HL Deb 27 June 1845 vol 81 cc1309-14

On the Report being brought up with Amendments,

The Bishop of London

, as one of the five bishops on the Select Committee to which this Bill had been referred by their Lordships, said, that they had done all in their power to improve the Bill, but he hoped it would not be considered that they were pledged either to the principle or the details of the Bill, which would deprive the bishops of the assistance of important officers, because it would deprive them of the means of remunerating them. He did not see how it would be possible to have efficient registrars or active apparitors, without whose assistance the process of the Courts could not be carried on. The scope of the measure would be to weaken considerably the efficiency of that jurisdiction still left to the bishops. The Bill, moreover, provided no compensation for the displaced officers, against the injustice of which he felt himself bound to protest.

Lord Cottenham

If the interests of the public were promoted by the consolidation proposed by this Bill, such an object ought not to be set aside because of the inconvenience which might be suffered by certain officers. This was not the House in which compensation could be awarded. With regard to the object of the Bill, it was neither more nor less than that approved of by both Houses of Parliament, by Select Committees of both Houses, and by the Ecclesiastical Commissioners, and by two Law Commissions. The result had been an uniformity of opinion rarely found on a subject of such importance. All had concurred, without any difference of opinion, in approving the scheme now proposed to be carried into effect. As to the question of matrimonial jurisdiction, it had not been transferred without having been much considered and discussed in Committee. He understood the right rev. Prelate's objection to be urged against the transfer to a purely lay tribunal of the power of declaring a divorce in certain cases, that marriage being of a spiritual nature, it ought to be dissolved only by a spiritual court. Without adverting to the alteration of the law which made a marriage good though celebrated by a purely lay officer, the principle suggested by the right rev. Prelate had never been strictly acted upon. Many lay peculiars had this jurisdiction, who derived their power from no spiritual authority whatever. But what put the question beyond all doubt was, that there was at all times an ultimate appeal in matrimonial causes to the Sovereign, who, previous to a late alteration, delegated the inquiry to the High Court of Delegates, consisting of Common Law Judges and Advocates of the Civil Law, who were not spiritual persons. The duty was now delegated to the Judicial Committee of Her Majesty's Privy Council, with the holder of the Great Seal at its head—a perfectly lay tribunal. That tribunal had no power of its own, and reported to the Crown what ought to be done, though the act of pronouncing divorce was that of the Queen in Council. At present, if the ecclesiastical courts refuse a divorce, and on an appeal to the Judicial Committee the Privy Council report that the spiritual court was wrong, and ought to have granted it, the result would be that the divorce would be granted by the Queen in Council. Where, then, in such a case was the spiritual jurisdiction? But it might be said that both the spiritual and temporal authority was vested in the Sovereign as head of the Church, and that the Crown communicated to the tribunal she appointed the ecclesiastical character which belonged to it. The result would be the same under this Bill. The power of directing divorce rested always ultimately with the Crown, and this Bill no more in this respect trenched upon spiritual jurisdiction than the existing law. He ventured to say that no Bill passed this Session would communicate greater benefits to the public than the present.

The Bishop of Salisbury

admitted there were evils in the present system which it was desirable to remove. He could not object to the transfer of the testamentary jurisdiction for instance; but what he did complain of was, that this Bill destroyed the means by which ecclesiastical jurisdiction could be enforced. Now, that jurisdiction formed part of the institutions of the country, and ought not to be touched except on adequate grounds. The question of compensation which had been raised, at once showed that a measure of this nature ought not to be introduced except on the responsibility of the advisers of the Crown, particularly as it affected the efficiency of the Church, one of those institutions which they were sworn to maintain, and which they were bound not to touch, except after communication with those who were considered competent to give advice and information on the subject. The Bishops had every reason to believe that no measure would have been passed this year on the question. As a Bill of this description materially affected his jurisdiction, he had waited on the right hon. Gentleman the Secretary for the Home Department, at an early period of the Session, to inquire whether it was probable such a measure would be submitted to Parliament, and he received an assurance there was no chance of it. It was only on his return from London from his visitation, that he saw in the papers an account of the discussion on this Bill, in which the Ministers expressed their cordial concurrence in the object of the measure, and they had since pressed it on with a degree of zeal fully equal to that of its proposers. It surprised him that the noble and learned Lord (Lord Cottenham) should have quoted the Peculiars as an instance of a lay tribunal. They were certainly now in no sense of an ecclesiastical character, and they formed one of those abuses which it was desirable to remove; but they were unquestionably of ecclesiastical origin, and derived their power from the Papacy.

Lord Brougham

The right rev. Prelate seemed to think this Bill was the effect of a collusion between its authors and the Government. Now, his noble and learned Friend (Lord Cottenham) had introduced it in a speech of a somewhat hostile character to the Government; and when it was submitted there was not the least conception of the course which the Government would take.

The Bishop of London

fully concurred with the observations of the right rev. Prelate, that a measure of such great importance to the Established Church, which was an essential part of the institutions of the country, ought not to have been introduced, except on the responsibility of Government. Such a step had never been taken for upwards of 200 years. It was certainly an understanding with the late Government, that no Bill affecting the Church should be introduced without consultation with the Bishops.

The Lord Chancellor

said, that in consequence of what had fallen from the right rev. Prelate, he begged to state the position in which he stood as to this Bill. During the last Session he had brought forward a measure of a much more modified character; but he had stated as a reason why it was so restricted that he despaired of carrying a more extensive measure through the other House. He had said this Session it was not his intention to bring in a Bill on the subject; and this resolution had been come to after consultation with his colleagues. But when the Bill of his noble and learned Friend (Lord Cottenham) was brought in, he, without any communication with his noble and learned Friend, rose in his place, and said that as it corresponded in all its main features with a Bill submitted by one of his Colleagues in 1842, he could not do otherwise than support it. How could he act otherwise as to any Bill moved by one of their Lordships, which had been previously brought in by Government, but unsuccessfully prosecuted by them?

The Bishop of Salisbury

said, the Lord Chancellor had referred to the Bills of 1842 and 1843. It was not convenient to speak of that Bill now without having it to refer to; but, if he did not mistake, there was an important distinction between that Bill and this, inasmuch as the former contained the clause respecting spiritual discipline, which was struck out by the Select Committee. He remembered distinctly that it was in 1842 he first had any intimation that the present Government meant to introduce a Bill on this subject. On Ash Wednesday in that year he attended a meeting at Lambeth Palace, specially summoned by the Archbishop of Canterbury, to confer respecting a Bill on this subject which the Government had laid before the Bench for their consideration; and it was the unanimous opinion of the Bench on that occasion that the clause relating to spiritual discipline ought not to be included. Soon afterwards he met the Secretary of State for the Home Department, and in the course of conversation that right hon. Gentleman said to him, "I have been endeavouring to meet the wishes of the Bishops on that subject," and a few days afterwards an amended Bill was sent to all the bishops for their approval. That Bill, however, did not propose to abolish altogether spiritual discipline, but it pro posed a clause to carry it into effect which he thought was inadequate, and accordingly he wrote a letter to the Primate on the subject, with a request that he would lay it before the Government. That Bill was not brought in in 1842; but the Bill his noble and learned Friend alluded to was brought in in 1843, and he believed it did not contain the clause relative to spiritual discipline which was contained in the Bill when the noble and learned Lord expressed his approval of it. Being accused of inconsistency, he thought it his duty to point out that in this respect the Bills were materially different.

Lord Brougham

said, that the difference was that this clause was contained in the Bill, but was now struck out to please the right rev. Prelates. The right rev. Prelate was complaining that he had had his own way in the Select Committee. His noble and learned Friend had only said that he would give his general support to the Bill, without pledging himself to every clause. The right rev. Prelate complained that a great surprise had been practised upon him; but, because the Government had no intention of bringing in the Bill themselves, were they necessarily to oppose it because it was brought in by his noble and learned Friend? Less ground for surprise he never heard. It amounted to this—that the right rev. Prelate thought, when a Peer would not bring in a Bill himself, he did not mean to allow another Peer to do so.

The Bishop of London

said, his complaint was not that the Government did not bring in this Bill, but that they did not make up their minds whether such a Bill should be brought in or not; and if they determined that it should, that they did not bring it in themselves. He maintained that a Bill of so much importance to the Church ought not to have been brought in except by the Government, and not by them until alter due consultation.

Lord Campbell

begged to remind the right rev. Prelates who had spoken, that the Bill originated with the Commission of which they and four or five other Prelates were members, and that they were unanimous in recommending it in all its main features. It was he who asked his noble and learned Friend on the Woolsack whether he meant to bring in the Bill, and his noble and learned Friend's reply was, "You bring in the Bill, and we will consider the course to be adopted."

The Bishop of London

said, it was quite true he was one of the Commissioners in 1832, and signed the Report, the recommendations of which tallied to a great extent with the provisions of the present Bill. He had, however, yet to learn that, in the course of thirteen years, additional experience might not properly tend to modify his opinions on a measure like the present. In fact his opinions respecting it were modified to a certain extent, though he did not now object to the whole Bill, but only to some of its provisions. As to his signature being attached to the Commission, if it were worth while he could tell a story on that subject which would effectually refute the charge of inconsistency.

The Lord Chancellor

said, his noble and learned Friend (Lord Campbell) had a little mis-stated what he said, in reply to his question. His words were, "I have no intention to bring in a Bill, but if you bring one in, I will tell you what we will do with it."

Report agreed to. Further Amendments made.

House adjourned.