PREFACE. THE state of the Ecclesiastical Courts has long been a topic for censure with the enemies of the Church, and a subject of regret to its members. As early as the time of James I. it was lamented by the two greatest ornaments of the Law and the Bench. "For excommunication to be used irreverently," says Lord Bacon, "and to be made an ordinary process to lackey up and down for fees; how can it be without derogation to God's honour, and making the power of the Keys contemptible ?"* Nor is Bishop Andrews less urgent. Nisi attentionem disciplinæ vestræ, id est, medicinam medicinæ apponatis, brevi pro Sione Babelem habituri sumus. Disciplina nostra jam solas crumenas pulsat, ut consulatur potius ovium attonsioni quam attensioni, et fisco quam Christo.† It would be easy to produce similar complaints from every part of our history. Such charges have naturally excited the attention of the supreme government, and in the tenth year of King George IV. a Commission was issued to the principal officers both of the Law and the Church, empowering them "to make a diligent and full enquiry into the course of proceeding-in the Ecclesiastical Courts of England and Wales." This Commission, after being renewed with alterations by King William IV. presented a Report in the year 1832, which was printed, On the Pacification of the Church. +Strype's Life of Whitgift, 111. 296. a by order of the House of Commons. Its recommendations prepared the way for the important measure which has since passed under the title of the Clergy Discipline Bill, and after a delay of eleven years, their full result has at last appeared in the Ecclesiastical Courts Bill of the present year. From a measure so well matured much was to be expected; and in one great particular the Bill does justice to the expectations raised by the Report of the Commissioners, for it proposes the entire removal of those temporal consequences of excommunication which have been so grievous a hinderance to its spiritual efficiency. In this particular then, if it does not restore Church Discipline, it prepares the way for its restoration. Its other provisions will be best understood by observing how far they meet those evils by which the spiritual jurisdiction of our Ecclesiastical Courts has been obstructed. Those evils are, 1. The multiplicity of peculiar jurisdictions, (nearly four hundred in number.) 2. The undue preponderance given to secular causes. (By many persons the Bishop's Court is supposed to exist only for the sake of probate of Wills, or the issue of licences, whereas these are only its incidental and subordinate functions.) 3. The restrictions placed by Parliament upon the exercise of Ecclesiastical Discipline. 4. The undue manner in which Ecclesiastical Jurisdiction has been entrusted to laymen. The first of these evils the present Bill proposes to remove in the most satisfactory manner. Every Peculiar Court is to be abolished, and every Parish made part of the Diocese in which it is locally situate. The only thing which excites surprise is, that so obvious an improvement * Vide p. 54. should have been so long delayed, and that it should now appear as a part merely of a measure, many portions of which excite discontent and produce opposition. Why was not this introduced as a substantive Bill, instead of being saddled with questionable matter, which may involve the rejection of what all desire? The reason commonly alleged is, that Peculiar Jurisdictions have swelled the business which has flowed to the metropolis, because the Wills of those who had property in more than one district could be proved only in the Central Courts; and therefore that the multiplicity of Jurisdictions conduced to the interest of such advocates as practised near the seat of government, until they could gain the countervailing advantage which the present Act proposes, by the destruction of the Bishops' Courts. If this has really been the reason of delay, it is needless to go further for an example of the second evil, which has paralyzed our Ecclesiastical Courts. One of the worst parts of the Papal system, to which these immunities are owing, has been perpetrated-Church Discipline has been obstructed our ancient fabrics have gone to ruin, because the interest of those who advocated private causes has outweighed the public necessities of the Church. The second grand evil of our Ecclesiastical Courtsthis undue predominance of secular causes—it is proposed to meet by transferring jurisdiction in cases of Wills and Marriages to a new Court, to be called, Her Majesty's Court of Arches. Considering that in the present state of the country, Marriages must be recognised as legal, which the Church does not esteem holy,* it seems essential that there should be a civil Court, by which the important question of legitimacy may be determined. To establish a new Court, which shall decide respecting the * Page 63-68. civil validity of Marriages, is clearly within the province of the State: although to decree that "the ecclesiastical jurisdiction heretofore exercised in any Court shall exclusively belong," or, as expressed in the margin, "be transferred to Her Majesty's Court of Arches," opens a door to claims of a more objectionable character. This evil might easily be cured by a more accurate phraseology; but not so the grand objection which is made to this part of the measure as at present conceived-its tendency to bring all business into a single centre. While on this subject, the writer cannot but remark the inexpediency of interfering with those officers, who have hitherto been employed in the Archdeacon's visitation.* He speaks of course not of the contentious jurisdiction exercised by some of these officers, but of the functions which they discharge in the admission of Churchwardens, and the general superintendence of Church fabrics. The Bill proposes that their offices should be merged in those of the Bishop's Court an apparent concentration which will produce inconvenience without real simplification. Their duties must still be performed, since the burthen of visitation will be increased not diminished; but instead of being performed by chiefs, it will be executed by deputies, respecting whom the Archdeacon will exercise less selection, and in whom he will place less confidence. Nor will any benefit result from the change further than the rounding off an Act of Parliament, for it confers no real business on the Bishop's Court, like that of which the residue of the measure deprives them. On the civil effects of this system of centralization nothing need here be said, because there are parties enough to notice the inconveniences which it involves, and to complain of the injustice of making a few persons rich by * Vide p. 74. |