§ Order of the Day for the House to be put into Committee (on Re-commitment) read.
§ Moved, That the House do now resolve itself into a Committee.—(The Archbishop of Canterbury.)
THE EARL OF LIMERICK
said, that it was with a feeling of great diffidence that he rose to move the Amendment of which he had given Notice. That diffidence was increased by the fact that he felt the importance of the question more than, perhaps, some of their Lordships. The most rev. Primate having given Notice early in April of his intention to bring under their Lordships' notice matters connected with the regulation of public worship, introduced, on the 20th of the same month, a Bill bearing the same title as that now before the House. The Bill was put down for second reading on the 30th of April; but on the 27th an appeal having been made to the most rev. Prelate by the noble Duke (the Duke of Marlborough), which was joined in by the noble and learned Lord on the Woolsack; the second reading was postponed in order to give time for an expression of opinion by the Lower House of the Convocation of Canterbury. On the 11th of May the Bill came on for second reading. The most rev. Primate had relied on certain expressions of opinion by Convocation in 1868; but those had really no bearing on the Bill introduced by the most rev. Primate in the first instance, or on that which was now before the House. In 1868 the Lower House of Convocation expressed an opinion in favour of a revision of the Courts of Law which dealt with ecclesiastical causes, but that opinion had reference to all ecclesiastical causes generally, and not, like this Bill, to only one class of such causes. On the second reading the most rev. Primate stated the Amendments he was willing to introduce respecting the constitution of the Court to which proceedings in the matters to which the Bill related were to be referred, and in reference to some other very important matters. In the meantime, the Lower House of Convocation of Canterbury had expressed itself very strongly against certain clauses of the Bill, and against 921 legislation in the manner proposed by it. When the Bill came on for second reading, the most scathing objections urged against it in their Lordships' House came from a noble Earl (the Earl of Shaftesbury), who certainly never had been accused of partiality to the High Church party, and there could be no doubt that his opinions were entitled to the most respectful consideration. In answer to the criticisms of the noble Earl the right rev. Prelate (the Bishop of Peterborough) made a speech which, as a specimen of Parliamentary oratory, their Lordships must all have heard with admiration, but which, instead of getting rid of the objections of the noble Earl, contained in itself, perhaps, the strongest condemnation that had as yet been pronounced on the Bill. The right rev. Prelate, having stated that it would be madness to enforce the ecclesiastical law on all points, proceeded to say there were three courses any one of which might be adopted. The first was to enforce the law on all points—which, he had said, would be madness; the next was not to enforce the law—which would lead to uncontrolled licence; and the third was to give to the Bishops power to decide where the law should be enforced and where it should not be enforced. The latter was the course which the right rev. Prelate favoured. Now, while he was opposed to anything like undue licence, he (the Earl of Limerick) ventured to suggest that there was a fourth course which might be adopted, and that course was suggested in the Amendment of which he had given Notice. When the most rev. Primate was introducing his Bill, he alluded to only a certain class of practices against which the right rev. Bench wished to put the law in force; but the fact was those practices were not adopted in half-a-dozen churches in connection with the Established Church. If their Lordships looked to Clause 8 of the Bill now before the House they would see how wide would be the range of the Bishop's discretion if to him were given the function of deciding in what cases the law should, and in what cases it should not, be put in force. In that clause was included all questions relating to the fabric of the Church. The question of the Bishop's power in respect of a reredos—one on which there was at present much litigation—would therefore come within that 922 clause; and by its provisions every alteration, however small, in a cathedral or a church, would require a faculty, or objection might be taken to it. All matters of ornament, all the details of public worship, came within its scope. These were matters which concerned not only the clergy, but, according to what had hitherto been the invariable practice, the churchwardens also. But the latter were not made parties by this Bill. Again, questions as to copes, stoles, and other vestments, which were at present in doubt, were brought under their jurisdiction. They would have to decide such questions as to whether a black gown might be worn, whether it should be permitted to wear a stole black or coloured, or whether a cope should be worn in a cathedral. If the power of the Bishop were extended over such matters as these, authority would be given to him greater than had hitherto been enjoyed by the Bishops of the Established Church. But if this authority were given, by what considerations were they to be guided in its exercise? No principle was laid down for their guidance—it was not oven provided that the question for their consideration should be whether the things complained of was lawful or unlawful. The result would be that in the majority of cases they would be incited to interference or deterred from it by popular clamour. He (the Earl of Limerick) thought nothing could be more dangerous to the Church than that popular clamour should become a motive for the Bishop proceeding or not proceeding; and he believed it would be impossible for a Bishop to divest his mind of the consideration of popular feeling or popular clamour when questions such as that with which this Bill would give him power to deal were brought under his notice. He thought he was right in asserting that their Lordships had given a second reading to this Bill merely on the ground that there should be some simplification of the law in respect of ecclesiastical proceedings, but it could not have given its approval to a Bill on which a large number of Amendments were to be proposed which were not then before the House. But since the Bill had been read a second time a strong popular feeling had been roused against it. The Lower House of Convocation of York had adopted substantially 923 the same course as that which had been previously taken by the Lower House of Convocation of Canterbury, and when a proposition was submitted that it should express approval of the Bill and thank the most rev. Primate for having introduced it, that proposition was negatived by 22 to 15. At not fewer than 100 meetings, held in various places, Resolutions hostile to the Bill had been adopted, and Petitions against it had been sent up from places in which no formal meetings had been held. The Petitions against the Bill might be numbered by hundreds, and the signatures, which numbered many thousands, included those of many hundreds of beneficed clergy of the Church of England. As a rule, the opinion of the Press was not favourable to the measure. A portion of the Press thought with their Lordships that a simplification of the law was called for, but about the form which a Bill to simplify it should take, there was the widest difference of opinion. But though the opinion was general that something should be done, there was no satisfactory agreement as to what ought to be done. He believed there was a very strong feeling among the Members of the Church that the only right and constitutional course would be to endeavour to get first from the clergy in Convocation an expression of opinion as to the required amendments in the ritual law, and to frame a Bill afterwards to enforce the law so amended. It might be urged against the Resolution which he was about to submit that antique archives had been rummaged for it, and that it was in itself antiquated. But it was no more antiquated than the Book of Common Prayer, and if this was antiquated so were the rubrics which, subject to the licence of the Bishop, would be enforced by law if the Bill before their Lordships should be made an Act of Parliament. He did not wish that Convocation should be converted into a Court of Law, or that it should make laws to over-ride the laws of the Realm. He knew it was said that the clergy against whom the Bill was directed would not obey any decision of Convocation. There was no ground for that assertion. The greater number of them had signed declarations, at various times, offering to be bound by all decisions at which the Church might arrive in Convocation. They simply 924 wished to be told by the Church what the law was; for they, in common with the great majority of Churchmen, thought the law was based on the rubrics and on a settlement which was a compromise. Primâ facie, the law was with them, as the decisions pronounced of late years were not so much declarations of what the law of the Church was as legislation not in the spirit of the law of the Church. Such were the feelings of those clergymen. It was only a sense of the gravity of the question, and of the very terrible results which would follow the passing of a measure not based on the opinion of the clergy in Convocation and to which so large a number of Churchmen were opposed, that emboldened him to come forward on this occasion.
An Amendment moved to leave out from the word ("that") to the end of the motion and insert—
("Whereas in the Royal Declaration prefixed to the 'Articles of Religion' it is set forth, 'That if any difference arise about the external policy concerning the injunctions, canons, and other constitutions whatsoever thereto belonging, the clergy, in their convocations, are to order and settle them, having first obtained leave under our Broad Seal so to do, and we approving their said ordinances and constitutions, providing that none be made contrary to the laws and customs of the land:
'That out of our princely care that the churchmen may do the work which is proper unto them, the bishops and clergy from time to time in convocation, upon their humble desire, shall have license under our Broad Seal to deliberate of and to do all such things as being-made plain and assented unto by us shall concern the settled continuance of the doctrine and discipline of the Church of England now established, from which we will not endure any varying or departing in the least degree:
And whereas such differences have arisen and have not yet been so ordered and settled:
This House, while admitting the present unsatisfactory state of the laws ecclesiastical, is of opinion that exceptional legislation is not now desirable, but rather calculated to promote vexatious litigation.")—(The Earl of Limerick.)
§ THE DUKE OF MARLBOROUGH
said, it was with no little sense of responsibility that he had ventured to put on the Paper an Amendment declaring—That this House, while recognizing the importance of a revision of the law for the restraint of ecclesiastical offences, considers it inexpedient to proceed with this Bill at present.He believed that the House, when it passed the second reading of the Bill, had, in effect, expressed its opinion that 925 some steps should he taken for the revision of the law.
§ LORD LYTTELTON
rose to Order. It was not in Order that the noble Duke should move his Amendment when there was another Amendment already before the House.
The noble Lord is certainly right. The noble Duke cannot move his Amendment before the Amendment moved by the noble Earl (the Earl of Limerick) has been disposed of.
§ THE MARQUESS OF SALISBURY
suggested that the noble Duke had not yet moved his Amendment. Their Lordships might stop him if he did move it; but all he proposed to do at present was to speak on the second reading of the Bill, and he had as much right to do that as anybody else.
§ THE DUKE OF MARLBOROUGH
said, his great object in rising was to ask their Lordships to take further time before proceeding with a measure of this kind. They had heard that one of the recommendations of the Ritual Commissioners was that proceedings before the Bishops should be in camerâ. The most rev. Primate had given a partial application to that recommendation, for the Bill appeared to have been drawn up in camerâ he believed that if it had been prepared in a more open manner, it would not have excited so much feeling. From the speech made by the most rev. Primate when introducing the Bill, one would have supposed that the scope of the measure was a humble and limited one. The most rev. Primate said he did not seek to alter the law, but merely to remove certain difficulties in the way of its administration. But when the Bill itself was laid on the Table, it appeared that its scope was much wider and more ambitious, because it proposed that the Bishop and his officers should take proceedings not only in cases where the law was already declared, but also in cases where it was not. It was understood at first that the assessors were to be lay and ecclesiastical, but in the Bill the assessors were constituted in a different manner.
THE ARCHBISHOP OF CANTERBURY
explained that he did not state that by the Bill there were to be lay and ecclesiastical assessors. He stated that it had been the original intention of the framers of the Bill that there should be such assessors.
§ THE DUKE OF MARLBOROUGH
said, the most rev. Primate had stated what had been the original intention; but that intention had not been carried into effect. The Bill, when it first appeared, provided for assessors appointed in accordance with the provisions of the Church Discipline Act; but it was found that that proposal was very unpopular, and by a further change the Bishop and his Chancellor were substituted. It appeared to him that the most rev. Primate desired to steer a middle course between the recommendations of the Ritual Commission and those of Convocation, without giving full effect to either; and he thought that course was fatal to his measure. With regard to the feeling which this measure had elicited out-of-doors, he would observe that the Lower Houses of Convocation of Canterbury and the Northern Province had both expressed a very strong opinion against the Bill; and there was an equally decided objection to it on the part of a large body of the laity. Important alterations had been made in the Bill since its introduction; but some of those alterations rather increased the objections to it. One of them was at direct variance with a portion of the scheme stated by the most rev. Primate, because it gave each side in a cause the power to appeal to the Archbishop. The Bishop would be required to publish the reasons for his decision, and this, with appeal to either side, would be as fruit-fid of litigation as any regulation which it would be possible to devise. The Archbishop was to have power to state a case for the Court of Final Appeal. Why should not this power be given to the Bishop in the first instance? One of the grounds stated by the most rev. Primate for the introduction of the Bill was that it would obviate the great expenses hitherto incurred in these proceedings; but he (the Duke of Marlborough) could not see how the expense would be diminished—on the contrary, his opinion was that the proceedings prescribed by this Bill would be not less costly than they were now. Another strong objection to the Bill was that the monition would take effect pendente lite. The clergy felt that this would be a most oppressive enactment. Again, the Bill only dealt with one class of offence. He did not deny that proceedings antagonistic to the feelings of the great majority of the members 927 of the Church—proceedings of the so-called Ritualistic character, and which approached somewhat closely to practices in a sister communion—were carried on by some clergymen. He should be glad to see such proceedings limited, or, where carried too far, put an end to; but there were other practices, such as the proclamation of heretical opinions, which were much more calculated to undermine the Church, and he thought that when they were pursued by clergymen they ought to be among the offences included in any Bill of this kind. He wished to point out to their Lordships that this Bill would create a machinery for dealing with ecclesiastical offences before those offences were accurately defined. For instance, according to the right rev. Prelate (the Bishop of Peterborough), the whole of the law relating to the rubrics was in a state of the utmost uncertainty—so much so that the right rev. Prelate thought that as to enforcing it a great deal must be left to the discretion of the Bishop. "Was it practical or in accordance with common sense to provide a restrictive—he might almost say, a penal machinery to enforce a law which was itself in such an unsatisfactory condition? If the right rev. Primate had first of all recognized the fact that the rubrics were in an unsatisfactory condition, that there were in them many things which were doubtful and which it was desirable to have decided, and if he had taken steps to ascertain and define the law before asking the Government and the country to pass a measure to enforce the law, that course would have been eminently satisfactory, not only to those against whom the measure was directed, but to all moderate men who valued the forms of the Church of England. If a representative body of the clergy had had an opportunity of considering the rubrics and canons of the Church and effecting in them such changes as were suited to modern times and requirements, a measure founded on the result of such deliberations might have been carried without dissent. But what would be the effect of passing this Bill? He had presented a Petition from 800 of the clergy, who, rightly or wrongly—and he was far from agreeing with them—protested against the regulations of Divine service being settled by a secular House; and, if the Bill passed, they would look upon them 928 selves as martyrs, and they would go through all the stages of inhibition and prohibition and see their wives and families reduced to beggary rather than submit to an enactment passed under such circumstances. On the other hand, if an ecclesiastical body pronounced an opinion upon the rules, rubrics, and canons, he believed a large body of them, would be willing to be bound by the results of such deliberation. Though he (the Duke of Marlborough) considered their contention wrong, yet it could not be denied that these views were entertained by a large body of the clergy, and were maintained with great pertinacity. Could anything be more disastrous and fatal than that such a large body of the clergy should be compelled in this way to leave the Church, the boasted merit of which, as an Established Church, according to the noble Duke opposite (the Duke of Argyll), should be its breadth and comprehensiveness? The diversity of feeling with which this measure was regarded was shown by the variety of Amendments which would have to be considered if the House went into Committee. A noble and learned Lord opposite (Lord Selborne) would go further than even the right rev. Prelate, and would authorize a Bishop to lay down rules for a diocese by which each clergyman would be bound if he did not at once take steps to protest against them.
§ LORD SELBORNE
said, he did not know how far it might be permitted by the Rules of their Lordships' House, but he thought it was an inconvenient course to discuss Amendments which were on the Paper before they were reached in due course.
§ THE DUKE OF MARLBOROUGH
said, the Amendments, being on the Paper, were public property, and it was allowable on the Motion to go into Committee, to refer to that which would have to be discussed in Committee.
§ LORD SELBORNE
said, the inconvenience was, that the effect of Amendments was stated very differently from the sense in which they were understood by those who proposed them.
§ THE DUKE OF MARLBOROUGH
said, the noble and learned Lord would be able to set himself right when the Amendments came to be discussed. But their Lordships could not but be struck by the scope of the Amendments of the 929 noble and learned Lord and of the noble Lord who sat opposite—Amendments which amounted to two separate Bills, which had not received the assent of a second reading, and which themselves might require to be extensively amended. Therefore the House could not give a fair and judicial consideration to these Amendments. Their Lordships would not be indisposed to consider the feelings of the laity as well as of the clergy—and very many Petitions from the former had been presented against the Bill—and the laity had not had any regular opportunity of considering this measure. There had sprung up of late years an annual gathering known as the Church Congress, which was sanctioned by the Bishops and largely supported by members of the Church of England, and it was a pity that a measure of this character should not be submitted to such a gathering as the Church Congress. It was impossible that the measure could give satisfaction to even moderate men among the laity, unless they had further opportunities of considering it; and he therefore appealed to the Bishops to say whether in their hearts and consciences they did not think it would be injudicious to press it now, and whether they would not prefer to postpone legislation for a year. In conclusion, he entreated the most rev and right rev. Prelates to consider this aspect of the matter, and not to press the Bill at present.
THE LORD CHANCELLOR
My Lords, it is now three weeks since your Lordships were asked to consider the question of the second reading of this Bill. When that question was proposed, a long and unusually interesting discussion followed, and many Members of your Lordships' House expressed their opinion on the subject of the proposed legislation. The difficulties of legislating on this question were fully and broadly explained; the particular provisions of this Bill were largely—and, as I think, strictly—criticized; but, so far as I can recollect, no Member of your Lordships' House expressed the opinion that there ought to be no legislation on the subject, and certainly no Member of your Lordships' House proposed on the second reading the rejection of the Bill. My noble Friend who has just sat down (the Duke of Marlborough) at that time referred to some subjects on which he has spoken to-night, and I think that 930 the view which he then expressed was—not that there should be no legislation on this question, but that legislation upon it should be introduced, not by the Episcopal Bench, but by Her Majesty's Government. The result of the discussion upon the evening to which I have referred was an understanding that Amendments in the Bill should be proposed by the most rev. Primate who had introduced it, and that other Members of your Lordships' House who take an interest in this question should also express, in the shape of Amendments, the alterations which they wished to submit for the approval of your Lordships. My Lords, I am bound to say that the interval which has elapsed since that time appears to have been diligently used; for, as far as I can recollect, it is a considerable time since, upon the Motion for going into Committee on a Bill in this House, 32 pages of Amendments were to be proposed for your consideration when you reached it. But among those Amendments I find some from my noble Friend the noble Duke who has just sat down—at least, if I understand rightly—
THE LORD CHANCELLOR
I was going to say that the Paper of Amendments had a heading which, to me, at least, was novel—"Amendments to be moved by the Earl Nelson (formerly the Duke of Marlborough.") And, my Lords, not only is that so, but I also find a considerable number in the name of the noble Earl (the Earl of Limerick) who commenced the discussion to-night; and from these Amendments I gather, not only that he is not averse to legislation on this subject, but that he is so keen for legislation that he wishes to include in the Bill all the members of the Episcopal Bench, against whom he has evidently directed the suggestion that they at this moment are largely violating the ecclesiastical law. Under these circumstances, I cannot but think if your Lordships were, after what has occurred, to proceed now to reject the Bill upon the Motion for going into Committee—if you were to refuse to consider those various Amendments which have been put on the Paper—you would pursue a course which is not only unusual in this House, but 931 which out-of-doors would he characterized as capricious and unreasonable; it would, I think, he inconsistent with the respect due to any Member of your Lordships' House who should have introduced a measure of this importance; but, above all, it would not be characterized by that respect which we all must feel for the most rev. Primate from whom the measure has emanated. Upon this part of the subject I should not wish to say anything more, except to ox-press my surprise, and to venture to hope that I have been mistaken in something which I thought I heard a short time since. I am under the impression that I heard from my noble Friend who has just sat down (the Duke of Marlborough) that he had presented a Petition, signed by 800 clergymen of the Church of England, stating that they would feel it to be their duty not to obey any law proceeding from a secular source. My Lords, strictness and order in the case of Petitions presented to this House have not been so carefully observed of late years as they formerly were; but I would still venture to ox-press a lingering hope that I misheard what I seemed to hear, and that it is not the case that there are clergymen of the Church of England who entertain such an opinion, or who, if they do, have expressed it upon the face of a Petition to this House; and I own I cannot persuade myself that my noble Friend, who I am sure upon these subjects holds no such views himself, has presented Petitions which contain such statements.
§ THE DUKE OF MARLBOROUGH
said, he had said so in his speech, but he had no reason to believe that such a statement was on the face of the Petition.
THE LORD CHANCELLOR
I very much rejoice to hear that there was no such statement on the face of the Petition. My Lords, I cannot regret that upon the Motion for going into Committee on this Bill your Lordships' attention has been so much directed to the question as a whole. I quite agree with the noble Duke that, as a general rule, on going into Committee on a Bill, nothing can be more inconvenient than referring in detail to Amendments about to be proposed. Undoubtedly, that is the case with regard to Amendments which may be described as merely verbal or Amendments in detail. But I cannot 932 help thinking that where you have Amendments of a different character—Amendments which represent alternative schemes—it is desirable that your Lordships, before going into Committee, should at once have presented to you a general view of the character of those Amendments, in order that, as far as possible, your attention may be called to the broad issues which, in Committee, you would have to decide. My Lords, with this view, I cannot help asking your Lordships to permit me shortly to indicate what appear to me some of the principal questions which are raised by the Amendments. And, first, I will refer to the alterations proposed to be made in the Bill by the authors of it since the discussion on the second reading. The Amendments to which I refer may, as far as concerns my present purpose, be said to deal principally with these two questions—the question of the tribunal before which cases under this Bill are to be brought, and the question of what has been termed "the discretion "reserved to the Bishop as to the institution of ecclesiastical suits. As I understand it, the proposal of the Bill, in its present form, is that causes are to be tried in the first instance in the Diocesan Courts of the Bishop by the Bishop, with the assistance of his Chancellor, if he be a layman and a lawyer, and, if not, then with the assistance of a Legal Assessor; and, as I understand the provisions of the Bill, the Legal Assessor to be appointed in the place of the Chancellor is to be appointed by the Bishop, and to hold his office during pleasure. Now, in the first place, it is obvious that a provision of this kind gives the Bishop an Assessor for any particular case or for any particular number of cases. When we consider that there are more than 20 dioceses in England and Wales, and that, as may be hoped, the number of cases in each will be extremely small, it is obvious that a Judge appointed for this purpose cannot take rank with what we may term a Judge of the first class. Then the question arises—"How are you to pay the Judge to be thus appointed? "I find no provision on the subject. Then, again, one naturally asks—"What are to be the legal relations between the Bishop and the Judge?" The Bill provides that the Bishop is to consider the case along with the Judge. If they differ, is the Judge to overrule 933 the Bishop or the Bishop the Judge, or must both agree before any decision can be come to? These appear to me very difficult questions, and the answers to them will involve difficulties in themselves. Again, observe what may arise out of legislation of this description. Twenty-eight Diocesan Courts in the Kingdom, and Judges in them who are not, from the eminence of their position, likely to command great respect for their decisions; Is that likely to promote uniformity in the law? I apprehend not. Is it likely to check litigation—litigation in the nature of appeals? I should think not. These are the difficulties which strike my mind with regard to the tribunal. But now let me turn for a moment to the discretion of the Bishop, whether suits shall be instituted or not. I wish to express my own opinion on that point. I am not against reserving a discretion to the Bishop in these matters. It is true I think the Bishop himself ought to prefer that no such discretion should exist; for I cannot conceive anything which would place a Bishop in a more invidious position than to have to say whether a particular suit shall proceed or not. But, at the same time, I can see many cases in which it may be for the interest of the Church that a discretion should be reposed in the Bishop, and I should not be unwilling to give it. But then the subjects should be limited, as far as it is possible to limit them, on which that discretion should be exercised. I observe, however, it is proposed that an appeal may be made from the Bishop to the Archbishop, in order that the Archbishop may exercise his discretion against the discretion of the Bishop. Now, I understand what appeals upon matters of law mean, but I do not understand appeals upon matters of discretion. If you are willing to repose a discretion in the Bishop, do it fully, fairly, and completely; but do not appeal from one man to another man, as if the discretion of the second must, of necessity, be better than that of the first. I now proceed to another class of Amendments, which appear to me to introduce very broad and grave propositions for your Lordships' consideration. I refer to the Amendments of my noble and learned Friend (Lord Selborne). If I understand those Amendments correctly, my noble and learned Friend proposes that the Bishop should, in the first instance, 934 be at liberty to issue a monition ordering a particular thing not to be done in any church in the diocese. And, as I understand it, the Bishop may do that of his own accord, without any representation made to him—without hearing any evidence or calling on the incumbent for any explanation—but simply of his own free will and, if such a thing could be proposed, of his own imagination. The incumbent against whom the monition is directed is not to be allowed to dispute in any way the fact as to what has been done, or supposed to have been done, in his church; but he is to be at liberty to appeal only upon the law, and to argue before the Court of Appeal whether the proposition of law involved in the monition is a correct proposition or not. I own that although I am sure these proposals of my noble and learned Friend have been drawn up with the greatest care, and with the object of promoting peace and harmony and of avoiding unnecessary litigation, yet I cannot but feel apprehensive of the consequences of legislation of that kind. An incumbent against whom such a monition is issued may know that the act upon which the monition is founded never took place at all, and I cannot think he would sit down patiently without the right of disputing the allegation that he committed the act, and would rest content with arguing whether the monition of the Bishop is right in point of law or not. I cannot believe that such a provision would work satisfactorily. But even supposing that the incumbent was content to proceed to dispute the monition in point of law in the Appellate Court of the Archbishop, see what would be the consequences. You will have the Appellate Court of the Archbishop declaring whether the monition of the Bishop is right or wrong, although before the Bishop himself there has been no argument whatever as to the legality of the monition. For my own part, I cannot understand anything in the nature of an appeal, except an appeal from some primary judgment after both sides had been heard. Now, observe a further consequence. Suppose an incumbent appeals against the law of the monition to the Archbishop—who is to appear on the other side? The parishioners, it seems, may do so if they please; but is the Bishop himself to appear as a litigant 935 in the Court of the Archbishop in order to justify the legality of the monition he has issued? I now proceed to another class of provisions to which your Lordships will be asked to assent. The proposals of the noble Earl who sits on my left (the Earl of Shaftesbury) also deal with questions of procedure. The noble Earl proposes that where a representation of the character indicated in the Bill is made to the Bishop, the Bishop is in the first instance to ascertain whether the complainants and the clergyman complained of are both willing to take the decision of the Bishop on the subject without appeal. If they are, then the Bishop is to state the mode in which the hearing of the case is to be conducted. The noble Earl proposes that there shall be a Judge appointed for the provincial Courts of the Archbishops, who, if the Archbishops think fit, may also fill the legal office they at present fill; and if the complainants and the incumbent do not agree to take the decision of the Bishop without appeal, the Bishop is to send the complaint to the Archbishop of the Province, and then this Judge is to hear the complaint, either in London or on the spot, as may be most convenient. Further, it is proposed that the first step to be taken by this Judge before the case is decided is that he shall reduce into the form of a special case the whole of the facts proved, before him, and in that way every expense is to be got rid of in all further proceedings, except the expense of reading and adjudicating upon that special ease. I own there are in this proposition some very great and singular advantages. In the first place you obtain in all these cases the decision of a first class and a permanent Judge. Moreover, you obtain in the way great uniformity of decision. You obtain also the power to eliminate one stage of litigation, because the appeal from that one Judge will be direct to the Queen in Council. I ought, however, to remind your Lordships that another proposal of the noble Earl is that this Judge is to make his report in the shape of a special case to the Bishop of the diocese, by whom the decision is to be pronounced in accordance with the report; therefore, you do not disturb in any way the authority and proper jurisdiction of the Bishop of the diocese, but you arm him with the assistance of a 936 Judge of the first class. The noble Earl's scheme fails, however, in one particular, inasmuch as it still preserves to the Bishop that discretion of which I spoke just now. I will now briefly refer to the proposal of the right rev. Prelate who presides over the diocese of Peterborough. As I understand, the right rev. Prelate proposes that in ecclesiastical litigation there shall be what I may term—to use an illustrative expression—a neutralization of a certain area of arguable ground. The rubrics have been found to accommodate themselves so much to the habits of the people that there would be considerable difficulty in interfering by legal proceedings for the purpose of putting a stop to them. The noble Duke (the Juke of Marlborough) spoke on that subject with great force. He said that the natural and logical course of legislation of this kind was not to provide for enforcing to the letter the rubrics as they now stand, but to take steps for the purpose of altering the rubrics and accommodating them to the necessities of the present day. My Lords many persons, I know, are of a sanguine disposition. Perhaps I am not sufficiently so; but I am bound to express my firm conviction that whether you look to Convocation or whether you look to Parliament, or whether you look to the Church outside of Convocation and outside of Parliament, the idea that in our days it will be possible to arrive at any alteration for a settlement of the rubrics appears to me to be out of the range of probability. To say that there is to be no legislation till the rubrics are altered is to say that there is to be no legislation at all. But I own that I see in the proposal of the right rev. Prelate much that in a rough way would arrive at conclusions which, for practical purposes, are not unlike conclusions which might be arrived at by rubrical alteration. Let me refer to matters to which the Amendments of the right rev. Prelate are directed. As to the position of the minister in the Communion Service during the time of consecration, that is a subject on which it will not be expected, nor would it be proper, that I should give any expression of opinion as to what the law on the subject may be. But I wish to call your Lordships' attention to the position of the question. I think that there are in the Church of England a great number of persons, a 937 large number of clergymen, who have no sympathy whatever with Ritualists—I use a familiar expression—or Ritualism, who have no sympathy with those extravagances and those departures from the law that have been referred to in this House, and who yet feel themselves much distressed and disquieted by the present law on the subject of the position of the minister during the time of consecration. Upon that subject there have been two decisions more or less final by the Judicial Committee of the Privy Council. I do not desire to say one word as to the law on the question, but every one knows how extremely difficult it is for any person—for any layman, perhaps for any lawyer—to be satisfied that those two decisions are re-concileable with each other. In one of those cases no defence was made, and only one side was heard. Those decisions, I think, cannot be regarded as final. If we look at the past history of the Judicial Committee of the Privy Council we shall be able to find that certainly there is, at least, one case of great importance in which a decision arrived at by the Judicial Committee was afterwards altered by the same tribunal. Suppose it should hereafter be decided by the final tribunal of the country that the proper position of the minister at the time of consecration is to stand in front of the people looking towards the East—remember that if it should be so decided that decision will be compulsory upon every clergyman of the Church of England. Now, if that should turn out to be the law of the Church, it is a law which would press heavily upon the consciences of a great many clergymen of the Church of England. But suppose the tribunal should decide that the proper position for the clergyman is to stand looking towards the South. There are said to be hundreds of clergymen whose habit it has been all their lives—before Ritualism was thought of, certainly before it was developed—to stand in the other position. I ask your Lordships to consider how a final declaration of the law to the effect that I have mentioned would bear upon the consciences of those clergymen. But suppose the Court of Ultimate Appeal should say the rubrics are not sufficiently clear to enable them to define the position—that they do not find materials in the rubric to make the obligation certain 938 —and they therefore leave the question of the position of the minister during the time of consecration in dubio; then, after a long, difficult, and acrimonious litigation you will have come to the very conclusion at which the proposal of the right rev. Prelate asks your Lordships to arrive. But, my Lords, I think it very probable that your Lordships will be of opinion that if the proposal of the right rev. Prelate should be adopted, it should go somewhat further, and determine that no litigation, under this Bill or under any existing law, should be commenced to enforce any penalties in these matters. I am not sure that I might not add to the subjects, with which your Lordships would desire to deal, the penalties for not using the Athanasian Creed. My Lords, I yield to no one in the desire to maintain this Creed as a formulary of our Church; but I can conceive that many of your Lordships, even though you should desire to maintain the Creed as a formulary, might yet consider that, looking to the way in which the consciences of men are affected by it, it would be wise to enact that no civil penalties should be enforced for the conscientious non-user of that Creed. I apologize for having taken up so much of your Lordships' time. We are now dealing with an extremely difficult subject, and I have made these observations frankly and honestly, in the hope that I might be of some assistance in enabling your Lordships to overcome the difficulties. Even a bold man might shrink from the kind of legislation which is now contemplated; yet I cannot but think that introduced as the measure has been with the support of the right rev. Bench, it is incumbent upon us to give it full consideration, and to endeavour, as far as we can, to frame a legislative enactment which will have—not, as has been suggested, a disquieting and disturbing, but rather a healing and quieting effect throughout the Church. My Lords, I am not without hope that by a combination of the proposals of the most rev. Primate with some others that have been proposed or suggested, this end will be attained; and sure I am that if it be attained your Lordships will have no cause afterwards to regret any amount of trouble and attention which you may have bestowed upon its fulfilment.
THE BISHOP OF LINCOLN
*: My Lords, I ought to apologize for venturing 939 to trespass now on your indulgence, even for a few minutes; but having been nearly 30 years a member of Convocation—a longer time, I believe, than any one now on this Episcopal bench, perhaps, with a single exception—I may be permitted to say something with regard to that body which has been referred to in the Amendment now before your Lordships, and also in the remarks which have just been made by the noble and learned Lord on the Woolsack. And in order that I may not be charged with undue presumption, I beg to add that I rise after previous communication with the most rev. Prelate who has laid this Bill on the Table of your Lordships' House, and with his encouragement; and I feel bound to acknowledge the generous toleration and courtesy invariably manifested by that most rev. Prelate to his Episcopal Brethren, and particularly to those who have the misfortune sometimes to differ from him. My Lords, I do not rise for the purpose of saying that legislation is not necessary; on the contrary, I believe it to be urgently and imperatively required for two distinct purposes——first, for the amendment of the constitution and procedure of our Ecclesiastical Courts; and secondly, for the correction of lawless excesses and extravagances on the one side, and of the no less lawless negligence and slovenliness on the other side prevailing in the ritual of some of our churches. But in order that legislation in so sacred a thing as public worship may be effective, and in order that it may produce harmony and peace, and not lead to discord, disunion, and disruption, it must carry with it the hearts of the clergy. The clergy of the Church of England are about 20,000 in number, planted in every parish of the country, and they exercise a powerful influence, not only spiritual and religious, but also moral, political, and social. My Lords, it would be an evil clay for the Legislature if it were to alienate the affections of the clergy; it would be disastrous for any Administration to forfeit their confidence; above all, it would be calamitous for the Episcopate of England to be estranged from the clergy. My Lords, England, in former days, had bitter experience of the evil effects of such a separation, especially in the period dating from the Revolution of 1688 for about a century, beginning with the secession 940 of some of the most learned and pious of the clergy, the non-jurors, and continued through the dreary and dismal period of the Hoadleyan and other controversies, and terminating in another secession—that of the Wesleyans—from which we have not yet recovered; these were some of the unhappy results produced by a want of confidence between the Bishops and clergy of the Church. The 20,000 clergy of the Church of England are not represented in this House, and none of them have seats in the other. It is, therefore, more incumbent on the Bishops to communicate their sentiments to your Lordships, on matters which vitally concern their temporal and spiritual interests, such as the Bill now before you. Let me, therefore, be permitted to report their feelings upon it. They describe this measure as a Bill for the coercion of the clergy under severe pains and penalties in matters uncertain and ambiguous. Their complaint is that Bishops are resorting to Parliament to compel the clergy to obey rubrics which are doubtful, while some of the Bishops themselves violate rubrics which are clear; as, for instance, by ministering confirmation to whole railfuls of candidates at once. They complain that Bishops desire by means of this Bill to enforce upon the clergy what is called the Purchas judgment, which prohibits them to use an Eucharistic vestment, while some Bishops disobey that judgment which commands them to wear an Eucharistic vestment while celebrating the Holy Communion on certain festivals in their own cathedrals. Ritualistic excesses are great evils, but Episcopal inconsistency and despotism are not more venial. My Lords, I report simply what I hear, and hear with sorrow and alarm. We seem to be on the eve of a great crisis; it may be an ecclesiastical and civil disruption; and who can foresee the consequences, both to the Church and Realm? Where, therefore, is the remedy? It consists, I would humbly submit, in treating the Church as a Church, and not merely as a department of the State. You desire, my Lords, to check Romanism by this Bill; but you will give the greatest triumph to Romanism that it can possibly wish for if you treat the Church of England as an Act of Parliament Church. This is what the Church of Rome desires her to be, and if you treat 941 her as such, perversions to Romanism will become more and more frequent among us. Let me entreat you, my Lords, not to despise the synods of the Church. This is a policy which Romanism would welcome at your hands. Let me implore you to show some regard to the Church of England in ritual matters, as represented by her ancient Convocations. They have many claims on your esteem. We owe the Book of Common Prayer to the Convocations. The Convocations of the Church of England at the present time contain very many members of great piety, wisdom, and learning, and exercising great influence in all parts of the country. If in spiritual matters you show no deference to Convocation, you will alienate the clergy of the Church. But if, on the contrary, you treat Convocation with respect, you will conciliate the affections of the clergy. And then, legislation on such matters, which without Convocation will be abortive and obnoxious, and will lead to dissension and disruption, will become comparatively easy, and will allay strife and produce harmony and peace. Convocation, I am aware, is not a popular assembly—you may disparage it if you will, but you cannot afford to despise its influence; that influence is powerfully exercised over a large number not only of clergy, but laity. Convocation is an energetic instrument for good, because its authority is acknowledged by many who will not readily submit in spiritual things to secular power. It is, indeed, objected to Convocation that the laity are not represented in it, but this is surely a mere verbal objection; the action of Convocation is fenced on all sides by the intervention of the laity; Convocation cannot originate anything with the view of framing a canon, without a licence from the Crown; and to give effect to synodical canons the subsequent assent of the Crown is requisite; and they cannot acquire legal validity without the authority of Parliament. It cannot, therefore, be said that the laity have not great influence over Convocation; and no one need fear any ecclesiastical domination from it. But it is also objected that the parochial clergy are not adequately represented by it. Be it so. Convocation is very desirous to remove this objection. Let it be enabled to do so. But even now the parochial clergy—yes, even some among them who are 942 charged with ritualistic excesses—have publicly declared, in the Petition of the 800 clergymen presented by the noble Duke, their willingness to submit to the judgment of Convocation in doubtful rubrics; and therefore the authority and influence of Convocation are great for putting an end to religious controversies, and for producing and maintaining peace. Will not, therefore, your Lordships permit a reference to Convocation for such purposes as those? Let me entreat you to hold out an olive branch of peace to the clergy by such an overture as that. But it is also said that Convocation made a surrender of its synodical powers at the Restoration. This I beg to deny; it merely gave up its powers of taxing itself, but its synodical, and even judicial powers in certain respects were recognized, as your Lordships may remember, by a largo majority of the Judges of England in the reign of Queen Anne; and though in the stagnant times of religious lethargy which succeeded, the exercise of those powers may have lain dormant, yet its functions have never been abdicated, and if in the present crisis a resort is made to Convocation for the clearing up of those rubrics, such as the rubric concerning the position of the celebrant at consecration, and the rubric concerning ornaments and vestments, and for the revision of such rubrics as may seem to need to be revised, and if the most reverend Presidents of the Southern and Northern Convocations would give specific directions accordingly to their respective provincial synods, having first received licence from the Crown to treat thereon, there is no reason to doubt that in the course of a week a peaceful solution might be arrived at with regard to such matters as require amicable adjustment previously to legislation upon them. I am confirmed in this opinion by the Amendment of the right rev. Prelate, distinguished by his eloquence and ability, to which the noble and learned Lord on the Woolsack referred. I confess, with all submission, that I should prefer that such matters as those were first committed to the consideration of the synods of the Church, and not first proposed in a section or Schedule of an Act of Parliament. This course seems to savour too much of constituting Parliament into a synod on doctrine and ritual. Indeed, the very matter to which the noble and learned Lord referred— 943 the Athanasian Creed—which is one that touches the essence of all religious doctrine, would itself involve a reference to Convocation for the alteration of a rubric, because that creed is to be recited by the people, not alternately with the minister, as is too often the case, but in its totality; and whatever the minister may do or not do, the people have a right to the creed, the faithful laity of every parish have a claim to it, and they cannot be deprived of that right by any exemption of the minister. My Lords, on Tuesday last the noble Duke who moved the second reading of the Bill for the abolition of patronage in the Church of Scotland, referred with just pride and honourable satisfaction to the assistance he had received from the deliberations and decisions of the General Assembly of the Presbyterian Church, as exercising great influence, and tending much to promote the success of that ministerial measure. May I not venture to appeal very respectfully to the noble Duke, and inquire whether the Bill now before Parliament for regulating the worship of the Church of England would not have a far better chance of becoming law, and of affording general satisfaction to the clergy and laity of the Church, if similar regard were paid to the deliberations of the Convocations of England as are now being manifested by Her Majesty's Government to those of the General Assembly of the Kirk of Scotland? Let me remind your Lordships of the words of one of the most distinguished laymen of England—Dr. Samuel Johnson—who, when in a time of religious lukewarm-ness, he was rallied by his Scotch biographer, Boswell, on having said that he Would stand before a battery of cannon to restore the Convocation of England to its full powers, replied with a determined look and earnest voice, and said—"And would I not, Sir? Shall the Presbyterian Kirk have its General Assembly, and shall the Church of England be denied its Convocation." I know not, my Lords, whether the noble Earl who has proposed the present Amendment means to press it to a division; for my own part, I would rather be content to leave the matter to the wisdom of Her Majesty's Government, and to the most rev. Prelates who preside over the Convocations of the two provinces, in full confidence that the licence to treat converning ritual matters, which was freely and graciously conceded by the Crown 944 to Convocation, under the recent administration of Mr. Gladstone, may not be denied to Convocation by his successors in office, and that under the paternal authority of the Archbishops of the two provinces, and under the Divine blessing, the deliberations of Convocation may be so guided as to avert the dangers, both civil and religious, which now threaten us, and to conduce in the most effectual manner to the prevention of strife, and to the preservation of peace.
THE ARCHBISHOP OF CANTERBURY
said, that in reply to the concluding observations of his right rev. Brother, he had no hesitation in declaring it would give him great pleasure if Her Majesty's Government would issue Letters Patent under the Broad Seal to Convocation, inviting them to take into consideration a general revision of the rubrics, and he for one should be most ready to lend his assistance in every way, with the view to enable that body to bring its deliberations on the subject to a satisfactory conclusion. It seemed, however, to have escaped many of those who had addressed the House that evening, that the late Government had issued Letters Patent under the Broad Seal, authorizing Convocation to revise the rubrics of the Church, and that the decision of Convocation on the subject was in print and accessible to every one. He felt bound at the same time to add that, after having given the matter their most serious consideration, they—no doubt, for reasons which were very weighty—determined to make very few changes in the rubrics indeed. Among the changes which they declined to make was that relating to the position of the celebrant. Seeing, then, that Convocation had already gone through the subject with great care, he did not himself believe that they would very much vary from the decision at which they had arrived under former circumstances. Perhaps, however, Convocation had refrained from much change in the rubrics, under the impression that there was no power to enforce the law. He thought, therefore, that nothing was more likely to enable Convocation to effect a more complete revision, than that a Bill, such as that under discussion, by means of which the law would be enforced, should receive the sanction of Parliament. If, therefore, Her Majesty's Government should deem it right to issue Letters Patent to 945 Convocation to revise the rubrics, he should be happy to use his best endeavours to bring their deliberations to a happy conclusion. He thought it, at the same time, a mistake for some of those who had spoken in the course of the discussion to suppose that the decisions of Convocation would be all in their own favour. The noble and learned Lord on the Woolsack—for whose lucid statement on a very tangled subject he felt greatly indebted—speaking with all the authority of his high office, had recommended that the House should take the larger portion of the Bill as it stood, and incorporate with it the Amendments of the noble Earl opposite (the Earl of Shaftesbury). For his own part, he did not see that that advice was likely to present any insuperable difficulties in the way of legislation; and as to maintaining the discretion of the Bishops, with the object of preventing frivolous causes, he was sure that if the clergy were polled in reference to the matter, they would all desire that such a discretion should exist. Taking, then, the discretion of the Bishop as provided for in the Bill, and the restriction which the noble Earl opposite proposed to lay on the Bishop's jurisdiction by calling on a person appearing before him to state at the beginning of a suit whether be meant to appeal or not, he saw no good reason why the two propositions might not be combined. As to the question of the Judge, he was convinced that it was desirable to have one Judge who would decide the causes in question; but then the point was one which was beset with difficulty. The noble Earl proposed that the Judge should have a salary of £4,000 a year; but when the question was asked, where was the money to come from? the answer was "Out of the pockets of the parochial clergy, in the shape of payments out of the funds in the hands of the Ecclesiastical Commissioners"—thus absorbing as large an amount as they could pay in one year towards poor livings. Now, that was a point which in his opinion required consideration; but he saw no reason why the difficulties connected with it should not be surmounted. If the noble Duke who had spoken that evening (the Duke of Marlborough) was, he might add, aware of the obstacles with which he and those who had acted with him had had to contend in drawing the present Bill, he would hardly have complained as he had 946 done of the conduct of the right rev. Bench. The noble Duke seemed to be of opinion that it ought not to have been drawn up in camerâ, but in curiâ. He would, however, assure him that the difficulties of drawing it up in camerâ were quite enough. There were now five schemes on the subject before the country, including the schemes pure and simple of the noble Earl and the noble and learned Lord opposite; and if the views of the clergy could be ascertained, he felt satisfied they would be found to prefer the scheme embodied in the Bill now under consideration. The noble Duke surprised him by suggesting that they should not only wait for Convocation, but for the Church Congress, which was to assemble at Brighton in August. He had the greatest respect for the Church Congress, but he did not think the Imperial Parliament could be asked to wait for its decision. With regard to the views of the laity, their Lordships and the other House of Parliament surely might be expected to represent them, and therefore, if the noble Duke wished to ascertain the opinion of the laity, he had only to look to the votes of Parliament. If they were to consider the opinion of ecclesiastical assemblies, their Lordships might have seen some notice in The Times of the proceedings of the body which met at Peterborough last week, where the laity were unanimous in their approval of that measure. He trusted the Bill would be disposed of now. To put it off for another year would be a grave calamity. If there had been excitement, he would ask whether it was desirable that that excitement should continue for another year? The question was ripe for legislation. He had laid before their Lordships the reasons which had made the united Bishops bring that measure forward, and if they failed in receiving their Lordship's approval for taking some steps that night, they would fail altogether. He felt almost convinced that this was the turning point at which their Lordships were to declare whether they were anxious to maintain the principles of the Reformation, or whether they would allow the ancient Church of England to drift away from those moorings which had kept her safe through many a storm.
THE BISHOP OF PETERBOROUGH
, referring to what had just fallen from the most rev. Prelate in reference to the Conference 947 lately held in his diocese, wished to explain, that the laity present, by an unanimous vote, approved the main principles of this Bill; that they also suggested certain Amendments in it, and, on the understanding that those Amendments were adopted, they were unanimously in favour of immediate legislation.
§ THE DUKE OF RUTLAND
, in answer to the Lord Chancellor, wished to say that in his belief, the only reason why their Lordships passed the second reading of the Bill without a division, was that they did so solely out of respect and deference to the Episcopal Bench, and he would therefore appeal to the most rev. Primate and the Episcopal Bench generally, whether in return for their Lordships having agreed to the second reading without a division, and having thus accepted the principles of the Bill, it would not be a graceful and conciliatory act on their part to defer the measure for another year. They had it from the most rev. Primate that if formally authorized to do so, Convocation would proceed to the revision of the rubrics. If that were done, then in another Session two separate measures might be introduced simultaneously, one declaring what the rubrics were, and the other providing the means of enforcing the observance of them. Such a course, he believed, would carry with it the support not only of the clergy and laity, but of all right-thinking men.
said, that although he had given Notice of Amendments to be proposed in Committee, he did not in any way feel himself precluded from voting against the Bill going into Committee at all. He was determinedly opposed to this measure, and also to any legislation of this kind at the present time; but, in the event of that opposition failing, he should then try to make the Bill do less evil than it otherwise would do. In deference to the united wish of the Bishops, and also on account of the many Amendments that were to be made in the Bill, they did not divide on the second reading; but it was rather hard to ask them not to divide now because there were so many Amendments on the Paper. If the most rev. Primate had gone a stop further than he did, and bad said that he had obtained or would seek a licence from the Crown for Convocation to consider the measure concurrently 948 with Parliament, he would have advised the withdrawal of opposition; but they had heard from the Lord Chancellor that it would not be wise to consult Convocation in this way. At first the clergy feared they would be oppressed by certain portions of the Bill, and now that they had seen the way in which Convocation had been treated they were determined to fight for the constitutional rights of Convocation. It might be, as the most rev. Primate said, that the clergy would prefer his Bill before others if they were properly consulted. He was surprised to hear it said that the clergy who had petitioned the House were determined not to obey the law:—on the contrary, he would refer their Lordships to the terms of their declaration to show that they were prepared to stand by the Prayer Book if it were explained by the synods of the Church, and that they recognized the function of Parliament to legislate and of the Courts to interpret the law. If Convocation were consulted as to the rubrics a matter which seemed to be surrounded with difficulty would be simplified, and there would be peace instead of division. In respect of almost every analogous ecclesiastical measure of any magnitude which had been passed by Parliament, the antecedent decision of Convocation on the matter had been distinctly stated. And it was right that it should be so, because the clergy were not represented in the House of Commons, nor were they represented by the Bishops, whom they did not elect, and who sat in the House as temporal Peers. It would involve the risk of estrangement between the Bishops and the clergy to press this Bill without the decision of Convocation, which the clergy were prepared to accept. Why should their Lordships force on legislation and prevent the possibility of the canons being altered by the body which alone in the eye of the law had a right to alter them?
§ THE MARQUESS OF SALISBURY
said, he was extremely desirous that the functions of Convocation should be rightly established, and that all its just rights should be respected; but for this very reason he regretted to see exaggerated claims put forward on its behalf, because they might make its true claims ridiculous. It appeared to him that the present Bill was, in fact, a Bill to amend the Church Discipline Act, and the Church Discipline Act was never referred to Convocation. 949 But he need not even go back so far as that, for the very provisions which had been discussed that evening were introduced by the noble Earl opposite (the Earl of Shaftesbury) some years ago, when nothing was heard about the necessity of the approval of Convocation. The claim now made on its behalf was entirely new, and it was not consistent with the fact to say that Parliament was advancing a new claim or encroaching upon an old and established jurisdiction in proceeding to deal with this Bill. He protested against the competency of Parliament to deal with it being denied, and against its being supposed that any encroachment was thereby made.
§ LORD SELBORNE
said, that there were fifteen Acts relating to Church discipline, from the reign of Henry VIII. down to the Act of Uniformity of Charles II., still on the Statute Book, besides others of later date. These were Acts for the purpose of enforcing the law of the Church, and in no one of them was there the slightest trace of Convocation having been consulted as to the proper mode of accomplishing that object. All that Convocation had ever been asked to settle were questions of doctrine and worship, constitutions and canons; but the law of the land, for the purpose of giving effect to the law of the Church, had, ever since the Reformation, been regarded as matter for the consideration and determination of Parliament alone. It was time to look this matter broadly in the face when some of the clergy said that they would not obey any law which was not made by, or with the consent of Convocation. The clergymen who said that, claimed all the privileges of Establishment, while at the same time they repudiated all its conditions.
§ EARL BEAUCHAMP
said, he believed that if Convocation had been consulted on the Church Discipline Act, the inconveniences now complained of would probably not have arisen. The Amendments of which Notice had been given were so extensive as to make the Bill altogether a new one, and, as the clergy were not represented in that House, it was difficult to ascertain their opinion within a short period unless Convocation happened to be sitting. The clergy were embarrassed as to what were the true motives of the alterations proposed—they did not ask to be relieved 950 from civil penalties, but they wanted to know what really was the law, which as faithful clergy they were quite ready to obey. He contended that the laity were opposed to the measure. The right rev. Prelate who presided over the diocese of Peterborough, in arguing to the contrary, cited the resolutions passed by a diocesan Conference of Peterborough as entirely in favour of this measure. The fact, however, was that the Conference approved the Bill on condition that it was altered in the way they suggested.
THE BISHOP OF PETERBOROUGH
, interposing, said, the Amendments discussed by the diocesan Conference were at the time on the Notice Paper of their Lordships' House, and not Amendments suggested by themselves. The Conference approved, firstly, the main principles of the Bill; and, secondly, asserted the advantage of immediate legislation.
§ EARL BEAUCHAMP
said, that did not materially alter what he had stated. At all events, this was the only definite expression of lay opinion which could be cited in support of the Bill: but many meetings both of clergy and laity had pronounced opinions against it. He did not think the laity of the Church of England were anxious that the Bill should pass, and when it went to "another place," if it should go there, the opinion of the laity would make itself heard. He should vote against going into Committee.
THE MARQUESS OF BATH
said, the most rev. Primate had made a most important communication to the House, to the effect that if Convocation should obtain permission from the Crown, he, on his part, would do his best to promote a revision of the rubrics. He would, therefore, ask whether Her Majesty's Government were prepared to advise the Crown to issue Letters of Business to Convocation? There were questions of still greater importance than were contained in the Bill which would have to be considered if the House went into Committee. The noble and learned Lord (Lord Selborne) had alluded to the position of the clergyman before the altar as one of the matters which the most rev. Primate would bring before the Committee, and had also referred to another subject which it would be only fair to include among those questions 951 —namely, the use of the Athanasian Creed where there was a conscientious objection to its use. This was neither the time nor the place to enter into a theological argument about maintaining the Athanasian Creed in the Liturgy; but this he would say—there were many persons, whose opinions were not to be slighted, who held that the whole of the principles of Christianity were contained within the four corners of the Athanasian Creed. Well, were their Lordships to consider in Committee a Bill which was to render neutral or indifferent a form of faith which the Church had adhered to ever since it had been promulgated? Were their Lordships going to place that on neutral ground, and at the same time were they going to declare that they would punish an unfortunate clergyman who might have a conscientious belief in the importance or expediency of using a dress of one kind or another? These were questions which the House ought to consider to-night, when perhaps they might do more than they desired, and more than any of their Lordships might intend.
LORD ORANMORE AND' BROWNE
said, he had come to the House without any doubt about the vote he should give; but he confessed the course which had been pursued, and the speech of the noble and learned Lord on the Woolsack, had left his mind in a state of confusion, and he did not know what he was going to vote for. The question with respect to the position of the clergyman at the table involved one of the main points at issue; it involved this—whether they were prepared to accept a great extension of the sacerdotal system or not. The view that the celebrant was making an offering for the congregation prevailed largely among the High Church party, and hence it was that the clergy took the Communion without the laity participating in it—which was a practice of the Roman Catholic Church, and entirely antagonistic to the spirit of the Church of England. His principal inducement to vote against the Amendment was the universal exclamation against the Bill by the High Church party.
THE EARL OF LIMERICK
said, that, with the permission of the House, he would withdraw his Amendment, in order that a division might be taken on the Amendment of the noble Duke.
§ Motion (by leave of the House) withdrawn.
Then another Amendment was moved to leave out from the word (" that") to the end of the motion and insert—
("This House while recognising the importance of a revision of the law for the restraint of ecclesiastical offences considers it inexpedient to proceed with the said Bill at present.")—(The Duke of Marlborough.)
§ On Question, That ("now") stand part of the Motion? Their Lordships divided:—Contents 137: Not-Contents 29; Majority 108.
§ Resolved in the Affirmative.953
|Canterbury, Archp.||Spencer, E.|
|Cairns, L. (L. Chancellor.)||Stanhope, E.|
|York, Archp.||Verulam, E.|
|Devonshire, D.||Bangor, V.|
|Grafton, D.||Clancarty, V. (E. Clancarty.)|
|Manchester, D. [Teller.]|
|Richmond, D.||Hardinge, V.|
|Bristol, M.||Portman, V.|
|Hertford, M.||Strathallan, V.|
|Salisbury, M.||Bangor, Bp.|
|Bath and Wells, Bp.|
|Abergavenny, E. [Teller.]||Carlisle, Bp.|
|Airlie, E.||Exeter, Bp.|
|Amherst, E.||Gloucester and Bristol, Bp.|
|Bradford, E.||Hereford, Bp.|
|Brownlow, E.||Llandaff, Bp.|
|Camperdown, E.||London, Bp.|
|Carnarvon, E.||Manchester, Bp.|
|Cathcart, E.||Norwich, Bp.|
|Cawdor, E.||Peterborough, Bp.|
|Chichester, E.||Ripon, Bp.|
|Dartmouth, E.||Rochester, Bp.|
|Dartrey, E.||St. Asaph, Bp.|
|Derby, E.||Winchester, Bp.|
|Ducie, E.||Worcester, Bp.|
|Fitzwilliam, E.||Bagot, L.|
|Fortescue, E.||Belper, L.|
|Granville, E.||Blachford, L.|
|Grey, E.||Bolton, L.|
|Hardwicke, E.||Boyle, L. (E. Cork and Orrery.)|
|Kimberley, E.||Brodrick, L. (V. Midleton.)|
|Leven and Melville, E.|
|Mansfield, E.||Brougham and Vaux, L.|
|Manvers, E.||Carlingford, L.|
|Morley, E.||Carysfort, L. (E. Carysfort.)|
|Pembroke and Montgomery, E.||Castlemaine, L.|
|Rosse, E.||Churchill, L.|
|Shaftesbury, E.||Clanbrassill, L. (E. Roden.)|
|Clements, L. (E. Leitrim.)||O'Neill, L.|
|Oranmore and Browne, L.|
|Clonbrock, L.||Penrhyn, L.|
|Colchester, L.||Plunket, L.|
|Cottesloe, L.||Redesdale, L.|
|Crofton, L.||Romilly, L.|
|Denman, L.||Saltersford, L. (E. Courtown.)|
|De Ros, L.|
|De Saumarez, L.||Saltoun, L.|
|Dinevor, L.||Sandhurst, L.|
|Ebury, L.||Selborne, L.|
|Ellenborough, L.||Sheffield, L. (E. Sheffield.)|
|Ettrick, L. (L. Napier.)|
|Fitzwalter, L.||Skelmersdale, L.|
|Foley, L.||Somerton, L. (E. Normanton.)|
|Grinstead, L. (E. Enniskillen.)|
|Hammond, L.||Stanley of Alderley, L.|
|Hampton, L.||Stewart of Garlies, L. (E. Galloway.)|
|Inchiquin, L.||Strafford, L. (V. Enfield.)|
|Kenlis, L. (M. Headfort.)|
|Kesteven, L.||Vernon, L.|
|Lawrence, L.||Waveney, L.|
|Lisgar, L.||Wenlock, L.|
|Lyttelton, L.||Winmarleigh, L.|
|Lyveden, L.||Wrottesley, L.|
|Monson, L.||Wynford, L.|
|Marlborough, D. [Teller.]||Templetown, V.|
|Rutland, D.||Salisbury, Bp.|
|Bath, M.||Acton, L.|
|Beauchamp, E.||Carew, L.|
|De La Warr, E.||Clinton, L.|
|Devon, E.||De Tabley, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Eliot, L.|
|Foxford, L. (E. Limerick.) [Teller.]|
|Morton, E.||Mont Eagle, L. (M. Sligo.)|
|Powis, E.||Ross, L. (E. Glasgow.)|
|Strathmore and Kinghorn, E.||Silchester, L. (E. Longford.)|
|De Vesci, V.||Wigan, L. (E. Crawford and Balcarres.)|
§ House in Committee accordingly.
§ Clauses 1 to 6 agreed to, with Amendments.
§ Clause 7 (Interpretation of Terms) postponed.
§ THE EARL OF SHAFTESBURY
then rose to propose a series of Amendments, of which he had given Notice, the most important of which were taken from his Bill of 1872, which had been passed by their Lordships' House, and read a second time, in the House of Commons. The principle of his proposition was the appointment of a single Judge for the two Provinces of Canterbury and York, 954 to whom ecclesiastical questions, arising under the Bill, should be referred. If that proposal were agreed to, the rest of the Bill would, no doubt, have to be essentially altered; and, unless it were adopted, all the other Amendments which stood on the Paper in his name would fall to the ground. One great object in appointing a Judge, as he proposed, would be the improvement of the procedure in the Provincial Courts, while, what was most desirable, a feeling of confidence in the impartiality of the tribunal would be secured if a man of experience and standing in the law were placed at its head. Time also would be saved by the adoption of the course which he suggested, for under the present system there might be no less than four hearings. The Judge, if it were desired, would be sent down to try the case on the spot where the offence was alleged to have occurred, thereby saving a great deal of time and expense to the litigants, especially if there were many witnesses. Under the present system the Mackonochie Case lasted nearly three years, and the expenses amounted to several thousand pounds—he was afraid to say how many, but it was nearly eleven. That was a system which they wanted entirely to alter. By his proposal he was informed that with the appointment of a Judge going down to the spot, like an Election Judge, with all the powers of a Judge of one of the Superior Courts, no suit from the time of its being instituted till the time it reached the Privy Council ought to occupy more than three months; while its expense would not be greater than that of an ordinary case at Nisi Prius. In the matter of the institution of a suit, he did not see why they should give a Bishop a larger power than they gave to a Lord Chief Justice. If they went with a case to a Lord Chief Justice, he would say whether it came within his jurisdiction, and if it did so come within his jurisdiction, he could not refuse to entertain the suit. No greater power should be vested in a Bishop's Court than in the Court of Queen's Bench. He had formerly pointed out the impropriety of placing the office of accuser and Judge in the same person, as was now the case with the Bishops. His Amendment would remove that anomaly. His proposal would relieve the Bishops of great anxiety, and also from any charge 955 of partiality. It ought to be a recognized principle that the laity had a right to promote the office of the Judge in those matters, and here by his Amendments they would secure an experienced Judge, whose decisions would extend over the whole range of ecclesiastical law, and might be expected to satisfy both the clergy and the laity. With a view to discourage frivolous and vexatious suits, he proposed to require the parties commencing the litigation to give security, and he would also empower the Judge to fine the applicant who was cast in heavy costs. The noble Earl then moved, after Clause 7, to insert the following new clauses—
- "(a.) The Archbishop of Canterbury and the Archbishop of York may, but subject to the approval of Her Majesty to be signified under Her Sign Manual, appoint from time to time a barrister-at-law who has been in actual practice for ten years, or a person who is or has been a judge of one of the Superior Courts of Law or Equity, or of the Supreme Court of Justice, to be, during good behaviour, a judge of the Provincial Courts of Canterbury and York.
- "(b.) If the said archbishops shall not, within six months after the passing of this Act, or within six months after the occurrence of any vacancy in the office, appoint the said judge, Her Majesty may by Letters Patent appoint some person having the qualifications aforesaid to be such judge.
- "(c.) Such judge shall be ex officio an Ecclesiastical Commissioner for England.
- "(d.) (Sub-section as to other offices held by judge, to be proposed hereafter)
- "(e.) Every person appointed to be a judge under this Act shall be a member of the Church of England, and shall, before entering on his office, sign the declaration in Schedule (A.) to this Act; and if at at any time any such judge shall cease to be a member of the Church, his office shall thereupon be vacant.
- "(f.) Any salary or emoluments which such judge shall be entitled to receive from the said offices shall be paid over by him to the Ecclesiastical Commissioners for England, and all fees payable in respect of proceedings before the said judge under this Act shall also be paid over to the Ecclesiastical Commissioners. The Ecclesiastical Commissioners shall pay to the said judge by equal quarterly payments such salary as shall be assigned by the Queen, by Order in Council, not exceeding the sum of four thousand pounds per annum.
- "(g.) This section shall come into operation immediately after the passing of this Act."
THE MARQUESS OF SALISBUEY
wished to ask the noble Earl whether he attached any importance to the appointment of the Judge by the Archbishops, who might have strong opinions, and who might be liable to a certain amount of suspicion? He did not see 956 any reason for departing from the ordinary practice with respect to the appointment by the Crown of Judges of the Courts of Law.
THE ARCHBISHOP OF YORK
said, that in undertaking the Bill the Bishops did not contemplate litigation—in fact, they believed that if the law was made clear litigation would be unnecessary, and their noble and learned Friend (Lord Selborne) had caught their meaning in his Amendment, and proposed to give them more power than they asked for or were willing to wield; but the noble Earl would give the Bishops no discretion at all, and he therefore obliged the Bishops to vote against a proposition which could not promote peace. It was suggested that the Judge, who was gradually to assume all the offices of the Archbishops, should be appointed by the Crown—which he supposed meant the Prime Minister or the Lord Chancellor; but when it was said that Bishops would be partial, he must ask whether Bishops were the only persons who showed great animus on theological subjects? He had had reason to admire the knowledge and zeal of laymen, but he did not find them devoid of the passions of men when they were warmly interested. The Bishops would have their Chancellors; but the Archbishops would be quite in the hands of this great gentleman. But what would those 800 reverend gentlemen do who had said they would resist a purely secular Court? The High Church party would attach weight to a Court of Church origin; but they would not attach weight to a Court of lay origin; and was this a prejudice which could be entirely disregarded? The Judge was to travel like an Election Judge; but the cases were not analogous, for the Election Judge must hear the evidence of many witnesses who were on the spot, while two witnesses might prove the facts in a case under this Bill; and it would be cheaper to take them to the Court than to take the Court to them. He objected also to the arrangements for the payment of the salary of this new Judge. Formerly the salary of the Ecclesiastical Judge was £3,000 a-year, but in 1872 it was raised to £4,000. He supposed that as the price of everything else had risen the price of Judges must rise in like manner. This, therefore, would not be a reason for rejecting the proposition 957 for appointing a Provincial Judge. But if the payment was to be saddled on the funds of the Ecclesiastical Commissioners, he should advise them to keep the strong box locked and to lend nobody the key. He did not believe litigation in the future would be much greater than it had been in the past. In the Province of York there had been two or three cases of the kind which would come under this Bill in 10 or 12 years; there had not been many more in the Province of Canterbury; and it would be rather extravagant to pay £4,000 a-year for the trial of two cases a-year. When the mediation of the Bishops was to be superseded by this Court he did not value the boon.
THE ARCHBISHOP OF CANTERBURY
said, it was wise to adhere as much as possible to old principles. The Courts of the Archbishops were of great antiquity, and the Church was ready to submit to these Courts with the prescriptive authority they had as Ecclesiastical Courts; and he therefore advised the noble Earl not to deprive them of that character. While hesitating to support the clause, he was anxious that it should be as perfect as possible before they voted upon it. He understood it was provided by the Judicature Bill that no Judge of a Superior Court of Law should hold any ecclesiastical office.
THE LORD CHANCELLOR
said, that whether £4,000 a-year would be sufficient to procure a competent Judge or not, the main question was whence the payment was to come. Somebody must be provided who should be responsible for the salary, and he was bound to say that there was in his opinion no object to which the funds of the Ecclesiastical Commission could be more properly devoted than to the payment of an ecclesiastical Judge. Nor was it a fair way to represent, as a most rev. Prelate had done, that this would be paying the Judge out of the funds of the local clergy. The funds of the Ecclesiastical Commissioners were public funds, and could not be more appropriately applied than to the payment of a competent Judge. He believed no higher Church purpose could be attained than by making a proper provision for a Judge, and that it was fitting that in this instance the salary should be £4,000 a-year. But as he was to be a Provincial Judge it would be straining the point to 958 say that he should be appointed by the Crown. The appointment would very properly be placed in the hands of the most rev. Primates.
§ LORD PENZANCE
said, his objection to the Bill as it stood was that while it provided a new mode of bringing the first steps of the suit, it retained the appeal to the Provincial Court of the Archbishop and also the appeal to Her Majesty in Council. This would not get rid of expense and delay. As to the question of who was to appoint the two Provincial Judge—he was to have cognizance of ecclesiastical causes referred to him by the Archbishops, and he thought, therefore, that the appointment would properly be lodged with them.
§ LORD SELBORNE
said, their Lordships ought to consider whether such a Judge was wanted at all; and, if he were, whether the present was a fitting time for creating him. At the present time, there were two Judges for the two Provinces without any salaries—for the salary of the Dean of Arches was only £5 a-year. This state of things ought not to continue, if there was to be any Ecclesiastical Judicature at all. He thought it desirable to have one Judge for the two Provinces, and would not hesitate to vote in favour of his salary being provided out of the funds of the Ecclesiastical Commissioners.
THE BISHOP OF OXFORD
objected to the course of proceedings now proposed in reference to the prosecution of offenders against the provisions of the Bill. The original Bill was directed to the regulation of Public Worship; its authors had disclaimed the intention of giving a penal character to their measure. The new Bill was an Amendment, in fact, of the Clergy Discipline Act, and it ought, therefore, to extend to all criminal offences committed by Clerks in Holy Orders. In its present form, it would give some colour to the assertion frequently made, that slight errors in matters of ritual and ceremony were considered graver offences than acts of immorality or general neglect of duty. The Amendment would wholly abolish the Bishop's Court. He (the Bishop of Oxford) did not want to magnify his office; but it was an ancient and important office, and if by legislation Bishops were required to be deliverers of sentences prepared for them, some of the Bishops might object to be mere machines 959 in that way. To use a word of the day, they might "strike."
THE MARQUESS OF BATH
said, he did not like either the Bill or the Amendment of the noble Earl; but he believed that Amendment, which was a simple one, would do as little harm to the clergy as it was possible to do to them under the Bill. As to the question of discretion, he hoped the noble Earl on further consideration would consent to leave discretion with the Bishop. He (the Marquess of Bath) asked that not in the interest of the Bishop, but for the protection of the clergy.
§ THE EARL OF CHICHESTER
supported the Amendment, as the best means of providing a really efficient tribunal.
THE BISHOP OF CARLISLE
thought it extremely probable that, if the clauses were carried, the whole of the work under the Bill would fall to the Judge. It was only to be competent for the Bishop to hear a case when both parties agreed not to appeal, but it was most improbable that there would be any such agreement. The case would, therefore, go at once before the Judge, and he would send the result to the Bishop, who, as his humble servant, would pronounce judgment in accordance with it. This was a painful position to place the Bishop in; and it seemed to him that they were, in fact, appointing a Court of Appeal without having first satisfactorily provided a Court of First Instance.
§ On Question, Whether to insert Clause (a.)? Their Lordships divided:—Contents 112; Not-Contents 13: Majority 99.
§ Resolved in the Affirmative,960
|Canterbury, Archp.||Amherst, E.|
|Cairns, L. (L. Chancellor.)||Bandon, E.|
|York, Archp.||Bradford, E.|
|Cleveland, D.||Camperdown, E.|
|Devonshire, D.||Carnarvon, E.|
|Manchester, D.||Cathcart, E.|
|Richmond, D.||Chichester, E.|
|Bath, M.||Devon, E.|
|Hertford, M.||Ducie, E.|
|Lansdowne, M.||Eldon, E.|
|Salisbury, M.||Feversham, E.|
|Abergavenny, E.||Granville, E.|
|Airlie, E.||Grey, E.|
|Harrowby, E.||Carysfort, L. (E. Carysfort.)|
|Macclesfield, E.||Churchill, L.|
|Morley, E.||Clinton, L.|
|Morton, E.||Colchester, L.|
|Onslow, E.||Cottesloe, L.|
|Rosse, E.||Crewe, L.|
|Rosslyn, E.||De Saumarez, L.|
|Sandwich, E.||De Tabley, L.|
|Shaftesbury, E. [Teller.]||Dinevor, L.|
|Sommers, E.||Egerton, L.|
|Spencer, E.||Ellenborough, L.|
|Sydney, E.||Ettrick, L. (L. Napier.)|
|Waldegrave, E.||Fitzwalter, L.|
|Wilton, E.||Foley, L|
|Grinstead, L. (E. Enniskillen.)|
|Clancarty, V. (E. Clancarty.)||Hampton, L.|
|Cordon, V. (E. Aberdeen.)||Hartismere, L. (L. Henniker.)|
|Halifax, V.||Hatherley, L.|
|Hardinge, V.||Lanerton, L.|
|Hawarden, V.||Monck, L. (V. Monck.)|
|Strathallan, V.||Monson, L.|
|Mont Eagle, L. (M. Sligo.)|
|Bath and Wells, Bp.||Oranmore and Browne, L.|
|Gloucester and Bristol, Bp.||Penrhyn, L.|
|Penzance, L. [Teller.]|
|Llandaff, Bp.||Plunket, L.|
|London, Bp.||Redesdale, L.|
|Manchester, Bp.||Robartes, L.|
|Norwich, Bp.||Saltersford, L. (E. Courtown.)|
|Ripon, Bp.||Saltoun, L.|
|Rochester, Bp.||Selborne, L.|
|St. Asaph, Bp.||Skelmersdale, L.|
|Worcester, Bp.||Stanley of Alderley, L.|
|Bagot, L.||Waveney, L.|
|Boston, L.||Wenlock, L.|
|Boyle, L. (E. Cork and Orrery.)||Wharncliffe, L.|
|Braybrooke, L.||Wynford, L.|
|Bristol, M.||Blachford, L.|
|Beauchamp, E.||Foxford, L. (E. Limerick.) [Teller.]|
|De La Warr, E.|
|Nelson, E. [Teller.]||Lyttelton, L.|
|Powis, E.||Ross, L. (E. Glasgow.)|
|Silchester, L. (E. Longford.)|
§ Then, on Question, Clauses (b.), (c), (d.), (e.), (f.), (g.) agreed to, and inserted, in the Bill.
§ Clause 8 (Representation by Archdeacon, rural dean, or parishioner).