Lords Sitting of 10 March 1892

CLERGY DISCIPLINE (IMMORALITY) BILL [H.L.]—(No. 19.)

  COMMITTEE.
  Order of the Day for the House to be put into Committee, read.
  THE LORD CHANCELLOR (Lord HALSBURY): Before putting the Question that the House resolve itself into Committee, I should like to say a few words on the subject of the Bill. My Lords, I desire to express my own earnest hope, and indeed that of Her Majesty's Government, that a very much-needed reform of the law may no longer be delayed. I cannot help thinking that a very interesting speech which we heard on the last occasion—which might have been very appropriate to the Committee stage, but which was not so appropriate to the Second Reading, recognised the fact that the principle of this Bill is one upon which it is impossible for anybody to entertain a doubt. That a clergyman, who has been convicted of treason or felony or the great misdemeanour which is involved in the description of misdemeanours included in the Bill, or the other moral offences to which it refers, should be no longer permitted to exercise public functions, is a matter upon which I do not believe anybody can be found seriously to entertain a doubt; and I cannot help feeling that it is extraordinary that that which would not be permitted in any other public employment whatever, I do not care what it is, where the most ordinary qualification of good character is required, should nevertheless continue to exist in a profession where the teaching of morality and religion is essential to the public function which is performed. I myself should think it would be a grave reflection upon any body of Christian men if they permitted such a state of things to continue. Everybody of course recognises how serious is the effect upon any community where a clergyman is known to have been guilty of such offences as these.
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  It is not confined in these days to the immediate vicinity where the offence has been committed, or where the clergyman is known. One effect of the great diffusion of knowledge of events is that, although, as the most rev. Prelate most accurately I believe represented, the number of cases in which a clergyman misbehaves himself are very small in proportion to the number existing in the Church of England, yet any one single case is known all over the Kingdom next day; and the scandal of a continuance of such a state of things is one the effect and operation of which, on every one who reads it or hears of it, is so evil that I think no one can possibly exaggerate it. Those who have known the immediate neighbourhood where a clergyman has been guilty, and has been known to be guilty of these offences, well know that the operation of it is not confined, as I think my noble and learned Friend (Lord Herschell) said, to the members of his own religious community, but it is acted upon and considered as a reproach to professors of religion generally; and it is surely an evil which ought to be abated, if it can be. It is principally in the Church of England that the difficulty arises, because other forms of religious communities have a very sovereign mode of dealing with such persons occupying the position of ministers in their communities—they are speedily disposed of. But it is the technicality of the Queen's Ecclesiastical law in England which makes the difficulty; and, whatever may be the value of that Ecclesiastical law, those, who have had either to argue upon it or to preside as Judges in respect of it, will not say that either in respect of speed or absence of technicality it is entirely free from reproach. The consequence is that time after time that, which ought to have been speedily and at once decided, has been kept hanging a long time in abeyance, and the result has been I believe very disastrous indeed, in more instances than one, to the immediate parish concerned. I would appeal to my noble and learned Friend, to whom I have already referred (Lord Grimthorpe). I trust he is not going to abide by the resolution he intimated last time that he would not move Amendments, or endeavour to

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  improve this Bill. I should be glad to see him apply his great learning and facility of dealing with such questions to improve this Bill, so far as it is capable of improvement. I am now speaking of the substance of the Bill, of which I understand he does not disapprove, but, on the contrary approves the principle. After all, what a small question it is that remains! I would suggest to my noble and learned Friend that he has given an importance to this small question which I certainly, and I think probably a great many of your Lordships do not attach to it. His suggestion is that it has been put in in order to establish something in the nature of an ecclesiastical aggression of which he does not approve. My Lords, I read this Bill with some care, and I confess such an idea never entered my mind; it may have been owing to my simplicity and innocence; but I cannot helping thinking that a great many other people, equally simple, and equally uninformed of the knowledge of good and evil which my noble and learned Friend communicated to us, would have been equally innocent to. After all what does it come to? It is a question of whether or not the principal ecclesiastical authority in the diocese should pronounce the sentence. What possible difference can it make? It seems to me to be a question that might very well be debated, and, if we could arrive at any conclusion, I should be very glad; but what I do earnestly suggest to my noble and learned Friend is this: Given an admitted state of things, an undoubted condition of scandal—to which it does occasionally reduce a parish—is it wise, is it decorous to a body of Christian men to allow that scandal to continue, because, upon some such question as this, they cannot agree upon the particular person who is to pronounce the sentence? I should have thought there would have been an effort upon the part of all persons concerned to get rid of any difficulty of that sort, so as to have the substance, at all events, of the proposed legislation, put upon a right footing, and not to prolong the existence of what no one can deny to be a great scandal because you cannot agree upon such a minor point as that. I say it is a minor point; I know my noble and learned
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  Friend says it is not, because it is an "ecclesiastical aggression," which it is his great vocation in life to resist; but he must forgive me for saying that other people may take a different view. And is it necessary to insist upon his own view in that particular? Supposing some foolish people have said some Very foolish things—and I am not prepared to deny that they have—are you to crystallise them, and make that body an absolute impediment to doing that which everybody admits ought to be done? I earnestly hope that such a proposition will not be insisted upon. My Lords, as to the question who is to pass sentence, there are many analogies. I might remind my noble and learned Friend, who is himself a very learned lawyer, that in times gone by (I do not know whether the practice continues at the present time) whenever a person was tried in the Court of Queen's Bench sitting in banc the sentence was afterwards passed during Term time by the Senior Puisne Judge. I do not think any Puisne Judge of the Court of Queen's Bench, however much he might disapprove of the verdict (and it is an extraordinary hypothesis to suppose that he would disapprove of such a verdict) ever felt called upon, in spite of his disapproval, to refuse to perform the duty which the Court called upon him to do. But there seems to be, in the mind of the noble and learned Lord, a difficulty in making the Bishop do his duty. I think it is rather hard upon the right rev. Prelates to assume that they will not do their duty; they will have had, by hypothesis, the finding of the fact to justify the calling upon them to do what the Bill calls upon them to do. I will not go into the question whether there ought to be a mandamus or any other form of compelling them to do so; for I will not believe that any right rev. Prelate would refuse to do his duty in that matter; but, if he should, although it might give occasion, to scandal in that particular case, I am sure, were such an event as that to happen, there would be very little difficulty in persuading either your Lordships or the other House to pass an Act of Parliament rendering such intervention unnecessary. I do not

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  believe any real practical difficulty ought to arise in such a case as this. I believe, the Bill is absolutely required for the purpose of removing a most serious scandal from the Church; and I do earnestly hope that no impediment will be placed in the way of passing it into law.
  LORD GRIMTHORPE: After my noble and learned Friend's appeal, your Lordships will of course expect me to say something. I agree with most of his speech, but upon one point, upon which I troubled your Lordships the other day, my noble and learned Friend has forgotten that I am only asking to have the Bill put back, in substance, to the condition in which it was settled by your Lordships last year with singular unanimity for such a Bill; especially if we compare it with the Bill of 1888, which failed from this cause as well as from others. My noble and learned Friend also forgot that I was not so much using my own words, or expressing my own views, about this particular point, as those of very much greater persons, namely the two Archbishops of York, who have, unfortunately, passed away. I cannot help thinking that if either of those great Prelates were present now we should not have seen this alteration in the Bill to which I chiefly object. I merely say that by way of justifying my taking action in the matter at all. But I will now say further that, although I said the other night that I should not move any Amendments, I merely meant that, if Her Majesty's Government chose to say they would not let the Bill pass except on the terms of keeping it exactly as it is, it was not likely that I should waste time and strength in trying to mend it. My noble and learned Friend (Lord Herschell), however, in the course of his speech, made what I think a valuable suggestion, which I am quite prepared to accept, if I understood it rightly: that if the Bishop should not be able physically, or should not be willing (which your Lordships will remember Archbishop Magee put strongly as a possible case), then some other ecclesiastical officer (I am quite willing it should be an Ecclesiastical officer) should come in and do for him exactly what that ecclesiastical officer does now, in cases
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  of necessity, in admission to benefices. That is the very analogy which the party, who have been moving for the last six months about this matter, have been continually talking about. They said "Bishops admit to livings; therefore Bishops only ought to deprive from livings." I answer that Bishops admit to livings if they choose; if they do not, they leave it to the Vicar General—there is a Vicar General in every diocese. I was in hopes that my noble and learned Friend would himself propose an Amendment in the sense he indicated the other night; that is the reason why I abstained. If anybody would move an Amendment of the kind proposed, I think it would be satisfactory to all Parties, and I am quite willing to do it if my noble and learned Friend does not.
  House in Committee (according to order).
  Clause 1.
  Amendment moved, in page 1, line 18, after ("preferment") insert—
  ("If any act required under this section to be done by the Bishop is not done within twenty-one days it shall be done by or with the consent of the Archbishop of the province.")
  Amendment agreed to.
  Clause 6.
  THE EARL OF SELBORNE: My Lords, this will be a convenient opportunity to mention that I have given notice in the proper quarter yesterday, but that notice has not reached your Lordships, of an Amendment to be moved in the shape of an additional clause which, if adopted, would come in before Clause 8. Clause 6 provides, amongst other things, for rules to be made as to the place of holding Courts; but this might be satisfied by regulations intended for the greater convenience of trial where no question of jurisdiction can be involved; and to avoid any such question I shall propose to move, in terms similar to those of the Bill of last year, that
  "subject to rules the provincial court in each province may be held in the administrative County of London, or in such place as the Judge may direct."
  The reason is obvious; because, whether counsel are employed or not, to compel the Judge of the Provincial Court of York always to go into that

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  province to exercise jurisdiction might often be a disadvantage to everybody and might create expense. Arid in fact it has for some time past been the law under other Acts. I know the learned Judge of the Provincial Court of York is of that opinion, because he has communicated with me upon the subject. Of course I do not mean to suggest that this matter should be withdrawn from rules. Subject to rules I propose to use the language of the Bill of last year. My Lords, I thought it right to mention my intention for two reasons: first, because the notice that I gave has not reached, your Lordships; and, secondly, because it may perhaps be the opinion of others that the words of Clause 6 make it unnecessary; but, as the question may involve a point of jurisdiction, I think it prudent to be on the safe side, more especially when you consider what the consequences might be of holding that the Provincial Court had acted without jurisdiction, and that the rule power did not extend so far: namely, that a clergyman, convicted of immorality, might escape. I do not propose any amendment of this clause; but I thought it the proper place to give notice of my Motion.
  THE ARCHBISHOP OF YORK: My Lords, I wish to move, if it seems good to your Lordships, that the quorum should be "three" instead of "two." Two is a very small quorum, and I think the Act would work better if we were to have three.
  LORD GRIMTHORPE: I must point out that in that case two ecclesiastics might make the rules against the Lord Chancellor, and I confess I do not like the idea.
  Amendment moved, in page 4, line 4, omit ("two") and insert instead thereof ("three").—(The Lord Archbishop of York.)
  Amendment agreed to.
  After Clause 7, new Clause proposed:
  "Subject to rules the provincial court in each province may be held in the administrative County of London, or in such place as the Judge may direct."—(The Earl of Selborne.)
  LORD HERSCHELL: Is not that a little too large without any sort of guide? It might enable the Judge,
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  merely for his own convenience, to hold the Court in any place he pleased, although it might not be the best place for hearing the case. It is going a little too far to enable the Judge to fix his Court in London whenever he thinks, fit, even for a York case.
  THE EARL OF SELBORNE: It was in that form last year that it passed the Standing Committee and the General Committee of this House; and it is the form, I believe, of an Act of great importance, relating to muck more controversial subjects now in force. I thought putting in the words "subject to rules" would obviate any difficulty upon that score. If a general rule were passed, the discretion of the Judge would be taken away of course to that extent.
  LORD HERSCHELL: I do not intend to oppose it at all; there will be an opportunity of considering it when it goes to the other Committee.
  Clause agreed to.
  Clause 9.
  THE BISHOP OF SALISBURY: In regard to line 40 "notwithstanding that he resides elsewhere," would the word "elsewhere" apply to a Conviction of treason or felony by a foreign Court?
  THE ARCHBISHOP OF CANTERBURY: It is intended that it should; it is to bring foreign chaplains under the cognisance of this whole procedure.
  THE LORD CHANCELLOR: I confess I doubt very much whether the-most rev. Prelate has effected it, if that is his object. There is no such thing; as felony abroad—it is treated generally Probably the most rev. Prelate does riot, mean treason committed against a foreign country. And with regard to misdemeanour, it is conviction on indictment and sentence to hard labour; which I think points to procedure in this country—you cannot go upon that. I think. There are other words applicable to those offences which I think might receive application to a foreign country; but the whole framework of the Bill means procedure in this country.
  LORD HERSCHELL: There is considerable force, no doubt, in what my noble and learned Friend says as to cases Of conviction of felony Or misdemeanour; but the latter provisions

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  which provide for the improved procedure in Ecclesiastical Courts here would of course apply.
  THE LORD CHANCELLOR: Yes: I am not speaking of that. It would be a question of proof here of offences committed elsewhere.
  THE BISHOP OF SALISBURY: The question would arise whether proof of conviction in a foreign Court would, under this Bill, be accepted in an Ecclesiastical Court in this country.
  THE LORD CHANCELLOR: No, certainly it would not be.
  Bill re-committed to the Standing Committee; and to be printed as Amended. (No. 41.)

GAMING ACT, 1845, AMENDMENT BILL [H.L.]—(No. 23.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD HERSCHELL: My Lords, in asking you to read this Bill a second time it is not necessary to detain you with more than a very few words. When I brought before your Lordships a Bill some little time ago I alluded to the fact that I proposed to introduce this Bill. Your Lordships are doubtless aware that by an Act of 8 & 9 Victoria any contract by way of gaming or wagering is rendered null and void, and it is provided that no action shall be brought or maintained in respect of it. Therefore no action can be brought in a Court of Justice in order to enforce the payment of a sum due in respect of a bet. But it has been held within the last few years that that Act does not apply to the case of a payment which is sought to be enforced of a sum due in respect of a bet when an agent has been employed to make the bet; that is to say, if an agent be employed to bet, and he is paid money in respect of that bet, it has been hold that he can bring an action to recover the money he has so paid—that the implied promise to pay that money is, not rendered void by the Statute of Victoria. The consequence is that there have been a number of actions brought in recent years in the Courts of Justice which have involved several days' inquiry into betting transactions; and I think everybody has felt—cer-
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  tainly the Judges who have had to administer the law have felt—that that was a scandal: that when you have made bets irrecoverable, and the Courts of Law have refused to recognise them as creating, an obligation, it is not seemly that you should have these actions brought, and should,, indirectly, in that way enforce betting and engagements which the law considers it to have been mischievous and inexpedient to do directly. The present Bill proposes simply to remedy that state of things by making null and void any promise, express or implied, which would give rise to any obligation already made null and void by the 8 & 9 Victoria. The Bill provides for that in a single clause, which requires no further explanation, and I hope your Lordships will give it a Second Reading.
  Moved, "That the Bill be now read 2a."—(The Lord Herschell.)
  Motion agreed to; Bill road 2a accordingly, and committed to a Committee of the Whole House on Monday next.

COLONIAL PROBATES BILL [H.L.] (No. 36.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE SECRETARY OF STATE FOR THE COLONIES (Lord KNUTSFORD): My Lords, the Bill, to which I now ask your Lordships to give a Second Reading, is the outcome of a discussion which took place at the Colonial Conference in 1887, and is framed to give effect to the wishes of the Colonial Governments as represented at that Conference by their delegates. Acts have been passed in several Colonies—Victoria, New Zealand, Tasmania, South Australia, and West Australia—which have provided that where probate and letters of administration have been granted for deceased persons who have property in the Colonies, if the probate or letters of administration have been granted by a competent Court in this country, they are to have the same validity in the Colonies as if they had been granted there. The delegates at the Conference asked, and I think with great reason,

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  that similar legislation should be passed in this country, so that probate and letters of administration granted in the Colonies for persons having property in this country should be recognised in this country. I may also add that similar provisions exist with regard to Scotland, Ireland, and England; probate or letters of administration granted in England for persons who have property in Scotland or Ireland are recognised in those countries. This Bill has been prepared and has met with the assent of the Colonial Governments generally, and it has been approved by the Treasury and Inland Revenue. I need hardly detain your Lordships by reading through the clauses. By the 1st clause Her Majesty the Queen may, on being satisfied that the Legislature of any British Possession has made adequate provision for the recognition in that Possession of probates and letters of administration granted by the Courts of the United Kingdom, direct that this Act shall apply. A duplicate of any probate or letters of administration granted in the Colonies and sealed with the seal of the Court, or a certified copy, can then be produced here and will be re-sealed: provided that the Court, before sealing probate, is satisfied that probate duty has been paid in respect of so much (if any) of the estate as is liable to Probate Duty in the United Kingdom; and, in the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property (if any) in the United Kingdom to which the letters of administration relate; and the Court is also empowered to require evidence of the same. There is also a power given to make rules to effect the carrying out of this Act.
  Moved," That the Bill be now read 2a."—(The Lord Knutsford.)
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.

  EVIDENCE IN CRIMINAL CASES BILL [H.L.] (No. 42.)
  Amendments reported (according to order); further amendments made; Bill to be read 3a To-morrow; and to be printed as amended.
  SHORT TITLES BILL [H.L.] (NO. 12.)
  Amendments reported (according to order); a further amendment made; and Bill to be read 3a To-morrow.
ROYAL NAVAL ARTILLERY VOLUNTEERS—COMPENSATION.

  QUESTION—OBSERVATIONS.
  EARL COWPER: My Lords, I need not go into the question of the disbanding of the Royal Naval Artillery Volunteers, because that has been already decided upon; it was referred to in this House last year, and I think all your Lordships, like everybody else, seemed to be of opinion that, whether it is right or not to disband these men, they are at all events a most praiseworthy body and deserving of every consideration, on account of their patriotic and energetic services, and the way in which, for the whole of the last 18 years, they have performed the duties which they have had to do. My Lords, it is now decided that these men are to be disbanded, and they are too loyal a body not to bow at once to any decision of the Admiralty deliberately come to, and which is to be carried into effect. They are most of them, I may say almost all of them anxious to continue to serve their country in one form or another; in this they hope to be under the War Office, for which I believe every facility will be given to them. I believe the War Office are now taking into consideration how far they can meet their wishes and make them into companies; so that they may remain together as much as possible. The question of compensation, to which I desire to call attention at this moment, is rather a pressing one; for I believe a Committee has been appointed, and is now sitting, to determine what compensation they are entitled to. I may say that a report has got about, whether rightly or wrongly founded I do not know, that they are not to receive compensation for these particular matters which I have noted down—for money expended on drill batteries and premises and on the fittings of ships. Now, my Lords, these amount, I believe, to a good deal. I hope this report may not be true. It may be said perhaps that

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  we ought to wait until we see whether this report is well-founded, or whether these things are to be taken into consideration, before moving in the matter; in other words, that we ought not to cry out before we are hurt. But we should remember the common answer to that remark—that it is no use crying out after you are hurt: it may be too late; the moment this Committee has reported the whole thing will be wound up, and it will be too late to do anything. That is my excuse for moving at the present moment. As I say, it will make a great deal of difference whether these things can be taken into account or not. Nobody, of course, would propose that the whole value of what they have spent from the beginning, in this or any other matter, should be paid to them; but I think it is only fair that the value of these improvements should be taken as it now stands, and that they should be treated very much in the same way as a tenant farmer is treated when he is turned out and receives compensation for what he has spent upon buildings. My Lords, I need only say further that an enormous amount of money—I may say tens of thousands of pounds—has been spent by the officers of these corps during the last 18 years, for which they can receive no compensation; anyhow they must be very much out of pocket. I think, therefore, there is all the more reason for being liberal where you can be liberal. I am quite sure your Lordships will feel that a body of men who came forward at the invitation of the Government, who have been praised in every Report which has been made year by year by those who have inspected them, should be not only justly but generously treated, and that, if necessary, a point should be strained in order, as far as possible, to meet their wishes in a liberal spirit, instead of the contrary, which is what I am very much afraid is going to be done. Without more remarks I will ask Her Majesty's Government the question of which I have given notice: whether the compensation proposed to be given by the Admiralty to the Royal Naval Artillery Volunteers on their disbandment is to include compensation for money expended on drill batteries and premises, and on the fittings of ships?
  LORD ELPHINSTONE: My Lords, when this question was before the House in June last, I, among other noble Lords, bore ample testimony to the value, the deal, and the ability which this corps had shown, and to their ability in gunnery. I then stated, in answer to Viscount Sidmouth, that the Admiralty, having decided that this corps should be disbanded, would appoint a Departmental Committee to inquire into all just claims for compensation. That promise was carried out, and the Committee was appointed in November last. It consisted of Mr. Scott, Assistant Accountant General; Mr. Maxfield, Surveyor of Coastguard Buildings; Mr. S. Smith, of the Artillery Volunteers; and also an officer to be nominated by the commanding officer of each brigade to represent his old corps when the circumstances of that particular corps were under the consideration of the Committee. The instructions given were, I think the noble Lord will bear me out in saying, extremely liberally worded. They were as follows:—
  "The official members of the Committee are instructed to deal with all claims for compensation in a spirit of liberality; they are to assume, on the part of the Admiralty, all financial obligations undertaken by the various corps; and they are to recommend grants of compensation to the officers and men for the unused value of their uniforms."
  The drill sheds, of course, come under this qualification. The Committee have been down to Brighton and investigated the claims of that corps; but the Report has not been received by the Admiralty, because the official members have recommended certain things from which the members of the Volunteer Corps dissent—therefore the Report has been sent back for the Minority Report to be appended. The Committee are now at Glasgow inquiring into the expenses which that corps has entailed However, no steps can be taken until we have got a full Report on the whole of the different districts before the Admiralty; and, that being the case, it would be premature for me now to say what or what not will be considered just claims for compensation. But I will repeat again that, according to the

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  terms and, instructions to the Committee, the Admiralty are anxious to deal in every respect with extreme liberality.
  House adjourned at a quarter past Five o'clock.