§ Order of the Day for the Second Reading, read.
THE BISHOP OF PETERBOROUGH
My Lords, the Bill to which I am about to ask your Lordships to grant a second reading to-night is an attempt to give legal effect to the recommendations of the Select Committee which your Lordships were pleased to appoint on my Motion last year to inquire into the subject of Church Patronage; and I may state at the outset that the Bill neither goes beyond, nor falls short of the recommendations of that Committee. It simply embodies the recommendations of the Select Committee of your Lordships' House on this subject. And, my Lords, if you have looked at the Report and the recommendations of that Committee, you will have observed that, while the Committee has been a large, and, I may venture to say, a remarkably representative Committee, its recommendations are, almost without exception, unanimous. There were only four divisions in the Committee, and two of these only were what might be called very close or narrow divisions. I may say, therefore, that the Bill comes before your Lordships with the almost unanimous recommendation of the Committee. It also comes before you with the almost unanimous consensus of the very competent and able witnesses examined before the Committee. It has, further, the advantage of representing the views of two Committees of the Upper and the Lower Houses of Convocation; and I think I may venture to say also that it represents, in the main, the wishes and opinions of nearly all my right rev. Brethren of the Episcopacy. Therefore, my Lords, I believe I may say that I come before you not only with my own opinion, but having that accompanied by very important and intelligent opinion on the subject. My Lords, in the first place, I think I may claim that the evidence taken by the Committee, and the Report drawn up by the Committee, do affirm the necessity for some legislation on this subject; for your Lordships' Committee distinctly states that there are serious and practical evils connected with the present system of Church Patronage, 809 and that the existing provisions of the law on this subject are very insufficient and demand a remedy. So far, therefore, the necessity for legislation in this matter is made out.
Before, however, I proceed to explain the details of the Bill, which is mainly one of details, I have to say a few words as to the principle of the measure; and I do not think I can state what that principle is better than it is thus stated in the first paragraph of the Report of the Select Committee, which is in these terms—As regards the first of these questions, the Committee are of opinion that all legislation affecting Church Patronage should proceed upon the principle that such patronage partakes of the nature of a trust to he exercised for the spiritual benefit of the parishioners, and that whatever rights of property originally attached, or in process of time have attached, to patronage, must always he regarded with reference to the application of this principle. All exercise of the rights of patronage without due regard to the interests of the parishioners, should, so far as possible, be restrained by law; and the law should also aim at imposing such checks on the exercise of his choice by the patron as should prevent, as far as possible, the appointment of unfit persons to the cure of souls.My Lords, this is the principle of this Bill—that patronage is not merely and not mainly property—that it is a trust; and that if it be property, so far as it is property, "it has its duties as well as its rights," and that every patron is to be regarded as exercising a most solemn and important trust in behalf of the parishioners. In one word, the object of all legislation in respect of patronage is to secure that we shall have—not, perhaps, the best possible man, but, at all events, a good and fitting man—as the minister to whom is given the government and cure of souls. It is quite clear that if you recognize that patronage is a trust, this trust may be violated in one of two ways. It may be violated, in the first place, by an unfit appointment on the part of a corrupt patron; or, in the second place, it may be violated by an unfit appointment on the part of a careless patron. The object of legislation on this subject, therefore, is to prevent a corrupt exercise of patronage, and also to prevent a careless exercise of patronage. The law of the land has always set itself against corrupt practices—that is, against the passing of money between the patron and the presentee—against the purchase of a high 810 and sacred office for money or money's worth. The law, however, goes further, and has attempted to prevent abuse not merely in the exercise of patronage, but in the transfer of the right of patronage—that is, in the sale of advowsons or of next presentations. So that the policy of the law is not to favour corrupt patrons. Admitting for a moment, what I am not prepared to concede absolutely, that the sale of the right to exercise patronage is ever advisable, the Legislature interferes with the exercise of this right, and says that it shall not be exercised under circumstances that give undue facilities for corruption. In the next place, the law of patronage requires that there shall be fitness on the part of the presentee—that there shall be some guarantee of the fit exercise of the patronage. In order to secure this, the patron himself does not appoint, but presents his nominee to the Bishop, who is the judge of his fitness. The law on this subject, therefore, resolves itself into this—a recognition of the patron's right, but provision on the one hand against a corrupt exercise or a corrupt transfer of that right; and in the next place, provision for the appointment of good and fit men under the system of patronage; and, in the third place—and to this I ask the especial attention of your Lordships—recognition by the law of the Church and the law of the land that the Bishop is the proper person to see that the patronage is duly exercised. This latter recognition makes the Bishop the guardian of the trust as regards the parishioners; what the Bishop has to regard, before God, being the fitness of the presentee and the right of the parishioners to have a good pastor. But, my Lords, I submit this Bill to your consideration, because, in respect of each of these three things, the present state of law is defective, and needs amendment.
My Lords, I may say before I go into the details of this measure, that the object of it is not merely and not mainly to prevent the improper exercise of patronage by private patrons—your Lordships will see that its details deal very largely with public patrons. Its object is not to single out private patrons as if they were especially corrupt and especially unwise, but to require a proper exercise of patronage, whether by private or by public patrons.
811 Omitting the first three sections of the Bill, let me now point out to your Lordships, its main provisions. The 4th section provides that—From and after the commencement of this Act all do native benefices shall become presentative benefices, and shall he subject in all respects to the laws which may be in force in relation to presentative benefices and to the patrons and incumbents thereof.I had occasion last year to point out what a do native benefice is. It is a benefice to which the patron presents directly, as he might appoint his chaplain or his butler, without presenting him to the Bishop. In the next place, the person appointed to a do native does not resign to the Bishop, but to the patron. Such an arrangement affords facility for simony, while it cannot be defended by any valid argument. If it be right that the Bishop should ascertain the fitness of the presentee of an ordinary patron before he is instituted to a cure of souls, on what principle of reason or common sense is it that about 100 patrons—for there are not more than about 100 donatives—have the anomalous and dangerous privilege of putting their nominees in a cure of souls without their fitness having been tested? Either all clergymen who can acquire benefices should go into them without any testing of fitness, or there should be such a testing for all. Why 100 men should have the peculiar and extraordinary privilege of exempting their nominees from the test required of all other nominees is what I cannot see. Again, I would ask your Lordships to look at the mischievous effects of allowing the holder of a do native to resign without the leave of the Bishop—a thing which no other holder of a benefice is permitted to do. The consequence of it is this—a man engaged in the most nefarious transaction—in the most simoniacal transfer—may come to his Bishop, and say, "I want to resign my benefice." The Bishop may reply, "I shall not allow you;" but this clergyman goes off, and buys a do native for, perhaps, £20 or £30, which releases him from his benefice. In possession of the donative, he completes his nefarious transaction, and then re-sells at, perhaps, a profit, the do native to the patron from whom he purchased it, and defies the Bishop. To remedy such abuses, it is proposed by Section 4 to put donatives on the 812 footing of presentative benefices;—and this is only in accordance with a recommendation made by the Royal Commission on Ecclesiastical Courts in 1832. The Commissioners said—We are clearly of opinion that all distinctions whatever should be wholly abolished, and that donatives should be placed under the same jurisdiction, law, and authority as all other benefices. From the adoption of such a measure uniformity will be preserved in the government of the Church; and we do not anticipate any injury to the just rights of patrons or incumbents.Assuming, for the moment, that under this Bill all patrons and all benefices would be placed under one rule, the next question is, what means shall be given to the Bishop for performing the paramount duty of testing the fitness of the nominee. The Select Committee of your Lordships' House recommend—That some mode of testing the validity of the Bishop's objections to a presentee should be devised which shall be less expensive and tedious than the present processes of duplex querela and quare impedit, and which shall be equally open to the clerk and to the patron.My Lords, the Select Committe might have alluded to the jus patronatus, for there are three actions in which the Bishop may enter, or into which he may be dragged. The jus patronatus is one; but, as it is a useless process, inasmuch as it determines nothing, it is completely obsolete. It is simply a Commission by the Bishop which finally decides nothing; and therefore this opportunity may as well be taken for its removal from an obscure corner of the Statute Book. Accordingly, Clause 5 provides for its abolition, and also that no proceedings in the nature of a duplex querela shall be instituted in any Ecclesiastical Court. The duplex querela, the second process, is one by which the clerk can proceed against the Bishop; and the quare impedit, the third, is one by which the patron may proceed. Now, I do not see why the unhappy Bishop should be harassed by two different suits in two different Courts—why he should be prosecuted by the clerk in the one Court, and by the patron in another. I cannot see why the clerk and the patron, having the same interest, should not prosecute their suit in the same Court. I may mention that until the Gorham case, there was no example for 140 years of the duplex querela. By Clause 6, it is provided that— 813From and after the commencement of the Act no action of quare impedit shall he brought for the purpose of determining any question which may be the subject of proceedings under this Act.The effect of this will be only to remove from the process of quare impedit all questions relating to the fitness of the presentee. Questions as to patronage—where the right of the patron is in doubt or is questioned—will remain to be dealt with by that process. At present refusal for heresy or ignorance is tried by an Ecclesiastical Judge, as it is laid down that in such cases the Court shall write to the Metropolitan to certify thereof. It appears to me that questions as to the fitness of the nominee to institution for the cure of souls, and questions as to acts of simony may with advantage be withdrawn from the Common Law Courts. It appears to me that such questions are hardly fit questions to be tried by a Judge and jury. I am aware that this proposal meets with some disfavour on the part of some noble and learned Members of your Lordships' House; but in speaking of them I am reminded of the observation of Lord Ellenborough, that he would never think of submitting to a jury of butchers and graziers the issue whether a man could construe the Greek Testament. If you do submit these questions to a Court of Common Law, they must, as the law now stands, be taken out of its cognizance in some stage of the proceedings. So, at pre sent, there is a stage in proceedings in which, after vast expense and great delay, questions of the kind have to be submitted to a Judge in the position of the Judge to whom I propose to submit questions under this Bill. I propose that they should be submitted, in the first instance, to the Judge appointed under the Public Worship Regulation Act of last Session. The object of this provision is that we should make litigation in respect of such questions as I have indicated much less costly and cumbrous than it is at present. Let me give your Lordships an idea of what the present process is:—First, there is a trial in the Court of Commons Pleas on matters of law; secondly, there is a trial before a Judge and jury on matters of fact; thirdly, there is a reference to the Metropolitan on spiritual matters; then there is the appeal to the Exchequer Chamber; and lastly, there is the 814 appeal to the House of Lords. The process would be the same if the Judicature Act was in operation—there would be the first trial in the High Court on a matter of law; next a trial before a Judge and jury on matters of fact; then the reference to the Metropolitan on spiritual matters; next appeal to the lower Division of the Supreme Court of Appeal; and, lastly, a hearing by the first Division of the same Court. Let me state one simple and astounding effect of all this. The Bishop of Exeter resisted the appointment of an unfit clergyman—a man so unfit that he was subsequently suspended for three years,—and it took a no shorter period than nine years and a-quarter to decide that suit, which was ultimately decided in this House. My Lords, what can you expect a Bishop to do under such circumstances? Is it commonly reasonable or commonly decent that an unhappy Bishop should be exposed to this protracted agony of litigation and to terrific costs, for objecting to the institution of a man who afterwards was suspended for three years? I have now to call your Lordships' attention to the 7th clause, which is in these terms—From and after the commencement of this Act the Bishop may, if he think tit, refuse, without assigning further reasons, to institute a presentee on the ground that, having been ordained deacon after the passing of this Act, he has been so ordained within three years next before the date of such presentation, or on the ground that he is at the date of such presentation more than seventy years of age.This is not without precedent. At present a man must wait for admission to a benefice till he is 24—I propose that he should wait till he is 26—that is, till he has had some experience in the government and cure of souls. For offices in the legal profession it is required that barristers should have a certain standing—seven years in some cases and ten in others, and a clergyman cannot be made a Bishop till he is over 30 years of age. The strongest objection I have heard to the course I propose is that it will seriously interfere with the matrimonial views of young clergymen. I sympathize with the feeling in favour of early marriages on the part of the clergy; but a marriage present of a parish with 20,000 souls to a young lady on her wedding-day even in these days of profuse and expensive wedding presents is rather an 815 extravagant gift. I think it right to say that on this first provision in the clause I did not carry a very large majority of the Committee with me; but on the latter provision—that referring to clergymen over 70—the case was different. It is a provision aimed against those persons who, knowing well what they are doing, deliberately choose the very oldest or most decrepit man they can find for an incumbency in order that they may be able to sell the living over his head. I hope that when addressing your Lordships on the subject last year I did not use very strong language, and I have avoided doing so on this occasion also; but I cannot refrain from branding this putting in of an unfit man—this knowingly appointing an unfit man to a cure of souls—as a deliberate iniquity. I say there are men now serving their term of penal servitude for fraud and conspiracy who are guilty of less deliberate fraud and less odious conspiracy than the fraud and conspiracy of those patrons who thus make a corrupt merchandise of the cure of souls—of the clergyman who makes a merchandise of his known infirmities and feebleness, and the avaricious and conscienceless patron who thrusts him upon parishioners who hate and detest him, knowing that they have been sold for so many pieces of silver. This, I say, is a practice which makes the Church stink in the nostrils of many who might otherwise come within her fold. An incumbent, aged 75 years, came to myself within six weeks after his appointment, and asked me for perpetual leave of absence on the ground of ago. The only consolation I had in connection with a transaction of the kind was that I refused the application. I ask in the 9th clause of the Bill that the Bishop may have power to refuse to institute a presentee on the ground that—he is, in the opinion of the Bishop, unable from bodily infirmity to perform adequately the duties of the benefice to which he has been presented.I think there is necessity for such a clause, because I am advised that at present a Bishop would actually have no power to refuse to institute a man on the ground of the candidate being paralyzed. But I ask your Lordships to observe that in this, as in every other case of refusal to institute by the Bishop, this Bill gives him no veto—it only gives 816 him power to object, subject to the decision of a Court of Law.
My Lords, I now come to a very important clause in the Bill which introduces a principle to some extent new. It is Clause 11, which provides that any three or more parishioners may, within a period limited in the clause, enter a caveat to the institution of the presentee. I do not see why what would be an impediment to a man's ordination should not be an impediment to his institution to a cure of souls; and neither can I see why objections to a man's institution should not be made in an open manner and duly investigated in the presence of the parties. At present a Bishop sometimes receives a private letter, in which it is stated—" We know So-and-so to be unfitted, but we trust you will not mention our names in the matter." The Bishop knows that there is no use in objecting, because the writers will not come forward, and reluctantly, institutes the clergyman. Then a letter appears in the newspapers, asking "What is the use of a Bishop?" I ask in fairness to the Bishop—I ask in fairness to the incumbent—that scandal should not be spread about in this way; but that there may be a mode by which persons who have anything to allege against the clergyman may bring it forward and have an investigation. I ask this also on the ground that it will be held in terrorem over the heads of those who would attempt the appointment of unfit persons. I ask it, further, in order that parishioners may feel that they are not sold—that we may not hear of parishioners saying—" Who bought us? We hope he is a good man, but we have no power to object." By Clause 19 of the Bill I propose that every patron on presenting a nominee shall make a declaration similar to that which is to be made by the presentee against simoniacal transactions. Why should it be regarded as an indignity to the patron if it is not so regarded in respect of the clergy? And I do not think anyone concerned in the appointment of a clergyman to the cure of souls should object to give every reasonable guarantee for a proper discharge of his share in the matter. In these days, when appointments made by the Episcopacy are so much scrutinized, I should be only too happy of an opportunity of vindicating before the parishioners any appointment I might make. 817 In Clause 20, your Lordships will observe a very important alteration is proposed in the existing law. The declaration against simony is to be abolished. That declaration is simply preposterous. It asks a man to declare that he has not committed simony, and it punishes him if he does commit it; but it does not toll him what it is—the declaration leaves him to find that out by the light of his own conscience or by the assistance of his lawyer. I ask that you shall forbid, not the name of the thing, but the thing itself. I ask that the patron and the clergyman shall declare—not that they have not committed simony, but that they have not done so and so which is forbidden by law. In the 22nd section provision is made for the punishment of those who aid and abet in a simoniacal transaction. The object of this is that the heavy hand of the law may be laid on those men who make money by a corrupt trafficking in Church patronage. To my certain know lodge honest and conscientious clergymen have been inveigled into simoniacal transactions by these men, and have not discovered the nature of the negotiations until they were already drawn on too far to retreat. By the 24th section I ask that all deeds or agreements relating to the advowson of a benefice shall be duly registered. If your Lordships were only aware of the number of "confidential" circulars sent to clergymen by these benefice-mongers you would at once see the necessity for this clause. These traffickers in Church livings state that their communications are "strictly confidential;" that "every reliance may be placed on the secrecy" of the negotiations, &c. I can compare their circulars with none others but those sent to young officers by money lenders. If livings are to be sold like horses, let the sale of them be as public as that of horses, and I only wish there could be a warranty for the honesty of the vendors. If your Lordships look to the 25th and 26th clauses, you will find provisions for preventing evasions of the Statute of Queen Anne. By these clauses payment of interest on the purchase-money of an advowson will be illegal. In the Select Committee cases were mentioned of incumbents who are also patrons of their own livings, and who sell their advowsons with an understanding or a contract that they will pay interest for the money 818 to the purchasers until they are void with a view to their own resignation as soon as they think convenient. I object to that. It is as wrong to buy a pastorate as it is to buy a judgeship. A man ought not to be allowed to buy a high and solemn office. It may be said that he does not buy the office, but only the right of presentation to it. I do not wish to introduce the ludicrous into a discussion of this matter; but the case seems to me like that of a man who buys a house with a solemn promise that he will not allow any one into a certain room in that house. He keeps that promise, but he lets to any one who will pay for it the key which gives admission to the room. But I have heard it said—" Why should not a man buy a living as a doctor buys a country practice." There is this difference—that you need not employ the doctor who buys the practice if you do not like; but you must employ the clergyman. You do not allow a medical man to purchase the post of surgeon to a regiment or to a ship. To prevent such abuses, Clause 26 of this Bill provides that the clerk purchasing an advowson shall not have the next presentation. I believe that is the only way of preventing these abuses under the present system; but I must say that my own conviction is that the axe never will be laid to the root of the evil till you entirely prohibit the sale of next presentations. There is, as I have before alleged, an essential difference between the sales of advowsons and that of next presentations. The patron who sells the advowson parts with the trust; but the patron who sells only the next presentation retains the trust with all its advantages and responsibilities, but sells to another the right of coming in and exercising that trust which he is bound to exercise himself. It may be asked, then, why I do not propose in this Bill to entirely prohibit the sale of the next presentation. My simple reason is that I was not so fortunate as to obtain the assent of your Lordships' Select Committee to that proposition. On a division on this point there was a majority of one against me. I have no wish to conceal my disappointment; but I may mention that the division to which I allude was not taken in presence of the whole Committee. Members were absent who would have voted with me; but having moved for the Committee myself and having acted as its Chairman, 819 I felt loyally bound not to propose anything in this Bill which the Committee did not recommend. Your Lordships can of course introduce this provision if you wish; and I may add that your Lordships will find from passages in the Report that the Committee was of opinion that certain recommendations introduced in this Bill were equivalents for such a prohibition, and that in the opinion of the Committee if those recommendations should fail, then the way would be open to further legislation in the way of preventing the sale of next presentations.
I trust your Lordships will be of opinion that I have brought forward no vague or crude or revolutionary measure. Certainly it has not been my wish to do so. I have studied this question as a painful study for more than two years, and in consideration of it I have been assisted by amateur legislators with some claim to a knowledge of the irregular and confused lines of our legislation on Church patronage. I believe it will be found that in this Bill the question is treated on a true and sound principle. I am afraid there will always be abuses in every system of patronage; because so long as you have men to give and men to receive you will always have to make a large allowance for the infirmities of human nature. Those who are dissatisfied with our Church patronage system are too apt to forget in the heat of their denunciation and vituperation what abuses might be likely to arise in any other system which might be substituted for it. I have no wish to substitute for the large and varied system that now exists any system of popular election. I am quite certain of this—that the Church of England, taken altogether, presents in her clergy a body of men who for integrity, piety, and a self-sacrificing discharge of the duties of their office may bear comparison with any clergy in the world. I cannot believe, therefore, that our system of patronage, however defective it may be in some respects, can be so thoroughly wrong, so thoroughly corrupt, as those who, viewing it from the outside, are pleased to say it is. I do not believe that the patrons in the Church of England and the clergy of the Church of England are that seething mass of corruption which some great persons describe them to be. I do not believe that, as a body, 820 the patrons of livings are unscrupulous men. On the contrary, I believe that, as a rule, the Church patronage of this kingdom is exercised with a conscientious sense of the duties of their trust both by public and by private patrons, and that among the latter are many men who are not only conscientious, but generous and munificent patrons who have established a right to their patronage by large gifts to the Church. I say, therefore, my Lords, that I have no wish to abolish private patronage. Because I believe that private patronage is of immense value to the Church, and because I desire to preserve it from angry, revolutionary, and unjust assaults, I wish it to be fortified by reform in order that it may have a lasting lease of life. Therefore, in the interest not merely of the private patrons, but in the interest of the Church and of the nation, which I believe are in God's providence indissolubly bound up now as they have been in the past history of the country, I earnestly desire a wholesome, wise, moderate, and yet efficient reform of our system of Church patronage. It is for this reason that I ask your Lordships to give a second reading to the present Bill, which seems to me to be a step—and I trust that your Lordships will, at all events, regard it as an anxious and honest step—in the direction I have indicated.
§ Moved,"That the Bill be now read 2a."—(The Lord Bishop of Peterborough.)
§ THE DUKE OF RICHMOND
My Lords, I think it right to intimate at once the course which Her Majesty's Government deem it proper to pursue in reference to this Bill. It would be doing an injustice to the right rev. Prelate and to my own feelings towards him if I did not take the earliest opportunity of saying that this House and the country are greatly indebted to him for taking up this subject as he has done, for the manner in which he conducted the proceedings of the Committee of last year, and for the great service which he has done to the Church by bringing the matter under the consideration of your Lordships. No one can be blind to the fact that occurrences connected with the exercise of Church patronage have for some years caused considerable scandal, and it is only right and prudent that an attempt should be made to grapple with 821 the evil. I will not now follow the right rev. Prelate into all the details which he has brought under the notice of your Lordships; but while agreeing with him in many of the points to which he has referred, and believing that it would be right and proper to accord a second reading to the Bill, I would venture to suggest to him, having read the clauses with great attention, that if the measure receives the sanction of your Lordships to-night by passing the second reading, it should then be referred to a Select Committee of your Lordships. I say this because I think that every one upon reading the Bill must admit that it is drawn in a manner which will render considerable correction necessary. The right rev. Prelate himself says that it is essentially a Bill of details—that it is a mass of details put together; and I venture to think these details would be better discussed and more easily set right by a Select Committee than by a Committee of the Whole House. There are parts of the Bill to which I will venture to call the attention of the right rev. Prelate, which I think will require very considerable discussion, and for the retention of which it will be necessary to give more reasons than at present appear. In the first place, I do not quite follow the right rev. Prelate in the reasons he gave for abolishing the present mode of dealing with the matter under consideration—namely, by Courts of Law. With regard to the Judge to whom the right rev. Prelate would transfer the jurisdiction, I can only speak, like him, in terms of the highest respect; but at the same time I do not think he has adduced sufficient arguments for altering the present mode of proceeding. Then, the clauses of the Bill are drawn at such length that when one has got to the end of a clause one has almost forgotten what was at the commencement of it; and for this reason also it is necessary that the Bill should be discussed in Committee. As to the 8th clause, it may be a question whether, at all events, a part of it should not be omitted. It requires that a presentee should send to the Bishop a testimonial, in a prescribed form, signed by three beneficed clergymen, and it gives the Bishop power to refuse to accept the testimonial if he thinks that any of the subscribers to it are not worthy of credit. Now, it does seem hard that a presentee 822 who may be himself in every respect worthy should lose the living because one of the subscribers to his testimonial is in the opinion of the Bishop unworthy of credit. And how would the Bishop prove, if the matter came before a Judge, that the person was really unworthy of credit? It would be very hard both to the patron and the presentee if this power were given. Moreover, it is proposed that the Bishop should have power to refuse to institute a presentee if he thinks he is suffering from such bodily infirmity as would render him unable to discharge his duties. I do not mean to say that it might not be possible to indicate in a clause or Schedule what is to constitute bodily infirmity; but it seems to me that the patron and presentee would be put in a very false position if the provision remained as it stands. There is another clause—also one of considerable length—which appears to me to be of a very extraordinary character. There has been a good deal said, and more remains to be said, about "Exchanges" in the Army, but I think that Clause 23 of this Bill recognizes payments for exchange to a very much greater degree than can ever have been contemplated in connection with any service under Her Majesty. It provides that—From and after the commencement of this Act all exchanges of benefices between the incumbents thereof shall be made by the execution by such incumbents of a deed of exchange in the form prescribed in the rules and orders, and such deed may contain a covenant for the payment of a sum of money by either incumbent to the other, subject to such conditions as may be agreed on.So that a man who has a small living and a great deal of money, may get another man who has a large living and little money to exchange benefices with him in consideration of a payment of £5,000 or other large sum. Some proviso is necessary with the view of preventing abuses of the system of exchange. I repeat that, while agreeing to the second reading of the Bill we think it ought to be referred to a Select Committee, whore the details to which I have alluded could be discussed more satisfactorily than in this House.
§ THE MARQUESS OF LANSDOWNE
said, that no one could regret more than he did to find himself, even in appearance, the opponent of any proposal made by the right rev. Prelate for the 823 objects which he had described so eloquently. That the subject was one well worthy their Lordships' consideration every one would admit. The Select Committee who considered this subject were at one as regarded the existence of the evils which had to be dealt with—evils which had been described by the right rev. Prelate in language no way exaggerated. But the Committee differed as to the means which ought to be adopted to mitigate those evils. There were two distinct lines on which they approached the subject. It was open to them to consider, first, whether any safe-guards might be devised against the abuses of the rights of patrons; and, secondly, whether those rights were not in themselves mischievous or excessive. Now, with regard to the former, it was unnecessary for him to recapitulate the different steps which under this Bill could be taken in order to prevent the corrupt or injurious exercise of the right of presentation. Their Lordships would see that the Bill tended to strengthen the hands of the Bishop by enabling him to resist an improper appointment; that it gave an important liberty to the parishioners to object to the person nominated; and that in various other ways it provided checks on the exercise of the right of patronage. All these were steps the importance of which could not be over-rated; and in addition to the good effects which might be anticipated from these provisions, the Bill would have a very beneficial operation in the attention it would attract to the abuses which had been referred to with such just indignation by the right rev. Prelate. The question which the Committee had had to decide was, whether, admitting that the steps proposed by the Bill ought to be taken, further steps ought to be taken also; whether, in addition to setting up safe-guards against the abusive exercise of the patron's rights, it was necessary to curtail those rights themselves. In considering this question, a distinction must be kept in view between the right of the sale of the next presentations and the right of the sale of advowsons. There was a remarkable unanimity of opinion among the witnesses before the Committee as to the imprudence of making any change with regard to the sale of advowsons. The result of the inquiry had, he believed, been to leave the system of private 824 patronage, in so far as advowsons were concerned, more firmly established than ever. With regard, however, to the sale of next presentations, the case was not so clear. The right rev. Prelate, as their Lordships were aware, held a very decided view upon this subject; but the Committee had not adopted that view, and the right rev. Prelate had in consequence, when giving effect to the recommendations of the Committee, found himself precluded from embodying in the Bill the provision to which he himself attached most importance. His own feeling was opposed to the view of the right rev. Prelate, for he believed that if the law with regard to advowsons were to remain unchanged, it would be impolitic, at all events, for the present, to alter the law affecting next presentations. Was it true, as represented by the right rev. Prelate, that there was a distinction in principle between the rights of the patron in the two cases? It was contended, on one hand, that the right to sell the advowson necessarily included the right to sell the next presentation, on the ground that the whole must necessarily include the less—the right to sell the advowson being no more than the right to make several presentations in succession. It was said, on the other hand, that the advowson being in the nature of a trust, it was competent for a man to divest himself of the whole trust, but not of a part of it. Those arguments he would leave to be discussed by noble and learned Lords. His own view of the question was that, even supposing any difference in point of principle existed between the two rights, it was perfectly competent to the Legislature to deal with the sale of next presentations in a different manner from that in which they dealt with the sale of advowsons, if the one were found to give rise to evils which the other did not. There were, however, present to his mind three practical objections to the proposal of the right rev. Prelate. His first objection was on the ground of the expense which would be incurred in carrying it into effect. His second objection was that the proposal would not prove an effectual remedy for the abuses sought to be put an end to; and his third objection was that the remedy was, or, probably, might be, a needless one. With regard to the question of expense; it was not for him to say to what extent 825 the patrons would be entitled to compensation, should their rights be thus curtailed; but he hoped that if it were necessary to compensate them the sum necessary, whether provided by the nation or out of the funds of the Church, would be liberally and cheerfully paid, in order to get rid of these scandalous practices. But his main objection to the proposal was that the remedy it offered would be ineffectual. Suppose that the sale of next presentations only were forbidden, the effect would be that the traffic in the sale of advowsons would be enormously stimulated;—and this view had been fully supported by the evidence which Mr. Dunn and Mr. Leigh had given before the Committee. Now, as the scandal attached to the idea of traffic, and not only to the idea of traffic of that particular kind with which the right rev. Prelate was anxious to deal, it would obviously not be suppressed, but only partially, if at all, mitigated by a limitation of the traffic in presentations if the traffic in advowsons were allowed to survive. The objection that the restriction proposed by the Bill was or might be needless was grounded on the fact that the other parts of the measure would enormously strengthen the power of the Bishop, and would give additional publicity to these objectionable transactions, which were now conducted under the shelter of secrecy and obscurity. It would, at all events, be prudent to try for a time the effect of the Bill as it stood, and not at once to pledge the country to a very cumbrous and possibly expensive mode of checking the evils complained of. He should be glad to see a fair trial given to the provisions of the Bill, and should they fail he should then gladly support a Bill as stringent and vigorous as this one was lenient in its operation.
THE BISHOP OF EXETER
said, he thought it was the duty of those right rev. Prelates who had looked carefully into this subject to lay before their Lordships the various aspects of the question, as they were necessarily more acquainted with the facts than any other Members of this House. There were two distinct classes of lay patronage in the Church which were sufficiently distinct in their character and in their incidents. There was, in the first place, the class of private patronage, which was exercised personally by the patron, 826 He was convinced of the great advantage of private patronage so exercised, having witnessed the extreme care and conscientiousness with which lay patrons investigated the fitness of the clergymen whom they selected to fill the benefices at their disposal. Judging from what he had seen in his own benefice, he could say that nothing could be more advantageous than the relations which subsisted between the lay patrons and the clergymen so appointed, as it afforded a guarantee that all the parties would work together heartily for the good of all. If this were the only class of private patronage exercised in this country, it would do no great harm, and such evils as did exist under it would be almost lost sight of in the great advantages it conferred. But, unfortunately, there was another class of lay patronage which it was necessary to speak of very differently indeed—that of livings which were continually in the market and which were perpetually being bought and sold over and over again. It was this class of private patronage which gave rise to all the evils that had been indicated, and which they were now trying to get rid of. In his opinion, no Bill that merely dealt with the symptoms and not with the true cause of the evils would be efficacious in removing those evils from which the Church now suffered. As long as the system of selling livings in the market existed, so long would there be not only a great scandal attending the Church and the work of the Church, but there would of necessity be a perpetual recurrence of all those mischiefs to which reference had been made; and he did not think that any legislation would be sufficient effectually and finally to do away with them. Such a Bill as the present would do real good—more good at first than perhaps afterwards. It would do good until the lawyers succeeded in finding out how to evade its provisions and the process would forthwith commence, and in no very long space of time they would find that their legislation must be renewed with precisely the same evils to deal with, although, perhaps, in a somewhat different form. Meanwhile there was going on this great scandal of the public sale of those trusts belonging to the Church. Their Lordships generally could hardly understand how great was the mischief done by the mere 827 scandal, without reference to the actual wrong done. He and his right rev. Brethren, who were constantly meeting with persons in the lower classes and hearing what they felt on such a matter as this, knew how great was the evil. It was constant matter of conversation among such people. They felt it to be a kind of personal degradation that the interests of the parishioners should be made the subject of bargain and sale, and they were taunted with it by those who did not belong to their own communion. The Nonconformist shopman taunted the Churchman in the market with the fact that the parish to which he belonged had been sold over his head, and that he had to accept the parson who had bought the place with his money. Not long since an eminent Member of the late Government brought a heavy indictment against the Established Church in a speech addressed to his constituents, and one prominent feature of that indictment was the scandalous traffic in livings—not the abuses arising from it, but the scandalous traffic itself. So long as that traffic existed, so long would it be a source of weakness and a blot and disgrace to the Church. It should not be forgotten that grave imputations might be more or less mischievous according to the nature of the institutions against which they were cast. In every institution there were particular points, an imputation upon which would touch the very life. If, for instance, it was said of the whole Army that the great body of them were immoral, although it would be a very grave and serious thing to say, yet it would not of necessity affect the efficiency of the Army. It would still for the purpose of defending the country be an efficient instrument. But what Army could stand if there were an imputation against its courage, and that imputation was not resented? What Army could bear to have it said of them that they were an army of cowards? The imputation would demand the most complete refutation. The same thing was true of a Church charged with trafficking in men's souls. It interfered with the strength and efficiency of the Church. It made many feel that they ought not to belong to such an institution. It put a stumbling block in the way of tender consciences. And surely when such an imputation was cast against the Church, 828 there ought to be some overwhelming reason for persisting in upholding such a system. It ought not merely to be said that certain advantages came out of it—that here and there good men were put into livings. That would happen in any system. So it was possible in former days to defend the sale of indulgences and masses—he did not doubt that they would be defended on the ground that if they did real good—that masses encouraged the kindness of one man to another, of relative to relative, of the rich for the poor. But now that the system was gone, could it be for a moment tolerated on any such ground? He entirely admitted that good men were brought into the Church here and there; but the gross evil and scandal of the sale would be seen when it was considered what a man sold who sold a living. He sold one of the most important trusts which it was possible for a man to hold. Upon him depended whether there should be in the parish a good man, a judicious man, a devoted man, a really religious man; or, on the other hand, an idle man, a careless man, an irreverent man, a man with a bad temper, a man with no heart in his work. What a difference that would make with the young, with the aged, with the sick. How many were there who had reason to thank God for a conscientious and careful patron, who had brought to the parish a really right-minded clergyman! Well, this trust was to be sold—the patron was no longer willing to continue in the discharge of it. And was there care taken that the person to whom it was to be handed over was a fit person to exercise it? No. That was entirely left to the solicitor, whoso duty it was to make the best bargain he could. In fact, as soon as the trustee had determined to treat his trust as a merchantable commodity, all his conscientiousness departed, and his one consideration was the amount of money he was to get for it. But that was not all—for livings were sometimes sold by public auction, and everyone knew the effect such a thing had upon the people of the parish that was sold; and yet the sale by public auction was simply the open exercise of a right which was more often exercised less openly. A public sale was the naked assertion of a principle. Sometimes the Law itself was party to such 829 a sale. If, in a marriage settlement, it was provided that in certain contingencies the trustees should sell—or the executors named in a will—the trustees or executors would have no choice but to sell by public auction. He knew it would take a long time to persuade the country and the Legislature to deal effectually with such an evil as this; but it was the duty of all those who looked closely into the matter to press the necessity of sweeping away so great a scandal upon those who had any voice whatever in dealing with it. As long as it existed, not only would it be impossible to get rid of the evils which they all deplored, but it would be a perpetual source of mischief to the whole Church. It was only in proportion as these sales could be checked, that the object they all had in view could be attained. The difficulty was that property of this kind should have been created, because when people had purchased such property it was impossible not to allow them to sell it; and if they were not allowed to sell, compensation must be given to them. A certain portion of every living really belonged to the patron; and if he wished to part with the trust he might take away the part of the living that belonged to him, and leave the rest to provide for the spiritual wants of the parishioners; and this was the only mode of reconciling the rights of the patron with what was due to the Church. He only rose to protest against the idea that any mere palliatives should have the effect of preventing the great and serious evils which had been brought under their notice. No one who had carefully studied the working of the Church could come to any other conclusion than this—that as long as the sale of advowsons and next presentations went on, the Church of England would be unable to present to the people at large the aspect which she ought to wear.
§ THE EARL OF HARROWBY
said, he was glad it had been admitted by the right rev. Prelate (the Bishop of Exeter) that there was no real difference between the sale of advowsons and next presentations, and that if their Lordships wished to meet public feeling in this matter they must go further and abolish the sale of advowsons. But what did that come to but the abolition of the right of private patronage? Parliament could not say to a patron—"This living 830 is your property, but it must never be sold, and must always be retained in your own hands." Would they tell a landowner that his patronage might be divided and sub-divided among his heirs, male or female, but must never be sold by himself or any one of them? The consequences would be absurd and disastrous. It would only be another way of destroying its value as property. It would be better to abolish private patronage altogether. Then, suppose that private patronage were accordingly abolished; what would be put in its place? Public patronage. But whose? Was it to be placed in the hands of the Crown, or in the hands of the Bishops, or left to the election of congregations? In the latter case it would be fraught with evils far more intolerable than those now complained of. Private patronage was now mainly connected with the landed estate of the country; but was it fit to tie it up to that one class, and not admit the moneyed and commercial interests of the country to participate in it? What avenue to the Church, except by purchase, was offered to the sons of wealthy men not connected with land? A leading merchant or banker might have among his sons one who was studious and pious, and who wished to go into orders to do good to his fellow-creatures—what chance would he have of obtaining a Church living if the sale of advowsons were prohibited? It must be remembered that the merits and qualifications which make up a good clergyman were not to be ascertained in the market-place, or made public, as in the law and other professions. What was now done? The merchant said to his son—" If you wish to go into the Church I will buy you a living;" and there could not be a better subject for a clergyman than the pious son of a man belonging to the mercantile and trading classes;—and yet, if the sale of livings were prohibited, that class would be shut out, and Church patronage would be confined to the landed gentry. Their Lordships must look at this question on all sides, and not be led away by a cry against the sale of spiritual functions. These were conferred by the Bishop at his ordinations without pecuniary considerations, and patronage gave merely the power of exercising these functions in one place rather than another. He was also of 831 opinion that greater facilities ought to be given for exchanges in the Church. They were often very desirable on many accounts, but they were now exceedingly difficult; and he could not see why, under proper regulations, exchanges of livings should not be more easily made. Concurring in the desirability of sending the Bill to a Committee upstairs, where the details could receive closer and more exact attention, he wished to pay his tribute of respect to the manner in which the right rev. Prelate (the Bishop of Peterborough) had brought the matter before the House, and also before the Committee of last year over which the right rev. Prelate presided. His temper, his patience, his consideration for others, and his known ability enabled the right rev. Prelate to discharge the duties of Chairman, in a very difficult matter, with an efficiency that had not often been exceeded in that House.
§ LORD STANLEY OF ALDERLEY
said, he entirely concurred in the principle and general scope of the Bill, but thought there were very great objections to the proposal contained in the 10th and 11th clauses. Even by those who approved its purpose it might be objected to on the ground of its futility; for what was the use of making inquiries as to the character of a clergyman in a place probably a long way off from his previous abode, and where he would probably never have been heard of before? Neither did there appear to be any use or necessity for the third hearing by the Privy Council, which the clause proposed to give, as to the facts of immorality. But he objected altogether to the clause, because it proposed to have that done by three parishioners which it was the duty of the Bishop to do; for it was the duty of a Bishop to be acquainted with the characters of his clergy, and to be able to give an answer as to their character when inquiry was made. There could be few patrons who, however well acquainted with a clergyman, would not, out of courtesy, write to his Bishop before proposing to present him to another Bishop. He also thought the proposed mode of announcing a clergyman from the pulpit and of placarding him on his church doors to his future parishioners as a possible criminous clerk was very objectionable and unnecessary. Criminous clerks were not of such frequent occurrence as to justify 832 such a step; and where they existed they were too well known to make the proposed precaution necessary. This appeal for denunciation, however, might very possibly open the door to and encourage calumny, and that sort of calumny which it would be difficult to refute or punish; for the right rev. Prelate who introduced the Bill was probably aware that traps might be set for young curates by persons sending doubtful characters to them in the guise of penitents. Another objection to the clause was that it was not based on any existing legal foundation, and that it would have a tendency to introduce a desire for that use of election in the Church which the right rev. Prelate was so rightly opposed to; for their Lordships would remember the emphasis with which last Session he had spoken of trial sermons and competitive prayers.
THE ARCHBISHOP OF CANTERBURY
My Lords, I cannot help thinking that an important distinction may be drawn between the sale of next presentations and the sale of advowsons. I also desire to call attention to another matter which seems to have escaped observation—the bonds of resignation. Perhaps your Lordships are not aware of the state of the law with respect to these bonds. The whole argument of to-night has rested on the theory that the rights of patronage are a sacred trust. It appears to me that the Act as to bonds of resignation which was passed some time ago tends very greatly to encourage the idea of property rather than of trust in matters of patronage, in as far as these bonds of resignation seem to recognize property alone and not trust. In the event of a patron desiring to take a bond of resignation from a person appointed to a living, he may do so either in favour of one person, who may be any individual whatsoever, or of two persons—in which latter case his right of patronage is limited, in what appears to be an extraordinary way, either to his son, or grandson, or nephew, or uncle; as if it were impossible that any other person fit to hold the living could be found except one within those degrees of consanguinity. Had it not been "except" son, grandson, nephew, or uncle, there might have been something to be said for it; but it seems an extraordinary arrangement to be made that, in the event of a person desiring 833 to influence the patronage after his death, or at some distant period, he is to select a nominee who probably is in his cradle, and whose character must be, therefore, totally unknown; and he is to designate him as rector or incumbent of a parish, the circumstances of which during the 23 years that have to pass before this person comes of age to be ordained may have entirely changed—say from the development of mineral wealth—which may render the position of a clergyman there very difficult. It is rather surprising to me that this matter has not been more carefully considered by the Committee. It is obvious that the whole proposed legislation in this matter is based rather upon the idea of trust than upon that of property. I do not, indeed, expect that we shall be able to obtain a perfect system of patronage as long as human nature remains imperfect; but I do think it is our duty to remove from the Statute Book everything which encourages an imperfect view of the duties which devolve upon patrons in the exercise of their rights. Your Lordships must have been gratified, as I was, by the testimony which has been borne to the mode in which private patronage is generally administered in this country. I should be the last person in any way whatever to desire to diminish the influence of private patrons in the distribution of livings in the Church of England; but I think we are bound to impress by our legislation upon the patrons that it is a sacred trust which they exercise, and that we should throw the idea of property in the living as much as possible into the shade. No doubt, there may be difficulties in overcoming evils which have grown up in consequence of the sale of next presentations, and to a certain extent the same evils may prevail in the matter of the sale of advowsons; but, at all events, if I can persuade your Lordships to stop the sale of next presentations the evils will be greatly diminished. Notwithstanding the speech of my noble Friend (the Earl of Harrowby), I do consider these sales an evil. If I had entered the House a few minutes ago, when my noble Friend was speaking, I might have supposed he was speaking of purchase in the Army, and was advocating that which by universal consent had 834 been decided against. If the practice has been proved by legislation to have been a bad one for the Army, it does not appear to me it can be a good one for the Church. I cannot help thinking there is a great deal of force in the argument which has been used by my right rev. Brother (the Bishop of Exeter), as to the mere fact of the sale of these next presentations producing much scandal. I do not believe that, except for the purpose of maintaining an hypothesis, it would be possible to defend, these sales of next presentations. No doubt good arises out of many most questionable practices; but what we have to consider is what on the whole will be likely to be most beneficial to the Church. I confess when I road such speeches as that which has, I believe, been alluded to this evening as having recently greatly influenced the country, and which was a brief against the Church of England—I think the strongest part of the brief is the attack on this system of the sale of next presentations—I feel great difficulty in knowing how I can defend the Church of which I am a member against accusations which appear to me to be well-grounded. So far as I can gather, all the witnesses before the Select Committee and the Committee itself are in favour of the abolition of the sale of next presentations. I cannot believe that many of those who are most opposed to the Church of England will object to our ridding ourselves of this blot on our Church system. I have every reason to believe that the most worthy members of other denominations would repudiate altogether the policy which is attributed to those who dissent from the Church of England, of desiring to retain as many of our corruptions as possible in order that the institution they disapprove may fall to pieces from the existence of those faults. I believe that high-minded members of other denominations will agree with ourselves that, while the Church of England retains the great post of instructor to so large a portion of the nation as at present, it is the duty of all, whether they approve of the Church or not, to give their assistance to remove evils which are patent to all. I cannot help thinking that even that eloquent voice which has been raised in denunciation of the Church on account of this evil will not be silent, 835 should this Bill reach "another place," in helping us to rid ourselves of so very great a scandal. I take it for granted that if the Bill is referred to a Select Committee the understanding is that, after bestowing on it the most careful consideration, the Committee will send the Bill back in time for legislation this Session.
THE BISHOP OF PETERBOROUGH
acknowledged the degree of favour and acceptance with which the Bill had been received both by the noble Duke, who represented Her Majesty's Government in that House, and by other noble Lords. The recommendations and suggestions that had been made by so many of their Lordships should receive the consideration to which they were justly entitled. On the other hand, none of the objections went to the principle of the measure. He need not dwell upon all the criticisms that had been offered. He would, however, observe that the counter signature of a foreign Bishop to the testimonials of a presentee was not required as an additional testimony to his character and fitness, but merely as an assurance of the credibility and respectability of the witnesses; it would affirm, not the truth of their statements, but their credibility. A case had occurred in which a Bishop wrote—I cannot refuse to countersign the credibility of the witnesses, although I think it right to state that during two of the three years referred to the presentee was in gaol.
§ The question of the necessity of the counter signature of a Bishop was the question raised in the well-known case of "Exeter v. Marshall," and the objection to it was that it would give the Bishop an absolute veto. He met that point by allowing the Bishop to object to the credibility of the witnesses, and by making provision for that and all other objections by the Bishop, to be brought before a Judge. The requirement proceeded on the maxim—Quis custodiet custodes. In assenting to the proposal of the noble Duke (the Duke of Richmond) to refer the Bill to a Select Committee, he would venture earnestly to express a hope that the Select Committee would be held at such a time, and would conduct its deliberations with such speed as would secure that the Bill should be again brought before their Lordships, and be sent "elsewhere," so as to afford a fair 836 chance of becoming law, if it should seem fit to the Legislature, this Session.
THE LORD CHANCELLOR
begged to say, with reference to the appointment of the Committee, that he had had a communication from Lord Coleridge, expressing his great anxiety, whatever form the Committee might assume—whether it was a Select Committee or a Committee of the Whole House—it should not sit during his absence on circuit till after Easter. Being at the head of the Court where proceedings by Quare impedit would take place, he was naturally anxious that he should have the opportunity of carefully looking into the frame of the Bill before it passed through Committee.
§ Motion agreed to: Bill read 2a accordingly, and referred to a Select Committee.