§ Amendments reported (according to Order).
§ Clause 7 (Appointment, duties, and salary of Judge).
§ Amendments made.
THE ARCHBISHOP OF YORKmoved, in page 3, line 5, after (" parish ") to insert—
("provided that such owner or tenant shall have his usual place of abode not further than three miles from such church.")
§ THE EARL OF HARROWBYwas understood to object to any limitation of the right, being of opinion that in cases of incumbents acting illegally any person interested in a parish should have the power of bringing the question before the proper authorities.
§ Amendment negatived.
THE ARCHBISHOP OF YORKmoved to insert as a separate sub-section, after ("England")—
("When so ever a vacancy shall occur in the office of official principal of the Arches Court of Canterbury the judge shall become ex officio such official principal, and all proceedings thereafter taken before the judge in relation to matters arising within the Province of Canterbury shall be deemed to be taken in the Arches Court of Canterbury; and when so ever a vacancy shall occur in the office of official principal or auditor of the Chancery Court of York the judge shall become ex officio such official principal or auditor, and all proceedings thereafter taken before the judge in relation to matters arising within the Province of York shall be deemed to be taken in the Chancery Court of York; and when so ever a vacancy shall occur in the office of Master of the Faculties to the Archbishop of Canterbury, such judge shall become ex officio such Master of the Faculties.")
§ Amendment agreed to.
EARL NELSONmoved to insert after the sub-section now agreed to—
("No judge shall be appointed under this Act until a vacancy occurs in the judgeship of the Court of Arches, and until such vacancy the judge of the Court of Arches shall act as the judge under this Act for the province of Canterbury", and the official principal of the provincial Court of York shall act as such judge in the province of York.")
THE ARCHBISHOP OF YORKpointed out that this Amendment would, if agreed to, entirely annul a clause already sanctioned, which gave power to the two Archbishops to appoint a Judge of the New Court within six months.
§ LORD SELBORNEcalled attention to the amount of salary proposed to be given to the Judge of the New Court, and intimated an opinion that the House of Commons would very probably consider that the ecclesiastical funds in the hands of the Commissioners were public property, and that the Court being instituted for ecclesiastical purposes, the Judges' salary should be paid from those funds.
THE LORD CHANCELLORsaid, the clause provided that the salary of the new Judge should be £4,000; but he thought the proposition now made ought to be regarded as provisional only. 143 Their object ought to be to provide such a salary as should secure the services of the ablest man; but, on the other hand, it ought not to be larger than the exigencies of the service to be performed. He thought £4,000 too large, and that it would be better to begin with naming £3,000.
§ LORD SELBORNEsaid, he agreed in the suggestion of his noble and learned Friend on the Woolsack.
§ THE EARL OF SHAFTESBURYsaid, that £3,000 was the sum which he put into all the Bills which he had introduced on the same subject.
§ LORD HATHERLEYfelt confident that £3,000 would be sufficient. A larger sum might cause the shipwreck of the Bill in "another place."
§ Motion negatived.
§
Amendment moved to insert—
("Any salary or emoluments which such judge shall he entitled to receive from the said office, other than the office of judge under this Act, shall he paid over by him to the Ecclessiastical 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 three thousand pounds per annum.")
§ Amendment agreed to.
§ Clause 8 (Representation by Archdeacon, rural dean, churchwarden, or parishioners).
EARL NELSONmoved to add a Proviso—
("And that after the 1st of January, 1877, no proceeding shall be begun under this Act as regards any alteration in or addition to the fabric of the church, or any decoration introduced into the church which has not been made or introduced within the last preceding two years.")His object was to prevent an incumbent being proceeded against for anything which might have been done by his predecessor. If anything had been in a church for two years, people would have become used to it, no offence was felt, and there might be as much objection to its removal as there might have been in the first instance to its introduction; and when people had become accustomed to things they ceased to have any meaning, and therefore it was not worth while disturbing the peace of a parish by interfering with them.
THE ARCHBISHOP OF YORKsaid, the Amendment would make that which was unlawful in itself lawful by prescription.
§ THE MARQUESS OF SALISBURYsaid, it did not follow that there should be an unlimited time allowed for the commencement of proceedings. In some cases the removal of ornaments to which the people had become accustomed would cause heart-burnings in the parish. He thought some limit should be enacted.
THE EARL OF KIMBERLEYsaid, a distinction should be made between the fabric of a church and the ornaments used in a church. The fabrics could not be altered without much expense, but ornaments were illegal, and could be easily removed at any time.
After a short discussion, in which the Marquess of BATH and Lord SELBORNE took part,
THE LORD CHANCELLORapproved the object of the Amendment, but suggested that the matters or things which might be the subject of proceedings should have been introduced within the preceding five years.
§ Amendment (by leave of the Committee) withdrawn.
§
Then Amendment made—
Provided that no proceedings shall be taken under this Act as regards any alteration in or addition to the fabric of the church completed five years before the passing of this Act.
§ THE DUKE OF RUTLANDproposed to add Proviso to Clause 8—
("Provided always that in the case of the complaint being made by the churchwardens or any three parishioners before representing the same to the Bishop they shall duly summon a vestry of the said parish, and submit the cause of complaint to the said vestry, and according as the said vestry by its majority shall decide, they shall forward to or withhold the said complaint from the Bishop, the names of the voters and how they voted being recorded in the minute sent to the Bishop.")He considered that this provision would be a great safeguard. The vestry would act as a sieve through which the complaint would be strained—the wheat would be kept, and the chaff swept away.
THE BISHOP OF LONDONtrusted that the noble Duke would, at all events, except the diocese of London from the operation of the Amendment. There were a great number of the churches in London that had no connection with any vestry. For instance, in the parish of 145 St. Pancras, there was but one vestry and 28 churches, and in Marylebone there were 26 churches. The fact was, the vestries of those places had no more to do with some of the churches than any other vestry in England. He could not see how such a procedure as that proposed by the noble Duke could be considered as likely to promote harmony in a parish.
THE MARQUESS OF BATHalso recommended the noble Duke not to press the Amendment, while he was at the same time of opinion that some such safeguards as his noble Friend contemplated would be required. The pretext for this Bill was that the feelings of the congregation were not respected; but by the Bill the feelings of the congregation were entirely ignored. The only person to whom the incumbent would have to look for protection would be the Bishop; and who would be opposed to him? Not the congregation, but some two or three persons who would be set in motion by a Church Association.
LORD DYNEVORdefended the Church Association from the attack of the noble Marquess. He was a member of the Church Association, and the reason was because the Bishops had, over and over again, declared it impossible for them to keep some of their clergy in order. He knew a large city in which practices were carried on which the Bishop was most anxious to put a stop, but could not, and the Bishop told him so. One Prelate informed him that he was £3,600 out of pocket by a case he had taken up. Under these circumstances, people were justified in uniting and forming an association. There were many clergymen who avowed that their object was to substitute the Mass for the Communion of the Church of England.
§ Amendment negatived.
§ Amendments made.
§ LORD COTTESLOE, moved, in line 6, after (" Parties") to insert—
("Provided always, that in any case in which the person complained of, and also the person or persons making the representation, state their willingness to submit to the direction of the bishop without appeal, the bishop shall, before proceeding to hear the case, give notice in a form as contained in Schedule (D.) to this Act; and if after the issue of such notice the archdeacon, rural dean, churchwarden, or three parishioners as aforesaid shall be of opinion that he or they have just reason to object to the re-presentation 146 made to the bishop, he or they may, either personally or in writing, make such statement to the bishop as they may think necessary in relation to the facts of the case as laid before the bishop, and as regards the wishes and opinion of the parishioners generally on the subject matter of the representation.")The Marquess of BATH and the Archbishop of YORK opposed the Proviso.
§ Amendment negatived.
EARL NELSONmoved an Amendment in sub-section (b), line 9—
That the Judge shall order the complainant to give security for costs in such an amount as he may deem expedient, and until such security be given the proceedings shall be stayed.
§ Amendment agreed to.
THE ARCHBISHOP OF YORKmoved, in sub-section G, to strike out—
The Bishop on receiving the Report of the Judge shall proceed to give judgment in accordance with the Report, &c,and insert instead—The Bishop on receiving the judgment from the Judge shall issue such monition (if any) and make such order as to costs as the judgment may require.
THE LORD CHANCELLORremarked that the Amendment would make the judgment not that of the Bishop, as had heretofore been intended, but that of the Judge.
THE ARCHBISHOP OF YORKpointed out that, by the alteration proposed, while the Judge would give the judgment, the Bishop would have to issue the monition. The Bishop would not, therefore, be placed in the undesirable position of being the mere mouthpiece of the Judge.
§ Amendment agreed to.
THE ARCHBISHOP OF YORKmoved, in line 4, leave out ("and report"), and leave out from the third ("and") to the end of the sub-section, and insert—
("Determine the question or questions arising thereon, and any judgment pronounced by the bishop shall be in conformity with such determination.")
§ Amendment agreed to.
§
In line 6, leave out from ("the") to the end of the sub-section, and insert—
("judgment from the judge, shall issue such monition (if any), and make such order as to costs as the judgment shall require.")
§ Clause 11 (No fresh evidence to be admitted on appeal), agreed to.
EARL NELSONmoved, after Clause 11, to insert the following clause—
In proceedings under this Act the costs shall abide the final judgment, except otherwise directed by the Court which pronounces judgment; and such costs shall be taxed and levied in the mode prescribed.If it appear that any plaintiff has made any groundless or frivolous claim or complaint, or that any defendant has set up any groundless or frivolous defence, the Court may order such plaintiff or defendant to pay, as between attorney and client, the whole or any part of the costs occasioned by making such groundless or frivolous claim or complaint, or setting up such groundless or frivolous defence (as the case may be); and such costs shall he taxed in the mode prescribed.
§ Amendment negatived.
§ Clause, as amended, agreed to.
§ Clause 12 (Inhibition of Incumbent.)
THE ARCHBISHOP OF CANTERBURYsaid, that there might be a long interval during which the appeal was going on, and a provision to enforce the monition while the appeal was in progress might be of great importance. He did not see why the Judge should be put in a different position from the Judges of other Courts.
§ Amendment negatived.
EARL NELSONmoved, in page 7, line 5, after ("void") to insert—
("Unless the Bishop shall, for some special reason stated by him in writing, postpone for a period, not exceeding three months, the date at which, unless such inhibition he relaxed, such benefices or other ecclesiastical preferment shall become void as aforesaid.")In line 22, after (" preferment ") insert—("Any question as to whether a judgment or monition given or issued after proceedings before the judge has or has not been obeyed shall be determined by the judge, and any proceedings to enforce obedience to such judgment or monition shall be taken by order of the judge.")
§ Amendment agreed to.
THE ARCHBISHOP OF CANTERBURYproposed after Clause 15 to add the following clause—
Whenever the visitor of any cathedral church shall during his visitation, thereof have any doubt as to the law affecting any of the matters which could under this Act have been made the subject of a representation to the 148 bishop if such cathedral church had been a parish church, the visitor shall have power to state any question of law in a special case for the consideration of Her Majesty's Court of Appeal in Ecclesiastical Causes, and such Court shall have power to hear and determine the same; and any judgment, ordinance, or monition of the said visitor shall be in conformity with such determination; and there shall be no appeal from such judgment, ordinance or monition upon any question so determined by the said Court. Notwithstanding any restriction by statute or custom of the periods at which the visitor of any cathedral church shall have power to visit the said cathedral church, it shall be lawful for him to hold a visitation whenever it shall appear to him expedient to do so. An appeal (except as hereinbefore excepted) shall lie direct from any judgment, ordination, or monition of the said visitor pronounced, made, or issued under this section to Her Majesty in Council, and Her Majesty in Council may refer the same to Her Majesty's Imperial Court of Appeal as constituted by the Supreme Court of Judicature Acts 1873–1874. Nothing in, this Act contained shall make it lawful for the visitor to direct that a Faculty from the ordinary shall be applied for in any case in which before the passing of this Act such direction could not lawfully have been given; but it shall be lawful for the visitor in any judgment, ordinance, or monition issued as aforesaid, to give directions as to the fabric of such cathedral church, or to the ornaments, furniture, or decorations thereof. No direction shall be given under this section in regard to any alteration in or addition to the fabric of any cathedral church which has been completed five years before the passing of this Act.
§ THE MARQUESS OF SALISBURYobjected to bring cathedrals under the Bill. He thought it should be confined to parish churches, and the grievances of the congregations arising from unlawful practices carried on in them. The same grievances could not arise in respect of cathedrals, in which the laity had no interest. He was afraid that when the Bill got down to "another place" it should be seen that all members of the Church, and all holding office in it, were brought under the operation of the Bill—except the Bishops—it would be asked—Who introduced the Bill? The Bishops. He did not think that would give the House of Commons a very exalted idea of the mode in which the Bill had been proposed and passed through Parliament. There was no reason for bringing the Deans and Canons under the Bill, which did not equally apply to Bishops. It would be gross partiality to extend the Bill to cathedrals and not to include the Bishops.
§ THE EARL OF HARROWBYsaid, that they were often told that the cathedrals 149 were the parish churches, and intended to be the model churches of the dioceses, and if Deans and Canons broke the law there ought to be a remedy. All persons were deeply concerned in the worship performed in the cathedrals, and it ought to be such worship that all could take part in. It would be a most dangerous thing to except the Deans from the operation of the Bill, and thus allow them to carry out any fancies they might indulge in. The noble Marquess (the Marquess of Salisbury) would put the cathedrals in an exceptional position, in which they ought not to stand. It was never to be forgotten, that the main purpose of churches was for the laity, and not for the clergy, who minister in them.
§ LORD LYTTELTONconsidered that the laity of the whole diocese were deeply interested in what took place in their cathedral, and therefore the clause ought to be supported.
THE BISHOP OF CARLISLEwas very glad that cathedrals, if not excepted altogether from the Bill, were, at all events, not to be dealt with as parish churches. He considered the clause proposed to be unobjectionable, as it merely explained and defined the existing law and made it clear that a Bishop had a right to visit his own cathedral, and that his doing so could not be regarded as an intrusion.
THE BISHOP OF OXFORDsaid, that some Bishops were not visitors of their own cathedrals, but "ordinaries" only, and he supposed that in these cases they would have no power to exercise over the cathedral clergy the duties proposed by this Bill. It was no concern of his to defend a Bill the policy of which was virtually Lord Shaftesbury's, or the policy of the Bill at all; but it was gratuitous to assume, as the noble Marquess had done, that the object of the Bishops was to obtain for themselves an amount of power over all other persons for their own honour and glory. The noble Marquess might give the Bishops credit for something higher than that. The Bishops were charged with the maintenance of the law by Church and State alike; in order to discharge their duty they were bound to see whore their power failed; and they might properly ask for more power if it were necessary for them to possess it.
§ EARL BEAUCHAMPtrusted their Lordships would not agree to the clause. The independent status of the cathedrals during the last century and a half had done much to produce a higher standard of public worship, and he hoped they would not be deprived of that independent status.
THE BISHOP OF GLOUCESTER AND BRISTOLcontended that these clauses gave no more power to the Bishops than they already possessed, but they made the law more clear and definite.
THE MARQUESS OF SALISBUBYtook exception to the words "notwithstanding any restriction by statute," &c., as increasing the power of Bishops.
THE ARCHBISHOP OF CANTERBURYconsented to omit the word "statute," and so limit the reference to restriction by custom.
§ Amendment made.
§ Clause, as amended, agreed to, and added to the Bill.
§ THE EARL OF DEVONmoved after Clause 16, to insert the following clause:—
And whereas, with regard to the mode of performing public worship in the Church of England it is desirable to diminish as far as possible occasions and causes of litigation: Be it enacted, that no proceedings shall be taken under the provisions of this Act in reference to any acts or omissions in the performance of public, worship which shall have been canonically declared by the synods or convocations of this realm, acting under the licence of the Crown, to be permissible, if such declaration has been confirmed by the authority of Parliament.The noble and learned Lord on the Woolsack, on the first night of the debate on this Bill, suggested that it would be expedient that there should be an area within which certain variations in the mode of performing the services of the Church should be permitted. He entirely concurred in that view. Assuming that course to be desirable, the question, however, was, who were to decide the limits of variation and the matters upon which liberty of action was to be allowed? The Bishop of Peterborough gave notice that he would propose that Parliament should decide; but the right rev. Prelate, in the exercise of a wise discretion, thought it better afterwards not to proceed as he had at first intended. That being so, the question remained, who were to decide? It seemed to him, both from precedent and 151 principle, that the proper parties to decide were, in the first place, subject to the subsequent confirmation of Parliament, the Convocations or Synods of the Church acting under licence from the Crown. He very much rejoiced to have heard from the most rev. Primate (the Archbishop of Canterbury) that it was his intention to apply to the Crown for permission for Convocation to enter upon this subject, and he hoped the Government would see themselves justified in advising the Crown to accede to the proposal.
THE BISHOP OF LONDONsaid, the noble Earl (the Earl of Devon) proposed to call into operation a very considerable machinery, which it might be desirable to set in motion, but which he certainly attempted in a very undesirable way. The noble Earl proposed that Convocations or Synods of the Church should have power to revise and review the whole Prayer Book—not for the purpose of amending the rubrics but for the purpose of picking certain parts of them which it would be permissible for the clergy not to obey. Such a mode of legislation was pessimi exempli, and was out of harmony with the entire object of the Bill, which was to protect the laity and parish congregations from that extreme liberty which from various circumstances during the last 30 or 40 years had prevailed. But this Amendment would give still greater liberty to incumbents to make alterations at their own will, and really amounted to unlimited licence in the mode of conducting public worship. The proper way to deal with this matter was not to legalize acts contrary to law, but to amend the rubrics. Their Lordships had been good enough to-night to give a first reading to a Bill which he had laid upon the Table, the object of which was to give the Queen in Council power to give effect to schemes which had been proposed by Convocation, those schemes having been laid before Parliament and not objected to. If that Bill passed, such alterations would be made as Parliament might think desirable.
THE LORD CHANCELLORsaid, the clause proposed by the noble Earl was one which could not possibly be introduced into the Bill. But he desired to say a few words in reference to the statement of the noble Earl as to the Bill he had introduced to give power 152 to Convocation to propose alterations in the rubrics. After the Ritual Commission, as it was called, had made its fourth Report, the most rev. Primate who presided over the province of Canterbury applied to the Crown, in 1871 or 1872, for "Letters of Business" to authorize them to consider the subject matters of that Report. The Letters were issued, and Convocation was actively engaged under them when the Dissolution of Parliament occurred. Application had recently been made for a renewal of those Letters of Business, and Her Majesty's Government had, as a matter of course, agreed to renew or continue them. This would have been done sooner if the application had been made at an earlier period. Convocation, therefore, now had the power of considering whether any alterations of the rubrics should be made.
THE ARCHBISHOP OF CANTERBURYexpressed his gratification at the announcement just made by the noble and learned Lord on the Woolsack; but he wished to say that he lost no time in making application to Her Majesty's Government for the renewal of the Letters of Business. He was not one of those who thought that Parliament was not a proper assemblage to determine ecclesiastical questions, such as they had been lately considering. Parliament had always legislated for the Church of England. It had, indeed, been alleged that the extraordinary changes made in its constitution in recent times rendered it incapable of performing the duties which it satisfactorily performed when it passed the Uniformity Acts. But it should be borne in mind that, when those Acts were passed, members of the Roman Catholic Church sat in the House of Lords, while Nonconformists occupied seats in the House of Commons. Moreover, it should be remembered that just prior to the repeal of the Test and Corporation Acts members of nonconforming bodies sat in the other House of Parliament. Therefore, although changes had taken place in the constitution of the other House during the past 40 or 50 years, he did not see any force in the argument that he had departed from the constitutional course in asking that Parliament should deal with the matters contained in this Bill. Still there had always been a great desire to know the opinions of the clergy before 153 Parliament legislated on these subjects, and he was glad to learn that the rubrics would soon be re-considered, not under the excitement produced by this innocent Bill—as he deemed it—but calmly and leisurely as the necessities of the case required. The Bill had given their Lordships much trouble; but he submitted that the Bishops had acted under a distinct perception of their duty in bringing it forward. When the present excitement had disappeared, people would find that it was a measure not to alter the law of the Church of England, but simply a Bill to enable that law to be administered more speedily and more efficiently.
§ Amendment negatived.
THE ARCHBISHOP OF CANTERBURYmoved, after Clause 17, to insert the following clause—
Nothing in this Act contained shall he construed to extend to the following places:—The chapels of the colleges and halls in the Universities of Oxford, Cambridge, and Durham; the University Church of any of the said Universities when used by such University; any chapel coming under the provisions of section 31 of the Public Schools Act. 1868, or under the provisions of section 53 of the Endowed Schools Act, 1869; any chapel coining under the provisions of the Private Chapels Act, 1871.
THE LORD CHANCELLORproposed to amend the clause by extending the exemption to the chapels of Lincoln's Inn and Gray's Inn and to the Temple Church.
§ Amendment agreed to.
§ Clause, as amended, agreed to, and added to the Bill.
§ Bill to be read 3a on Thursday next, and to be printed, as amended. (No. 123.)