HL Deb 09 August 1881 vol 264 cc1346-65

Order of the Day for the Second Reading read.

EARL BEAUCHAMP, in moving that the Bill be read a second time, said.: My Lords, I shall endeavour, as far as possible, to abstain from entering into the merits of what is known as the Ritualistic Question; but I think, that in order to make my Bill clear, it is necessary that I should explain to your Lordships, in as few words as I can, the circumstances attending the passing of Thorogood's Act, in the year 1840, when a Bill was brought into Parliament by Lord John Russell and Lord Morpeth which dealt with the case of Mr. Thorogood. He was then a prisoner in Chelmsford Gaol for not appearing to a citation in an Ecclesiastical Court to show cause why he refused to pay sums of money assessed upon him for church rate. Your Lordships will observe that Mr. Thorogood was not in prison for refusing to pay church rate. I do not complain of it; but he had adopted a course which put that out of the question, and he was in prison solely for refusing to appear to a citation in an Ecclesiastical Court, as is the case with Mr. Green. He had been in prison for a period of 18 months, after a good deal of litigation; and on the 30th July, 1840, Lord John Russell and Lord Morpeth brought in the Bill which afterwards passed into law. Mr. Thorogood was a Quaker, who had conscientious objections to the payment of church rates, and his imprisonment under the circumstances I have mentioned had given rise to a good deal of scandal and of hostile feeling amongst various parties. It therefore appeared to the Government of the day undesirable that he should any longer languish in prison, and the Act was passed which is known by the name of Thorogood's Act, although. I need not say the name does not appear within the four corners of the Act. It empowered the Privy Council, or the Ecclesiastical Judge in whose Court the case was tried, to order the discharge of persons in custody under a writ de contumace capiendo; but there was a proviso that no such order should be made by the Privy Council or the Ecclesiastical Judge without the consent of the other party or parties to the suit, and another proviso— That in cases of subtraction of church rates for an amount not exceeding £5, where the party in contempt has suffered imprisonment for six months and upwards, the consent of the other parties to the suit shall not be necessary to enable the Judge to discharge such party so soon as the costs lawfully incurred by reason of the custody and contempt of such party shall have been discharged, and the sum for which he may have been cited into the Ecclesiastical Court shall have been paid into the registry of the said Court, there to abide the result of the suit, and the party so discharged shall be released from all further observance of justice in the said suit. The Bill was very carefully considered both in the House of Lords and the House of Commons, and underwent various amendments. The House of Commons proposed that the limit of imprisonment should be 12 months; but the House of Lords diminshed the term of imprisonment from 12 months to six. Lord John Russell, in the debate on the Bill, said that he believed things were in such a state that if they were to get Mr. Thorogood discharged from prison a Bill must be introduced for the purpose, and in pursuance of that belief the Bill was introduced. A debate occurred, in which many eminent men took part, and the Bill was the result of careful consideration, and was accepted as a compromise in a matter which had given rise to considerable feeling. In the case of Mr. Thorogood, he objecting from conscientious reasons to the payment of the money, it was found by other parties, and Dr. Lushington, of his own motion, released Mr. Thorogood from prison. The Act is by no means obsolete, for in the course of the last few years it was used in the case of Mr. Tooth, apprehended under a writ de contumace capiendo, but discharged from custody by the Judge of the Ecclesiastical Court, with the consent of the parties to the suit. At the present moment, unless the consent of the other parties to the suit is given, the person in prison cannot be discharged. Now, my Lords, a case has arisen to which I must refer—namely, the case of the Rev. Sidney Green, now in prison under a similar writ ever since the 19th March last. In the year 1840, as I have said, Parliament gave relief by passing a measure which had the effect of releasing from prison a Quaker who entertained conscientious objections to submitting to the jurisdiction of the Ecclesiastical Courts. I now ask your Lordships to read a Bill a second time which will meet the case of the Rev. Sidney Green, in prison for the like cause, and enable him to be released from prison at the expiration of six months. There are various ways of looking at the case of Mr. Green. It may be looked at technically as regards the contempt, and it might be looked at it in its moral aspects as bearing on the whole Ritual Question, and more particulary as regards the wearing of vestments during the performance of Divine Service. As regards the moral aspect, as bearing on the whole Ritual Question, I wish to dismiss it as briefly as possible; but I may very fairly ask your Lordships why this particular congregation, consisting, as it does, of poor persons, should be singled out for attack by the Church Association? Mr. Green is a person who has been labouring for many years of his life amongst the poor and neglected; he has brought his parish into a very high state of organization; his schools are excellent, and he enjoys the esteem and regard of the whole parish. There are certain persons whom he may have offended; but I ask your Lordships why this congregation should be selected for disturbance, and why Mr. Green, whose character is, in the highest degree, all that a clergyman's should be, should be subjected to this harassing conduct on the part of the prosecutors, the Church Association, while rich congregations are left completely undisturbed, and persons who have powerful friends are allowed to pursue, without check or hindrance, precisely the same practices as Mr. Green has been pursuing? I may go a step further, and say that the Bishop of Manchester himself, who allowed the case against Mr. Green to go, does not profess to observe the law for the non-observance of which Mr. Green is now in prison. The Bishop of Manchester, he being asked how to reconcile this with his own conscience, said that when he was invited by his archiepiscopal superior to wear the legal vestments—which he did not then wear—it would be time enough for him to consider what course he should pursue. I do not think, under these circumstances, any good case has been made out why Mr. Green should be selected for prosecution, when the Bishop of Manchester himself, his ecclesiastical superior, does not comply with the law under which Mr. Green is now languishing in prison. There are legal questions connected with the case with which I need not trouble your Lordships; but there is one very serious question which I will shortly advert to. The whole contention turns upon whether certain advertisements, published in the reign of Queen Elizabeth, are, or are not, in force in the Province of York. The Privy Council has held that they are in force in the Province of Canterbury, although there is some doubt about how far they are in force there; but I believe I am quite right in saying that there is not the faintest shadow of reason for supposing that the advertisements in question ever ran in the Province of York. I only mention this to your Lordships to show that the matter is one of considerable doubt and complexity. As regards the moral aspect of the case, therefore, Mr. Green may contend that the matter for which he is in prison is one of considerable doubt; but I pass this question by. Mr. Green is in prison, technically, for a contempt of Court, and for nothing else, as was also Mr. Thorogood; and I wish to draw your Lordships' consideration to reasons why the law under which he is now in prison should be amended so as to enable him to be released at the end of six months. He is in prison for contempt of Court, and I am forced to ask your Lordships whether the Court which he has contemned is one which receives such universal respect as that a man is to be thrown in prison because of his not obeying its commands? My Lords, it is enough for me to say that so much difficulty exists in the minds of men on the subject of this Court that in the early part of this Session your Lordships were moved to vote an Address to the Crown, praying for a Royal Commission to inquire into these Ecclesiastical Courts. That Address was moved by the Lord Archbishop of Canterbury, who, I pre- sume, had sufficient grounds for making that Motion. Certainly it was agreed to by your Lordships; and I think, under those circumstances, it may fairly be contended that the Court Mr. Green has contemned is not entitled to that unquestioning obedience which would entitle its every order to be received with undoubting submission. I may at least say that the Court itself has given so much dissatisfaction that it may be said to be on its trial. A noble Earl opposite shakes his head; but I say if there was no dissatisfaction why was the Inquiry moved for? Persons may shut their eyes to the facts of the case, but nobody can deny that the Court has given great dissatisfaction, and that the subject requires the investigation which it is now receiving at the hands of the Royal Commission. My Lords, it is said that Mr. Green has only to submit himself to the judgment of the Court to obtain his release. I know that that is the case; but I will tell your Lordships why he cannot submit himself to the Court. He conscientiously believes that it would be wrong for him to do so. But even assuming that that belief of Mr. Green is ill-founded, I ask, has not the punishment which he has suffered been sufficient for the wrong which he has committed? That is the question which we have to ask ourselves. Supposing the Court was perfect in its constitution; supposing that all its dicta had been such as to command the unquestioning assent of the minds of men, I still ask whether the imprisonment which Mr. Green has now suffered is not a sufficient punishment for his wrong-doing? Punishment should bear some proportion to the offence committed, and if Mr. Green should remain in prison for three years, or all his life, a punishment would be inflicted revolting to the consciences of men. It is the indefiniteness of the punishment which makes it so severe and cruel. If we could measure it we might estimate its proportion to the offence, but we cannot. We do not know how long this imprisonment may continue, and I do ask your Lordships seriously to consider whether a punishment of six months is not an imprisonment amply sufficient for the offence which Mr. Green has committed. If he had been subjected to the sentence of the Ecclesiastical Court for any of the gravest offences which a man could commit; if he had been proceeded against and excommunicated for incest, he could not be imprisoned for a longer period than six months, because the writ de excommunicato capiendo which runs in consequence of such proceedings in the Ecclesiastical Court can imprison a man for no longer a period than six months—and, therefore, if Mr. Green had committed the most aggravated offence to which I have referred, his imprisonment could not be for a longer period than six months. I need not cite the case of the Ecclesiastical Courts, but I will take the case of offences outside the jurisdiction of the Ecclesiastical Courts. It is within my own knowledge that in a deliberative Assembly of high antiquity, and possessed of august privileges, when the privileges of that Assembly were set at naught and its authority contemned, a person bound to obey its orders was imprisoned; but how long was that person imprisoned? One night's imprisonment was held to have purged his offence, and he was released without any promise exacted with regard to the future. My Lords, if an officer in a railway train criminally assaults a woman who may be in the same carriage with him, he is committed to prison for one year, and at the end of that period he is released. I ask your Lordships whether an indefinite imprisonment hanging over the head of an exemplary clergyman, because he conscientiously objects to the jurisdiction of a Court, is not a punishment revolting to the consciences of men? Such a state of things would never have been deliberately adopted, but must have been brought about in consequence of some complication of ecclesiastical law, which complication I now ask your Lordships to disentangle. But, my Lords, it may be said—and this is an argument which I dare say we shall hear advanced by those who, I think, might show more sympathy with Mr. Green—that he should not be released without a guarantee for the future against further lawlessness. It must be remembered that Mr. Green is not in prison for the offence of wearing vestments—he is in prison for contempt of Court; and I do not myself understand how the arguments with regard to the practice complained of can be urged when he is in prison, not for the performance of those practices, but simply for having contemned the jurisdiction of the Court. It is obvious that if inability to accept an interpretation of an historical fact as to the use of vestments is lawlessness, it is lawlessness of a very different character to that which to the minds and consciences of men commends itself as a fit subject for such punishment. The Judicial Committee of the Privy Council has given divers judgments on this point as to the wearing of vestments. The Judicial Committee, in the case of "Westerton v. Liddell," decided that the vestments worn by Mr. Green were legal. In the case of "Clifton v. Ridsdale," which is now thought to be law, what did the Judicial Committee of the Privy Council say? If the only law as to the vestments is to be found in the Ornaments Rubric, clearly the vestments of Edward VI. fall within the law. That is the judgment of the Privy Council in the very case under which Mr. Green is imprisoned. I think your Lordships might view with indulgence the conduct of a gentleman who, conscientiously believing that that which he saw was black and not white, declined to commit himself to the statement contrary to his plain belief. As regards the view taken by some that Mr. Green should promise to conform in future to the decisions of the Judicial Committee of the Privy Council, I say that is not the point before your Lordships. The point before your Lordships is a very narrow one—namely, whether the punishment which Mr. Green has suffered, and is suffering, is not sufficient for the technical offence of contempt of Court which he has committed? I cannot understand, if he be a criminal, why he should be treated in an exceptional manner. Thieves, burglars, and convicts of all descriptions, when they have undergone their punishment, are released from prison without any engagement being asked for the future. They are set free, and if they offend against the law again, they are subject to the penalties of the law and again imprisoned. What did Lord John Russell say in the debate on Thorogood's Act as regards this part of the subject? He said that the vindication of the law seemed to him to be often better maintained by taking no notice of such offenders, just as Sir Robert Walpole had said on one occasion—"The hon. Gentleman wishes to be committed to the Tower, but I shall do no such thing." I contend that Mr. Green has suffered enough for the offence he has committed. Mr. Green's parishioners were naturally asking why they were deprived of his ministrations, thinking that a man who had undergone sufficient imprisonment ought to be released. I dare say we shall hear something of our old friend the aggrieved parishioner, and we shall, no doubt, be told that the parishioners of Miles Platting have a right to the performance of Divine Service in accordance with the law. I am bound to say, with regard to that, that I do not think very much consideration is due to the bogus parishioners who were put forward to enforce the law at Miles Platting. I call them bogus parishioners for this simple reason, that in the bill of costs which Mr. Green is called upon to pay there is an item of no little singularity, which I do not think will commend itself to many of your Lordships' sense of justice. There is a charge made by the solicitors for the prosecution—and Mr. Green having been condemned in costs is bound to pay it—for the correction of a mistake, it having been ascertained that one of the proposed complainants had not completed the residence in the parish required by law. Seeing that the solicitors for the prosecutors are sending in this bill to Mr. Green, and asking him to pay for a mistake which had been made in consequence of one of the complainants not having resided in the parish during the time required by law, I think I am justified in saying that the parishioners who have brought this case forward are only nominal prosecutors. The real prosecutors being, as I believe, the Church Association—which I say without fear of contradiction—and the nominal prosecutors being merely bogus parishioners, I do not think they are entitled to much consideration at your Lordships' hands. These are the very parishioners who were summoned to attend the Bishop of Manchester, and declined the invitation; but, notwithstanding, the Bishop of Manchester thought it his duty to exercise his discretion, and allow the prosecution to proceed. The Services which are being carried on in Miles Platting church are neither more nor less than exactly the same as they were before Mr. Green was imprisoned. There is no doubt whatever that the gentleman officiating holds the same views as Mr. Green, and that the practices complained of will be continued until a prosecution is instituted, although after what has taken place it is very improbable that another prosecution will be instituted in that parish. I venture to doubt whether the Bishop of Manchester would allow another prosecution to be instituted, which has been so discreditably conducted. The proceedings have been stigmatized by the noble and learned Lord on the Woolsack as a scandal. I shall not apologize for the use of that expression. They have been stigmatized as a scandal, and I am justified in making the observations I have made with regard to the prosecutors in this case. But, my Lords, the Public Worship Regulation Act was enacted, we were told, to protect the rights of parishioners. Let us consider for one moment the state of the parish in which Mr. Green has so long ministered, and the view taken of his conduct by his own parishioners. The population of the parish is about 4,500; there are 370 children in the day schools; the communicants, excluding those on week days and saints' days, on an average of the 12 months, are 45 a-week. A Petition has been presented for the release of Mr. Green, signed by 940 householders out of a total number of 1,140, and I think, therefore, I may fairly assume that the ministrations of Mr. Green are such as to commend themselves to the majority of the parishioners. As far, therefore, as the aggrieved parishioner is concerned, the case has entirely failed. There is not a shadow of pretence for saying that any real parishioner has been aggrieved, for,-in order to make up the number required for this miserable prosecution, a gentleman is brought in who, at the time of the institution of the proceedings, had not completed the term of residence required by law. What is the treatment to which Mr. Green, a conscientious clergyman, who has spent 15 years in labouring amongst the poor and neglected of his parish—what is the shameful treatment to which he has been subjected? A letter was addressed by Mr. Green to the noble and learned Lord on the Woolsack, in which he described the treatment to which he had been subjected by the bailiffs who were put in possession of his rectory by the Church Association. This letter was written some time ago; but the treatment he complains of has been renewed subsequently, and his goods sold. He says that the bailiffs were put into his house on the 24th January, and continued there without intermission, day and night, until March 19, when he was put into prison. He says it was impossible for his wife to remain under such circumstances, and she left home at the time he was obliged to do so, and took refuge in a neighbouring cottage. On one occasion, Mrs. Green, having visited the house to get some clothes for her baby, was so frightened by an intoxicated bailiff that she had never been well since. That is the statement of the treatment to which Mr. Green has been subjected. I hear a noble Lord remark that I have been already speaking for half-an-hour; but I can only say that half-an-hour is not too much time for your Lordships to give to such a subject, and I must protest against these interruptions. If it is necessary, I will go on speaking for another half-an-hour on the discreditable way in which Mr. Green has been treated. I decline to sit down. The real question is this—Is the House, or is it not, prepared to extend that measure of relief to Mr. Green which, in the year 1840, it thought not improper to extend to one of the people called "Quakers?" I do not know what the antecedents of Mr. Thorogood were; I do not know whether he had passed his life amongst the poor and afflicted; I do not know whether, at the age of 40, or whatever it may be, he was torn away from his wife and family, and subjected to the treatment which Mr. Green has described; but I do know this, that Parliament at that time, in its wisdom, thought it was a fit case to be considered, and did not grudge the time and pains necessary to inquire into the case; and that at the end of the Session—for the Bill was brought into the House of Commons on the 30th July, and received the Royal Assent on the 10th August. My Lords, I do not know how the proceedings were conducted in Thorogood's case, nor do I know whether the Judge acted as legal adviser to the prosecutors—though I should suppose Dr. Lushington to be incapable of such conduct—but blunders have been committed by the solicitor and counsel for the prosecutors in this case, for which Mr. Green has to pay. They are of a remarkable kind. The bill of costs, which is now a public document, shows that the most extraordinary proceedings have been taken in this case, which will not bear public investigation. I have referred to the case of Mr. Green as briefly as I could; but it is a case, although not on all fours with the case of Mr. Thorogood, because if it had been a case on all fours with the case of Mr. Thorogood, there would have been no necessity to trouble your Lordships on the present occasion—I do say that the imprisonment of Mr. Thorogood under the writ de contumace capiendo, was considered a grievous scandal and offence. Whether it was that the consciences of men in high places were touched, or the fears of friends of the Established Church were moved, I do not know; but a feeling of indignation was excited by his imprisonment, and a Bill was introduced and passed into law. Now I come to the Bill which I have laid on your Lordships' Table. The provisions are very simple. The second proviso in Thorogood's Act is repealed which had reference to the payment of church rates. In the 2nd clause, it is proposed to enact that after six months a person in custody under a writ de contumace capiendo shall be discharged out of custody by the sheriff, gaoler, or other officer in whose custody he may be, without any order. Clause 3 enacts— That such party or person shall, notwithstanding his discharge, remain liable for the costs lawfully incurred by reason of his custody and contempt. Clause 4 provides that the person— Shall not, by reason of his discharge in manner aforesaid, be released from further observance of justice in the suit in which he has been pronounced in contempt. Therefore, if he offends against the law in future, a remedy is provided, and he can again be subjected to the same ecclesiastical penalties as he has been subjected to in the past. Then Clause 5 provides— That it shall be lawful for the Judicial Committee of Her Majesty's Most Honourable Privy Council, if the party be in custody in consequence of any proceedings before the said Judicial Committee, or for the Judge of the Ecclesiastical Court, or if the party be in custody in consequence of any proceedings before such Judge, to declare by order made in open Court before the said period of six months has elapsed, that, for reasons to be specified on the face of such order, the party so in custody shall not be entitled to the benefits of this Act for the further space of three months, and there upon the party shall not he entitled to the benefits of this Act until the expiration of nine months. There may be circumstances, my Lords, in which, it may be desirable that a provision of that sort should be put into force. I do not attach much importance to it myself; but still there may be circumstances which may make it desirable, and, perhaps, that provision may make your Lordships more ready to pass the Bill. The 2nd clause, my Lords, is really the operative part of the Act. That provides that at the expiration of six months the person committed to gaol shall be discharged from custody. Now, my Lords, that is the point where this Bill differs from Thorogood's Act, and the difference is this—that it provides that the prisoner shall be discharged at the expiration of six months without the concurrence of the other parties to the suit. In the year 1813, an Act of Parliament was passed dealing with the writ de excommunicato capiendo in a similar manner to that in which the writ de contumace capiendo was dealt with by Thorogood's Act. That Act, passed in the year 1813, was introduced by Sir William Scott, and provided that no person who should be pronounced or declared excommunicate— Shall incur any civil penalty or incapacity whatever in consequence of such excommunication, save such imprisonment, not exceeding six months, as the Court pronouncing or declaring such person excommunicate shall direct. I ask your Lordships to extend the provisions of Thorogood's Act in the manner indicated by the Act of 1813, and to say that the imprisonment under a writ de contumace capiendo shall not last for a longer period than the imprisonment under a writ de excommunicato capiendo. My Lords, at the commencement of Reigns it used to be the practice to pass Acts of Grace, which would exactly have met a case of this kind. I trust we are a long way from the commencement of another Reign—and I believe the practice has been discontinued—but I am quite sure, if the occasion should arise for it, no more fitting Act of Grace could inaugurate a Reign than the release of a person like Mr. Green, who is imprisoned under the circumstances I have described. In the present Session of Parliament attempts have been made to relieve persons who entertain con- scientious objections to vaccination from the penalties which they may have incurred. I say in the same way that the law as it now stands in reference to cases such as that of Mr. Green requires a similar amendment, and I trust that your Lordships will pass this Bill as a messenger of peace. I am quite sure that unless something is done to relieve the grievous scandal of an exemplary clergyman, such as Mr. Green is, lying in prison for an indefinite period under an order of contempt of Court, his goods dispersed, his home broken up, a sense of dire injustice will rankle in the minds of men; and so far from the views of Mr. Green being in any way put down or repressed, the infallible result will be that they will gain greater currency among people who see one so deservedly beloved by those who know him preferring imprisonment and wrong rather than give up his conscientious objections to an invasion of the spiritual authority of the Church. I hope your Lordships will agree to the second reading of this Bill.

Moved, "That the Bill be now read 2a."—(The Earl Beauchamp.)


My Lords, I am most anxious—as anxious as the noble Earl can possibly be—that Mr. Green should be released from imprisonment. Indeed, as a step towards that result, unaware of the noble Earl's intention, I gave Notice of Questions, which will be in your Lordships' hands to-morrow, to be addressed to the Lord Chancellor on this subject. I would state that these Questions are based upon my deep conviction that this gentleman has suffered quite a sufficient penalty for the offence he has committed, and that it will be a very great misfortune if a conscientious man, as we have every reason to believe Mr. Green to be, should be imprisoned, I may almost say, for life, on account of his conscientious convictions. Of the Questions that I proposed to ask the Lord Chancellor, one was whether, considering all the circumstances of the case, he did not think Mr. Green's punishment excessive? I also wished to know what was the process which necessitated the sale of his goods by public auction? And further—and this is the gist of the whole matter—I wished to know whether there is any limit to the time for which a man may be imprisoned for contempt of the authority of the Court? I quite agree with the noble Earl that it is not desirable that any man should be incarcerated for an unreasonable length of time for such an offence as Mr. Green has committed. I wish to call your Lordships' attention to the distinction which I think ought to be drawn in all such cases, and which obviously was drawn in the case of Mr. Thorogood in 1840. When a man, however unwisely, is convinced in his conscience that he cannot do certain things, I wish your Lordships to consider whether it does not verge on persecution to insist that he shall come to a Court and declare that to be right which, unfortunately, in his conscience he thinks wrong? That was exactly the case with Mr. Thorogood in 1840. He owed, I believe, 5s. 6d. for church rates, and so strong were his conscientious convictions against the payment of these church rates or the acknowledgment of any authority which implied that he ought to pay them, that he was content to languish in prison for 16 months. The country was, of course, scandalized at a respectable man being imprisoned in these circumstances, and, as it could never have been the intention of the law that the man should remain in prison for life, therefore, by the universal consent of both Houses of Parliament, a measure was passed in order to allow Mr. Thorogood to come out of prison. Lord John Russell, in the discussion on that subject, having been told that the prosecutors were not willing to be consenting parties to the liberation of Mr. Thorogood, introduced a special clause saying that after a certain time the consent of the prosecutors was not to be required for the liberation of these gentlemen. That clause stands part of the Act, and I do not see why—for I entirely agree with the noble Earl on that point—what was good for a Quaker who conscientiously refused to pay church rates, should not be good in a case of this kind. Mr. Green has already received, at least, as severe a punishment as his offence deserves; but if nothing except his publicly declaring that he is willing to obey the law will effect his release, he may have to remain in prison for an indefinite time. In order to meet the case of Mr. Thorogood, Lord John Rus- sell moved that after a certain time the man should be released without the consent of the prosecutors; and if the object of the present Bill is to apply a similar principle to the case of Mr. Green, it shall certainly have my cordial support. I am sorry the noble Earl should have deemed it necessary to go into other matters, and to make remarks which are hardly calculated to conciliate those who are willing to agree with the general tenour of what he said as to the liberation of Mr. Green. The Bishop of Manchester was, no doubt, actuated by the highest sense of duty, and performed that duty in a way which would be found, if examined, to be by no means unwise or harsh. I believe, also, that it is totally beside the question to inquire into the costs in this ease, and I am sorry that the noble Lord thought it necessary to refer to them in his speech. The difficulty which remains, and which we shall have to consider very carefully when the Bill goes into Committee, is this—How a gentleman with these conscientious convictions is to be kept out of prison after he has once been released? How is he to be prevented from getting into prison again? With respect to Mr. Thorogood, the moment he was set at liberty there was an end to the case; but great difficulty would arise if Mr. Green were so unwise as to set at naught the decisions of the Court so soon as he is released from the imprisonment which now prevents him from violating them. There is a further point to which I wish to direct attention. A moral obligation which did not exist before is now imposed on this gentleman to obey the law. He has himself appealed from the Court below to your Lordships' House in its judicial capacity; and in its judicial capacity this highest Court of Appeal has pronounced that the law is against him. Now, I do not see how a man can, with any degree of fairness or propriety, disregard the decision of the Court to which he has himself appealed. Mr. Green would exhibit a spectacle that would be most unseemly, if he endeavoured by violence to return to those ministrations which have been declared to be contrary to law. So far as the gentleman himself and his influence in his parish are concerned, I have no opportunity of forming an opinion, except from the statements made in the public papers. I have no doubt, however, they have been truly described by the noble Earl, and I shall be glad if the noble Earl or the noble and learned Lord on the Woolsack can advise any process by which, saving the majesty of the law, and the duty of the clergy to obey the law, Mr. Green may be liberated. I trust the noble Earl's Bill will be read a second time, it being understood, however, that nobody is pledged to its details, which may possibly require amendment in Committee.


My Lords, I cannot help thinking that your Lordships generally will agree with the sentiments expressed by the most rev. Prelate towards the close of his speech—namely, that saving the majesty of the law and the duty of the clergy to obey the law, it would be desirable to devise the means of releasing this gentleman from prison; and I am sure it would be very agreeable to your Lordships to do so. Your Lordships will require to be satisfied on the first point, and will not regard that as a condition which can be set aside even if the consequence of insisting upon it should be to create a difficulty as to this particular case. Nothing is of more importance than to maintain the authority of the law. It is the equal obligation of all classes of Her Majesty's subjects to obey the law; and nothing can be more necessary than steadily to resist the idea that individuals are to make themselves judges of the law and to set themselves above it, whether they be clergy or laity who say that they will obey no decision and no interpretation of the law except such as commend themselves to their own minds. In an Established Church, at all events, it is fundamentally necessary that those who by the law enjoy temporal emoluments and temporal rights should abide by the law with respect to the conditions on which those rights are to be enjoyed. When principles so vital as these are at stake, no man is at liberty to be governed by his own party spirit or caprice. With regard to this particular case, after what has fallen from the noble Earl, my observations shall be as few as are consistent with putting your Lordships in possession of the facts of the case. I fully believe Mr. Green is a gentleman who deserves the praise which has been bestowed upon him for zeal and for much good work which he has done. It is a matter of extreme regret that such a man should do anything else which can tend to bring him into conflict with the law. It is a mistake, however, to represent his case as if it turned—though that would make no difference in principle—upon resistance to some decision of the Ecclesiastical Courts upon a single point like that of vestments. I hold in my hands a book which was lately before your Lordships' House in your judicial capacity upon that appeal to which the most rev. Prelate has referred, and I find there charged against him no fewer than 11 instances of disobedience to the law as declared by the judicial tribunals, some relating to ornaments of the Church alleged to have been set up in his church by this gentleman, contrary to what has been declared to be legal; some relating to various ceremonies introduced by him, particularly in the performance of the Service for the Holy Communion. These are 11 in number, some of which may, perhaps, be variations of charges substantially the same; but vestments are the subject of only one of them. Taken as a whole, together with the fact that Mr. Green did not think fit to appear in Court and defend himself against any of them, they appear plainly to show that this gentleman has persuaded himself that no obedience is due from him in these ceremonial matters to any decision of any of the Ecclesiastical Courts. I really do not like even for a moment to take notice of some exceedingly irrelevant and, I venture to think, injudicious observations of the noble Earl, in which he glanced at arguments which had been used as to the soundness of the reasons upon which the decisions of the Privy Council rested with regard to the particular point of vestments. If those decisions could be shown to be open to all the criticisms bestowed upon them by persons to whom the law has not committed the office of judgment, there would remain 10 other matters which are included in the charge in this case. That shows how unwise such a course of argument is. The noble Earl made another most extraordinary suggestion, and that was because the most rev. Prelate had moved for, and the Crown had granted, a Royal Commission with reference to the Ecclesiastical Courts, some slur was supposed to be cast upon those Courts and the Judges who preside over them pending the inquiry. We have had a Judicature Commission, on which many important charges in the temporal Judicature have been founded. But nobody ever thought of suggesting any such inference from the appointment of that Commission; during its inquiry it was not suggested that the Courts were not doing their duty, or that they could with propriety be disobeyed. It would have been better that on this occasion no argument of that kind should have been used. I wish now to refer to the actual state of the law, which, in my opinion, is not satisfactory. The Act of 1813 was passed for objects which, were in some respects desirable—to get rid of excommunication merely to compel obedience to the orders of the Ecclesiastical Courts. That Act substituted imprisonment for excommunication as a means of enforcing the orders of a Court, and it did not provide for release, except on the condition of obedience. I am not at all sure that there may not have been inherent power in a Court, if its authority were vindicated, to release; but that would depend on the nature of the ease. The reference made to the provisions of the Act as to excommunication as a positive ecclesiastical punishment is not in point, because the Act, while in that case limiting imprisonment strictly to a fixed time, leaves excommunication in full force with all its ecclesiastical consequences, and a clergyman who had been sentenced to it would be disabled for the performance of all ecclesiastical functions till the excommunication was removed by absolution. After that Act another was passed, under which were taken the proceedings to which the most rev. Prelate referred for the sale of the rev. gentleman's goods. Never was I called upon to discharge a duty which I did with less relish; but it had pleased Parliament in its wisdom to impose upon the Lord Chancellor the absolute duty, from which he could not escape, of issuing a writ of sequestration, and, if required, ordering the sale of goods for the payment of costs. It was as disagreeable to me as it could have been to the noble Lord to carry out such a law. Under the Thorogood Act, to which the noble Earl had referred, no right was given to an unconditional release; it was granted conditionally on payment of the whole amount claimed in the suit, and of the costs; justice was then satisfied, and there was no object in continued imprisonment, six months' imprisonment being fully sufficient for the mere purpose of punishment. There are clauses in the present Bill to which I object, and which were not sufficiently explained by the noble Earl. One of them proposes to give the Court an invidious discretion to extend the imprisonment from six months to nine. There is another provision in the Bill, that after the contumacious person is released he shall be liable to be again imprisoned if he shall repeat his offence, and this operation may be repeated toties quoties until he finally submits. I believe, my Lords, that this would call into existence a worse state of things than that which is now sought to be amended. It would, in my opinion, be far better to substitute for renewed imprisonment, in the case of a subsequent repetition of the same act of disobedience to the law, a provision similar to that contained in the Act of 1874, which makes immediate deprivation, or deprivation after a very short interval, the necessary consequence, when a further inhibition issues from the same Court, after a first inhibition has been relaxed. I see no way in which to avoid these scandalous imprisonments except a provision that on a repetition of the offence the party offending shall be absolutely deprived of his ecclesiastical preferments. If the noble Earl is willing to have the Bill so amended, I think we shall have accomplished a very good work.


It is not necessary, my Lords, on this occasion to consider those questions which at present disturb the Church. Once here, the matter can only be one of law. Whatever our view of those speculative opinions may be, I think we are all agreed that if a clergyman has disobeyed the law and been declared contumacious, he is clearly and manifestly in the wrong. But as it is admitted that, under the present condition of the law, the offender when once in prison is liable, if he refuses to submit, to be permanently imprisoned, nobody, I think, can say that such a state of things is conformable to justice or to the ideas now universally entertained with respect to persons acting on conscientious convictions. I have no reason, therefore, to contest the observations which have fallen from the noble and learned Lord on the Woolsack. I would urge upon your Lordships to allow the Bill to be read a second time, and that we should go into Committee without being pledged as to the precise remedy to be provided for an undoubted evil. I entirely sympatize with what the noble and learned Lord suggested, that in the case of the release of an offending clergyman security should be provided against a repetition of the offence; but whether the remedy suggested by the noble and learned Lord is on the whole the most desirable I would rather not say until the matter has been more fully discussed. I think we ought to read the Bill a second time and go into Committee agreed that the present state of things is one that ought not to be allowed to continue. At the same time, I do not, by affording a remedy to Mr. Green, wish to give any countenance to his proceedings or his disregard of the decisions of the Courts which have dealt with his case.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.