HL Deb 17 June 1852 vol 122 cc819-27

Order of the Day for Second Reading, read.


moved the Second Reading of this Bill, and stated its object, and the circumstances which made such a measure desirable. The Bill proposed to withdraw from the Ecclesiastical Courts the cognisance of causes of defamation and brawling or smiting in the church or churchyard, and was based upon the report of the Ecclesiastical Commissioners. He asked their Lordships to give, at least, an instalment of that reform which the public so earnestly desired, by assenting to the second reading of this Bill.

Moved—"That the Bill be now read 2ª."


said, it had been the intention of a right rev. Friend of his (the Bishop of London), who was unable to attend, to move the rejection of this Bill; and in the absence of that right rev. Prelate, he (the Bishop of Salisbury) felt it his duty to oppose the measure. He hoped that, at this period of the Session, their Lordships would not assent to a Bill which had not originated with Her Majesty's Advisers, who would have been able to take a comprehensive view of the whole subject, but with private individuals. It must not be supposed, however, that his right rev. Brethren and himself were not as desirous as any of their Lordships that a speedy and effectual remedy should be provided for any abuses which might exist in the administration of the ecclesiastical law. He fully admitted that there were many things in these courts which it was desirable to remove; and for himself he could say that he would readily co-operate in their removal. But he did not think it would be wise or prudent to pass a Bill referring to a single and small part of a great and comprehensive subject. A distinct pledge had been given in another place that the whole question should receive the consideration of the Government, and he therefore thought it the less desirable that this measure should be entertained. He objected to the Bill because it tended indirectly to repeal part of the rubric of the Book of Common Prayer, and could not therefore be entertained without the consent of Convocation; and further, because he considered that, if the subject was dealt with piecemeal, they might, unconsciously and unintentionally, trench upon principles which it was most desirable to maintain. He therefore moved, as an Amendment, that the Bill be read a second time that day three months.

Amendment moved, to leave out ("now,") and insert ("this day Three Months.")


in supporting the second reading, said, that a Committee of their Lordships' House had investigated this subject—six of the Members of which were Prelates of the Church—upwards of twenty years ago, and they had reported in favour of a measure of the kind now submitted to their Lordships. The right rev. Prelate, however, appeared to be in favour of a more sweeping measure of reform in reference to these courts than the Bill proposed, He (Lord Campbell) would rejoice as much as any man in a measure which would effect a complete reform of the Ecclesiastical Courts; but he was afraid that was too great a task to be undertaken except by a very strong Government resolved to do what Was right. He submitted, however, that the Bill before the House was wholly unexceptionable, and did not stand in the slightest degree in the way of future legislation. There was a criminal jurisdiction which in Roman Catholic times was assumed by the Church, which, in his opinion, and he knew he was joined in that opinion by several right rev. Prelates, ought never to have belonged to it: he meant the jurisdiction of a criminal nature against laymen guilty of brawling in the church, and of defamation; and it was with respect to those two offences only that this Bill proposed to abolish the jurisdiction of the Ecclesiastical Courts. The right rev. Prelate had objected to the Bill because it was not brought forward by the Government; but that was a futile objection, seeing that every independent Peer had a right to bring forward any measure which he thought deserved the consideration of the House. He would remind the right rev. Prelate that the County Courts Act was brought into the other House by an independent Member; it received the sanction of both Houses of Parliament, and had conferred the greatest benefit on the public. The circumstance, therefore, of this Bill being introduced by an individual Member ought to be no reason why their Lordships should not support it; and he would repeat that the Bill offered no obstacle whatever to future improvement. The jurisdiction sought to be abolished was a limb which their Lordships might easily lop off from the Ecclesiastical Courts; and he did not think the right rev. Prelate had offered one single valid objection why their Lordships should not pass the second reading.


said, he was entirely unable to acquiesce in the view taken by the noble and learned Lord opposite, who seemed to have entirely misrepresented the argument of the right rev. Prelate (the Bishop of Salisbury) on a material point, though, of course, unintentionally. His right rev. Friend did not, as he understood, say he was anxious for a sweeping reform on the subject, for he was one of those who thought it prudent in matters of reform to proceed step by step. But he (the Bishop of Oxford) understood his right rev. Friend to say that, in dealing with a great case of admitted abuse, the only safe way was to lay down some principle that would enable them to legislate upon the question as a whole, instead of leaving such principle altogether unannounced and undeveloped; but instead, beginning by exploring all the small extremities of the law, and so diminishing the power of the law, while yet no remedy was provided. He (the Bishop of Oxford) was prepared to admit that the subject deserved attention, that it ought to be dealt with by the Legislature, and that great reforms ought to be introduced; and it was because he believed this species of nibbling legislation was not the way to secure a great reform, but the way to leave real difficulties untouched, that he was unable to agree with the noble and learned Lord. He (the Bishop of Oxford) objected to the Bill for this reason, and he trusted their Lordships would concur with him, that it did away with the only remedy for certain great existing evils—the only mode of punishment that could be inflicted—while it did not substitute any other; and he held that to be a very vicious and irregular way of legislating. If the Bill passed, those cases of defamation in which the civil courts had no jurisdiction would be left wholly unprovided for, unless a new remedy wore given. And, with regard to the cases of brawling, the Civil Courts could not deal with them. A clergyman might preach against his parishioners, and make himself offensive to them, but they had no remedy unless a distinct libel was perpetrated, whereas he could now be proceeded against in the Ecclesiastical Courts, and the mere knowledge of the fact placed it in the power of the Bishop to prevent the necessity for future complaint on the part of parishioners. Within the last two years he had received several such complaints; but the circumstance of there always being a remedy in the Ecclesiastical Courts, enabled him to terminate quarrels and restore peace. The noble Lord (Lord Wodehouse) ought therefore to have provided in his Bill a new civil jurisdiction for the trial of laymen, and a new ecclesiastical jurisdiction for the trial of clergymen; but instead of doing that, he sought to abolish the existing law without substituting any other remedy. His right rev. Friend was no more enamoured with the existing law than the noble Lord (Lord Wodehouse), but he said it was not safe to take away the ancient remedy, the abuses connected with which lay deeper and required more severe handling than the noble Lord fancied, because they were connected with the whole system of ecclesiastical administration. He (the Bishop of Oxford) admitted cases of defamation were very numerous, not in London, but in certain of the wilder parts of the country; but though the machinery provided for the purpose was very bad and imperfect, there was no difficulty in repressing the evil by its means. He was quite ready to part with this, which at present was found to be a wholesome mode of repression, if a better mode was provided; but he was against abolishing a portion of an ancient complex system, when he believed there was danger of the remaining portions working badly This ancient law of the Christian Church, by which it exercised the power which must always be inherent in the Church of Christ to censure sins as sins, had existed for centuries previous to the reign of Edward VI.; and if first one and then another alteration were made in the category of offences, it would at length be reduced to a hopeless chaos of unmeaning words. It was one thing to establish a principle on a true basis not capable of abuse, and another to take away one thing, and then another, and yet leave the whole system unaltered and unchanged. At present a check was provided against a parish priest excluding any of his parishioners from the Holy Communion, because he was bound to notify the same to the Bishop, who could proceed against him in the Ecclesiastical Courts if he so thought fit—a privilege which was also conceded to the person aggrieved; but the Bill did away with that, and left the party without any redress. He had not obtained his acquaintance with the law ecclesiastical without knowing it wanted a very complete reform, and he trusted he might live to see such a reform carried out; hut it must be a reform not by individual Members of either House picking out two or three telling cases of abuse, but a reform that would bring back the system of ecclesiastical discipline to that more reasonable and more primitive state which the abuses of modern times had corrupted.


intimated, in reply to the right rev. Prelate's observation, no remedy being substituted for that proposed to be abolished, that the Bill made these offences punishable as misdemeanours. He should feel it his duty to divide the House upon the Bill.


explained that he did not say it was the inalienable right of the Church of Christ specially to deal with cases of defamation, but that the Bill was a partial interference with that discipline of the Church, which discipline was one of its inalienable rights.


said, the right rev. Prelate (the Bishop of Oxford) was not satisfied with this "piecemeal reform" of the ecclesiastical law, but desired to bring it back to its primitive state. Now he wished to know, and he believed a good many of their Lordships wished to know, what the primitive state of the law was to which the right rev. Prelate desired them to return. Judging, not from the words, but from the tone and manner of the right rev. Prelate's speech, he thought their Lordships could easily understand at least the spirit of the system which he longed to see restored. He thought their Lordships, too, would be justified in concluding that the right rev. Prelate's professed objection to the Bill was not his real objection to it—that it was not because it was a small reform, but because it was the commencement of a reform which might lead to something further, namely, to a complete reformation of those courts which, according to his own statement were now a scandal to the country and the Church—that the right rev. Prelate was so anxious to defeat the present measure. The right rev. Prelate, however, had professed himself a radical reformer of the Church and of the Ecclesiastical Courts. He refused to reform by degrees, but desired to go at once to the root. What his scheme was it was not for him (Earl Fitzwilliam) to anticipate; but, at least, after the speech which the right rev. Prelate had just delivered, the country would know where to look for one who was desirous to destroy the corruption of the Ecclesiastical Courts, whatever he might introduce in their place.


It was my earnest hope, after the statements which have been made by both the right rev. Prelates, and after the representations which have been made in the other House of Parliament, and which I am quite ready to repeat on this subject—that the subjects of the ecclesiastical law and the practice of the Ecclesiastical Courts should receive the earnest and anxious attention of the Government—that the noble Lord would have consented not to press the Bill which he has now laid before your Lordships. I am quite convinced that that which my noble Friend on the cross benches (Earl Fitzwilliam) appears to impute to the right rev. Prelate (the Bishop of Oxford), namely, as to his being found an uncompromising opponent of the existing abuses in the system ecclesiastical, will be found to be very much the reality, and not merely the insincere expression which the noble Earl in his observations, by way of taunt and ridicule, would seem to suppose they were. I am very far from saying that questions of this kind may not be properly brought forward by independent Members of Parliament in this or the other House; but, at the same time, I will venture to exprsss my opinion that where there is a large question necessary to be dealt with—a question of a most difficult and complicated character, involving the removal of abuses which have arisen in the process of time, and chiefly and mainly in consequence of altered circumstances and habits—I think that, in such cases, the Government—and I do not speak particularly of this, but of any Government which have means at command, assistance to call to their aid, and counsels of able individuals to take—may and must have an opportunity of dealing with large questions much more satisfactory than independent Members of Parliament can do by separate measures, affecting only trifling questions, which, after all, do not go to the root of the evil. Not concealing from myself the great difficulty of the subject, and not presuming to lay before your Lordships a satisfactory scheme, I beg to say, at the same time, that the attention of the Government shall be devoted to the question, with the view of removing the abuses which now exist; and with that declaration, I must express a hope that the noble Lord who has introduced the Bill, and very properly called the attention of the House to a small portion of an important subject, will be contented, especially, looking at the period of the Session, and the admitted necessity on his own part for the introduction of Amendments into the Bill, which must receive the concurrence of the other House of Parliament, and that he will consent to leave the question for the present in the hands of the Government, and to wave the Motion which he has just made.


was sorry that he could not assent to the proposition of the noble Earl, but must press the measure. The country expected it, and would regard it as an earnest of that more extensive reform which was promised that evening.


said, that that was the first time he had heard the postponement of a Bill urged on the ground of the lateness of the Session, on the 16th of June, particularly in the case of a Bill which had passed through the House of Commons, supported by both sides of the House, and amended by the law officers of the Crown by the introduction of the only proviso which be had deemed requisite in the measure—a Bill, too, which had been brought up to their Lordships' House without one dissentient voice. If the Government had not thought it a proper Bill, they ought not to have given it their approval in the other House. But they should not, at all events now, on the plea of the lateness of the Session, seek to throw over the Bill when they had given no pledge that they would undertake the reform which was admitted to be needed for those scandalous abuses. It was by no means creditable to the Government thus to reject this proposed Amendment of abuses without any prospect of a reform being put forward even as "looming in the distance."


sincerely hoped the noble Lord would not consent to withdraw the Bill.


Hear, hear!


He rejoiced to hear that that was not the noble Lord's intention. Although the measure proposed to deal with that which was undoubtedly a very small matter, it was nevertheless an acknowledged abuse, acknowledged to be so by six right rev. Prelates who were upon the Commission; and the removal of it, so far from interfering with the great reform contemplated by Government to be made hereafter, would, in his (Lord Cran-worth's) opinion, clear the way for and facilitate the passing of such a measure. But he had a further reason why he thought the Bill should pass now, and it was that the arguments of the Bishop of Oxford went to the assertion of the doctrine that there ought to be ecclesiastical jurisdiction over laymen. Now, at a period like the present, when so much was said respecting the "encroachments" of ecclesiastical jurisdiction upon the civil rights of the country, he felt that he should be guilty of a neglect of his duty if he did not rise and enter his protest against the doctrine which inevitably flowed from the words of the right rev. Prelate. For this reason, then, if for no other, he trusted his noble Friend would presevere with the Bill.

On Question, "That ('now') stand part of the Motion, their Lordships divided:—Content 45; Not-Content 80: Majority 35.

List of the CONTENT.
Anglesea Chichester
Clanricarde Clare
Lansdowne Darnley
Normanby Ellenborough
EARLS. Fitzwilliam
Airlie Fortescue
Bruce Granville
Bessborough Grey
Hchester BARONS.
Lovelace Ashburton
Minto Beaumont
Morley Brougham
Rosebery Calthorpe
St. Germans Campbell
Scarborough Carington
Shaftesbury Colborne
Sefton Cranworth
Waldegrave Elphinstone
Sydney Lilford
Torrington Saye and Sele
BISHOP Stanley of Alderley
Gloucester Wrottesley

Resolved in the Negative; and Bill to be read 2ª on this day Three Months.

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