Lords Sitting of 14 March 1872

MINUTES.
PUBLIC BILLS—Second Reading—Life Assurance Companies Acts Amendment * (40).
Report—Ecclesiastical Courts and Registries (15–50).
Third Reading—Bank of Ireland Charter Amendment * (37), and passed.

ECCLESIASTICAL COURTS AND REGISTRIES BILL—(No. 15.)
(The Earl of Shaftesbury.)
ECCLESIASTICAL COURTS AND REGISTRIES BILL—(No. 15.)

  REPORT OF THE AMENDMENTS.
  Order of the Day for receiving the Report of the Amendments, read.
  Moved, "That the Report of the Amendments be now received."—(The Earl of Shaftesbury.)
  THE MARQUESS OF SALISBURYsaid, that before the Report was received, he wished to make one or two observations respecting the commercial aspects of the Bill—a point which had not, he thought, yet been considered by their Lordships with the care it deserved. It was natural that this should have been the case, because in matters of finance their Lordships looked to the Government for some well-defined resolution; but in this instance they seemed to have no opinion upon it, and, indeed, had left it to take its chance whether it might turn out right or wrong. He cast no reflection on his noble Friend (the Earl of Shaftesbury), for either the intention or the spirit with which he had introduced the Bill. He sympathized with his noble Friend as to the present state of ecclesiastical law, and quite agreed that a remedy was required for the evils which his noble Friend wished to put an end to. But he was afraid that remedy was not found by a Bill with the financial basis of the measure now before their Lordships. The state of the financial question involved in the Bill was simply this. According to the calculations of the noble Earl the funds necessary for the working of the Bill was £32,000. He (the Marquess of Salisbury) believed that to be a very low calculation. Now, how was that sum to be raised? His noble Friend had placed his reliance upon the marriage fees, but said that they being given up there would still be enough to pay the working expenses of this Bill. Now, he (the Marquess of Salisbury) would ask the House to consider what these fees were, and what prospect of permanence they had—because this was important when it was proposed out of the fees to pay the salaries of the chancellors and registrars. If the marriage fees were put aside, he was afraid there was no solid foundation to rely upon. His noble Friend proposed to pay all the Judges, chancellors, registrars, and apparitors by salary and not by fees. Hitherto those functionaries had been paid by fees, and had taken their offices subject to all chances in respect to the amount of these fees; but when, under this Bill, all the fees were taken and put into a common fund, and these functionaries were told that each of them would be paid a fixed annual sum as salary, calculated on the amount of fees received by them in previous years, they would

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  look forward to that salary, and they could not be cast off, should it turn out that the fees were not sufficient for the payment of the salaries. Leaving the marriage fees aside, from what sources were the other fees derived? It was said to be made up in this way—First, there were the visitation fees, amounting to about £10,000 a-year. These were originally paid out of church rates; but when these rates were abolished, by some oversight, no provision was made for the payment of visitation fees from any other source, and the churchwardens had no funds out of which to pay them. What they were paid for did not in reality represent any service done for the parishioners, and though they amounted to only about 18 s. on a parish, the work in connection with which they wore supposed to be paid could be done without them. No doubt, in many cases, from mere habit, the ecclesiastical officers having persuaded the churchwardens that they were still payable, they had continued to be paid; but from a printed Return it appeared that the number of parishes in which they could be levied was falling off, and that in the first year after the abolition of church rates, out of a sum of £298 due from parishes, only £106 had been received. This, too, was when churchwardens were not fully awake to their altered position. If any person imagined that churchwardens in country parishes would go on paying visitation fees out of their own pockets to ecclesiastical officers for services which were not, in fact, performed, that person had a different idea of a British farmer from any that he (the Marquess of Salisbury) had been able to acquire. Next there was a sum of between £3,000 and £4,000 to be derived from consecration fees. Now, the only one who really did any service on the occasion of a consecration was the Bishop, and if the money paid went into the Bishop's pocket he would not object; but of the £13 or £14 paid in fees, none went to the Bishop—it went to the chancellor of the diocese who did nothing, and the secretary and registrar and apparitor who did nothing likewise. Consecration fees were paid when a church was restored or a churchyard increased in size. He believed that the duty of the apparitor was to walk before the Bishop and hold a mace, and that this dignified official was generally the Bishop's valet. Now, he did not
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  think it likely that money paid for carrying a mace and for other work of that kind, which was in no degree necessary, was likely to be paid when the individuals to whom nominally it was to be paid had no interest in recovering it, and those functionaries would have none when they were paid by salary. How, then, were those fees to be recovered? The Bill provided that they were to be recovered by proceedings in the County Courts. But who was to pay the expenses of recovering them; who was to issue the plaint in each case? The chancellors, secretaries, registrars, and apparitors were interested in those fees, now that they went into their pockets; but if any person expected that they would enter into a course of expensive litigation to recover them, when they did not go into their pockets, that person's estimate of human nature was again different from any that he had been able to form. He had been assured that the duties of one diocesan chancellor had already become so disagreeable to him that he had determined to give up going with visitations and always meeting with indignant churchwardens asking—"Out of what fund are we to pay you?" He had been further informed that the Bishop of Worcester, feeling the hardship of his valet making a charge, was going to dispense with the services of an apparitor, and to leave the mace out. In Manchester they wore not charged; and in Oxford and other dioceses they were frequently remitted. He did not hesitate to say that the £10,000 for visitations and the £3,000 or £4,000 for consecrations were not to be relied on. He now came to a sum of £10,000 raised by fees levied on the clergy. If this Bill passed, the clergy were to be asked to pay a Judge and furnish the machinery of a Court to punish themselves. He remembered that at Eton the boys were charged for the birch-rods to be used in chastizing themselves; but he thought a curate would hardly like to pay on his induction, fees necessary for the payment of a Judge to punish a clergyman in another diocese, and necessary for the maintenance of Ecclesiastical Courts whose machinery and proceedings he equally abhorred. If these fees were taken away, he feared the total amount to be received would not, at best, amount to more than £18,000, or, perhaps, not more than £11,000 or £12,000. It really

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  came to this, then—that they must fall back on the marriage fees. Now, marriage fees were doomed. A Royal Commission which reported two years ago, but whose Report had not yet been acted upon, made this statement in their Report—
  "It would be, in our opinion, highly desirable that the exaction of fees and compulsory payments of every kind for the celebration of marriage or the fulfilment of any preliminary prescribed by statute should be abolished."
  If people chose they could be married by banns or by the registrar, so that the ecclesiastical fashion in respect of marriage fees was pretty sure to be changed, when it stood condemned by a Commission on which were some of the greatest lawyers and statesmen of the day. Such was the financial foundation of his noble Friend's Bill—marriage fees and ecclesiastical fees which were founded upon ancient practice and upon obsolete demands, which were paid grudgingly at the present day, and which it was almost certain must diminish year by year, and ultimately disappear. In that House they sometimes gave themselves airs on the superiority of the manner in which their Bills were prepared; but he thought they must be prepared for some amount of ridicule, if they sent to the House of Commons a Bill based on this sandy foundation.
  THE EARL OF SHAFTESBURYsaid, he did not deny the right of the noble Marquess to raise the financial question on the Report of the Amendments; but, bearing in mind that the Second Reading and Committee had been taken without any such question having been raised, he thought he had some ground of complaint that his noble Friend had not given him Notice of his intention to open it up on this stage of the Bill. He did not gather from the noble Marquess that he meant to move anything on the subject, or to ask their Lordships to reject the Bill; but, in the way of reply, he (the Earl of Shaftesbury) must express his opinion that all the arguments of his noble Friend were equally good against the system of fees as they now stood. All that the Bill proposed was a better distribution of the fees; that, instead of going in payment of sinecures, they should be paid for actual business. The fees would be derived from the same source, would be exacted in the same manner, and exposed to the same
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  hazard, as under the present system. The noble Marquess said the clergy would not like to pay their portion of the fees when they were to go for the salary of a Judge; but so far as he had heard the clergy would rejoice in the extinction of the present system, and cheerfully accept the establishment of a Court for the cheap and easy trial of ecclesiastical causes. He denied that he depended on marriage licences for the fees necessary in order to work this Bill; but as the noble Marquess had quoted a recommendation of the Commission, he (the Earl of Shaftesbury) must remind him the Commission had expressed an opinion that if the fees on marriage licences could be appropriated to a good purpose they ought to be retained. The gross amount of all the fees applicable to the payment of the charges created by this Bill was £71,794. He would strike out the marriage fees, which amounted to £40,000 a-year, exclusive of stamps, and there remained a sum of £32,600 or £32,700, which he desired to use. The noble Marquess thought those fees were very uncertain as to amount and duration; but they were raised under Acts of Parliament, and they would continue to be raised so long as it might be thought advisable. The statement he had put before the House was, that there would be fees to the amount of £32,165, available for the purposes of this Bill. That statement was approved by the most rev. Primate, and, he believed, by the Episcopal Bench generally; and other persons of experience to whom he had submitted it admitted that the calculation was reasonable. The total payments under his Bill would amount to £31,800, so that there would be a surplus of £355. No doubt, an additional sum would be required in the first instance to put the Act in motion; and some little time must be allowed for the Act to come into full operation, during which time many sinecures would fall in; but his Grace the Archbishop of Canterbury had consented to waive all claim to a sum of £2,500, which would fall in in June next, so that by that means the first salaries under the Act would be met; and after a time a considerable sum of money would be saved, which would more than pay the amount of the salaries. If the fees were to go in the maintenance of sinecure offices, 25 chancellors would receive £9,000 a year for doing little or

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  nothing, and the feeling of resentment against the fees would rise to such a height that they would be extinguished altogether. On the other hand, if the evil were remedied in time he believed they would be cheerfully submitted to. He hoped that the present system would be carried on under a great reduction of expenditure.
  THE BISHOP OF LONDONstated some objections to the provisions of the Bill, one being that while all suits were to be commenced in the provincial or diocesan Courts, no provision was made for putting these Courts in motion. He also pointed out that in consequence of the Ecclesiastical Procedure Bill having been thrown out on the Amendment of the Bishop of Peterborough, great difficulty as to the institution of proceedings would be experienced, if some Amendment to settle that matter were not introduced in the Bill now before their Lordships. Should this Bill be passed, it would be difficult to say whether procedure was to be under the Clergy Discipline Act or under this Act.
  LORD CAIRNSsaid, that two questions of great importance had been raised, and he thought their Lordships would desire more express information in answer to those questions. First, in reference to what had been said by the right rev. Prelate, he had taken the liberty of pointing out in Committee, that the last clause but one in this Bill repealed the Clergy Discipline Act, and they were landed back on the state of things which had existed before the passing of that Act. He did not know whether their Lordships desired that to be one of the results of this Bill; but it was a very serious matter, and he doubted whether the country was prepared for it. Did his noble Friend who had charge of this Bill see what the consequences would be? He believed that before the Clergy Discipline Act was passed, the state of the law was generally understood to be this—that the "Office of Judge," as it was called—that was, the Bishop, might be put in motion by anyone who came before him, and gave the necessary security for costs. He (Lord Cairns) did not say that was really the state of the law, but that was what was generally understood to be the state of the law. Well, then, if this Bill were passed, and the Clergy Discipline Act were repealed, we were landed back on the old state of the
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  law, and every Bishop would be liable to be put in motion, whether he liked it or not by any person, whether a parishioner or an inhabitant of the diocese, or a person outside both. That was a serious consequence. Speaking frankly, he deeply regretted the decision arrived at by their Lordships on the Procedure Bill proposed by the noble Earl (the Earl of Shaftesbury). He believed that that Bill would have been conducive to the results they all desired to arrive at—although, at the same time, he thought that had the Bill been read a second time, some alterations would have had to be made in Committee. He thought it would have been better to give the power of calling on the Bishops to institute proceedings not to three householders in the diocese, but to three householders of the parish. Then there should have been a careful provision as to security for costs; and it might have been well in questions of false doctrine, to have given the Archbishop a voice as to whether there was evidence to support the charge. The second was as to finance. Certainly, when a similar Bill was in Committee, the question of finance was raised. He concurred with his noble Friend (the Marquess of Salisbury) in thinking the financial basis of the Bill unsound. As to what the noble Earl had said of a Commission having recommended the retention of marriage fees, if they could be appropriated to good purposes, he could only say that was not the view of the last Commission—the one on which he had served, and the Report of which had been referred to by the noble Marquess. That Commission was entirely of opinion that those fees should not be maintained on their present scale, and that they ought to be reduced to the lowest possible figure. However, he understood that the noble Earl did not intend to rely upon them, and, therefore, he should apply himself to the other fees. The working of this Bill would require £32,000 a-year, and a like sum would be required for getting the Bill to work. The first observation he had to make was, that this put an end to all idea that anything in the Bill would lead to a reduction of those fees which were irksome to those who paid them. His noble and learned Friend (Lord Westbury), on a former occasion, entertained a different opinion, because he said the Bill would inevitably lead to a

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  reduction of the visitation and other fees. It must now, however, be distinctly understood that that was not the case. The object of the Bill was not to remove fees, but to keep them at their present amount. But the argument of the noble Marquess was this—that under a new system they would be unable to maintain them, because they were going to abolish personal interest in their collection. The persons who now received them would be paid by salaries and not by fees after the passing of the Bill—who, then, was to go to the expense of getting in a few shillings? And yet it was on the aggregate of these small sums they were to depend for the salaries to be paid under this Bill? They must remember this was a case in which there was no surplus. The Budget was one in which the Ways and Means nearly squared with the Estimate. If their Lordships reflected on these facts, they would see that the money necessary to support the system would not be forthcoming.
  THE ARCHBISHOP OF CANTERBURYsaid, he did not think that sufficient attention had been paid to the difficulty which existed at the present moment with regard to the system of the Ecclesiastical Courts; but if the view of the noble and learned Lord was correct the system stood at present on no foundation at all. He thought that perhaps the noble and learned Lord who had first spoken overlooked the provision in the Bill by which the fees would all be hereafter paid in stamps, the result of which would be that the fees must be paid before a consecration or other ceremony took place. Again, a revised system of fees might make the payment more agreeable to those who had to pay them. He did not think the noble Marquess was correct in saying that the apparitor was generally the Bishop's valet. The apparitor had certain duties to perform in all Courts, and for those duties he was paid. In a Court there must be some one to keep order, and to remove anyone who was disorderly. The apparitors must, therefore, be considered as officers of the Court, and not as functionaries maintained to contribute to the personal aggrandizement of the Bishop. The diocesan chancellor was the person who examined into title and looked to the proper execution of deeds. It was for such duties he was paid, and not for
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  taking part in ceremonies. He believed that if ordinary lawyers were employed to do what was done by those functionaries, their bills would be much larger than the fees paid to the ecclesiastical officers. He was of opinion that the financial portion of the Bill was not so defective as the noble Marquess and the noble and learned Lord seemed to think. First, there might be a proper arrangement of fees, by which they would be more willingly paid; in the second place, the fees would be collected by stamps; and, thirdly, the objections raised to the proposed system applied with equal force against that which now existed. No doubt their Lordships desired that the whole working of the Ecclesiastical Courts should not collapse. The difficulty as to the institution of proceedings existed only in the imagination of those who, having rejected the Procedure Bill of the noble Earl, fell into a trap of their own contrivance. The able and humorous speech of his right rev. Brother of Peterborough carried their Lordships away; and no one would listen to himself when he told them that the Bill which they were about to reject was one which, instead of opening the door to prosecutions, imposed conditions on prosecutions being instituted, by making it necessary that three should unite in doing what formerly might have been done by only one. A Bishop at present held a very anomalous position, having to act both as Judge and prosecutor. As the noble Earl (the Earl of Shaftesbury) was content to leave the right of proceeding to the laity in the same way as the matter stood before the passing of the Church Discipline Act, he was not called upon to move any Amendment.
  EARL BEAUCHAMPsaid, he rose to record his protest against it being presumed that those who had objected to the Ecclesiastical Procedure Bill would be responsible for the state of things that would ensue if this measure became law. Those who had objected to that Bill would be quite content to leave the law as it now stood, and could, therefore, consistently ask their Lordships to refuse their assent to the very hasty scheme they were now asked to agree to.
  On Question? agreed to; Amendments reported accordingly.
  Several Amendments made.
  Clause 17 (Judge to be an Ecclesiastical Commissioner, and if a Privy Councillor to be a Member of the Judicial Committee).
  THE MARQUESS OF SALISBURY THE MARQUESS OF SALISBURY moved to omit the following words from the end of the clause:—
  "And when required, such Judge shall, if a member of Her Majesty's Most Honourable Privy Council, act as a member of the Judicial Committee, except on appeals from the judgments or orders of the Provincial Courts of Canterbury and York."
  The effect of the Amendment would be to provide an additional Member for the Judicial Committee of the Privy Council, and do civil work for India, the Colonies, and the Admiralty. The new Judge would cost nothing; but he thought the salary—which would not exceed £3,000—ought to be paid by the State—it was unjust to take the money of the Church to pay for legal work of that kind. He thought it very unwise to seek a "cheap" mode of administering justice. They had examples of the system of cheap Judges in a country speaking the same language with ourselves, and the opinion of civilized communities was that they had not answered; and he thought that, judging by a recent event, it had proved not altogether advisable to provide "cheap" Judges for the Privy Council.
  After a few words from the Earl of SHAFTESBURY,
  Amendment agreed to; words struck out.
  Clauses 36, 37, 38, and 39 (which provide that clerks convicted of felony or misdemeanour in a temporal court may be suspended or deprived of ecclesiastical preferment).
  THE EARL OF SHAFTESBURY THE EARL OF SHAFTESBURY moved to omit these clauses, for the purpose of inserting others in the form sent down by the Select Committee. The noble Earl said that in doing so, he wished it to be understood that he was acting Ministerially.
  Motion agreed to; Clauses struck out, and other clauses inserted in lieu thereof.
  Clause 68 (Bishop's registers more than fifty years old to be transferred to the custody of the Master of the Rolls).
  THE ARCHBISHOP OF CANTERBURYhoped that the records at Lambeth Palace would be excepted. They were properly cared for in the Palace Library.
  LORD ROMILLYsaid, he had no objection to the proposed exception. He would draw up a clause which he would submit to the most rev. Prelate, to be inserted on the third reading.
  THE BISHOP OF LICHFIELDasked that the records at Lichfield also be excepted.
  THE LORD CHANCELLORbelieved it was most desirable that some steps should be taken for the better preservation of the Bishops' registers, but he could not agree with the course proposed by the clause.
  LORD ROMILLYexplained that his object in promoting the clause was to get together in a convenient and accessible place the Bishops' registers, in order that any one might pursue that species of inquiry which his noble and learned Friend had admitted was a very useful one. He must, therefore, press the clause to a division.
  After short further discussion,
  LORD ROMILLYsaid he was willing to withdraw the clause, and offer it in a more satisfactory form on the third reading.
  Clause struck out.
  Clause 69 (Parochial registers upwards of twenty years old to be transferred to the custody of the Master of the Rolls).
  THE DUKE OF RICHMONDsaid, he wished to see the clause expunged. He regretted that it had escaped his notice at an earlier stage. Since the second reading of the Bill he had received communications from clergymen in all parts of the country expressing their disapproval of its provisions. The Bill set forth that at the present moment the registers of births, deaths, and marriages, in the various parishes were "difficult of access and inconvenient for consultation." This might or might not be the fact; but, in any case, if the documents were difficult of access and inconvenient for consultation while they remained in the parish where lived the great majority of the people who would over wish to consult them, the inconvenience would be increased by their removal from, say, Yorkshire, Sussex, or Northumberland, to London. In the interest of the labouring classes, therefore, he opposed the proposal to send these registers to London. The clause made it by no means clear what was in-

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  tended to be sent to London for preservation. It stated that "the registers" should be sent; but these consisted of entries made in books, and there was no reference to the transmission of the books themselves. This was a small objection, no doubt, as compared with the larger one that inconvenience would be imposed upon persons who could ill afford it.
  LORD ROMILLYthought that if the Bill provided that no registers should be sent up until they were 50 years old the inconvenience to which the noble Duke referred would not arise, or, at any rate, would arise very seldom. In 1597 Queen Elizabeth decreed that each year's parochial registers should be transmitted by the clergy of the various dioceses to their Bishops; but as this was not properly done, though frequently ordered, it was enacted in 1812 that copies on parchment of the entries should be made and sent to the diocesan registry. For a few years this was done; but as there was no power to enforce compliance with the enactment it soon fell into disuse, and he knew cases where for many years no copies were sent. During the last two years he believed the enactment had not been complied with at all anywhere. Further, the present mode of keeping the registers afforded facilities for their falsification and mutilation, which might be attended with very serious consequences as far as the preservation of the rights of property was concerned.
  Clause struck out.
  EARL BEAUCHAMP EARL BEAUCHAMP moved to insert clauses providing that suits against Bishops for offences against the laws ecclesiastical shall be instituted in the Metropolitan's Court of Audience, either by the Bishop of his own motion, or by twenty-one members of the Church, being inhabitant householders within the diocese. The suits against Bishops to be conducted in like manner as the proceedings in the provincial courts against clerks.
  THE BISHOP OF LICHFIELDapproved the principle of the clauses.
  THE ARCHBISHOP OF CANTERBURYdid not think the present state of things would be improved by the adoption of these clauses. There were two Courts of the Archbishop as Metropolitan—namely, the Court of Arches and the Court of Audience, and the Archbishop had in old times the power of bringing a case within
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  his own jurisdiction by removing it from the former to the latter Court. Few people knew what the Court of Audience was in former times, and at the present day it was, he believed, practically nonexistent.
  THE LORD CHANCELLORsuggested that it was not desirable to revive an antiquated piece of machinery in order to tack new machinery to it.
  EARL BEAUCHAMPwithdrew the clauses.
  Clause 117 (Repeal of 3 & 4 Vict., c. 86, with the exception of s. 16).
  THE EARL OF SHAFTESBURYsaid, he did not care whether the clause were retained or not, so confident was he of the sufficiency of the common law for the object in view.
  THE MARQUESS OF SALISBURYsaid, under those circumstances, he would move that the clause be struck out.
  THE BISHOP OF LONDONpointed out the consequences involved in omitting the clause, and leaving the Church Discipline Act in force.
  THE LORD CHANCELLORwas understood to call attention to the inconsistency involved in leaving the Church Discipline Act in operation and passing, as it stood, Clause 32 of this Bill, which says that no jurisdiction shall be exercised with respect to the correction of clerks in Holy Orders except by the Courts and by the persons mentioned in the Bill.
  After further conversation,
  Amendment agreed to.
  Clause struck out.
  Bill to be read 3a on Thursday next; and to be printed as amended. (No. 50.)
  House adjourned at Eight o'clock, till to-morrow, half past Ten o'clock.