§ Order of the day for the Third Reading, read.
§ Moved, "That the Bill be now read 3a".—(The Lord Archbishop of Canterbury.)
THE ARCHBISHOP OF YORK
, in presenting two Petitions against the Bill from the clergy of his diocese, said, that the measure as originally drawn contained some very extraordinary and unjust provisions. It was in order that time should be given for the consideration of those provisions that on former 1808 occasions he had suggested that the Bill should not be passed with precipitation. The reply was that, on the whole, it was expedient to go on with the Bill in its amended form. The measure now before the House was practically a new Bill; not only did it deal with new matters, but it bore a new title. Originally the Bill was called the "Church Discipline Bill"; now it appeared as the "Clergy Discipline Bill." To the clergy in his diocese the measure was far from acceptable, the reason being that it provided a novel and very bad first Court, while it made no provision at all for appeals. The Court consisted of six persons—the Chancellor, three clergymen, and two laymen. The Chancellor was made absolute on matters of law, and had power to say what was a matter of law and what was not. The Court was neither a Judge nor a jury, but it would be a tolerable jury if the Chancellor were not there. This Court would not meet with general acceptance, and it was not the best that could be devised. It was not the Court recommended by the Ecclesiastical Courts Commissioners, nor was it recommended in any other way; but it was an invention arrived at he knew not how, and it seemed to satisfy none of the conditions of a good Court. It was not what those who were called High Churchmen had asked for. The measure would destroy the old Consistorial Court altogether, and nobody wished it to be destroyed. Both Convocations had approved the recommendations of the Ecclesiastical Courts Commissioners, who condemned the notion of a Court consisting of several persons deciding by a majority, and recommended that the Bishop and the Chancellor should be Judges. It was a novel Court, and there would be difficulty in working it. The Bill involved the creation of many new Judges, for every diocese was to have one of these Courts; there would be from 180 to 200 of these Courts, and in the intricacies of local procedure, which would be more expensive than before, there would be great difficulty in getting them all to work harmoniously. Another extraordinary thing was that a Bishop might not be a promoter of a suit. Others would not deem it a desirable thing that they should have to institute prosecutions in these criminal cases. The Bishop was ousted from the Court, and all that he had to do was out- 1809 side. It would be unfortunate if this should prevent or delay inquiry in cases in which reports were current impugning the character and conduct of clergymen. By way of compensation the Bishop had some minor powers given him. The only inducement offered to them to accept this measure was the supposed cheapness of procedure, about which, however, there was considerable difference of opinion. There were seven steps which the Bishop had to take if he wished to get a case heard; and on the whole it could not be said that this was the best or strongest course possible, or that the Bill provided the simplest mode of procedure. With regard to the refusal of appeal, he thought he was justified in asking why this right, which was inherent to the laws of every country, was to be taken away by their Lordships' House without the slightest notice, and upon a single night's debate? The clergy would find that they had been placed in a totally different position from that with which they had been familiar by the action of their Lordships' House. The right of appeal was expressly recognized by the law. He had taken the course he had pursued in regard to this measure with great pain and regret, especially considering the lateness of the period at which he had intervened, and the fact that he had to differ with the most rev. Prelate (the Archbishop of Canterbury), and other Members of the Episcopal Bench; but he must say that the clergy ought to have known what was being done, so that they might have been able to express their opinion on it. He did not intend to move the rejection of the Bill. His object was to ask for delay, so that the measure, which he considered so bad, might be judged, not by himself, but by those who were best able to judge it. If the Bishops were framing a measure by which they themselves were to be tried, they never would have framed such a Bill as this; and he would say further, in the presence of great legal lights, that it was impossible to suppose that such a measure as this, without any appeal and with so strange a tribunal, could have been drafted. Considering the position and services of the clergy he did think they ought to be thoroughly protected by that House and by the Bishops who had seats there. He hoped, therefore, that the measure would 1810 come to an end, so that the clergy might feel that they were protected by the law, and so that the right of appeal, which had never been denied to them, might not be taken away.
THE BISHOP OF LONDON
said, he wished to supplement the account which had been given of the original drafting of the Bill in order to show that they had done their very best to make the matter thoroughly intelligible to all concerned in it. It had been agreed that a Bill of that sort should be prepared by the whole body of Bishops in July last, and a Committee was appointed to prepare the Bill. Of that Committee the most rev. Prelate who had just spoken was a Member. They agreed to meet on the 21st of November at Addington. The most rev. Prelate who had just spoken concurred in that, but he was prevented at the last moment from attending, having another engagement in a Court of Appeal. The Committee were, therefore, obliged to proceed without him, and the Bill was sketched out under the presidency of the most rev. Primate of the Southern Province. The cases dealt with by that Bill were not like doctrinal or ritual cases; the decision of which turned almost entirely on matters of law, and which, therefore, should come as speedily as possible to London, where they could be litigated with all the advantage of having at command the best possible legal assistance. The cases dealt with in that Bill, on the other hand, turned, as a general rule, not on points of law but on questions of fact; and, therefore, it was thought that they should provide that those questions of fact should be determined, as under the ordinary Common Law, by investigation on the spot. It was considered that that would not only largely diminish expense, but would be more likely to secure a sound decision. It was the universal principle in all criminal business before the Courts of the State. There all those questions were decided on the spot by a jury. They were perfectly aware that it was not right that the Court should absolutely decide such questions. There was no appeal that he had heard of from the verdict of a jury in a criminal case, and no means of interfering with that verdict except by the use of the Prerogative of the Crown. There did not, therefore, seem any reason 1811 why there should be any very marked difference between these cases and those which were ordinarily submitted to a jury. But they felt that it would not be right in all cases that it should be left absolutely to the decision of the Court of First Instance with no possibility of having the decision reviewed, and for that reason from the beginning there had been in that Bill provision for a rehearing which was in reality an appeal, the difference being that it was a rehearing on the spot; and that seemed to them the right way of dealing with those questions of fact. He had himself sat on these cases of appeal in the Supreme Court, and he thought that nothing could be more unsatisfactory. They had to deal with the evidence put before them printed on paper, and had to examine it; and it seemed to him impossible not to be weighed down by the sense that the judgment pronounced on that evidence given on paper was in reality a judgment to the last degree given in the dark. They had the statement of the witnesses, indeed, but knew nothing at all of their demeanour. There was no distinct and clear record of how the evidence was exactly given; and he felt that it must be exceedingly unsatisfactory that the Court below, having come to a certain conclusion with the witnesses in person before it, should afterwards be overriden by a judgment pronounced with no witnesses before the Court at all. They inserted, therefore, a provision for a rehearing; upon different suggestions that were made that provision was strengthened, and they were prepared to strengthen it still further. But that anything would be gained by appeal on questions of fact in the absence of the witnesses was a very doubtful thing indeed. If there was any ground for a rehearing they were more likely to get justice done by having the case reheard with the witnesses before them than by sending it up to London to be judged of without the presence of witnesses. That provision as to a rehearing having been in the Bill all along, if the most rev. Primate who had spoken last objected to the provision, he could not understand why his objection came so very late. Another point was this. A measure was passed about three years ago called the Pluralities Act Amendment Act, which constituted a Court for the consideration 1812 of cases where clergymen were charged with the neglect of their ordinary ecclesiastical duties. That Court had now been in operation for three years; it had been worked in several dioceses, and had been found to work exceedingly well; and it had seemed to them that they could not do better than adopt a Court which had been actually tried, and which experience showed to be very efficient. They did not think it would be wise to leave the question of whether a man had been guilty of an offence absolutely to a single individual. The Diocesan Court would have decided such a matter by the judgment of the Chancellor. The Committee met again on February 8, and went through the drafted Bill. The Primate of the Northern Province was present all the time that they were discussing that question, and he could remind him of what he said on the matter. The Bill then contained a reference to that Court as constituted by the Pluralities Act Amendment Act. The Bill simply provided that the Court, as constituted under that Act, should be the Court for the purpose of this Bill. The Primate for the Northern Province objected to that, and said it was not right that the Court should be defined by reference to another Act, but ought to be fully defined in the Bill before them, on the ground that it was a Bill of very high importance, and that the other Act was a very subordinate one. They entirely acceded to the suggestion, and they accordingly provided that the Court should be such as was provided by the Pluralities Act Amendment Act, but that it should be described in words, and not by reference to the above-named Act, and accordingly that had been done. The most rev. Primate of the Northern Province was there when they settled that matter, and they had done with that question before he left the room. The most rev. Primate did not stay the whole time, he knew; the exact moment when he left he could not say; but he had every opportunity, with the Bill in his hands, of saying anything he pleased on the question of a rehearing being substituted for an appeal, and he did not take the trouble.
THE BISHOP OF LONDON
The most rev. Prelate said he did not know it and did not read it; but it was in his 1813 hands, and they could do no more. If he would not read it, and said he know nothing about it, what could the Committee have done more? The most rev. Prelate told them now that he did not read it. He was sorry indeed for that, but surely they were justified in assuming that he really was cognizant of the matter as far as they were concerned. There were two other Courts besides that one, because there was a choice left between three distinct Courts. When the Bill was read a second time objection was taken to that, and it was urged that it would be far better to define the precise powers of that one Court, and to make it stand alone, and not to leave any alternative. Accordingly, when the Bill was altered in Committee, what was done was to keep that Court, but to define it more exactly, and to lay down that in that Court the Chancellor should have the decision of questions of law, and that the other members of the Court should only decide questions of fact; and to make it more clear they inserted words to the effect that the Chancellor should not only decide questions of law, but should also decide what were questions of law and what were questions of fact. The Court, as so constituted, would be a really strong Court. He had no doubt that it would do its work with ease and efficiency, because, having already tried those Courts, they knew what they could do, and there was not the slightest difficulty in working them. This, then, was the position which the Bill occupied. The things which had been objected to had been in the Bill from the beginning, and any changes made in the Bill had been introduced in order to make matters clear where they were likely to be misunderstood. The two matters to which the most rev. Prelate objected had been before the clergy for some time, and they had had ample opportunity of understanding the mode in which it was proposed to deal with those cases. He had no doubt that the most rev. Prelate could, if he chose, bring forward many Petitions from the clergy against the present measure, or against any other Bill which he did not happen to like. But he could testify that he had received, since the introduction of the Bill, constant encouragement to go on with it. Again and again he had been told by the clergy that they did not wish to keep black sheep among 1814 them. He believed this to be true. There was no body of men who would be more grateful if scandalous living clergymen were removed from their midst; and he believed that if this Bill were passed into law it would do a great deal to bring about that result.
THE ARCHBISHOP OF YORK
explained that he deeply disliked the Bill from the first, but having been prevented from taking part in the initial stages of it he had withdrawn from its consideration until now.
§ LORD HERSCHELL
said, he thought their Lordships had some ground of complaint against the most rev. Prelate who commenced the discussion. The measure was of great importance to the clergy of this country, and upon such a question their Lordships naturally desired to obtain all the assistance and guidance possible. A large number of their Lordships had been actuated by one motive only—to assist the most rev. Prelate who introduced the measure, and to make the Bill as good as possible for the purpose of regulating and making less expensive and onerous than at present the getting rid of clergymen who were a disgrace to the Church. That was an object in which all their Lordships had an interest. Unless, then, the most rev. Prelate was of opinion that no amendment of the law was necessary, surely their Lordships might have expected that he would render to them all the great assistance which he was so well capable of affording in order to make the measure as good and effective as it could possibly be made. He did not understand the most rev. Prelate to say that the law was not unsatisfactory. He thought he would be a bold man who asserted that the law was satisfactory. If, therefore, the law was unsatisfactory, surely their Lordships received but little assistance by a speech on the third reading of the Bill which did not guide them to a correct conclusion, which did not point out what should be done, but which merely pointed out what had been done, and which simply invited in "another place" the rejection of a measure to which their Lordships had devoted a great deal of time and attention. The most rev. Prelate had explained that he did not agree with the Bill as introduced and as discussed among the occupants of the Episcopal Bench, and therefore he had taken no further part in the discus- 1815 sion. That might be a satisfactory explanation, but the bulk of their Lordships were in a different position from the Episcopal Bench. When a question of this kind was introduced to the notice of their Lordships, surely they had a right to anticipate that if the most rev. Prelate differed from the other occupants of the Episcopal Bench he would say why he differed, where he thought the Bill wrong, and where he thought it could be made better. He understood that the main objection was taken to the want of appeal on questions of fact. He admitted the force of many of the observations which had been made; but their Lordships were in this difficulty. If they allowed an indiscriminate right of appeal, they would sanction at the same time an indiscriminate right to cause expense. They must, therefore, determine which was the greater evil. This Bill dealt with moral offences which did not come within the scope of the Criminal Law. Here it was thought that questions of fact, but not of law, might be determined by a tribunal consisting of several individuals whose decision might well be accepted. It must be remembered, too, that in cases of a far graver character than these, and where the consequences were infinitely greater, a certain number of individuals did determine questions of fact. The most rev. Prelate might have assisted their Lordships in determining to what extent an appeal might be allowed on special application and if a sufficient case had been made out, without at the same time increasing the burden of expense. He had no doubt that if the most rev. Prelate had any suggestions to offer likely to cause the Bill to assume a better shape their Lordships would be ready to listen to him and to consider the proposals. He could not help, however, deprecating the general attack made on a Bill having a most laudable object in view and to which great attention had been given, an attack which might hinder the chances of the measure "elsewhere," without bringing their Lordships nearer to the solution of a very difficult question.
§ LORD COLERIDGE
said, the noble and learned Lord had said that he must be a bold man who would say that he was satisfied with the state of things at present existing. He was bold enough to say that in the matters dealt with by 1816 this Bill the present state of things was better than it would be were the proposed changes made. He would add that if it was really correct, as the right rev. Prelate (the Bishop of London) had said, that the Bench of Bishops had no object, in the three separate and utterly different editions of their Bill, but to make its original meaning more clear, he could not congratulate the Episcopal Bench upon the success of their endeavours.
THE BISHOP OF CARLISLE
said, he thought that if the Bill had any excellence at all it was in the character of its Court of First Instance, which would be able satisfactorily to decide questions of fact. Five men chosen in the way proposed by the measure did, in his opinion, constitute a very good Court of First Instance; and, although it was neither judge nor jury, it possessed in an excellent sense the qualifications of both. With regard to the veto, to which objection had been made, he could understand that there might be a difference of opinion when the question was one of doctrine or ritual; but he wondered there could be any difference of opinion in the matter of moral offences. It might be a grievous wrong to a clergyman even to be put upon his defence. He could not understand how the most rev. Prelate could be satisfied with the system of Letters of Request; the most rev. Prelate had mentioned to him a case in which it had cost him £600 to get a clergyman suspended for six weeks.
THE BISHOP OF LIVERPOOL
said, he agreed with the most rev. Prelate that the Bill contained many objectionable provisions. He could not approve any measure of ecclesiastical reform which contained a power of veto by the Bishops such as was to be found in the present measure. A Bishop was, after all, but a man, and should not have the power alone of preventing proceedings. He objected also very much to the prevention of appeal on all matters of fact. He did not think that the proposed tribunal was likely to be a very strong one. He also believed that the old system of inquiring into charges against a clergyman by means of a Commission had answered very satisfactorily. The Bill ought to have been brought before the whole body of the Church before it became law, but it had never been examined by any Congress or Diocesan Congress.
§ THE EARL OF SELBORNE
said, he thought the Bill as it stood would effect a great improvement in the existing law. In his opinion there was no solid foundation for the objections which had been raised against it. The laity, as well as the clergy, were interested in these matters; and a body of laymen selected from all the dioceses of the country, over whom he had the honour to preside, had by one unanimous voice expressed their opinion that there ought to be no appeal on matters of fact in these cases; and when it was provided, as in the Bill, that there should be a new trial, everything was done that justice required in the interests of the accused person. By doing more they would be throwing unnecessary expense upon persons whose duty it was to take steps to have unworthy clergymen removed from their offices. He protested against the notion that protection for the accused should be carried to the extent of obstructing the course of justice. In every sense that justice required, a full right of appeal was given by this Bill. The right of appeal on questions of law remained unimpaired, and the right to a rehearing, upon proper grounds, on questions of fact. This was more than existed in criminal, and as much as existed in civil cases. As to the alleged hardship of there not being a right of appeal when the Court was divided in opinion, the most rev. Prelate in charge of the Bill was, he understood, about to provide, by amendment in this stage, that there should be a right of appeal in all cases when the Court below was divided.
§ LORD GRIMTHORPE
said, he would like to know whether the judgment was a matter of law or a matter of fact? In his opinion the means of giving judgment provided in the Bill were contrary to the principles of English justice. He objected to the Bill which made the Bishop, Judge, executioner, prosecutor, and pardoner. The Bishop was given a right of veto and of refusing to pass the sentence which the Court thought ought to be passed. Besides the Acts and the Canon of 1571, which he had cited before as showing that the Bishop had never had any right to interfere at all, and much loss to stop the sentence of his own Court for deprivation, the felony Act of 1870 still more distinctly decided against it, by making conviction in the Civil Court, ipso facto, deprivation for ever.
§ THE LORD CHANCELLOR (Lord HALSBURY)
said, he did not quite understand the point of the noble and learned Lord with regard to the judgment. Every judgment was made up partly of law and partly of fact. When the verdict had ascertained and determined the facts then the Court pronounced judgment. That was what was proposed in the present Bill.
§ On Question, resolved in the affirmative: Bill read 3a accordingly: Amendments made: Bill passed, and sent to the Commons; and to be printed as amended. (No. 147.)