rfr%w? LI E) R.ARY OF THL UN IVLRSITY Of ILLINOIS s^^ THE PUBLIC WORSHIP REGULATION BILL. CASE JOINT OPINION MR. A. J. STEPHENS Q.C., LL.D., MR. FRANCIS H. JEUNE, ON BEHALF t)F IDHE ENGLISH CHURCH UNION. iBROOKS, TANNER, AND JENKINS, Doctors' Commons, LONDON: ENGLISH CHURCH UNION OFFICE, 11,' BURLEIGH -STREET, STRAND^ "W.C. THE PUBLIC WORSHIP REGULATION BILL, 18 74. CASE. The President and Council of the English Church Union being of opinion^ that the provisions of the Public Worship Regulation Bill^ are an improper encroachment upon the rights of the Beneficed Clergy : Counsel are requested to consider the Clauses of the Bill in detail, and to advise upon their legal and general effect. OPINION Before considering in detail the Clauses of the Public Worship Regulation Bill, it may be expedient to make some preliminary observations respecting — I. The Constitution of the proposed Court ; — -and II. The delay and expense of the proposed Procedure, I. THE CONSTITUTION OF THE PROPOSED COURT OF THE BISHOP. The objection to the constitution of the proposed Court of the Bishop is the arbitrary and unprecedented power, which the proposed Bill gives to the Bishops, who, as a Body, have had no judicial experience in the Administration of the Law, and are unacquainted with the rules of Legal Evidence. It is proposed, that the Bishop should, under Clause 8, have jurisdiction in the following cases — viz., whenever one of the persons mentioned in that Clause is of opinion, and makes a representation to the Bishop — (i) That in any church any alterations in or addition to the fabric, ornaments, or furniture thereof have been made without a Faculty from the Ordinary, authorizing or confirming such alteration or addition, or that any decoration forbidden by law has been introduced into any church ; or, (2) That the Incumbent has used or permitted to be used in any church or burial ground, any unlawful ornament of the minister of the church ; or, (3) That the Incumbent has failed to observe the direc- tions contained in the Book of Common Prayer relating to the performance, in any church or burial ground, of the services, rites, and ceremonies ordered by the said Book, In order to carry out this jurisdiction, the Bishop is invested with an absolute discretion, of: — - (i.) Enforcing or not enforcing the Law : (ii.) Fixing the time and place of hearing : (iii.) Deciding upon the complaint in public or private : (iv.) Nominating the assessors, whose advice he is not bound to follow : (v.) Determining the incidence and amount of costs : (vi.) Framing the Monition, and deciding e^^ parte whether it has been obeyed : (vii.) Enforcing the Monition during the progress of an Appeal : (viii.) Depriving an Incumbent pending an Appeal of all the revenues of his benefice : (ix.) Applying, during the time that the Monition is in force, the revenues, after providing for the Services of the Church and the cure of souls, for any ecclesiastical purposes connected with the parish. The decisions of a Bishop, especially if pronounced in camera^ and without proper argument, could not give satisfaction to either party ; the result would be, an appeal in almost every case, and, practically, the Final Court of Appeal would become a Court of first instance. Upon these premises, the principal question is, whether Bishops in their respective dioceses are the best judges to deal with the difficult points of ecclesiastical law, and the questions respecting the reception of evidence, which cannot fail to be raised in administering the jurisdiction conferred by this Bill If the Bishops have not the legal knowledge and experience requisite to secure public confidence for the due discharge of the extraordinary jurisdiction conferred upon them by this measure — the foundation of the Bill is gone. It is remarkable^ that, instead of establishing a new Epls- copal Court, not the slightest attempt has been made by the Episcopal Bench to reform the existing Provincial and Diocesan Courts, which have jurisdiction to correct all breaches of the laws ecclesiastical :— notwithstanding, that for the maintenance of these Ecclesiastical Courts, Fees are now exacted from the Clergy and Laity to the extent of between 3^70,000 and ^SojOoo per annum. IL THE DELAY AND EXPENSE OF THE PROPOSED PROCEDUREo The effect of the Bill will probably be to increase the delay and expense of ecclesiastical suits. The case of the Rev. Mr. Pamell (referred to by the Archbishop of York in the House of Lords) may be taken as example. If it had been prosecuted under this proposed Act, it would first have been heard in the Diocese of Chester An appeal from the Bishop would have lain to the Provincial Court of York, and a further appeal to the Queen in Council, In Mr. Parnell's case, the proceedings commenced by letters of request in the Provincial Court of York, Thus, the expense and delay of a hearing in the Diocese of Chester was avoided. It was also urged in the House of Lords, that a preliminary objection had been taken to the Articles in Mr. Parnell's case which involved an additional hearing before the Final Court of Appeal. It must, however, be remembered that an appeal to that Tribunal on a preliminary objection to the admission of the Articles, was in the discretion of the judge of the Arch- bishop's Court at York. A separate and preliminary objec- tion, in the nature of a demurrer, may be, and often is, a great saving of expense in proving facts which, if proved, may not in Law sustain a charge. It has been urged, that the two Archbishops will not hear appeals that come before them from the Bishop's Court, but v^ill transmit such appeals direct to the Final Court of Appeal. JiUC Such a course of conduct would render the Provincial Courts superfluous, and deprive the Final Court of Appeal of the advantage of the judgments of those Tribunals. OBSERVATIONS UPON THE CLAUSES IN DETAIL. L Persons by whom suits may be instituted (Clauses 7 and 8), ii. Subject matter of Monition (Clause 8). iii. The institution of Suits (Clause 9). iv. The form of the Monition (Clause 9). T. Notices (Clauses 9, ii, and 21). vi. The qualifications of the Assessors of the Bishop's Court (Clause 10). vii. Effect of failnre to answer (Clause 1 1 (3) ). yiii. Mode of trial (Clause 11 (4) ). ix. Power to hear causes in camera (Clause 1 1 (6) ). X. Costs (Clause 13), xi. Delay and expense of Appeals (Clause 1 4) . xii. Monition to be obeyed pending an Appeal (Clause 16). xiii. Mode of enforcing Monition (Clause 18), xiv. Cathedrals (Clause 19). XV. Rules and orders (Clause 22). xvi. No period of Limitation. Before making observations upon the Clauses in detail, it may be remarked, that there are peculiar inaccuracies in Yarious parts of the Bill, of which the following are apt illustrations : — (i) The Clauses of this Bill go beyond its Title and Preamble. The Title states the 4-Ct to be one " for the better administration of the Laws respecting the regulation of Public Worship." The Preamble only refers to the "per- formance of Divine Service according to the use of the Church of England ; " and in Clause 6 proceedings under the Bill are to be called " Suits for the regulation of Public Worship." But in Clause 8, subdivision (i), the fabric of the church is mentioned, as under the jurisdiction of the proposed Court; and J;he " ornaments or furniture" of the Church are also mentioned, without any limitation to their ijse, in Divine Service, (2) By Clause 3 the Bill is made to extend to the Channel Islands and the Isle of Mann. The intended effect of the Bill is to enforce the directions of the Book of Common Prayer annexed to the Act 13 & 14 Car. II. c. 4, as is shewn in the interpretation Clause. The Act 13 & 14 Car, II. c. 4 s. 1^ relates only to England, Wales, and Berwick-upon-Tweed, but not to the Channel Islands or the Isle of Mann. Thus it may be urged, that the effect of this Bill is, to enforce the regulations of the Prayer Book in places, where its use has never been pre- scribed by law. Elizabeth's Act of Uniformity (i Eliz. c. 2 s. 27.) does, however, extend to all places '^ within this Realm or any other the Queen's dominions or countries." The peculiar ecclesiastical constitution of the Channel Islands, which are within the See of Winchester, has been seemingly overlooked, and it appears not to have been observed that in Jersey, under the Canons which were decreed by James I. m 1623, and which are in force in that island, a Court is constituted which renders unnecessary any such interference as is proposed by this Act, (3) The provisions of Clause 20, that *'it shall not be necessary to obtain a Faculty from the Ordinary in order law- fully to obey any Monition issued under this Act," seem unprecedented, as a Faculty to authorize obedience to a Moni- tion is a process unknown to the ecclesiastical law. 1 . Persons by whom Suits may be instituted. {Clauses 7 and 8.) Under Clauses 7 and 8 proceedings may be set in motion by (i) any male person of full age who has resided for one year in the parish; or (2) by any non-resident owner or tenant of lands or tenements therein. Except that a prosecutor must make a declaration, that he is a member of the Church of England, there is no provision respecting his interest in the Church or Services. He might be a person whose character and antecedents, as regards immo- rality, infidelity, or even crime, would wholly unfit him for taking on himself any such duty ; or a person who, although nominally a Churchman, had never attended a Service in any Church. As to non-residents, the prescribed qualification could be so easily obtained, that it affords no guarantee of a bond fide in- terest in the Church or the Services thereof. IL Subject Matter of the Monition, {Clause 8.) The 8 th Clause deals with matters relating to the fabric of the Church. No time is prescribed within which proceedings are to be taken. Proceedings might be instituted against an Incumbent who might be ordered to remove something erected before his Institution, or to restore something removed or altered by one of his predecessors ; in either case, he would unjustly incur great expense. The erection in question might also be one (such as a monument) for which the Incumbent ought not to be held responsible. The Clause likewise applies to all matters, whether impor- tant or unimportant, whether symbolical or devoid of any such meaning ; and as the Clause, in the 3rd subsection, aims at non-performance, as well as a wrong performance, of any part of the directions of the Prayer Book, every omission might be made the subject of a prosecution at the absolute will of the Bishop. Ill, The Institution of Suits, {Clause 9.) The words in Clause 9 *Mf he think fit " give an absolute discretion to the Bishop, to enforce or not to enforce, the provisions of this BilL It may be remarked, that Bishops might, in the exercise of their discretion, take different views of what offences should or should not be prosecuted. It is hardly necessary to refer to such instances, as the omission to read the Athanasian Creed, or the Commination Service, or the Daily Use of the Morning and Evening Prayer, etc., to show, that there are cases in which some Bishops probably would, and others would not, allow the law to be enforced. ' IV, The Form of the Monition, {Clause 9.) The widest discretion is given to the Bishop by Clause 9, as to the orders to be made after the hearing of a cause. The regulations are to relate to the matters represented, but the Bishop may make what regulations he deems proper, although they may not have been stated in the representation, or dis- cussed at the hearing. V. Notices. {Clauses 9, 1 1, and 21.) The period of three months prescribed by this Clause is too short. It might happen from many causes — absence from home, illness, etc. — that an Incumbent would be unable in so short a time to defend himself. It appears, however, that there is no power in any case to extend this time, and the Bishop can compel the case to be heard at the expiration of twenty-one days from the original notice. This undue haste is the more unjust to an accused Incumbent, because his omis- sion to answer the accusation is made an admission of guilt. The mode of giving notice allowed by Clause 11, respecting the commencement of the proceedings, is not in accordance with the practice of the Superior Courts of Common Law and Equity. Personal service of the original notice should be required. Grave injustice might be done, by proceedings being allowed to go on against an Incumbent, before it was certain, that he was made aware that any proceedings had been taken. VI. The Salifications of the Assessors of the Bishofs Court, (Clause 10.) The loth Clause has been drawn so as to provide a class of assessors like to that provided by the Church Disci- pline Act — a Tribunal of which, although in force since 1840, the Bishops have not, save in a very few exceptional cases, availed themselves. The three assessors of the Bishop's Court are nominated by the Bishop: one assessor without any limitation whatever ; one, with only such guarantee for his knowledge of ecclesiastical law, as is provided by his being a Serjeant, or a barrister of seven years' standing ; and the third, the Dean of his Cathe- dral, or an Archdeacon of the Diocese, or his Chancellor. Of all these persons not one, except the Dean, who might be omitted, would be unconnected with the Bishop, and all might, not improbably, be persons of the like views with himself on ecclesiastical subjects. There is no security for such a knowledge of ecclesias- tical law as is essential to such a Court. The Chancellor of a Diocese is sometimes a clergyman, and generally a person not acquainted with ecclesiastical law, or he may be incapacitated from age or other disqualifications from giving adequate con- sideration to difficult cases. It is obvious that, except at considerable expense, no lawyer of eminence could be obtained to be one of the assessors ; and the Bishop's assessors would generally consist of the Chancellor, a barrister in local practice, and some resident clergyman or country gentleman. The decisions of such a Court would only be regarded as the neces- sary preliminary to an appeal. VII. Effect of Failure to Amwer. {Clauses II (3) and 17). The effect of this subsection appears to be, that in two cases — (1) if the Incumbent fail to return an answer to the repre- sentation within the time prescribed ; or (2) if such answer does not deny *' the truth of any statement of fact made in the representation" such statement shall be deemed to be true. This subsection is objectionable. It makes mere failure to transmit an answer to the repre- sentation, an admission of criminal guilt, thus subjecting the Incumbent to serious penalties. In a criminal case, failure or refusal to plead is held equivalent to a plea of not guilty (7 & 8 G. IV. c. 28, s. 2) ; and to provide the exact reverse, is a provision entirely at variance with the spirit of English law. By this provision, as also by a provision of a like character in Clause 17, the accused person is practically com- pelled to criminate himself, reversing the rule which requires a prosecutor to prove his case. There appears to be no mode provided, by which an accused Incumbent can raise any issue except one of fact, or take a pre- liminary objection against the right of his prosecutor to pro- secute. VIII. Mode of TriaL {Clause II (4) ). {a) " If the person making the representation is present, he may reply to any statement made by or on behalf of the 10 Incumbent," but there is no provision compelling the prose^ cutor to appear. Thus, it might be impossible for the Incum- bent to ascertain from the prosecutor himself, whether he was a person duly qualified to prosecute, or to ascertain the circumstances under which he was induced to make the re- presentation to the Bishop. (b) The term " agent " is an equivocal expression. It does not properly apply to counsel, nor does it apply exclusively to solicitors. It would allow any person to appear as agent if authorized by either of the parties. (c) It appears that either party '^ may make a verbal state- ment of the case or may send in a written statement thereof." If such statements be taken by the Bishop as evidence, there would be the grave injustice of evidence being admitted not under oath, and not subject to cross-examination. If these statements are not to be received as evidence, it is difficult to appreciate their utility, or to suppose they would have the slightest weight with the Final Court of Appeal. {d) Nothing is prescribed as to the place of trial. If it be not held in the immediate neighbourhood, great cost would be incurred in procuring the attendance of the necessary wit- nesses, agents, and other parties. Under ordinary circum- stances, it is clear, that in disputed questions of fact, the parties would incur costs at least equal to those of a trial at nisi prius. If the proposed Court is to be speedy in its procedure, the difficulty of enforcing the attendance of witnesses would be a serious obstacle ; because, a Consistorial Court has no means of enforcing the attendance of witnesses, except by a writ of significavit addressed to the Court of Chancery. IX. Power to hear Causes in Camera. {Clause n, (6i) ). This subsection confers on the Bishop a most unusual and mvidious power. The main object, apparently, is to exclude the representatives of the press, but no weight can be attached to the judgments of any Court, when its proceedings are in secret. The power to hear in camera has been exercised by judges of the Courts of Law and Equity, only in exceptional secret. In a recent case before the Court of Appeal in Chancery, the present Lord Chancellor refused an applica- 11 tion to hear a case in camera, and expressed himself un- willing to strain the usual practice of the Court, which was not to hear a case in private, except with the consent of both sides {Andrew v. Raeburn, the Times, April 23, 1874). In this Clause, power is given, not to hear special cases for special reasons in private, but, to make rules which would operate in all cases. X. Costs. (Clause 13.) This Clause gives an absolute discretion to the Bishop in the matter of costs, a discretion which a Bishop could hardly exercise with justice. The taxation of costs is a matter involving very technical knowledge, and, accordingly, in the Superior Courts, the taxation of costs is entrusted to taxing- masters, who devote almost their whole time to this part of the administration of justice. It is almost absurd, to give to a Bishop power to determine the amount of a bill of costs, when it cannot be supposed he could have either the time, or the elements of knowledge requisite for such purpose. As a general rule no one, except a practising solicitor, can tax a bill of costs. There is no provision in this Act for security for costs being given by persons prosecuting an Incumbent, and, conse- quently, he would be liable to be harassed by frivolous prosecu- tions. An Incumbent is a public officer, and is entitled to be protected from vexatious proceedings by destitute persons. XI. Delay and Expense of Appeals. (Clause 14.) The effect of Clause 1 4 will be to render the procedure pro- posed, if not longer, at least as long and as expensive as that now in force. If the double appeal, first to the Court of Appeal of the Province, and then to the Final Court of Appeal, were allowed, the effect would be to add one more Court with all the attendant delay and expense. And although power is given to the Archbishop to transmit a cause direct to her Majesty in Council, this is a power which often might not be exercised ; and opposition has always been offered to proposals in the Legislature to destroy the appellate jurisdiction of the Court of the Province. If the cause should be transmitted direct from the proposed 12 Court to the Final Court of Appeal, that Court would probably be made a Court of first instance. The improper admission or rejection of evidence in the Court below, or the hearing of a cause without proper argument, would compel the Final Court of Appeal either to remit the cause for a rehearing, or to hear it without any assistance from the Court below, and with the expense of witnesses being brought to London. XII. Monition to be Obeyed Pending an Appeal, {Clause 1 6.) In Clause i6 great and arbitrary discretion is vested in the Bishop. If such discretion were ever improperly exercised the most inconvenient consequences would ensue. For example, as the Act applies to the fabric of a Church, the Bishop might order something to be restored at considerable expense, which the Final Court of Appeal might order to be destroyed; or something to be destroyed of which that Court might order the restoration. Is the Incumbent to bear the expense of these changes ? And even repeated changes of ornaments and ceremonies^ would be indecorous, and annoying to the congregation, and perhaps the occasion for the exhibition of party feeling. This danger will not appear visionary, when it is remembered on how many disputed points of ecclesiastical law, the decision of the Court below has been varied, or set aside, by the judgments of the Final Court of Appeal. XIII. Mode of enforcing a Monition. {Clause 1 8.) No means are provided for properly trying, whether the Monition has been obeyed or not. An affidavit svyorn by any person, to the satisfaction of the Bishop, is the only proof required that it has not been obeyed. The whole proceed- ing is en parte. No opportunity is given of cross-examination, or of answer, and the Bishop is not required to communicate with the Incumbent before inhibiting him. Seriouj questions have arisen whether a Monition has been obeyed, or not. Thus, in the case of Beal v. Liddell an affidavit was exhibited by Mr. Beal, in proof that the Moni- tion had not been obeyed, which was answered by an affidavit in denial sworn by Mr. Liddell. 13 If, pending an appeal, an Incumbent do not comply with the Monition, the effect of this Clause would be that he might be deprived, pending litigation, of the funds with which to carry- it on, or to defend himself. The Bishop is invested with the power of total confiscation 6f the income of an Incumbent, during the time a Monition is in force. This is an infringement upon the rights of patrons. The benefice does not become void, but the rights of the patron are suspended, and the whole of the income is placed at the disposition of the Bishop, subject only to this provision, that, after providing for the Service of the Church and the cure of souls, it shall be applied, at the discretion of the Bishop, for any ecclesiastical purposes connected with the parish. The Curate so appointed is, seemingly, to be nominated by the Bishop, and thus the lay patron is deprived of his right to have an Incumbent of his own presentation. It is difficult to perceive why the provisions of the Church Discipline Act (3 & 4 Vic, c, 86 s. 14) are not sufficient to meet the case of disobedience to a Monition, XIV. Cathedrals, {Clause 19.) By Clause 19, no person except those Clergy officially con- nected with the Cathedral, and who are specified in the clause^ has the right to complain of a violation of the law committed in a Cathedral. It is remarkable, that a different principle is proposed for the application of the forfeited ecclesiastical revenues in the case of a Cathedral, and of a Parish Church. In the former case, the revenues are to be applied towards the fabric of the Cathedral Church ; in the latter, the Bishop has an absolute discretion of appropriating the revenues (after providing for the cure of souls) to any ecclesiastical purposes connected with the parish. Having regard to the meaning given to the terms "Church" and "Incumbent" by the interpretation Clause, as likewise to the provisions of Clause 8, it may be held, that the Act gives to the Bishop powers other than visitatorial, over the fabric and the interior arrangements of the Cathedral. 14 XV. Rules and Orders. (Clause 2 2,) This provision as to framing rules and orders is not, con» sideriiig their great importance, satisfactory. They should be settled by a judicial body acquainted with the procedure and practice of the Superior Courts ; especially as it is hardly possible to suppose, that a Lord Chancellor could give adequate time to their revision. The language of Lord Chancellor Hatherley in the House of Lords, on the second reading of Lord Shaftesbury's Ecclesiastical Courts Bill^ 1^71? furnishes an illustration, that the Lord Chancellor has not time to frame rules and orders. On the subject of certain Fees prescribed in rules approved by Lord Chancellor Hatherley and the two Archbishops, in 1869, his Lord- ship said, " The fees which the Church is now receiv- ing wtih regard to presentations and consecrations cannot be kept up. I own with sorrow, that I am myself in some respects guilty. These fees were considered by the two Archbishops and the Lord Chancellor, but I think we have fixed the scale too high. We acted according to the best in- formation we had then received, but I think the fees will have to be reduced." (Report of Lord Shaftesbury's speech deli- vered in the House of Lords, June, 1871. Appendix p. 26.) Lord Cranworth also expressed his regret at having been induced to assent to a table of ecclesiastical fees issued in 1857, signed by himself and the then two Archbishops. (Ibid. p. 27.) XVI. No Period of Limitation. No time is prescribed by the Bill within which proceedings must be taken : thus differing from the Church Discipline Act (3 & 4 V. c. 86 s. 20), which provides, that all suits for offences against the Laws Ecclesiastical must be commenced within two years after the commission of the offence. A. J. STEPHENS. FRANCIS H. JEUNE. 6i, Chancery Lane, May 7, 1874. m umam^^^'j^z