SIMONY LAW AMENDMENT BILL. (Hansard, 6 July 1853)

§ MR. R. PHILLIMORE,
in moving the Second Reading of this Bill, said, that the object of it was to amend the law respecting simony, and to render illegal the sale of the next presentation to any ecclesiastical benefice. The evil which he hoped to be the instrument of diminishing, was one of the very gravest character. He wished to prevent a trust of a most serious and important character—no less a trust than the cure of immortal souls—from being made, as it at present so often was made, a matter of barter, of merchandise, and of commercial speculation. The evil to which he alluded was generally stigmatised by the name of "simony." It was one of those tares which the enemy sowed early in the Church, and which grew up in its present form soon after the Church became endowed. The great question was how the difficulty was to be met, and how the evil was to be remedied. The remedy had been supplied partly by the ecclesiastical and partly by the common law. By the ecclesiastical law the sale of any spiritual benefice or dignity was wholly and entirely void, and in this country the evil had been left entirely to be repressed by ecclesiastical censures until the time of the Reformation. The earliest Acts of Edward VI. and of Elizabeth were passed for the purpose of strengthening by temporal laws those ecclesiastical provisions which had been found 1340 insufficient to restrain the avarice of the lay patrons. Nothing could be more decided than the language in which this evil was denounced in the Proclamations of the Crown, in which it was described as "that sin and simony which is execrable in the eyes of God." The same expression was to be found in the 14th canon of James I.; and the 31st of Elizabeth—the first Statute passed on the subject, and the only one which affected the laity—denounced in the strongest terms the evils which to this day still remained to a certain extent practically unredressed. It was not indeed merely by Statute law that the evil of appointing an inefficient and disqualified clerk was attempted to be remedied, because a certain amount of check was ensured by the authority possessed by the bishop, of refusing the presentee; but, after all, the bishop could only refuse to admit for those reasons for which he might subsequently deprive. The next Statute which was passed on this matter was one, the provisions of which he proposed to extend to the laity of this kingdom, the 12th Anne, c. 12, by which, on account of the increase of the practice of simoniacally obtaining livings, the clergy were prevented, directly or indirectly, from procuring themselves to be appointed to any ecclesiastical benefice whatever. Why that statute was confined to the clergy of this country it was difficult to say; but such had been the construction put upon it. The recent Act of 3 & 4 Vict., c. 13, took away from any clergyman the power of disposing of the benefice which he held, not in his private but in his politic or public capacity; and by a section of that Act the option of the Archbishop was also taken away. The present Archbishop was the first who had been deprived of the archiepiscopal options. The true principle was, that the power of presenting was a spiritual trust in essence, and the right of property in the presenter was subordinate and accidental. It was sufficient to say that he looked at this matter in the light in which it was regarded by Lord Mansfield, who said it was on the ground of public morals and public utility that the common law as well as the civil law forbad the simoniacal contract. The Act of Elizabeth was unquestionably intended to prevent presentations made for any corrupt consideration whatever; nevertheless the construction which a series of judicial decisions had put upon it was this, that though you might not present when the living was actually vacant— because, said the common law, that would 1341 be gross simony, and an injury to public piety and morals — yet when the church was occupied, even though the incumbent might then be in articulo mortis, then forsooth, you could sell the next presentation, and the sale was perfectly good, and the Court of Queen's Bench would compel the bishop to institute. The House would remember the remarkable case of "Fox v. the Bishop of Chester," which reduced to an absurdity the doctrine of simony as expounded by the common law. The patron of the living in that case, while the incumbent was actually on his deathbed, conveyed away the next right of presentation to another person; but the Bishop refused to institute the presentee to the living; "for," said he, "it was a grossly simoniacal proceeding." What was the consequence? A quare impedit was brought in the Queen's Bench, the facts were stated, and Lord Tenterden, one of the greatest Judges who ever adorned the Bench, said, the sale was, no doubt, an evasion of the law of Elizabeth; that he would never countenance such an abuse; and he upheld the Bishop in refusing the presentee. The case was taken by appeal to the House of Lords, in 1829, and Lord Chief Justice Best, speaking in the name of all the Judges, reversed the sentence of Lord Tenterden, because he said it was impossible to say that the person might not have recovered, and impracticable to define what amount of illness was to be considered as necessarily fatal. The Judges on that occasion, through the Lord Chief Justice, expressed themselves in this language, on which he (Mr. Philli-more) was content to rest the justice and propriety of this Bill:— It may be wise (said they) to carry the restraint on this species of property further, and to say the next avoidance shall in no case be sold, for undoubted simony is indirectly committed by the sale of the next presentation. Lord Chancellor Eldon also upheld the judgment given by the House, because he said, many presentations had been sold under the belief that the law was what it had been decided to be; the Judges had no power to make new laws, and he should prefer a new Act of Parliament to the arbitrary extension by the Judges of the law as it stood. Now, four things followed from that opinion of the Judges stated by Lord Chief Justice Best:—1. That there was a great evil under the existing state of things; 2. that simony was practised under the sale of next presentations; 3. that a remedy was required; and, 4. that the remedy 1342 pointed out was the one he (Mr. Philli-more) had now the honour to submit to the House. The injury and the scandal which the practices prevailing under the present law brought upon the Church, and the triumph which they gave to its adversaries, were familiar to every man who had turned his attention to the subject. No one could take up a newspaper without being shocked and scandalised at seeing the number of sales of next presentations, and still more at the style and manner in which they were advertised. He held in his hand a list of advertisements of the sale of the next presentation to benefices, which he would not weary the House by reading: suffice it to say that in no one of them was there to be found the slightest intimation of any condition that the patron, who was to have by purchase the power of presentation, should present a person to administer the cure of souls possessed of any of those qualifications by which every pious individual would wish to see him characterised. Those who advocated the separation of Church and State, and those who cared little or nothing about any Church whatever, found the strongest arguments for their opinions in the scandalous frequency of this disgraceful traffic. Let the House observe how the cure of souls was sometimes described. In one of the advertisements to which he had referred, he found the recommendations of the living set forth in these words—"duties single"—that was, there was only a single service—"house comfortable, or may be made so; a trout stream would be of great advantage." He might goon reading advertisement after advertisement; but it would only prove to the House, usque ad nauseam, that anything and everything was considered in that shameless traffic but the fitness of the future presentee to discharge the sacred duties of a minister of the Gospel. "Oh, but," it was said, you are going to touch the rights of property." Did they think of the rights of property when the Act of Anne was passed by which they deprived clergymen of the power of buying or selling or taking the next presentation; or when they passed the 3 & 4 Vict., and prevented the highest Prelate in the kingdom from exercising a power which, from time immemorial, had been annexed to his see? In the case of Archbishop Herring, an ecclesiastical option had been actually put up by his executors at Garraway's coffee-house, and sold by public auction as part of the chattels of the deceased prelate. That was, indeed, an ex- 1343 ercise of the rights of property, but a total disregard of the sacred purposes for which the livings were created. The sale of the judicial office was guarded against in this country with the most jealous care. Why, he would ask, was there to be such laxity with regard to the sale of the spiritual office—in itself of a judicial character— surely not of less importance, not less meriting to be invested with the most entire respect and veneration? Did they think of the rights of property when they passed the Reform Bill? What was the value of Gatton the year before the Reform Bill, and what was it the year after, when it came into the market? It was, nevertheless, not unfrequently urged at that time as an argument against the measure that it would affect the sacred rights of property. Let him remind the House of the magnificent and indignant refutation which that argument received from the lips of Sir James Mackintosh, when that distinguished jurist and philosopher said that the test which distinguished property from a public trust was simple and easily applied; property existed for the benefit of the proprietor, but political power was only given to be exercised for the benefit of the State. Surely hon. Members opposite, who had such deep concern for the rights of property in this matter, would not say that that distinction had no application whatever, because the trust was not only of a public but also of a spiritual character. The House might depend upon it that they could not deceive themselves in the present state of enlightened public opinion. It was not by denouncing ecclesiastical abuses—it was not by rising in that House, and earning by vehement general invectives a cheap reputation for an ardent reformer—it was not by writing anonymous letters in newspapers, misrepresenting the state of the law, and calumniating those who were compelled to administer it—that they could expect to shelter themselves from the specific reformation of this monstrous abuse, denounced as it was by common sense, common reason, common decency—by the principles and precepts of every Christian Church in the universe— by the common law of this country, and by the assembled Judges of the land. They could not screen themselves from the extirpation of this monstrous evil by simply invoking the sacred name of property, which was not now for the first time prostituted and degraded to cover the guilt of convert- 1344 ing a solemn public trust, so awful as the cure of immortal souls, into a mere instrument of sordid private gain. It was for these reasons, and for others he might have adduced had time permitted, that he confidently hoped and trusted that the House would allow this Bill to pass a second reading and to go into Committee. He had only the further remark to make, namely, that he had carefully guarded the preparation of the Bill, so that it should be prospective and not retrospective in its operation. It did not touch the question of advowsons at all; it only had reference to the sale of the next presentation, which he thought he had demonstrated to the House was a continual source of profligate and shameless abuse.

§ MR. BOUVERIE
said, that as it would be impossible to discuss the measure at that late period of the sitting [20 minutes past 5 o'clock], and as there was a great deal of other business on the paper, he would move the adjournment of the debate.

§ SIR ROBERT H. INGLIS
said, the hon. Gentleman's Motion for adjournment, if made at all, should have been made earlier.

§ MR. BOUVERIE
said, that he could not move the adjournment of the debate until after the Motion had been made.

§ MR. G. BUTT
said, he thought that, if the hon. Gentleman had desired, for the sake of other business on the paper, to postpone this question, he might readily have done so by an arrangement with the hon. and learned Mover of the Bill, before the Motion was made. As the matter now stood, he was anxious that the mistakes and the fallacies which had been put forward by his hon. and learned Friend, should, to some extent at all events, be explained to the House. He readily admitted the learning and the ability which his hon. and learned Friend had displayed; but his hon. and learned Friend had throughout proceeded upon this leading fallacy, that it was simony for a layman to hold the next presentation to a living, and to exercise the right which the law gave him in the disposal of that presentation; and, having advanced that assumption, the hon. and learned Mover declared that it was high time that such disgraceful proceedings, as he called them, should be put an end to. Now, leaving aside altogether 1345 the. canon law and its theory of simony, with which we had nothing to do, he begged to remind his hon. and learned Friend and the House that ever since the Reformation this had been the clear law of England, sanctioned by an unbroken series of authorities—the untouched and unshaken law—that a layman might buy, sell, settle, and dispose of, as he thought fit, the next presentation to a living. That law had been clearly defined by a long series of authorities in our courts of judicature. Now this Bill, which purported to be a Bill to amend the law relating to simony, in reality declared that what was not simony now should be simony hereafter, and in doing so affected, to a great extent, property which had hitherto been dealt with under the sanction of a clear and undisputed law; had passed like any other property; had been bought, sold, or disposed of, just the same as any other property. His hon. and learned Friend had very accurately stated that the Statute of Anne declared the corruptly obtaining of a next presentation to a living to be simony; but the Statute of Anne applied to corrupt practices on the part of clergymen, and did not at all affect the rights which the law enabled laymen to exercise with reference to the purchase, sale, and disposal of presentations. That interference, however, with the long acknowledged rights of lay impropriates, the Bill of the hon. and learned Gentleman now proposed to effect. Pass the men-sure, and the rights of property in this important respect would be extinguished for ever. He held in his hand a letter from a gentleman who had bought for the large sum of 15,000l., under the sanction of the existing law, the next presentation to a living for his son; this gentleman put it to him, as he would put it to the House —suppose any circumstances should occur to prevent the presentation from taking effect as the purchaser had contemplated, how great would be the hardship of a measure which should prevent that purchaser from selling again the presentation which he had thus purchased. It would be not a whit more unjust to pass a law preventing any person seised in fee of an estate from granting a lease for a term of years after the termination of an existing tenancy. The hon. and learned Gentleman had assimilated the property in next presentations to the property in Gatton; but there was no analogy between the cases. The hon. and learned Gentleman would hardly say that the owner of Gatton had any legal pro- 1346 perty in the votes of the voters in respect of Gatton. As little would he deny that the owner of a next presentation had a legal right to its disposal. The principle of the measure, if carried out, would operate as a wholesale confiscation of the property of persons who had purchased that property under the sanction of the law. That it was matter of regret that by the plunder of kings for the endowment of favourites, and for other very questionable purposes, a great deal of the property of the Church had been separated from the purposes for which it was originally applied, he quite admitted; and it was especially matter of regret now that so much was needed to be clone for the spiritual welfare of the people. But this was no reason why the House should be called upon to pass a measure directly interfering with the rights of acknowledged property; nor did he sec that the Bill would do anything to benefit the public. The proposition was, that any next presentation in reference to which a violation of the contemplated law should occur, should be forfeited to the Crown. Now he extremely doubted whether the extension to the Crown of the rights to these presentations would much benefit the public. He was he must confess, rather disposed, if anything, to abridge the presentations in the Crown, considering that the exorcise of these presentations had so much to do with political influences. Nor should he he much more disposed to place the increased patronage in the hands of the bishops, having the clear opinion that, practically, this patronage was exercised far better for the general good in the hands which already held it. The bishop had to see that the clergyman presented was a fit and proper clergyman —and no other than a fit and proper clergyman should ever be presented—but it was a question of importance, whether a bishop would be more or less scrupulous in his investigation of his own son, nephew, or friend than he would be with the nominee of another person.

An HON. MEMBER
rose to order. He would appeal to Mr. Speaker whether the hon. and learned Gentleman was speaking to the Motion for the adjournment of the debate, or to the merits of the question?

§ MR. SPEAKER
said, the Motion now before the House was, that the debate should be adjourned; but the hon. and learned Gentleman had not shown in the course of his argument any reason why the debate should not be adjourned.

§ MR. G. BUTT
said, be had begun by stating why the debate should not be adjourned, namely, that it seemed to him of the last importance that they should clear the question of the observations with which it had been introduced to the House by the hon. and learned Gentleman. He would, in deference to the wish of the House, content himself by saying that the existing law relating to simony had remained Unaffected since the time of Henry VIII.; the property in question was established under that law; and the House Was now Called upon to destroy that property, and that without rendering any compensation to those whom they so injured.

§ MR. J. WILSON
said, the hon. and learned Member had given no reason why the Motion for the adjournment of the debate should not be agreed to. There was some business of importance with which the Government were anxious to proceed that evening; and as it was near six o'clock he hoped the House would see the propriety of consenting to the adjournment of the debate.

§ MR. MALINS
said, he trusted that the debate, if postponed, should be adjourned to a period of the day when the legal Members of the House would have an opportunity of expressing their opinions with respect to the measure under their notice. It was a measure of the utmost importance, arid one which it was most desirable that those conversant with the subject with which it proposed to deal should have a full opportunity of discussing.

§ MR. BANKES
said, Wednesday was a day allotted to the special purpose of discussing Motions brought forward by independent Members, irrespective of the convenience or inconvenience of the Government. The hon. and learned Gentleman (Mr. Phillimore) had therefore a perfect right to introduce his Motion that day; but the hon. and learned Gentleman happened to sit on the side of the Government, and directly he made his long and effective speech, up jumped a Member of the Government and moved the adjournment of the debate, to prevent a reply being made".

§ MR. BOUVERIE
said, he begged to state that he was not a Member of the Government.

§ MR. BANKES
said, he thought the hon. Gentleman was a Member appointed to an office by the Government, and as such should have been the last man in the House to have made a Motion of that kind.