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LIBRARY OF THE

LELAND STANFORD, JR., UNIVERSA

LAW DEPARTMENT.

a.56181

JUL 15 1001

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I ACCEPTED the office of Judge of the Arches Court of Canterbury in 1867. I resigned it in 1875.

The Court of Arches has great powers and privileges of jurisdiction. It is the only Ecclesiastical Court which has the power to pass sentence of Deprivation. It is practically the Court in which the Archbishop sits when exercising jurisdiction over a suffragan Bishop. It is the Court of Appeal from all the Diocesan Courts of the Province of Canterbury. Moreover, a recent decision of the Judicial Committee of the Privy Council has decided that it is bound to take cognisance in the first instance, and without the advantage which the Appellate Court enjoys of the previous sentence of a competent Court, of every case which the Bishop of a Diocese may send, by what are called Letters of Request, to be tried before it.

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The office was, during my tenure of it, one of much honour, but really of no emolument. I do not think that in 1872 I had received enough to pay the expenses incident to my appointment in 1867. The emolument was, in fact, a very few pounds a year. I accepted it at the earnest request of Archbishop Longley, resigning for this purpose the Chancellorships of Chichester, Oxford, and Salisbury, which I

then held. At the time I accepted it his Grace promised that my acceptance of the unpaid judgeship of the Arches should be followed by my appointment to the office of Master of the Faculties when vacant.1 This vacancy did not occur till 1873, when the present Archbishop of Canterbury conferred upon me the office in a manner which enhanced the value of it. The emoluments of the office of Master of the Faculties during my short tenure of it have amounted to about £600 per annum.

The Statute which, during the time I was Judge of the Court of Arches, regulated the discipline of the Clergy, 3 and 4 Vict. c. 86, was passed in 1840, after a very severe conflict and much difference of opinion in the House of Lords.

It effected very material alterations in the existing law. It destroyed all peculiar jurisdictions, under cover of which bad clergymen had sometimes sheltered themselves against the penalties due to their offences. It gave to every Bishop the power of sitting with Assessors in his own Court or of sending the case to be tried at once in the Superior Court of the Province. It directed in the former case the previous issue of a Preliminary Commission, which was to report whether there was "a prima facie case for further proceedings;" if so, these proceedings were to be taken before the Bishop, or to be sent at once to the Superior Court. It provided, moreover, and this provision was ex

1 I gave a fuller narrative of these circumstances in a letter to the Archbishop of Canterbury on "Clergy Discipline," published by Messrs. Rivington in 1872.

tremely wise, and has often worked very well, that the accused Clerk might admit before his Bishop that he was guilty of the offence charged against him; and his Bishop had then power to pass such a sentence as the law allowed without the scandal of a public trial.

Under this Statute more cases of Clergy Discipline since 1840 have been tried, I believe, than are to be found recorded for the two centuries preceding its enactment, if not for the whole period since the Reformation.

I have read statements relating to procedure in the Arches Court which would never have been made in the presence of any person really conversant with the facts, or if made, would have been immediately contradicted. For instance, cases tried thirty years ago under a system of law and procedure materially different, have been represented as illustrating the present state of the Ecclesiastical Courts, no mention whatever being made of the subsequent alteration, because such mention would at once show that the censure was inapplicable.

In the memory of the present generation, trial by Wager of Battle was allowed by a court of common law. What would be said of accusers who attacked on this score the present courts of common law, and omitted to state the fact that the law had been altered?

Some years ago the proceedings in the Ecclesiastical Courts were of a very cumbrous and unsatisfactory character.

The pleadings were unnecessarily prolix; but the great evil was the practice of taking all the evidence of witnesses in writing before an examiner, who sat in

his private room for this purpose, unchecked by the presence of counsel; not only did this practice present serious obstacles to the discovery of the truth, but the charges for copying the evidence so taken much inflamed the costs of the suit.

In the year 1854 I brought into the House of Commons a small Bill for the introduction of viva voce evidence into the Ecclesiastical Courts, and, with the help of Lord Brougham in the House of Lords, succeeded in carrying it through Parliament (17 and 18 Vict. c. 47). Nobody unacquainted with the old system can be aware of the almost total change which the working of this little Statute has produced in the whole procedure of the Courts. Causes have ever since been conducted at the hearing exactly as they are at Nisi Prius. The pleadings are in cases of heresy necessarily fuller; but in other cases the introduction of viva voce evidence and certain Rules and Regulations promulgated by Dr. Lushington, for the Arches Court, in 1867, have led to a great improvement in the pleadings.

Again, as to the alleged costs and delay incident to suits in the Arches Court. Costs are always of two kinds, those caused by the fees paid to the Court, and those caused by the fees of counsel; these latter will be found, on inquiry, to be under the present system, the real, or, at least, the main expenses of the suit.

They are limited to a certain extent by taxation, but no Statute can prevent parties employing what counsel they please, or counsel from demanding the fees to which they think themselves entitled.

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