HL Deb 02 June 1864 vol 175 cc1053-9

Order of the Day for the second reading read.


said, My Lords, there are four principal objects which we seek to obtain by the Irish Ecclesiastical Courts and Registries' Bill, which I now propose be read a second time—

1st. That the twenty-six Diocesan Courts and Registries be reduced to twelve, giving each Bishop one Court and Registry.

2nd. That the mode of procedure in the Provincial and Diocesan Courts be simplified and improved, and the ecclesiastical fees be made more uniform and placed on a more satisfactory basis.

3rd. That the number of Vicars General be reduced to twelve.

4th. And that Appeals from the Metropolitan Courts in Ireland, respecting matters of doctrine, should, instead of being made to the Court of Delegates in Ireland, be heard and determined in the same manner as appeals from the Metropolitan Courts in England are.

1st. Before the Church Temporalities Act was passed, there were four Archbishops and eighteen Bishops in Ireland. That Act united ten of the Bishoprics to ten of the remaining Sees. There was no provision made for the union of the Diocesan Courts and Registries as there was formerly, when Down and Connor were united by Killala and Achoury. The consequence is, that while there are only twelve Bishops, there are twenty-six Diocesan Courts and Registries. The Bishop of Meath alone has only one Court and Registry. The other Bishops have two and some three each. This is a source of inconvenience to the Bishops and clergy. In the diocese of Elphin, when a clergyman has to transact business with the Bishop, which requires a reference to some document in the Diocesan Registry, he has to travel to Elphin, which may be as much as forty miles from his residence, and then come on to Kilmore, which is forty miles more. If he has to be instituted or collated to a benefice, he has to bring the Registrar with him and pay his travelling expenses; whereas, by the provisions of this Bill, the Registry will be close to the Bishop's residence at Cavan, and the clergy be saved all this trouble and expense. The withdrawal of testamentary jurisdiction from the Ecclesiastical Courts has left them dependent henceforth on fees derived from marriage licences and church business. These are not sufficient to pay for twenty-six Ecclesiastical Courts and Registries. In the diocese of Killala and Achoury there are only twenty-six benefices; in the Diocese of Clonfert and Kilmacclugh seventeen; and in Kilfenora only six. It is quite evident that the fees arising from the transaction of ecclesiastical business relating to six parishes, or to twenty-six, would not remunerate a qualified ecclesiastical lawyer for acting as Vicar General, nor support a separate Registry. It is very desirable to adopt means to remedy these anomalies. To do this, it is proposed that the twenty-six Diocesan Courts and Registries be reduced to twelve, by uniting into one the several Courts and Registries under each Bishop. Such con- solidation is not required in the diocese of Meath, where there is only one Court and Registry. In only two of the dioceses—Armagh and Dublin — are there suitable buildings belonging to the Registries for the safe preservation of the records, which, by law, are deposited in them. The Registries are kept at the houses of the Registrars, and are subject to many accidents. The Register Office at Kilmore was burnt down some eighty years ago, and many most valuable and interesting documents destroyed. The Registries have been so badly kept that there are few documents older than the Restoration. It is the duty of Government to sanction the concentration of the Registries, because the most important temporal rights of lay patrons and of the Crown itself may be dependent upon the safe keeping of the documents in these Registries. Each institution to a benefice recites upon whose presentation it is made. This record remains in the Diocesan Registry only. These records are evidences of the right of advowson. The destruction of these documents by fire or otherwise would destroy all legal proof of the right of presentation in many cases, and be a cause of great inconvenience in all. Many advowsons have been lost to the laity by irregularities in Bishops' Registries, and some have been lost to Bishops from the same cause. If the present Registers were at once removed from their situations upon the consolidation of the Courts and Registries, they would be entitled to compensation; but for this there is no fund available. It is, therefore, proposed that the present Registrars should remain in office as joint Registrars of the united dioceses, and should continue to transact their accustomed business and to receive their fees as heretofore; but that, on death or resignation of these Registrars, no new appointments should be made, until at length but one Registrar should remain for each united Registry. The working of the measure will be very simple. It may be illustrated from the dioceses of Armagh and Clogher. The Registries of these dioceses will be united into one Registry, to be called the United Registry of Armagh and Clogher. The principal office will be at Armagh. But the business of the diocese of Clogher will be transacted at Monaghan, until the Registry of Clogher becomes vacant, and then the business will be transferred to Armagh. If the Registry of Armagh becomes vacant before that of Clogher, the Registrar of Clogher will be- come Registrar of Armagh, and transact all business there. The papers and records of both dioceses will then be kept at Armagh. Provisions have been made for compelling all future Registrars to discharge their duties in person for transmission of records to the united Registries, and for the punishment of persons stealing or defacing such documents.

2nd. It is next proposed that the modes of procedure in the Provincial and Diocesan Courts should be simplified and improved, and ecclesiastical fees placed on a more satisfactory basis. To effect this, it is provided that the Archbishops of Armagh and Dublin shall make rules and orders subject to the sanction of the Lord Lieutenant in Council — for the custody and preservation of all records and documents in the United Diocesan Registries; for regulating times, forms, and modes of procedure before the Metropolitan and Diocesan Courts; for making alterations in the form and number of ecclesiastical instruments, and regulating their procedure and practice, especially in reference to fees. It is proposed that an annual report shall be made to Parliament of all rules and orders made during the preceding year, by which all these important regulations will be brought under the control of public opinion.

3rd. The reduction of the number of Ecclesiastical Courts and Registries necessitates the reduction of the Vicars General. It is proposed that the number of Vicars General be reduced to twelve, leaving one to each Bishop, and that those offices be possessed by persons properly qualified to exercise exclesiastical jurisdiction. By these means the emoluments of those that remain (small at the best) will be increased, and persons duly qualified will be induced to accept the office. Of the twenty-six Vicars General now in Ireland eleven are clergymen. For the Metropolitan Courts it is intended by the proposed Bill that no person shall be considered qualified for such an office except he be one of Her Majesty's sergeants or counsel or a practising barrister of fifteen years' standing; and that no person shall be appointed a Vicar General unless he be a practising barrister of ten years' standing. The working of the measure may be illustrated by its effect on the united dioceses of Down and Connor and Dromore. The Vicar General of Dromore will be removed, but will for his life receive two-thirds of the fees. The Vicar General of Down and Connor will be the Vicar General of Dromore, receiving one-third of the fees, and paying two-thirds to the, retired Vicar General of Dromore. On the death of the Vicar General of Dromore all the fees will be received by the Vicar General of Down and Connor. The final effect of this measure will be, that there will be twelve Courts instead of twenty-six, and they will be presided over; by barristers of ten years' standing; and there will be appellate tribunals at Armagh and Dublin, presided over by a Queen's sergeant or Queen's counsel or barrister of fifteen years' standing. There will be no demand on the Consolidated Fund for compensation or salary of the officers who have to carry out this Bill.

4th. It is proposed that Appeals in matters of doctrine from the Metropolitan Courts in Ireland should, instead of being made to the Court of Delegates, be heard and determined in the same way as Appeals from the Courts of the English Archbishops—namely, by the Queen in Council. Provisions have been made in the Bill for hearing appeals from the Diocesan to the Provincial Courts. Dilapidation cases are of a temporal more than of an ecclesiastical character, and it is proposed that all such appeals relating to the building or repairing of ecclesiastical residences shall be made to the Court of Appeal in Chancery, under the Chancery Appeal Court Act, 1856. Appeals from the Metropolitan Courts in matrimonial and divorce cases will continue to be made to the Court of Delegates.

Before I proceed to the provisions in this proposed Bill relating to the final decision in matters of doctrine, it may be expedient to call your Lordships' attention to the state of the law in reference to final Courts of Appeal in Church questions. There are four final Courts of Appeal in the United Church of England and Ireland.

  1. 1. The Judicial Committee of the Privy Council, with the Archbishops of Canterbury and York and the Bishop of London, for hearing appeals under the Church Discipline Act.
  2. 2. The Judicial Committee without any Bishop for hearing appeals on Duplexquerela.
  3. 3. The House of Lords on appeals in Quare impedit, &c., from the Common Law Courts in England and Ireland—the Court of Delegates for appeals from the Archbishop Courts in Ireland.
Any given question of doctrine may, under certain circumstances, be brought before any or all of these Courts, and there is no provision against conflicting decisions. Upon the subject, for instance, of baptismal regeneration, we might have in the United Church three wholly irreconcilable decisions by three Final Courts of Appeal. In the case of Mr. Gorham, the Bishop of Exeter's counsel argued that the doctrine of the Church of England, respecting baptism, is identical with that of the Church of Rome. The House of Lords might have decided upon Quare impedit. that the denial of this was a good cause of refusal. Mr. Gorham contended that the baptism of an infant affords no proof of its regeneration, and upon Duplex querela it was decided his doctrine respecting baptismal regeneration was not incompatible with the doctrine of the Church of England. The Courts of Delegates might have decided in favour of the doctrine in the Reformatio Legum, which is inconsistent with both. Many strong objections lie to the Court of Delegates as a Court of Final Appeal in matters of doctrine and discipline. Such Court ought to be uniform and consistent in its decisions, and not subject to be influenced by parties, popular clamour, or intrigue. The Court of Delegates fails in Ireland on these conditions. Such a Court constituted expressly for each case, and then falling to pieces, contains no provision for uniformity of decision, and it can have no experience. All its members are engrossed by other affairs, and in times of religious excitement the selection of Delegates would be open to intrigue, and seldom free from suspicion. The Court of Appeal in Chancery would not be a suitable tribunal to decide in matters of doctrine, because the Lord Chancellor of Ireland may be a Protestant Dissenter. In the Church Temporalities Act he is excluded from being an Ecclesiastical Commissioner except he be a member of the Established Church. It is much more important that a Judge, in matters of doctrine, should belong to the Church, than a person who is merely a manager of its temporal affairs. The Lord Justice of Appeal may be a Roman Catholic or a Dissenter; and it appears to me that these facts exclude the Court of Appeal in Chancery from being a proper final appellate tribunal in matters of doctrine and discipline. It is, therefore, proposed that every appeal from any Metropolitan Court in Ireland in matters concerning the doctrine, discipline, or worship of the-United Church of England and Ireland shall be made to Her Majesty in Council instead of to the Court of Delegates in Ireland, and shall be heard and determined in the same manner as appeals from the Court of an Archbishop in England are heard and determined under the Church Discipline Act, 3 & 4 Vict. c. 86. That such a measure is necessary appears to be acknowledged by all parties. In 1859 an Ecclesiastical Courts and Registries Bill for Ireland, in all essential features similar to this Bill, was brought into this House under the administration of the noble Earl opposite. The Bill passed through your Lordships' House without a division, and it was read a second time in the House of Commons without opposition, and was in Committee when Parliament was dissolved. In 1860 the present Government brought in an Ecclesiastical Courts and Registries Bill for Ireland. Both of these Bills proposed a uniformity of discipline between the Church in England and the Church in Ireland, and both proposed the same final appellate tribunal as does this Bill. The object of the Irish Prelates is to have one and the same Court of Final Appeal for the whole united Church, whatever that Court may be. We only advocate the adoption of the principle laid down both by the late and by the present Government, of dealing with the Church in England and the Church in Ireland as one Church, which is in strict accordance with the spirit of the Act of Union. I therefore recommend this Bill to your Lordships' consideration for many important reasons:—It will facilitate, cheapen, and improve the transaction of ecclesiastical business in Ireland; it will lessen the expenses of the clergy; it will prevent extortion, if there be any, and silence complaints of it if there be none; it will insure more competent Judges for our Ecclesiastical Courts; it will lead to the better preservation of our diocesan records; and it will reduce the Final Courts in the united Church from four to three, which is per se of great practical utility. On these grounds I recommend this Bill to your Lordships.

Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the whole House on Monday next.