§ House again in Committee (according to Order).
§ [The EARL OF DOSOUOIDIORE in the Chair.]
§ Clause 34:
§ Saving for rights of clergymen of the Church of England.
§ 34.—(1) A clergyman in holy orders of the Church of England shall not be compelled to solemnise the marriage of any person whose previous marriage has been dissolved either in the United Kingdom or elsewhere, and whose former husband or wife is still living, and shall not he liable to any suit, penalty or censure for 235 solemnising or refusing to solemnise the marriage of any such person.
§ (2) If any minister of any church or chapel of the Church of England refuses to solemnise the marriage of any persons who but for such refusal would have been entitled to have their marriage solemnised in the church or chapel, the minister shall permit any other clergyman in holy orders of the Church of England entitled to officiate within the diocese within which the church or chapel is situate to solemnise the marriage in the church or chapel.
§ Debate resumed upon the Amendment moved by the EARL OF SELBORNE—namely, Subsection (1), after "solemnising or refusing to solemnise the marriage of," insert "or for refusing to admit to communion."
THE LORD ARCHBISHOP OF YORK
I was exceedingly sorry on Tuesday last to be obliged to ask the noble and learned Lord in charge of the Bill to allow the debate to be adjourned until to-day. Your Lordships will remember that the House was dwindling after a long discussion and a very important Division, and it seemed scarcely right in these circumstances to proceed with the discussion of a matter in which very deep and far-reaching principles are involved. It is needless at this stage of these somewhat prolonged debates to dwell upon the gravity of the new situation which would be created in the public and religious life of this country if the provisions of this Bill became law. Thousands of marriages, we are assured, would take place throughout the country which would certainly be inconsistent with the expressed words of Christ and with the continuous position which has been taken by the Church of this country.
The question immediately arises, What is to be the position of persons marrying in these conditions with regard to their admission to the most sacred privilege which the Church can offer? Is the parish priest to be entitled to refuse admission to Holy Communion to persons who have availed themselves of the law of the land but have also expressly and deliberately ignored the moral teaching, principles, and law of the Church? The object of the Amendment which has been moved by the noble Earl, Lord Selborne, is to protect a clergyman exercising his discretion in this matter from any penalty, suit, or censure. I quite admit that on this question a very difficult problem arises; indeed, one of the most difficult with which men could be faced, but I would point out 236 that this problem arises not from any desire on the part of the Church—far from it—but simply because of the provisions which have been inserted in this Bill.
It is no help to turn, as the noble and learned Lord did when we were discussing this clause in Committee, to the old Statute of the first year of Edward VI. I must resist the temptation, though it is a strong one, to embark upon any argument with the noble and learned Lord as to the exact effect of that Statute. It is sufficient to say, in passing, that we ought to note the exact words—" The minister shall not without lawful cause deny the Sacrament to any person that will devoutly and humbly desire it." "Lawful causes" were specified in the Prayer Book of 1559, and others were entered in the canons, and it is now proposed to add another "lawful cause" which would entitle a minister to refuse persons admission to Holy Communion. What I submit is this, that that ancient Statute, and, indeed, the familiar words of the rubric limiting the persons who can be repelled from Communion to "open and notorious evil livers" and persons between whom malice and hatred reign, reflect a state of things which has now gone. It does not help, but only obscures the problem with which we are now concerned, to think and speak as if the situation out of which these words arose is the one which we have to face to-day.
There was then no collision between the law of the State and of the Church with regard to marriage. No one then could be divorced a vinculo and married again. There was, therefore, no cause to specify in the rubric any other persons than those who could be described in the use of common and admitted language as "open and notorious evil livers" or persons between whom malice and hatred were reigning. Our problem with which we have to deal now, or with which we may have to deal if this Bill should pass, had not arisen, and could not arise. It has arisen now. A conflict has occurred, or is about to occur, between the law of the State and the teachings and accepted law of the Church. The problem, which had already arisen in 1857, arose again in regard to the Deceased Wife's Sister Bill. There were many difficulties which required a great deal of forbearance and patience, and already warning had been addressed by able and far-seeing men as to the perils which underlay the difficulties arising out 237 of the change in the marriage law, but it has been possible to prevent those difficulties becoming grave or acute.
Now a difference occurs which changes the whole situation. A large number of new causes of divorce have been introduced which certainly cannot in any way be regarded as consistent with the express words of Christ or with the accepted principles of the Church. Therefore the collision is real and more definite than it has ever been before. There is no one who would not lament the occurrence of such apparent conflict between what is permitted by law and what is regarded by large number of citizens of this country as morally wrong. But so it is. That situation has arisen. The State is asked to permit what the Church in its moral teaching and expressed law regards as morally wrong, and it is a situation winch has now to be faced.
Clause 34, which we are discussing, has the merit which I cordially recognise of dealing with this difficulty. It gives a protection to the clergyman who feels bound conscientiously to refuse to celebrate a marriage contracted under the provisions of this Bill. The Amendment before us asks that a similar protection shall be extended to the clergyman in refusing, if he thinks fit, admission to Holy Communion of persons so married, I desire to put it to your Lordships that the one protection should be followed consistently by the other. The objection of the clergyman to a marriage under tins Bill is not merely because it is against the ecclesiastical laws but because it is against what he believes to be the judgment of Christ as accepted by the Church of which he is an officer. Therefore he is, if I may use the words of Lord Buckmaster, no mere "misguided zealot" if he extends the judgment which he is entitled to Make as to the marriage to the spiritual status and position of the persons who have been so married. The protection which is given to him in the exercise of the one judgment ought not to be withheld from him in the exercise of the other.
Your Lordships will observe that the Amendment does not in the least imply that the clergy will be enjoined to refuse admission to persons married under the provisions of this Bill. That is a question which must be left to the responsibility of the spiritual authorities. I have no doubt 238 that the Bishops will feel bound, if this Bill becomes law, to consider the whole question most anxiously; and it may be said that the Episcopate in England has rather erred on the side of equity in the past than on the side of strict and rigorous logic. The Amendment does not directly or indirectly involve airy pre-judgment as to what advice the spiritual authorities would give to the clergy in regard to the cases and circumstances in which they might, or might not, give admission to Holy Communion to persons married under this Bill. Again, the action of the clergyman in this matter would not be, and could not be, a purely arbitrary one. He is bound under-existing rubrics in a matter of this kind to refer his decision to the Bishop and await the Bishop's counsel and direction. Therefore, all that this Amendment asks is that the protection of the conscience of the parish priest should be secured both as regards his refusal to celebrate a marriage and his refusal to admit persons so married, if he thinks fit, to Holy Communion. It only asks that if the existing rights of parishioners are modified in regard to the one case they should be modified in regard to the other. It asks that in the exercise of spiritual discipline the responsibility should be left ultimately to the spiritual authorities. That is not an unreasonable plea.
Many who have supported the provisions of this Bill have always recognised that if they were carried they would lay on the Legislature the obligation of dealing with the utmost possible considerateness with the conscientious convictions of members of the Church and other Christian people. That was the position always taken up by one who may be regarded as the father of this Bill—the late Lord Gorell. It is quite true that he said that in the case of the Established Church there ought to be some protection for minorities, but this Amendment will not deprive minorities of some measure of protection because there is nothing in it that would compel any clergyman to refuse admission to Holy Communion of persons married under the Bill. In a very long and valuable note which he submitted to the Royal Commission, over which he presided, Lord Gorell said—I desire to observe that it might have to be considered whether the Legislature, in providing additional remedies for matrimonial wrongs, ought not to leave the State Church and other Churches a measure of liberty to deal with their own members who avail themselves of these additional remedies as they think proper.239 That is the principle which underlies the Amendment.
There were many witnesses before the Commission who agreed on general social grounds with an extension of the causes of divorce, but who frankly and plainly recognised that it must be accompanied by some protection to the Church in the exercise of its spiritual discipline. I will only mention one, as I am anxious not to detain your Lordships too long. I mention him because he was one who has given his sanction to an extension of the grounds of divorce—I mean Dr. Inge, Dean of St. Pauls. He said—If there occurs this divergence between the law of the State and the law of the Church, I think in cases of that kind it would be open for the Church, even while Established, to impose a period of ex-communication.Dr. Inge would not admit that the State had the power to determine what persons should or should not be admitted to Holy Communion.
Let it not be said that such a measure of protection to the conscience of the parish priest as is involved in this Amendment is inconsistent with the principle of Establishment. Lord Buckmaster invited us at an early stage to cross the Border and consider Scotland. Let us do so in regard to this matter. In Scotland, happily, there is no collision between the law of the Established Church and the law of the State. They are identical. But if it were proposed to introduce the present Bill into Scotland a very different situation would arise, and there is very little question as to the way in which it would be met by the Established Church. During the sittings of the Royal Commission I put some questions to a very distinguished representative of the Established Church of Scotland, an ex-Moderator, Dr. M'Adam Muir. He pointed out that it was the Minister and Kirk Session which had an exclusive right to admit or reject persons to Holy Communion. I put a question to him in these terms—Although the Church of Scotland is an Established Church it would not consider that it belonged to the Establishment that the State should tell the Minister and Kirk Session whom they should or should not admit to Holy Communion.And his answer was—Certainly; we claim in these matters to be absolutely free.240 It is not too much to ask that in a question of this sort as much liberty should be given to the Established Church in England as has always been accorded to the Established Church in Scotland.
For these reasons I hope your Lordships may be willing to pass the Amendment which has been moved by the noble Earl. It is idle to deny that a very great principle lies ultimately behind it. I mean the right and duty of the Church, as a religious society, with its own standards of faith and of morals, to exercise its own discipline, according to its own principles, over those who seek to be admitted to the sacraments which it administers. It is obviously, my Lords, a principle extraordinarily difficult to adjust to the complicated relations of Church and State. Those relations demand both from the Church and State, if they are to be tolerable, an extraordinary amount of mutual patience and consideration.
If this Bill were to pass without amendment, if it resulted in numbers of clergymen being subjected to civil penalties and suits, if it ultimately happened that directly or indirectly the State, through civil process, were to attempt to dictate to the Church as to those whom it should or should not admit to the most sacred privilege of which it is the guardian, I do not hestitate to say that a position might arise which to any self-respecting Church would be intolerable. I believe that the majority of your Lordships value that ancient relationship of Church and State. You value it because it secures wide and far-reaching religious rights to the people of this country. Is it wise to imperil these wide rights, belonging to the people of this country, by precipitating a conflict upon the comparatively narrow issue of the marriage laws? I venture to renew the appeal which has been more than once addressed to your Lordships in this matter. I would say to the majority, You have gained a great advantage; do not press it too far. Do not press it to the point at which a collision between Church and State may become hard to avoid, and even a rupture might become possible. For these reasons I beg to support the, Amendment moved by the noble Earl.
§ LORD PARMOOR
There is necessarily a question of difficulty and complexity whenever a statutory right and a question of religious conviction come into conflict, and the only question which I desire to consider, in addressing your Lordships this 241 afternoon, is whether the solution proposed by the noble Earl is a fair solution of an inevitable difficulty which must arise under the terms of the Bill. I am perfectly sure that the noble and learned Lord in charge of the Bill would do all that he could to prevent this conflict between religious conviction and statutory obligation, and I would ask him to consider whether there is any other method in which a reconciliation can be made, except under the terms proposed in the Amendment of the noble Earl.
I am free to admit that when I first saw the terms of that Amendment I was by no means favourably impressed. I realised the difficulty, but I doubted whether the suggested solution was the best possible one; but after full consideration of the matter, and of the difficulty, it seems to me that there is no other possible solution—no other possible form of words which can be suggested which would meet the real difficulty which has arisen. Let me upon this point quite shortly answer what was thrown out, rather by suggestion than by argument, by the noble and learned Lord in charge of the Bill. He referred to the well-known Statute of 1 Edward VI. That Statute, as he knows, was primarily passed in order that the laity might be entitled to communion in both kinds, and as part of this right given to the laity, there was the statutory duty imposed to which the noble and learned Lord has referred. But, my Lords, the reference to that statutory duty carried us no further. The statutory right of admission to Holy Communion only holds if there is no lawful cause for which the priest may refuse to give communion in any particular case; and what we are now considering is not the general principle, but whether under the conditions of the Bill a lawful cause may be said to arise when the conditions in the Bill do bring about the result, that the priest cannot admit to communion without acting in conflict with what lie considers his religious duty and his religious obligation.
I am quite aware that it would be wrong, at any rate in my view, to say that the matter is covered by the law as it stands at the present moment. There have been two prolonged discussions, one which ended in Lord Cairns' decision in the Privy Council, and one which ended in the decision in your Lordships' House, and without going into matters of detail I think 242 it is a matter of common sense and of common understanding, that if an applicant for communion has been married under statutory right, and in accordance with statutory obligation, he cannot on that account be regarded as an evil liver or notoriously evil-doer. What is the-result? We have here a new difficulty raised by the Bill. It is a difficulty which in my opinion is not met by the law as it stands at present. Is it not right that, in granting this new power which the Bill gives, provision should be made to safeguard the religious convictions of the priests concerned. It does not affect the main, question, namely, the right of re-marriage,, but merely the question whether the person who claims the right of re-marriage should at the same time claim the right of admission to communion, although the priest is religiously convinced that it would be-wrong for him to allow that person to take part in the ceremony. That is what it comes to.
Just consider what the result will be. I do not believe, myself, that so far as the civil law is concerned, the question of the right of admission to Holy Communion can really be said to be decided. So far as I know there is no civil compulsion upon a priest to administer communion under conditions which he thinks are contrary to his religious duty, but under our ecclesiastical law he can be admonished and ultimately deprived of his living, or in the alternative be sent to prison. We know the scandal in the Green case, and the general feeling in this country that if possible no man for religious conviction should suffer the punishment of either losing his livelihood or being sent to prison for an indefinite time. Why should we not allow the remedy which the noble Earl has suggested? It does not affect the general principle of the Bill. It is perfectly possible that the re-marriage may be carried out by some other priest who has no objection. As his Grace the Archbishop has pointed out, this Amendment only applies to the case of a refusal of a priest to grant communion under these conditions. I hope that the Amendment of the noble Earl may be carried, because I think it is a duty in a Bill of this kind to find, if you can, a solution between the religious convictions and a statutory obligation.
In addition, although I do not want to reiterate the wider grounds, it surely is 243 worth while—and I put this argument to the noble Lord in charge of the Bill—in a matter of this kind to meet an objection of this character if you can do so consistently with the whole purpose of the Bill itself. Let me put it on the ground of tolerance to which reference has been made more than once in these discussions. Is it not in accordance with tolerance that we should realise the religious convictions of others, that we should realise the difficulties which may be thrown upon them, and do our best to alleviate those difficulties, at the same time that we do not affect the general principle of the Bill itself? It is for these reasons that I ardently hope the Amendment may becarried.
THE MARQUESS OF CREWE
I desire to say in a very few words why I shall feel bound to go into the Lobby against the Amendment of the noble Earl behind me. I quite recognise the conscientious difficulty that arises, and I fully realise the force of what the most rev. Prelate the Archbishop of York said regarding the hardship which in some cases might be inflicted upon a clergyman of the Church of England if this Amendment were not carried. But I would point out that it is not only the conscience of the clergyman that has to be considered. There is in this instance surely a conflict of consciences, and it did not seem to me that the Archbishop of York recognised that there was any party or individual who had to be considered except the clergyman who entertained these conscientious objections. It is, as a matter of fact, known to us all that there are a great number of persons who have been the innocent parties in a divorce yet who are loyal members of the Church of England, who value their churchmanship, and who undoubtedly would feel bitterly being deprived of the consolation of attending the service of the Holy Communion. Those people surely, holding equally conscientiously the views that they do, are entitled to the same sort of consideration which it is desired to extend to the clergyman who takes the opposite view.
But my particular objection to the Amendment of the noble Earl is that in practice it will be found scarcely possible to carry it into effect. What I feel is that this refusal might easily be made an instrument of local persecution of poor people who were dependent on the access to the church in their own parish—a country parish—and could not attend another 244 church; while well-to-do people in the same position, desiring earnestly and conscientiously to receive the communion, could go away from their homes, visit some place of public resort—either come to London or go the seaside—and no question would be asked as to their identity or their prescriptive right to receive the Holy Communion. Unless you go on the plan of marking them with a scarlet letter, like the woman in the story, it is quite clear that over and over again these people, with the utmost conscientiousness and desiring to receive the consolations of religion, would be able to do so, and it is very largely on account of that inequality, in its effect upon different classes of persons, that I think this Amendment can by no means be admitted.
One has to remember that after all there are two views upon this subject, and that the opposite view to that of the most rev. Prelate is unquestionably entertained by many clergymen. The right rev. Bench would be better authorities than I am on such a subject, but I do not know whether it has been in the past the regular practice in the Church of England for the clergy to refuse access to the Holy Communion to the innocent parties in divorce cases. I should have thought not. I should have supposed that a great many of these people, good Christians and good churchpeople (only undoubtedly holding a different view as to the possibility or propriety of re-marriage) have as a matter of fact been admitted to communion. There would be a risk if this Amendment were carried that these people, divorced on the former grounds, not on the new grounds, would be placed in a much harder position than that in which they have been before this Bill is passed. I cannot think that your Lordships will agree to this Amendment, in spite of the eloquent advocacy of the most rev. Prelate and the deep conviction which I know inspires some members of your Lordships' House on the subject.
THE LORD ARCHBISHOP OF CANTERBURY
The ground that I wish to cover in the very few words I want to say has been already partially covered by the Archbishop of York; but, especially after the speech of the noble Marquess to which we have just listened, I feel bound to say something, because this deals with a very large question which was raised at the end of our debate last week—a 245 question which I am sure has given rise to wide misapprehension. I find myself forced rather reluctantly into a Parliamentary argument upon this question of admission to Holy Communion. The whole subject of Holy Communion is unsuited for Parliamentary debate or Parliamentary division. We did not want it. We should never have raised it. But we were absolutely forced to do so.
We were told at the close of the debate last week that we were to take it that the enactment which the noble Lord, Lord Buckmaster, proposed would necessarily, as he had frankly stated, carry with it the right of those who had taken advantage of such divorces in order to remarry to the full rights of churchmen in all ways, and that it must not be regarded as prejudicing them in the least that they Should have done so. I do not think that the question of admission to Holy Communion has ever before been under Parliamentary decision since the days of Edward VI—since the Statute we passed to which the noble and learned Lord referred last time, and which, of course, is familiar to most of your Lordships, or at all events to those who have studied this subject. But if any one wants to see with what very large qualifications the clause in question has got to be interpreted in the facts of to-day I would ask him to read the judgment which was given in the deceased-wife's-sister case by Sir Lewis Dibdin. After dealing with that Statute he pointed out how modern conditions had modified the force of the original words. I want to make quite clear that that Statute in no way covers the ground, nor does it give to every body the right which the noble and learned Lord supposes.
We say quite distinctly that we, as a Church, must be left free to decide how to deal with individual cases of those who, under a new enactment, have quite honestly, and as loyal citizens, chosen to be married under conditions prohibited hitherto by unvarying Church law—not some mediæval growth but Our Lord's own words as interpreted afterwards, in the Church, and reaffirmed in the most emphatic way by our own Church to-day. I want to quote again that re-affirmation, because it is upon us bishops that this difficulty will mainly rest if you throw on us this responsibility. We are bound by what has been said in the most solemn way possible by the whole Episcopate of the Anglican Communion, assembled from the 246 whole world—what it said first in 1888, and reaffirmed at the last Conference—This Conference reaffirms the resolution of the Conference of 1888 as follows,'That, inasmuch as our Lord's words expressly forbid divorce, except in cases of fornication, or adultery, the Christian Church cannot recognise divorce in any other than the excepted case, or give any sanction to the marriage of any person who has been divorced contrary to this law during the lifetime of the other party.We are morally bound by that in loyalty to our brethren throughout the world, as well as to our convictions. The answer given to us is, "Quite so. That is the Church's view, but Parliament has said otherwise, and the Church must follow and do the like because Parliament has said so. Any rules that the Church makes are at once alterable for all its members by a Parliamentary sanction." I find no other way of interpreting what was said to us last week.
Is that really the contention that is going to be solemnly brought forward? I have found plenty of people who do say so. I was reading last week a certain decision that was given in another case altogether sometime ago by a very high Judge. As an obiter dictum—not as part of his decision—he sets it forth in so many words categorically. He says it may be hard on a clergyman of the Church of England to find himself in that position, but the man ought to remember that in taking Holy Orders he becomes the minister of a Church which is unquestionably bound to treat marriage as lawful for all purposes if made under an Act of Parliament, so that persons so married cannot be refused the Communion. He goes further, and says that though a Statute had said before that such and such marriages were contrary to the law of God these marriages ceased to be contrary to God's law, "because it is unquestionable that they were only made so in England by the Act of Parliament." That is the kind of contention that is offered, and I want to know whether we are to be asked to take it into account—that we are tied and bound, and that, because of the connection of the Church and State in England, any change that Parliament may make must be at once blindly and obediently followed by the Church, however directly it may contravene the convictions which we hold, the things which we have been taught from our childhood, and the lessons we have learnt about the interpretation of Scripture, the story of the Church, and the facts of the present day. 247 We reply quite definitely—I do, at least—that we cannot take that attitude. We simply cannot leave to Parliament to decide as to the sacramental question and blindly obey it in the teeth of what the Church has unvaryingly declared. The Archbishop of York has already referred to the Scotch analogy. I wonder what would be said in the General Assembly if it were proposed there by the noble and learned Lord or some one who represented him, that for the future not the General Assembly or the Courts under it—the Synod or the Presbytery or the Kirk Session—but Parliament should decide who was to be admitted to Communion. There would not be much hesitation in the reply which would be received, or in the way that it would be regarded north of the Tweed. Is it fair to say here south of the Tweed, "You have got to take a totally different line." Our answer is that we must retain the right in our administration to adhere to the doctrines which we accepted as such when we were ordained. We have a system and we have rules. We bishops made a solemn promise when we were consecrated that we would administer the law as given to us in the Church as well as in the State. We have declared that we would do so. You tell us now, "We change all that, and we not only allow you, but force you, to act in a different way, because you must not restrain, in the exercise of your disciplinary powers as bishops, a man who has taken a line which was totally illegal a little while ago but has now become lawful ecclesiastically and spiritually because Parliament has said the contrary." Is that the position in which the bishops ought to be placed? At all events it is a position which I cannot accept as one that I feel to be binding.
Our attitude is strangely misrepresented. I have been inundated with communications during the past week. I find myself accused both in correspondence and in the Press of trying to impose (I am quoting the words) Church rules upon the State. I have not the slightest thought of doing anything of the kind. It is contrary to everything that I have said. The State must decide a question of this kind. It is Parliament's business to decide what are the conditions under which a marriage may be legally contracted and, as a citizen, I have helped to discuss that in the earlier stages of this Bill. I consider that quite apart from religious things you are making a grave mistake in the multiplication of grounds 248 for divorce and re-marriage, and I have opposed these to the best of my power wherever it seemed to me to be directly disadvantageous to the State and the people of England. Some of them we thought not disadvantageous, and we accepted them, but we opposed as citizens those which seemed disadvantageous. But we did that as citizens, and not as ecclesiastics. Now we come to the Church's decision. In the other field we have been beaten. So be it; we must submit. But you must not go on to say that therefore and thereby the Church must change its rules and accept for full Church privilege any one, who is conforming to the State law, even if the Church believes these new enactments to be contrary to God's law. Is that what you are really asking us to say? I find that is what we are accused of But I want to make it perfectly clear that, so far as the State goes in this matter, the marriages are perfectly legal. These men and women are perfectly good, honest straightforward citizens, only they have placed themselves outside the Church's rules and conditions.
We are said next to be accusing those who are thus married of being notorious evil livers. It is to avoid doing that that we are asking for this Amendment. If you do not get this Amendment You can only, I gather, repel a man on the ground that you allege him to be a notorious evil liver. But if you put in this clause, as there are other things in the law of the land which allow repulsion besides being a notorious evil liver—the other conditions which are alien to the Church's rules—you have no need to call him a notorious evil liver, which would be an opprobious term to use. I have no wish to use such disrespectful epithets or to condemn the action of those people as wrong or wicked in itself. They believe it to be perfectly right. I only say that they have voluntarily placed themselves outside the rules of the Church of England, and the Church must retain its power to deal with each case on its merits as it arises. You say, "You want, in a rough and ready, wholesale way, to exclude all such persons from Communion for their lives." Speaking for myself, I want nothing of the kind. The noble Marquess, Lord Crewe, has claimed consideration for the conscience of laymen. We are administrating this kind of thing every week of our lives. It is constantly spoken of as if our giving 249 direction in these matters were a new thing, but I do not think that a month passes in my adminstration of ecclesiastical matters in which I have not these questions before me; and the first thing I try to consider is the conscience of the layman, the necessity of the people, the conditions in which they find themselves, and whether we ought to make special arrangements and conditions, and so on, applicable to them, instead of rigidly insisting upon the Church's rules. I do not agree that the noble Marquess is right in saving that this would hit the poor hardly and be easy for the rich; because we are constantly dealing with these things in connection with the poor as well as in connection with the rich. Personally I would say that I would give infinite consideration to the thoughtfulness of a religious man who was trying in a humble way to live a straightforward life, and who had contracted one of these marriages. I am prepared to go into it. Upon Bishops and Archbishops a difficult trust has been put, but I am prepared to consider each case on its merits, subject to all reasonable law, and to use my discretion of solemn and anxious trust with gentleness, and with sympathy for difficulties. I promised so to do when I was consecrated, and so, please God, I will do to the end.
Lastly you say, "If you take the attitude you are taking we must re-consider our relations with regard to the Establishment." So be it. 1 myself am perfectly clear that I should be faithless and disloyal to something higher than the law of the land were I to say—as we are being asked to say—that whatever the State may decide in a matter of this kind, the Church, if it is to retain its position of national service, must forthwith, in blind and helpless obedience, conform to an absolutely new rule whatever it be. I yield to none in my sense of the value to the nation of the Establishment, for which I care with my whole heart; but there are higher considerations even than that, if you do force us into the position of loyalty to the one thing or of loyalty to the other thing. I cannot believe that your Lordships, when the facts are fully before you, desire to place us Bishops as well as the clergy—perhaps more than the clergy—in that intolerable position. Most seriously do I protest against it and tell you that from this protest I cannot conscientiously depart.
do not wish to detain the House for more than a few moments, but I would ask your Lordships, in spite of what has been said by the most rev. Primate and the mover of the Amendment, to consider the rights and liberties of the laity in this matter. We have heard of nothing but the conscience of the clergy, for which I have every respect, but I have equal respect for the rights of the laity, which rights ought to be preserved. You may have an innocent party, a woman, living perfectly contented and highly respected by all in her parish, and then a new clergyman may suddenly be imported. He is, perhaps, a man (if the most rev. Primate will allow me to say so) of extreme, narrow-minded. views. This clergyman at once refuses to this innocent party her rights with regard to the Communion. The result is that this woman is not only insulted but she is jeered at by the population of the parish and looked upon as an evil doer. Why is that woman to be deprived of the rights and consolations of the religion to which she has belonged all her life? I ask, Where does Christian charity and tolerance conic in if you have the clergyman of a parish, accentuated solely by extreme motives, refusing that woman the rights and consolations of the religion in which she has been brought up? The most rev. Primate said just now that Parliament was not to be asked to decide who was to come to Holy Communion or not. It is because of this that I would urge your Lordships to reject this Amendment at once and to leave the law as it now stands. Let the laity and the clergy of England be satisfied with the law as it now stands with regard to admission to Holy Communion, and that is all for which we have the right to ask. I trust that your Lordships, for the reasons I have given, will reject the Amendment moved by the noble Earl.
§ LORD BUCKMASTER
When this Amendment was introduced I made but very few observations in answer to the speech of the noble Earl, and I did so because I regarded the Amendment as the expression of the sincere resentment deeply felt by the noble Earl against the provisions of this Bill; I hardly thought it possible that he was going to ask your Lordships to take the grave and solemn responsibility of voting upon the question. It is quite plain, from the speeches we have heard to-day, that I was mistaken, and it 251 has become a question upon which your Lordships must make up your minds. With a very great deal that was said by the most rev. Primate I find myself—as I am glad to think I often do—in complete agreement. I agree with him entirely when he says that it is a most painful and delicate subject to discuss in a public debate. I am in equal agreement with him when he assures us that he himself, if those powers existed, would exercise them in all pity and in Christian charity. I hope he will permit me to add that, speaking for myself, he need not have given me that assurance. But this Amendment is not one to place in the hands of the Archbishop of Canterbury the power of saying whether or no a particular person is to be excluded from access to Holy Communion; it is to place it in the hands of any priest, wherever he may be, and however strong and even bitter may be the views he happens to possess.
§ LORD BUCKMASTER
No. Look at the Amendment. This Amendment provides that by Act of Parliament he shall not be compelled by any suit, penalty or censure. Could you do more than censure him?
§ LORD BUCKMASTER
If this Amendment is passed you have no power even to censure him. In his own uncontrolled and, sometimes, misguided discretion—because I am certain that the most rev. Primate will not disagree with me when I say that frequently the people who are the most zealous are not the most charitable—whatever the man may be, he is at liberty, if this Amendment be passed, to exclude from access to Holy Communion—who?—every single person who has been divorced and re-married under this Bill. A woman whose husband has committed adultery, treated her with cruelty, been drunk—or whatever the cause may be—who has divorced him, she, poor unhappy girl, who has done nothing wrong, may be told by the priest, "None the less in re-marrying you have committed what I regard as such a sin that you are not a fit subject to approach and receive the holy consolation of 252 our Church." That is an extension of the law, for the most rev. Prelate the Archbishop of York stated what I regard to be the law at the present moment in terms with which I should not quarrel. He pointed out that the Statute which enacted that every person should be entitled to receive the Holy Communion except he be rejected for lawful causes was qualified by the rubric in the Prayer Book. And I agree. The rubric does provide that he must not deprave the Prayer Book or, more serious, be an open and notorious evil liver. These are the conditions which must be satisfied if a man is to be entitled to receive this rite.
What is it that both the Archbishop of York and the Archbishop of Canterbury say? They say that the English Church claims the highest right, and that is the right to reject a man, not because he is a notorious evil liver. The most rev. Primate admitted that an honest and upright man might none the less be excluded. I say that is absolutely contrary to the principles on which the Established Church of this country rests. And I say it for this reason. The Roman Catholic Church has maintained throughout unimpaired its absolute authority. It can excommunicate any members of the congregation. It can direct what they are to do and control their lives exactly as it pleases. The Church of England has no such liberty. From the moment when printing first brought liberty to men's minds and the translators of the Bible put the Book into their hands and the Reformation broke down the barriers that prevented men from reading it—from that moment individual judgment has been permitted to men upon all questions of opinion with regard to Christian faith that do not infringe the rules laid down by the Book of Common Prayer. The canons have been referred to, and the canons, as the rev. Primate knows, do not bind the laity of the Church.
THE LORD ARCHBISHOP OF YORK
I believe that applies only where these canons do not express the ancient and customary usage of the Church of England.
§ LORD BUCKMASTER
I think the most rev. Prelate will find it difficult to say that any objection not brought within the provisions of the Prayer Book can be made binding upon the laity of the Church of England. For this reason—that the National Church is the Church of the nation; 253 that any man who is well behaved, whatever his creed, has a right to enter the Church and to receive the benefit of its solemn prayers and its appealing litanies, and you cannot exclude him. Any other sect would be at liberty to exclude anybody it pleased. The reason why you cannot exclude Englishmen from the English Church is that the Church is the national Church and it has always been regarded as the valued heritage of us all. So with regard to the last and most solemn rite of all, if a man is riot a notorious evil liver, if he is not a depraver of the Book of Common Prayer, if he is not living in such a state as to be an open scandal to the world, he is entitled to express his penitence and contrition for the sins he has committed by appearing and being received at the Holy Communion. That I assert to be the position at the present time. This Bill seeks to alter it.
Just consider for a moment what it would mean. It is not suggested that all the clergy take this view. It is known that they do not. They do not all take this view with regard to divorce. There are clergy who can be found to marry these people in the Church. There are clergy who can be found to admit them to Holy Communion. They may even be a majority. What I want to know is, if the Amendment is passed, will it then be open to the Archbishops and Bishops to censure those people who have been doing something which this Bill says it would not be wrong for them to refuse to do? That would be impossible. Take again, the case of a man or woman who has, on his or her own instance, rightfully and lawfully divorced a spouse and then re-married. Up to this time—I may be wrong, but I have never heard of such a person being refused access to Holy Communion. If the Amendment is passed, that may be done.
What can be the justification for such action as that? The law would be that whereas, up till the time of the passing of this Bill, that right existed, directly the Bill is passed, if it contains the Amendment, that right would be taken away. I much regret, I greatly and deeply regret, that this question has been raised. I think, if it had not been raised, the difficulty need never have occurred. There are not so many people who are anxious to obtrude themselves where they are not wanted, and while there still remains that spirit of kindly pity and sympathy of which the 254 most rev. Primate spoke they would be able to obtain from that the religious consolation they seek. But the question has been raised, and it has become essential that it should be determined. I ask your Lordships to reject this Amendment, and I ask you to reject it because I believe from the bottom of my heart that in rejecting this you are acting far more nearly in accordance with the principles of Christian charity than they would do who would refuse these unhappy people, if the Amendment were carried.
§ THE EARL OF SELBORNE
The noble and learned Lord in charge of the Bill has put to you, in terms of deep conviction and emotion, the case of au innocent party re-marrying and being refused access to Holy Communion under the provisions of this Bill, if my Amendment were carried. Let me put to you another case. Naturally I feel, and all your Lordships feel, the weight of the argument addressed on that point by the noble and learned Lord and my noble friend Lord Galway opposite. Let me put another case, that of a flagrant scandal, a notorious evil man exposed in the Courts before his fellow countrymen, re-marrying under this Bill and then coming to Holy Communion. Under this Bill the parish minister can be prosecuted if he refuse to administer the sacrament to him. You say such a case hardly ever occurs, but it is equally open to me to say that the other case may hardly ever occur. The noble and learned Lord himself told your Lordships five minutes ago that he had never heard of a case of an innocent party hitherto being refused access to Holy Communion. Why should you suppose that under the provisions of my Amendment people would be refused who are not refused now?
§ LORD BUCKMASTER
May I explain? It is because there is no power to refuse them, except for this Amendment.
§ THE EARL OF SELBORNE
The clergy of the Church of England are not afraid of the question of conscience. It is only because they have thought that no matter of conscience is involved that they have not allowed these cases to he raised. If the Bill goes through without my Amendment, and the case arises of the notorious and scandalous man or woman asking to be received at Holy Communion, then refusal will take place and the case will arise. 255 What does my noble friend propose to do then? Is the parish clergyman to be put in prison should he refuse. And where will that end? How can you coerce the conscience of the priests and ministers any more than you can coerce the conscience of the lay man or woman?
This dilemma is raised by the Bill. It is not we who oppose the Bill who have raised the difficulty. It has been raised by those who propose this measure. It is not possible to classify cases and say that in some instances a discretion shall be allowed and in others no discretion shall be allowed at all. There is only one way out of the difficulty, and that is to free the conscience of the individual priest and allow him to refuse to administer the sacrament as you allow him to refuse to celebrate the marriage. If that is done the difficulty is avoided. Hard cases are quite likely to arise, and when they do arise how are you going to deal with them? I submit there is only one way, and that is by the Amendment which I propose.
§ VISCOUNT FINLAY
I desire to say a few words on this Amendment. In the course of the debate it has been said, Why not leave things as they are? I wish it was possible, but I am afraid that something must be done to prevent the possibility of collision between the Church and the State in a matter of this kind. I will presently say what I think should be done. I entirely agree, so far as my experience of Scotland goes, with what was said by the witness quoted by the most rev. Prelate before the Commission, that by the Scottish Ecclesiastical Courts no interference by Parliament with the terms of admission to Holy Communion would be tolerated for one moment. The difficulty arises where you have the law, such as it would be if this Bill passes, extending so greatly the causes for which divorce may be granted.
In the Division I shall vote for the Amendment for this reason. I regard it as simply declaring the principle that some protection must be given to the conscience of the clergy in these matters. They will be in really an intolerable position, and a position which no one can contemplate with favour. At the same time I vote for the Amendment because I believe we are on merely the principle as to whether protection should be given. In certain respects it seems to me that the Amend 256 ment, as it stands, would go a great deal too far. In the first place, it is not confined to the case of divorced persons who have remarried. Your Lordships will see if you look at the clause that it speaks of any person whose previous marriage has been dissolved and whose former husband or wife is still living, and then it goes on to provide that any clergyman in Holy Orders shall not be liable to any suit, penalty, or censure for refusing to admit to communion any such person. That would apply in the case of persons divorced whether innocent or guilty who remain single, and I cannot suppose that that was intended.
The second observation I wish to make is this, that there is one case of re-marriage to which I do not think the framers of the Amendment intended it to apply. It is the case where a divorce has been granted for adultery. That is a case on which very great difference of opinion may and does exist within the Church itself; and where the divorce has been granted for that reason, to say that the innocent person shall be subject to ecclesiastical deprivation for re-marrying would be regarded generally as a very strong measure.
The third observation that I desire to make is this. I look forward, if the Amendment is passed, with the greatest possible anxiety as to the manner in which the discretion that would be vested in the clergyman would, in certain cases, be exercised. I cannot think it is desirable that you should have matters of this kind, of the most delicate nature causing the most intense pain to those to whom the discussion relates, left to the decision of any clergyman, however good he may be, who might be a little hot-headed and not as discreet as may be desired in dealing with such matters. If the Amendment is carried I should certainly desire to see it amended at a further stage of the Bill by saying that the refusal must have been "under the direction of his ecclesiastical superior."
§ VISCOUNT FINLAY
That would safeguard the independence of the Church in spiritual matters, and if there is anything spiritual in this discussion surely this is a spiritual matter. If this were done, it seems to me that the Amendment would be free from the objections that have been 257 brought forward against it and would adequately protect the spiritual independence of the Church and clergy.
THE LORD ARCHBISHOP OF CANTERBURY
I want to be quite clear whether I have misinterpreted the noble and learned Lord. As I understood him, the position is this. Let Parliament pass a law giving any conditions you like for divorce and re-marriage, the Church is powerless and must follow suit and regard such people as capable of taking part in the highest and most spiritual functions. I want to know whether that is really so or not. The noble and learned Lord told us early in the debate that although the Bill went quite far he would like to go further, and therefore we were left with the expectation of possible further advance. Are we to understand that whatever happens we shall be expected simply to follow suit and to make our rules correspond?
§ LORD BUCKMASTER
What may happen at other times I cannot tell you, but unless a person is an open and notorious evil liver, or a depraver of the book of Common Prayer, as the law stands to-day he is entitled to have access to Holy Communion.
§ THE MARQUESS OF SALISBURY
I do not rise except to say, in answer to Lord Finlay, that the promoters of this Amendment intended that it should apply only to divorced persons who re-marry, and, as the noble and learned Viscount anticipated was the case, the promoters of the Amendment would be delighted to put in words to show that the clergyman should not act upon his own responsibility, but only with the sanction of his ecclesiastical superiors.
§ On Question, whether the words "or for refusing to admit to communion" shall be inserted in the clause?
§ Their Lordships divided: Contents, 61; Not-Contents, 87.259
|Canterbury, L. Abp.||Finlay, V.||Charnwood, L.|
|York, L. Abp.||de Mauley, L.|
|Bath and Wells, L. Bp.||Forester, L.|
|Newcastle, D.||Bristol, L. Bp.||Gorell, L.|
|Northumberland, D.||Chichester, L. Bp.||Greville, L.|
|Rutland, D.||Chelmsford, L. Bp.||Harris, L.|
|Ely, L. Bp.||Hastings, L.|
|Normanby, M.||Gloucester, L. Bp.||Heneage, L.|
|Salisbury, M.||Lichfield, L. Bp.||MacDonnell, L.|
|Liverpool, L. Bp.||Morris, L.|
|Caithness, E.||London, L. Bp.||Parmoor, L.|
|Ferrers, E.||Norwich, L. Bp.||Phillimore, L.|
|Grey, E. [Teller.]||Oxford, L. Bp.||Redesdale, L.|
|Halsbury, E.||Rochester, L. Bp.||Roundway, L.|
|Mayo, E.||St. Edmundsbury and Ipswich, L. Bp.||Shandon, L.|
|Midleton, E.||Shute, L. (V. Barrington.)|
|Morton, E.||Salisbury, L. Bp.||Stuart of Wortley, L.|
|Plymouth, E.||Southwell, L. Bp.||Sudeley, L.|
|Selborne, E. [Teller.]||Teynham, L.|
|Shaftesbury, E.||Addington, L.||Thurlow, L.|
|Verulam, E.||Annesley, L. (V. Valentia)||Wigan, L. (E. Crawford)|
|Chilston, V.||Channing of Wellingborough, L.|
|Birkenhead, L. (L. Chancellor.)||Lindsay, E.||Aberconway, L.|
|Lovelace, E.||Anslow, L.|
|Sutherland, D.||Lucan, E.||Askwith, L.|
|Wellington, D.||Lytton, E.||Atkinson, L.|
|Malmesbury, E.||Avebury, L.|
|Bristol, M.||Reading, E.||Barrymore, L.|
|Crewe, M.||Russell, E.||Bledisloe, L.|
|Lincolnshire, M. (Lord Great Chamberlain.)||Strafford, E.||Buckmaster, L. [Teller.]|
|Vane, E. (M. Londonderry.)||Cheylesmore, L.|
|Bradford, E.||Bertie of Thames, V.||Colebrooke, L.|
|Chesterfield, E.||Burnham, V.||Dawson of Penn, L.|
|Graven, E.||Churchill, V.||Denham, L.|
|Devon, E.||Haldane, V.||Desborough, L.|
|Fortescue, E.||Hutchinson, V. (E. Donoughmore.)||Desart, L. (E. Desint)|
|Harewood, E.||Ebury, L.|
|Kimberley, E.||Knollys, V.||Elphinstone, L.|
|Emmott, L.||Lambourne, L.||Rotherham, L.|
|Ernle, L.||Lawrence, L.||Ruthven of Gowrie, L.|
|Fairfax of Cameron, L.||Lee of Fareham, L.||Sandys, L.|
|Forteviot, L.||Monckton, L. (V. Galway.)||Somerleyton, L.|
|Gainford, L.||Montagu of Beaulieu, L.||Southwark, L.|
|Gisborough, L.||Monteagle, L. (M. Sligo.)||Sterndale, L.|
|Glenconner, L.||Muir Mackenzie, L. [Teller.]||Sumner, L.|
|Hindlip, L.||Newton, L.||Sydenham, L.|
|Hothfield, L.||Ponsonby, L. (E. Bessborough.)||Wavertree, L.|
|Hylton, L.||Ranksborough, L.||Weardale, L.|
|Islington, L.||Rathcreedan, L.||Wemyss, L. (E. Wemyss.)|
|Kitbracken, L.||Ribblesdale, L.||Wittenham, L.|
|Kintore, L. (E. Kintore.)||Riddell, L.||Wrenbury, L.|
|Knaresborough, L.||Ritchie of Dundee, L.||Wyfold, L.|
On Question, Motion agreed to.
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ LORD STUART OF WORTLEY had an Amendment on the Paper to insert at the end of subsection (1) a new proviso. The noble Lord said: This Amendment was conditional upon the last Amendment being passed, and is not capable therefore of now being moved.
§ LORD PHILLIMORE moved to leave out subsection (2). The noble and learned Lord said: This Amendment will, I trust, meet with favour in your Lordships' House. It is to get rid of a subsection of the clause which is a survival. The Act of 1857, which for the first time introduced divorce, provided in a rather singular manner that a minister of the Church of England might refuse to marry the guilty party, and only the guilty party, but was bound to lend his church. The section which your Lordships have so far passed puts it in the power of every clergyman to refuse to marry either the guilty or the innocent party—he is not to be compelled to solemnise the marriage—but the section leaves this survival, as I venture to say it is, and I think your Lordships will see that it no longer fits with the earlier provisions of this clause.
§ It has been said in the course of this debate that we shall have considerable chaos in the Church of England if you have one minister marrying and another refusing to marry. I put to your Lordships this case. You may have in one collection of parishes, or in one rural deanery, twelve priests, and eleven of them may refuse, as they have a right to refuse, to marry a divorced person, but the twelfth parson may think it right to marry that person, and he will be enabled as the clause stands to solemnise the marriage in his own church, but if you 260 leave the second half of the clause standing he will be enabled also, like the cuckoo, to go into some other clergyman's church and force that clergyman to lend his church so that a marriage which all the teaching of that clergyman is against may be solemnised in his church. I cannot conceive anything more likely to be deleterious to the cause of religion and to all good order than that a man whose teaching is against the re-marriage of divorced persons, and who lawfully refuses to marry a divorced person, should nevertheless have to see another clergyman come into his church to solemnise the marriage. That is wholly unnecessary, for the parties can easily go to the church of the other clergyman and get married there.
§ But I do not want to put it on the feeling of the clergyman, or the conscience of the clergyman. I want to put it on the feelings of the parishioners. As a rule, in a well regulated parish, "like parson like parishioners." If the parson has strong views about divorce it is probable that at any rate the devout members of his flock will have the same views. I say the devout members of his flock—people who really care for their church, who really use it, who really worship in it, not those who call themselves Churchmen and seldom or ever enter the church's doors except, perhaps, to claim some privilege which they insist upon as their right as Englishmen. Your Lordships remember how these people were wittily described once. Somebody spoke of "pillars" of the Church. The answer was "No, he is not a pillar, he is a buttress; he stays outside." Those buttresses ought not to be counted in this matter, but those who really are in the Church. Those who worship in the church ought not to be compelled to see, as they can be, the marriage of some great Society sinner celebrated in their church, to their horror and very much to the shaking of 261 their faith. I cannot conceive that any good purpose would be served by this subsection, except to increase the irritation that some people seem to wish to create, and I trust your Lordships will be with me in rejecting the subsection.
Page 19, lines 21 to 28, leave out subsection (2).—(Lord Phillimore.)
THE LORD CHAIRMAN
I suggest to the noble Lord that I should put the question, "Leave out line 21," in order to safeguard the right of the Lord Bishop of Norwich in case this Amendment is not agreed to.
§ LORD BUCKMASTER
If one looks at the Bill as it stands and then considers the Amendment I submit that it is really impossible to accept the Amendment. For what is the Bill as it stands? No clergyman is to be compelled to marry any person, but other clergymen may be ready and willing to do so. It is exactly an illustration of what I have said throughout, that the idea that the Church of England is united upon this question is a mistake. There are many beneficed priests of the Church of England who will not regard it as wrong to marry people who have been divorced under the provisions of this Bill if it ever becomes law, and if one of them is ready and willing to perform the ceremony of marriage for two people who want to get married, why is it that they should not be permitted to have access to the parish. church for the purpose of the marriage? Where else can it be done?
§ LORD BUCKMASTER
Yes, but they may not want to go to a Registry Office. You must remember that I am referring to a case in which a priest of the Church of England is willing and ready to marry the people in a church.
§ LORD BUCKMASTER
They may not live in his parish. Do you wish them to get a sham qualification in some other parish? There is no reason, I submit, why they should not have the use of a church if they can obtain a parson who is 262 willing to marry them and who does not think it wrong to do so, for I credit these men with just as much sincerity as I do the people who think it is wrong. They will be acting perfectly within the established law of the Established Church in re-marrying these people, and I say that there is no reason whatever why any further obstacle should be placed in their way.
THE LORD ARCHBISHOP OF YORK
I had indulged the possibly vain hope that the noble Lord, having secured so many successes, would have been willing in this matter to make a concession. I do not think myself that it will prove to be a very frequent occurrence that the clergy will be found to go against the strong desire and will of their brethren, and conduct marriages in their churches where the responsible guardian of the services of that church has, for reasons acknowledged to be entirely right, declined to do so. I think there are multitudes of clergymen who may entertain the opinions expressed by the noble and learned Lord and yet who may be hindered by ordinary courtesy to their brethren from taking such a course. But although I do not think that this clause is likely to be very often used it does, I think, remain as an indication of an unjust point of view and I hoped that it would be eliminated, or, at least, modified.
The position is this. Here is a clergyman who is quite entitled under this clause, because he has a genuine conscientious conviction, to say, "I will not have this marriage celebrated in my church." Nothing in this Bill hinders him in the least from so doing. But somebody else can be found in the diocese—or, if he can manage it, from outside the diocese—to come in and, in spite of him, do the very thing which he feels ought not to be done there. I would ask the House to consider for a moment that this clause does not in the least prevent one of those very worst cases—I mean a scandalously adulterous person who wishes to be married again, in order to make himself look respectable. He cannot get the marriage performed by the consent of his parson, but he so to speak roams about until he can find someone who is willing to do it, and the parson may be prevented from iorbidding the marriage of somebody notoriously evil living taking place in his own church. And you will have to consider the parishioners. You must remember that there 263 are numbers of people in all our parishes who would resent the use of their parish church for this purpose quite as much—and in many cases more—than, the parson himself. Why should it be permissible for someone to import a strange clergyman into the parish in order to do something which might offend the conscience of the best and most Christian parishioners?
But I would remind the noble and learned Lord that this clause goes very much further than the Legislature went the last time it had to consider these matters. I do not know whether the noble and learned Lord remembers that when the Marriage with a Deceased Wife's Sister Act was passed in 1907 it did not in this respect, as the noble and learned Lord does, follow the Act of 1857. On the contrary, it provided that the minister —not as in this case" shall permit"; any other clergyman to officiate, but "may permit"; and it seems to me very strange that in this matter where the offence to the conscience of the clergyman and of the parishioners is infinitely greater than it was in the case of the Deceased Wife's Sister Act, we should strike out the word "may" which occurred in that Act, and insert "shall."
§ LORD BUCKMASTER
If this Amendment were to substitute "may" for "shall" I would accept it without further words.
THE LORD ARCHBISHOP OF YORK
I am most grateful. I was going to say I felt quite sure that the noble and learned Lord would accept that, and to a large extent it would remove the injustice which is done by the present clause. But, apart from that, I would wish that the clause might be thrown out, because it is going to give almost too much consideration to what is called the minority. After all, there are many means left open to persons under this Act to be married if they so desire with the ceremony in church, and I suggest that this is giving too much consideration to the rights of the average parishioner when you invest him with a statutory power of giving grave offence to the conscience of a great many of his fellow men.
§ LORD BUCKMASTER
If my proposal is not accepted another position arises. I said I was perfectly willing if this Amendment were withdrawn to permit the substitution of the word "may" for the word "shall" on line 25.
I should have thought, in deference to the noble and learned Lord, that then the clause was unnecessary because, of course, you can always permit. But if the noble and learned Lord likes it, I shall be content to put in the word "may" instead of "shall."
§ Amendment, by leave, withdrawn.
Page 19, line 22, after ("to") insert ("publish the banns of marriage of or to")
Page 19, line 24, after ("their") insert ("banns published or their").—The Lord Bishop of Norwich.)
THE LORD ARCHBISHOP OF YORK
In accordance with the noble and learned Lord's concession I beg to move to insert "may" instead of "shall."
Page 19, line 25, leave out ("shall") and insert ("may").—(The Lord Archbishop of York.)
Page 19, line 26, after ("to") insert ("publish the banns of marriage or to").—(The Lord Bishop of Norwich.)
§ Clause 34, as amended, agreed to.
LORD BUCKMASTER moved, after Clause 34, to insert the following new clause—
35.—(1) The provisions of this Act shall apply in all cases to which the same are applicable, whether the circumstances relied on occurred before or after the passing of this Act, and where
any proceedings are Pending in the High Court at the time of the commencement of this Act the court shall allow such amendment of the pleadings as may be necessary as the result of the coming into operation of this Act.
(2) Any order made by a court of summary jurisdiction under any enactment repealed by this Act, that one party to a marriage be no longer bound to co-habit with the other party, shall at the expiration of six months from the commencement of this Act, cease and determine, but without prejudice to the right of obtaining a temporary separation order under this Act.
Provided that nothing in this provision shall affect any Order made under any such enactment for the payment of any weekly sum by one party to a marriage to the other, all of which Orders shall, while in force, have effect as if made under this Act.
(3) Rules made by the Lord Chancellor under Part II of this Act shall provide for notice of the relevant provisions of this Act being, so far as practicable, given to any persons who are at the time of the commencement of this Act subject to any Order of a court of summary jurisdiction which will cease or determine under the provisions of this section.
§ The noble and learned Lord said: This is a clause that is designed to make clear what I think is conveyed by the Bill without the introduction of these words, but I never like to leave a Bill in obscurity if it is possible to make it plain. With regard to subsection (1), if this Bill once becomes law there is no possible ground on which you can draw a straight line at the date on which it becomes operative. The next subsection is to prevent the order of the Court of Summary Jurisdiction having a more extended jurisdiction than it has at the present moment. It provides that where an order has been made under any enactment repealed by this Act that one party to a marriage be no longer bound to co-habit with the other party it shall at the expiration of six months front the passing of this Act come to an end. Then there is a provision for keeping alive the payment of weekly sums and another provision as to rules. The clause is really intended to make the Bill plain.
After Clause 34, insert the said new clause.— (Lord Buckmaster.)
§ Clause 35 agreed to.
§ Clause 36:
§ Short title, commencement, application, and repeal.266
§ (2) This Act shall not apply to Scotland or Ireland.
§ (3) The enactments specified in the Second Schedule to this Act are hereby repealed to the extent set out in the third column of that schedule.
Page 19, line 34, leave out ("1913") and insert ("1920").—(Lord Buckmaster.)
Page 19, line 35, leave out ("July") and insert ("October").—(Earl Russell.)
Page 19, line 35, leave out ("fourteen") insert ("twenty").—(The Lord Chancellor.)
Page 19, line 37, leave out ("second").—(The Lord Chancellor.)
§ Clause 36, as amended, agreed to.
§ First Schedule:
§ LORD BUCKMASTER
The First Schedule now come out because the Lord Chancellor will introduce rules which will render it unnecessary.
Leave out the First Schedule.—(Lord Buck-master.)
§ Second Schedule:
Page 21, line 9, leave out ("Second").—(The Lord Chancellor.)
§ On Question, That the House be resumed,
§ LORD BUCKMASTER
My Lords, I should like to mention the question of the date on which the Report stage of this Bill should be taken. I am anxious that it should not be delayed further than is necessary, and I think that is the wish of your Lordships. I have been informed that June 3 is extremely inconvenient for some of the right rev. Prelates, including the most rev. Primate the Archbishop of Canterbury and the most rev. Prelate the Archbishop of York, and, as I am naturally anxious to have them present, I will put down the Report Stage for June 8, if that will suit the convenience of every one.