Lords Sitting of 10 May 1852

MINUTES.
PUBLIC BILLS.—1ª Highway Rates; Ecclesiastical Jurisdiction; Improvement of the Jurisdiction of Equity; Property of Lunatics.
2a London (City) Small Debts Extension; Master in Chancery Abolition; Burghs (Scotland).

MASTER IN CHANCERY ABOLITION BILL.
Order of the Day for Second Reading read.
The LORD CHANCELLOR(who was greatly indisposed), said, that as he had or a former occasion described the nature of the measure, he should not say anything upon the subject now. He should simply move that it be read a second time, with a view to its being referred to a Select Committee.
LORD CRANWORTHsaid, he considered this a most useful and valuable measure, though he thought it admitted of some question whether it adopted the best pessible means for attaining its object. It certainly carried into effect the recommendations of the Chancery Commission; of which none were more important than those which related to the virtual abolition of the Master's Office. He said "virtual," for the duties of the office were in some

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degree still to be retained, though in different hands. He owned, however, that he did not think the mode proposed was the very best that could have been suggested. It had occurred to him that the duties to be discharged required presence in Court and hearing of the matters there discussed; and for that reason he suggested that the Registrar would be the fittest person to discharge them, as he sat in Court all day, as the Masters used to do of old; although, even at the time when his noble and learned Friend was at the bar, the practice had become a mere form. The Masters of the Common Law Courts still performed the duties of Master and Registrar, and sat in Court all day in one capacity, which qualified them all the better for the exercise of the other. He would observe, also, that the duties of the Master were now to be performed by a Judge's Clerk, and he feared suitors would scarcely have confidence in so inferior a functionary —at least with a name and office so inferior; for in matters like this there was a great deal, after all, in a "name."
The LORD CHANCELLORsaid, that he had never heard of such a suggestion before, and certainly it could not possibly answer, as the Registrar had quite enough to do in the performance of the peculiar functions of his office. And, as to the ancient attendance of the Masters, it had been found incompatible with the due discharge of the proper duties of the Master's Office; and for that very reason their attendance had first become formal and then fallen entirely into disuse. The experiment, therefore, had been in fact tried, and had totally failed. He would add, moreover, that the Bill had been drawn up in strict conformity to the recommendations of the Commissioners.
LORD LYNDHURSTsaid, the Bill, in this respect, kept close to the recommendations of the Report, and he thought it far better to adhere to those recommendations, in order to facilitate the passing of the Bill through the other House of Parliament.
LORD CAMPBELLquite agreed in this; and as to his noble and learned Friend's (Lord Cranworth's) objection to the title of "Judge's Clerk," begged to remind him that the Chief Judge in Scotland was called a clerk—the"Lord Justice Clerk."
On Question, Resolved in the Affirmative; Bill read 2ª, and referred to a Select Committee.

CONVOCATION OF THE CLERGY—PROVINCE OF YORK.
LORD REDESDALE,in moving for copies of the Form of Writs issued for the Summoning and Prorogation of the Convocation of the Clergy of the Province of York, said, that their Lordships would, no doubt, recollect that last Session he had called their attention to the subject of Convocation; and certainly since then the subject had lost none of the general interest with which it was regarded throughout the country. He believed there was a steady and progressive desire on the part of those interested in the Church that her members should enjoy the same privilege of governing its affairs by means of an assembly of its members as was enjoyed by the Church of Scotland and all other religious communities throughout the kingdom. At the present moment there was no doubt that great exertions were making on the part of the Romish Church to introduce synodal action into England; and therefore there was more ground than there ever had been to think that our Church should have its own appropriate organ of general opinion and deliberation. He was certain that the occurrences of the last few years must have convinced most people that it was necessary there should be some body to which matters both of inquiry and rule should be referred, and that neither House of Parliament was a proper body to inquire or decide on subjects connected with the Church. It could not be denied that the Church of England was deficient in some kind of tribunal to which could be submitted the control of her internal regulations. In whatever manner the deficiency was to be supplied, at all events there was a deficiency in our present regulations which did require to be met. With these remarks he dismissed the general subject; but he wished to draw their Lordships' attention to certain internal regulations respecting Convocation, and more particularly the Convocation of the Province of York. Their Lordships were aware that the Convocation of the Province of Canterbury regularly met, and its proceedings did in a certain degree take a form that showed it to be a body constituted for regular action on all occasions; it was regularly constituted, and though it did not proceed to important deliberation, it might to a certain extent be said to discuss business. There was an address to the Crown on this occasion of its meeting; petitions were received, and acts of that

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sort performed; though it was unquestionable that for a great number of years no licences had been granted to discuss other blatters, or enter on topics of importance. As regarded the Convocation of the Province of York, though it was a body, in fact, more popularly constituted—that was, with more elective members belonging to it than the Province of Canterbury—its action had been of a more limited character for a great number of years, and it had for a long period ceased to transact any business. The Convocation of that Province had never been divided into two houses; the prelates had always sat in the same house with the minor clergy. He supposed that had partly arisen, if not entirely, from the fact of there being a very small number of bishops attached to the Province of York, and also from this other circumstance, that York being a place to which none of those bishops were necessarily drawn by business in the same way as on the meeting of Parliament, the prelates of the Province of Canterbury were necessarily drawn to London, the prelates were represented by proxy. He spoke comparatively, but little business was done by that Convocation. At the same time it was desirable to bear in mind that that body had been by no means deprived of the power of exercising those functions which duly belonged to the Convocation of any Province. It had been represented in some quarters that the sanction of the Convocation of York was not given to the Canons of 1603. Now this was distinctly a mistake, for in the year 1604, the Convocation of the archdiocese of York was summoned specially for that purpose by Archbishop Hutton. At the time of meeting the see had become vacant by the death of that prelate; but the Bishop of Bristol, who was Dean of York, was appointed president under the King's writ by the dean and chapter. Again, after the Restoration, when the Prayer-book and Liturgy were to be adopted and formally recognised by the different Convocations, in order to facilitate business the prelates of the Province of York sat and deliberated with those of Canterbury. The clergy of the Convocation of York regularly met, and deputed the deans of St. Paul's, Westminster, and Ely, with other Members, to represent their body in the lower house. On that occasion matters of the highest importance to the Church were discussed and decided. The only other time at which the Convocation of
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York had adopted any step for a special address to the Crown, was in Queen Anne's reign, when an address of thanks was voted to Her Majesty for the Royal Bounty. Since that time the Convocation regularly met, but it had never been allowed to proceed to business. Until 1847, when the present Convocation met, matters remained in that state. Prior to the meeting of that Convocation, certain of the clergy, with the sanction of the late Archbishop of York, expressed a desire that the Convocation of York should, in the same manner as that of Canterbury, present a loyal address to Her Majesty; and the late Archbishop entirely concurred in that proposal, and had communicated with the other bishops of the Province, when an address was agreed upon, which it was determined should be proposed to Convocation. In the interval which took place between the preparation of the address and the meeting of Convocation, the death of that prelate took place, and the prebend who presided in his room probably felt that there would be a responsibility resting upon him for allowing a course of proceeding different to that observed on former occasions; and he adjourned or prorogued the assembly before the address was adopted. At that meeting of the Convocation a petition from certain bodies of the clergy on the subject of elections to Convocation was received; but no other business was transacted in Convocation. In 1848, 1849, and 1850, no attendance was given by the Archbishop at the annual meetings. In the present year Convocation was still prorogued to the same day in February fixed for the meeting of Parliament. The day before Convocation was convened, certain members of Convocation who had petitions from bodies of the clergy in all the different dioceses of the Province, excepting that of Sodor and Man, notified to the right reverend Prelate that they proposed to attend and present these petitions on the day on which Convocation was appointed to meet. On that day they did attend, and the Session was not opened. They adjourned to the chapter-house library, and proceeded to write a letter to the Archbishop, informing him of their desire to present petitions. To this letter his Grace sent a very courteous reply, stating that he, in the absence of any licence from the Crown to proceed to business, declined to open the Convocation, and that he could only request that the petitions might be forwarded to him, in

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order that they might he entered on the records. He (Lord Redesdale) would admit that the course pursued by the Archbishop was in accordance with the usual practice; and he was sure that he should not be answering the wishes of those who had applied to him to bring this matter forward, and whose sole motive in appealing to him was because they thought there would be less offence in thi3 subject being taken up by one who was connected with the general question, and not by one who was immediately connected with themselves—he was sure that he would not be fulfilling their desires if he said anything that in any way reflected upon the conduct of the right reverend Prelate on that occasion. Every one must appreciate the right reverend Prelate's just unwillingness to take any step of an unusual nature, without the most deliberate consideration and the best advice. At the same time he must feel that it was a matter perfectly open to be canvassed and discussed, whether the practice that had grown up in Convocation, of not opening the session, was one that ought to be continued, or that could be justified by reason or even by custom. At present the matter stood thus. Hitherto attendance was only given on the first day of the meeting of a new Convocation, and on that occasion the session was always formally opened. After the first meeting it was not opened, because it had been found, for a long period, that there was no attendance. But there was the precedent that when attendance was given, the session was opened. Therefore, when attendance was given on the last occasion, as in fact in obedience to the Queen's writ it should always be, the session ought to have been opened, to enable parties charged with petitions to present them. At all events he was sure that the feeling must be shared by every one that the clergy of one Province should not be denied privileges that were enjoyed by the clergy of another; and that the clergy of the Province of York should be placed upon the same footing in this respect as the clergy of the Province of Canterbury. He hoped in calling attention to this subject—and doing so in a manner which he trusted was not offensive to any one—that we were now in the way of seeing some uniformity established. Nor, in fulfilling the wishes of those who were deeply interested in the question, could he help expressing a hope that if it should appear desirable, the right reverend
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Prelate (the Archbishop of York) would, on the occasion of a future Convocation, allow the session to be opened, as had been done in the Province of Canterbury; and also that he would turn over in his mind whether the example which was about to be set by his lamented predecessor was not one which would be most grateful to the clergy of the Province over which he presided. The late Archbishop of York— than whom no one had been better acquainted with the wishes of the clergy— had been willing to follow a course which showed that he not only saw no danger in adopting this measure, but that he was satisfied of the propriety of doing so. With these remarks he begged to conclude with the Motion of which he had given notice.
Moved—
"That there he laid before this House Copies of the Form of Writs used for the Summoning and Porogation of the Convocation of the Clergy of the Province of York."
The ARCHBISHOP of YORK,said: I beg to thank the noble Lord for having made known to me his intention to bring forward this subject, and for the temperate and courteous manner in which he has treated it. My venerable predecessor, it was very true, had given an unwilling assent to the proposal mentioned by the noble Lord in 1847. But on the accession of Her present Majesty to the Throne in 1837, when it was proposed that an address of congratulation should be agreed upon in Convocation, the late Archbishop absolutely forbade it, because it was a thing that had not been done for the last 180 years. It was certainly the fact, however, that the most rev. Prelate, being then at a very advanced age, shortly before his death, after great solicitation from certain parties, did give a tardy and reluctant assent to the receiving of petitions by Convocation. With regard to the last meeting of Convocation referred to by the noble Lord, I will briefly narrate the circumstances of the case to your Lordships. When I received the Queen's writ, I immediately transmitted it to the deputy registrar, directing him that whatever aforetime had been done in such cases should also be done upon that occasion. The deputy registrar was not a young or inexperienced officer, for he had held his situation from an early part of this century, and he succeeded his father, who was appointed in 1779, and for some years previously had dis-

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charged the duties of the office as head clerk; so that the two together may he said to have held the office for nearly 100 years. I have myself also made the fullest inquiries on the subject, and I find that since the time of Henry VIII. no Archbishop of York (as I believe) except on two occasions, namely, at the Revolution in 1689, and in the year 1708, had ever attended this meeting of Convocation in person. There were always certain commissioners, consisting of the Dean and Chapter, some of whom were always within the city of York; and these commissioners had always acted for the Archbishop on these occasions. It is true that the present Convocation met on the 4th of February last, and that one of its members sent me a letter on the previous day to say that certain petitions would be presented. I simply acknowledged the receipt of that letter, and I gave orders that the same course should be pursued as had always been done before. I presumed that an opportunity would be given to meet; for it does seem strange that gentlemen should be summoned to a meeting, and if they come in obedience to the summons, that no one should he there to receive them. On the 5th of February (the day after the meeting) I received a memorial from five members of Convocation, stating that certain of the clergy had gone to the Chapterhouse the day before, but there was nobody in attendance, and they had adjourned to the Chapter library. I then wrote on the same day to the deputy registrar, asking whether the usual course had been pursued in proroguing the Convocation; and the reply I received from that officer distinctly was, that all which had been done was strictly consistent and conformable with the usual practice. With respect to the writs from the Crown, my secretary had made a careful search among the ecclesiastical records of the Province, and his written opinion was, that ever since the present Archbishop's translation the manner in which the writs of the Crown had been acted upon had been strictly accordant with established precedent, and in no way involved any departure from the ancient practice. I also hold in my hand a letter which I have received from Mr. Canon Dixon, who states that he had held the office of domestic chaplain to the late Archbishop, and had been a canon of York for the last 26 years, and constantly resident within three
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miles of the cathedral. Mr. Dickson, who in addition to other learning, is an accomplished antiquarian, had diligently examined the records of the Province, and he assures me that my most reverend predecessor had never been present in person at either the opening or the adjournment of Convocation — that no address had been sent to the Crown from Convocation since the Restoration—that no Archbishop had been present since the days of Archbishop Sharp in 1708—and that the proceedings with regard to the prorogation of Convocation on the 4th of February last, were entirely consistent with ancient usage. What was done was done according to ancient, long-continued, immemorial, and invariable precedent. Under these circumstances, I can only say with regard to the hope expressed by my noble Friend, that I shall give no pledge binding myself to depart from the established practice; the only pledge I can give is this, that the suggestion of my noble Friend shall receive my best consideration.
LORD LYTTELTONwished now to repeat what he stated when the subject of the revival of Convocation was last before their Lordships, that he should be extremely sorry to sec Convocation in either Province brought into action with its present constitution; still more was he averse to its being revived irregularly, or by surprise. He thought the first thing it ought to do on assembling was to revise its own constitution, and that nothing satisfactory could be accomplished until that preliminary step had been taken. But this referred to the power of passing canons, or doing other acts that would be binding on the Church. That the right of the clergy of the Province of York, like that of the Province of Canterbury, to memoralise, petition, or address the Crown when they thought fit, should be recognised, was, he thought, a very fair and reasonable proposition. The right rev. Prelate relied upon the information of others when he said that the Convocation at York had been prevented from meeting strictly and exactly in accordance with precedent. Now, he (Lord Lyttelton) had learned that there was one occasion, on Nov. 19, 1847, when a petition with regard to the election of a Proctor in the Archdiocese of York was taken into consideration, and actually passed in Convocation, as appeared on the records of the Court. That, he thought, did form a precedent. But the main point

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was, that whereas on former occasions there had been no business to transact, on this occasion notice had been given to the Archbishop that petitions would be brought forward, and that was the real grievance complained of. He ventured to express a hope that the most rev. Prelate would take into his consideration whether it was not possible, in accordance with precedent even, or at all events with substantial propriety and justice, for him to follow the example which was already in operation in the Province of Canterbury, and to allow the clergy of the Province of York, when they thought fit, to make known their wishes to the Crown by memorial, or otherwise.
LORD REDESDALEsaid, that he was sure that all their Lordships would receive the assurance of the right rev. Prelate with the same satisfaction as he did.
On Question, agreed to.

JUDICIAL COMMITTEE OF PRIVY COUNCIL—ECCLESIASTICAL CAUSES.
The BISHOP of LONDONsaid: It will be in the recollection of your Lordships that in the Session of 1850 I introduced a Bill into this House for the purpose of regulating the Court of last appeal—that is, the Judicial Committee of Privy Council— in all questions of religious doctrine which may come before them. An important provision of that Bill was, that in all such cases the bishops of the Church should be directed to consult and deliberate upon the points in dispute, and communicate the result of their consultation and deliberation in the form of an opinion to the Judicial Committee of Privy Council, who were to be bound by that opinion to decide whether or no the doctrine which formed the subject of the reference was true doctrine, consistent with the doctrine of the Church of England. My Lords, that Bill was not favourably received by your Lordships. I suffered last year to pass by, contenting myself with giving an intimation that I could not altogether allow the subject to drop. I think it is not a subject of a nature that can be suffered long to remain undetermined. All I mean to say on the present occasion is this, that I hope early in the next Session of Parliament, if it pleases God to spare me so long, to introduce another Bill into your Lordships' House, differing in an important point from the former one. I still intend to provide that questions of doctrine shall be referred to the bishops, or to the Upper
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House of Convocation, for their opinion, that opinion to be communicated to the Judicial Committee of Privy Council, but not to be binding, but merely communicated to them in the way of advice, and not of direction. This is obviously a very important difference, for it would at once do away with the objection raised to the former Bill, that it was an invasion of the prerogative of the Crown. That is all that I think it necessary to say on the present occasion, with reference to the nature of the Bill. I mention it now, in order that the Government may have time to consider the question, and to make up their minds as to how far they will sanction the principle I propose to embody in my Bill. I do not think it would be quite right on my part to put a direct question to my noble Friend at the head of the Government. I merely beg to express an anxious hope— which many others share with me—that some proposition of this kind will receive a favourable consideration from those with whom, after all, the decision must mainly rest. I see in the Minutes of your Lordships' House that it is incorrectly stated that I intended to put a question to the noble Earl. I never did intend to do so, but merely to express a hope that he, or whoever else may be charged with the government of the country, will give a favourable consideration to the measure that I have announced.
The EARL of DERBY: I have to thank the right rev. Prelate for not having addressed a question to me as to the course which the Government may pursue with regard to a Bill which has not been submitted to them. Such a course would have led to much inconvenience; and in the position in which I now stand, I am not prepared to express any opinion as to the course which the Government may take, without having an opportunity of consulting my Colleagues, not only with regard to the details, but with regard to the principle, of the Bill. But if I rightly collected the intention of the right rev. Prelate, he proposes to leave the jurisdiction in the same hands in which it is left at present, and not to interfere in any degree with the ultimate opinion and the final judgment of the Judicial Committee of Privy Council; but he does propose that, as your Lordships may in certain cases call in the Judges to give their advice and opinion to direct your judgment, so the Bishops may be called upon to give their opinion with respect to questions of

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sound doctrine or of heresy. And although I cannot certainly pledge myself or my Colleagues as to the course we may think it necessary to pursue, yet I think it proper to say that I find myself placed in considerable difficulty in resisting this proposition, because, if I am not mistaken, it is very like the suggestion which I made in a former year as an intermediate step between the Bill introduced in the Session of 1850 by the right rev. Prolate, and the total rejection of that measure. I am still very strongly of opinion that where questions of false doctrine or of heresy arise, the opinion and judgment of the Bishops, although they might not meet to lay down an absolute and binding authority on such questions, yet must be very important— looking at their long and deep study of such momentous subjects—in directing and guiding the minds of those by whom the final decision has to be pronounced. Further than that I cannot now go, and I am sure the right rev. Prelate himself would not wish me to say more.

ECCLESIASTICAL MUNIMENTS BILL—COMMITTEE.
The BISHOP of OXFORDmoved the Order of the Day for the House going into Committee on this Bill.
The BISHOP of SALISBURYentirely concurred in the principle of the Bill; but as there were considerable difficulties connected with the subject, he ventured to suggest that it would be desirable to refer it to a Select Committee. He would therefore suggest to his right rev. Friend (the Bishop of Oxford) that the preferable course would be to refer the Bill to a Select Committee.
The BISHOP of OXFORDsaid, if their Lordships were of opinion generally that the Bill should be referred to a Select Committee, he had not the least objection to that course, though, individually, he thought sufficient reason had not been shown for so doing, inasmuch as the objections taken to the Bill were such as he was prepared to provide for by amendment in Committee—some of which he had perceived after the Bill was printed. He could not, therefore, acquiesce in the proposal for sending the Bill to a Select Committee; but having, as he conceived, done his duty, he was prepared to submit the matter to their Lordships' judgment.
The BISHOP of LONDONalso expressed himself in favour of sending the Bill to a Select Committee.
After a few words from the EARL of DERBY and the BISHOP of OXFORD,
Order discharged; and Bill referred to a Select Committee.
House adjourned till To-morrow.