NON-RESIDENT CLERGY. (Hansard, 24 March 1814)

§ Mr. B. Bathurst
rose, in pursuance of notice, to move for leave to bring in a Bill to stay prosecutions and actions commenced against spiritual persons for penalties under the 43d of the King. The right hon. gentleman repeated those observations which he had made on a former occasion, on the great hardships to which the persons against whom these actions had been instituted had been exposed. He remarked also, that in most cases where the parties had laid themselves open to the operations of the Act, their offence consisted more in neglecting to apply for licences to the bishops of their diocese, than in any actual inattention to those duties, the performance of which the Act of the 43d of the King was meant to enforce. In illustrating this proposition, he referred to a list of persons against whom actions had been commenced by Mr. Wright, in the diocese of the bishop of London. These persons in number amounted to 92; and of the whole of them two only were without a rational excuse for the offences imputed to them, which were those of non-residence, and a neglect to obtain licences for such non-residence from their bishop. In some cases the informer had laboured under a mistake altogether, as the incumbents had actually resided constantly on their livings; in others, where there were two preferments, they had invariably resided on one of them; and the only charge to be brought against them was, that of not having notified on which they had resided, to the bishop; while a third class had resided in their parishes, although not in the vicarage, either from the want of a house, or from the dilapidated state of the dwelling which their livings afforded. The persons, in strictness, became amenable to the provisions of the Act in question; and many of them, if the penalties 356 were enforced, would be utterly ruined. In one case, the actions for penalties brought against a single individual, if pursued to judgment, would amount to 15,816l. and yet this person had never resided out of one or other of his livings. In another case, penalties to the amount of 450l. had been sought to be recovered from a gentleman, the value of whose living was but 75l. per annum; and who, in the simplicity of his heart, had written to him (Mr. Bathurst), declaring, that it had never come to his knowledge that such an Act was in existence. He was far from wishing that House to interfere with the fair operations of the law; but here were cases of extreme hardship, in which the Act was made to do that which had never been intended by the legislature. He thought the course proper to be pursued was, to suffer the parties, against whom these proceedings had been instituted, to make those applications now to the bishop of their diocese, which, from neglect or inadvertency, they had omitted to make before. This was the object of the Bill which he proposed to bring in. The bishop would have to exercise his judgment on the applications made now, for licences for non-residence; as he would have done had they been made at the proper time; and he would exercise his judgment under additional responsibility, knowing that his conduct would be closely watched by an active informer, who, from the situation he had filled, and other circumstances, would be perfectly acquainted with the cases on which he decided. Under this responsibility, his judgment would now be as fairly exercised as it would have been before—he thought more so. In cases where a licence was refused, the parties should be liable to an action—an action being held to lie where a licence was not produced. For the informer, where the law was on his side, however hard the case of the parties against whom the actions were brought, he must have his costs. He hoped the House would not object to the Bill that he proposed to bring in. The Act of this session, suspending the proceedings against the clergy, expired on the 20th of April. As there might not be proper opportunity for discussing the subject by that time, he intended to move for leave to bring in a Bill, to extend the provisions of that Act for a month longer. The right hon. gentleman concluded by moving for leave to bring in a Bill, "to discontinue 357 the proceedings on certain actions already commenced, and to prevent vexatious actions, under the 43d of the King."

§ Mr. Whitbread
was sorry, that the learned, civilian with whom the Bill originated, under which these prosecutions had been, commenced, had left the House this day. He could have hoped from him some explanation, which might have been an apology for the House having passed an Act which had produced effects so diametrically opposite to those which were expected from it. But as the learned member for the University of Oxford had thought proper thus to leave them, it was fitting for those who were present to state what occurred to them on this subject. Some few years ago, the Bill under which these prosecutions were instituted was prepared by a learned gentleman of great talents, who took the business out of the hands of a county member, to secure the clergy from prosecutions under certain Acts of Henry the 8th. This Bill was passed by the Commons, sent by them to the Lords, and passed there also; and now that it had been in operation eleven years, another Bill was to be brought in, to save persons from being ruined by penalties under this Act, whose conduct, it should seem, had been not only innocent, but meritorious. Those who remembered the proceedings on that Bill, and who heard the speeches then delivered, must be struck with what they had heard that day.—At that time it was contended, that every thing ought to be done to induce informers to come forward. For this purpose, it was thought right that the whole of the penalties should go to the informers. It was then said to be desirable that every encouragement should be given to them; they were not then held up to reproach as noxious persons; but the moment an informer came forward, certain that he was right according to law, the House was first called upon to suspend the proceedings which had been instituted against the clergy; secondly, to continue that suspension; thirdly, to crush the prosecutions; and fourthly, they would be called upon to alter the law. One instance had come to his knowledge, of a clergyman in the diocese of Norwich, who had performed the duty of two churches between thirty and forty years, and in all that time had not been absent so many days. Nevertheless, he was now prosecuted for penalties, which, if the law were enforced, must send him to a jail. This 358 was a case which called for relief; and where there were difficulties in deciding between both ways, he should be disposed to raise his voice in favour of giving it. But the right hon. gentleman had said, of 92 cases in the diocese of London, there were but two that were ambiguous, and these he could not pronounce against: in stating this, he proved too much. If such were the fact, they ought to do honour to the clergy,—admit that the legislature had acted under a wrong impression,—that restrictions were unnecessary, and that all they had heard of their being absent from their parishes, and neglecting their parochial duties, must be unfounded. He would rather entertain the Bill, however, than suffer the unfortunate persons affected by these prosecutions to be utterly ruined. This would be acknowledging the former Act of the House to be one which ought not to have passed; he hoped the right hon. gentleman who brought in that Bill would assist in framing a new one, and in this he wished him better success than he had with the last.

§ Mr. Preston
spoke shortly in favour of the Bill.

Mr. Wetherall
censured some of the provisions of the Act under which the prosecutions were commenced. They attached punishment not to the offence which they were intended to guard against, but to the simple fact of non-residence under any circumstances. In the whole penal code, he thought no other instance could be found, where the punishment was made consequent on the omission of a form, and not on the commission of a crime. Whoever its author was, he hoped he would co-operate to do away provisions which were proved to be bad, and enact those which might do good.

Mr. C. W. Wynne
thought it hard for the informer, when he called for what he was entitled to by law, that the House should step in, to prevent his recovering the penalties. In a case of such extreme difficulty, he could have wished that each petition had been referred to a committee, where a counter-statement or petition could have been made or put in by the informer.

§ Mr. Bathurst
, in reply, said, it was not a new case, that a law should not exactly answer the purpose for which it was framed, or that it should be perverted in its application. He thought the process recommended by the hon. gentleman (Mr. Wynne) one that it would have been 359 very improper to adopt; as, had this been done, the informer might have gained any information he needed, and frequently ascertained whether he could support his action or not. The hon. gentleman (Mr. Whitbread) seemed to think he had proved too much. He had fairly stated, that of 92 cases, there were but two that appeared without excuse: but, granting that against ten or twelve more a good flaw could be found, where such a disparity as 70 to 20 appeared, he thought the interference of parliament was called for. They were not the worst cases that Mr. Wright looked for. Those where the parties were least culpable would suit his purpose quite as well. He might even prefer going to a clergyman, who had no vicarage house, and say to him at once, "You have no proper residence—you are living in your own house, and I will bring an action against you." It was such cases as these that Mr. Wright might think he could best turn to his own emolument. With respect to what had been said of the learned gentleman who brought the former Bill into the House, he had to say that he did not take it out of the hands of a county member. The House, after trying their hand at it, had thought him most competent to the task; and at their desire it was that he took it upon himself.

Mr. C. W. Wynne
explained.
Leave was given to bring in the Bill; which was shortly after brought in by Mr. Bathurst, read a first time, and ordered to be read a second time on Thursday.