Lords Sitting of 15 March 1887

MINUTES.
PUBLIC BILLS—Committee—Church Patronage (26).
Report—Justices' Jurisdiction* (24).
PROVISIONAL ORDER BILL—Committee—Report—Local Government (Ireland) (Carrick-on-Suir)* (30).

LAW AND JUSTICE (ENGLAND AND WALES)—OURTHOUSES—ACCOMMODATION FOR PRISONERS AWAITING TRIAL.

  QUESTION. OBSERVATIONS.
  THE MARQUESS OF RIPON THE MARQUESS OF RIPON, in rising to ask, Whether Her Majesty's Government intend to lay before Parliament the Report of the Committee appointed by the Home Department to inquire into the state of the lock-ups and other places in which prisoners await trial in various parts of the country? said, they were now approaching Quarter Sessions, when the question to which the Report related could be considered by the County Authorities, and for many reasons it would be well for the Report to be circulated. In some eases the work required to set matters right would entail but a small outlay;the ugh in other cases the expense would, no doubt, be considerable.
  THE PAYMASTER GENERAL (Earl BEAUCHAMP): My Lords, the Paper referred to by the noble Marquess has been presented to Parliament, and was circulated among your Lordships on Friday. The Paper is a small one, and as a large number of Blue Books was circulated on the same day the small Paper possibly escaped the attention of the noble Marquess. The question was a grave one, and as soon as the Report reached the Home Secretary he took it into his consideration and addressed a Circular to all the County
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  and Borough Authorities in England, inviting their consideration to the matter, as they were the parties with whom its settlement mainly rested. But the se matters did not rest entirely with the se authorities, as the sanction of the Treasury might be necessary before any expenditure was incurred.

  CHURCH PATRONAGE BILL.—(No. 26.)
  (The Lord Archbishop of Canterbury.)
  CHURCH PATRONAGE BILL.—(No. 26.)

    COMMITTEE.
    House in Committee (according to Order).
    Clause 1 agreed to.
    Clause 2 (Rights of alienation).
    THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)said, that the object of the Amendment which he had put upon the Paper was to carry out the view which he ventured to express when the Bill was before their Lordships on the second reading, and that was altogether to get rid of the Council of Presentations. It appeared to him that the Council would be highly objectionable, as it introduced the principle of election into the management of Church patronage. He also objected to it because it would place a man on his trial as to his character before Judges who would be, in a great measure, elected Judges. But the greatest objection of all was, that it would remove from the Bishop that responsibility which he ought to exercise in this matter, which was partly his, and which he could discharge much better than a Councilor anyone else. His desire was to remove the Council of Presentations altogether from the Bill. Such a Council as proposed would be placed in an anomalous position if deprived of its jurisdiction in regard to presentations, because it would be endowed with functions which it would rarely have to discharge. The first remaining function it was proposed to entrust to it was to decide whether the sale of an advowson should take place;and the second was to accept advowsons from the se persons who should be willing to entrust them to it, when the sale of advowsons to agents and by auction had been destroyed. There would rarely be any adowsons sold, and it would be hardly necessary to bring such an elaborate elective

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    Council as that proposed by the Bill into existence to perform functions which it would seldom or never be called upon to perform. The Council was to be elected by a double kind of election, and if there was no work for the Council to do, they would hardly get people to go through so much trouble. The whole thing would become rusty and obsolete. If the duty of the Council, then, was only to say whether a sale of an advowson should take place, it had much better be appointed in a more simple manner. As to accepting advowsons from persons desirous of presenting them to the Council, the duty would be almost a sinecure. When did the most rev. Prelate ever hear of a person desirous of handing over his right of presentation to an elective body? Such an occurrence would not happen once in 100 years, and he urged that it would be rather a rash process to call into existence a Council for this purpose only. The best settlement, under the circumstances, would be to purge the Bill of this Council of Presentations;and in pursuance of that object he would move an Amendment constituting a Council of the Archdeacon, the Chancellor of the Diocese, the Rural Dean, and two laymen to be nominated by the Lord Chancellor. The object of placing the Archdeacon and Rural Dean on the Council was to insure that it possessed local knowledge. The duties which the Council he proposed to appoint would have to perform would be to determine whether, in case of the sale of an advowson, the purchaser was a person who ought to hold the patronage or not. The point he wished to press upon the House was, that the elective Council proposed by the Bill must be got rid of, as it was hardly worth while keeping such elaborate machinery in existence merely for the purpose of judging as to the character of the purchasers in the rare cases where advowsons were sold. He begged to move the Amendment of which he had given Notice:—
    Amendment moved, page 1, line 8, leave out Sub-section (1.) and insert:—
    " (1.) A right of patronage shall not after the commencement of this Act be sold until the proposed purchaser is certified under this section to be a fit person to possess such right of patronage.
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    "(2.) A person desiring to sell his right of patronage in any diocese shall apply in writing to the bishop of that diocese for the said certificate, and the bishop shall refer the application to a commission, consisting of the archdeacon as he may nominate, the chancellor of the diocese, the rural dean, and such two laymen as may, on the application of the bishop, be appointed by the Lord High Chancellor of Cheat Britain in each case.
    "(3.) If any three members of such commission consider the proposed purchaser to be a fit person to possess the right of patronage proposed to be sold, they shall certify the same in writing under their hands, and cause such certificate to be sent to the applicant for the same.
    "(4.) The commission may make such inquiry into the circumstances of the proposed sale, and the position and character of the proposed purchaser, as they may think necessary, and before refusing a certificate shall give the persons concerned, or any of them who desires it, an opportunity of attending before the commission and giving such explanations as they or he think fit.
    "(5.) The acts and proceedings of the commission shall be conducted in accordance with the prescribed regulations.
    "(6.) The bishop shall, as soon as practicable after receiving an application under this section, cause the commission to be formed and take into consideration the application, and shall, within four months at most after the application, inform the applicant of the result thereof.
    "(7.) For the purposes of this section, 'sale' includes any transfer in consideration of money or money's worth."—(The Marquess of Salisbury.)
    THE BISHOP OF LONDONsaid, he considered it was of the greatest importance that the Bishop of the Diocese should be kept free from all sales of presentations. He, therefore, asked whether the noble Marquess would go a step further and keep the Bishop of the Diocese clear from all sales of patron- age? He did not see any objection in principle to the proposed Amendment;but he should wish to sec the Chancellor of the Diocese substituted for the Bishop in regard to taking cognizance of the sales of advowsons.
    LORD GRIMTHORPEsaid, he saw no use in all this meddling with patrons, now that they had given the Bishops sufficient control over presentations—as he had himself proposed on the second reading—and seeing that Papists, Jews, Dissenters, and Atheists, who wore all hostile to the Church, and trustees and executors, who might not care about it, or the parish, had full right to present. Surely people who bought advowsons were more likely to make good presentations than they were. Notwithstanding

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    the most rev. Prelate's assurances that the Bishops had not the least intention to injure private patrons, two Bishops in the York Convocation had distinctly intimated in speeches, which he quoted, their wish to make it altogether unsaleable, and he had letters saying that some families would be ruined thereby. It was not desirable to make too many experiments at once. It would tend to lower the character of the clergymen if their patrons wore subject to an examination as to their fitness to buy, and if a Council were to make inquiries be-hind their backs as to their qualifications, and were to listen to any gossip about them. It was to be presumed that purchasers of advowsons were fit men, and the proposed Council was quite unfit to try them.
    THE BISHOP OF LICHFIELDsaid, he had placed upon the Paper an Amendment of the same scope and tendency as that of the noble Marquess. He thought that under the Bill the Bishop would be sufficiently powerful to do all that it was proposed should be done by a Council, and that he could do it in a better way. He thought that a Council would be a useless encumbrance, and that the machinery of the Bill was altogether out of proportion to the evils it was intended to remedy. This question was often regarded as a question of Church reform;it was, in reality, a question of Church defence. What the Church really asked for was protection against the scandals introduced into the Church by persons from without, and the great object of the Bill ought to be to hinder such transactions, but beyond that to allow the sale of advowsons and the transfer of livings to be sanctioned wherever they were bonâfide. Up to the present time, the Church had no share in such transactions as the purchase or sale of livings;but if this Bill were passed in its present form they would have archdeacons and others going into the market to purchase alongside the jobbers. It would be really discreditable to the Church that a Council appointed at her suggestion should be entrusted with the power of going into the market to purchase livings. The Bishop had a Council—and he had made use of it for many years—his own Cathedral Chapter, by which he would be much better aided than by the Council proposed in the Bill."
    THE EARL OF SELBORNEsaid, he had always thought the object to be aimed at was to cut off the direct purchase of next presentations, and to throw some safeguards around the sale of advowsons, for the purpose, and only for the purpose, of preventing that from being done indirectly which ought not to be done directly—namely, the purchase of the spiritual office, with cure of souls.
    LORD HERSCHELLsaid, that the sub-section provided that the Bishop should, within four months after the application, inform the proposed purchaser of the result, but no penalty was attached to non-compliance. He would suggest that that objection might be met by providing that if within four months no answer was received the sale might proceed.
    THE ARCHBISHOP OF CANTERBURYhoped that the clause of the noble Marquess would be accepted. He could not see any religious objection to the law providing that some moans should be taken to secure that the patron should be a fit person to possess such a right of patronage. He hoped, however, that, instead of the Bishop, the Chancellor or Vicar General would be named;because from time to time Bishops certainly would refuse to take any part whatever with respect to sales. He would ask whether the noble Lord behind him had not misunderstood the expression in the 2nd clause as to the application of the Bishop? He did not understand that the Bishop was to suggest two names to the Lord Chancellor, but to make application to the Lord Chancellor to appoint two such persons as he should think fit.
    Amendment amended.
    THE BISHOP OF LONDONsaid, there was a great anxiety felt that the Bishops should not be at all brought into this matter, and he would suggest to the noble Marquess that all through the sub-sections of his Amendment the "Chancellor of the diocese" should be called upon to act instead of "the Bishop."
    THE MARQUESS OF SALISBURYsaid, he would consent to the alteration desired by his right rev. Friend being made in his Amendment, the words "Chancellor of the diocese" being substituted for "the Bishop."
    Amendment further amended, and agreed to.
    Clause, as amended, agreed to.
    Clause 3 amended, and agreed to.
    On the Motion of The Marquess of SALISBURY, Clause 4 struck out of the Bill.
    Clause 5 amended, and agreed to.
    Clause 6 (Registration of transfers).
    THE BISHOP OF LICHFIELDsaid, the Amendment he was about to move had for its object the prevention of the traffic in the sale of livings. He therefore trusted their Lordships would give it their favourable consideration.
    Amendment moved, in page 3, line 29, after ("prescribed") insert—
    "No grant or assignment of any right of patronage in consideration of money or money's worth shall be valid within a period of five years from the date at which the said right of patronage shall previously have been so granted or assigned, unless on occasion of the death of the patron for the time being.''—(The Lord Bishop of Lichfield.)
    THE LORD PRESIDENT OF THE COUNCIL (Viscount CRANBROOK)said, he did not think the adoption of the hard-and-fast line of the Amendment would be desirable, when the Bill provided an inquiry in the case of a sale.
    LORD GRIMTHORPEopposed the Amendment.
    THE ARCHBISHOP OF CANTERBURYsaid, he thought the better course would be to leave the consideration of this matter over until the Report, when it might be again proposed in an amended form.
    Amendment negatived.
    Clause agreed to.
    LORD STANLEY OF ALDERLEY LORD STANLEY OF ALDERLEY moved, after Clause 6, to insert the following clause:—
    (7.)"The provisions of the Lord Chancellor's Augmentation Act, 1863, shall extend to all benefices in Wales of a yearly value of less than two hundred and fifty pounds in the gift of the Lord Chancellor and which are not named in the schedule of the said Act."
    THE EARL OF SELBORNEopposed the clause.
    Clause negatived.
    LORD STANLEY OF ALDERLEY LORD STANLEY OF ALDERLEY moved to insert the following clause:—
    (8.) "It shall be lawful for the Archbishops and Bishops, if they think fit, to sell the patron-age of benefices in their gift in accordance with the provisions of the Lord Chancellor's Augmentation Act, 1863."
    Clause negatived.
    On the Motion of The Marquess of SALISBURY, Clauses 7 to 13, inclusive, struck out of the Bill.
    Clause 14 amended, and agreed to.
    Clause 15 (Letters testimonial).
    LORD GRIMTHORPE LORD GRIMTHORPE, in moving, as an Amendment, in Sub-section 1, to leave out the words "in the form now usual, or if any form be prescribed," said, that clergymen desirous of giving testimonials in the usual form were sometimes in the difficulty that, although they were perfectly willing to testify to the presentee's good character, they were unable to say, in the words of the usual form, that they had never "heard" anything to the contrary, because they had heard it and found it to be utterly untrue. The present form had been decided in "Marshall v. Bishop of Exeter" not to be legally requirable.
    Amendment agreed to.
    Clause, as amended, agreed to.
    Clause 16 (Objections by parishioners).
    On the Motion of The Marquess of SALISBURY, the following Amendments made:—In page 8, line 3, leave out ("on the Council of Presentations to advise him to refuse");leave out Subsections (4.), (5.), (6.), (7.)
    Clause, as amended, agreed to.
    Clause 17 (Grounds of Bishop's refusal to institute).
    THE MARQUESS OF SALISBURY THE MARQUESS OF SALISBURY, in moving, as an Amendment, to leave out Sub-sections 1 and 2, in order to insert these words—
    "The Bishop may refuse to institute any presentee who appears to the Bishop to be unfitted for the discharge of his pastoral duty by reason of physical infirmity, of pecuniary embarrassment, or of his evil life,"
    said, they proposed to limit the grounds on which a Bishop might object to a presentee. The conditions in the Bill were rather wider than the se in his Amendment. The Bishop's discretion ought not, in his opinion, to be extended so far as the Bill carried it. No doubt it was right to exclude aged clergymen, wherever ago carried with it physical or mental infirmity;but there was nothing to create a presumption that every man of 70 was unfit to discharge important duties. It was often the case that the most important functions were performed

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    by men over 70, and he saw no reason, therefore, why the attainment of that age should be a ground for the Bishop's refusing to institute, as proposed by the clause. Nor could he understand why it should be a ground of rejection, as proposed, that the presentee had not been in Priests' Orders two years. By a side-blow, in a Bill of this kind, it was proposed to introduce into the Church a new order of men capable of being curates, but not of being incumbents. Then, again, he could not agree with the third reason for non-institution, that some question ought to be further investigated with regard to a presentee. How could their Lordships tell what questions required further investigation? The Amendment which he now proposed recognized the responsibility of the Bishop within certain well-understood limits. The discretion of the Bishop to reject a presentee was made absolute by the Amendment in the case of physical infirmity, pecuniary embarrassment, or evil life.
    Amendment moved, to leave out Subsections (1.), (2.);and in page 9, line 19, after ("section") insert as a separate sub-section—
    "The Bishop may refuse to institute any presentee who appears to the Bishop to be unfitted for the discharge of his pastoral duty by reason of physical infirmity, of pecuniary embarrassment, or of his evil life."—(The Marquess of Salisbury.)
    THE BISHOP OF CHICHESTERsaid, he thought that the provision of the Bill enabling Bishops to refuse to institute a presentee who had not been in Priests' Orders two years ought to be sustained. If it were struck out of the clause, the rectorship of a parish might be given to a young person ordained at 23 years of age. The important duties of a rector ought not to be given to a young man immediately on taking Priests' Orders, and after having only been in Deacons' Orders one year.
    LORD BRABOURNEsaid, that the remarkable feature of the present Bill was the reluctance of the Bishops to take responsibility upon themselves. He was of opinion that it was better to give the Bishops a wider discretion than even that proposed by the Amendment, as otherwise some loophole would be offered through which improper presentees would slip. There might be valid causes for refusal of institution
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    apart from the se set forth in the Amendment of the noble Marquess. For instance, if a Bishop had reason to know that a particular individual was so obnoxious to a parish that his ministration therein was almost certain to be a failure, it might be well for both the parish and the clergyman that there should be discretion to refuse institution. If their Lordships had confidence in the Bishops this discretion might well be given.
    THE BISHOP OF LONDONsaid, that he would not oppose the Amendment of the noble Marquess, but he thought it would be a great advantage to the Church if it were made requisite before a young man undertook the duties of an incumbent that he should spend some time, say at least two years, in learning them while acting as curate. He would be rather inclined to make it necessary that a man must be in Priests' Orders five years instead of two before being eligible for a living, as he looked upon the latter term as being too short a one, instead of being too long.
    THE EARL OF SELBORNEsaid, he did not think two years' probation would be too much;and he was willing that the Bishop should have power to refuse institution to a man over 70 years of age, because he felt sure that such a power would not be in all cases arbitrarily exercised. He agreed with the noble Marquess that the attainment of 70 years of ago was not of itself a disqualification, in all cases, for the duties of a rector, if unaccompanied by mental or physical infirmity.
    LORD GRIMTHORPEsaid, he thought that the Church Discipline Act worked better than this Act would work, as this would enable a Bishop to be judge himself, without resorting to a Court for a decision. He was decidedly in favour of the Amendment of the noble Marquess.
    THE MARQUESS OF SALISBURYsaid, that one of the objects of the Amendment was to prevent what was known abroad by the term chantage—namely, the attempt to make people pay for silence.
    THE EARL OF SELBORNEsaid, he thought the Amendment, as it stood, inadequate, so far as "evil life" was concerned. To condemn a man on the ground of evil life would be unjust, unless the charge of evil living were judicially investigated and regularly

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    proved. But there might be scandal so grave and so notorious as to be, both in reason and on the principles of ecclesiastical law, as sound an objection to the presentee as if the justice of the charge were ever so clearly proved. He would propose, as an addition, after the words "evil life," the insertion of the words—
    "Or such grave scandal or evil report concerning his moral conduct that he ought not to be instituted to the benefice in question."
    LORD GRIMTHORPEobjected to the suggestion;because this ground might really have no foundation in fact.
    THE MARQUESS OF SALISBURYsaid, that the question raised by his noble and learned Friend (the Earl of Selborne) was a very difficult one;but, on the whole, he thought it would be better not to insert such a ground. They knew how easily scandal was raised, and great injustice might be done a presentee by such a provision.
    THE EARL OF SELBORNEcontended that, without the insertion of the provision he had mentioned, a Bishop might be unable to prevent the presentation of a man whoso reputation was such that he could do no good in a now parish, and that the effect of the addition of the words would really be to prevent the few patrons who might be capable of presenting such men from ever doing so.
    THE MARQUESS OF SALISBURYsaid, that he had no objection to the alteration of his Amendment as proposed by the noble and learned Earl.
    Amendment amended, and agreed to.
    LORD GRIMTHORPEsaid, that he had put on the Paper three Amendments in succession, all of which raised the very important question to whom the appeal should be from the Bishop. Their Lordships had to consider in this matter what was likely to give satisfaction to the persons involved in the se proceedings, the presentee, and the person presenting. It was very important that the appeal should not be, as proposed in the Bill, from the Bishop to the Archbishop of the Province. And, therefore, he proposed in page 9, lines 25 and 26, to leave out the words "Archbishop of the Province," in order to insert—
    "Three other bishops, of whom one shall he nominated by the bishop refusing institution,
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    another by the presentee, and the third agreed on by the other two, and he shall preside, and the se three shall be called the bishops of appeal;but none shall be bound to act without his own consent."
    Nobody could read the newspapers without seeing that whatever was done by a Bishop or Archbishop of one way of thinking was sure to be found fault with by persons of a different school of thought. If the appeal was from a Bishop to an Archbishop whose leanings were known there would be great dissatisfaction. The matter was one which did not involve any great amount of argument;but he believed the effect of the Amendment would be to enable the public generally to see that what was done was done without prejudice. He thought it was extremely important that the public should believe that justice was done, and that none should be able to say that a refusal had been made because the principles of the presentee were disliked by the Bishop. Their Lordships would recollect how the late Bishop of Manchester was attacked by two or three Deans for exorcising his discretion not to allow what he said would be anarchy in the diocese. Could there be any better mode invented for giving a satisfactory appeal than that proposed by his Amendment? If a better one could be brought forward he should be ready to adopt it. What he proposed was analogous to the practice adopted in many other cases where questions were referred to arbitration;and he believed it would give security to the public that the action taken was fair and impartial. the Bill itself gave an appeal from the Archbishop to three Bishops when the Archbishop had the primary jurisdiction, so that there was no question of dignity involved.
    Amendment moved,
    In page 9, line 22, leave out ("in the prescribed form");lines 25 and 26, leave out ("the archbishop of the province'') and insert ("three other bishops, of whom one shall be nominated by the bishop refusing institution, another by the presentee, and the third agreed on by the other two, and he shall preside, and the se three shall be called the bishops of appeal, but none shall be bound to act without his own consent");line 29, leave out ("archbishop") and insert ("bishops of appeal");line 31, leave out from ("The") to the end of the subsection and insert ("bishops shall hear the case both originally and on appeal in the presence of such persons only as they shall think necessary or for some special reason expedient, and not in public, and with such legal assistance as they

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    may think fit");line 31, leave out subsection (6.) and insert ("The decision of the bishops of appeal, or any two of them, shall be given in writing to the presentee and the bishop who refused him, and if it is in favour of the presentee he shall have a right to be instituted as been as possible by the bishop or his vicar-general");line 38, leave out subsection (7.)."—(The Lord Grimthorpe.)
    THE EARL OF SELBORNEsaid, he could not agree to displacing the Archbishop altogether;but if their Lordships thought that the whole responsibility should not be thrown on the Archbishop, they could direct that there should be episcopal assessors appointed to act with him.
    LORD GRIMTHORPEsaid, that he had no objection to the alteration proposed by his noble and learned Friend. It would fully meet his view.
    THE MARQUESS OF SALISBURYsaid, he thought it would be better to leave the responsibility wholly to the Archbishop;it would be placing the Bishops in an invidious position to make them act as arbitrators or assessors.
    Amendment negatived.
    Clause, as amended, agreed to.
    Clauses 18 and 19 separately agreed to, with Amendments.
    Clause 20 (Roman Catholic patron may nominate).
    On the Motion of The Lord GRIM-THORPE, the following Amendments made:—In page 10, line 23, leave out from ("section") to end of line 31, and insert—
    ("Notwithstanding any existing Act, a Roman Catholic patron may present to a benefice on the same conditions as any other patron, but the Bishop may refuse the presentee unless he is satisfied that he is a bonâfide member of the Church of England, and has duly had episcopal ordination as a priest.")
    Clause, as amended, agreed to.
    Clause 21 agreed to.
    Clause 22 (Lunacy of incumbent).
    Amendment moved, in line 24, to leave out from ("or") to ("the") in line 29, and insert—
    ("Where it shall be proved to the satisfaction of the Bishop that any incumbent has for two whole years been prevented by any infirmity of mind or body from performing the duties of his office.")—(The Karl Cowper.)
    THE BISHOP OF LICHFIELDsaid, that the Amendment would inflict a hardship in a large number of cases where two years' rest was required to restore an incumbent to health.
    THE ARCHBISHOP OF CANTERBURYsaid, that if a clergyman were negligent, and were not quite unable to perform some duty, he might evade the operation of the Amendment by doing some duty just before the two years had been completed. At the same time that the Amendment would thus not enable a parish to get rid of a negligent incumbent, he agreed that it would inflict a hardship in many cases.
    On the suggestion of The Marquess of SALISBURY,
    EARL COWPERsaid, he would bring up the Amendment on Report in a different form, by which provision should be made for the outgoing incumbent.
    Amendment (by leave of the Committee) withdrawn.
    Clause agreed to.
    Clauses 23 to 26, inclusive, agreed to, with Amendments.
    Clause 27 (Order in Council).
    VISCOUNT CRANBROOK VISCOUNT CRANBROOK, in moving the following Amendments:—In page 13, line 23, leave out—
    ("Her Majesty may from time to time, by Order in Council, made upon the recommendation of ");
    line 25, after ("York") insert (" may");line 31, leave out ("Order in Council") and insert ("rule made");line 37, leave out ("or Order");line 38, after ("Order") insert ("in Council"), and after ("same") insert ("and any rule so annulled shall thenceforth be of no effect");and in line 40, leave out from ("rule") to end of clause and insert ("every such rule shall, while in force, have effect as if enacted in this Act"), said, he did so because it was thought better that these Rules should be laid before Parliament on the responsibility of the se who made the Rules, and not as "Orders in Council."
    Amendments agreed to.
    Clause, as amended, agreed to.
    Remaining Clauses agreed to, with Amendments.
    The Report of the Amendments to be received on Tuesday next;and Bill to be printed, as amended. (No. 44.)
    House adjourned at Eight o'clock, to Thursday next, a quarter past Ten o'clock.