Page 2, line 33, after 'incapacity,' insert 'existing.'"—(Mr. Lloyd Morgan.)
MR. LLOYD MORGAN (Carmarthen, W.)
I beg to move this Amendment, which will make the clause run as follows—By reason of physical or mental infirmity or incapacity, existing pecuniary embarrassment.I do not know whether the words as they stand imply that, but I have my doubts on that question, and I cannot see that any harm will be done by inserting the word "existing," so that the words "pecuniary embarrassment" do not refer to pecuniary difficulties which a clergyman might have contracted some time previous to the proposed institution. It may be that he had contracted debts at the university, or had at some time or other been in pecuniary difficulties, long anterior to the proposed institution. It seems to me to be rather hard that pecuniary embarrassment should refer to something which does not exist at the time. Personally, I feel that the question of pecuniary embarrassment being a ground for refusing to institute would operate rather harshly at any time, and at any rate the word "existing" can do no harm by being inserted. On the contrary, it may do some good. It stands in the same order of Amendment as that which we carried in the Standing Committee on Law, that misconduct should be misconduct of a grave character, and the Committee inserted the word "grave" before the word "misconduct," in order that the misconduct should not be of an ordinary kind, but should be misconduct of a serious kind. For the very same reason I move here the word "existing" to be inserted, so that the bishop might clearly understand that it refers to pecuniary embarrassment which the proposed presentee was in at that time when he was asking to be instituted. I daresay it may be said that the clause does mean 1083 that, but I do not think that any harm can be done by emphasising the fact.
§ THE ATTORNEY GENERAL (Sir R. E. WEBSTER,) Isle of Wight
I have no doubt whatever as to the meaning of the clause. There will be serious objections to inserting the word "existing." I hope that the honourable Member will not press his Amendment, because I do not doubt that the whole clause refers to an existing state of things. The objection to putting in words like the one proposed, which I may say is not in the same category as the word "grave," would be this: supposing there was a case of a person who is in a position of pecuniary embarrassment—that is obviously a circumstance which the bishop could not put out of consideration altogether. It will be much better to leave the words as they stand, because although I am in no doubt as to the words referring to an existing state of things, I am quite sure that it would be very unwise to insert the word "existing."
§ Amendment, by leave, withdrawn.
Page 2, line 33, leave out 'pecuniary embarrassment' and insert 'insolvency'"—(Mr. Lloyd-George.)
§ MR. LLOYD-GEORGE (Carnarvon)
In moving to omit the words "pecuniary embarrassment," I may say that I never heard of them being inserted in any Act of Parliament before, and I am not quite sure as to what their definition would be. "Insolvency" is a legal term, and one knows what it means, but "pecuniary embarrassment" is a very ridiculous term indeed. Take the case referred to by my honourable Friend, a man leaving college—he has not paid his college debts off altogether, and it may be some time before he is able to do so. Would that be a case of "pecuniary embarrassment?" Perhaps the Solicitor General will tell us what is meant by these words. In my opinion, if these words mean anything they are in substitution of the word "insolvency." If that is so, I would suggest that it would be much better to insert the word "insolvency," which, at any rate, has a tangible meaning.
§ THE SOLICITOR GENERAL (Sir R. B. FINLAY,) Inverness Burghs
I hope that the House will not accept the Amendment. There are a great many kinds of pecuniary embarrassment, there is a condition of pecuniary embarrassment just short of actual insolvency, which would yet disenable a man from discharging the duties effectively of a cure of souls in a parish. He might have any number of judgment summonses out against him, and if this Amendment is accepted that state of circumstances would not apply. He might not be absolutely insolvent, and yet he might not be able to pay his debts. If the honourable Member by "insolvency" means not being able to pay his debts, I cannot quite see what advantage is gained by substituting "insolvency" for "pecuniary embarrassment." The one is quite as vague a term as the other. "Pecuniary embarrassment" means being in an embarrassed state pecuniarily, and the acceptance of the Amendment of the honourable Member would lead to any amount of legal definition. If a man is seriously embarrassed pecuniarily, he is not a man who should be in charge of a parish. As regards the illustration which the honourable Member put, as to the debts of a man being undischarged on leaving college, that, I think, would be, and should be, a disqualification for a sacred office. I think that the honourable Gentleman forgets that the application of this clause is this, that the bishop has to find that a man is unfit for the discharge of the duties of a benefice by reason of his pecuniary embarrassment, and no bishop would refuse to institute a man who was only temporarily embarrassed, and which temporary embarrassment arose under no discreditable circumstances, because that alone would not necessarily be a disqualification for undertaking the sacred duties of a benefice. I submit these considerations to the honourable Member, and I hope that he will not press his Amendment.
§ MR. ROBSON (South Shields)
There are circumstances of pecuniary embarrassment which do not come within the description of insolvency, and yet which would interfere with a clergyman fittingly discharging the duties appertaining to a cure of souls, but I do not think 1085 that that exactly meets the point we are now discussing. Pecuniary embarrassment might exist, and yet might not exist in the sense conveyed by the wording of this clause. These words cover too much, and they cover too much under circumstances which really give rise to considerable danger. It is not as if these words are to be interpreted by any absolutely impartial or judicial authority, but they are to be considered and applied with a result that may be absolutely fatal to any young clergyman by a bishop. In other words, these words "pecuniary embarrassment" do very greatly enlarge the discretion of the bishop; that is the only interpretation to be placed upon them in their present vague form. I understand my learned Friend below the Gangway to suggest that if yon take words of a less vague character and which are capable of a better legal definition he will not object, but as long as you have words of such an extremely wide character as this, then they certainly ought not to be left for their definition to a bishop of the Church of England. I am not saying this with any disrespect to bishops, but I can very well see how these words might operate. The bishop may have some objections to a man on some ground of a totally personal character. That man may be in a state of what I may call ordinary pecuniary embarrassment; the fact may be that he has a large family and a small income, and owing to this personal prejudice the bishop might say, "Oh, you are in a state of pecuniary embarrassment, and I cannot institute you," thus refusing to institute on grounds which no lay tribunal would think of. The bishop may act, to a certain extent, under ecclesiastical bias, and I venture to suggest that these words enable a bishop to act under ecclesiastical bias with a result that may be so extremely serious to young clergymen that I ask that these words should be made clear and definite, so as to limit as far as possible such a state of things arising as I have indicated.
§ MR. GEDGE (Walsall)
I think the word "insolvency" would operate very much harder than the words "pecuniary embarrassment." A man is, technically, 1086 in a state of insolvency if he cannot pay 20s. in the £, and yet a man may be unable to pay 20s. in the £ on what he owes at the present moment, and not be suffering from pecuniary embarrassment, because there is no call upon him to pay his debts. And he may be able to show the bishop that he will be able to pay So-and-so or Such-and-such an amount before very long. That man, although, according to the strict definition, he is unable to pay 20s. in the £, and is insolvent, as a matter of fact is not pecuniary embarrassed. Therefore, I think the words "pecuniary embarrassment" are better than the word "insolvency," and I hope that the House will not accept the proposed Amendment.
§ * MR. H. S. FOSTER (Suffolk, Lowestoft)
I think with the honourable Gentleman who last spoke on the other side of the House that there are cases of pecuniary embarrassment which ought not to disentitle a man from being instituted to a living, and what I desire is that this state of pecuniary embarrassment should be properly and strictly defined. The words are so large in their meaning that it is impossible to say how any bishop, at any particular time, is going to interpret them. I have an Amendment later on in the Paper which, I would suggest to my honourable Friend opposite, will better meet the case than his proposed Amendment, because it is, I believe, a proper legal definition of the word "insolvency." The honourable Member will see the Amendment a little lower down on the Paper—After 'embarrassment' insert 'as evidenced by an act of bankruptcy, insolvency, or sequestration of a living.'I am told that this is a much clearer definition than the word insolvency, that there is no definition of the word "insolvency" as such, and therefore the acceptance of the Amendment we are now discussing would defeat instead of promote the object which my honourable Friend has in view. I am not aware that the words "pecuniary embarrassment" have ever been inserted in an Act of Parliament before as a ground of disqualification 1087 without any restriction and without some evidence by which the embarrassment is to be judged. The question was asked in Committee, what is the bishop going to do if the allegation is made against a presentee that he is in a state of pecuniary embarrassment? The clergyman has been doing good work in the Church of England, he has large responsibilities and small means, he is in a state of more or less pecuniary embarrassment. When he gets an opportunity of preferment—when he will be able to free himself from this state of pecuniary embarrassment by reason of some better stipend—it can be urged against him, perhaps with some sinister motive, that he is in a state of pecuniary embarrassment, and the law may be strained against him, and he may be without power to obtain redress, because his right of appeal is on a question of fact, and the judge finds that the question of fact is proved—namely, that he is in a state of pecuniary embarrassment—and his appeal would be dismissed. That being so, he has no remedy. The fact being proved, the man is deprived by the operation of these words of all chance of freeing himself, and with a frightful slur on his character, because under this Bill, be it remembered, on all these grounds contained in this clause there is a new step to be taken—a new consideration, namely, publicity. A man having been presented, his name is to be posted on the church door for a month, and cannot be kept secret. Having been posted on the church door, if it be found that he is in a state of pecuniary embarrassment, whatever that may mean, the refusal to institute takes place, and that man is practically ruined for life. That consideration makes it all the more important, when we are dealing with this question of imposing new disabilities, that, while we ought to prevent unfitness, we ought not to allow zeal to permit any injustice to be done. The First Lord of the Treasury stated that if there was any lack of definiteness with regard to any 1088 of these grounds he would desire to see it cleared up, so that each new offence might be fairly and strictly defined. I hope the words "pecuniary embarrassment" will remain with a qualification, but if the Government are going to refuse any definition or qualification of the words "pecuniary embarrassment," then I for one shall support the Amendment of my honourable Friend.
MR. BRYNMOR JONES (Swansea, District)
I submit that the fact of a man being in debt simply, without something taking place of a discreditable nature, ought not to be a matter that should be taken into account. If a presentee has compounded with his creditors, if it is shown that many judgment summonses are hanging over his head, or if it is shown that he is an undischarged bankrupt, I can well understand that he would not be a fit person to be appointed, as a general rule, to a benefice. But I submit to the Attorney General that the mere fact of a man being in debt, without anything taking place of a discreditable kind, ought not to be taken into account by the bishop in considering the fitness or the unfitness of a man for appointment to a benefice.
§ * SIR F. POWELL (Wigan)
I would point out that this is not a new proposition. These words were before the Grand Committee on Law in 1896, 1897, and again in 1808. The intention is to make them of a general character, so as to meet cases of the like character as they successively arise. The definition is, I would remind the House, guarded by the words in the previous line, which provide that the disqualification shall be such as to unfit a man for the duties of a particular benefice.
That the words 'pecuniary embarrassment' stand part of the Bill.
§ The House divided:—Ayes 107; Noes 48.—(Division List No. 158.)1089
|Acland-Hood, Capt. Sir A. F.||Gedge, Sydney||Monk, Charles James|
|Arnold-Forster, Hugh O.||Gibbons, J. Lloyd||Morrison, Walter|
|Atkinson, Rt. Hon. John||Goldsworthy, Major-Gen.||Murray, Rt. Hn. A. G. (Bute)|
|Austin, M. (Limerick, W.)||Gordon, Hon. John E.||Nicol, Donald Ninian|
|Baird, John G. Alexander||Gorst, Rt. Hon. Sir J. E.||Phillpotts, Captain Arthur|
|Barton, Dunbar Plunket||Graham, Henry Robert||Pollock, Harry Frederick|
|Beach, Rt. Hn. Sir M. H. (Brist'l)||Greene, H. D. (Shrewsbury)||Powell, Sir F. Sharp|
|Blundell, Colonel Henry||Gull, Sir Cameron||Purvis, Robert|
|Cavendish, R, F. (N. Lancs)||Gunter, Colonel||Rasch, Major Frederic Carne|
|Chaloner, Captain R. G. W.||Hanbury, Rt. Hon. Robt. W.||Reckitt, Harold James|
|Chamberlain, J. A. (Worc'r)||Hardy, Laurence||Renshaw, Charles Bine|
|Cochrane, Hon. T. H. A. E.||Hill, Rt. Hn. Lord A. (Down)||Royds, Clement Molyneux|
|Coghill, Douglas Harry||Hill, Sir E. Stock (Bristol)||Seely, Charles Hilton|
|Collings, Rt. Hon. Jesse||Howard, Joseph||Sharpe, William E. T.|
|Colomb, Sir J. C. Ready||Jeffreys, Arthur Frederick||Sidebotham, J. W. (Cheshire)|
|Cooke, C. W. R, (Hereford)||Johnston, William (Belfast)||Stanley, Lord (Lancs)|
|Courtney, Rt. Hon. L. H.||Jolliffe, Hon. H. George||Stock, James Henry-|
|Cranborne, Viscount||Kennaway, Rt. Hn. Sir J. H.||Stone, Sir Benjamin|
|Cross, Alexander (Glasgow)||Kenyon, James||Tomlinson, W. E. Murray|
|Curran, Thomas (Sligo, S.)||Lafone, Alfred||Tully, Jasper|
|Curzon, Viscount (Bucks)||Lawrence Sir EDurning-(Corn.)||Warde, Lt.-Col. C. E. (Kent)|
|Dalrymple, Sir Charles||Lawson, John Grant (Yorks)||Warr, Augustus Frederick|
|Daly, James||Llewellyn, E. H. (Somerset)||Webster, Sir R. E. (I. of W.)|
|Dane, Richard M.||Llewelyn, Sir Dillwyn-(Sw'ns'a)||Welby, Lieut.-Col. A. C. E.|
|Denny, Colonel||Loder, Gerald W. Erskine||Wentworth, Bruce C Vernon-|
|Douglas, Rt. Hon. A. Akers-||Long, Col. C. W. (Evesham)||Williams, J. Powell (Birm.)|
|Drage, Geoffrey||Lopes, Henry Yarde Buller||Willoughby de Eresby, Lord|
|Duncombe, Hon. H. V.||Loyd, Archie Kirkman||Willox, Sir John Archibald|
|Egerton, Hon. A. de Tatton||Lucas-Shadwell, William||Wilson, John (Falkirk)|
|Fardell, Sir T. George||Macaleese, Daniel||Wilson, J. W. (Worc'r, N.)|
|Fellowes, Hon. A. Edward||Macartney, W. G. Ellison||Wilson-Todd, W. H. (Yorks)|
|Finlay, Sir R. Bannatyne||McCalmont, Mj.-Gen.(Ant'mN)||Wortley, Rt. Hn. C. B. Stuart|
|Fisher, William Hayes||McIver, Sir Lewis||Wyndham-Quin, Maj. W. H.|
|Flannery, Fortescue||McKillop, James|
|Fletcher, Sir Henry||Mellor, Colonel (Lancashire)||TELLERS FOR THE AYES—Sir William Walrond and Mr. Anstruther.|
|Flower, Ernest||Milbank, Sir Powlett C. J.|
|Folkestone Viscount||Milward, Colonel Victor|
|Barlow, John Emmott||Healy, T. J. (Wexford)||Robertson, Edmund (Dundee)|
|Bayley, Thomas (Derbyshire)||Hedderwick, Thomas C. H.||Robson, William Snowdon|
|Billson, Alfred||Holburn, J. G.||Samuel, J. (Stockton-on-Tees)|
|Brunner, Sir J. Tomlinson||Horniman, Frederick John||Sullivan, Donal (Westmeath)|
|Caldwell, James||Kinloch, Sir J. G. Smyth||Thomas, David A. (Merthyr)|
|Cameron, Robert (Durham)||Lawson, Sir W. (Cumberland)||Ure, Alexander|
|Carmichael, Sir T. D. Gibson||Leese, Sir J. F. (Accrington)||Walton, J. (Barnsley)|
|Causton, Richard Knight||Lewis, John Herbert|
|Clough, Walter Owen||Maddison, Fred.||Wedderburn, Sir William|
|Crombie, John William||Maden, John Henry||Wilson, John (Govan)|
|Davies, M. Vaughan-(Cardigan)||Morgan, J. L. (Carmarthen)||Woodhouse, Sir J T (Hudd'rs'fld)|
|Duckworth, James||Nussey, Thomas Willans||Woods, Samuel|
|Farquharson, Dr. Robert||Palmer, Sir C. M. (Durham)||Yoxall, James Henry|
|Fenwick, Charles||Pease, A. E. (Cleveland)|
|Foster, Harry S. (Suffolk)||Pease, J. A. (North'mberland)||TELLERS FOR THE NOES—Mr. Brynmor Jones and Mr. Lloyd-George|
|Goddard, Daniel Ford||Pirie, Duncan V.|
|Gold, Charles||Reid, Sir Robert T.|
|Hayne, Rt. Hon. C. Seale-||Rickett, J. Compton|
To add the words 'as evidenced by an Act of bankruptcy, insolvency, or sequestration of living.'"—(Mr. H. S. Foster.)
§ * MR. H. S. FOSTER
In moving this Amendment I merely desire to say that I am anxious to supply some definition of "pecuniary embarrassment" large 1091 enough to cover what the Government desire.
§ * SIR R. WEBSTER
The Government cannot accept the Amendment. Whether the degree of embarrassment is sufficient to interfere with the discharge of the duties of the benefice is a question for the bishop to determine. The honourable Member knows perfectly well that there are many positions of pecuniary embarrassment in which a man is, after a long period of waiting, able to avoid bankruptcy, and to add the words suggested would be to declare that the presentee must be in the last stage of hopeless embarrassment before the bishop can make pecuniary embarrassment an element for consideration. I would remind the honourable Member that there would remain an appeal to the archbishop.
§ MR. ROBSON
I should just like to add one word to what I said on a previous occasion with reference to this particular matter. There are necessarily very large variations in standards for the estimation of pecuniary embarrassment, and as between a young curate and a bishop with £5,000 a year there would be a marked difference. I do not know that the position of the curate would be improved by an appeal to a gentleman with £10,000 a year. The standard may vary so much that the expression should not be left vague and uncontrolled. Times of pecuniary embarrassment are incidental to all professions, and a frequent accompaniment of the saintly character.
§ Amendment negatived.
To add the words 'of a serious character.'"—(Mr. Seely.)
§ MR. SEELY (Lincoln)
In rising to propose the words I have put on the Paper, I may, perhaps, be permitted to explain that I move the Amendment to meet the case of a comparatively poor man who, having saved a little money, goes to a university with the object of entering the Church of England on leaving the university. It may, however, happen that when he leaves he is to a certain extent in a 1092 position of pecuniary embarrassment. I do not think the insertion of the words "of a serious character" would interfere with the discretion of the bishop; it would, on the other hand, be a guide to him as showing that the intention of this House was not to prevent anyone in that position from being presented with a living.
§ SIR R. WEBSTER
I think the words are unnecessary, but I do not desire to resist any general wish for their insertion.
§ Amendment agreed to.
To omit the words 'in an ecclesiastical office.'"—(Mr. Radcliffe Cooke.)
§ MR. RADCLIFFE COOKE (Hereford)
Mr. Speaker, in moving to omit the words "in an ecclesiastical office," I must make one or two remarks. I propose to leave out these words because I consider them to be directly consequential to the decision at which we arrived last night. We decided then that the question of doctrine and ritual should not be a cause for refusal under the Bill to institute a clergyman. I consider the omission of the words to be consequential also to the interpretation put upon them by the Attorney General yesterday. When this Bill was before the Grand Committee on Law this particular point was specially discussed, and it was decided then—and it was the opinion of the whole Committee—that the words "ecclesiastical office" were words of limitation, whereas the interpretation put upon them by the Attorney General makes them words of latitude. The reason why they were considered words of limitation was this: it was felt that the whole clause dealt with matters of a more or less secular character. It was felt that this was not a Bill that ought to deal with the question of doctrine or of ritual, and, in order to make that clear, the words "in an ecclesiastical office" were inserted, in order that a man being in orders, although not in orders "in an ecclesiastical office," should not, during that time, have his conduct called into question. It was thought it would be hard upon him, and it was therefore suggested, as words of 1093 limitation, that the misconduct should be charged against him during the time that he held ecclesiastical office, and during that time only. There were some Members of the Committee who felt that possibly the insertion of these words might introduce the question of doctrine, and the honourable and learned Member for Shrewsbury (Mr. H. D. Greene) put two points to the law officers of the Crown on the question. He said—Supposing a man had, previous to holding ecclesiastical office, married a divorced woman, and was, in the eyes of the extreme Church Party, living in open contumacy. Would that come under this definition?The Solicitor General's reply was that it would not. He was also questioned with reference to the cases of bishops who had peculiar notions about evening communion. Suppose, he was asked, a clerk was presented who had, in a previous ecclesiastical office, celebrated evening communion, would refusal to institute on that ground come within this clause? He was assured that it would not, because it was not intended that any part of this Bill should deal with doctrine. Very well, but supposing the question of doctrine and ritual were included, if these words were left in, what would happen? If a bishop should refuse to institute a clergyman, the clergyman would want to know why. He would say: "Because you preached false doctrine when you held a living at so-and-so." The clergyman would say: "That is wrong; you are quite mistaken. I shall go to the court about it; we will have it heard out before a court." "Oh, no," the bishop would reply, "you can't do that, because the questions of doctrine and ritual are excluded from the consideration of the court." "Very well," he would say, "I will institute an action in the ecclesiastical courts." "Oh, no," says the bishop, "you can't do that, because this investigation has been commenced under the Act of 1898, under the provisions of which you are deprived of your right of action there." He might even attempt to appeal to further tribunals, but, in consequence of the Act of 1898, he would be unable to commence proceedings. Therefore, if these conditions remain in the Bill, the clergyman 1094 has no remedy whatever, and is placed in a far worse position than he is now. But there are other reasons for accepting the Amendment. It is clear from the whole context, it is clear from the discussions that have taken place on the Bill—on the introduction, on the Second Reading, and m Grand Committee—that it was never intended that the question of doctrine and ritual should be introduced. That must be dealt with otherwise. The matters that are to be dealt with by this Bill are of a secular character—matters of misconduct, which may occur to secular, as well as to sacred work, but which, when they apply to sacred work, are more of a scandal, and more of a disgrace, than in secular work. That is all. In point of fact, these are matters which are, so to speak, motes. The Bill enables the bishop to remove the mote from the eye of the presentee. By-and-bye, perhaps—not now, the 22nd of June—proceedings may have to be taken to remove the beam out of the eyes of the bishops. It is because the words are clearly contrary to the spirit of the Bill, and contrary to the decision arrived at last night, that I bee; to move the Amendment.
§ MR. GEDGE
I think my honourable Friend made a mistake in saying that under this provision proceedings recommenced under the Act. Then, again, it would be very hard upon the clergy, for very often a man who becomes a clergyman takes up various other kinds of employment, mostly literary work, after his ordination, and I have known a clergyman to be an editor of a newspaper. Does this mean that misconduct as the editor of a newspaper ought to be taken into account as a ground for refusal to institute? We are now dealing with ecclesiastical offices and offences and if we say that a man who was presented to a living has so misconducted himself that he cannot properly perform the duties which are now placed upon him, the bishop shall, and the Court of Appeal on that account shall, have a right to confirm the decision. If we take out these words we produce a new element, and create a great hardship; but we are now dealing only with the performance of ecclesiastical duties.
§ MR. H. S. FOSTER
I think I can show my honourable Friend what the effect of the Amendment, if carried, will be. A bishop may refuse to institute—By reason of physical or mental infirmity or incapacity, pecuniary embarrassment, grave misconduct, or neglect of duty.I would point out that the Government already accepted a Motion I made in Committee to define these words. The House will see that there are words in this Bill which are not contained in any previous Bill, and which are defined by the Act, and that is a sufficient safeguard as to what the neglect of duty is in an ecclesiastical office. The man knows exactly what charge he has got to meet. There is one other point which I would put to my honourable Friend. I think he was wrong on the ground of doctrine or ritual, because he has the same right as at the present moment, and he still has open to him the usual legal remedy.
§ Amendment, by leave, withdrawn.
Page 2, line 35, leave out 'conduct' and insert 'misconduct.'"—(Mr. Lloyd Morgan.)
MR. LLOYD MORGAN
I beg to move the Amendment standing in my name. A clergyman's conduct may be indiscreet, but I cannot see that an indiscreet act, though it has brought him into a scandal, and mixed him up in some scandals, ought to constitute the grounds for refusing to institute a clergyman. It has been pointed out to me that if the words were inserted here, it would be referred tack to the question of misconduct in an ecclesiastical office. But it does not refer to misconduct in the ecclesiastical benefice. It means that he has done something for which most ordinary men on moral grounds would reasonably decline to institute. For these reasons I propose this Amendment.
§ SIR R. WEBSTER
I am quite satisfied that the words in the clause do not bear the interpretation which the honourable Gentleman has given them. The words are—Having by his conduct caused grave scandal concerning his moral character.1096 Now, that cannot mean something in connection with anything else but his ordinary duties, and I am satisfied that the clause as it stands at present really carries out what the honourable Member desires by his Amendment.
MR. BRYNMOR JONES
I do not think that these words meet the case so well as the words which I have got down on the Paper. They merely cover the case of a clergyman who, in the discharge of his duty, without reference to any question of morality, but simply discharges his ordinary duties, that give rise to talk about himself. The cases will suggest themselves to every Member of the House.
§ Amendment, by leave, withdrawn.
Page 2, line 35, leave out the word 'caused' and insert 'given just occasion for.'—(Mr. Brynmor Jones.)
MR. BRYNMOR JONES
I beg leave to move the Amendment standing in my name. What I was saying when you called me to order, Mr. Speaker, was that every professional man, every doctor, or clergyman may, in the actual discharge of his duties, put himself in very difficult and compromising positions, and grave gossip and talk may arise in the act of discharging a very difficult duty. What I would submit is that the words ought to be made clearer than they are. The Attorney General will say, perhaps, that what is meant is a scandal caused by indiscreet or improper conduct on the part of the clergyman. I think there is another possible construction which might cover the case in which scandal had been caused without blame on the part of the clergyman, but simply arising in the ordinary discharge of his profession.
§ SIR R. FINLAY
I am afraid these words would only introduce ambiguity into the clause, and I cannot recommend the House to accept it.
§ Amendment, by leave, withdrawn.1097
Page 2, line 39, at end, insert—
'Provided always that a bishop shall not refuse such institution or admission until he has given the patron and the presentee a full opportunity of being heard and of testing by cross-examination the evidence upon which the bishop proposes to act, and the patron and the presentee shall have the right to take a full report of such hearing.'"—(Mr. H. S. Foster.)
§ * MR. H. S. FOSTER
The object of this Amendment is to secure before the bishop comes to a decision that he shall conduct a proper inquiry, so that the appeal from such decision may be a real appeal. At present the bishop need do nothing more than listen to one side of the story, come to his own conclusion, and refuse institution, although publicity will have been given to the fact that the man has been presented to the bishop without institution to the living. That appears to me to be a very serious denial of justice. If there were no publicity in the matter, if it were purely a domestic matter, and if, until the appeal to the tribunal had decided the matter, no harm was done to the man so far as the outside public is concerned, then there would not be nearly the same force as under the Bill as it stands. But the scheme of the Bill is this: that a man having been presented to the bishop, the bishop shall, in the first instance, notify the public at large. He posts a notice on the church doors that it is proposed to institute Mr. "Jones" to the living. That is a notice to the world at large. Thereupon, during that month, influences may be brought to bear on the bishop, of which the unfortunate presentee may be unconscious. The bishop having, by his own way and his own methods, endeavoured to ascertain the truth of any reports made to him regarding the presentee, may give credit to the stories told him, and, acting upon that, he may refuse to present. Thereupon a very grave injury has been done to the presentee's position and to the man, which will be public knowledge in the parish where this man has been refused. The Bill is absolutely silent as to any proper inquiry being held. The object, therefore, of my Amendment is to provide that before the bishop refuses institution he shall give the presentee and 1098 patron a full and fair opportunity of being heard, and of hearing and cross-examining on the evidence upon which he proposes to act, and the presentee shall have the right to take a full report of such hearing. No doubt, I shall be told that on the face of it there may be a great deal that is plausible in this proposal to give justice to the inculpated person, and it would put the bishop in a difficult position. That was the argument, I remember, which the First Lord of the Treasury used on the Second Reading of the Bill, that the bishop would be sitting judicially, and then, having decided judicially, he would be put in the position of being the defendant at his own risk, to defend his own judicial decision. That is, no doubt, an objection to the tribunal which the Government have selected rather than to the principle, the essential principle almost of elementary justice, that before the man is condemned as to his reputation and position he should have a full opportunity of being heard. Now, that opportunity is not given by the Bill as it stands. A man may be condemned unheard without any proper inquiry and without an opportunity of testing the evidence against him. His own right is an appeal against that which has not been a judicial hearing in the first instance. That seems to me to be a very serious departure from the principles of justice on which a man is to be tried, and I venture to urge upon the House the importance of modifying the Bill in this essential particular. This I must allude to later on, because I have other Amendments on the Paper with regard to the proper tribunal for trying offences of this character, which I contend should be the tribunal which Parliament has already created under the Clergy Discipline Act. If that consequential Amendment were accepted, it would save the bishop from the anomalous position he would be placed in by accepting this Amendment, by having a proper judicial inquiry in the first instance. The bishop would no longer be a litigant, and the burden of the charges that may be made against a presentee would be relegated to the Consistory Court under the Clergy Discipline Act of 1892, which, I believe, would be found to be a superior and more satisfactory tribunal for the 1099 trial of such offences as are provided for by this Bill, such as evil life, grave scandal concerning his moral character, and neglect. That is just the tribunal created so recently as 1892 by Parliament for that express purpose, and the bishop would be saved the onus and the odium of having to discharge that duty in the first place under this Bill.
§ * MR. H. S. FOSTER
I will endeavour to confine myself to this proposal. I simply wanted to anticipate that it would be putting the bishop in a difficult position. This is one of a series of Amendments which I quite recognise will be accepted if this is accepted, and it is a great modification of the proposal of the Government. Here, again, I may remind the House that the First Lord of the Treasury said very frankly, on the Second Reading of the Bill, that this proposal, as in the Bill, is at variance with a number of authorities, and that he must contend for the moment that it is either an essential to the Bill, or that it was one in which any particular recommendation of the Ecclesiastical Commissioners, or any other body, might operate. I believe it is a fact that the Commissions which have reported upon this particular branch have recognised a Consistory Court rather under the bishop. But my particular point—the strongest point I wish to urge upon the House—is that under this Bill, as at present drawn, there is really no appeal at all. So far as there is a trial, the only trial provided for by the Bill is the trial in the court in the first instance. That is the one and only trial, against which there is no appeal. Before the presentee is put in the position of having been refused by the bishop the presentation to the living he ought to have, under the Bill, a full and proper opportunity of being heard by the bishop, and of hearing who his accusers are, what they have to say, and of cross-examining them, so that the bishop might not come to an unjust conclusion, leaving it to the applicant to get whatever remedy he can in the court provided by the Bill.
§ THE FIRST LORD OF THE TREASURY (Mr. A. J. BALFOUR,) Manchester, E.
I discussed this question at some 1100 length on the Second Reading, and I hope the House will allow me to summarise the reasons which should make honourable Members regret this Amendment placed on the Paper. One might consider the effect of a change of this sort from the point of view either of an innocent presentee, who ought to be presented, or from the point of view of one who ought not to be presented, or from the point of view of the general interests of the Church at large. Let us take these three oases. My honourable Friend is afraid that unless there is something in the nature of a formal public trial, and he does not say a public trial, injustice is likely to be done to a presentee against whom no really valid ground of objection can be urged. But, Sir, I would point out to my honourable Friend that the bishop has every motive, even apart from justice and equity, to give full weight to anything the presentee can urge in his own behalf, or that can be urged for him. If the bishop decides hastily or unjustly, he is practically made a party to a suit immediately afterwards, and if it can be shown that he has acted unjustly, not only will his personal credit and position be injured by the public exposure of his laches, but he might be held liable in costs. I therefore think that there is no possibility of the bishop not allowing full consideration to any consideration which either the presentee or the patron or anybody else may bring before him. Take, again, the case of a presentee who really is not in a position to stand public cross-examination without practically ruining his reputation. Is it not hard that the bishop shall be prevented from dealing with such a person ministerially instead of judicially, pointing out to him the reasons which appear conclusive against his institution, and preventing without unnecessary publicity any evil happening to the parish? Therefore, Sir, it appears to me that in the interests of the improper presentee it would be very hard indeed to compel him to be subject to the cross-examination when he could really be appointed without injury to anybody. Or take the third case, the interests of the Church at large. I am sure my honourable Friend will see that it would be most inimical to those interests that in any case in which presentation had to be refused the whole life and character of the presentee 1101 should be dragged before the public. I cannot believe that the public scandal, inevitable in such a case, could be otherwise than of the greatest disservice, not merely to the individuals concerned, but to the wider and far more important interests of public decency and morality. I hope, therefore, my honourable Friend will not think it, necessary to press this Amendment to a Division.
MR. LLOYD MORGAN
The argument on this subject seems to be that, if this Amendment is carried, it will involve making these charges public, but that is really not the case. What would happen would be this: if this Amendment were adopted, these charges would be brought to the bishop, and they would be communicated by him to the patron. There would then be a private and formal inquiry in which all parties would be interested in forcing on the matter to a public court. I quite admit that, supposing that on this private inquiry the result is to blacken the reputation of this man, every opportunity should be given to him to clear his character. All my honourable Friend asks for is that the presentee should be able to confront his accusers, and I think that is a perfectly fair thing. It may be that the parties are acting on pure gossip and rumour, and that would be very unfair to the presentee. There may be someone who is an enemy who has brought a charge against him. I think every opportunity ought to be given to him to clear his reputation. Now, what will be the result if the presentee is refused presentation upon any of the grounds that are in this clause? The result will be that he will be a ruined man. The bishop will refuse to present him, and practically the man ruined without any opportunity being given to him to clear his reputation. But if there is a hearing, if there is an appeal to a subsequent court, and if you are going to give opportunities of cross-examining in the second court, why not in the first court? That is exactly what you do with every other person. Why should you make an exception in the case of a clergyman? A man charged with drunkenness or petty larceny gets an examination in the inferior magistrates' court, then the quarter sessions, but he has the same opportunity for cross-examining, and for seeing the wit- 1102 nesses who give evidence against him in the superior court as in the inferior court. Not only that, but it practically gives the man a double chance. It gives him a chance of seeing the witnesses and cross-examining them, and it gives him an opportunity of seeing in the second court what motives induced the people to come forward and give evidence. It enables him to see the character of the charges and the nature of the evidence by which those charges are supported. I think, in the interests of fair play, this ought to be done. The Leader of the House says that no bishop would bring charges of this kind upon any flimsy or trivial evidence, and I quite agree with that. He might be influenced also by having to pay the costs. But what I wish to point out to the Leader of the House is this, that the presentee, or the patron, may have to pay double costs, whereas if they had an opportunity of cross-examining witnesses in the first instance there would be no necessity to appeal at all. There is a vast difference between making a charge with a letter or a private interview with an official of any sort, and bringing that charge into court, where it is examined, and when the motives are sought out, and every possible circumstance sifted thoroughly. I hope the Government will reconsider their decision upon this point.
§ * SIR R. POWELL
With regard to this question, I may say that to my knowledge, obtained in private conversations with bishops, this matter is ended in many cases by an inquiry in camerâ at once. A bishop spoke to me of a case which occurred a few days before. He sent for the presentee, and the interview was very short. He said, "Knowing that I know what I do know respecting you, do you expect me to institute you to this living.?" The presentee replied, "No, my lord, I do not; good morning," and the case was at an end. Surely that was a more advantageous way than the cumbrous procedure suggested by the Amendment.
§ * MR. PURVIS (Peterborough)
When the honourable Member who moves this Amendment says it is a serious modification of the Bill, I agree with him; but when he says the Bill itself is a serious departure from the law of the land I do not agree with him. The honourable 1103 Member for Carnarvon, too, complains that there is no first court in the Bill; but there never was a time when any person was presented on any other terms but that he should be fit for the office in the fair judgment of the bishop. The cure of souls was never matter of sale, nor were the pecuniary profits matter of sale; but the right to present for the judgment of the bishop was matter of sale. The cases to which the Bill applies are admitted to be few. The bishop
§ stands in a paternal relation to the other parties, not in a litigant relation; but this proposal would make his life a life of litigation, and would be a revolution in the law as it at present stands.
§ Question put.
§ The House divided:—Ayes 75; Noes 170.—(Division List No. 159.)1105
|Allan, William (Gateshead)||Gold, Charles||Rickett, J. Compton|
|Austin, Sir J. (Yorkshire)||Hayne, Rt. Hon. C. Seale-||Robertson, Edmund (Dundee)|
|Baker, Sir John||Hedderwick, Thomas C. H.||Robson, William Snowdon|
|Barlow, John Emmott||Holburn, J. G.||Samuel, J. (Stockton-on-Tees)|
|Bayley, T. (Derbyshire)||Horniman, Frederick John||Schwann, Charles E.|
|Beaumont, Wentworth C. B.||Humphreys-Owen, Arthur C.||Shaw, Charles E. (Stafford)|
|Billson, Alfred||Jacoby, James Alfred||Sinclair, Capt. J. (Forfarsh.)|
|Brunner, Sir J. Tomlinson||Jones, W. (Carnarvonshire)||Steadman, William Charles|
|Burt, Thomas||Kay-Shuttleworth, Rt Hn Sir U.||Thomas, A. (Carmarthen, E.)|
|Caldwell, James||Kinloch, Sir J. G. Smyth||Thomas, A. (Glamorgan, E.)|
|Cameron, Robert (Durham)||Leese, Sir J. F. (Accrington)||Thomas, D. A. (Merthyr)|
|Campbell-Bannerman, Sir H.||Leng, Sir John||Ure, Alexander|
|Causton, Richard Knight||Lewis, John Herbert||Walton, Joseph (Barnsley)|
|Cawley, Frederick||Lloyd-George, David||Wayman, Thomas|
|Clark, Dr. G. B. (Caithness-sh.)||McKenna, Reginald||Wedderburn, Sir William|
|Clough, Walter Owen||Maddison, Fred.||Williams, John C. (Notts)|
|Colville, John||Mappin, Sir Frederick Thorpe|
|Crombie, John William||Milner, Sir Frederick George||Wilson, H. J. (York, W.R.)|
|Davies, M. Vaughan- (Cardigan)||Morgan, J. L. (Carmarthen)||Wilson, John (Govan)|
|Doogan, P. C.||Morley, C. (Breconshire)||Woodhouse, Sir J T (Hudd'rsf'ld)|
|Doughty, George||Norton, Capt. Cecil William||Woods, Samuel|
|Duckworth, James||Nussey, Thomas Willans||Yoxall, James Henry|
|Farquharson, Dr. Robert||Pease, A. E. (Cleveland)|
|Fenwick, Charles||Pease, J. A. (North'mberland)||TELLERS FOR THE AYES—Mr. Harry Foster and Mr. Brynmor Jones.|
|Ferguson, R. C. M. (Leith)||Pirie, Duncan V.|
|Fitzmaurice, Lord Edmond||Reckitt, Harold James|
|Goddard, Daniel Ford||Reid, Sir Robert T.|
|Acland-Hood, Capt. Sir Alex. F.||Bucknill, Thomas Townsend||Dalrymple, Sir Charles|
|Arrol, Sir William||Carlile, William Walter||Daly, James|
|Atkinson, Rt. Hon. John||Cavendish, R. F. (N. Lancs)||Dane, Richard M.|
|Bagot, Capt. J. FitzRoy||Cavendish, V.C. W. (Derbysh.)||Denny, Colonel|
|Bailey, James (Walworth)||Cayzer, Sir Charles Wm.||Dixon-Hartland, Sir F. Dixon|
|Baillie, J. E. B. (Inverness)||Cecil, Lord Hugh||Donelan, Captain A.|
|Baird, J. G. Alexander||Chaloner, Captain R. G. W.||Dorington, Sir John Edward|
|Balcarres, Lord||Chamberlain, Rt. Hn. J. (Birm.)||Douglas, Rt. Hon. A. Akers-|
|Balfour, Rt. Hon. A. J. (Manch'r)||Chamberlain, J. A. (Worc'r)||Douglas-Pennant, Hon. E. S.|
|Barry, Rt Hn A H Smith-(Hunts)||Chaplin, Rt. Hon. Henry||Doxford, William Theodore|
|Barton, Dunbar Plunket||Cochrane, Eton. T. H. A. E.||Duncombe, Hon. Hubert V.|
|Beach, Rt. Hn. Sir M. H. (Bristol)||Coghill, Douglas Harry||Fardell, Sir T. George|
|Bethell, Commander||Collings, Rt. Hon. Jesse||Fellowes, Hon. A. Edward|
|Bhownaggree, Sir M. M.||Colomb, Sir J. C. Ready||Finch, George H.|
|Bill, Charles||Courtney, Rt. Hon. L. H.||Finlay, Sir Robt. Bannatyne|
|Blundell, Colonel Henry||Cox, Robert||Fisher, William Hayes|
|Brassey, Albert||Cranborne, Viscount||FitzGerald, Sir R. Penrose-|
|Brodrick, Rt. Hon. St. John||Cross, Alexander (Glasgow)||FitzWygram, Gen. Sir F.|
|Brookfield, A. Montagu||Curzon, Viscount (Bucks)||Flannery, Fortescue|
|Fletcher, Sir Henry||Lewelyn, Sir Dillwyn-(Swans'a)||Round, James|
|Flower, Ernest||Loder, G. W. Erskine||Royds, Clement Molyneux|
|Folkestone, Viscount||Long, Col. C. W. (Evesham)||Russell, Gen. F. S. (Chelt'm)|
|Fry, Lewis||Lopes, Henry Yarde Buller||Russell, T. W. (Tyrone)|
|Galloway, William Johnson||Loyd, Archie Kirkman||Samuel, Harry S. (Limehouse)|
|Gedge, Sydney||Lucas-Shadwell, William||Scoble, Sir Andrew Richard|
|Gibbons, J. Lloyd||Macaleese, Daniel||Seely, Charles Hilton|
|Giles, Charles Tyrrell||Macartney, W. G. Ellison||Sharpe, William Edward T.|
|Goldsworthy, Major-General||Maclure, Sir John William||Sidebotham, J. W. (Cheshire)|
|Gordon, Hon. J. Edward||McCalmont, Maj-Gn. (Ant'mN)||Sidebottom, W. (Derbyshire)|
|Gorst, Rt. Hon. Sir J. E.||McKillop, James||Smith, James P. (Lanarks)|
|Goschen, Rt Hon G. J. (St.G'rg's)||Marks, Henry Hananel||Stanley, Lord (Lancs)|
|Graham, Henry Robert||Maxwell, Rt. Hon. Sir H. E.||Stanley, E. J. (Somerset)|
|Greene, H. D. (Shrewsbury)||Melville, Beresford Valentine||Stirling-Maxwell, Sir John M.|
|Greene, W. Raymond- (Camb)||Milbank, Sir P. C. J.||Stock, James Henry|
|Gull, Sir Cameron||Mildmay, Francis Bingham||Stone, Sir Benjamin|
|Gunter, Colonel||Milward, Colonel Victor||Sullivan, Donal (Westmeath)|
|Hanbury, Rt. Hon. Robt. W.||Monckton, Edward Philip||Talbot, Rt Hn. J.G. (Oxf'dUny.)|
|Hardy, Laurence||Monk, Charles James||Tollemache, Henry James|
|Hare, Thomas Leigh||More, Robert Jasper||Tomlinson, W. E. Murray|
|Helder, Augustus||Morgan, Hn. F. (Monm'thsh.)||Tully, Jasper|
|Hickman, Sir Alfred||Morrell, George Herbert||Warde, Lt.-Col. C. E. (Kent)|
|Hill, Rt. Hn. Lord A. (Down)||Morton, A. H. A. (Deptford)||Warkworth, Lord|
|Hill, Sir E. Stock (Bristol)||Murray, Rt. Hn. A. G. (Bute)||Warr, Augustus Frederick|
|Hobhouse, Henry||Murray, Col. W. (Bath)||Webster, Sir R. E. (I. of W.)|
|Holland, Hon. Lionel R.||Myers, William Henry||Welby, Lieut.-Col. A. C. E.|
|Howell, William Tudor||Newdigate, Francis Alexander||Wentworth, Bruce C. Vernon-|
|Hudson, G. Bickersteth||Nicol, Donald Ninian||Williams, J. Powell (Birm.)|
|Hutchinson, Capt. G. W. Grice-||Northcote, Hon. Sir H. S.||Willoughby de Eresby, Lord|
|Jeffreys, Arthur Frederick||Phillpotts, Captain Arthur||Willox, Sir John Archibald|
|Johnston, William (Belfast)||Powell, Sir Francis Sharp||Wilson, John Falkirk)|
|Jolliffe, Hon. H. George||Pryce-Jones, Edward||Wilson-Todd, W. H. (Yorks)|
|Kennaway, Rt. Hn. Sir J. H.||Purvis, Robert||Wodehouse, E. R. (Bath)|
|Kenyon-Slaney, Col. William||Pym, C. Guy||Wortley, Rt. Hn. C. B. Stuart-|
|Lafone, Alfred||Rasch, Major Frederic Cane||Young, Commander (Berks,E.)|
|Lawrence, Sir EDurning-(Corn.)||Renshaw, Charles Bine|
|Lawson, John G. (Yorks)||Rentoul, James Alexander||TELLERS FOR THE NOES—Sir William Walrond and Mr. Anstruther|
|Lecky, Rt. Hon. Wm. E. H.||Richardson, Sir T. (Hartlep'l)|
|Llewellyn, E. H. (Somerset)||Ridley, Rt. Hon. Sir M. W.|
Page 3, after line 2, add—
(3) Three parishioners of the parish may, within the presented period, and in the prescribed manner, serve on the bishop a representation in writing objecting to the institution on any ground on which the bishop is empowered to refuse institution. On the receipt of such representation the bishop shall give to both the patron and the presentee 14 days' notice of his intention to hold an inquiry, accompanied by a copy of such representation; and such inquiry shall take place in the prescribed manner."—(Mr. Carvell Williams.)
* MR. CARVELL WILLIAMS (Notts, Mansfield)
Mr. Speaker, I beg to move the Amendment standing in my name. This Amendment has had a place in previous Bills, and I propose it with the intention of making the second sub-section of the clause a reality, instead of being what, in some cases, it may become, a mere mockery. Everyone who has had to deal with this Measure has admitted that the parishioners have a paramount interest in the appointment of a new clergyman; but this clause as it stands proceeds 1106 upon the opposite principle. It secures the rights of the patron and the rights of the presentee, but it does not equally secure the rights of the inhabitants. All that the Bill does for the inhabitants of the parish is to require that the bishop, before he institutes a clergyman, shall serve on the churchwardens of the parish a notice that a certain person has been nominated, and the churchwardens are required to publish the notice in the prescribed manner. One would naturally expect that that provision would be followed by one which would give it practical effect, but there is no such provision in the Bill. The bishop may or may not take any notice of the representation made by the locality. He may put it in the waste-paper basket, for reasons good or bad, and the parishioners, having exhausted their power, are unable to take any steps with a view to the holding of an inquiry. My proposal, Sir, is that just as when the bishop objects to a presentee there is given to the presentee 1107 the right to demand an inquiry, so, in like manner, the parishioners, if they have good grounds for objection to the institution of a presentee, shall also be in a position to demand an inquiry at the hands of the bishop.
§ * MR. SPEAKER
On consideration, I think the proposed Amendment is out of order, the House having already decided that there should be no inquiry by the bishop.
§ MR. LEWIS (Flint Boroughs)
Then, Sir, I take it that the Amendment of my honourable Friend the Member for East Denbighshire is in order? It is an Amendment to the effect that where the parishioners, by a majority of two-thirds, pass a resolution objecting to any person, the bishop shall not institute him.
Page 3, line 2, at end, add—
And he shall not, under any circumstances, collate, institute, or admit any person to a benefice where the parishioners by a majority of two-thirds have passed a resolution objecting to such person, provided that such resolution be passed and communicated to the bishop within fourteen days after the notice in this sub-section mentioned has been served upon the churchwardens."—(Mr. Herbert Lewis.)
§ MR. LEWIS
I urn sure the House will recognise that it is necessary that the interests of the parishioners—the persons who are most concerned in this matter—should be considered, and that they ought to have some voice with regard to the appointment of the man who is to be their spiritual guide for, perhaps, a very long term of years. The Amendment proposes that only in the event of two-thirds of the parishioners objecting to any person proposed to be presented to the living shall any action be taken. So large a majority as that would result in obtaining very strong representation indeed from a parish. It is not likely that, unless there were some very strong reasons, two-thirds of the parishioners would be found to object to any particular person being presented. Sir, we heard last night a great deal about the comprehensiveness 1108 of the Church of England, and about the desirability of preserving that comprehensiveness as far as possible; but let me put the case—the ordinary case—of the rural parish, where there is only one church, where the clergyman may belong to the extreme Ritualistic party or to the Low Church party, or to the Broad Church party. He may hold the most extreme doctrines and views with regard to ritual, and he may introduce into his church, with the consent of the bishop—and that consent, as we know, has practically been given over and over again—practices which, while one respects them when they appear in their proper place—the Church of Rome—are utterly abhorrent to the great majority of the parishioners; or, on the other hand, the proposed presentee may be a man who holds such extremely broad and latitudinarian views as to practically banish almost every trace of the supernatural from his creed. Or, again, in a district which has been accustomed to High Church ministrations, the person proposed may be an extreme Low Churchman. I think that, under the circumstances, it is only right and reasonable that the views and the feelings of the parishioners should be consulted, and that if a man is presented, who, from his previous record, appears to be likely to upset in every possible way the doctrine and the ritual that have hitherto been practised in the church, and to which the parishioners have been accustomed, they, at all events, ought to have some voice with regard to the matter. What is the remedy? The remedy at the present time is that if the parishioners object to the presentee they have no option but that of leaving the church. That is a state of things which ought not to be allowed to exist; and under these circumstances it is only right and reasonable that the parishioners should be able, by a majority of two-thirds of their number, to present an objection to the bishop in respect to the institution of any person to whom they have a strong conscientious objection. I think an objection made under those circumstances ought to be upheld. I therefore beg to move the Amendment, and I hope the Government, in the interest of parishioners all over the country, will be able to see their way to accept it.
§ SIR R. B. FINLAY
, in opposing the Amendment, said be hoped he should not be accused of wishing to curtail the privileges and rights of parishioners, or of any want of sympathy with any well considered Measure to give effect to their desire not to have clergymen appointed to their churches who were out of harmony with the spiritual wants of the parish. He did not now propose to enter into the wide subject which was opened up by this Amendment, but he thought the honourable Member who moved the Amendment would recognise that it was of such magnitude that it would require a Bill all to itself. The proposal, if carried, would effect a revolution which might be good or which might be bad—that was a point upon which there might possibly be some difference of opinion. The proposal was that two-thirds of the parishioners should have a power of veto on the appointment of the clergyman to the parish. Who were the parishioners to whom the Amendment proposed to give that veto? Were the parishioners every person who resided in the parish? Did the Amendment propose to give the veto to every inhabitant? He did not suppose in the latter case that women would be excluded, or was it to be confined to the ratepayers? Was it proposed to give to those who belonged to other churches, and who had no concern with the appointment of the incumbent to a benefice in the Church of England, this veto? The children of the parish were also parishioners; was it proposed to give this veto to them, or did the honourable Member propose some species of test? He only mentioned those matters to show that the Amendment made no attempt to grapple with the difficulties of the matter. It was quite sufficient for all present purposes to say that the only practical effect of adopting the proposal would be to wreck a bill which was intended to remedy certain specific and acknowledged evils which at present existed in the Church.
MR. NEWDIGATE (Warwickshire)
ventured to suggest to his honourable Friend who moved the Amendment that if the Government were willing to accept some alteration in the wording of the Amendment the difficulty might be re- 1110 moved, by inserting the word "communicant," so that the Amendment should read "a majority of two-thirds of the parishioners being communicants." If his honourable Friend would accept that alteration he would support it. There was a town with which he was fairly well acquainted which had two livings. The population was 10,000. One living had a fairly good stipend, the other a very small one. Recently the clergyman who held the living with the small stipend resigned his incumbency. That living was in the gift of the clergyman of the larger living. The parishioners very much desired to have a clergyman who should be the clergyman of their parish only, but it was decided that the clergyman of the larger living should also take the smaller one. As soon as the parishioners became aware of this, a very strong representation was made to the bishop. Out of the 5,000 parishioners of the smaller parish 2,000 signed a protest addressed to the bishop against this proposal. The answer that they received was that the stipend of the smaller living did not allow of placing a fresh incumbent there, and it was better that the two parishes should be under one charge. The result of that decision has been to give the greatest dissatisfaction to those living in the smaller parish. Under the present law they had no opportunity of protesting, and they had to bow to the decision of the bishop. He did not think that parishioners who did not belong to the Church ought to have any voice in the institution of a clergyman to the parish, but he did think that, where a strong feeling was expressed by a requisite majority of communicants upon a matter of this kind, there should be some way of enforcing their desires. If the alteration he suggested were accepted, he would certainly support the Amendment, more particularly for the reason that a majority of two-thirds would not, except for some very urgent reason, pass such resolutions as the Amendment suggested.
§ * MR. SPEAKER
The Amendment proposed after the word "parishioners" is, to insert "being communicants."
§ SIR R. WEBSTER
intimated that he could not accept the Amendment as it would in no way remove the difficulties of the question, and would limit whatever rights the parishioners might have to those who were communicants.
* MR. CARVELL WILLIAMS
expressed himself as being gratified in being able to concur in the views expressed by the Attorney General. He believed that Churchmen generally would object if the qualification for taking part in these matters was that the objectors should be communicants. The more the Bill was discussed, the more limited and restricted became its character. Over and over again admitted evils had been pointed out to the Government, whose only answer was that they could not be removed under the Bill; yet no promise was made upon their part that any Measure would be brought before the House which would deal with those evils.
said that after the remarks which had been made he desired to withdraw his Amendment. He had called attention to the case to which he had referred, which was his only reason for moving the Amendment.
§ Amendment, by leave, withdrawn.
* MR. CARVELL WILLIAMS
said the Bill had been defined as being one which was to deal with acknowledged evils which existed in the Church. The laity of the Church had no voice whatever in the matter, and that in itself was an evil which required grappling with just as much as the other evils which the Bill was intended to remove. It was the duty of the bishop to prevent the institution of an unsuitable clergyman, but it seemed to him that there was an ever widening gulf between the clergy and the laity; who were told, as they had been by the Bishop of London, when they protested against the services at a particular church where illegal practices were being performed, that if they did not like them they could go somewhere else. The time had arrived when the laity must enforce 1112 their rights in this matter, and when the people were allowed to take matters into their own hands they would make very short work of the evils which existed. If what was asked for at the present time, by the Amendment before the House, was not conceded, it would surely come, if not in an Established Church, then in a Disestablished Church.
§ * MR. GREENE (Shrewsbury)
desired to associate himself with those who wish to give the parishioners a voice in the selection of the incumbent of any particular parish; but, while sympathising with that object, in his opinion a more unworkable proposal had never been brought before the House. He objected to it because it would diminish the sense of personal responsibility for the selection of suitable presentees, and because it was unworkable. The patron, whose right was infringed by two-thirds of the parishioners, would feel very little interest in the appointment, as also would the bishop when he collated. He would be in the same position; he would also be liable to be overruled. Dealing with the impracticability of the clause, that was shown by the fact that it was utterly devoid of all machinery to carry it out. Who was to convene a meeting of the parishioners, the majority of two-thirds of whom was to pass these resolutions? Who was to form the register of the parishioners? It was not described whether they must be resident or otherwise, and as there were no means of knowing how many there were, a two-thirds majority would have to be obtained of an unknown quantity. Children were parishioners. Were they to be included? The parishioners were not likely to have much knowledge of the person proposed to be appointed. The bishop would give notice one month before he proposed to institute, and the parishioners would have to arrive at their conclusion 14 days before the expiry of that time. That would be a very short time for a parish, of 10,000 or 15,000 souls to come together and formulate proper grounds of objection. Had there been any grounds of objection set forth in the proposal, it might have been better, and he would have looked with more favour upon it. All sorts of ridiculous reasons might be raised which would be no 1113 reasons at all upon which admission to a benefice should be refused. It seemed to him the proposal was absolutely unworkable, and he should vote against it.
§ Question put.
§ The House divided:—Ayes 74; Noes 168.—(Division List No. 160.)1115
|Allan, William (Gateshead)||Gold, Charles||Robson, William Snowdon|
|Atherley-Jones, L.||Hayne, Rt. Hon. C. Seale-||Samuel, J. (Stockton-on-Tees)|
|Austin, Sir John (Yorkshire)||Hedderwick, Thomas C. H.||Schwann, Charles E.|
|Baker, Sir John||Holburn, J. G.||Shaw, Charles E. (Stafford)|
|Barlow, John Emmott||Horniman, Frederick John||Shaw, T. (Hawick B.)|
|Bayley, T. (Derbyshire)||Humphreys-Owen, Arthur C.||Smith, J. P. (Lanarksh.)|
|Beaumont, Wentworth C. B.||Jacoby, James Alfred||Soames, Arthur Wellesley|
|Billson, Alfred||Jones, David B. (Swansea)||Steadman, William Charles|
|Brunner, Sir John Tomlinson||Kinloch, Sir John George S.||Strachey, Edward|
|Buchanan, Thomas Ryburn||Lambert, George||Thomas, A. (Glamorgan, E.)|
|Caldwell, James||Leese, Sir J. F. (Accrington)||Thomas, David A. (Merthyr)|
|Cameron, Robert (Durham)||Leng, Sir John||Ure, Alexander|
|Campbell-Bannerman, Sir H.||McLaren, Charles Benjamin||Walton, Joseph (Barnsley)|
|Causton, Richard Knight||Maddison, Fred.||Wayman, Thomas|
|Cawley, Frederick||Mappin, Sir Frederick T.||Wedderburn, Sir William|
|Clark, Dr.G.B. (Caithness-sh.)||Morgan, J. L. (Carmarthen)||Williams, John C. (Notts.)|
|Clough, Walter Owen||Morley, C. (Breconshire)||Wilson, F. W. (Norfolk)|
|Colville, John||Norton, Captain Cecil W.||Wilson, John (Govan)|
|Crombie, John William||Nussey, Thomas Willans||Woodhouse, Sir JT(H'dd'rsf'ld)|
|Davies, M. Vaughan- (Cardig'n)||Palmer, Sir C. M. (Durham)||Woods, Samuel|
|Doughty, George||Pease, J. A. (Northumb.)||Yoxall, James Henry|
|Duckworth, James||Philipps, John Wynford|
|Farquharson, Dr. Robert||Pirie, Duncan V.||TELLERS FOR THE AYES—Mr. Herbert Lewis and Mr. William Jones.|
|Fenwick, Charles||Randell, David|
|Fitzmaurice, Lord Edmond||Reckitt, Harold James|
|Goddard, Daniel Ford||Rickett, J. Compton|
|Acland-Hood, Capt. Sir A. F.||Cotton-Jodrell, Col. E. T. D.||Giles, Charles Tyrrell|
|Aird, John||Courtney, Rt. Hon. L. H.||Goldsworthy, Major-General|
|Atkinson, Rt. Hon. John||Cox, Robert||Gordon, Hon. John Edward|
|Bagot, Capt. J. FitzRoy||Cranborne, Viscount||Gorst, Rt. Hon. Sir John E.|
|Bailey, James (Walworth)||Cross, Alexander (Glasgow)||Gosohen, Rt. Hn. G. J (St.G'rg's)|
|Baillie, J. E. B. (Inverness)||Curzon, Viscount (Bucks)||Graham, Henry Robert|
|Baird, John George A.||Dalrymple, Sir Charles||Greene, H. D. (Shrewsbury)|
|Balcarres, Lord||Daly, James||Greene, W. Raymond- (Cambs)|
|Balfour, Rt. Hon. A. J. (Manc'r)||Dane, Richard M.||Gull, Sir Cameron|
|Barton, Dunbar Plunket||Denny, Colonel||Gunter, Colonel|
|Beach,Rt. Hn. SirM. H. (Brist'l)||Dixon-Hartland, Sir F. D.||Hanbury, Hon. R. W.|
|Bethell, Commander||Doogan, P. C.||Hardy, Laurence|
|Bhownaggree, Sir M. M.||Dorington, Sir John E.||Hare, Thomas Leigh|
|Bill, Charles||Douglas, Rt. Hon. A. Akers-||Helder, Augustus|
|Bowles, T. G. (King's Lynn)||Douglas-Pennant, Hon. E. S.||Hickman, Sir Alfred|
|Brassey, Albert||Doxford, William Theodore||Hill, Rt. Hn. Lord A. (Down)|
|Brookfield, A. Montagu||Duncombe, Hon. Hubert V.||Hill, Sir Edward S. (Bristol)|
|Bucknill, Thomas Townsend||Fardell, Sir T. George||Hobhouse, Henry|
|Carlile, William Walter||Fellowes, Hon. Ailwyn E.||Holland, Hon. Lionel R.|
|Cavendish, R. F. (N. Lancs)||Finlay, Sir Robert B.||Howard, Joseph|
|Cavendish, V.C.W.(Derbysh.)||Fisher, William Haves||Howell, William Tudor|
|Cayzer, Sir Charles William||FitzGerald, Sir R. Penrose-||Howorth, Sir Henry H.|
|Cecil, Lord Hugh||FitzWygram, General Sir F.||Hudson, George B.|
|Chaloner, Captain R. G. W.||Flannery, Fortescue||Hutchinson, Capt. G. W. Grice-|
|Chamberlain, Rt. Hn. J. (Birm.)||Fletcher, Sir Henry||Johnston, William (Belfast)|
|Chamberlain, J. A. (Worc'r)||Flower, Ernest||Johnstone, John H. (Sussex)|
|Chaplin, Rt. Hon. Henry||Folkestone, Viscount||Kennaway, Rt. Hn. Sir J. H|
|Cochrane, Hon. T. H. A. E.||Foster, Harry S. (Suffolk)||Kenyon, James|
|Coddington, Sir William||Fry, Lewis||Kenyon-Slaney, Colonel W.|
|Coghill, Douglas Harry||Galloway, William Johnson||Lafone, Alfred|
|Collings, Rt. Hon. Jesse||Gedge, Sydney||Lawrence Sir EDurning-(Corn.)|
|Colomb, Sir John C. R.||Gibbons, J. Lloyd||Lawson, John Grant (Yorks)|
|Lecky, Rt. Hon. W. E. H.||Murray, Col. W. (Bath)||Stock, James Henry|
|Leigh-Bennett, Henry Currie||Myers, William Henry||Stone, Sir Benjamin|
|Llewellyn, E. H. (Somerset)||Newdigate, Francis A.||Sullivan, D. (Westmeath)|
|Llewelyn, Sir Dillwyn-(Sw'ns'a)||Nicol, Donald Ninian||Talbot, Rt Hn J. G. (Oxf'dUny.)|
|Loder, Gerald Walter E.||O'Connor, A. (Donegal)||Thorburn, Walter|
|Long, Col. C. W. (Evesham)||Phillpotts, Captain Arthur||Tomlinson, W. E. M.|
|Lopes, Henry Yarde Buller||Powell, Sir Francis S.||Tully, Jasper|
|Loyd, Archie Kirkman||Pretyman, Ernest George||Waring, Colonel Thomas|
|Lucas-Shadwell, William||Pryce-Jones, Edward||Warkworth, Lord|
|Macaleese, Daniel||Purvis, Robert||Warr, Augustus Frederick|
|Macartney, W. G. Ellison||Pym, C. Guy||Webster, Sir R. E. (I. of W.)|
|Maclure, Sir John W.||Renshaw, Charles Bine||Welby, Lieut.-Col. A. C. E.|
|MacNeill, John G. S.||Richardson, Sir T. (Hartlep'l)||Williams, J. Powell (Birm.)|
|McIver, Sir Lewis||Ritchie, Rt. Hon. C. T.||Willox, Sir John Archibald|
|McKillop, James||Round, James|
|Marks, Henry Hananel||Royds, Clement M.||Wilson, John (Falkirk)|
|Melville, Beresford V.||Russell, T. W. (Tyrone)||Wilson-Todd, W. H. (Yorks)|
|Meysey-Thompson, Sir H. M.||Samuel, H. S. (Limehouse)||Wodehouse, E. R. (Bath)|
|Milbank, Sir Powlett C. J.||Scoble, Sir Andrew Richard||Wortley, Rt. Hn. C.B. Stuart-|
|Mildmay, Francis Bingham||Seely, Charles Hilton||Wyndham-Quin, Maj. W. H.|
|Monckton, Edward Philip||Sharpe, William Edward T.||Young, Comm. (Berks, E.)|
|Monk, Charles James||Sidebotham, J. W. (Cheshire)|
|More, Robert Jasper||Sidebottom, W. (Derbyshire)||TELLERS FOR THE NOES—Sir William Walrond and Mr. Anstruther.|
|Morrell, George Herbert||Spencer, Ernest|
|Morton, A. H. A. (Deptford)||Stanley, Lord (Lancs)|
|Murray, Rt. Hon. A. G. (Bute)||Stirling-Maxwell, Sir J. M.|
Mr. BRYNMOR JONES
In moving to omit clause 3, on page 3, I think that on these Amendments, which give an opportunity of raising difficulties, it is not expedient to go into details upon the Amendment of this clause. Therefore I will only state the leading propositions which occur to my mind as making this clause objectionable. I think the Solicitor General described the last Amendment discussed as one of a revolutionary character. It may have been a just epithet to use in regard to the Amendment, but the word Amendment is not, in form, the correct word to apply to this clause. There has been from time immemorial the right to bring an action in the High Court to obtain redress in regard to this matter; and it is exercised in all modern procedure, and, as I understand the practice, it may be tried, not only by a judge, but by a judge and jury. In a case like this there is an ecclesiastical as well as a legal element; and, as the honourable Member said, there should be stated, in a clear and detailed form, the reason for the refusal. Now, under this clause, which is a most material as well as most objectionable clause in the Bill, the lay patron is leased under that right. He is leasing a common law right. The jurisdiction under the common law right is specifically set out, and the only appeal from it is given to a new and somewhat extraordinary tribunal. I object 1116 to the constitution of the court under the statutory rules. I will not add anything more to what I have said; but doubtless the honourable Member for Shrewsbury will give us the opportunity of discussing it further. In the third place I wish to observe that there is no provision made for appeal—no provision for carrying the question to a higher court. By this clause, as it stands, the tribunal is final so far as the discussion of the subject lies between the bishop and the people. I say, Sir, if you are going to alter the position of the lay patron in this regard, there ought to be an opportunity for the lay communicants and others to come to a right conclusion. And here I would call the attention of the Attorney General to what appears to be some slight inconsistency in the consideration of neglect of duty and ecclesiastical fees; because I think these words clearly extend to the neglect of duty in regard to the doctrine of ritual and so forth. Of course, if I am mistaken I shall be glad to be put right.
§ SIR R. WEBSTER
That is exactly raising the point of inconsistency. Why in the case of one ground of refusal it should not be stated in another I fail to see. That is the kind of inconsistency I am suggesting; but I will not pursue the matter further.
MR. BRYNMOR JONES
The First Lord was not here when I began my speech; but I agree to the Amendment being withdrawn.
§ Amendment accordingly withdrawn.
Page 3, line 5, after the words 'with the,' to insert the words 'detailed and specific'"—(Mr. H. S. Foster.)
§ * MR. H. S. FOSTER
I beg to move this Amendment, when the line of the clause would read—That where a bishop on any ground, etc., to signify the detailed and specific refusal in writing.The object of that Amendment, Sir, is that as the clause is drawn it appears to me the bishop need only state that he finds the presentee unfit under clause 2. I shall be glad to have the answer of the law officers on the point. All the bishop has to do is to reject the presentee on one or more of the grounds mentioned in clause 2. The result of this would be that when it comes to the final hearing of the appeal the accused person would not know what kind of a case to meet at all, and the bishop need not communicate a single word to the presentee, and he need never state, other than clause 2, all or any of the grounds upon which he based his decision.
§ * MR. H. S. FOSTER
If my honourable Friend the Member for Wigan says the rules provide, and contemplate providing, for the contingencies I have named, I think he is mistaken. Otherwise, if notice is given of the case the presentee has got to meet, I should at once withdraw the Amendment. All sorts of latitude have been given to the bishop to launch any kind of 1118 action against a presentee when it comes into court. I do not think that is in accordance with the principles of abstract justice. If a man is not going to have a proper hearing before the bishop, I think he ought to have detailed and specific grounds of the case he has to meet in the court, in the same way that any one of Her Majesty's subjects knows precisely, in a court of law, the kind of indictment he has got to answer, and the nature of the alleged offence which he has got to disprove. So, in this case, surely a man who has had a university training and an expensive education, should not be treated on a lower basis than that of the lowest of Her Majesty's subjects. What I maintain and repeat is that he should have the fullest opportunity of knowing what is attempted to be proved against him, and knowing the precise nature of the offence with which he is charged. More particularly I would wish to point out there is no limit to the time concerning which a charge may be prosecuted. The whole of a man's ecclesiastical career may be raked up against him as it now stands. Not only this, but the bishop is to be allowed to set up fresh grounds of complaint against him before the court. That is an extraordinary latitude which is not allowed in a criminal court. Of course, we do not want any technical grounds to stand in the way of judging any individual man; and I hope the House will insist upon this, that, whatever ground of accusation a man has got to meet in any indictment, he will not merely have to face some general ground of complaint, but a specific ground. The section requires that the bishop shall state his reasons to institute, and that implies that the statement will be sufficient. If he were to state his reasons in too general terms, that would prejudice his chance of obtaining a decision of the court in his favour. I really cannot see what good purpose would be served by the insertion of these words.
§ * MR. HUMPHREYS-OWEN
I hope the Amendment will be sanctioned so as to ensure that the bishop shall give a detailed statement as suggested by the honourable Member opposite. This is legislation for all time and for all persons, and how do we know we may not 1119 have an ill-advised bishop who may think it a rather clever thing to state his grounds in the vague and general phrases of the Act, as "pecuniary embarrassment," or "neglect of duty," or something still vaguer. What will happen then? I do not know that there is any procedure for compelling the bishop to state further particulars. In short, a mere vague statement of this kind appears to me contrary to the usual principles of English law. At any rate,I
§ hope the honourable Member will press his Amendment to a Division, and if he does so, he will certainly have my support.
That those words be there inserted.
§ The House divided.—Ayes 77; Noes 204.—(Division List No. 161.)1121
|Abraham, W. (Rhondda)||Hayne, Rt. Hon. C. Seale-||Randell, David|
|Allan, William (Gateshead)||Hedderwick, Thomas C. H.||Reckitt, Harold James|
|Austin, Sir John (Yorkshire)||Holburn, J. G.||Reid,Sir Robert T.|
|Baker, Sir John||Horniman, Frederick John||Rickett, J. Compton|
|Barlow, John Emmott||Jacoby, James Alfred||Roberts, E. (Dundee)|
|Beaumont, Wentworth C. B.||Jones, David B.(Swansea)||Samuel, J. (Stockton-on-Tees)|
|Billson, Alfred||Jones, W.(Carnarvonshire)||Sandys, Lieut.-Col. T. Myles|
|Brunner, Sir John T.||Kinloch, Sir John G. S.||Shaw, Charles E. (Stafford)|
|Buchanan, Thomas Ryburn||Lambert, George||Shaw, T.(Hawick B.)|
|Burt, Thomas||Lawson, Sir W.(Cumb'land)||Soames, Arthur Wellesley|
|Caldwell, James||Leese, Sir J. F.(Accrington)||Stevenson, Francis S.|
|Cameron, Robert (Durham)||Leng, Sir John||Strachey, Edward|
|Campbell-Bannerman, Sir H.||Lewis, John Herbert||Tennant, Harold John|
|Carmichael, Sir T. D. Gibson-||Lyell, Sir Leonard||Thomas, D. A. (Merthyr)|
|Cawley, Frederick||McArthur, W.(Cornwall)||Ure, Alexander|
|Clark, Dr. G. B. (Caithness-sh.)||McLaren, Charles Benjamin||Wayman, Thomas|
|Clough, Walter Owen||Maddison, Fred.||Williams, J. C. (Notts)|
|Colville, John||Mappin, Sir Frederick T.||Wilson, F. W. (Norfolk)|
|Crombie, John William||Mellor, Rt. Hn. J. W. (Yorks)||Wilson, H. J. (York, W.R.)|
|Davies, M. Vaughan-(Cardigan)||Morley, C. (Breconshire)||Wilson, John (Govan)|
|Duckworth, James||Moss, Samuel||Woodhouse, Sir J T (H'dd'rsf'ld)|
|Dunn, Sir William||Norton, Captain Cecil W.||Woods, Samuel|
|Fenwick, Charles||Nussey, Thomas Willans||Yoxall, James Henry|
|Fitzmaurice, Lord Edmond||Paulton, James Mellor|
|Goddard, Daniel Ford||Pease, A. E.(Cleveland)||TELLERS FOR THE AYES—Mr. Harry Foster and Mr. Humphreys-Owen.|
|Gold, Charles||Pease, J. A.(Northumb.)|
|Gourley, Sir Edward T.||Pirie, Duncan V.|
|Acland-Hood, Capt. Sir A. F.||Brookfield, A. Montagu||Cranborne, Viscount|
|Allsopp, Hon. George||Bucknill, Thomas Townsend||Cross, Alexander (Glasgow)|
|Arnold, Alfred||Carlile, William Walter||Curran, T. B. (Donegal)|
|Arnold-Forster, Hugh O.||Cavendish, R. F. (N. Lancs)||Curzon, Viscount (Bucks)|
|Atherley-Jones, L.||Cavendish, V. C. W. (Derbysh.)||Dalbiac, Colonel P. Hugh|
|Atkinson, Rt. Hon. John||Cayzer, Sir Charles William||Dalrymple, Sir Charles|
|Bagot, Capt. J. FitzRov||Chaloner, Captain R. G. W.||Daly, James|
|Bailey, James (Walworth)||Chamberlain, Rt. Hn. J. (Birm.)||Dane, Richard M.|
|Baillie, J. E. B. (Inverness)||Chaplin, Rt. Hon. Henry||Denny, Colonel|
|Balcarres, Lord||Chelsea, Viscount||Dixon-Hartland, Sir F. D.|
|Baldwin, Alfred||Cochrane, Hon. T. H. A. E.||Doogan, P. C.|
|Balfour, Rt. Hn. A. J. (Manch'r)||Coddington, Sir William||Dorington, Sir John E.|
|Banes, Major George E.||Coghill, Douglas Harry||Doughty, George|
|Barton, Dunbar Plunket||Cohen, Benjamin Louis||Douglas, Rt. Hon. A. Akers-|
|Bethell, Commander||Collings, Rt. Hon. Jesse||Douglas-Pennant, Hon. E. S.|
|Bhownaggree, Sir M. M.||Colomb, Sir John C. R.||Doxford, William Theodore|
|Bill, Charles||Cooke, C. W. R. (Hereford)||Duncombe, Hon. Hubert V.|
|Birrell, Augustine||Corbett, A. C. (Glasgow)||Dyke, Rt. Hon. Sir W. H.|
|Blundell, Colonel Henry||Cotton-Jodrell, Col. E. T. D.||Egerton, Hon. A. de Tatton|
|Bowles, T. G. (King's Lynn)||Courtney, Rt. Hon. L. H.||Evans, S. T. (Glamorgan)|
|Brassey, Albert||Cox, Robert||Fardell, Sir T. George|
|Fellowes, Hon. Ailwyn E.||Llewelyn, Sir Dillwyn-(Sw'ns'a)||Samuel, H.S.(Limehouse)|
|Field, Admiral (Eastbourne)||Loder, Gerald Walter E.||Saunderson, Colonel E. J.|
|Finlay, Sir Robert B.||Long, Col. C. W. (Evesham)||Savory, Sir Joseph|
|Fisher, William Hayes||Lopes, Henry Yarde Buller||Schwann, Charles E.|
|FitzGerald, Sir R. Penrose-||Lowe, Francis William||Scoble, Sir Andrew R.|
|FitzWygram, General Sir F.||Loyd, Archie Kirkman||Seely, Charles Hilton|
|Flannery, Fortescue||Lucas-Shadwell, William||Sharpe, William E. T.|
|Fletcher, Sir Henry||Luttrell, Hugh Fownes||Sidebotham, J. W.(Cheshire)|
|Flower, Ernest||Macaleese, Daniel||Sidebottom, W. (Derbyshire)|
|Folkestone, Viscount||Macartney, W.G. Ellison||Simeon, Sir Barrington|
|Forwood, Rt. Hon. Sir A. B.||Maclure, Sir John William||Sinclair, Louis (Romford)|
|Fry, Lewis||MacNeill, John Gordon S.||Smith, J. P. (Lanarks)|
|Garfit, William||McKenna, Reginald||Spencer, Ernest|
|Gedge, Sydney||McKillop, James||Stanley, Lord (Lancs)|
|Gibbons, J. Lloyd||Marks, Henry Hananel||Stanley, H. M.(Lambeth)|
|Gilliat, John Saunders||Mellor, Colonel (Lancashire)||Stirling-Maxwell, Sir J. M.|
|Gordon, Hon. John Edward||Melville, Beresford Valentine||Stock, James Henry|
|Gorst, Rt. Hon. Sir John E.||Meysey-Thompson, Sir H. M.||Stone, Sir Benjamin|
|Graham, Henry Robert||Milbank, Sir Powlett C. J.||Strutt, Hon. Charles Hedley|
|Greene, H. D. (Shrewsbury)||Milward, Colonel Victor||Sullivan, Donal (Westmeath)|
|Greene, W. Raymond(Cambs)||Monk, Charles James||Talbot, Rt Hn J. G. (Oxf'dUny.)|
|Gull, Sir Cameron||More, Robert Jasper||Thomas, A. (Glamorgan, E.)|
|Hanbury, Rt. Hon. R. W.||Morrell, George Herbert||Thorburn, Walter|
|Hardy, Laurence||Morton, A. H. A. (Deptford)||Tollemache, Henry James|
|Hare, Thomas Leigh||Murdoch, Charles T.||Tomlinson, W. E. Murray|
|Helder, Augustus||Murray, Rt. Hn. A. G. (Bute)||Tully, Jasper|
|Hickman, Sir Alfred||Murray, C. J. (Coventry)||Vincent, Col. Sir C. E. H.|
|Hill, Rt. Hn. Lord A. (Down)||Myers, William Henry||Warde, Lt.-Col. C. E.(Kent)|
|Hill, Sir Edward S. (Bristol)||Newdigate, Francis A.||Waring, Colonel Thomas|
|Hoare, E. B. (Hampstead)||Nicol, Donald Ninian||Warkworth, Lord|
|Hoare, Samuel (Norwich)||Northcote, Hon. Sir H. S.||Warr, Augustus Frederick|
|Hobhouse, Henry||O'Connor, A. (Donegal)||Webster, Sir R. E. (I. of W.)|
|Holland, Hon. Lionel R.||Philipps, John Wynford||Welby, Lieut.-Col. A. C. E.|
|Howell, William Tudor||Pollock, Harry Frederick||Wentworth, B. C. Vernon-|
|Howorth, Sir Henry Hoyle||Powell, Sir Francis Sharp||Whiteley, George (Stockport)|
|Hudson, George B.||Pretyman, Ernest George||Whiteley, H. (Ashton-und'r-L.)|
|Hughes, Colonel Edwin||Pryce-Jones, Edward||Williams, J. Powell (Birm.)|
|Hutchinson, Capt. G. W. Grice-||Purvis, Robert||Wilson, John (Falkirk)|
|Johnston, William (Belfast)||Rankin, James||Wilson, J. W. (Worc'sh., N.)|
|Johnstone, J. H. (Sussex)||Rasch, Major Frederic Carne||Wilson-Todd, W. H.(Yorks)|
|Kennaway, Rt. Hon. Sir J. H.||Redmond, William (Clare)||Wodehouse, E. R. (Bath)|
|Kenyon, James||Renshaw, Charles Bine||Wortley, Rt. Hn. C. B. Stuart-|
|Kenyon-Slaney, Colonel W.||Richardson, Sir T. (Hartlep'l)||Young, Comm. (Berks, E.)|
|Lafone, Alfred||Ritchie, Rt. Hon. C. T.||Young, Samuel (Cavan, E.)|
|Lawrence Sir EDurning-(Corn.)||Round, James||Younger, William|
|Lawson, John Grant (Yorks)||Royds, Clement M.||TELLERS FOR THE NOES—Sir William Walrond and Mr. Anstruther.|
|Leighton, Stanley||Russell, Gen. F. S. (Cheltenham)|
|Llewellyn, E. H. (Somerset)||Russell, T. W. (Tyrone)|
Page 3, line 8, to leave out the words from the word 'be' to the word 'Justice' inclusive in line 31, and insert the words 'tried in the High Court of Justice.'"—(Mr. H. D. Greene.)
§ * MR. H. D. GREENE (Shrewsbury)
The object of my Amendment is to effect what no doubt would be a very substantial change in the Bill itself. I certainly deprecate as a rule attempts to make small Amendments in a Bill which has been carefully considered by a Standing Committee upstairs; but where there is an important question of principle concerned, and when I have a strong feeling with regard to it, I do not shrink from making in this House an attempt to alter such a proposal of a Bill. The object I have in 1122 view is to replace the court which it is proposed to be set up by this Bill, and to leave the existing courts to deal with any questions which arise as to the rights of patrons and presentees—to leave Her Majesty's High Court still to be responsible for adjudicating upon these matters. The right of patrons to apply to the High Court of Justice in the event of the bishop refusing to institute their presentee has existed for centuries past. The proceeding until 25, or perhaps 30, years ago was by an action, called quare impedit. This form of action was abolished, and since the passing of the Judicature Acts of 1873–75, it has been left to Her Majesty's, High Court of Justice, by way of ordinary action, to enforce the duty of a 1123 bishop to institute a properly presenter cleric. The procedure of the court—and I am only venturing to call this to the attention of those who have not studied this intricate branch of the law, so as to enable them to follow my subsequent remarks—is this. An action is brought in the Queen's Bench or other division of the High Court in the ordinary way for trial, in the same manner as an action for libel or slander, or for goods sold and delivered, which may be tried in the locality in which the parties reside, if that is most convenient. It is disposed of either before a judge alone or before a judge and jury. In cases in which important questions of character are concerned it is manifestly better that the person whose character is at stake should have the question whether he has lived an evil life, or been guilty of immoral conduct, tried before a jury in the place where he is known and where his accuser possibly is also known. That procedure has worked well in the past. In the very exceptional case where a presented cleric is supposed to be guilty of professing heretical opinions or unsound doctrine, it has been laid down by the House of Lords that the proper procedure is for the High Court of Justice to issue a writ to the metropolitan and ask him to investigate and report upon the question of doctrine, and according to that report the court will act. And, therefore, we have a most clear and useful system at the present time under which any question, whether it be of conductor doctrine, can be ascertained and adjudicated upon by the High Court of Justice. Any questions of doctrine would be ascertained by the archbishop, who would not be subjected tothe—I will not say the indignity, but the very difficult position of being cross-examined as an expert on doctrine—an ordeal which even an archbishop might well shrink from. The present law being, as I venture to think, exceedingly satisfactory, the proposal is made that a new court should be established. Let me here say that the High Court of Justice is the tribunal which has to adjudicate upon almost all the differences that arise amongst Nonconformist bodies. If there is a question of false doctrine or other such question in a Nonconformist assembly or chapel, it can be adjudicated 1124 upon, and frequently had been in my experience, by the High Court of Justice. If the trustees of a Nonconformist chapel have in any way violated their trust, the matter can be brought before the High Court of Justice; but it seems that the High Court of Justice is not good enough to dispose of the affairs of the Church of England? But I say that what is good enough for one section of the community ought to be good enough for another; and I hold that the law as it is at present is sufficient for us of the Church of England, and that the onus lies upon those who desire to make a change to show that a change is necessary in the tribunal, and that a better tribunal should replace the one of which complaint is made. The clergy of the Church of England are at present possessed of the right of going to no less than five or six courts. It seems to me that whenever any differences connected with the Church of England arise, new tribunals are suggested to be called into existence. Under the Pluralities Act, the tribunal is the chancellor of the diocese, with an appeal to the archbishop. Under the Church Discipline Act, there is to be a commission of inquiry, and then the bishop of the diocese is to adjudicate. Under the Public Worship Regulation Act a special judge was appointed, with an appeal to the Privy Council. Under the Clergy Discipline Act we have a consistory court with assessors, and an appeal to the Queen in Council. If we come to the question of dilapidations, there is still another procedure. And then, again, there is a sixth case. If the presentee complains that the archbishop does not institute him, he has to go to the Court of Arches; and so there are at present six differently constituted tribunals to deal with matters which may from time to time arise. I say that to create a seventh is going beyond what the needs of the case require. I desire to keep the trial in the High Court of Justice, and to retain those cases within the cognizance of Her Majesty's judges in the High Court of Justice, subject to an appeal to the Court of Appeal and the House of Lords. I desire to retain within their jurisdiction all matters of dispute affecting the clergyman and the patron. The proposal of the Bill is that a court, or what is called a court, should 1125 be constituted "consisting of an archbishop and a judge of the Supreme Court appointed by the Lord Chancellor for hearing such cases." The origin of that proposal is this—I believe I am right in saying, and I hope I shall be corrected if I am in error—that until 1896, when the Benefices Rill was brought forward by private Members, and was actually in Committee, no proposal had been made for any other proceeding than an appeal by the patron or presentee to the archbishop alone. That was a Bill, if I may say so, of the sacerdotalists. I hear cries of "No, no!" but I always find that persons disclaim, with vehemence, the imputation of being sacerdotalists. I do not know that there is anything to be ashamed of in that imputation, yet it is repudiated with heat whenever it is suggested. It was the Bill of those who seem to think that in the bishops and archbishops is reposed the entire wisdom of this earth. They wished to reintroduce ecclesiastics into our courts—an attempt to reverse the policy of generations past. The right of the patron is a temporal right; it is a right of property. It may be wrong that the law should be so, but my right to my advowson is a temporal right, a right of property, as much as my right to my house; and if I am refused the exercise of that right, am I to be sent to a bishop or archbishop for redress? During many years past the laws have been directed to the removal from the ecclesiastical courts of supervision over temporal matters. In that Committee an endeavour was made to remove the archbishop from the court, and to provide that a judge should dispose of the matter. The honourable Member for the Stroud Division proposed that there should be associated with the archbishop a judge, who should dispose of matters of law and fact, leaving the archbishop to dispose of anything that remained. That proposal was seized upon as a sort of compromise and from that time both the Government and the promoters of the Benefices Bill (No. 1) have adhered to the court, so called, which was then suggested. It was carried as an Amendment in the Standing Committee, but the Bill never came down to be reconsidered by this House on the Report stage. The new-fangled or new- 1126 fashioned court now proposed has, therefore, never been considered by this House at all. Let us see what subjects this court is going to deal with before we consider whether it is a court. In clause 2 of the Bill we shall find them. The court has to deal with the reasons for which a bishop may refuse to institute or admit a presentee to a benefice. Now, let me look for a moment at those grounds, and ask why the High Court of Justice is not competent to try these matters. There is, for example, the conditionthat—The presentee is unfit for the discharge of the duties of the benefice by reason of physical or mental infirmity or incapacity, pecuniary embarrassment, grave misconduct or a neglect of duty in an ecclesiastical office, evil life, having by his conduct caused grave scandal concerning his moral character since his ordination, or having, with reference to the presentation, been knowingly party or privy to any transaction or agreement which is invalid under this Act.These are ordinary matters which can be dealt with, and are dealt with, by different sections of the High Court almost daily. Suppose a discussion in public arose out of a bishop's refusing to institute a clergyman on the ground of his leading an evil life, and an action for defamation was brought; the justification might be pleaded that the man really was leading a bad life, and the question before a judge and jury at the assizes, or in London, would be, "Is this man leading an evil life or not?" That issue would be read in open court in the ordinary way in a libel action. But if a bishop, when required to institute, says, "I refuse to institute because he leads an evil life," why is the ascertainment of the truth of that statement to be shuffled off to a judge sitting without a jury, with no possibility of demanding a jury, and with no right of appeal on the part of the person whose character is affected? Why is that to go to a judge sitting alone in a so-called court associated with the archbishop? I say it is a mere question of form. Merely because the question of character arises in one form rather than another, we are to have a completely new tribunal. Now, I ask, is this a court at all? I do not call it a court. It seems to me a tribunal ad hoc. It is 1127 a tribunal called into existence for the special case only which it has got to consider. I think I shall be found to be justified in that remark when we consider the provisions that are made with respect to it. It is not a branch of the High Court. The judge who acts in it is a volunteer. He is not bound to accept the obligation of acting on the appointment of the Lord Chancellor. The judges of the High Court are appointed for the purpose of discharging their duties in the High Court. They are not appointed to act outside of it, and the Lord Chancellor would have to go about to get some ecclesiastically-minded judge, or somebody who might be willing to assist him voluntarily by discharging the duty of sitting in these cases. He does not sit as a judge of the High Court, and the court itself is not a, superior court, for the Bill nowhere says that this court is to rank as a superior court. Two individuals are to meet and dispose of important interests in connection with this Bill. There is no continuity. The same judge may never sit again. There is no provision with reference to a registrar, nor for keeping records permanently of the decisions of a judge, so that they might be guides or precedents for other judges. One judge may rule that certain cases, like those referred to last night, were cases of grave misconduct in ecclesiastical office; the next judge being differently-minded, that this is not so at all. A Low Church judge may decide one way, a High Church judge another. There is no precedent which the judge is bound to follow, and there is no power for rectifying any mistake or misinterpretation of the law. I may point out also that there is a great deal of vagueness as to who is to have the patronage of the offices to be called into existence, and as to how the salaries are to be paid. Is the registrar to do his work for nothing, or is he to be paid by fees? If the latter, the expenses of this tribunal will be enormous. Who, also, is to pay the expenses of the judges? And is this tribunal to sit in London or in the provinces? I 1128 take it that the judges cannot travel for nothing, and I should have thought it was a very expensive thing to move an archbishop about all over England. But no provision is made for this. There is another practical point to which I desire to call attention. Where is this court to sit? In London, or in the provinces? Again, how many courts may sit at once? I should imagine that, as an archbishop is to preside, only two courts can sit at one time. But if there is to be a great press of business, the courts should be sufficient in number. Then, also, there is the question of the composition of this court. It is absolutely a novel combination. There is no tribunal that I can recall in which a judge of the High Court is associated with any layman, except, perhaps, the Railway Commissioners. In the Admiralty Court it is not so. In that court there are assessors to the judge, which is a different matter. A judge is here made to play second fiddle to the archbishop. In the Admiralty Court the assessors inform the learned judge of their view of the facts, but he may disregard it entirely if he chooses. The assessors, however, have no judicial function; they merely inform, instruct, and assist. There is no analogy between the two courts. There is a sort of analogy with the Railway Commission, but there the functions of the judge are defined, and his opinion on a question of law prevails. I ask, what reason has been advanced—I have heard of none, none was advanced on the Second Residing—why we should displace Her Majesty's judges, appointed by responsible Ministers of the Crown, and in their place put an archbishop, selected for his office because he is a learned man, a discreet man, and an able administrator—at all events, a man if high character—but who is appointed with some other object than that of adjudicating upon the rights of patrons? I protest against taking away an injudicial person from his tasks and putting him into a court for which he is, in my judgment, quite unsuited. The archbishop is to be put in a superior 1129 position to the judge; he is to give judgment that is to be final. It may be said that he is bound by the judge's finding on the legal side of a case. But a very important part is not left to the judge. The question may be whether man has been guilty of grave misconduct or is leading an evil life. The judge may say that he thinks the man has not been guilty of misconduct, and has not been leading an evil life, and that the bishop was mistaken in thinking so. The court acquits the man, and orders the institution to proceed. But look on the other side. The judge may say he thinks the man has done wrong, and that it is clear he was guilty of grave misconduct. If we are to accept the proposal of this Bill, we are going to give the archbishop the power of saying that, notwithstanding that the bishop had decided that there was grave misconduct, and notwithstanding that the judge thought so, the presentee may be instituted. The archbishop is to be able to say, "In my discretion I will overrule the bishop and the judge, and I will put that man in?" Turning now to the question of the judge, I would point out that he is to be a judge of the Supreme Court, which may mean a judge of the Court of Appeal, and he is to be appointed by the Lord Chancellor for the purpose of hearing such cases. I have already remarked that this is no part of the judge's duty, and he can refuse. If, however, he cares to undertake the office, he does it as a private person; it takes him away from his regular work, and deprives ordinary suitors, who have their interests to be considered, of the attention of the judge. I protest against the selection of a judge by the Lord Chancellor for this particular class of work. Why should not there be a rota of judges, a system which, in other matters, works satisfactorily? If there is to be a judge, he ought to be appointed by rota as the Election Judges are. That gets rid of the personal element, and prevents it being said that the Lord Chancellor, according to his own bias, has taken one particular judge for administering the law in these cases. It seems to me much better to allow those judges, who have had to deal with similar cases all their lives, to act on these occa 1130 sions, without any attempt to specially select them. I should like to say a word about the powers of the court. I certainly do feel, and feel very strongly, and until I hear some important counterbalancing reason I shall continue to believe that it is an extreme hardship, where character is at stake, that a person should be deprived of a chance of having his character vindicated before a judge and jury in the High Court as in ordinary cases of libel and slander. In the High Court of Justice cases affecting character are sometimes remitted from one division to another, so that a trial by jury can take place. It is important that we should preserve the right of trial by jury, as to the specified grounds for refusing to institute, especially as we are told that questions of doctrine or ritual are not to come in at all. I should like to know why we are to deprive any patron of the right of having the character of his presentee investigated. Why are we to deprive the presentee of the opportunity of clearing his character before a jury with the assistance of counsel? And, moreover, if a damaging allegation is made by the bishop when he refuses to institute a certain person as incumbent, why, in the interests of the parishioners, should not that be cleared up? I agree with the remark I heard in this House, that the interests of parishioners are not sufficiently provided for in this Bill. It is in the interests of the patron, the presentee, and the parishioners that any imputation on the character of a man who may have to serve them in a most sacred office for perhaps 20 or 30 years, which the bishop thinks is a reasonable objection to him, ought to be cleared up before a proper tribunal. Sir, there is no such tribunal provided. I submit it is not right that the opinion of those who desire to restore episcopal supremacy as far as they can, should be allowed to out-weigh the great advantages of giving the right of a trial in the ordinary courts of justice, subject to the ordinary machinery of the law. We are told that the judge is to decide the law, and the facts, but the archbishop is to have the right to say whether the presentee is or is not fit to be instituted 1131 to the living. Why is the judge less fit to decide that question than the archbishop? He decides all other sorts of questions, either with or without a jury, and where a man is said to be unfit for a living the judge would have to decide this point also, if it happened to arise in an action for libel. If it were an ordinary action for libel as to the fitness of a man for a living, the judge alone, or with a jury, would have to decide it. Why is the judge not to decide the question of costs? It seems to me that that is a most important omission, for that question is one which is most within the knowledge of the judge. It is true that what is called a discretion is given to the court, but I say that that is a discretion which should be given to the judge. Day after day judges have to decide and lay down certain principles as to the allocation of costs, as to whether they should be allowed to one side or the other. But in this case it appears to be left, not to the judge who is familiar with that branch of the law and the application of it, but it is to be left to the judges. I say it is a matter in which an ecclesiastical judge ought not to be given a discretion. I say that, on the whole, this is a most unsatisfactory tribunal, and it is open to all sorts of abuses. Not only this, but it will be an exceedingly expensive one, unfortunately, for any bishop who has to resort to it. The expense which may be involved may be ruinous to the man whose character is assailed, and it will involve a much greater expense than an ordinary action in the High Courts of Justice. If the bishop loses, I certainly do not wish that he should be mulcted in more costs than is necessary. I think their friends should advise the bishops to get rid of this proposal and adopt the very simple procedure now prevailing. I daresay we shall be told that some Royal Commission has recommended some other tribunal than the High Courts of Justice, but if we look at the date of any such advice we shall probably find that it was in the 1132 old-fashioned time, when these actions cost a great deal of money. Since the Judicature Acts were passed there can be no reason whatever why this should be. The High Courts of Justice fortunately command the confidence of all classes in this country, and I have yet to learn that the same measure of confidence will be accorded to a tribunal of such a novel character, constituted, as this is, with such imperfect powers as are given to it—with liability for religious or theological bias on the one side, or on the other to be imported into it. Let me just remind those who oppose this—and I know the Government oppose it strongly—that there still exists the right of going to the High Courts of Justice in cases where the bishop, for any other reasons than those specified in this Bill, refuses to institute. Therefore we are retaining the right of going to the High Courts of Justice by ordinary action in some cases, but for those special matters set forth in section 2 we are creating this new tribunal, which is, unfortunately, inferior to any of the branches of the High Courts in its powers, functions, and capacity for getting at the truth and doing justice all round. I hope that the House will see its way to say that it is preferable that all matters affecting alike patron, presentee, and parishioner should be left to the care of the High Courts of Justice.
§ SIR R. B. FINLAY
I hope the House will not accept this Amendment. I do not propose to follow my honourable and learned Friend over all the ground which he has travelled in the course of his speech, for he has gone rather into the principle of these matters, which will be more appropriately dealt with at another stage. His point seems to me that of the general custom of whether it is desirable to set up this court at all. Many points are raised by the various Amendments on the Paper, but I propose to address myself merely to the broad points on which my honourable and learned Friend based his observations. Now, the first ground on 1133 which my honourable and learned Friend disputes this tribunal is that the present procedure in the High Court for dealing with such matters works in his opinion extremely well. Well, that tribunal, as everyone is aware, is open for anyone to bring an action. My honourable and learned Friend suggested that these proceedings were now much less expensive than in former days. I think, however, he will find that no change has taken place in that respect, and that proceedings in the High Court are at least as expensive as they were before. [Hear, hear!] An honourable Member cheers that statement with a reassuring sound. Now my honourable and learned Friend, however, says that that procedure has worked extremely well. So it has from his point of view, but then his point of view is not mine. In his eyes the element of property in regard to advowsons has almost entirely swallowed up the element of trust; that is, he regards advowsons simply as a matter of property, and, therefore, no procedure could be better than that with reference to these matters. The result of this was brought out very clearly in a very remarkable speech made by the late Archbishop Magee, in which, speaking of this as a matter of practical working, he said that a bishop was not liberty to reject the presentee on the ground of physical or mental incapacity for the work. I am not speaking of the question as to whether that is a matter of abstract law applicable to the question, but what I am saying is that the practical working of it by action in the High Court is reduced to this: that in practice a bishop did not dare to refuse a man whom he knew to be unfit for the charge. My honourable and learned Friend says that nothing could be more satisfactory than this state of things. If an advowson is regarded simply as a thing to be bought and sold, the value of the property is increased by the certainty that the patron, unless some grave scandal attaches to his presentee, can rely upon putting into the charge the man he has in his eye. But from the point of view of those who desire to see 1134 the doctrine carried out in practice, that an advowson is merely the privilege of exercising a trust, no tribunal could be worse. Now my honourable and learned Friend spoke in the highest terms of the High Courts of Justice, and I re-echo all his praises of them. But the High Courts exist for the discharge of the functions of courts of law, and the duty to be discharged with reference to whether a man is competent for a cure of souls involves not only a knowledge of questions of law but also the delicate judgment on the question of fitness for such a post, and upon that you want the assistance of an ordained man, who has a mind trained and experienced in the duties and the working of such an office. Now my honourable Friend said that questions of this kind arising in Nonconformist churches were every day tried in the High Courts, but I think he is in a slight confusion on that point. It is perfectly true that he constantly sees cases of trusts in relation to Nonconformist bodies in the High Court. The High Court knows what is the construction to be put upon a particular document creating a trust, but it is an absolute mistake to suppose that the enforcement of discipline in the Nonconformist churches is effected by the machinery of the High Court. The honourable and learned Member is wrong in saying that questions of this kind relating to Nonconformist churches are tried in the High Court. Cases of trusts in relation to Nonconformist bodies are, indeed, constantly tried; but the enforcement of discipline in these bodies is never effected by the High Court. The suggestion is preposterous. My honourable and learned Friend evoked an interruption which he seemed rather to be prepared for when he hurled the epithet of "Sacerdotalist" at some unnamed person, and then affected surprise that someone remonstrated with him. I do not think my honourable and learned Friend used the expression of "Sacerdotalism" as a flattering one, although he said he did not see why anyone should be ashamed. Well, the supporters of this clause certainly are 1135 in no respect open to the charge of being Sacerdotalists. I think a good many of the supporters of this clause would, with perfect justice, be able to say that they are the last men in the House of whom that could be justly said. This matter must be treated as a matter of common sense, the broad principles of which must regulate the suitability of the tribunal to determine the fitness or unfitness of a man even in a sacred profession. There are two questions which would come before the court. The first is—whether a man had committed a particular act charged against him. Then upon that arises the further question whether that offence, if committed, unfitted him for the sacred office which he desired to enter. I submit to the House that these are questions of different kinds, requiring the application of minds of a different cast for the purpose of weighing the evidence and arriving at a conclusion. As to the finding of the fact, you cannot get a better tribunal than a trained judge of the High Court. But when you come to the question whether, by reason of having committed that act, a man is or is not unfitted for the profession of the cure of souls, I should not pay so much respect as my honourable and learned Friend to the opinion of the judges. Some people worship priests. My honourable and learned Friend worships judges. Under this proposed court the judge is not to be a subordinate of the Archbishop; he will be supreme in his own particular sphere—that of fact and law. If the judge finds that the act was not committed, or that the neglect or default did not occur, there is an end of the matter. The decision of the judge is absolutely binding. If, on the other hand, the judge finds that the act was committed, there arises the further question whether, by reason of that, the man is unfit for the cure of souls. Supposing the question were whether a man was fit for a certain military command, the allegation being that he was unfit by reason of a certain act. As to the performance of the act, I would rather take the judge's decision; but as to whether 1136 the commission of the act rendered the man unfit for the command, I would rather take the opinion of any average Colonel than that of the judge. I hope the House will get rid of this superstition about judges. In their own sphere they are admirable; but do not let us introduce this new idolatry of them. Sir, I do not propose to follow my honourable and learned Friend into the various difficulties he has suggested in connection with this court. The honourable and learned Member said that this court would have no continuity—that there would be a High Church judge one day, a Low Church judge the next, and that none would be bound by the decisions of his predecessor. According to every principle of law, each, judge will be bound by the decisions of his predecessors on questions of law; but he would not, and ought not, to be so bound on questions of fact. Fancy collecting the verdicts of juries, and endeavouring to apply them to new cases! My honourable and learned Friend was very much, concerned about the travelling expenses of the judges and the archbishop. He was also concerned as to how the Registrar was to be paid, and whether the fees would be sufficient. Well, the fees will not, I should hope, be very large, but I believe they will be sufficient to discharge any expenses attending the sittings of these courts. In his peroration the honourable and learned Member entered into the region of prophesy. He said the court would be expensive and ruinous to all who had anything to do with it, and he advised the bishops in their own interests not to touch the accursed thing. I do not know on what ground my honourable and learned Friend makes that statement. One of the provisions of the Bill is that the rules should take care that the procedure is as inexpensive as possible, and I believe the rules will be framed so as to secure that object. Without professing to assume the rôle of a prophet, I feel much more sanguine about the future of this tribunal than my honourable and learned Friend does.
That the words proposed to be left out to the word 'and' in line 11 stand part of the Bill.
§ Agreed to.
Page 3, line 14, after 'prevail' insert 'and the burden of proof shall be on the bishop, who shall be required in the first instance to justify his refusal to present or institute.'"—(Mr. H. S. Foster.)
§ * MR. H. S. FOSTER
The court which is constituted under the Act will have no opportunity of reviewing any evidence which may have been given in any first court. Therefore the court is a court of first instance, and the bishop should be required to justify his refusal to present or institute. In other words, according to the ordinary principles of English justice1, the presentee should be assumed to be innocent until he is proved to be guilty. The bishop should be required to open his case, and to call witnesses in support of his case so that the witnesses who may be called to prove unfitness can be subjected to the usual course of cross-examination. I do not know whether the Government are opposing this Amendment.
§ * MR. H. S. FOSTER
I am sorry to hear that. Of course the Government can practically do what they like. When the Division bell rings, a large number of the supporters of the Government rush from all parts of the House, and go into the Government Lobby, without knowing upon what point the House is dividing. In many cases, if they had known upon what they were dividing, they would have gone into the Opposition Lobby. [Cries of "No," and "That's untrue."] An honourable Member says this statement is untrue. Well, honourable Members have told me this very day that if they had known what they were dividing upon they would have gone into the Opposition Lobby, and that is a matter of common experience. The Solicitor General tells me he is going to oppose this Amendment, which is one that I should 1138 have thought the Government themselves would have insisted upon. I should have thought they would have insisted, inasmuch as there had been no trial until the case came before the court under the Bill, that the first duty of the bishop would be to prove to the court the alleged ground of unfitness, and call witnesses, who would be subject to cross-examination. If the Solicitor General is going to say that that will obtain under the Bill, I reply that there should be no objection to the insertion of these words; but if the onus is not to rest upon the bishop, then the accused clergyman is going to be put in the extraordinary position of proving that he is innocent of charges which have never been proved against him. That is so repulsive to our sense of justice in this country that I cannot believe that such a proposal will receive the approval of the House.
§ SIR R. B. FINLAY
Mr. Speaker, this Amendment is not wanted: it will do mischief, and will really be inconsistent with earlier portions of the Bill. If my honourable Friend will look at clause 2, he will see that we have passed a sub-section providing that where misconduct is alleged against a clergyman the burden of proof shall be on the patron.
§ SIR R. B. FINLAY
Yes, but surely, as a matter of common sense, you could have the onus of proof shifted from the patron to the bishop, when the case comes before the court. I am sure, when my honourable Friend considers this matter, he will not press this Amendment. Another reason for his not pressing this is that it is quite unnecessary, because where misconduct is alleged the burden of proof would be upon the person making the accusation. Therefore, in my opinion, the Amendment is unnecessary, and cannot be accepted.
§ Amendment negatived.1139
Page 3, line 14, insert—
At the hearing the inquiry shall be limited to the grounds stated by the bishop in the notice signifying his refusal, and no fresh charge shall be made against the presentee on the hearing of the appeal."—(Mr. Lloyd George.)
§ MR. LLOYD-GEORGE
I have been desired, in the absence of my honourable Friend, to move the Amendment upon clause 3. I think that the Government will see that it is one which they can agree to, and if that is so I will not detain the House.
§ MR. LLOYD-GEORGE
regretted that the Government could not see their way to accept it. The object of the Amendment was to prevent the introduction of any new matter into a case which had gone to appeal, but that the appeal should be confined entirely to the charges which had been inquired into in the court of first instance. It was a perfectly fair Amendment, and he begged to move it.
§ SIR R. B. FINLAY
pointed out that had the honourable Member looked at clause 4, he would have seen that that provided that fresh charges could only be brought forward by the bishop by leave of the court, and then only upon terms as to notice and costs of adjournment, etc. In his opinion, it would never do to tic up an issue in the way desired by the Amendment; for instance, offences might have been committed after the first action.
§ MR. LLOYD-GEORGE
asked whether the fresh charges would be confined to offences which might have been committed subsequently.
§ SIR R. B. FINLAY
declined to accept the suggestion, because the bishop might, after the first inquiry, discover further matter of which he was not cognisant at the time he took action. After the case had gone to appeal it might 1140 be discovered that offences of immorality had been committed in the parish, and under the circumstances it would, in his opinion, be preposterous that those matters should not be inquired into. The Amendment, so far as he could see, was in the interests of the presentee, and directly opposed to the needs of the parishioners.
§ MR. MOSS (Denbighshire, E.)
marvelled very much that the Government declined to accept the Amendment. It seemed to him hardly just that the whole of a man's past life should be raked up before a tribunal to which he has appealed from the court of first instance. He thought that was a principle which was quite unknown to English law. If the Amendment went to a Division he should vote in its favour.
§ MR. GEDGE
said that in the Grand Committee that question was fought out to a Division, and the Government, convinced by the arguments brought to bear, had promised to bring in a clause to deal with it. They had brought in the new clause 4, which he considered was a clear performance of their promise. So far from the principle being foreign to English law, he took leave to point out that the practice of introducing fresh matter was indulged in every day, upon such terms as the judge might order, as to notice, etc., and he hoped the Government would not accept the Amendment.
§ COLONEL SANDYS (Lancashire, Bootle)
considered, under the circumstances, the presentee should be allowed to rebut any fresh charges brought against him.
§ * MR. HUMPHREYS-OWEN (Montgomery)
said, as a Member of the Grand Committee, he hoped that there would be no Division upon the Amendment. The Government had performed the promise which they had made to the Grand Committee, to bring in a clause to deal with this question, by the introduction of the new clause 4, the words of which, in his, opinion, were quite sufficient to deal with this matter.
§ MR. LLOYD-GEORGE
, having regard to the expression of opinion which, had fallen from the House, begged leave to withdraw his Amendment.
§ Amendment, by leave, withdrawn.
In page 3, line 26, to leave out the words 'that judgment shall be final,' and insert the words 'the patron or the presentee shall have a right of appeal to the Queen in Council within one month from such judgment."—(Mr. H. S. Foster.)
§ * MR. H. S. FOSTER
The Amendment which I am about to move prescribes for the indefeasible right of every one of Her Majesty's subjects, the right of appeal to the Queen in Council. The clause provides that there shall be one hearing only in the court to be constituted under the Act, and that the decision of that court shall be final. Of course, it is desirable that the proceedings under the Act should be as short as possible, but there is such a thing as giving a man a short shrift, and to absolutely deny him justice is an excessive desire to curtail the proceedings. Under the existing Clergy Discipline Act, notwithstanding the care with which it was framed, mistakes have occurred. Clergymen have been convicted after a full and fair trial, as was supposed, in the Consistory Court, and on appeal to Her Majesty in Council the decision of that court was upset. There is one case well known to many Members of the House, and certainly to the law officers of the Crown—the case of a vicar in the East-end of London, who was convicted in the Consistory Court of drunkenness, and sentenced to deprivation. That clergyman felt so sorely the injustice under which he suffered that he appealed, and was assisted in his appeal by the Corporation of the City of London.
§ * MR. SPEAKER
Order, order! The Amendment next on the Paper, which stands in the name of the honourable and gallant Member for Bootle, is set down in the wrong place, and should come before the Amendment now being discussed.
§ COLONEL SANDYS
The Amendment to which I wish to direct the atten- 1142 tion of the House affects the question as to whether the decision of the archbishop in the court to be constituted under the Act should be final. Throughout the discussion on this Measure I have maintained that it is the indefeasible right of any British-born man to have his case tried out in the courts of justice of the country, and where he is dissatisfied with the verdict, to have the right of appeal to the Sovereign. I do not see that we should be justified in this House in extinguishing that right by providing that in the case of clergymen the decision of an archbishop should be held to supersede the elementary and primary right of appeal of every British-born man to the Sovereign. Since this matter came before the House I have received more than one letter from clergymen with whom I am entirely unacquainted, stating that in cases affecting themselves they should not be compelled to submit to the decision of any clerical authority whatever, but that they should be allowed access to the ordinary courts of the country to have their cases tried in the usual and customary manner. Under these circumstances I think I am justified in moving an Amendment to this effect—that the decision of an archbishop shall not be held to be final, and that there shall be the right of appeal to the Queen in Council in the case of every clerical person unless such person consents to such decision being final.
§ * MR. SPEAKER
May I suggest to the honourable and gallant Member that his object would be better carried out by supporting the Amendment of the honourable Member for Lowestoft. The honourable and gallant Member's Amendment says that, unless the presentee consents, the judgment shall not be final, but it does not provide for any appeal in case of non-consent. The Amendment of the honourable Member for Lowestoft does make such a provision.
§ COLONEL SANDYS
I shall be guided by you, Mr. Speaker, in the matter, and shall accordingly withdraw my Amendment.
§ * MR. H. S. FOSTER
Mr. Speaker, I will, therefore, resume. I was mentioning to the House, as showing the necessity for an appeal from what is only a court of first instance, however carefully constituted, the recent case of the Vicar of Silvertown, who was convicted by the Consistory Court of drunkenness, and sentenced by the then Bishop of London to the deprivation of his living, as the bishop had the power to do under the Clergy Discipline Act of 1892. The clergyman appealed to the Privy Council; he had not the necessary means himself, but he was able to enlist the support of the Corporation of London, which voted 200 guineas to enable him to prosecute the appeal. He was represented on the appeal by the honourable and learned Member for Plymouth, and the Privy Council allowed the appeal with costs against the bishop, Lord Herschell stating that a more extraordinary decision, or a more unjust decision, than that given by the Consistory Court he could not possibly conceive. That establishes the fact that, although there was a proper trial before a legally constituted tribunal, it was possible to have a gross miscarriage of justice. What happened then may happen again. Remember there is only one trial, and that the court established by the section is liable to a miscarriage of justice as every other court is. That being so, there ought to be some means of reviewing its decisions as speedily and as inexpensively as you please. The sole object of the Amendment is to give to every incriminated person that which was described by the Ecclesiastical Courts Commission as the indefeasible right of every subject, and a clergyman, even an incriminated clergyman, is one of the Queen's subjects, and is entitled to the remedies which every other subject can avail himself of. I have ventured to give the House one instance which has occurred during the short time the Clergy Discipline Act has been in force. But for such an appeal as 1144 I now ask there would have been a gross miscarriage of justice which could not have been remedied. Seeing that this has happened in the few cases brought before the Consistory Court, I do urge the Government to accept this Amendment, because, after all, an incriminated clergyman is not, likely to pursue an appeal vexatiously, and at his own cost, and it is only in cases where there is a strong sense that an injustice has been committed, however innocently, that an appeal will be taken to the final tribunal I now suggest.
§ SIR R. B. FINLAY
I hope this Amendment will not be pressed. I feel if it were carried it would very much detract from the usefulness of the Bill. My honourable Friend says that he desires that the appeal should be inexpensive. The merits of the Privy Council as a court of appeal are many and great, but certainly cheapness is not amongst them. Such a provision would add enormously to the cost of procedure. I would remind my honourable Friend that we are not dealing with ordinary cases of litigation, but with the question of appointing an incumbent to a parish, and I would ask my honourable Friend to remember what the state of things would be in a parish where the incumbency would be left vacant, perhaps for a year, while all the paraphernalia of justice was being brought to bear on the question.
§ SIR R. B. FINLAY
Yes, but the case would be tried not merely by a bishop, not merely by an archbishop, but also by a judge of the High Court, who would be supreme on questions of fact and law, and it is only in cases where the bishop and the court concur that the Act applies. I would remind my honourable Friend that there is another side to this matter: there is the question of the right of the parishes. 1145 The Amendment would have the effect of inflicting injury on parishes by keeping them vacant while such proceedings are pending, merely on the speculation that now and then some hardship may possibly be inflicted on some particular clergyman.
§ * MR. HUMPHREYS-OWEN
Mr. Speaker, a few minutes ago we were warned by the Solicitor General against undue worship of judges. Now, we are told we cannot accept this Amendment because we are safe in the hands of only one of the judges of the supreme court. However that may be, we must now consider what has happened. Owing to some extraordinary circumstance the Amendment of the honourable Member for Shrewsbury was negatived without a Division, and the consequence will be that for the first time since the reign of Henry II. we are going to have a spiritual person intermeddling in temporal affairs in a court of justice. Surely, under such circumstances the right of appeal to the Privy Council is the very least security that should be reserved to the persons interested. The Solicitor General referred to the judge of the supreme court as being the absolute judge as to facts. There is, however, such a thing as the discovery of fresh evidence: there is such a thing as a judge taking a perverse view of a case. But more than that, we are told we have to consider the convenience of the parishes. But, Sir, surely there are ways and means by which provision could be made during a temporary vacancy for the temporal needs of a parish. At any rate, it is a question of balance of convenience. Ex hypothesi, there is going to be injustice, and the only justification of that injustice is that the parish would be deprived of spiritual ministration. It appears to me it is very much better that a parish should be deprived of spiritual ministration—andI am sure it is the feeling on both sides of the House—than that injustice should be done to a single individual. Unquestionably, by this Bill the Government are depriving per- 1146 fectly honest and honourable men of a considerable portion of the value of their property. Now in other such cases compensation has been given; compensation has been given to slave owners, when slavery was abolished, and to officers who purchased their commissions under the Enlistment Act, but here, in the case of clergymen of the Church of England, and of patrons, compensation is withheld. It is a gross scandal that this should happen in the most wealthy church in the world. We should have regard to justice, as well as to the rights of the parishioners. In point of fact, it is at least as important that every man should feel that his property is safe under the protection of the law as that he should be provided by the State with religious ministrations. I hope—I sincerely hope—that, not only on this side of the House, but on the opposite side, a large number of Members will be encouraged to protect people who are deserving of protection.
§ MR. S. EVANS (Glamorgan)
Sir, I hope that this Amendment will be unanimously passed. It endeavours to secure for clergymen the same rights which every subject of the Queen is entitled to. My honourable Friend has dealt with the matter from a point of view which I do not—from the point of view of the patron. I regard it from another standpoint. One man may try a clergyman, and pronounce him unfit to hold office on the ground of "pecuniary embarrassment." I was not here when the meaning of the words "pecuniary embarrassment" were being discussed, but if they mean insolvency, any clergyman may have a petition in bankruptcy presented against him. Again, a man may be found guilty of "grave misconduct," or of having "caused grave scandal"; but in a criminal offence charged against a man he has a right to be tried by a jury; why not also in the other case? Matters which affect the reputation of any individual must be tried by a jury; that is one of the glories 1147 of this country—that the reputations of all men are safe, because there must be the unanimous decision of 12 jurors before he can be found guilty. And yet by this Bill you are going to allow one man to say whether or not a clergyman who is presented by a patron to a living is guilty. Now, the Solicitor General has said that there is already a Bill dealing with the point—that a clergyman is tried first by a bishop, in presence of the archbishop, and then by a judge of the High Court. But it is possible that, between the first and second hearings, new accusations may be brought—there may be new accusations brought against the presentee before the second court which were not before the first court at all. So that the judge of the High Court has the right to at once decide whether he was guilty of the new charge or not. I hope I have sufficient respect for the judges of the High Court of Justice, but I am bound to say that, in many cases, if the opinion of one judge had been allowed to prevail—in cases where very serious charges were made—in many of those, persons were pronounced guilty who were afterwards found to be innocent. Trial by jury is one of the most cherished institutions of this country. But in this case you do not allow trial by jury, and the least thing you can do is to give some feeling of security to the man charged. Sir, I gladly support the Amendment of the honourable Member opposite. It might of course be that a person charged had such a confidence in the first tribunal before which he was being tried that he would consent to abide by its decision, but I am rather against the idea of giving a man charged the right to be heard only once. The Solicitor General went back to the rights of the parishioners, but this is not a case of the rights of the parishioners. I do not pretend to be very well versed in the ecclesiastical law, but I am under the impression that while a living is vacant, before a presentee has been instituted, that there are provisions in the 1148 law which enable the bishop to have spiritual work in the parish carried on. If so, the parishioners do not suffer. I regard it as a very serious matter for a clergyman to have a charge of misconduct brought against a clergyman, and I do hope that the arguments which I have ventured to bring before the House will have effect. I may say that in my opinion there are many Members, if they brought open minds to bear on the matter apart from the opinion of the Government, would support the Amendment. It seems to be thought you can never have any Amendment in Report stage—that the Government lose if they give in. This Amendment comes from their own side, and what harm can be done by the Government accepting it? I commend the Amendment to the serious attention of honourable Members.
§ VISCOUNT CRANBORNE (Rochester)
My right honourable Friend below me has spoken of the procedure under the Clergy Act, and it is said that the Consistory Court is not looked upon with proper respect. As a matter of fact, I submit that the court proposed in this Bill is a great deal stronger than the Consistory Court, and carries with it very much greater weight. The Consistory Court is presided over by a lawyer, the Chancellor, but his decision may be entirely over-ridden by the unanimous verdict of his assessors, so that it does not command the respect that the court proposed in this Bill will. Therefore, I say that the Government are fully justified in their action with regard to this court, which is a supreme court. About the rights of parishioners I do not deny that in the English Church, to keep a living vacant for perhaps more than a year, is a very great mischief. It is not as if the Queen in Privy Council decided the disputed question at once. I am sorry to say that the Privy Council sometimes takes a couple of years to decide a matter, and a curate in charge is not, of course, in any way to be compared with an incumbent who has supreme control over a parish. 1149 So I think we are bound in this matter to consider the rights of the parishioners. The Government have given authority to one of the Queen's judges; the Government have instituted a Court of, I think, very great weight, commanding very great confidence; and in the interests of the parishioners I would ask the House not to allow this procedure to be delayed by further appeal.
MR. GIBSON BOWLES (Lynn Regis)
I understood from the Solicitor General that the Government did not absolutely shut the door against considering this Amendment, and in spite of the appeal made by what I may call "the Power behind the Throne"—the noble Lord behind me—I hope the Government will see their way to accept the Amendment. Without such an Amendment I think the presentee would be tried by his own disciplinary superiors. I think it is an essential part of the administration of justice in this country that a man should not be tried by a judge alone, but should have some right of appeal. Sir, judges are not infallible. I saw a statement the other day in the Law Journal that a judge in the High Court had ten out of fifteen of his judgments reversed on appeal. Well, Sir, that is two-thirds. Now, consider what injustice would be perpetrated in the case of a presentee tried by this tribunal if its decisions were such that two-thirds of them were such that, if they were appealed against, they would be reversed. It is perfectly possible. A judge is not infallible. Of course a bishop or an archbishop may be infallible, but here it is the judge who decides both as to the law and to the facts. He is judge and jury in one, and it does seem to me to be eminently necessary that there should be a right of appeal. I come to the suggestions—they were scarcely arguments—that were made against this Amendment by the Solicitor General. First of all he said that an appeal would be expensive. Well, that is the business of those who are to conduct the appeals. If they choose to say that, rather than prose- 1150 cute an appeal at their own cost, they would submit to the judgment given by the court here set up, it is open to them to do so. If, on the other hand, they choose to prosecute an appeal at their own expense, I do not see that they are not entitled to that consideration. It has been urged that the rights of the parishioners might be interfered with if this appeal were allowed, because, pending the hearing of the appeal, which would take a considerable time, they would be left without any presentee at all, or only a curate in charge. But I submit that the rights of parishioners are involved in this appeal, because the rights of the parishioners extend to having the right man presented to them. The whole question may have been decided by the court—perhaps imperfectly, perhaps upon inadequate information, perhaps before a judge who has taken strong views before the case came before him. Therefore, I say the question is one which immediately concerns the parishioners, and it is far more important to the parishioners, and far more calculated to safeguard their rights, that the Bill should make it possible to secure that right be done than that a certain delay should be avoided. The rights of parishioners are much more protected by giving a right of appeal against the decision of a single judge, as in the case here, than by no right of appeal at all. Then I come to the argument which the noble Lord has set up—that there would be particularly long delay in getting an appeal to the Privy Council. Of course, we are all acquainted with the law's delays, but if you want justice done you must either submit to this delay or increase the force of your tribunals, including the Privy Council. There is the celebrated case of the Attorney General v. Beech, that has been going on for three years now, and has not yet been decided. It is an important matter to the man in Holy Orders, who has been refused presentation on the ground of some misconduct or other, which he denies, and says he could disprove before the court. I think there is a very strong argument indeed 1151 for giving this appeal, and I think no answer whatever has been given in the suggestions—not arguments—made by the Solicitor General, both of which I think I have disposed of. If you do not give some such right of appeal as this, you do, to this extent, put the clergyman in Holy Orders under the same sort of conditions which you enforce on the soldier under the Mutiny Act—you deprive him of his civil rights and leave him without remedy for a possibly very grave injustice inflicted upon him by a jingle judge.
* MR. CARVELL WILLIAMS
It seems to me that, so long as appeal is allowed under the Clergy Discipline Act, the case in favour of this Amendment is absolutely unanswerable. It is true that the cases differ in some respects, but in one respect they are exactly parallel. The resemblance is this: that under the Clergy Discipline Act the clergyman can possibly be turned out of his benefice, and under this Bill he may be kept out of it. To the patron that will be a matter of absolute unimportance, because he can present some other clergyman; but it would matter everything to the discredited clergyman, possibly ruin for life. I support this Amendment in the interests of the people, and I object to the Bill as it stands, because it is in this respect revolutionary. We have been told that some of the Amendments moved have been revolutionary. I regard this as a revolutionary Amendment, because it takes away an ancient constitutional right. By a strange irony, it is the law officers of the Crown who propose to diminish the power of the Crown. I do not think that at this time that should be done. It used to be said in old times that the power of the Crown had increased, was increasing, and ought to be diminished. That is not the feeling of to-day. I would rather diminish the power of the episcopate and the clergy, and increase the power of the Crown, because that is now another name for the people.
§ MR. GEDGE
The honourable Member has not told us what ancient constitutional right is taken away, but I suppose he means the right 1152 to appeal to the Queen's Court. That does not prevent Parliament setting up a new court. The court to be established by this Bill will be a court of the Queen, and will administer justice in the name of the Queen. Some clergyman in holy orders has been found by the bishop—for special reasons—to be unfit to take a particular living. There has been a hearing by the court set up by this Bill, the judge has found the facts proved, and the archbishop says that he is satisfied that the clergyman ought not to be put in that benefice. Well, now, if you then constitute an appeal, what will be the result? I admit, for the sake of argument, it is possible that now and then, possibly once in half a dozen years, the archbishop and judge may come to a wrong decision, and of course one is very sorry if a wrong decision should be given. But it is quite possible if there is a court of appeal that the court of appeal should come to a wrong decision. On the other hand, if, instead of the speedy and inexpensive tribunal which this Bill constitutes, you appeal to such a court as the Privy Council—which involves very considerable expense in the way of printing, because, being a court of supreme appeal, it requires to have on record everything upon which it bases its judgment, for reference in future years—that court very rarely—I might almost say never—and only under very stringent conditions, allows fresh evidence to be given in it, and, therefore, one argument in favour of allowing the appeal falls to the ground. The result of allowing it in every case would be that the bishops themselves would not be so strict in the administration of their dioceses by reason of the heavy costs for which they might be let in by some obstinate patron or presentee if they decided against a particular man. It is said there may be hardship against an individual because a slur is cast on his character. There may be injustice, it is true, but it is one of those things which cannot be prevented, and it occurs in every criminal case. No criminal under the English common law, which has existed for centuries, has any right of appeal; he can only occasionally appeal to one superior court by leave of the judge, and, as a general rule, men are 1153 hanged, or, it may be, transported for life without any chance of appeal at all. And yet we are told that the hardship upon a man who by some mistake is found by these competent authorities not fit to hold a living is so great that you ought to introduce power of appeal into this Bill. To my mind it will so utterly upset the Bill if this Amendment is accepted that I hope the Amendment will be rejected.
§ MR. MOSS
I hope the House will accept the Amendment. The only real objection that has been urged against it is this: that it would be inconvenient for the parishioners that a clergyman after he has been presented and refused institution should be allowed to appeal to the Privy Council, because of the time that appeal would take up. Surely against such inconveniences there is the character of the clergyman at stake. Now I do not know whether the House realises that when a trial takes place before the Archbishop and the High Court Judge the whole of the evidence is taken in public. The witnesses will be examined and cross-examined, and the whole of the man's life, as regards this particular objection to it, will be thoroughly sifted. Now, if the facts gone into there are made so thoroughly public, you may rely upon it that the clergyman will not appeal unless he himself is thoroughly convinced that the decision against him is wrong. We are told there is no appeal in criminal cases. But the honourable Gentleman opposite must be aware that in every criminal case we have an investigation first of all before a magistrate, and after
§ that we have an investigation before a grand jury, and after that we have still a trial by 12 common jurymen, and under those circumstances the chances of mistake—the chances of a wrong conviction—are infinitely smaller than they would be in a case like this, where a man is to be tried before the Archbishop of the province. What are the grounds upon which a bishop may refuse to institute a clergyman? They are such as a clergyman having been guilty of leading an evil life, of having committed a grave public scandal, and other matters mentioned in the section dealing with the point; and you must remember that a clergyman who by the Archbishop and the High Court Judge is found guilty of such offences of that nature is practically ruined for the rest of his life. The ordinary man who is convicted of a criminal offence, when he comes out of prison may have some chance of a future, but the clergyman who has been refused a living on the ground of unfitness for it—on the ground that he has been guilty of some grave public scandal, is a man who has the whole of his future blasted in the eyes of the public. I hope, therefore, this House will give the clergyman fair play, and the right of appeal when he has had his character taken away, as it would be taken away, by a trial of this kind.
That the words proposed to be left out stand part of the Bill.
§ The House divided:—Ayes 266; Noes 110.—(Division List No. 162.)1157
|Acland-Hood, Capt. Sir A. F.||Bartley, George C. T.||Brodrick, Rt. Hon. St. John|
|Aird, John||Barton, Dunbar Plunket||Brookfield, A. Montagu|
|Allsopp, Hon. George||Beach, Rt. Hn. Sir M. H. (Brist'l)||Brown, Alexander H.|
|Arrol, Sir William||Beach, W. W. B. (Hants)||Burdett-Coutts, W.|
|Ashmead-Bartlett, Sir Ellis||Beckett, Ernest William||Butcher, J. George|
|Atkinson, Rt. Hon. John||Beresford, Lord Charles||Campbell-Bannerman, Sir H.|
|Bagot, Capt. J. FitzRoy||Bethell, Commander||Cavendish, R. F. (N. Lancs)|
|Bailey, James (Walworth)||Bhownaggree, Sir M. M.||Cavendish, V.C.W. (Derbysh.)|
|Baillie, J. E. B. (Inverness)||Biddulph, Michael||Cayzer, Sir Chas. William|
|Baird, John George Alexander||Bigwood, James||Cecil, Lord Hugh|
|Balcarres, Lord||Bill, Charles||Chamberlain, Rt. Hn. J. (Birm.)|
|Baldwin, Alfred||Birrell, Augustine||Chamberlain, J. A. (Worc'r)|
|Balfour, Rt. Hon. A. J. (Manc'r)||Blundell, Colonel Henry||Chaplin, Rt. Hon. Henry|
|Banbury, Frederick George||Bonsor, Henry C. O.||Chelsea, Viscount|
|Banes, Major George Edward||Boulnois, Edmund||Cochrane, Hon. T. H. A. E.|
|Barry, Rt Hn A H Smith-(Hunts)||Brassey, Albert||Coddington, Sir William|
|Coghill, Douglas Harry||Holland, Hon. Lionel R.||Phillpotts, Captain Arthur|
|Collings, Et. Hon. Jesse||Hornby, William Henry||Powell, Sir Francis Sharp|
|Colomb, Sir J. C. Ready||Howard, Joseph||Pretyman, Ernest George|
|Colston, C. E. H. Athole||Howell, William Tudor||Priestley, Sir W. O. (Edin.)|
|Compton, Lord Alwyne||Hozier, Hon. J. H. Cecil||Pryce-Jones, Edward|
|Corbett, A. C. (Glasgow)||Hubbard, Hon. Evelyn||Purvis, Robert|
|Cotton-Jodrell, Col. E. T. D.||Hudson, George Bickersteth||Pym, C. Guy|
|Cox, Robert||Hughes, Colonel Edwin||Quilter, Sir Cuthbert|
|Cranborne, Viscount||Hutchinson, Capt. G. W. Grice-||Rankin, James|
|Cripps, Charles Alfred||Jackson, Rt. Hon. W. Lawies||Reid, Sir Robert T.|
|Crombie, John William||Jenkins, Sir John Jones||Renshaw, Charles Bine|
|Curran, Thomas (Sligo, S.)||Jolliffe, Hon. H. George||Richards, Henry Charles|
|Curzon, Viscount (Bucks)||Kay-Shuttle worth, Rt Hn Sir U||Richardson, Sir T. (Hartlep'l)|
|Dalbiac, Col. Philip Hugh||Kennaway, Rt. Hn. Sir J. H.||Ridley, Rt. Hon. Sir M. W.|
|Dalrymple, Sir Charles||Kenyon, James||Ritchie, Rt. Hon. C. T.|
|Daly, James||Kenyon-Slaney, Col. William||Rothschild, Baron F. Jas. de|
|Dane, Richard M.||Kimber, Henry||Royds, Clement Molyneux|
|Davenport, W. Bromley-||King, Sir Henry Seymour||Russell, Gen. F. S. (Cheltenham)|
|Denny, Colonel||Knox, Edmund F. Vesey||Russell, T. W. (Tyrone)|
|Dickson-Poynder, Sir John P.||Labouchere, Henry||Samuel, Harry S. (Limehouse)|
|Donelan, Captain A.||Lafone, Alfred||Saunderson, Col. Edw. James|
|Doogan, P. C.||Laurie, Lieut.-General||Savory, Sir Joseph|
|Dorington, Sir John Edward||Lawrence Sir E Durning-(Corn.)||Seely, Charles Hilton|
|Doughty, George||Lawrence, W. F. (Liverp'l)||Seton-Karr, Henry|
|Douglas, Rt. Hon. A. Akers-||Lawson, John Grant (Yorks)||Sharpe, Wm. Edward T.|
|Douglas-Pennant, Hon. E. S.||Lecky, Rt. Hon. W. E. H.||Sidebotham, J. W. (Cheshire)|
|Doxford, William Theodore||Legh, Hon. Thos. W. (Lancs)||Simeon, Sir Barrington|
|Drage, Geoffrey||Leigh-Bennett, Henry Currie||Sinclair, Capt. J. (Forfarsh.)|
|Duncombe, Hon. Hubert V.||Leighton, Stanley||Smith, James P. (Lanarksh.)|
|Dyke, Rt. Hon. Sir W. Hart||Llewellyn, E. H. (Somerset)||Spencer, Ernest|
|Egerton, Hon. A. de Tatton||Llewelyn, Sir Dillwyn-(Sw'ns'a)||Stanley, Lord (Lancs)|
|Fardell, Sir T. George||Lockwood, Lieut.-Col. A. R.||Stanley, E. J. (Somerset)|
|Fellowes, Hon. Ailwyn Edw.||Loder, Gerald Walter Erskine||Stanley, Henry M. (Lambeth)|
|Field, Admiral (Eastbourne)||Long, Col. C. W. (Evesham)||Stephens, Henry Charles|
|Finch, George H.||Lopes, Henry Yarde Buller||Stevenson, Francis S.|
|Finlay, Sir Robert Bannatyne||Lorne, Marquess of||Stirling-Maxwell, Sir John M.|
|Firbank, Joseph Thomas||Lowe, Francis William||Stone, Sir Benjamin|
|Fisher, William Haves||Lowles, John||Strauss, Arthur|
|FitzGerald, Sir R. Penrose-||Loyd, Archie Kirkman||Strutt, Hon. Chas. Hedley|
|Fitzmaurice, Lord Edmond||Lubbock, Rt. Hon. Sir John||Sutherland, Sir Thomas|
|FitzWygram, General Sir F.||Lucas-Shadwell, William||Thorburn, Walter|
|Flannery, Fortescue||Lyttelton, Hon. Alfred||Tomlinson, W. E. Murray|
|Fletcher, Sir Henry||Macaleese, Daniel||Tully, Jasper|
|Flower, Ernest||Macartney, W. G. Ellison||Usborne, Thomas|
|Forwood, Rt. Hon. Sir A. B.||Maclure, Sir John William||Vincent, Col. Sir C. E. H.|
|Foster, Colonel (Lancaster)||McCalmont, Mj-Gn (Antrim,N)||Warde, Lt.-Col. C. E. (Kent)|
|Fry, Lewis||M'Hugh, E. (Armagh, S.)||Warkworth, Lord|
|Galloway, William Johnson||McKillop, James||Warr, Augustus Frederick|
|Garfit, William||Martin, Richard Biddulph||Webster, R. G. (St. Pancras)|
|Gedge, Sydney||Mellor, Colonel (Lancashire)||Webster, Sir R. E. (I. of W.)|
|Gibbons, J. Lloyd||Melville, Beresford Valentine||Welby, Lieut.-Col. A. C. E.|
|Gibbs, Hn. A. G. H. (C. of Lond.)||Mevsey-Thompson. Sir H. M||Wentworth, Bruce C. Vernon-|
|Gibbs, Hon. V. (St. Albans)||Milbank, Sir P. C. J.||Whiteley, Geo. (Stockport)|
|Gilliat, John Saunders||Mildmay, Francis Bingham||Whiteley, H. (Ashton-under-L.)|
|Gordon, Hon. John Edward||Milner, Sir Frederick George||Whitmore, Charles Algernon|
|Goschen, Rt Hn. G. J. (St.Geo.'s)||Milward, Colonel Victor||Williams J. Powell- (Birm.)|
|Goschen, George J. (Sussex)||Monckton, Edward Philip||Willoughby de Eresby, Lord|
|Graham, Henry Robert||More, Robert Jasner||Willox, Sir John Archibald|
|Gray, Ernest (West Ham)||Morgan, Hn. F. (Monm'thsh.)||Wilson, John (Falkirk)|
|Green, W. D. (Wednesbury)||Morrell, George Herbert||Wilson, J. W. (Worc, N.)|
|Greene, W. Raymond- (Cambs)||Morton, A. H. A. (Deptford)||Wilson-Todd, W. H. (Yorks)|
|Gull, Sir Cameron||Murdoch, Charles Townshend||Wodehouse, Edm. R. (Bath)|
|Gunter, Colonel||Murray, Rt. Hn. A. G. (Bute)||Wortley, Rt. Hn. C. B. Stuart-|
|Hall, Sir Charles||Murray, Chas. J. (Coventry)||Wyndham, George|
|Halsey, Thomas Frederick||Murray, Col. W. (Bath)||Wyndham-Quin, Major W. H.|
|Hamilton, Rt. Hon. Lord G.||Myers, William Henry||Wyvill, Marmaduke D'Arcy|
|Hanbury, Rt. Hon. R. W.||Newark, Viscount||Yerburgh, Robert Armstrong|
|Hare, Thomas Leigh||Newdigate, F. Alexander||Young, Comm. (Berks, E.)|
|Healy, Maurice (Cork)||Nicol, Donald Ninian||Young, Samuel (Cavan, E.)|
|Hill, Rt. Hn. Lord A. (Down)||Northcote, Hon. Sir H. S.||Younger, William|
|Hill, Sir E. Stock (Bristol)||O'Connor, Arthur (Donegal)||TELLERS FOR THE AYES—Sir William Walrond and Mr. Anstruther.|
|Hoare, E. B. (Hampstead)||Pease, Alfred E. (Cleveland)|
|Hoare, Samuel (Norwich)||Penn, John|
|Abraham, Wm. (Rhondda)||Haldane, Richard Burdon||Pease, J. A. (Northumberland)|
|Ambrose, Wm. (Middlesex)||Harcourt, Rt. Hon. Sir Wm.||Perks, Robert William|
|Asquith, Rt. Hon. H. H.||Hayne, Rt. Hon. Chas. Seale-||Philipps, John Wynford|
|Atherley-Jones, L.||Hedderwick, Thos. Chas. H.||Pickersgill, Edward Hare|
|Austin, Sir John (Yorkshire)||Holburn, J. G.||Pirie, Duncan V.|
|Baker, Sir John||Holden, Sir Angus||Price, Robert John|
|Barlow, John Emmott||Horniman, Frederick John||Randell, David|
|Bayley, Thos. (Derbyshire)||Humphreys-Owen, Arthur C.||Rickett, J. Compton|
|Beaumont, Wentworth C. B.||Jacoby, James Alfred||Samuel, J. (Stockton-on-Tees)|
|Billson, Alfred||Johnston, William (Belfast)||Schwann, Charles E.|
|Bolton, Thomas Dolling||Johnstone, John H. (Sussex)||Shaw, Charles E. (Stafford)|
|Bowles, T. G. (King's Lynn)||Jones, David B. (Swansea)||Shaw, Thomas (Hawick B.)|
|Brunner, Sir John Tomlinson||Jones, Wm. (Carnarvonshire)||Sidebottom, Wm. (Derbysh.)|
|Bryce, Rt. Hon. James||Kearley, Hudson E.||Soames, Arthur Wellesley|
|Buchanan, Thomas Ryburn||Kinloch, Sir J. G. Smyth||Steadman, William Charles|
|Burt, Thomas||Kitson, Sir James||Strachey, Edward|
|Caldwell, James||Lambert, George||Sullivan, Donal (Westmeath)|
|Cawley, Frederick||Lawson, Sir W. (Cumberland)||Tennant, Harold John|
|Chaloner, Capt. R. G. W.||Leese, Sir J. F. (Accrington)||Thomas, A. (Carmarthen, E.)|
|Channing, Francis Allston||Leng, Sir John||Thomas, A. (Glamorgan, E.)|
|Clark, Dr. G. B. (Caithness-sh.)||Lewis, John Herbert||Thomas, D. A. (Merthyr)|
|Clough, Walter Owen||Lough, Thomas||Ure, Alexander|
|Colville, John||Luttrell, Hugh Fownes||Wallace, Robt. (Edinburgh)|
|Courtney, Rt. Hon. L. H.||McArthur, Wm. (Cornwall)||Wallace, Robt. (Perth)|
|Cozens-Hardy, Herbt. Hardy||McKenna, Reginald||Walton, J. L. (Leeds, S.)|
|Dalziel, James Henry||McLaren, Charles Benjamin||Wayman, Thomas|
|Davies,M. Vaughan- (Cardigan)||Maddison, Fred.||Wedderburn, Sir William|
|Duckworth, James||Mappin, Sir Frederick T.||Williams, John C. (Notts)|
|Dunn, Sir William||Mellor, Rt. Hn. J. W. (Yorks)||Wilson, Chas. Henry (Hull)|
|Evans, S. T. (Glamorgan)||Mendl, Sigismund Ferdinand||Wilson, Fredk. W. (Norfolk)|
|Evans, Sir F. H. (S'th'mpt'n)||Morgan, J. L. (Carmarthen)||Wilson, John (Govan)|
|Fenwick, Charles||Morley, Chas. (Breconshire)||Woodhouse, Sir J T (Hudd'rsf'ld)|
|Foster, Sir W. (Derby Co.)||Moss, Samuel||Woods, Samuel|
|Fowler, Rt. Hn. Sir H. (Wolt'n)||Norton, Capt. Cecil William||Yoxall, James Henry|
|Goddard, Daniel Ford||Nussey, Thomas Willans|
|Gold, Charles||Owen, Thomas||TELLERS FOR THE NOES—Mr. Harry Foster and Colonel Sandys.|
|Gourley, Sir Edw. Temperley||Palmer, Sir C. M. (Durham)|
|Greene, H. D. (Shrewsbury)||Paulton, James Mellor|
§ * MR. H. S. FOSTER
Sir, I beg to move the second Amendment standing in my name—Page 3, line 31, insert 'and the decision as to costs shall be in the discretion of the judge.'