HL Deb 18 July 1898 vol 62 cc37-58
*LORD CLINTON

There seems to be an Amendment required in this clause. As it stands the commissioners who are to be appointed are to be nominated by the chairman of quarter sessions of the county. In some counties there are more chairmen than one. In the county to which I belong there are three all of equal rank, and, therefore, if the necessity should arise of appointing a commissioner under this clause, it will not be known by which of those chairmen the nomination should be made. The same question arose under the Benefices Resignation Act, and I think an Amendment was made that the words "chairmen of the quarter sessions of the county" should be struck out, and these words were inserted— nominated by a person who presided as chairman at the last preceding sessions, or, if there be no such person, then by the lord lieutenant of the county. Those words removed that difficulty. I have given the noble Earl private notice of my intention to move this Amendment, and, if he has no objection, I would move that those words be inserted.

LORD HERSCHELL

Will that quite meet the case of Yorkshire? In Yorkshire, I believe the East Riding and the West Riding are different counties, and there are, of course, different chairmen for the sessions; I believe in Lancashire it is the same. I do not think that the words of the noble Lord would meet the case of Yorkshire and Lancashire. Of course, it is another thing when you have distinct divisions of a county.

THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS

Would it not be simpler if you made it "senior standing chairman"?

*THE EARL OF SELBORNE

The cases mentioned by the noble and learned Lord—the West Riding and the East Riding—are separate counties.

LORD HERSCHELL

There are separate sessions, but, of course, they are all the same county. The clause says— The chairmen of quarter sessions of the county. Probably the difficulty might be met by a definition applicable to such cases. I do not think the noble Lord will find much difficulty in getting a definition clause.

*THE EARL OF SELBORNE

If the noble Lord will withdraw the Amendment, I will consider it on Report.

LORD CLINTON

Certainly.

Question put— Page 4, clause 7, line 23, strike out 'Act,' and insert 'Acts.'

Amendment accepted.

*THE ARCHBISHOP OF CANTERBURY

I have an Amendment to clause 8 which is substantially the same as the Amendment proposed by the Earl of Selborne, and I think that his Amendment, if it be accepted, will cover all the ground covered by both of mine, and I am very well content that his should take precedence. Page 4, line 33, leave out from 'reports' to 'himself' in line 36, and insert 'that the ecclesiastical duties of a benefice are inadequately performed, and that this is due to the fact that the incumbent of the benefice has been negligent in the performance of those duties (which report the commission is hereby required to make), the bishop, if he thinks the appointment of a curate desirable, shall.'"—(The Earl of Selborne.)

*THE EARL OF SELBORNE

I will move the Amendment on the Paper with a slight change in the wording. If your Lordships will look at this Amendment on the Paper, the wording there runs— Leave out from 'reports' to 'himself,' in line 36, and insert 'that the ecclesiastical duties of a benefice are inadequately performed, and that this is due to the fact that the incumbent of the benefice has been negligent in the performance of those duties (which report the commission is hereby required to make), the bishop, if he thinks the appointment of a curate desirable, shall.' I propose to alter that, so that it should run— That the ecclesiastical duties of a benefice are inadequately performed, and that that is due to the negligence of the incumbent of the benefice in the performance of those duties, which report the commission is hereby required to make, the bishop, if he thinks the appointment of a curate desirable, shall. I think I can explain briefly why this Amendment is necessary. Hitherto the question of negligence has only been treated by implication. Negligence was only mentioned in the Act of 1838 quits incidentally. The whole clause, and the question of the appointment of a Commission, was based on the question as to whether the ecclesiastical duties of the post had been adequately performed. Negligence was not mentioned. Then when it came to the question of the salary which the bishop was entitled to allow to the curate out of the income of the benefice, these words were inserted— That the stipend was not to exceed more than one-half, excepting in cases of negligence, which, of course, by implication, would lead the court to suppose that they would have to report on negligence. That is the reason why we have inserted here that the Commission is empowered to report on negligence if it think fit.

Question put.

Amendment agreed to. Page 5, line 21, after 'after,' insert 'such appointment or.'"—(The Earl of Selborne.)

*THE EARL OF SELBORNE

I now come to an Amendment of some importance, and I am sorry that in moving this Amendment I shall find myself not wholly in agreement with the Amendment of the most reverend prelate. As this clause left the House of Commons it might have given rise to a conflict of jurisdiction. I should be glad if your Lordships would bear in mind that this clause is dealing with the Pluralities Act, 1838, and the Pluralities Acts Amendment Act of 1885. As this clause left the House of Commons, it is possible that an appeal against the appointment of a curate in case of negligence might have laid to the archbishop under the old Acts, and also, on the subsequent inhibition of the incumbent, to the new court, constituted under this Bill; and it was possible that the archbishop might have found in the case of his appeal that there had been negligence, and the court might have found on appeal that there had not been negligence. Her Majesty's Government desired to avoid any possibility of conflict of jurisdiction. I think, so far, I should carry the most reverend prelate with me. The Government desired that there could be no possibility of the same case coming up for revision, both before the archbishop under the old Acts and before this new court under this Bill, and we have met that desire by words, which, taken together, have this effect: that no case of a report of negligence could henceforth proceed under the old appeal, and in no case where there is a report of negligence can the bishop proceed under this Bill. Therefore, the old Acts will be the Acts, under which the bishop will proceed with an appeal to the archbishop in any case where a Commission has been appointed, and that Commission does not report that there has been negligence, but reports that the inadequate performance of ecclesiastical duties is not negligence, but physical infirmity or physical incapacity. This will go on appeal to the archbishop, and cannot by any possibility come before this new court; but if the Commission report that the inadequate performance of these ecclesiastical duties is due to negligence, then the bishop will have to proceed under this Bill, and the appeal will lie to the court constituted under this Bill. Now, my Lords, so much, for the way in which the Government have endeavoured to avoid the conflict of jurisdiction. The question remains whether the Government have been right in adhering to the court proposed under this Bill, and not referring to the court of the archbishop, which was the court, of appeal under the old Acts. I do not deny, my Lords, that there is room for a conflict of opinion in the matter, but I can say that it has received the very careful consideration of Her Majesty's Government, and on review of the details and arguments pro and con the Government came to the conclusion that it was distinctly in the interests of the smooth working of this Bill, and if its effect upon the efficiency of Church discipline, that the court established by the Bill should be adhered to. A great deal will be done in the future if this court works effectively. If all that is hoped by the promoters of this Bill from this court is achieved, Parliament may be inclined to give further powers to it in connection with Church discipline; but in. order that there may be a possibility of such a development of the duties and functions of the court, it is absolutely necessary that it should be a court that should command the whole confidence of the country, whether it is looked at from the point of view of the clergyman, or from the point of view of ecclesiastical discipline. Now, I have mentioned that the constitution of this court gets over the inherent difficulties of this case. It leaves to the judge, who is trained to balance evidence, which never can be, or has been part of the training of the bishop or of the archbishop, to see whether the incumbent has been guilty of negligence as aforesaid. If the judge finds that such negligence has in fact existed, then it leaves the administration and disciplinary decision in the hands of the archbishop. I cannot think, my Lords, that it would be easy to find a court that would really solve the difficulties of the problem more perfectly than this one. It has been the subject of very prolonged Debates in the other House of Parliament, and it represents a compromise which differs from most compromises in that I believe it wholly satisfies all parties to the argument—that is to say, in the other House; and I would go further, my Lords, and say that this court not only may prove a strong court to which further functions may hereafter be given, but that this court will be a great protection to the bishop in the exercise of the powers entrusted to him under this Act, because, just consider, such a case as this may possibly arise: a bishop might, proceed against a clergyman on grounds which afterwards became the subject of a libel action. The bishop would send the case to the Commission. The Commission would report that there had been grounds in the incumbent's conduct that warranted the bishop taking action. The incumbent might appeal, and the archbishop might find that in fact the grounds alleged against this incumbent were sufficient to justify the appointment of a curate, and the inhibition might hold good. But, afterwards, on an action of libel arising exactly upon the same facts on which the bishop and the archbishop had proceeded, a judge and jury might find that in fact those facts had not been proved, and that the grounds of action did not exist, and then there would be a danger of a very serious cry against the capacity of such a tribunal as that, which was supposed to balance and weigh legal evidence, when, on the other hand, it would be a case in the public estimation of the opinion of a judge of the High Court endorsed by the opinion of a jury against the opinion of a bishop or an archbishop. According to the plan of the Government, even if such an action arose, and such a different view were taken by the judge and jury of the High Court, it would not be the archbishop that would have to bear the brunt—it would be the judge; it would be the case of one judge against another judge, and I think that the shoulders of the judge are much more able to bear the brunt in such a case as that than are the shoulders of an archbishop. I can quite conceive, in such a case, that the popular outcry would arise against the ability of an archbishop to weigh questions of evidence when such evidence was seriously affecting the position of an incumbent; because, my Lords, you must remember that this inhibition is a new provision in this Act; it is not one that exists in the Pluralities Acts. Inhibition, to my mind, is no more than depriving an incumbent of his living who wilfully and persistently neglects his duties, and possibly does all he can to prevent a curate, who is put in, from discharging his duties for him. Such a man deserves inhibition, but he only deserves it if the means by which he is proceeded against are without flaw in law, and it would be a very serious thing indeed for Church discipline if such a stringent provision as this were not carried out with the utmost care, because inhibition is the most dreadful thing that can happen to a clergyman, and the greatest harm would be done if it could even be thought that he could suffer inhibition on grounds that would not bear examination before a judge of the High Court and a jury. Therefore, for these reasons combined, the Government have decided to abide by the tribunal, which is provided in this Bill as it came from the House of Commons. I can assure the most reverend prelate that his Amendment has received the most careful and earnest consideration, but the Government are not able to adopt it. I move the Amendment to line 21, as an instalment in consolidating the position of this court, from the working of which Her Majesty's Government really expect beneficent results to the discipline of the Church.

*THE ARCHBISHOP OF CANTERBURY

I have not been able to follow at all the logic of the noble Earl's speech, and it seems to me, I must confess, that a great deal of it is directed against the wrong thing. According to the Amendment proposed by the noble Earl, the archbishop will still be the appellant judge when the Commission does report negligence, and the appeal, therefore, on the question of fact brought before the Commission will be to the archbishop alone, and will not go before the judge; but if the bishop inhibits on the ground of a report of negligence, then the appeal is to lie to the court. It does seem to me, I confess, that it ought to be quite the other way. The question of fact is one that may be very well referred to the judge, but the question of negligence is really a professional question, and in every profession the professional question is always dealt with by professionals. What is right conduct for a clergyman will be a matter which the archbishop will be able to judge of, or he is not fit for his office. Whether or not the man was negligent is precisely one of the things which he, more than anyone else, is capable of deciding, and the result, of referring it to a judge will very speedily be this, that the judge will, little by little, surround the question of negligence with subtle decisions, and you will very soon find that a distinction has arisen, both in men's minds and in the courts, between negligence and legal negligence, and you will happen to say, "Yes, he was an idle man, he did not do his work certainly, but he was not legally negligent; he has kept himself within the law." That is really not a very good way of working such a clause as this. If there is anything that ought to be referred to professional judgment, it is precisely this very question of negligence. I should not at all object to reversing the proposal, and letting the court judge of the facts of the case, and leaving the archbishop to judge of the question of negligence, because that is precisely parallel to what you do in regard to a man who is presented to a living, but who is to be refused on certain definite grounds, and after it has been settled that those reasons are sufficient to justify the bishop, it is within the discretion of the archbishop to say whether, although the bishop had sufficient reasons to use his discretion, he had used it rightly. This is precisely a parallel case. The appeal upon that question is in clause 3, upon a question of the suitability of the man for the place, and his character, and the question as to his fitness for the work, is left to the archbishop alone. When once the facts have been ascertained, then the archbishop is to confirm or over-ride the discretion of the bishop. Well, as I say, that is a parallel case to this. Here is a man who is found by the Commission to have performed his duties inadequately. He has not done what the parish has a right to require from him to do, and then comes the question—is that due to negligence? The obvious man to decide that is the strictly professional man, and I cannot help thinking that we shall very seriously hamper the work of this Bill if we allow decisions to be made, and reasons given, and substitute a sort of rule-made law by successive judges for the judgment of the archbishop as to whether or not this man has really neglected his duty. My Lords, it is obvious that in any profession whatever an outsider will take a very different view as regards what is professional duty from those who are inside the profession. In all cases where there is a judgment of professional work to be made, to the profession it is left to make that judgment. Questions of fact are totally different questions. Under this Bill it is proposed to leave questions, of fact as they are now left, to a Commission, with an appeal to the archbishop, and when the strictly professional question comes forward, it is proposed that the judge shall step in, and that he shall decide whether or not the fact of negligence exists. "Negligence," my Lords, is a very loose sort of word. It is not like a fact that you could find by simply putting together evidence, "Did this man do this or did he not?" but it refers to the whole spirit of the man's conduct in his parish. Of course, if the Government insist upon their way of doing it I cannot hope to alter their opinion, but I venture to think, nevertheless, that the proposal of the Government is a mistake, and that my proposal is a very much better one.

THE LORD CHANCELLOR

I confess that I think that the most reverend prelate has argued against himself without knowing it. The question of negligence is, perhaps, rather a loose phrase, but if you analyse it into its elements it really means the neglect of some duty. Let me remind the most reverend prelate that judges and juries have to decide cases in which professional questions are involved. We have constantly, in our courts, questions of the negligence of medical men; and other most difficult questions for investigation relating to professional matters come constantly before our courts. No doubt what the most reverend prelate said is true. The phrase is a loose one; but if you resolve it into its component parts, it is in the strictest sense a question of fact, and I do not anticipate that any learned judge who sat with the archbishop would hesitate to consult the archbishop upon any subject that might be appropriate as to the consideration of what was, or what was not, the duty of the clergyman in a particular case. After all, there are definite duties which a clergyman has to perform, and which duties can be definitely stated, and proof can be given whether they have been performed; and, if they have not been performed, the reason or excuse for their non-performance would be a question for the judge to consider. I doubt whether there is any part of the inquiry which is not in the strictest sense of the word a question of fact, and, under those circumstances, it appears to me that these tribunals, which have been in the habit of administering justice, are very appropriate and proper tribunals to enter into a consideration of all these matters.

*THE ARCHBISHOP OF CANTERBURY

The noble and learned Lord says that the duties are definite duties, but I think every bishop will tell him that a great many of the duties which a clergyman ought to perform in his parish are very indefinite duties.

THE LORD CHANCELLOR

If that is so, I do not know what tribunal could deal with them. If the duties of the clergyman are so indefinite that they are incapable of definite; expression, I quite fail to see how any tribunal can deal with them.

*THE BISHOP OF SALISBURY

These clergymen have first to go into a court, and before a carefully chosen jury of persons who know them, and then before the bishop. In my opinion, it is very undesirable that judges should have more power in reducing the standard of clerical morality than they have already. I beg your Lordships' pardon, but if that is not so, will you kindly tell me why the Clergy Discipline Act, 1892, was required? It was because the judges had gradually reduced the standard of punishment for clerical immorality that it had become necessary.

THE EARL OF KIMBERLEY

There is rather a serious principle at stake in this matter. It has been the practice of this country for a long period that in matters of this kind we do not constitute strictly an ecclesiastical court; what we do is, that when a man is to be judged upon points of fact, we say that he ought to be judged by a lay judge, and it seems to me that in this respect the clause is properly framed. The judge will find upon the facts, and then the archbishop, on the finding of the judge as to the facts, will say what penalty shall be inflicted. I hope the Government will abide by the clause as it stands.

Question put.

Amendment agreed to. Page 5, line 26, leave out 'inhibition,' and insert 'appointment and inhibition, if any, or either of them.'"—(The Earl of Selborne.)

Question put.

Amendment agreed to. Page 5, line 28, after 'thereof,' insert 'the said appointment should have been made, and also whether.'"—(The Earl of Selborne.)

Question put.

Amendment agreed to. Page 5, line 33, after 'Act,' insert 'with respect to procedure.'

Insert as a new clause*— (9) It is hereby enacted that all articles of agreement relating to the patronage of churches or chapels (under section twenty-three of the Church Building Act, 1845) shall be recorded in full in the registry of the diocese within two months from the execution thereof, and a certificate thereof shall be endorsed on the same, and signed by the registrar of the diocese before the articles of agreement can be legally acted upon."—(Lord Ludlow.)

*LORD LUDLOW

My Lords, I beg to move the insertion of the clause, which stands in my name. There are some verbal matters in the clause, as it appears on the Paper, about which I should wish to say a word presently. But I will shortly state what the object of this clause is. By the Church Building Act, 1845, articles of agreement are authorised— Binding articles of agreement may be made between the patron, the bishop, and the incumbent, for the purpose of recording the rights of patronage in the future. That Act was passed in 1845, and in 1848 an amending Act was passed. That Act recited that certain difficulties, existed as to whether or not more than one nomination might be governed by these articles of agreement, and the Act went on to state that the articles of agreement might govern the right, of patronage in perpetuity. It is obvious that these articles of agreement, are most important documents. In point of fact they are the title deeds to the patronage of the benefice, but there is no particular place of deposit for these very important documents. Generally they are left in the hands of the patrons, and very often they are lost; and I have known cases which I could state, if it were necessary, where they have been lost, and where very great inconvenience and confusion has arisen in consequence. Now, the object that I have in view in my Amendment is that these documents should be registered, and I may tell your Lordships, that Dr. Tait, when he was Archbishop of Canterbury, was strongly in favour of a provision of this kind. Sir Francis Jeune, who has had great experience, having been Chancellor of many dioceses, also approves of a provision of this sort. I have also letters from other people who are concerned in such matters, who approve of this provision, and I think I may venture to state that the occupants of the Episcopal bench are not only not opposed to a clause of this kind, but I may go further and say that they heartily approve of it. That being so, I take it that the noble Earl who has charge of this Bill will be willing to accept the clause. Perhaps I may add this, that I should be very glad indeed myself to see some comprehensive plan for the registration of important ecclesiastical documents. I have not ventured to go so far as that with the clause I am now proposing, and my reason is this, that it might be urged that I was travelling beyond the scope of the Bill; but I think everybody will agree with me that the clause which I am endeavouring to introduce is really within the ambit of the present Bill. The clause is this, and I will read it with the verbal alterations that I desire to make— It is hereby enacted that all articles of agreement relating to the patronage of churches or chapels (under section twenty-three of the Church Building Act, 1845, amended by section 4 of 11 and 12 Viet., cap. 37), shall be registered in full in the registry of the diocese within two months from the execution thereof, and a certificate thereof shall be endorsed on the same, and signed by the registrar of the diocese before the articles of agreement can be legally acted upon. I venture to say that not only in my own opinion, but in the opinion of those most competent to judge, a provision of this kind will be extremely valuable, and I hope Her Majesty's Government will be willing to accept it.

*THE BISHOP OF WINCHESTER

It is, I am sure, the desire of all the bishops to see this clause form part of the Bill. It is an anomaly that such important documentary matters as those connected with the patronage of advowsons should not be protected against the danger arising from lack of registration. It is most desirable that it should be made necessary to register in every case the deed of patronage. Grave difficulty has arisen from the absence of such documents in particular cases. I can see no objection to this clause. I hope it will be passed, and I think I may go so far as to say that such is the wish of the whole Episcopal Bench.

*THE EARL OF SELBORNIE

I do not mean to say that this Amendment, so far as it goes, does not meet a want, but I would ask the noble and learned Lord whether it is really in place in this, Bill. This Bill makes no attempt to establish a complete registration of title to advowsons. I quite admit that it is a most extraordinary thing that there is no such official registration. I speak under the correction of the reverend prelates present, but I believe that no reverend prelate has any means of knowing whether a patron who presents to a living is in fact legally the patron of that living, excepting by common report, and by referring to the clerical directory. To such an extent is that true that in the form used on institution the bishop uses the words "who alleges that he is the patron." I only mention that to show that there is no real registration in existence of advowsons. What the noble and learned Lord proposes is that in this Bill we should enact that certain titles under the Church Building Act of 1845 should be registered; but I would point out to him that there is no provision in his Amendment for this, that having once been placed on the register they should remain there. Supposing there was a transfer by change of trustees. That is not provided for in his Amendment. The old names would remain on the diocesan register, and the new ones would not take their place. In fact, this is only nibbling at a very big question. This Bill only proposes, to enact that no transfer, with certain exceptions, should take place without registration. It makes no attempt to establish a complete register, and I do say, with great respect, that it is not in place in this Bill to enact that in the case of an infinitesimal proportion of the whole number of benefices, that in their case only there shall be registration apart from transfer. I hope, therefore, that the noble and learned Lord will not think it, necessary to press this, Amendment.

*LORD LUDLOW

I can scarcely follow the noble Earl. He says it is a great misfortune that there is no regular registration of advowsons, of ecclesiastical documents, which all admit are important ones. I entirely agree with the noble Earl, but because there is no such registration can it be said that it is not desirable that provision should be made in cases of this kind for certain agreements with regard to patronage? Patronage is clearly within the ambit of this Bill. Take the title of the Bill— 'An Act to amend the law relating to the Patronage of Benefices and to amend the Pluralities Acts, 1838 and 1885. I do not desire to press the Amendment if Her Majesty's Government are not willing to accept, it, but I should much like to have a better reason given for not embodying it than anything that has fallen from the noble Earl. I again say that it is a great misfortune that there no general register kept of important ecclesiastical documents, and I should be glad to hear from Her Majesty's Government that in future they propose to bring in a Measure which would make registration in certain cases imperative. But that may be. for anything I know, a long time hence, and I ask them most seriously to consider this matter, and not to say, because the whole of the thing is not feasible, that they cannot give a part of it which is admitted to be required.

THE CHAIRMAN

Does the noble Lord move this Amendment?

*LORD LUDLOW

Yes, I press the Amendment.

*THE BISHOP OF WINCHESTER

I desire to support the Amendment of the noble and learned Lord. I think every bishop has experienced the difficulties arising from the absence of due registration, it has been impossible to ascerand the like. There are two or three cases in recent years in which, for lack of any provision enforcing such registration, it has been impossible to ascertain officially who is the patron of a particular benefice. I earnestly hope the noble and learned Lord's clause will be inserted in the Bill.

Amendment negatived.

Amendment proposed— Page 5, line 36, after 'prescribed,' insert 'and for defining the duties of the officials by whom registration is to be effected.'

Agreed to.

Amendment proposed— Page 5, line 41, after 'inhibition,' insert 'or appointment of a curate.'

Agreed to.

THE LORD CHANCELLOR

I had intended to move that the lay judge who acts with the archbishop should be made a member of the Rule Committee acting in this matter. I think, however, as the clause will have to be amended on the Report stage, it will be more convenient that I should move it then.

Question put— That clause 9, as amended, stand part of the Bill.

Agreed to.

Question put— That clause 10 stand part of the Bill.

Agreed to.

Amendment proposed— Page 6, line 13, after 'Crown,' insert 'or of the Duchy of Cornwall.'"—(The Earl of Selborne.)

Agreed to.

Amendment proposed— Page 6, line 17, after 'institution,' insert 'nor to any private chapel.'"—(The Earl of Selborne)

Agreed to.

Amendment proposed— Page 6, line 22, at the end of the clause; add— (3) In section 8 of this Act and in the Pluralities Act, 1838, and the Pluralities Act Amendment Act, 1885,, the expression 'ecclesiastical duties' shall include those duties mentioned in section 2 of the Pluralities Act Amendment Act, 1885, and also the observance of the promises, not referring to matters of doctrine and ritual, which every clergyman of the Church of England solemnly makes at the time of his ordination; and the expression 'negligence' in the performance of ecclesiastical duties shall include wilful default in the performance of such duties."—(The Viscount Knutsford.)

*VISCOUNT KNUTSFORD

Your Lordships will feel satisfaction in coming to the last Amendment on the Paper. I venture to say, however, that though it is the last it is not the least in importance, because there has been a considerable amount of feeling entertained on the subject of this Amendment, and there is great hope that Her Majesty's Government will see their way to accept it. During the course of this Debate the noble Lord who is moving the adoption, of this Bill has clearly stated the procedure that is taken in cases where the inadequate performance of ecclesiastical duties is considered by the bishop to be sufficient to be tried by the Commission; and he has also pointed out the difference that exists were simply inadequate performance is found by the Commission, and those cases where the inadequate performance is found to be owing to the negligence of the incumbent. But the point which I desire to raise upon this Amendment does not turn upon procedure. The words "ecclesiastical duties." have been defined, as your Lordships are aware, by section 2 of the Act of 1885 (48 and 49 Vic, c. 54), and I will venture to read it to your Lordships. The definition is— The term 'ecclesiastical duties' shall include not only the regular and due performance of divine service on Sundays and holidays, but also all such duties as any clergyman holding a benefice is bound by law to perform, on the performance of which is solemnly promised by every clergyman of the Church of England at the time of his ordination. Now, my Lords, there are certain cases of misconduct which certainly ought to be dealt with, both in the interests of the Church and of the parishioners who are members of that Church, and yet there is a very grave question whether these cases of misconduct can be dealt with under that definition of "ecclesiastical duties." There are cases of conduct, or, I should say, of misconduct, of which I will venture to give your Lordships two or three concrete instances, and I am sorry to say that there is good reason to believe that they are not very unusual cases. In the one case a clergyman, irreproachable in his morals, is so intemperate in his language and conduct that he succeeds in alienating from himself tall his congregation and all his parishioners, and all those entrusted to his care. He has not only succeeded in, setting one part of his congregation against the other, but he bas emptied his church and has driven his congregation into Nonconformist chapels. That is one of the cases which I hope your Lordships will think ought to be dealt with in some way or other. There is another case of a clergyman who is never found guilty of drunkenness, and who is not immoral in the ordinary sense of the word, but who does frequent public-houses and falls under the influence of disreputable and shady companions, and who has lost all influence, as would naturally be the case, over his parishioners, and his church is empty. That is another case which I bring to the notice of your Lordships. There are other cases which are most of them of a similar kind, but varying in their extent and also varying in their effect. Now, as I have said, a very grave doubt has been entertained for many years whether these cases of conduct come under the definition of "ecclesiastical duties," and this doubt my Amendment is framed to remove. This Amendment is not the first of this kind. An Amendment really similar in terms to the Amendment I am now submitting for your Lordship's consideration was passed in a Bill in 1895 by the Standing Committee on Law, to which that Bill was referred; and I am told, but I have not verified it, that in 1896 another Bill also got to the Report stage in the other House in which the same point was dealt with, though not in precisely the same terms, but in more general terms. I will assume that these cases are cases which, in the opinion of your Lordships, should be dealt with by the bishops. If it is not so, if these cases which cause scandal and as much injury to the Church as cases of more grave misconduct are not to be dealt with, then this Amendment of mine may be withdrawn. I should, however, be very loth to assume that your Lordships should not think these cases should be dealt with. If they are to be dealt with I ask your Lordships to remove the doubt that has been entertained whether these cases come under the head of ecclesiastical duties or not. I will now point out to your Lordships how it is proposed to remove this doubt. I propose to insert after the last sub-section the following words— (3) In section eight of this Act and in the Pluralities Act, 1838, and the Pluralities Act Amendment Act, 1885, the expression 'ecclesiastical duties' shall include those duties mentioned in section two of the Pluralities Act Amendment Act, 1885, and also the observance of the promises, not referring to matters of doctrine and ritual, which every clergyman of the Church of England solemnly makes at the time of his ordination; and the expression 'negligence' in the performance of ecclesiastical duties shall include wilful default in the performance of such duties. I will not at this moment refer to the latter part of the clause. I believe that I shall not need to trouble you on that point, because it is accepted by Her Majesty's Government. It is the first part which I wish to impress upon your Lordshios, and I will take the two cases that I have referred to, the one where the clergyman, in other respects good, is so intemperate in his language and conduct that he has ruined himself with his parishioners, lost all his in fluence with them, and is driving them out of his church. Now, one of the promises a clergyman makes on ordination is— To maintain and set forwards as much as lieth in him, quietness, peace, and love among all Christian people, and especially among those who are or shall be committed to his charge. I should say that where that duty has been negligently performed by a clergyman, where he has exhibited the conduct I have referred to, he has been guilty of the neglect of ecclesiastical duties, as defined by this Amendment. Take the other concrete case, where a man has fallen under the influence of bad or disreputable company, and free quents places that he had better keep out of. Now, one of the promises on ordination is— To make both himself and his family as much as in him lies wholesome examples and patterns to the flock of Christ. This, promise such a clergyman has clearly failed to perform. Those two cases show very clearly the advantage of removing all doubt from the question by inserting these words, which, provide beyond doubt that the ecclesiastical duties, or the performance of ecclesiastical duties, is to include the performance of the promises which the clergyman has made at the time of his ordination. My Lords, I have pointed out that this is not a new proposition, but is simply following a decision arrived at after full discussion in the House of Commons, and I have only heard two objections made to this Amendment. One is the extension of the power of the bishops by giving them a very much wider discretion. As I have said before, if these cases create as great a scandal as the many more serious cases to be dealt with, I am quite sure that the bishops will exercise this power with great care and consideration. But to those who have doubts upon this matter I would point, out, and I would remind your Lordships again of this, that the decision does, not rest with the bishops absolutely; it rests with the commission which the bishop appoints to examine into these cases. Surely we may trust a commission which is so constituted as to command the confidence of all. I have not heard a single question raised against the constitution of the commission, and surely we can trust to them to examine into these cases carefully and considerately. The other objection is that some of these cases may possibly be dealt with under the Clergy Discipline Act. My Lords, assuming that they would come under that Act, I venture to think that it is very much more desirable that they should come distinctly under the Pluralities Acts as amended by section 8 of this Bill. The penalties under the Clergy Discipline Act are too heavy, if I may say so, and are not very suitable for cases of misconduct such as I am bringing under the notice of your Lordships. One of the penalties is depriving the incumbent altogether of his living, and has been described as— turning out an innocent wife and children on to the road without any means of support. Now, another alternative is suspension. Well, I speak under the correction of the bishops, who know exactly what has been the working of this penalty, but I have always understood that it has had very questionable results. The term of suspension may be short or long, but all the time over the parish there is hanging the possibility after an incumbent has been suspended of his returning to that parish. In such cases, moreover, a clergyman would very seldom get back again the confidence of the parishioners. The third alternative is admonition. Well, my Lords, undoubtedly admonition is very satisfactory in some cases, but there is still this difficulty with the clergyman, that he is almost sure to fail to regain his influence with the parishioners. Now, if we can bring these cases under the Pluralities Acts as amended by section 8, the clergyman will be inhibited from acting, but he will have a part of the stipend. I will not at this time trouble your Lordships at any greater length. I do, however, desire to impress upon your Lordships the necessity with regard to such cases of making some provision for them, and I hope Her Majesty's Government will accept this Amendment. As I have said, the noble Earl below me has accepted the latter part of it on behalf of Her Majesty's Government, and I need not dwell upon that point.

*THE EARL OF SELBORNE

I believe that it has already been urged by some authorities that the definition of ecclesiastical duties in the Act of 1885 does cover all those promises which are made by a clergyman at the time of his ordination. But the Amendment of my noble Friend is directed to making that point quite certain, and to see that they are all covered. As he has shown your Lordships, there is a class of case that lies between neglect of duty, which is mainly aimed at in this Act, and those moral offences which are aimed at in the Act of 1892. It is within the experience probably of your Lordships that in cases such as those suggested by the noble Lord, who proposed this new clause, the whole influence of the clergyman in his parish is absolutely destroyed. He may technically be performing the ecclesiastical duties of his office, but his general life and his conduct to the parishioners to whom he performs these duties are such as to deprive him of any of the influence or merit which those duties should have when he performs them. Therefore, it amounts to negligence in effect, though not in technical fact. Now, my Lords, it would be idle to conceal that the definition of offences such as my noble Friend wishes to introduce into the scope of this Bill is no easy task. It may be said that that class of offence is so vague that it may not be brought into the purview of an Act of Parliament or of the court constituted under that Act Now I fully admit the force of that criticism, but, on the other hand, you have to place against it the immense misery, the utter spiritual destitution of the parish in which the clergyman possessed of that unhappy character which my noble Friend has described is placed, or who, by his general conduct, has so deprived himself of all possibility of influence for good. My Lords, if I might say so, with all respect to the most reverend prelate, this is exactly one of those cases where the court constituted under this Bill comes in. Would it be possible to ask Parliament to embrace these offences under this Bill if the appeal was to the archbishop, who, however high his character or however great the respect which his fellowmen might have for him, is not trained in those methods of sifting evidence which training can only give confidence in the carrying out of an Act like this? The more vague the offence the more difficult it is to decide and the more necessary it is for a judge of the high courts to say whether an offence of this kind has been committed or not. Now your Lordships have agreed to the constitution of this court as proposed by Her Majesty's Government, and in view of the confidence they have in the constitution of that court; in view of the fact that this principle has been accepted in the House of Commons, certainly on two occasions in Grand Committee, I believe also, though I speak with less certainty of knowledge with regard to the Second Reading of this Bill on which these Grand Committees sat; in view of these facts Her Majesty's Government are prepared to accept this clause as proposed by my noble Friend. As regards the financial position of that clause it has been held to be just conceivable that wilful default might not be technically legal negligence, and that would indeed be a catastrophe—and that being so, we accept the latter portion of this Amendment as well as the first.

Amendment agreed to.

Question put— That clause 11, as amended, stand part of the Bill.

Agreed to.

Clauses 12 and 13 added to the Bill without discussion.

Schedule and title agreed to.

Standing Committee negatived; the report of Amendments to be received on Friday next.