THE ARCHBISHOP OF CANTERBURY
My Lords, I must crave your indulgence and attention to a somewhat intricate subject of considerable historic interest with reference to the relations between Church and State. It is a subject which certainly has excited a great deal of interest in a large section of Her Majesty's subjects at the present time. I am about to move, my Lords, that your Lordships should humbly address Her Majesty, with a view to asking Her Majesty to issue a Royal Commission to consider the constitution and present working of the Ecclesiastical Courts, as created or modified under the great Reformation statutes of King Henry VIII. and subsequent Acts of Parliament. My Lords, I speak, in the present instance, in the name of the united Bishops of both Provinces, who have requested me, on a Motion brought before them by my right rev. Brother (the Bishop of Peterborough), to ask your Lordships thus to address Her Majesty. I believe that the opinion of the Bishops is shared by most members of the Lower House of Convocation for the Province of Canterbury, and a great number of persons who are interested in recent disputes are anxious that, if possible, an end should be put to those disputes; and, as a preliminary step towards this happy object, they desire that full information should be acquired on the somewhat intricate subject that fills the public mind, and on which there exists at present a great deal of anxiety, as well as a good deal of ignorance, prejudice, and 379 misconception. The noble Lord (Lord Oranmore and Browne), who is about to move that there is no necessity for issuing such a Commission, says that 50 years ago a Royal Commission sat on this subject, of which very eminent men were Members, and which laid a very able Report before Parliament. Fifty years, my Lords, is both a short and a long time. It is a long time, certainly, if we look back to what has taken place during the last 50 years; and the noble Lord will hardly wish to stereotype the position of affairs exactly as it was 50 years ago. Since that time—the time when the Reform Bill was passed—every institution in the country, except, perhaps, your Lordships' House, has undergone very great changes; and, in particular, the whole Judicature of the country has been materially altered. At that time there were no County Courts to relieve the great Courts of the Realm, and the Judicature Acts referring to secular cases have entirely changed the ordinary judicial procedure of the country. There are at the present time three sets of Courts which have directly to do with ecclesiastical matters. I might, indeed, say four, because there is the Primary Commission, under the Church Discipline Act, still in existence, dealing with many cases which arise. Now, my Lords, there certainly is a strong feeling abroad as to these Courts. Some object to their constitution, some object to their working; but I believe that if the matter were to be thoroughly examined, many of the objections at present felt would be found to disappear. Still, it is only fair, when such strong feelings are called forth on a matter of so great importance, that every legitimate mode should be adopted of giving as much information respecting the subject of discontent as possible, replying to all unreasonable objections, and, where well-founded objections exist, showing a willingness to reform. With this view, my Lords, I know no better course than that a Royal Commission should, if Her Majesty so pleases, be issued for the purpose of going thoroughly into this subject. If it is 50 years since it was examined, and if it be a matter of fact that changes have occurred since that time, it may surely be well that the matter should be re-examined by those who are thoroughly competent to examine it, and that the real facts respecting these intricate questions should be laid before 380 this House and the country. My Lords, there is one reason for such an examination to which I wish to call your Lordships' attention. At the time when the Royal Commission of 1830–2 sat there was a Corporation of Doctors' Commons. That Corporation embraced all the advocates entitled to practise in what were then called the Ecclesiastical Courts; they were all selected and nominated by the Archbishop of Canterbury, and they had to do with all matters concerning matrimony and probate, as well as with those matters which now come before Ecclesiastical Courts. Now the whole of that machinery, except one small portion, is swept away. The Corporation is gone, and the practitioners who used to practise in Doctors' Commons have ceased to confine their attention to those Courts. All the Courts except that which has to do with the discipline of the clergy, and such matters as arise in connection with church-wardens, are now entirely in the hands of other Judges, and the advocates who practised in these Courts are now of the ordinary character, and practise in the ordinary Courts. And yet there remain attaching to the strictly ecclesiastical part of this subject old traditions which are very difficult to apply, because they have reference to a state of things which is past and gone. I will take, my Lords, an example. The Judge of the Court of Arches was originally required by statute to be—if I rightly understand the matter—one of those doctors practising in Doctors' Commons. Doctors' Commons is swept away; and therefore he cannot have that qualification. He is required to be a Doctor of Civil Law, licensed, as was formerly the case, by the Archbishop; the words remain when the substance is gone, and it is not extraordinary to me that there should be, in many instances, considerable misapprehension, and that attempts should be made to find fault with that which is the inevitable result of the changes which have taken place within the last 50 years, and which have resulted in the continuance of a number of old rules quite inapplicable to the existing state of things. My Lords, it is quite possible that we might have taken in hand to remedy this evil without applying for a Royal Commission. A promise was virtually made in the year 1874 that, as soon as might be, the Bishops would 381 take upon themselves the duty of reconstructing the process by which breaches of morality, or any other offence on the part of clergy against the laws ecclesiastical, were to be punished. The Bishops excused themselves, by the pressure which the circumstances of the time imposed upon them, from dealing with more than one subject in 1874, when they proposed and carried the Public Worship Regulation Act. Many have asked why we have not dealt with these further matters before now. Well, we found, of course, that many difficulties would stand in the way of thoroughly reconstituting the Courts; and we thought that it was, perhaps, desirable to wait and see whether the new system which had been introduced would work well before we applied it further. No doubt, we should have been able to produce some measure before now, had it not been for certain events which happened in the country, and especially amongst the clergy—but by no means amongst the clergy alone—events which occurred, and which showed us that it would not be right to take this particular matter in hand before the whole question had been more thoroughly investigated; before certain wide-spread statements were dissipated—statements which were made with great vehemence by one side or the other, but not proved so clearly as they were asserted. There can be no doubt that the imprisonment of three clergymen had caused a great sensation by the end of last year and the beginning of the present. These three clergymen were, in the popular imagination, regarded as being imprisoned for a violation of the Public Worship Regulation Act, and it was not unnaturally said—"Surely it is a strange thing in the Church of England that an offence which is, at most, but a matter of ritual should be punished with such extreme severity, when other offences of a far more serious character are not visited with a similar punishment." I can quite understand, my Lords, that this state of things excited indignation among a great number of members of the Church. Not that I think it was justified, for, of course, these clergymen were not imprisoned for a violation of the Public Worship Regulation Act, but they were imprisoned because they resisted the authorities constituted by the law. Although it is perfectly true that 382 imprisonment for such offences is a severe punishment, yet I am not perfectly certain that it is an easy thing to keep a man out of prison when he desires to get into it. I rather concur with the feeling of King William III., who, in a somewhat similar case, said—"That gentleman has made up his mind to be a martyr, and I have made up my mind to disappoint him." I think, if it had been possible to have prevented those persons being imprisoned, it would have been infinitely better for the Church of England, better for the clergymen who are the offenders, and better, on the whole, for the administration of the law. Not that I am casting the slightest aspersion on the noble and learned Lord who administered the law. He was there as a Judge, and he could only perform his duty as a Judge; but I am finding fault with the discretion of those who thought it necessary to push matters to that issue; who were not contented with allowing the ordinary processes of the law to take effect, but were determined that they would at least bring the matter to an issue by calling the statute of George III. into operation—a statute which no one at the passing of the Public Worship Regulation Act ever remembered had any reference to the cases of those who would be likely to be brought under that Act. But I think these martyrs have, like most other martyrs, to a certain extent gained their end; they have enlisted a great deal of sympathy on their side, and their so called martyrdom has had this perhaps very good result—that they have convinced all of us that there are some very difficult and delicate questions to be settled in regard to these matters; in short, they and the action they took are a justification for the Motion which I am now asking your Lordships to accept. It does not seem that there was in earlier times the same feeling about clergymen going to prison that there is now-a-days. In George III.'s time, it was, it seems, not thought much of, and earlier in The Reformatio Legum, to which attention has lately been drawn, I find it was actually laid down that every Bishop was to have one or two prisons in his disease, and three or more if necessary, in order that those persons who speak lightly or contemptuously of the authority of the Judge might find their way to them. I am not one of those who 383 have such vehement love or affection for everything that is old and venerable as to desire that we should follow the example set us in these respects; and I should therefore be very glad if, in the course of the deliberations of such a Commission as I am now asking your Lordships to petition Her Majesty to issue, time should be found for considering this question. I am afraid I must now trespass upon your Lordships' attention for a short time respecting the condition of the Courts about which this Commission will have to make investigation. Let us begin with the Supreme Court of Appeal. I am convinced that there is an immense amount of misinformation and prejudice on the subject of this Court at the present time. Like every other Court there are objections which can be made to it, and the sooner those objections are investigated and met the better. Your Lordships are aware that it is the Judicial Committee of the Privy Council which at present administers the supreme appeal in ecclesiastical matters; and, to our astonishment, we hear of people crying for that old Court of Delegates, with respect to which great lawyers have spoken—and certainly not very respectfully—and which went to its grave, with the consent of all men, very soon after the Report of the Commission to which the noble Lord (Lord Oranmore and Browne) alludes in his Amendment. It is commonly said—"We do not wish to decide whether the Court of Delegates was or was not better than the Court of Appeal in the present day. But it was a Court which was sanctioned by the Act of Convocation." Well, my Lords, it may be so; but I can find no record whatever of it. Convocation certainly had sanctioned the supremacy of the Crown and the Act of Submission; but, so far as I can discover, it distinctly left to the Crown the mode in which this supremacy was to be exercised in regard to the establishment of the Courts. I shall be only too happy if the consideration which your Lordships will give to it will bring the real truth of the matter forward. No mention is made, as far as I can see, of the appointment of this Court of Delegates in the Resolutions of Convocation dealing with the submission of the clergy; the Court of Delegates was left to be fashioned by the authority of the State. I remember the discussion on the Public 384 Worship Regulation Bill, when the noble and learned Lord who now occupies the Woolsack maintained—and it appears that his authority was good—that it had always been customary for the State to arrange the exact mode in which the Royal Supremacy was to be applied, as, for example, by arranging the mode in which these Courts were to act; and therefore there was no necessity to apply to Convocation first in order to settle the details of the formation of the Court. It is upon this point that there is a great misunderstanding throughout the country—especially amongst the clergy—at the present time; and I am very anxious that this matter should be thoroughly gone into, that we should understand whether, in its origin, the original Court of Appeal—the Court of Delegates—had or had not any authority given to it by the Church, except that general authority which the Church willingly conceded to the Crown at the Reformation by acknowledging its supremacy. In the Preamble of the Act for the Restraint of Appeals to Rome there is a passage, often quoted, which sets forth that—The realm of England is a power governed by one supreme head and King.… unto whom a body politic. … divided. … by names of spiritualty and temporalty. …. The body spiritual whereof having power when any cause of the law divine happened to come in question, or of spiritual learning, then it was declared, interpreted, and showed by that part of the body called the spiritualty, now usually called the English Church.This passage suggests one of the questions which might with great propriety be referred for consideration to a number of experts well versed in the matter. With regard to the Court of Delegates, which has had such a happy resurrection in the admiration of many persons of late years, whereas formerly it was condemned by everybody, it has been asserted—and this is a matter which requires looking into—that it was always presided over by spiritual persons. The term is a rather ambiguous one; for at that time there were various sorts of spiritual persons, besides clerics. There were the practitioners in the Ecclesiastical Courts, who were a sort of personœ moxtœ, and who may be included under the term spiritually. But it may very fairly be argued that even if you are to intrust judgment in the highest Court of Appeal to spiritual persons 385 in this sense, you may get into the same disagreeable messes which I believe the Court of Delegates got into. What was the state of the case then? There was one able man always, who was the Judge of the Arches Court, and the persons who were advocates in the Courts below came and argued before him; but when you got beyond that ancient Judge, and got to the Delegates, if you were restricted to the advocates of Doctors' Commons, you were obliged to fall back for Judges either upon the junior and unemployed members of the Profession, or upon advocates who had already been engaged in the case, a process by which men who had argued the case in the Courts below would have been constituted Judges in the higher Courts. It is ridiculous to say that that is a satisfactory method of procedure. There was, indeed, a mode by which it was prevented from doing as much mischief as might have been supposed—namely, by putting a number of Common Law Judges into the Commission to act with the other persons. Now, my Lords, taking it for granted that no one seriously wishes to re-establish the Court of Delegates, let me say a few words as to the objections which are made to the existing Court. It is said that the Court is packed for each occasion: that is an invidious way of putting it; but it is certain that the Court is not a fixed Court, before which cases may be brought but one set of Judges may sit on one case and another on another. This is a grievance which, whether it can be avoided or not, is common to the present Supreme Court of Appeal and to the old Court of Delegates. It is a fair question whether it would be better to fix very definitely who are to try those cases, or to leave it to he arranged as at present. Then objection is made to this Court, because the Judges do not deliver their opinions separately, as they do in the ordinary Courts. Whether that be a good objection or not is a matter which lawyers are better able to decide than I am. At all events, it is one of those matters that are very much dwelt upon, and which may well come before the consideration of any Commission. My Lords, I may be excused for dwelling any longer on the highest Court of Appeal. We now come to the Provincial Courts; and the question regarding them, which will naturally come before any Commission, 386 will be whether it is desirable to adopt any new method of administering them. One great objection that is made to the present Court is that it unites the two Provinces of Canterbury and York. I confess I never could see the force of that objection. It would be a great inconvenience if the writs of the Court of one Province could not run in the other Province, as was the case when there were two Judges. According to the late system as it existed, you were to have two Provincial Judges, one at Canterbury and the other at York, as you had 31 Diocesan Judges in the different dioceses. It is absurd to talk of keeping up the old, useless, and unnecessary Judges, when, as is far better, by condensing the offices, you are enabled to have able men to preside over the Courts of the two Provinces and the inferior Courts from which they entertain appeals. In old times there was very little difficulty in finding an able Judge to preside over the Arches Court; but when circumstances changed, and the testamentary, matrimonial, and Admiralty cases were removed, it became extremely difficult to find adequate Judges. One word more as to the Diocesan Courts. They are Courts presided over by the Bishops and their Chancellors, and are not so much in use now as they were in old times. During the many years that the Clergy Discipline Act has been in force there have hardly been any instances of the Bishop availing himself of his power to sit in his Court—a power conferred by that statute. He has almost invariably sent the case to the Provincial Judges, as he was entitled to do, and therefore these Courts have pretty nearly ceased to exist. Now, my Lords, I think that as these Diocesan Courts do still exist, though not in a very active condition, it would be well that they should be thoroughly examined. This, as well as the reasons I have given in regard to the High Court of Appeal and the Provincial Courts, seem to me to justify the request which I make to your Lordships to present to Her Majesty this Address. I beg to say that we have no intention whatsoever of going back beyond the Reformation. We have a very distinct and strong opinion that any interference with that form of religion which was accepted in this country at the Reformation would be as dangerous to the country 387 as it would be certainly distasteful to the great majority of its inhabitants. And, my Lords, while we have no sympathy with the new theories about the Reformation which have been propounded of late years—while we desire to maintain things as they have been handed down to us from the Reformation, and shall certainly do our best to resist any attempt to introduce the Roman Mass, or any of those things which are characteristic of Rome, and for which so much blood was shed, and so many trials endured in this country and in other countries at the time of the Reformation; while this is the case we are still anxious that there shall be no undue want of toleration as to things that are in themselves perfectly innocent, but which the folly of certain persons regards as a return to things as they were before the Reformation. We desire that there shall be a full understanding of the position of the Church of England; we desire that there shall be ample toleration within its pale for all good men who are loyal to this Reformed Church; but beyond this we have no desire to go. We know very well, my Lords, that the Church of England has before it at the present moment duties greater, perhaps, than any other society in the world; we know that both from its influence over our Colonial possessions, and from the sympathy which it excites even in countries that are separated from it by another form of religion, it is very powerful beyond the limits of these Islands; but we believe also that this Church must live in the hearts of the people of England. We are sure that if it departed from its principles it would cease to command their willing allegiance. We know that in these days infidelity is rampant on one side and godlessness on the other, and that the enemies of the Church of England are anxious to avail themselves of every flaw that may be found in its constitution, and to foster every possible quarrel that may arise among good men who have all the same object in view. It is more necessary for us, then, to be on our guard, more necessary for us to have sympathy one for another, to tolerate everything that is entitled to toleration, but not to go beyond the just limits of toleration. My Lords, I do believe it is true, as has often been said, that there is no danger for the Church of England if it does not come from our internal 388 dissensions, and I do hope and trust that if you agree to my request and Her Majesty be pleased to grant it, that this may be the means of dispelling misunderstandings which at present exist, and do away with jealousies which separate good men, and that thus, by coming to a fuller and clearer understanding of the greatness of our position, we may enable the Church of England to do well the great work which God has committed to it. I therefore request your Lordships to give your consent to this Motion.
§ Moved, That an humble Address he presented to Her Majesty, praying that Her Majesty will he pleased to appoint a Royal Commission to inquire into the constitution and working of the Ecclesiastical Courts, as created or modified under the Reformation Statutes of the 24th and 25th years of King Henry the Eighth and any subsequent Acts.—(The Lord Archbishop of Canterbury.)
LORD ORANMORE AND BROWNE
said, it was some years since he troubled their Lordships on Church questions, for he always felt that it was more appropriate that some abler and more specially qualified Member of the House should address them on questions touching the Established Church of England; and, therefore, before putting his Notice on the Books, he endeavoured to ascertain whether any other Peer was likely to move in the matter; but not ascertaining that anyone would, he felt called on to put on record his dissent from the proposal of the most rev. Prelate (the Archbishop of Canterbury). He had additional hesitation in doing so, because he was fully impressed with the respect that was due, not only to the high position of the most rev. Prelate, but also for the dignity, moderation, and genial kindness with which he filled it; but, believing that the present Motion would only encourage the unfortunate divisions and disorder that existed in the Church, he felt it his duty to put in his protest against it. The most rev. Prelate had put his case before the House with his usual force and clearness. Before hearing his statement, the more he (Lord Oranmore and Browne) considered the matter the more he saw the great difficulty of putting his views clearly before them. For that purpose it was absolutely necessary that he should make a concise statement, not only of the present state of the Church, but also of some preceding matters. He must first recall to their Lordships' attention an 389 Address presented to the Archbishops in 1873 from above 400 of the Clergy, and the reply of the Bishops. The Address asked the acceptance of the principle of "development," instead of that of "omission," meaning "prohibition." They evidenced the sanction of the Bishops in many cases to the former practice, and also assert a legal sanction to certain doctrines and practices—the Real Presence of our Lord and Saviour Jesus Christ in the Holy Communion, "under the form of Bread and Wine;" the Adoration due to Him there Present; the sacrifice which He there offers by the hands of His Priest to the Divine Majesty; a change in Service of the Holy Communion; Services for the Feast of the Virgin; Communion for the Burial of the Dead; Reservation of the Sacrament; Sacramental Confession, &c.; Licensed Confessors. He had not at hand the reply of the Archbishops to the clergy; but he would read to the House a sentence from their reply to an Address presented by the Church Association on the same subject, signed by 60,000 members of the Church of England—There can be no doubt that the danger you apprehend of a considerable minority both of clergy and laity amongst us desiring to subvert the principles of the Reformation is real; and it is not unnatural that you should appeal to us for counsel and support. Since we had the honour of receiving your deputation, our attention has been directed to a petition presented by upwards of 400 clergymen to the Convocation of the Province of Canterbury in favour of what they designate as Sacramental Confession. We believe that through the system of the Confessional great evil has been wrought in the Church of Rome, and that our reformers acted wisely in allowing it no place in our Reformed Church; and we take this opportunity of expressing our entire disapproval of any such innovation, and our firm determination to do all in our power to discourage it. We feel justified in appealing to all reasonable men to consider whether the very existence of our National Institutions for the maintenance of religion is not imperilled by the evils of which you complain.Encouraged by this reply, on July 14, 1873, he moved in that House for a Committee to inquire by what means the impending danger could be averted. The most rev. Prelate and the noble Marquess (the Marquess of Salisbury), in most emphatic terms, condemned the lawlessness of the clergy and the introduction of Confession into our Church; but said it would be accepted by few, and that it was too late in the Session to appoint a Committee. However, in the 390 ensuing Session, the evils he had complained of had so much increased, that the most rev. Primate introduced the Public Worship Regulation Bill. In introducing it, his principal reasons were to the following effect:—That greater facilities were required for enforcing the law; that Confession Boxes were being introduced into churches; that altar cards containing prayers to the Virgin were introduced; that, though the clergy were bound, by their Ordination vows, to obey the monitions of their Bishop, they refused to do so; that the Canons gave special power to the Bishop to regulate Vestments, but the clergy were disobedient. He referred to part of the Report of the Ritualistic Commission, recommendingThat the Bishops should, with regard to Lights, Vestments, and Incense, enforce the usage of the last 300 years.He said that the Courts should be differently constituted, so as to obtain a less expensive and more speedy enforcement of the law; that all the time of the Bishops was taken up with Memorials against these practices; that he believed the number of the clergy and laity who carried them on was small; but the fact of even a small body of clergy acting contrary to the law would shake the confidence of the people of England in the Established Church; that in the diocese of Durham these practices had been suppressed with a strong hand—some people thought too summarily; but the great body of the laity came forward to show they approved of what had been done; therefore he asked for a new law, &c., of which he went on to state the provisions. He concluded—If your Lordships are of opinion that the Church of England, while recognizing, as she always has the independence of the Incumbent as Pastor of the Parish, lays down that he should be subject to these laws and regulations of which the Bishop is the exponent, then I ask you to vote for this Bill, … for this is the principle affirmed in its various clauses.The real question was, were the Archbishops and Bishops or the Incumbent to decide in controverted cases? Lord Selborne said there appeared to him to be no doubt that this was still the real issue, and he wondered—How advocates of Church authority, who are supposed to be actuated by High Church principles, can imagine that the cause they profess to have at heart is advanced by the setting aside of all authority—whether the au- 391 thority of the Crown or the episcopal authority—it is a problem which I cannot undertake to solve; it is one I have always contemplated with astonishment. But of one thing I am satisfied—that no institution can stand which, in matters of form and ceremony, has not within itself sufficient power to procure obedience to laws necessary to retain the confidence of the people, and to prevent innovations dangerous in their tendencies, if not dangerous in themselves."—[3 Hansard, ccxviii. 799.]Lord Hatherley said—There were some of the clergy who openly stated that they would obey their Bishops just as far as the solicitor, or as the Privy Council said they must, and no further. Indeed, many would not go so far, but insisted, each, on being his own Pope."—[Ibid., ccxix. 1141–2.]Lord Bath and the Bishop of Winchester said "that as soon as the clergy knew the law they would obey it." Their Lordships were aware that the necessity for this Bill was acknowledged by the large majorities by which it was carried through both Houses—a few of the lawbreakers dissenting. It was, he thought, above seven years since it had been in force. The former expense and delay had not decreased in consequence of this Bill, for it was only now, after seven years, that different cases had been fought and defended (and too often defeated), on every legal technicality that could be raised, that, at last, precedents had been established which would enable the law to be enforced with less delay and at somewhat less expense. Exception had been taken to the fact that these cases had been fought, not by the Bishops alone, but by two societies—The Church Association and the Church Union. As an original member of the Council of the former, he was quite satisfied to bear the responsibility of its action. Its end and object was—To uphold the doctrines, principles, and order of the United Church of England and Ireland, and to counteract the efforts now being made to pervert her teaching on essential points of the Christian faith, or assimilate her services to those of the Church of Rome, and further to encourage concerted action for the advancement and progress of Spiritual Religion.Many of their Lordships, and more of the public, would agree with him that in the abstract it was desirable these ends should be arrived at; but they might agree with the somewhat acrid eloquence of the right rev. Prelate who presided over the diocese of Peterborough, who stated it to be an act of odious and fatuous folly to prosecute to imprisonment a clergyman for breaking a Rubric. 392 In venturing to comment on any remarks of that right rev. Prelate, he felt like those whom the noble Duke (the Duke of Argyll) described the other day as being very shaky about their knees. His hope was that the right rev. Prelate will not condescend to notice the remarks of so humble a Member of that House as himself; but, should he do so, he would appeal to him in the words of the old play—"Oh! Biddly, please to moderate the rancour of your tongue." So what the Church Association did was to prosecute clergymen for the breach of the law. The Church Union defended the law-breakers—so it had again and again been decided that any clergyman had broken the law by the Judges appointed under the law. The Judge pronounced such sentence as he deemed right never of imprisonment; it might be suspension, it might be deprivation; and imprisonment only resulted from the clergyman treating the law of the land with contempt. If any subject of the Queen, from the Lord Chancellor downwards, if he treated a decree of any Court in the same way, would he not also be put in prison till he purged himself? Was a clergyman above the law, and not bound by the legal contract he had made? No; he was acting on the unwritten law of his conscience. It seemed to him that if his conscience did not allow him to abide by the legal interpretation of the contract he had entered into, he had only to resign the position and the property he enjoyed under that contract, and then he would be free to be guided by his conscience only. Other men besides clergymen had consciences; but, so far as their dealings with property were concerned, if law and order were to prevail, clergy and laity alike must be subject to the law of the land, such as it was, till changed by Act of Parliament. Then, what was the raison d'être of the Church Association? It had been properly called by its friends "The Bishops' Aid Society;" and so it certainly was, for the costs of the suits were very large. It would be impossible for the Episcopal Bench to bear them; and it could never commence an action without the sanction of the Bishop. This sanction would not be given if there was any reasonable doubt that the clergy were acting illegally. If Church Association did not exist, the Public Worship Act would have been 393 a dead letter; and there could be no doubt this was never the intention of Parliament. They asked the Judge to enforce it according to his discretion. If the law was wrong let Parliament change it. He had before called their Lordships' attention to the fact that the friends of the High Church Party, in debate on the Public Worship Regulation Bill, stated that as soon as the law was declared they would obey it. So said the President of the Churen Union; but now the decision was adverse, they pleaded that the Courts were not constituted as they deemed desirable. If such a plea was entertained, was it not a direct encouragement of the lawlessness to repress which the Public Worship Regulation Act was passed? And the Motion now before the House gave direct sanction to it. And let him now refer to some of the recent transactions in the Church. A Petition had been addressed by between 3,000 and 4,000 out of the clergy, sympathizing with those who suffered 'from their lawlessness—the same body as in the previous year were condemned by the Archbishops—praying that the Bishops would not allow them to be prosecuted for it, but would tolerate their lawlessness. Now, 4,000 was but one-fifth of the clergy. These claims were sent by the Upper House of Convocation to the Lower House. That House recommends that the prayer of the Petitioners be agreed to—namely, that the law of the Church should be ignored. This Motion was but a weak yielding to an obstructive and lawless minority. Not having the Report of Convocation, he was not sure that he followed it quite correctly; but it seemed to him the debate in the Upper House took place on certain Resolutions to the following effect, which had lain dormant on the Table of that House since 1879. The Report of a Committee of the Lower House of Convocation, and the Resolutions framed by that Committee, and accepted by that House, on the relations of Church and State, were too long to quote in extenso; but he might say that they claimed that, according to the Constitution, all proposed legislation in any way affecting the Church should be laid before Convocation, and no action taken by Parliament till Convocation had considered and reported on it, for that action taken otherwise would be unconstitu- 394 tional. Another Resolution condemned all Courts that at present existed for deciding ecclesiastical cases, and recommended that others should be constituted according to Canon Law. Another Resolution advised a new way of appointing Bishops; and the Lower House concluded by asking the Upper House to consider and take action in these matters. Those Resolutions were very fully discussed; and it appeared to him that though some of the Bishops sympathized with, none supported them. He regretted occupying so much time, but felt bound to the large body in the Church who agreed with him, and whose voice was little heard in their Lordships' House, to do his best to support their views. They all agreed that it was desirable that each Bishop in his own diocese should regulate Ritual according, not to any system agreed on by the Episcopal Bench, but according to his own discretion or indiscretion, to his own capacity or incapacity. He believed such was the law at present, and he conceived that prosecutions arose simply because the clergy refused obedience. The Archbishops and Bishops supported the Public Worship Regulation Bill principally for this reason. When one considered that there might be 39 manners of putting the law in force, it was hardly surprising that it was not obeyed. It seemed to him that this could never have been contemplated by the law, which must have supposed something of the kind. Another incident that seemed curious in this debate was that the Bishop of Rochester stated that when first he went into his diocese there were six churches within five miles of London Bridge in which an extreme Ritual had been practised for some years, with a very complete system of confession. So contrary to the teaching and doctrine of the Church did the right rev. Prelate deem this, that he said he never went inside these churches, nor could he work with the clergy. This seemed to him fair toleration of lawlessness, a full acception of congregationalism, but not, even in a town, a just or fair treatment of the law-abiding members of the National Church, supported by national funds; and if these Churches were in country parishes, how shameful would be the wrong done to the parishioners? He had heard of many such. These churches resulted from the different societies of 395 the Ritualistic Party, some dozen in number, many of them having secret rules. Of one, the Society of the Holy Cross, the literature was brought before their Lordships' House, first by himself, and afterwards by the noble Earl the Chairman of Committees. As President of Convocation, the Archbishop of Canterbury thus designated this Society—"A conspiracy against the doctrine, the discipline, and the practice of our Reformed Church." Again, asking their Lordships' attention to the debate in the House of Convocation, the Bishop of Winchester proposed the following Resolution:—Having regard to the Report from the Lower House on the relations between Church and State, and also to the Report on Clergy Discipline, this House is of opinion that it is desirable that a general Clergy Discipline Bill be brought into Parliament, dealing with morals, doctrine, ritual, and neglect of duty, and also with Courts of First Instance and Appeal in matters ecclesiastical.An Amendment to this was proposed by the Bishop of Peterborough, and, after considerable discussion, the following Resolution was unanimously adopted:—Whereas this House has received a Report from the Lower House on the relations between Church and State, and also a Report on Clergy Discipline; and whereas many members of the Church have from time to time expressed their strong dissatisfaction with the present constitution of the Courts Ecclesiastical; and whereas the laws relating to Clergy Discipline are in many respects in need of amendment, this House requests his Grace the President to pray Her Majesty to issue a Royal Commission of Inquiry into the said laws and the constitution of the said Courts, with a view to the full statement and consideration of all objections, and to the reform of whatever may be shown to be amiss.It would be very evident to the House that this Resolution, which would be carried out if the House adopted the Motion of the most rev. Prelate, was very different from the recommendations of the Lower House, and to the Resolution proposed by the Bishop of Winchester. It seemed to him, at the same time, easy to see why it was accepted—not, perhaps, by the most rev. Prelate, but by the Upper House of Convocation—simply because it was improbable that their Lordships' House would adopt a Petition to the effect of the Bishop of Winchester's Resolution, owing to the High Church sympathies of some of their Lordships, and the Broad Church and sentimental sympathies of others. Now, as to the 396 necessity of the inquiry asked for by the most rev. Primate, he submitted that up to 1830 all the statutes had been fully inquired into and reported on by a Royal Commission. If desirable, the evidence and Report could be reprinted. Since that time there had been, so far as he could learn, only four Acts passed of any importance—the Acts of 2 & 3 Will. IV., c. 92, and of 3 & 4 Will. IV., c. 41, abolishing Court of Delegates and transferring its power to the Judicial Committee of the Privy Council; the Church Discipline Act, 1840; the Appellate Jurisdiction Act, 1876; the Public Worship Regulation Act. From the litigation of the last 20 years these Acts were perfectly familiar. What inquiry there was required as to these he could in no wise understand. The constitution of the Arches Court had been brought before the High Court of Judicature, and the three Judges sitting in the case declared that it was the same Court as had existed for many years, and not a new Court. Whatever the constitution of a Court, legal pleas might he put in as to its merits; but there was no other means of arriving at a legal conclusion, save by the same course of procedure. In fact, no law or no Court could be made or changed to please everybody. In this country the majority in the two Houses of Parliament made the law, and the minority must obey it. Now, he must trouble the House with the opinion, as to the present Courts, of one whose opinion, though it could not carry more weight, would be accepted as quite of equal value on this matter as even that of the most rev. Prelate. It ran thus—Lambeth Palace, July, 1877.Fully concurring with you as to the great importance of the legal decisions which, during the last 10 years, have been pronounced by the Court of Arches and the Supreme Court of Appeal, and considering it the duty of all sound Churchmen and good citizens to maintain and promote a loyal obedience to decisions thus pronounced, I feel assured that in every legitimate way the Bishops of the Church of England will show their determination to discountenance lawlessness, and that each step which they are called upon to take, according to the constitution of the Church, will be guided by a solemn sense of the responsibility which rests upon them to maintain the pure and simple truths, which the leaders of our Church, protesting against mediæval error, vindicated at the Reformation. The details of our mode of action must, of course, depend upon the individual circumstances of each case which comes before us: but the general principle which I 397 have indicated above, fairly applied, will, I trust, be found adequate to meet all the difficulties which you anticipate, and I am strengthened by an assured conviction that the determination here expressed meets with the entire approval of an overwhelming majority, both of the Clergy and Laity of our Church.I remain, my dear Sir,Yours faithfully,(Signed) A. C. CANTUAR.Thomas R. Andrews, Esq.He was not aware that any change had taken place in these Courts since that time. He was not aware that Ritualistic practices had decreased with impunity. That this proposed inquiry would strengthen and encourage them was the opinion of the Ritualistic Party. It was thus conveyed in an organ of that Party. The Church Review, writing of the proposed Commission, said—One of its great advantages is time for consideration, and the certain postponement of any fresh prosecutions for at least two or three years. Time is on our side, and there is no rough and ready scheme which will bring immediate peace. We need to persuade men to listen to counsels of toleration, and to build up our outposts, consolidate our defences, and supply the weak places in our parochial organization. Again, there is breathing time after threats of annihilation, and, just as the Royal Commission on Ritual stopped the Earl of Shaftesbury's Bill for the abolition of vestments, so a new Commission will practically supersede Lord Penzance and the apology for a Court over which he presides.He could not believe that the Archbishop contemplated results so contrary to all his previous actions in life; but he would ask the right rev. Bench a plain question. If this Commission were granted, did not they intend to refuse to take action pending the inquiry? If so, it would be the severest blow the Church of England ever received. He had troubled their Lordships with all these details to show that no new facts could be elicited by the proposed Commission, and that, if confined to the mere question of constitution of the Courts, it would in no wise satisfy the views of the 3,000 and odd lawless clergy, to relieve whose consciences it was proposed. That was clearly shown by the Resolutions of the Lower House of Convocation, and the Resolution proposed by the Bishop of Winchester. If their Lordships granted a Royal Commission at all, let it be to inquire into all the questions involved in these Resolutions; and in his mind this inquiry should be headed, 398 "On what conditions is the Church of England to be disestablished?"
To leave out all the words after ("That") for the purpose of adding ("whereas a Royal Commission in the year 1831, consisting of the then Archbishop of Canterbury and four other bishops, Chief Justice of the King's Bench, and Chief Justice of Common Pleas, besides several other learned judges, was appointed to inquire into the practice and jurisdiction of the Ecclesiastical Courts in England and Wales, which Commission, after mature deliberation, presented a report in 1832: And whereas in the late matter of the Rev. P. T. Dale and the Rev. R. W. Enraght before the High Court of Judicature, the judges, after giving careful consideration, unanimously declared that the 'Court under the Public Worship Act was the same which had existed from the time of Lord Coke downwards, and was neither a new court nor had any new jurisdiction,' it is the opinion of this House that it is not desirable that an humble Address be presented to Her Majesty as proposed.")—(The Lord Oranmore and Browne.)
THE BISHOP OF PETERBOROUGH
My Lords, I have listened with great interest and keen curiosity to the speech of the noble Lord who has just sat down. I was extremely curious to know in what way and by what arguments he would support his Amendment. It appeared to me that that Amendment divided itself into two parts, and that those two parts were mutually contradictory, and that one distinctly refuted the other. The two reasons which the noble Lord submits for your rejection of the Motion of the most rev. Prelate are these—first of all, that a Royal Commission sat upon the Ecclesiastical Courts some 50 years ago; and, secondly, that a particular Court now existing has existed since the days of Lord Coke. That, I presume, is the Court of Arches as it has since been modified; and, therefore, it would appear that not oven the venerable age of that Court at the time the noble Lord spoke of prevented Parliament from asking for, and the Crown from granting, a Commission to inquire into that, as well as other Courts Ecclesiastical. So that the noble Lord's argument is that there is a Court so ancient and venerable that it becomes a sort of sacrilege to interfere with it, and that the idea of a Commission meddling with it is not to be tolerated, and yet that your Lordships are to remember that 50 years ago a Commission was appointed to examine into this very Court. The noble Lord having placed this argument before 399 us, the very next thing that I heard was that he had himself been prepared to take the very course, or almost the very course, he condemns on the part of the most rev. Primate. He says that, moved by the presence of serious evils in the Church, he did propose to your Lordships the appointment of a Committee to inquire into the best way to prevent these evils. The difference between this and a Royal Commission could hardly be so great that it could be the height of wisdom on his part some years ago to move for a Committee, and that it should now be the opposite for the whole Episcopal Bench to move for a Commission to inquire into the same matters. But I am still more surprised to find that the noble Lord has referred to the action of the Church Defence Association in the manner that he did. I am a diligent reader of the publications of the Church Defence Association. I read them carefully—though the noble Lord may think with less profit than I ought to derive from them—and I find that upon more than one occasion proposals have been made by that body for amending the Public Worship Regulation Act, because it does not go far enough in repressing the lawlessness which is complained of as existing within the Church. It seems, then, that this venerable and sacred Court, as modified by that Act, is not so sacred in the eyes of the Church Defence Association, of which the noble Lord is a member, that they should not endeavour to amend it. The difference therefore, between the noble Lord and the Prelates of the Church is only this—that we are desirous of well-considered, mature, and thoughtful legislation; but the noble Lord and the Church Defence Association are all in favour of legislation of a hasty and immature character. We think it better that we should be informed by Royal Commission before we proceed to amend the Act which the Association thinks needs to be amended. I think that, upon the whole, the course proposed by the most rev. Primate is the wiser one. But the noble Lord has been good enough to honour me by special notice in connection with the Church Defence Association; and amongst the wide range of subjects he has touched upon, he has alluded to my "acrid eloquence," and to the necessity of my moderating the rancour of my tongue. I 400 ventured, I confess, to speak of the folly of the Church Defence Association in imprisoning certain of the clergy; and I now repeat what I then said—that when the Public Worship Regulation Act was passed it provided a very different way of dealing with Ritual offences. It gave to the offending clergy no less than three years' probation before they were required absolutely to submit themselves to the decisions of the Court, or resign; and the Act seems, in this respect, at least, specially framed with care and tenderness for the clergy in the matter of Ritualistic offences. But the Church Defence Association, who have administered this Act, instead of isolating these few clergy and putting them in that position in which they should appear before the public as law-breakers deserving reprobation, have put them into gaol, have made them martyrs, and have put at their backs 3,000 or 4,000 of some of the most loyal, eminent, and attached clergymen of the Church of England. All I can say is that this appears to me the most odious, the most spiteful and fatuous folly. If the Church Association had been paid a handsome subsidy by the English Church Union, it could not have helped the Church Union and the extreme party of the Church more effectually and successfully than it has done by the imprisonment of these fortunate clergymen. So much for the Public Worship Regulation Act, and for its administration. If I were President of the Church Defence Association it would seem to me the wisest thing I could do to urge on this Commission for the examination, and, if necessary, the re-construction, of existing Courts, for the simple reason that all these prosecutions, all these conflicts about jurisdiction, and all these violent proceedings have simply ended in greatly increasing the number and the success of the party they were designed to defeat; and I would venture to recommend to the noble Lord that the next time he visits the Committee of the Church Defence Association he should propose a resolution in favour of this Royal Commission. I hope sincerely it may be adopted. I hope the noble Lord himself may be a witness before the Commission, and enlighten it as he has enlightened your Lordships this evening; and I hope, when it has fully investigated all these 401 matters, we shall have wise and well-considered Courts. It appears to me, my Lords, as I ventured to say in another place, that if you want peace in the Church of England, or, indeed, in any other institution, you can only have it in one of two ways. You may obtain it by having such rules and laws as shall be perfectly clear and well-defined—and in that case it would matter very little what Courts you had; or you may obtain it by having Courts so generally acceptable, and of such absolute authority, that no one will dispute their ruling. In one or other of these two ways—clear laws or generally accepted Courts—you may have peace in the Church. The misfortune is that at this moment the Church of England has neither perfectly defined rules nor Courts of undisputed authority. The present Courts are Courts the authority of which is, with some degree of plausibility, at all events, questioned and disputed. It appears to me, therefore, speaking from a commonsense point of view, that if you have an institution governed by laws and rules which have been for 20 years a subject of embittered strife and litigation, which is hindering the entire working and usefulness of the institution, that the only wise and natural course would be to come together, and say—This law is very ambiguous, it is disputed very much; let us agree upon a new law, let the law be broad and tolerant, let it embrace, if necessary, everything which can be fairly embraced within the limits of the institution, but let it be clear and indisputable. If in the Army there had been a dispute about uniforms which had lasted for 20 years, the public generally would think there was something exceedingly wrong at the Horse Guards, when they failed to ascertain the reason of that dispute or to bring it to a determination. But we have to remember that the garments the clergy have to wear now are garments that were ordered by the authority of Parliament in the second year of the reign of King Edward VI. Imagine the condition of the Army if the soldiers of Her Majesty had no clearer description of their uniforms than this—that they were to be such as were ordered by authority of Parliament in the reign of Edward VI.; and if, further, a colonel could not send a mutinous soldier to the guardroom, or cashier an offending officer, without its costing him 402 from £4,000 to £10,000. That is exactly the condition of the Church of England at this moment. It seems to me, therefore, that it would have been wise and prudent for the Church of England to have agreed upon some definite rule, widely tolerant as to these matters. Parliament, it is true, however, when it passed the Public Worship Regulation Act some years ago, gave the power of revision in this respect to Convocation, but unhappily that revision did not take place. Your Lordships may ask me why? Because there were two parties in the Church who, however widely different in other respects, agreed in opposing revision of the Ornaments Rubric. One dreaded that the new Rubric would give its opponents too much, and the other dreaded it would give them too little. Between these two extremes it was found impossible to devise a Rubric which I venture to say any dozen men of common sense and charity could have settled on that occasion in an hour. Such an opportunity has passed, and it will never return. I deeply deplore that this ambiguous Rubric still remains. You may devise Courts of a most unexceptionable character; but, nevertheless, it has to be remembered that the judgment of a Court, however authoritative, does not remove ambiguity from the Rubric. You may get a judgment which people will submit to; but, still, there will always remain hanging about such a judgment the doubt and ambiguity which hangs about the Rubric itself. I deeply regret, therefore, that some settlement of our contentions, upon the basis I have suggested, has not been arrived at. But as it has not, one course only now remains—namely, the institution of Courts which shall be so universally acceptable as that their judgments shall be rarely called in question, and, if possible, not resisted at all. If you have the choice of two Courts equally legal, both having an equal right to the submission of those for whom they adjudicate, it is obviously wise to choose that Court which shall carry with it the moral assent of those whom it rules, and not merely to force a hard, dry law, of whatever authority, down their throats. The action of a Court in the matter of Rubrics is not, be it remembered, like the action of a Court in the matter of criminal or pecuniary transactions. If a Court decides that 403 A loses property and that it goes to B, A sees that he has lost it, and the matter is at an end; but it is a very different matter when a Court decides against a clergyman in a matter that Sunday after Sunday touches his conscience, however ill-informed and unwise that conscience may be. It is surely wise in such a case to relieve men from occasions and temptations to disobedience which must otherwise daily beset them, and to procure for them such alterations, if not in the constitution, at least in the working of the Courts as shall make it easier for them to abide by their judgments. I am altogether in favour of such a course, if it be a possible one; and I would approve of this Royal Commission if it gives those aggrieved and distressed clergymen of the Church of England, whose loyalty and attachment are, at least, as unimpeachable as the noble Lord's, an opportunity of pointing out and explaining what they object to in the existing state of things. It is most desirable that you should allow these clergymen to go before the Royal Commission and state what their grievance is. We, the Bishops who have worked with, and who know the worth and the loyalty of many of those clergy—we who have to go forth at the head of these clergy and wage war against the evils and sins of our day and generation—we feel that it is no use attempting merely to rule men whom you have also to lead; we would be glad to speak to them in the name of the law uttered by Courts to which they themselves would be more ready than they now are to yield implicit obedience. We want, not merely the submission, but the willing and loyal obedience, of the clergy. I entirely agree with the wise utterance of the most rev. Primate in which he said he did not desire to upset or abolish the Royal Supremacy. There are very few indeed of the most recalcitrant clergy who wish to upset the Royal Supremacy. Such a desire is certainly not shared in by the Episcopacy; but, granting to the full, as I do, that the Crown is supreme in all cases ecclesiastical, I think it is to be borne in mind, and it lies at the bottom of much of the dissatisfaction that exists with the present state of things, that the Crown in the 19th century means something very different from the Crown in the days of the Tudors and the Stuarts. We 404 hear persons now talking of the Crown as a secular authority. Why, the clergy of the time of Henry VIII. would have stared in wonder at the person who said the Crown was a secular authority. The Crown was then regarded as a quasi- sacred authority. It may, thereore, be a matter for the consideration and wisdom of Parliament to advise the Crown in what manner now to exercise the Royal Supremacy now in reference to those Courts over which the Crown, of course, is supreme; and that is a matter which may fairly come within the purview of the Commission. As regards the objection that the existing Court of Appeal is a secular one, I have never been able to understand that objection. It seems to me that those who make it are confused in their own minds as to the real difference between secular and spiritual, and as to what constitutes a secular Court. A Court is, or is not, a secular Court, not according to the persons who constitute it, but according to the authority from which the Court is derived. The Court of Arches was a spiritual Court, and was admitted to be so, and yet it was presided over by a layman; and if a Court of Bishops were appointed to-morrow by the Crown on its sole authority it would not be a spiritual, but a secular Court; so that when men object to secular Courts of Final Appeal they really forget the importance of this distinction. Under the 25th Statute of Henry VIII. it is impossible for the Crown to create any Court, even though that Court consist entirely of clergymen, which would not be a secular and State-made Court. As to this distinction between secular and spiritual, whatever value it has—and this is not the time or place to discuss it—it is, at least, an interesting fact to know that this distinction did not exist in the earlier days of the English Church. During the whole existence of the Anglo-Saxon Church there was no such distinction. The Bishop and the Earl sat in the same Court dispensing the same laws alike to Church and State. Doubtless this and other highly interesting facts will come out before the Commission that will, I trust, be appointed; and I cannot but earnestly hope that the discussion of these and like facts will bring about a clear and complete opening up of all the questions at issue, which lie not behind the Acts of 405 Reformation Settlement, but between these and the present day. All these difficulties as to modes of procedure, as to the Clergy Discipline Act, which is a most defective Act, and in some respects entirely unworkable, it is to be hoped may receive a solution by virtue of the patient and careful investigation of this Committee. If the result of the Commission were nothing else but the publishing of a Blue Book, with a statement of the various theories held on these questions, and examination of those theories, with the evidence in support of them that will be brought out by various persons, I will venture to say that the Commission will have conferred great benefit; and there is, moreover, the hope that it will tend to larger knowledge and fuller information; and larger knowledge and fuller information will certainly help us towards a peaceful solution of our difficulties. We Bishops have no arrière pensée in moving for this Commission. We are honestly and sincerely desirous of the good of the Church; and we are honestly and sincerely desirous of maintaining in their fulness, and, so far as we may or can, of insuring obedience to the laws of the Church. But we desire, first, that these laws should be clear and definite, and next that the authority which enforces them shall be generally, if not universally, accepted. I do not believe in the government of the Church by Episcopal connivance. I do not believe in the government of the Church by the caprice of congregations. I do not believe in ingenious devices for the clergy giving legal services in the morning and illegal services in the afternoon, or legal services in the afternoon and illegal in the morning. I do not believe in providing chapels of retreat for dissatisfied members of congregations. I do not believe in any one of these contrivances for securing peace in the Church. They are feeble devices, and, like all feeble devices, only recoil on those who invent them. What we desire is, first of all, clear Rubrics; secondly, accepted and acceptable Courts. We may not be able to get clear and definite Rubrics; but I hope that one result of the Commission will be to give us Courts the working of which will be so improved if necessary, and the constitution so understood and recognized, as that men will be content to accept their 406 decisions even upon ambiguous Rubrics—peace-making and healing decisions as, I trust, they will yet prove to be.
§ THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES
reminded their Lordships that the Church, in the 37th Article, declared that—The prerogative given to Godly Princes by God Himself was that they should rule all estates and degrees committed to their charge, whether they be Ecclesiastical or Temporal, and restrain with the Civil Sword the stubborn and evil doers;and he maintained that the parties who complained of being restrained at the present time by the Civil Sword were the stubborn persons referred to in the Article.
THE ARCHBISHOP OF YORK
My Lords, I am sorry to detain your Lordships at this hour. I happened to be away from the scene during the time of the trials which have been referred to, and, not knowing the state of opinion in England, I gave my view on the question; but I afterwards found that a very great change had taken place in public opinion. The action of the Church Association had, no doubt, created a complete revulsion of feeling to that which existed so strongly in 1874, and which had been created by the extremely unwise policy of throwing these clergymen into prison. The Act of 1874 contemplated nothing of that kind; because it is a necessary consequence that if people are so misguided as to refuse to obey the law, there is in existence power for their coercion. I, however, deeply regret that it has been applied in the present instance. The result has been exactly opposite to what was intended by the Act of 1874; and I therefore give my support to this Motion for investigating the whole question by Royal Commission. I do not think it necessary, after the exhaustive speech of my most rev. Brother the Mover, that I should go into much detail; but I will just mention one thing. The Court of highest Appeal was at one time constituted of certain Lords summoned by the President of the Council, and one or more Prelates who were Members of the Privy Council. In consequence of general altering of the Judicature system the Bishops were struck out. I do not say that that was right or wrong; but it took place; the Judicature of the country was then under consideration. 407 Some of your Lordships thought the proposal too strong, and the alteration was proposed to a system of Episcopal Assessors, so advised. These Assessors were to assist the Law Lords by sending in their opinions for consideration before the decision was arrived at. I am glad to say that it has not been my duty to sit as an Assessor, and I hope I may escape that duty for the rest of my life, for I should be surprised to learn that a single sentence that had ever been advised by the Assessors was to be found in the judgments of the Court as finally delivered. I am not at all complaining; but we have now arrived at a stage when we ask whether that state of things may not fairly be re-considered. Another point is, that the Final Court of Appeal sometimes consists of four, sometimes of 10, 12, and so on. Now, I remember that a clergyman of some standing and position, some years ago, said in a pamphlet that the Court of Final Appeal was packed for every occasion. These, and other points, will be brought out in the Royal Commission, and a remedy will, perhaps, be found. People will learn how the list of Lords who actually sit is finally determined on, and what is the precise position of Episcopal Assessors. Are we aright in having all this complicated machinery of criminal legislation to deal with cases of this class? Is it not possible to revert to what I maintain is the ancient law of the Church? The Bishop was bound to appear and meet his clergy in synod. There he propounded to them the things that he intended to make orders. He heard and discussed, and when everybody had had a fair opportunity of making objections, he gave his orders, and it was binding upon them, unless and until it was appealed from to the Archbishop. That mode of dealing with the matter was sought to be revived in 1874 by the noble and learned Lord who now sits on the Woolsack in what, I venture to think, was a wiser proposal than that contained in the Act we are now considering. It was that the Bishop should have the power to make an order as to things relating to public worship and matters in his diocese; that there should be one appeal, but that that should be upon legal questions only, and not upon expediency; and if any such appeal took place, then a certain time was to be allowed, and the said 408 order should then be binding on the clergy in that diocese. I do not pronounce upon that now; but it is highly important. Having seen this complicated machinery, in the manufacture of which I had myself a hand—having seen it come to grief from too great friction or too great cumbersomeness, may we not, by this Royal Commission, light upon something more simple and easy to work? For these reasons I have come round to the conclusion which I did not at first hold, and I think there is no other coarse before us than to take counsel about the whole subject, and I know of no better way of doing that than by means of a Royal Commission. We should by that means get every shade of opinion, and every grade in the Church can be represented in the Commission; and though we cannot pretend that the conclusions at which that Commission will arrive will be universal, we may be sure, at all events, that they are the conclusions of those representing the universal Church, and that they are more likely to commend themselves to the whole of the clergy. For these reasons I give my support to the Motion.
THE LORD CHANCELLOR
My Lords, it is my duty to state to your Lordships the view of the Government with regard to this proposal for the appointment of a Royal Commission. When such a proposal comes before this House, recommended not only by the high authority of the most rev. Prelate, bat, as I collect from what has passed, by the general authority of the Episcopal Bench, it would require, I think, very considerable reasons to justify its rejection. But I do not think that this proposal depends upon their authority only. The real question, apart from the authority of the right rev. Bench, is whether the inquiry which is asked for is reasonable in itself, and whether it is expedient under the actual circumstances of this time. With regard to its reasonableness in itself, it appears to me that, so far as the Courts of First Instance are concerned, and the law which applies to their procedure, it is impossible that they can be considered by any person to be satisfactory. The principal measure by which their procedure is now regulated is the Clergy Discipline Act, which, I venture to say, increases very 409 largely the cost of proceedings against clerks accused of ecclesiastical offences, by requiring a double procedure where a single procedure would be sufficient. If that were all, it would be a sufficient reason, after the lapse of so many years as have passed since the Act came into operation, for an inquiry into its provisions and its operation. Then, with regard to the other Act, passed in 1871, unfortunately miscalled the Public Worship Regulation Act, it is not, and never was meant to be, a Public Worship Regulation Act at all. It is an instance which ought to make us more careful than we sometimes are as to the titles which we give our Bills, as well as the clauses we put into them; for a false title has, in this case, misled many people, and caused much needless irritation. The object of the Act was not in any way to "regulate" public worship, but to supply, what some supposed would be a more summary, easy, and expeditious manner of applying the existing law to the correction of a certain class of ecclesiastical offences. I never could see in that Act the partiality which some saw, because its provisions were equally and impartially applicable all round. The results, however, were not successful, even if the Act itself was not a mistake. I ventured, at that time, to propose a totally different and a less litigious system, more depending upon the corrective authority of the Bishop; and I was glad to hear to-night some remarks made by the most rev. Prelate the Archbishop of York in reference to that proposal, because I do think that the principle on which my suggestions were founded was one which may deserve the consideration of the Commission which is to be appointed. However, that proposal met, at the time, with very little countenance. The right rev. Bench seemed afraid of the responsibility it would cast upon them; it did not receive the support of the Government; and it fell to the ground. The actual form in which the Act passed was neither that proposed by the most rev. Prelate, nor that which I had ventured to recommend it was adopted, perhaps rather too hastily, upon the advice of a noble Earl (the Earl of Shaftesbury) whom we all greatly respect. Everyone lost sight of one defect in the Act which turned out to be alsolutely fatal, and which did not occur to anyone, because we did not realize the possibility 410 of clergymen, when once the law was decided against them, setting it at defiance. The Act, instead of giving a short and reasonable time for obedience, gave three years. The result of that was that if any clergyman succeeded in persuading himself that his duty was to resist the law, the Act assisted him in setting it at defiance for three years, and, instead of checking the evil, really increased it. This has actually been done; the law has been set at defiance; and under the Act a clergyman who so acted was not only not effectually checked, but he was allowed to go on doing all the mischief he could in the Church. It is quite clear, on principle, that obedience ought to be a condition on which clergymen can alone hold their preferments. In my opinion, three weeks would have been a better period than three years; but certainly three months would be ample. Then there is a third Act of Parliament, passed in the 53rd year of George III., by which imprisonment, instead of excommunication, was made the ordinary means of enforcing the orders of the Ecclesiastical Courts. Before that time, contumacy after excommunication, but not without it, might be followed by imprisonment. The proceedings which have taken place under that Act have given great offence, not only to large numbers of the clergy, but to many laymen also, who have no sympathy with contumacious clergymen, but who do not like to see them sent to prison for doing what they have persuaded themselves is right. I am afraid we shall never be able entirely to get rid of the necessity for imprisonment, if a deprived clergyman should insist on keeping possession, even if the Church were disestablished; but in cases of this kind deprivation would certainly be a more suitable punishment. With regard to the Judicial Committee, while I have heard many things said against it—though only as a Court of Ecclesiastical Appeal, I have never heard anyone yet state an any definite, reasonable, or practical way in which a better Court of Appeal in ecclesiastical cases could be substituted for it. When I really see such a scheme, I shall not be unwilling to consider it; but I am not sanguine as to it being one of the results of the proposed Commission. The objections which have been made to the Judicial Committee would be better worth consider- 411 ing, if it were not too often manifest that they are advanced in a spirit which can hardly be described as that of good faith. It has been represented as a packed tribunal, on no other ground than that in that Court, as in this House and in the other Courts of Appeal, it is sometimes necessary to arrange among the members of the Court who shall undertake the duty of attendance on particular occasions. Ever since this unreasonable suspicion has been entertained of the Judicial Committee of the Privy Council, it has been the practice to summon, in ecclesiastical cases, all the members of that tribunal, so that if any of them have not attended to hear those cases, it is entirely of their own accord that they have not done so; and it so happens that, on the last occasion when a large number of the clergy were discontented with the decision arrived at, there was an unusually large attendance of Judges. Another objection made is that only one judgment is given there, and no dissents are stated. This practice adds greatly to the authority of the judgments of the Queen in Council in Indian and Colonial appeals; and, before the Committee of this House which inquired into the Supreme Appellate Jurisdiction in 1856, it was approved, not by myself only, but by Sir Richard Bethell, Lord Romilly, and Lord Moncreiff, as the best for a Court of Final Appeal. Other opinions, of considerable weight, were, no doubt, expressed to the contrary. The Court of Delegates, to which the most rev. Prelate said some clergymen were beginning to turn regretful eyes, never gave reasons for its judgments. It is said that people do not know whether it is the Queen in Council or the Judicial Committee which is the Court. Constitutionally it is the Queen in Council, giving as high dignity and importance to the tribunal as any form can give—a dignity and importance which, although in this country it may signify but little, in the Colonies and in India signifies a good deal. The Queen in Council is advised by the Judicial Committee; the law is laid down by the Judicial Committee; and for all practical purposes they have an authority similar to that of your Lordships' House when acting as an Appellate Court. I was glad to hear the most rev. Prelate say that he was not disposed either to countenance any encroachment on the 412 judicial supremacy of the Crown, or to give any encouragement to the idea that the judicial supremacy is exercised at the present time on different principles from those on which it has been exercised in former times. The most rev. Prelate has told your Lordships that he has been unable, with all his researches, to find that Convocation was either directly or indirectly called into council when the Statute under which the Court of Delegates was established was passed. I can confirm that observation as far as my own researches go. I am not aware that on any single occasion on which any Statute of the Realm has been passed concerning the Ecclesiastical Courts, or their procedure, there has been any concurrent action whatever on the part of Convocation. The pretension that such action ought to exist is a novel one. With reference to what fell from the right rev. Prelate (the Bishop of Peterborough), I do not understand that it is proposed to extend the inquiry to the Rubrics. The right rev. Prelate said that it was necessary to the peace of the Church that the clergy should be able to read the law clearly in the Rubrics; that there should be a clear Ecclesiastical Law, and Courts universally accepted and acceptable. I should despair indeed of the peace of the Church if the realization of so Utopian a dream were really necessary. I do not assent to the Commission with any such sanguine expectation. What I have said shows that there is sufficient reason for the appointment of the Commission in the unsatisfactory—not to say the unworkable—and defective state of the law which determines the action of the present Ecclesiastical Judicatures. The present time for the Church of England is very critical. None of your Lordships, I should think, can help feeling that there do exist discontents which, unless they can be in some way allayed, have a dangerous tendency; that there exist pretensions and opinions from which, being impracticable, serious mischief may arise, unless they either give way to views more consistent with the principle of the relations of Church and State established since the Reformation, or are discouraged by so great a majority amongst the clergy and the laity of the Church as to make them comparatively harmless. I think your Lordships must agree with the right rev. Prelate, that 413 if it were possible to build a bridge of gold in order to reconcile the parties in the Church which are now in such violent conflict, it might be very wise policy to do so. I do not pretend to see my way clearly on that point. I do not pretend to prophesy, or to say that the result of the appointment of the Commission will be so advantageous as some may possibly suppose; but, at all events, I think the Government would be wrong if they did not show their willingness and their desire to contribute to the peace of the Church by any reasonable result which the appointment of this Commission may obtain.
§ On question, that the words proposed to be left out stand part of the motion, resolved in the affirmative.
§ Then the original motion agreed to.
§ The said Address to be presented to Her Majesty by the Lords with White Staves.
§ House adjourned at a quarter past Eight o'clock, till To-morrow, half past Ten o'clock.