Lords Sitting of 21 March 1872

MINUTES.
Sat First in Parliament—The Earl of Lonsdale, after the death of his uncle.
PUBLIC BILLS—First Reading—Church Seats* (59); Consolidated Fund (£5,411,099 3s. 3d.)*.
Committee—Acts of Uniformity Amendment, now Prayer Book (Shortened Services) * (43–60); Deans and Canons Resignation * (48).
Committee—Report—Life Assurance Companies Acts Amendment * (40).
Report—Reformatory and Industrial Schools * (25).
Third Reading—Ecclesiastical Courts and Registries (15), and passed.

APPELLATE JURISDICTION.—SUPREME COURT OF APPEAL.
THE LORD CHANCELLORsaid, that on a previous night he had stated in answer to a Question of a noble and learned Lord (Lord Westbury) that he would to-night make a statement as to the course he intended to pursue with regard to the Appellate Jurisdiction. He now gave Notice that he would on Thursday, the 11th April, move the following Resolution—
"That it is expedient that one Imperial Supreme Court of Appeal be established which shall sit continuously for the hearing of all matters now heard by way of Appeal before this House or before the Judicial Committee of the Privy Council; and that the Appellate Jurisdiction of this House be transferred to such Supreme Court of Appeal."
He did not mean to enter into discussion of the subject on the present occasion. He thought it desirable that their Lordships should have a further opportunity of discussing the subject or Resolution before they came to consider the legislation he should propose. He could not

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see his way to the establishment of an effective Court of Appeal without first obtaining the concurrence of their Lordships in the Resolution. He did not propose it as a mere abstract Resolution—he had his Bill ready, and would on the evening he had named enter fully into the subject. He had now to refer to a former statement of his to which his noble and learned Friend (Lord Cairns), who was not now present, called attention on Tuesday evening. When on a former occasion he stated that on coming into office he found the appeals to that House two Sessions and a half in arrear, he certainly was not for a moment thinking of throwing blame on his noble and learned Friend, who had preceded him in the office of Lord Chancellor; nor was he claiming any merit for himself, but only explaining that notwithstanding the desirability of establishing a more complete Court of Appeal than now existed there was not in that House such an arrear of appeals as might have been supposed. He wished to show that those arrears had been very much cut down. In 1868–9 the case of Miss Sheddon, which lasted 28 days, interfered very much with the hearing of other appeals; there was also the Wicklow Peerage case, which occupied 10 days in that Session, and stood over as a remanet to the Session of 1869–70; so that instead of there being 38 appeals, which had been the number waiting to be heard in 1868–9, there were 63 waiting to be heard in 1869–70. In addition, there was the Wicklow Peerage case, which, as a remanet, occupied eight days. The usual number of appeals, so far as he could make out, was about 31 or 32 a-year. It would not be easy to ascertain exactly what cases were remanets of the previous Session and what were not. From a note appended to a Return he had had prepared, it appeared that some of those to which he referred were remanets from 1864 or 1865. In consequence of the extraordinary arrear of 63 cases having come under his notice in 1869–70, he made a statement that the appeals were two Sessions and a half in arrear—he ought rather to have said two Sessions and a quarter; at all events, the unusual number of 49 appeals were got through in the Session of 1870. This was not due to any exertion on his part, but to the assistance given by the noble and learned Lords who sat with him
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when those appeals were being heard. At the beginning of this Session there were four old appeals standing over, and only 18 arrears from last Session, which he might call somewhat about half a-year's arrears. Since the beginning of the Session they had been so reduced that, including the old ones, only nine or ten now stood over. This would give himself and the Law Lords an opportunity—and it was not so common a one—of proceeding with new appeals in the Session for which they had been presented.

ECCLESIASTICAL COURTS AND REGISTRIES BILL—(Nos. 16, 28, 50.)
(The Earl of Shaftesbury.)
ECCLESIASTICAL COURTS AND REGISTRIES BILL—(Nos. 16, 28, 50.)

  THIRD READING.
  Bill read 3a (according to Order).
  THE BISHOP OF LONDON, whose introductory observations were inaudible, proposed to insert the following clause after Clause 32:—
  "Suits against clerks for offences against the laws ecclesiastical shall be commenced either by the bishop of his own motion or by three members of the Church being inhabitant householders of the parish or ecclesiastical district in which the accused clerk is beneficed, licensed, or resident; Provided that in the case of a charge of teaching or maintaining unsound doctrine a written statement of the particulars on which such charge is founded shall in the first place be laid before the bishop, who may, if he shall think that such statement does not contain sufficient primâ facie ground for proceeding, refuse his assent to the institution of the suit, subject however to an appeal against such refusal to the archbishop; and the appellant may appear before the archbishop, either in person or by counsel on his behalf in support of the appeal."
  THE MARQUESS OF SALISBURYsaid, that by straining the Rules of the House the right rev. Prelate had succeeded in bringing up, on the Motion that the Bill do pass, a clause to resuscitate, as it were, a clause that their Lordships had already rejected. It was only a few weeks ago that their Lordships by a considerable majority had thrown out a Bill containing the clause now proposed, with this difference only, that "parish or ecclesiastical district" had been substituted for "diocese." The distinction between members of a diocese and members of a parish might be a distinction in principle, but it would not be a distinction in practice. We had an ancient code of ecclesiastical law, much of which was obsolete, and the part which remained in force was extremely compli-

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  cated and ambiguous, being the result of bitter conflicts in past times, and therefore stamped with that ambiguity and vagueness of meaning which resulted from all compromises. The ecclesiastical law being in this doubtful state, there was a large and powerful association, which boasted of having funds to the amount of £30,000, and which seemed to hope to establish its own opinions by dint of persecution. What opportunities would not this clause give to such an association? Men of various shades of religious opinions, from those held by Baptists and Independents to those held by persons who went almost to Roman Catholicism, were able to quote the canons and rubrics in support of the views for which they contended; but under this clause power would be given to any three persons in the parish to bring their clergyman before an ecclesiastical tribunal, if they could find against him even plausible ground for accusing him of offending against these ambiguous and complicated rubrics. In fact, changing the power from three inhabitants of a diocese to three inhabitants of a parish afforded no security at all. The association to which he had alluded, anxious for litigation and with almost unlimited means, could purchase three members of a parish as well as three members of a diocese, and thus it would be free to light the flame of religious discord throughout the country. Moreover, this was not a matter which would be confined to one side only; the present was a time of intense religious agitation, and if the work of persecution were commenced reprisals would be sure to follow. He was surprised this had not occurred to the right rev. Prelate before he brought forward such a clause. Again, he must remark that the clause was very partial and one-sided as respected the relations between the Bishops and the clergy. The clause simply provided for facilitating proceedings by the Bishops against the clergy, but did not contain a word facilitating proceedings by the clergy against the Bishops. If the right rev. Prelate would include Bishops within the clause, he would venture to say his right rev. Friend would pass the remainder of his life in defending himself against ecclesiastical suits. No doubt, upon constitutional principle, the Courts should be open to all; but there were such things as vexatious suits,
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  and they ought not to pass any law which would give rise to such suits, especially at a time when there was such a bitter spirit of controversy abroad. He should doubt the prudence of giving these facilities in this particular way, and if the clause had been originally included in the Bill he would have urged the danger of it; but having regard to the way in which it was proposed to get it in, he submitted that it was quite impossible for their Lordships to give it their sanction. The Notice given by the right rev. Prelate had only been two days in the hands of such of their Lordships as were in London; but even the Bishop of Peterborough, who had moved the rejection of the other Bill, did not appear to have received sufficient notice to enable him to appear in his place and oppose this clause. The clause did not affect the ecclesiastical dignitaries sitting in that House—it was a clause of a penal character against the clergy only. Considering how ambiguous the rubrics were, it might, without exaggeration, be said that if the clause were incorporated in the Bill, the honour, fortune, peace, and comfort of every clergyman in this country would be placed at the mercy of all who were disposed to undertake religious persecution. These gentlemen, moreover, had had no chance of considering the matter—they knew that the other Bill had been rejected, and no doubt they believed that their interests were safe in the hands of their Lord-ships. Would it be right, then, for their Lordships' House to adopt a clause pointing at the clergy, but exempting the Bishops? Any Bishop, who felt so disposed, could institute a prosecution against any clergyman in his diocese if he thought there was ground for it; but he need not ask for a clause like this to urge on Bishops who might not be equally pugnacious. He was glad to learn that the clause would not receive the support of his noble Friend (the Earl of Shaftesbury) who had introduced the Bill, and who was always a candid and fair opponent.
  LORD EBURYpointed out that in 1860 he moved for a Royal Commission to, among other things, revise the canons and rubrics, many of which were ambiguous, and some absurd and incomprehensible. The prosecution of clergymen generally arose out of some ambiguity of the Church rules; and the

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  way to remedy the evil was to revise the rules and remove the ambiguity. Whether the clause found its proper place in the Bill or not, some such provision would only be in accordance with a recommendation of the Ritual Commission.
  THE EARL OF SHAFTESBURYsaid, that it was very curious that a clause like the one now under consideration should be proposed by a right rev. Prelate who had been instrumental in the rejection of the Bill a few weeks ago, which was precisely the same as the clause at that moment before their Lordships. The Bishop of Peterborough, in moving the rejection of that Bill, told their Lordships that it would enable the three greatest fools in the diocese to institute prosecutions against any clergyman in the diocese; and, after some unsavoury expressions, he added that persons of bad character might do the same thing. By the aid of the right rev. Prelate (the Bishop of London) and the majority of the House, that most humorous speaker (the Bishop of Peterborough) succeeded in throwing out the Bill; but now a proposition came from the right rev. Bench to introduce into the Bill before the House exactly the same proposition as had caused the rejection of the other Bill. Now, he must express his opinion that procedure should be kept separate from the question of the constitution of the Court, and for this reason he had introduced a distinct Procedure Bill and a Registry Bill; and for the same reason he hoped the clause proposed by the right rev. Prelate would not be engrafted on this Bill. He thought that if the proposition were admitted not only would a debate be raised in their Lordships' House, but the clause, if carried, would endanger the Bill in the House of Commons. He must therefore oppose the clause.
  THE BISHOP OF GLOUCESTER AND BRISTOLhoped that the House would pause before they rejected the clause, because if they admitted it into the Bill it would be perfectly possible so to amend it as to make it consistent with the recommendations of the clergy themselves, according to the Report made of what passed in Convocation. At present he could move no such Amendment, because the words of the clause were not yet accepted by their Lordships; but he should presently propose an Amendment
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  giving the Bishop a restraining power in reference to litigation. He trusted that the House would accept the clause with a view to such an Amendment of it.
  EARL STANHOPE, as a member of the last Ritual Commission, wished to enter his protest against the statement of the noble Lord opposite (Lord Ebury) that the clause now moved was in accordance with the recommendation of the Commission. What the Commission recommended was, that there should be power to go to the Bishop in camerâ, not in curiâ. That made all the difference.
  THE ARCHBISHOP OF CANTERBURYthought the essence of the whole matter was, that the charge was to be brought forward by three parishioners, and not whether the Commissioners had recommended that in the first instance it should be brought before the Bishop in camerâ. He had not voted for the rejection of the other Bill, because throughout he had adhered to the recommendations of the Select Committee. He hoped the question now under consideration would be settled with the consent of the whole House. If not, questions would be raised as to whether proceedings ought to be taken under the old Church Discipline Act or under the new, and it was highly probable that there would be two or three lawsuits before that question was decided. If his right rev. Brother (the Bishop of London) adopted the suggestion of his right rev. Brother (the Bishop of Gloucester and Bristol), and made the consent of the Bishop necessary in every case, he would not oppose the clause.
  VISCOUNT HALIFAXreminded their Lordships that the Select Committee had carefully considered this matter before adopting the Bill which had been rejected.
  EARL BEAUCHAMPfeared that the clause would leave every clergyman at the mercy of three parishioners, whether there was any restraining power in the Bishop or not. Any clergyman who happened to have a quarrel with three of his parishioners would be liable to have all sorts of charges of the most serious and the most vague kind—not merely of offences against ritual, but against morals—brought against him. For his part, he could not sanction a clause like this.
  THE BISHOP OF ELYsaid, he had so great an objection to the clause as it

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  stood that nothing would induce him to vote for it. The simple bringing of a charge against a clergyman in a public Court was in itself a very serious thing; even if he were acquitted, something always adhered to him. If the clause could be so amended as to require the sanction of the Bishop in every case, he would be perfectly willing to vote for it. To submit a charge against a clergyman to the Bishop in camerâ was a very different thing from stating it in Court, even in the case of an acquittal. If the clause were adopted as it stood, there would be a flood of ecclesiastical litigation let loose over the whole country. Some persons were anxious for that. A layman in his own diocese had written to him anticipating that there would be lawsuits throughout the kingdom, till nothing was left but fragments of what had once been the Church of England. He was sure it was not the intention of their Lordships to give rise to such a state of things as that.
  EARL GREYsaid, that if the right rev. Prelate (the Bishop of London) had thought this clause necessary, he ought to have moved that the Bill be re-committed, and then the clause could have been fully considered. He remembered that when he was in the House of Commons, clauses brought up on the third reading of a Bill had to be put through all the stages; but even with that stringent rule the practice of introducing clauses on third reading had been found so dangerous that the House of Commons had abandonded it. He thought everyone who had listened to the discussion on this clause must have arrived at the conclusion that the House had acted very hastily in rejecting the other Bill; but he could not vote for such a clause as that proposed by the right rev. Prelate when brought forward at the final stage of the Bill.
  THE DUKE OF RICHMONDsaid, he would not go into the question of the merits or demerits of the clause, but would confine himself to the dangerous precedent which their Lordships would be laying down, if on the Question that the Bill do pass they re-introduced—for practically they would be doing so—a Bill rejected only a few weeks ago. He protested against such a proceeding. There must be many Members of the House in ignorance that there was any intention to propose such a clause. He
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  hoped, therefore, their Lordships would not accept it.
  THE ARCHBISHOP OF CANTERBURYthought the whole confusion in this matter had arisen from what took place at the very late hour when the Report was brought up. On the Report, Clause 117, which proposed to repeal the Church Discipline Act, except part of Clause 16, was struck out, without any Notice at all, and a few minutes after he had left the House. He never was more astonished in his life when he learnt the fact from his newspaper next morning. It seemed to him that the House was in a state of confusion with regard to this matter. They had adopted a new Clergy Discipline Act, and had not repealed the old Clergy Discipline Act. He did not think the proceedings had been so orderly in bringing up the Report as to make them hesitate about adopting this clause.
  THE BISHOP OF LONDONsaid, he would modify the clause in accordance with what seemed to be the opinion of their Lordships, by inserting words providing that the particulars of any charge should be first laid before the Bishop, who, if he deemed the statement insufficient, might refuse his assent to the institution of the suit; an appeal against his refusal lying to the Archbishop.
  Clause amended accordingly.
  On Question, Whether the clause, as amended, be added to the Bill?
  Resolved in the Negative.
  LORD ROMILLYproposed a new clause (Bishops' registers older than 50 years to be transferred to the custody of the Master of the Rolls). The clause provided that all deeds, wills, processes, acts, proceedings, and other documents of a similiar nature hitherto kept in the various dioceses, which shall be more than 50 years old, shall, after the 1st of January, 1873, be transferred into the custody of the Master of the Rolls, and placed in the Public Record Office for public use. The clause excepted all documents belonging to the See of Canterbury; and all such documents belonging to any diocese the Bishop whereof shall from time to time certify that such documents are deposited in a fit, proper, and safe repository, and have been duly sorted, classified, and indexed.
  THE DUKE OF RICHMONDsaid, he had no objection to the proposal of the clause, but he thought its phraseology might in some respects be amended. He thought it unnecessary to require the Bishops to prepare an index of such documents, which would involve much expense in the employment of antiquaries. The principal object was that the documents should be kept in a safe place under proper custody. Many of the documents were of no interest, and it was sufficient to secure their good preservation, with easy access to them.
  THE MARQUESS OF SALISBURYsaid, that if he might judge from an unsuccessful attempt of his own to decipher some documents of a similar character, he feared that the preparation of an index would require the services of experts, and would be very expensive. The condition would be an admirable one, if there were any funds to bear the expense; but as things stood, the noble and learned Lord should be satisfied with the documents being properly kept.
  LORD ROMILLYsaid, his object was that the records should be preserved and made accessible to the public, and that an index was essential to their preservation and accessibility. Bishops would be at liberty to send them to the Record Office, where no expense would be incurred, and easy access would be ensured.
  EARL BEAUCHAMPcontended that the House had no right to confiscate documents which were the property of the respective Sees. He trusted that the House would not extend the principle of confiscation, and that they would not take these documents away from those who had the lawful custody of them, and who were willing to take means to render them safe and accessible.
  LORD PENZANCEsaid, that the clause in question proposed to transfer these documents to the guardianship of the Master of the Bolls, in the event of their not being indexed by the Bishops. The Bishops were, at their own election, therefore, either to have the documents indexed, or to send them to the Master of the Rolls.
  LORD REDESDALEasked the noble and learned Lord (Lord Romilly), whether he could undertake to provide a sufficient number of persons to index these documents when he received them; and whether, when they had been indexed,
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  he would allow the papers to be returned to the diocese to which they belonged?
  LORD ROMILLYsaid, that ample means existed for classifying and indexing all the documents that might be received from the ecclesiastical registries, within a limited, though perhaps not a very short time. He might point out that a new building had recently been added to the Record Office, which might be appropriated for their reception. No expense would be incurred by the Bishops in the event of their sending the records of their diocese to the Record Office.
  THE BISHOP OF LICHFIELDsaid, he should be glad to know the exact class of documents which the noble and learned Lord desired should be sent up to the Record Office; because, out of the vast mass of documents, many of which dated from 1297, which belonged to his diocese, a large proportion was utterly valueless. Having personally inspected these records himself, he could answer for them being free from damp, and in excellent preservation. Other documents, which were of practical value, had been already classified and indexed; others were of small value; but he should hesitate before putting his hand to a paper which certified that they were all indexed, and they certainly ought not to be destroyed. Surely it would be most inconvenient were an enormous mass of these records to be sent up to the noble and learned Lord by special train; and the expense of examining and indexing them in London would be far greater, than to send down an inspector every year, or so to see that they were properly preserved in the different dioceses. He would venture to assert that none of our State offices could bear the scrutiny to which it was proposed to subject the dioceses in this matter. He was, however, willing to accept the clause, provided it were amended in the manner which had been suggested by the noble Duke (the Duke of Richmond).
  LORD ROMILLYstated that he had consented to being appointed to the Registry of Chichester, on the understanding that he was never to receive a farthing or to be called upon to interfere, and since his appointment he had never heard anything further about the matter. The only time he had paid a visit to the registry, he had seen the docu-

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  ments lying about in confusion. He might remind the House that Mr. Salt, the uncle of the Member for Stafford, who had taken a great interest in the preservation of the documents belonging to the diocese of Lichfield, having employed a gentleman to copy a number of them, on that gentleman being compelled, for reasons to which he need not allude, to leave the country, a large number of documents belonging to the diocese were found in his house in London, and through the instrumentality of Mr. Salt those documents were restored. All he now called upon the House to do was to interfere in order to secure the preservation of such of these documents as were of value.
  THE LORD CHANCELLOR, thought the collection of these documents would be all but useless without an index. It often happened that valuable and interesting documents were mixed up with a heap of worthless papers, just as it sometimes happened that in a nobleman's house a most valuable picture might be found among a mass of rubbish. The very class of papers referred to by the right rev. Prelate were just those which wanted indexing. He himself remembered seeing Sir Francis Palgrave discover at the Chapter House, Westminster, among a bundle of old parchments which were not supposed to contain anything of any value, a record of a communication between Menteith and the Lords of the Council as to the betrayal of Wallace—an obscure but interesting point in Scottish history. He believed that if the Bishops of the several dioceses would retain such documents as were of special interest to the locality and transmit to the Record Office such as they did not desire to retain, a very valuable addition to the archives of the country might be made.
  THE DUKE OF RICHMONDunderstood the intention of the noble and learned Lord who proposed the clause to be, that all those documents, unless they were properly preserved and indexed, were to go to the Rolls Building in London. The noble and learned Lord on the Woolsack, however, said that the Bishops were to send up those papers only which they did not wish to retain in their diocese, or to be at the expense of indexing. That was totally at variance with what he took to be the meaning of the noble and learned Lord who pro-
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  posed the clause. For himself, he should not object to the proposal, if the indexing and classifying were to be done at the public expense.
  THE DUKE OF MARLBOROUGHthought if, as appeared to be the case, there were rooms full of those documents in the dioceses, a large quantity of paper would be sent up to London and a considerable expense would be incurred. Therefore they ought to have some assurance from the noble and learned Lord (Lord Romilly) that he had at his command a sufficient machinery for indexing those papers properly, with discretionary power to apply an adequate sum of money to that purpose.
  LORD CHELMSFORDsuggested the insertion of words providing that the papers in question should be placed in the Record Office in London and be properly indexed for public use.
  LORD DENMANthought this a matter in which discrimination was required. If useless documents were preserved, the greater would be the difficulty in searching for those which were of interest and importance. Moreover, in many cases these records could be more conveniently consulted if they were kept in the respective dioceses, than if they were all accumulated in one central office.
  THE MARQUESS OF SALISBURYpointed out the inconvenience of discussing that proposal at the present stage of the measure, and doubted whether the clause would add much to the credit they had earned by the construction of that Bill. For instance, though the clause required that these records should be indexed, it said nothing about the manner in which it was to be done; the indexing might be of a very superficial character. They ought to have some authentic interpretation from the noble and learned Lords of the meaning of clauses before passing them.
  LORD ROMILLYstated that in his view the Bishops should be compelled to send up to London only those records which they did not choose to go to the expense of indexing.
  THE DUKE OF RICHMONDsaid, that, as he understood, the intention of the noble and learned Lord was that Bishops should only send to London those documents for which they did not care to incur the expense of an index, he would withdraw his opposition.
  Clause amended, and agreed to, and added to the Bill.
  Bill passed, and sent to the Commons.

  CHURCH SEATS BILL [H.L.]
  A Bill to provide for the free use of seats in certain churches—Was presented by The Earl NELSON; read 1a (No. 59.)

  IRISH RAILWAYS.
  Moved that there be laid before this House, Copies of any recent communications to the Board of Trade or any other department of Government from grand juries in Ireland, relating to proposed sales of Railways or amalgamations of Railway Companies; and to ask whether the Government object to lay before Parliament the information respecting the value of Irish Railways obtained by Captain Tyler under the authority of Government.—(The Marquess of Clanricarde.)
  Motion (by leave of the House) withdrawn.
  House adjourned at a quarter past Seven o'clock, till To-morrow, hall past Ten o'clock.