HL Deb 19 June 1857 vol 146 cc3-16

LORD REDESDALE rose, pursuant to notice, to call their Lordships' attention to the circumstances attending the resignation of the Bishop of Norwich. Their Lordships must feel that, after what took place in the debates last year concerning the resignations of Bishops, it was impossible that they should pass over the vacation of a see without the intervention of Parliament, and the succession of one Bishop to the seat of another in that House, without some step being taken to ascertain from those who were principally responsible for the proceeding, on what grounds they had acted and what they conceived to be the law which governed them in these cases. Their Lordships would recollect, that during the debates concerning the resignations of the Bishop of Durham and London last year, doubts were expressed whether a Bishop had any power to resign, and it was admitted on all hands that no provision in the nature of a retiring pension could be made without the sanction of Parliament. For his own part, he thought then, and still believed, that any arrangement for resigning upon a retiring pension settled beforehand partook strongly of the character of simony. It was felt that there was some objection to the proceedings then under discussion, and a promise was given by the Government that a measure should be introduced to make a fixed and permanent provision for resignations of this kind. In that position the question still remained. Towards the close of the Session of last year, in the course of a debate, it was stated that the Bishop of Norwich, feeling himself unable to discharge the duties of his see, was anxious to resign if an arrangement could be made for that purpose; consequently the state of matters connected with the See of Norwich was known so far back as last year. When the Parliament met early in the present year; it was then stated by the Government, on being asked their intentions on the sub- ject, that a Bill upon this subject was prepared, and that it would very shortly be laid before Parliament. Circumstances then occurred which led to a dissolution of Parliament, and when that was impending it was felt that it would be useless to introduce a measure which could not then be passed into a law, and therefore no steps were taken to settle this question. Just at the time Parliament was dissolved, it was announced that the Bishop of Norwich had resigned, and that his successor had been appointed. The first question which he thought it important to settle was whether, according to the law, a Bishop could resign. He was not himself disposed to dispute that the Bishop had such power, but considerable doubt existed on the subject, and he did not think that that doubt had been at all lessened by the alterations which had been made as to the seats of Bishops in that House; because the effect of the resignation of any Bishop was to introduce into that House another whose title to sit would depend entirely upon the legality of the vacancy. Supposing it, however, to be perfectly legal for a Bishop to resign, it must be admitted that it was desirable that some legislative regulations should be made, defining the terms upon which that power should be exercised; because, looking at the peculiar circumstances which had attended the resignation of the Bishop of Norwich, their Lordships must feel that there might arise in regard to it certain suspicions to which the Church ought not to be subjected. Nothing could be more dangerous to the interests of the Church than that anything approaching to political feeling should enter into the appointment of Bishops; and it must be admitted that when a resignation took place at a time when Parliament was dissolved, on account of a vote of the other House, which the Prime Minister declared to be a vote of want of confidence in the Ministry, and when the continuance of that Minister in office and his power to appoint a Bishop depended upon the returns about to be made to the ensuing Parliament, their Lordships must feel that a resignation made under such circumstances—he did not say that it was peculiarly so in the present instance—did give to the appointment of the successor a political complexion, which it was most undesirable should attach to it. He therefore thought it most desirable that some legislative provision should be made to prevent a resignation taking place in a manner so sudden and so summary as that in which the retirement of the Bishop of Norwich occurred. One thing had given him the greatest satisfaction, and that was that in the case of this resignation there was no arrangement, and apparently no intention of making an arrangement, for a retiring allowance. It was clear that the resignation had been purely and sincerely made, and that it was made in a manner which reflected upon the Bishop the greatest credit, and removed from his resignation any imputation which might otherwise have been cast upon it, that it was made to favour a particular Minister. He sincerely trusted that in any general measure which might be introduced upon this subject, no attempt would be made by retrospective enactments to give an allowance to the late Bishop of Norwich. Such an attempt would deprive his resignation of its sole virtue of having been made without any understanding that he should receive a retiring allowance. Having brought this subject before their Lordships, he trusted that they would hear from the noble and learned Lord on the woolsack what was the law with regard to the resignation of Bishops, and would receive from some Member of the Government an assurance that it was their intention to proceed by some legislative enactments to regulate the retirement of Bishops who were unable to perform their duties, and the making provision from some ecclesiastical fund for their support during the remainder of their lives.


said, he apprehended that there was not the least doubt that according to law a bishop had power to resign, although it was true that in the case of a bishop, the metropolitan, and in the case of a metropolitan, the Crown, must accept that resignation before it could take effect. Upon that subject he had no doubt whatever; but as his noble Friend had given notice of this question, he had thought it right to be prepared with authorities as to the law. To refer first to the most popular authority. Blackstone, in his Commentaries, speaking of the resignations of the clergy, said— All resignations must be made to some superior; therefore a bishop must resign to his metropolitan, but an archbishop can resign to none but the King himself. The same statement is made in nearly the same words in Burns's Ecclesiastical Law. To go backward, however, to earlier authorities. One of the greatest authorities on ecclesiastical law is Bishop Gibson, and he says— A resignation can only be made to a superior. This is the maxim in the temporal law, and is applied by Coke to the ecclesiastical law, when he says, 'Therefore a bishop cannot resign to the dean and chapter, but it must be to the metropolitan, from whom he received confirmation and consecration.' What he meant by "cannot resign to the dean and chapter" was this:—During a vacancy of the archbishopric the custody of the spiritualities was with the dean and chapter; and what Lord Coke said in the passage referred to was, that in that state of things a bishop could not resign, because he must resign to his superior; and the dean and chapter, although they had the care of the spiritualities, were not his superiors. This might satisfy their Lordships; but in addition to this, he would read them a case which occurred in the time of Queen Elizabeth or King James I., and which was recorded in Norman French. In that case it was held by Lord Coke that an alderman of a town—Boston, for instance—who was a justice of the peace by charter of incorporation, could only resign his office into the hands of a superior; and Coke went on to say, "a bishop cannot resign to a dean and chapter, but only to the metropolitan." There was not, it was true, an instance of this since the Reformation; but before the Reformation there had been several, and the Reformation made no difference in this respect. In the time of Queen Elizabeth, Archbishop Grindall proposed to resign, having become blind; but he died while the instruments were in preparation, and before his resignation could be completed. On this part of the case there could be no doubt; but he had heard another difficulty started—with no more foundation, certainly—as to what would be the consequences of the resignation. Would such a resignation, it was asked, remove a bishop from that House? There could be no doubt, he believed, on that point. There were plenty of authorities, and there was the analogous case of a translation, which, in his opinion, was sufficient to decide the point. The moment that a bishop had been translated, and confirmed in his new see, he had done that which was analogous to a resignation of his old see. That in such a case a bishop lost his right to sit and vote in their Lordships' House until he had obtained a writ of restitution of his new temporalities and a writ of summons com- manding him to sit in that House, was a matter admitting of no doubt. By accepting a new see he vacated his old see, and thus, ipso facto, lost his right to sit in the House until he obtained a new writ in his now capacity. There was one memorable instance of this, in which, if it had been possible to get out of the difficulty, there was no doubt that his predecessor on the woolsack, Lord Eldon, would have availed himself of it. During the time of the Queen's Trial, or, more properly, of the discussion of the Bill of Pains and Penalties brought in against the Queen, the House of Lords was called together for the consideration of that Bill on the 17th of August, 1820, and the roll of Parliament was called over when the House met. Among the names of the bishops present on that day was that of the Bishop of Lincoln. In the July previous, Dr. North, the Bishop of Winchester, had died, and the Bishop of Lincoln had been promoted to that see, but had not been confirmed in it; consequently his name appeared in the roll as Bishop of Lincoln on the 17th of August. On the next day, however, he was not present, and on referring to The Times of the 19th of August—for there was no mention of the matter in Hansard—he found that the Lord Chancellor, on behalf of the Bishop of Lincoln, stated— That his Lordship had been present yesterday, but that he had to-day been confirmed Lord Bishop of Winchester, and, consequently, could no longer attend as Bishop of Lincoln, nor could he attend as Bishop of Winchester until his temporalities had been restored to him. If Lord Eldon could have invited the attendance of the right rev. Prelate on that occasion, it might be presumed that he would have done so; but he felt that it was impossible, as the right rev. Prelate, having been confirmed Bishop of Winchester, had ceased to be Bishop of Lincoln, and could not sit as Bishop of Winchester until he had received writs of restitution and summons. It was perfectly clear that a resignation put a bishop in the same position as a translation. But there was a stronger analogy than this in the case of a deprivation. A case of this sort was very much discussed both in and out of the House, in the time of William III. and Queen Anne, when proceedings were instituted against Dr. Watson, Bishop of St. David's, for simony and extortion, and other high crimes and misdemeanours, before the Archbishop. The result was that the charges against Dr. Watson were established to the entire satisfaction of the Archbishop, and he pronounced sentence of deprivation. While the matter was in progress the Bishop of St. David's endeavoured to obtain a prohibition from the Court of Queen's Bench, then presided over by Lord Chief Justice Holt; who, however, scouted the notion of the want of power on the part of the Archbishop to proceed to deprivation; and there was also an application to their Lordships' House to upset Holt's decision, but that was equally unsuccessful. The result was that the Bishop of St. David's was deprived of his bishopric by sentence of the then Archbishop. His seat in their Lordships' House was consequently vacant, and a large party in that House thinking that the matter bore somewhat the aspect of a political persecution, as the Bishop had been appointed by James II., a great debate occurred, and it was moved and carried, to address the Crown not to fill up the vacancy until it was ascertained whether the Archbishop had the right to deprive a bishop of his see. A year or two afterwards, however, the see was filled up, during the lifetime of Dr. Watson, and nobody ever doubted, during the ten subsequent years of his life, that the new bishop had a right to sit in the House or that Dr. Watson had lost his right. Here, then, was the undoubted right of deprivation, and the analogies of translation and resignation, to show what were the effects of resignation. It would be absurd if the result were otherwise, for then there would be sitting on the right rev. Bench both the Bishop of Norwich and Dr. Hinds. Nor need he remind their Lordships that no man sat in that House by virtue of his being a bishop, but by right of the particular see to which he was appointed; and the moment that a prelate ceased to be bishop of a particular see, whether by resignation or by his being translated to another see, it followed necessarily that he had no longer a right to a seat in that House. With regard to the resignation of the Bishop of Norwich, it was but justice not only to that Prelate, but also to the Government to say that that resignation was entirely his own act, without the slightest stipulation or the least hope that any provision would be made for his future support. The right rev. Prelate felt that his health was in such a state as to disable him from discharging the duties of his office in a satisfactory manner, and therefore, without the smallest stipulation or even a hint that any provi- sion would be made for him, he said that whatever was the consequence he must resign an office for which he no longer felt himself qualified. His noble Friend had, however, asked why the Government had not introduced a general measure providing for cases of resignation. He could only say that all the Members of Her Majesty's Government would feel extremely obliged to the noble Lord if he would suggest a mode in which this question could be settled. The Government were quite disposed to introduce such a measure, if it could only be devised; but the difficulty was where to find the funds for the purpose. The matter was under consideration, and the Government hoped to be able to see their way clearly to a solution of it. It was a matter, however, which did not press, because there was no stipulation with Dr. Hinds that any provision should be made for him, nor had the Government received any intimation that it was the intention of any other Member of the right rev. Bench to resign.


reminded the noble and learned Lord that last year, when the measure in reference to the Bishops of London and Durham was introduced it was stated to be preparatory to a general measure. Towards the close of the last Parliament, too, the Lord Privy Seal, in answer to a question put to him, stated, on behalf of the Government, that a general measure was in preparation.


said, he could confirm the statement of the noble Earl. He himself had put a question to the Lord Privy Seal as to the intention of the Government, and was informed that they hoped soon to lay a Bill before the House on the subject.


said, he thought it right to state that he fully concurred in all that had been said by his noble and learned Friend on the woolsack as to the law on the subject. From the earliest time that he had been a student of the law he had always understood that a bishop must resign to the Archbishop, and an Archbishop to the Sovereign. Formerly the Archbishop would have resigned to the Pope; but since the Reformation, the Sovereign being for this purpose the head of the Church, the resignation of the Archbishop must be made to the Sovereign. The resignation having been accepted by the metropolitan or the Crown the see was vacant. It was not the resignation but the acceptance of the resignation which vacated the see. In the Session of last year a Bill passed that House with reference to the resignation of two bishops, but that was a Bill to enable these bishops to resign, but to enable them to retain certain parts of the temporalities of their sees after they had resigned. In the case of the Bishop of Norwich it was a simple resignation, and no Act of Parliament was necessary; but it was perfectly clear that, though a bishop might remain a bishop, if he was no longer in possession of a particular see in connexion with the Church of England he had no right to a seat in that House. He regretted that no general measure had been passed on the subject, and he expressed an opinion to that effect when the Bill relating to the Bishops of London and Durham was before the House. There could be no doubt that the Judges and the Bishops should be placed on the same footing in this respect. When no longer able to discharge their duties the bishops should have power to resign on a decent allowance, and no room should be left for bargaining between a retiring bishop and the Minister of the day.


regretted that the noble Lord on the woolsack, while stating that a general measure was under the consideration of the Government, should have expressed the opinion that the question did not press. When a Bill for the retirement of the Bishops of London and Durham was before the House last year he opposed it, and, as he had anticipated, they found it impossible to act upon it as a precedent; and now some of the facts elicited by the present discussion showed that this matter did press, and they saw the result of the course then pursued, and the suggestions then offered not having been adopted. A right rev. Prelate who found himself unable longer to discharge his duties satisfactorily had resigned his charge, and had done so without receiving any provision for the rest of his days. It was most painful to allude to the private affairs of any individual, and his acquaintance with the late Bishop of Norwich was so slight that he was hardly entitled to refer at all to his case; but he could not refrain from saying that he feared the right rev. Prelate was not in the position as regards worldly means in which he ought now to be placed. He had from a high sense of duty and honour resigned his see when he found himself unable to discharge the functions of his office; he had retired into private life without a pension or allowance of any kind, and if he had done so in poverty—though he hoped it was otherwise—the act was all the more to his honour. Now, this was just one of those cases which a general measure would have met, and he could not help thinking that the Government had failed in its duty in not having introduced such a measure. It appeared even that a measure was not to be expected this Session; and in the meantime other cases might arise of as urgent a nature as the present. When a Bill was brought in it would, of course, provide for all future cases of episcopal resignation, and no doubt they might, at the same time, provide by ex post facto legislation for the case of the Bishop of Norwich. On the question of a pension being granted by an ex post facto law to the Bishop of Norwich, he would of course exercise his judgment when the case came before them; but in the meantime he felt that a grave responsibility rested upon the Government by whose neglect this case was not provided for. The noble and learned Lord had said this subject was beset with difficulties. No doubt it was; but it was not beset with greater difficulties than had been overcome by former Governments in other cases. A bishop when unable to attend to his diocese might be empowered to appoint a suffragan bishop, as a parorochial minister now devolves his duty on a curate. Again, he saw no difficulty in arranging a scheme by which a bishop should be allowed to retire on making due representation to his Metropolitan, and should receive a moderate pension out of the funds of the bishopric, to that extent causing a diminution of the revenue of the incoming bishop. Whatever inconvenience might arise from this arrangement, he could not for a moment believe that it would interfere with the appointment of good bishops, for he had no doubt that the ablest theologians, the ablest scholars, and the ablest parochial ministers would be quite as ready as now to accept bishoprics. He must say, also, that he should not regret any arrangement that would tend to lessen the political character of episcopal appointments. He would rejoice in anything that would compel the Ministers of the Crown to look out for the best qualified men only to fill the episcopal sees of this kingdom. His great object in rising, however, was to protest against the opinion that this question did not press, and to state his belief that it pressed now more urgently than ever.


would not say that this question did not call for the earnest consideration of the Government. It had, in point of fact, been under the notice of the Government, but was not considered so pressing as other measures that occupied their attention, though but for the dissolution the Government would have brought in a general measure to provide for the resignation of bishops. The noble Duke had referred to the circumstance of the late Bishop of Norwich having retired without having arranged for any allowance. He believed that next Session of Parliament a general measure would be introduced, and he would be happy to see that measure so drawn as to provide for his case. The late Bishop of Norwich retired when he found himself unable to discharge his duties, and certainly in any measure that was brought forward he of all men should not be overlooked.


said, the noble Earl's explanation appeared to be that the Government had not yet made up its mind in what shape provision should be made for the retiring bishop. If the pension of a retiring bishop was to be derived from a charge upon the revenues of the see such a measure could not be made applicable to this case, unless there were an understanding with the bishop lately appointed, and that would be simoniacal.


had not stated that there was any understanding with the late or the newly appointed bishop. What he did say was, that on any future measure upon the subject the Government would not allow the fact of the retirement of Dr. Hinds to prejudice his interests.


wished to point out that if a retiring bishop was to receive a third, or fourth, or any other proportion of the revenues of the see after his retirement, the Government could not make any such provision for Dr. Hinds, because the revenues of the see in their entirety were now vested in his successor.


remarked upon the contradictory character of the statements of the Lord Chancellor and the Lord Privy Seal (the Earl of Harrowby) with regard to future legislation on this subject. Surely the latter noble Lord could not have been in the House when the noble and learned Lord addressed their Lordships. He (the Earl of Malmesbury) had understood the noble and learned Lord to say that no measure was in preparation, and that he would be obliged to any noble Lords on the Opposition side of the House if they would suggest one; whereas the Lord Privy Seal said that but for the dissolution a measure would have been brought in. That led to the inference that before the dissolution a measure had been prepared. Again, the noble and learned Lord on the woolsack said that no arrangement had been made with the late Bishop of Norwich; that he had no hope of receiving a retiring pension, and expected nothing. The one noble Lord said that there was not a chance of the late bishop getting a shilling, and the other held out a hope that he would receive something, If these differences and this confusion existed in the ranks of the Ministry, it would be well if they did not quit their scats during the evening, for that appeared to be the only way of avoiding a repetition of such extraordinary discrepancies.


explained that he had not meant to say Dr. Hinds had no claim to a pension, but simply that there had been no stipulation upon that point. The late bishop resigned purely and simply without any arrangement for pension. He did not think it right to state the retrospective arrangements of the Government; but of course if any general measure were introduced justice would be done to that reverend personage. He was of course quite cognizant of the Bill which had been referred to by the noble Earl (the Earl of Harrowby), which, not being so pressing as other measures, had not yet been submitted to Parliament. The measure was now nearly complete, and might be introduced in the course of the present Session.


begged to ask, in that case, why the noble and learned Lord invited his noble Friend to suggest a measure?


explained that he had only said he would be glad to hear what the noble Lord could say upon the subject, as it had been found by the Government to be one of far greater difficulty than it appeared on the first blush to be.


said, as it appeared there was a measure prepared, he had some curiosity to ascertain its nature. The only sources he had heard suggested for providing pensions for retiring bishops were the Consolidated Fund and the revenues of the sees vacated by the bishops. With regard to the first mode, he thought it would be very difficult to induce Parliament to assent to it; and as to the second, it would really be compelling a diocese to maintain two bishops instead of one. He was inclined to think that any such provision should be made from the general funds of the Ecclesiastical Commissioners, and not from the revenues of particular sees.


hoped that no measure would be hastily introduced, as upon this subject, which required mature consideration, a little delay was preferable to precipitancy. It was far better that the Government should thoroughly examine the question and bring in a Bill on their own responsibility. He, however, wished to make a few observations upon what had fallen from two learned Lords. The noble and learned Lord on the woolsack was of opinion, that the acceptance of the resignation of a Bishop created a vacancy in their Lordships' House, and referred to cases in support of that view, but did not allude to one which appeared to him (the Bishop of Oxford) to be the most important upon that point; he meant the case of Bishop Bancroft, who was not able to take his seat in that House during the interval between the acceptance of his resignation of the former see and his being confirmed Bishop of London. The noble and learned Lord had referred to the case of the Bishop of Lincoln, and had stated that that Prelate could not take his seat until he was put in possession of the temporalities of the see. That, however, was incorrect, as the seat in that House was quite unconnected with the temporalities, and only depended upon confirmation in the episcopate. The noble and learned Lord at the table (Lord Campbell) had quoted Blackstone, but that authority had rather slurred over the case of an Archbishop's resignation, saying that an inferior must resign to a superior, and there was no superior to an Archbishop except the Crown; but he did not say that therefore resignation must be made to the Crown. Before the Reformation, the Archbishop of Canterbury acknowledged the Pope as his superior, but subsequent to the Reformation all the powers which had previously been enjoyed by the Pope passed to the Archbishop of Can- terbury. His noble and learned Friend, therefore, to make out his case, must show either that the Crown was the spiritual superior of the Archbishop, or that by some statute or acknowledged church law it was enabled to accept his resignation. The only parallel case which presented itself to his mind was, the resignation of the Pope himself, of which there had been instances. The Pope, having no spiritual superior, resigned to no spiritual superior, but simply abdicated; and such, in his view, must be the course pursued by an Archbishop, in similar circumstances. Their Lordships would see that the question was a very grave one, and it might be that the suggestion thrown out by the noble Duke would be a better arrangement than any other which had been proposed. He trusted, however, that in a matter so deeply affecting the position of the Bishops, there would be nothing like undue haste, but that the Government before introducing any measure would give their best attention to it.


hoped that the general measure to which reference had been made, would not be pressed with the same extreme rapidity as the Bill of last Session providing for the retirement of the Bishops of London and Durham. He accepted the statement of the noble and learned Lord on the woolsack, that the resignation of the Bishop of Norwich was made without conditions—a statement which would free the resignation from the imputation of being a political act—although the readiness with which the Lord Privy Seal had intimated that in any general measure which might be introduced, provision would be made for Dr. Hinds, was calculated to lead to the supposition that some implied understanding did exist between the Government and the Bishop, that his case should receive consideration. He trusted that something would be done to separate the appointment and resignation of Bishops from the vicissitudes of political life.


assured the noble Lord, that so far from there having been any understanding between the Government and the Bishop, the resignation took place without qualification, stipulation, or expectation.

LORD PORTMAN rose, to say a word for the clergy generally. He could see no reason why the same provision on retirement which was made for a Bishop should not be extended to a hardworking clergyman, unable from advanced age or physical infirmity to continue the discharge of his duties. He also expressed the hope that the Government would not deal with the question in a hurried manner.