SECOND READING.

HC Deb 11 May 1870 vol 201 cc535-48

Order for Second Reading read.

MR. ASSHETON CROSS

, in rising to move that the Bill be now read a second time, said that he had purposely deferred this stage of the Bill in order that persons in the country might have the opportunity of becoming acquainted with it; and he had sincere pleasure in stating that out of the very large numbers of letters he had received from clergymen in every part of the country hardly one expressed the slightest objection, whereas the great majority warmly praised its provisions. That being so, it was not his intention now to make any lengthened statement, not having heard that any opposition was to be offered to the progress of the Bill. He might state at the outset that nothing was further from his wish than in any way to interfere with the right of patronage as vested in the hands of laymen. It was, he thought, of essential use to the Church. In the first place, it interested a large number of people in the welfare of the Church who were likely to make good appointments to their livings; while the fact of so much patronage being in the hands of the laity throughout the country tended to produce a variety of tone and thought among clergymen, and prevented them sinking into that monotonous character which would prevail if all patronage were in the hands of the Church or Crown. The origin of Church patronage in lay hands dated from early times. Many owners of estates offered to build and endow a church, on condition of having the patronage placed in their hands; and the Bishops, jealous as they were with regard to ecclesiastical appointments, consented to place the patronage in the hands of laymen, in consideration of the advantages which the Church and people received from the endowment of churches. No one could doubt, that in consequence of the action thus taken, a vast number of livings were created both in this country and abroad, which would not otherwise have been founded at all. But it was obvious that one evil was likely to attend patronage in the hands of laymen—and he was sorry to say it showed itself also in the case of those who were not laymen. That was that in corrupt times a vast amount of it was sold and bought just like any other marketable commodity; and we read in the ecclesiastical historian Mosheim— The kings, princes, and nobles either conferred the sacred offices on their friends and ministers for whom they had partiality, or sold them to the highest bidder. And hence frequently men the most unfit and flagitious—sometimes soldiers, civil magistrates, and counts—were invested with spiritual offices of the highest dignity and influence …. There seems to be nothing appertaining to the Church which is not put upon sale—namely, bishoprics, presbyteries, deaconries, and the other lower orders; archdeaconries also, deaneries, superintendencies, treasurers' offices, baptisteries. ‖. All ecclesiastical offices were at that time as much accounted things vendible as merchandize in a common market. In order to put an end to that state of things Gregory VII. took vigorous measures, and did for a time put an end to it. In England the early history of our advowsons was much the same. In early times persons who had manors, in consideration of assigning lands for the endowment of the parish church were allowed the patronage of the living, and the patronage always passed with the manor; but in later times they became separated, and the advowson became what was called in gross. This practice, which was originally a mere indulgence, became in process of time a right, and all those who had either founded or endowed a church claimed and exercised the exclusive privilege of presenting a clerk to the Bishop whenever the church became vacant."—[Cripps, 552.] And again, although the law did not consider the exercise of the right of presentation as of any pecuniary value, or a thing for which a price or compensation ought to be accepted, yet the general right to present was considered valuable. As the right of presentation became pro- perty that right was sold, and, practically, in the nature of things, must have been sold; because it was quite clear if an owner of a right of presentation left the country he could not carry it with him, as his whole interest in the place would have gone; and, therefore, the right of presentation as an existing right would, like other property, be the actual subject of sale. But a great distinction was drawn by the lawyers as to the right of patronage between the sale of that right and the sale of the exercise of that right. The right might no doubt be sold, like any other property; but at the same time it was a public trust, and the owner was bound to exercise it for the benefit of the public and not for his own. If he sold the exercise of his right he broke his trust, because the living was then filled up not for the benefit of the public, but for the benefit of the buyer, and in consideration of the money which he paid for it. This distinction was taken as early as the reign of Queen Elizabeth, and the general right of presentation only was then legally subject to sale. He was aware that the actual exercise of the right of presentation was now legally the subject of sale; but he hoped the House would agree with him that it was not morally, and ought not to be legally, the subject of sale. Chief Justice De Grey laid it down that an advowson was a temporal right, not, indeed, jus habendi, but jus disponendi. The right itself was a valuable right, and properly the object of sale; but the exercise of this right was a public trust, and therefore ought to be void of any pecuniary consideration either in the patron or the presentee. Chief Justice Best in one of his judgments said— If the perpetual advowson be sold when the church is void the next presentation will not pass, and if the next avoidance only be sold after the death of the incumbent the sale is altogether void. It may be wise to carry restraint on the sale of this species of property still further, and to say that the next avoidance shall in no case be sold. Undoubtedly much simony is indirectly committed by the sale of next presentations. If it be proper to prevent the giving of money for a presentation, it seems equally proper to prevent the sale of that which gives the immediate right to present. He hoped he had now established the proposition that anciently there was no light to sell a presentation, and that at the present day a distinction was made between the sale of a right to present and the sale of the exercise of that right. He would put the case thus—A man had a right to vote, but he was forbidden to sell that right. He might buy the property which gave the right of voting if he chose, and he might part with that property; but so long as he retained the property, and the right to vote in connection with it, the law said if he sold the exercise of that right—in other words, if he parted with his vote for any personal consideration—he was guilty of bribery, and would be punished. So, in the case of an advowson, the owner, if he wished, might sell the right of presentation; but when he sold the exercise of that right he did that which the law ought not to allow. If that was allowed in the case of a presentation to a benefice, why not to a bishopric, or any other office in the Church? Why not a presentation to a mastership or a fellowship or a scholarship? If lay patrons were allowed to sell the exercise of the right of presentation, why not allow the Crown or Bishops to sell the patronage in their hands? It was perfectly impossible to distinguish between one of these cases and another. This abuse in fact had only grown up in modern times, and he hoped the House would now step in and check it. He did not ask the House to take any step which would invade the rights of property. This property was held as a trust, and by passing this measure they would, take away all abuse connected with that property, and by taking away the abuse they would perpetuate the use. That was the policy of those who occupied the Benches around him. Where they loved an institution as they all loved the Church they ought to scrutinize every abuse, and the moment they found one they should sweep it away. This Bill had been prepared by a gentleman of great experience, and drawn with a considerable amount of care. He only asked the House to take another step in the same course with reference to this property which had been followed by legislation at different periods of our history. At the time of Elizabeth a presentation might not be sold while the living was void; at the time of the Union it could not be sold to a clergyman; and he now only asked them to take the further step pointed out by Chief Justice Best—namely, that the actual sale of the next presentation ought not to be allowed, whether that was done by a grant, or any contrivance of selling the advowson and buying it back, or by any covenant to buy it back, or by any contrivance of buying an actual living when the incumbent was in extreme danger of death. Everybody admitted that there was a real practical evil to be remedied, and they ought not, therefore, to quarrel over the mode of doing it, provided no hardship were inflicted upon individuals. There were provisions in the Bill which would prevent that from being the case. It would not come into operation for some time, in order that arrangements already made might be carried out without hardship. There was a proviso which saved livings which had been put in existing settlements, as it would not be fair to disturb family arrangements which had been made certainly without expecting the passing of a measure of this kind; but for the future no such settlements could be allowed. There was also a saving provision in the case of persons who had already purchased next presentations. In cases where they had bought them for their sons, who might have died, or changed their minds, or gone into other professions, it would be hard not to allow them to sell what they had bought. He sincerely hoped the Bill would be read a second time, and that by putting an end to a great scandal to the Church, and an absolute insult to parishioners, it would not only promote the welfare of the Church, but the feeling of religion throughout the country. He moved that the Bill be now read a second time.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Assheton Cross.)

MR. BERESFORD HOPE

was sure the House had heard the lucid statement of his hon. and learned Friend with great pleasure and interest, and must have sympathized with the Christian spirit which had dictated his action in the matter. He regretted, as much as the hon. and learned Member himself, the existence of the facts which rendered some legislative action necessary, and having made these observations his hon. Friend must not think him inconsistent in advising him to rest satisfied with having brought forward the subject for the present, without pressing the second reading. Of course, if the measure were pressed he would not vote against it, though he would be unable to vote for it. Certain vehement Church reformers regarded the whole system of private patronage, as it is found in the Church of England, as being an abuse, and they would give the nomination to livings either to some central authority or to the parishioners. They had an armoury of plausible arguments founded on the ostensible inconsistency of treating a sacred trust as a private right. To them he would answer experientia docet. Lay patronage had created that Church a very desirable class of clergymen, unique, as far as he was able to ascertain, among the Christian communities of the world, who were at once men of the world and men of the Church. No doubt, abuses had occurred in the sale of family livings, and they should be prevented; but if the remedy consisted in nakedly abolishing one element of the system of patronage, the property in patronage was affected, and the risk was incurred of its being totally swept away. The evils that did exist in this exercise of lay patronage—the sale of next presentations—were not found among the earnest and religious patrons, but among the less worthy, who either cared for the money from avarice or were tempted by impecuniosity; and he asked whether the Bill would prevent these less worthy patrons from committing the wrong. Besides, if all sales of next presentations were effectively prevented, what was the kind of clergymen who would be probably thrust into the livings. The patrons, it was conceded, would be of the less worthy kind—the careless, the unscrupulous, or the embarrassed. If they were driven to present, in all probability they would put in clergymen of a similar description—unfit relations of their own, careless livers, or broken invalids, whose health and years promised a speedy vacancy. Besides, he feared that, if the sale of the next presentations were; forbidden, secret sales, a more deployable state of things than the present, would be the result. Men, for instance, might be put in who would not pay a lump price for the living, but who would forego gathering the tithes for a time. There was, however, another element of this patronage system which, in his mind, called for legislation far more than the sale of next livings, and, if his hon. and learned Friend had taken that up he would have found him (Mr. Beresford Hope) heartily working by his side. The most crying evil connected with lay patronage was the gift of a living to a clergyman, with the understanding he was to resign as soon as a son or a nephew of the presenter had come of age to be presented. This was akin to the violation of a Divine law, because it called on a man to give up a cure of souls upon a certain contingency; and it was akin to the violation of human law, because it was pretending to invest a man with a freehold when it was giving him a mere leasehold. The cure for both these evils—that with which this Bill endeavoured to deal, and that of bonds of resignation—he suggested might be found in allowing open and regulated sales of next presentations through the office of the Bishop of the diocese, a certain amount of the purchase money being retained for the benefit of the Church of England, and the Bishop having powers of examination and rejection beyond what he at present possessed. This would be better than leaving it open to a bankrupt patron to make a presentation on the assurance that shortly afterwards some spiritual "man in the moon" would make him a present of a sum of money. To meet the case of a patron who desires to present his relative, at the time not in Holy Orders, he would make the bond of resignation absolutory illegal; but he would allow the patron to request permission of the Bishop to refrain from presenting until his intended nominee was eligible. The Bishop in this case would appoint a curate for the appointed time to receive the entire income of the cure; and so the Church would not only be well served, and the Bishop would have a fresh opportunity of rewarding hard work among his clergy, but the parish would be saved the scandal of a pretended presentation to a decrepid, toothless old man, whose infirmities and chances of speedy death were his only recommendations in the eyes of the patron. He would limit the selection by the Bishop of the curate in charge to some clergyman already in the diocese. He, however, mainly trusted to the growth of morality and the higher sense of religious duty manifested by this age, for the correction of these evils; the moral responsibility attaching to the office of patron was being felt more and more every day; but while he felt con- vinced the evils would notably diminish before the growth of this feeling, he could not but thank his hon. and learned Friend for his action in the matter.

THE SOLICITOR GENERAL

said, in the absence of the Secretary of State for the Home Department, he desired to say a few words on the subject; and, in the first place, he regretted that his professional experience did not permit him altogether to endorse the statement of the hon. Member for Cambridge University (Mr. Beresford Hope) with regard to the increased sense of moral responsibility existing among lay patrons. He was unable to say that the sale of benefices, and the general immorality of those concerned in disposing of them, were diminishing, or their morality was increasing. Day by day cases came before him, which he should have believed were fictitious, had he not been obliged, upon the evidence, to believe them true; and he was sorry he could not concur in the view that this Bill was undesirable. Though anxious not to say anything in any way disrespectful of great dignitaries, he was obliged to remark that he was not desirous of increasing the patronage exercised by the Bishops. The amount of patronage in the hands of lay members of the Church was a feature which distinguished it favourably from almost every other Church Establishment with which he was acquainted, and for this reason, that it knit round the Church a great variety of persons of different ranks of life and of diverse education, all or most of them being animated by a desire to sustain the institution, to prevent it from degenerating into a sect, and anxious to extend its influence and usefulness. He was, therefore, not disposed to do anything to diminish the amount of patronage in lay hands; and it was because he believed the immediate effect of the Bill before them would be to strengthen this element of lay patronage, and confirm the possession of that patronage in the hands which at present usefully exercised it, that he humbly recommended the House to give the Bill a second reading. Though some Amendment would be necessary in the second subsection of Clause 3, to prevent the intention of the hon. Member being thwarted, he would recommend the House to read the Bill a second time, because it was no revolutionary measure, but really a return to the old system, although it might not meet the views of canonists and Church lawyers, who might reasonably be supposed to be a little prejudiced in respect to these matters. He regarded the right of presentation entirely as a matter of trust. That was the old and sound view; and so far as any change had taken place, it had taken place in comparatively late times, and by no means for the better. To pass the measure would be to do away with a great public and private scandal; and inasmuch as all existing rights and interests were saved by the Bill, no individual injury could be alleged. There was a sensible and practical evil to be dealt with, and he warned the hon. Member for the University of Cambridge that it was rather a dangerous thing to raise the whole question of Church patronage, because it led to the inevitable conclusion that some time or other it must be dealt with.

DR. BALL

said, that, practising in the ecclesiastical branch of the law, he had been consulted from time to time about the sale of presentations, and his experience in these matters had taught him several things bearing on the subject of the Bill, particularly that the ingenuity of lawyers had been largely employed to discover means to evade the few existing prohibitions of illegal traffic in livings. It was true the law forbade the sale of a living to a clergyman, and accordingly the law was complied with in the letter; but the purchase was made in the name of the clergyman's brother, friend, or solicitor. Other prohibitions had been overcome in a similar manner, and they would be overcome as long as a loophole was left. He was at a loss to know on what principle the practice of selling the next presentation was to be defended. What was it but making merchandize of the most sacred offices? If an advowson were attached to an estate, it seemed a natural consequence of that connection to give the right of selling it along with the estate, and if that were admitted it would be refining too much to prohibit the right to sell an advowson out-and-out. Such reasoning justified the sale of advowsons; but it did not apply to the sale of next presentations. This generally had regard, to immediate possession. The transaction was based fre- quently on calculations as to the state of the incumbent's health, and was not seldom accompanied by considerations to induce resignation and make a vacancy before death. The measure had his cordial support.

MR. STAPLETON

said, he thought thought this was a measure of very doubtful policy. While it forbade the sale of the next presentation, it allowed the sale of advowsons, which depended for their value on the next presentation. But he was of opinion that the sale of the presentation led in many instances to the appointment of good men to the living. If the right to sell were taken from the patron, he would be extremely anxious to force his son, or near relative, into the living, perhaps to the injury of the Church. He wished to call attention to the fact that as Roman Catholics were prohibited from presenting to these livings, this Bill, by taking away their right to sell, would confiscate their property without giving compensation.

MR. HINDE PALMER

said, he desired, as a member of the Established Church, to thank the hon. Member for South West Lancashire (Mr. Cross) for introducing the Bill. He was glad to find that the Bill as it now came before the House made provision for preventing colourable sales of advowsons merely for the purpose of obtaining the next presentation. He had known of a case where the purchase of an advowson took place at half-past 3 o'clock, and where the incumbent died at half-past 11 on the night of the same day, yet the Court held that the transaction was valid. He was glad to see that an attempt was made in one of the subsections of the Bill to meet the case; but he feared the words used would lead to much controversy and consequent litigation. He would, therefore, propose in Committee that such sales should be illegal if the incumbent was at the time in an extreme state of illness and died within a given period. There was much force in the observation that lay patronage was of advantage to the Church; but it must be admitted that such patronage was not always exercised in a manner most beneficial to the parishioners, and he doubted, on the whole, whether, without restriction, it was really beneficial to the Church. A strong opinion prevailed in the Church that there should be some restriction even upon the sale of advowsons. He would suggest that no presentation should be made under a newly purchased advowson until after a certain period had elapsed from the sale. The Duke of St. Albans had afforded a very happy instance of the proper exercise of lay patronage, by consulting the wishes of the parishioners, and others had folfowed his admirable example. In another case the Grocers' Company, as lay patrons of a sinecure City living of £1,600 a year, had come to Parliament to enable them to divide the living in order to endow three churches in different populous parts of the metropolis. Still the system required extensive review by Convocation or some other ecclesiastical body, aided by lay members.

MR. J. G. TALBOT

said, he desired to congratulate his hon. Friend the Member for South-west Lancashire (Mr. Cross) upon the manner in which his Bill had been received on all sides. He cordially welcomed the Bill as an attempt to remedy abuses, which had long been winked at but which nobody, justified, connected with patronage in the Church. The defenders and warmest supporters of the Established Church could do nothing more conducive to the promotion of her best interests than to endeavour to remove any real abuses that had sprung up in her system; for, if that were done, an institution which had its roots so deep in the affections of the people as the Church had would long flourish in this country. He hoped that in Committee on the Bill the point would be considered whether a larger limit of time ought not to be allowed for vested interests.

MR. HENLEY

said, that, no doubt, the question might arise whether such a description of property ought to be sold at all—a very large and important subject; but he confessed that he found it very difficult to understand on what principle a man should not sell a presentation, but might sell the advowson, which carried that presentation with it 10 or 20 years afterwards, and for all time beyond. No doubt, the hon. Gentleman (Mr. Cross) did not mean by his Bill to strike at the root of private patronage altogether, but it was impossible not to see that such must be its necessary result. Many persons had always thought that private patronage was some security to the Church—that was to say, that if private patronage were wholly done away with, public patronage would have a very indifferent chance of being continued. A great number of persons also thought that patronage, whether public or private, was not altogether free from evil. Those were all questions that grew up from that Bill. Again, he did not see the justice of treating differently persons who possessed that species of property under settlement and those who did not. A man now holding an advowson not under settlement, if that Bill became law, could at once sell it, though it was often worth little more than the presentation; but the man whose property was under settlement was utterly deprived of that power. What he felt was that the Bill, though professing to do very little, was a first step in a very much larger change. A great deal, no doubt, might be said about the evils of private patronage, but so also was it with public patronage. Patrons, whether public or private, were but human beings, and did not always do what they ought to do. Again, if A had got something to sell, and B wanted to buy it, the thing would, somehow or other, be passed from the one man to the other, in spite of any Act of Parliament of that kind. The late Mr. O'Connell said it was always easy to drive a coach and six through an Act of Parliament, and here all that would have to be done would be to drive a poor incumbent through the Bill. No doubt, his hon. Friend had seen many instances of abuse, and wished to prevent their recurrence; but it was to be feared that he would only add to the complication which very often now arose in dealing with that kind of thing; for the impediments they put in the way, generally speaking, did not stop the transaction, but only induced clever people to try in various ways to get round those impediments by which, perhaps, they now and then came to grief.

MR. MONK

said, he was very much of the opinion expressed by the right hon. Gentleman (Mr. Henley) that where A. wanted to sell and B. to buy a presentation they would probably find some means of evading that Bill if it became law. Perhaps the Bill did not go quite far enough, but as a move in the right direction it would give great satisfaction in the country generally. He begged to call the hon. Member's (Mr. Cross's attention to the last clause for saving Archbishop's options, to which he took exception in toto.

MR. DICKINSON

said, he would beg to give Notice of his intention in Committee on the Bill to move a clause to repeal the unrepealed portions of the Acts 3 James I, c. 5; 1 Will, and Mary c. 26; 12 Anne, st. 2, c. 14—whereby Roman Catholics and their trustees are disabled from presenting to benefices, and the right of presentation is transferred to the Universities; and 11 Geo. II., c 17, s. 5, whereby Roman Catholics are disabled from granting advowsons except on sale to Protestants, and from devising the same to their own family.

MR. GATHORNE HARDY

said, there was much force in the suggestion of the hon. Member for Gloucester (Mr. Monk) but there were options in the nature o personal rights belonging to persons now living which must be preserved. With respect to what had fallen from his right hon. Friend the Member for Oxfordshire (Mr. Henley), he must say that he should think it injudicious and objectionable in the interest of the Church to do away with lay patronage. But he considered the sale of an advowson and the sale o the next presentation to be totally different things. A man took with an advowson continued responsibility; but the purchaser of a presentation merely obtained it for some particular person or temporary object. And when they were told—as, perhaps, they knew too well—that there were cases of subterfuge under the law as it now stood, and that they would be unable by this Bill to protect the Church against fraud and evasion of the law, he did not think the objection of the right hon. Gentleman was one to which the House should listen. It might be that they could not altogether prevent these things; but that was no reason why they should not do as much as possible towards that result. An eminent counsel who appeared before the Corrupt Practices Committee, was asked whether he could suggest any method of stopping bribery at elections, and in reply he said exactly the same as the right hon. Gentleman with regard to one person purchasing from another that which he desired to obtain in defiance of the law, yet Parliament had taken measure to prevent bribery and corruption The Church of England did not consist of patrons and clergy alone, but of the flock also, and by this Bill the position of the flock was properly recognized.

Bill read a second time, and committed for Tuesday next.