HL Deb 25 July 1839 vol 49 cc765-72

On the Order of the Day being read for the third reading of the Church Discipline Bill,

The Bishop of Exeter moved, that the House do now adjourn, but after some explanation, withdrew his motion, and stated, that the proceedings with respect to this bill were rather remarkable. It had been referred to a committee upstairs, before which it had been for upwards of six weeks, and very great alterations had been made in it. These alterations had been introduced in the reprint, but nobody had explained the object of these changes. He put it to the promoters of the bill, whether it would not be better to explain the scope and object of these alterations before they proceed further.

The Earl of Devon

was rather surprised at the right rev. Prelate manifesting an appearance of ignorance at the alterations made in committee, which, if he was not much mistaken, was often attended by the right rev. Prelate. He would, however, shortly proceed to state the object of the alterations, and the grounds of proposing the third reading of the bill. He knew that this bill would be exposed to the most strenuous opposition of the right rev. Prelate, because it did not give to the bishops that power which the right rev. Prelate thought it was desirable they should possess in the government of the clergy of their respective dioceses; and he believed also that it would be opposed by others, because it gave too much power to the bishops. It often happened, however, that a bill that was opposed strongly by the extremes of both sides, was most worthy of the attention of the Legislature. The bill had been introduced to the House by the most rev. Prelate, and its object was, to get rid of the anomalies and difficulties that were now met with in adopting proceedings respecting the conduct of the clergy in the Ecclesiastical Courts in various parts of the country, in which the proceedings were not always conducted in the best possible manner, and they could not always command the best talent in their local ecclesiastical jurisdictions. It was impossible that such a state of things could afford anything like satisfaction. The bill, therefore, proposed to abolish those courts, and to submit those causes to the Court of Arches, which court, by the registrar, was to have the power of taxing the costs, and of enforcing payment of them in the manner adopted in any of the Ecclesiastical Courts. A good deal of discussion had taken place in committee as to the propriety of altering the existing law; but, upon the whole, it had appeared that it was not necessary or desirable to preserve to the bishops the power of excercising a judicial authority for the correction of clerks, when it was required to go to a regular trial. Clauses, however, had been introduced, calculated to obviate some of the objections which had been raised to this part of the measure. The object had been, to preserve to the bishops the superintendence and control of the clerk, so far as it was possible, with a due regard to the objects of the bill. He thought their Lordships would agree with the committee, that when it was necessary to submit the conduct of a clergyman to a judicial court, that in such a case, it would be well that the bishop should not be the judge. Such was the general nature of the bill. The general principle of the measure was, to allow the bishop as much authority as was beneficial for the interest of the Church, and, when it became necessary, to give a power to call to the aid of the bishop a court of justice.

Viscount Canterbury

could understand that the preamble of this bill expressed distinctly the feelings of the public, and it might be fit that legislation should take place. The preamble stated, that it was desirable to have uniformity of proceedings in causes relating to the correction of clerks; that it was desirable to have those causes decided in one court; that the number of appeals should be diminished, and that the decision should be given in all such cases, by a person presiding over a court of justice, subject to an appeal to her Majesty in Council. That, in his opinion, would be satisfactory to the public. But when the noble Lord said, that the bill would prevent the circulation of scandal in cases of misconduct, which were not of an aggravated nature, and that the bishops would have the power in such cases, to preserve the scandal from being made public, he must beg their Lordships to look at the provisions of the measure. And what did he find first. Why, it was provided that a copy of the charge of misconduct should be laid in the office of the registrar, which any one might inspect on the payment of a shilling; and it was also provided, that copies of the charge might be obtained by any person for a moderate sum, and all this was before the suit was commenced, and before the person bringing forward the charge had entered into any guarantee to prosecute. Was, then, an individual to be allowed to circulate charges against a clergyman of the most aggravated character—charges brought forward, perhaps, from a spirit of revenge, and without the slightest foundation in truth? Could such a proceeding prevent the circulation of scandal; or was it consistent with justice to allow such charges to be thus made public more particularly when the accusing party was not bound to prosecute? Now, that was not in furtherance of the objects contemplated by the preamble of bill, and it could not have been the intention of its framers to enact such a provision. Upon this point, therefore, he was sure that their Lordships would be of opinion that the charge, when made, should be less obnoxious to the individual, and less calculated to promote injustice. As the law now stood, a clergyman could not be deprived of his clerical character, except by a sentence of a Court. He could understand that great objections might be urged against the provisions of the bill on the score of personal severity and hardship. It might be very hard to bring a clergyman from Northumberlandor Cornwall to London, when he might have his cause tried in a country court. At present there were eighty courts in which causes of this nature could be tried, and it was unreasonable to expect that all those would have learned judges to preside over them, or that there would be uniformity in their practice, but this might be the case if they had four or five courts. It appeared to him to be a strange thing that by this bill power was given to the bishop to decide whether a cause should be tried or not. He was not aware that the bill was to have come on that evening; indeed he had been told that it would not. He should not, however, oppose the bill, as he approved of the objects contemplated by the preamble; but he felt now, what he had felt from the first moment since the bill went into committee, that the enactments of the bill were not altogether consistent with the preamble; that they pressed on individuals with an extreme degree of harshness and severity amounting almost to injustice; and that they were in other respects not such as their Lordships would wish to pass out of their hands, in order to send it down to the House of Commons. He was the less unwilling to trouble their Lordships with the few observations which he had offered, because at this point of the Session no man could have the slighest expectation that the House of Commons would have sufficient time to enable them to pass the measure into a law.

Lord Wynford

said, that if the bill had carried out the preamble, he would have given it his heartiest support. His objection to the bill was, that it did not carry out the preamble, and that it was more at variance with the preamble now than before it went into committee. His noble Friend had said, that at this time of the Session it was impossible that the bill could be passed into a law by the House of Commons. It was stated in the preamble of the bill that the bill was rendered necessary, in consequence of the present proceedings in the ecclesiastical courts, which, owing to the number of courts and the multiplicity of appeals, was attended with very great and enormous expense. He should like to know how the number of the courts could possibly add to the expense of the proceedings? It might as well be contended that the existence of the Court of Common Pleas added to the expense of the Court of Queen's Bench. He would in a moment satisfy his noble Friend on the Woolsack, and his noble Friend who sat beside him, that the working of the bill must be attended with greater expense than the old law. The principal expenses in the Ecclesiastical Court were occasioned by the length of the pleadings. The pleadings in the courts of common law were not one quarter in length of the pleadings in the Ecclesiastical Courts. Under this bill, however, the Judge of the Court of Arches might, if he pleased, examine, in the first place, all the witnesses at an enormous expense by depositions, and, after the long dilatory proceedings by depositions, he might order an examination vivâ, and afterwards a commission. He wanted to know, then, whether the expense would not be considerably increased by the present measure? The bill would place the clergy in a cruel situation, and would tend to increase the expense of legal proceedings. For these reasons he moved that the bill be read a third time this day three months.

The Lord Chancellor

said, that as there had been a bill before the House bearing the same title as the present, he wished that the measure now under discussion should not go down to the other House under the impression that it was his measure. He disclaimed any responsibility for the provisions of the present measure. The bill he had introduced had the sanction of the great majority of the right rev. Bench, and was calculated to remove great and acknowledged evils existing in the present law in respect of Church discipline. That law, indeed, was so grievous, that it was very little attempted to be brought into operation; and, in point of fact, there was no Church discipline as exercised by the Ecclesiastical Courts. Various endeavours had been made to remove the acknowledged evils of the system. There were now five Courts of Appeal, and the expense of the proceedings was so great as to deter persons from seeking their legal remedy. Besides, the courts were so various in their nature, that no man could venture to say what extent the jurisdiction of many of them went, while with respect to some of them the jurisdiction was limited by a single parish. However, the bill before the House proposed to remove those evils by the establishment of a system perfectly new to the law of the country, and which, he trusted, never would form part of the law. He alluded to that part of the bill which would, in effect, establish a secret tribunal, and yet did not supply the means of accomplishing the object the promoters of the bill had in view. Such a provision as this did not appear in the original bill. Nevertheless, he could not bring himself to vote against the bill, because it gave an earnest of the reform of those evils to which he had adverted.

The Bishop of Exeter

stated, that he had expected, as the noble and learned Lord on the Woolsack would have nothing to do with the bill, to hear one of the right rev. Prelates who supported the measure urge some arguments in favour of it. The effect of this bill was to extinguish the jurisdiction of the consistorial courts of Chester and all other consistorial courts in the province of York, except that of York itself. Now, by the returns which he had examined, he found that the comparative experience of the court of Chester was much greater than that of any other court; for instance, in the last ten years there had been four suits for correction tried there, whereas, during the same period, there was only one at York; and yet the former court was to be abolished. Then again the noble Earl objected to bishops acting as judges; but he could tell their Lordships, that bishops had been invested with the authority of judges by a higher tribunal than any House of Parliament; they had received their authority from the great Head of the Church; it was coeval with the establishment of Christianity upon the earth. He could also refer to the authority of an eminent English lawyer, Sir Matthew Hale, who stated that the bishops derived ecclesiastical jurisdiction from the law. Under this bill an innocent man had no chance of justice, whilst, at the same time, it tended to screen those who were guilty. He would suppose the case of an incumbent of one of those large livings amounting to some 5,000l. or 6,000l. a-year. If he were charged with some grave offence, he might go before his bishop, and say that he was willing to submit his case to his decision. The bishop might think his case so bad, that he would banish him from the parish, and allow him only a small pittance to support existence. Well, then, of the large revenue of the living the bishop would allow only 200l. a-year to the curate whom he might appoint to do the duties of the parish. What was to become of the revenue of the living? According to the bill, the parishioners who paid the tithes could derive no benefit from it beyond the services of the curate. The banished clergyman might, he would suppose, live forty years, during which time the revenues of the living might accumulate to 200,000l., and how did the bill propose to dispose of this vast sum? Why, it said that it was to be applied to the "repairs and sustentation" of the Church and of the glebe and demesne lands. It might be very well to keep those in proper condition; but to say that 200,000l. should be applied for keeping up a house and glebe for a man with 200l. a-year was absurd. Indeed, he had never seen so much trash contained within the four corners of any bill. He contended that the bill, by giving the power to a layman, in the Court of Arches, to depose a clergyman from his orders, would suspend, pro tem., the canons of the Church, and deprive it of one of its characteristics as a Church; for a deposition, like an excommunication, must be "by the just judgment of the Church," which could not apply to the judgment of a layman. Under all the circumstances, and after hearing the arguments which had been urged against it by the noble and learned Lord (Wynford), he did hope, that those noble Lords who had come down to vote for the third reading of the bill would vote against it. If their Lordships could give the bill a third reading, they had a better opinion of the judiciousness of the measure than he had.

The Duke of Wellington

was sure their Lordships could not decide with propriety on the measure at that late hour of the night, after the speech which they had just heard, and would, therefore, under the circumstances, earnestly recommend to their Lordships to postpone the debate.

The Bishop of London

said, the right rev. Prelate's arguments were not such as to require a very elaborate answer. He did not think it worth while to go into all the arguments he had adduced. The principle to which the right rev. Prelate objected so much, of a private hearing before the Bishop, was a principle contained in the bill of 1836. A clergyman's conduct might be such as to throw great scandal on the Church, and he was, by this bill, enabled to express his willingness to assent to the sentence which the bishop might pronounce on it, without any further proceedings against him. The intended effect of this clause was merely to give validity to such an arrangement. With regard to the case of a supposed accumuation of Church property, a case might come under the existing law, where a bishop sequestrated a living, he might, after having assigned whatever sum he pleased for the performance of the spiritual duties of the parish, dispose without control of the whole residue. He himself had so applied a residue of 1,000l. in assisting a poor clergyman's family. He contended, that since the Church had ceased to be an independent power, and had become connected with the State, the Legislature had a right to appoint what court it pleased to carry the judicial functions of the bishop into effect. On the subject of the excommunication of a bishop, an appeal might be made to the Court of Arches, which overset the whole theory of the right rev. Prelate. By the authority of Charles I., since approved of by many eminent divines, "the bishop was made subordinate to the civil power after the Church began to be connected with Christian princes where there was a jurisdiction." With regard to the severity upon the clergy which was charged upon this measure by the noble and learned Lord, it ought to be remembered, that the adoption of the process pointed out was perfectly voluntary, and the clergyman knew beforehand what he had to expect. He could not help also expressing his regret, that the noble Viscount (Canterbury) should have spoken of the bill as containing some features of harshness towards the clergy, for the object of the Committee had been not only to avoid everything like harshness, but to save the clergy from some inconveniences to which they were now subject; indeed, almost all the alterations made in Committee were intended in mitigation of the present law. Upon the whole, though there was not much chance of the bill getting through the other House this Session, still he was anxious that it should pass their Lordships' House in such a shape as might show the clergy and the country what their Lordships' Committee had deemed to be the most desirable provisions in a measure of this kind.

The House divided on the original moon: Contents 21; Not-Content 12: Majority 9.