Lords Sitting of 4 June 1839

MINUTES.
Bills. The Royal Assent was given by Commission to the following Bills:—Deanery of Exeter; Seditious Societies Act Amendment; Designs Copyright Extension; Purchasers Protection; British Museum; and a number of Private Bills.
Petitions presented. By Lord BROUGHAM, from Lennox-town, against the further Extension of the Church of Scotland; from Glasgow, for the Improvement of Prison Discipline.—By the Bishops of RIPON, EXETER, and GLOUCESTER, from several places, against the Church Discipline Bill.—By the Marquess of LANSDOWNE, and Lord TETNRAM, from several places, for a Uniform Penny Postage.

MALTA—M. MITROVICH.
Lord Broughambegged to state that what he had advanced on a former occasion by way of conjecture, had now turned out to be true—viz., that the noble Lord the late, and the noble Lord the present, Secretary for the Colonies, had relied too much upon the statements of a Mr. Mitrovich, a petitioner to that House, who was described as an agent of the people of Malta, and who represented in his petition, that the Maltese were quite satisfied with the present state of the press, and begged that the ordinances might not be revoked. He (Lord Brougham) had said at the time, that he suspected Mitrovich had no authority for these statements, that he was not an accredited agent of the people of Malta, and that he had no more authority from them than he had, nor so much. He now held in his hand two newspapers from Malta, in which they abandoned and disclaimed Mitrovich, and said that they had nothing to do with him. The papers, moreover, were full of the debate in their Lordships' House, and one of them contained a very long argument against the ordinances, and supporting his arguments. He had never known anything of the kind more atrocious, than that this gentleman should pass as the agent of
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the people of Malta without a shadow of authority from them.
The Marquess of Normanbyhad never mentioned Mitrovich as agent for Malta; he had said, that he had received a letter from Mitrovich, but he had never spoken of him as an agent. As to the reception of the ordinances in Malta, he had that day received despatches from the Governor, and he gave a very different account of the matter from that which appeared in the newspapers referred to by the noble and learned Lord.
Subject dropped.

CHURCH DISCIPLINE.
The Lord Chancellorrose for the purpose of moving the committal of the Church Discipline Bill. Their Lordships might recollect, that at the close of last Session a bill similar in principle to the present measure was brought under their notice. It was read a second time, and be believed on the third reading, some opposition being raised on the suggestion of a most rev. Prelate, the bill was withdrawn for the time. He mentioned this fact, lest it might be supposed that their Lordships were now called upon to give their assent to a measure which they had on a former occasion rejected. He should be glad if the interval that had passed since last July had put an end to the opposition then manifested to the principle of this bill; but as he had no reason to suppose this to be the case, as he on the contrary had every reason to suppose it was not so, it was his duty to explain to their Lordships the evils which it was proposed to remedy by the bill, and the nature of the remedies to be applied. In detailing the present state of the law, he should be guided by a document which must be considered for the present purpose as of the highest possible authority—the report of the Ecclesiastical Commissioners of 1832. That commission was comprised of a considerable number of bishops, and of judges, or eminent lawyers who had afterwards become judges. There were therefore as many ecclesiastical and legal authorities on that commission as could well be selected to investigate a question of this nature. They were naturally led to inquire into the present state of the law with respect to the power of enforcing church discipline, that is, correcting the errors and crimes committed by the clergy. They stated in their report very clearly and very fully the history of the law on that subject. In the early part of British history, during the

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establishment of Popery, they declared that unlimited powers were given to the bishops over their clergy. In those times the bishop had the power of calling on any clergyman who was supposed to have committed an offence to clear himself by an oath and through the agency of compurgators; and if the bishop were not satisfied with the result of the investigation, he possessed the largest possible powers of removing or suspending the clergyman. In the reign of Henry 7th, an act passed, which gave unlimited power to the bishop, at least over the benefices possessed by the clergy. He was authorized to exercise jurisdiction, in his own person and of his own right, over all who might be within the diocese. Such was the state of the law up to the time of the Reformation. At that epoch great changes were made in this respect as in all others, and by a statute of Henry 8th, against heresy, it was declared that "it standeth not with the right order of justice or equality that any person should be convicted and put to the loss of his life, good name, or goods, unless it were by due accusation, by witnesses, or by presentment, or confession, or process." The right to call on a clergyman to discharge himself of any imputed offence by oath was taken away by that statute. He would read a passage from the report, which would at once show their Lordships what changes had been made at the Reformation, and what the state of the law had been from that period down to the present:
"In the beginning of the next century Bishop Gibson was desirous of reviving in the diocese of London the summary mode of proceeding, against clergymen, especially in cases of non-residents, but the persons claimed a hearing, and asserted the right of defending themselves according to the rules and practice of ecclesiastical courts, and it was ultimately found impossible to resist that demand. Proceedings against clergymen for ecclesiastical offences have accordingly in modern practice been uniformly conducted by the same rules and proceedings as are observed in other cases in civil jury courts,"
This extract, considering who were the members of the commission, left no doubt of the state of the law at present. The statute of Henry 8th had never been in force since the Reformation, but it still remained the law of the land. It was as yet on the statute book, and being unrepealed, must be held to be law, but not for the purpose of being put in force; for if that
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were attempted, the necessity for its repeal would become immediately manifest. One object of the present bill was to repeal this statute. If that were the state of the law, and if proceedings against clergymen must be commenced, as beyond all question they must, not at the discretion of the bishop, but by suits in the Ecclesiastical Courts, he would ask them to look at the state of those courts, and then say whether the law could remain as it now stood. The report furnished him with the means of showing their Lordships the state of those courts. He spoke not of the courts of the archbishop, or of the diocesan courts of the bishops, which were sufficiently well known; but perhaps their Lordships might not be aware, that besides those superior courts, nearly 300 other ecclesiastical courts were in existence. It was not to be supposed that all these had a jurisdiction for trying criminal offences of clergymen. One great misfortune was, that nobody knew which court had jurisdiction and which had not; it was impossible for the parties to discover in which court they should institute proceedings. A great object of this bill was to take away from all the ecclesiastical courts, except those of the archbishops, the power of trying such offences. That these minor courts were totally unfit and incompetent to be trusted with such a duty, he apprehended no one could doubt, In some of them the judges were not lawyers; many of them were presided over by deputies, receiving salaries of 10 l. 10 s. yearly. These were not courts that ought to have the power of exercising an important jurisdiction over persons holding the station of clergymen. Though the diocesan courts were of a more respectable class than those of which he had been speaking, still the mode of proceeding was of the most dilatory and unsatisfactory kind. In a particular case, where it had become nececsary to institute proceedings against a clergyman, the litigation lasted five years, and the bishop was put to an expense of 1,500 l. He was sure that this was a state of law which their Lordships could not allow to continue; and that being the case, the question was, what remedy could they apply? He was sure that an alteration of the existing law was universally desired, so that he need not take up their Lordships' time with that part of the question. The report of the commissioners on this subject recommended that all these small ecclesiastical courts should be abolished, and their business transferred to the courts of

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the archbishop, with the assistance of assessors. It was his wish, as it was his duty, to speak with all respect of anything that was recommended by such authority; but if anything could justify him in expressing his dissent from that proposition, it was, that all the commissioners who had had an opportunity of expressing their opinions on the subject, with one exception, had expressed the strongest possible dissent from what they had before recommended. In 1836, however, a bill had been introduced into that House founded on the recommendations of the commissioners, though not adopting all of them. The bishop was to be the head of the court, and was to be assisted by an assessor, who would be practically the judge; and there was also to be a jury of clergymen to try the offence and deliver a verdict upon it. Their Lordships had approved of that bill, which passed through their House without opposition; but, as the clergy were opposed to it, a great cry against it rose up in the country, and the bill made no progress in the other House of Parliament. That was in 1836. In 1837 he had been anxious to obtain the concurrence of the Ecclesiastical Commissioners before he introduced another measure on the subject. The Session, however, passed over, and nothing was done on that matter. In 1838 the present plan, or at least a plan very similar to it, was introduced into Parliament, and with the concurrence of the archbishops. He certainly could not say that it had met with the unanimous support of the right rev. Bench, but it had met with very general support and approbation from the members of it. The bill, however was subsequently withdrawn. He now brought it forward again with some slight alterations. Formerly the appeal was to the court of the archbishop, now it was to the Court of Arches, which was always presided over by a learned judge, and which had always the benefit of the presence of a learned bar. It had been said, that there was a spirit in the bill which always evinced a strong tendency to interfere with the jurisdiction of the bishops. Now, if this bill did take any jurisdiction from the bishops—which he would hereafter show that it did not—it would only be doing that directly by a tribunal in London which was already done indirectly by a tribunal in the country. He called upon their Lordships to consider how the law on this subject now stood. You could not take any jurisdiction from the bishops in
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this respect, because they had no jurisdiction at present, for there were various processes by which all suits of this nature were even now taken from the bishops' jurisdiction. First of all, the judge of the inferior court could send the suit by letters of request to the Court of Arches. Next, either party to the suit might apply for these letters of request, and when once applied for they could not be refused. Furthermore, if either of them appealed to the Court of Arches on an interlocutory decree relating to a point comparatively immaterial, the whole suit was transferred from the bishops' court to the Court of Arches, who might keep it as long as they pleased. Any party, therefore, had the means at present of taking his suit to the Court of Arches, but at a great expense, which this bill would for the future spare him. As far, then, as the bishops' courts were affected, this bill only gave the power of doing directly that which was already done indirectly. He likewise denied that any additional expense would be incurred by suitors in consequence of this bill; for even at present all the important business of the bishops' court was transacted, and all the important papers and documents were drawn up, in London, and afterwards sent down to the different courts in the country, to be there decided upon by the different judges. The questions tried in those courts might involve questions of facts. Now, it was proposed by the Ecclesiastical Commissioners in their report that in such cases the parties and witnesses should be examined vivâ voce. That proposition would require the attendance of the witnesses at the places where the courts sat. But though it was necessary to the interests of justice that there should be the power of examining witnesses vivâ voce in all cases, there were many cases in which it was not necessary to exercise that power. The bill, therefore, provided that certain cases, as was the case now in the Court of Review in Bankruptcy, should be tried upon affidavit; but it also provided that in other cases the witnesses should be examined vivâ voce, and the issue of facts should be tried by the judges as they proceeded on their different circuits. The bill had the merit, therefore, of providing means for saving the suitors expense, and for obtaining a satisfactory trial of facts. Now, if their Lordships were all convinced that something ought to be done on this subject, and that speedily, the only question was, whether they would give their sup-

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port to the measure recommended in the report of the Ecclesiastical Commissioners, or to the measure which he had just introduced to their notice? He had stated the reasons why he thought his own was the better measure, and he hoped that their Lordships would give it their sanction and approbation.
The Archbishop of Canterburywas understood to say, that from the share which he had had in drawing up this bill, and from the objections which had been urged against it in different quarters, he should not be acting with justice either to the measure or to himself, if he did not offer a few words to their Lordships upon it. On the importance of the subject, there could be no doubt whatever. He had heard much of the necessity and of the justice of passing, for the sake both of the Church and of religion, some measure, by which there should be a more speedy mode of punishing those clergymen who injured the Church, either by gross violations of morality, or by the neglect of their duties in other respects. If there were a coercive power to punish them, it was quite clear that there must be a tribunal to exercise that power, and that, too, a vigorous and effective tribunal. They all knew the regret expressed by the bishops for the duties they were unable to perform, and all of them agreed that there was ground for complaint against, and that the country suffered much from, the present state of our ecclesiastical tribunals. The cry of the public on that subject was universal, and must be attended to. The delays which occurred in those tribunals were excessive, and tended to discourage all prosecutions for gross offences against the Church; and yet now, when an attempt has been made to remedy and improve the condition of those courts, he had been accused of the commission of a grave offence against the Church for having joined in that attempt. He had heard, with great surprise, the language which a right rev. Prelate had deemed it consistent with his duty as a Christian pastor, to use upon the subject; and his surprise was not in the slightest degree diminished when he discovered, upon examination, the slight grounds on which that language was founded. The right rev. Prelate had said, that he should consider himself a traitor to the Church, if he were to agree to such a measure. Now, the natural inference from that language was, that all who supported that measure were either traitors to the Church or la-
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bouring under great imbecility or perversion of mind. At present, though the sentence of deprivation might be pronounced by the bishop in person, still it was to be considered the sentence of the judge who had presided at the trial. It was only to give additional assurance to the public, that the bishop approved of the essence of the sentence which made Lord Stowell consider and declare, that the bishop's residence was necessary: The bishops had, therefore, acted very properly and wisely, in transferring the power to others; for it could hardly be exercised more inconveniently than by the bishop in person. But was it a power in daily use? As had been stated by the noble and learned Lord on the Woolsack, within the five years preceding the commission, there had been only fifteen prosecutions, excluding the province of York, in twenty-two dioceses. Surely that could not be an essential power which was so rarely exercised. It was also an inefficient, troublesome, and expensive power. In many cases, the expense was almost ruinous to both parties. He might say, that this power, which was hardly alive, which showed no signs of life, could not be a very important one. Everybody knew its inefficiency. What, then, was the remedy which ought to be applied? After what had been stated by the noble and learned Lord on the Woolsack, he thought their Lordships would agree with him, that the bill of 1836 would not supply the best remedy. He concurred in opinion with the learned Judge of the Court of Admiralty on this important subject; and he found himself supported, not only by the authority of that learned and eminent individual, but by the authority of many others, whose opinions well deserved the serious attention, and were well entitled to the respect, of that House. Amongst the number, was that of Chief Justice Tindal. Moreover, he had consulted every one of his right rev. and learned Brethren then in London, and they expressed their approbation of the measure. It occasioned him no small regret to find then, that some of his right rev. Brethren in that House entertained different sentiments with reference to this bill from those which he was bound conscientiously to express. He regretted, that these differences should unhappily exist, and he could not help expressing further his regret, that the differences which did exist had not been reconciled amongst themselves, rather than brought under discussion before their Lordships. Several petitions had

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been laid upon the table of their Lordships' House, and several letters had been published in the newspapers, taking notice of and discussing the merits of the measure. It had been opposed, also, and that very strenuously, by the right rev. Prelate (the Bishop of Exeter) now sitting at the table. Was it to be supposed that so resisted, that so assailed by a man of his ability and eloquence, it could escape from other adversaries incited by his example, though not capable of reaching the force of his opposition? Was it to be supposed that a right rev. Prelate possessing the talents and influence which he possessed, presiding for so many years, as he had presided, over the see of Exeter, could not command as many petitions as he thought proper from the clergy of that diocese? The Bishop of Gloucester, too, published a letter, or if he did not, as the right rev. Prelate intimated, publish a letter, he wrote a letter to the Archdeacon of his diocese which others published, in which he expressed sentiments decidedly adverse to the present measure. That right rev. Prelate could likewise command as many petitions in his diocese as the right rev. Prelate at the table could in the diocese of Exeter. Now, admitting that the petitions from those dioceses did really express the sentiments of the clergy residing in them, he would take the liberty of saying, that this proved nothing with regard to the opinions of the great body of the clergy throughout the United Kingdom, for, if he were informed correctly, there were no petitions against the measure from any other quarter. [No, no.] Well, there might, perhaps, have been a few other petitions, but he believed that their number was very inconsiderable. He held in his hand a statement made upon the subject, at least considered and drawn up, at a seat of learning; it was considered and prepared by men of undoubted learning, and great respectability, and high station in the church—men well versed in ecclesiastical history, and well acquainted with the ancient state of the law. He would venture to affirm, that the petitions presented that night, unless it could be shown that they came from men better acquainted with the subject than were the eminent and learned theologians of Oxford, were entitled to very little weight. There could not be a greater error than to suppose that the bill which he stood there to support was one by which the clerical jurisdiction could be destroyed. Complaints had been urged against the hardship appre-
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hended from the present measure; he, on the contrary, did believe that it would, so far from being productive of any hardship, tend to much less mischief than the present system, for it would put an end to the evils of informers, at least, it would cause a considerable diminution in the evils which informers occasioned, and therefore he trusted that there was no ground for the statement set forth in the petitions then on their Lordships' table, that the bill was calculated to effect the destruction of the Church. He need scarcely observe that he at all events was not likely to bring forward or support, any measure calculated to destroy the church; on the contrary, he hoped that he should be a most earnest opponent of any thing of the sort. The present measure was supported by him because, so far from destroying, he did think it was calculated in a very high degree to prevent injury to the Church. Upon these grounds he should urge their Lordships to agree to the measure, entertaining, as he did, the strongest conviction that the petitions which came before them were full of mis-statements; though certainly he was quite ready to admit that those mis-statements were made without any disposition on the part of the petitioners to deceive the House, or to practise deception on any party. He gave the petitioners credit for every disposition to support the Church; but it would be for the House to judge of the weight due to their statements, and to judge also of the wisdom or the justice or the expediency of complying with the prayers of individuals, however respectable, who betrayed so much ignorance of the real facts of the case.
The Bishop of Exetersaid, that it afforded him some satisfaction to observe the fair and candid manner in which the most reverend Prelate who had last spoken, had expressed his opinions in favour of the measure then before their Lordships. In one respect, he enjoyed some advantage at present as compared to the position in which he stood when it became, on a former occasion, his duty to oppose the bill. He had now the advantage of having heard the grounds upon which the noble and learned Lord and the most reverend Prelate supported the measure. Formerly, when it was before the House, nothing was said in its recommendation. On that ground he had no longer any cause of complaint. If he had any complaint to make on his own account, he should forbear from making it; but he must say, in

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his own defence, he must, in justice to himself, appeal to their Lordships whether they would consider it quite fair, if any of them thought that a measure was proposed which was of paramount mischief to those interests, which they regarded as the most sacred, and which, as in his own case, and with the sincerest feelings he said it, he felt he would be a traitor to the Church if he did not resist it—he appealed to them whether, conscientiously entertaining and expressing that opinion, it was fair to say, that because he would consider himself a traitor if he did not resist a measure, he thereby charged others with being traitors to the Church because they supported it? He never heard anything with such astonishment and with suet, surprise as this; and if he did not know the exceeding fairness of the most reverend Prelate, and if he did pot know the justness of that most reverend Prelate's mind, he should say, that nothing could be more manifestly unjust than the imputation, he would not say the cruel misrepresentation, although he did not know by what other name to call it, than that which was thus used on that occasion. He bad never thought, he had never said, he had never intimated nor suggested that he thought that those who supported this bill, did not think it to be a good and useful bill, He gave them credit for their honesty, and was the return to him to be that he was to be regarded as dishonest and insincere? He thus, thee, dismissed that part of the subject. There were some things which had fallen from the most reverend Prelate to which he felt it his duty to advert. He must say, that, while he owed all due obedience and all due reverence to the most reverend Prelate, and no man should exceed him in due reverence to that most reverend Prelate, and no man should surpass him in all due reverence, yet still he could not recognise the infallibility of that most reverend Prelate. He ventured to affirm, that, upon the present occasion, the most reverend Prelate was not only fallible, but greatly deceived; he, therefore, must and would express his sentiments in reference to the present bill, though they differed from those entertained by the most reverend Prelate who had just addressed the House, The most reverend Prelate had said, that he considered that the present state of the discipline of the Church was peculiarly excellent, and referred to the paucity of
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instances in which there were trials of clergymen for misconduct. He rejoiced, with the most reverend Prelate, as to the excellent working of the system as far as the clerical character was concerned. He said, then, that if such were the practical result of the present state of things, he was astonished that a principle should be sacrificed by the bill to remove so little a practical evil. The most reverend Prelate had described the costs of a Bishop sitting upon the trial of clergymen, and applied words used by him a twelvemonth ago, that it would be a fatal blow to the Church; and yet the most reverend Prelate now recommended a course which he had already said would be a fatal blow to the Church. The most reverend Prelate had strongly animadverted upon a petition concocted in Oxford. It was not for him to justify the learned clergyman, whose petition he had never seen till he saw it in print: that part which was most strongly animadverted upon was the passage which declared that the bill would be a suppression of the apostolic jurisdiction of the Church. [The Archbishop of Canterbury: It was an error.] They held that sentiment, however, in common with himself. It might be ignorance upon his part and upon theirs; but, if be and they were right, those who held an opposite doctrine could not be right—they must be in the wrong. The right reverend Prelate had said, that he would not enter into theological questions. He never wished to discuss theological questions in that House, unless when it was absolutely necessary. Here, however, was a question essentially theological. The question was, whether or not the apostolical jurisdiction of bishops would be destroyed by this bill if it were passed into a law. In his opinion it would. He was afraid, therefore, that he could not follow the example of the right reverend Prelate in abstaining altogether from the consideration of that question. Their Lordships must allow that he must feel most deeply and anxiously on the subject, when be believed that there was an almost absolute certainty of his being left in a small minority; and he could assure their Lordships that it was to hint a matter of very great: regret that he should be compelled to think that the view he took of this measure was the right one, He rejoiced to bear the right reverend Prelate raise his voice on this occasion, because it was always a matter

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of gratification to him to hear any of the right reverend Lords express their opinions upon subjects of such importance to the Church of England as he conceived this to be. But he would now turn to the right reverend Prelates and ask them whether they did not believe that Bishops had by divine right, a jurisdiction over their clergy? He had ventured to hope, in putting that question, that he should have received the ordinary indication of assent commonly given to a truism. It was painful to him that it should seem to be doubted. [The Archbishop of Canterbury: No one can doubt it.] He rejoiced to hear the right reverend Prelate say, that no one could doubt it. If, then, there was an episcopal jurisdiction by divine right, he supposed that that episcopal jurisdiction must be exercised, and if it must be exercised, it ought and must be exercised by those to whom it was given. That he should think was a truism almost as readily to be assented to as the other; and though there was no intimation to that effect, he would take silence as an assent in this instance. He would go one step further, and ask what was the form in which that jurisdiction was given, and in which it was received at the time of the consecration of Bishops? He would be as brief as possible, but their Lordships would see the importance of referring to it. In the form of consecrating Archbishops and Bishops, one of the first prayers was, that "they may diligently preach the word of God, and duly administer the godly discipline thereof." The service did not end there. There were some parts of it which were too solemn, even with the view of strengthening his own argument in a sacred cause, for him to venture to cite. There was one question, however, of a very serious and solemn character, which was put by the Archbishop at the time of consecration, to which he would advert—namely,
"Such as be unquiet, disobedient and criminous within your diocese, will you correct and punish, according to such authority as you have by God's word, and as to you shall he committed by the ordinances of this realm?— Answer—I will so do by the help of God,"
That was the question which the most reverend Prelate put to him solemnly and seriously, and that was the answer which he sincerely gave to it. It might be supposed, at first sight, that the authority to be committed by the ordinance of this
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realm, limited the authority to be given by God's word; but he was sure his right reverend Friends would not say so. He was sure they would say, that they were two distinct authorities—that the authority given by God's word was one, and that given by the law of the land another. The service did not end there. The Archbishop, towards the conclusion of the ceremony, delivered to the Bishop a Bible, saying,
"Give heed unto reading, exhortation, and doctrine. Think upon the things contained in this book. Be so merciful that ye be not too remiss; so minister discipline that you forget not mercy?"
That was the solemn charge which he had received from the most reverend Prelate. He had received it with reverence; he had endeavoured to practise it; he should always feel it his duty to endeavour to practise it; but to say that he felt a necessity for, or could yield to, the fancied expediency of suppressing altogether the exercise of episcopal jurisdiction, he never would, until he should be also prepared to say, he felt that the service of which he had just spoken was no better than a solemn mockery. If it were to be declared that it was high time to put an end to episcopal jurisdiction, he assured their Lordships that he should deem it his duty also to declare that it was high time to request that a convocation might be called together for the purpose of devising some mode of introducing persons under the name of Bishops, if the name of Bishop was to be continued on the bench, in accordance with that change in the exercise of those duties which were now required of them. Even that was not all. When priests were ordained, they were solemnly asked by the bishop:—
"Will you reverently obey your ordinary and other chief ministers, unto whom is committed the charge and government over you, following with a glad mind and will their godly admonitions, and submitting yourselves to their godly judgments?"
Here was a recognition, on the part of those who were to answer, of the jurisdiction of the bishops over them. What was the answer? "I will do so, the Lord being my helper." It was a mockery therefore, to contend that there was to be no exercise of episcopal jurisdiction. Our Church was not the only Church where episcopal jurisdiction of the clergy was considered to be essential. During

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300 years the Christian church had not been mixed up with any state whatever; there had been no coercive tribunals; no support had been given to that Church by the temporal laws of the countries in which it flourished; but was episcopal jurisdiction not exercised in those days? So far from it, that that jurisdiction was then exercised with a degree of vigour which it was rarely seen to have been exercised with since. Perhaps he might be permitted to read a very few lines from one of their best Christian antiquaries on this subject. Although they were already well known to his right rev. Friends, and who did not need to be reminded of them, he was sure they would pardon him for quoting them on the present occasion. The words he alluded to were from Bingham's Antiquities, and as follow:—
"Bishops always retained to themselves the power of calling presbyters to an account, and censuring them for their miscarriages in the discharge of their office. Nothing can be more sure and evident than that in Cyprian's time all bishops were invested with the power of censuring delinquents among the clergy."
Cyprian's time was before the Roman empire had declared in favour of the Church, when it had no support from the temporal powers. Well, if it had a jurisdiction, how was that jurisdiction to be exercised? Was it to be exercised by a judicial process? There were but two ways—either arbitrarily, or by that process which common equity, common justice, and the analogy of every judicial proceeding pointed out. Witnesses must be called; the accused must have notice of the charge, and the opportunity of answering it; in short, there must be a judicial process. So it had been in the early Church, and so it was essential it should always be in the exercise of judicial and likewise of episcopal jurisdiction. It was to be remarked, that not only had the early Church—not only had the Church of England, in former periods, recognized episcopal jurisdiction as coming from God, but the State also had repeatedly recognized it. It had recognized it every time it had given force and sanction to the Church itself. It had been recognized by King Henry 8th, and King Edward 6th, even in those instruments in which one could least expect to have found such a recognition, if it had not been extorted by the certainty of the truth of what it stated, In the early
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period of the Reformation the bishops did submit to take the whole of their bishoprics by licence from the Crown, and that licence, while it enumerated all the acts of episcopal jurisdiction, stated, that they were given over and above the jurisdiction given by the word of God. King Edward 6th, when Cranmer received a licence from his archbishop, and to the terms of which he was willing to adhere, made the same admission. Where the Church had not the advantage of connexion with the State, there also was episcopal jurisdiction acknowledged and acted upon. If the American episcopal Church, without the slightest assistance from the state, beyond that given to all professions, to every species of belief—if the episcopal Church of America exercised that jurisdiction by judicial process, it was plain that in the nature of things there was nothing whatever to prevent it from being still executed even here. Surely the circumstance of our Church being protected by the State ought not to prevent it. What, let him ask, was the meaning of "protection given by the State?" of the State avowing its belief in the religions opinions and acceptance of one body of Christians as the Church of Christ? Was it not that, by acknowledging them as that Church, the State acknowledged it to be their duty to carry into effect all the essential points of the discipline of that Church, and that all that was essential to episcopacy—the State by recognizing, recognized at the same time its own duty. Therefore did he say, that when a State recognized the Christian Church as its own, it consequently recognized the bishops of that Church; and being so, it became the duty of the State to give to episcopal jurisdiction such sanction—such civil sanction—as should insure the effective exercise of it. He was willing to spare their Lordships' time and his own by declining to go into the proofs which might be adduced from the writings of their predecessors, by stating at once that almost every distinguished divine who had ever written upon this subject was of that opinion. He would, however, refer to what had been said by one of them, and he could produce a dozen such authorities—namely, Bishop Hall, one of their own predecessors, a most distinguished and illustrious divine, one of the most able supporters the Church ever had, and in times more pregnant with danger to the Church than even

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the present. It was in such times that Bishop Hall thus maintained that episcopal jurisdiction was that jurisdiction which was to be exercised at all times and under all circumstances:—
"It is the charge upon Titus (iii., 10). A man that is a heretic, after the first and second admonition, reject. So, then, it is to Titus it belongs to proceed against erroneous teachers, to judge of heresy, to give formal admonitions to the heretic, to cast him out of the church upon his obstinacy. Can any man suppose it to be for a mere presbyter to make such a judicial process against heretics, to eject them out of the church? What is spiritual jurisdiction, if power to do this be not? To sum up all, therefore, it is no other than our present episcopal power, that by the blessed apostle is committed to Timothy and Titus; and that, with so clear evidence, that, for my part, I do not more fully believe, there were such men, than that they had such power, and these warrants to execute it."
Their Lordships would see that Bishop Hall spoke of the necessity of that which this bill said should no longer be. He had made use of the very phrase, "judicial process," in a clause at the end of the bill; it was stated (the preceding section having deprived bishops of every right to convent criminal clergymen, and bring them to judgment),
"that nothing in this Act contained shall be construed to affect any authority over the clergy of their respective provinces or dioceses which the archbishops or bishops of England and Wales may now, according to law, exercise personally, and without judicial process."
But that judicial process was absolutely essential. It was so in the opinions of Bishop Hall, Bishop Jewell, Archbishop Cranmer, and others, which opinions he would not weary the House by repeating. He declared most solemnly to their Lordships that he could not find a single instance of any eminent divine who had written on the subject who did not express the same sentiments; and he hoped, that such Members of their Lordships' House as should follow him in this discussion, and particularly such of the right rev. Prelates as should do so, and who might wish to show, that he was wrong in thinking that this bill had a tendency to extinguish episcopal authority, would be of the same opinion as those high authorities, he had just named. They were told, that the "judicial process was not extinct "—that it was given to the Court of Arches. Perhaps he might be also told, that it was
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a judicial process to the bishops, inasmuch as that the dean of the Court of Arches was the representative of the Archbishop of Canterbury. All he could say was, that the dean of the Court of Arches had no such commission from the Archbishop of Canterbury. All the dean of that court held from the Archbishop of Canterbury was the appellate jurisdiction; and the appellate jurisdiction recognized, instead of extinguishing, the original jurisdiction of the other bishops. If this bill passed, the jurisdiction would be held, not from the Archbishop of Canterbury, but from the State. If that were permitted to take place, then would he say, that a very strong and serious mischief—a mischief which it would be more easy to lament than to remedy, would arise; then would he say, that a lay power would be the only authority for the exercise of the whole episcopal jurisdiction of England, because it would be exercised only by the dean of the Court of Arches, who would hold his authority solely and simply from an Act of Parliament. They would then, indeed, be brought to that state which the Roman Catholics were anxious to represent them as being in—namely, an Act of Parliament Church; and they certainly would be very near it. As far as he could conceive that part of the subject, the exercise of episcopal jurisdiction would be given to the Court of Arches by an Act of Parliament, and an Act of Parliament only. It might be said, that the archbishop could issue a new commission if this bill passed, giving to the dean of the Court of Arches the same authority as the Act of Parliament, and that then the dean would hold the authority from the Archbishop of Canterbury as well as from the Act of Parliament. But the right rev. Prelate could only give that which he had; and with very great respect for the right rev. Prelate, who, he was sure, would agree with him, he must say, that the right rev. Prelate had not that authority to give. He was sure the right rev. Prelate would admit, that he had not any right to such a power himself, and that, not having it himself, be would not claim the right of conferring it on others. The Archbishop of Canterbury had no original jurisdiction in any other than his own diocese. He would here take leave to refer to a pamphlet from the pen of Dr. Nicholl, vicar-general of the Archbishopric of Canterbury—a pamphlet very temper-

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ately written, containing notes upon the Church Discipline Bill, directly addressed to him (the Bishop of Exeter), and in which the author had also done him the honour to refer to a printed speech of his. That speech he had never seen; he knew not, therefore, how far it might be correct; some parts of it judging from what the pamphlet quoted, were not correct, although what was quoted on this subject was. The pamphlet justly surmised, that in the opinions there expressed, he had quoted from the authority of Gibson. He had done so in his character of legate of the Pope. That was his (the Bishop of Exeter's) assertion. Besides, after having taken the authority of Gibson, he did that which he was in the habit of doing, to satisfy himself that he was right—he referred to books which enabled him to trace what the real facts were, and what the law upon those facts was. He held in his hand Lord Hobart's reports, a most learned and able judge of the reign of King James 1st, and the case to which he wished to call attention, was one, in which an office of the Archbishop of Canterbury, after having been restrained by the statute of Henry 8th, from calling up persons from another diocese into the diocese of Canterbury, had thought fit to establish a court in the borough of Southwark, in order to call up persons from the remotest parts of the diocese of Winchester. The case was tried in the Court of Common Pleas, and this was the judgment:—
"And it bath heretofore been held in this court, that the supposed concurrent jurisdiction, that the archbishop is supposed to have in the inferior diocese was not as he was archbishop, but as he was legatus natus of the Pope; for the Archbishop of York neither bath, nor claimeth any such; and then that power is ceased, being abrogated with the Pope, and the late practice, if any hath been, is but an usurpation; and, if is permitted to be in the archbishop's mere power, he may erect a court of audience in every diocese, and call all causes from other ordinaries."
Their Lordships would therefore see, that Lord Hobart confirmed his statement, that that jurisdiction had its origin in the Pope, and that the claim of the archbishop to a concurrent jurisdiction, was nothing more than a renovation of a Popish claim, and that if any person should claim that concurrent jurisdiction, he claimed nothing more than what was a remnant of Popery, while it was contrary to the law of the land. He felt convinced, that the Arch-
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bishop of Canterbury would not claim at present any such jurisdiction, but in the pamphlet to which he (the Bishop of Exeter) had alluded, the Archbishop's vicar-general claimed it for him. There was only one way in which, upon Church principles, the Archbishop of Canterbury could have the jurisdiction which the bill proposed to give him, and that was by making the whole of England into one diocese—that of Canterbury; and by making all the other bishops suffragans, not in the best sense of the word, but in the sense in which the term was employed in the reign of Henry 8th, according to which the suffragans had only to confirm the acts of the bishop. That was the only way in which, upon Church principles, the vicar-general of the Archbishop of Canterbury, or any one claiming authority under him, could have the jurisdiction proposed to be given by this bill. But even that would not be suddicient for all the purposes of the bill; the bill was not satisfied with giving over to the Archbishop of Canterbury the whole of his own diocese, but it gave him that of York also; so that not only must England form only one province. He admitted that Parliament had the power of making those alterations; he admitted the right of the State to appoint the measures and boundaries of dioceses and provinces; but such alterations must be made in order to give the Archbishop of Canterbuty the jurisdiction sought to be conferred by this bill upon the Court of Arches. It was very remarkable that a whole diocese, that of Sodor and Man, was exempted from the operation of this bill. The reason of this exemption was, it was hardly necessary to say, that individuals might not be obliged to travel so great a distance as that from the Isle of Man to London. He rejoiced at the candour which was shown in making this exception, and it tempted him to hope, that if he could show that certain other clauses of the bill would also lead to very great inconveniences, his right rev. Friends would exhibit the same candour in assenting to other departures from the general principle of the measure. He admitted that they would go to destroy still further the analogy of its provisions, but he hoped to show that they were absolutely necessary. It was

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the third clause of the bill which was the most important. By that clause the power of passing sentence of excommunication, suspension, deprivation, deposition, and degradation, or pronouncing any other spiritual censure, was given exclusively to the Court of Arches. He would pass over the irregularity of spiritual censures issuing from a lay court, but, by the 122nd canon, the power of depriving was to be exercised only by the bishop. The pamphlet to which he had referred stated, that it was a great mistake to suppose that that canon prevented the court of Arches from having jurisdiction in such a case, and affirmed the right of the Court of Arches to deprive in spite of the canon. But the pamphlet cited no authority more modern than 140 or 150 years ago. Now, there had been a case of more recent date upon the point, a case which had been decided in the year 1822—he meant the case of "Saunders v. Davies," which was reported in the first volume of Addams Reports, page 291, and came before the court by letters of request from the Chancellor of the diocese of Oxford, a cause of office promoted by a parishioner against the curate of the augmented cure of Ascott, for immorality and irregularity in performance of divine offices. The charges being established, the sentence prayed was deprivation, but the court said that, in spite of what had been urged to the contrary, deprivation was a penalty which it was not at its option to award, deprivation and deposition being specially reserved by the canon to the diocesan. The court said:—
"It would be extremely unwilling to do in the teeth of that canon what the canon itself seemed framed to exclude upon the mere dicta of counsel, in the absence of any, or at most upon the strength of one (blind) precedent."
Who had pronounced that decision? who was the court? A great name, and one which he (the Bishop of Exeter) could never cease to respect. It was Sir John Nicholl who gave this opinion, and in giving it, pronounced that the principle on which this bill was founded was wholly untenable. Suppose, however, that Sir John Nicholl was wrong, and that his son, the author of the pamphlet, was right, still there was another claim which even the Vicar-general did not venture to make, but which was set up by this bill. The bill actually purported to
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give to a lay tribunal the power of deposing and degrading, in other words, of destroying, the ministerial character of the offending clerk. This was a power which the House had no right to dispose of. Neither her Majesty, with the advice and consent of the Lords spiritual and temporal, and Commons in Parliament assembled, nor all the Kings and Queens and Parliaments in the world, ever had, or could have, the power of doing what this bill presumptuously said the Court of Arches should have authority to do. The utmost conceivable human power could not confer upon a lay tribunal the right of stripping the ministers of the church of Christ of their ministerial office. The supreme civil authority in a state might forbid any clergyman to exercise his functions in any part of the dominions belonging to the state, but it could not rob him of his ministerial office; it could not make him cease to be a clergyman; that power, from the very nature of its origin, could only be exercised by the bishops themselves. He looked towards his right rev. Friends upon the Bench, and he called upon them to say, whether any lay tribunal could possess this power. He should be sorry to think that his right rev. Friends could give any answer but one to his appeal. If, then, the Legislature could not confer the power of deprivation, deposition, and degradation, upon a lay tribunal, some court there must be, in which this power should exist; and this court, whether it was called a Consistory Court, or any other name, for that was of small consequence, must be presided over by a bishop. It might as well be said, that the power of ordaining could be given to laymen; the authority required to confer the ministerial character could be no greater than that which was required to take it away. Therefore, the bill might, with quite as much right, enact that the power of ordination should belong to the Court of Arches. That, however, it could not do; a bishop, and a bishop only, could ordain a layman to the ministry, The maxim of the canon law went further; it said, "facilius spiritualia construuntur quam destruuntur," and accordingly, the canon law of England required the concurrence of a certain number of bishops in order to depose a clerk. Even at this day the Bishop was assisted by some clergyman of his diocese, when he pronounced the sentence of deposition. The

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learned vicar-general, indeed, laid it down in his pamphlet, that in pronouncing this sentence the Bishop only acted as the mouthpiece of the Court. But the Bishop read over the depositions of the witnesses, and acted upon his own opinion, when he concurred in the judgment pronounced by the Chancellor. He (the Bishop of Exeter) believed, that the learned vicar-general would not find many of the right rev. Prelates upon the bench disposed to act as mouthpieces. They might be called upon to act merely in that capacity, but the learned vicar-general would be like Owen Glendower, who boasted that he could "call spirits from the vasty deep;" he would discover that they would not answer to his call. The State, by adopting the Established Church, had taken upon itself the duty of giving effect to its ordinances; it might vary or modify them in circumstantials, but all essentials it was bound to maintain and uphold. This duty was recognised by the Legislature itself in its most solemn enactment, that which prescribed the form of the coronation oath. What would be the state of the Church, if the measure were carried? Its legislative power was gone already. The clergy never met in convocation for the purpose of legislating upon the affairs of the Church; all legislation was now carried on by the state. And he must say, that whatever evils might have arisen from the clergy sitting in a convocation or synod, there were also great evils on the other side, and that those evils, if legislative measures like the present were to be passed, were incalculably greater than those which could possibly arise from the scandal produced by the squabbles of convocation. The passing of this bill, then, he could not help repeating, for he had given his reasons for the opinion which he held, would be in his eyes the extinction of the true episcopal character of the Church. Legislative power it had none; its judicial authority would go with the present bill, and of its executive functions, the highest and best, that of administering justice with mercy, was no longer to be intrusted to its Bishops. The Church was stripped both of her judicial and her executive power by this bill. Suppose that the proposition was, that they should interfere with the independent functions of the Church of Scotland, would not the whole of Scotland rise in arms against it,
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and would not the union with Scotland be speedily found to be a mere parchment union? If the interference were attempted with the Quakers, the proverbial peaceableness of that body would, he imagined, become a very formidable ingredient in the present state of the country. The Church of England was the only body in the land which could be assailed in its essential and vital parts with impunity. Entertaining these sentiments, he had felt it to be his duty frankly to avow them. With regard to the subject of church discipline generally, he had already intimated, that he would be disposed to adopt the recommendation contained in the report of 1832, with reference to increasing the powers of the bishops. To increase, and not to circumscribe, those powers, was the proposition of his right rev. Friend upon that occasion; and to the report he found affixed the names of Charles James London, Christopher Bethell, as also that of another right rev. Prelate, who he deeply regretted was not now present at their councils—he alluded to the name of William Dunelm. If that excellent man were still cheering them with his presence, and giving strength and confidence to all the friends of the Church, he would have unquestionably so addressed their Lordships that this bill never would have been entertained. He cordially concurred with the recommendation of the Commissioners of 1832. The great object of the Commissioners, as stated in their report, was "to maintain and enforce the authority and control of the Bishops over the clergy," of the decline of which they gave the history, and the restoration of which they stated as one great recommendation of their plan.
"They would restore to the bishops that personal jurisdiction which they originally exercised, and which was afterwards delegated by them (for never before this bill did Parliament undertake to transfer it) to their chancellors and officials."
Will the Commissioners, therefore, increase and regulate the power of the Bishops:—
"The doctrine of the canon law is, that although the trial of causes of certain descriptions (i. e. matrimonial, &c.) may be properly intrusted to a lay judge, to the Bishop himself belong inquisitio, correctio, punitio excessuum seu amotio à beneficio. Agreeably to this principle, the power of deprivation is reserved by our

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canons to the Bishop 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."
He did not approve of their fettering the Bishops with assessors. They might depend on it that the Bishop would know what was best to be done pro re natâ, whether to call to his aid the advice of a lawyer or of an experienced clergyman. The law of the Church was, that the Bishop should have some of his presbytery with him. The dean and chapter already presented a body which ought to be ready at his call upon all occasions. There was one other suggestion which he (the Bishop of Exeter) would give—namely, that there be only one appeal. This might be startling to some of their Lordships; but it was his decided opinion, that the only appeal from the Episcopal Court should be to the Court of Arches, and to no other tribunal. It might be said that the Queen, as head of the Church, ought to have the ultimate resort to her. This, however, had not been the practice of the Constitution. The statute of appeals, which he looked upon as a most extraordinary specimen not only of wisdom but of eloquence (he alluded to the 24th of Henry 8th, c. 12), gave a most accurate description of the Constitution of England, and claimed for the spirituality of England the power of deciding in all cases spiritual, and for the temporality in all cases temporal. This statute enacted, that there should be no appeal in spirituals from the Archbishop's court. The cause of a different course being adopted in the following year was well known. The Bishops of that time were strongly suspected of entertaining a very amicable feeling towards the Pope. Therefore an appeal was given to his Majesty; and in the dernier resort the power was vested in the Crown of trying appeals. This power was to be delegated by the Crown to a commission. How did this work? Till late in the seventeenth century, no temporal peer or judge of the land, except in one instance, was included in the commission. His authority was not a light one; it was that of Mr. Gibson. The judges always put forward in the last resort consisted of bishops and divines. Of what did this judicial tribunal now consist? Of bishops or divines?—No. Of churchmen?—No. Of
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the twelve officers who were then named, it was not necessary that more than two should be churchmen. All the rest might be the bitterest enemies of the Church—Roman Catholics or Unitarians. The only excepted cases were those of the Lord High Chancellor and the Judge of the Prerogative Court. Did not common sense reclaim against this? The effect of vesting in the Judicial Committee of the Privy Council the last resort in spiritual cases was to constitute them ecclesiastical judges. So that the arrangement was one, which in the event of Roman Catholics being appointed judges, would directly clash with the Act of 1829. The right rev. Prelate concluded by moving, that the Bill be committed that day six months.
The Bishop of Londonsaid, that it would not be possible, within the compass of a few observations (and beyond a few he could hardly think of trespassing on their Lordships), to say all that would be desirable to state in answer to the very able speech of the right rev. Prelate who had just sat down. That right rev. Prelate had undoubtedly a right to call upon him and two of his brethren to give some account of the change in their opinion as to the measure which they had adopted and recommended in the report of 1832. He had certainly entertained at that time a notion very similar to the opinion now expressed by his right rev. Friend, that the early powers of the Bishops should be restored to them; and he still thought it of very great importance that those powers should be augmented, but not exactly in the manner proposed by his right rev. Friend. The experience of the years which had elapsed since the time to which the right rev. Prelate had referred, had led him to doubt the expediency of that specific enlargement of powers which was pointed out in the report. His right rev. Friend appealed to the authority of one of the most prudent and amiable Prelates that had ever adorned the bench of England—he alluded to the late Bishop of Durham. Although that right rev. Prelate had signed the report generally, he had withheld his assent from that particular recommendation. He said it would be imposing a burthen on the Bishops, which he shrank from inflicting on them, and which he could never take upon himself. The law of these cases was very complicated and depended so much on a great variety of precedents, that, for his part, it would be a matter of the deepest concern to him to

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have his attention drawn away from matters of far higher moment, to decisions upon questions relating to mere points of ecclesiastical law. In three cases tint of four he should have to sit as a judge in his own cause. One of the most important recommendations of this Bill was, that it removed all these cases from tribunals which were mostly incompetent, and always liable to the suspicion of partiality, to a judge deeply versed in ecclesiastical law, and far above all suspicion of unfair bias. This, of itself, was so great a recommendation, that he should be disposed upon this ground to adopt the present measure, if he believed it to be free from the objections which had been stated by his right rev. Friend. Those objections were of a very important character, and he (the Bishop of London) did not say that this measure was altogether free from them. It was quite true that, according to strict ecclesiastical principle the entire exercise of spiritual authority should be reserved either to the Bishops, or to the persons especially authorized by them. It was not, however, now-a-days practicable; and, as they must make a choice of evils, he thought the adoption of the present measure would be the least. It was his opinion that the right rev. Prelate had unintentionally confounded the different kinds of jurisdiction, which belonged to the episcopal office. He agreed with him that that which was strictly of a spiritual nature ought not to be delegated to others. He alluded, for instance, to the power of ordaining and confirming; but, when they came to the power of inflicting punishment, the case was different. There were two kinds of ecclesiastical punishment. They might proceed to inflict punishment on a clerk, or other member of the church, by spiritual censures. That was a power which might be held to be incommunicable, and yet it for ages had been delegated to the judges appointed by the Bishops. Excommunication was a sentence decreed in open court by the ecclesiastical judge. [The Bishop of Exeter: The greater excommunication is reserved to the Bishop.] However, two of their jurisdictions were even now entrusted to the hands of laymen, and to show that this was not necessarily incommunicably inherent to Bishops, it was executed by other bodies, such as deans and chapters and the ordinances of peculiars. His right rev. Friend had in the course of his speech expressed a sentiment which he should have been glad had it been repressed, for the sake of the effect it might produce out of
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doors. His right rev. Friend had said that if this bill passed, it would go a large way to sanction the statement which was frequently in the mouths of Roman Catholics, that the Church of England was an Act of Parliament Church. Would not however, the same objection in point of principle apply to any measure that even his right rev. Friend might introduce—to any remedy he might think it right to apply to existing evils? Could any such remedy be applied except by the authority of Parliament? He thought it was one of the peculiar doctrines of the English Church that it assigned the supreme temporal headship, to the Sovereign, and whatever might be the theories of divines, as stated by his right rev. Friend, that was the doctrine of those who were looked to as authorities on questions of the Church in connexion with the State. Those authorities held, that with respect to jurisdictions affecting the rights of persons, the Crown was the fountain of all authority, ecclesiastical and civil. Such were the opinions of the greatest lawyers of this country upon a matter in which the opinions of lawyers was at least equivalent to those of the most learned divines. Lord Chief Justice Hale, who though a most illustrious judge, was, he must say, rather prejudiced against the ecclesiastical courts of the country, spoke of the jurisdiction exercised by the Bishops as being derived from the Crown, and he declared that all courts, ecclesiastical or civil, held no other power or authority but such as were derived from the King's Most Excellent Majesty. Again, Bishop Gibson observed that the external administration of spiritual discipline, such as the removal from benefices, was in the Bishops, but that it was impossible for them to exercise that discipline without the aid of those courts which derived their authority from the State. This was a measure to enforce the performance of duties by the clergy. Now, he had never heard in the English Church that the temporal power might not interpose for that object. The Necessary Doctrine of a Christian man, published in 1543, says, "that priests and bishops may not exercise any of their spiritual offices, but with such sort and limitation as the ordinances and laws of every Christian realm do permit and suffer." Was there, then, any real objection to the principle that lay authority might be admitted in aid of ecclesiastical discipline? And then arose the question, which was the best mode of enabling the

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bishops to exercise that discipline which they could not exercise without the authority of the State? He entirely concurred with the most rev. Prelate (the Archbishop of Canterbury) that this Bill would strengthen that truly spiritual discipline which every Bishop possessed, and which no one wished to take from them. The discipline of the Church was best secured on the one hand by a paternal exercise on the part of the Bishops of the authority vested in them; on the other hand by the opinion entertained by the clergy of that spiritual authority, and by their conscientious regard to the obligations they were under by the ceremony of ordination, At his consecration a Bishop was solemnly charged to administer discipline according to the will of God and the law of the realm. Here, then, were two kinds of discipline—a spiritual discipline according to the will of God, and not exercised by the law of the realm further than the recognition by the law of the authority of the particular Bishop of each diocese; and another kind of discipline to be exercised according to the laws of the land. This distinction furnished an answer to the argument which his right rev. Friend had drawn from the service of consecration. Then, by the ordination service, the party admitted, promised to obey the chief governor, to whom the authority over him was committed, that is by the law of the land. He apprehended that his right rev. Friend would not now insist on the power of personal excommunication as an effective means of administering the discipline of the Church. Sorry should he be to see any individual clergyman of whatever degree taking upon himself most dangerous power—a power so liable to be abused, and which had been so often abused by the clergy of other Churches, He thought it was a proof of the wisdom of the Protestant Reformers that they did not think it necessary to assert that power for individuals, but left it to the discretion of a competent tribunal after due inquiry and investigation into the merits of the case, and the 65th canon required, that the sentence should be pronounced in open court. Now, with regard to the transfer of the jurisdiction from the Bishop's to the Arches Court; if be could devise or see any other plan for the more effectual discipline of the Church, which would steer clear of the difficulty which that transfer presented, he would gladly embrace it. That part a the measure was, however,
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important rather in principle than in practice; but, although important to a certain degree in principle, it was not likely to be drawn into an inconvenient precedent. In practice, their Lordships had heard that fifteen cases in five years formed the sum total of suits against criminous clergymen from all the dioceses in the kingdom, and he was sure if this bill was passed the number would be further diminished—diminished pot only because the body of clergy of the present day were more carefully educated than formerly was the case, and, therefore, he need scarcely add, were a more decorous arid better conducted class of men, but because the knowledge that such a tribunal as that now proposed existed—that the mode of trial was summary, just, impartial, and not very expensive—that facilities were given, not to common informers, but to the bishops; these circumstances all being known would deter many criminous clergymen from persisting in proceeding in a wrong course. It would deter, for this further reason—they would know that the Bishop had power to send for a clergyman to speak to him in a friendly but firm tone, to say to him he had too much reason, after inquiry in the neighbourhood, to believe what he had heard respecting the conduct of that clergyman to be true: to such a man the Bishop could say, "There is a mode of bringing you to justice, and if convicted, you will be ruined; let me persuade you to submit at once to my judgment, which shall be as light as circumstances will admit, and retire from your benefice altogether, or at least for a time" In practice this was now a common mode of proceeding to which Bishops had recourse, and might be resorted to with still better effect if the bill was passed into a law; whereas, if the principle contended for by his right rev. Friend was carried into effect, all this preliminary discipline would be put a stop to. With regard to the delegation of powers to laymen to which his right rev. Friend objected, there was no innovation of principle, for it had been done in the act of Parliament which constituted the Judicial Committee of the Privy Council a tribunal in such matters in lieu of the Court of Delegates. The difficulty which presented itself to his mind, was involved in the transfer of the ecclesiastical causes from the courts of the Bishops to that of the Archbishop. That proposition certainly weighed heavy on his mind, and he wished some other mode could be devised for getting over it; but on the whole,

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he could not say of a measure which was likely to effect great good to the Church, with so little of evil as was contained in the bill, he would not accept it with its evils and benefits, such as they were, thinking, as he did, the balance was greatly in favour of the latter. He concurred with his right rev. Friend in the opinion he had expressed that the word "degradation" ought not to be introduced into the bill. In no case ought degradation to be inflicted by laymen; a clergyman might be deprived of the power to exercise his spiritual functions, but he doubted, whether either the state or any ecclesiastical tribunal was competent to deprive him of his holy orders, when once admitted to them. He, therefore, thought the word "degradation" ought to be omitted. There were many other points on which he would gladly have touched, but time warned him that he had trespassed too long. He admitted the difficulties of the question, but thinking the bill had objections less than advantages, and that it might receive some modifications in Committee, he was disposed to adopt it in its present stage.
Lord Wynfordsaid, that having served in committee on this subject, with the right rev. Prelate who had just addressed the House, he must offer a very few observations to their Lordships. His objections to this measure were of a nature more familiar to his mind, than those which were so ably expressed by the most rev. Prelate, and the two right rev. Prelates, who necessarily looked upon this subject with a view to the spiritual questions involved in it. As to the subject of the assessors, several plans had been brought forward in the committee, which, after much deliberation, had been thoroughly discussed. His own proposal was, that the deans and chapters should act in this capacity in the bishop's court; but the right rev. Prelates thought that would not do. Now it was the fact, that from the earliest period, though the bishops had delegated all other powers, their criminal jurisdiction over their clerks they had ever reserved to themselves, merely calling in a legal adviser or assessor, in cases of difficulty. An act of Parliament, passed in the reign of Henry 7th, had confirmed this jurisdiction to them, and most wisely; for who so competent as the bishop, who was constantly watching over his clergy, to sit as judge of their offences? In his opinion, this jurisdiction ought to be transferred to no layman whatsoever. He remembered a case which had occurred some time back, and would probably be in the recollection
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of the most rev. Prelate, in which he had been called upon to sit as assessor to a right rev. Prelate, upon a clerk who was charged with adultery, the object of the suit being the revocation of his licence to his curacy. Here was a grave inquiry of a criminal nature against a curate; and by whom was it heard? Not by any court—that could not be, but by the bishop. This was an advantage for the clerk. But why should the crimes of the rector be decided in one way, and the crimes of the curate in another way! There ought not to be two methods of trial; questions, by the decision of which a curate might be ruined, ought not, he contended, to be decided in a different way from that adopted in the case of all other clerks. His opinion was, that the bill retained all the mischiefs which were attributed to the present law; still he did not say, that no alteration should be made in the present law. The expenses of proceedings under it ought to be diminished. He remembered a right rev. Prelate having been put, on one occasion, to an enormous expense, in pursuing a criminal clerk to justice. The old constitutional method was, he was convinced, the only way which could be made available for this purpose—he meant the trial before the bishop in foro domestico This would prevent all the heavy expenses of pleadings in the Ecclesiastical Court. The right rev. Prelate who spoke last, seemed to think that much delay would be got rid of by this measure, and he spoke of getting through a trial in a few months. But what was really done as to this by the bill? Only one appeal was saved, that from the bishops' courts to the archbishops' courts; but how did other provisions of the bill make up for this saving? The appeal at present would be from the archbishops' courts to the Judicial Committee of the Privy Council. But under this bill, the cause would go, in the first place, into the archbishop's court; from the 'archbishop's court an appeal lay to the Privy Council, and there appeals would end. But when the cause got into the archbishop's court, then it would be heard on depositions taken by commissioners previously sent into as many parts of the diocese, and to as many other places as there happened to be witnesses living, who knew anything of the case. Besides the delay thus occasioned, the expense of these commissions would be exceedingly great. Nor was this all, for after all these commissions, the judge of the Ecclesiastical Court might hear the matter over again, or vivâ voce evidence, by witnesses brought up from Cornwall, or the

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most distant places. Still this was not all; for the judge might order an issue to be tried before any going judge of assize, and here, if any evidence should not appear on the judge's notes which ought to have been there, or any other mistake occurred, a new trial might be had. Would any one tell him that this bill would be less expensive, or cause less delay, than the present system? Again, the person who instituted proceedings would be liable to taxed costs, at least, and to whole costs if he were not fortunate. He would be liable also, to enter into recognizances to discharge any damages which the judge might assess, who was likely to become a promoter under this bill? In fact, he was quite satisfied the measure would fall a dead letter, unless the bishops chose to become promoters, as they frequently had become, under the present law, much to their honour. But, however this might be, unless promoters were to be found, there was an end of the bill. There was another point. At present, a clergyman could only be tried in his own diocese, and this, not merely by the regulations of the Church, but by an act of Henry 8th.; this, however, was to be done away with by the bill. Now, he thought this would operate most unjustly and oppressively. There were many cases in which the clergy would submit to any terms almost, rather than enter upon a dispute with a promoter, if such should be found to set the bill in motion. For these reasons, he must declare he could not concur in the measure.
The Bishop of Gloucester and Bristolsaid, that, as he had been alluded to pointedly in the course of the debate, he felt it impossible to give a silent vote on this occasion. He thought the measure which they had passed three years ago, though he did not approve of every part of it, was a better measure than that which was now offered to the House. He was not present on the last occasion on which this measure was before the House, but he had seen it stated, that the most rev. Prelate had said, that the former measure was generally disliked among the clergy, from their repugnance to sit in judgment on their brethren. There must be come mistake, he thought, for he had written to all the archdeacons of his diocese, desiring them to ascertain the real sentiments of the clergy generally, but without himself intimating his own opinion, or saying anything which could bias any one, and it turned out that the clergy of his diocese
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were almost unanimous in favour of that measure, and against the present. He thought that the objections of the Bishop of Exeter had not been answered. The enactments of the bill were opposed to the canons in several particulars. One canon, the 94th he thought, said, that the Dean of Arches shall not summon any person to answer before him who was not within the province of Canterbury; but the bill said, that he must summon every criminous clerk whatever before him. Again, the canons said, that every sentence should be pronounced by the bishop, but the bill said, that every sentence should be pronounced by the Dean of Arches. He thought, with a right rev. Prelate near him, that the bill, instead of diminishing, would rather increase both the delay and the expense attendant on proceedings in the ecclesiastical courts. He was very apprehensive that, while it would not secure justice against the real delinquent, it would be liable to be made an instrument of persecution against innocent persons.
Their Lordships went into Committee, and immediately resumed.
Committee to sit again.
The following Protest was entered by the Bishop of Exeter.
Dissentient—
"1. Because, though the ecclesiastical judges derive their power in foro exteriori, even in spiritual matters, from the State, their authority is independent of, and pre-existent to, the sanction of the temporal law, which merely adds temporal consequences to the ecclesiastical censures, the infliction of which is part of the power of the keys, vested in the Church by its divine founder, and exercised by it in the earliest ages. It follows, that the State, though it may refuse to add a civil sanction to the exercise of the spiritual authority, cannot either grant that authority, which does not spring from any human source, or take it away from any one, in whom the divine constitution of the Church has vested it. Consequently, this bill prohibiting in every diocese the exercise of all spiritual jurisdiction, so far as any spiritual censure on a criminous clergyman is concerned, except that of the Court of Arches, cloth exceed the power of human law, inasmuch as it affects to deprive bishops of that essential authority and inherent right which appertain to their sacred office by the Word of God; and which they, at their consecration, have promised and vowed that they, by the help of God, will faithfully and duly exercise by correcting and punishing such as be criminous within their respective dioceses.
"This fundamental objection to the bill is not removed by the 26th clause, which professes to 'save any authority over the clergy which

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bishops may now, according to law, exercise personally and without judicial process;' for judicial process is essential to the due exercise of episcopal authority, which, without it, ceases to be judicial, and must become either arbitrary or utterly ineffective. It is prescribed by the apostle. It was used and practised in the Church for 300 years before Christianity became the religion of any state, or its laws and discipline were enforced by any human government. Its necessity is recognised and asserted by all the soundest and ablest divines of the reformed Church of England, who have written on the nature of the visible Church, by Bishops Jewell, Bilson, Hall, Bramhall, Stillingfleet, Jeremy Taylor, Beveridge, by Hooker, Field, Hammond, and many other luminaries of that age in which theological learning in England was most diligently and most successfully cultivated, not to mention other authorities of the last and the present centuries.
"2. Because, to prohibit judicial process, even in the domestic forum of the bishop, and thereby, as was admitted in debate, to extinguish all episcopal jurisdiction, on the plea that the Church is now protected by the State, is to confound things essentially distinct; it is in effect, however laudably intended, to betray the Church, and to mislead the State. On the one hand, it forbids the exercise of the most sacred rights and duties of those to whom they are committed by the word of God, (being thus an act of direct persecution,) and professes to transfer them to another, whom no human law can empower to exercise them in some of the highest particulars enumerated in the bill. Such are excommunication, deposition, and degradation, judgments which cannot be pronounced by any but those to whom the divine Head of the Church bath committed the keys of his kingdom, and the power to bind and to loose.
"On the other hand, while the bill thus seeks to arm a layman, by authority of Parliament, with that spiritual sword which not the highest lay potentate on earth can wield, it hides from the Sovereign, and from the great council of the nation, that solemn duty which 'He by whom kings reign, and princes decree justice' Lath inseparably annexed to Christian magistracy, the duty of upholding and enforcing the essential discipline of his church—a duty which this State, so long as it acknowledges our own apostolic branch of that church, can only discharge by sustaining and strengthening, in all things necessary, the government by bishops, a duty which the sovereigns of this realm have ever hitherto religiously observed, and which the legislature bath repeatedly recognized in its most solemn acts, especially in that great statute of 24 Henry VIII. c. 12, which, most eloquently yet most accurately, sets forth the constitution of this imperial realm, 'governed by one supreme head, under whom a body politic, compact of all sorts and degrees of people, divided in terms and by names of
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spirituality and temporality, are bound to bear, next to God, a natural and humble obedience.' 'That part of the said body politic called the spirituality, having always been thought, and being also, at this hour, found sufficient and meet of itself, without the inter-meddling of any exterior person or persons to administer all such offices and duties as to their rooms spiritual doth appertain.' And again, in those more modern statutes, which are, as it were, the landmarks of the constitution, the 1st William and Mary, c. 6, passed by Mr. Somers and the other enlightened patriots of that day, and embodying the contract between the sovereign and the people in the coronation oath; of which contract the preserving the rights and privileges of the bishops and clergy' are a prominent part. And the act of union with Scotland, reciting and confirming as a fundamental article of that union, the act for securing the Church of England, in which it is especially provided that every king or queen, coming to the royal Government of the kingdom of Great Britain, shall take and subscribe an oath that he will maintain, to the utmost of his power, not only 'the doctrine and worship,' but 'the discipline and government of the Church of England.'
"In accordance with this language of the laws, have been the solemn declarations of our most illustrious princes, claiming indeed, as is their clue by the laws of God and man, to be over all persons, and in all causes, both spiritual and temporal, supreme; yet disclaiming all authority of ministering God's word, of which the power of the keys, and of binding and loosing is an especial part; in a word, having both the right and the duty to rule all estates and degrees of men committed to their charge by God, and restrain with the civil sword the stubborn and evil-doers.
"3. Because the Dean of the Arches, holding only a limited commission from his Grace the Archbishop of Canterbury, which commission does not extend to the original jurisdiction in any diocese whatsoever, would not have even the semblance of ecclesiastical authority to exercise the powers proposed to be given to him by this bill. Neither can this fundamental defect be supplied by any new and enlarged commission from the archbishop, who bath not himself a right of original jurisdiction (except in cases of nullities) in any other diocese than his own; such right being contrary to the laws of the primitive Church always hitherto held sacred—contrary to a canon of the Council of Nice, acknowledged by the laws both of the Church and State of England to be the first œcumenical council—contrary to the canonical law of England, as expounded even by Lynwood, the highest authority for interpreting that law, himself official principal of the Archbishop of Canterbury of his day, who expressly says, 'the archbishop cannot depute officials to hear causes in the diocese of any of his suffragans. For, as the archbishop himself

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cannot constitute an official in the diocese of another bishop, neither can he there exercise anything which concerns judicial powers.' Indeed, the assumption by the Archbishop of Canterbury or his officers of original or concurrent jurisdiction in another diocese, hath been repeatedly adjudged in the highest courts of England to he an usurpation, founded solely on his ancient claim of being Legatus Natus of the Pope. So that the power which the present bill either recognises as already existing in the Court of Arches, or affects to give to it by its provisions, that court is not competent to exercise, unless the supremacy claimed by the Pope do indeed reside within this Church, in the Archbishop of Canterbury.
"4. Because, by an unprecedented and unprincipled assumption of power, the bill professes to subject the clergy of the province of York, both those of the corn-provincial bishops therein, and even those of the archbishop and metropolitan himself of that province, to the jurisdiction of the court of the Archbishop of Canterbury; whereas the province of York, and the jurisdiction of the archbishop and bishops thereof, are as wholly independent of the Archbishop of Canterbury as they are of any prelate in the most remote corner of the Christian world.
"5. Because the only advocate of the bill, who discussed its provisions, admitting in several important particulars that great principles were violated by it, rested its justification solely on the practical benefits sought thereby; thus, in conformity with that fatal policy which has been the bane of our times, proposing to sacrifice, in a matter of this high religious nature, principle to expediency; although the highest authority in the church, by just before declaring that the actual result even of the present most defective state of ecclesiastical discipline is such as admits of little improvement through the operation of law in the general tone of clerical manners, had precluded even the plea of any urgent necessity for making the sacrifice.
"6. Because, on the soundest considerations even of expediency itself, the provisions of the bill are open to just objection, inasmuch as they have a direct tendency to destroy, or most grievously to impair, the wholesome authority of bishops, by making them, instead of judges, to become merely the prosecutors of their clergy, before a lay tribunal; or, it may be, to employ them as executioners of the sentences of that tribunal.
"7. Because, although it may be true that bishops are not likely to be skilled in legal science, they must be more competent than laymen can be expected to be, to decide these questions of ecclesiastical discipline, which, in the exercise of their spiritual jurisdiction, Would most commonly come before them. As ecclesiastics they must be most competent to decide whether, and in what degree, the ecclesiastical duties of a clergyman have been violated; more particularly because many things
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are criminal in a clergyman which in a layman would be merely indecorous, and not always even indecorous; and many things are punishable by the canon law, and the principles of ecclesiastical discipline, to which no principle of temporal law is even applicable, Again, and in a still higher degree, bishops must be more competent than lay-judges to decide in cases where the question relates to the soundness of doctrines taught or sanctioned by a clergyman; especially as the constitution of the church has provided him with an ecclesiastical council to assist him in his decisions; and, meanwhile, he can experience no difficulty in obtaining the best legal advice, enabling him to dispose of questions of law as satisfactorily as any ordinary court.
"8thly and lastly. Because, if this bill shall pass into a law, that most estimable and venerable body of men, the clergy of England and Wales, will be reduced to a worse condition than any other class of her Majesty's subjects, being made liable to answer to charges affecting their highest religious and civil rights, their feelings and characters as men, their functions as Christian ministers, before a remote judicature, which, because it is remote, can never inspire confidence, but will be found, in practice, at once to prevent the prosecution of real delinquency, and to rob calumniated innocence of that best protection, the known characters of the accused and the accusers, as well as of the witnesses by whom the accusation is sustained or repelled."