Lords Sitting of 5 May 1873

MINUTES.
Sat First in Parliament—The Lord Churston, after the death of his grandfather.
PUBLIC BILLS—First Reading—Rock of Cashel* (90); Australian Colonies (Customs Duties)* (91); Tramways Provisional Orders Confirmation* (93).
Second Beading—Fulford Chapel Marriages Legalization* (82).
Third Reading—Supreme Court of Judicature (89), and passed.

GAS COMPANIES BILLS—THE PRICE OF COAL AND GAS.—OBSERVATIONS.
LORD REDESDALEcalled attention to certain Bills introduced this Session by Gas Companies for a permanent increase in their maximum charges on account of the sudden rise in the price of coal within the last 12 months, and to the inexpediency of granting such an increase even in cases in which some immediate addition to the present rates may be properly conceded, as it may be reasonably expected that the late increase in the price of coal may not be permanent. Now, he thought it extremely desirable that the House should
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express such an opinion on this matter as would be likely to lead to a uniform course of action by the Select Committees before whom the Bills of those companies would come. He must say that he did not think what they asked for should be conceded as a matter of course. These companies, like other companies, were speculative bodies which had obtained from Parliament concessions which were made to them on terms which included a maximum price, and they must take the consequences. Some of the Bills might come up from the Commons as unopposed Bills, and in this case he could act uniformly with respect to their provisions; but when they came before the Select Committees it would not be well to have one Committee doing one thing and another Committee another thing. He was quite willing to admit that if, as regarded the price of coal, matters remained for some time as they were at present, there might be reason in some cases for fresh legislation to enable Gas Companies to carry on their business, which at the maximum price allowed by their existing Acts they might not be able to do. But the increased price of coal had not as yet lasted long enough to justify a general increase in the maximum which the Gas Companies were allowed to charge;—and it must be borne in mind that many of those companies had long contracts, under which they would continue for a long time to come to be supplied with coals at the old rates. In the case of those Companies clearly there was no ground for asking for any increase of their maximum. Again, in many instances the Gas Companies had been making very large dividends, and were perfectly well able, with good management, to carry on their works at a profit, though, perhaps, for the next half-year or so they might not be able to make such profits as they divided in past half-years. He did not think that a reduced dividend, where there was still a profit, a sufficient ground on which to base an application to Parliament for an increase of maximum. It must be remembered also that if Gas Companies had recently been paying a higher price for their coal, they had been receiving a higher price for their coke. The whole matter was a difficult one, and therefore he thought an expression of opinion in their Lordships' House for the guidance of the Select Committees

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when the Bills came before them would be of advantage.
THE DUKE OF RICHMONDsaid, he entirely concurred in what had fallen from his noble Friend the Chairman of Committees. He thought it very undesirable indeed that in consequence of the present price of coal these large Companies should come for powers to make a permanent increase in the price of their gas, while the enhanced price of coal might not be permanent. At the same time, while he thought the larger Companies had no sufficient justification for such a course, the case might be different with some of the smaller and more recently established Companies. If they were obliged to go on with their present maximum at the present price of coal, they might find themselves on the verge of ruin. It struck him that the difficulty might be met by an extension of the provisions of the Gas and Water Facilities Act of 1870 by including maximum price and illuminating power as subjects in respect of which Provisional Orders might be granted by the Board of Trade. He believed no risk to the public interests would be incurred by allowing a Gas Company, or the local authorities, to come to the Board of Trade for a Provisional Order to revise the maximum price, because the Board would not issue such an order without due inquiry.
THE DUKE OF CLEVELANDdoubted whether the mode suggested by the noble Duke would be a practical one of meeting the difficulty. It might be that the Gas Companies were in need of a temporary increase of their maximum; but there was nothing beyond speculation to guide them in arriving at a conclusion as to whether the increase in the price of coal would be permanent. There was considerable difference of opinion on this subject, and therefore he thought that powers ought not to be given to the Companies for a permanent increase. If an increase were to be allowed to them, it ought to be only for a limited period—say two years; and if a necessity for a continuance of such an increase should appear at the end of that period they could apply to Parliament again.
EARL GREYsaid, it appeared to him that if any increase in the maximum were allowed it should be only for a strictly limited period. He was of opi-
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nion also that it should be an Instruction to the Select Committees not to grant any increase until after a careful and searching inquiry. Some of those Companies were taking a very unfair advantage of the monopoly which Parliament had conceded to them, and therefore he thought some Resolution ought to be come to declaring that no Select Committee ought to grant an increase of maximum price for an unlimited period, and that in no case should a Select Committee grant any increase whatever without a strict inquiry in which it had been established by evidence that the Company had done its best to economize the production of gas. In return for their monopoly Gas Companies ought to give the public good gas and economize the production as much as possible.
LORD EGERTON OF TATTONsaid, there was very great difficulty in ascertaining the profits of a public Company, and whether it exercised due economy in production. If the Legislature should once sanction the principle that Gas Companies were to obtain an increase of maximum price on the ground of a rise in the price of material, there would be applications for the same powers from Companies of every kind, and he did not see how Parliament could consistently refuse the request. Any concession by Parliament such as that now asked for by the Gas Companies ought to be regarded with great caution and be very carefully considered.
EARL GRANVILLEsaid, he thought his noble Friend the Chairman of Committees had done great service by bringing this matter before the House, with the object, as he understood his noble Friend, of eliciting their Lordships' views in reference to the subject. Several valuable suggestions had been thrown out; but it must be admitted that the question was one of very great importance and of immense difficulty. He thought it of sufficient importance for consideration by a General Committee, which might inquire and advise the House as to the course most desirable to be taken. To increase the price of gas without necessity would be a dangerous proceeding, but it might also be dangerous to call upon the Gas Companies to supply gas at less than cost price. If their Lordships thought well of his suggestion, he would propose that a Committee be appointed to consider

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the general question of what rule should be acted on in the case of those applications by Gas Companies.
LORD REDESDALEthought it right to observe the circumstances were different in the cases of different Companies. It might be desirable to permit a small increase in the price for a limited time, in order to prevent some of the Companies closing their works; but as far as he was able to judge, the demand made on Parliament was unreasonable in very many cases. If their Lordships permitted him, he would think over the matter, with the view of considering whether he might not be able to suggest some course of action. If he should not be able to do so, or if their Lordships should not approve his suggestion, a General Committee might be appointed. He might mention that almost all town Corporations were now seeking to get the supply of gas into their own hands. He doubted whether that was good policy at the present moment, and would recommend those bodies not to be too hasty.

SUPREME COURT OF JUDICATURE BILL—(Nos. 14, 45, 73, 89.)
(The Lord Chancellor.)

THIRD READING.
Order of the Day for the Third Reading, read.
Moved, "That the Bill be now read 3a." —(The Lord Chancellor.)
LORD DENMANmoved that the Bill be read a third time this day six months. He did so in order that he might repeat his protest against the abolition of the Appellate Jurisdiction of their Lordships' House. He thought that, at all events, they ought to postpone the matter till next year.
An Amendment moved to leave out ("now") and insert ("this day six months.")—(The Lord Denman.)
On Question, that ("now") stand part of the Motion, Resolved, in the Affirmative; Bill read 3a accordingly.
LORD REDESDALEsaid, that if this Bill passed the nation would lose its ancient and constitutional right of appealing for justice to Parliament in the last resort. He should therefore move an Amendment, reserving to the House of Lords its Appellate Jurisdiction in certain cases.
An Amendment moved in Clause 20, page 9, line 26, after ("Privy Council") to insert—
("Except when the Court of Appeal shall be of opinion that any Appeal ought to be re-heard, in which case the Court shall order such Appeal to be referred to the House of Lords.")—(The Lord Redesdale.)
Amendment negatived.
THE MARQUESS OF SALISBURYmoved to drop out a parenthesis in Clause 21. That parenthesis was in these words, "except appeals from any Ecclesiastical Court, and petitionsrelating thereto." The effect of his Amendment would be to hand over ecclesiastical appeals, which did not come within the scope of operation of the Bill, to the new Court of Appeal—so that all appeals, ecclesiastical and civil, would go to that Court. The most rev. Primate had urged him to put off his proposition till the whole question of ecclesiastical discipline came to be considered. But a recommendation to delay the whole question till the whole question could be considered was only a Parliamentary expression for putting it off till the Greek Kalends. It would never be brought forward because it would be something like a declaration of civil war within the Church. The question was one of the last which any Government would like to take up, and one of the last which Parliament would feel itself able to deal with. The Right Rev. Bench would not be disposed to submit themselves to the provisions of an Ecclesiastical Discipline Bill, and the other House of Parliament would be unwilling to pass such a measure for the clergy, if the Bishops were to be excluded from its operation. He desired not only to call their Lordships' attention to the evils of the ecclesiastical tribunal which this Bill left untouched, but also point out how the Bill would add to those evils. The Bill modified to a very serious degree the existing Courts of Ecclesiastical Appeal; and, unless their Lordships altered the measure in some such way as he proposed, it would put the Church in a state of great and singular embarrassment. He objected to the constitution of the tribunal before which ecclesiastical appeals were now brought for decision. He objected to the presence of the Bishops on the Judicial Committee; and he held that such objection was consistent not only with

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respect for the episcopal office, but also with respect for the occupants of the episcopal Bench, who were all the more worthy of that feeling because for the last 25 years they had been appointed from among the best and holiest men in the Church. He hoped, therefore, in anything he might say it would not be supposed that he was saying anything wanting in respect either to the episcopal office or to the most rev. and right rev. Prelates themselves. His objection was that the Bishops were unlearned men. They were not learned in the law, and yet as members of the Judicial Committee of the Privy Council they were called on to decide legal questions. If they were put on the Committee merely as assessors he would have no objection—his objection was that they were unlearned persons voting in a Court of final Appeal. Those who advocated the system were in this dilemma:—Was it or was it not a right thing that unlearned persons should vote in a Court of final Appeal? If it was a right thing, why should they abolish the Appellate Jurisdiction of the House of Lords? It could be for no want of power, because they had plenty of unlearned people there. But if it was not a right thing, and if they had abolished the Appellate Jurisdiction of that House because the attendance of learned Members to hear appeals was precarious, and they would not have appeals decided by unlearned persons, why should they have appeals heard by unlearned persons on the Judicial Committee? But it was not alone that Bishops were unlearned in the law that constituted his objection to their sitting on appeals. Not only were they unlearned persons, but they were persons who generally were pledged to a particular side on the questions at issue before them on the Judicial Committee. The questions in dispute were matters of their daily life. During the whole of their lives they had probably been preaching and writing, and even administering ecclesiastical discipline, with regard to questions on which, as Members of the Judicial Committee, they were asked for a judicial opinion. If the days of political trials were to come again, would it not be thought ridiculous to have the Prime Minister and the Home Secretary Judges in such cases? But Cabinet Ministers were not more pledged in political questions than
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were Bishops in religious questions such as those brought before the Court of Appeal. These were old objections which he had always held to be fatal to the Judicial Committee as it stood. But he wanted to point out how the Judicial Committee would stand when this Bill became law. At present the Judicial Committee had for its Members the Lord Chancellor and all noble and learned Lords who had filled the office of Lord Chancellor; the Lord President and all who had preceded him in Ms office; the three Chiefs of the Common Law Courts, the Master of the Rolls, the Vice Chancellors, the Lords Justices, the Chief Judge in Bankruptcy, the Judge of the Court of Admiralty, and those four paid Members who, under circumstances of considerable controversy, were appointed a year or two ago. Let their Lordships see how this Bill would work as regarded the constitution of the Judicial Committee. The paid members were to go over to the new Court of Appeal; the Vice Chancellors, as members of the Judicial Committee, would be abolished, and so would be the Lords Justices, the Judge of the Admiralty Court, and the Chief Judge of the Court of Bankruptcy. Only the three Chiefs of the Courts of Common Law and the Master of the Rolls would be left. He thought he might say that the Chiefs of the Courts of Common Law scarcely ever attended the meetings of the Judicial Committee, and the Master of the Rolls was not likely to attend in future, because he was to have other appellate work thrown upon him by this Bill. The practical result would be that besides the Bishops who had seats on it the Judicial Committee would consist of the Lord Chancellor and the Lord President, and any ex-Lord Chancellors and ex-Lord Presidents that might like to attend. Of course, if ex-Chancellors could always be called upon, the Committee might be tolerably strong in learned members; but experience in their Lordships' House proved that the attendance of ex-Lord Chancellors could not be relied on. The consequence, therefore, would be that they would have to fall back, as a Court of final Appeal in ecclesiastical causes, upon the Lord Chancellor, the Lord President, and two Bishops. Those members who were independent would not be learned, and those members who were learned

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would not be independent. Now take the case of political trials—in ordinary matters of civil jurisdiction the composition of the Court was of less importance. He would have the greatest confidence in the independence of his noble Friend who now filled the office of Lord President, and his noble and learned Friend who filled the office of Lord Chancellor; but those were political offices, and he was dealing with the office and not with the man when he said that when questions in which the Crown or the Executive was concerned had to be decided the independence of the Court became a matter of the greatest importance, and no one would think of putting in the Court two removable Ministers of the Crown. He did not say that questions such as those which must come before the Judicial Committee would be regarded as political questions in the ordinary sense of the term; but often they were matters of public interest, and affected the feelings and beliefs of large numbers of persons, and were therefore matters respecting which Ministers of the Crown in view of an election might be biassed. He was not suggesting that any of the successors of his two noble Friends would be biassed; but they might be suspected of it, and if recourse was had to the Act of William IV., and two members were appointed under the sign manual to act in their stead, the suspicion might attach to the members so appointed. They must remember that they were now dealing, not with the present Judicial Committee, but with what this Bill would make it—a limbless torso; and they must consider what would be the feelings of those whose cases would be decided in these ecclesiastical suits when they reflected upon the composition of the Court by which they had been condemned. Courts of Ecclesiastical Discipline depended more on opinion than any other Courts and upon the constitution of the Court depended to a very great extent the effectiveness of its jurisdiction. It had very little power. If it attempted to stem any great wave of religious feeling it would be overborne, and its power depended very much on the influence which the judgment of men known to be learned, and known to be impartial, produced on those who were interested. If, instead of having a reputation for learning and impartiality their reputa-
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tion was entirely of an opposite description, their moral influence would be gone, the value of their jurisdiction would cease, and instead of closing litigation and appeasing angry feelings they would increase the former and still further exasperate the latter.
An Amendment moved, Clause 21, lines 36 and 37, leave out ("except appeals from any Ecclesiastical Court and petitions relating thereto.")—(The Marquess of Salisbury.)
THE ARCHBISHOP OF CANTERBURYsaid, he would first confine himself to the objections which the noble Marquess had urged against the Judicial Committee as it would stand after this Bill passed. If it would be rendered so inefficient as the noble Marquess said, he should like to know from the noble and learned Lord on the Woolsack—or from some other noble and learned Lord—how it was to perform the functions which it was still to retain with reference to important matters other than those of appeals in questions of ecclesiastical discipline. It was to retain what he might call the visitatorial power which it at present possessed in reference to Colleges and Universities, and Her Majesty had authority to refer many most important matters to the Judicial Committee. When the noble Marquess mentioned the Members of the Judicial Committee he omitted to note that it was competent to Her Majesty to summon to that Committee any other Members of the Privy Council whom she might deem fit to exercise the duties of the office. The noble Marquess objected to the composition of the Judicial Committee on the ground that the Bishops who had seats on it were unlearned, and that they were partial. It was true that in one sense they might be said to be unlearned; but if matters of ecclesiastical discipline coming before the Judicial Committee involved questions of theology, and of great intricacy, was it possible that they could administer the law without any knowledge of theology? Was not, therefore, theological as necessary as legal learning? Nay, if—as the noble Marquess put it—the questions were of such a character that any man entertaining theological opinions was likely to place himself on one side or the other, he asked whether it was

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not possible that for the hearing and deciding such questions the ecclesiastical Members of the Committee might be said to be more learned than the lay Members? He was not going to reveal the secrets of the Judicial Committee, but he was going to make an assertion which would be found correct when the secrets of that Committee came to be known. It was that there had been many instances in which the most learned Members of that body might have fallen into difficulties if they had not had the benefit of the advice of those unlearned Members, who—though they might make valuable suggestions on points in which law and theology were intricately intermixed—could not be supposed to be able to advise the Court on mere matters of law. He could conceive it quite possible that some noble and learned Lords who, in their legal capacity might be the ablest men in the kingdom, might still, from their ignorance of theological terms, so express themselves in a decision upon a theological point that this might be the result—and he would venture to say it would have been the result in past times had there not been ecclesiastical Members of the Privy Council to correct them—that one decision might have excluded the whole High Church party, another might have excluded the Low Church party, and a third the Broad Church party. At the least, then, ecclesiastical Members might be of use in guiding the language used in decisions by the most learned members of the legal profession. In the various eases with which he had to do, he had always found the greatest willingness on the part of noble and learned Lords to consult the ecclesiastical Members on the matters in which they could really be of use. It had not been uncommon to request the ecclesiastical Members to draw up their opinion, to distribute it among all the Members, and to pay the utmost deference to the advice of the ecclesiastical Members in the final judgment. He could hardly suppose the noble Marquess intended to divide the House, for he believed Notice of the Amendment was sent out so late that many Members of the House were not aware of the noble Marquess's intention to propose it; but it was desirable there should be a little discussion upon the subject, because it was possible that public opinion might be informed by such discussion. He was not sanguine
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enough to think he could convert the noble Marquess; but the remarks of the Episcopal Bench might be of use in future discussions on the subject. He quite agreed with the noble Marquess that it was right this question should be fully and fairly considered. He was himself by no means wedded to the existing Judicial Committee of the Privy Council as a Court for hearing ecclesiastical suits; he thought it was highly probable that when this Bill had become law—which it had not yet—it might be found necessary to introduce certain changes; and he should be quite ready, when they had had some experience of the working of the proposed system, to consider whether alterations might not be made in the present arrangements. But whatever alterations were made, he trusted they would not be in the character of rash innovations. The history of the process for dealing with ecclesiastical causes went back a very long way indeed, and he maintained that the mixed tribunal which at present sat in these cases represented the deliberate judgment of the Church of England in every stage in which it had existed since the Reformation. The old Court of Delegates consisted partly of ecclesiastics and partly of laymen. That Court of Delegates was subject to certain Commissions of Review appointed from time to time by the Sovereign. Usually, the Court of Review was a mixed body, consisting partly of ecclesiastics and partly of civilians. He was astonished that in the quarter where it might least have been expected, there seemed to have been a sudden conversion to the opinion that all ecclesiastical matters ought to be submitted to a purely lay tribunal. Many who were now anxious for a lay tribunal wily were within human memory anxious for nothing but an ecclesiastical tribunal.
THE MARQUESS OF SALISBURY: I have never said so.
THE ARCHBISHOP OF CANTERBURYcontinued: He did not say the noble Marquess had said so; but he was reminded of a remark made by a noble Earl of great political experience, whose absence he regretted: On hearing that this proposal was to be made, he said he thought it a good one, but when he considered the quarter from whence it came he could not help thinking there was something at the bottom of it. There

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were many who, to his astonishment, advocated the actual subjugation of the whole ecclesiastical jurisprudence of the country to laymen, who a short time ago were all in favour of there being none but ecclesiastical Judges in these Courts; and he could not help thinking there was "something at the bottom of it." He believed it was this—that whereas it was now often difficult to induce the clergy to accept the decisions of the Judicial Committee of the Privy Council, it would be found much more easy to treat the decisions of this tribunal with little respect if there were none but laymen upon it. The clergy would say—" What is the value of the opinion of laymen on ecclesiastical matters? Ecclesiastics ought to decide ecclesiastical questions, and we regard the decisions of this tribunal of laymen as nothing at all." There was "something at the bottom" by which persons justified to their own minds this extreme desire to subjugate the whole ecclesiastical jurisdiction of the country to a lay tribunal. When the jurisdiction of the Court of Delegates was transferred to the Privy Council ecclesiastics were appointed assessors, and, by the Church Discipline Act, three Prelates were made members of the Court. He believed, as he had said, that in all periods of the history of the Church these tribunals had been mixed, and his advice was that in these things we should not rashly change our old institutions. The Church of England, like every other old constitutional body, might very well admit of reforms, but those reforms should not be in the teeth of all precedent since the constitution of the Church arose. These were times when of all others it was least desirable to be rash in meddling with the institutions of the country. All disestablished Churches were subject to lay tribunals, and even that great body which held itself most independent of the Civil Power would, unless he were misinformed, in a case which was about to come before the Court of Queen's Bench in Ireland, have to submit itself to the ordinary process of a civil Court. It had hitherto been the distinguishing characteristic of the Church of England as an Established Church that in all its Courts ecclesiastical members had had their place, and he did not wish to see a change which would assimilate in this respect the condition of that Church to
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the condition of disestablished Churches unless there were some grave reasons for it. He had no doubt their Lordships were as fully convinced as he was of the necessity of guarding very carefully that Established Church on which the rights and liberties of English Protestants had so long depended; and he therefore trusted that whatever changes were made in this matter, nothing would be done rashly or which, after a few years, they might have most seriously to regret. He believed if this change proposed by the noble Marquess—he ventured to say, in an off-hand manner—were adopted they would repent it very soon indeed.
THE EARL OF CARNARVONsaid, he did not think his noble Friend the noble Marquess was open to the charge of having dealt with this important subject in any very sudden or off-hand manner. Indeed, he could himself recall discussions with reference to it which had been introduced by his noble Friend on previous occasions. Looking to his own state of mind, he was honestly bound to say that for many years past he had felt this to be a very difficult question—on which much might be said on both sides—and it was only after much hesitation he had come to the conclusion that upon the whole the proposal of his noble Friend was one which it would be right for the House to adopt. He certainly was not one who would by word or deed knowingly contribute to sever the union between the Church and State; but he could not agree with the most rev. Primate when he spoke of the tribunal to which he referred as one of the ancient institutions of the country. The tribunal owed its origin to Lord Brougham when he created the Judicial Committee of the Privy Council, and it was, in many of its essential features, very different indeed from that Court of Delegates to which the most rev. Prelate alluded. The whole history of the Court showed how very anomalous it was. At the time it was created no real provision was made for ecclesiastical cases. They were of such little importance in public opinion that they escaped attention when the Judicial Committee was created, and it was only by a subsequent enactment in the Clergy Discipline Act that the omission was corrected. They were therefore deal-ling with a comparatively newly-created tribunal, and one which he ventured to

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think had not proved itself altogether worthy of public approval—not from the fault of those who sat on it, but from its own inherent and essential defects. Its first and most obvious defect was that the spiritual element was numerically insufficient for its duties. There were but three Prelates on the Judicial Committee, and it had occurred before now that one of these was disqualified by some formal defect or some act he had done in an inferior Court. But the main objection was this—that, as far as the spiritual clement was concerned, it was both too little and too much. It was too little because the number of Prelates was insufficient, and they were liable as members of the tribunal to be out-voted. Whatever personal influence they might command by their rank and learning, it could not be pretended that they were an adequate representation either of the Right Rev. Bench, of the Clergy, or of the whole body of the laity of the Church of England. On the other hand, it was too much, because those who were alive to the present unhappy differences of opinion in the Church must see how greatly any one of those Prelates became as it were, in public opinion, compromised when, sitting on that tribunal, he joined voluntarily or involuntarily in the judgments which might be given. The difficulties attending the position of Bishops were certainly not less now than in former times; but such a tribunal as this tended at least to aggravate those difficulties. He thought the Court should appear to be what it was in reality, and what it had on various occasions itself affirmed that it was, a tribunal of lawyers, not of divines, appointed to explain the legal value of phrases and words. If, indeed, divines formed any part of the Court then he preferred a suggestion thrown out that evening that they should sit as assessors rather than as Judges responsible for the judgment of the Court. The unsatisfactory character of the Court being admitted as regards the spiritual element, there were but two alternatives—either to remove the Prelates altogether from the tribunal, or to increase them to an adequate representation of the Bishops' Bench. Was there any one in that House who, considering the circumstances of the country and time, would say that it would be practicable in any way to increase the number of Bishops who now sat on the tribunal?
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But, if so, then the only remaining course was to reduce the Court to a purely lay character. There were some words which fell from the most rev. Primate which appeared to open the door to a suggestion which lie would make. The most rev. Primate said, that there might be some advantage in the discussion in this House with a view to the settlement of the question. It was possible that this Session had gone too far to allow of a Select Committee being appointed, but if the most rev. Primate would lend his assistance for the purpose of inquiring into the best means of dealing with this tribunal, whatever might be the result of the discussion tonight some measure on which both sides of the House might come to an easy agreement might be arrived at. He was quite aware that this was a question which had many practical bearings, and he believed the result their Lordships should have in view would be best attained by a Committee comprising all the learning and ability of the House, such as their Lordships had appointed on similar occasions.
LORD DYNEVORsaid, as far as his own feelings were concerned, he would not object that any case to which he was a party should be carried before the Court of Appeal. He would rather be tried by civilians than by ecclesiastics, because that Court would be composed of the most eminent Judges of the land, men trained in the law, trained to the reading of documents, and to the consideration and interpretation of evidence; and he did not think that the clergy generally were qualified in the same way. There was a theological bias in the minds of clergymen—and the more conscientiously and strongly they felt the greater bias there was—which prevented them from taking as impartial a view as the Judges of the land would be likely to do. There could not be three more fair, candid, and moderate, clergymen than the two Archbishops and the Bishop of London; but for all that he should be sorry that there should be anything like a majority of ecclesiastics in the highest Court of Appeal. But though for himself he should be perfectly satisfied that all ecclesiastical matters of dispute should be referred to a lay tribunal, still, as the most rev. Primate had stated, he doubted whether that would be a satisfactory course to

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the clergy. There was a strong feeling on their part that ecclesiastics should not be altogether excluded. No long time, however, ought to be allowed to elapse before something was done to improve the Court. One would expect that the decisions of the highest Court should be carried out; but it was only necessary to enter some of the churches of the metropolis to see that this was not the case. More than one of the Bishops had told him of the great difficulty they experienced in enforcing the law on account of the enormous expense. What he would wish to see was a spirit of loyalty in the clergy, because if the clergy were to teach with effect the people to obey the law, they must be the first themselves to set the example of obedience. Numbers of the clergy were at present doing very much as they liked, and if things went on in that way the Church would go to pieces. He felt, therefore, that it was of the utmost importance to the welfare of the clergy that the law should be clearly ascertained and fully and firmly administered.
THE EARL OF HARROWBYsaid, he thought the real reason of the complaints against the existing tribunal was the impartial position which it had always maintained, and that it had not sided with any extreme party in the Church. At one time it did not satisfy the High Church party, at another the Low Church party, and at another the so-called Broad Church party, and at all times it had taken so even a way that it had kept the Church of England in the high middle position which had long been characteristic of it. He was not, therefore, prepared to join in the general condemnation which hail been bestowed on the present system by the noble Marquess. But he still thought that the measure now before the House in regard to the High Court of Judicature, and also certain difficulties which had been experienced, made it necessary to reconsider the constitution of the tribunal. In the first place, his noble Friend (the Marquess of Salisbury) had pointed out that the tribunal would be reduced hereafter to a skeleton, and would be perfectly inadequate to the performance of its duties; and besides there were certain inconveniences attaching to the position of certain eminent ecclesiastics, who were now placed upon the Privy Council Committee. From their being
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placed upon it, the public mind could not get rid of the idea that it was in fact a Court of Heresy instead of a Court of Law, and this radical vice in the connection between ecclesiastical and lay bodies in this tribunal, although it had not had any injurious effect in falsifying the conclusions to which the tribunal had come, had led to confusion in the public mind. It had led the public to conceive that where the tribunal had pronounced an opinion it had announced the Church's doctrines as a Council or Synod, and in that way it had given trouble to many scrupulous minds. Moreover, those Prelates who sat upon the Judicial Committee were taken to be expressing their own opinions on disputed doctrinal points when they simply joined with the rest of the Committee in interpreting the law. It would certainly be a very great improvement to remove the Bishops from such an awkward position. Not only so, but those whose cases were adjudicated upon would be placed in a position more easy to be comprehended by the public. At present, persons condemned upon the recommendation of the Judicial Committee regarded the judgment as an imperfect expression of the Church's mind on the one hand, and as an imperfect expression of the Judges' minds, as Judges, on the other. It would be better if they could be brought to consider the matter not as a Church question, but simply as a matter of law and contract as between them and the nation under which they had contracted to do and say certain things, and not to do and say certain things under a contract, which it was contended had not been fulfilled. The notion that an Ecclesiastical Court should decide such questions had never existed in the Church of England since the Reformation, and it would be better if the semblance of such an idea, and the anomalies it gave rise to, were wholly done away with.
THE LORD CHANCELLORsaid, the Judicial Committee of the Privy Council. as constituted for the consideration of ecclesiastical causes, was not the same as that Committee for any other purpose. The Bishops formed no part of the Committee for the consideration of causes other than ecclesiastical, but in ecclesiastical cases the Bishops were as much Judges as their lay brethren. No doubt

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the Judicial Committee had been accurately described by the most rev. Primate as a continuance of tribunals which had existed since the Reformation. From the time of the Reformation until the establishment of the Judicial Committee, the Sovereign, in right of the temporal supremacy over all Courts, ecclesiastical and civil, within the dominions of the Crown, appointed for every particular occasion by writ out of Chancery a body of so-called Delegates, who were selected by the Minister of the Crown. These Delegates might be laymen or ecclesiastics; but the Committee usually consisted of both laymen and ecclesiastics. In the cases of the few insignificant exceptions to this rule the Delegates were all laymen. The constitution of the Court of Delegates, however, differed very much from the present Judicial Committee, because it was a tribunal selected for each particular occasion by the Executive Power; whereas the Judicial Committee of the Privy Council was a permanent tribunal constituted for administering the general law of the land as far as it applied to this description of eases. He had been thus particular because whenever the time arrived for dealing with this question it would be important to bear the history of the tribunal in mind. It had been assumed that the Bill under consideration would tend to weaken the Judicial Committee of the Privy Council, so far as the temporal part of its constitution was concerned. But this was not so. Her Majesty was able to refer any mixed legal and political question upon which she needed the advice of the Privy Council to the Judicial Committee. It was unnecessary to enumerate the cases in which that power had been exercised. There were several recent eases as well as others of more remote date. As long as it was desirable the Crown should take the advice of the Judicial Committee of her Privy Council, it would be desirable she should continue on her Privy Council a sufficient number of learned men. He had no doubt that, if this Bill became law, the same class of eminent men would be appointed Privy Councillors who had been appointed up to the present time. It never had been the practice to impose upon the Crown a statutory obligation to appoint anybody to the office of Privy Councillor; but it had been the common usage to recognize in that manner the meritorious
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services of distinguished Judges; and he had no doubt the practice would be continued. Upon the practical question he wished to say a few words. When his noble Friend (the Marquess of Salisbury) intimated his intention to introduce this question, he (the Lord Chancellor) said that if it should appear that the right rev. Bench and the clergy of the Church of England generally desired to refer these appeals to the Court constituted under the Bill, there would, in his mind, be no difficulty in principle to prevent him from accepting the change. But he was not prepared to make the proposal, because he thought it would have the effect of entangling one great question with another. It was a great matter enough to deal with the whole Civil Judicature of the country; but if they were to add to that an attempt to satisfy all parties in the Church by a reconstitution of the appellate jurisdiction in ecclesiastical affairs, they might postpone to a more remote period than he hoped would be the case the constitution of any new Appellate Court whatever. The present debate had been entirely upon ecclesiastical questions, and he felt sure that that discussion would be continued if their Lordships took the present occasion for dealing with this important part of a much larger subject which lay behind it. In another place, if the proposal of the noble Marquess was accepted, the discussion of the ecclesiastical bearings of the measure would assume at least as large proportions as the discussion of its civil bearings. He should not have introduced the present Bill if he did not believe it to be a measure of importance and usefulness to the country, and he therefore trusted that the present subject would not be introduced into it, but that it would be reserved for consideration on its own merits on a more convenient occasion.
LORD CAIRNSagreed with his noble and learned Friend on the Woolsack in considering that the present was an inopportune occasion on which to discuss the proposal of the noble Marquess, and hoped the sense of the House would not be asked in the form of a division. At the same time he desired to express his opinion that the question was not one which could long be left in its present position, and that the noble Marquess had done good service in ventilating the subject. He was not quite as sanguine as his

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noble and learned Friend on the Woolsack in thinking that the operation of the Bill would be to add strength to the constitution of the Judicial Committee of the Privy Council. He thought the strength of the Committee would be impaired, and that would be an argument in favour of transferring the jurisdiction upon ecclesiastical causes as far as the lay element was concerned to the Appellate Tribunal to be created by the Bill; but he thought the question should be considered by itself. He owned that it had always appeared to him that there was a great deal to be said in favour of the constitution of a purely lay Appellate Tribunal to deal with ecclesiastical causes, and that the ecclesiastical element should be removed from it, except that right rev. Prelates should act as assessors merely; but he did not think the present was the proper occasion on which to discuss that question.
THE ARCHBISHOP OF YORKsaid, he thought the arguments of the noble Marquess had been met and answered by the alternative proposals which had been laid before their Lordships by the noble Earl (the Earl of Harrowby). He could not approve the course now proposed to be taken, which was at the last moment to send down to another place a civil Bill, with great ecclesiastical questions suddenly put upon its shoulders, and by so doing to deprive themselves of the power hereafter to decide whether they should have Bishops sitting as assessors or whether the ecclesiastical element should be altogether excluded. He did not think that, if Prelates had sat as assessors in the past, the decisions arrived at would have differed as far as the actual judgments were concerned; but they would have probably been rendered more clear, from the fact that the assessors had made theology their study, and were better acquainted with its forms and nomenclature. He deprecated the entire and experimental change that was proposed to be made in the constitution of the tribunal, as one likely to plunge the Church of England into a fresh course of litigation, and possibly involve its very existence as the National Church.
THE BISHOP OF WINCHESTERsaid, he would not enter into the quasi political reasons which the noble and learned Lord on the Woolsack so ably gave why it would not be convenient to add to
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this Bill, which in itself was weighty, provisions for dealing with appeals in ecclesiastical cases. That was a course of argument, the sound force of which he at once allowed. But at the same time the question under discussion had been frequently before the House, and he held that now, when Parliament was making great judicial changes, was the right time for considering whether ecclesiastical appeals should continue to be brought before the Judicial Committee of the Privy Council. In these high matters of judicial decision the first object was to do everything in order to secure that the decision should be very just, and the second to make this decision appear just in the eyes of the parties concerned. He ventured to think that the present constitution of the Court of Appeal was wanting in these two important points. He did not think that judgments in ecclesiastical causes by persons having seats on the Episcopal Bench were likely to be as just, or, if they were, to appear to be as just, as those pronounced by Judges who were not ecclesiastical persons. What had fallen from the noble and learned Lord opposite so exactly expressed what upon the whole was his own opinion on the subject that he would not trouble their Lordships with any lengthy declaration. Bishop Blomfield had once introduced a a Bill to enact that before the Judicial Committee pronounced a decision on any tenet or doctrine of the Church they should draw up a case to be answered by the Bishops of the two Provinces as to what the doctrine was—that case not to be binding, but to be of the nature of the cases drawn up, he believed, in the Court of Admiralty and other Courts, for the purpose of obtaining answers to questions upon foreign law, which were not binding upon the Judges, but which helped to guide them to come to a decision. He had at the time, many years ago, supported that Bill; but he had now come to the conclusion that such an enactment was not to be desired. He did not desire to detain their Lordships at that late hour, but he felt obliged to say that the decisions of the Judicial Committee of the Privy Council were not and were never intended to be doctrinal declarations for the Church of England. They were, as his noble and learned Friend on the Woolsack had said, strictly civil decisions on appeal by

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persons who felt themselves injured by the decisions of inferior tribunals. The judgment which was to guide the advisers of the Sovereign in matters ecclesiastical, had no relation to the abstract truth or falsehood of the proposition, tenet or doctrine which it treated, but with the bare question whether the mode in which it had been stated before them agreed with those Articles which the Church on the one hand awl the State on the other had agreed to maintain and uphold; and he held that trained lawyers who had risen to the position of great Judges were more likely to interpret words correctly and impartially, with an absence of prejudice, and with a desire of being just in regard to both parties, than ecclesiastics. He thought the legal members of the Judicial Committee were likely unduly to defer to statements which were made by their brother ecclesiastical Judges, and were likely therefore in certain cases not to take the line they would have taken if they had been left to decide the case alone. He felt certain from his knowledge of the Church of England that that which agitated and so often irritated the clerical mind outside was not that a case had been decided this way or that, but that through the presence of most rev. and right rev. Prelates on the seat of judgment, the judgments appeared to them to assume the character of decisions on the abstract truth of the doctrines involved. He was certain that the removal of the Episcopal element from the Judicial Committee would cause its decisions to be received more impartially by the great body of the clergy of the Church. He deprecated making the settlement of this question depend upon the settlement of all questions of ecclesiastical policy upon which legislation was required, and therefore trusted that the noble Marquess would not wait for any such complete ecclesiastical system of jurisprudence, but would bring forward the single separate question with a view of giving to it legislative effect.
THE BISHOP OF LONDONasked, whether it would be quite right to attempt to pass so important a measure as this, in not merely the very last stage of a Bill which did not deal with the matter in question, but of which so little notice had been given that oven of the right rev. Bishops there were very few
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who were aware what the evening's discussion related to. The words which the noble Marquess now proposed to omit comprehended the whole of the ecclesiastical appeals.
THE MARQUESS OF SALISBURYsaid, that 10 days since he had fully explained at the Table of the House the nature of the Amendment now under discussion, and it was not his fault if the right rev. Prelate and. the general body of the clergy did not read the newspapers. Reference had been repeatedly made to what had been done in certain quarters. He objected to being referred to as a "quarter," especially when it was assumed that that indefinite entity had been doing something that it ought not to do. He begged to withdraw his Motion.
Amendment (by leave of the House), withdrawn.
Dill passed, and sent to the Commons.

ROCK OF CASHEL DILL [H.L.]
A Bill to provide facilities for vesting the Rock of Cashel in Trustees—Was presented by The Lord STANLEY of ALDERLEY; read 1a (No. 90.)

TRAMWAYS PROVISIONAL ORDERS CONFIR-MATION BILL [H.L.]
A Bill for confirming certain Provisional Orders made by the Board of Trade under "The Tramways Act, 1870," relating to Cardiff, Dewsbury, Batley and Birstal, Felixstowe and Fag-borough Cliff, Ipswich and Felixstowe, Leicester, Middlesborough and Stockton, Neath and district, Newport (Monmouthshire), and South London—Was presented by The Lofty PRESIDENT; read P. (No. 93.)
House adjourned at Eight o'clock, till To-morrow, half past Ten o'clock.