§ The House resolved itself into a Committee upon this Bill. Upon the provision authorising the courts, wider certain circumstances, to stay the proceedings that had been entered into;
The Duke of Norfolkobserved, that however unworthily the person in question might have pursued his object, still it was of consequence that the faith and law of the country should not be violated without strong necessity. These penalties had been sued for under the sanction of the law; and he thought the party suing ought at least to be indemnified for his own expences incurred in the prosecution.
§ Lord Ellenboroughsaid, that the principle of the provision was analogous to the usual practice of parliament.
The Lord Chancellorsaid, that it was certainly a delicate proceeding; but that it had been the practice, at all times, when an informer made a vexatious abuse of a law which was intended for wholesome purposes, for the legislature to interfere, and shield those who were the objects of that vexatious abuse from the penalties incurred. If the House were justified, therefore, in depriving this person of his vested rights in penalties legally sued for, the same principle would justify them in interfering with respect to his costs. In case even, where a verdict had been obtained, in vexatious prosecutions, and 100l. penalties recovered, only 10l. were allowed; and in others, the costs were often denied after a verdict obtained.
Lord Hollandcontended, that the necessity of the present Bill arose from the deficiencies of the 43d of the King, which it would be better to acknowledge wrong at once, than to persevere in from any false nations of consistency. Instead of an act of grace to the clergy, it had proved one of great hardship, especially from the technical description of residence, which he wished was got rid of. He did not mean to oppose the present Bill, because its object was to relieve a vast number of individuals from a prosecution which arose out of the errors of the legislature itself. Similar prosecutions, he feared, would be frequent, unless they departed from the principle of enforcing residence, or defined the nature of residence more accurately.
The Lord Chancellorcontended, that the 43d of the King, as far as the residence of the clergy was concerned, had been a very great improvement. The cases of hardship, before the pasting that Act, were numerous. He remembered two or three which came under his own notice; particularly one, of a clergyman who went down to his living in the country, and found a handsome parsonage-house, much larger than he wanted, as he had no family. An attorney in the place, with a large family, was living in a small convenient house, which he proposed to exchange with the clergyman, and reside at his parsonage. At the end of the twelve months, when the attorney was applied to for the difference of the rent, his answer was, I owe you nothing, but you owe me 110l. the amount of penalty for non-residence, which he actually sued for and recovered. The 43d of the King, he certainly did not think open to so many objections as the noble baron had insinuated. He felt some little personal concern about that Act; for he had laboured day and night to render it beneficial to the clergy. The temper of the times when it was passed did not admit of consulting the mutual interests of the clergy and public so much as might now be done.
The Archbishop of Canterburywas of opinion, that great relief had been afforded by that Bill; but, at the same time, much required to be done to give it a full and perfect operation. Nothing was more to be deplored, than that the inadvertence and misconduct of some of the clergy had given occasion to the present Bill; but it would be found, that its provisions separated the cases of vicious non-residence from those of mistake and neglect.
§ Lord Ellenboroughwished the whole matter of residence to be re-cast. It had been approached by the legislature with a very imperfect knowledge of the subject, and, as it stood at present, was full of defects.
The Lord Chancellorwas of opinion, that it would be impossible to enforce residence without making the failure of it penal.
§ Lord Ellenboroughobserved, that when it was considered how vast a number of persons was concerned, and how various and infinite were the causes of residence and non-residence, it would hardly be possible, he apprehended, to accomplish all that might be desired, without confiding, a very large discretion in the bishops.
The Duke of Norfolkobserved, that by 867 the operation of the present Bill, not only was the right of property, under the law, taken away from the individual, but also what he had expended in a legal pursuit. Such a regulation, however, might be necessary, and he should not, therefore, persist to a division, though he still retained his own opinion.
The clause was then read and carried; after which the House resumed, and the Report was received.