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noble and learned Lord who now presided in the Court of Chancery, and who was Speaker of that House, to observe that the bill to which he had referred, was passed when Sir T. More was Lord Chancellor. It was passed under the sanction and authority of that most virtuous man, who, though he yielded up his life rather than recede from his conscientious belief in the supremacy of the Pope, yet, on behalf of the King's subjects, opposed the idea that individuals whose cases might be investigated in the provinces, should be called on to answer in the court of the Archbishop of Canterbury. To the 10th and 11th clauses of the present bill, he felt the strongest objections. The 10th clause enacted, " that when all the several pleas in any such suit shall have been made up, and before any witnesses shall have been examined, but not afterwards, it shall be lawful for the bishop of the diocese to whose authority the defendant may be subject, or if he is subject to the authority of more than one bishop, for the archbishop of the province to enter a noli prosequi in such suit, provided the judge of the said court shall have made such bishop or archbishop a special report, that in his judgment the suit is frivolous or vexatious, or otherwise improper to be proceeded with." Now, the prosecutor might be Heaven knew whom; but the bishop, not being the prosecutor, having nothing to do with the matter as prosecutor, was called on by this clause, at the suggestion of a third party, to enter a noli prosequi. Now he would ask the noble and learned Lord on the woolsack, whether it was ever known that a noli prosequi was entered at the instance of a patty having nothing to do with the suit? The 11th clause enacted, "That when all the several pleas in any such suit shall have been made up, and before witnesses shall have been examined, or afterwards, it shall be lawful for the judge, on motion open court, on behalf either of the propter of the suit or of the bishop of the diocese, to whose authority the defendant may be subject, or, if he is subject to more than one bishop, on behalf of the archbishop of the province, to suspend the defendant from performing any spiritual offices during the pendency of such proceedings; and thereupon it shall be lawful bishop of the diocese within which ndant may be beneficed, licensed, 'e in the mean time
for the performing the duties of the cure, by sequestration or otherwise, as in the case of non-residence." This, he contended, was contrary to a principle of the canon law, both ancient and modern, which provided that the bishop himself should pronounce sentence in case of suspension or other penal visitation. He should unhesitatingly say, that in point of public policy a more unjust and inexpedient measure never had been presented to either House of Parliament. There was nothing that could more tend to dissolve the connexion between the bishop and his clergy, than to take out of the hands of the bishop jurisdiction over the conduct of the clergy of his own diocese. If the bill passed into a law, he should be obliged to send them to the metropolis for every offence of which they might stand accused. But, apart from considerations of this nature, the importance of which could hardly be overrated, he must call their attention to the fact, that the bill involved most important private interests, and involved them in a manner that gave impunity to guilt, and robbed innocence of its best protection. Could anything be so calculated to work injustice, as that an act of the Legislature should declare, that a man was not to be called to account for real or alleged misconduct in the country where he was best known. The man might live, or the offence might be com! mitted in Durham or in Cork, but the j legal proceedings must take place in j London. In accusations against the clergy, as against other individuals, but especially in cases affecting the clergy, it was of the utmost moment to know what sort of reputation the accused bore in his own immediate neighbourhood. Surely, it was there, that men could best judge of the probability of charges. If the clergy were deprived of the advantages which a local trial gave them, could anything be easier than for any malicious man, having a long purse, to terrify into submission any neighbouring curate, against whom he might think proper to prefer an accusation, for what country curate would attempt a defence in Doctors' Commons? Having said so much on the merits of the bill itself, he should trouble the House with a remark or two on the subject of authority. The noble Duke opposite, one of the greatest and best of reformers, when he was at the head of the Government in the reign of George 4th, had his attention directed to a case long pending in the ecclesiastical courts, and which by the conduct of one of the parties had been transferred from one court to another, until such a delay had taken place, and until such costs were incurred, that hardly any adjudication could lead to a just result. Thereupon the noble Duke issued a commission to inquire into the state of the law, and to report to the Sovereign thereon, suggesting such remedies as to the commissioners might seem most expedient and best calculated to remedy the evils to which he had directed their attention. That commission included the most reverend prelate then in the House, it included several of his right rev. Friends; amongst the commissioners was the noble and learned Lord opposite, and several of the most eminent judges of the land. They proceeded to the task which the noble Duke had assigned them with the greatest zeal and industry, and made such a report as was not often made. Those commissioners gave their opinion decidedly in favour of preserving to the bishop his ancient jurisdiction over the clergy of his diocese, although they thought he might delegate to his chancellor jurisdiction respecting disputed wills and other questions of that nature; the report distinctly stated the doctrine relative to the canon law in this particular, and this he found to be in exact accordance with the opinions which he had taken the liberty of stating to their Lordships on the subject of the present bill. The language which the commissioners used in their report was this:—"With respect to the tribunal which we recommend, we remark that it will restore to the bishops that personal jurisdiction which they originally exercised, and which was afterwards delegated by them to their chancellors and officials. The doctrine of the canon law is, that although the trial of causes of certain descriptions may be properly intrusted to a lay judge, to the bishop himself belongs inquisitio corrcctio punitio excessuum sen amotio a beneficio." Agreeably to this principle, the power of deprivation is reserved to the bishops in person, and the same principle seems to apply to the case of suspension, and to the infliction of any other censure which may affect a clergyman's spiritual functions. Their Ix>rdships, of course, would not overlook the fact, that the name of the framer of the present measure was included in the
commission. The noble and learned Lord who brought it io, might have acted as midwife; but the parent of the bill was one-of the commissioners. He begged the House to contrast the declarations of the report with the measure then on their table, which violated every recommendation of the commissioners. For example, the commissioners said, the bishop ought with the aid of an assessor, to hear and determine all matters relating to the conduct of the clergy. His right rev. Friend near him had said, that great advantages would accrue if the whole of the recommendations of the commissioners were attended to; surely, then, that right rev. Prelate must now vote against the bill. It was expected, that the report made at the instance of the noble Duke would, in 1834, have led to some measure; but, as their Lordships were aware, no such result ensued. The Session of 1834, was called "the do-little Session;" and certainly nothing in that year was done with reference to the measure in question. It was stated, however, by Sir John Campbell, in 1835, he not being then Attorney-general, that when he had filled that office, a bill in accordance with the recommendations of the commissioners had been prepared; but be and his Friends thought, that if brought in, there would, at that time, be no chance of its being carried. This led to the year 1835; and thus was he enabled to say, that his late Majesty's Ministers had expressed sentiments diametrically opposed to the present bill. In 1834, 1835, and 1836, successive Ministries declared in favour of adopting the recommendations of the commissioners. The most rev. Prelate near him, said, in reference to the measure introduced by the noble and learned Lord opposite, that the subject was one of extreme difficulty and importance. The most rev. Prelate called upon every Member of that House, lay and spiritual, to use their best endeavours for the purpose of making the bill as perfect as possible. There was not a whisper against the principle of the measure; it underwent some slight alterations in Committee, but the bill passed their Lordships' House unanimously. It was, however, not passed by them till the 2d of August, when there was no hope of its passing the Commons. In that hon. House, it was not even read a first time; and they did wisely and well on so short a notice not to take the bill into their consideration. The year 1837 was allowed to pass without any renewal of the bill, and now, at this late period of 1838, a totally different measure was laid on their table. A very learned personage, who had been a member of the commission, had told them in terms, that he thought the scheme agreed to in 1832, to be wholly impracticable. Now, this same learned personage had agreed to the report of the Committee in 1832, calling upon Parliament to agree to that very project which, in 1838, he declared that he had always thought calculated to increase the existing evil, and, in short, impracticable. That learned personage was now in the decline of life, and his opinion, which might have possessed much weight when he was six years younger, was, at present, of considerable less value in his (the Bishop of Exeter's) estimation. He could answer for it, that the report which was thus pronounced to be impracticable, had been carried into effect in his (the Bishop of Exeter's) diocese and elsewhere. It was true, that the bishops had been asked, whether this scheme was agreeable to them; but at the first meeting which had been held upon the subject he (the Bishop of Exeter) had arrived rather late, and he had been obliged to tell the meeting that, upon a matter of such grave importance, he could not make up his mind at once; but at the same time he did not shrink from fairly stating his belief that the measure would involve an extinction of the practical functions and authority of the bishops. He was unable to attend the next meeting; but he had been favoured with a copy of what he understood to have received the sanction of a majority of the bishops. No bill
forthwith to town directly after dinner, to oppose its further progress. It was a measure affecting the most important interests and essential functions of the clergy, on behalf of whom he earnestly appealed to their Lordships. The clergy of this country had not yet had an opportunity of knowing one fraction of the provisions of the bill. If it was a bill for the regulation of master chimney-sweepers, it would have been proceeded with in a more careful and patient spirit. Surely, it was not to be endured that such a bill should pass from their Lordships to the other House of Parliament, in the absence of many of those who would be the most likely to give it a careful consideration, to be dealt with by a summary process, and hurried indecently through the House. He, therefore, did not believe that their Lordships would grant a third reading to the bill, but that they would rather agree with him when he proposed, that it should be read a third time that day six months.
The Archbishop of Canterbury observed, that if hard words and insinuations could secure the fate of this bill, its doom might be considered as sealed. If, according to the right rev. Prelate's statement they had been influenced by a desire to devise a measure which would become destructive to the legitimate influence of the bishops as well as to Church discipline generally, they would have just fixed upon the present bill; and yet, according to the right rev. Prelate, the measure had emanated from individuals who were entitled to the highest respect. The right rev. Prelate had paid some compliments to him which he was aware, that he did not deserve. He had also alluded to the very eminent
was, however, at that period submitted; judge who presided over the court of and he had gone down to the country, not ] Admiralty, and he had indulged in inknowing that his brethren had assented sinuations, which he had heard with the to any measure of this description. Upon utmost concern, with respect to that his arrival at the place of his destination revered judge's faculties being impaired.
in the country, he found, among his Parliamentary papers, one which struck him with very considerable surprise—namely, the bill which was now upon their Lordships' table; a measure, which, so far from having, like other bills, been elaborated with any ordinary degree of care, had sprung forth a perfect Minerva from the head of the noble Lord, complete at its
Now, he could say from personal knowledge, that those insinuations were unfounded. But the attacks of the right rev. Prelate were not confined to that revered judge; but he had chosen to impute to the Lord Chancellor, that he did not act in this matter upon his own motion, but was prevailed upon by the representations of others to take charge of the bill. Now not been framed without consulting the entire bench of bishops, for no fewer than two preliminary meetings had taken place, which were numerously attended. Upon one of those occasions the right rev. Prelate had attended, and objected to the bill, hut certainly not in the terms of reprobation which he had chosen that night to employ, nor anything like those terms. There was, 'he believed, only one other Prelate who objected to the bill upon that occasion, and who did so simply on the ground, that he was satisfied with the working of his own court. He was requested by that body of bishops to carry the heads of the bill to the Lord Chancellor, as having received their approbation, and they being desirous, that it should be carried into effect. He did not imagine that their Lordships would be much influenced by the assertion of the right rev. Prelate as to the interference of this bill with the inherent rights of the Church. Most of the right rev. Prelate's observations upon this subject applied to a perfectly different state of things from the present, when the Church was an independent society, not at all connected with the State, and its affairs were managed by its own officers. Referring to the Reformation, and especially to the Revolution a great deal of business was committed to them which did not properly belong to them, and yet was judicially disposed of by the chancellors nominated by them. The case which had been referred to by the right rev. Prelate afforded a very sufficient illustration of the evils attending upon the old mode of proceeding in the ecclesiastical courts. At present either party might appeal, from
birth. Almost immediately afterwards,' he would scorn to shelter himself under the committee upon the bill was, he found ] the wing of others, or to decline to take to to his infinite astonishment, appointed. ! himself his full share of responsibility in Upon his ascertaining this, he started , this matter. The bill, however, which had
one competent to decide the questions which came before it, and to carry its decrees into execution, with a bench of advocates who were able to do justice to both parties. Would the right rev. Prelate say, that the courts at present in existence furnished any such means? The consequence of the continuance of the present mode of procedure would be to continue the inefficiency of the present state of things. When the right rev. Prelate spoke of innocent persons being dragged up to London, it was no more than they were exposed to at present, and he considered that it would be much better for them to have their cause heard before one competent court than to be subjected to an inquiry before a court of inferior jurisdiction, and then to have the cause removed to the Court of Arches. With respect to the feelings of the clergy on this subject, what other feelings could they have but a desire that justice should be done on those who were a disgrace to the clergy? He was sure that there was not a respectable clergyman in England who contemplated being dragged before this tribunal, He would, however, tell their Lordships what the clergy did object to in the bill of 1836, the history of which had been given at so much length, and that was, a provision that the clergy should serve on juries, to judge their brother clergymen. To return to the present bill, their Lordships would recollect that the present courts must be presided over by bishops who could not retire, like the judges, when they were superannuated or infirm. But the court proposed would always be competent, and as its jurisdiction would be extended over England and
the courts of inferior jurisdiction, or from | Wales, there would be no questions about nor to invade the privileges of the forum , the report contained directly the contrary;
the diocesan courts to the Court of Arches. Now, this was the state of things from which the bishops who had acted with him were desirous of relieving the Church. According to the plan now proposed, there would be only one appeal to one of the courts from a final sentence or from a decree having the effect of a final sentence. But it was said, this was taking away the jurisdiction of the bishop and transferring it to another court. But a cause might at present be removed at any time to the Court of Arches; at least, this was the case both with the inferior courts and the greater part of the diocesan courts. It was extremely desirable that cases of this kind should be heard before a sufficient court,
ocal jurisdiction. He hoped he had shown, that there was nothing new in the Court of Arches taking original cognizance of these cases. The alteration suggested would also much diminish the expense of the present process. He repeated, that he made himself responsible, not for the details of the bill on anything he did not understand, but for the principle on which this bill was framed. If he was wrong, as very likely he might be, and he was shown that he was wrong, he was very ready to give it up. He had been actuated by no other motive than a desire to make the discipline of the Church as effective as possible, and of removing a blot which had long shamed the Church—namely,
that offences had been committed with impunity by clergymen, while any attempt to punish them by prosecution bore more severely on the prosecutor than the prosecuted. He should not shrink from the odium of unpopularity which such unfair observations as he had heard that night might tend to create against himself and 1 the other authors of this bill. lie was not disposed to weaken episcopal authority,
Lordships would now allow the bill to be read a third time.
The Bishop of Exeter rose to answer two questions put to him by the most rev. Prelate. The most rev. Prelate had asked it' he could prevent a cause being now brought originally from the provincial or diocesan court into the Court of Arches in London. He begged most distinctly to say, that he could. The most rev. Prelate said, that
domeslicum. The right rev Prelate said, that supposing a measure of this kind to pass, he would avail himself of the spiritual powers given him by the supreme head of the Church, and that he would call on the offending clergyman, by his
he would put the report into the hands of the most rev. Prelate, and entreat him to point out the passage. He had, as was his duty, made it his business to ascertain what was now the practice, and he had asked his own chancellor whether he
oath of canonical obedience, to repent of granted letters of request ex debito juslitice
his errors, and to amend his life. But did this bill interfere with the forum domesticum? Did it not leave the full exercise of those powers to every Bishop on the bench? Of those powers the Bishops could not divest themselves, but so far from being weakened by the bill, they would be strengthened when it came into operation. It was impossible to suppose, that any Bishop would carry on a prosecution against a clergyman when he might carry his object into effect by the milder methods of persuasion and reproof. A prosecution was only resorted to when the reformation of a criminal was hopeless, and he had no other course to pursue. Some invidious attacks had been made upon the 10th and 11th clauses of the bill, which gave the Bishop power to suspend clergymen pending prosecutions against them: but after the bill had been read a third time he would propose a clause which would, perhaps, meet the views of the right rev. Prelate. He would not now go further than to say, that ecclesiastical courts had been before their Lordships for many years, and had been the subject of frequent discussions, and that it was now time to put an end to it, in order, that the
or ex gratid, and he had been informed, that so far from being a matter of course, he (the chancellor) always deliberated whether or not he should grant them, and had added, that there was then a case in his court in which he had refused them. He had learned also, that it was impossible in all the cases of the correction of clerks to find a single instance in which by letters of request the causes had originated in the Court of Arches. The next question put to him was, as to the party who pronounced now the sentence of deprivation. As the law now existed, the sentence was pronounced by the bishop, not coming up to the Court of Arches, but in his own diocesan court. If the sentence was appealed against, it came to the Court of Arches, and then went back to the diocesan court, where the Bishop pronounced sentence. He protested, that such was, he firmly believed, the state of the law at present.
Lord Brougham said, that he was anxious that some of the right rev. bench who had served on the commission should have an opportunity of addressing the House on this subject; but as none of them rose he was desirous, mixed up as he
enemies and friends of the Church might I had been with this question, of offering a not have it in their power to say, that | few observations to their Lordships. He crimes could be committed by clergymen | entirely agreed in what had fallen from
the most rev. Prelate in the very candid and temperate statement which he had made with respect to the object he had in view; he was sure that no man who knew the most rev. Prelate as he (Lord Brougham) had long had the happiness to do, or any one who by reputation knew the most rev. Prelate could have the
with impunity. No remedy could be pro posed for the existing evils which were admitted, that would not be met by objections from some parties; but still he held the principles on which the bill was now opposed by the right rev. Prelate were erroneously founded, and that, as no mode of amendment could be expected to give
universal satisfaction, he trusted, their I slightest doubt of the entire and absolute