§ House in Committee (according to Order).
§ Clause 1.
LORD GRIM THORPEsaid this was only an Amendment of expression. He assumed their Lordships had made up their minds to the principle of the Bill, and therefore would not say a word upon that; but they would see that Sub-section 2 of the clause was expressed very clumsily, and failed to tell people what they were to do. What it really meant, he supposed, was as he had now put it. Lawyers might remind him that by the Act of 1881 covenants were implied though not expressed, but that only referred to those which used always to be expressed, and they were merely allowed to be omitted by that Act to avoid superfluity of language. This was the first time in history that a deed was to be made to say something which it did not say or imply in the smallest degree. If this Bill passed as it was, any person making the smallest assignment in ignorance or under bad advice, and not intending to convey the whole of his patronage, would find that he had conveyed it.
§
Amendment moved,
In page 1, to leave out lines 12 to 15 and insert ("No sale of a right of patronage after the passing of this Act shall be valid which does not transfer the whole right of the vendor.")—(The Lord Grimthorpe.)
§ THE EARL OF SELBORNEthought the noble Lord was right in his criticism, and in the intention of his Amendment, but would suggest the addition of the words "or transfer" after "no sale."
THE LORD CHANCELLORThe only thing that occurs to me is whether this might not give rise to inconvenient questions some time afterwards. The sale is not to be valid if it does not transfer the whole right of the vendor. It may turn out afterwards that it did not transfer the whole right of the vendor, and then the sale is made invalid. But upon that sale there may have been a presentation by the person to whom the sale has been made. That, I imagine, is the reason it was put in the first form: that in whatever way you propose to 629 convey, it shall transfer the right. My noble and learned Friend's suggestion would expose many transactions to being declared invalid, and there might in that way be a doubt as to the result. I suppose that is the reason why it was put in the form which my noble and learned Friend has criticised, but would not his be open to that difficulty?
§ LORD KNUTSFORDI venture to think that if this Amendment is passed, anyone who is making a sale or transfer being aware of the wording of the subsection would take care that the sale or transfer should in words pass the whole right of the vendor, and I should think there could be no difficulty raised afterwards.
§ LORD GRIMTHORPEThen there is nothing else to be done than for the most ignorant transferor to say, "I transfer my right in the patronage," and when he has done that, the whole thing is at an end, and he cannot possibly complain of having been deceived.
§ Amendment agreed to.
THE ARCHBISHOP OF CANTERBURYsaid, the purpose of this Amendment was that sometimes a vendor made an agreement that he would go on paying interest until the living was vacated, and it was desired to put a stop to that being done.
§ Amendment moved, in page 1, line 17, after ("by the") insert ("vendor or"), line 18, after ("by the") insert ("vendor or.")—(The Lord Archbishop of Canterbury.)
§ LORD GRIMTHORPEwas not quite sure whether that was illegal.
THE BISHOP OF LONDONsaid that it had been distinctly held to be legal by the Courts of Queen's Bench or Common Pleas in a case some time back.
§ LORD GRIMTHORPEsaid, he had not questioned the most rev. Prelate's statement of the existing law the other night. He did not himself see any harm in paying interest except upon the principle that gambling must be connected with the transaction to prevent it from being simony.
§ THE EARL OF SELBORNEsaid, the practice operated in a way which substantially affected the general rule as to dealing with advowsons. What was the object of a stipulation for payment of interest in a transaction of this kind? 630 It was obviously something tending to facilitate those arrangements which were contrary to the principle of the Bill, and it had a tendency to the very abuses the Bill was intended to prevent.
§ Amendment agreed to.
§ LORD GRIMTHORPEsaid, this was a much more substantial Amendment than the previous one he had proposed. If their Lordships had read the accounts which he had seen of Debates in Convocation upon the Bill, they would see that this clause required more attention than it lad yet received. This Bill had been discussed by no less than five Debating Societies, the Lower and Upper Houses of Convocation of York and Canterbury, for in this matter both Houses of both Convocations were only Debating Societies, because they had no power under the Crown to legislate, nor had they been in any way consulted by the Crown, as they were on Bills for altering the Prayer Book. The fifth Body, the House of Laymen, had only been called into existence by the most rev. Prelate himself. Those Bodies had been very much perplexed by this curious provision that a right of patronage should not be sold again until the benefice was full after two avoidances thereof. He could not do better than repeat the statement of the York Prolocutor, that he knew instances in which that would keep the matter in suspense for respectively 95, 97, and 105 years; and the same thing would of course happen in other cases running down to smaller periods of two or three years. It was only necessary to state that fact to show most people the unwisdom of this provision. The Lower House of Convocation at York had adopted the suggestion of an alternative of five years or two avoidances, whichever happened first, and the Canterbury House of Laymen had adopted five years absolutely. Apparently the Upper Houses, one or both of them, had yielded to the suggested alternative to the extent that they were willing to accept 10 years. He should himself consider five years quite long enough, but that was a matter of discretion, and there was no great reason for disputing between five and 10 years. The principle of gambling seemed very much to underlie this matter also, which was purely one of chance. Why was it not to be sold again 631 after the whole right had been once transferred under the former clause? Considering himself merely as a sort of mouthpiece of the bodies he had mentioned, he thought the time should be altered to five years, or if they preferred to keep in the two lives—although he did not see the necessity for it—it was very easy to do so. The two lives might possibly fall in very soon, and that might he equally objectionable. He proposed an alteration, therefore, to five years, adding at the end "whichever event should first happen."
§ Amendment moved, in page 1, line 22, leave out ("subsequent to") and insert ("or for five years from"), line 23, after ("sale") insert ("whichever shall first happen.")—(The Lord Grimthorpe.)
§ THE EARL OF SELBORNEthought it would be well to insert five years, but would prefer to say "whichever event should last happen," for the reason that the real object of the section was to prevent in substance the sale of the next presentation under the colour and form of sale of an advowson. Whenever that kind of transaction took place the object was to prevent the buyer selling again immediately, and the advowson from being sold over and over again, which was really the same evil as the sale of next presentations. Of course, if some delay were interposed over which the purchaser could have no control, a substantial advance would be made towards the prevention of that evil. The provision for two vacancies was only to prevent the sale of the advowson for a certain time. The reason he disliked "whichever event should first happen" was that if an absolute period of five years were adopted an arrangement might possibly be made with the person first presented to remain only for a short time and then go out, and then another sale made, the real man intended to be benefitted being the person to be next put in—the first being a warming-pan in the meantime. He did not think the transaction would be very easy, yet he could not say it was absolutely certain the ingenuity of those who carried on these practices might not manage that. Therefore he would prefer "last" instead of "first."
THE ARCHBISHOP OF CANTERBURYsaid, that was the reason why the alteration was not adopted in the Upper 632 House of Convocation of Canterbury. They thought that if either were adopted it should be "latest," but the House of Laymen had altered that word to "first." If the noble and learned Lord agreed to the insertion of the five years and "latest" instead of "first" he would have no objection to assent to it.
§ LORD GRIMTHORPEsaid, of course he did not assent to it. A long period was the worst thing they could have. Of course, if the idea was to make everything as unpleasant to purchasers as possible he could understand it, but he had not gone quite so far as that. In the Lower House of the Canterbury Convocation, Dean Gregory said, "As it is, this legislation will reduce the value of livings," not to 75 per cent. of their present value, but "by 75 per cent." People had forgotten, in doing these violent things, that while they were damaging the property of sellers they were making things easier for purchasers; the price of livings would go down enormously, and those who wanted them would get them on very easy terms. That was worth considering; but people who adopted extreme views never did consider all sides.
§ Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2.
THE BISHOP OF LONDONsaid, that every now and then a living was purchased with the express intention of putting it into the hands of the patron; but that could be done at present only by an application to the Ecclesiastical Commissioners, and by the offer of a certain sum of money to be added to the endowment of the living, so as to satisfy the condition that there was some improvement in the spiritual provision for the parish. The further endowment, in addition to the value of the living itself, constantly checked proposals of this kind, which he thought were, generally speaking, really worthy of being entertained. It was proposed in one case in Cornwall to transfer a living to the most rev. Primate when he was Bishop of Truro, and the transaction had been stopped for a considerable time on account of the difficulty in raising a, sufficient sum of money, and in that case unquestionably, it being a place of some 633 importance, it was particularly beneficial in the public interest of the parish that the living should have been transferred to the Bishop. He thought it was not advisable to check the desire that livings should pass from private hands to public patrons. This clause was in the former Bill which had passed through their Lordships' House, but had been omitted from the present Bill by accident, and he moved that the clause be here inserted.
§
Amendment moved, in page 2, to add as a new Clause—
2A. Every public patron. as defined in this Act, shall have full capacity to purchase, receive, take, hold, and enjoy any right of patronage without any license in mortmain, the statutes of mortmain, or any other law to the contrary notwithstanding." — (The Lord Bishop of London.)
§ New Clause agreed to.
§ Clause 3.
THE ARCHBISHOP OF CANTERBURYsaid this Amendment was really only a re-arrangement of the wording to make the clause read better.
§
Amendment moved,
In page 2, line 9, leave out from ("by a patron") to ("Cornwall") in line 11; line 22, after ("Act") to insert ("Provided that this subsection shall not apply where the patron is either Her Majesty the Queen in right of her Crown or of her Duchy of Lancaster, or the Duke of Cornwall").—(The Lord Archbishop of Canterbury.)
LORD GRIM THORPEsaid, as he had an Amendment on exactly the same lines he would say a word about it now. A clause came later in the Bill which he assumed would be adopted, and therefore he thought it would be to put it except as hereinafter defined.
THE ARCHBISHOP OF CANTERBURYthought it quite right that the dignity of the Crown should be regarded, and that Her Majesty should be excepted from the necessity of making statutory declarations, but he could not think that all public patrons should be excepted. He saw no objection to a Bishop or a Dean and Chapter or College making a formal declaration. There were certain other bodies of persons entitled to acquire and hold rights of patronage upon whom he would object to confer this privilege of exemption, so that persons nominated by 634 them should be relieved from making statutory declarations.
§ Amendment agreed to.
§ LORD GRIMTHORPEsaid that Deans and Chapters, Colleges, and bodies of that kind seemed to be beyond the purpose of the Bill, and it appeared really to be intended to make every transaction as unpleasant to the parties as possible.
§ Amendment moved, in page 2, line 9, after ("patron") to insert ("except public ones as hereinafter defined"), and leave out from ("other") to ("benefice") in line 11, both inclusive.—(The Lord Grimthorpe.)
§ THE EARL OF SELBORNEsaid, the statutory declaration should be made in the prescribed form by patrons, but how could a Dean and Chapter or University make one?
THE LORD CHANCELLORasked whether it would not be necessary to put in something in reference to Bishops who were among public patrons. Was it intended that a Bishop should make a declaration?
§ Amendment agreed to.
§ THE EARL OF SELBORNEsaid, in reference to livings within the diocese he could not help thinking that the exception ought to apply to Bishops in regard to patronage in right of their sees.
§ LORD GRIMTHORPEcould not perceive that any answer had been given to Lord Selborne's former objection. It was really absurd for public bodies to make these declarations.
§ THE EARL OF SELBORNEsaid, this was only with the view of putting the matter in a more satisfactory form.
THE ARCHBISHOP OF CANTERBURYsaid he proposed to re-arrange the clause as the Amendment had been adopted. Other exceptions could be considered at a further stage. The proviso with regard to Her Majesty's patronage had been made to follow the section, and that might answer the purpose. He would consider the Amendment.
§ LORD GRIMTHORPEsaid, this Amendment was more a matter of language than anything else.
§ Amendment moved, in line 13, to leave out ("to the effect that the patron or") and insert ("that neither he nor").—(The Lord Grimthorpe.)
§ Amendment agreed to.
§ Verbal Amendments.
§ LORD GRIMTHORPEproposed to put in this or some other such word, because he took it for granted that was what was intended, to make it as comprehensive as could be.
§ Amendment moved, in line 29, leave out ("benefices") and insert ("ecclesiastical ").— (The Lord Grimthorpe)
THE ARCHBISHOP OF CANTERBURYsaid there were such cases as secretaries for societies or persons holding the trusteeship of a school. Neither of those positions could be called ecclesiastical offices, and yet a record of them should be presented. They ought certainly not to be excluded.
§ LORD KNUTSFORDasked whether those cases would not come under the words "offices and employments"?
§ LORD GRIMTHORPEwould consent to withdraw the Amendment.
§ Amendment (by leave of the Committee) withdrawn.
§ LORD GRIMTHORPEsaid, in regard to the words "ordination as a deacon," that a deacon was just as much ordained as a priest.
§ Amendment moved, in line 30, to leave out ("as a deacon").—(The Lord Grimthorpe.)
THE BISHOP OF LONDONsaid, the only reason for keeping in the word was to prevent the possibility of future litigation. They only wanted not to have to fight over such words.
§ LORD GRIMTHORPEthought even clerical ingenuity would hardly be able to manage that.
§ Amendment negatived.
§ LORD GRIMTHORPEsaid, this involved a question on which the bodies he had alluded to had been considerably exercised. Much dissatisfaction had been expressed by some of them that this provision would not apply to cases of 636 collusion, so that the Bishop should not institute his own clerk. Very strong opinions were expressed, and he must say he would have expressed them himself had he been present. Notice of a Bishop's presentation or intended presentation was quite as important to be given to the parish as that of anybody else.
§ Amendment moved, in line 38, leave out ("a presentee") and insert ("any person").—(The Lord Grimthorpe.)
THE ARCHBISHOP OF CANTERBURYsaid, it was an omission by oversight. It was not perceived that in that case he would not be called a presentee, but the word "presentee," in the Definition Clause, "would include a person collated to a benefice. However, he was quite willing to alter the word here.
§ Amendment agreed to.
§ LORD GRIMTHORPEthought another alteration would be necessary to make it quite right. Instead of "a presentee," it should be "or that the Bishop proposes to institute him." If notice were to be given to the parish, which the most rev. Prelate approved of, some such words as these should be inserted—"Bishop proposed to institute him."
§ Amendment moved, in line 39, after ("presentation") insert ("or that the Bishop proposes to institute him").—(The Lord Grimthorpe.)
§ Amendment agreed to.
LORD GRIMTIIORPEsaid, this Amendment again was more a matter of form than anything else. He was not particularly fond of this new phrase which had got into Acts of Parliament, that it was "the duty" of people to do so and so. The whole phrase was that it should be done by them, and he proposed therefore that the notice should be published by the churchwardens in the prescribed manner simply.
§ Amendment moved, in lines 40 and 41, to leave out ("it shall be the duty of the churchwardens to publish") and insert ("shall be published by the churchwardens").—(The Lord Grimthorpe)
§ Amendment agreed to.
§ Verbal Amendments.
637§ Clause 3, as amended, agreed to.
§ Clause 4.
THE ARCHBISHOP OF CANTERBURYsaid, this was a re-casting for the sake of simplicity, and "may" was altered to "shall," because it seemed absurd that if the Bishop were satisfied the appointment was not in the interests of the parish he might refuse to institute, implying also that be might not.
§ Amendment moved, in page 3, line 4, to leave out from ("The Bishop") to ("grounds") in line 6, and insert ("If the Bishop is satisfied, either.")—(The Lord Archbishop of Canterbury.)
§ LORD GRIMTHORPEsuggested that it would be better to make another transposition. Later on in the Bill there was a provision that nothing should affect the existing right of the Bishop to refuse to institute a presentee, and it would be better to comprise the whole thing at once. It was exactly the same thing in effect, only putting it all at once.
THE ARCHBISHOP OF CANTERBURYthought it better to make a distinction, as there was a little ambiguity about the Bishop's present rights.
§ LORD GRIMTHORPEsaid, they ought to see at once the grounds of refusal—namely, the existing ones, which were the only grounds.
§ THE EARL OF SELBORNEhoped the noble and learned Lord would not press this matter. The clause was not intended to refer to any refusal, except on those grounds which were defined by the clause itself. It was not proposed to takeaway existing remedies in other cases, and that being so, he would prefer making no reference in this clause to any other grounds than those expressly mentioned.
§ LORD GRIMTHORPEsaid, it was only a question of position, and was not worth arguing.
§ Amendment agreed to.
§ Verbal Amendment.
§ LORD GRIMTHORPEsaid, this clause was the most difficult one in the whole Bill, and he suggested some improvements in it as it stood. Hardly anybody was satisfied with it. It provided that pecuniary embarrassment was to be proved by bankruptcy, a declaration 638 of insolvency, composition with creditors, sequestration or execution upon goods. However small a man's failure, or however little moral offence might attach to him, those were all to be grounds on which the Bishop would be expected to prevent him being instituted. What was really wanted was to enable Bishops to refuse to institute people who were really under pecuniary embarrassment, as far as he could judge. This was one of the things that could only be dealt with by leaving it to the discretion of somebody to be trusted, and the best substitute for those words, he thought, would be the expression "likely to be permanent."
§ Amendment moved, in page 3, line 12, to leave out from ("proved") to ("goods") in line 14, and insert ("likely to be permanent.")—(The Lord Grimthorpe).
§ THE EARL OF SELBORNEsaid, for the Bishop to inquire into the circumstances of the presentee, without reference to any definite legal test, would appear to him to be open to serious objection. While he would not object at a later stage to any words which would require those tests, but would make it clear that the Bishop was not to be bound by anything which was not continuing at the time, he thought that principle was sound. Pecuniary embarrassment ought not to be made a ground without any test whatever.
LORD STANLEY OF ALDERLEYhoped their Lordships would accept this Amendment. The words proposed, "likely to be permanent," were much better. The clause in the Bill contained a number of matters, some of which might have been long passed. Any Bishop might have felt himself obliged to refuse to institute a clergyman who had compounded with his creditors. He could give the case of a most exemplary clergyman who had done so, and was asked about the matter. He consulted a right rev. Prelate, and asked him what he thought of it. He said, "It entirely depended upon circumstances, and that it might even be laudable;" he did not say how, but left him to find that out. It appeared that this particular clergyman had been building a house under Queen Anne's Bounty. The contractor bad exceeded his contract, as generally happened, and the clergyman had to pay 639 the difference. The consequence was that he was in debt with his butcher and baker, and eventually had to compound with his creditors. Now he had only heard of all this 20 years afterwards, and yet under this Bill any patron who proposed him might be told that he was not a lit person because he had compounded with his creditors. He thought the only way in which compounding with one's creditors could be laudable would be compounding with a butcher who had supplied one with Australian mutton and called it Southdown. In that case 10s. in the £ would, no doubt, be a very laudable composition.
THE BISHOP OF LONDONsaid, the point was that the Bishop had to be satisfied that the man was unfitted for the discharge of a pastor's duties, and then came various grounds on which he was to be considered unfit. The question whether past pecuniary embarrassment unfitted a man would have to be considered. Even beyond that, supposing the Bishop refused to institute on the ground of some past embarrassment, the Archbishop on appeal would certainly be able to correct any mistake on the part of the Bishop. As the words stood the Bishop would have some reason for making an inquiry whether the man was still in circumstances of pecuniary embarrassment or not, and would not be left to the general vague question of what his circumstances were, which was always a very difficult matter to inquire into. He doubted whether the clause was open to the difficulties pointed out by the noble Lord and which he proposed to amend; and thought that, as it stood it would work very well.
THE ARCHBISHOP OF CANTERBURYpointed out the clause said that the Bishop should say the man was unfitted by reason of pecuniary embarrassment, and he did not see why the proposed words should be introduced.
§ LORD KNUTSFORDhoped the noble and learned Lord would not press this Amendment. There was much force in what Lord Selborne had said, that there were well known ways of ascertaining whether a man is in a position of pecuniary embarrassment or not, and that would be better than having a general inquiry by the Bishop. Clearly a Bishop was not bound to decide that a clergyman was unfitted because he had been at one time embarrassed and had com- 640 pounded with his creditors. Indeed a man might be acting laudably in compounding with his creditors instead of going on spending his and their money recklessly, and finally not being able to pay them at all.
THE LORD CHANCELLORIt might be better to change the word "proved" into "evidenced." These things are not under all circumstances proveable. The fact of a man having compounded with his creditors may afford under certain circumstances evidence that he is in pecuniary embarrassment, and under other circumstances it may be obvious that he is not. The fact to be inquired into is pecuniary embarrassment, but you must have evidence of it.
§ LORD GRIMTHORPEsaid, showing that the man had been bankrupt at some time or other was not really the object of the clause. He wanted something to indicate that the ground of complaint was present financial difficulty.
§ LORD GRIMTHORPEsaid, anything which would confine it to the present. Then the other point was moral offences, misconduct, evil life, and so on. That was all quite right; but to mix it up with the fact that the man was once in debt was wrong. He thought the suggestion of the Most rev. Prelate would do.
§ THE EARL OF SELBORNEcould imagine no greater misfortune than for a man to be appointed to the cure of a parish who was loaded with debt.
§ LORD GRIMTHORPEquite agreed.
§ Amendment to insert the word "existing" agreed to.
THE BISHOP OF ELYasked whether it would not be advisable the clause should run also "existing physical infirmity," though he should have thought, it. unnecessary, as it must be of course existing.
§ LORD GRIMTHORPEthought it would be much better to have it in.
§ Amendment agreed to.
THE LORD CHANCELLORI quite feel the objection to the particular word I suggested, though I think some amendment of that kind is needed. But I think I had better consider in what form it should be put.
§ LORD GRIMTHORPEasked why they should not in the meantime have "evidenced." That word, as the Lord Chancellor said, had acquired a meaning quite different from "proved."
§ THE EARL OF SELBORNEsaid, it was only a little more barbarous than many other words which might now be found in Acts of Parliament.
§ Moved accordingly.
§ Amendment agreed to.
§ Verbal Amendment.
§ LORD GRIMTHORPEsaid, he put in these words as the clause would justify the man's mere temporary inhibition under the Clergy Discipline Act. Now, that was what was called in slang "a very large order" indeed. They ought to consider whether the parishioners would be debarred from stating any other cause of unfitness. A great many people thought they ought to have that power, and if this clause were to stand it should be so amended.
§
Amendment moved,
In line 17, to leave out ("that he ought not to be instituted"), and insert ("and is of opinion that the institution would on such ground be injurious to the interests of the parish, the Bishop shall refuse to institute the presentee.") —(The Lord Grimthorpe.)
§ LORD GRIMTHORPEsaid, supposing it was stated to the Bishop that the man could not be heard half way down the church. It had been stated that in that case the Bishop could at once refuse him, but he ventured to say the Bishop certainly could not refuse him.
§ LORD GRIMTHORPEsaid, that was not physical incapacity in the ordinary sense; it was only incapacity in that particular church. Then again, ought not the fact that the man had quarrelled previously with everybody in the parish to be a matter within the Bishop's jurisdiction? There might be clergymen whom no Bishop would accept, and in whose cases he would be very glad to be able to put his finger upon this: that he 642 could not be heard in a church or had quarrelled with everybody in the parish, and that he was unfit to be presented to a new living for that cause. However, that was very much a question for the discretion of their Lordships, and, of course, in some degree of the Bishops; but he thought the House should be made acquainted with the fact that that: feeling had been expressed in both Convocations.
§ THE EARL OF SELBORNEdid not like a latitude of objection by parishioners which would go into everything on earth, recognised or not recognised definitely by the law, if rights of patronage were to be respected at all. If there were a physical infirmity or incapacity, of voice or any other, so great as in the opinion of the Bishop to prevent him discharging his pastoral duties that ought to be taken into account. But what was proposed would extend to whatever anybody chose to think an objection, and he did not think they ought to go so far as that. And the effect would also be, that all the grounds on which, independently of this Bill, and by the present law, a Bishop might refuse to institute, would be brought within the clause; and they give a final jurisdiction in the Bishop (subject to an appeal to the Archbishop) as to matters for which remedies were provided which the Bill did not propose to take away and ought not to take away.
§ Amendment agreed to.
§ LORD GRIMTHORPEsaid, this involved the question of appeal. He was unaware whether it was intended to give the objector the right to appeal to the Archbishop, but he thought in the Clergy Discipline Bill an appeal was given to both parties. He could not see why both parties should not have the power of appealing.
§ Amendment moved, in line 20, after ("presentee") insert ("or the objector.") —(The Lord Grimthorpe.)
§ THE EARL OF SELBORNEThere could be no necessity for giving an appeal to the objector in the only case for which this clause provided, that of the presentee being refused; which would be a decision in the objector's favour.
§ Amendment (by leave of the Committee) withdrawn.
643§ LORD GRIMTHORPEsaid, this Amendment involved the question how the appeal was to be heard by the Archbishop, and as it stood in the Bill the appeal was to be heard in like manner as an appeal by a curate against the revocation of his licence. He did not think the two things were at all in pari materiâ. In old times the incumbent of a parish had the absolute right of dealing with his curates as he pleased. By one of the modern Acts—the Omnibus Act of 1838, as it has been called—the curate might appeal to the Archbishop against the Bishop. That was the law that he could do so, and these appeals were heard in camerâ.
§
Amendment moved,
In line 22, to leave out from ("appeal") to end of subsection, and insert ("with assessors from the diocese where the benefice is, as if it were a complaint under the Clergy Discipline Act, 1892, including the Chancellor thereof, and they shall openly state their conclusions, and there shall be no further appeal.")—(The Lord Grimthorpe.)
§ LORD GRIMTHORPEsaid, sometimes they were, but sometimes they were not, and he had known the latter to happen. The Vicar General, as far as he could make out, only acted as an assessor and adviser, and had no judicial power. Many people thought that was not giving sufficient weight to what might be the law of the case, and that the Vicar General should be in the position of a Judge. He did not see why there should not be some similar jurisdiction to that in the Clergy Discipline Act, and for that purpose he had put in these words, as if it were a complaint under the Clergy Discipline Act, 1892. In this case the Archbishop would be the presiding Judge and not the Chancellor.
THE ARCHBISHOP OF CANTERBURYwas afraid there would be a great anomaly in bringing in the assessors of a particular diocese to sit with the Archbishop. At present the assessors were diocesan officers elected under the diocesan regulations to sit in eases of discipline; but this would mean that the assessors in a diocese would be elected for Provincial purposes to sit with the Archbishop. It would be necessary to provide for that by a whole system of regulations. There was nothing like 644 that in the Clergy Discipline Act, where they were made assessors with the Chancellor of a diocese, but in this way they would suddenly be made assessors in cases of Provincial jurisdiction. He was quite willing that the Vicar General should be associated with the Bishop if that would improve matters, but practically that was so now, as the Bishop never acted without his Vicar General.
§ LORD GRIMTHORPEsaid, that in this case also he was rather the mouthpiece of other people than speaking for himself, but he thought the suggestion of the most rev. Prelate would give satisfaction. He did not think much of the anomaly point—it was only a word, and the Archbishop would only be in the position he was in under the old Clergy Discipline; Act wherever he took the place of the Bishop of the diocese. The Archbishop had been held by the Courts in Westminster to be, in that case, only acting for the Bishop. If it were distinctly intimated that the Chancellor or the Vicar General was to sit with him as a Judge that would be of great advantage and would give considerable satisfaction.
THE ARCHBISHOP OF CANTERBURYintimated that the point might be further considered, if it required consideration, on the Report.
§ LORD GRIMTHORPEsaid, in that case he would not now move the Amendment.
§ Amendment (by leave of the Committee) withdrawn.
THE BISHOP OF LONDONsaid, this clause provided the mode of procedure in cases where the Bishop refused to institute, and that when the matter had been hoard and decided the decision was to be final. But it did not appear whether or not that excluded the other remedy which would admit of the duplex querela, or whether, under the other sections, the other remedies would not be concurrent with what was here provided. It certainly was not a good tiling that opportunity should be given for trying a case first in one way and then in another, and he did not think the present wording excluded that.
§ Amendment moved, in Page 3, after line 33, insert a new Subsection: (5) Where on any presentation, institution is refused under the provisions of this section, such refusal shall be a bar to any 645 action of quare impedit or suit of duplex querela in respect of that presentation.—(The Lord Bishop of London).
§ LORD GRIMTHORPEadmitted that ought to be done, if it was not the law already.
§ Amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clause 5 agreed to.
§ Clause 6.
§ Verbal Amendments.
§ Clause 6, as amended, agreed to.
§ Clause 7 agreed to.
§ Clause 8.
§ LORD GRIMTHORPEsaid, the Amendment was to simplify this clause. Under the Pluralities Act a distinct penalty was enforced for not coming into residence after due summons, but these provisions were of a very different kind, and he thought it would be better to say at once what amount of pecuniary disability would be a reason for confiscating a living, and to do that in the plainest possible way. With that view he had suggested the Amendment. In Convocation, cases were mentioned where men had been innocent of anything like misfeasance themselves, but they had debts of an incurable kind. He agreed with the noble Earl that the permanent incumbrance and debt was a reason for preventing presentation to a living just as much as if the man had been away for two whole years.
§ Amendment moved, to leave out Subsection (1.) and insert: If a benefice is sequestrated for debt incurred by the existing incumbent for two whole years, or twice within that time, it shall thereupon become void.—(The Lord Grimthorpe.)
§ THE EARL OF SELBORNEinquired how that Amendment would meet all the cases which ought to be provided for.
§ LORD GRIMTHORPEremarked that if there was a charge upon the living, the present incumbent was liable. If the man were bankrupt his living could be sequestrated.
§ THE EARL OF SELBORNEsaid that would not be sequestration incurred by him, but incurred under the Bankruptcy Law.
§ Amendment negatived without a division.
§ Clause 8 agreed to.
§ Clause 9.
§ Amendment moved, in line 13, to leave out the word "inhabitants" and insert "parishioners."—(The Lord Knutsford.)
THE LORD CHANCELLORI am not quite sure that I prefer "inhabitants" to "parishioners," but I am not sure that I understand what a parishioner is.
§ Amendment agreed to.
§ THE BISHOP OF ELY moved to add the words "of full age."
§ Amendment agreed to.
§ Clause 9, as amended, agreed to.
§ Clause 10 agreed to.
§ Clause 11.
§ LORD GRIMTHORPEsaid the first lines seemed entirely unnecessary, because, without restricting law, it had no meaning whatever. The lawyers; The House would agree with him that saying these communications to Bishops were to be privileged was not enough, because, though a communication might be privileged, that would not prevent a jury from giving any damages they pleased. The intention was to leave the Bishop to do what he pleased, without the risk of an action for libel. Anyone who had lead the proceedings, in cases of drunkenness especially, would come to the conclusion that there was not sufficient privilege unless it was absolute. If the clause were passed with the words "bonâ fide" it would be necessary to allege in an action that the representation, whatever it was, was not made bonâ fide. On the other hand, if they were struck out, that would leave people at liberty to send to the Bishops any malicious communication they pleased, without the slightest risk of suffering for it in any way. Steering between that Seylla and Charybdis, he thought it would be better to leave the words in."
§ Amendment moved, in page 5, line 31, leave out from ("Without") to ("that"), in line 32, both inclusive; line 36, leave out.("a") and insert ("an absolutely"); line 37, leave out ("statement or").—(The Lord Grimthorpe.)
647THE LORD CHANCELLORThe object of inserting the words with which this section commences was to satisfy doubts which were entertained, I imagine, whether the clause went beyond the existing law; and those doubts I certainly should share. As the clause now stands, I do not think it affords any protection beyond that which the law affords. I dare say it was felt that in introducing this new procedure it was well to reassure those who were invited to make representations by a statement of what the law was, and consequently it was not put in as an enactment but as a declaration, to make it quite certain that the law is as here laid down, though it has never been declared by the authority of the Legislature. That is the reason of its being put in the present form. Undoubtedly the noble and learned Lord opposite proposes a considerable change in the law, because, as I understand, he would put the person making these representations in the same position as a Judge, that it should be impossible to maintain an action for libel or to go into the question of malice at all. If that is intended it would be necessary to leave out the words "bonâ fide" altogether, because if you introduce those words you obviously enable any person by alleging and proving that it was done malâ fide to go to trial with an action for libel. At present it is a privileged communication, and if it is so no evidence can be made out unless there is express malice. If my noble and learned Lord desires so great a change in the law I do not think it should be carried out by leaving in the words "bonâ, fide"and inserting "absolutely." I do not think that word has any technical legal meaning, but a mere expression used to describe the kind of privilege to which my noble Friend has referred. Consequently I do not think it would do to put in the word "absolutely" and to leave in the words "bonâ fide." If it is intended to make hat change in the law, I think bonâ, fide would have to be left out, and you would have to describe in terms what is popularly called an absolute privilege. There-fore, I do not think the Amendment pro-posed by my noble and learned Friend could answer.
§ LORD GRIMTHORPEdid not press as Amendment.
§ Amendment (by leave of the Committee) withdrawn.
§ Clause 11 agreed to.
§ Clause 12.
§ LORD GRIMTHORPEsaid as the clause stood not merely was the living to be avoided but everything that had been done since the false declaration was made was to be made void. That seemed to be entirely unmanageable, because if that were so all sorts of acts would be made void. What was intended, or ought to be intended, was that the benefice to which the false declaration related should become void on the person who has got it being convicted of having made a false declaration. Then again. how was it to be proved that a declaration was made falsely? No reference was made to the Declarations Act, and no mode of trial provided that he could see. The clause seemed to be either unworkable or to do a great deal more than was intended, and something of the kind provided by the Amendment was required.
§
Amendment moved,
In page 5, line 39, to leave out from ("declaration") to end of clause and insert ("is proved to have been made falsely under the Statutory Declarations Act, 1835, to the knowledge of the incumbent before his institution, the benefice to which such declaration related shall be void."—(The Lord Grimthorpe.)
THE BISHOP OF LONDONsuggested that it would be better not to let the incumbent retain the living which had been obtained by a false declaration on the part of the patron, but to which the incumbent himself was not privy. A case had happened within his knowledge. A man had bought a living simoniacally—there was no doubt about that—and had presented his son, who was quite innocent in the matter, and entirely unaware of what had been done. There were no means of dealing with him in the circumstances of the case. It was necessary to stop things of the sort, and therefore here the patron was required to make the declaration. No doubt if care were not taken cases would occur in which patrons would make false declarations in order to put in their own nominees, at the same time taking good care indeed that the persons concerned should not know they were false.
§ LORD GRIMTHORPEdid not think that was at all reason sufficient for ruining the Bill. Hitherto these declarations had not come under the Statutory Declarations Act, which makes making a false declaration a misdemeanour. That was something quite now, and when that additional security was obtained in regard to the act of the patron it seemed a monstrous thing that a perfectly innocent man who might have been holding the living a considerable time should be turned out and made liable to forfeit to somebody or other all his receipts for many years, because somebody else had committed a misdemeanour.
THE BISHOP OF LONDONpointed out that at Common Law, where property was acquired by a transaction which turned out to be unsound, the man lost the property. Here the man was put in and held his living on what was really an unsound title, and he ought not to have got in at all.
§ LORD GRIMTHORPEsaid in the case of property it belonged to somebody else, and the question arose as between two innocent people. There was no analogy. Here the patron had committed a crime, and was liable to be punished for it; and it was monstrous to punish and ruin somebody else who was perfectly innocent and who would have had a perfect right but for that act.
THE LORD CHANCELLORIt is a trying thing very often no doubt for somebody who has received stolen goods quite innocently to be deprived of them by the real owner, and he sometimes suffers heavily. Is not there some analogy between this case and the case of a man who has been presented to a living by means of a crime?
§ LORD GRIMTHORPEasked who ought to have been there instead of him? The stolen property belonged to somebody else; the living did not.
§ THE EARL OF SELBORNEsuggested that the answer was, if it was wrongly done, possibly neither he nor anybody else could prevent a lapse. The clause in the Bill covered cases which would not otherwise be covered; among others, the important case dealt with by the second section, where, after a sale or transfer, the prescribed declaration of ownership was required to be made, 650 without which the legal right of patronage would not pass. This clause provided that registration obtained by a false declaration should be void, and that would avoid the title of the patron altogether.
§ LORD GRIMTHORPEsaid he must move the Amendment, because he thought the noble and learned Lord was entirely wrong, both verbally and substantially.
§ Amendment negatived.
§ Clauses 12 and 13 agreed to.
§ Clause 14.
THE ARCHBISHOP OF CANTERBURYsaid, it was desirable that the Rule Committee under this Bill should be the same as under the Clergy Discipline Act, and he therefore moved to leave out the words "Archbishops of Canterbury and York," and to associate with the Lord Chancellor the Lord Chief Justice of England, the Judge of the Provincial Court, and the Archbishops and Bishops who might be members of the Privy Council, or any three of the said persons, two of them being the Lord Chancellor and one other of the aforesaid Judicial persons.
§
Amendment moved,
In page 6, line 9. to leave out ("The Archbishop of Canterbury, the Lord Chancellor, and the Archbishop of York") and insert ("The Lord Chancellor, the Lord Chief Justice of Eng-land, the Judge of the Provincial Court, and the Archbishops and Bishops who are members of the Privy Council, or any three of the said persons, two of them being the Lord Chancellor and one other of the aforesaid Judicial persons '').—(The Lord Archbishop of Canterbury.)
§ Amendment agreed to.
§ Amendment made, in line 23, after ("thereof") insert ("but subject us aforesaid every such rule shall, while un-revoked, be of the same validity as if enacted in this Act ").
§ Clause 14, as amended, agreed to.
§ Clause 15.
THE ARCHBISHOP OF CANTERBURYsaid, he was inclined to think the noble and learned Lord's Amendment which he had courteously postponed to his own was an improvement upon it. The difference was between "held under the same title" and "being in the same parish." The former did not appear to be necessary at all, and it was sufficient and important to recognise property 651 in the same parish not held under the same title. The noble and learned Lord's Amendment seemed to be an ingenious and desirable change.
§
Amendment moved,
In page 6, line 30, leave out from (" hereditaments ") to the end of subsection (2) and insert (" and sold or mortgaged therewith, nor to the mortgage of any right of patronage held under the same title as any hereditaments in the same parish, and mortgaged therewith").—(The Lord Archbishop of Canterbury.)
§ LORD GRIMTHORPEwould like to have an opportunity of conferring with the most rev. Prelate upon a still further improvement of it. There was really no use in mortgaging a living, because the mortgagee cannot appoint. If there is a power of sale he cannot avail himself in that way. But then sale would be stopped under this Act, and, therefore, with only one exception that he knew of, the word "mortgage" was inapplicable: that was the case of an advowson appendant to a manor being sold by the owner himself. That required dealing with, and it was the only case in which it was possible under this Bill to mortgage a living with any effect at all. All livings founded by owners of estates were not held under the same title, because the patronage was only made over to them by the Ecclesiastical Commissioners. They were people who would be entitled to consideration more than anybody else. However, a Conference would probably take place before the next stage of the Bill, and the matter could be dealt with afterwards.
§ THE EARL OF SELBORNEwas surprised at the noble and learned Lord saying a mortgagee could not sell. He should have thought a mortgagee in possession with a power of sale in his deed could do so.
§ LORD GRIMTHORPEsaid, all the law books say the contrary.
§ Amendment (by leave of the Committee) withdrawn.
§ LORD GRIMTHORPEsaid, as the most rev. Prelate thought this Amendment a little better than his own, they had better put his in provisionally at least.
§
Amendment moved,
In Sub-section (2), line 36, to leave out from second ("or") to ("hereditaments'') in line 38, both inclusive, and insert (" or belonging to the owner of not less than one hundred acres of land in the parish where the church is, and not sold or mortgaged separately therefrom.")—(The Lord Grimthorpe.)
§ Amendment agreed to.
LORD STANLEY OF ALDERLEYsaid that Lord Westbury's Act of 1863 had produced up to the present time about £300,000, a great part of which had arisen, not from advowsons, but from accumulations, because, as their Lordships were aware, when an advowson was sold the then incumbent only received half the interest of the purchase money. The other half went to the fund, and was afterwards distributed among poorer livings. He hoped the most rev. Prelate would accept this clause, because it would do no harm. It was entirely permissive, and left everything to the discretion of the Bishops. There was no obligation upon them to put the clause in motion, but he saw no other remedy for the recent complaints of the great poverty in the Church. He had taken three sees, St. Albans, Ely, and Norwich in the Eastern Counties, and he found there were as many as 131 poor benefices in the patronage of those three Bishops. Of these, 23 were of the gross value of £300 a year. That was brought down at present rates to £225, and £25 would not be sufficient to pay the rates and taxes; so that those livings must be under £200 a year. Of livings at less than £200 a year there were 14, and of under £100 a year there were perhaps more. In other parts of England the same complaint existed; but he had taken the Eastern Counties because they had suffered most. He had proposed this some years ago to their Lordships, but some difficulty was raised at that time on the score of the responsibility of the right rev. Bench; but he would ask them to remember that this was the same principle as that which underlay the law of patronage. There was no difference between this and the old patronage created some hundred years ago.
§
Amendment moved,
After Sub-section (3) add as a new Subsection—"It shall be lawful for the archbishops and bishops, if they should think fit, to sell the advowsons of poor benefices in their gift for the
653
augmentation thereof in accordance with the provisions of the Lord Chancellor's Augmentation Act, 1868."—(The Lord Stanley of Alderley).
THE BISHOP OF LONDONhoped the Committee would not accept this proposal. For himself, he heartily concurred with the Lord Chancellor, when the Bill was read a second time, in saying it was not altogether satisfactory, because it did not go further in the way of stopping those sales altogether. It was not thought right to go further, because in present circumstances it was not clear how these sales could be stopped without doing injustice. To those facts mentioned, however, should be added the number of saleable benefices. It seemed to him the most inconsistent thing possible for Parliament to do, and he hoped they would not accept the Amendment.
§ EARL FORTESCUEdid not agree in the desirability of change in the patronage of livings. Though some instances of very bad exercise of the power of patronage in the case of private individuals might be found, yet, on the whole, the lay patronage of the country had at least been as well exercised as that of public patrons, and a good deal better than that of any Government. Not, he was happy to feel, because the First Lords of the Treasury, and still less the Lord Chancellors, had been for a long while at all indifferent about the spiritual welfare of the parishes of which they had to administer the patronage, hut because the pressure of their arduous and most responsible work as Cabinet Ministers in both cases, and in that of the Lord Chancellor as the highest Judge in the land besides, rendered it inconsistent with their yet more important duties to make as careful and minute an examination of the qualifications of clergymen recommended to them as most private patrons had leisure for. Formerly, during a very long period, Bishops and Ministers of the Crown had been equally opposed to that school of divines who had suffered from neglect, but who had done excellent work in obscurity and poverty. At the present time tithes had fallen off by 25 per cent. on an average, and in the case of arable glebes the loss was even greater, so that great difficulty was experienced in filling up many of the small livings, or "starvings" as they ought rather to be called. It was 654 to ignore the substance of the question, and to be led by a mere name, to say that all transfers, not of next presentations, but of livings to the owners of estates comprising much of those parishes were undesirable. He did not see why the opportunity should not be taken to augment these miserable starvings by selling some of them to persons who. for different reasons, might be willing, provided the patronage was vested in them and their heirs, to augment their value appreciably.
§ THE EARL OF SELBORNEsaid, there was no doubt a great difference between what were called sales under the Act of 1863 and the ordinary transfers of livings. That Act made the transfer of patronage conditional upon an augmentation of the living, which no ordinary purchaser who aimed at passing the living through the market would ever think of doing. He thought, however, that the House should not entertain this proposition. It would require the greatest possible consideration, and should be done upon its own policy, and by a Bill expressly framed for that purpose, if it were thought right to do it, at all.
§ Amendment negatived.
§ Amendment moved, at the end of the Clause, to add as a separate Sub-Section. "Nothing in this Act shall apply to any of Her Majesty's chapels royal."—(The Lord Bishop of London.)
§ Amendment agreed to.
§ Clause 15, as amended, agreed to.
§ Clause 16.
LORD GEIMTHORPEsaid, that a clergyman had intimated to him that these words were unknown in any present legislation. He did not himself know whether that was the case or not. Unless he were informed that it was a recognised term it was plainly not right to have it in here.
§ Amendment moved, in line 3, leave out ("new vicarage").—(The Lord Grimthorpe.)
655§ THE EARL OF SELBORNEsaid, it was not always easy to be sure about verbal questions, but he thought by Lord Blandford's Act a certain class of incumbents of district parishes were made vicars; but he did not recollect that there was anything in it which made their cures vicarages. Presumably that was the reason why this expression had been introduced. He agreed that the term was new, and what was new was not always recommended; but, on the other hand, he was not absolutely certain that a question might not be raised, and it was an object to avoid raising questions as much as to solve them. If that could be made certain at a further stage, he suggested it should be done.
§ LORD GRIMTHORPEthought there was no risk whatever. In the transfer of perpetual cures the title only was affected; they remained perpetual cures, and they therefore took care of themselves. But he was tolerably certain Lord Blandford's Act did not recognise anything like the term "new vicarage." However, he would look into this, among other things, before the Report stage.
§ Amendment (by leave of the Committee) withdrawn.
§ LORD GRIMTHORPEdid not think the word "preachership" ought to stand alone in the Bill as it did. Take the case of Lincoln's Inn Chapel. Certainly in some senses that was a public chapel; it was consecrated. The other Inns of Court stood on a somewhat different footing, Gray's Inn being perhaps most like it. But there ought not to be two powers in existence to deprive a man of his preacher-ship, into which he could be re-instated by his patrons immediately afterwards. Therefore, he proposed the addition of these words, which he thought spoke for themselves.
§ Amendment moved, in line 7, after ("preachership") to insert ("the holder of which is not appointed and removeable by some governing body or corporation or body of trustees").—(The Lord Grimthorpe.)
§ Amendment agreed to.
THE BISHOP OF SALISBURYwished to bring under the operation of the Bill a curious benefice in the Diocese 656 of Salisbury—Laverstock—which was held in a sort of commonalty by the priest-vicars of the Cathedral, and he believed there were likely others of the same kind. It was not presentative, and it ought to be made so, and, therefore, he would like to insert after "donatives" words to that effect.
§ Amendment moved, after ("preachership") to insert ("or to the priest-vicars or minor canons of any cathedral or church.")—(The Lord Bishop of Salisbury.)
§ Amendment agreed to.
§
Amendment moved, in page 7, after line 26, insert—
The expression 'public patron' means any of the following, that is to say, Her Majesty in right of her Crown or of the Duchy of Lancaster or otherwise, the Duke of Cornwall, the Lord Chancellor, any archbishop or bishop, any chapter or cathedral body, any university or college, any body of governors or trustees of a. college, school, hospital, or charity, and any person or body of persons entitled to acquire and hold in a corporate capacity rights of patronage."—(The Lord Archbishop of Canterbury.)
§ Amendment agreed to.
§ Amendment moved, after line 30, insert: the word ("presentee") includes a person collated to a benefice; line 31, after ("admission") insert ("to a benefice.")—(The Lord Archbishop of Canterbury.)
§ Amendment agreed to.
§ Verbal Amendment.
§ Clause 16, as amended, agreed to.
§ Clause 17 agreed to.
§ Bill re-committed to the Standing Committee, and to be printed as amended (No. 46.)