Lords Sitting of 2 March 1876

MINUTES.
PUBLIC BILL—Second Beading—Referred to Select Committee—Ecclesiastical Offices and Fees (3).
ECCLESIASTICAL OFFICES AND FEES BILL.—(No. 3.)
(The Lord Chancellor.)

SECOND READING.
Order of the Day for the Second Beading, read.
THE ARCHBISHOP OF CANTERBURY, in moving that the Bill be now read the second time, said, their Lordships would remember that last year he introduced a Bill which dealt with a portion of the difficult question of Ecclesiastical Fees. It provided that all persons hereafter appointed to any of the offices treated of in this Bill should hold the same subject to such regulations as to fees as might hereafter be made by Parliament and should make the returns to the Treasury of the amounts they received. While the Bill was under discussion the noble and learned Lord upon the Woolsack declared that he concurred in a hope expressed by the right rev. Prelate the Bishop of Carlisle that that small Bill might be regarded as a solemn pledge that the whole question of fees would be dealt with without delay; and he (the Archbishop of Canterbury) also expressed his concurrence in that view. In 1872 a Bill, of which the noble Earl (the Earl of Shaftesbury) took charge dealing with the whole question, was carried through this House, but did not make progress in the House of Commons; and that measure was in succession to Bills, having the same object, introduced in 1870 and 1871, one of which was the product of the labours of a Select Committee of their Lordships' House. Their Lordships would therefore see that the question was not a new one, that it had been very thoroughly considered, and that there was great difficulty in passing any measure with regard to it. It would give some idea of the difficulty and complication of the question with which they had to deal when he stated that as he was informed there were more than 100 Acts of Parliament relating to ecclesiastical offices, and that
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about 60 of them were still in full force. The present measure, so far as it dealt with ecclesiastical offices and fees, was as much as possible a reproduction of the well-considered Bills introduced in the previous Sessions by the noble Earl (the Earl of Shaftesbury), to whom all who took an interest in the question of ecclesiastical fees were so much indebted. But first their Lordships must consider for a moment whether it was wise or necessary to press any measure upon the Legislature on this subject. It was an opinion not uncommonly held by those who had not looked into the matter that the whole of the offices to which this Bill referred were sinecures, that the duties performed by the persons who held them were of no use to anybody, and that the sooner the whole system fell to pieces the better. But he thought that those who had examined the question would be of opinion that the offices proposed to be preserved in this Bill were necessary for the welfare of the Church and the community, and that in seeking to regulate and to diminish the number of these offices he was undertaking to make really effective an important part of the machinery of the Church. He need hardly point out that when a young man was ordained to the ministry of the Established Church he acquired certain civil privileges; and consequently some registration of the act of ordination was indispensable in order that his civil rights might be secured. Again, when a building was set apart for the services of the Church and the celebration of marriages, civil consequences resulted from the ecclesiastical acts performed which made a careful registration absolutely essential. Again, inconvenience would of course arise if the clergy were under no discipline, and unless there were means of inspecting the mode in which their duties were discharged, or of punishing any offence which they might commit in derogation of their sacred character. The act of visitation, therefore, was of a judicial nature, and the proceedings accompanying it must of course be registered; and therefore certain officers, who were not distinctly ecclesiastics and yet had to do with these ecclesiastical matters, had been called into existence. Institutions, collations, and inductions of the clergy into their offices were all matters involving important civil consequences, and

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certain officers were necessarily required to see that these various acts were duly and properly performed, and that a register of what had taken place was properly kept, in case future civil action arose with reference to them. As he had said, a great number of officers had sprung into existence whose duty it was to watch these various judicial processes. But he was not prepared to say that the number of such officers was not excessive, and it was one of the objects of this Bill to unite different offices in the same person, and thereby diminish the number. He, as Archbishop of Canterbury, had the honour of commanding the services of a Dean of the Arches, a Master of the Faculties, a Registrar of the Court of Arches, a Registrar of the Court of the Faculties, a Vicar General, a Registrar of the Vicar General's Office, a Chancellor of the Diocese of Canterbury, and a Registrar and a Deputy Registrar of the Diocese, besides a Secretary and Apparitors. As it would be absurd to suppose that the duties of these persons were so onerous that they could not be united this Bill proposed to reduce the staff. Officers of the like character, though not quite so numerous, existed in every diocese; and in addition there were the Archidiaconal officers; for, though the Archdeacon's Courts had been abolished, officers of those Courts still existed. The fact was, that the existing machinery was partly the remnant of an old system altered by legislation; but, as a matter of fact, two or three persons in each diocese might perform the whole of the work for which a large staff was now maintained. Up to 1857 the Dean of the Court of Arches had to do with not only the ecclesiastical business of the Province of Canterbury, but with the whole of the marriage law as it then existed in that Province; and the Dean presiding over the Prerogative Court had to do with testamentary affairs. But in 1857 a change took place—testamentary and matrimonial causes were withdrawn from the Archbishop's Court, which was consequently left in a somewhat ruinous condition. When a new Court of Probate and Divorce was established, the late Lord Cranworth, who was at that time Lord Chancellor, was asked how the Judge of the Arches Court was to be remunerated in future for the work which he was to be called upon to discharge—the amount he received as
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Judge of that Court being about £15. From 1857 till this year the difficulty was overcome by the Archbishop of Canterbury asking the Judge of Admiralty to undertake the duties of the Arches Court. Thanks were due to the learned Judges who complied with that request; but delays naturally arose in the discharge of the business of the Arches Court, which ought to be completed with as much despatch as possible. The delays arose from no want of diligence on the part of the learned Judges—they were inevitable under the arrangement existing at the time. Under the new Judicature Act it became no longer possible for the Judge of the Admiralty Court to hold an ecclesiastical office. The question therefore arose, how, under existing conditions, the Judge of the Court of Arches was to be remunerated? It was indispensable that a conclusion should be arrived at on that point. Last July a noble and learned Lord—who was not now present (Lord Penzance)—undertook the duties of the Judge of the Arches Court, and in the present Bill it was proposed that a system should be established whereby proper remuneration should be given to the holder of the office now filled by that noble and learned Lord. The amount of that remuneration was left open in the Bill; and the same course was adopted with regard to the remuneration of several other officers. Before settling the question of remuneration, care should be taken to secure, so far as the regulations of Parliament could effect it, that all persons to be appointed were perfectly fitted to discharge their duties. It was accordingly proposed that all persons who held the office of registrar or any other office dealt with by the Bill should discharge the duties of their office in person, and that the registrars as well as the chancellors should have certain legal qualifications—such as should give security to the country that they were fitted for the discharge of their duties. The time, perhaps, was past when there could be any very serious abuse in that way; but still it was a fact that not very long ago the office of registrar was held in one diocese by a gentleman who was a missionary of the Free Church of Scotland, and who, he (the Archbishop of Canterbury) supposed, had been in the enjoyment of the post since the time he was in his cradle. Again, it was not so

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very long ago when a noble and learned Lord, while speaking vigorously in their Lordships' House against the present system, was reminded by a right rev. Prelate who interrupted him that he himself was a registrar. The noble and learned Lord was so surprised that he could scarcely continue his argument. There had been a great deal of difficulty in obtaining a statement of the amount of fees which were at present collected by the various ecclesiastical officers; but a very moderate computation made them amount altogether to £46,000. Of these marriage licences produced about £18,000; general fees to Bishops' officers, £21,000; and, so far as he could ascertain, the fees paid to archdeacons and their officers, £7,000. That he believed to be the lowest and most moderate calculation. Looking carefully into the matter, it would appear that by giving effect to the provisions of the Bill, and assigning fair salaries to the several officers employed, a saving of about £10,000 a-year might be effected. It might be hoped, therefore, that when the system which this Bill would establish was brought into working order, there might be brought about a diminution in the fees now paid by the clergy and others. Some of the fees were unpalatable in themselves, and others were unpalatable by reason of the mode in which they were collected. Visitation fees—which he thought were not immoderate in amount—were extremely irritating for the second of those reasons. But in some cases almost as heavy a fee had to be paid on giving up an office as on being appointed. It need scarcely be said that such a fee was unpalatable. It was now proposed that all ecclesiastical fees should be paid over to the Ecclesiastical Commissioners; but to provide against any encroachment on the Common Fund of that Commission, it would be enacted that in respect of those fees, the Ecclesiastical Commissioners should not pay out more than they received. There was an apparent exception to this in the provision for the payment of £200 to be paid to archdeacons; but they were entitled to this sum under an existing Act of Parliament, though they had not yet received it in full. To sum up, offices were to be united; the number of officers was to be diminished; legal qualifications were to be insisted on before any person could be appointed to office; the officers were to dis-
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charge their duties in person; hereafter all ecclesiastical fees, the subject of the Bill, were to be paid into a General Fund and distributed in the way of salaries. It was desirable that the civil machinery of the Established Church should be such as to command respect. It was not desirable to try and prop up a system which was tottering to its fall—they ought rather to put their house in order, and make due provision for the proper discharge of duties which were essential to the maintenance and the welfare of the Church. He anticipated that there would be no violent or very manifest opposition to the Bill; but there would be a steady, he might say stolid determination on the part of some persons that it should share the fate of other attempts in the same direction. The great danger to the measure lay in the fact that sufficient interest would not be manifested in its favour, and that the views of those who feared that it affected vested interests would prevail. This fear was not well founded, because the greatest care had been taken to preserve vested interests. The majority of the ecclesiastical officers now living were valuable servants of the Church, and to them the country was greatly indebted for the zealous discharge of their duties, and they had no reason to fear any injustice from the right rev. Bench. He would earnestly commend the Bill to the consideration of their Lordships, and trusted that they would now give it the second reading.
Moved "That the Bill be now read 2a."—(The Archbishop of Canterbury.)
THE EARL OF SHAFTESBURYconsidered the Bill as one of great importance to the interests of the Church, and the thanks of their Lordships were due to the most rev. Prelate for its introduction. The measure would abolish many sinecure offices, and consolidate many more. But it would be necessary to amend the Bill in Committee. As to that part of the Bill which dealt with fees, he did not know whether the House of Commons would agree to the payment of fees by stamps; but he, for one, thought that would be an improvement. Great changes had of late years been effected by legislation in our ecclesiastical system, and it was desirable that the Chancellor and other high officers of the dioceses should be barristers of good

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standing, and that the registrars should do their duty in person, and not by deputy. The most rev. Prelate had calculated the fees at only £46,000 a-year; but he (the Earl of Shaftesbury) thought the amount would be much larger—he thought it would be found they would realize £71,000—that was the amount at which it was estimated in 1871. He objected strongly to the 42nd clause as containing a principle which he felt sure their Lordships would never approve. That clause was as follows:—
"From and after the commencement of this Act no churchwarden shall he admitted to office unless he produce a certificate of his appointment, signed by the chairman of the vestry at which such churchwarden was appointed. Such certificate shall he made on a printed form, bearing a stamp of the value of five shillings, supplied by the registrar of the diocese at the expense of the church warden. Such churchwarden shall be entitled to be repaid the cost of such stamp from any funds applicable to the maintenance and repair of the parish church of the parish of which he is churchwarden, or to the expenses of conducting Divine service in such church. Whore more than one churchwarden is appointed at any vestry the certificates of such appointment may be made on one form without any additional stamp. Nothing contained in this section shall be construed to exempt any churchwarden from any duty which may now be imposed upon him to attend visitations and to be admitted to office and to make presentments and answers to articles of inquiry thereat; but no fee shall be paid at such visitation by any churchwarden. The expression 'churchwarden' in this section shall be construed to include 'sidesman.' "
He thought that subjecting the churchwardens by Act of Parliament to a fee of 5s. was in itself objectionable; but nothing could be more objectionable than giving churchwardens the power of repaying themselves out of funds applicable to the maintenance and repair of the parish church, or to the expenses of conducting Divine service. Such a power would dry up all voluntary sources of supply. In his opinion, now that the Diocesan Courts were practically abolished, the whole of the ecclesiastical fees ought to be thoroughly revised, and not dealt with in the piecemeal manner proposed by this Bill. They pressed with great heaviness on the parochial clergy, and, as far as they were concerned, he thought that the greater part of them ought to be abolished altogether.
THE ARCHBISHOP OF YORKpointed out that the Diocesan Courts were by no means practically abolished—on the
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contrary, their efficiency, he hoped, would be greatly increased by recent legislation. It was true that one class of cases were taken from those Courts, but two large and important classes were left to them. With regard to the discrepancy in the aggregate value of the fees as estimated by the most rev. Prelate and by the noble Earl, it should be remembered that the estimate of £46,000 excluded the fees of the Archdeacons, £3,600, and those of the Surrogates, £6,800, which would bring the gross total of the most rev. Prelate up to £56,000. In many departments there would be a saving of from 40 to 50 per cent in the fees to be paid.
THE EARL OF POWISobjected to the measure as one which had a tendency to destroy the independence of the several Dioceses, by sweeping away all the fees into one fund, to be administered in an almost irresponsible manner. The Bill was really neither more nor less than a Bill to provide a salary for the new Ecclesiastical Judge under the Public Worship Regulation Act. The question was, whether this money could not be raised without this Bill, which would disturb all the present arrangements for collecting and paying ecclesiastical foes throughout the country. He thought the payment by stamps would only augment the confusion.
VISCOUNT HALIFAXalso objected to the 42nd clause. At present, in the case of many parishes the fees for the admission of Churchwardens was nor paid. The Churchwardens had no legal right to recover the amount from a voluntary church rate. In other churches, the funds for the proper maintenance of the services were derived from the offertory; but if people found that their offerings were to be applied to the payment of these fees to a general fund the offerings would probably be much reduced.
THE LORD CHANCELLORsaid, he did not intend to offer any objection to the second reading of the Bill. His noble Friend (the Earl of Powis) had stigmatized the Bill as a measure intended to provide the salary for the Judge under the Public Worship Regulation Act; but, so far from that being the fact, there had been several Bills with similar objects brought into their Lordships' House before the Public Worship Regulation Act was even proposed. He would not go into the ques-

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tion whether or not the Bill went far enough as to the reduction of fees, but the measure comprised a great many-details with regard to the amalgamation of various offices which would require very careful consideration. The collection of fees by means of stamps was proposed in some of the former Bills; but it was held to be very questionable whether they could be conveniently and satisfactorily collected in that way. Having regard to the complicated nature of many of the details he would suggest to the most rev. Prelates that their Bill would have a better chance of progressing if it were referred to a Select Committee than if it were dealt with in Committee of the Whole House. If that course were adopted, Her Majesty's Government would render the most rev. Prelates all the assistance in their power.
LORD DYNEVORthought the Bill did not go far enough in the regulation of fees, for there were many ecclesiastical fees which the Bill did not touch. He also objected strongly to the 42nd clause; and thought that, as the office of churchwardens was not a pleasant one and had no emolument whatever attached to it, no new burden should be put upon them.
THE ARCHBISHOP OF CANTERBURTsaid, he would adopt the suggestion thrown out by the noble and learned Lord on the Woolsack that the Bill should be referred to a Select Committee. He wished to point out that the measure did not propose to lay any fresh burden upon churchwardens. Those officers were at present called upon to pay fees varying from 18 s. downwards, and it was proposed to reduce the fees to an uniform 5s. all over the country. With reference to the remarks of the noble Earl (the Earl of Powis) on the subject of the transfer to the Ecclesiastical Commissioners of official buildings belonging to registries, those buildings in which the work of the registry was conducted were expressly excepted from the Bill, and therefore they would not pass into the hands of the Commissioners. All the suggestions that had been made would receive the most careful attention when the measure was before the Select Committee.
Motion agreed to; Bill read 2a accordingly, and referred to a Select Committee.
And, on March 7, the Lords following were named of the Committee:—

L. Abp. Canterbury.

V. Halifax.

Ld. Chancellor.

V. Cardwell.

M. Salisbury.

L. Bp. Gloucester and Bristol.

Ld. Steward.

E. Shaftesbury.

L. Bp. Ely.

E. Stanhope.

L. Strafford.

E. Powis.

L. Hatherley.

E. Nelson.

L. Winmarleigh.

APPEALS—STANDING ORDER.

  RESOLUTION.
  LORD REDESDALEsaid, that his object in proposing the Resolution of which he had given Notice, of a new Standing Order with regard to the number of Law Lords sitting to hear appeals in their Lordships' House was this—that the Bill relating to the Appellate Jurisdiction of the House, which had been introduced by the noble and learned Lord on the Woolsack, contained a similar provision fixing the minimum number of Law Lords who were to sit and determine appeals. Under these circumstances, it was desirable that the House, which had ample power to do so, should of its own act do that which the statutable enactment would require to be done. He humbly conceived that whatever was required to be done could be done by their Lordships themselves without any legislation, and in the manner provided by this Resolution. The object of the provision was to meet the evil that had been dwelt upon very much, of a single Law Lord sitting with two lay Peers to hear and determine appeals. The Standing Order which he proposed would make no difference in the practice of the House. It would only provide that three noble Lords, qualified by their previous professional training, should sit on the hearing of appeals, and would not preclude any other noble Lords from attending at such hearings.
  Moved to resolve, That no Appeal or Cause in Error shall be heard and determined unless there he present at such hearing and determination not less than three Lords holding, or who have held, some of the following high judicial offices; that is to say, the office of Lord Chancellor of Great Britain or Ireland, or of Judge of one of the Superior Courts of Law or Equity in England, or of Her Majesty's High Court of Justice or Court of Appeal in England, or of the Court of Session in Scotland, or of the Superior Courts of Law or Equity in Ireland.—(The Lord Redesdale.)
  Ordered, That the said Resolution be declared a Standing Order, and that it be entered on the Roll of Standing Orders of this House.
  LORD DENMANsaid, he was entirely opposed to the Resolution of the noble Lord, the effect of which would be, that if only two Law Lords and a third Peer were present ready to make up a quorum, parties, and attornies and counsel, even if anxious to proceed, would be obliged to wait for the appearance of some Judge of Appeal whose qualifications were not yet finally settled.
  THE LORD CHANOELLORsaid, that he did not intend to raise any opposition to the Resolution of his noble Friend. On the contrary, the state of things which his noble Friend proposed to bring about by his Resolution was analogous to that WHICH would be produced under the Bill which had been lately introduced to their Lordships' notice. There was at present no danger of their not having the assistance of the requisite number of Judges, as so many of his noble and learned Friends were able and willing to give their attendance for disposing of the legal Business of the House; but he agreed that it was advisable that provision should be made for the attendance of not less than three official personages on the hearing of appeals.
  LORD HATHERLEYsaid, he would not oppose the Resolution, but wished to point out that the wording of the resolution was too narrow, as it would exclude a Judge of the eminence of the late Lord Kingsdown.
  EARL GRANVILLEwas afraid that such constant changes in the constitution of the appellate tribunal would by no means add to its dignity.
  On Question? resolved in the affirmative.
  Ordered, That the said Resolution be declared a Standing Order, and that it be entered on the Roll of Standing Orders of this House.
  House adjourned at a quarter before Seven o'clock, till To-morrow, halfpast Ten o'clock.