Lords Sitting of 15 April 1869

MINUTES.
Sat First in Parliament—The Right Honourable Sir John Laird Mair Lawrence, Bart., G.C.B., G.C.S.I., Baron Lawrence of the Punjaub and of Grately in the county of Southampton.
PUBLIC BILLS—Second Reading—Referred to Select Committee—Ecclesiastical Courts (2); Clergy Discipline and Ecclesiastical Courts* (26).
Committee—Naval Stores * (33–57).
Committee—Report—Salmon Fisheries (Ireland)* (43).
Third Reading—Railway Companies Meetings * (44), and passed.

NEW PEER.
The Eight Honourable Sir John Laird Mair Lawrence, Bart., G.C.B., G.C.S.I., having been created Baron Lawrence of the Punjaub and of Grately in the county of Southampton—Was (in the usual manner) introduced.
ECCLESIASTICAL COURTS BILL.—(No. 2.)
(The Earl of Shaftesbury).
ECCLESIASTICAL COURTS BILL.—(No. 2.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE EARL OF SHAFTESBURY,in moving that the Bill be now read a second time, said*—My Lords, perhaps I may be allowed to anticipate a question which your Lordships may silently or openly put to me—"Why do you, being neither a lawyer nor an ecclesiastic, undertake the charge of such measures as these?" My Lords, had I seen any lawyer or ecclesiastic disposed to enter on this duty, I should have shrunk from it altogether. But I saw none. The lawyers are engaged in much higher Courts than these small and trivial tribunals; nor are they, in fact, much concerned in them. The ecclesiastics, perhaps, are unwilling to propound measures against their clerical brethren, and so reveal the nakedness of the land. But, whatever the cause, no attempt is made to remove acknowledged evils. Yet everywhere there is nothing but indignation and complaints, and the Church is brought into discredit. Every clergyman, it is said, is permitted to speak and act as he pleases. The laity and clergy remonstrate with the Bishops, and the Bishops very justly reply that, in the state of their Courts, it would take half their time, and a large slice of their fortunes, to pursue and punish an "unquiet, disobedient, and criminous" clerk. Yet all remained unredressed. Of my own intentions I gave ample notice in the last Session of Parliament. But it excited no effort, not even a promise; and nothing was done until I had laid my Bill on the table of the House. Then, after an interval, the Archbishop's Bill appeared; and I may fairly say that I find herein an ample justification—and I hope for the same opinion on the part of your Lordships—not only because his Grace has recognized the necessity of legislation, but in the fact that, out of 108 clauses in his own Bill, he has borrowed, in whole or in part, no less than seventy-eight from mine. My Lords, I am fully aware of the arduous character of the question, but still more so of its wearisomeness. It will be, I fear, inexpressibly tedious, both in itself and in my mode of propounding it. And, indeed, there must be something very re-

  809
  pulsive in a subject that has occupied and thwarted so many eminent men during the course of more than three centuries. My Lords, I am told by very learned persons that a reform of the Ecclesiastical Courts was contemplated by Archbishop Cranmer, and that, though unfortunately the Reformatio Legum, compiled under his directions, never became law, it is a work of great authority, and is frequently referred to in judicial judgments and forensic arguments. Lord Bacon, I believe, may be added to those who made efforts to reform the abuses existing in these tribunals and registries; and similar attempts have been made at various times. Coming down to later days, Lord Folkestone, in 1812, brought the subject under the consideration of the House of Commons, and in the same year Sir William Scott introduced a Bill—but nothing was done upon it. In 1829 a Royal Commission was issued by the Duke of Wellington, then Prime Minister, to inquire into the condition of these Courts, and very extensive reforms were recommended in its Report. Then came the Church Discipline Act of 1840, by which the Church and the clergy are at present governed. In 1847, the then Bishop of London (Blomfield) introduced a Bill for reforming the Courts, which was referred to a Select Committee; it was re-introduced in 1848, and again in 1849, but no measure was passed. In 1856, a measure for the reform of the Ecclesiastical Courts and registries was submitted by the Government of the day to this House, but it was lost on the second reading by a majority of 8;—and it is remarkable that the English Prelates voted unanimously against it, while the Irish Prelates voted unanimously in its favour. Now, to disarm hostility, I wish to state, in the outset, that in this Bill all existing rights are reserved. The duties of the Bishops will remain under it exactly as at present, the simple object being to provide a more efficient means of carrying those duties into effect. The Bill does not destroy the existing Courts, but merely reforms their mode of procedure; and life interests are respected.
  Now, before explaining the provisions of the measure, I wish to call your Lordships' attention to the opinions of some very eminent persons as to the operation of the Act of 1840. This Act is the
  810
  statute under which the clergy are now punishable—
  "In respect of its practical details and phraseology."
  Such is the language of a great authority—
  "a more pitiable satire upon law and common sense does not exist."
  Again, Sir Herbert Jenner Fust, in 1842, in the ease of "Sanders v. Head," gave this opinion—
  "Undoubtedly the phraseology of the Act is not such as, unless the Act had been passed in a hurry, would have been permitted to remain. It is clear that the same words are used in different senses in different parts of the Act."
  And Dr. Lushington, in November, 1866, in the East Teignmouth case, remarked—
  "The framer or framers of the Church Discipline Act had not the advantage of knowing the Ecclesiastical Law;"
  and his Lordship added—
  "the confusion introduced by it knows no limit."
  Now, the objects, my Lords, to be obtained by the present Bill are as follows:—1. To cheapen and expedite the modes of procedure; 2. To provide one Superior Judge for the two Provincial Courts of Appeal; 3. To appoint proper Judges for the Diocesan Courts; 4. To provide Juries to try issues of fact; 5. To admit Solicitors to practice on a like footing with Proctors; 6. To retain to the Clergy what in legal language are termed their rights of provocation and recusation; 7. To retain to the Laity their right to promote the Judge's office, apparently taken away by the Church Discipline Act of 1840; 8. To provide safe and proper registries, and place the duties and emoluments of the Registrars on an improved footing. My Lords, I will next fortify my case by the quotation of some high authorities. In 1853, a Committee of the Upper House of Convocation of Canterbury stated in their Report—
  "That they are unanimously of opinion that the present state of the law touching the discipline of the clergy is unsatisfactory, and that it needs amendment. That the great expenses and delays attending such proceedings, which amount frequently to a denial of justice, have not been removed by the recent Acts upon this subject. That the provisions of the last Act, which governs the present administration of the law, are inadequate for their purpose. That the preliminary inquiry under that Act savours too much of an actual trial without its safeguards or conclusion; while it has been doubted whether those provisions, which were intended to govern the actual trial, could safely be used for its conduct."

  811
  And they concluded by saying—"It is highly important that such evils should be remedied." In 1856, Lord Chancellor Cranworth, in introducing the Bill "which I have mentioned, described the existing system as "cumbrous, dilatory, and expensive," and quoting the case of "Farnell v. Craig," he said—
  "The proceedings commenced in March, 1845. The Commissioners, who sat for nine days, no doubt at an enormous expense, agreed upon a report. Mr. Craig was not satisfied with it and brought the case into the Court of Arches in November, 1845, where it remained hung up and pending at an enormous cost until 1847. There was then an appeal to the Judicial Committee, and in March, 1849, four years from the commencement, the Judicial Committee decided there was no ground for the action, and the defendant was set free, subject only to the enormous costs of the suit."—[3 Hansard, cxli. 1255.]
  Then, in 1859, the Bishop of Killaloe, speaking in this House, used these emphatic words—
  "I believe that the present state of the Ecclesiastical Law and the Ecclesiastical Courts in England tends greatly to uphold the influence of evil by affording shelter to grave delinquents, and obstructing the effectual punishment of immorality and the expulsion of religious error."
  But let me now cite the opinion of two very eminent Prelates. In 1861, the then Bishop of London—now Archbishop of Canterbury—said that—
  "An offence might be committed in August, and everyone might be aware of it by reports in the public newspapers, and it might even undergo investigation in other Courts of justice; yet, though no effort might be omitted and the proceedings carried on with all possible rapidity and with no inconsiderable expense to bring the offenders to justice, August might be succeeded by Christmas, Christmas by May, and May might be verging into June, without the public being in possession of the fact that any proceedings whatever had been instituted."—[3 Hansard, clviii. 1082.]
  But his Grace of York was still more decided and explicit. Speaking, in 1865, in the Convocation of that Province, the Archbishop is reported, in the Guardian newspaper, to have said—
  "The mode of proceeding in the Ecclesiastical Courts in dealing with cases led to endless and countless delays, and constant miscarriages of justice; and he knew that if there should be one erring brother, causing a scandal to Christ's flock, out of the many who were doing their duty faithfully, it was not in the power of the Bishop to bring such offender to justice without very long delays and very considerable expense, which had to be borne by himself. First, as to delays, he should like to see the Ecclesiastical Courts, in their rules and proceedings, assimilated to our Common Law Courts; and then it would not be possible
  812
  for a man to dodge and put off his trial by dilatory pleas, which had to be answered by tedious replications, but upon a certain day he would be brought to his trial, and the public mind would then be satisfied, either of his innocence or of his punishment; the thing would be brought to a close and the scandal removed. With reference to the article of expense, whilst every other Court was maintained by the country, in these cases the Bishop maintained the Court and set the machinery in motion at his own expense. He was aware that in a distant diocese at a distant time the Bishop had a case brought under his notice causing the greatest scandal to the Church, and he was requested to bring the offender to justice. The Bishop, however, replied that he had already spent £4,000 upon another case in the same year, and he was unable to proceed, because he could not bear the cost."
  And, my Lords, is that to be blamed? Is it possible that any Bishop should bear the cost of a single prosecution at the present expense? then far less of a series of prosecutions. The Archbishop proceeded—
  "If he had to move in the matter some other parties must take upon themselves the expense. Nothing was then done, and the scandal remained. Such cases as these were practical grievances; they were not frequent, but the evil was a real one. It was not the Court of Final Appeal that erred in these cases. The delays and the expense and the cumbrous procedure of the Ecclesiastical Courts, which had descended to us from past generations, should be swept away, in order that simple justice might be simply done. He would not be thought to wish for more powerful machinery to bear upon the clergy; but he knew that it was the feeling of all the Church, of the clergy, and of the laity, that when a great scandal arose it should be inquired into by a strictly legal examination as to the guilt or innocence of the party accused. Such a power was essential to the safe conduct of the Church, in whose welfare they all took so deep an interest. … One necessary provision would be, in any alteration of the Ecclesiastical Courts, that the rules and course of procedure should be assimilated to the Common Law Courts, which worked so well."
  Now, the principles thus solemnly enunciated by the Archbishop of York in 1865 have been adopted in the proposed Bill to their full extent, and must, therefore, be most acceptable to his Grace. My Lords, the causes of the failure of the Act of 1840 may be thus briefly stated—1. There is no proper machinery to carry out its provisions; 2. It does not properly provide for making rules and orders in matters of practice; 3. It does not provide an efficient class of Judges; 4. It does not provide for an uniform controlling power over all the diocesan registries, so as to enforce an uniformity of procedure, and to secure an economical scale of fees; 5. It makes

  813
  no provision for the proper preservation in the registries of the records and other documents belonging to the clergy and laity. The radical defects of this measure were discovered almost immediately after it became law, and in order to rectify its numerous errors the Prelates, in 1847, introduced a Bill into the House of Lords; but it never went further than a Select Committee. It was re-introduced in 1848, again, in 1849, but nothing was done. Successive Governments have expressed their unqualified opinion respecting the disgraceful state of our Ecclesiastical Courts, and notwithstanding that that opinion coincides with the convictions of all disinterested persons in this country, yet such tribunals remain unreformed. My Lords, having proved the necessity, I should hope to your Lordships' satisfaction, I proceed to show the remedies that I propose to institute. In the first place, the Bill provides a cheap and expeditious mode of procedure. Power is given to a Committee of the Privy Council to regulate the procedure and practice of these tribunals, and the system will be, I have no doubt, under their rules, as speedy and inexpensive as process in the County Courts. Secondly, by Clause 16, it provides for a superior Judge for the two principal Courts of Appeal. At present each Archbishop has a Judge or chancellor in his own province; but there really is not business enough for two Judges, and it is desirable that there should be one superior Judge for the two Courts, of rank equal to the Judges of the Superior Courts of Law and Equity. He will be a barrister of fifteen years' standing, or one who has been a Judge of one of the Superior Courts of Law, and by his character and learning will give gravity and value to his decisions. It is also provided, by Clause 23, that the Archbishop or Judge may, upon letters of request, hear and determine a case on the spot where the defendant resides or holds a preferment. This principle has been so successful in the new mode of trying election petitions that it is desirable to introduce it into these Courts. Thirdly, by Clause 104, the Bill provides that Bishops may appoint a barrister of seven years' standing as chancellor or vicar-general. Chancellors were for a long time almost exclusively clergymen; and, generally speaking, the existing chancellors do not
  814
  possess the confidence of the public, and have not a knowledge of the special law which they profess to administer. Lord Cranworth, discussing their merits, in 1856, said that in nine cases out of ten the chancellor or vicar general was not a properly qualified person; and in his Bill he proposed to take the appointment of them out of the hands of the Bishops and place it in the hands of the Crown. I do not go so far, though I think it would be wise so to do. Fourthly, by Clause 63, the Bill provides for juries to try issues of fact—a proposal which I believe is generally acceptable both to the clergy and the laity, and is certainly in harmony with our Common Law, and with the Constitution of this country. Fifthly, by Clause 121, it admits solicitors to practise in the Courts on the same footing as proctors: they are admitted to every other Court; there is no reason why they should be excluded from these; and it can hardly be expected that barristers would attend these inferior Courts. Sixthly, by Clause 6, the Bill reserves to the clergy their rights of provocation and recusation, which they enjoyed, in reference to episcopal power, for upwards of 300 years, and which were taken away, in 1840, without, as far as anyone can see, any ground whatever why they should be deprived of the privilege. Seventhly, it assures to the laity their right to promote the office of Judge, which the Bishops have assumed—though the point is disputed—to have been taken away by the Act of 1840. I am informed that from the time of Henry VIII. down to 1840, any lay Churchman, from any part of the realm, might institute a suit for a breach of the Law Ecclesiastical, the consent of the Judge being necessary only so far as to make provision for costs and to determine that it was a suit fitted for his Court. I may challenge, as I am told, any Bishop or lawyer, however extensive his learning, to produce a single instance in which such consent was refused during that long period. But listen, my Lords, to the highest authorities. In 1758, Sir George Lee, in the case of "Argar v. Holdsworth," said a clergyman might be prosecuted by any one for his neglect of clerical duty. Mark the words "any one;" here is no exception and no power of episcopal prohibition. In 1808, again, in the case of the office of Judge promoted by Bishop, "His Majesty's

  815
  Procurator General v. Stone," Sir William Scott used these words, which I see no possibility of gainsaying—
  "It is not in the power of the Bishop, by any intervention on his part, to refuse the process of the Court to anyone who is desirous to avail himself of it in a proper case."
  My Lords, notwithstanding all this weighty support, I propose, in a spirit of moderation, an abridgment of the layman's right, which, since 1840, has practically been subject to the permission of the Bishop, and I propose it to this extent, that any three householders, being Churchmen, may institute proceedings without such consent, the Judge requiring security for costs. Moreover, to prevent frivolous and vexatious suits, the Court will have the power of inflicting the penalty of costs as between attorney and client; a most satisfactory and effective protection against all useless intermeddling or theological rancour. Eighthly, the Bill deals with registries. Now, had the Bill of the most rev. Primate contained any clause for the regulation of these offices and their officers I should not have touched the question; but a full notice of them is thus unavoidable, and accordingly the Bill provides safe and proper places for the custody of important documents, and establishes the duties and emoluments of registrars on an improved footing. These registries are highly important as the depositories of all the various documents of the diocese, and they ought also to contain authenticated copies of every parish register—registers which may be called the title-deeds of the working-man. They contain likewise the proofs of the rights of the laity to presentation to advowsons, which, in case of the documents being lost, would, in many instances, lapse to the Bishop. Now, their defective state was commented upon by the Ecclesiastical Law Commission, in 1832, but as usual nothing has been attended to. Now, to show the importance of these provisions, I may quote statements from the Appendix to the Report of the Commission of 1832, as examples of the manner in which important documents and records belonging to the clergy and laity have been preserved—
  "Court of Arches.—Records kept in a private house. Bangor.—Not fireproof; as free from damp as such a building can be well rendered. Bath and Wells.—Not fireproof; not quite free from damp. Bristol, at Blandford.—In a private dwelling-house. Chichester, at Chichester.—In a
  816
  private dwelling-house, not fireproof, but free from damp, and not otherwise safe or commodious. St. David's, at Carmarthen.—In a dwelling-house. Haverfordwest.—'In an under chamber of my own dwelling-house, liable to be destroyed by fire, and injured frequently by mice; tolerably free from damp; safe in no respect.' At Brecon.—'In a dwelling-house; in the event of any fire I cannot say the room is safe.' Ely.—Not fireproof. Exeter.—Consistory Court 'liable to damp.' Glocester.—'Extremely dangerous. It is not fireproof, but built principally of red deal.' Llandaff.—Not fireproof. Lincoln.—Not fireproof; the registrar pays rent for it to the dean and chapter. Oxford.—Not fireproof. Peterborough.—Built by the registrar, attached to his dwelling-house. Rochester.—Not fireproof. Winchester.—Wills from A.D. 1600 kept in the dwelling-house. York.—Not fireproof. Carlisle.—Not fireproof. Chester.—Not fireproof. 'It cannot be said to be absolutely free from plunder.'"
  Such is the safe custody of the ecclesiastical documents throughout England and Wales. My Lords, in respect of the registrars, the officers themselves, the Bill proposes that every registrar shall be a member of the legal profession, a solicitor at least; that he shall perform his duties in person—a most indispensable provision—and that, in future, they should be paid by fixed salaries, instead of by fees. With reference to the proposals of the Bill respecting registrars, I may quote from Returns made to the House of Commons, in 1851–3, and from the Second Report of the Select Committee on Fees in 1850. I quote these entries by way of precaution, to justify me in the course I propose, lest what has happened in former days might happen again. I will not, however, mention the names. Now, it appears from these documents that two ladies have held the office of registrar, one of them from the age of five years; that in upwards of ninety cases the official duties of Judges or registrars are discharged by deputies, and that seventeen minors have been nominated or appointed registrars, while in more than fifty instances the age at nomination or appointment, though required, is not given in the Returns—an omission from which an obvious inference may be drawn. I will quote the particulars of some of those seventeen cases—
  "1. One of the joint Registrars of the Episcopal Consistorial Court of is. He was appointed by the Bishop of, on the 24th of June, 1825, at the age of ten years. He has performed the duties of the office by deputy. The income of the entire office is £1,427 8s. 9d., derived from fees. 2. In the Consistorial Court of the Registrar is. He was appointed by the Bishop of to that office on the 20th of

  817
  July, 1796, at the age of eight years. The duties of the office are performed by deputy, and the income of the office is £495, derived from fees. 3. The Principal Registrar and Keeper of Registers and Scribes throughout the whole of a large diocese is He was appointed to those offices by , then Bishop of , on the 6th of December, 1817, at the age of 'seven years in reversion and fifteen when in possession.' The duties of the offices have been performed by deputy, and the income and emolument of such offices amount to £860. 4. The Registrar of the Consistory Court of is Mr. . He was appointed by the Bishop of , on the 24th of June, 1825, at the age of six years. The duties of the office are performed by deputy, and the income of the office is £80, derived from fees. 5. The Registrar of the Consistory Court of is Mr. . He was appointed by the Bishop of , on the 1st of July, 1793, at the age of five years. The official duties are performed by deputy, and the income is £683, derivable from fees. 6. The Principal Registrar of the Commissary of the Archdeaconry of is . He was appointed by the Bishop in 1824, at the age of three years. The duties have been performed by deputy."
  Now, then, hear the strong conclusions of the Select Committee on Fees, who summed up their Report in these emphatic terms—
  "Your Committee infer, from the testimony of several of the witnesses, that it is a general practice on the part of the officers of the Ecclesiastical Courts to charge fees to the churchwardens of each parish on the occasion of a visitation either by the Diocesan or the Archdeacon. … Your Committee have not found any other warrant for these charges than the practice of making them."
  Observe, my Lords, these words—
  "… Your Committee gather, from the whole evidence before them, that the sage precautions of the ancient Civil and Ecclesiastical Law against the undue exaction of fees, their increase, and their multiplication, in these Courts, have practically been disregarded. The tendency to such abuse, which appears to be so unvarying, wherever services are thus remunerated, and no constant supervision is at work to counteract it, has had full scope for development. It cannot even be checked, as to many of these Courts, by the vigilance of the proctor guarding his client against anything like extortion by the officers, since it appeared to be a common practice for the registrars to combine with their official services the performance of a proctor's duties in common form of business. The registrars are also taxing officers of the Courts."
  Is it possible to add anything to such forcible statements? Now, my Lords, all these abuses and defects will, I hope, be remedied by Clause 87, which provides for the creation of a Committee of Privy Council, to be appointed by Her Majesty, who shall have power to frame rules and orders for the regulation of these matters and of the procedure and practice of the Courts. I have little doubt that if the system intro-
  818
  duced into the Irish Courts is applied to the English Courts the same beneficial results would follow. In 1865 a Bill, with which my Bill is nearly identical, applying to Ireland only, went through this House, and was sent down to the House of Commons, where it was passed almost without opposition, being in charge of the distinguished lawyer, then known as Sir Hugh Cairns, who now, to our honour and benefit, occupies a seat in this House. In proof of the advantages of that change in Ireland I will first cite the testimony of a very distinguished Member of the House of Commons, Dr. Ball, who, in 1866, writing to Mr. Stephens, the eminent counsel and writer on Laws Ecclesiastical, made use of these emphatic words—
  "As Vicar General of the Province of Armagh, and as delegate in appeals from other Ecclesiastical Courts, I have now for one year had experience of the machinery of the new ecclesiastical rules and orders; and I find, as regards contentious business in Court, that the very great advantages of cheapness, despatch, and simplicity, have been most effectually obtained; and as regards non-contentious business, that the forms are well drawn, and the accompanying directions exceedingly clear. There can be no doubt that the present system is a great, and for the suitors a most beneficial, improvement upon that for which it was substituted."
  Dr. Battersby, Judge of the Provincial Court of Dublin, in a letter I received from him a few weeks ago, says—
  "The result of my experience of the Ecclesiastical Courts and Registries Act (Ireland) 1864, is, that it works admirably. The business of the Court in Dublin has increased very much, especially within the last year. The expense of a suit does not amount to one-fourth of what it formerly was, and there is an equal saving of time. The registries are conducted with the greatest regularity and propriety, and I have not heard of a single objection to the working of that Act."
  Again, a well-known clergyman of high repute, the Archdeacon of Cork, writing to me on the 30th of last March, says—
  "I have been for many years Vicar and Chancellor of the united dioceses of Cork, Cloyne, and Ross, and made Ecclesiastical Law the subject of much study. In the course of my official experience I have had cases of many descriptions before the Court—testamentary, matrimonial, and also of Church discipline—and had reason to regret that the old system involved delay, expense, and in some cases frustration of justice. Since the Irish Act, on which your Lordships' Bill is in some respects based, came into operation, there have been some cases for trial, and the advantages of the new system were most apparent. The simplification and shortening of the proceedings, and the consequent saving in time and cost to the suitors, were most remarkable. A single

  819
  case, that formerly would have required many months to be decided, was concluded in a few sittings, and the costs diminished proportionally."
  With these important and admirable testimonies, I feel assured that the noble and learned Lord (Lord Cairns) will heartily aid me in giving to England all the benefits that have been derived by Ireland from the measure that he himself propounded to the House of Commons. I now turn to the financial arrangements of the Bill, to the scheme whereby the proposed plan may be carried into effect. Lord Cranworth, in the discussion on his measure in 1856—a measure involving greater expenses than the one before your Lordships—said he had been anxious to give the Bishops efficient legal advice, and he found, upon estimating the fees on licenses, and other matters which would come into the common fund, that they would be sufficient to pay the salaries of the chancellors, and other salaries, to keep up the registry with a proper staff, and even to yield an ample surplus. Let me state that the fourteenth annual Report of the Registrar General showed that in England about 20,000 marriages were then annually solemnized by license in church, the public paying about £52,500 for such licenses. Of this sum £12,500 went into the Exchequer for stamps, and the remaining £40,000 was paid in fees to the officers of the Ecclesiastical Courts. The license fees vary in amount in every diocese, ranging, exclusive of stamps, from 22 s. in Norwich to £2 12 s. 3½d. in Worcester, but averaging, on the whole, £2, though I have taken it considerably below the real level. The annual income derived from fees received by the diocesan Courts and from diocesan business, such as ordination fees, curates' licenses, institutions to livings, &c, was estimated at £19,715. This calculation rested mainly on the authority of Mr. Crickitt, an experienced practitioner of Doctors' Commons, who, having examined all the items mentioned as arising from diocesan business, concluded that the income derivable in England from these ecclesiastical sources, under the Act then proposed, might be estimated at £49,215. Objections were preferred in respect of some smaller items, as to the accuracy of the calculations, but on the whole it appeared that they were substantially correct. It must be borne in mind, too, that
  820
  while in 1854 the marriages by license were about 20,000, the average number for the seven years preceding 1867 was 20,575; the fees on those 575 extra marriages amounting, at £2 per license, to £1,150. The calculation, then, being brought down to the present day, it is evident that, even assuming the objections to be correct, there is only a difference of £1,241 5s. between the original and the objected estimates, so that there would be, if not £49,215, at least £47,973 15 s. as available for the purposes of the Bill. In this calculation, however, the £10,931 5s. payable to the surrogates is not included, as their services are unnecessary, and their tenure is, by no means, in the nature of a freehold. The aggregate thus amounts to £58,905. Now, since 1855, the amount of fees has become much larger, in consequence of Church extension and the increase of population; and the amount will annually increase. These calculations are confirmed by a very high authority, Mr. J. B. Lee, Secretary to the Bishop of London. This gentleman, writing, in 1863, admitted that, while there were some inaccuracies in the smaller details, the estimate, on the whole, was substantially correct. Dr. Bayford, moreover, in 1868, dating his letters from the principal registry of the Court of Probate, stated—"As far as I know, the calculation is quite correct," adding, that Mr. Crickitt's calculations were deemed at the time as accurate as could be arrived at by the proctors who sawthem. It is manifest, therefore, that ample funds arising from purely ecclesiastical sources may be made available for carrying into effect an improved system of procedure and practice in all the Ecclesiastical Courts. Many fees, too, pressing hardly on the parochial clergy, might under an efficient system be abolished or reduced, being obviously opposed to the best interests of the Church. Existing ecclesiastical sources, I repeat, would furnish £58,000 per annum for carrying out the provisions of the Bill. There are two Provinces and twenty-seven dioceses to be provided with courts, registries, Judges, registrars, and other officers; and if the twenty-seven courts and registries be put on a proper basis, £27,000—distributed in proportion to their requirements—would be more than ample for the payment of the chancellor, officers, and all other disbursements; but allowing £3,000 per

  821
  annum for contingencies, the total would be £30,000 a year. There would then remain £28,000 for the maintenance of the provincial Courts, the better preservation of the ecclesiastical records, and other instruments deposited in the registries, the abatement of fees, and the other objects of the Bill. Those calculations have been before the public for some time, they have been canvassed and examined, and, though often declared to be untrustworthy, I have never heard anything approaching to a proof that they are in the slightest degree inaccurate. My Lords, the question, no doubt, is uninviting; and I am afraid of wearying your Lordships, but I should not have taken up this matter had I not deemed it absolutely necessary that it should be submitted to public deliberation. In prosecution of the subject, I would call your attention to the opinion given by the Royal Commissioners on the Laws of Marriage, because it has been asserted that they have recommended the abolition of these fees; but their words convey no such intention. They say—
  "If, however, it is considered necessary still to charge fees for the solemnization or for any of the other legal requisites or incidents of marriage (either on account of the difficulty of replacing the deficiency which their abolition might cause in the incomes of some of the parochial clergy, or for any other reason), we think that a uniform table of such fees, upon as moderate a scale as practicable, should be settled by law, and that such fees should not in any case be augmented by the imposition of stamp duties, such as those now imposed in England on common licenses."
  They contemplate, therefore, the continued existence of these fees for purely ecclesiastical purposes. Now, my Lords, I cannot help thinking that, if the Commissioners had seen No. 296 of the Rules and Orders of the Irish Ecclesiastical Courts' Bill, they would probably have been of opinion that the proposition which it contains would have entirely met their views. That order is as follows:—
  "In lieu of all other fees and charges for marriage licenses (except special licenses), peers, baronets, knights, esquires, bankers, merchants, members of professions, and other gentlemen, shall pay forty shillings; farmers, master tradesmen, non-commissioned officers, masters and mates of vessels, shopmen, clerks, mechanics, &c, fifteen shillings; labourers, sailors, private soldiers, domestic servants, &c, five shillings."
  And I purpose, moreover, my Lords, to adopt the same graduated scale in the rules and orders of my present Bill,
  822
  fully convinced that such an arrangement will be very acceptable, that it will increase the number of marriages by license, and so add greatly to the funds for all the purposes contemplated in the present measure. This, my Lords, is pretty nearly the measure which I have to submit to your Lordships' consideration. But since I laid my Bill on the table of the House the most rev. Primate has introduced another Bill on the same subject, which appears to me to be not less remarkable for its omissions than for its astounding provisions. Clause 5. for instance, is as follows:—
  "In all trials in a diocesan Court under this Act the Archbishop or Bishop, as the case may be, may preside, assisted by his chancellor or by a lay assessor, duly qualified respectively as hereinafter required, or, in the absence of the Archbishop or Bishop, his chancellor shall preside."
  Again, the 7th clause provides—
  "That the Bishop shall, if requested by the defendant, or may without such request, appoint two clerical assessors to preside with the Bishop or his chancellor or lay assessor at such trial."
  Now observe that, in accordance with these provisions, the Bishop would have the power to supersede his chancellor, a regularly appointed Judge. The Bishop of London, for instance, might call in two clerical assessors and a lay assessor to supersede his chancellor, Sir Travers Twiss; and be it remembered that lay assessors, to whom the Bishops may have such ready recourse, are not Judges. I need not, I think, say anything further by way of illustrating the impropriety of such a proposal. Then comes the 11th clause, in which there are words relating to provincial and diocesan synods, seemingly with the view of obtaining an indirect legislative sanction to such bodies; and we must, therefore, watch these clauses narrowly; and the 12th, in accordance with which, although it is no doubt intended to promote despatch and economy, there might be two trials by jury on a question of fact before the Bishop and the Archbishop. The juries might give opposite decisions, and the ease would go in that form before the Judicial Committee of the Privy Council. I wish, in the next place, to call your Lordships' attention to Clause 29, which proposes the greatest innovation yet made on the rights of the laity. It provides that—
  "If a written information be given to a Bishop that a clerk within his diocese has been guilty of teaching or maintaining unsound or erroneous

  823
  doctrine, or of any offence against the worship, doctrine, discipline, or government of the Church, and such information, being signed by five beneficed clergymen of the Church certifying to the facts alleged therein, amounting to an offence against the Laws Ecclesiastical, and if any such information contain, in the judgment of the Bishop, sufficient primâ facie grounds for instituting inquiries respecting the truth thereof, the Bishop shall authorize a suit or other proceedings to be instituted in his diocesan Court by such beneficed clergymen against such accused clerk in respect of such alleged offence."
  Now pray observe, my Lords, that under the operation of such a clause as this, a layman cannot even approach the Bishop, in any legal or rightful capacity, much, less institute a suit for the purpose of ascertaining whether heretical doctrines had or had not been preached by a clergyman. See the operation of it. Five clergymen, not from the diocese only, but from any part of England, are to attest the evidence and act upon it. If summoned for the purpose, or the fact be known that they are to be present, the evidence will not be forthcoming, for the mouth of the heretical preacher will be stopped; and even after he shall have been convicted of false doctrine by these five clergymen, their decision may be over-ruled by the Bishop. Now this is directly contrary to the decisions of Sir William Scott and the other eminent persons whom I have mentioned. We laymen ask for no new rights; all that we ask for is that we should, be allowed to retain those rights which we now possess—rights which have existed since the time of Henry VIII., and in accordance with which it is open to every citizen in the realm, being a member of the Church, to "promote the Judge's office." But this right is now to be taken away from us and vested in clerical hands, even to the extent of excluding the interposition of the Crown. How, I should like to know, can this clause be reconciled with the solemn declaration made by our Bishops at their consecration?—
  "Are you ready," says the Archbishop, "with all faithful diligence, to banish and drive away all erroneous and strange doctrine contrary to God's Word; and both privately and openly to call upon and encourage others to do the same?" Answer—"I am ready, the Lord being my helper."
  And here we have, in this Bill, an embodiment of the views entertained of the sacred obligation, to ''call upon and encourage others" to such pious under-
  824
  takings! Going a little further, we find by Clause 31 that three members of the Church, or inhabitant householders, may, without the intervention of the Bishop, institute suits in all matters relating to ceremonies and ornaments; so that in questions concerning Ritualism the laity are let loose, while in questions of doctrine they are altogether set aside; and the same, I doubt not, would be attempted, were success probable, even in respect of the Articles themselves which are parts of Acts of Parliament. Is this just; is this impartial? A man may mount the pulpit; he may utter the doctrines of Voltaire, of Socinus, or Tom Paine, and no layman will be permitted, under any legal rights, to approach the Bishop and demand redress. But while the laity will be denied the power to protest against such monstrous utterances, they are to be at full liberty to prosecute the professors of Ritualism, who, whatever be their demerits, certainly hold the foundations of the faith. Now, my Lords, I call your attention to, and specially that of the Law Lords, to the 79th clause. The 79th clause is in the following terms:—
  "Every Archbishop and Bishop, and his diocesan or provincial chancellor, when presiding in a provincial or a diocesan Court, shall have and exercise the same powers of punishment for contempt of Court, or for contempt of the process of Court, as appertain to the Judges of Her Majesty's Superior Courts."
  So that singly, or with his chancellor who, though a barrister of seven years, standing, is not appointed by the authority of the Queen, a Bishop may exercise all the powers with regard to contempt of Court, powers of fine and imprisonment, which are exercised by Her Majesty's Superior Courts of Record. Now, is not this assuming, in a most decided manner, the power of the sword, a power that the Prelates have hitherto disclaimed, but which is now to be taken in all its amplitude? It surpasses all. Here are twenty-seven Bishops seizing at once the powers which the Ecclesiastical Courts do not now possess, that belong only to the Courts of Record, together with a right to exercise singly the authority now only entrusted to the Judges of Her Majesty's Superior Courts. Is this no advance of the clerical domination? Can your Lordships allow the Bishops to possess in their Courts such a power as this—the greatest power that can be well

  825
  exercised in reference to the liberty of the subject? I will not believe that such a measure can pass your Lordships' House; and even if it should pass I am sure that it will not be ratified by the Commons or the country. But here I will proceed to sum up the imperfections of the most rev. Primate's Bill. In the first place, there is no attempt to reform the registries; secondly, there is no substantial attempt to reform the procedure and practice, nor to shorten delays and cheapen the process; thirdly, there is no provision for the security of the records or for the diminution of the fees which press on the clergy; nor is there any authority given to make rules and orders, except for fees; and without rules and orders the Bill will be like the Church Discipline Act, inefficient and unworkable. There is a great limitation of the rights of laymen, and a great increase of episcopal powers, while there is no provision whatever made for rendering an account to the public of a taxation to the amount of £58,000 a year received from the imposition of fees, all of which are heavy, and many unnecessary; and I cannot better sum up the difference between the two Bills than by reading their respective Preambles. My Preamble is as follows:—
  "Whereas it is expedient to amend the law in the manner of proceeding in suits for the correction of clerks in holy orders; to amend the constitution and alter the procedure and practice of the provincial and diocesan Courts and registries, in order that the same may be rendered simple and expeditious;"—
  mark these provisions, my Lords—
  "to reduce and regulate the expenses and costs now charged and payable in such Courts and registries; to abolish, reduce, or re-arrange the fees"—
  I lay much stress on these points—
  "on marriage licenses, at visitations, upon letters of orders, consecration of churches, institutions to benefices, and other ecclesiastical instruments and acts, and to make provision for the better preservation of the ecclesiastical records and other instruments deposited in such registries."
  Compare this with the following meagre Preamble to the Bill of the most rev. Primate—
  "Whereas it is expedient to amend the constitution of the Ecclesiastical Courts, and the law respecting the discipline of the clergy."
  Can anything, even in promise, be less than this? Such, then, is the character of the two Bills; but I must now conclude. My Lords, many persons, I know, desire
  826
  the total extinction of these Courts; but I should myself be satisfied with the reduction of their number. It might be unseemly to drag clergymen before the Common Law Courts for offences which, though ecclesiastical, are not statutory, for offences against doctrine, for vice and immorality. But the reduction of them, say to six, would be a great benefit. Even then there would scarcely be business enough for these tribunals; but there would then be a power to give larger salaries and secure a higher order of Judges. My Lords, I do not know whether in the proposition of this Bill I shall be more happy than the Lord Chancellor Cranworth, who, in opening his case in 1856, remarked—"I feel bound to say that T have received very little encouragement from the right rev. Prelates." But, indeed, in proposing it I dare hardly appeal either to hopes or fears. If I appeal to hopes I may be supposed to assert that this measure, if successful, will open a new and brilliant career to the Church, so that a thousand evils will be speedily redressed. If I appeal to fear, because "positive anarchy" prevails—an expression used to me by a high ecclesiastical authority—I shall be taken to task by certain noble Lords, who seem to regard the Church as surrounded by every defence that can arise from affection and esteem, her head reaching to the heavens and her roots striking to the very centre of the earth. My Lords, I have but a single desire, and it is—that, in the days of trial which are fast approaching the Church should present as few as possible of assailable points; that she should appear to have been ready to adopt every necessary and wholesome amendment; that the episcopal government should no longer be called in question as allowing everyone to do what is right in his own eyes, and be evil-spoken of as backward to remedy long-proved and notorious abuses in their Courts, their registries, and their churches. The laity desire it for the honour and advantage of the clergy; and to be able to say, iu the face of our enemies, that we are marching faithfully in the line of progress, and that whatever may still remain to be done, we have, at least, wiped out the charge of being "a Church without order, and a Church without discipline."
  Moved, "That the Bill be now read 2a."—(The Earl of Shaftesbury.)
  THE ARCHBISHOP OF CANTEEBURY: My Lords, instead of producing a hostile measure, I have been most anxious—the whole Episcopal Bench have been most anxious—to act with the noble Earl in this important matter. The noble Earl was kind enough to send to all the members of the right rev. Bench copies of his Bill, and I and others of my right rev. Brethren have been in consultation and communication with each other in reference to it, and we thought it would be desirable to produce another Bill, which might go pari passû with his to a Select Committee. I can assure the noble Earl that in the course we have taken we have not been actuated by the slightest disrespect for him; and, indeed, I believe the noble Earl is actuated by the highest motives in bringing this subject under the consideration of your Lordships' House. When the noble Earl first spoke of the Bill which I shall have the honour to lay upon the table, he mentioned a fact which requires a little explanation—especially when your Lordships consider the way in which my Bill was characterized at the end of the noble Earl's speech. I understood him to say that seventy-eight out of the 108 clauses of my Bill are identical with clauses in his own. Well, if such be the case, I submit that my Bill cannot be so very bad, even in the estimation of the noble Earl himself. But I ought to explain how it happens that my Bill so closely resembles that of the noble Earl. My Bill is not a concoction of the last few months; it has been in my custody since the year 1863. How does it happen, then, that seventy-eight of its clauses have found their way into the noble Earl's present Bill? In point of fact, the right rev. Bench have been considering this subject for a very long time, and it has not been owing to any want of patient attention that we have not laid some measure before your Lordships long ago, for I have a drawer full of Bills prepared with great care to meet this difficulty. With regard to the other clauses, if these Bills be referred to a Select Committee, I can assure the noble Earl that I and my right rev. Brethren shall be most anxious to give our most serious consideration to the objections which the noble Earl has raised, and to give way at once if these objections appear to be well-founded. I will not, however, enter
  828
  into these points just now. Your Lordships will allow me to say that, among the many difficulties which beset the treatment of this subject, is the following;—There is no doubt that a somewhat undesirable state of things exists as to Church discipline in this country,—I have acknowledged the fact continually—but it is not quite correct to say that this undesirable state of things is caused solely by the condition of the Courts. The state of the law administered in the Courts creates as much difficulty as the state of the Courts themselves, and unless the law is in some respects revised you may make your Courts as perfect as you please, but great difficulties will, nevertheless, exist. Moreover, experience very often proves that when new Courts are constructed, even with the utmost care, and when there is every expectation that the proceedings will be very brief in them, and the expenses very small, the law still remains the law, and questions which ought to be decided very summarily linger in the Courts for a long time. I have heard it said that under some new modes of procedure lately adopted the expenses have not been nearly so much reduced as it was anticipated they would have been. Therefore, although I anxiously desire that these Courts should be improved, I cannot feel perfectly certain that all the good results indicated by the noble Earl will follow the adoption of either his measure or mine. Even after we have done our best to reform these Courts, it is possible that there may still be considerable delay and expense in attaining the ends of justice. That seems at first sight undesirable; but there is something to be said for it, after all. I do not agree with the sentiment I once heard expressed by one of my rev. Brethren, to the effect that great expense and cumbrous proceedings were necessary in order to check needless litigation. I say that the object of the Bill of the noble Earl has, in general, my hearty approval. I grant as fully as he does the necessity of a change. I believe that the present state of things is very undesirable. Your Lordships are probably aware that in the case of a clergyman being accused the process is the following:—First, a commission has to be issued by the Bishop, which takes a long time in arriving at a conclusion. It has not the

  829
  full powers of a Court, and therefore its conclusion is, perhaps, not the very best that could be arrived at. Then follows the sending of the matter, perhaps, to the diocesan Court, unless it is sent to the Court of the Archbishop. But suppose it goes to the diocesan Court, that occupies a long time and is attended with great expense. Thence the question goes to the Archbishop's Court, again involving considerable time and expense; and at at last it goes, perhaps, to the Judicial Committee of the Privy Council—if, indeed, it has not had the bad luck of being there several times on appeal on small points while passing through the Archbishop's Court. Therefore it is most desirable that a simpler and more expeditious process should be devised, and I trust that this will be done. Either the clergyman who is accused, let us suppose, of some act of immorality, is guilty or he is innocent. If he is guilty, the Church suffers during the long time that the trial lasts. If he is innocent, what an injustice to him to be exposed to all these harassing proceedings for so long a period! Therefore, anything that will shorten the proceedings and reduce their expense is much to be desired. At the same time we must not forget that the interests concerned in the trial of these questions are of a very high kind indeed; and it would be wrong if not only a man's temporal means and substance, but even more than that, his character as a minister of the Grospel, were liable to be injured without the most mature and thorough consideration, and if it should be an easier thing to deprive a man in these Courts than to conduct to an issue any minor matter tried before the ordinary civil Courts. Therefore, my assent to making the process simple and expeditious of course is qualified by this condition—provided you secure that substantial justice shall be done to every clergyman who may be brought before these tribunals. My Lords, I will now briefly allude to a few points in which the Bill that I have laid on the table differs from the noble Earl's. In the first place it does not deal directly with the registries, and the noble Earl thinks that is a very great fault. Let me say that one great difficulty which has seemed to attend bringing this matter to a satisfactory conclusion is the vast field over which it extends; and we have, there-
  830
  fore, felt that this result might, unfortunately happen—that if the Bill were overlaid with a quantity of matter which does not distinctly refer to clerical discipline, the measure might founder in consequence of that additional matter, and the good object which we all desire might thus be lost. I have seen it stated in some places that we have omitted any distinct reference to these registries in this Bill from a desire to preserve ecclesiastical patronage; and the noble Earl himself alluded to some appointments made about the year 1823. That is a long time ago, and I do not know whether, if you went back to that period, you would not find in connection with other Courts that there were similar abuses, and that very young persons and persons who were inexperienced were appointed to lucrative offices in other Courts besides the Ecclesiastical Courts some forty or fifty years ago. If that were the case it would show that it would not be perfectly fair to adduce, as instances of any malversation in the present race of ecclesiastical rulers, things which happened so long ago. I believe that public opinion would altogether pre-vent any such appointments in the present day; but I think it would be better to be on the safe side, and I agree with the noble Earl also that it would be better to provide that persons appointed as registrars shall be men fully competent to perform the duties of their office. Moreover, I think the noble Earl did not observe that by one clause of my Bill, making arrangements for rules and orders for the regulation of the proceedings of those Courts, an attempt has been made to bring the registries partially into an improved state, although, perhaps, the improvement would not be so thorough as by the mode that he proposes. I would also remark that we were much deterred from entering into the subject of the registries by the consideration that the marriage fees of which the noble Earl has spoken possibly might not last very long, and therefore the very foundation on which he rests that part of his Bill might disappear. However, if the noble Earl should obtain the funds which his Bill treats of I should rejoice, because it would remove another great difficulty in this matter in the shape of expense. I do not myself think that the Bishops would be deterred from proceeding in any clear

  831
  case by reason of the expense; but it is only human nature that where the result appears to be very doubtful they should hesitate to incur a very large expense. Another particular, in which the noble Earl thought my Bill was very faulty, relates to the person who has a right to originate the proceedings. Now, there are really two views of that matter. The noble Earl quoted Sir William Scott. I have in my hand the decision of the Court of Queen's Bench when this matter was argued before it not long ago. The judgment was pronounced by Mr. Justice Wightman, when the question had been argued whether the Bishop must consent to the instituting of proceedings; and the Court of Queen's Bench was of opinion—
  "That it was better for the interests of religion and the public that the Bishop, who is the overseer or superintendent of religious matters in the Church, should be intrusted with a discretion as to the propriety of issuing a commission of inquiry in such cases, than that it should be left entirely, as expressed by Sir William Scott, to the judgment or passions of private persons, who, under the influence of zeal, or prejudice, or fancy, might call peremptorily upon the Bishop, without any real or substantial ground, upon mere scandal or evil report, to institute proceedings which would cause at once expense, trouble, and vexation, and tend to create disturbance and scandal in the Church."
  The result of the Court taking that view was that they interpreted the law as leaving this discretion to the Bishop. The noble Earl has said that the right of the laity to intervene in the way thus characterized by Sir William Scott has been violated by the Bill which I have laid on the table. He can hardly have read the clause which says that the Bishop may proceed on representations made to him; that is, any layman may, as at present, give information to the Bishop, and the Bishop may, just as at the present moment, according to the judgment of the Court of Queen's Bench, proceed in matters of doctrine at his discretion. As to matters of Ritual, my Bill allows the Bishop's discretion to be over-ruled. I do not know whether the noble Earl thought we were wrong in allowing it to be overruled or not; but, if he considers we were wrong, I am sure he will find supporters among those who think that parishioners ought not to be permitted to make representations of that kind. I have inserted in my Bill—founded partly on the Report of the Ritual Commission—a provision that in
  832
  cases where a parishioner thinks that his rights have been infringed by an innovation which he believes to be contrary to the Law of the Church, he shall be entitled to proceed, and the Bishop shall have no power to prevent him. In cases of alleged immorality, accusers will be called upon to provide security for heavy costs in the event of their complaints proving to have been frivolous and vexatious. Both I and the noble Earl propose to abolish the preliminary inquiry, which is found to be of very little use, even the clergy themselves being agreed that it should cease. The noble Earl thinks that I have committed a great mistake in introducing clerical assessors into the Bishop's Court. But the noble Earl must remember that in abolishing the preliminary inquiry we also abolished the security which the clergy at present enjoy of being tried by their peers. Therefore it was thought, in dismissing the clerical assessors who sat upon the preliminary inquiry, that it would only be fair to introduce them into the Bishop's Court when the accused party demanded it. Then, again, with regard to what the noble Earl said respecting the lay assessor who is, under certain circumstances, to supersede the chancellor. I think one of the noble Earl's objections is that there are a number of chancellors, of whom many are clergymen, who are not fit to discharge their duties, and that it is desirable that in such cases there should be a thoroughly experienced lawyer. Now that very end is gained by the introduction of this lay assessor. I think upon proper reflection that the noble Earl will see that this very lay assessor will carry out his own idea. I feel sure, my Lords, that the matters in respect to which the noble Earl has pointed out that my Bill differs from Ms will be found—when we have an opportunity in the Select Committee to consider them more in detail—not to deserve the strictures which he has passed upon them. With regard to the points of resemblance between the two Bills, they are many and important. We both propose to abolish the preliminary inquiry. We are also agreed that the details of these matters must be settled by persons who would go into them very minutely, with power to make rules and orders, and that it is very desirable that proper assessors should sit in all the

  833
  Courts. It does not, however, appear to me at all necessary that the Judge of the Arches' Court should be in all cases a man who has practised during the preceding fifteen years. I do not see why a retired Judge, for instance, should not be as good as a gentleman who has gone on practising at the Bar up to the last moment. I do not see the necessity of being obliged to go to the Bar when you may have the benefit of the Bench from which to make a selection. Another great point on which we are agreed is as to the great importance of substituting salaries instead of the present wretched system of fees. There is a provision in my Bill for paying these fees into a common fund, and appropriating salaries to all the officers who are at present paid by fees. Thanking the noble Earl again for having taken up this subject, believing that the long deliberations of the Bench of Bishops have brought us to something like a similar result, and that by creating a sufficient interest in the matter we may hope to lay before your Lordships a measure with a prospect of its being carried, I shall not trouble your Lordships further than by saying that I shall move that both Bills be referred to a Select Committee.
  EARL GRANVILLE: I do not wish at present to discuss this most important subject; but, as it may interest your Lordships to know what course the Government intend to adopt with regard to the two Bills under discussion, I shall briefly state what we propose. I believe that after the two speeches we have heard there will not be much difference of opinion on this point, at all events—that evils exist, and that it is extremely desirable that they should be remedied. Your Lordships will, therefore, probably agree in this—that something should be done to abate what is complained of and to lessen the expenses of so doing. The two speeches of my noble Friend and of the most rev. Primate shew that there is a general agreement between them as to the practical points to which a Bill professing to deal with the evils complained of should be directed. The general principle of both Bills appears to me to be this—to make efficient that which is now perfectly inefficient, to simplify that which is complex, and to cheapen that which is extravagantly expensive. On the other hand, there are Questions of the greatest
  834
  importance and difficulty, requiring very nice adjustment, which distinguish one Bill from the other. The most rev. Primate stated that it was his desire to have both Bills referred to a Select Committee. I did not understand the noble Earl to say anything to that effect; but I hope he has no objection to that course, in which case Her Majesty's Government would consent to the second reading of the two Bills, on the understanding that their Lordships should refer to a Select Committee the mode of dealing with them—a course which, though not always the most advantageous, appears in the present instance to be the best that can be adopted.
  THE EARL OF CARNARVON: I believe it would not be altogether out of place, after the few words which have fallen from the noble Earl who has just spoken, and agreeing as I do that these Bills should be referred to a Select Committee, if I were to point out one or two things in which, unfortunately, I cannot agree either with my noble Friend who moved the Bill now before your Lordships or with the most rev. Primate who has brought forward another Bill on the same subject, I think that both my noble Friend and the most rev. Primate have clearly explained the difficulties which exist under the present system; and no man can desire that in such a matter as Ecclesiastical Law those difficulties should exist, or that they should be suffered to remain one hour longer than necessary. I am not lawyer enough to say whether or not during the last few years any improvements in the mode of procedure have been introduced, or the exact extent of the evils that require to be remedied. I imagined that some changes had been made—especially by Dr. Lushington—which tended to simplify the procedure before the Courts referred to, and especially to facilitate the despatch of business; but I am ready to accept the assurance that the present state of the Ecclesiastical Law stands in need of reform. But I own, if I had my own way in this matter, that I should prefer to inquire, in the first instance, into the existing state of the law, to see how far the Clergy Discipline Act of 1840, to which reference has been made, has worked well or ill, before attempting to introduce what may be further improvements. Were we first of all to collect existing facts we should have laid

  835
  a basis for Parliamentary action if necessary, and I cannot help thinking that we should be proceeding more surely and certainly if we were to do so, than by taking the present course. At the same time, I hope, if a Select Committee is to be appointed, it should be understood that it shall have full power to take evidence as to the existing state of the law. There are two or three salient points arising out of the Bill itself to which I wish to draw attention. The first point to which I would advert is that to which my noble Friend also referred, which empowers three inhabitant householders to institute a suit in an Ecclesiastical Court. Now I am afraid I must dissent utterly from the view taken by my noble Friend (the Earl of Shaftesbury) with regard to that subject. On the other hand, I wish I could, agree more heartily in the alternative which the most rev. Primate proposes. The most rev. Primate told us of the number of Bills which he had found in his drawer relative to the subject, and I sincerely wish, so far as these clauses are concerned, the most rev. Primate had made a selection from those Bills. The most rev. Primate proposes that, in cases of doctrine, five beneficed clergymen of the kingdom should have the power of instituting suits. Upon that point I differ entirely from the noble Earl, and cannot adopt the proposal of the most rev. Primate. Furthermore I cannot agree with the latter when he goes a step further, and proposes that upon questions not doctrinal—the most numerous class of cases, and many of which are frequently separated from cases which are doctrinal by an imperceptible line of division—three inhabitant householders, who are members of the Church and resident in the parish, shall have power to institute suits—without the consent of the Bishop first obtained. It is out of the question that such an arrangement as this can possibly work well—it must be objectionable, not to one section of the Church only, but to all; High Church, Low Church, and Broad Church would be equally exposed to danger; all might be made victims of considerable injustice and oppression if this proposition should be adopted. No matter how ignorant, how fanatical these three householders may be; no matter how expedient it may be on general grounds to keep the questions they raise out of
  836
  Court, at least for that time; no matter how critical may be the state of the Church; no matter what may be the opinion of.the Bishop upon the questions—these three householders have the power of forcing the whole subject into a Law Court. The most rev. Primate read an extract from a judgment which has been delivered, as I understood him, within comparatively recent times, in which the doctrine is most distinctly laid down that the Bishop has and should have a discretion in these matters. In my opinion there is every reason why the Bishop should have this discretion, and should be perfectly free to exercise it. It should be in the Bishop's power to say to any hotheaded firebrand, whose zeal has got the better of his discretion, that he will not consent to such and such a question being dragged into Court; and it is but common justice to the clergy to give them the security of the Bishop's consent against their being needlessly hustled into any Law Court and then exposed to the expenses of litigation. If this proposition were to become law it would go far to destroy the authority of the Bishop, because it would put an end, at least to some extent, to the feeling at present enjoyed by the people that they may count upon protection from improper acts upon the part of the clergy; and the clergy, on the other hand, have a feeling of security from unjust attacks upon the part of the people. If the Church is to be organized and governed ecclesiastically, it is absolutely necessary that the Bishop should have full freedom to exercise his discretion in all matters of discipline and legal procedure. What a very wide door, my Lords, is left open by the most rev. Primate by this proposal for litigation in the Church! He has told us has Bill is designed to simplify legal processes, but the result of his endeavours may be, as has happened in the case of the Divorce Court, to multiply causes. There are many legal processes that in the interests of the public should be simplified and multiplied; but I venture to submit, with all respect, that litigation in itself, and especially litigation on Church matters, is not desirable, and when the interests of the Church are at stake such litigation cannot be good. Then there is the proposed adoption of the jury system—an entire novelty as applied to ecclesiastical matters. A new tribunal, and I submit a

  837
  by no means satisfactory tribunal, is proposed by my noble Friend (the Earl of Shaftesbury) when he suggests an equal proportion of clergymen and of justices of the peace, who shall be obliged under penalties to assist in the administration of the law. Has it occurred to my noble Friend that some of these justices may be Nonconformists? Not only would it be unwise in the interests of the Church to submit ecclesiastical matters to their judgment, but they might with reason complain you were obliging them to do violence to their consciences. More than this—the system would inevitably be abused by appeals to the passions of individuals. No subject more sways the judgment of men and more excites their passions than religion; and men would be convicted, not because they had violated a particular law, but because they happened to belong to this or that section of the Church. Surely, if it was inadvisable to apply the machinery of trial by jury to cases of election petitions, by reason of the political passions by which their judgment might be based, it would be most improper to decide ecclesiastical cases by such a process. These, my Lords, are all objections to the principle of the measure; I have now to put a question to my noble Friend. Does he think his Bill really practicable? He proposes to constitute a fresh tribunal and a fresh Judge; indeed, a fresh machinery altogether, which he has pointed out must in the nature of things be superior; but the sources of revenue upon which he relies for the maintenance of this new Court are very precarious. These sources are, as I understand it, made up entirely of fees, which are thrown into a sort of hotchpotch, and then distributed as the requirements of the Court may suggest. But what are these fees? As far as I could follow my noble Friend, these fees are those for consecration, for conveyances on the admission of clergy to their livings, and, lastly, fees on marriage licenses. Now, one set of these fees are most objectionable; I have never been able to understand upon what principle of justice or public expediency a man who has built a church, and perhaps given the land upon which the building stands, should be made to pay a large amount in fees upon the conveyance of the property to the Church. This has always seemed to be a monstrous injus-
  838
  tice; yet it is proposed by this Bill to stereotype these fees, and to make the whole machinery for the administration of one branch of the law dependent upon their punctual payment. I also submit that fees on marriage licenses form a very precarious revenue indeed; and if they should be abolished, as is extremely likely, I ask my noble Friend what becomes of the Bill? The very pillars on which it stands are cut away. For these reasons I much doubt whether the Bill would be found practicable; and I hope we shall not be regarded as having sanctioned, by sending the Bill before a Select Committee, the few points to which I have alluded, and in respect of which the Bill is, in my opinion, radically defective.
  THE EARL OF HARROWBYsaid, the most rev. Primate had referred to a clause which had emanated from the Ritual Commission. No doubt the clause referred to had its root in the Report of the Commission; but it had been altered and was now materially different from what it originally was. The Report referred to specific acts connected with rites which were entirely new to the habit of the Church, if not new to its laws, and which involved points of doctrine not recognized by the Church. The Commission had decided that in respect of these—namely, vestments, lights, and incense—as contrary to the uniform practice of the Church, whether legal or not, they ought to be prohibited; and with regard to these, and. these only, the Commission recommended that three householders should have, not the power of calling the attention of the Bishop to them, but of calling upon the Bishop to put them down without leaving him a discretion. The provisions of the Bill now before them were different in two respects. They authorized the parishioners to call the Bishop's attention to any points of Ritual, but gave him a discretion as the mode of dealing with them. They enlarged the area and diminished the stringency of the recommendations of the Commission. It was important this should be understood.
  LORD CAIRNS: I feel sure your Lordships will agree with me in saying that the noble Earl who moved the second reading of this Bill (the Earl of Shaftesbury) did not require to offer to you any justification for addressing himself to a subject so important as the legislation

  839
  which this Bill proposes; and certainly no apology was required from him for the able and comprehensive manner in which he has dealt with the subject, the mastery of which has occupied so much of his time, and must have occasioned much trouble and anxiety. I think we may rejoice that two Bills on this subject have been laid on the table, because, proceeding as they do from minds that have looked at the subject from different points of view, it must be a matter of great satisfaction to find that the Bills, travelling to a large extent over the same ground, agree in substance as to the provisions they recommend. As to the points on which the authors of the two Bills are at issue, I own nothing more satisfactory could be proposed than that they should be referred to the same Select Committee to consider those differences. The two Bills seem to differ to a great extent in respect to the sources from which the finances are to be drawn; the source indicated by the Bill of my noble Friend seems to be of the most transitory and evanescent description; and I think your Lordships will be of opinion that nothing ought to be done to maintain the fees as taxes upon the Church and those connected with it. I doubt extremely the propriety of introducing what is called a jury system—but which is not a jury system—into the trial of offences of the kind contemplated by these Bills. The jury system, as we are accustomed to it, has great advantages in certain cases which it is applied to, but you are proposing now to apply it to cases of the greatest delicacy and nicety, requiring the most peculiar handling. I must say, from the experience I have had of cases of that peculiar kind to which I refer, I think that, on the whole, the best mode of trying them is to have them tried by a single Judge who is under an obligation, which you cannot put a jury under, to state in detail the grounds upon which he arrives at the conclusion he announces. A jury may be influenced by passion or prejudice, but they have to give no reason for their verdict; whereas a Judge must give reasons and show that he is master of the evidence. My noble Friend who has just sat down (the Earl of Carnarvon) expressed a hope that the Select Committee would take evidence as to the working of the Clergy Discipline Act. I hope my noble Friend will not be disposed to assent to that suggestion. If
  840
  such evidence is taken on a question as to which a conflict of opinion prevails, I see little chance of legislation this Session. Eight rev. Prelates know pretty well how the Act has operated; and I think, on the whole, it will be much safer to refer the two Bills to a Select Committee without requiring such evidence to be taken.
  THE EARL OF SHAFTESBURYsaid, he did not take credit to himself for being the inventor of the jury system, which was mentioned to him thirty years ago by the Duke of Wellington, and of course a jury was not intended to decide questions of doctrine so much as questions of fact. Although seventy-eight of his clauses had been appropriated by the most rev. Primate, others had been added to which he had altogether objected. He had said Ritualism was a bad thing and ought to be put down; but false doctrine was a much worse thing.
  Motion agreed to.
  Bill read 2a accordingly, and referred, to a Select Committee.
  And, on April 26, the Lords following were named of the Committee:—

  L. Abp. Canterbury.

  V. Halifax.

  L. Abp. York.

  L. Bp. Oxford.

  Ld. President.

  L. Bp. Ripon.

  M. Salisbury.

  L. Bp. Gloucester and Bristol.

  E. Shaftesbury.

  E. Portsmouth.

  L. Portman.

  E. Carnarvon.

  L. Westbury.

  E. Beauchamp.

  L. Cairns.

  CLERGY DISCIPLINE AND ECCLESIASTICAL COURTS BILL [H.L.]
  Bill read 2a (according to order), and referred to the Select Committee on Ecclesiastical Courts Bill.
  House adjourned at a quarter before Eight o'clock, till To-morrow, half past Ten o'clock.