ECCLESIASTICAL COURTS. (Hansard, 22 May 1843)

The Bishop of Exeter
rose, pursuant to notice, to present certain petitions relative to projected reforms in the ecclesiastical courts. The petitions were not directed against a bill which was then before the other House of Parliament, but had reference to a subject on which her Majesty's Ministers had pledged themselves—namely, the reform and regulation of the ecclesiastical courts; and the petitioners prayed that those courts in the country which had a right to grant probate might be suffered to remain, subject to such alterations as might be deemed necessary to render them more efficient. It was not surprising, after the sentence that had been passed on them by the Ecclesiastical Commissioners in their report, that it should be proposed to remove these courts altogether. That report was made by very eminent men — men eminent in every department with which they were connected. The commission to which his late Majesty confided the duty of inquiring into the course of proceeding in the ecclesiastical courts was composed of pious prelates of the Church, most distinguished judges, civil and ecclesiastical and distinguished practitioners of the law in the eccclesiastical courts. That a report made by such men should be most able was to be expected. Able as that report undoubtedly was, it treated different matters connected with the subject with a very different degree of attention—not always proportioned to their importance. The commissioners had to consider the extent of actual jurisdiction possessed by those courts, and they reported that — 667 The ecclesiastical jurisdiction comprehends causes of a civil and temporal nature; some partaking both of a spiritual and civil character; and, lastly, some purely spiritual. In the first class are testamentary causes, matrimonial causes for separation, and for nullity of marriage, which are purely questions of civil right between individuals in their lay character, and are neither spiritual nor affecting the Church establishment. The second class comprises causes of a mixed description, as suits far tithes, church-rates, seats, and faculties. The third class includes church discipline and the correction of offences of a spiritual kind. They are proceeded upon in the way of criminal suits pro salute animœ, and for the lawful correction of manners. The report extended to between seventy and eighty pages, and only the third part of one solitary folio was given to that portion of the subject which more especially related to the interests of the Church, as a church. Now, he would venture to entreat her Majesty's Government, and he would, as this was a legal measure, more particularly address himself to his noble and learned Friend on the Woolsack with respect to it—he would venture to express a hope, that any measure contemplated on this subject would not be hastily pressed forward at a time when it was perfectly impossible for the Bishops to be present in their places in Parliament. He held in his hand a copy of a proposed bill on this subject, which had been sent to him by a high legal authority before the Parliament had met, and it was then announced, that some certain measures would be brought before their Lordships' House in this Session with reference to the ecclesiastical courts. They had now, however, arrived at the end of May, and no such measure had been brought before them. He understood, however, that a bill on this subject had been read a second time in the other House of Parliament, but he did not see, nor could he judge from any notice given, that there was an intention to carry it speedily through that House. That bill consisted of 140 clauses, and very great difference of opinion existed with respect to the various provisions of the measure. How, then, after it had been fully discussed in the House of Commons, the bill was likely to be carried up into heir Lordships' House, in any reasonable time for due and proper deliberation, for calm and patient consideration, such as the importance of the subject demanded, he was utterly at a loss 668 to conceive. It could not be expected in that House in proper time to give their Lordships a fair opportunity of bestowing on such a measure that attentive consideration which its important nature demanded. He had said enough, he thought, to justify him in earnestly entreating her Majesty's Government not to allow such a measure to be carried forward at a time when the right rev. Prelates could not be present to discuss its merits. A measure on this subject was not likely to be unanimously agreed to; and, looking at the various interests that were connected with it, he thought it was impossible so to compress them within the compass of one bill as to command unanimity. When he considered the misrepresentation which prevailed on this question with reference to very grave matters, he felt the necessity of proceeding with the utmost caution. Much that was proposed was founded on nothing less than misrepresentation. The intended bill did, in truth, rest On what he would not call false pretension;—no; he did not suppose that there was any intention to deceive. He freely exonerated all those who were connected with it from any intention to deceive, and yet it was extraordinary.

The Earl of Radnor
rose to order. The right rev. Prelate, in presenting a petition, was proceeding to animadvert on a bill, which was not before the House. If he understood the right rev. Prelate rightly, he had commenced by saying that the petitions which he was about to present, were not against a certain bill, though they had relation to the subject of that bill; but now the right rev. Prelate was actually proceeding to discuss that very measure.

The Bishop of Exeter:
I pledge myself that I am not discussing the measure to which the noble Earl refers. The paper I hold in my hand is not the bill to which allusion has been made. It is not the same, and I submit that in referring to if I am not out of order.

The Earl of Radnor:
I did not say, that the right rev. Prelate had the bill in his hand. I stated, that he was, as it appeared to me, animadverting on a bill, which is now pending elsewhere.

The Bishop of Exeter
said, he was about to state the provisions of a measure which" had been sent to him, and he believed to every Bishop, embodying the intentions of her Majesty's Government On 669 the subject of the ecclesiastical courts. He believed that he was not out of order in referring to the contents of that paper, and making such remarks on it as he might think necessary. He did not mean to go into the whole question, his object being merely to entreat her Majesty's Government not to force such a bill through Parliament this Session. The bill contained what amounted to a sup-pressio veri, and led to a false conclusion being drawn; it led to the belief that the Ecclesiastical Commissioners had recommended a transference of jurisdiction in testamentary and matrimonial matters from the ecclesiastical to lay courts. He appealed to the recollection of those right rev. Prelates and noble Lords present, who had formed a part of the Ecclesiastical Commission, if they had ever recommended anything so vague as the transference of the ecclesiastical jurisdiction elsewhere, even in testamentary and matrimonial matters. He most cordially assented, that such matters as these might be properly transferred to a civil court; but the recommendation of his right rev. Friends near him had. been that the jurisdiction on these matters should be referred to the two provincial courts; and their Lordships would permit him to remind them that these courts were ecclesiastical courts. The Ecclesiastical Commissioners recommended that all matters testamentary and matrimonial, should be transferred from the diocesan to the provincial courts.

The Lord Chancellor:
I understand that the bill before the other House of Parliament differs from the paper in the right rev. Prelate's hands. I understand, that the right rev. Prelate is now commenting on a bill in his hands which does not correspond with the report of the Ecclesiastical Commissioners. At the same time, the right rev. Prelate tells us, that the bill in his bands does not correspond with the bill before the other House of Parliament. I submit to the right rev. Prelate that under these circumstances it is a mere waste of time to go on. If the right rev. Prelate says, that there is a bill in the other House of Parliament, and that these particular clauses upon which he is commenting, correspond with clauses in the bill in the other House of Parliament, that is another question. I ask whether they do correspond?

The Bishop of Exeter
continued: The noble and learned Lord on the Woolsack 670 has said, that I have made a declaration with respect to a bill in the other House of Parliament.

The Lord Chancellor
No; I did not say that at all. I said the right rev. Prelate is comparing with the report of the Ecclesiastical Commissioners a paper which he holds in his hands, and which he condemns, and at the same time, he says, that it does not correspond with the bill before the other House of Parliament. I ask, therefore, what is the use of discussing that paper, unless the right rev. Prelate will take on himself to gay that it corresponds with the bill in the other House of Parliament?

The Bishop of Exeter:
I do undertake to say, that it corresponds with that bill.

The Lord Chancellor
Then I understand my right rev. Friend is as irregular as possible in discussing the clauses of a bill before the other House of Parliament, and not before this House.

The Bishop of Exeter
The noble and learned Lord has not said, that I am departing from the orders of the House in saying that the paper I bold in my hand, is a bill to be brought into Parliament by her Majesty's Government at some time or other.

The Lord Chancellor
I hope the right rev. Prelate won't understand me to express myself in any way disrespectfully when I say it is an idle waste of time to discuss a paper which does not correspond with the bill in the other House of Parliament, and if it does correspond with, that bill, then the discussion is irregular.

Lord Kenyan
said, his noble and learned Friend on the Woolsack had interrupted the right rev. Prelate in a manner which was quite out of order. He had suggested to the right rev. Prelate, that the course he was pursuing was not out of order, but inexpedient. Now, the right rev. Prelate ought himself to be considered as the best judge of the way in which he would discuss the question, and all who had heard the right rev. Prelate address the House would agree with him (Lord Kenyon) in thinking that there were few men who knew better hour to conduct an argument than the right rev. Prelate; and with-respect to order, be (Lord Kenyon) thought him completely within the rules of the House.

The Lord Chancellor
begged to say, that he was perfectly in order, because he had asked whether or not the clauses of 671 the bill which the right rev. Prelate held in his hand, did correspond with the bill in the other House of Parliament, and the right rev. Prelate admitted that they did; and to discuss the clauses of a bill on the Table of the other House of Parliament through the medium of a copy which the right rev. Prelate held in his hands was most irregular, and out of order. With all deference to the noble Lord, he was perfectly in order in the course which he had pursued.

The Earl of Wicklow
thought the noble and learned Lord, by putting such a question, had been out of order. The noble and learned Lord had no right to put that question to the right rev. Prelate. The right rev. Prelate appeared to him (the Earl of Wicklow) to be perfectly in order in the whole course which he had taken; he had begun by presenting a petition, and had not referred to any bill in the other House of Parliament, and he had a perfect right in presenting a petition to make use of what argument he pleased.

§ The Marquess of Lansdowne
said, the noble Lord on the Woolsack had a perfect right to ascertain whether the right rev. Prelate was in order or not, and on finding how the right rev. Prelate had answered the question put to him, every noble Lord had a right to call him to order. It was a matter of judgment whether or not it was fitting to discuss the clauses in the paper the right rev. Prelate held in his hand; and as to the suggestion that it was wasting the time of the House —that was not at all, he was sorry to say, out of order.

The Lord Chancellor
said, the question he had put, relative to wasting the time of the House, required explanation. The time of the House was never wasted. But the fact was, the right rev. Prelate was such a master of language, that he was certain, that the difficulty which the right rev. Prelate had in expressing himself arose from his endeavouring to avoid alluding to a bill in the other House of Parliament. He would put it to the right rev. Prelate's candour whether it were right to attempt to do indirectly that which he could not do directly.

The Bishop of Exeter
would endeavour to address their Lordships in a somewhat better way. He had said that he was alluding to a bill not in the other House of Parliament, but to the copy of a bill sent to him before the commencement of the 672 present Session. The noble and learned Lord had put it to his candour not to allude to a bill before the other House of Parliament. He felt bound to do his duty, and to impress on their Lordships the necessity that no such bill as that a copy of which he had received before the present Session of Parliament should be pressed on that House at a time when his right rev. Friends near him could not be present. He would in his turn, appeal to the candour of the noble and learned Lord on the Woolsack, and ask him, as one of the Members of her Majesty's Government, if it were right to stop him by asking a question in order to put him out of order, whilst he availed himself of a communication made to him before the Session of Parliament commenced to warn their Lordships against the injustice and unreasonableness of pressing such a measure through Parliament at a time when the bishops could not be present—a measure which, whatever the character of the bill elsewhere, professed to deal with the whole system of the established Church, and with its most sacred rights as a church considered purely as a church? Was it then to be endured that a measure of this enormous length, running to 140 clauses, should be brought to that House in the month of July, for earlier it could not reach them? He appealed to the noble and learned Lord's candour whether this was tolerable.

The Lord Chancellor
said, as the bill at present stood it was in the other House of Parliament. It was impossible for him to say at what time it would come to their Lordships' House. If it came at a period of the Session when it was impossible to pass it, because those who were interested in its passing were necessarily absent in the performance of other duties, he, for one, should not accede to its passing. He should act inconsistently to the opinions which he had expressed, and to the course which he had pursued on former occasions if he did; for he had submitted this argument as a reason for not entertaining bills when brought up to that House at a late period of the Session, and he should apply precisely the same rule now. He hoped that that explanation would be satisfactory to the right rev. Prelate.

The Bishop of Exeter
Most entirely. He understood that the bill was not to be pressed through the Parliament if the 673 bishops were unable to attend? If his understanding of the noble Lord's meaning were correct, the noble and learned Lord would have done more to save their Lordships' time by stating as much in the first instance than by other observations.

The Lord Chancellor
said, he had been taken by surprise by the questions of the right rev. Prelate. If the right rev. Prelate would allow him to make an inquiry with respect to the stage of the bill in the other House and when it would he probable that it would be brought to that House, and if the right rev. Prelate would inform him when the right rev. Prelates were likely to be absent, when he had ascertained these facts, if he found that the bill could not be brought up to that House with time to he fairly discussed, he should recommend the other Members of the Government not to press it forward this Session.

The Bishop of Exeter
said, after that explanation, he should be ashamed to press the discussion one moment further. He had gained the assurance of the highest authority that this bill should not be pressed through Parliament when the bishops were absent.

The Bishop of Lincoln
said, after the personal appeal which had been made to him as one of the Ecclesiastical Commissioners who had signed the report, he begged to say, that the question of the transfer of matters testamentary and matrimonial to a purely lay tribunal, had never been proposed to him on that commission; and such a transfer of the ecclesiastical jurisdiction had never been contemplated for a moment. The commissioners had merely recommended that the jurisdiction of the diocesan courts should be transferred to the provincial courts, which, as his right rev. Friend had stated, were ecclesiastical courts.