§ THE EARL OF LIVERPOOL rose to ask the Lord Chancellor whether, in view of the result of the appeal to the Privy Council by Mr. Wakeford, there is any public fund from which the costs of the prosecution can be found in view of the fact that at present the onus of this prosecution has to be borne by the Bishop of Lincoln, notwithstanding the finding of the members of the Board. The noble Earl said: My Lords, it is a considerable number of years since I had the privilege of addressing your Lordships' House. Before asking the noble and learned Lord on the Woolsack the Question standing in my name, I should be grateful if the House would allow me to explain the reason why it appears on the Order Paper. I am one of the signatories of an appeal which has gone out through the medium of the Press for the purpose of endeavouring to reimburse the Bishop of Lincoln for the very heavy costs which have been involved by the prosecution before the Judicial Committee of the Privy Council. There seems to be in the mind of the public some misconception as to the reason why he was mulcted for these costs.
§ We are all well aware that Mr. Wakeford was tried before the Consistory, Court and found guilty. He had the option of appealing to the Court of Arches, and did not avail himself of that option; but, as funds were found to enable him to go before the Judicial Committee of the Privy Council, he decided to take the appeal to that Committee. We know the verdict of 538 the Judicial Committee, but the result is that a very heavy burden was imposed on the private income of the Bishop of Lincoln, and there was no chance of the costs which were allowed to him by the Committee ever being obtained. The general public are somewhat under the impression that Church affairs are in rather the same position as military affairs in matters of this kind. They do not understand—or, at all events, some people do not understand—the reason why a great officer of the Church should be mulcted in this way while a General Officer Commanding-in-Chief has no expenses in such a case. Of course, I appreciate the fact that the two cases are not on all fours, but at the same time it might be possible to find some portion, possibly from the funds of the Ecclesiastical Commissioners, of this very heavy burden which is being borne by the Bishop of Lincoln.
§ Perhaps the noble mid learned Lord will allow me to ask whether it would in future be possible, while not eliminating the right of appeal to the highest Court in such cases, somewhat to limit the scope or power of the individual to make an appeal to the Judicial Committee. I believe I am correct in saying that in cases which come before the Judicial Committee from the Colonies and Dominions the applicant has to guarantee the costs before the appeal is allowed.
§ There are three matters I should like to mention before I sit down. I do not suppose for a moment that the noble and learned Lord will make any remark upon them, but I have received a communication pointing out that there are a large number of people who, whatever answer may be given this afternoon, would like to see some fund created, not necessarily for the purposes of prosecuting the clergy, in order to prevent these heavy costs falling upon the shoulders of bishops. The second point is that when it becomes necessary for a bishop to take disciplinary action in his diocese, no one outside that diocese, with the exception of the Archbishop, should be allowed to interfere in any way. The third point is that it is earnestly hoped that, when a man has been deprived, he will not be re-licensed, unless the circumstances are very exceptional.
§ LORD PHILLIMOREMy Lords, before the noble and learned Lord on the Woolsack responds to this Question, I want to make a contribution, and I think I am the only living person who can make it, It was my 539 luck to be counsel for a former Bishop of Lincoln in a case where he though it necessary to refuse institution to a clerk who had presented himself, and by doing so he was involved in a great deal of litigation, and ultimately had to pay all the costs. My contribution is this. Sir George Jessel, Master of the Rolls, had one part of the case before him, and he took occasion to express, what he said had been his long considered opinion, that there ought to be some public fund out of which bishops acting as public officers should be reimbursed.
Sir George Jessel's public statement was a very remarkable one, for no fewer than four reasons. First, he was not a member of the Church: he was a member of the Jewish community, and he spoke only from the position of a man interested in the good order of the country generally, and the support of all public authorities. Secondly, it was not a case where lie was saying that the Bishop was right. It was a case where, recognising fully the public spirit and motives of the Bishop, he felt compelled to order him to pay the costs of the other side, because he thought the other side was right, and ought to have its costs. The third consideration is this. At the time when Sir George Jessel so expressed himself the income of the see of Lincoln was certainly larger than that of the present Bishop, because Nottinghamshire had not been taken from it, and larger than that of most sees at the present moment. Fourthly, it was at a time when an income of that description went very much further than it does now.
I have often had occasion to think about this, and I have always felt that, now that bishops have been deprived of their great estates, and reduced to the position of annuitants, receiving a special stipend, it is not right that expenses of this kind, which may fall accidentally upon some one bishop in the course of a good many years, should be a burden upon that bishop and that see. I have always felt that the Ecclesiastical Commissioners, who have received enormous emoluments from many episcopal sees, ought, under due precautions, to furnish all, or at any rate a considerable proportion, of the costs of bishops who, in performing a public duty, are put to such expenses as the Bishop of Lincoln has been put to in this case; because everybody knows that, though it is quite right that the other side should be ordered 540 to pay the costs, the practical chance of getting the costs out of such an appellant are nil.
§ LORD PARMOORMy Lords, I should like to give a precedent—although it is not exactly in accord with the present case—under which these costs might be paid to the Bishop quite irrespective of what might be done in the future as regards providing a fund for purposes of this kind. I have in mind a case happened to the late Archbishop Temple, at a time when I had just become his Vicar-General. The question arose in connection with the confirmation of the present Bishop Gore in the see of Worcester. Very strong objections were raised by the Low Church Party, and I was asked, as Vicar-General, on behalf of the Primate, to try whether he was an orthodox person or not. That is a duty I refused to undertake. But in the result the question was taken to the King's Bench, and argued for nearly a month. Very large costs were involved, amounting to several thousands of pounds, which would have been a very heavy charge on the Archbishop, and to which, personally as Vicar-General. I was very pleased not to he subject. We won the case. Lord Salisbury intervened on that occasion, and the costs of the Primate I and of his Vicar-General were paid from a public fund.
There was no claim on any public fund, but, as a fact, the costs were found. And I think it was a very proper case. I recollect in the first instance asking His Grace what to do, having regard to the liability for costs, and he said very properly "Never mind how many thousands of pounds in costs may be involved; do what is right," which I think was an answer with which everyone would agree. I quote that case only to show that although there was no public fund applicable to the payment of costs, provision was made for them. I agree with what has been said about the application of public funds to matters of that kind, but that can only affect future proceedings. I should like to suggest that this illustration might be looked into in order to see whether costs might not Et paid from some public fund in the present case.
THE LORD ARCHBISHOP OF CANTERBURYMy Lords, I do not know that my intervention in this discussion is really necessary, but the noble Earl who introduced the Motion referred to me 541 and perhaps I might say a few words. I should obviously leave the noble Lord on the Woolsack to answer the legal questions that have been raised, to which contributions have been made by two noble and learned Lords, but having had long experience in this kind of question, indeed, of this question itself, in practical form on several different occasions, I should perhaps say something.
It is obvious that the difficulty which a bishop has to face is very real when it becomes his duty, not as an individual but as a public officer, to undertake the prosecution of someone whom he believes to have offended. Whether it is possible to distinguish between the cases in which a bishop so acts in regard to morals and those in which a bishop so acts with regard to doctrine or ritual, I am not prepared to say. The case that was referred to by my noble and learned friend, Lord Parmoor, belongs, of course, to the second category, and most of the cases in the last half century, which have involved the payment of very large costs, have been cases which were not on moral matters, but on questions of doctrine or of ritual. So far a know, everybody agrees that if it be possible there ought to be some mode whereby a bishop should not be mulcted in so large an amount as he may sometimes find himself mulcted in when he has acted simply as a public officer or, on the other hand, be deterred from a prosecution on the ground of his fear that such a contingency might arise.
During a very long experience of episcopal affairs I have no knowledge whatever of any case in which a bishop has refrained from bringing into Court a matter which he thought ought to be brought into Court, because of the possible costs which might fall upon himself. When the Royal Commission on Ecclesiastical Courts, which reported in 1883, was sitting, many of the witnesses dealt incidentally or directly with the subject of costs. Everybody agreed that there ought to be some mode of protecting bishops and other public officers in the matter, but no practical suggestion was made as to the source from which such funds could fairly or reasonably be drawn. References like that of the noble Earl to-day were made to the Ecclesiastical Commission—that the funds there might possibly be available for such purposes, but no one put it in any concrete form as a definite recommendation, either 542 in 1883 or in 1906, when matters concerning ecclesiastical discipline were before the Royal Commission of which I was a member.
The moment we speak of the funds of the Ecclesiastical Commission as the source from which money might be obtained for this purpose, we have rightly to ask for what object the funds they now hold in trust were given—that is, what is the trust for which they are answerable? It is for the augmentation of the poorest benefices, the helping of the most needy parishes to do their work properly, and assistance so that the poorest clergy shall be made a little less poor, so far as the Commissioners have power to do it. Therefore, if you are going to take money from the Ecclesiastical Commissioners' funds for this purpose, it is only fair to remember that you are really taking it from the poorest clergy in England in order to pay the expenses of bishops. I, for one, as President of the Ecclesiastical Commission, am not prepared to recommend that that money should be so diverted, although I am perfectly ready to hear arguments brought forward showing that it is desirable.
The noble and learned Lord, Lord Phillimore, suggests that something of the kind might be done, but I would venture to say that he, least of all, needs to be informed that it could not be done without legislation. The Ecclesiastical Commissioners have no power whatever at present to devote their money to the purpose, and if legislation is to be obtained it is undoubtedly open to the noble Lord or anyone else to raise that question in the National Assembly of the Church, and to see what their view is about it. I shall be ready to fall in with the views of churchmen, clerical and lay, on the question, but prima facie I should be the fast to stand here as a bishop and ask that the costs in this matter should fall upon other than those who should really bear them.
During my thirty years' experience of the Episcopate I have had four or five cases in which I have been liable for the payment of considerable costs in matters of discipline relating to morals or wrong doing of that kind; never in the least like the expense of the particular case to which we are now referring, but to the extent of a few hundred pounds. In no single instance have I failed to receive that money, either from anonymous sources or from individuals 543 who gave their names. I do not say that no expense has fallen upon me, but in every case I have been relieved by the generosity of those who felt that the thing was not fair to the bishop. The money has been found in some way by the kindness of lay friends who desired that the bishop should be relieved. That is my personal experience, although, as I have said, there was no ease in which the requirement was anything like so large as it is in the instance which is before us now.
In opening the discussion the noble Earl mentioned two points upon which I desire to say a word. I do not know that I entirely follow him as to what he thinks ought to be done, as he put it, to prevent someone from outside, other than the Archbishop, interfering in this matter. I suppose in a free country anybody may advise a defendant in a suit to appeal and encourage him to do so, if he thinks it is wise that he should appeal and that his ease should conic before a higher tribunal. I should not for a moment join in any criticism, still less in condemnation, of the giving of such advice by anyone who thought that the defendant in a particular case had either been wrongly convicted in the inferior Court or that his case was one of such importance that nothing less than the very highest tribunal ought to be the ultimate adjudicator in the matter. I cannot imagine how that can be prevented by law.
With regard to the next point which the noble Earl raised I think I can satisfy him as to the law. He said that it was very undesirable that a defendant in a case like this, after conviction, should be capable of being licensed in sonic other parish, according to the whim, if I may so put it, or the wish or feeling, of an individual bishop. The law has already provided for that. When a man has been, in the technical term, deprived or declared incapable of preferment under the Clergy Discipline Act, 1892, it is specifically provided in that Act that he cannot officiate, and cannot hold any preferment of any kind, which includes specifically a curacy, unless the bishop of the diocese and the Archbishop of the province in which it is situated are satisfied that the bar upon him ought to be removed. That is the law to-day. Not infrequently when some man—I am not speaking of cases so prominent as this—has offended and been convicted and a brother bishop considers 544 he ought not to be restored to the exercise of his ministry, I have had act with the bishop of the diocese in considering whether or no such a man ought to be licensed or preferred. But whatever might be the opinion of an individual bishop in desiring to do that, he is helpless without the backing of the Archbishop of the province. I think that answers the noble Earl in regard to the danger he appeared to anticipate in this particular case.
I do not know that there is more that I need say upon the subject, but no one would be more thankful than Ito learn that there is some source, at present unknown to me, from which, without the need of legislation for the purpose—or with the need of legislation, if that legislation is expedient and desirable—funds would be forthcoming to relieve bishops from a liability which, I entirely agree, is an exceedingly unfair one, though I do not think the course of justice has been prejudiced thereby, or that bishops have been prevented from doing what they believe to be their duty.
§ THE LORD CHANCELLOR (LORD BIRKENHEAD)My Lords, the Question asked by the noble Earl relates to proceedings under the Clergy Discipline Act. 1892. It may be convenient that I should make it clear what are the classes of case which may arise under that Act, and what is the right of appeal. The noble Earl has spoken of the possibility of limiting, or of imposing conditions upon, the right of appeal. In the first place, the Act provides that if a clergyman is convicted of treason or felony, or, on indictment, of misdemeanour, and on any such conviction is sentenced to imprisonment with hard labour or any greater punishment, or a bastardy order is made against him, or he is found to have committed adultery in a divorce or matrimonial cause, or has an order for judicial separation, or a separation order under the Matrimonial Causes Act, 1878, made against him, the bishop is compelled to declare his preferment vacant, and he becomes incapable of holding any future preferment. No proceedings under this section involve the bishop or any other party in any costs.
If, on the other hand, a clergyman is convicted by a temporal Court of having committed an act which constitutes an ecclesiastical offence but does not fall within the operation of Section 1 to which I have already referred, or if he is alleged 545 to have been guilty of any immoral act, immoral conduct, or immoral habit, or of any offence against the Laws Ecclesiastical, being an offence against morality and not being a question of doctrine or ritual, he becomes liable to prosecution. The prosecution may be instituted by his own parishioners or by the bishop or by any person approved by the bishop. The case is tried in the Consistory Court of the diocese, subject to a power inherent in the bishop to disallow the proceedings if he thinks the complaint too vague or frivolous. There is also a power in the Court to order the prosecutor to give security for costs.
Either party may appeal against the judgment of the Consistory Court in respect of any matter of law. None of your Lordships, I think, would be a party to any hindrance to this right of appeal in respect of a point of law upon a matter so grave. The prosecutor has no appeal in respect of the facts, if the facts are found in favour of the defendant. There is then an end of the matter. But if the defendant desires to appeal in respect of the facts, he may petition the Appellate Court for leave to appeal, and the Court ought to grant leave if it be satisfied that there is a prima facie case. The appeal is, at the option of the appellant., either to the Provincial Court or to His Majesty in Council—that is to the Judicial Committee of the Privy Council. I am fully alive to the unfortunate consequences which may ensue, and have in this case ensued, where the bishop is the prosecutor and is forced, in the course of his duty, to institute the prosecution.
In this case a conviction followed in the Consistory Court, and it then became the plain duty of the bishop to uphold the decision of that Court in a hearing before the Judicial Committee which extended over many days. If that matter had been presented to the judicial Committee without the assistance of learned counsel who appeared for the bishop it may well be that there would have been a failure in justice. I have no doubt that the Bishop of Lincoln has been involved in very heavy expenses, but it is obvious, as the most rev. Primate indicated, that as the law stands at present there is no means whereby this result can be avoided, unless it be by some arrangement made by the authorities of the Church itself, or by benevolent persons, to reimburse the bishop for the costs which he has been forced to expend.
546 Lord Phillimore made one suggestion upon which the most rev. Primate justly observed that it would require legislation. If legislation were contemplated in such a matter it could be dealt with in a variety of ways. It is, of course, open to any noble Lord to introduce a Bill for the amendment of the Clergy Discipline Act, and any proposal which may be brought before this House for the purpose of doing so will certainly receive most careful consideration. But I fear that the Bishop has suffered no more severe a fate than befalls many another righteous litigant, though in the latter cases, as a rule, the litigants have the consolation, if it be a consolation, of knowing that they have fallen by the roadside in pursuance of a quarrel of their own and not merely in the discharge of a public duty.
It appears to me very doubtful whether it would be desirable to introduce any limitation upon the right of appeal beyond that which already exists under the Statute, which I have explained. From the statement I have made it will be apparent to the House that, while there is an absolute right of appeal upon a point of law, the right of appeal on facts is most closely limited. An appeal on a point of law in a case of this kind is unlikely to be long or costly, and, as a matter of fact, such appeals have been rare. As to appeals on facts, when it is remembered that they can only come to be heard if a very experienced tribunal thinks that the appellant has made out a prima facie case, and when the tragic consequences to the appellant of the adverse decision of the Court below are considered, there is great cause for hesitation before any further impediment in the way of appeal can be justified. I myself am strongly opposed to any attempt to introduce such an obstacle.
The Bishop of Lincoln, in this case, has undoubtedly incurred heavy expenses and great hardship; and, as the most rev. Primate has pointed out, other bishops, from time to time, are exposed to similar liabilities in the discharge of a public duty. The most rev. Primate did not suggest—and the times are not very favourable to such a suggestion—that the burden should be discharged from any public source. I should be very unwilling to be understood as denying the hardship, which presses with even greater weight on bishops in these days of a depreciated value of money, shrunken revenues, and so on. It may be 547 that a liability of this kind is cruel, and may often be crushing. I do not know that I can say more, but if noble Lords and right rev. Prelates who hold strong views on this matter think it worth while to discuss it among themselves, with the object of making any positive proposal, such a proposal would undoubtedly be listened to with a great deal of sympathy by the Government. Your Lordships can hardly expect that I should be more definite than that on this occasion.