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more than that we consider the principle producing it a very bad one.
There is a threat of another retrograde step by this Bill, and apparently a constructive repeal of a statute passed a few years ago by which it was provided that all persons thereafter appointed registrars should discharge the duties of high bailiffs. This was intended to get rid of a superfluous and very expensive officer, an officer who in almost every case acted by deputy, an officer who performed his duties by giving directions to his subordinates, directions which were in unusual and difficult cases the result of the advice of the registrar, and perhaps of the judge also. The high bailiff was an expensive middle man, and was well got rid of.
This Bill will, by the repeal of Section 2 of the 30th and 31st Vict., c. 142, seriously interfere with wholesale traders, in respect to debts under £5, which must be considerable in number, the average of all business in the County Courts being only some £3., inasmuch as all debts for £5 and under must be recovered under the old system of the plaintiff attending and proving his claim.
VII.--REFORM OF THE ECCLESIASTICAL
THE present moment is opportune for a few
on the administration of the law in Ecclesiastical Courts. For the last forty years, public opinion, more or less enunciated by successive Governments, has clearly denounced the incompetency of these tribunals, and indicated the necessity of their abolition. Consequently, during this interim, the jurisdiction of these courts has been ousted by statutable authority in all suits concerning Tithes of a certain amount, Church rates, Defamation, Testamentary and Divorce and Matrimonial causes, having been deemed by the Legislature as disqualified to entertain further such specified suits for adjudication.
Notwithstanding ecclesiastical jurisdiction has been so rescinded, those Courts still retain power in cases over both clergy and laity; and, as a logical sequence, enlightened public opinion seems to demand their total abolition, or at least a considerable amendment both in the constitution and process of Courts, even denominated spiritual.
By no less an authority than the late Baron Cranworth, those Courts were, in the year 1856, characterized as “cumbrous, dilatory, and expensive ;” and as to the judges, nineteen out of twenty were incompetent to discharge their judicial duties. In 1865, the Archbishop of York, in Convocation, observed that the delays, expense, and the cumbrous procedure of the Ecclesiastical Courts which had descended to us from past generations, should be swept away in order that simple justice might be simply done ; inasmuch as the present mode of proceeding in those Ecclesiastical Courts led to constant miscarriage of justice.
Such avowed opinions, with others of equal stringency, have induced the House of Lords to entertain the question. In 1872 a Select Committee investigated the matter, and made a report. Thereupon, Earl Shaftesbury introduced a Bill, which passed through all its stages. At an advanced period of the session, it came before the House of Commons, when it was discovered that the Bishops had introduced clauses to extend and render more palpable their coercive power and judicial authority; and as they had thus, on the best of motives, improved the occasion, the House of Commons, ostensibly on this ground, rejected the Bill, although it was confessed by all parties that no sufficient time remained to ponder over the provisions of a Bill designed to secure the proper administration of justice, and to effect one of the greatest reforms of the age.
In this state of things, is the question under consideration one that admits of indefinite postponement ? It is submitted, quite the contrary. The present Lord Chief Justice of the Common Pleas, when, Attorney General, declared in the House of Commons, “that some provision
must be made for a reform of the Courts by which the ecclesiastical business of the country is transacted," and Mr. Gladstone accepted the proposition that there was an urgent case for legislation.
Fiat justitia, ruat cælum :-With grave submission it is contended, that the first duty of any Government is to cheapen, expedite, and simplify the law, and render redress to every injured man. The vexata quastio of Church and State is eschewed ;—that may be within the province of politics—it is not of essential jurisprudence. But is it not the common as well as the statute law of this land that the sovereign is over all matters, ecclesiastical as well as civil, supreme?
Then why are we not by legal enactment to secure Judges of legal training and learned in law, in these inferior Ecclesiastical Courts ? Should these minor Ecclesiastical Courts be allowed to continue, a similar provision to that contained in the Irish Act for Ireland, in 1864, should be enacted for England ; and it was provided for in Lord Shaftesbury's Bill, that every Chancellor or Diocesan Judge should be a barrister-at-law, in actual practice of seven years standing, and appointed by the Crown as the fountain of coercive jurisdiction. No valid objection has been adduced in argument to the proposal to remove every case of a contentious character, requiring a legal decision, directly and immediately to the Metropolitan Ecclesiastical Courts; such cases especially as involve questions of clerical conduct, doctrine, or practice; and those appertaining to the interests and rights of the laity. It is also proposed that those Ecclesiastical, Metropolitan Ecclesiastical Judges, should at least be Barristers of fifteen years' standing, in actual practice, eminently qualified to take rank with our Common Law Puisne Judges who, in important cases, as is now similar in Election Petitions, should hold their Courts in the locality where the contest arises; and, by their character, experience, and learning, confer authority, gravity, and value on their decisions.
One specimen of recent adjudication in a minor Diocesan
Court, by a clerical judge, may sufficiently illustrate the point mooted. Incidentally it has been mentioned in the House of Lords. An opulent vicar in the South is a chancellor in the North. When a certain important case came before him, he ventured to set aside the dicta of such legal luminaries as the late Lord Stowell, and Dr. Lushington, Dr. Phillimore, Mr. Justice Blackburn, and the Lord Chief Justice of the Court of Queen's Bench, pronouncing such distinguished judges as being only “co-ordinate" authorities; and the inference to be deduced from his legal exposition was that those eminent judges had never reached the apex of contemplation of this reverend Chancellor. Of course, on appeal to the Provincial Metropolitan Court, after six months' delay, his judgment, by his superior judge, was at once reversed; showing thereby that the law as it is, and not what is considered an improvement of it, must rule courts of justice. When nearly a year had elapsed, after the commencement of the suit, the case was remitted to the Court below, and the delinquents at once confessed their offence, as it was futile to struggle against facts. But what follows ? This clerical judge, for five months, postponed judgment, and at length revealed his purpose of delay. Justice required him, on confession of the guilt of the defendants, to admonish them, and assign to the plaintiff his full costs. The judge declared his unwillingness to do so, as he intimated that he disagreed with the higher court; but on the law of the case he was bound to submit. He then avowed he was in a difficulty, but he would allow the defendants to withdraw their plea of guilt, the object being to drive the plaintiff into a compromise. This, with dignified firmness, he disdained. A responsive allegation was then filed, and before the plaintiff had an opportunity of examining it, a second plea of guilt was recorded, to enable the judge, by this process, to assign a nominal sum of twenty shillings to the plaintiff. And all this with a view, as confessed by the clerical judge, to effect the extraordinary purpose, as in this sample detailed. Ex uno discite omnia.
As to the alleged objection of salary for the metropolitan judges, that may be easily removed by union, as at present, of the office of the judge of the Admiralty, or any judge of the High Court of Justice, or the Mastership of the Faculties, with that of the Dean of Arches, being a barrister of ten years' standing, and a similar judge of the High Court of Justice may be appointed to act as Metropolitan Chancellor of York. At present fees, amounting to £72,000, are paid annually to ecclesiastical officials, the services of many of whom might safely be dispensed with, due regard being paid to their vested interests. The late Lord Westbury, in 1871, implored the House of Peers to pass the Bill for Reform of the Ecclesiastical Courts, as thereby £40,200 would annually be saved to the nation-a consummation devoutly to be desired.
It is a lamentable fact that by means of reversionary interest, children have been appointed to the office of Registrar in ecclesiastical courts, by prelates of a past age; in fact ladies have held such offices, one of them at the tender age of five years. Now, bishops' secretaries are usually the favoured occupants of the office of registrar. Recent legislation, in an Act styled Ecclesiastical Dilapidations, has assigned fees both to Registrars and Secretaries of bishops ; so that in some cases (and worse still) from the ill-paid, and so called inferior clergy, double additional fees may be claimed and exacted by the gentlemen in whom those two offices may be united. Surely, it is high time to apply the pruning-hook to these ramifications. It is now clearly apparent why the Irish Ecclesiastical Courts and Procedure Act, of 186.7, has not, by legislative authority, been substantially adopted and applied to the Realm.
In 1856, Lord Chancellor Cranworth remarked, on this subject, in the House of Lords, “I feel bound to say that I have received very little encouragement from the bench of Right Reverend Prelates.” Lord Cranworth's Bill was a Government measure-lost by a majority of eight. On that occasion the late Archbishop of Canterbury and fifteen other