§ Bill as amended considered.
MR. HUBBARD (London)
said, he wished to explain why he had not moved the Amendments of which he had given Notice in Committee. In order to do so, he would require to draw the attention of the House to what had taken place with respect to the 1st clause, which fixed the title to be the "Public Worship Regulation Act, 1874." He objected to that title as a misnomer, inasmuch as the author of the Bill, the Archbishop of Canterbury, Lord Selborne, and Lord Cairns had all declared, in and out of Parliament, that it neither touched doctrine nor discipline, that it created no new offences, that it in no way interfered with public worship, and that it was simply an improvement of the Procedure Act. He therefore proposed to alter the title to one which described the real object of the Bill. His 1044 right hon. and learned Friend (Mr. Russell Gurney) said he had no objection to withdraw the clause, and upon that he (Mr. Hubbard) withdrew his Amendment. Some hon. Members, however, forced a division on the clause, and "the Ayes" had it; but he thought the House would hardly be satisfied to leave upon the face of that new statute a title which affirmed a distinct inaccuracy.
§ SIR WILLIAM HARCOURT
rose to a point of Order. Could a hon. Member discuss in the House what had taken place in Committee?
§ MR. SPEAKER
ruled that the hon. Member was not in Order, the question before the House being that this Bill be now considered.
said, he did not understand the Forms of the House so well as the hon. and learned Gentleman opposite. He did not, however, propose any further Motion on the subject, and should leave it in the hands of those who had charge of the Bill. All he cared for was that in their legislation they should be explicit and truthful. With regard to the Schedule, when that was last under consideration, it was considered imperative that those who might be complainants under the provisions of this Bill should be qualified by being interested in the matters of which they complained—that, in fact, they should be members of the Church of England. But some hon. Members had raised doubts as to the sufficiency of that declaration, and it would be remembered that the hon. Member for Swansea (Mr. Dillwyn) asked, "What was a member of the Church of England?" and an-other hon. Gentleman, a member of that respectable body the Society of Friends, the hon. Member for Bedfordshire (Mr. Bassett), said that they all were members, some conforming and some non-conforming. The hon. Member for Merthyr (Mr. Richard) had also declared that a member of the Nonconformist Body was legally a member of the Church of England. It might be, in one sense, said that every baptised person was a member of the Church; but the clear and indisputable test was, whether or not any person was a communicant. The Sovereign of this country was, by law, required to be a member of the Church of England, and the evidence of such membership was provided by the reception of the Holy Communion 1045 in the Coronation Service. It had been his intention, therefore, to add the words "being a communicant," in the declaration required from a complainant under this Bill; but the House having twice, by large majorities, affirmed the necessity of a declaration that the complainant was a member of the Church of England, he accepted that fact as decisive of the intention that the membership should be a reality, and that the terms used were sufficient for their purpose. He trusted the Bill would now go to the country at large, and to the clergy in particular, under auspices which would induce them to give it their serious consideration. It had his entire concurrence with regard to the main object which he assumed it to have.
§ MR. RUSSELL GURNEY
, in pro-posing as an Amendment, the addition of the following new clause:—(Provisions relating to college chapels, &c.)The duties appointed under this Act to he performed by the Bishop of the diocese shall in the case of the chapels of the colleges and halls in the Universities of Oxford, Cambridge, and Durham, he performed by the visitor of such college or hall, and in the case of the university church of any of the said universities when used by such university, or in the case of the Temple Church, or of the chapels of Lincoln's Inn or Gray's Inn, the said duties shall be per-formed by the archbishop of the province. The persons entitled to make a representation in relation to the chapel of any such colleges or halls shall be three persons who shall be doctors of divinity, law, or medicine, or masters of arts who have, and for one year next before taking any proceeding under this Act, have had their names on the books of such college or hall. The persons entitled to make a representation in relation to the university church of any of the said universities when used by such university shall be three persons who shall he doctors of divinity, law, or medicine, or masters of arts, who have and for one year next before taking any proceedings under this Act have had their names on the hooks of any college or hall in such university. The persons entitled to make a representation in relation to the Temple Church shall be three barristers at law of three years' standing of either the Inner or Middle Temple, and in relation to the chapels of Lincoln's Inn or Gray's Inn shall be three barristers at law of three years' standing of the said inns respectively. If any complaint shall be made concerning the ornaments, furniture, or decorations of any chapel of the colleges or halls of any of the said universities, or of the Temple Church, or of the chapels of Lincoln's Inn or Gray's Inn, the person complained of shall be the person responsible for the custody of such church or chapel, and the visitor or the archbishop of the province, or the judge, as the case may be, shall have power to carry into effect any direction contained in any monition at the cost of the person responsible for the 1046 custody of such church or chapel. In any other matter which may be the subject of a representation under this Act the person complained of in relation to a chapel of any of the colleges and halls of any of the said universities or in relation to the university church of any of the said universities when used by such university, or in relation to the Temple Church or the chapels of Lincoln's Inn or Gray's Inn, shall be the clerk in holy orders alleged to have offended in the matter complained of; and the visitor or the archbishop of the province, or the judge, as the case may be, in the event of obedience not being rendered to a monition, shall have power, if he think fit, to suspend the person complained of from officiating in such church or chapel until obedience to the monition is promised in writing. Nothing in this Act shall affect the provision with respect to the chapels of colleges and halls of the said universities which is contained in section 6 of 'The University Tests Act, 1871.'said, the Bill was considerably altered in Committee, and the 19th section which provided the exemption of various churches and chapels was struck out. He had been told that, having charge of the Bill, it was his duty to propose a clause with regard to these exemptions. The clause proposed that the duties appointed under this Act to be performed by the Bishop of the diocese should in the case of chapels of the colleges and halls in the Universities of Oxford, Cambridge, and Durham, be performed by the visitor, or in the case of the University church, the Temple church, or of the chapels of Lincoln's Inn or Gray's Inn, the duties should be performed by the Archbishop of the province. The persons entitled to make a representation in relation to the chapel of any such college or hall should be three doctors of divinity, law, or medicine, or masters of arts, and with regard to the Temple Church and Inns of Court chapels three barristers. The right hon. and learned Gentleman concluded by moving the addition of the clause.
§ Motion agreed to; clause added to the Bill.
§ (Clause 1 Short title.)
, in moving the omission of the clause, said, short titles, as a rule, were, in his opinion, of little or no consequence, but if there was to be a short title at all it ought, he thought, to describe what was in the Bill. Now, he contended that the Bill did not relate to the regulation of public worship at all, and that being the case it was a misnomer to call it by such a 1047 title, and he should therefore propose that it be loft out.
§ Amendment proposed, to leave out Clause 1.—(Mr. Scourfield.)
§ Question, "That Clause 1 stand part of the Bill," put, and agreed to.
§ Clause 3 (Extent of Act.)
§ MR. RUSSELL GURNEY
, in moving, as an Amendment, in page 1, line 15, after "and," to insert "to the Channel Islands," said, he had ascertained at the Home Office that that had been done in the case of other Bills without consent being obtained, and that no objection had ever been made.
§ Amendment agreed to.
§ Clause as amended, agreed to.
§ Clause 6 (Interpretation of Terms.)
§ MR. DILLWYN
, in moving, as an Amendment, in page 2, line 38, to leave out the words "has transmitted to the bishop, under his hand, the declaration contained in Schedule (A), and who "said, the term "parishioner" would be very much circumscribed and narrowed if it were only held to include those who were prepared to subscribe such a document. He protested against a wider distinction than that which now existed being drawn between Nonconformists and members of the Church of England. His own opinion was that parishioners ought not to be confined solely to members of the Church of England, but the term ought to include all members of other denominations who were living in the parish. Were the scope of the clause limited as it stood in the Bill fresh opportunities of aggression would be given to Churchmen against the Nonconformists. He hoped the House would reconsider the determination it had formerly come to, and would agree to his Amendment. If it did so, the Bill would be strengthened, and it would meet with much more acceptance in the country. The hon. Gentleman concluded by moving the Amendment.
In page 2, line 38, to leave out the words "has transmitted to the bishop, under his hand, the declaration contained in Schedule (A), and who."—(Mr. Dillwyn.)
§ Question proposed, "That the words proposed to be left out stand part of the Bill."1048
§ MR. COWPER-TEMPLE
said, the definition of a parishioner which was given in the clause was for the special purpose of putting the powers of the Court in motion, and would not define the qualification of a parishioner for any other purpose. The hon. Member for Swansea was mistaken in supposing that the object of this clause was to deprive Nonconformists of any rights to which they were entitled. The clause simply provided that if any members of the Church of England were aggrieved at the way in which the services of the Church were conducted in the church which they attended, they should have a right to complain of any illegality. The effect of the hon. Member's Amendment would be to introduce an inconsistency into the Bill by allowing persons who did not attend the Church of England to prefer charges against clergymen for not performing the services properly, although they had voluntarily renounced their participation in those services.
§ SIR JOHN KENNAWAY
said, al-though he could not support the Amendment, he had no wish to narrow the boundaries of the Church of England. He rejoiced to think that all Nonconformists were members of that Church and had a right to attend her services and to be buried in her graveyards. But the feelings of the clergy on this matter should be considered. The discussion of the Bill had generated a feeling of irritation among a portion of the people of this country, and the feelings of the clergy on this matter ought to be taken into account. The clergy ought not to be enabled, through any illadvised alteration of the Bill, to say that they had been placed at the mercy of those who did not attend or conform to the services of the Church of England.
§ MR. RICHARD
Sir, I have not thought it my duty to take any part in the discussion on the clauses of this Bill, as I deemed it more respectful to the members of the Church of England to leave the matters which concerned them so intimately entirely in their hands. But the question before us now is one which touches the interests of Nonconformists, and I wish to say a few words upon it. I feel grateful to my hon. Friend the Member for Swansea (Mr. Dillwyn), for the gallant fight he has made for the principle embodied in his 1049 Amendment, and which seems to be one of great gravity and importance. This clause introduces what I cannot but regard as a dangerous innovation. I do not know whether the hon. Gentlemen who support these provisions of the Bill which restrict the right of setting the Act in operation to members of the Church of England, have well considered the full significance of the course they are taking. What they are doing is this—they are denationalizing the Church of England, converting it from the Church of a nation into the Church of a sect. And they are doing that in direct opposition to the principle which, as I have always understood them, they have hitherto consistently and strenuously maintained. That principle is this—that the Church of England is a national institution which claims to comprehend within its pale, all the members of the State, whether they wish it or not. The hon. Member for the City of London (Mr. Hubbard) finds fault with me for having made that statement on a former occasion. But I did it, not on my own authority, but on that of members of the Church of England. I do not know how far the other Members of that Church in this House are prepared to adopt his definition of its membership, as being restricted to communicants. But I could produce a complete catena patrum, a long list of authorities from the earliest times until now, in support of the view I have stated as that of the Church. I have already on a previous occasion cited the words of Hooker, who affirms that Church and State are so absolutely identical, that "no person appertaining to the one can be denied to be also of the other." Archbishop Whit-gift, again, in the time of Queen Elizabeth, said—I perceive no such distinction of the commonwealth and the Church that they should be counted as it were two several bodies, governed with divers laws and divers magistrates.… The Commonwealth of England is not distinct from the Church of England.Bishop Jeremy Taylor says—The Church is not a distinct state and order of men, but only the Commonwealth turned Christian.Lord Eldon said, that—He knew no difference, as to the persons of whom they are composed, between the Church and the State; the Church is the State and the State is the Church.1050 And if you want a more modern authority, I will give it from a highly-respected Member of this House. Everybody will admit there is not amongst us a more genuine or earnest friend of the Church of England than the hon. Gentleman the Member for North Warwickshire (Mr. Newdegate). But what did he say, in a discussion that took place two or three years ago, on the Bill for the establishment of parochial councils by the noble Lord the Member for Liverpool? Here are his words—The Church would have no right to continue established if she became merely congregational; that was, if she ceased to he the Church of the parish or of all the parishioners, whether they accepted her ministrations or not."—[3 Hansard, ccv. 851.]But you are now drawing a distinction which I believe has been hitherto unknown to the law. The law in regard to all existing ecclesiastical and parochial arrangements, has never recognized this distinction between one class of parishioners and another. All parishioners, according to the parochial or territorial system, are supposed to be under the charge of the parish clergyman. Nonconformists have a right to seats in the parish church, to burial in the parish churchyards, to be baptized and married and join the communion in the parish church. Nonconformists may, and do, act as churchwardens, though I believe they have power to claim exemption; and the most curious thing is that a Dissenter may act under the Bill without taking the declaration, if he be a churchwarden. Dissenters are members of the parish vestry, and may take part in discussions and votes on all Church questions that may come before that body. Even as regards church rates, the only disqualification imposed by the Church Bate Abolition Act is, that those who have not paid a rate cannot vote on questions relating to that particular rate. In all other respects the rights of Nonconformists are as before. In those few cases in which the election of incumbents is the right of parishioners, all the parishioners, irrespective of religious distinctions, act as the constituents. If the Church of England be a national institution, it ought to be subject to national control. And it is so in the last and highest resort. Surely this House is the whole nation acting in its representative capacity. 1051 And yet this House claims and exercises the right to deal with all the affairs of the Church, its doctrine and discipline and its Ritual. If nobody outside the Church of England has any right to intervene in matters affecting rites and ceremonies and the conduct of the clergy, why is Parliament—why is this House, which consists of Roman Catholics as well as Protestants, of Dissenters as well as Churchmen, of Jews as well as Gentiles—called to pass such a Bill as this? If only an Episcopalian can be an aggrieved parishioner, why, à fortiori, a Nonconformist ought not, by legislation, to determine the mode in which that aggrieved Episcopalian is to obtain redress. To be consistent you should enact a new test for hon. Members for this House, so that when they come up to the Table, they shall be required "solemnly to declare themselves to be members of the Church of England as by law established;" since when they come here they have to deal with every sort of question pertaining to the affairs of that Church. No apprehension, I believe, could be more absolutely groundless than that which seems to haunt some hon. Gentlemen opposite—that if the Nonconformists were not excluded, they would busy themselves in getting up frivolous and vexatious suits under the Bill, merely to bring the Church into discredit. You may trust the good sense and good feeling of the Nonconformists not to pursue such a course. We never do interfere in the internal arrangements of the Church, and there is very little probability indeed that, if the Bill were to pass without the clause, any Dissenter would ever meddle in the matter. Still, we do not wish our legal rights to be done away with by a side-wind. May I, without offence, make one other remark on the Bill generally? I confess that the discussions on this measure have not boon to me pleasant or edifying. I have felt sincere sympathy—I say this not sarcastically, but quite sincerely—with Members of the Church of England in this House, some of whom, I think, must have felt almost intolerable humiliation. At least, I should have felt so if I had been in their place; if the affairs of my Church—all its most sacred and spiritual interests, everything relating to its doctrines, its discipline, its forms of worship, were to be thrown on 1052 the floor of this House, to be dealt with by all sorts of men, some of whom may not have the smallest sympathy with it. But the members of the Church of England have at least this consolation—that the difficulties and embarrassments in which they are now involved have sprung directly from a revival of spiritual life within the Church. I remember the hon. Gentleman the Member for the University of Cambridge saying, two or three years ago, that the Church of England as it is now, and as it was 50 years ago, is a totally different thing. The hon. Gentleman did not then refer to any change in doctrine or Ritual, but to the development of a more vigorous spiritual life in the bosom of the Church. The right hon. Gentleman the Member for Greenwich repeated the sentiment on a late occasion. I agree with them both, and I cordially rejoice in the fact. You Members of the Church of England do us Nonconformists gross injustice if you doubt the perfect sincerity with which we rejoice in the additional efficiency of the Church as a Christian institution. But life also has its inconveniences. You can do what you like with dead timber. You can fabricate and fashion it into any form you please. But a living tree cannot be made to grow according to rule. What you are trying to do appears to be this. You are taking this new wine, which is full of life and fermentation, and putting it into the old bottles of uniformity, and yet you expect them not to burst. They will burst, and ought to burst, in my opinion. What the Church wants is more liberty to develop her own life. Give her that liberty, and the Church will render greater and more important services than even those which she has already rendered to the cause of Christianity in this land.
§ MR. NEWDEGATE
said, the hon. Member was right in ascribing to him a desire to maintain the national character of the Church of England; but his hon. Friend claimed for the Nonconformists a right in the Church of England. His object as a Member of that Church was to preserve her in such a condition that the claims of the Nonconformists should not be ignored. When, however, they were providing against the innovations of Rome, he feared it would impede the efficacy of their action if they admitted other Nonconformist 1053 Bodies to participate in the task. The task they had to undertake in the Bill was strictly a Church of England task. If the Dissenters were invited to join in the work, he thought they would be likely to drag the Church in an opposite direction to the Nonconformity which the Bill desired to correct; but still their action would be the action of Nonconformists. Therefore he held that the power of bringing into operation the provisions of this measure should be confined to members of the Church of England.
§ SIR HENRY HAVELOCK
supported the Amendment. If Ritualism merely meant outward ceremonies and gestures, he, for one, should not feel inclined to meddle with it at all; but it was in reality an attempt on the part of those who were bound by the most sacred obligations to uphold the Church of England to introduce doctrines which the country rejected three centuries ago, and he, in reference to this matter, claimed the right to forget that he was a Nonconformist and to recollect that he was an Englishman. By attempting to narrow the definition of the word "parishioner," members of the Church shut out some who were their warmest friends, and who would be their staunchest allies in the struggle in which they were engaged. The Dissenters did not envy or desire to partake in the endowments of the Church of England, but on the question now before the House they claimed to be members of that Church.
§ Question put.
§ The House divided:—Ayes 153; Noes 54: Majority 99.
In page 3, line 4, after the word "relates," to insert the words "or if not resident as aforesaid is owner or tenant of lands or tenements in the said parish, and is resident within seven statute miles thereof, or of any part thereof."—(Mr. Holt.)
§ Question, "That those words be there inserted," put, and negatived.
§ Clause 7 (Appointment, duties, and salary of judge).
§ MR. RUSSELL GURNEY
moved, as an Amendment, in page 3, line 14, to omit the words "of Her Majesty's High Court of Justice or Her Majesty's Imperial Court of Appeal," and to insert— 1054of any court to which the jurisdiction of any such court has been or may hereafter he transferred by authority of Parliament.
§ Amendment agreed to.
§ SIR WILLIAM HARCOURT
, in rising to propose, as an Amendment, in page 3, line 36, after "Faculties" to add—And whereas it is expedient that the judge shall receive a fixed salary, forming a charge on fees received by ecclesiastical officers; but until the laws relating to such fees shall have been amended by Parliament, and a fee fund or fee funds established, temporary provision must be otherwise made for the payment of the said salary: Be it Enacted, That any salary or emoluments which such judge shall be entitled to receive from the said offices, other than the office of judge under this Act, shall be paid over by him to the Ecclesiastical Commissioners for England, and all fees payable in respect of proceedings before the said judge under this Act shall also be paid over to the Ecclesiastical Commissioners. The Ecclesiastical Commissioners shall pay to the said judge by equal quarterly payments such salary as shall be assigned by the Queen, by Order in Council, not exceeding the sum of four thousand pounds per annum. Every such payment, or so much thereof as may exceed the salary and emoluments which the judge may be entitled to receive from the aforesaid offices, together with the fees to be paid over to the Ecclesiastical Commissioners under this section, shall be treated as an advance to be repaid from fees received by ecclesiastical officers, in such manner as Parliament may hereafter determine.said, he did not think the announcement made by the Prime Minister diminished the necessity for the Amendment. It would not be creditable to that House that they should send forth a Bill of that consequence, creating a Court of which a Judge was the pivot, without providing any means for the payment of that Judge. It might be true that a satisfactory arrangement might be made for the present, but that arrangement depended upon the life of a single man, which might fail. It would not be creditable to the House to sanction legislation of so incomplete a character that it depended on the life of a single person. He was glad the proposal to put the charge on the Consolidated Fund had been withdrawn, because it was open to considerable objection; but he would have voted for the worst arrangement, rather than have had none. The arrangement he now proposed was perfectly feasible, and in principle it was entirely unobjectionable. The original proposal was that the salary should be charged upon the fund of the Ecclesiastical 1055 Commission, not with the ultimate intention of its bearing the charge; but in the form of an advance, under guarantee, which would certainly protect the fund from loss. The ecclesiastical fund was nothing more nor less than a trust for the good of the Church, and that Bill was supported as one for the good of the Church. It was the object alike of the Bill and of the Ecclesiastical Commission to maintain the Protestant Reformation in England, and that was far more important then increasing the emoluments of particular incumbents. Therefore, if it were necessary to state the proposition broadly, it was impossible to apply the fund to a more appropriate and legitimate purpose than this. A considerable portion of it was derived from capitular and Episcopal estates. The germ of his proposition was contained in a Bill of Lord Shaftesbury's, which passed through the other House in 1872, and which the present Home Secretary took charge of in this. That Bill proposed to appoint a Judge much after this fashion—to pay all ecclesiastical fees to the common fund, and out of it to pay for the judicial work of the Church. The right hon. Member for Greenwich gave to that Bill a partial approval. The present Home Secretary showed that the income from the fees of chancellors, registrars, apparitors, surrogates, &c, amounted to £71,000 a-year, and contended that the work could be much better and more cheaply done if the fees were paid to the common fund. The right hon. Member for Oxfordshire (Mr. Henley), in his characteristic language, said there was no sport equal to the tracing out of these fees, except rathunting in a barn. The estimate made at the time was that the work could be done for £30,000, leaving £40,000 for the remission of fees and other purposes. These funds were at the disposal of the House, for the Act under which all the offices were held stipulated that Parliament might abolish them at any time without giving the holders any claim to compensation. Parliament had complete power over these offices and the fees, some of which were exorbitant; and the Government could deal with them by introducing a Bill such as that of which the present Home Secretary had charge in 1872. These fees should all be paid into a common fund, and one of the payments to be made out of it should be 1056 the salary of the Judge appointed under this Act. If Government would accept the Amendment, the Commissioners would only have to advance the money, the ultimate fund out of which the salary was to be paid being these ecclesiastical fees, which would be at the ultimate disposal of Parliament. In this way they would have ample means to give complete practical effect to this Bill, which would then be worthy of that House. Any proposal with reference to the payment of the Judge short of a really permanent and operative arrangement would be a discredit to their legislation and make it be believed that the measure was, after all, intended to be a sham. If the proposal were accepted, it would be easy, in case the office should be accepted by a Judge holding a pension, to provide that the pension should be in lieu of salary. The hon. and learned Gentleman concluded by moving the Amendment.
In page 3, line 36, after the word "Faculties," to insert the words "And whereas it is expedient that the judge shall receive a fixed salary, forming a charge on fees received by ecclesiastical officers; but until the laws relating to such fees shall have been amended by Parliament, and a fee fund or fee funds established, temporary provision must be otherwise made for the payment of the said salary: Be it Enacted, That any salary or emoluments which such judge shall be entitled to receive from the said offices, other than the office of judge under this Act, shall be paid over by him to the Ecclesiastical Commissioners for England, and all fees payable in respect of proceedings before the said judge under this Act shall also be paid over to the Ecclesiastical Commissioners. The Ecclesiastical Commissioners shall pay to the said judge by equal quarterly payments such salary as shall he assigned by the Queen, by Order in Council, not exceeding the sum of four thousand pounds per annum.
Every such payment, or so much thereof as may exceed the salary and emoluments which the judge may be entitled to receive from the aforesaid offices, together with the fees to he paid over to the Ecclesiastical Commissioners under this section, shall be treated as an advance to be repaid from fees received by ecclesiastical officers, in such manner as Parliament may here-after determine."—(Sir W. Vernon Harcourt.)
§ Question proposed, "That those words be there inserted."
§ MR. MONK
supported the Amendment. Before going into Committee, he had proposed a somewhat similar scheme; but his hon. and learned Friend had carried it out in greater detail. There could be no doubt, that if this 1057 proposal were adopted, there would be ample funds available for the payment of the Judge, although the Archdeacons were entitled to £11,000 a-year out of the sum. He thought it would be wise if the question of the separation of these offices were considered, and a fair division of the duties secured.
MR. GATHORNE HARDY
could not think the House would be inclined to accept the Amendment. The extraordinary proposal was, that the House was to dispose of a fund which was not in its possession, and to dispose of it by anticipation. His hon. and learned Friend was aware the Bill would not come into operation until the 1st of July in next year, therefore, there would be ample time to consider the question of ecclesiastical fees; but he could not think that Parliament would tie its hands as to the disposal of those fees by an Amendment on the mere Report of a Bill. He strongly objected to taking the money out of the common fund for the purpose, and which money ought to go to the poor clergy. To deal with ecclesiastical fees was one of the most serious subjects that could come before Parliament, and would require a Bill itself, and not that they should be treated in the off-hand manner proposed.
§ MR. NEWDEGATE
said, he could not see the force of the objection raised by the right hon. Gentleman who had just sat down. They knew that there was a revenue accruing from fees, and the hon. and learned Gentleman was not proposing to give up all the fees. The common fund had been provided for by the income of the Bishop's estates. He held that these funds were essential for the preservation of the Church.
§ MR. KINNAIRD
remarked that, as by the last vote they had denationalized the Church, it would be unjustifiable to take any of the money required from the Consolidated Fund. He, however, thought the Bill was very defective, when it did not provide for the payment of the Judge's salary, and in his opinion the funds for that purpose should come out of the Ecclesiastical Fund.
§ THE ATTORNEY GENERAL FOR IRELAND (Dr. BALL)
thought that an elaborate plan would be required to carry out the system now proposed; such a plan as was not at present in existence. If they had a retired Judge who was willing to take the office, 1058 there was surely no necessity for entering upon the consideration of such a plan at the present moment. To deal properly with the matter they must have such a scheme as could only be carried out by an Act of Parliament. He would suggest to the House what had been already suggested by the Prime Minister—namely, to take the Bill as it was, and leave this question of salary, and out of what funds it should be paid, for future consideration. It must be remembered that ecclesiastical fees were paid for special purposes, and could not at once be diverted from them without interfering with existing rights and interests in such a manner as to inflict an enormous amount of injury and injustice. Take, for example, the fees paid for marriage licences. They were very large; but a Royal Commission, consisting of such eminent men as Lord Selborne and Lord Chelmsford and others, recommended their abolition. He did not agree with the recommendation, but he respected the opinion of such authorities. What effect would the Amendment have, were these fees abolished? None, whatever. The principal part of the fund relied upon, would have disappeared. On the whole, it appeared to him that the proposition would only embarrass the working of the Bill, and he hoped, therefore, his hon. and learned Friend would withdraw it.
§ MR. EVELYN ASHLEY
thought that to pass the Bill without making any provision, beyond a mere temporary arrangement, for the maintenance of the Judge whom it was proposed to appoint, would be to stamp it as a farce and an unreality. In common with others, he had voted the other day for making that a charge upon the Consolidated Fund, not because he thought that was strictly the proper course, but because he recognized the paramount importance of the Bill. Whatever difficulties there were would be best overcome by declaring plainly that the salary should be provided out of the funds at the disposal of the Ecclesiastical Commissioners, which, in his opinion, ought certainly to be devoted to Church purposes. If the Bill was passed in the form now proposed, it would, to the student of the Statute Book, mean nothing at all.
§ COLONEL BARTTELOT
held that it would be a disgrace if they were to pass the Bill without making a definite arrangement 1059 as to the salary of the Judge. For his part, he should not have been sorry to see the money come from the Consolidated Fund; but the next best proposal was that of the hon. and learned Member (Sir William Harcourt.) When the Bill came from the other House there was provision for the payment of the Judge; but that provision having been hastily condemned, they were now driven to the alternative of supporting the Amendment of the hon. and learned Member for Oxford. His (Colonel Barttelot's) proposition was, that as they were going to appoint a Judge, they were bound to provide a proper salary for him.
§ MR. DODSON
thought that in fixing the salary they would also consider the work which the Judge would have to do. Unless the Act should promote litigation the Judge would really have very little to do. If he were to be paid £4,000 a-year for deciding two or three cases within the twelve-month, as seemed likely to he the case, by the experience already gained during past years in the Provinces of York and Canterbury, then he would have one of the most valuable appointments in England, and would be paid for that amount of work more than any man who went before him, or any man who was likely to come after him. He thought the suggestion which had been made by the Government was a very good one, for they had found an eminent man who would accept the office without salary, and it would he unwise to name the amount of salary until they should know what would he the amount of work to he done under the Bill.
§ MR. HARDCASTLE
thought the first object of the House should be to secure the services of a first-rate Judge, whose opinions would command confidence; and that the House could not gauge the value of the services of such a Judge, by the fact of his having only two or three causes to dispose of in a year. With regard to the proposition of the hon. and learned Member for Oxford, that the source out of which the salary of the Judge should be paid should be fees paid for the performance of various ecclesiastical functions, he (Mr. Hard-castle) thought no more reasonable course could he proposed. He knew as a fact that the work done by a considerable number of ecclesiastical officers, in 1060 respect of which they derived considerable incomes, was really merely nominal. The most leisurely man he knew was a Bishop's registrar. He feared that the Bill would go before the country in an incomplete state if, after having appointed a Judge, they provided no means for securing the continuance of a suitable salary.
§ MR. MOWBRAY
supposed there was no one in the House who did not wish to secure the services of a Judge of the highest ability, and that he should be adequately paid. But he hoped the House would not sanction the dangerous course proposed in the Amendment moved by the hon. and learned Member for Oxford. The funds at the disposal of the Ecclesiastical Commissioners were intended for the relief of spiritual destitution in populous places, and it would be impolitic and unjust to appropriate them to the payment of a Judge's salary. He might also remind the House that in the Court of Arches last year there were only three or four cases, such as would come under the provisions of this Bill, heard and decided, so that he could not help thinking a salary of £3,000 or £4,000 a-year was rather too much. At all events, it could not he paid out of the funds at the disposal of the Ecclesiastical Commissioners.
MR. HUBBARD (London)
asked, out of what fund the salary of the Judge was to he taken, if it was not to he taken out of an ecclesiastical fund? He thought the application of the funds administered by the ecclesiastical Commissioners to the payment of the salary of the Judge, was one of the most legitimate purposes to which that fund could he applied.
said, it was plain to him, from the speech of the hon. Member for South-East Lancashire (Mr. Hardcastle), and from some other speeches, that the Motion before the House was not understood. The hon. Gentleman stated, and he (Mr. Gladstone) had, no doubt, most sincerely believed, that the proposal provided for the salary of the Judge out of ecclesiastical fees. But the proposal was nothing of the kind. To say that there were ecclesiastical fees out of which the salary of the Judge could be paid, was pure, absolute, undiluted moonshine. His hon. and learned Friend said there were plenty of fees out of which to pay the Judge. If so, why did his hon. and 1061 learned Friend go to the Ecclesiastical Commission? If, as had been frequently said, there was a fund in the hands of the Ecclesiastical Commissioners, out of which the salary of this Judge could be paid, let him be paid by all means; but he (Mr. Gladstone) believed that such a fund did not exist. He was very glad that the right hon. Gentleman at the head of the Government made the proposition which he did on this subject, because it made this much at least plain—that there had been no difficulty at the outset in providing the salary for a first-rate Judge. He understood that a person of the highest eminence had agreed to serve in that office; a proceeding which confirmed the fact that, from the amount of judicial power that there was in the country, there was no doubt that the anticipated difficulty was entirely visionary. He affirmed that that was a proposal to take the salary of a Judge out of the sole fund of a public character which was available for increasing the stipends of poor clergy, and establishing new livings to meet the spiritual wants of the people. The explanation that had been offered as to how the funds were to be provided was the purest speculation. It was supposed that if Parliament had time for the purpose, and if there happened to be hon. Gentlemen willing to devote time and pains to ecclesiastical affairs, and if the strong interests which were involved did not happen to be able to battle successfully against interference, these benevolent gentlemen might be able to provide funds. Where were these philanthropists to be found? Was it so easy to find men who would not only sacrifice their own convenience, but expose them-selves to every kind of vexatious opposition, to attain that result? There was not the slightest chance of any reform of the fees with the view of providing the Judge's salary once it was fixed on that fund, and he was quite sure all enthusiasm on that point would vanish into thin air. To suppose that at some time or another somebody would be found willing to undertake a most difficult task, for the purpose of adding several thousand pounds to the funds of the Ecclesiastical Commissioners, was a pure delusion. This was, in short, a proposal to pay £1,000 more than the framers of the Bill or the House of Lords deemed necessary, and that not out of 1062 fees, but out of a common fund, which he was confident the unanimous sentiment of the House would again declare ought not to be applied to the purpose.
§ Question put.
§ The House divided:—Ayes 85; Noes 120: Majority 35.
§ Clause 8 (Representations by arch-deacon, churchwarden, or parishioners).
§ MR. RUSSELL GURNEY
moved, as an Amendment, in page 4, line 19, the omission of the words "forbidden by law," with reference to alterations in, or additions to, the fabric, ornaments, or furniture of a church; with a view of substituting in the same line, after "made," the words "without a faculty from the ordinary authorizing or confirming such alteration or addition."
§ THE ATTORNEY GENERAL FOR IRELAND (Dr. BALL)
said, he thought the words proposed to be introduced were too ambiguous, and that they would lead to litigation. The proper expression was that which would guide the Ecclesiastical Judge in dealing with the question—namely, the word "unlawful." The Ecclesiastical Courts did not decide those matters with reference to the existence of a faculty from the Bishop, but simply with reference to the legality or illegality of the acts complained of, and Lord Stowell, who was the highest authority on such subjects, laid down the principle that even if some change had been made without a faculty, the question for the Court to determine was whether or not the thing was wrong in itself; and he (Dr. Ball) believed that the ecclesiastical law would be found quite adequate to remove everything that was really objectionable. The remarkable case of the tombstone inscribed "Pray for the souls of," was not decided with regard to a faculty, nor was the case of "Westerton v. Liddell." He much preferred the word "unlawful" to the ambiguous phrase "forbidden by law."
§ SIR WILLIAM HARCOURT
said, the right hon. and learned Gentleman's learning was thrown away, as it had nothing to do with the Amendment. Complaints might be made against some ornament or object in a church which could not perhaps be said to be strictly unlawful in itself, but which might be removed because it was put up without a Faculty. He would give as an example 1063 the setting up of a confessional box. The right hon. and learned Attorney General for Ireland, with his knowledge of ecclesiastical law, would not, he was sure, undertake to say that a confessional would be unlawful—at least, it had not yet been so decided. But the protection against such an object would be, that the Bishop had not given a Faculty for it, and it was important to preserve this safe-guard. The Bishop might now say that he displaced it, because no Faculty had been obtained for setting it up. He did not know why his right hon. and learned Friend had become the vehement and eloquent opponent of that Bill that afternoon for the first time; but he knew that the Bill would be utterly useless without the alteration, and he therefore hoped that the House would support the right hon. and learned Recorder in correcting the oversight.
MR. GATHORNE HARDY
said, the Bill had been all along represented as making no change in the law, but only in procedure. It was now clear that the Bill was about to change the law. His right hon. and learned Friend the Recorder proposed to leave out the words "forbidden by law," and to substitute others; but in his (Mr. Hardy's) opinion, it was not necessary to do so, recollecting that Lord Stowell dealt with questions of law of this kind on principles that it was not now necessary to depart from. If his right hon. and learned Friend, therefore, pressed his Amendment, he would alter not only the Bill, but the mode of procedure, inasmuch as Lord Stowell laid it clown that the great thing to know was whether a thing was lawful in itself, and if it were lawful, he would not enter into the question of the Faculty. He (Mr. Hardy) said the confessional was a question which, as to its illegality, was not yet decided, although he himself thought there could be no question as to its being unlawful, and it was better to try what the present law would do before making a new law. Let the Bill be confined to questions of ecclesiastical procedure without altering the ecclesiastical law.
§ MR. RUSSELL GURNEY
said, the Bill would not in the slightest degree alter the law. He had never said that this Bill was merely confined to procedure, but had always recommended it as a measure to enable the law to be enforced. He believed the hon. and 1064 learned Gentleman (Sir William Harcourt) had correctly stated the law, and that if a confessional were set up, the only way in which it could be at once removed was by showing that a Faculty had not been obtained.
said, that a controversy of great importance had been raised by the right hon. and learned Recorder. The right hon. Gentleman the Secretary of State for War had stated that this was no longer to be described as a Bill of procedure, but as a Bill for the alteration of ecclesiastical law. It was of the utmost importance to get at the bottom of the assertion of the right hon. Gentleman, and he trusted the hon. and learned Attorney General would give the House his opinion on this subject. Lord Stowell had drawn a distinction between strict law and matters done under a Faculty. Here, a thing was to be declared unlawful unless a Faculty had been obtained for it. Nothing came up to the demands of strict law unless a Faculty had been obtained for it, and there was a great convenience in retaining that strict law. But that was not the law by which they were governed according to the declaration of Lord Stowell, endorsed by Sir Robert Phillimore, and quoted by the right hon. and learned Attorney General for Ireland. The practical course of the law was, that new objects were introduced into churches, and, in point of fact, if anyone considered what the Church was, they would see that all manner of new objects must be continually introduced; but for the most part they were of very small importance indeed, and when one of those objects was questioned, the matter went before the ordinary and was inquired into. They had heard in the course of the discussion of the confessional. Well, of course, everything was cited that could warm men's blood, and disturb their judgments, and draw them from the calm consideration of the case. But what was the difficulty in regard to the confessional? As he understood, from what had been said by the hon. and learned Member for Oxford (Sir William Harcourt), if at present the confessional was challenged before an ecclesiastical Judge, it was in his power to condemn it, because it had been put up without a Faculty. The practical course as laid down by Lord Stowell was, that the question tried before the 1065 Judge was not, as a rue, whether there had been a Faculty or not, but whether the object was lawful or unlawful. The effect of the alteration proposed by the right hon. and learned Recorder was, that it would not be tried whether the object was lawful or unlawful, but it would be simply whether a Faculty had been obtained or not. He could not understand, therefore, how it could be said that the law was not altered. According to the proposal made, a Faculty would be required for everything beforehand, even for now hymn books, supposing it were a new edition containing three or four new hymns. ["No, no!"] Well, if the illustration were objected to, he would not take one; but there were a multitude of objects connected with the furniture and services of the Church as to which the power of the ordinary was at present absolute; he might be reasonable or unreasonable, but he had arbitrary power, and its exercise had never produced any inconvenience. The proposal now made was, that every clergyman who wished to avoid having a complaint made against him must obtain a Faculty beforehand—a matter which involved application to a judicial officer and the payment of money. At present, in 99 cases out of 100 there was no difficulty at all, and in the hundredth, for the cause of of-fence, whether it were the introduction of a confession box, or whatever it might be, the law was still available. Was it desirable to introduce these preliminary proceedings in 99 cases out of 100? Surely, it was imposing upon clergy-men and churchwardens a good deal of unnecessary trouble and expense. Before a Faculty could be issued, there must be inquiry, if there was the slightest cause for doubt, and without any necessity, hardship, delay, and expense would be incurred.
§ SIR HENRY JAMES
said, he interposed reluctantly, but he must contend that the full question turned on the power given by the 8th and 9th clauses of the Bill, and the way in which the alteration was to be effected by the Amendment, which was one entirely of procedure and not of amendment of the law. To use a Common Law illustration, the Amendment merely gave one the right to issue a Writ. With respect to a Faculty, when a question came before a Judge, it was open to him to consider 1066 whether it was lawful or not; and the Judge, whether the Faculty was written or not, would have to determine in the manner in which Lord Stowell determined.
THE ATTORNEY GENERAL
said, that, having been so pointedly referred to by the right hon. Gentleman opposite, he could not abstain from saying a few words in reference to the proposed Amendment; but he was not disposed to attach so much importance to it as some hon. Members did. The right hon. and learned Gentleman, the Recorder, had, in the first instance, proposed to omit the words "forbidden by law" and to substitute for them the words, "without a faculty from the ordinary authorizing or confirming such alteration or addition;" but now he proposed to substitute the words "without lawful authority." He (the Attorney General) thought that the words "forbidden by law" and "without lawful authority" would be found in practice to have substantially the same effect; but, viewing thorn as a lawyer, he thought the words "without lawful authority" were some-what more extended in their operation. Instances had boon suggested, and it would not be difficult to suggest others, of acts and practices which were not for-bidden by law, but for the doing of which there was no lawful authority.
§ Amendment agreed to; words struck out accordingly, and "without lawful authority" inserted in their place.
§ Clause 9 (Proceedings on representation).
§ On the Motion of Mr. RUSSELL GURNEY, several Amendments made.
, in moving, as an Amendment, in page 5, line 26, to leave out from "provided also" to "representation" in line 43, inclusive, said, he was about to ask the House to reconsider a judgment at which, on a recent sitting, it had arrived after a very short discussion in Committee, and, as he thought, without the extreme gravity of the matter involved in that judgment really being perceived. He must, however, apologize to the House for not having been present himself on that occasion, as a very urgent private matter had required him to be elsewhere. He had made an offering in the cause of peace, and he trusted that the Bill would advance with very little further discussion 1067 after the Amendments in the 9th clause; but he had not the "slightest idea that any change would be made which would involve matters of such importance, and really destroy the balance of the Bill. He made that statement on public grounds, and without the slightest reproach to anyone, and hoped his observations would not savour of the spirit of controversy. He wished to obtain the calm attention of the House to the subject, and to appeal to the Government to consider whether the general principles of equity did not require the Amendment which he would propose—namely, that they should revert to the form of the clause as it stood before the alteration was made in it that was suggested by the hon. Member for North-East Lancashire (Mr. Holt), which provided for what was called an appeal, but what was really no appeal at all, but only a reference to the Archbishop, and which invested the Archbishop with an original jurisdiction to institute suits, or allow them to be instituted, in a diocese not his own. That, he contended, was unequal, impolitic, and contrary to the principles of our law with regard to episcopal and archiepiscopal powers, and, if fit to be done at all, it was wrong to propose such a fundamental change on the 28th July, and without giving the clergy an opportunity of considering it. In discussing the matter, the House must cast aside all thought as to particular persons, or whether certain individuals were more trustworthy than other individuals; they must discuss the question entirely in the abstract, without the smallest supposition that anybody was likely to act otherwise than according to his best convictions and his sense of duty. When the matter was previously discussed in the House, he was glad to observe that those legal authorities to whom the House naturally looked on all important points of ecclesiastical law voted in the minority. He alluded to the Attorney General for England, and still more to the right hon. and learned Gentleman the Attorney General for Ireland, because he was the only man belonging to the Anglican community in the House, whom he knew of, whose duty it had been to study ecclesiastical law, and to administer it in the capacity of a Judge. Under the sanction of those high legal authorities, it would not, he hoped, be thought presumptuous if he 1068 endeavoured to draw attention to that subject, and tried to induce the House to revert to the original form of the Bill. In the first place, he said it was not an appeal that had been given. The provision as it originally stood in the Bill was, that the Bishop was to follow a certain course of proceeding, unless he was of opinion that the suit should not proceed; and if the Bishop was of opinion that it should not proceed, he was to enter his reasons for that opinion in the records of his diocese. That was the original form of the Bill; but as it now stood, in consequence of the Amendment of which he complained, the Bill provided that if the Bishop was of opinion that the suit ought not to proceed, the matter should then go the Archbishop, that the documents should be sent to the Archbishop, who, if he was of opinion that the suit should proceed, was then to send his decision to the Bishop, and the Bishop was thus to become the servant of the Archbishop and the instrument of that decision, and to put the matter forward contrary to his own conviction and exactly as if his conviction was the opposite of what it was. That was not an appeal. An appeal must be open to either party, but that was open to one party only. It was saying to one party—" If the Bishop decides for you, his judgment so far will be final; but if he decides against you, there is somebody else to go to who may reverse his decision." The Committee could hardly have been fully aware of the one-sided character of that proposal when it adopted it. But, secondly, it was not an appeal because the original procedure was not a judicial procedure, and because the Archbishop who was to be called on to reverse the decision of the Bishop would have inferior means of judgment to those which the Bishop possessed. The Bishop in his own diocese ought to know, and, in most cases, did know, the circumstances of the parishes in it; he was in personal relation with those who were connected with those parishes; and therefore, at any rate, he would know where to go to obtain information. It would be impossible to place on record all the information he received, and that record could hardly be more than a summary of his reasons, because it was not merely a complaint and its answer, but he would have to consider all the circumstances of 1069 the case. Neither could he transmit that consideration of all the circumstances of the case to the Archbishop, who would therefore have to try it with means of judgment altogether inferior to those of the Bishop. That was fundamentally at variance with legal principles, for a Court of Appeal must always have all the material accessible to the Court below; and in saying it, he spoke in the presence of the right hon. and learned Gentleman the Attorney General for Ireland, who if he (Mr. Gladstone) were wrong, would correct him. Those were exceedingly strong reasons; but he would give another still stronger. This proposal he did not hesitate to say was at variance with all principles of ecclesiastical law. The relation of Bishops to Metropolitans and of Metropolitans to Suffragans was a matter which had as deep a root in ecclesiastical law and in the history of Christendom as any other question of ecclesiastical law that could be raised; and if alterations of an essential character were to be introduced into those relations, that ought undoubtedly to be done with the utmost deliberation. It seemed to have been thought by the hon. Member who made that proposal, that wherever there was a convenience, or supposed convenience, in putting the Bishop out of the government of his diocese, and putting the Archbishop into the government of it, that might be done. That, however, all the law of Christendom had always forbidden. The regulation of the relations between Metropolitans and Suffragans lay at the very foundation of the structure of an Episcopal Church, and the great canonists had laid it down that the proper function of the Metropolitan was to consecrate the Suffragan, and then to govern him and see that he did his duty; and in the event of the Suffragan refusing or neglecting to do his duty, then in certain cases the Metropolitan was allowed and required to interfere. But nothing was more strictly forbidden by our law, and, indeed, the whole law of Christendom, than the immediate government of the diocese of the Suffragan by his Metropolitan. He was supported in the view he had taken by the learned canonist Van Espen, who maintained that it was only in the case of a breach or neglect of duty—in the case of actual misconduct on the part of the Suffragan—that his Metropolitan could legitimately 1070 interfere in the government of his diocese. A breach of duty, how-ever, was one thing, but the exercise of an honest discretion in the discharge of a duty imposed on the Bishop by Parliament was not a breach nor a neglect of duty. That was the principle of the Reformation, and to the principles of the Reformation they were now endeavouring to give effect. The statute of 23 Henry VIII., chap. 9, confirmed that view of the relations between the Metro-politan and his Suffragan. The canon law of the Church and the statute law of England proceeded upon the principle he had laid down, and both were equally clear in maintaining the independence of the Bishops as against the interference of the Metropolitan. The Archbishop had frequently been called in as a restraint to a Bishop—that was a position known to the law. The Arch-bishop, too, could be called in on behalf of an injured person—as, for instance, on the withdrawal of the licence of a curate—but never to institute a suit. But here was a proposal—for the first time in the history of our law and of the history of the ecclesiastical law of Christendom—to supersede a Bishop in the government of his own diocese on a question he had conscientiously decided. Further, it was a great and cruel hard-ship that every clergyman who was the object of one of these complaints, besides being examined by his own Bishop—which was quite right—should be subject to a double ordeal, before he knew whether he was to be tried or not. He was, under the Bill, to undergo one examination by his own Bishop, and then, being acquitted, he had to be examined again by the Archbishop, who in the very nature of things could not know so much of the real character of the case. But even if all these things were in the abstract right to be done, as he had said before, they were not right to be done, on the 28th of July, in a Bill which had been four and a-half months before the country, and in regard to which the country long ago believed that its fundamental principles were fixed. If the hon. Member for North-East Lancashire was afraid that some one or more of the Bishops would improperly decline to act when called upon, he must know that there was power to institute the suits in any one of the dioceses, or in the diocese of the Archbishop, 1071 if the suitors had more confidence in the Archbishop, than in the Bishop of the diocese. There was no plea either of necessity or expediency in support of a course which would be productive of grievous hardship and great irregularity. He was convinced that in reference to this matter the House was playing with edge-tools, and that the excitement which at one time existed with reference to the Bill would never have calmed, if the proposal to which he was alluding had been included in the Bill as originally drawn. It had, however, done so; but he would warn those hon. Members who supported the proposal that they were playing the game of those whoso purposes they did not wish to advance.
§ And it being now ten minutes to Seven of the clock,
§ Further Proceeding on Consideration of the Bill, as amended, adjourned till this day.
§ And it being now five minutes to Seven of the clock, the House suspended its sitting.
§ The House resumed its sitting at Nine of the clock.