was fickle and uncertain in his opinions. Was it then a sufficient reason to give up their opinions merely because Sir John Nicholl had sent the other commissioners a letter, or rather verbosa et grandis epistola venit, which mentioned no reasons which could justify a change of opinion on such an important subject? It was very possible, also, that this learned person, who had so hastily changed his opinions on this subject, might do so again; they therefore should not hastily adopt the present plan. At any rate, it was clear that the bill could not pass the House of Commons during the present year, for he was sure that House would look into the report of 1832, and this alone would be sufficient to prevent their getting through the bill this Session. This bill had not been many weeks before Parliament. [The Bishop of Exeter: it was not introduced until the present month.] Under these circumstances he could not believe, that the proposers of this measure were sincere in wishing to pass it during the present Session. He repeated, that no reasons had been given 625 which should induce them to change their opinions; and he was sure that they would not so readily induce the other House to abandon their opinions on this subject. With respect to the differences that had existed between the two right rev. Prelates, he would only say that he regretted that it had taken place; butNon nostrum inter nos tantos componere lites.He would only add, that he thought before the learned judge to whom he had so often alluded recommended the Legislature to pass this bill, he should go before his colleagues in the first instance, and propose to them to change their opinions; for he had not yet given any satisfactory reason or authority that could justify his abandoning the report and adopting the bill. Indeed, he was convinced that it was utterly impossible for him to give any such reasons. He must also observe, that he should tell his excellent and learned Friend (Sir John Nicholl) that if he at any time hereafter found his learned Friend's name to a report of a commission, and if he found him the strong and able advocate of the recommendations of that commission, and if he at the same time asked him (Lord Brougham) to bring in a bill founded on such report, he should say to him, "I shall pause, Sir John; for you again within a twelve-month will tell me that you and your colleague were altogether in the wrong, and that you arrived at conclusions directly opposite to those which you should have adopted; no, good Sir John; you must get somebody else to propose your measures." He trusted, in conclusion, that they would not proceed with that bill, but would adopt the amendment of the right reverend Prelate.
The Bishop of Lincoln
was understood to declare that, as one of the commissioners, he felt not the slightest hesitation in giving his support to this bill. He was as anxious to maintain the rights and privileges of the Anglican Church as any of his right reverend brethren; but he was convinced that this measure would not produce the slightest injury to any of those rights. He doubted much whether the second clause of this bill would be attended with any of those inconveniences which had been descanted on with so much eloquence by his right rev. Friend (the Bishop of Exeter), or that it would prevent a diocesan having recourse to the forum domesticum.
§ Lord Wynford
recommended, under all the circumstances, the withdrawal of the bill for the present Session. The great grievance pointed out by the commissioners and complained of by the Court of Chancery itself was, that vivâ voce evidence was not taken in the courts of Doctors' Commons. The alteration which the commissioners had recommended in this respect was the very best that could be made, and he was at a loss to know why that recommendation should be given up. The present course was most expensive to the litigating parties, and inconvenient to the progress of public justice. In regard to appeals, he did not think that nine out of ten cases which came before the courts would be appealed, while the expenses of sending a commission into Cornwall or other distant counties would be, to many, ruinous. As to the shortening of time in the trial of those cases, the most rev. Prelate stated, that any question at issue would be settled in six months, but he feared such a period would be found much too short for Doctors' Commons. He was persuaded, that there would be neither a saving of time nor of expense by the plan proposed, and if the bill passed he made no doubt that he should hear of cases remaining five years unsettled. He was unwilling to trespass upon the time of their Lordships, but there was one clause of the bill to which he felt bound to call their attention. If sentence of deprivation was passed, it was provided by one of the clauses of the bill that the expense should be paid out of the living. To such a provision he decidedly objected, and if their Lordships were to sanction such a clause, he would ask what answer they could give if they were again asked to pass a measure for the abolition of Church-rates, and placing the maintenance of the fabric of the Church as a burden upon the property of the Church itself? He considered this a most objectionable interference with church property, and if they allowed the poor livings to be taxed for the purposes of this bill, it would be impossible to refuse to tax the property of the Church for the support of the fabric of the Church. What pretence was there for such a scheme, or on what principle could it be sanctioned? He thought it was most unjust to make the succeeding incumbent pay for the faults of others, and he could see no principle upon which a clause con- 627 taining such enactments could be supported, and he was persuaded, that if the bill containing such a clause passed, the results would be most injurious to the Church.
§ The Duke of Wellington
was not at all astonished that the most rev. Prelate should press their Lordships to pass the bill now under their consideration during the present Session. It was above ten years since the subject to which this bill related was under consideration by a committee of their Lordships' House, and since the report on which the bill was founded had been given in, and he was not therefore surprised that the most rev. Prelate, after having seen several attempts made to pass a measure on this subject, and after having seen the failure of all those attempts—he was not, he said, under those circumstances, surprised that the most rev. Prelate should have thought it expedient to attempt to prevail upon their Lordships to pass the bill under consideration, or that he should have requested the noble and learned Lord on the Woolsack to prepare and bring in such a bill. He must confess, however, that considering the importance of the subject, and the lateness of the period at which the measure had been brought forward—considering, too, that this was the first occasion on which the House had had an opportunity of deliberating on the bill, and considering also the difference of opinion which prevailed upon the right rev. Bench, he was most anxious, keeping all these circumstances in view, that their Lordships should postpone the measure till some future time. Having listened with the greatest attention to the discussion which had that evening taken place, he was obliged to confess that he had heard no answer to some of the most important objections which had been urged against the bill by the right rev. Prelate who had moved that the third reading should be postponed for six months. In the first place, he did not think it was quite clear that the forum domesticum, which the whole of the right rev. Prelates admitted should still continue to exist, could exist were the bill passed, and the sixth clause remain unaltered. The right rev. Prelate who had last spoken, had said, that he doubted whether the sixth clause did not deprive the bishops of their authority in this particular court. The right rev. Prelate said, there might be 628 doubts upon the subject; but surely, if such doubts existed on a point of so much importance, they ought to be cleared up, and it ought fully to be understood what authority would remain to the bishops should the bill pass. That, then, was an argument for delay, and for more mature deliberation. The right rev. Prelate had read a letter from the principal commissioner, who was stated to have framed the report on which the bill was founded, and whose opinions were entitled to the highest respect, and it appeared that he also thought that the forum domesticum ought to be preserved. It appeared also, that in the rust bill which had been introduced on this subject, certain words were inserted which tended to secure the authority of the bishops and the continuance of those courts, but for some reason, which had not yet been explained, those words had been omitted in the present bill, and he could not but doubt the propriety of that omission. He, therefore, thought that their Lordships ought to pause before proceeding further with the measure, which in his estimation required more mature deliberation than it had yet received. Then he must confess, also, that he had great objections to the clause which had been alluded to by the noble and learned Lord near him (Lord Wynford). He could see no reason for the extraordinary provisions of that clause, nor could he approve of the principle upon which it was framed. It might be proper to provide for the payment of costs, but it was only when all other means had been tried, and every other source exhausted, and not till then, that they should make the costs fall upon the property of another, on the property of persons who were innocent—namely, the patron of the living, or the incumbent succeeding the delinquent. He never could consent to the bill without a material alteration in the clause to which he alluded. But, considering that that objection was a mere trifle compared with others that had been urged, and considering that by far the most important provisions of the bill were contained in the first and second clauses, to which their Lordships' attention had scarcely been directed, he would decidedly recommend the postponement of the measure till a future period of the present Session, or till the next Session of Parliament.
§ The Lord Chancellor
said, that the question whether this bill should pass into 629 a law this Session, was one of very considerable importance, because another measure, which the House had before it in the year 1836, had been necessarily postponed until some measure of the kind should be introduced. In that year their Lordships appointed a Select Committee, to inquire into the general question of Ecclesiastical Courts, and resolutions were adopted which were embodied in a bill which would have taken its regular course, if it had not been found that it was impossible to proceed until a bill of the description of that now before the House should be agreed upon. In order to meet the difficulty, he with the approbation of a portion of the right reverend Bench of Bishops, for he must confess they did not all concur in his views, submitted to their Lordships a bill for the purpose of establishing a jurisdiction to meet the difficulties which were in existence, and to provide for the regulation of that description of property mentioned in the present bill. When he proposed that measure, he had entertained great hopes that it would have passed into a law, for it appeared to be a scheme which would remedy many of the evils which had existed, and would effectually provide for the discipline of the Church. When its object became generally known, however, various difficulties were started by those who were most interested in it. It became exceedingly unpopular among the clergy, it received no countenance in the House, and it appeared that it was never likely to pass into a law. He had always held himself ready to give every assistance to remove any acknowledged evil, and to afford a proper tribunal, but the last Session and the early part of the present Session of Parliament passed away without anything being suggested which would remedy the evils complained of, and then the most rev. Prelate devised the present plan, which was acceded to by some of the right rev. Bishops, and which, besides, it was admitted, was most likely to be beneficial in reference to the subject now before the House. It appeared to him that the bill would be most likely to succeed, and to secure the desired object; it did no possible injury to any man, and it provided a jurisdiction less expensive and more effectual than any which had hitherto existed, and it changed that which it was almost universally admitted wanted improvement—the Ecclesiastical Courts. Therefore it was, that he did commit that 630 great offence which had brought down upon him all the vituperation of the right rev. Prelate, of helping to bring in this measure, and therefore it was, that he had also been guilty of having assisted in passing the bill through its former stages, and now of proceeding with it to its third reading. The right rev. Prelate knew well what part he had taken in the matter, and he knew quite well from what quarter the bill proceeded; but knowing this, and moved by some passion which might be agreeable in some, but not in others, to exercise, he made an attack upon him in reference to the matter. Now, these things had not the slightest effect upon him, and if the right rev. Prelate thought that he was like some other men he was much mistaken, for he could assure the right rev. Prelate that he had no feelings at all upon the subject, and he would not be led away by the temptation which had been held out to him to say one word in answer to those remarks which had been made. Now, leaving the vituperation of the right rev. Prelate, he would address himself shortly to the subject matter of complaint before the House. The noble Duke had said very rightly and properly, that this was not only a matter of great importance, but also of great difficulty. He held in his hand the Report which had been made to their Lordships in the year 1832, and the noble and learned Lord had said that, considering the great name that was attached to that report, it must be received with great respect. If anything, however, would detract from the weight to be attached to that report, it was, that he was not aware of any one member of the commission who now adhered to the opinions which he had there expressed, and to the proposition which had been made. He could name a majority of those whose names were appended to the Report who had so altered their views, and he believed that there was only one individual who retained the opinions he had expressed. He had stated, that there was no member who had signed the Report whose present opinion could be quoted in favour of it. No doubt it proposed great improvements in the system which had formerly existed; but the House must remember the very great inconvenience and expense which had belonged to the ecclesiastical courts, with regard to which there could be no exaggeration. It was a grievance which all admitted, and 631 to which all were agreed, some remedy should be applied, the only question being how it was to be done. Now, he repeated that this was a preliminary measure only, and the real question was, whether matters should be allowed to continue as they were, or whether the plan proposed would not be a material improvement? He had no hesitation in saying, that the effect of it would be a great saving of the expense and delay which were now necessarily incurred, for the very proposition which it made was neither more nor less than that, instead of the parties going to the Bishop's Court first, they should go at once to the Arches Court, all the intermediate proceedings and consequent costs being therefore saved. Yet this was the clause at which the bishops were alarmed, and which they opposed, as detracting from the importance of their office, and as taking away their authority. It was said, that it was too late in the Session for the other House to take up this bill. This might be a very good reason for the other House not to proceed with the bill when they received it; but it appeared to him, that it was no ground for their Lordships not to proceed with it. There was another measure of extreme importance connected with the Church which could not be proceeded with till this was passed; and he very much feared, owing to the tardy proceedings of the House in the early part of the Session, both these measures ran a great risk of being delayed another year. On these considerations, he hoped their Lordships would not postpone the passing of this measure.
The Archbishop of Canterbury
said, that although he had not, in the course of this debate, heard anything to shake his opinion of the desirableness of passing the present measure, yet as it seemed to him that the general feeling of the House was against proceeding with it, he was not disposed to press it at the present time.
§ The amendment agreed to, and bill put off.