Lords Sitting of 30 August 1831

MINUTES.
Bills. Committed; the Tithes on Barren Lands; and the Duchess of Kent's Annuity.
Petitions presented. By the Bishop of LONDON, from Barking, for alterations in the Beer Act.

PLURALITIES IN THE CHURCH.
The Archbishop of Canterbury The Archbishop of Canterbury moved the second reading of the Plurality of Benefices Bill. It was not his intention to detain their Lordships at any great length, but it was necessary to state the circumstances under which the Church at present was placed with regard to pluralities of benefices, and the objects intended to be effected by this Bill. The holding of Benefices, in respect to Pluralities, was regulated partly by the old Canon-law, and partly by the Statute of the 21st of Henry 8th. By the Canon-law pluralities were strictly prohibited under the severest penalties, extending even to excommunication of persons holding more than a single benefice. At the same time an exception was made in favour of high and learned persons. This indulgence was abused in the highest degree; dispensations were, in

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in fact, granted without regard to number, distance, or qualification. They might be obtained, at fixed prices, for two, three, or more benefices, and even without limitation of number or value. Of the extent to which this abuse was carried, a proof might be found in a list of pluralists towards the end of the thirteenth century, (to be seen in Gibson's Codex), several of whom held between ten and twenty, and one, twenty-three benefices. These abuses the Statute of Henry 8th. was designed to correct; but that extends only to benefices with cure of souls above the value of 8l. reckoned by the King's books. In respect to benefices of this description, the Statute agrees with the Canon-law in the general prohibition of pluralities; but it admits many exceptions to the general rule, and empowers spiritual persons, being sons of noblemen, and other persons of rank, or graduates of the Universities, or Chaplains to the King, the Royal Family, Peers, &c., to hold two livings by dispensation: to spiritual persons being of the King's Council, it allows three; and provides for the free exercise of the King's prerogative in bestowing as many benefices as he may think proper on his own Chaplains. With these exceptions, no one may take more than two benefices above the value of 8l. To these limitations others are added by the Canon, in respect to qualifications, distance, and residence, which, however, affect only this description of benefices—all other Church preferments being left, as before the Statute of Henry 8th., under the old Canon-law. In consequence, there was no restriction on the holding of dignities in cathedral or collegiate churches, except such as might be imposed by their own Statutes; and any number of benefices under 8l. might be holden together, without any other check than the power of the patron to present to the benefice first held, and that of the Ordinary, by a judicial sentence, to declare it void; the latter of which powers was, he believed, never exercised, and the former very seldom. Hence arose the distinction of benefices into void and voidable:—a benefice above 8l. is made void by taking a second; a benefice under that value is rendered only voidable. In fact, there were instances of three, four, or even five of these latter being holden together by the same person. But the abuse which most required correction arose from the want of limitation in point of distance.
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An incumbent of a populous parish might take up his residence on a small living under value, at the distance of 200 miles, and leave the concern, which is of far the greatest importance, to the care of a single curate. The inconvenience arising from this state of the law was two-fold. Preferment was sometimes invidiously accumulated on one individual, to the discouragement of meritorious clergymen, who might otherwise hope for a better provision; and the parishes suffered from want of due attention, more especially when the benefices so holden together are of very small value, in which case the incumbent was often unable to keep up the buildings, or allow an adequate stipend to the curate. The object of the present Bill was to remedy these evils. With this view it repeals those enactments of the 21st Henry 8th., which regard the value of benefices in the King's books, and determine the qualifications for obtaining dispensations. It then enacts, that if any one holding a deanery or other dignity, in any cathedral or collegiate church, shall accept of any dignity, &c., in any other such church, the first shall be void. An exception would be introduced into the Committee in favour of Archdeacons—the most efficient and the worst paid officers of the Church. It next proceeds to enact, that if any person, having one benefice with cure of souls, shall take a second benefice with cure of souls, the first (without regard to its value) shall be void. In consequence the patron would be bound to present, under pain of lapse, though he have received no notice of vacancy. The distinction of value in the King's books and its consequences is hereby totally done away. It was nevertheless enacted, that spiritual persons may hold two benefices by license or dispensation, provided the distance do not exceed thirty statute miles, measured from church to church. The effect of these regulations would probably be, that whereas, at present, any number of benefices under 8l. may be holden together, without regard to actual value, or distance, and two benefices above 8l., at a distance of thirty reputed, equal to forty-five statute, miles, which, being measured from the boundaries of the two parishes, make fifty the average between the churches; after the passing of this Act, no more than two benefices, however inconsiderable in value, could be holden together—and that only, where the churches are not

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more than thirty miles from each other. He was fully aware that this alteration would operate harshly on some individuals, and perhaps in some instances inconveniently even with respect to the church. In some cases family livings, now tenable together, would cease to be so if this Bill should pass into a law. In others, meritorious clergymen, employed in the care of poor and populous parishes, might be reduced to the alternative of either leaving a place in which they are eminently useful, and retiring to comparative inaction, or of refusing a benefice far greater in value, and at the same time less laborious. On the whole, however, the surplus of advantage was in favour of the reduction. From returns made to the House, it appeared that about 2,100 benefices are holden by pluralists. Of these the greatest number are under 8l. in the King's books. Of the reduction to be expected in this class of pluralities, as they are not limited by distance, no certain judgment could be formed. With respect to benefices above 8l. some tolerable calculation might be made. If fifty miles is the distance at present allowed, and thirty, as lessened by the Bill, every church might be considered as the centre of a circle, of which the area will be in proportion to the diameter, and in this particular case the greater circle will be to the smaller as about one to three; and consequently, the number of benefices now tenable together by dispensation, will be less, by two-thirds, than at present. Allow a similar reduction for livings under 8l. (which he conceived to be under the mark), and it might fairly be concluded that the number of pluralists would, in the end, be reduced from upwards of 2,000 to about 700. He would, in the next place, speak of qualifications. In the place of those prescribed by 21 Henry 8th, it is proposed to take University degrees as the sole qualification for dispensations, adding to those allowed by the statute, the degree of Master of Arts—in conformity to the direction of the 41st Canon, and abolishing all privileges of rank or retainer, with the single exception of the King's chaplains, who are allowed to hold two benefices by dispensation. In consideration, however, of the small value of many benefices, and from due regard to the claims of many excellent clergymen who have no degree, this qualification will not be required for holding two benefices under
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a certain value, 400 l., for which purpose the Archbishop would be authorized to grant a licence, and arrangements would be made to render the expense very moderate. In respect to dispensations, for the holding together of benefices of greater value, no alteration was proposed. It was, however, to be observed, that the granting or withholding of licences, as well as dispensations, is left to the discretion of the Archbishop of Canterbury, subject to an appeal to the Court of Chancery, for which it is intended, in Committee, to substitute the King in Council. He apprehended that such a power was meant to be lodged in his hands by the Act of Henry 8th; but he could not venture to say in what degree the exercise of this power had been affected by its not having been commonly used. He knew of no instance on record of dispensations having been refused to persons duly qualified according to law; but it must be observed, that the Archbishops had always insisted on conditions not required by the statute—with respect, for instance, to distance, residence, and employment of curates, which implies the exercise of discretion. The Archbishop would be further authorized by the Bill to annex to the dispensation, or licence, such conditions, in regard to residence, performance of duty, employment of curates, and it was proposed to add the erection and reparation of houses of residence, as he might think proper. From what had already been said, it would appear that this was no new power, but a more convenient modification of the power which he at present exercised, in conformity to the directions of the 41st Canon. That canon prescribes the number of sermons to be preached, and the quantum of residence on that benefice, on which the least residence is allowed. The application of the same rule to all cases, however useful in some, would be generally inconvenient in practice. A discretion admitting some latitude in respect to the condition of residence is therefore proposed. An incumbent, for instance, has two benefices; the one a populous town; the other a thinly-inhabited village. Was it right that he should take up his principal residence in this latter, and thus give the least share of his attention to the weightiest charge? Again, when a benefice has two or three churches or chapels, widely distant, perhaps, from each other, was it not reasonable that more than one curate

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should be required for the performance of the duties? But of the evils resulting from pluralities, the decay of residence houses was one of the greatest—as it might excuse and almost compel non-residence for many generations. Such conditions, then, annexed to pluralities, were surely expedient, and would operate beneficially, if adapted to particular cases, by the exercise of a sound discretion. But how were these conditions to be enforced? At present surety is taken in a bond for 200 l. which never has been, and perhaps never could be recovered. In the place of this nugatory security, it was proposed to substitute the revocation of the dispensation or licence, by the authority which granted it. It could not be deemed inconsistent with equity, that he who accepts of a benefit on certain conditions, should forfeit it if he neglect or refuse to fulfil them. And this non-performance and consequent forfeiture are left to the judgment of the Archbishop of Canterbury; so that, in this whole matter of dispensations and licences, the Archbishop would be constituted the judge of the propriety of granting the indulgence in the first instance; of the terms on which it shall be granted; and of the forfeiture incurred by non-compliance with those terms. It had been suggested to him, that the Archbishop was hereby imposing on himself a very onerous and invidious task. In that he entirely agreed; knowing by experience the inconveniences of discretionary power. He who acts ministerially is without responsibility, having but one course to pursue; but he who is invested with discretion, besides the anxiety of deliberation and the pain of decision, must expect the annoyance of importunate solicitation and angry remonstrance from disappointed and offended parties. On these, and many other accounts, if he saw any better mode of regulating the affair of pluralities than intrusting to the discretion of the Archbishop, he should certainly give it the preference. It had also been said, that an exorbitant power was placed by the Bill in the hands of the Archbishop of Canterbury—and even a right of interfering with Bishops in the administration of the discipline of their diocesses; both which objections were entitled to consideration. But, perhaps, it would appear on reflection, that the powers proposed to be given to the Archbishop, though certainly greater than at present, would
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be subject, in their exercise, to an efficient control, independently of the appeal to the King in Council. His general rule, in regard to the granting of dispensations, will be on the side of indulgence; and exceptions, if made, will be grounded on information received from the diocesan, or the evident reason of the thing. The same with respect to conditions. In regard to the revocation of licences, he was of opinion, that the power, as the Bill stood, was not sufficiently defined and limited; and it was his intention to introduce alterations, by which the Archbishop would have to exercise this power of revocation with the concurrent agency of the dicocesan. He had entered more largely into explanations than would have been necessary, had he not been desirous of obviating objections, and stating what, at least in his own conception, was likely to be the effect of the Bill. On its general object, the abridgment of pluralities, there was a difference of opinion, at which he was little surprised when he reflected on what had passed in his own mind. This difference, perhaps, was the greatest in reference to the distance of benefices allowed to be holden together by dispensation, and it has existed from old times. By early canons it was settled at twenty-six miles; by later at thirty. The Bishops in Queen Elizabeth's days, thought twenty a reasonable distance; and the Archbishop and Bishops assembled at Lambeth are said to have approved of a Bill drawn up by Dean Prideaux, and still extant, in which it is limited to five. The distance allowed by the canon, at present, he had, before stated. In this Bill a middle course was taken; yet the allowance unquestionably would, by some persons, be considered as too large—by others too small. However that might be, he had no doubt that benefices, under value in the King's books, ought to be subject to the same regulations as those rated higher. It was known, that the valuation of Henry 8th was no criterion of the present value; and the distinction created by the Statute of void and voidable benefices, had been the occasion of many abuses. In conclusion he could truly say, that having exerted himself to the best of his ability, in endeavouring to improve this part of our ecclesiastical system, he should cheerfully acquiesce in the judgment of the House on the merits of the Bill.
Lord Wynfordobserved, that the Bill ought to be well considered, before it passed into a law, as they were legislating, not for the day, but for futurity. He did not mean to oppose the second reading, but, as he understood the provisions of this Bill, he was inclined to suppose, that the law, as it stood at present, was sufficient to answer all the purposes of the new measure, and if such was the case, it was unnecessary, and would be improper to pass this Bill. The Archbishop of Canterbury had already a large discretion, and by the exertion of the powers already existing, the whole object of the Bill, as he conceived, would be attained. It was possible, however, that he might be wrong in that opinion, as, although he had considered the subject a good deal, he had not had any communication with any other person upon it. However, it was necessary, that time should be allowed for consideration. Certainly he objected to giving such a large power as the Bill gave to the Archbishop of Canterbury, to any individual whatever. It was placing in his hands, the control of the whole body of the clergy. He objected, also, to the appeal, but certainly, if there were to be an appeal, it should be to the King, as the supreme head of the Church. In the meantime he must observe, that the thirty miles distance, which the most reverend Prelate had mentioned, had, in practice, been considered as forty-five, and he was of opinion, that if the matter of distance was to be taken into account, the forty-five miles ought to be considered as the limit. According to the present law, it was necessary that an incumbent should reside during a certain part of the year on his livings, and that was a better provision than the distance. He should not have objected to a distance of five miles, or thereabouts, because then the clergyman could do duty every Sunday at each of his livings, but as to any efficiency in this respect, thirty miles was as objectionable as forty-five; and for the security of existing property, he thought the distance of forty-five miles ought still to be retained.
The Bishop of Londonsaid, that the alteration of the law, to which the noble and learned Lord objected, would have the effect of limiting the number of pluralities. The universal opinion which prevailed with respect to pluralities, was a sufficient proof, that the existing law was not sufficient to effect that object. The fact was, that the present state of the law with
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respect to benefices arose out of an obsolete law, by which a poor clergyman was enabled, if he obtained the Bishop's consent, to hold two or more livings under the nominal value of 8l. This was the origin of the system of pluralities, under which two livings, the real value of which was 700 l. yearly, might be held together.
The Earl of Carnarvonthought, that their Lordships ought not to adopt hastily the measure which had just been introduced by the right reverend Prelate. There were some parts of the old law, which he should prefer to the proposed enactments, if they were reduced to practice; such, for instance, as that provision which compelled an incumbent, if a pluralist, to reside during a certain portion of the year upon each of the livings he held. He objected to the extraordinary power which was given by this Bill to the Archbishops, of revoking the dispensation to hold pluralities, because it gave the power to those most reverend Prelates, of depriving a clergyman of his freehold. At all events, he thought that notice ought to be given to the clergyman, before such authority was exercised by the Archbishops.
The Earl of Harrowbyadverted to the statement made by the right reverend Prelate opposite, by which it appeared, that there were 2,000 parishes deprived of the benefit of possessing resident incumbents. There could be no doubt that that was a great evil, and he saw no means of diminishing it, but by limiting the extent to which pluralities might be granted. The number of persons capable of holding two livings, and who therefore did hold them together, was much more than ten times greater than in the time of Henry 8th. The question then naturally presented itself—why not put an end to the system? but he, for one, must say, that he knew nothing that would be so fatal to the respectability of the Church, as the entire abolition of pluralities. It should be recollected, that a' great deal of property was taken away from the Church, in the time of Henry 8th, and the only means which, in many instances, now existed, of securing a proper remuneration to the clergyman, for the work which he performed, was the union of the smaller livings, He certainly considered it to be highly important that there should be considerable gradations in the Church. He should not like to see it in the power of a clergyman to start up all at

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once, and take his seat on the benches opposite. He ought to work his way up by degrees; for any thing approaching to equality was inconsistent with the constitution of the Church of this country. But, at the same time, it was the interest of the State, to maintain all classes of the clergy in respectability, and that object could not be obtained, if the revenue of parishes merely afforded to their incumbents a bare subsistence.
The Bill read a second time.

SUBLETTING ACT (IRELAND) AMENDMENT BILL.
On the Motion that their Lordships resolve themselves into Committee on this Bill,
The Earl of Wicklow The Earl of Wicklow rose and said, that before their Lordships went into a Committee on this Act, he was anxious to offer a few observations, which he confessed, would have been appropriately introduced upon the second reading of the Bill; on that occasion, however, it had been his wish to address their Lordships, and he came down with that intention, at ten minutes before five o'clock; but, to his great surprise, he found that, even at this early hour, the Bill had been passed through its second stage, sub silentio. In saying this, however, he did not mean to impute any want of courtesy to the noble Viscount (Melbourne), because he had informed the noble Viscount, that it was not his intention, nor that of any other person as far as he knew, to offer any opposition to the measure. He did not, however, suppose, that the noble Viscount himself would have proposed the second reading of a Bill so important, without addressing some observations to their Lordships; and if he had supposed, that the noble Viscount would have been thus silent, he should, circumstanced as he was, have decidedly felt it incumbent upon him to offer a few remarks, and to lay before them a brief statement concerning the operations of the Act. When the question was brought before the House last Session, he had declared himself decidedly hostile to the Bill introduced to amend the law by the noble Viscount. But he did not entertain the same feeling towards the Bill at present before their Lordships, because, although the title was the same, yet was it completely changed in the principles and in the details. And this simple fact of the noble Viscount's having now brought in a Bill, so different from that against
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which he (Lord Wicklow) had declared his opposition, was in itself a complete refutation of the assertion of an anonymous and mendacious scribe, who, in a pamphlet, which he presumed to call Friendly Advice to the Peers, but which was really written solely with the purpose to insult and to intimidate their Lordships, had stated that the opposition he had thought it his duty to give to the Bill of the noble Viscount, last Session, was dictated by factious motives, and the desire to thwart his Majesty's Ministers in their proceedings with respect to the measures of Reform. These circumstances, the charge made against him and the clamour directed against this Bill in Ireland, made it necessary that he should offer a few words on the subject, and he considered that its great importance claimed, and indeed demanded, from their Lordships generally, some serious consideration; for it was not enough that their Lordships should themselves be satisfied, that they had honestly and conscientiously legislated upon any particular question; the public also should know, that their Lordships did not legislate, and to the public their Lordships should not appear to legislate, for their own benefit, but for the good of the community. When he stated that clamour had been raised against the Subletting Act in Ireland, he did not mean to say, that this clamour should be disregarded; for he considered that it was necessary to apply a remedy whenever a popular cry was raised with just cause. But he did positively assert, that never was there a case in which clamour was so little the interpreter of public opinion as in respect to this Act. He did most positively assert, that in the bill of 1826, there was not one clause which militated against strict justice. There was not a single clause, which could produce any one of the evils which some would fain attribute to the measure. He declared that the Subletting Act was not only beneficial to the landlord in its operation, as enforcing the obligation to observe the different covenants of the lease, but actually, for the same reason, conducive to the interests of the poor. It was a measure which had been well weighed and well considered. It had emanated from a Committee of the House of Commons, where it had received the most deliberate attention; nor was it afterwards hurried through that House. It was introduced in one Session, and only carried in the

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next. It was, as he had already remarked, beneficial alike to the landlord and to the poor man; and now he might be asked from whom did the clamour proceed? He conceived that it proceeded from a party who did not themselves possess any landed property, except what they held upon leases, either granted to themselves, as was generally the case, or else inherited from their fathers. These men, then, had taken or inherited farms with certain covenants and agreements, which compelled them to take care of and properly to cultivate these farms. But, preferring to the honest occupation of cultivating the soil, the more idle and more consequential business of country politicians, they, in violation of the covenants of their lease, subdivided the land, and let it to a set of pauper tenants, from whom they extracted the last farthing to maintain the rank which they assumed as landholders and country gentlemen. Having thus, under the pretence of taking their proper position in society, violated their contracts to their landlords, their next step was, to raise a clamour against this Act, as the cause of that misery which, by their false and profligate conduct, they had themselves occasioned. They wrung the last farthing from their wretched tenants, and when distress had reached its height, and the extreme of misery had produced disturbance, these men exclaimed against the law for producing those evils which were of their own creation—evils, to prevent which was the prime object, the almost exclusive intention, of this act of legislation. Those very individuals who had, by their own heartless proceedings, occasioned all the mischief, when it becomes galling almost beyond endurance, denounce their own landlords, the owners of the soil, as the most barbarous men in the world, because there is distress on their estates, although they are by no means to blame for it—some being absent, and others, though present, unable to apply the slightest remedy; and then, as delegates at some illegal assembly, or as, perhaps, leading members of it, the persons who have themselves done all the wrong, alike to the gentleman above and the peasant below them, raise a clamour against the Subletting Act, as the origin of every evil. He positively asserted, in the presence of their Lordships and of the country, that nothing of evil could possibly result from the Subletting Act. The distress prevailing at present amongst the Irish poor, arose
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from a combination of circumstances. Amongst these he might particularly mention the disfranchisement of the 40 s. freeholders, and the view taken by the proprietors of farms of the mode of cultivating them. The proprietors had of late been anxious to disembarrass their land of the crowd of paupers, that before consumed its produce, without any adequate return; and this, he admitted, had to a certain extent been the cause of the distress throughout the country. But that this Bill had been the cause of ejecting a single tenant from his holding, upon the faith of anxious inquiry and full investigation, he positively denied. Yet, whenever a tenant was removed on any cause, be it what it might—expiration of his lease, breach of covenant, or so forth—it was immediately declared by those politicians to whom he had alluded, that the evil arose from the Subletting Act, which was framed for the benefit of the landlord, and which admitted neither protection nor security to the miserable tenant. Of the present Bill he entirely approved, as far as it went, but he thought it ought to be extended a little further. He considered, that as its object was to prevent the subdivision of lands, that protection which it gave to the farms let by the proprietor of the soil, ought to be continued beyond the life of the lessee. According to this Bill, if the lessee died intestate, or if he willed it to his children in any number, that very sub-division would take place which it was the object of the law to prevent. He maintained, too, that this would be no hardship, because, if a man took a farm with a clause absolutely prohibiting sub-division, now or hereafter, or under any circumstances, he could not complain of being compelled to adhere to an engagement into which he had knowingly and willingly entered. He was especially desirous to have this addition made to the Bill, and he was anxious to send it to the other House as free as possible from blemish, knowing the troubled sea on which in its transmission there it was sure to be cast—the clamour with which it would be met, and the desperate opposition it would encounter from certain individuals, and the little chance it had of obtaining from them even a fair hearing.
Viscount Melbourneexplained, that it was not from any want of courtesy he had had the Bill read a second time, at so early an hour, He had declined speaking

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on it, because he understood it was to be suffered to pass without opposition, and because he did not, under these circumstances, wish to enter upon a statement of technical details. He entirely concurred with the noble Lord in all the statements he had made, and all the opinions he professed, excepting that which led the noble Lord to wish for an additional clause to restrict the lessee from willing the farm to his children, or from its being divided, if he died intestate. He could not agree to a measure so forcible—he could not, however anxious he was to carry into effect the principle of the Bill, interfere with what were considered and regarded as the just rights of all men. This would be paying too dearly for any advantage which might be acquired by the clause. He entirely agreed with the noble Lord as to the nature of the clamour which had been raised, and as to the falsehood of attributing any portion of the distress and disturbance which prevailed, to the Sub-letting Act. He admitted, that the Bill now before their Lordships differed, in many respects, from the last; and this he accounted for, by the fact of his having given the subject more consideration, and from his being animated with the desire to make it as perfect as possible.
The Earl of Westmeathobserved, that great clamour had existed on the subject, a clamour raised for the most abominable objects.
Lord Plunkettobserved, that the object of the measure had been so fully explained by the noble Earl opposite, that it left him little to say. As, however, he had been the instrument of bringing in the Subletting Act, he might observe, that it was true, that a senseless clamour had been raised against it, but it had proceeded from those who concealed their private interests under the mask of affording protection to the lower classes. The great object of the Bill was, to give the landlord that protection to which he was entitled from the nature of his contract with his tenant. It was also intended to prevent the party who might become a sub-tenant, from being harassed by the distress of two or three landlords instead of one. The case they had to provide for was, to give the landlord the power to go over all his property for his rent, and he could exercise it in all cases except those where he might himself have given permission to his tenant to devise The former bill proceeded on the presumption,
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that he had given that power, in all cases where he had not expressly reserved it; but, in this, all the benefits of his covenants were reserved to him, unless where he had given written permission to his tenant to sub-let. Where he had not given that authority, he could go to the subtenant, and his receipt was valid against he claims of any intermediate landlord, for all power of distress was, in such circumstances, taken away. He would further maintain, that if the proposition of the noble Earl, to take away the power of devising in portions, were adopted, it would destroy the effect of the Bill; and, instead of rendering it, as the noble Earl imagined, more palatable elsewhere, would have a directly contrary effect. He should feel it his duty, therefore, to oppose any such proposition.
The Earl of Wicklowsaid, the eighth clause allowed the lands of a bankrupt or insolvent, to be passed to his assignees.
Lord Plunkett: In that case, they would be liable to all the covenants in the original lease.
Bill went through the Committee, and reported.