§ Order of the Day for the House to be put into Committee, read.
§ Moved, That this House do now resolve itself into a Committee.—(The Lord Bishop of Peterborough.)
said, he wished to say a few words on the Bill before their Lordships went into Committee. The Bill had undergone so many changes by the Select Committee to which it had been referred that it might now be discussed as if it stood for second reading. Looking at the Bill from that point of view and as the objections he entertained to the measure were essentially objections on the prin 1204 ciple, he thought it would be convenient and proper that those objections should be stated before their Lordships proceeded to a discussion of the clauses. The object of the Bill professed to be to deal with certain scandals and inconsistencies which had arisen within the Church. No doubt scandals might have arisen in some small number of instances from the abuse of Church patronage, but it did not seem to him that the abuse had been so general as to call for legislative interference. If he was right in this, the Bill would have a very injurious effect in seeming to give corroboration to some of the statements made against the Established Church by those who were hostile to her. And at the present time, when it became the duty of the Church to assert her integrity, it was very unwise to direct attention to minor matters, and to invite and encourage criticizm, and by treating them as fit subjects for the attention of the Legislature, to give them an exaggerated importance. It must be borne in mind that the Established Church of this country was not only a great religious but also a great State corporation, and as a great State corporation carrying with it certain conditions of secularity which were liable to be misunderstood and misconstrued if the Church were regarded from a purely spiritual point of view. It did not rest on conformity only. It was not a Church of ascetic devotion, requiring an abnegation of secular motives—for their Lord-ships could not forget that it was a great secular profession as well as a purely spiritual body. The Dissenting bodies were not free from these secular considerations, and in a state of society such as the present it was necessary that the clergy should have the proper means of support—and it was in the fact that the clergy of the Church of England were not dependent on chance for the means of living that we had the great security for the due exercise of their profession. No one doubted the general morality of the Church of England—there was no pretence for any accusation of a diminution of piety or morality in the Church; but it was too true that it did not maintain its social status and intellectual eminence, and it was the tendency of this Bill to accelerate that decline. There was a growing disinclination on the part of educated men to enter the Church, and it was not for 1205 Parliament to pass a measure the tendency of which would be to diminish the comfort and well-being of the educated clergy of that Church. He objected to the Bill, in the second place, on the ground that it was an interference with the rights of property. The advocates of the measure argued in its favour on the ground that Church patronage carried with it responsibility. Of course it did; but you had no more right to take away a man's property in Church patronage than you had to take away any other class of his property. Again, he believed that in many instances a layman could administer Church patronage better than it could be administered by an ecclesiastical authority. An intelligent resident gentleman, free from professional feeling, was likely to be the best judge of the kind of clergyman who would be best fitted for the particular parish; and from his own observation he felt satisfied that, as a rule, lay Church patronage was exercised with great discretion, and under a becoming sense of responsibility by those who held it. He happened to be allied to a noble-man who had as large Church patronage as almost any Member of their Lordships' House, and he knew the care and discretion which characterized the exercise of his patronage on the part of his noble relative. That was not in any way a singular case. As regarded the sale and exchange of livings, Petitions had been laid on the Table that went even further than this Bill, for their tendency was to abolish the sale of livings altogether. Though this Bill did not go the full length of forbidding the sale of Church livings, it would go some way in that direction, and was inconsistent with legislation approved by their Lordships' House—including, he believed, the entire of the right rev. Bench. He referred to the Act of the late Lord Westbury for the sale of Crown livings, which had been most successful in its working, and under which there had been the most extensive trafficking in Church livings that had ever been known. One great advantage arising from the sale of livings was that it brought money into the Church; and the fact of a man buying a living showed that was likely to bring some competency into the Church. There were a great number of small livings, and if Parliament discouraged men from going into the Church 1206 who were able to bring money in with them it would do her a great injury. He thought it also unwise to throw impediments in the way of exchanging livings and resignations;—if the Bill had gone in the way of diminishing these difficulties, he would gladly have supported it. There were at present frequent family arrangements by which a family living was reserved until the person for whom it was intended had been fitted by age and education to take it—an efficient locum tenens being in the meanwhile appointed. Such a person was usually best fitted to meet the social and religious requirements of the locality; but this Bill discouraged all such arrangements—he thought to the injury of the Church. He entirely disapproved the proposition of the right rev. Prelate (the Bishop of Peterborough), which would give the Bishop a veto as to the institution of the incumbent which hitherto had never been possessed. By means of this proposal a certain form of inquisition would be set up in parishes, and scope would be given for the exercise of party feelings and private animosity. Private and sectarian animosities would be sure to break out in the most offensive manner; and the result would be that the candidate's character would be utterly destroyed; he would not be instituted to the benefice, or, if instituted, a party would have been already constituted in his parish which would impede him from the first moment of his administration, and disturb his comfort and his good relations with his other parishioners. It was urged in favour of the proposed change that at present the Bishop was placed in an unfortunate position, because he could not refuse to institute a clergyman without exposing himself to the consequences of libel or scandal; but he believed that if they thought they would put the Bishop in a better position by encouraging a sort of supervision of the clergyman by persons' who, in all probability, would be very incompetent for the task they were very much mistaken. He ventured to think that if the Bishop acted on vague information, he would place himself in an intolerable position, and one from which he would not be able to withdraw with honour or credit. Their Lordships ought to give this fact their serious consideration—that a principle recognized by the Church of Eng- 1207 land was to regard every clergyman as a fit man for an incumbency from the moment of his ordination. Protection against the admission to the ministry of men unfitted for it was quite right, and the Church of England had a good and intelligible form of securing it; but after a man was ordained they had no more right to subject him to suspension and supervision than they had so to act with any other member of the community. The Church of England owed her strength to the full co-operation and sympathy of the laity. She mixed herself up with the social and political movements of the laity. It was for that the right rev. Prelates were sitting in their Lordships' House. It was because the Church of England recognized the lay element that she was something besides a great religious sect; and he hoped that she would continue to maintain her position as an important corporation of the State.
§ VISCOUNT PORTMAN
thought it would be more convenient to defer his remarks until their Lordships were in Committee, when he intended to take the sense of their Lordships upon several Amendments, of which he had given Notice; reserving to himself the right to divide against the Bill on a future stage, if he should not succeed in inducing their Lordships to adopt the Amendments. He had presented a Petition from about 300 clergymen against the Bill, and meant to do his utmost to further their wishes.
THE BISHOP OF LONDON
said, it had long been the custom of the Bishops to require of a candidate presenting himself for institution to a benefice, testimonials signed by three incumbents, and countersigned by the Bishops of the dioceses in which they were beneficed; but as the House of Lords had held that there was no legal right on the part of the Bishops to require testimonials to be so countersigned, it was necessary to give the Bishop who was called upon to institute some further security for the fitness of the candidate than testimonials not so countersigned would afford. Testimonials were often given through good nature, in cases where they ought not to be given. He hoped that the original words which made these countersignatures necessary would be restored, for they were, in his view, far greater safeguards than any veto.
§ Motion agreed to; House in Committee accordingly.
§ Clauses 1 to 3 agreed to.
§ Clause 4 (Abolition of donatives).
§ VISCOUNT PORTMAN
moved the omission of the clause. Donatives were private property granted to the original donors by royal grants in return for the building a church, endowing the parish, and making a separate district. The parties fulfilled their obligations, and though some called a donative a privilege, he contended it was as much a property as any other estate that was duly paid for. Moreover, he believed the number of donatives was less than 100, and the owners of the most of them were as honourable and good men as the Bishops who wanted to take away their rights, be they those of property or of privilege, for so many or for so few as the Bishops might prefer to describe them, wrong should not be done. In every private Bill where any property was taken, the greatest care was taken by the Standing Orders to protect the owners from injustice—and in no instance that he was aware of had Parliament taken away the property of an individual without notice and without compensation. Whatever abuses might exist in connection with donatives, they were of a very limited character; but here, because in perhaps some half-dozen of instances—the number might be a few more or it might be less—there had been an abuse of this patronage, it was proposed to take it away from everybody who possessed it. Let wrong be dealt with in another way than by doing injustice. It was inconsistent of the Government to support the proposition before the House, because in a measure for dealing with the Bishopric of St. Albans they were giving their sanction to the principle which the clause would abolish. He hoped the noble Marquess (the Marquess of Salisbury), who in the case of the attacks on Endowed Schools had been the champion of private property, would resist the attack made on it in this case.
§ Moved to omit Clause 4.
§ THE MARQUESS OF SALISBURY
said, he felt the full force of the appeal in favour of private property made to him by his noble Friend, and as far as the principle put forward by his noble 1209 Friend—that the Legislature should not take away private property without compensation—affected the general principle of the Bill he owned that he felt considerable doubt and apprehension. To that portion of the measure which gave the Bishops larger control over candidates for institution to benefices he did not object; but that part of it which was directed to the hindering of persons from purchasing livings, though attractive, did not, when it came to be examined, stand the test of close investigation. Of course, everything in the way of purchase seemed to be repugnant to spiritual objects; but if a man was drawn by his own feeling to take a part in the Christian ministry the only two means by which he could obtain an independent position in the Church—for such a position was not occupied by a curate—were purchase and favour. He might obtain it by either of those means. It was obvious that in this country there was a feeling against obtaining anything by favour. That feeling was growing day by day. They knew there was a powerful feeling in some quarters against obtaining anything by purchase either, and that his noble Friend opposite (Viscount Card-well) took a violent step a few years ago with regard to the purchase of posts in the Army. But undeniably there was a growing feeling in this country against obtaining any pecuniary advantage by favour. At present persons who were anxious to take a part in the Christian ministry, and to do so in an independent position, could effect that object by purchasing a living. If they were shut out from that means, and if they shared in the growing dislike of favour, what other was open to them? This Bill, he was happy to say, would not entirely stop up that way to an entrance into an independent position in the Church—if it did, he would not have agreed to the second reading; but it did tend in that direction—though not to such an extent as altogether to destroy the advantages that might be derived from it. He felt that he was addressing an unsympathetic audience, and that the general sentiment in their Lordships' House was against the purchase of livings in the Church; but he believed that the abolition of such purchase would close the door against some of the most valuable incumbents in the Church. So much as to the general principle of the Bill, As 1210 to the Amendment of his noble Friend' and the appeal he had made to him to support it, on the ground that the abolition of donatives would be similar to the confiscation of private property without compensation, he would remind him that there was no analogy between the two cases. The objection urged against donatives was that they had been used as "warming-pans." What was proposed to be taken away by making donatives presentative benefices was something accidental and irregular which had become attached to the patronage itself in the course of time. The patronage itself was property combined with a trust, and he thought it was open to Parliament to make any provision it thought fit with the view of securing that the trust should be more properly administered. In dealing with donatives in the manner proposed Parliament would not take away anything that was a part of the original property in patronage. He could not accept the analogy which the noble Lord had attempted to institute between this case and that of the Endowed Schools.
§ LORD ARUNDELL OF WARDOUR
said, he doubted whether the true history of donatives had been given. In some cases, as stated, they might have been the creations of the Royal Prerogative with a view to a particular trust; but in many others, and in the instance to which he was going to refer, he believed that the right arose out of the old ecclesiastical arrangements of the country, and in this way—Previous to the time of the Reformation these parishes were out of Episcopal jurisdiction, and the particular jurisdiction to which they belonged being then abolished, they absolutely lapsed to the lay impropriator. He moreover denied that the proposition that a donative "was not only a property but a trust "was applicable to his case. He happened to be the proprietor of a donative in the county of Wilts, which had been purchased by one of his ancestors in 1595, like any other property, in the open market. Being Roman Catholics, however, his family had—very reasonably, from a Church of England point of view—been debarred from exercising the right of presentation, and what remained was, therefore, only the right of property in the benefice. Under these circumstances his right could not properly be termed a trust, He must, 1211 therefore, protest against the arbitrary conversion of donatives into presentative livings, which in the case of Roman Catholics meant simply confiscation of their property. No doubt many of their Lord-ships, believing the abolition of donatives to be in the interests of their Church, would willingly acquiesce in the surrender of such rights; but in the case of a Catholic proprietor who had no such motive—indeed, no compensating inducement at all—it was simple confiscation, and it was to affirm the principle of confiscation for the first time in modern legislation—for the 18th clause of the Irish Church Bill expressly gave compensation to all patrons whose rights were "affected" by its provisions. It was a small matter so far as he was personally concerned; but he could not help asking their Lordships, and more particularly the Episcopal bench, to pause before affirming this principle—"Hodie mihi cras tibi."
THE BISHOP OF PETREBOROUGH
said, he had some difficulty with respect to this clause, inasmuch as he was called upon to reply, not only to the speech of the noble Viscount who moved the omission of the clause (Viscount Portman), but also to that of the noble Lord opposite (Lord Houghton), which ought to have been delivered upon the second reading of the Bill rather than in Committee. Dealing with the latter speech, in the first place he wished to take that opportunity of declaring that there was not the slightest foundation for the charge which had been brought against him of having been animated in introducing this Bill with a feeling of hostility to lay patronage. 80 far from that being so, he had frequently expressed his desire that lay patronage should be preserved in its integrity, and it was with a view to its continuance that he sought to reform any abuses in the system which might peril its existence. As an evidence of the opinion of the clergy upon the measure he might refer to the number of Petitions that had been presented by them in favour of this measure. The principles of the Bill were identical with those that had received the sanction of both Houses of Convocation, and had been supported by nearly the whole body of the clergy. He must remind the noble Lord (Lord Houghton) that the laity did not consist wholly of lay patrons, and that it was the interest 1212 of the laity in every parish in the Kingdom that good and fitting pastors should be appointed to the different livings. He believed that if the clergy of the Church of England were polled to-morrow three-fourths of them would be found to be in favour of this Bill—or, at all events, of its principle and of most of its provisions. With regard to the Petition against the measure signed by 300 of the clergy, to which the noble Lord had referred, he was happy to be able to inform him that he had heard from one of its signatories that if one particular clause in the Bill were omitted the objections of the Petitioners would be almost entirely removed. The noble Lord had laid down the startling proposition that once a man was ordained by the Bishop, no opportunity should afterwards be given for testing his fitness as a presentee—so that because a man was sound in doctrine and pure in morals at 23, therefore he must be equally sound in doctrine and pure in morals at 33, and that because he was bodily fit for the discharge of his duties at 33, therefore he must be equally bodily fit to discharge them at 93. Did the noble Lord think that clergymen were like wine and that the physical fitness of the clergy must necessarily improve as they grew older? Having thus dealt with the objections of the noble Lord opposite, he would now proceed to defend the clause against the criticisms of the noble Viscount (Viscount Portman). There were three reasons why he proposed that donatives should be converted in to presentative benefices. First, because the kind of patronage attached to donatives was altogether unreasonable in principle; secondly, because it was mischievous in its practical operation; and, thirdly, because donatives could be abolished without the slightest injury being done to property and without giving ground for any fears that claims to compensation could be set up. In his opinion, the privileges enjoyed by a clergyman presented by a donative were unreasonable, inasmuch as he was not even bound to adduce proof to the Bishop that he was in holy orders, and thus the parishioners were actually not secure that the person who married them was legally empowered to do so. Again, the individual might be the best or worst man in the world, but the Bishop had no means of ascertaining his character, or of even knowing when 1213 he came into or went out of his diocese. If it was legitimate and reasonable that the Bishop should be able to ascertain all these material facts connected with the person to be presented in the case of the 12,900 lay patrons, surely it was equally legitimate and reasonable that he should be able to do so in the case of the 100 owners of donatives. Another advantage that the owner of the donative enjoyed over other lay patrons was that the law of lapse did not affect him. The law of lapse simply required that the lay patron should do his duty by giving a pastor to the parish, and under it if the patron did not appoint within six months the Bishop appointed, and if the Bishop also failed to appoint within six months the Archbishop appointed, and in his default the Crown. The argument of the noble Viscount, on the other hand, went to the effect that the owner of a donative had a right to keep a parish without a pastor for 10 or 20 years, or for his whole lifetime, while he himself was receiving the proceeds of that donative. What the noble Viscount claimed was that the owner should have a right to shut the church door in the face of his parishioners—to say to them, "Your children shall not be baptized; your dead shall not be buried; you yourselves shall remain unmarried as long as I please to say so." The Protestant principles of the noble Viscount were well known and much admired in the country; but, to his astonishment, the noble Viscount would inflict upon many of our parishes a worse than Papal interdict. The noble Viscount was not so much defending property as divorcing property from its duties. It was the duty of the owner of church patronage to provide spiritual ministrations for the parishioners. He might illustrate his argument by mentioning something which occurred in his own diocese. He had announced his intention of holding a confirmation in the church of one of his parishes; but it happened that the living was a donative, and the owner of the donative refused to allow him to do so in what he was pleased to call his church, and favoured him with a lawyer's letter to that effect. He (the Bishop of Peterborough) wrote to the gentleman in question expressing a humble hope that he would be pleased to allow him to hold the confirmation; and he replied that he had no personal feeling in the matter, 1214 that he would be happy to give him luncheon, but that as long as he lived no Bishop should hold a confirmation in his church. Why, this was the most unreasonable and wildest privilege to give to 100 out of 13,000 patrons in England. The privileges in question were mischievous in operation, and not only so for the reasons he had now given, but for those he had given in his former speech, by which he showed that they were used for the very worst purposes. He would just mention one instance. A clergyman well known to the Bishop of this diocese informed him that at present an incumbent who wished to resign his incumbency for any reason, in spite of his diocesan, had only to apply to a clerical agent, who would at once refer him to the patron of a certain donative living, who, on receiving the fee of £250, would grant that incumbent a "turn" of his living with his donative, which thereby vacated his present preferment.I know well," he added, "the history and doings of this donative and the romance of simony to which it had been instrumental, and that in one twelve-month three of the above-named sums were received by the patron of it from clergymen who thereby set their Ordinary at defiance. In each case the clerical agent received his 10 per cent commission—£25.That was one of the crying abuses of donatives. But they were not used for those purposes only. They had the effect of directly impoverishing the benefice. The owner of a donative had been known to decline to allow an augmentation of the clergyman's stipend from the Queen Anne's Bounty, because had he acted otherwise he would have lost the donative, which would have been turned from a donative into a presentative benefice; and thus the clergyman was kept in poverty because the augmentation would deprive the owner of his exceptional rights. So that the thing was contra bonos mores. It was against public policy and the interests of the Church that it should be preserved. The noble Viscount was not much enamoured of the Bill, and therefore he was entitled to assume that whatever clause which the noble Viscount did not question he considered just and necessary. Well, but the striking out of the 4th clause would exempt the owners of donatives from those very clauses which the noble Viscount was content to leave in the Bill, 1215 They might apply to 12,500 patrons, but for some mysterious reason 100 were to he exempt from the operation of those admittedly salutary restrictions. The noble Viscount was willing that in all cases except in the case of the owner of a donative the Bishop should have a right to inquire as to the character of a presentee and that any communication so made should be considered privileged, and so on with respect to other provisions. But he provided a loophole for escape and new and most invidious and mischievous privileges for the owners of donatives. If their Lordships would shape the Bill as the noble Viscount would have it, these donatives would become a refugium peccatorum in the Church—a corner of the covert in which the unclean beasts would gather together. He had given, he thought, sufficient reasons for the belief that those exceptional privileges were unreasonable and would be mischievous. He would now show that they did not, in the least, touch the question of compensation. He agreed entirely with the assertion that if you touched a man's property you were bound to give him compensation; but he entirely denied that if you took away a privilege which was exceptional and injurious to the public welfare, you were bound to give him compensation for that. The Legislature had always distinguished between property and privilege. Property was something realizable, tangible, marketable. Privilege was not. The law had repeatedly dealt with privilege without compensation. He had not heard that when the rotten nomination boroughs were done away with by the Reform Bill the owners of the estates on which they were situated received compensation. He had not heard that when Members of Parliament were deprived of the privilege of franking, of which many made a marketable value, they received compensation; nor had he heard that when clergymen were deprived of the privilege of sitting in the House of Commons the owners of the advowsons which were affected thereby in value put in a claim for compensation. He had not heard either that in the case of the owners of Welsh advowsons, dealt with in the beginning of the present reign, who had the privilege of appointing men who could not speak Welsh, when that privilege was taken away, whereby the market value of the advow- 1216 son was considerably narrowed, the Legislature had given them compensation. It was, in fact, impossible to assign a money value to those privileges. He asked the noble Viscount to put upon a sheet of paper what would represent the marketable increase of the value of a donative deriveable from the possibility of putting it to a bad use? What was the marketable value of the privilege of appointing a decrepit clergyman or of shutting the doors of the parish church? What was asked here was the preservation of privileges which were injurious to the public interest. But he contended that the effect of the passing of the Bill would not be to diminish by a shilling the value of donatives, but rather to increase it; because if the Bill were passed the donative living might be turned into a presentative benefice allowing of augmentation from Queen Anne's Bounty and other sources. If the owners of donative livings were allowed the privilege of shutting up the parish church and of appointing paralytic clergymen, or clergymen of the age of 95, it would be impossible to calculate the evils that might arise from such an anomalous state of things. The recommendation to abolish it was not that of the Episcopate alone. There had been two Select Committees of their Lordships' House, on which Bishops were in a very small minority, and on which law and property and rights of patrons were most largely and ably represented, and each Committee made a similar recommendation without a division. He must say that the amount of lay and legal opinion in their Lordships' House in favour of the proposition was largely in excess of the amount of opinion on behalf of the Spiritual Peers in favour of the Bill. He had shown that those donatives were, in principle, unreasonable and anomalous, and in operation mischievous and dangerous, and that they might be converted into presentative benefices without the slightest injury to property or the least violation of the principle on which the Legislature had always acted in respect of interference with vested interests. In conclusion, he entreated their Lordships not to accept an Amendment which would go far indeed to destroy the whole working value of the Bill.
observed, that the right rev. Prelate in his eloquent 1217 speech had assumed that he intended to do something. He, on the contrary, proposed to do nothing; his proposition Being to let things remain as they now were. The right rev. Prelate proposed to confiscate property—he did not.
§ On Question, Whether to omit? resolved in the negative—Clause agreed, to.
§ Clauses 5 to 11 agreed to.
§ Clause 12 (Declaration by Patron).
THE LORD CHANCELLOR
said, that as the clause stood a declaration was to be made by the patron in the form provided in the said Schedule, whether the patron was a private person, or the patronage was in the Crown or in the Bishop. The declaration was against simony. But he thought that what might be simony in a private person was in official persons corruption or malversation of office, and they should be impeached. The great Officers of the Crown should hardly be called upon to declare that they had not been guilty of corruption in the exercise of their office. He moved to omit the words in line 6—And where the Bishop himself is patron he shall himself make and subscribe a similar declaration.And he proposed afterwards to add at the end of the clause—This declaration shall not he necessary where the Crown or Bishop is patron.
§ LORD COLERIDGE
said, he did not understand that the Bishops themselves objected to make this declaration, and he did not see why they should be exempted in terms; though something more might be said in reference to the great Officers of State. He hoped that there would in this respect be no distinction made between lay and ecclesiastical patrons.
THE ARCHBISHOP OF CANTERBURY
believed that there was no desire on the part of the Bishops to be put upon any other footing than that occupied by other patrons.
THE LORD CHANCELLOR
said, that his Amendment was hardly placed upon this ground. A Bishop as patron would have to declare that he had not received any money for the presentation since the avoidance. But suppose that he had received money before the avoidance? This would not be simony, but it would be a most serious offence on his 1218 part to receive money for a presentation at a time when a lay patron could have received it without offence. He objected to attempting to provide against corruption in office by a declaration of this kind.
§ Amendment agreed to.
THE LORD CHANCELLOR
next moved to add to the clause these words—And this declaration shall not be necessary where the patronage is in the Crown, the Duchy of Cornwall, or a Bishop.
opposed the Amendment. If the clause passed in this shape an opinion would go forth that the right rev. Bench had sanctioned a distinction between lay and clerical patronage, to their own advantage and to the disadvantage of the latter.
§ Amendment agreed to.
§ On Question, that the Clause, as amended, stand part of the Bill,
§ VISCOUNT PORTMAN
urged the rejection of the clause, on the ground that it would establish an invidious distinction between private and episcopal patronage. The Bill proposed that a patron who had disobeyed the law should be liable to punishment for misdemeanour; but the Episcopal Bench was to be exempted from the penalty. Suppose a patron had been guilty of a breach of the Statute of Elizabeth by presenting to a living a clergyman who had voted for him as a candidate for the House of Commons—that would be set up by a political opponent as a corrupt proceeding, and you would have an application to a Justice of the same side, who would hold the declaration to be false, as it would be an indirect act of simony so to present for services rendered by the Presentee, he would commit for trial, and a jury would then determine whether he had committed a misdemeanour or not. Such a man would be liable to imprisonment with hard labour because he had inadvertently committed a breach of the Statute. That was a state of things to which lay patrons ought not to be subjected, and he would not submit to it unless it was accepted by a majority of their Lordships' House.
THE BISHOP OF PETERBOROUGH
said, the noble Viscount had insisted upon the injustice of making an invidious distinction; but the law as it 1219 existed did make a most invidious distinction. It required that a clergyman should make a declaration that he had not committed simony, but a lay patron was not required to make such a declaration. At present all he contended for was the principle that this invidious distinction was not to be made between lay-men and clergymen, with regard to whom the hardship, if any, was greater on account of their sacred character in the matter of simony. The noble Viscount would understand that he would not be subject to the penalty for misdemeanour unless the House consented to the other clauses.
trusted the House would not submit to this great invasion of the lay patron's rights. There was no more reason why a layman should be called upon to declare that he had not violated the law than any other person.
THE LORD CHANCELLOR
said, he did not see how this could be regarded as an additional burden placed upon property—it seemed to him simply a question of expediency—whether you gained any useful end or avoided any evil by a declaration of this kind. No doubt, the Committee which sat on the Bill last year recommended that there should be such a declaration made both by the patron and the clergyman. He did not misrepresent the idea of that Committee, judging by their Report, when he said that they took notice that the law of simony was very intricate, full of niceties, and with many pitfalls about it, and that much would be gained if you could define what simony really meant. After consideration, the Committee came to the conclusion that it was better not to attempt to frame a new oath—that it was better to set up the clause in the Act of Parliament, and require the patron and the clerk to say they had done nothing against the Act. He owned, however, that upon thinking over the probable result of this process, he was not of opinion that the matter was made easier or less obscure than it was before, or that the declaration in the Bill was any great achievement. He hoped, therefore, that much good would result from the Bill without insisting on this declaration.
§ LORD SELBORNE
said, that the opinion expressed by his noble and learned Friend agreed very much with what had occurred to his own mind. 1220 The Committee determined to alter the existing declaration, on the ground that the matter was left very much as one of legal construction. But what happened now was this:—A man went to his lawyer, and, after telling him in what stage the transaction was, asked whether he was breaking the law against simony. The lawyer examined the ease with a disposition to find that the law had not been broken; and if he gave that opinion, the client thus satisfied his conscience, if he had one. The same lawyer would be consulted in the same way upon the declaration required in the present Bill, and he would give exactly the same answer. The conscientious man would then adopt the declaration as easily as under the existing law; and, of course, the unconscientious man would have no difficulty.
THE BISHOP OF PETERBOROUGH
said, that after the opinions expressed by the noble and learned Lords, he should withdraw the Schedule, but he should press the proposal that the declaration now required from the clerk against simony, which he thought quite proper, should be also required from the patron. There were lay patrons not of the high character and honour of those in the House of Lords. He would mention one instance in which a clerical agent was also a lay patron.
THE ARCHBISHOP OF YORK
said, the present declaration was of quite modern origin. He was a member of a Commission which, after trying to define simony, had quite failed in doing so. He saw no advantage in the course suggested by the right rev. Prelate in extorting from the lay patron the declaration required from the presentee. There must be two parties to a simoniacal bargain, and it was sufficient to require a declaration from one of them.
§ THE MARQUESS OF SALISBURY
said, the policy of guarding laws by declarations that you had not broken the law was a policy which Parliament had not of late years adopted. On the contrary, Parliament had rather shown a tendency to repeal such declarations.
THE BISHOP OF PETERBOROUGH
said, he would not press the matter on their Lordships, and would withdraw these clauses.
§ On Question? Resolved in the Negative.
§ Clause struck out.1221
§ Clause 13 (Declaration by clerk;)—Clause 14 (Proceedings on complaint) omitted.
§ Clauses 15 and 16 agreed to.
THE BISHOP OF EXETER
moved, after Clause 16, to insert a new clause to render illegal the sale by auction of advowsons and of the right of presentation to a benefice, and to require them to be sold by private contract. He proposed this clause with the object of avoiding the scandal that arose in the conduct of such sales. Suppose, for instance, a sale of this kind should be held in a public-house in the parish the advowson or next presentation to the benefice of which was being sold. The patron, he contended, was an officer of the Church; and though he did not object to private patronage, he objected very much that that private patronage should be put up to public auction. Besides, when property of this description was sold by auction less care was likely to be exercised by the patron in the selection of the clergyman than if it were sold by private contract.
Moved, after Clause 16, to insert the following clause:—
No advowson, nor any estate or interest in an advowson, nor any right of presentation to a benefice, shall hereafter be sold or offered for sale by public auction; and when mortgagees, trustees, or other persons in a fiduciary position are empowered or directed to sell an advowson, or any estate or interest in an advowson, or any right of presentation to a benefice, by public auction, it shall be lawful for them to sell by private contract, and by private contract only, and without being responsible for any loss to be occasioned thereby."—(The Lord Bishop of Exeter.)
THE LORD CHANCELLOR
said, the right rev. Prelate seemed to proceed on the idea that at a sale by public auction the vendor's object would be to obtain the highest price by any means, and of the purchaser to make the most of his purchase. But he thought that at a sale by private contract the patron would be not less pressing to obtain the highest price for his property, and certainly he saw no ground for thinking that a better man was likely to be secured as pastor if the advowson were sold by private contract than if it were sold by public auction. He would point out to the right rev. Prelate that property of this description was generally sold in public sale rooms, and not at public-houses. He did not think that it 1222 would be right to dictate to the patron how and where he should sell his property.
§ Clause negatived.
§ Clause 17 agreed to.
§ Clause 18 (Repeal of 9th Geo. IV. c 94, rendering bonds, &c., for the resignation of ecclesiastical preferments in certain specified cases valid).
THE ARCHBISHOP OF CANTERBURY
supported the clause in question, observing that the arrangement by which a child in his cradle might be appointed to take charge of a parish when he came of age was one which ought not to be tolerated in the clerical profession, and would not be tolerated in any other. What would be said of an infant being appointed to the command in the Army when he reached a particular age? Such things had been, but, owing to the action of a sound public opinion, they had long since ceased to exist; and surely it was quite as undesirable that a youth should be designated to the future charge of a parish as that a child in his cradle should be designated as the future colonel of one of Her Majesty's regiments. It was, in his opinion, high time that an Act which tolerated such a thing should be repealed. It was in any case only a question of time, for no one could suppose that when the attention of the public was directed to the subject, such a power would be allowed to continue.
§ THE MARQUESS OF SALISBURY
said, the real objection to the clause was that a man who possessed an advowson, and wished to create a vacancy at a definite time, if he was not allowed to do so openly by a resignation, would do it un-avowedly and in a most objectionable way—namely, by appointing a man sufficiently old to make a vacancy almost a matter of certainty at the time it was required. It was a great evil; but it was not an evil in his opinion that a fit man should be appointed to a parish for a limited number of years. People were appointed to high commands in the Army for periods of five years without injury to the service, and temporary appointments were made in other professions without injurious results. In respect of the Indian service, for instance, it was the constant practice to appoint a man 1223 to an office which he would be unable to fill for two or three years. If the appointment was an improper' one, the Bill enabled the Bishop to refuse his licence.
THE BISHOP OF PETERBOROUGH
said, that parishioners did not feel towards a clergyman who was to be among them for a short time only, as they would towards one who was to be their permanent pastor; nor was it probable that the temporary clergyman could take so much interest in a parish as the permanent clergyman would. "When the Act of George IV. was under consideration Lord Thurlow strongly objected it on the ground of public policy—for a resignation bond might be enforced at any moment, and such a condition of things was practically injurious. The Act in question was known by a name almost too vulgar to be mentioned in their Lordships' House; but it showed what public opinion on the subject was. It was called the Warming-pan Act. He objected to it on the principle that the incumbent should not be the mere tenant at will of the patron; and further, because it opened the door for simoniacal contracts between the patron and the presentee.
THE ARCHBISHOP OF YORK
supported the clause for the additional reason that the person named in the bond might be not nearly as desirable as another, and yet should be appointed.
After a few words from Lord HOUGHTON,
THE BISHOP OF OXFORD
wished to say there was a growing feeling among the clergy that these resignation bonds were of doubtful propriety, and in several cases that had come under his knowledge those who had consented to sign them were afterwards troubled to know whether they had done the thing that was right. The transaction partook of a simoniacal character—a man got a living by signing a bond which he would not have had if he refused to sign it. It might not be illegal, but scrupulous men would not consent to hold livings in this manner.
§ On Question, That the said clause stand part of the Bill? Their Lordships divided:—Contents, 30; Not-Contents, 16: Majority 14.
§ Clause 19 (Patron may forbid the sale of presentations in certain eases).1224
THE ARCHBISHOP OF CANTERBURY
said, he believed that in the first Select Committee the question of the sale of next presentations was discussed, and a proposal to make the sale of the next presentation illegal was lost by I vote. In the second Select Committee, of which he had the honour to be a Member, the matter was not considered, as it was thought better to leave the subject to be discussed by their Lordships' House. There was, however, this difficulty—that the Bill not only left matters exactly as they now were, and thereby affirmed sub silentio the practice of selling next presentations, but went further in the present clause and by implication if not distinctly legalized the sale of next presentations. It might be true that the sale had been legal from time immemorial; but it would be very difficult to produce any statutable authority by which the patron was authorized to sell the next presentation of a living in his gift. This 19th clause, however, involved the admission that the patron might sell the next presentation of his living. He now proposed what he had wished to recommend in the Select Committee—that their Lordships should consider the question of the legality of these sales or otherwise and there was, as it seemed to him, no better mode of raising the question than by moving the Amendment of which he had given Notice—that from and after a certain date, sufficiently remote to prevent any person from being injured, the sale of next presentations should be illegal. He would venture to say that, just as with regard to resignation bonds, it was only a question of time when their illegality would be declared, so the same thing might be said as to the sale of next presentations. He thought he was very liberal in allowing the term of 10 years during which they might be recognized, and prohibiting them afterward; because he had a strong moral conviction that before the end of 10 years they would be swept away altogether. He believed that there was no instance in any other profession of men to whom an important trust had been committed being able to dispose of the right of presenting to it for money. Such a right used to exist in certain offices, but it had passed away. By no assent on the part of the Church of England, but owing to a certain scrupu- 1225 lousness as to the rights of property, the right of sale of next presentations still lingered in certain patrons in the Church of England. He did not know what distinction might be drawn between the patronage of a layman who might be lord of the manor or the proprietor of a great estate who might have Church patronage vested in him, and the same patronage when vested in a high official such as the Lord Chancellor, or in an ecclesiastic, in virtue of his holding for life a certain ecclesiastical position. And if it would be out of the question, according to the common rules of morality as now understood, that a public patron should sell his next presentation, he wished that some of their Lordships would tell him the distinction between a public and private patron in this matter. It might be said that a private patron held his patronage as a matter of property; but the fact of a trust being hereditary did not take it out of the category of other trusts. We had had great legal and other offices that were hereditary. The Justice General of Scotland used to be an hereditary officer: we had at the present time an hereditary Lord Great Chamberlain, but what would be thought of him or of some other Lord Chamberlain who, because he had succeeded to his high office and position as a matter of heir ship, thought that he was justified in making a market of any office that he had to bestow in virtue of that hereditary position? No real distinction could be made between the duties which devolved upon private patrons and those which devolved on public patrons in this matter. There was a time, no doubt, when public patrons had acted in other professions in the way in which it was contended that private patrons ought to act now—no doubt, there had been times when high and important offices in Courts were more or less regarded as the property of the Judge who appointed to them. They had not to go back to the time of the great Chancellor Bacon to know that in times past there existed something similar to this in all the professions; but fortunately it had died out in all the professions but one, and that a profession in which above all others we should least have expected to find it. In that profession also it had entirely died out in reference to all public patrons; and 1226 he did not see why private patrons should desire to retain what with one voice they condemned in all public patrons. It might be urged, as it had been, against every good reform, that it would be extremely difficult to carry your reforms so completely into effect that the law should not be from time to time evaded. Then, it was said that excellent men had been appointed to livings by the sale of next presentations. He made no doubt of that; and he made just as little doubt that in all the other great professions where such customs once prevailed, eminent and most distinguished men rose through the practices which existed in former times, and which a purer state of public opinion had since removed. He was of opinion that many patrons would be very thankful to be relieved from this disagreeable privilege—for, after all, a conscientious patron considered patronage as a trust. A conscientious man might, of course, make great mistakes in the exercise of his trust—by being misled he might appoint a man who turned out to be very unfit for the position; and the conscientious patron who made this mistake always looked on his mistake with great sorrow that he had been misled. But when he went to a clerical agent and placed his trust in his hands, he entirely divested himself, or at least tried to divest himself, of the responsibilities which as a patron devolved on him. A young man entering on life might feel a deep sense of the responsibility that had fallen on him—he was determined righteously to fulfil the conditions of his position as a landlord, and in every other way:—he happened to be the owner of the advowsons of several livings:—he fell into embarrassments, and the first thing that might occur to him to extricate himself would be to sell his next presentations at the same time that he sold his hunters. Under such circumstances, a young man would be only too glad to be relieved from the temptation of divesting himself of the deep responsibilities of choosing a fit man to exercise the cure of souls in parishes with which he was connected. He did not believe, if it were right, that it would be wise to hide any of the faults of that system under which we lived. He did not believe it would be effectual, and he was certain it would be wrong. His 1227 view of the mode of maintaining the Church of England was this, that with an unsparing hand they should correct everyone of its abuses. This by the great majority of the people of England was regarded as one of its abuses, and he should only be too thankful if their Lordships would follow him into the Lobby, and vote that the sale of the next presentations ought to be put a stop to. The most rev. Primate concluded by moving to leave out Clause 19, and insert the following Clause in lieu thereof:—From and after the 1st day of January, 1867, it shall not he lawful to grant the right of presenting to any avoidance of a benefice apart from the grant of the advowson of such benefice: and any grant made contrary to the provisions of this section shall be to all intents and purposes void.Where the right of presenting to any avoidance of a benefice is before the commencement of this Act vested in any persons upon trust to sell the same, they may execute such trust notwithstanding anything to the contrary contained in this section."—(The Lord Archbishop of Canterbury.)
THE LORD CHANCELLOR
said, he could not help regretting that the most rev. Prelate had seriously proposed this Amendment. He believed that if adopted it would be entirely fatal to the Bill. It was altogether opposed to the principle on which their Lordships proceeded when the Bill was read a second time; for if there was one thing made more clear than another in the discussions on the Bill, it was the intention of their Lordships not to disturb the system of lay patronage as it at present prevailed in this country, recognizing that from that system good and not evil had resulted. The arguments of the most rev. Prelate were not against the sale of next presentations, but of advowsons. He pictured to their Lordships the case of some owner of property reduced to embarrassment compelled to sell his hunters and at the same time selling his "advowson"—then correcting himself he said, "his next presentation." But when a man was in such embarrassment as to be compelled to sell his hunters was he likely to make much distinction between his "next presentation" and his "advowsons." The most rev. Prelate's whole argument was against the sale of advowsons. That was at once a departure from the principle on which the most rev. Prelate who proposed the Bill announced his intention not to inter- 1228 fere with the system of lay patronage. The most rev. Prelate asked what difference there was between a public and a private patron. A public patron could not sell the perpetual right to present—he could not divest himself of that which reposed in him the obligation and trust of presenting to a living of which he was a trustee. But with regard to a private patron the law said he could divest himself of that trust to one who was willing to recompense him in money for that which he parted with. If that was so, where was the distinction in point of principle which made it a more heinous offence to sell the next presentation than to sell a perpetual right to present? But this Amendment would not effect the right rev. Prelate's purpose. An enactment of that kind to stop the sale of next presentations would be perfectly illusory. How would a clause of this kind affect Roman Catholic patrons—one of whom (Lord Arundell of Wardour) had spoken early in the evening? They might not desire to let any advowson pass out of the family; but they could not exercise the right of presentation. What would they have to do except to sell the next presentation? To forbid that would he positively confiscating their property. He believed the course proposed by the most rev. Prelate would be fatal to the progress of the Bill.
§ LORD CAMOYS
agreed with the last remark of the noble and learned Lord that if the right to sell next presentations were taken away it would amount absolutely to confiscation.
§ LORD OVERSTONE
said, that the present system had, on the whole, worked satisfactorily, and if the Bill were sent down to the other House with a clause forbidding the sale of next presentations it would raise questions which he, for one, would be most anxious to avoid. He agreed with the Lord Chancellor that the arguments urged in favour of this Amendment were directed really against the sale of advowsons at all. It would be most dangerous to set up a new system at variance with the universal practice of the country. The right of the patron was that of presenting to the Bishop a clergyman for induction. The duty of the Bishop was to satisfy himself as to the qualifications, moral, intellectual, and physical, of the clergyman so presented to him, before he proceeded to induct him into the spiritualities of the 1229 living. The Bill in all its clauses was directed to the one sole object of strengthening the hands of the Bishop; removing all impediments, and giving to him all necessary powers for the efficient discharge of this duty. Beyond that the Bill did not go. It left the question of Church patronage—the sale of advowsons, or of next presentations wholly untouched.
§ LORD BLACHFORD
desired to state what, to his mind, was the difference between the sale of an advowson and the sale of a next presentation. A right of presentation was admitted to be a property incident to a trust; which trust might be broken in two ways, either when the trustee made an unfit appointment, or when he converted to his own use the monies of which he had to determine the application. In the former case the breach was of a kind which it might be difficult to deal with by mere law; the second was of a kind against which it was the special function of the law to provide. Now, the sale of an advowson was, as a general rule, the total transfer of the trust and property, and was, on the face of it, liable to neither of those objections. The sale of a next presentation was, on the contrary, in the majority of cases, a sale to a person who had in his eye a particular nominee, and who intended to pay for the presentation out of money which belonged, or ultimately would belong to that nominee. Whenever that took place, the result evidently was to charge the officer appointed, that was to say, practically, the office itself, with the payment of a sum of money to the person who appointed that officer; and thus the sale of next presentations became a machinery for effecting such a breach of trust as was most offensive to the law—the personal appropriation by the trustee—that was, the advowson holder—of the property of the cestui que trust, that was, the holder of the living and the congregation who were interested in his liberal maintenance.
THE ARCHBISHOP OF YORK
asked the House to consider the position in which it stood with respect to this question. The right rev. Prelate who had the conduct of the Bill (the Bishop of Peterborough) when he first introduced the subject to their Lordships' notice, pointed out that there existed very great difficulties with respect to patronage. 1230 Their Lordships, after very long discussion, granted a Select Committee, in which this proposition was in substance made; but it was lost by a majority of one at a time when all the Members of the Committee were not present. When their Lordships appointed the Select Committee it was fair to suppose that it was intended to deal with the matter which had given rise to the whole proceeding; but he did not find in the Bill anything which would limit this traffic in any great degree. He feared therefore, that they were running the risk of turning out a Bill the result of two Select Committees and of full discussion in this House, which would go far to show that this "abominable traffic" as it had been described by the right rev. Prelate himself—was quite beyond the reach of legislation. The reason why he supported the clause of the most rev. Prelate was that without it their Lord-ships would be making a confession of weakness to the country. The argument was that they must not deal with property at all; but their Lordships were pledged to deal with property sufficiently at least to secure the end in view. No suggestion had been made, and there was no provision in the Bill, which, without this Amendment, would have the effect of putting a stop to this traffic.
§ THE MARQUESS OF SALISBURY
said, he thought they were getting into a difficult if not a dangerous position. There were two evils which might be brought about if the proposal which seemed to find favour with the right rev. Bench were accepted. If they succeeded in passing the clause it was possible they would only be successful in procuring the rejection of the Bill altogether at a future stage; or it was possible they might succeed in time. But if the right rev. Bench succeeded in stopping the sale of next presentations there was no reality in logic if they did not stop the sale of advowsons too; and when they had done that the next thing would be that advowsons would be abolished altogether. And were the Episcopal Bench in such a state of happy illusion as to think that they would be allowed to retain presentations when everybody else had lost them? He would vote most earnestly against this proposition; and if he had not been led to believe that there was no intention on the part of the authors of the Bill to touch 1231 this question of next presentations he would have voted against the second reading of the Bill.
THE ARCHBISHOP OF YORK
said, unless something was done to restrain the evil which caused their Lordships to embark in these debates, the Bill might as well go. There was no wish on the part of his episcopal brethren to take advantage of the present thin state of the House; but if the Amendment were carried now, it might be re-considered in a fuller House.
THE LORD CHANCELLOR
said, the clause was not in the Bill, and was now for the first time proposed, the House at large not knowing of any such proposal. He hoped, therefore, that it would not be pressed.
THE ARCHBISHOP OF CANTERBURY
thought it could hardly be said that the clause was proposed unexpectedly. His right rev. Brother (the Bishop of Peterborough) had spoken strongly respecting it from the first. He himself had mentioned it in the Select Committee, and he understood that the Committee agreed that he should propose this Amendment to the House, and his episcopal brethren regarded it as almost vital if the measure was to be of any real use.
THE BISHOP OF PETERBOROUGH
said, that in introducing this subject last year he had spoken strongly against the sale of next presentations, drawing a broad distinction in principle between the sale of next presentations and the sale of advowsons. He had not inserted the clause in the Bill because it was not assented to by the Select Committee; but he had expressed his deep regret in this House that the clause had not been carried in the Select Committee, and had said that it would be quite open to anyone to move the insertion of such a clause; in which case, he added, he should be quite prepared to vote for it. The most rev. Primate also, in the conversation which followed the second reading of the Bill, stated that he would take an opportunity of raising this question; and therefore there had been nothing like a breach of faith—which, of course, no one imputed; on the contrary, there had been the greatest anxiety to make clear to the House that this question would in some form or other be raised. He had gathered from the noble and learned Lord that the Amendment, if adopted, would be fatal to the Bill, and this state 1232 ment was made on the part of those who had ample means of fulfilling their prediction. To carry the Amendment would, therefore, be tantamount to the rejection of the Bill. Now, he did not agree with the most rev. Prelate (the Archbishop of York) that the Bill as it now stood was worth nothing. On the contrary, he thought the Bill contained clauses of very great value, which would seriously check the evils connected with Church patronage. Still, having strongly expressed his opinion in favour of the Motion, he should certainly vote for it if the most rev. Primate insisted on pressing it to a division.
§ On Question that Clause 19 stand part of the Bill? Their Lordships divided:—Contents 25; Not-Contents 20: Majority 5.
|Cairns, L. (Z. Chancellar.)||Halifax, V. [Teller.]|
|Portman, V. [Teller.]|
|Somerset, D.||Chichester, Bp.|
|Lansdowne, M.||Arundell of Wardour, L.|
|Beauchamp, E.||Camoys, L.|
|Cadogan, E.||Crewe, L.|
|Camperdown, E.||Hammond, L.|
|Devon, E.||Oranmore and Browne, L.|
|Powis, E.||Overstone, L.|
|Stanhope, E.||Redesdale, L.|
|Stanley of Alderley, L.|
|Cardwell, V.||Winmarleigh, L.|
|Canterbury, Archp.||London, Bp.|
|York, Archp.||Manchester, Bp.|
|Mount Edgcumbe, E.||Peterborough, Bp.|
|Bangor, Bp.||St. Asaph, Bp.|
|Ely, Bp.||Winchester, Bp.|
|Gloucester and Bristol, Bp.||Blachford, L. [Teller.]|
|Coleridge, L. [Teller.]|
|Hereford, Bp.||Lyttelton, L.|
|Llandaff, Bp.||Waveney, L.|
§ Remaining clauses agreed to; with Amendments.
§ The Report of the Amendments to be received on Friday next; and Bill to be printed, as amended. (No. 122.)