COMMITTEE. (Hansard, 29 February 1872)

THE BISHOP OF WINCHESTER

My Lords, before your Lordships go into Committee on this Bill, I must ask you to allow me to say a few words as to the grounds on which I have laid upon the Table certain Amendments to be considered when the House goes into Committee upon the measure itself. My Lords, it might have been more convenient if the few words I have to say had been said on the occasion of the second reading of the Bill; but the noble Earl who had charge of it (the Earl of Shaftesbury) thought fit to press it forward with a haste very unusual in the case of Bills of importance coming before your Lordships, and diocesan engagements deprived me of the opportunity of addressing the House on the second reading. I believe on that occasion the noble Earl gave utterance to the opinion that I was the last man who ought to complain if he did not consent to delay the second reading, because last year I thanked the noble Earl for having given his attention to this subject. Now, I do not myself see any sequence in these two ideas. Again, I thank the noble Earl, as I thanked him before, for having as a layman applied himself to the preparation of a measure intended to remove certain blots in our present ecclesiastical system. I thank him heartily—it is not by way of paying any personal compliment to the noble Earl, or any compliment to the Bill, that I say I am thankful that one of his energy and his standing in the House should bring forward a measure of this kind, rather than that it should have been 1125 introduced by one of the right rev. Bench. But the more I thank him, the more I feel I ought to do all in my power to make it worth thanks—to make it worth passing in this and the other House of Parliament; but that because I thanked him I ought to be one of the last men that should wish to make the Bill fit to pass is one of the strangest propositions I ever heard. It was, therefore, that I sought to obtain for the measure the full consideration of those best capable of judging of its details. As I have said, I think the second reading was taken with unusual and undue hurry. It was read a first time on the 13th of this month. No notice was given then of the time when the second reading would be taken. Notice was given only on the 15th that the Bill would be proposed for second reading on the following Monday, there being only one sitting day of your Lordships' House between that and the date of the second reading. I regarded this as very undue haste in the case of a Bill intended to alter the whole of the arrangements in the Ecclesiastical Courts of the Church of England. I was engaged on diocesan business at the time when the second reading was to be taken; but I had communicated with the noble and learned Lord (Lord Cairns), who had moved the first reading, asking that, as the week was Easter Week, one in which the Bishops are much engaged with diocesan duty, the second reading might be postponed. From the noble and learned Lord I received a most courteous letter; but the noble Earl (the Earl of Shaftesbury) declined to accede to my request. When I asked for the postponement, I had not the slightest idea of unnecessary delay; but surely those who are so much interested in the Bill might ask that the second reading should be postponed to a time when, without great personal inconvenience, and without disturbing diocesan arrangements and so causing considerable inconvenience, they might attend and deliver their mind on the subject of its provisions. I trust your Lordships will see that, under such circumstances, I might have made the request I did without endeavouring by means of a subterfuge to delay the passing of the Bill. I had no intention of opposing the second reading of the Bill. My intention was, that before reading the Bill a second 1126 time the House should be put in possession of the views of myself and others with whom I have communicated with reference to the measure as it now stands, in order that on going into Committee your Lordships should the better understand the effect of the Amendments of which I have given Notice. I now request the attention of the House to the grounds on which I intend to propose those Amendments; because I think it will be easier to explain them now than to do so when the Bill is under discussion clause by clause. I object, first of all, to the appointment of the one Judge who is to act for the two Provinces of Canterbury and York, and who is to be paid a large salary. I object to this, because it is an innovation on long-established custom. The two Provinces have from the beginning had two separate Courts with a Judge for each. It would be easy to show the advantages which have accrued from this arrangement, while I cannot see any advantages which can result from merging these two offices into one. Again, I object entirely to the whole financial basis which is essential to the working out of the proposed judicial arrangement. In the Bill as originally proposed, the salary of the Judge was set down at £3,000. The figures have since been struck out—I suppose, because this is not the House in which the salary is to be fixed—but a blank has been left for the amount, and no doubt it will be filled up with £3,000. Now, I ask, what is the necessity for a new Judge at a salary of £3,000? None that I can see. After a careful examination, extending over some recent years, I find that, even under existing circumstances, six cases a year would be likely the probable number to come before this Judge with a salary of £3,000. But if you take into account the probability of a settlement of many grave questions hitherto undecided, there seems every likelihood that in future there will not be nearly six trials in the course of a year. I say, therefore, that to create such an office with such a salary is an absolute abuse, considering the work to be done. My Lords, I say further that there is no need for it at all; because at present there is a sufficient emolument attached to the Archbishop of Canterbury's principal judicial office to make it worth the while of one of the Judges 1127 to undertake the duties of the Dean of Arches, and the small additional labour which it involves. The salary of the Dean of Arches is provided from the fees of the Mastership of the Faculty in the Court of the Archbishop of Canterbury, these fees being derived from the issuing of special licences and dispensations. I hold that there is no reason for diminishing, but every reason for keeping up those fees, because they act as a check against applications for special licences in the case of marriage, and for dispensation in other cases. Such licences and dispensations are granted by the Archbishop of Canterbury under an Act of Henry VIII., vesting in him all rights and privileges in those matters which before that time had been exercised by the Pope of Rome. Those rights and privileges have not been taken away by any subsequent Act; but it is very desirable to keep a check on the applications from which those fees are derived. The Dean of Arches is an honourable office, and an emolument of between £700 and £800 a-year will always make it worth the while of the Judge of the Court of Admiralty to undertake the small additional labour involved in the office of Dean of Arches also. I say, therefore, that, so far as the Province of Canterbury is concerned, there is no need of the new office which it is proposed to create by this Bill. I go further, my Lords, and say that I think it is a great advantage that a person who fills such an office as that of the Dean of Arches should also be a Judge in a lay Court. In the first place, because there might be an idea that by sitting exclusively in an Ecclesiastical Court the Judge would have his mind narrowed by the singleness of ecclesiastical jurisdiction; whereas the more constant work in the lay Court tends to keep his judicial faculties alive, and to give broader principles to act upon. With only hearing five causes a year you could hardly expect to keep the reasoning faculties quick and the judicial acumen accurate. I think, therefore, it is a great advantage that the superior Judge of the Ecclesiastical Court should also be a Judge sitting in a lay Court. First, then, I object that the Bill proposes to create an office which is not needed. My second objection is, that it proposes to take away the judicial business from a Court properly qualified 1128 to discharge it. My third objection is as to the source from which the £3,000 a-year is to be obtained. It can be obtained only by maintaining marriage licences at their present high rate, or by maintaining other ecclesiastical fees at a rate which is already excessive. I think marriage should be encouraged by a national Church, and not discouraged by large fees. Again, there are other ecclesiastical fees, certain of which are very objectionable. Your Lordships have heard the noble Earl (the Earl of Shaftesbury) declare that these fees are an abomination and an abuse; but it is an inconsistency to ask Parliament not to abolish those fees at the same time that he proposes it should establish a Court which must be kept up by maintaining them. I object for another reason. There are a good many errors in the wording of this Bill, some of which are rather amusing, but one is particularly so. In the clause of the Bill having direct reference to the appointment of the proposed Judge there is no statement as to who is to make the appointment; but in a subsequent clause he is alluded to as "the Judge appointed by the Crown." This is one of the most curious instances I have ever seen of the accidental letting out by the draughtsman of a fact not stated in direct terms in any part of the Bill. Now, my Lords, I am of opinion that as long as the Church of England is an Established Church, or holds property, the appeal in the end must go to a temporal Court; but the appointment of the Judge whose place the new Judge is to take has always been in the hands of the Archbishop of Canterbury. Here the draughtsman had the wit to perceive, and the misfortune to state, that the intention is to transfer the appointment to the Crown. I object to that as uncalled for and as an innovation. Next I object to the introduction of the jury system for trials in ecclesiastical cases. In the first place, it is a wholly novel introduction; in the second place, it has never been desired by the clergy themselves, in whose interests it is supposed to be attempted. This subject was long and carefully considered by the Lower House of Convocation of the Province of Canterbury; but they never have desired to introduce the principle of trial by jury. When these jury clauses came before the Select Committee of your Lordships' 1129 House they were considered and struck out. Now, however, they make their appearance in this Bill. The jury system will increase the expense of these cases, because no man going before the Court will be able to avoid taking with him a practised advocate to put the case before the jury. If this system be introduced, instead of having men who sift the evidence and come to the Court with the object of assisting the Judge, we shall have men dealing with the evidence as advocates do when they have to lay their case before a jury. It appears to me that this will not prevent cases from coming before the Privy Council, because everyone knows the power of skilful advocates, and that they can always in some way or other reserve questions of fact disguised as questions of law, and so bring the case before a Court of Appeal. Instead, therefore, of shortening the proceedings and diminishing the expense, it will protract the former and increase the latter; but to come to the principle on which the jury system is introduced. It is said that persons of the same profession may be presumed to have a knowledge that will better enable them to judge of the facts, and the principle upon which a foreigner on his trial in this country was allowed to have a jury, the one half of whom were foreigners, has been referred to in support of the jury clauses. It is rather singular that this privilege should be referred to in support when the privilege itself was taken away last year. What you took away from a foreigner last year you now propose to give to the clergy. To say that because a clergyman is on his trial you ought to have a jury of clergymen is fully much the same as saying that no bricklayer ought to be tried for murder except by a jury of bricklayers. I say, as one of the clergy, that we should rather not have any such thing. We should rather not give any ground for the suspicion that we want any advantages for our profession, and therefore we prefer to have laymen to try us. There is another objection, my Lords, and it is that the clergy are the worst men to serve on a jury, because, being exempt by law from serving on juries, they have no practice in that way. The manner in which this Bill is drawn would show that those who framed its provisions are not very well 1130 acquainted with ecclesiastical matters, nor with the difficulties which have hitherto presented themselves in ecclesiastical trials. The constant use of the word "may" shows that those persons have not recognized the difficulties which have hitherto arisen in consequence of the use of ambiguous words. And, my Lords, not only is there ambiguity in the terms used, but in the Interpretation Clause words are interpreted which do not occur in the Bill. I suppose they were in it once, but have been allowed to drop out. There is not only a superfluous and misleading nomenclature in the Bill, but there is an interpretation of so great an office as that of the Archbishop of Canterbury. There is an interpretation of "Archbishop" and of "Bishop," and the definitions are in some cases so new and fanciful that I believe if no amendment be made in the Bill, it would be impossible to try a non-beneficed clergyman. There is a definition of a "clerk," which excepts a Bishop and Archbishop. All this is superfluous, and I think noble and learned Lords will agree with me that whatever is superfluous in a legal document or a statute is a nest in which every kind of difficulty settles and breeds. I thank the noble Earl for what he has done; and if your Lordships think you can mould the Bill so as to remove what appear to me to be its evils, I shall be happy to give it my support. I, for one, should rejoice if the noble Earl obtained the credit I think he deserves for having long and earnestly given so much attention to these matters. If the Bill can be amended, I should rather see the noble Earl's name on it than the name of any member of the right rev. Bench; but I cannot in any way compromise the cause of discipline in the National Church in order that we may pay a compliment to the noble Earl. There are several clauses of the Bill which, in my opinion, will require very considerable amendment before the Bill can be regarded as at all satisfactory, or before it can be made a measure that will not contain within itself elements of danger. The scope of my Amendments is to attempt to remove what is objectionable, and to remedy what is deficient in the Bill—my main objections, as I have already stated, being the creation of a new Judgeship, and the introduction of the jury system. I think, my Lords, 1131 that the proceedings in these matters ought to be as simple as possible; but instead of that being the case, it appears to me that under this Bill the procedure is unnecessarily embarrassed, and that new expenses are attached to it. In the Bill which I laid on the Table provision is made for raising the case by declaration—a form of which is given in the schedule, and which anyone can fill up. But the proceedings under this Bill must be commenced by petition, and the petition must in every case be signed by a counsel learned in the law. Now, I think that is an unnecessary and expensive form of proceeding. By one of the provisions of the Bill it is proposed to enact that those of the clergy who unhappily may have been condemned in a Criminal Court may be at once condemned by the Ecclesiastical Court on the strength of the judgment pronounced by the Criminal Court. I agree with that entirely. I think it is a well-founded and necessary provision: but then comes a similar provision with respect to clergymen who may have been condemned in a civil proceeding. I object to this. There are grave offences of which a clergyman might stand condemned by the judgment in a civil proceeding, and having regard to the manner in which the prejudices of jurors may be acted upon in civil proceedings, I do not think an Ecclesiastical Court ought to proceed to condemnation merely on the judgment of a lay Court in a civil proceeding, and without giving the accused party an opportunity of having the facts brought before the Ecclesiastical Judge. In regard to the punishment for some offences, I think the moral standard of our ecclesiastical law is very lax. This is owing to the punishments having been provided at a time when an unnatural and un-scriptural prohibition was in force—the time when celibacy was enforced among the clergy. I think to restore a man to a cure of souls in three years after he has been condemned by a superior Court for the commission of acts of adultery is a thing the ecclesiastical law of this country ought not to allow. There are many such evils which require to be removed. I believe, however, that this Bill will increase instead of diminishing some of those evils if it is not amended in Committee, and therefore I hope that it will not be supposed that I wish to oppose the object the noble Earl has in 1132 view because I have felt it my duty to give notice of a number of Amendments.