Lords Sitting of 2 May 1862

MINUTES.
PUBLIC BILLS.—1a Saint Giles-in-the-Fields Disused Burial Ground.
2a Coventry Poor Act Amendment; Ecclesiastical Dilapidations; Exchequer Bonds (£1,000,000).

ECCLESIASTICAL DILAPIDATIONS BILL.

  SECOND READING.
  Order for Second Reading read.
  THE ARCHBISHOP OF CANTERBURY moved that this Bill, which, had for its object the amendment of the law relating to ecclesiastical dilapidations, be now read the second time. The right rev. Prelate said, that the details of the measure were better fitted for consideration in a Select Committee than in the whole House, and he therefore proposed, should the Bill receive a second reading, to refer it to a Select Committee.
  LORD ST. LEONARDSunderstood, that one of the objects of the Bill was the appointment of surveyors of dilapidations all over the kingdom, and he feared that when once a large body of surveyors were appointed they would be sure to find a great deal of business for themselves. He thought that the present practice in respect to dilapidations was simple enough, and that it hardly led to any litigation, though the law might be advantageously amended in two particulars. For instance, when money was paid for repairs by an outgoing clergyman, there were no means of compelling his successor to apply the money to the repair of the rectory house. The law might be so altered as to compel the new incumbent to expend the money he received in repairs, producing the bill and receipt to the archdeacon. Again, when repairs were requisite in consequence of damage done by tempest, flood, or fire, he conceived that the cost ought to be thrown entirely on the clergyman who happened to be the incumbent at the particular time, and not be a charge upon his successor.
  THE BISHOP OF LONDONsaid, that the subject of the measure now before their Lordships had very much occupied the attention of the clergy during the last six months. Therefore, although he concurred that it would be proper to refer this Bill to a Select Committee, yet, as some confusion might arise in the minds of noble Lords between the present measure and one which he was—he might say, accidentally—the means of introducing last session, their Lordships would perhaps allow him to make some remarks upon the points of difference between the two Bills. The noble and learned Lord had pointed out how desirable it was to ascertain the opinions of the clergy generally upon a matter which so much concerned their interests. He was certain that the right rev. Prelates on that bench

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  would not move a step without securing the concurrence of the great body of the clergy. With this view, on the last night of last session the most rev. Primate had intended to place a Bill on the table of their Lordships' House, in order that it might be printed and circulated through the country during the recess; but in the unavoidable absence of the Primate the duty of introducing the Bill devolved upon him. That Bill was intended rather to ascertain the views of the clergy upon the subject than for the purpose of originating any distinct legislation in accordance with the provisions of the Bill. In consequence of his having introduced it, his correspondence had been increased not a little during the recess. He had received one document signed by not less than 400 clergy in various rural deaneries; a petition had also been drawn up, signed by the clergy of Sion College; and he had received almost innumerable private letters, which fully expressed the feeling of the clergy upon the whole question. He felt no surprise on finding that the provisions of that Bill were not very acceptable to the clergy, because it was framed as a compulsory measure, and because it was thought that a thoroughly comprehensive measure could not be put in force without some intrusion into the privacy of the clergy, and without the imposition of burdens which tenants for life were not usually called upon to bear. Although, however, it was considered by the clergy that it would be bettor for them to bear the ills they had than to adopt so stringent a measure as that proposed last summer, yet they seemed to be unanimously of opinion that if the evils under which they laboured could not be entirely cured, they might at least be mitigated by some measure which should produce an improvement in the present law. His noble and learned Friend might make light of the difficulties which existed in the way of remedy, because it did not appear that much litigation had arisen on the subject of dilapidations. But, from the sentiments which were contained in the numerous letters which he had received, he was sure that if much litigation had not taken place it was not owing to the absence of cause, but rather to the forbearance of the clergy themselves. The present evils affected both the incoming and the outgoing incumbent, or his representatives, the patrons, and the Church generally. The evil was sometimes so manifest that they were told
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  that it must arise from a neglect of duty upon the part of the clergy to keep their dwellings in a proper state of repair. No doubt the poverty of the clergy caused a certain amount of neglect; but the letters he had received rendered it abundantly evident that the chief portion of the evil arose from the present uncertainty of the law of dilapidation, which rendered clergymen quite uncertain whether they were doing their duty or not. The noble and learned Lord stated that the number of surveyors which the Bill proposed to establish would be found an evil. But the number of surveyors at present employed was far greater than was required; and one object of the Bill was, in reality, to limit the number of surveyors, and to establish some recognised principle upon which the surveys should be made. At present there were two surveyors required in each instance to establish what the amount of the dilapidation was, and these might entertain widely different views as to the nature of dilapidation. It was now proposed that there should be only one surveyor for each diocese or archdeaconry, so that one uniform view as to what were dilapidations might prevail throughout. He was certainly not going beyond the fact when he stated that where the outgoing incumbent employed a local surveyor, who naturally took a low estimate of what was to be put down for dilapidations, the repairs were put down at £50 or £100; while, perhaps, the incoming incumbent employed a surveyor from London, who put down a sum not to be expressed in less than four figures. In one particular instance, of which he was cognizant, a surveyor employed by the representatives of the outgoing incumbent had estimated the value of the repairs at about £200, while the surveyor of the incoming incumbent considered they could only be made at a sum considerably exceeding £1,000. It was perfectly true that no litigation followed, but one might easily conceive the inconvenience such claims might give rise to. The outgoing clergy-man would in all probability employ a surveyor from his own district, while the incoming clergyman would bring one from a distance; and thus the most incongruous claims might be made, which, if persisted in, could only be settled by the intervention of a suit in Court. By the proposed change a limited number of experienced surveyors would take the place of a much larger number of inexpe-

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  rienced men, and a general code would be established throughout each diocese as to what was to be understood by the term dilapidations, and what was the degree of repair in which a house ought to be kept. There were no less than 8,995 parsonage houses in England, and the sum expended by Queen Anne's Bounty in adding to parsonage houses was £50,000 a year, besides which £25,000 was devoted to that purpose from other sources. If this expenditure of £75,000 per annum were estimated in the ratio of the value of the principal, the magnitude of the interests concerned might be appreciated. He thought he should not be far out of the way in estimating, at a rough calculation, that £10,000,000 of property was represented by these houses. Besides the patrons, the great body of the parishioners were interested in the question. All modern legistion had recognised what had been taught by experience—namely, that it was most desirable for the efficacy of the Church system that there should be a resident ministry, which could not be well secured unless steps were taken to place the law on the subject of Ecclesiastical Dilapidations on a proper and equitable footing. It was a most objectionable thing that any incumbent should have, on his first entrance into an incumbency, to begin a dispute with his predecessor or his representatives. Perhaps the former incumbent had died, leaving a widow and children. For the incoming clergyman to engage in a litigation with the widow and orphans could not but be injurious to the interests of the Church, and be productive of great misery to the representatives of deceased clergymen. The present Bill, which had been drawn up with great care, and with great deference to the opinion of the clergy, proposed that wherever an incumbent chose to put himself under its operation there should be a quinquennial survey by the authorized surveyor, and that so long as the House was kept in that state of repair which should be deemed necessary by him, the matter in case of dispute being subject to an appeal to the Bishop, the outgoing incumbent or his representative should not be liable to any further claim for dilapidation. The incumbent would thereby be saved from the uncertainty so dangerous to a man of small means. The Bill proposed to confer a real instead of a nominal power on Bishops and Archdeacons, and it would be their duty to see that the repairs ordered were carried out, and that the
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  rights of the Church were conserved in case of obvious neglect. It was very desirable that some definition should be given to the word "dilapidation," if possible. This he knew was a most difficult thing to do, and was quite beyond the power of the episcopal Bench; still, he thought some of the noble and learned Lords who would, no doubt, be upon the Committee, might be able to assist them, and would be able to settle a definition. If they should succeed in doing so, they would confer a very great boon on the clergy. Practically, among the experienced surveyors of the metropolis and some other places, the term "dilapidations" had a meaning that was pretty generally understood. It was said that a difficulty would arise from the necessity of drawing a distinction between ordinary and extraordinary repairs, but such a difference really existed already. At present all "dilapidations" were charged as "ordinary repairs." If the incoming incumbent desired to make improvements in his house, he was authorized, with the consent of the Governors of Queen Anne's bounty, to borrow money for such purpose under the head of "extraordinary repairs;" so that there really was such a distinction at the present moment. The Bill, he thought, would place incumbents generally in a better position in this respect. Another matter of importance was this:—it might happen that an aged man or a bachelor only required a small house, or preferred to live in a poor one, and enjoy the interest of the money, leaving the principal to accumulate for his successor. A clause had been introduced into the Bill to meet such cases as that, and it was proposed, where an incumbent chose to put himself under the quinquennial survey, instead of calling upon such a person to put the house in order, to require him to pay the money necessary for the repairs into a fund, he receiving the interest, while the incoming incumbent would be secured against loss, and the peculiar views or desires of the existing incumbent would not be interfered with. Their Lordships, he knew, would consider a Bill which affected the interests of the clergy generally, and so large a number of the laity, as one of primary importance, for they were as much interested in the welfare of the Church as any one of his right rev. Brethren on the episcopal bench. There were two ways in which to benefit the clergy whose means were small. One was to increase those means, and the

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  other was to diminish their burdens. He looked upon the Bill as one which would produce an equitable adjustment of a difficulty which pressed hardly upon the clergy; and he was sure that if their Lordships could devise some means whereby the law of dilapidations could be made equitable and intelligible, the clergy would feel deeply grateful. There was one more observation which he would make. A great deal of their ecclesiastical law was now in name one thing, in practice another. Nothing was more difficult than to ascertain; how far the theory of that law was in accordance with the reality, and capable of being carried into effect. It would be a boon to the clergy and others if they were able to make the practice of ecclesiastical law correspond with the theory in respect of dilapidations."
  LORD PORTMANconcurred in what I had been said as to the difficulties of this subject; but no one who looked at this Bill could fail to perceive that the principle which their Lordships were asked to affirm had never been affirmed hitherto by either House of Parliament. If they passed this Bill, they would declare that not one of the existing interests should be touched by its provisions;—the measure would reserve intact all the interests of the existing clergy and of the right rev. Bench, and direct all its provisions to their successors. He thought that was a very great objection to the principle of the Bill, There was another objection which ought also to be considered by their Lordships. By the Bill introduced last year by the right rev. Prelate it was proposed, as he understood, that the cost of working this measure should be defrayed by a fund raised from the whole body of the clergy, But by the present Bill it was proposed that each Bishop in his own diocese should settle the mode of payment for his diocese. The amount of the fees and the mode in which they should be managed were entirely to be settled by the Bishop. That would lead to a variety of systems, and give rise to much difficulty and dissatisfaction. The mode of valuation was also highly objectionable, and had done much to frighten the clergy, because, on the one hand, a London valuer might be sent down who would assess at thousands, where a local man would assess at hundreds. As to "dilapidations," no one could define what the word meant, and there would be a constant difficulty in deciding what were "ordinary," and what were
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  "extraordinary" repairs. He hoped their Lordships would bear in mind the suggestions of the learned Commission of 1832, which included among its members all the most eminent men of the day. He would recommend their Lordships to send the subject to a Select Committee, unfettered by the provisions of the Bill then before the House.
  THE LORD CHANCELLORsaid, that many of the remarks of the noble Lord who had just sat down were well founded. The Bill related to many matters which were undoubtedly fit to be considered by a Select Committee; but the course the noble Lord proposed would preclude the possibility of any legislation on the subject in this session, and such a delay was not at all desirable. Speaking from experience, he could say that frequently the want of such a measure had caused great individual suffering and injury to the Church. Cases were reported of livings of no great value upon which the houses were left in a state of ruin by the deceased incumbents, who had died leaving no means of discharging the obligation of repairing them. The principle of the Bill was very different to what the noble Lord (Lord Portman) represented it to be; the principle of the Bill, he took it, was to do away with the great uncertainty which existed on the subject of dilapidations. The noble Lord spoke quite accurately as to the theory of the law, but his observations on that point were anticipated by the right rev. Prelate, who showed that there was a vast difference between the theory and practice of the law. Unfortunately, from peculiar circumstances in our history, a great part of the theoretical ecclesiastical law was left without any means of adequately carrying it out. On the subject of "dilapidations" there was the greatest uncertainty. In the first instance, dilapidations were assessed on behalf of the incoming incumbent, who received a certain sum of money, which, perhaps, he did not apply very honestly, and vacated the living after two or three years; and all the costs of the dilapidation, then fell on the new incumbent. By this great wrong might be done to individuals from no fault of their own, and there was no adequate remedy. The principle of the law should be that every incumbent should pay for such dilapidations as accrued during his incumbency. But who was to ascertain that? The principle of the Bill was intended to meet a confessed evil. Whether the machinery was adequate, or

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  the remedy sufficient, would form a proper subject of inquiry before the Select Committee; and if that inquiry were limited to points in immediate connection with the Bill, the Session might be distinguished by the passing of a measure of great humanity and of great necessity for the purpose of doing justice to the clergy, and above all, of doing justice to the Church itself.
  THE BISHOP OF LINCOLNsaid, that the noble Lord who had raised objections to the Bill, must have misread the clauses; for, in fact, the Bill was intended to remedy the very evils of which the noble Lord complained. The noble Lord seemed to think that under this measure there would be a danger that there would not be a uniformity in the assessments; but this Bill provided that surveyors should be elected by the clergy and the rural deans of the diocese, and not appointed by the Bishop, and these would be the only surveyors employed. But although the Bill would, to a great extent, remedy the evils of the existing system, he thought it was defective, in respect that it did not include the existing generation of incumbents. In all cases except one—when complaint was made to the Ordinary, which would very rarely be done—it was entirely optional to existing incumbents whether they would, or would not, put themselves within the operation of the Bill. He thought the clauses exempting them from the operation of the Bill should be struck out. Another subject was that of fixtures. The law with reference to them might or might not be ascertained; but practically it was unknown to the incumbents, and was the cause of more disagreements than anything else. He would suggest, therefore, that the Committee should inquire as to the law relating to fixtures, in order that it might be made known.
  VISCOUNT DUNGANNONwas satisfied that nothing could be more objectionable than the law on this subject as it now stood, and that therefore some legislation was required. He hoped, therefore, the question, would be referred to a Select Committee, in order that the law might be put in such a state as would put an end to the present state of doubt, dissatisfaction, and alarms, in respect of dilapidations. On the question of fixtures, to which the right rev. Prelate had referred, there existed considerable anxiety; and many of the clergy were most anxious to know what were dilapidations
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  and what were fixtures. He rejoiced that the time had arrived when this very serious question could be calmly and dispassionately considered.
  THE BISHOP OF OXFORDsaid, he was anxious to say a single word as to what fell from the noble Lord (Lord Portman) as to what was the principle of the Bill, and could or could not be altered in a Select Committee. He differed entirely from the noble Lord on that point, for he entertained a strong opinion that whatever now was made law in regard to this matter should include existing incumbents, and that they should not seek to impose on their successors that which they would not think it fair to impose on the existing clergy. He thought that the alteration of the law should apply to existing incumbents. The principles of the Bill had been carefully considered and formally agreed upon by the right rev. Bench. The results of their deliberations were then handed to legal gentlemen to be drafted into a Bill; but his own opinion was, that this operation had not been very successfully carried out, and that things had been left out and others had been inserted to the injury of the Bill. He trusted that in Select Committee very considerable alterations would be made—not in the great principle, which was that the law should be amended by preserving the right of a successor to a benefice without injuring those of the previous holder—but in certain details. He would add that he thought that it would give great satisfaction to the clergy if they could become aware of the kind and considerate manner in which their Lordships had entered upon this subject, and of the amount of interest which had been evinced in it.
  Motion agreed to.
  Bill read 2a accordingly, and referred to a Select Committee.
  And on Monday next the Lords following were named of the Committee:—

  L. Abp. Canterbury

  V. Stratford de Redcliffe

  Ld. Chancellor

  L. Abp. York

  L. Bp. London

  D. Devonshire

  L. Bp. Winchester

  E. Derby

  L. Bp. Oxford

  E. Cowper

  L. Bp. Lincoln

  E. Stanhope

  L. Portman

  E. Carnarvon

  L. Overstone

  E. Romney

  L. St. Leonards

  E. Ellenborough

  L. Chelmsford

  V. Dungannon

  L. Taunton

  House adjourned at half-past Six o'clock, to Monday next, half-past Eleven o'clock.