Page images
PDF
EPUB

English Prelates were assembled. It is not a little remarkable that the whole English bench of Bishops voted unanimously against the Bill, whilst, to their honour be it proclaimed, the Irish Prelates voted in its favour. No scheme of Ecclesiastical reform can be complete and satisfactory to the nation, unless it contains provisions to render Archbishops and Bishops themselves, amenable to ecclesiastical discipline and jurisprudence, as well as their inferior clergy.

Now the procedure at present in the Ecclesiastical Courts is according to the rules of Civil or Roman Law, and also of the Canon or so much of the Papal Law as has been received in this country. But such rules are but leges, sub-graviori lege, the common law having obtained the superintendency or supremacy over them.

To revise those rules seems to be a very eligible mode of adoption. Much of the old procedure and practice may be well abolished, new rules and orders introduced, and assimilated to those of the Superior Courts of Common Law. Let the whole, by legislative authority, be submitted to Her Majesty the Queen, in Council, for approbation, sanction, and regulation thereof.

Let that shapeless congeries of Papal Canon Law, received into this country from the time of the Conquest down to the Reformation, be examined and reformed. Let us have a new expurgated edition of Lyndwood's Provinciate translated into English by competent persons, acquainted with Ecclesiastical Law. In fact, we require a new Reformatio Legum Ecclesiasticarum, as the one prepared by Cranmer never received the Royal assent, the youthful Monarch King Edward VI. dying prematurely; a work, says Lord Stowell, of great authority in determining the practice of these times, whatever may be its correctness in matters of law. It is, however, frequently referred to in Ecclesiastical judgments and forensic arguments. But let us have a new edition, sanctioned by Royal authority. Clearly let it be ascertained how much under the heads of canons, constitutions, ordirances and synods, provincial or other ecclesiastical laws, cr jurisdiction spiritual, can now be enforced, as being neither

contrarient, derogatory, or repugnant to the laws, statutes, and customs of the realm, nor to the damage or hurt of the Queen's prerogative. Also, let the canons of King James I., A.D. 1603, be received and reformed. They have no statutable authority, and do not, proprio vigore, bind the laity, only so far as they are agreeable to the ancient Canon Law received in this country prior to the statute of 25 Henry VIII.

Why Archbishops and Bishops, in addition to their onerous duties, should aim at personal adjudication in their Diocesan Courts, rather than by judges who have had a legal training, is a matter calculated to excite apprehension. But in exact ratio that this disposition on the part of the Episcopal Bench has been manifested, on the contrary has been exhibited, on the part of the laity, a tendency to eliminate altogether the judicial from the Episcopal function. Prior to the Norman Conquest, it is true, the Bishop and the Earl sat together in the same Court, as civil magistrates; but certainly not to adjudicate ecclesiastical questions on the principles of Roman Canon Law, for it was not then introduced. Subsequently both sat in the Aula by virtue of their baronial estates, as they now sit in the House of Peers. But the proposal now made that the judges of the land should merely sit in Court as the bishops' assessors is rather derogatory to their exalted position. Not that by any means the study of this important branch of legal knowledge should be discouraged; nay, those who have had an extensive theological and legal training, and have attained unto a comprehensive knowledge of ecclesiastical law (which has the closest relations to the principles both of the divine and moral law), are the best qualified for the episcopate. And Her Majesty should be empowered to call such to her Councils, even if not archbishops or bishops; otherwise such as Bishops Gibson, Jeremy Taylor, and Dr. Burns would be excluded.

As to the exercise of discretionary power now claimed as a matter of expediency, in putting or refusing to put the Ecclesiastical Laws into execution, this proposal re

quires the gravest consideration. In all legal matters, the exercise of a discretionary power should be guided by precedent, and be overruled, if necessary, by competent legal authority: not by caprice or tyranny.

The late Lord Westbury observed, in a late Session of Parliament (29th Feb. 1872), that the proposal that the Bishop should hold the door of a Court, and let no one enter it without his sanction, might have been listened to prior to the Reformation ; but it could not be necessary to discuss it now. In the House of Commons, in Charles the Second's reign, by a majority of 168 to 116, it was decided : “ That penal statutes in matters Ecclesiastical cannot be suspended but by an Act of Parliament." From the time of Henry the Eight to 1840, any layman might institute a suit for a Breach of the Law Ecclesiastical, the consent of the Judge being necessary only so far as to make provision for costs, and to prevent frivolous and vexatious suits. In 1758, Sir George Lee, in the case of Argar v. Holdsworth, said a clergyman might be prosecuted by any one "for neglect of his clerical duty.” In 1808, again, in the case of the office of Judge promoted by Bishop, His Majesty's Procurator General v. Stone, Sir William Scott used the following words: “ It is not in the power of the Bishop, by any intervention on his part, to refuse the process of the Court to any one who is desirous to avail himself in a proper manner.” the proposed formula is : If the Bishop should see fit. On the contrary, the late Bishop of Exeter, Dr. Philpotts, observed publicly : “ There is my own son (a Clergyman) sitting beside me; and I would not spare my nearest or dearest relation, if any Ecclesiastical offence were brought against him.” A proper investigation should take place, if the complaint were made in the proper way.

The three chimerical old ladies, therefore, residing in the Channel Islands, the utopian ideal of an exuberant episcopal imagination, recently depicted in the House of Lords by a fervid eloquence, need not appal clerical apprehensions. Hic murus aheneus esto, nil conscire sibi, nulla pallesccre culpa.

But now

In any well digested reform of the Ecclesiastical Courts, and procedure, there seems to be called for the repeal or amendment of the present Church Discipline Act, 3 & 4 Vict., cap. 86. This Act was loosely drawn. It has been spoken of by Sir Jenner Fust and Dr. Lushington as requiring amendment, which, to some extent, has been secured by the interpretations of the Judges. Such emendations or interpretations might usefully be re-enacted, but by all means abolish the preliminary inquiry in clerical suits. It assumes for the accused all the aggravations of a trial, without affording him the privilege of a defence ; for the inquisition or investigation of the conduct of the accused is not the commencement, or any part of the suit. The report, even if adverse, is only the opinion of five clerical gentlemen, as to there being frimâ facie evidence, as a ground for instituting a suit. Lord Justice Knight-Bruce, in the case of Denison v. Ditcher, remarked on the loose and inaccurate language in this Act, yet the Legislature had made a sufficient distinction between a suit properly so called, and the preliminary inquiries out of which a suit might arise. Even as to the filing of articles, and the service of the same, these processes may be disregarded by a clerical defendant in a suit as a mere nullity. In fact, till he be served with a citation from an Ecclesiastical Court, under the gth & ioth sections, a suit will not commence. Should not the law of England be as merciful as the Roman law : Semper in dubiis benigniora præferenda.

As to those Ecclesiastical Fees paid to Officials, even the Attorney-General himself has admitted many of them might be well abolished. In many instances, there is no pretence for their payment. Those officials, in fact, are paid for doing nothing. And certainly it is a grave question whether any longer an interested class of men are to receive payment of fees at the expense of the nation, without detriment to the State, unless some duty be discharged, some service rendered.

The Public Worship Bill, brought in this Session, containing the Amendments of the Earl of Shaftesbury, embraces

nearly the whole of the reforms in the Ecclesiastical Courts, contemplated here. They demand immediate Legislative sanction, and admit of no further delay without injustice to the nation. Nothing less than this will be satisfactory. It is sufficiently proved to be necessary; and it behoves the Government to remedy the same without delay.

VIII.-THE REGISTRATION OF BIRTHS AND

DEATHS BILL, 1874.

THE present time will not be considered inopportune for

making a few remarks upon the Bill, now before Parliament, to amend the registration of Births and Deaths in England.

It has been calculated that out of a million births, twenty thousand go unregistered; and that among the burials of stillborn children is included a considerable number who were born alive. The Bill in question proposes to remedy this double evil; and, while postponing any notice of its other provisions, we will endeavour to estimate how far this piece of legislation would be likely to be effective in these two

cases.

First, as to the present law of registering births: It is the registrar's duty “to inform himself of every birth which occurs in his district," and to register the same, free of charge, within forty-two days. After forty-two days and within six months, a birth can only be registered on payment of seven and sixpence; after six months, not at all.

Under this state of the law, it is certain that many births will go unregistered. That a registrar, however careful, should "inform himself of every birth" which occurs in a large district, is a patent absurdity; and it is surprising only that the average of unrecorded births, due to the carelessness

« PreviousContinue »