§ Order of the Day for the Second Reading, read.
* THE ARCHBISHOP OF CANTERBURY
My Lords, I feel myself to be in a rather unusual position in moving a Bill which has been, to my great satisfaction and thankfulness, included and mentioned in Her Majesty's Gracious Speech; but my only desire is that this Bill should be passed, and therefore I am ready to take any part which I possibly can towards that end. I only wish that it had the benefit of one advocacy. Archbishop Magee, whose position here for so many years was so high, whose eloquence, wit, and common sense so recommended any measure which he advocated, and who commanded such influence everywhere outside this House, among the laity of the country as well as among the clergy, was not among the actual framers of this Bill, but he was a very enthusiastic advocate of it; his last great speech was devoted to explaining to the Bishops and clergy of his province the provisions of this Bill and to advocating them. My Lords, it is the same Bill as he then advocated, except in one point to which I shall call attention. Although it is much reduced in bulk, it is only compressed, and compressed in a very simple manner; the wording here and there has been abbreviated; but the large clauses, which, for the sake of fulness, were printed in the Bill as it came before your Lordships on the last occasion, taken out of previous Acts of Parliament, have been placed together in a Schedule at the end. My Lords, the one point which is added to the Bill I shall dwell on at length, and I will say, in the first instance, that it was not advocated but disliked by Archbishop Magee. He objected to it on the ground that it made too little of the office of a Bishop. Another high authority objects to it 1714 on the ground that it makes too much of the office of a Bishop. It is not for me to decide which of the authorities is the higher; but to me it causes a certain amount of satisfaction that the objections mutually destroy each other; and I do not think there is much fault to be found with the provision, as a just mean between the two. Indeed, my Lords, though Archbishop Magee's advocacy would have been so powerful and so impressive, I cannot believe that this Bill really needs any advocacy. It has been prepared through some years by a Committee on which were good enough to sit some of the strongest, wisest, and most experienced Members of this House, both in the Church and the State. It passed through the Standing Committee, where it received a careful examination; it passed your Lordships' House; and Mr. Smith, that wise and sound statesman, whom we lost so immediately after the Archbishop, had undertaken to pass it through the House of Commons; and, indeed, it only perished on one of the very last days of the Session with other victims, and unexpectedly. I would remind your Lordships that this Bill deals with morals only; that it has no relation to doctrine or to ritual; it is simply confined to cases of clerical immorality. The necessity of such a Bill lies in small compass. If a layman of influence in a parish is a licentious man, his influence of course is extremely mischievous; his example is followed by the young and foolish over whom he has influence—he discredits his position. But, if the offender is the one man in the place who is commissioned, and supported by law, to be the guide and the teacher and the comforter of the young, the sick, the dying and the poor; if he is the counsellor of many; if he is placed there to be the expounder of Divine Revelation and the minister of Holy Sacraments and there is no other man who can be recognised by the Church there; then how fares it with the people if he is drunken, if he is profligate or a seducer? We know the visible signs—there is the empty Church; but there are worse invisible signs,—the lack of his influence in regions which are not before the public eye is almost more terrible than the 1715 emptiness of the Church in which men ought to be worshipping God and learning His ways; the sick are unwilling to send for him; the parsonage house, which ought to be the centre of so much that is good, is suspected, is shunned, is pointed at; the man himself is conscious that he has no message to deliver but what would reproach his own actions: that he has no mission because he is the parishioner who most of all needs to be reclaimed. But, my Lords, the law, which surrounds the good pastor and keeps him in his place, and so supports him and confers on the country such vast benefits by that support,—this law virtually offers no means by which a traitor can be got rid of. And the reason why it offers no means is a singular reason. It is a long sad history. It begins in an old wrong theory. It began in the theory that the man, as priest, was an essential intermediary between God and man; that good morals were a most desirable and necessary addition but not essential to his office among his people. Consequently the first processes instituted, in order to put an end if possible to scandals, were instituted upon what we cannot but in this day call a most wrong basis. Processes instituted against such a man were held to be pro salute animœ; it was not the parish or the people that were in view; it was the improvement of the priest that was intended. And when legislation started from so wrong and so mistaken a base, then there came in a steady constant accumulation of precedents of leniency, and even favour, which have landed us in this position: namely, that really and truly there is no means certainly available of getting rid of an evil pastor. Consequently, you have certain scandals not arising frequently, but from time to time, and echoed all round the sky until it seems as if the air was full of them. Such a case as that which occurred in a diocese a little north of this, last year or the year before, when a man, guilty of repeated acts of drunkenness, has at last evidence produced against him, is brought into the Arches Court and receives a sentence of three months' suspension. At the end of three months he comes back, and the first sermon that he preaches is a lively 1716 description of the holiday that he has enjoyed abroad. And there is the case well known to your Lordships and to all England, that infamous case which cost two successive Bishops of Exeter £14,000 and £1,400 respectively. Now, my Lords, so much has been said on this subject before that I will not amplify this part of the matter, but will call your Lordships' attention at once to the change that has been made in the Bill. In the last Bill the conviction of certain crimes and misdemeanours enumerated in Clause 1, as well as conviction of treason or felony, vacated the living ipso facto. The law before was that cases of treason and felony brought home should vacate the living ipso facto, and there were added to these certain new offences which should ipso facto vacate a living. Well, my Lords, we have found that very wide objections indeed have been entertained to these additions to the ipso facto principle of vacating among people of all sorts of opinions. There is this to be said obviously at once: that it is a strange thing that a property, and still more a spiritual function, should be vacated by the sentence of a Magistrate, who has no relation whatever to a benefice, and who in his sentence can take no notice at all of the effect which it will have in the deprivation of the benefice. It is not well that there should be no notice taken of the sentence; it is well that it should be made known as widely as possible. A clergyman, we must remember, is necessarily in his position as a beneficed man in two capacities. He is the holder of property by the authority of the law, and he has a spiritual work and duty—what is called the cure of souls of the parishioners—committed to him by his Bishop. Now when the patron has presented a man to a benefice, so that the property will come to him, the Bishop is then required by law to institute him to the spiritual care of the benefice, upon the presentation of the patron; and it does seem reasonable that he should also be similarly required to declare that the living is vacated, before he proceeds to institute another man into the same place. It is different, of course, in the case of death; there is no necessity for a declaration upon that occasion—the 1717 fact is notorious that the late rector is dead. Well, then, Clause 1 enumerates two kinds of gross offences. It first of all mentions those which already ipso facto vacate the living, and then the other class which at present do not ipso facto vacate the living, but ought to be made to do so. We have in this Bill made no change whatever as to the first class. Treason and felony will still, according to this Bill, vacate a living exactly in the same manner as they do now, and the benefice can be immediately re-filled. We do not repeal the Treason and Felony Act, or any clause or any wore of it. But the Bill does lay upon the Bishop the further duty then of declaring that it is vacant, before he proceeds to institute another man. The declaration of the Bishop in this case has nothing whatever to do with vacating the living—it is vacant, and, if it is so wished, a man can be instituted to it; but the Bishop is to be called upon to declare it vacant before he proceeds to put another man into the place. And the man by this Bill is also rendered incapable of receiving further preferment, which seems the most just of measures, until he is either pardoned by the Crown, or until he is otherwise declared once more capable of receiving preferment. That is the first class of offences. The second class of misdemeanours is recited in the first clause, and I will venture to say that the world at large, reasonable sensible people being judges—nay, vicious men themselves being judges, there can be no doubt that everyone would agree that the man who commits such offences is disqualified from being the pastor of a flock, disqualified from exercising this cure of souls, and there ought to be no difficulty in removing him from that pastorate and that cure. But, my Lords, as the law stands now the offence may be proved, the man may be convicted, the man may be sentenced, and yet he is safe in this position to all intents and purposes; he has to be again tried from beginning to end before he can be displaced; and he has to be tried by processes which are expensive and complicated, technical and uncertain, in the very highest degree; he can appeal, and appeal again, until the expense, protrac- 1718 tion, and uncertainty of the suits into which he may bring the authority who tries to do his duty by him and the Church, may absolutely win the day. Now the effect of this Bill then is to make civil conviction for these offences conclusive as to the fact of their having been committed; and the Bill then provides that the Ecclesiastical Authorities should accept the verdict as a fact, and that they should declare the vacancy of the living. Now this, my Lords, is the point upon which there is difference of opinion; but, as I said, the difference of opinion is this: it is not simply one difference of opinion with the Bill, but on one side it is thought that the office of the Bishop is made too little of, by requiring him simply to declare that the living is vacant when vacated in this manner; and, on the other hand, it is thought that it is making too much of the office of the Bishop by bringing him in at all. I do not really think that, those being the two poles of difference, your Lordships will differ from the Bill. I believe your Lordships will consider that the Bishop is in his proper place and too much by no means made of his office. If once this Bill passes into law, the first effect of it will be that there will be no longer this wearisome and most uncertain process to go through. Those are the two classes of offences proposed to be dealt with: those which already vacate livings, and those which ought to vacate livings; and this the simple step which is to be taken. At present, my Lords, it is the authorities who attempt to do their duty who are punished and not the offender—the offender is pretty secure What with time, with expensiveness, with technicality, men are, as well as have been, secure in their place. There they stay, safe, to old age; and in that old age the hoary head is not only a crown of shame to that man, but it is a crown of shame to that Church which cannot help keeping him in his place. I repeat once more, what I have said emphatically in this place before, my Lords, that these cases are very few. I doubt if you could find anywhere a body of 26,000 men among whom there are so few offenders of this kind—I think that is quite certain. The cases are few, but there ought to 1719 be none. The cases are few, but every single case counteracts. I do not know what amount of labour of excellent, virtuous, and devoted pastors. And, my Lords, how unfair such administration and how unfair such a state of things upon a great profession which we ought to render attractive! What would be said, my Lords, if in any other profession—if in the Army or the Navy, superior officers had not only to defray the cost of every inquiry, but to find themselves baffled and defeated by technicalities at the close? What would be said if the Judges (many Judges are noble Lords in this House at the present moment) what would be said by all the world if the Judges had to bear all the costs of both sides whenever an attempt was made to remove a criminal from office? The rest of the Bill, my Lords, after the 1st clause is occupied simply by procedure; no principles are changed, but it is a simplification of the procedure for the trial of a man accused of moral offences who has not been in the Civil Court. The case of a man who has been in a Civil Court is already disposed of; but then there are other cases where a man has not been in the Civil Court. The improvements or simplification of procedure are these: The Diocesan Court remains, and the improvements are in three obvious points. First, the Diocesan Court is strengthened by five Assessors who are to act as a kind of jury on matters of fact—not a jury, which might make difficulties in the way of appeal—five Assessors; the Chancellor, the head of the Court, is a layman; two of his Assessors are to be Judges or Justices of the Peace, holders of judicial appointments, laymen; and three are to be clergymen. They are to decide upon matters of fact only; not to deal with matters of law. That is the first improvement. The second improvement is that there should be only one appeal; these are not cases which need more than one appeal, if any; but it is desirable, as error is always possible, that the man should have power to appeal, and, with the proper permission, one appeal is allowed, but only one. At present, as I have said, the number bf appeals is one of the worst causes of 1720 the defeat of justice. The third improvement introduced is this—and your Lordships will agree with me I am sure that it is the greatest possible improvement. I have pointed out how fatal the old precedents of punishment are and in what evil condition they have landed us, and the 5th clause of the Bill provides that henceforth the decisions are to be made in the interests of the place and people, and not to rest upon precedents of punishment. In the process of abbreviation the words "rather than on the precedents of punishment" have been dropped out, simply for the purposes of abbreviation; and I shall ask your Lordships' leave to introduce them again by way of amendment. But that is what the clause means as it stands—that regard is to be had to the interests of the people. There is another point to which I desire to call your Lordships' attention. In order that it might be thoroughly intelligible to all, even the most obviously essential steps of the processes were described in separate clauses in the Bill as it was before your Lordships' House last year; but, by very wise instructions, as it seems to me, from Her Majesty's Government, such steps as those are to be committed to the Rule Committee. All these steps that have been placed under the ordering of the Rule Committee are so placed for reasons which have commended themselves to the Legal Advisers of the Government; but I need scarcely say that, if there are any such steps which it is thought, in the wisdom of this House, should be replaced as clauses in the Bill, that can easily be done in Committee, and we shall be only very thankful for suggestions of that kind. I would remind your Lordships that when the rules are made they have to lie 40 days on the Table of both Houses, and that any Rule is capable of being annulled by an Address to Her Majesty praying that it should be so annulled. Well, my Lords, the Bill seems then, in the light in which I am able to view it,—its necessity and its provisions—so just, so reasonable, to answer so necessary an end by such simple means, that one asks oneself who are the opponents of the Bill. My Lords, there are enemies and enemies. I shall. 1721 speak with the utmost moderation, I hope, of any opposition to the Bill; but there are honourable adversaries of the Church, very decided adversaries but fair and honourable men, who, in the other House, and in other places, have declared emphatically that the Bill ought to pass. If there are any others who have different motives; if there are any who would keep abuses in the Church to forward their own views of what ought to be done with the Church; what a serious position they stand in! They cry out one moment "Souls are perishing because of neglect"; and the next moment they cry out "Let them perish until we can carry destructive measures of our own." If there be any such opponents, we can but trust that they will pause. At any rate, the very existence of such a reason puts an end to the influence that any other reasons which they might allege could produce. And I trust that no professed Churchmen will swell their number on grounds which are not much more than matters of etiquette. I do not then believe, my Lords, that any Legislature would withhold legislation upon such a subject for such a purpose,—still less these two great Houses: legislation recommended, as this is, by some of our very wisest both in Church and State: simple legislation I must call it, for the removal of vicious men from positions which have been created for one purpose and one purpose only: to be the very strongholds and vantage grounds of virtue.
Moved, "That the Bill be now read 2a."—(The Archbishop of Canterbury.)
§ LORD GRIMTHORPE
My Lords, I certainly am not one of the enemies of the Bill, though it is not the Bill which your Lordships passed last year, and I cannot say that I am at all convinced by the reasons given by the most rev. Prelate for altering that Bill, by the Government, and not by the Bishops. Perhaps your Lordships will allow me to remind you of the course that these Clergy Discipline Bills have taken during the last four years. This Bill, in a very important respect which I shall mention presently, is put back very much to the condition of the Bill of 1888; of which it is not too much to say that the late Arch- 1722 bishop of York, I mean Archbishop Thomson, destroyed it by his speech on Third Reading. Complaint was made of his not intervening earlier. He answered that complaint by saying that he had not intervened for the very good reason that he had not received the altered copy of the Bill at York until the very day when it was to be discussed here. Everybody felt, I think, that his speech on Third Reading, although neither he nor I divided the House against it, was fatal to the Bill. What happened next after that is not altogether immaterial. The most rev. Prelate has rightly mentioned Archbishop Magee as having taken an active part in this matter from the beginning. In the course of the winter of 1888, he and a Member of the Government, knowing I had begun the opposition to the Bill of 1888, asked me to draw a fresh one. I said, "It is no use my drawing a fresh Bill if you are going to insist upon its being upon what is commonly called the lines of the late Bill, if it is to contain what I and other people call clerical aggression." I was assured by both of them, and by the most rev. Prelate who has now spoken, afterwards, that they had no such wish or intention, and that, if the Bill of 1888 did do what I said, it was not by their desire. Of course I was satisfied with that, and I did draw another Bill. I took counsel with two most competent persons, namely, the gentleman who then sealed with seven seals (I mean Mr. Justice Jeune, who was Chancellor of seven dioceses) and with Archbishop Magee himself; we spent a considerable time in settling that Bill; and without repeating the compliments the most rev. Prelate has paid to Archbishop Magee, I will pay another: I was greatly struck not merely with his acuteness (because everybody knew that) but with his readiness to apprehend legal principles, and being able to discuss a Bill with two lawyers on quite equal terms. It was too late, I suppose, in the winter to proceed with it in the following year; at any rate it was not proceeded with; but I know this: Archbishop Thomson expressed the opinion that the Bill of 1888, or anything like it, would not do, and that something like the Bill which 1723 had been settled by the three persons I have mentioned was the basis to go upon. Early in the following year, as the most rev. Prelate told your Lordships last year, he convened a sort of Lambeth Congress, or Conference, or Conclave (or whatever is the proper term) consisting of the two Archbishops, the Bishop of London, my noble and learned Friend opposite, Lord Selborne, another of my noble and learned Friends, Lord Herschell, Lord Thring, Lord Cross, who had taken an active part in 1888, Mr. Justice Jeune, and myself. And this singular thing happened: although several of those persons had taken very different views in 1888, when we came to discuss the Bill in 1890 there was absolutely no division, except upon one comparatively trifling point, as the most rev. Prelate mentioned last year, and the one dissentient, Archbishop Thomson, did not think it worth while to express any further opinion about it; and, what is more, Archbishop Magee, who had succeeded him before the Bill came into Parliament in the following year, was perfectly satisfied with the Bill as it had been drawn, and vindicated it in the way the most rev. Prelate has mentioned, and indeed more strongly than he has stated, on what I and others think the most important deviation now. My Lords, the most rev. Prelate has said that he will move an Amendment to restore certain words in the section which we all thought of great value at Lambeth. I am very glad that he will, and I need not say more about it. The other point, about procedure, is a more serious thing than the most rev. Prelate seems to take it to be. To put it shortly, I may say that the Bill of this year gives very much larger powers to what is called the Rule Committee than the Bill of last year did. It enables the Rule Committee, which is to consist of the Lord Chancellor, the Lord Chief Justice, the Dean of Arches, and the three Privy Councillor Bishops, to make any rules they please relating to "procedure"—a very large word which was not in the Bill of last year. Then come some other points in that clause which I need not dwell upon, as they are not very material, except that it 1724 includes, quite unnecessarily, the appointment of a Deputy Chancellor, which was provided for completely by a very simple clause last year. Then comes a thing which I know is thought of much consequence by more learned people than I am, and that is that the Rule Committee may make rules "concerning the enforcing of sentences, whether by civil or ecclesiastical officers." It seems to me perfectly clear that under those terms together, "procedure" and "enforcing of sentences," any kind of jurisdiction may be invented. No doubt it is a good thing to save both Houses of Parliament the trouble of discussing details which are of no public consequence or interest, and which can be quite well done by a small Committee; but, surely, such matters as procedure, and enforcing of sentences by certain officers, which were the great questions in 1888, do seem a great deal too large to leave to a mere general clause, protected by nothing but the subsection which follows, that the rules are to be laid on the Table of the Houses of Parliament, and take their chance of somebody being able to get a night in this House or the other to discuss them if he has any objection to them. Moreover, the result will be that nobody can learn from the Act what it really enacts, or what influences are being used to get particular things enacted by that Secret Committee. My Lords, I am toll that, tempting as it is to remove from discussion in both Houses of Parliament details which some people may think immaterial, there is another view of it—that certain people resent very much that mode of withdrawing things from their discussion and decision which they think of great consequence; and I cannot help thinking that, in avoiding Charybdis, the Government (who, I suppose, are the promoters of this Bill) have run into a Scylla which may perhaps bring them to ruin if other things do not. That is all I halve to remark upon the minor details of the Bill; I mention them first merely to get them out of the way. Now, my Lords, I come to that which the most rev. Prelate rightly treated as a material alteration, and there I must first dissent 1725 from the view that he takes of the 1st clause. He said—and no doubt he intended that it should be so—that the present law was left alone, and that—If a clergyman is convicted of treason or felony"—I stop there—his conviction ipso facto deprives him. But, I think, if the most rev. Prelate will read carefully a little lower down, he will see that it is not so. I will read it to your Lordships, leaving out the immaterial things—If a clergyman is convicted of treason or felony … then, after the date at which conviction, order, or finding becomes conclusive, the preferment (if any) held by shall without further trial be"—what? "Shall be vacant"? Nothing of the kind—shall be declared by the Bishop to be vacant.That is a total alteration of the law of England. Whether it is the intention of anyone I cannot tell, but if it is, it is, at anyrate, very badly expressed, and certainly will in future years be demanded to involve an alteration of a great deal of the existing law. Because I can tell your Lordships, to put it shortly, that there have been at different times since the Reformation more than a dozen enactments (I do not say Acts of Parliament, because one or two of them comprise several distinct enactments), all of which, as Archbishop Magee pointed out to his Convocation—and I am surprised that the most rev. Prelate has not paid more attention to that speech—ipso facto do vacate livings for all kinds of things—some of thorn doctrinal things; and, surely, if a doctrinal or ritualistic error may vacate a living ipso facto, immorality ought to do so. I will just run through them as shortly as possible. First, the earliest Reformation Acts of Henry VIII. and Elizabeth expressly "restored" all spiritual jurisdiction to the Crown. All the four Acts of Uniformity enabled clergymen to be deprived, without the intervention of the Bishop, either by a Judge at Assizes, or by the Chancellor of the diocese; and it is expressly stated in the Act of Elizabeth that the law to be observed is not the 1726 canon law, which I shall have to mention presently, but "the Queen's ecclesiastical law"—a well-known old phrase used by the greatest lawyers of all times since the Reformation. Then comes perhaps one still more remarkable—what is called the Great Heresy Act of the 13th of Elizabeth, which expressly leaves to the Ordinary, who is the Chancellor of the diocese generally, the power to deprive, which he always had and always exercised. Besides that, the same Act, without any relation to heresy, ipso facto vacates a living if the clergyman does not read himself in in proper time,—that is, publicly declare his assent to the Prayer Book and the Articles. No Bishop intervenes there; no Court intervenes; simply if he does not do it in the proper time anybody may take note (it has been so decided) and the living is ipso facto vacant. All that will soon be demanded to be repealed if this Bill passes. Then there is the very important Act of 1870, which the first clause of this extends in the confused way I noticed just now. As the most rev. Prelate mentioned last year, the old law before 1870 was that treason and felony ipso facto forfeited a living. The word "forfeiture" was used, not "vacation;" but the result is exactly the same. Then to come to later things, take the 1st and 2nd of Victoria c. 106—a very long Act which provides for many different things. If a clergyman engages in trade or takes a farm above 100 acres he may be prosecuted in the Chancellor's Court by the Bishop—the Bishop being not the judge, but the prosecutor; and the Chancellor is to suspend him first and deprive him afterwards. I know very well that the word "Chancellor" is not put before "deprive" in the latter case; but that cannot matter the least, because, as I say, the Bishop is the prosecutor and not the judge. The same Act deals with pluralities. If a clergyman happens to have two livings or benefices of any kind, and takes another without declaring which of the former ones he vacates, he ipso facto vacates both. If he is instituted to a living without any right to hold two, the institution ipso facto vacates the former. Non-residence after a certain time, after two years' segues- 1727 tration, under the same Act ipso facto vacates the living. Surely that is a thing in which you might expect to find the Bishop having this jurisdiction, if anywhere. But no, the law has not entrusted it to him: this modern theory had not been invented then, or in fact until four years ago. Then comes the Act with which it is now the fashion I see with all parties to find fault—the Clergy Discipline Act of 1840. That was Bishop Philpott's Act; he imposed it upon the Bishops and upon Parliament after having been thoroughly beaten in the previous Session. The only precedent for Episcopal Judges was the Court of High Commission, which your Lordships know was twice abolished by Parliament. Under a clause in that Act of 1840 the Bishop may indeed sit and try, but he cannot declare without trying; and that clause was described in the Royal Commission on Ecclesiastical Courts as being thoroughly obsolete; it was found, for reasons which I need not go into, unworkable or unsuitable; and it was said, I do not know with what correctness, by some of the witnesses before that Commission, that it has only been acted on twice; except of course by consent, for anybody may consent to the Bishop trying, depriving, or anything else. Then comes in the order of date the Act of 1870, which Archbishop Magee naturally dwelt on much in his speech to his Convocation. And, my Lords, what has been the excuse made by the agitators against this Bill, who, in spite of what the most rev. Prelate has said, are mainly of one party in the Church, for the Act of 1870 being passed without objection or complaint till now? That it was not understood. I have taken the trouble to look at Hansard to see what evidence there was that it was not understood; and I find that it was fully and clearly explained on that point by perhaps the clearest explainer of an Act of Parliament that there has ever been. I mean Lord Westbury. Whatever may have been his defects, certainly want of clearness of explanation was not one of them; so that excuse is a mere ex post facto invention without the least historical foundation. And the real history is 1728 that in all the three and a half centuries since the Reformation began the personal intervention of a Bishop has never once been recognised as necessary for complete deprivation. It is just possible somebody may say that I have forgotten one declaration (I cannot call it an enactment, for it is not one) that the Bishop is to declare sentences of deprivation only in the 122nd Canon of 1603. To which I give this simple answer: that that Canon was illegal: it was first ultra vires. Convocation has no power whatever, as great authorities have said, to do anything relating to judicature; and, further than that, it is expressly illegal, because the great Act of Henry VIII., for the "Submission of the Clergy," under which any power was left to Convocation to make Canons, expressly says that if a Canon is contrary in any respect to the law of England, either present or future, it shall be void. It was also historically wrong. It is a doctrine that has been laid down in the Courts that, if a Canon is only declaratory of ancient law, it may stand as a recognition of the Queen's Ecclesiastical Law. That Canon could not be so, because it was contrary to all the previous Acts I have mentioned; and, moreover, a Canon had been made in 1571, saying exactly the contrary, though that code was never ratified by the Queen. Moreover, let me tell your Lordships that a person who is more a layman than a great many Diocesan Chancellors have been, has been held to have a complete right to deprive—I mean the Dean of Arches. So far as I can make out from the books that tell of such things, there has been no clerical Dean of Arches since 1559, but there have been many clerical Chancellors until recently. Then à fortiori, if the Dean of Arches has been decided—as he has been by the Privy Council—to have the right to deprive, that Canon, professing to take away the power of the Chancellors to deprive, was invalid and good for nothing. Let me call your Lordships' attention a little more to Archbishop Magee's great speech, as the most rev. Prelate rightly called it, which was mainly directed to this very question of deprivation. It is true, as the most rev. Prelate says, that he 1729 gave both reasons: both that it was making too much of the Bishop, and also too little. But that is not a dilemma, as the most rev. Prelate imagines, but a cumulation. Archbishop Magee said, in substance, "I resent the idea of being ordered to come into Court (and I remember that he used these words) as the executioner or crier of a Court to proclaim a judgment which I may differ from. 1 shall have read the proceedings in whatever Court has ordered the man to be deprived. The Chancellor, who may have proceeded under the rules of procedure which are to be made, or the Civil Court, may have decreed the deprivation; but I may think that the man ought not to be deprived. Am I to come in, thinking all that, and, as a mere machine, a mere crier of the Court, to declare him deprived when I think he ought not to be? That was Archbishop Magee's argument, not mine, though I had helped him with the legal history; and it seems to me a very good one. But I will carry it a little further. Supposing any Bishop says, on high spiritual grounds, "I do not choose to be ordered by the State to do this and that, which is no part of my regular spiritual duty," he would be doing a thing which would be most popular with the High Church Party, who have got up all this opposition. They are fond of saying, "Oh, we would obey the Bishops if they were free, but they are bound to act under the State law; and we decline to recognise that." It is easy enough to say that no Bishop would dare to retain a convicted clergyman. But he may think it a case for suspension and not deprivation, and then what are you to do? Are we to have Bishops mandamused and sent to prison if they will not obey? Everybody knows that will be impracticable. Then there was another point that Archbishop Magee took, which I confess had not occurred to me, though I see no answer to it. He said, "How is deprivation more of an episcopal or spiritual act than suspension? A man can be suspended by the Chancellor for five or ten years, or any time. What is the spiritual difference between that and deprivation?" Nobody in his lower House of Convocation, which voted against 1730 him, could answer that question. The fact is, my Lords, that this demand is only made as a first step towards getting more; and the sort of things that are wanted more we have the means of knowing; because a body of great importance, called the English Church Union, which seems to me to play very much the part of another very important Body at Rome.—namely, the Jesuits,—I do not mean to call Church Unionists Jesuits in the popular sense; but it is said that the Jesuits are more powerful than the Pope; and it is quite plain that the English Church Union are more powerful than the Bishops and can frighten them—yes, can frighten them into accepting things which they would never have done voluntarily, and which they never thought of a year ago, or rather which they all agreed against. Just let me tell your Lordships one or two of the things that this important Body, which, by-the-bye, I see boasts of having 25 members of the Episcopate, not all English, I suppose, but still I believe some.
§ LORD GRIMTHORPE
It is a very powerful Body nevertheless. What have they proclaimed to mankind lately?" "The power to govern the Church," they say, in a published series of 18 resolutions,resides by succession in the Episcopate acting synodically, and in other canonical manner, and in the Episcopate alone.What is the power that they say belongs to the Bishops and to them alone?This power is not limited to doctrine, but embraces positive discipline." "The Church, by its own inherent authority, has power to make laws, to administer laws, and to enforce the observance of its laws in the spiritual domain: in other words, it possesses legislative, executive, and judicial powers.Then they say—The law administered is the Canon Law.Canon Law is Roman Law, composed of the decrees of Popes, which have been declared over and over again not 1731 to be the Ecclesiastical Law of England. Then they go on to say—Procedure, legislative and judicial, is expressly provided for by the Canon Law;that is to say, not by Parliament, but by the Canon Law, which is nothing at all. Then your Lordships will be interested to know perhaps how much rights you have as the State—The State being jure divino the guardian of civil rights is by consequence bound, upon complaint made, to ascertain.What?Whether justice has been done to an incriminated clerk.That is, if the clerk is not satisfied with the decree of the Chancellor, or the Bishop it may be, he may go to the Civil Court; but if it is the other way the party on the other side may not appeal; which is flatly contrary to one of the fundamental Acts of the Reformation. Then further they say—The Statute Law touching ecclesiastical matters is 'mere temporal'(a piece of bad English that they have copied from some ecclesiastical source)and consists only of rules laid down by the State for the conduct of the civil power in dealing with such temporal rights as come in contact with spiritual duties. Any so-called Ecclesiastical Court(that is to say, the Diocesan Court which this Bill, like former Acts, purposes to authorise to do certain things)consituted by Act of Parliament only, possesses no spiritual jurisdiction, and, consequently, all its proceedings are spiritually null and void.Your Lordships will remember that everything the Ecclesiastical Court may do under this Bill will be done under the State; and therefore it is expressly denounced by this English Church Union. Then there is a paragraph dealing with the particular thing in this Bill that they have been raving at, I may say, ever since your Lordships passed the Bill last year.None but a Bishop has power to suspend, deprive, or depose a clerk"—that is to say, all the laws of England that I have been reading to you are wrong and impudent aggressions on the Spiritualty, as they call themselves. Then they say—No provision for ipso facto voidance of an office or benefice can operate without the declaratory sentence of the Bishop in the Spiritual Court.1732 That is to say, that all that multitude of enactments that I have read to you are ultra vires and good for nothing. And then finally—Any scheme for the alteration or regulation of procedure in the matter of discipline must be embodied in Canons enacted by Convocation, and such action of Convocation should precede any Parliamentary action needed to give civil sanction to the Canons.Now it is very easy, my Lords, to say that such things as those are only ridiculous, and that everybody laughs at them. What do they care about their being ridiculous if they get their way? It reminds one of the famous saying in one of Thackeray's books: "What does it matter being called obtrusive provided only you obtrude?" That is what these people want. They do not care what they are called, if they can get their own way. But, if anybody is inclined to treat the English Church Union with ridicule—which I quite agree it deserves, while it deserves something more—there is something else that can hardly be ridiculed. I have had a publication sent to me—issued and signed by himself—a declaration by one of the oldest Bishops, a man who has hitherto passed for a man of sense, but who has got frightened; he has been making a sort of manifesto or declaration to his diocese, from which I must read your Lordships a few words, to show that it is not only the English Church Union that says things of this kind, but some of the Bishops an; frightened into adopting them:Nor do I hesitate to agree with the principle that Resolutions of Convocation, expressive of approval of a Bill in Parliament on the subject of Church Discipline, cannot give real spiritual authority to such a Bill if it becomes law. If we are to adhere to real Church lines, Canons prescribing the due course of procedure must be enacted by Convocation, and Parliamentary sanction to such Canons subsequently obtained";in other words, he has exactly adopted one of the resolutions that I read to you of the English Church Union. What comes next is worth attending to for another reason; it shows that all the Bishops, at any rate, do not feel so strongly the immediate necessity for this Bill as the most rev. Prelate does—That this will involve delay, and probably some difficulty and friction, must certainly be admitted.1733 I read as far as that, and wanted to know how he was going to answer that point. This is the way—Still principles are principles"—with which I thoroughly agree, and it is a principle of the Constitution of England, and has been ever since the Reformation, that neither the Convocations nor any clerical body whatever have any power to meddle with these things. Then he ends by saying—I hope then in this matter we shall keep to the old highway.My Lords, I venture to ask this question: Is a Bishop justified in telling more ignorant people than himself—I mean his clergy, who naturally take the law from him—that such and such things are principles of the law of England, and that those things are the old highway, when he could not walk three inches along the old highway in company with any lawyer, or law book, without seeing that every word he had been saying was wrong? He might just as well say that he had been into the street and performed a miracle. One statement would be no more true and no less true than the other. Yet this is the way in which, as I said, the English Church Union frightens even Bishops into saying exactly what they want them to say. They know it will be applauded by the dominant party of the clergy, and take their chance of its veracity being questioned. My Lords, I will not trouble you with anything more of that kind, though I could. But the most rev. Prelate, and a great many other people, he says, on both sides in the Church, are impressed with this: that, inasmuch as the institution to a living must be done by the Bishop, it is at any rate logical, though it is not the law of England, that deprivation must be done by the Bishop. But does the most rev. Prelate really think it is the law of England that institution must be done by the Bishop? I do not know whether he has altered the practice in the diocese of Canterbury—I have not looked at it lately;—but I have often read in the papers that the Vicar General of Canterbury had been admitting persons to their benefices; and he is the very person who, in most dioceses, would deprive them if the Bill were carried 1734 as it was passed last year. In Canterbury alone, I think, the Chancellor is not the Vicar General. Your Lordships may think that that is peculiar to Canterbury diocese; but I can show you in five minutes that it is not. First of all I look—and, surely, any Bishop might look—at such common books as Phillimore's Ecclesiastical Law, or Stephens's; and there they will find that it is part of the duty of the Vicar General to grant institutions; they will find a decision as long ago as the reign of Charles I that an institution by the Chancellor of St. David's, even with the wrong seal, was good: no Bishop invoked; and, what is more, no complaint made, by a man who clearly wanted to get rid of the institution, that the whole proceeding was irregular because the Bishop himself had not done it. But I can tell you something more; because, by good luck, the patents of all the Chancellors and Vicars General were printed by the Ecclesiastical Courts Commission; and I find that in no less than six dioceses, and, as it happens, three in each province, Canterbury, London, Durham, Carlisle, Worcester, Chester, the patents of the Vicars General expressly recognise—I say "expressly" for a reason that I will give presently—the duty of the Vicar General to grant institutions if the Bishop does not want to do it himself. But the notion now is that the Vicar General is incompetent to do it! I say that every law book you can read says he is competent to do it; and I say further that in the diocese of Canterbury the Archbishop generally does not do it, and in the other dioceses it is entirely optional with the Bishop whether he will do it or not. In some of the other patents it is left open; that is to say, the powers and duties of the Vicar General are declared to be what they have been in the time of their predecessors; and, inasmuch as you cannot have two laws about the same ancient office, you must look and find what the old law was, and then, whatever the Bishop may do or say in a particular place, the Vicar General has the old power; he is the judicial officer; he conies under the Acts which transferred all spiritual jurisdiction to the Crown; and the Bishop has no more power to 1735 diminish his duties or his rights than he has to increase them. Therefore, although some of the patents, in evidently modern words, except the power of institution, I say that the whole of this allegation is founded upon a mistake. It is an entire mistake to suppose that institution to a living cannot be given by anybody but a Bishop. In the case of a donative (and nobody knows how many they are) the Bishop does nothing. Moreover, my Lords, I can tell you a fact that will astonish many of you-Your Lordships probably, most of you, are under the impression that a man is made a Bishop of a See by the Archbishop of the Province. He is not. I ought to know, because I have had to read the Queen's mandate at a good many consecrations. The Archbishop is not ordered to consecrate him Bishop of any See; he is ordered to consecrate him a Bishop. If he is translated from one See to another, or from no See at all to a Diocesan See in England, that is done entirely by the Crown: either by letters patent in the case of the new Bishoprics where there are no Deans and Chapters; or, if there is an election by the Dean and Chapter, it is done, as you know, under Congé d'élire; but further (which perhaps everybody does not know) if there is any mistake, or neglect, in obeying the Conyé d'éire, the Crown can do it at once by letters patent. It is only the Crown therefore that gives any episcopal jurisdiction at all. If that is the case in regard to Bishops, it is surely asking us to swallow a good deal to ask us to believe that the personal intervention of the Bishop is necessary for institution. And so ends the whole of this claim, which is notoriously and obviously put forward by the High Church party, and is totally unfounded. I alluded a little time ago to a much higher authority than myself upon the question of the rights of the two Convocations to interfere in matters of this kind, except by petitions to Parliament, like anybody else. I find that my noble and learned Friend opposite me (the Earl of Selborne) in 1874, and I think again in 1881, said (confirming Archbishop Tait):—I am not aware of any single occasion on which any Statute of the Realm has been passed 1736 on Ecclesiastical Courts or their procedure, when there has been any concurrent action of Convocation.My noble and learned Friend also used lately, in an important, though not exactly legal, body called the House of Laymen, of which he is Vice-Chairman, some very strong language about that very thing that I have been speaking of a little time ago—the English Church Union resolutions—however, I will not at this time of day stop to quote it. My noble and learned Friend is here, and he will recognise that I am correct. My Lords, not only he, but on more than one occasion Lord Cairns expressed very strong views against any recognition of Convocation, except in the one case in which I agree that they ought to be recognised—namely, the alteration of the services. When the Shortened Services Act, as it is popularly called, was passed, it was expressly referred by Her Majesty to Convocation—not to vote upon as a legislative body, but to report, as had been previously done by a Royal Commission. I do not question in the least the right of Convocation to petition either House of Parliament, or to report to Her Majesty when she desires them to do so. But I do entirely protest (to use my noble and learned Friends' language in substance) against their claiming any right to intervene in legislation. But, my Lords, I must also mention another person—not perhaps of so great legal weight as my noble and learned Friend, but of greater weight from other points of view—I mean the noble Marquess below me (the Marquess of Salisbury). In 1874, on the Public Worship Act, Convocation and the clergy generally protested against any interference by Parliament in far larger numbers than they have done at present. So they did on the Burials Bill of 1880—16,000 of them, besides the Convocations, protested, and you may see some of the. threatening letters, as I may call them, which Archbishop Tait received, in his Life, which I supposed many of us have been reading lately. What said the noble Marquess in 1874?—and this is specially noticed, I see, in Archbishop Tait's Life. He said: "The 1737 claim of Convocation "(to interfere with a Bill of that kind) "is entirely new"; and either then, or on another occasion (for I cannot quite make out from the book which it was) he said, "I protest against the competency of Parliament to deal with Clergy Discipline being denied." How could you have a stronger declaration against the interference of Convocation than those of Lord Cairns, of my noble and learned Friend opposite, and I must add, of the noble Marquess? Yet the strange thing is that, after all that, it is Her Majesty's Government who have taken upon them to alter your Lordships' decision of last year, in which they concurred, and some of them actively, and to say, practically, to the laity of England, "You shall not have a Clergy Discipline Act unless you will consent to alter the law of England, and let the Bishop be the person to declare, or refuse to declare, a living vacant after the incumbent has been convicted and sentenced." My Lords, I shall not trouble myself to move Amendments to this Bill. If Her Majesty's Government choose to go to the country with this declaration that the Protestant Church laity of England shall not get rid of bad clergymen without consenting to this first step in clerical aggression, that is their look-out, and not mine.
§ THE EARL OF SELBORNE
My Lords, my noble and learned Friend, in the speech which he has just addressed to your Lordships, has gone into topics of very wide range, of which I should be the last to deny the importance. He has said many things with which I agree, and some things with which perhaps I may not agree; but I do not think it necessary on this occasion to define either the limits of my agreement with him or the points upon which I may not agree; because it really does seem to me that nearly the whole of my noble and learned Friend's speech was not strictly relevant to the Bill which is now before your Lordships. (Hear, hear.) Certainly, if your Lordships ever had occasion to consider the pretensions advanced by the body, which has no public authority, to which my noble and learned Friend has referred, and whose recent manifesto he went 1738 into in some detail, I am afraid that with all the respect which I feel for some members of that body, I should be found very much in agreement with my noble and learned Friend as to those pretensions. (Hear, hear.) But I do not think there is anything in this Bill which gives encouragement to those pretensions, or which those who advance them could claim as originating with them—I am totally unable to find anything of that kind. The words of this Bill, upon which my noble and learned Friend has thought it necessary to make the interesting and large comments which your Lordships have heard, are simply these:—That when a temporal Court has pronounced a certain sentence in cases which the Act defines, the preferment, if any, held by the clergyman should, without further trial, be declared by the Bishop to be vacant, as from the date at which the conviction becomes conclusive. Now there are two classes of cases dealt with uno flatu by these words. One, as my noble and learned Friend has said, has been the subject of legislation already by the Treason and Felony Act of 1870, which Act declares the benefice of a clergyman convicted of treason or felony to be actually void; and, notwithstanding what has fallen from the noble and learned Lord, I must declare my agreement with the most rev. Prelate, who said that there is nothing in this Bill which, if it passes into law, will repeal a syllable which is in that Act; if this Bill should pass into law, in the exact form in which it is now before the House, the effect of the Act of 1870 will continue to be what it is now,—namely, to make the benefice ipso facto vacant upon conviction of treason or felony; and that being so, I am unable to see what there is inconsistent with that Act in saying that upon that state of things arising the Bishop shall declare the benefice to be vacant. The law says it is vacated, and what inconsistency with that law there can be in saying that the Bishop shall declare it to be vacant, I am at a loss to understand; and I can well believe that, not merely upon those somewhat imaginative grounds to which my noble and 1739 learned Friend has referred, and which may open, as it seems to me, a very unnecessary field of controversy, but independently of those grounds, and for very plain, simple, and practical reasons, it may be a proper, and in some cases a very desirable thing, that the Bishop should declare a living to be vacant which the law has already made vacant in a certain state of circumstances. In cases of treason or felony, in all probability the matter may have some notoriety; in the other class of cases with which this Act proposes for the first time to deal, namely, misdemeanours, it may, or may not be so; but anyhow, it seems desirable that the vacancy should be formally and officially declared and recorded. Whether the importance of this, from any point of view, is greater or less, if anyone thinks it, for practical or even for sentimental reasons, to be desirable that the Bishop should make a declaration in conformity with the law and with the policy of the law, what there can be in that to rouse a storm of speculative objections I cannot conceive. If it pleases anyone I am content to do it for the sake of removing a difficulty, for the sake of removing opposition, for the sake, it may be, of satisfying even scruples with which I do not agree. If that in any quarter will tend to conciliate men's minds and remove opposition to a measure, which all agree to be in substance necessary and desirable, for my part I sincerely hope that such degree of consideration, even for men's weaknesses, will not appear to Parliament to be a compromise of any principle.
THE ARCHBISHOP OF YORK
My Lords, there is at least one satisfaction to be found in the speech of the noble and learned Lord (Lord Grimthorpe)—that he has certainly found out in the Bill every little weakness that it can possible have, and that you have before you the whole indictment that can be possibly brought against it. I cannot help feeling that it was very unfortunate that the noble and learned Lord was not consulted about this particular clause, or that he had no share in framing it. Those who had that responsibility would have been able then to deal with and weigh his objections before 1740 the matter came into Parliament. But, after what has been said by the noble and learned Lord who has just spoken, I do not think that any of us who are not lawyers, at least, can attach very grave importance to the tremendous difficulties which the noble and learned Lord has found in this Bill. For in the greater part of the noble and learned Lord's speech he was not discussing the Bill at all; he was discussing the utterances of an utterly irresponsible body, and not dealing with the provisions contained in the words of the Bill itself; and, in so doing, I think he has obscured the real points at issue, and made difficulties to arise from the utterances of that society, which have not their origin in the Bill itself. My Lords, it is not my part to follow the noble and learned Lord in a discussion of all the enactments of past times which have dealt with this subject or with cognate subjects; but yet I could not help being struck by the fact, when he made a complaint against the powers given to this Rule Committee in matters of procedure, that he at least ought to have remembered that in the Act of the 38th & 39th Vict., which constituted the Supreme Court of Judicature, the very word "procedure" is used in connection with the rules which were to be drawn up by that Committee, and they were not enacted in the Act itself. Further than this, the noble and learned Lord spoke of institution as a matter belonging really to the Vicar General, and he went into very learned arguments to prove that it is so; but I should like the noble and learned Lord to tell us whether any Vicar General could institute where there was no Bishop, or where there was nobody holding the position of the Bishop during the vacancy of the See. Is not the Vicar General in every case ting for the Bishop, and is it not the Bishop who institutes? Qui facit per alium facit per se. As regards the matter of the intervention of the Bishop, with which the noble and learned Lord finds so much objection, he must remember that from our point of view, whatever it may be from the point of view from which he regards it, the preferment of a parochial clergyman consists of two 1741 parts: it involves the freehold that he possesses during the time he holds his office, but it involves also a spiritual element, which we call the cure of souls. Now, I hold that no Civil Court either does or would wish or profess to affect the spiritual cure of souls, but it claims, and rightly claims, the power to deprive of the preferment. As the noble and learned Lord has pointed out, the preferment is vacant whether the Bishop declares it or not; but the Bishop desires to have the privilege, which belongs to his office, of declaring the cure of souls to be vacant, and of relieving the clergyman of that tremendous spiritual responsibility which the Bishop committed to him on the day of his institution. As regards this institution, I do not know into what dioceses or what histories the noble and learned Lord has looked, or what acquaintance he has with the practice of the present day—
THE ARCHBISHOP OF YORK
I can only say that during the 14 years of my own episcopate I have, in every instance, excepting when I have been absolutely prevented by circumstances, instituted the clergyman myself, and have never once asked the Vicar General to do it; and I propose to carry on that practice to the end of my episcopate, unless the noble and learned Lord can convince me, which he has not yet done, that I am wrong in so doing. What then the Bishop desires, and what in the Bill we are very thankful to find he is permitted to do, is to pronounce a clergyman incapable of handling a cure of souls if the Civil Court has deprived him of his preferment, and the freehold involved in it. And is there nothing similar to this, my Lords, in other professions, if I may so speak of my own calling? Does the noble and learned Lord not know anything of disbarring? Is it not the case that for certain offences, for which a lawyer is convicted by a Civil Court, after such conviction the legal authorities proceed to disbar that lawyer or to strike him off the rolls?
THE ARCHBISHOP OF YORK
It may be mere surplusage, but it is what takes place; and, if it takes place in the profession to which the noble and learned Lord belongs, surely it is not a very unreasonable desire upon the part of a Bishop? The noble and learned Lord suggests that possibly the Bishop might refuse to do this. What would be the circumstances? The living is vacant, whether he refuses or agrees.
THE ARCHBISHOP OF YORK
I will not argue that point of law with the noble and learned Lord; I think that other lawyers of authority differ from him on that point; but in any case, supposing the Bishop refused, all that he could do would be to deprive himself of one of the privileges and prerogatives of his office; for it would be impossible for him to retain in his living a clergy man who had been found guilty of any of these crimes, and the guilty would become actually vacant, although the words do not remain as in the Bill of last year, "ipso facto vacated" by the sentence of the Court." My Lords, I would say one word in conclusion—not that there is much to say after the exhaustive speech of my most rev. Brother,—but on behalf of the northern province I do most earnestly implore your Lordships to pass this Bill, and to pass it as it now stands before you. I do not mean without some modifications of detail—I am sure my most rev. Brother and myself are quite willing to accept such modifications if they are likely to make the Bill more practicable; for what we want is not an ideal Bill,—we want something now, and we do not get ideals just at the moment when we want them; we want something that will work and help us to get rid of these few, these very few unworthy clergymen who are found in our body, without being led into that interminable delay and incalculable expense which has attended the operations of the law in such things in the days that are past.
§ LORD HERSCHELL
My Lords, I desire, in saying a few words in support of this Bill, to express my conviction that this measure rests upon a broad basis, and appeals widely for support in 1743 that it deals with a matter in which not alone the Church of England is interested—because that ministers of religion should be enabled, under the existing law, to remain in charge of a parish or a living when they have been guilty of notorious misconduct and ill living, is an injury to religion itself, no matter what the sect or denomination. (Hear, hear.) Supposing that you have a man of this sort living in a parish, in charge of the parish, as representing the Church of England there, can anybody doubt that his very existence there will be a stumbling block in the way of every minister of religion in the place? The Nonconformist minister, who is endeavouring to bring men to a belief in the truths of religion, or to enforce upon them the morality of religion, finds the existence of such a person living in the midst of those whom he is addressing a serious hindrance to his work. Therefore, it seems to me that it is a mischievous and evil thing, far beyond the bounds of the Church itself, that such a state of things should exist, and that there should be no speedy and simple means of removing it. And, my Lords, I would go further, and I would say that, apart even from questions of religion, it is a mischievous thing as regards the interests of morality itself, because a minister of religion is teaching religious truths intimately connected and associated with moral obligations; and can any one suppose, for a moment, that, even as regards mere moral influence, that moral influence will not be diminished, and the young very likely be freed from restraints which otherwise they might be led to regard, on account of a scandal of this sort existing in a particular part of the country? Therefore, my Lords, it appears to me that there are grounds, quite apart from any grounds of the interest of the Church or the advantage to the Episcopate, in the reduction of the expenses of prosecutions, upon which support may be claimed for this Bill. No doubt, my Lords, there are those who are opposed to a measure of this description, because they are opposed to the existence of a Church establishment, and think that there should be a separation between the Church and the State; but I would 1744 venture to suggest, even to them, that is worthy of consideration whether it is not paying too high a price for any advantage that might be gained to the cause which they have at heart, to put an obstacle in the way of removing a scandal of this description, which is injurious to religion and morality. I am quite certain that if the time comes for the Church to be disestablished, its disestablishment will not rest upon a certain number of scandals existing in different parts of the country, arising from an immoral or a criminal clergyman; if the day should come, it will rest upon a much broader basis, and much wider considerations than these; and they themselves would be the first to rest it, and they do rest it upon such broad considerations. Therefore I trust that there may be a disposition to regard this measure upon its merits, as one in which all who have the interests of religion and morality at heart may find a common ground for the purpose of removing an evil which is injurious and mischievous to all. Now, my Lords, with regard to the criticisms of my noble and learned Friend opposite, I should like to say just a word or two. I am certainly not deeply impressed with the views which have found expression in the document to which he has alluded; but, on the other hand, I must frankly confess that I am not deeply convinced either by the arguments which my noble and learned Friend has produced as to the evil which would be done by yielding, if there be a yielding, to the extent contained in this Bill. I look at the thing from a practical point of view. I cannot see myself that there is any danger in giving, if it be an additional power, such additional power to the Bishop as is given by this Bill. What is it? It is only to say that, under certain circumstances, in the case of particular convictions, the Bishop shall declare the living vacant. Well, my Lords, I do not think that a duty of that sort, arising under the provision of an Act of the Legislature, is a recognition at all, certainly not of any serious kind, of any such principles as my noble and learned Friend suggested are involved in it. But, my Lords, I think there may be really a distinct advantage in requiring this 1745 declaration, and for this reason: This Bill extends the findings of temporal Courts, which are in effect to render the living vacant, because they are to lead to the Bishop declaring it so. At present that exists only in the case of treason and felony. The Bill extends it to certain serious misdemeanours. But the more you extend provisions of that description, the more possible it is that the conviction may not be a matter of notoriety to everybody; and there does seem to be a distinct advantage in requiring of some one a public declaration which shall make it, in each case, a matter of notoriety to those concerned and interested—amongst others to the patrons of livings—that the living has become vacant; because, of course, the living becomes vacant from a particular time; and If it becomes so merely by reason of the conviction, the right of the patron would accrue at that time, and his right might lapse, possibly, without the matter being brought to his notice. Therefore I think there is an advantage in the provision that some official should make a public declaration of the avoidance of the preferment; and I cannot see any more appropriate person than the Bishop of the diocese. Therefore there seems to me a practical advantage in it; and I do not feel myself that, whatever view one may take upon the question, that has been a good deal discussed, there is any admission of which anyone need be afraid. I would only suggest to the most rev. Prelate whether it might not be desirable to provide that, in case the Bishop failed, within a certain time to be limited (it must be a short time) to do it, it should be done by the Archbishop or the Vicar General—for this reason: that it is certainly a thing which should be speedily done. You might have a case, where the Bishop was ill, and not in a condition at the time to make the declaration; and, therefore, I think there is a reason for making a provision of that sort, which would probably be an additional safeguard gratifying to the noble and learned Lord opposite, and would, I think, be an improvement upon the Measure as it stands. And, my Lords, I would only say this, with regard to the apprehension that the 1746 Bishops might refuse, and be liable to mandamus: that Bishops are liable to mandamus now for many acts that they have to do. In fact, cases of mandamus to a Bishop are within one's own experience. If a Bishop refuses to institute, when he is bound to, he may be made the subject of, and is liable to mandamus; and, as my noble and learned Friend will know, there have been instances of mandamus to a Bishop for refusal to do an act which, by the law, he is bound to do.
§ LORD GRIMTHORPE
If my noble and learned Friend appeals to me, he probably alludes to the Gorham case—
§ LORD HERSCHELL
I was thinking of Marshall v The Bishop of Exeter at the moment; that was a case of mandamus.
§ LORD HERSCHELL
Still with a provision of this sort I am not afraid of the Bishop not doing it. I do not think we shall be driven to a mandamus; but, after all, if a mandamus has to be applied for, and is applied for, when a man has been convicted of a grave offence, and the statute has said that the Bishop should declare the living vacant, if the Bishop refuses to declare it vacant and goes to the extent of defying the law, I do not think there is any party who will have any great sympathy with him, or any great regret if he is made to obey the law. My Lords, I will not trouble you with any further observations upon the details of the Bill; but I desired to state the grounds on which I give it my hearty support.
Motion agreed to; Bill read 2a (according to Order), and committed to a Committee of the whole House on Thursday next.