HL Deb 11 July 1843 vol 70 cc904-9
The Earl of Aberdeen,

on moving that the House again resolve itself into committee on the Church of Scotland Benefices Bill, said, that it might be convenient for him to state to their Lordships that it was his intention to agree to the amendment which his noble and learned Friend opposite (Lord Brougham) had announced that he meant to propose on bringing up the report of this bill. Whatever might be his opinion of the law, it was impossible to deny that doubts existed on the subject—doubts which became important in consequence of the opinions expressed by the noble and learned Lords opposite, whose opinions must always have great weight with their Lordships; and he, therefore, felt that it would not be improper, on his part, to accede to the amendment proposed. At the same time, he retained the opinions he had already expressed on the subject.

House in committee.

Lord Campbell

wished to ask the noble Earl whether he renounced the whole of the declaratory part of the bill, and meant to strike out so much of the preamble as had reference to the declaratory nature of the bill? [The Earl of Aberdeen: Certainly not.] Then it was his duty to declare to their Lordships, that in his opinion, the bill was now more preposterously absurd than it had ever been. What was the effect of the bill as it now stood? It declared that by the ancient law of Scotland, the congregation had the power to object 'to the presentee, and that the presbyteries and other judicatories might cognosce that objection; but that they had no power to give effect to their judgment. So that the bill would declare the right of grumbling on the part of every congregation in Scotland—[The Duke of Wellington: No doubt about that.]—but that the Church of Scotland had no right to enforce their adjudication. The preamble stated that it was expedient to declare that the Church had the power to decide; but when they came to the bill itself there was only a declaration that the congregation had the power to object, but that the Church had no power to decide. The preamble was, therefore, entirely at variance with the enacting clauses. He should move the omission of the following words in the commencement of the second section:— The presbytery or other judicatory of the I Church before whom such objection shall be stated and referred to, shall, in cognoscing and determining the same, be entitled to have regard to the whole circumstances and condition of the parish, to the spiritual welfare and edification of the people, and to the character and number of the persons by whom the said objections or reasons shall be urged. Whether this was an enacting or a declaratory clause, he strongly objected to it. According to the last resolution of the noble Earl, this was not to be a declaratory, but to be enacting. Therefore this was to confer a new power upon the Church. The whole of the words he had quoted were either useless, or they were mischievous. If it was necessary to give the congregation power to object, it was equally necessary to give the Presbytery power to adjudicate. But if they possessed that power already, it was unnecessary to set forth, in an act of Parliament, what were their duties, or to give them any additional powers. The first part of the passage was, in his opinion, unnecessary; but the latter part of the passage would be most mischievous. How could the validity of any objection to the presentee depend upon the number of those who made it, or upon the character of the objectors? This part of the measure was, in fact, non-intrusion. It was to say, that if an objection, however groundless, were urged by a large number of the congregation, then the Presbytery must give effect to it. If it were objected that the presentee was immoral, or that he was not a good preacher, or that his prayers were not edifying, or that he read his sermon, or that he had not a good voice, or that he laboured under any infirmity—whether the objection were made by one or by many, must he wholly immaterial. The Presbytery would merely inquire whether the objection was founded in fact or not; and they would either sustain it or reject it. But the other part of this clause was more objectionable still. The Presbytery were to look to the character of those who made the objection. Would not this be an alarming power to give to the Presbytery and other judicatories of the Church of Scotland? They were not merely to look to the character of the presentee, but to the character of those who objected to the presentee. They were to hold an inquisition into the character of every person who made an objection. They were to look into his private life, and make domiciliary visits to ascertain whether he had private worship —whether he properly catechised his children—whether he travelled by railroad on a Sunday—whether he attended a funeral on a Sunday—whether, in fact, he did or abstained from doing that which was considered laudable or censurable in the opinion of any of the members of the Presbytery. This was a power wholly insufferable. It was a power which must lead to great abuse. It was a power which was never enjoyed or even claimed by the Church of Christ since the Christian religion had been founded in the world. Nothing of this sort occurred before the Reformation, neither in the Greek Church, nor in the Roman Church, and it was a power, moreover, which was wholly unnecessary. He shoald therefore move that the words he had read be omitted from the bill.

Lord Brougham

could not altogether agree with his noble and learned Friend. He and his noble and learned Friend had hitherto voyaged together in this trouble-some navigation without the slightest discrepancy of opinion; but now he could not agree with his noble and learned Friend. He (Lord Brougham) had, in his Slave Trade Bill, followed the same course as the noble Earl in regard to the word "declare," which he had taken out of that bill, but certainly not thereby giving up his opinion as to the construction of the act of 1824, but, on the contrary, steadily maintaining it. Doubts, nevertheless, having arisen, he did not seek to make a declaratory act having a retrospective effect in punishing parties who might have offended twenty years before, but using the word "enact" as having a prospective sense. That was the case in the present bill. The law Lords objected to the use of the word "declare," because it assumed their judgment to be wrong, while the word "enact" left the law as it was. He had little hope that the bill would either reclaim those who bad already seceded, or prevent secession in future; but at the same time he trusted that he might be wrong in his opinion, and that the noble Earl opposite might be right.

Lord Cottenham

said this was not the time to discuss the first clause, for it had been already passed, and notice had been given to propose an amendment on the report. The amendment of his noble and learned Friend would render the appearance of the first clause so peculiar as being declaratory that he trusted the noble Earl would not struggle for the retention of the word "declare." The objection was to the complicated provisions of the clause. Twenty different persons might object to a presentee on twenty different grounds, each having his own reason. These the presentee must answer, and all this contest must go on before the presbytery. That was not all, for each objector was liable to be tried before the presbytery, on the ground of his character. He hoped that the proposition of his noble and learned Friend (Lord Campbell) would be adopted; for although it left the bill objectionable, it yet removed a glaring objection.

The Earl of Haddington

said, that if it would gratify the people of Scotland that this declaration should remain in the first clause, he trusted their Lordships would not consent to omit it. He denied that the clause gave facility to frivolous object- tions; and on the score of investigation into the characters of the objectors, he contended that the provision did not give vexatious and inquisitorial power, for their characters would be a matter of notoriety in the parish.

Their Lordships divided on the question that the words proposed to be omitted stand part of the clause. Contents 31; Not-contents 14: Majority 17.

List of the NOT-COUTENTS.
DUKE. Auckland
Sutherland Fortescue
LORDS. Cottenham
Campbell Clanricade
Brougham Zetland
Monteagle Kinnoul
Duncannon Sudeley
Denman Colborne

Clause agreed to.

On the 5th clause,

Lord Campbell

remarked that the clause, as it stood, would be construed to give what the Church of Scotland called liberum arbitrium, the power of making objections of a general nature, so as entirely to annul the jurisdiction of the civil courts. Now, he wished to preserve the power of the civil courts, and limit that of the Church courts. He therefore should propose an amendment which should in substance enact that if the presbytery, or any ecclesiastical jurisdiction of the church should decide that a presentee must be rejected, on any ground that he was unfit generally, or unfit for the particular parish, that must be considered an excess of jurisdiction; and the patron, presentee, or any person injured by that judgment, should have a remedy by appeal to the civil courts. The noble and learned Lord moved accordingly.

The Lord Chancellor

objected to the amendment as unnecessary. Certain jurisdiction and authority was given to the presbytery in precise terms by the act of Parliament. If they did not conform to the act, and exceeded the powers given to them, the civil courts had a right to interfere. It was quite unnecessary to enact anything of this kind; by doing so they would seem to throw a doubt on the right; and if they did not take care to enact it in very full and ample terms, they would narrow the jurisdiction of the civil courts, instead of maintaining it untouched.

Lord Cottenham

said, that the civil courts should interfere, in the event of the presbytery exceeding their powers, was admitted on all hands. The clause said that it should be in the power of the patron, presentees, or objectors, to appeal from any judgment pronounced by the presbytery, which appeal should be exclusively to the superior courts. If the presbytery exceeded their jurisdiction, and rejected the presentee on any ground not within the scope of the act, a civil injury was sustained, and the person aggrieved had the same right to a remedy as he would have in any other case. What possible objection could there be to insert words providing that that right should not be excluded by this bill?

The Earl of Aberdeen

said that, in case of an appeal against the judgment of a presbytery, the right of appeal, by the constitution of the Church of Scotland, ought to be exclusively to the superior Church Courts. But there could he no doubt whatever that any patron or presentee might by action of declarator, bring his cause before the Court of Session, and have it found whether or not the presbytery had exceeded their powers in the particular case—whether they had acted within their competency as a judicatory of the church, or had not. There was no possible reason for introducing these words, as they would tend rather to narrow than to confirm this right.

Amendment negatived.

Bill went through committee.

The House resumed. Report to be received.

Their Lordships adjourned.