House Of Lords
Monday, 19th February, 1872.
MINUTES.]— Sat First in Parliament—The Lord Kenry (Earl of Dunraven and Mount Earl), after the death of his father.
SELECT COMMITTEE—Office of the Clerk of the Parliaments and Office of the Gentleman Usher of the Black Rod, appointed and nominated; Private Bills, appointed and nominated; Opposed Private Bills, appointed and nominated.
PUBLIC BILLS— Second Reading—Ecclesiastical Courts and Registries (15); Ecclesiastical Procedure * (16), negatived.
Judicial Committee Of The Privy Council—Appointment Of Sir Robert Collier—Explanation—Mr Walpole And Mr Beales
THE LORD CHANCELLOR
My Lords, I beg leave to mention that I have received a letter from Mr. Walpole, which he has written to me in consequence of a passage which occurred in a speech I addressed to your Lordships on Thursday night, when the Motion relative to Sir Robert Collier was under discussion. Mr. Walpole is desirous that I should correct a statement which appears in the report published in The Times of the speech I then delivered. I believe that the report in The Times is a substantially accurate one of what I said. Mr. Walpole observes—
I would mention also that Mr. Beales states in a letter that the moment he found that the Park gates were closed he withdrew the meeting to Trafalgar Square, and that he did not hear until the next morning of the outrages that had taken place."With reference to Mr. Beales's appointment to a County Court Judgeahip, you are reported to have said—'Mr. Beales had been called upon by Mr. Walpole to assist him in removing difficulties which had arisen under steps he had advised.' But the real facts of the case are these. One night (I think it was the Tuesday night) the friends of Mr. Beales sent in a message to me at the House of Commons requesting to see me on the subject of the Hyde Park riots, and they asked me to give to Mr. Beales and them an interview at the Home Office, which I agreed to do on the following day. Neither then nor afterwards, however, did 'I call on Mr. Beales to remove any difficulties,' &c., but what I did say, on Mr. Beales's suggestion, was this, that no demonstration of the police should be made if he would do his best to induce his followers to withdraw from the Park."
Judicial Committee Of The Privy Council—Appointment Of Sir Robert Collier
THE DUKE OF ARGYLL
My Lords, I rise also to say a few words by way of personal explanation. A communication has been made to me, through mutual friends, that some expressions which fell from me on Thursday night in the debate on the Appointment of Sir Robert Collier have been felt by the Lord Chief Justice as personally offensive to him- self. Now, my Lords, I claim for every Member of the Government the fullest right to discuss with freedom both the writing and publication of the Lord Chief Justice's letter to the Prime Minister, and this right, I have reason to believe, the Lord Chief Justice does not at all contest. But under the circumstances to which I have now referred, although there are several words in that letter which are, perhaps, open to the same objection on our part, I can have no hesitation in expressing my regret for any words which may have justly seemed personally offensive to the Lord Chief Justice.
THE EARL OF AIRLIE
, in calling attention to the question of Railway Amalgamation, and to inquire, Whether Her Majesty's Government intend to appoint a Royal Commission or to move for a Committee for the purpose of investigating the question of Railway Amalgamation; or whether they intend to propose further legislation on this subject during the present Session? said, he thought he need hardly remind their Lordships that in one shape or other the question of railway management, so far as it affected the interests of the public, had engaged the attention of Parliament on many different occasions since the year 1846. In that year a Committee of the House of Commons considered the question of amalgamation, and recommended that—
In 1853, another Committee of the Commons—that known as Mr. Cardwell's Committee—was appointed. On it were some of the most eminent men at that time in the other House of Parliament. Among the recommendations made by that Committee, was the following:—"In all instances in which railway companies propose to take powers of amalgamation the rates and tolls of the amalgamated companies should be subject to revision."
The recommendation so made by Mr. Cardwell's Committee had been allowed to remain a dead letter; for in the Report of the Royal Commission on Railways, issued in 1866, it was observed—"That working agreements between different companies, for the regulation of traffic and the division of profits, should be sanctioned under proper conditions, and for limited periods, but that amalgamation of companies should not be sanctioned, except in minor or special cases, when it clearly appears to the Standing Committee that the true and only object of such amalgamation is improved economy of management, and consequent advantage to the public."
Again, from a recent Parliamentary Return it appeared that between 1860 and 1872, 187 amalgamation Bills had been passed, which have added 5,316 miles to the system of the amalgamated railways. This was about a third of the entire railway mileage of the kingdom. A memorandum added to the Return stated that on the 31st of December, 1870, out of a total mileage in the United Kingdom of 15,537 miles, owned by 281 companies, 29 companies owned 13,639 miles. Thus, 29 companies out of 281 held more than four-fifths of the entire mileage of the United Kingdom. There was now before Parliament, besides Railway Bills of the usual character, a Bill for the amalgamation of two great railway companies. The aggregate capital of the two companies was £88,000,000, and the aggregate mileage 2,000 miles. Therefore, if this Bill were passed, a gigantic monopoly, practically controlling the traffic of the northern part of this kingdom, would be placed in the hands of a single company. This precedent, if successful, would probably be succeeded by others. Several other amalgamations, indeed, which had been proposed, had not, for some reason or other, come before Parliament this Session; but there was no reason to think that they had been altogether abandoned. He submitted to their Lordships, therefore, that the time had come when Parliament ought to consider on what terms amalgamations should be allowed to be made; and if amalgamations were to be allowed, the interests of the public ought to be protected. The first question which would arise, then, was—"Ought amalgamation to be permitted?" And ii that were answered in the affirmative, there followed the important inquiry—" What conditions ought you to impose in the interests of the public?" No doubt, if proper conditions were imposed, amalgamation might, in many cases, be attended with great advantage to the public as well as to the companies—but they might also be attended by great disadvantages. No doubt amalgamation, in fitting cases, would lead to great economy as regarded the staff; and it might afford the public facilities which they did not now in all instances enjoy—of passing from one place to another without being subjected to those inconveniences which sometimes competing companies wilfully permitted to interpose in the way of passengers coming from another company; but, at the same time, it should be remembered that amalgamation was the destruction of competition, and so of the advantages which competition gained to the public. He could not think that the Select Committees of the Houses of Parliament afforded an efficient tribunal for deciding as to the merits of proposed amalgamations and as to the conditions that ought to be imposed. He wished to speak with every possible respect of the Committees of their Lordships' House. Ever since he had the honour to become a Member of that House he had been in the habit of serving on them, and he willingly bore his humble testimony to the diligence and care with which their Lordships applied themselves to the work which came before the Select Committees; but it was impossible for a Select Committee to do what was required to secure the interests of the public in respect to travelling—they were fettered by Rules and Standing Orders—they were obliged to decide on ex parte statements; and, though a Committee might impose conditions, it had no power to make a company adhere to them. What a company undertook, and bound itself to do under an Act obtained this year, it might seek, and seek successfully, to be relieved from by a Bill of next year or the year after. It was easy to cite a case in point. For instance, not many years ago, a railway company obtained certain additional powers on certain conditions, one of which was that it was to reduce its rates. Two years after, it came before Parliament to get another Act, to authorize it to raise those rates again. He referred to these points for the purpose of showing that under the present system there was no security for the public. Railway companies had great powers. Two companies might be opposed for a time, but they would not go on opposing each other always. They had large staffs, able directors, and enjoyed the advantage possessed by all corporations—that they had no conscience and never died. In some quarters a strong opinion had been expressed in favour of the purchase of the railways by the State. A Commission on Railways in this country had pronounced against that scheme. A Commission on Irish Railways had pronounced in favour of it, but, perhaps, on Irish grounds. But it was a subject on which there was a considerable difference of opinion, even among commercial authorities. One of the hon. Members for Liverpool, a Gentleman of great eminence in the commercial world, had made a speech setting forth its advantages; and the other hon. Member for Liverpool, who was also a man of great commercial eminence, had been just as strong on the other side of the question. For himself, he would not, on the present occasion, venture to give a positive opinion on a subject regarding which such opposite views were taken by men whose opinions were entitled to consideration; but he would say that the financial aspects of the question ought to be carefully weighed before the State embarked in such an undertaking. It was clear that if one railway were purchased, all must be. But there were lines which did not pay the interest on their debentures; and he should like to know how a value could be placed upon lines which were worth less than nothing? There were other lines which were at present earning a good dividend, made up to a great extent of mineral traffic; but some of the mineral districts through which they passed had been worked to the full extent of their capacity, and were beginning to show signs of exhaustion. If the Government went blindfold into the purchase of such lines, without a careful preliminary survey of the districts through which they passed, they might find themselves in the position in which it was said some of the joint stock companies were which had been formed for the purpose of acquiring and working mineral properties, and which it was said had discovered that the late owners had had the cream of the estate, that the future profits were very doubtful, but that there was one part of the bargain about which there could be no mistake, and that was that they had acquired a damnosa hæreditas mortgages and obligation. Another objec- tion which had been raised to the acquisition of the railways of the country by the Government was the immense amount of patronage which the ownership of the railways would put into the hands of the Government. It might be well in all cases of amalgamation that there should be inserted in the Bill a provision, giving the Government an optional power of purchase—optional as regarded the State, but compulsory as regarded the company. It might, perhaps, also be worth consideration, whether companies which were likely to obtain a large pecuniary advantage from amalgamation should not pay a certain sum of money into the Exchequer. If some arrangement of this kind could be made, coupled with a considerable reduction of fares, the benefits of amalgamation would be shared between the railway companies, the persons who used the lines, and the general body of taxpayers, without the State having to run the risk inseparable from so large a financial operation as the purchase of the railways. It was impossible to provide for the interests of the travelling public by any general Act of Parliament. Unless control in this matter were given to some Department of the Government it was not easy to see how the desired object could be secured. But it might be said—"Are you going to take the management of the railways out of the hands of the railway companies; and to say how many trains a-day there are to be, and at what hours they are to run? It is impossible to do any such thing." He did not suggest that the Government should undertake any such responsibility, but simply that they should exert such a general control and supervision over the railway companies—that in the event of its being clearly shown that any company had neglected to give proper accommodation, or failed in other respects to perform their duty to the public, the Government might have the power to compel the company to do its duty, without relieving it of the responsibility which properly belonged to it, by pointing out how it was to be done. He would remind those who objected to State interference in the management of railways of the regulations imposed by the Board of Trade on the shipping interest. Certificates were granted to officers in the merchant service, and, after an inquiry into the circumstances of any accident, the Court which, held the inquiry withdrew the certificate of the captain or other officer if it thought fit to do so. Again, every seagoing vessel was inspected by the officers of the Board of Trade, and that Board imposed regulations as to the number of passengers which a vessel might carry. He thought it might be well to give a Government Board power to dictate certain conditions as to the terms on which amalgamation would be allowed. Perhaps some persons might be disposed to think that it would be going too far to intrust any Board with the power of imposing such stringent powers; but something very like this was recommended by Mr. Cardwell's Committee. After pointing out the difficulties which would attend an interference on the part of the Executive Government with the working arrangements of a railway, the Report of that Committee proceeded—"That, notwithstanding the recommendation of the Committee against amalgamation, the three following years saw the amalgamation of the North Eastern lines of railway, the Lancashire and Yorkshire, and the Great Western with the Shrewsbury lines."
They went on to recommend that—"Your Committee, however, think that it would be possible in certain cases, when the general convenience of a district was in question, to raise the dispute between the public and the companies in such a shape as that the interposition of the Railway Department might be effectually exercised. With the view of preventing this power from being rendered nugatory by the introduction of small objections of a practical kind, ingeniously created for the purpose of embarrassing the decision, it would be necessary that it should be conveyed in the widest terms."
He thought the suggestion in the Report was worthy of consideration. At all events, things ought not to be allowed to go on in their present state. We ought to learn something from what had occurred elsewhere. The power of the railway interest had become so great in America, that the railway companies returned Members not only to the local Legislatures, but to the central body of Representatives. He spoke in no hostility to the railway companies of this country; he had spoken in what he believed to be the interest of the public, and he hoped the few observations he he had made would elicit a satisfactory statement from Her Majesty's Government."The fact of wrong having been done by the company should first be substantiated before a public tribunal, and the aid of the Executive Government be afforded to that tribunal in framing its decisions with a view to their practical effect."
said, he would not go into all the topics discussed by his noble Friend who had just addressed their Lordships (the Earl of Airlie). In the early days of railroad legislation, Parliament determined on giving full scope to competition, as affording the best security that the interests of the public should be duly cared for; and a Committee of the House of Commons has since reported generally in favour of that system. Nevertheless, the amalgamation of various railroads had been carried to a considerable extent, and it was doubted by many persons whether, without amalgamation, the railway companies might not, by arrangement amongst themselves, keep in their own hands the complete control of all the accommodation conceded to the public. There was, however, a considerable difference in the character of different schemes of amalgamation. He believed that, as regarded the smaller railways, amalgamation had been found to be attended with advantages both in the economy and the efficiency of management; but amalgamations on a large scale, such as those proposed in the Bills before the House, and alluded to by his noble Friend, were a very different thing. For instance, three different companies had independent lines of railway from London to Leeds. In such cases the public might fairly think that competition gave them whatever advantages could be given by railroads, and they would have an interest in seeing that the effect of amalgamation was not to put them in a worse position than they were when the companies were competing. As to the cases more prominently before the public at that moment, they differed in some respects—one was little more than extending to Glasgow a line from London, which already went to Carlisle; but that of the London and North-Western and the Lancashire and Yorkshire Companies would place all the communications of Lancashire in the hands of one great company. He concurred with his noble Friend that such amalgamation should not be allowed without considering whether something should not be done to protect the interests of the public. Such a gigantic monopoly must be viewed with caution. What the Government proposed was, that there should be a Joint Committee of the two Houses—if the two Houses approved the proposal—to consider whether amalgamations on such a large scale should be sanctioned, and, if so, what securities should be taken for the inte- rests of the public. A deputation which had waited on his right hon. Friend the President of the Board of Trade a few days before, stated its opinions that the appointment of such a Committee would be very desirable, and added that such a Committee would have greater weight than would be possessed by two separate Committees—one of each House. If the House approved of his course, his noble Friend behind him (Earl Cowper) would move for the appointment of their Lordships' portion of the Joint Committee. From the labours of such a Committee the Government expected material assistance.
THE MARQUESS OF SALISBURY
concurred in the course proposed by the noble Viscount as that most for the interest of the railway companies, and most for the interest of the public also. He would not go into the general question of amalgamation which had been raised by the noble Earl (the Earl of Airlie), because to do so might be to prejudge the question; but, he thought, that some expressions used by the noble Earl gave too large an importance to the question. The noble Earl had spoken of a "gigantic monopoly" and "competition." Now, he must observe that the word "competition" was sometimes applied in a manner which very much misled the public. Where the field was a very wide one, the word was applicable in its ordinary sense; but when the "competition" was between only two or three persons, or two or three companies, there was great danger—to use the words of Lord Dalhousie—that "competition" would become "combination." After a time, when they found there were no other companies to interfere with them, there was a practical agreement to share the business between them. They adopted the same times of starting, the same times of transit, and the same scale of fares, and the only result was that in which, perhaps, those who entertained the same feelings as the noble Earl might rejoice—a loss to each company. But the public might be sure that no loss was inflicted on a railway company that the company did not manage to make the public pay the half of. His noble Friend the Chairman of Committees, who had a lively idea of railway companies, and looked upon railway directors as locusts, thought that they contrived to make the public pay even more than the half of any loss they had to suffer. He approved the proposal for a Joint Committee; but he hoped the Committee would not be regarded in the light in which so many Committees and Commissions had been viewed—as a contrivance for shelving the question, and for relieving the Government of all responsibility. The charges against railway companies were serious, and constantly repeated; but the companies had also suffered deeply from the oscillations of Parliamentary policy; on their side they were prepared to bring a heavy bill of indictment against successive Governments and the Legislature for the manner in which they had been treated—for the uncertain manner in which they had been dealt with. One injustice of which they complained was this—that Parliament had never adopted and maintained one principle, either that of competition or that of monopoly, but had floated between the two. Sometimes it used the language of competition, other times it employed that of monopoly. The question, which principle was to prevail in the particular case, had always had to be fought within the walls of the Committee-room. The consequence had been the misfortune of non-paying branch lines, which all railway companies had felt, and which had brought ruin on some of them. There was a line from, say, centre A to centre B. The inhabitants of the country through which this line ran wanted a branch line, and could not get it. They went to a solicitor and engineer, and some other gentlemen willing to promote companies, and a new line was projected to run through the same centres. Rather than see this, the old company consented to make the branch line, though knowing it would not pay. This was the cause of political lines fighting lines which had never paid interest, but which had been imposed on railway companies as blackmail to prevent lines from being run through their centres. While in other countries some lines had paid a fair commercial interest, and others as much as 12 and 13 per cent. taken as a whole the capital invested in the railways of this country had not paid the ordinary interest of 5 per cent. The question of amalgamation had forced itself to the front, and must be decided. He only hoped, that when it was decided it would be in no vague terms. He hoped it would be in such, decided terms as would give the shareholders in railway companies, and the public, a knowledge of what they had to expect, and not add another to the many evils that had already resulted from indecision in the character of railway legislation.
THE MARQUESS OF CLANRICARDE
fully concurred with the noble Marquess who had just spoken, as to the evils which had resulted from the undecided character of our legislation in respect of railways. Owing to the monstrous system adopted in 1843–44 by bold and clever adventurers, and the absence of any efficient laws, a loss had been involved of upwards of £200,000,000. It was a mistake to say that the loss had fallen on the shareholders, for it had fallen on the public, and whole families had been ruined, and the general community had suffered to a degree which was shocking to conceive. Its results had been felt even more severely in Ireland than in this country. He hoped the inquiry would be a general one, and that it would lead to still more searching investigations. What was wanted was some modification of the laws affecting railways—a question which successive Governments had been too timid to face. These laws should also be codified, so as secure uniformity, which would save a great deal of money which was now being thrown away.
THE DUKE OF RICHMOND
cordially concurred in the recommendation of his noble Friend opposite (Viscount Halifax) regarding the appointment of a Joint Committee; but, at the same time, he would venture to suggest that the terms of reference to such a tribunal should be very explicit—because he fancied in a question of this kind there not only should be a decided explanation of the views of the Committee, but also that they should be obtained as rapidly as possible. In that view it would be very unwise and inconvenient to travel over such a wide field as that foreshadowed by his noble Friend (the Earl of Airlie), including, as it did, the purchase and management of the railways by the Government. That was a gigantic scheme, and one which he did not think would come fairly within the province of the Committee. The proper course would be to have terms defined, so that the Committee should not be allowed to travel over such an extensive field of inquiry, but bring their labours on the point referred to them to a speedy solution.
said, he differed from all the noble Lords who had spoken on the subject. He thought the proposed inquiry not only unnecessary, bnt absolutely useless. Parliament had inquired over and over again, and from further inquiry nothing would result but delay. The recommendations that would come out of such an inquiry would have no effect in removing the difficulties spoken of. The thing which was really wanted—even in the interests of railway companies themselves—as much as in that of the public—was an efficient Board of Control. He did not think such Board ought to be a Department of the Government; but should be empowered to supervise matters arising out of traffic and other details on which it would be preposterous to legislate. What he would suggest was, that every Session each House of Parliament should appoint a Controller—though the appointment would be renewed each Session, the same persons would probably be appointed year after year. The two Controllers thus appointed by the Legislature would constitute a Board unconnected with the Government, and he believed they would inspire more confidence on the part of the companies than any Board of Control connected with the Government could succeed in doing. He was induced to think so from observing that the system under which the Chairman of Committees was appointed in their Lordships' House, and the Chairman of Ways and Means was appointed in the Commons, seemed to work well. He believed that the decisions of a Board of Control appointed by the two Houses of Parliament would be generally satisfactory to railway companies. He would not allow the Board to regulate the working of lines in the first instance, but he would give it the power of interposing on complaint being made by the public of the manner in which the traffic was worked. The orders of the Board would be reported to Parliament, and the Controllers would, in their respective Houses, give such explanations as might be required, answering as independent Members, and not claiming official support. He thought that such a Board would do the companies a service by scuring them more traffic. It would prevent such an occurrence as a passenger seeing the train by which he wished to continue his journey leave the station at the moment when the one which was supposed to meet it entered, and being obliged to wait there for perhaps three or four hours. He thought that the provision of Mr. Card well's Act for having such questions decided by the Court of Common Pleas, had proved inoperative from the delay and cost attending any proceeding in a Court of Law. No conditions made by Act of Parliament at the time of an amalgamation could be effectual for the future protection of the public, because new lines of traffic might come into existence after amalgamation, and improper arrangements persevered in without remedy, if there was no authority to act as circumstances arose. It was expected that out of this inquiry there was to come knowledge; but in most cases all it would be productive of was local information. He was not unfavourable to amalgamations, and had no desire to speak against railway companies—he wished they were all prosperous. He believed most of them were managed in such a manner as left very little ground for complaint. For instance, he believed very little fault could be found with the London and North Western, and that a Board of Control would seldom find a reason for interfering in its management; but, still, he held that a Department to act in the manner he had indicated was essential, and that one constituted in the way he had described would be the most likely to have the confidence of the railway companies.
hoped that as speedily as possible a decision would be arrived at with regard to this question. There were many noble Lords in the House who had taken a deep interest in the matter, and were perfectly cognizant of all its details, and it would be a great mistake to miss an opportunity for obtaining their assistance and co-operation. He objected to the officers suggested by the noble Lord the Chairman of Committees—the experiment was too novel and untried to be adopted without careful consideration.
Ecclesiastical Courts And Registries Bill—(No 15)
( The Earl of Shaftesbury.)
Order of the Day for the Second Reading read.
THE EARL OF SHAFTESBURY,
on rising to move the second reading of the first of the two Bills he had introduced—the Ecclesiastical Courts and Registries Bill and the Ecclesiastical Procedure Bill—said, the question involved in the measures on the Paper had occupied public attention for a great many years. In 1856 the subject was taken up by the Government of that day, and Lord Cranworth introduced a measure which was approved by all the English Prelates, and supported by all the occupants of the Irish Episcopal Bench, but which was thrown out by Parliament. In 1869, seeing that no one else would take up this very laborious but uninteresting work, he himself introduced a Bill, which was read a second time and referred to a Select Committee; and a counter Bill having been introduced in the same Session by the Archbishop of Canterbury, was referred to the same Committee. The Select Committee reported the Bill with Amendments; but owing to the lateness of the Session there was no time to pass the Bill into an Act, and he (the Earl of Shaftesbury) withdrew it. In 1870, he (the Earl of Shaftesbury) introduced another Bill, which was to all intents and purposes the measure that came down from the Select Committee in the previous year; but it was found impossible to proceed with it, because large objections were taken to his financial statement as to the sources of income whence the various establishments were to be maintained. It was necessary, therefore, to move for Returns on the subject; but the Session had almost terminated before those Returns were ready, and therefore the question again dropped for the time. Again, in 1871, a like Bill was introduced; but owing to several reasons, and among others the absence of the Archbishop of Canterbury, through ill-health, the measure was so long delayed in their Lordships' House that if it had been sent to the House of Commons the accumulation of business was so great that, it could not have been dealt with, and he again withdrew it. It must be remembered that on each occasion the Bills were read a second time, and he now asked the House to assent to a measure which was with very trifling exceptions identical with the proposal that had so often received the approval of their Lordships. Last year he received several communications both public and private, suggesting various Amendments in the Bill, which suggestions he had adopted, with very few exceptions. As a few instances, he might mention that he received and adopted some valuable suggestions from the Archbishop of Canterbury. The Bishop of London suggested that the clause should be restored to the Bill, whereby it was proposed to submit issues on simple matters of fact to juries, and that suggestion also he at once adopted. The Bishop of Gloucester and Bristol made some suggestions with respect to the reservation of the rights and privileges of Chancellors; which also, together with an Amendment of Lord Romilly, had been embodied in the Bill which he now asked the House to read a second time. One difference, however, there was between the Bill of 1871 and that which was now before the House. To meet the wishes of the noble Marquess near him (the Marquess of Salisbury), and the right rev. Prelate opposite (the Bishop of Peterborough), he had divided the Bill into two parts. In the first Bill he proposed to deal with the registries and all that related to the structure of the Courts; and in the second Bill he proposed to fix and limit the mode of procedure in the Courts. The second Bill was, in point of fact, nothing more nor less than the 32nd clause of the Bill which was referred to a Select Committee in the form in which it came back from the Committee. The following was the text of the measure:—
The insertion of the clause which he had just read, and which, as he had said, formed the text of the second Bill upon the Paper, was moved by Lord Cairns in the Select Committee which inquired as to the Bill of 1869, and he was sorry not to see the noble and learned Lord in his place to support his own proposal on the present occasion. The Lord Chancellor was in favour of the laity having access to the Courts without the intervention of the Bishops in cases of excessive ritual; but by the second of his two Bills he now proposed to provide that before proceedings were taken, the Bishop should have it in his power to pronounce whether, in his opinion there was sufficient primâ facie ground for proceeding—such decision, if adverse to the views of those desiring to take proceedings, to be subject to appeal to the Archbishop. He had been charged in a variety of ways with Bills, the purport of which was to restrict the power of the Prelates; but he maintained that the object of these Bills was to restrict the undoubted rights of the laity; and that the Bill, which said that three members of a diocese should be enabled, in Ritualistic and ceremonial matters, to appear without the authority of the Bishop, and in minor matters with the consent of the Bishop, was a great restriction indeed upon existing rights and privileges. It was the general belief that by the Church Discipline Act, the rights of the laity to promote the Judge's office were entirely taken away; he never believed it was so, and he did not believe it now; the issue had not been tried—indeed, it had never been raised, and he thought their Lordships would hear it was still a moot point; but admitting, for the sake of argument, that the general belief was correct, and that those rights were affected, they were affected only to the extent of the power of the layman to go into the Bishop's Court without the consent of the Bishop. But let it be recollected, apart from the Bishop's Court, there were the Criminal and Common Law Courts of the realm, and these were now open, without let or hindrance, to every layman in the country. A member of the Church of England or a Nonconformist might go before these Courts and indict any clergyman, any Bishop, or even an Archbishop, for breaches of the rubrics, because the rubrics were part of the law of the realm. He was always convinced that the laity had never lost their right of enforcing the law of the realm, and of promoting the Judge's office in the Criminal and the Common Law Courts, and that conviction was sustained by counsel upon a case which was stated, on his behalf, for the joint opinion of Mr. James Stephens, Q. C., Mr. H. P. Pullen, Mr. T. D. Archibald, and Dr. Tristram. The case was as follows:—"Suits against clerks for offences against the laws ecclesiastical shall be commenced either by the Bishop of his own motion, or by three members of the Church being inhabitant householders of the diocese; provided always that in the case of a charge of teaching or maintaining unsound doctrine a written statement of the particulars on which such charge is founded shall, in the first place, be laid before the Bishop, who may, if he shall think that such statement does not contain sufficient primâ facie ground for proceeding, refuse his assent to the institution of the suit, subject, however, to an appeal against such refusal to the Archbishop; and the appellant may appear before the Archbishop either in person or by counsel on his behalf in support of the appeal."
The opinion given upon the case was as follows:—"In the administration of the sacraments and other rites and ceremonies of the Church, many clergymen are wilfully acting in direct opposition to the provisions contained in the Book of Common Prayer. Ceremonies are used in the performance of Divine service which have been declared by the Queen in Council, in 'Martin v. Mackonochie' and 'Hebbert v. Purchas,' to be illegal under the Acts of Uniformity of Elizabeth (1 Eliz., c. 2), and Charles II. (13 & 14 Car. II., c. 4). The Prelates refuse to interfere ex mero motu, notwithstanding the vow they made at their consecration 'to correct and punish' such as were 'unquiet, disobedient, and criminous' within their respective dioceses. Some Prelates even refuse to allow any proceedings to be instituted in their Courts at the instance of a promoter. The delays and expense incident to a suit in the Ecclesiastical Courts amount to a denial of justice. Your attention is requested to the Acts of Uniformity of Elizabeth and Charles II., and likewise to the Church Discipline Act, 3 & 4 Victoria, c. 86. The joint opinion of Mr. H. B. Poland and Mr. T. D. Archibald was taken in 1869, upon the question whether criminal proceedings could be instituted against a clergyman for a violation of the Acts of Uniformity. Their reply was in the affirmative. A copy of that opinion accompanies this case. Tour opinion is requested upon the following questions:—1. Whether, having regard to the Church Discipline Act, proceedings can be instituted in the Criminal Courts against any clergyman who, in the performance of Divine service, wilfully disobeys the Acts of Uniformity? 2. Whether proceedings can be instituted against any clergyman for using ceremonies which the Queen in Council, in 'Martin v. Mackonochie' and 'Hebbert v. Purchas,' has pronounced to be illegal, as contravening the Acts of Uniformity? 3. Assuming that either or both of the foregoing questions shall be answered in the affirmative, who is a qualified person to prosecute, and is the consent of any Prelate required to institute a prosecution?"
That was the state of the law now. He read the opinion simply and solely for the sake of promoting peace, harmony, and goodwill. He was anxious, as a layman, to concede that it should no longer be in the power of any one man of any religious persuasion to institute a suit in any Criminal Court against criminous clerks or Bishops; but, if that concession were rejected by the Episcopal Bench, its members must bear in mind to what an issue they were driving laymen, and what was the condition of the law open to them. Could their Lordships believe that, in the present excited state of the public mind, laymen would not be found by scores and hundreds who would only be too happy, at the moderate expense at which they were able to do it in the Criminal as compared with the Ecclesiastical Courts, to institute suits of every sort with the view of bringing the Church into contempt, and the Establishment into real and perhaps insuperable difficulty? He introduced these Bills to promote harmony and peace, and he trusted they would be received in the spirit in which he offered them. If they were thrown out, he for one should feel that the laity were perfectly justified in taking the course he had indicated, and assuredly he for one should never use any influence to restrain them from taking that course, which was the only one open to them for asserting their undoubted rights and privileges."We are of opinion that—1. Under the Acts of Uniformity of Elizabeth and Charles II., if any minister 'use any other rite, ceremony, order, form, or manner of celebrating the Lord's Supper…other than is mentioned and set forth in the Book of Common Prayer,' an indictment can be maintained against such minister. The Church Discipline Act applies only to proceedings in the Ecclesiastical Courts, and does not affect the provisions of the Acts of Uniformity. 2. An indict- ment can be maintained against any clergyman for using ceremonies which the Queen in Council, in the cases of 'Martin v. Mackonochie' and 'Hebbert v. Purchas,' has pronounced to be illegal, as contravening such Acts of Uniformity. 3. There is no restriction to prevent any person from preferring such indictments, and the consent of a Prelate is not required as a condition Precedent."
Moved, "That the Bill be now read 2a "—( The Earl of Shaftesbury.)
THE BISHOP OF PETERBOROUGH
, who had given Notice of his intention to move the rejection of the Ecclesiastical Procedure Bill, said: My Lords, it will be convenient, perhaps, as the noble Earl has referred in his speech to both of the Bills that stand in his name, that I should at once state the ground on which I ask your Lordships not to consent to read the second of them a second time. I gladly acknowledge that the noble Earl has not been wanting in consideration for the wishes and feelings of the occupants of the Episcopal Bench, and I tender him my own personal thanks for having enabled me, with a perfectly clear conscience, at once to move the rejection of the second Bill, and to vote for the second reading of the first. To the first, I think some objections are to be taken on details which can be conveniently considered in Committee; but to the second, my objections are founded on its principle. I am quite aware that, in opposing the Bill, I occupy a difficult and somewhat invidious position, because I am asking your Lordships to refuse a second reading to a Bill, the principle of which was affirmed, though not unanimously, last year by a Select Committee of this House; and I believe that it received some time ago, and under somewhat different circumstances, the assent of the two most rev. Primates of the Church. Nevertheless, I feel deeply that very serious issues to the Church at large are involved in that Bill. I shall not, therefore, apologize for detaining your Lordships with a full statement of my objections to it. I object, in the first place, to the title of the Bill, as invidious and misleading. It professes to be "a Bill to set at rest doubts as to the prosecutions of clerks in Ecclesiastical Courts by laymen." This naturally would give rise to the supposition that there was some objection to laymen, as such, prosecuting clergymen in the Ecclesiastical Courts, whereas there is no such objection that I am aware of. The real fact is, that this Bill proposes to enable three members of the Church—whether laymen or not—to institute prosecutions in the Ecclesiastical Courts; and, for my own part, I confess that I would infinitely rather, of the two, that the clergy should be debarred from the right of prosecuting their brethren, than that the laity should be debarred from the right of prosecuting the clergy—because I think it is quite possible that the clerical prosecutions of the clergy would be, at least, quite as bitter and vexatious as the lay prosecutions. But the issue between myself and the noble Earl is still further narrowed, because, notwithstanding all that he has said of the rights of the laity under this head, he has himself admitted that they ought to be subject to certain restrictions; and he says that this Bill will further restrain their rights. The question really is, not whether laymen are to be free to prosecute clergymen, but whether clergy or laity shall be free to prosecute without the restriction of the veto of the Bishop; for the Bill proposes to substitute for that veto a money fine only, in the shape of the costs to be levied on the authors of the vexatious suits. Now, the first objection that I make to this proposal is that it would be equivalent to the passing by your Lordships of a direct vote of want of confidence in the Bishops of the Church. They are no longer to be intrusted with one of the most important functions of government—namely, the right to decide when and where the law shall be enforced. The functions of a Bishop of a diocese are not merely judicial—they are also administrative; and I ask whether it is not one of the most difficult and delicate functions of a ruler to decide whether or no prosecutions such as these should be instituted? But to whom is this important power, which can only be used safely with very wise discretion, given by the Bill? To any three persons in the entire diocese—who may be the three greatest fools in it—to them is to be given the power of deciding whether the parish or the diocese, or the Church at large, is to be set in a blaze because they chose to club together their little moneys and large spite for the prosecution of any clergyman they may happen to dislike. I cannot thank the noble Earl for the compliment that he pays the Bench of Bishops, when he thus proposes to handover their discretion to these self-selected triumvirates of fools. Consider the effect. Three persons—let us say three old women—in the Channel Islands would have the right to prosecute, for any minute violation of the rubric, any clergyman within a stone's throw of your Lordships' House. That would be one of the practical possibilities of this clause. If it be said that hitherto the Bishops have not exercised the power the noble Earl now proposes to take away from them, I answer that no doubt that is true; but then it must be remembered that an English Bishop is the only judge in the world who is heavily fined for executing the duties of the office. It is utterly unreasonable to complain of the Bishops because they have been unwilling to ruin themselves in prosecutions to uphold or declare the laws of the Church. But would it not have been more fair if the noble Earl had waited to see if the Bishops would do their duty, now that it is proposed to enable them to do it, before he came down to the House to tell us, in the same breath, first of all that the Bishops could not hitherto discharge their duty; then to proceed to enable them to do it; and, lastly, to take away all discretion in doing it from them? I most respectfully submit to your Lordships that the Bishops do not deserve this vote of want of confidence—this "vote of degradation from their functions." But, I ask, in the next place, as regards the clergy, what would be the effect of this Bill? The noble Earl says that it would restrict the rights of the laity, because now, it is a most uncertain point whether the laity can or cannot prosecute without the leave of the Bishop; and, in order to remove any uncertainty, the Bill ordains that any three of them shall be able to do so; and that is the noble Earl's way of restricting their rights. I rather think that the clergy will, on the contrary, consider this to be an enormous increase of the power of their prosecutors. It puts the clergy in a worse position than any other members of the community. The noble Earl talks of the lay right of prosecution, as if prosecution were the first right and most sacred duty of man, and that it is a dreadful cruelty to deprive anyone of his right to prosecute his neighbour. Is that so? Do we find that a layman is free to prosecute without hindrance, any other layman in the temporal courts? Has the noble Earl never heard of a magistrate refusing to commit, of a grand jury rejecting a bill, of certain prosecutions that cannot be commenced without the leave of the Attorney General. Yet he proposes to place the clergyman in the position of a layman who has been committed for trial, and to refuse him the chance every layman enjoys, that the magistrate may refuse so to commit him. Of course, the noble Earl has reminded us that, if a clergyman does not like to be prosecuted in this way, he may elect to be prosecuted in the lay Courts, and imprisoned for six months, under the Act of Uniformity; but I do not think that the clergy will feel greatly obliged to him for the alternative. Is there no danger that the power of prosecution, and especially of prosecution by societies and knots of individuals, may be abused? Was not, last year, all London much disturbed by vexatious prosecutions under the Sunday Observance Act of Charles II.—an Act bearing curiously enough the same date as our rubrics? The prosecutions instituted under that Act by the society were found to be so mischievous, that it became necessary to restrain them, and an Act was passed last Session, that no such prosecution should be instituted without leave in writing being first obtained from the chief police officer of the district, from two justices of the peace, or from the stipendiary magistrate. This course was found necessary to restrain the ardour of the society in its war against coster-mongers and apple women; and I trust that your Lordships will not deem the clergy of the Church of England deserving of less protection than the sellers of sweet stuff in the streets of London. The noble Earl when he last year received from the citizens of Glasgow those well-deserved honours—which it was as great an honour for them to confer as it was for him to receive—deprecated those prosecutions, and said that certain fussy, foolish, and misguided men were endangering the existence of the Act by these unwise proceedings. So it seems that in the opinion of the noble Earl a body of fussy, foolish, misguided men may not interfere with costermongers and apple-women, but that any three or 30, or 300 foolish and misguided men may prosecute a clergyman of the Church of England without a word of remonstrance from the noble Earl—nay with his assistance, for the noble Earl this evening comes down, to point out to fussy, foolish, misguided men how they should set to work to do this. In the next place, I would observe, that this Bill places the clergy in a worse position than the members of any other profession. In every profession its members are bound by certain inner rules, which are very often enforced with great strictness and severity, but which do not affect the rest of the community. The violation of these rules by members of the profession frequently entails upon them very heavy penalties. For instance, an assault which, if committed by a civilian, would only be punished by the imposition of a fine, might, if committed by a soldier on his superior officer, be punished by death. Where such strict and intricate rules exist the enforcement of them is reserved to the heads of the profession; and while I admit it to be quite right that the members of professions should in return for exceptional privileges be subjected to severe exceptional legislation, I maintain that it ought not to be in the power of every one to put in action the exceptional professional laws which do not bind the rest of the world. For instance, if the noble Earl were to be the spectator of a review, and it struck his mind that an officer had violated one of the Articles of War, would he claim a right, as a citizen, to compel the trial of that officer by a court martial? Of course not; but yet the noble Earl assumes that everyone has a right to enforce the exceptional laws of the clerical profession. The Bishop is the commanding officer of the clergy, and it is only reasonable that with him should rest the enforcement of the stricter laws of the profession. Persons who are bound by strict professional rules are entitled to some protection, and of all professional men the clergy, from the very nature of their profession, stand most in need of protection. A clergymen is a person whose profession brings him into collision—and often into violent collision—with the prejudices, passions, and party spirit of his people—yet this Bill proposes to leave the clergy liable to vexatious attacks from any three persons in or out of the diocese. And the persecutions will certainly be numerous. The squire of the parish, whose wife may not have received a return visit from the clergyman's wife, with his gardener and bailiff, may form the prosecuting trio. Or the trio may consist of the publican, who was offended against the vicar's last sermon against drunkenness, and two of his customers. Nay, even the keeper of a house of ill-fame, and two of the frequenters of his house, may constitute the trio. In short, any person whose feelings have been in any way hurt by the clergyman will only have to get two other persons to join him in order to get up a vexatious and harassing prosecution. And clergymen are specially exposed to such prosecutions for another reason—no profession is bound by so many complicated and obsolete laws as those which bind the clergy. There is not a clergyman in the Church of England who either does or can literally comply with every one of the rubrics. Her laws fit the Church like an ill-made coat—tight where they should be loose, and loose where they should be tight. Yet these complicated and obsolete rubrics, which no one can possibly obey in their entirety, are to be enforced by any three persons who club together their money and their spite in order to prosecute any parson who may have offended them. I ask your Lordships further to remark that the Bill does not require the prosecutors to be parishioners, who have a quasi-right to see the rubrics carried out in their parish church; but the law may be set in motion by persons who reside miles away, in a remote corner of the diocese. Now, it deeply interests the laity that the peace and harmony of the Church, which I believe the noble Earl is desirous of promoting, shall be preserved, and I may remark that that much-abused Order, the Bishops exert themselves to the utmost to preserve the peace of the Church. When any dispute arises as to the observance of rubrics, the persons interested ought to resort to the Bishop, who is directed to take order for the appeasing of such dispute; and, in point of fact, there is not a Bishop on the Bench who has not repeatedly appeased quarrels which otherwise might have festered into law suits. But what clergyman would ever go to his Bishop to settle a matter in his study, if he knew that, however satisfactory the settlement might be to himself and his parishioners, it was in the power of any three members of the Church, living perhaps 50 miles off, to upset it, simply because they did not happen to like it? I will relate a brief anecdote in proof of this. About two years ago one of these disputes came before me for settlement, the clergyman and the parishioners having agreed to refer to my decision a question as to the services of their Church. I believe that I succeeded in settling the dispute to the satisfaction of everybody in the parish with the exception of a Wes-leyan preacher, who called himself a Churchman, and who objected altogether in limine to the reference, because he doubted whether the Bishop's principles were sufficiently evangelical—that is, he was not quite sure that the Bishop would decide in his favour. Well, if that member of the Church of England could only have found in the large diocese of Peterborough two other persons who were as silly as himself, he might—supposing this Bill had been passed—have burdened the Church with a wretched law suit about a matter which the Bishop had settled without his permission. I will now ask your Lordships to consider the value of the checks and restrictions against frivolous and vexatious prosecutions proposed by the noble Earl. The first is, that prosecutions shall be instituted only by three members of the Church of England; but the Bill gives no definition of a member of the Church of England, and for a very good reason—namely, that there is no such definition known to our law—at all events, I know of no definition which would prevent a Nonconformist from prosecuting under this Bill. I contend that, according to the law of England, every baptized person is a member of the national Church, and has his legal rights accordingly in that Church; and, although I grant that the noble Earl intends to prevent the members of communions which are bitterly hostile to the Church from instituting prosecutions, yet I maintain that the clause inserted in the Bill will not really prevent that scandal and disgrace. In fact, the secretary of the Liberation Society might devote the £7,000 a-year received by that association to the prosecution of clergymen in the Ecclesiastical Courts, with a view of making them and the country thoroughly sick of a Church established by law. Much has been said of late respecting the conciliation of Dissenters, and I have heard of strange devices for effecting this object. They are to be allowed to have the free use of the churchyards for burials, but are not to contribute to the cost of maintaining them; they are also to be consulted as to the colour of the dress worn by the clergy in the pulpit; and now, it appears, the noble Earl would further conciliate them by giving them a share in the privilege of cheap prosecutions—just as he might conciliate some poor relation or a squire who had a vote in his county, by giving him a day or two's shooting in his preserves. As to the next check—the clause providing that the prosecutors shall be resident householders—I think the noble Earl himself does not lay much stress on it. As a third check the noble Earl proposes—not in this Bill, but in the first one—that in the case of vexatious and frivolous suits, it shall be in the power of the Court to compel the prosecuting parties to pay the costs. Does the noble Earl, who appears to think that a fine will be a sufficient check to a prosecution, really suppose that avarice is the only passion in the human breast. Does he not know how readily men pay for their pleasures or their passion? There are sportsmen who will pay largely for the hire of grouse moors and salmon streams. Does he not think that occasionally there may be found two or three sportsmen of another kind, to whom the struggles of a poor curate with 10 children under the prosecution of some great squire would be as exciting as the first rush of the salmon would be to the angler? I believe that the possible fine of £50 or £500 will not restrain men from prosecutions when their blood is fairly warmed to the work. Besides, the fact must not be forgotten, in dealing with this subject, that there exists in this country a great association, one of whose objects is the promotion of these prosecutions. Prosecution in these days is reduced to a science, and is carried on, like many other enterprizes, by joint-stock companies with limited liability. Of this character is the society known by the name of the Church Association in this country. The vice chairman of that association, referring to the real powers of that association in the matter of prosecution, said—
Here is a powerful association which describes itself as "an object of fear to its opponents;" and with this great guarantee fund, enabling them to prosecute any poor curate whom they may please to number among their opponents, the noble Earl appeared to think that the danger of having to pay costs in a frivolous prosecution would deter them from engaging in it. What will your Lordships say to a case of this kind? The secretary of the association may write to some poor curate in such terms as these—"Sir,—Information has reached the Committee of this Association that your proceedings are not altogether satisfactory to them, and, upon due consideration, they are obliged to number you among their opponents. I must therefore request you forthwith to discontinue the practices to which they object. P.S.—You may not be aware that the guarantee fund of the society amounts now to £30,000." I ask your Lordships to consider what effect such a communication would have on the independence of that curate, or on the "peace and harmony of his family." But this is not all. This association has a number of affiliated branches throughout the country. Here, also, I may quote from the statement made in the presence of the vice chairman of the society by a clerical speaker, who, with a touching naïveté, which I hope your Lordships will admire, said "They are anxious to do something, but they do not know the technical steps." The local associations feel that they contribute a great deal to the parent society, and how large a portion of the guarantee fund is available for prosecutions, and they complain that with all this fund at their disposal "they had no work to do." They should raise the cry for "Lord Shaftesbury's Bill." They are eager for this Bill, and the noble Earl, forgetful of the lesson Dr. Watts may have taught him in his youth, came down in pity for these poor frozen-out prosecutors to your Lordships to pass this Bill in order to find something for these "idle hands to do." The clergy are entitled to protection against this miserable system of theological persecution. I admit that some years ago there was unhappily a necessity for this Church Association; but these "vigilance committees" are rapidly becoming a dangerously ruling power in the Church instead of the Bishops. The Church Association is not the only association of this kind—there is also the Church Union. I have as little sympathy with the one of these societies as with the other—still it is in human nature when attacked to retaliate. After a time, when persecution has gone on incessantly upon one side, there is that in human nature, and in clerical human nature, which will induce men to turn round upon the other side; and what will then be the peace and harmony of the Church, which the noble Earl professes to aim at increasing by this Bill, when divided between these rival persecutors, each diocese is turned into a theological hunting-ground, and each Church Association proceeds to mark out its respective hostages for ecclesiastical execution. Is it likely that in this state of things—when clergymen are attacked from above by the Church Association, from below by the Union, and midway, perhaps, by the Bishop—that men of independence, of high spirit, of character, and energy will long put up with it? Your Lordships may suppose that these are the grotesque aspects of the Bill, but some things may be at the same time grotesque and dangerous. I admit that the noble Earl has to cope with a very serious evil—with a lack of discipline and a growing state of lawlessness among those who are called Ritualists. If the noble Earl thinks that I oppose this Bill as a defender of the Ritualists, he is entirely mistaken. I have no such feeling. I admit their great piety, their zeal, their self-devotion; but I deprecate their extravagance as much as does the noble Earl himself. I have this further complaint against them—that they have by that extravagance rendered such a Bill as that now before your Lordships possible. But such is always the result of license. It always leads to loss of liberty. Had they at first been content to submit themselves to the proper rule of their Bishops, they would never have been threatened with such tyrannical treatment. Though I recognize, as everyone must, the earnestness, zeal, and self-denying devotion in labour among the poor of those who promote this Bill, I distinctly declare that I have not any sympathy with their extravagances. But if I were the most extreme Ritualist in England, I would eagerly support this Bill. For nothing would better help their aims than passing it. Nothing so much exasperates men against all law as the vexatious enforcement of all law; and if I wished to break down the law, I would just set going all over the Church this system of unrestrained prosecution, which would sicken and weary all Churchmen with Church law. It is for that reason alone, if not for all the others I have mentioned, that I earnestly deprecate such a measure as this, which, in the endeavour to find a violent and sudden cure for a serious disease, introduces what would prove a still more serious disease than the one it seeks to remedy. For these reasons I am compelled to oppose the Bill of the noble Earl. I know that I argue this question in an Assembly mainly composed of laymen—as the noble Earl, perhaps not very generously, reminds us—but yet I am not in the least afraid of pleading before your Lordships the cause of the clergy. I, too, remind you that you are laymen because, if your recollection of your lay character is strong, it will make you only the more jealously anxious that the clergy shall not suffer any wrong at your hands. But I remind your Lordships of this fact for another reason—for I believe that your Lordships, as laity, have, above all others, the deepest possible interest in maintaining the independence, the self-respect, and the freedom of the clergy. Make the clergy the slaves of a faction, or the victims of a party; destroy their self-respect and independence; and it will not be so much the clergy in the end as the laity who will suffer. Whatever degrades the clergy injures the laity of the Church, and therefore it is not mainly in the interests of the clergy, but quite as much—nay, far more—in the interests of the laity, that I do most earnestly entreat your Lordships not to vote for the second reading of this Bill."The guarantee fund"—possibly amounting to £30,000—"while it strengthened the hands of the Council and made the position of the association one of security, made it an object of fear to their opponents. That fund had been subscribed solely for Parliamentary and law proceedings."
THE ARCHBISHOP OF CANTERBURY
said, that in the Select Committee he and his most rev. Brother who presided over the Northern Province gave their assent to the clause which proposed to give this power of prosecution to the laity. He had greatly enjoyed the speech of his right rev. Brother who had just set down (the Bishop of Peterborough), but that speech had not convinced him; and in justice to his most rev. Brother (the Archbishop of York), to the noble and learned Lords who sat upon the Committee, and to himself, he felt bound to explain why that proposal had received their assent. In the first place, they believed that at the present moment it was very doubtful whether the laity did not possess the very power which his right rev. Brother had shown they could not possess without such dangerous and alarming consequences. He recollected that a few months before he had ceased to preside over the diocese of London, he (the Archbishop of Canterbury) was called upon to institute proceedings against a clergyman living in the diocese of Bath and Wells. He thought it very hard that he should be called upon to act for his right rev. Brother the Bishop of Bath and Wells, and he said he should take no proceedings in the matter, as it never could have been intended that the Bishop of London should be public prosecutor for other dioceses; but in the course of a fortnight he received a mandamus, informing him that he must take the matter into consideration, the clergyman being charged with publishing a heretical book within the limits of the diocese of London. His case was not singular in this matter, for a somewhat similar case happened to the late Bishop of Chichester, when the question arose as to whether a clergyman residing in the diocese of Oxford might not insist on the Bishop of Chichester instituting proceedings against a clergyman in the diocese of Chichester, and the language of the Judges in giving their decision upon the case was doubtful. The state of the law, therefore, was not certain, and it was by no means clear whether both laity and clergy might not proceed against a clergyman for any ecclesiastical offence whatever. In fact, nearly all the objections urged by his right rev. Brother against the proposals of this Bill might be, and probably were, objections against the law as it at present existed. In considering in the Select Committee the question, it was thought very desirable that some rule should be laid down as to who should have in all matters the right to prosecute; and it was considered that in all matters of doctrine and discipline the Bishop should have the right of veto; but that in matters of misconduct and immorality the case was different, and that as to such matters, and also respecting the services in the Church, the laity should have a right to institute proceedings. The Bill at the same time contained clauses providing against vexatious prosecutions, and he did not think that the restriction against the institution of improper prosecutions, by making the prosecutor give security for costs, would be altogether illusory. No doubt there was an ambiguity as to who was or was not a member of the Church; but upon that point the noble Earl had taken the best care he could, for he had introduced into the Bill a clause taken from a previous Act, containing a solemn declaration which the members of the Ecclesiastical Commission made on accepting office, and requiring from every prosecutor in such cases a solemn declaration similar to that made by an Ecclesiastical Commissioner. There were two other proposals before the public at the present moment besides that of the noble Earl, and he (the Archbishop of Canterbury) must confess that one, which had the sanction of the Ritual Commission, composed of persons of every variety of opinion in the Church, appeared to him to be liable to every one of the objections which his right rev. Brother (the Bishop of Peterborough) had urged against the measure under discussion. There was a proposal made by a noble Lord in the other House of Parliament (Viscount Sandon) for the establishment of parochial councils—he did not know whether the right rev. Prelate meant to advocate that proposal; in his own opinion, there was a good deal to be said both for and against it. He would, however, remind the House that the profession of those who were ministers of the Church was not only a clerical profession, but a Christian profession, and the laity were as much an integral part of our common Church as the clergy. He thought that either according to the proposal of the noble Earl, or that of the Ritual Commission, or that of the noble Viscount in the other House, or in some other way, the laity must be allowed their just rights; and he held that the proposal now before the House was just as harmless as any other which said that the laity should have power to interfere in ecclesiastical as well as in other matters. There really was no difference between the right rev. Prelate and himself as concerning matters of doctrine—or even of immorality—the point in which they differed was with regard to prosecutions for violations of discipline. But it would be unreasonable to throw out this Bill on account of a single clause. For himself, he (the Archbishop of Canterbury) was of opinion that although some things might be objected to in the second Bill, there was not more to be said against it than could be said against any other proposal on the subject; and he thought it was as advisable that the laity should have the power of securing that the law was enforced in matters ecclesiastical as in any other matter. For his own part, he must express his thanks to the noble Earl for the way in which he had introduced into his Bill every Amendment which had last Session been suggested from both sides of the House. He regretted that his right rev. Brother the Bishop of Winchester was not in the House on the present occasion. It was 16 years since he himself had first taken part in the discussion of such matters, and he did not, therefore, think it fair to the noble Earl, the clergy, or the whole body of the Church to lose any more time. The noble Earl ought, he thought, to be afforded an opportunity of carrying his measure through the House of Lords before Easter, and sending it to the House of Commons. As regarded the second Bill, it would be for the noble Earl to exercise his own discretion.
THE DUKE OF RICHMOND
said, that the opinions of the most rev. Primate on such a subject were entitled to the most serious attention, were it only for the high position he occupied in the Church; but he confessed that he could not concur in the arguments which he had addressed to the House. He had not, he thought, met any points whatever that had been urged in the very cogent and convincing speech of the right rev. Prelate who sat immediately behind him (the Bishop of Peterborough). He should, therefore, give his vote against the second reading of the Bill. The most rev. Primate remarked that a good deal might be said not only against the Bill, but against all the other proposals on the subject. Surely if that were so., it formed a very strong argument against meddling with the matter at all. To enable persons to move in the present state of the Church, as was proposed under the Bill, when they could not do so otherwise, was a course which was, in his opinion, very much to be deprecated. He understood the most rev. Primate to refer to the proposals of the Ritual Commission as a reason for sanctioning the Bill; but if he (the Duke of Richmond) was not mistaken those proposals were confined to the question of incense, vestments, and altar lights—a very much smaller matter than was dealt with in the second of these Bills. Some of the clauses of the Bill required great consideration, and as to their being only a word to alter in the second Bill, it appeared to him that the whole of the gist of it was contained in the 4th clause, which gave power to any member of the Church to act. It was, in his opinion, unwise in the present condition of the Church to invite that description of legislation, and he should vote against the second reading.
THE BISHOP OF LONDON
said, that the principle was sound that every parishioner had a right to the services in his parish church, and was entitled to ask that they should be conducted in accordance with the laws of the Church to which he belonged. He not only had that right, but he ought to have the opportunity of vindicating that right when it was violated, and he should therefore have thought that the right rev. Prelate (the Bishop of Peterborough) might have attained his object without moving the rejection of the Bill by proposing its alteration in Committee. He looked, however, upon the proposal to confer the power upon any three inhabitants of a diocese as altogether indefensible, and he believed it should be limited to three parishioners living in the parish where the cause of complaint arose.
THE LORD CHANCELLOR
said, there seemed to be perfect unanimity of opinion with regard to the first Bill, but there was considerable difference with respect to the second. For himself, with regard to that Bill he believed that the view taken by the Ritual Commission as to the necessity for the protection of parishioners was perfectly sound. The Church of England was wisely most large in its liberality as to doctrine; and the same circumstance which made it desirable that the Church should not be narrowed into small sects, made it absolutely essential that there should be strict uniformity in the worship—because it was often in the power of a clergyman by the introduction into the worship of some Shibboleth of doctrine to render attendance unpleasant and even impossible. At the most solemn moment of the service, when everyone was anxious to have his thoughts and mind wholly concentrated upon the act he was performing, nothing could be more distressing than to have some particular Shibboleth imposed upon him against which he had no remedy and from which he could not escape. Believing that in that direction facilities were required, and that they might be obtained from the Bill if it were modified, he was not prepared to support the Motion for its rejection.
was unable to support the Bill as it stood.
THE EARL OF SHAFTESBURY,
in reply, observed that in the kind remarks which the right rev. Prelate opposite had made against this Bill, his right rev. Friend had somewhat misrepresented him. On the occasion referred to he had exhorted laymen not to part with any power they possessed; to retain it rigorously, but not to exercise it in a fussy, foolish, or misguided manner; and he said the same thing now to laymen with reference to the Bill under discussion. So far from this measure inviting litigation, he believed that its tendency would be one of repression, and that if it were thrown out laymen would, in sheer despair, endeavour to obtain redress in the Criminal Courts. He held that every man in the Church of England had the deepest interest in the uniformity of the rites and ceremonies of the Church of England, and the clause providing that the prosecution might be commenced at the instance of any three persons in the diocese had been inserted with a view to divest as far as possible such prosecutions from the element of local jealousy or spite. He really and conscientiously believed that the proposal he had made would tend to promote the best interests of the Church, and that if this Bill were thrown out they would find the Church brought into a state of litigation and confusion of which they could form no idea, and which they would all deeply regret.
Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday the 29 th instant.
Ecclesiastical Procedure Bill
( The Earl of Shaftesbury.)
(No 16) Second Reading
Order of the Day for the Second Reading, read.
Moved, "That the Bill be now read 2a "—( The Earl of Shaftesbury.)
Amendment moved to leave out ("now") and insert ("this day six months.")—( The Lord Bishop of Peterborough.)
On Question, that ("now") stand part of the Motion? Their Lordships divided:—Contents 14; Not-Contents 24: Majority 10.
Resolved in the negative; and Bill to be read 2a this day six months.
|Canterbury, Archp.||Halifax, V.|
|Hatherley, L. (L. Chancellor.)||Brodrick, L. (V. Midleton.)|
|Airlie, E. [Teller.]||Churchill, L.|
|Granville, E.||Monson, L.|
|Kimberley, E.||Oranmore and Browne, L.|
|Shaftesbury, E. [Teller.]||Seaton, L.|
|Richmond, D.||Peterborough, Bp.|
|Cadogan, E.||Clinton, L.|
|Derby, E.||Colville of Culross, L.|
|Feversham, E.||Denman, L.|
|Malmesbury, E.||Eliot, L.|
|Hawarden, V.||Foxford, L. (E. Limerick.)|
|Chichester, Bp.||Lyttelton, L. [Teller.]|
|Ely, Bp.||Ross, L. (E. Glasgow.)|
|Gloucester and Bristol, Bp.||Skelmersdale, L. [Teller.]|
|London, Bp.||Stanley of Alderley, L.|
Number Of Land And House Owners
THE EARL OF DERBY
asked the Lord Privy Seal, Whether it is the intention of Her Majesty's Government to take any steps for ascertaining accurately the number of Proprietors of Land or Houses in the United Kingdom, with the quantity of land owned by each? He should not trouble the House at any length, because he understood that the suggestion he had ventured to put into his Question was acquiesced in and would be acted upon by the Government. They all knew that out-of-doors there was from time to time a great outcry raised about what was called the monopoly of land, and, in support of that cry, the wildest and most reckless exaggerations and misstatements of fact were uttered as to the number of persons who were the actual owners of the soil. It had been said again and again that, according to the Census of 1861, there were in the United Kingdom not more than 30,000 landowners; and, though it had been repeatedly shown that this estimate arose from a misreading of the figures contained in the Census Returns, the statement was continually re-produced, just as though its accuracy had never been disputed. The real state of the case was at present a matter of conjec- ture; but he believed, for his own part, that 300,000 would be nearer the truth than the estimate which fixed the landowners of the United Kingdom at a tenth of that number. He entirely disbelieved the truth of the popular notion that small estates were undergoing a gradual process of absorption in the large ones. It was true that the class of peasant proprietors formerly to be found in the rural districts was tending to disappear—for the very good reason, that such proprietors could, as a general rule, obtain from 40 to 50 years' purchase for their holdings, and thereby vastly increase their incomes. In the place of that class, however, there was rapidly growing up a new class of small owners, who, dwelling in or near towns or railway stations, were able to buy small freeholds through the agency of societies which existed for the purpose. He believed this new class would fully replace, and perhaps more than replace, the diminution in the other class to which he had referred. He apprehended that through the agency of the Poor Law Board it would be easy to obtain statistical information which would be conclusive in regard to this matter. The returns ought to include the name of every owner and the extent of his property in acres. He did not wish to have included in the Return the exact dimensions of very minute holdings; that could be met by giving the aggregate extent of holdings not exceeding an acre each, the number of separate owners being stated, but not the extent of each holding. He need not waste words in explaining the statistical interest and value of a Return of this nature. He was told that in Scotland a Return of the kind actually existed, and was kept up without inflicting annoyance upon anybody, or causing any great trouble or expense. He thought it might be a question also whether holdings on lease ranging from 75 to 999 years, ought not also to be included; because a man who held under such a lease as that was for all practical purposes very much more the possessor of the soil that was covered by the lease than was the nominal owner, whose only right was that of enforcing certain simple conditions and receiving the amount of ground rent stipulated in the lease. He could not conceive that an inquiry such as he had ventured to suggest would involve any interference with the private concerns of any persons. Any man, by the use of his own eyes, and by personal inquiry, could obtain an approximately accurate idea of the holdings of every landowner in his own parish, but it was only the State which could take a similar survey over the whole country.
THE EARL OF VERULAM
thanked his noble Friend for having put the Question now under consideration; but desired to ask further whether Her Majesty's Government would cause to be prepared and presented to Parliament a Return of the number of entails now existing in this country. He believed much misunderstanding existed with regard to this question, and that, instead of their being numerous, there were very few remaining. In the present day most persons succeeded to their property under marriage settlements, and it ought to be generally known that hardly any good solicitor would willingly draw up a marriage settlement unless it included a power of sale. Under these circumstances, property of this class was easily disposed of if families wished to dispose of it, and he, for one, failed to see what more was to be desired.
THE DUKE OF RICHMOND
thought this a subject the importance of which could scarcely be overrated, and trusted that Her Majesty's Government would be able to furnish the Return asked for by his noble Friend. This, he thought, might easily be done through the agency of the Poor Law Board. A vast amount of ignorance existed in regard to the question, and it was surely time such ignorance was dispelled by means of documents possessing all the weight of Parliamentary Returns, and whose accuracy could not be disputed. There ought to be no alarm raised by such a Return as was asked for, because the rental need not be inserted in it, although even that was given in Scotland. In order to show the great errors into which the public might be led even by Government Returns, he would mention a fact brought under his notice by the noble Marquess sitting near him (the Marquess of Salisbury). According to the Census of 1861, the number of landed proprietors in Hertfordshire was only 245. The noble Marquess, however, doubted the accuracy of this statement, and after taking the trouble to investigate the matter for himself, he found that the number of landed proprietors in the county of Hertford at that time, according to the rate-book, was 8,833. According to the Returns of 1861 there were 29,235 landed proprietors in England; but if a proportionate error prevailed over the whole country that prevailed in Hertfordshire, the actual number would be 994,338. He hoped the Government would see their way to granting the Return which had been moved for.
said, his attention had been called, as had that of his noble Friend opposite (the Earl of Derby), to the absurd statements made in certain newspapers, and at some public meetings, respecting the wonderfully small number of landed proprietors in this country. The fact was, that very few persons were returned in the Census under the designation of "owners of land." He had looked over pages of the Census Returns of landowners. They appeared under various designations—"Gentlemen, merchants, shopkeepers, farmers, &c." Very few called themselves "landowners." Indeed, what the Census professed to give was the occupation of the persons enumerated, and the ownership of land was not an occupation. In fact, the Census Returns did not profess to give either the number of landowners or the amount of land which they held. He thought it exceedingly desirable, however, that the gross misrepresentations on this subject should be corrected. For statistical purposes, he thought that we ought to know the number of owners of land in the United Kingdom, and there would be no difficulty in obtaining this information. He held in his hand the valuation of a parish, giving the name of every owner, a description of the land, the estimated area, and the estimated rental, and such returns existed for every parish in England. He quite agreed with his noble Friend that it might not be desirable to give the rental, although he might remark that this was already done in Scotland. He had in his hand the valuation roll of the county of Edinburgh. He believed that in Scotland no objection had ever been taken to publishing the amount of rental; but it might not be desirable or necessary to do so in this country. What he proposed to do was to give a nominal list of every owner of land to the extent of one acre or upwards in every county of England, together with the quantity of land which each owner has in the county. In regard to owners of less than one acre, he thought it would be sufficient to state their number in each county without specifying their names. The same process would be gone through in Scotland and Ireland. He hoped to be able to lay these Returns on the Table before the end of the Session.
THE MARQUESS OF SALISBURY
urged that the 999 years leaseholds ought to be included in the Returns.
said, that there would be great difficulty in ascertaining the precise tenure under which property was held. He quite agreed with the noble Marquess that owners of property held for 999 years, as well as land under similar tenures, should appear as owners—and he thought it might be done. The valuation lists, however, to which he had referred only gave information as to the ownership of land and the quantity owned. In his judgment, the best plan would be to treat as owner the person immediately above the occupying tenant.
THE EARL OF FAVERSHAM
suggested that the Returns should give fair descriptions of the land, stating whether it was in cultivation, woodland, or moor.
remarked that the Government could not undertake to state the description or quantity of the land. An attempt to do this would lead to inextricable confusion.
Office Of The Clerk Of The Parliaments And Office Of The Gentleman Usher Of The Black Rod
Select Committee on, appointed and nominated: The Lords following were named of the Committee:
|Ld. Chancellor.||E. Granville.|
|Ld. President.||E. Kimberley.|
|Ld. Privy Seal.||Ld. Chamberlain.|
|D. Richmond.||V. Hawarden.|
|D. Saint Albans.||V. Eversley.|
|M. Lansdowne.||Ld. Steward.|
|M. Salisbury.||L. Colville of Culross.|
|M. Bath.||L. Redesdale.|
|E. Devon.||L. Colchester.|
|E. Tankerville.||L. Skelmersdale.|
|E. Stanhope.||L. Aveland.|
|E. Carnarvon.||L. Cairns.|
Standing Order Committee on, appointed and nominated: The Lords following, with the Chairman of Committees, were named of the Committee:
|Ld. President.||V. Hawarden.|
|Ld. Privy Seal.||V. Hardinge.|
|D. Somerset.||V. Eversley.|
|M. Winchester.||Ld. Steward.|
|M. Lansdowne.||L. Camoys.|
|M. Bath.||L, Saye and Sele.|
|M. Ailesbury.||L. Colville of Culross.|
|M. Normanby.||L. Sondes.|
|E. Devon.||L. Digby.|
|E. Airlie.||L. Sheffield.|
|E. Hardwicke.||L. Colchester.|
|E. Carnarvon.||L. Silchester.|
|E. Romney.||L. De Tabley.|
|E. Chichester.||L. Skelmersdale.|
|E. Powis.||L. Portman.|
|E. Verulam.||L. Belper.|
|E. Morley.||L. Ebury.|
|E. Stradbroke.||L. Egerton.|
|E. Amherst.||L. Hylton.|
|Ld. Chamberlain.||L. Penrhyn.|
Opposed Private Bills
Committee Of Selection
The Lords following; viz.,
|M. Lansdowne.||L. Colville of Culross.|
|Ld. Steward.||L. Skelmersdale.|
were appointed, with the Chairman of Committees, a Committee to select and propose to the House the names of the five Lords to form a Select Committee for the consideration of each opposed Private Bill.
House adjourned at a quarter before Nine o'clock, till To-morrow, half past Ten o'clock.