§ House again in Committee (according to order).
§
Amendment proposed—
Page 3, lines 15 and 16, leave out 'and his decision thereon and his finding,' and insert and find.'
Line 17, after 'disqualification,' insert 'and his decision on such questions of law and his finding as to any such fact.'"—(The Earl of Portsmouth.)
§ THE EARL OF PORTSMOUTHI do not think I shall occupy your Lordships' attention very long in moving this Amendment, because I rather hope that my noble Friend and I are at one with regard to the principle. The Amendment which I move is really for the object of making the intention of the clause clearer than it is, and with the object of making the language more direct. The language as it stands now appears to infer that the lay judge is to decide all matters connected with the fact of the unfitness or disqualifications of the presentees. What I want to do is to alter the clause so that there can be no doubt upon that point. I believe that to be the intention of the clause as it now exists, but I much prefer my version, inasmuch as I consider it to be more clear.
§ *THE EARL OF SELBORNEI think that the noble Lord's words are more clear, and I am prepared to accept them.
§ Question put.
§ Amendment carried.
§
Amendment proposed—
Page 3, line 32, after 'justice,' insert 'provided that the bishop shall not be ordered to pay costs in any case in which the judge's finding is in his favour.' "—(The Archbishop of Canterbury.)
*THE ARCHBISHOP of CANTERBURYMy Lords, it appears to me and to my brethren on the bench that it was not 10 unreasonable, inasmuch as we were abolishing the quare impedit and duplex querela in all these cases, that the bishops should be made a party to the proceedings, and consequently be liable to the payment of the costs as they would have been if these two modes of proceedings had still remained. In a suit for quart impedit or duplex querela, the bishop is liable to be cast in costs, but it did not seem quite just that when the bishop had been proved to be right upon the question of law and the question of fact that he should be liable to costs because his discretion was not confirmed by the archbishop. If the matter comes to a question of discretion it is obvious that the bishop is on the same footing as the judge, and ought to be set free from any consequences of his action, and I therefore propose to add—
Clause 3, line 32, the following words after the word 'justice,' 'provided that the bishop should not be ordered to pay costs in any casa in which the judge's finding is in his favour.'
§ *THE EARL OF SELBORNEMy Lords, I feel some difficulty in combating the argument that is in the most reverend prelate's mind, because his experience of costs in these matters must be so much, greater than my own. But I must ask him whether this Amendment of his is not somewhat dangerous? Does it not follow by implication that if these words were adopted that the bishop should always be ordered to pay costs in cases where the judge's findings were not in his favour? Is it not really better to leave the provision as to costs as it stands in the Bill? According to the Bill the question of costs is to be decided by the court—the whole court—that is, the judge and the archbishop sitting together. Personally, I think it would be wiser to leave the judge to correct the archbishop and the archbishop to correct the judge than to put in any specific directions of this kind which might possibly be double-edged. The Government have considered the most reverend prelate's Amendment, and I am bound to say that they prefer not to insert the Amendment, but to leave the Bill as it stands at present.
*THE ARCHBISHOP OF CANTERBURYI am bound to say that I am not convinced by the argument of the 11 noble Earl, but I do not feel that the point is of sufficient importance for me to press it upon the House against the decision of the Government, and therefore I will consent to its being withdrawn.
§ THE PREMIER AND SECRETAEY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)I cannot allow this short conversation to pass without pointing out that it raises really the great difficulty of this Bill—who is to pay? As I understand, if the bishop is wrong he is to pay. That is reasonable enough; but, also, if the bishop is right he is to pay—there is nobody else to pay. I believe there is nobody to pay for the room in which the proceedings are held; there is no way of paying for the judge who is to come, down; in fact, as an eminent legal authority said to me in almost a pathetic tone of voice, there is nothing to pay for even a clerk. I have no suggestion to make at this point, but I would earnestly commend this matter to the consideration of noble Lords, whether some means of paying for these expenses must not be provided, otherwise the Bill will become a dead letter.
§ LORD HERSCHELLAs regards the Amendment, I quite agree with the noble Earl, because I do not know that anything will be gained by inserting it, and it is not necessary for any practical purposes. Of course, these costs could only be imposed upon the bishop, notwithstanding his success, by an agreement of opinion between the judge and the archbishop. I think it must be some very extraordinary case in which the judge and the archbishop should agree that though the bishop is right he is to pay the costs. I do not know that the case is of great importance; there is no practical danger in it, and therefore the matter can be left as it is. With regard to the observation of the noble Marquess, there is no doubt that the Bill does need serious alteration in the way of providing for the payment of expenses. Under this Bill all cases in the province of York are to be heard before the Archbishop of York. Therefore the judge must journey to the province of York in order that the case may be heard. But there is no provi- 12 sion for his expenses in going to the province. Whether he is expected to pay them himself I do not know, but I think some machinery is wanted, because, so far as I can see, there is not even any method as to how the court is to be called together. Is the archbishop to summon the judge, or is the judge to summon the archbishop? Some provision must be made or some machinery devised whereby the court can be brought together, and undoubtedly there must be some more machinery inserted than is to be found in the Bill.
THE LORD CHANCELLORI think in respect of some part of the machinery—I am afraid I cannot say the same with reference to the question of expense—the objection might be obviated by making the learned judge, daring the time he occupies the position of a person nominated, a member of the Rule Committee of that particular body.
§ Amendment, by leave, withdrawn.
§
Amendment proposed—
Page 3, line 41, leave out from 'archbishop' to the end of line 42, and insert 'a bishop of his province to be nominated by the Queen under her sign manual.'"—(The Earl of Selborne.)
§ *THE EARL OF SELBORNEThe Amendment down in my name is of some importance. As the Bill stands at present, in the case of an appeal in the matter of a diocese belonging to either of the archbishops, it is obvious that the archbishop interested cannot sit in the Court of Appeal, and therefore the Bill provides that the other archbishop can take his place. I do not think that that provision is historically defensible, and I have accordingly put down an Amendment to the effect that the archbishop's place should be taken in that case by a bishop of his province, to be nominated by the Queen under her sign manual. The most reverend prelate has put down as an Amendment a provision that has been considered in connection with these Bills previously, and that is that the archbishop's place shall be taken by three bishops of his province. The question therefore, for your Lordships to decide is not as between the archbishop and the archbishop of the 13 other province, but as between one bishop of the province or three bishops of the province appointed under the Queen's sign manual. A very strong expression of opinion was given in the House of Commons against entrusting this system to three bishops of the province, the ground taken being that it was quite an unnecessary abstraction of the bishops from their already too onerous duties, and that to direct three bishops to do the work that one man could properly perform was undoubtedly trespassing upon their time. I do not think it is necessary to follow that argument at length. It is sufficient to state that it was thought of very great weight in the House of Commons, and it was that argument that made the majority so large when the Division took place. But there is really sound ground for objecting to the three bishops in the place of one. Three bishops have to be substituted for the archbishop, and the vote of the majority, I think, would have to reckon as the vote of the archbishop. But, my Lords, there are cases where it is not possible to say whether there is a majority at all. Take the question of costs. Each bishop might have a different view as to costs, and you would have the sitting archbishop and the archbishop divided into three, having between them four different opinions as to what the costs ought to be. It is quite obvious that in that case no order could be made, and, therefore, on the ground of convenience—and it is obvious that that found weight with the House of Commons—and on the grounds of detail connected with the work of the court, Her Majesty's Government, after very long deliberation, have come to the conclusion that they cannot accept the Amendment of the most reverend prelate, and that they must support the Amendment that is down in my name. I need scarcely say that the Amendment having been put down in the name of the most reverend prelate the greatest consideration and deference was given to it, and if the decision of Her Majesty's Government does not command the assent of the most reverend prelate I can only express my sincere regret for it; but after, as I said before, prolonged consideration, the Government are not able to accept his view of the case.
*THE ARCHBISHOP OF CANTERBURYThe argument which the noble Earl has just presented to us seems to me to be hardly consistent. He finds that to keep the Bill as it stands and to have an appeal from the archbishop of one province to the archbishop of another is without historical precedent and it certainly would be quite impossible to find any historical reason for allowing the archbishop of one province to intrude into the province of another; but he will, I think, equally find that there is no historical precedent for an appeal of this kind from an archbishop to one of his own suffragans. The idea of the Church generally was always that the appeal should be from the archbishop to his Synod—that is, all of his suffragans put together. But it is obvious that that would be too large a body, and that the proposal to have three of them is a proposal really to represent that body, and that is in accordance with the work of the Church in past times. But this proposal is certainly not in accordance with any such workings; and I think that in all these matters, when you are dealing with a Church which goes back so many centuries, it is of real importance that you should, if possible, make the clergy feel that the machinery used is machinery of a kind which harmonises with all the traditions of the Church in the past. I cannot say that the argument used by the noble Earl, that we might have these three bishops each with a separate opinion of his own as to what the costs are to be, and, therefore, there being, with the archbishop's opinion, four separate opinions upon that point, is a very powerful argument. They could talk it over till they came to a conclusion, and I have very little doubt that when you get three bishops talking it over together there would be two of them at least that would come to a harmonious conclusion, and thus they would outvote the third, and the decision of those two would be the decision of what would in other cases be come to by the archbishop. I do not deny that there are impossible things that may happen. You have always, of course, in legislating to bear that in mind; but I must say that I think these things are impossible. But it cannot be denied that the Government have introduced something which is totally at variance with our past history and alien to 15 our past traditions. I am quite sure that the clergy will dislike it, and I am quite sure that the bishops, as a rule, will also object to it very much.
§ LORD HERSCHELLThe noble Earl said that the question was whether the matter should be left where the archbishop may not act to one bishop of his province or to three; but there is the preliminary question whether the matter is to be left as it is to one or other of the archbishops, as the case may be. That is the first question which is to be determined. Personally, I very much prefer the Bill as it stands to either of the amendments. It is quite true there is no historical precedent for an archbishop intervening in the case of an appeal with regard to a benefice not in his own province; but, then, the whole of this procedure is new. You are creating a new court, with new jurisdiction; and the question is, how can you best constitute it under the circumstances. The noble Earl's proposal sins against historical precedent; but there is no historical precedent for submitting the determination of an archbishop to an appeal heard by one of his own bishops. That is equally unsupported by historical precedent. Now, creating as you are this new court, is it not much better to put it in this way—that the Court of Appeal consists of the two archbishops, each acting for matters in his own province when he is qualified to act, but either archbishop acting when the archbishop of the province concerned happens to be not qualified to act because it is an appeal from himself. That seems to me to form a very proper and intelligent tribunal, and that is really the effect of it. You make the two archbishops members of the Appeal Court and one of them only acting, always for his own province when qualified; when disqualified, then the other archbishop acts in his stead. That seems to be much better than leaving it to one bishop in the province. It seems to me that there is something hardly seemly in the fact of an appeal from an archbishop to a bishop.
§ *THE EARL OF SELBORNEIf the most reverend prelate prefers the Bill as it stands, the Government are quite prepared to accept that view of the case. What they are not prepared to accept is the substitution of three bishops.
*THH BISHOP OF SALISBURYI very much prefer the archbishop's amendment. I believe it would work perfectly easily, and I cannot say that what the noble Earl has said has tended to diminish my belief in that regard.
THE EARL OF KIMBERLEYThe noble Earl, I think, has carried deference to the most reverend prelate rather too far. I have much respect for the highest dignitary of the English Church; but this is one of the Houses of Legislature, and I do not think the question can be, or should be, decided simply upon the opinion of the most reverend prelate. We have to determine for ourselves, exercising our own judgment as to what will be best. I have no great qualifications to give an opinion; but where the question lies between the archbishop of one province and the bishop of the province, it seems to me far more seemly and dignified that the archbishop should act.
THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRSI do not think that there is any doubt about our wish, so far as the most reverend prelate is concerned, to carry conciliation as far as we possibly can. As it appears to the Government that the amendment they propose is unacceptable to the most reverend prelate, and as they cannot accept the most reverend prelate's amendment, they would much rather stand by the Bill as it is.
§ Question put.
§ Amendment negatived.
THE CHAIRMANYour Amendment and the Amendment of the noble Earl are both the same, and the Amendment has been put and lost.
§
Question put—
That clause 3, as amended, stand part of the Bill.
*THE ARCHBISHOP OF YORKI should wish to say a very few words on a matter connected with this clause. This is one of the chief disciplinary clauses of the Bill: but I should be very sorry 17 if it were supposed that this is the beginning of discipline in the Church of England. On the Second Reading of this Bill the noble Marquess the head of Her Majesty's Government used the expression "There is no discipline in the Church of England," and a few moments afterwards he repeated, with considerable emphasis, "There is no discipline in the Church of England." I feel quite sure that the noble Marquess must have used this expression in some very limited sense, but at the same time it has given a good deal of offence and caused a good deal of anxiety to both clergy and laity. No one who has studied the rubrics of the Book of Common Prayer can fail to see that a very considerable amount of discipline is entrusted to the bishops of the Church, and when we consider the Statutes now standing in the Statute Book giving power to the bishops to enforce that discipline—and the last of those Statutes we owe in a very great measure to the support and the guidance of the noble Marquess himself—we can hardly accept such an opinion as that "there is no discipline in the Church of England." It is quite true, my Lords, that we do not profess to exercise discipline of that despotic character which prevails in some other branches of the Church. We do not forget the injunction of the Apostle, who tells us that we are not to be lords over God's heritage, but to act as fathers and counsellors and brethren, and in that spirit we have always endeavoured to exercise our powers of discipline; and even in the extremest forms of discipline we are not without experience, I am sorry to say, both of the necessity for it, and of the power to use it. Within the last twelve months I have been obliged, I regret to say, to deprive a clergyman not only of his benefice, but of all authority to exercise his ministry under any circumstances whatever for all time to come; and within the same period I have on an appeal from a priest, similarly sentenced by one of my own suffragan bishops, supported the bishop's judgment and confirmed his sentence. In all of these ways I trust it may be understood, not only by your Lordships, but by the public outside these walls, that there is a very real and very effective discipline in the Church of England, that it has been exercised for 18 centuries, and is being exercised now from day to day.
THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRSThe most reverend prelate, I am sorry to say, failed, no doubt through my fault, to understand the drift of the observation that I made. I never denied that the law of the Church of England was very distinct and quite adequate for its purpose, whether it be expressed in rubrics or in statutes or in canons; but discipline as expressed in rules and regulations is of no use unless those rules and regulations can be carried out; and the point of weakness in the present position of the Church of England which I desired to draw attention to was that it was gravely lacking in the means of carrying into effect the very wholesome rules and regulations that exist. The most reverend prelate apparently did not do so in words, but he traverses that contention, and says that there is an adequate discipline in the Church of England.
*THE ARCHBISHOP OF YORKI did not say adequate. What I said was that there did exist discipline, and that that discipline was being constantly enforced.
THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRSThen we are very much agreed. My contention is that the discipline is inadequate, and is not such discipline as the Church ought to have. I do not confine this to questions of ritual and doctrine, in regard to which there is so much difference of opinion in the Church of England that too rigid a system of discipline might produce far greater evils than it would cure. We must look to the growth of greater agreement to allow discipline in that respect to assume a more effective form; but the experience of the most reverend prelate is very different from mine. If he will say that in all parts of England there is an adequate power of correcting and removing from their opportunities of exercising a pernicious influence men who are sinning not against rules of ritual and of dogma, but against those more primitive rules, the force of which we are all convinced is the misfortune of a great spiritual and moral machine like the Church of England, it is not my experience. I have heard to the contrary, all my life, on good authority, in many parts of England. 19 I am very willing to believe that the evil is steadily tending to disappear, though tending all too slowly; but still it is a great evil, and I think that the Church is unhappily distinct from all other services which are rendered to the community, in that the officers of it have not the power which they ought to have to secure an adequate performance of the duties imposed upon them by their Church. It is a matter upon which each man must form his own opinion. If any man is of opinion here, knowing the various parts of the country, that discipline is adequate, I have nothing further to say beyond saying that I have been led to form a different opinion. I am quite convinced that the right reverend bench is wanting in no effort in order to remove all cases of scandal or of evil influence, and I feel certain that they often make exertions which we have not a right to expect of them. My object was to impress upon the House that you must not only furnish the bishops with adequate regulations, but you must furnish them with adequate means of carrying them out before you can boast that there is sufficient discipline in an institution of such momentous importance as the Church of England.
§ Motion agreed to.