HL Deb 14 May 1895 vol 33 cc1141-55

in rising to move the Second Reading of this Bill, said: I desire to express, in the first instance, the great sorrow that I feel on account of the death of Lord Selborne, who took the greatest interest in former Bills of this kind. His vast knowledge and labour, the minute diligence with which he investigated matters, and his zeal for the Church's good, make the best friends of the Church feel that the Church has lost in him her very best friend. His last letter to me, written only a few weeks ago, expressed approval of the principles of the present Bill, and his opinion that those principles are well carried out in the various clauses. This Bill resembles that which was before the House of Commons last year, and also that which was before your Lordships the year before, in this important respect, that it aims, not at being a complete scheme of Church patronage, but simply at meeting some of the worst abuses. It aims at stopping, if possible, and, at any rate, making so difficult as to be almost impossible, those sales of what is considered property in Church patronage—those sales which are incompatible with the highest aspects of a trust, for our law has always considered that the principal aspect of an advowson is that it is a trust of the highest and most sacred character. This Bill is very like those which I have mentioned, but criticism, which has been invited and carefully used has improved it in some important particulars. I need not argue the evil in process amongst us. The evil lies in the ignoring of the trust. The purchase of the right to present to a benefice is one thing; but the purchase of the right to decide as to the purchaser's own fitness, then to present himself, and to take Church and people and Sacraments and sick and dying in hand next week, is a very different thing. The purchase of the next presentation is very different from acquiring property in the advowson. It is so felt, and it contradicts the best religious instincts of the poorest and least educated of our people. It is quite true that good men have purchased livings and presented themselves to them, but even a good man does not get over the taint in the mind of his parishioners, and this feeling is a serious matter, they are apt and sure to say if anything goes wrong— What else can you expert, when you know he bought himself into the cure of our souls? The evil, whatever it is, is distinctly on the increase, though its area is limited, for it is a singular fact how the same livings get sold over and over again. From want of attention to the evil as it is now, and from want of provisions on the subject, the evil is increasing, and there is a practical reason why it should increase. The value of benefices is going down, and is, in fact, so far reduced that the purchase of an advowson or next presentation is the very best investment that a clergyman can make, as he can obtain a rate of interest immeasurably beyond what he can get in any other way; and if he can leave it behind him as property it is property which yields an immense rate of interest. As the value of livings goes down, the sales of livings increase. This is a matter of fact. For instance, there were 83 advertisements of advowsons in the advertising columns of The Times during the months of January and February 1895, against 37 in the two corresponding months of 1894. Again one single firm in its list offered 82 livings in the single month of January, 1895, with immediate possession. I have before now quoted to your Lordships shameless advertisements, but I should like to read two or three selected from advertisements actually in circulation now, simply to show the House that, while the language has become rather less barefaced, their description and character show that they are intended for a class of persons very unlike that spiritual pastor whom your Lordships would most wish to see in livings of your own, in love with his work and with his people. The advertisements run in this strain:— This preferment is only suited to a clergyman who is prepared to give a, fair price for a really desirable county benefice." "This is an unusually desirable gentleman's property. Then comes a description of a house and grounds, concluding:— This is a very compact gentleman's property, in perfect repair. The descriptions are interlarded with announcements that the benefices are near good towns or convenient railway stations, that yachts or fishing are to be had, and, what speaks for itself, "first-class society." There are also even more serious defects appearing in the advertisements. One is, that "there are no schools." This would attract the kind of man who wants no trouble with the children of his parish. Another is, that the income of the benefice is derived from tithe rent-charge and the Ecclesiastical Commissioners. That means actually that where a living with very poor means has been lately augmented by this body and brought up to, say, £300, this is used, as an instrument to make a large sum out of the sale of the benefice. The amount even of charities bestowed on a parish is held out as showing that there will be no demands made on the pastor. These descriptions are also, in some cases, coloured with such nauseous statements as that an "Evangelical" or a "Catholic" clergyman is required by such salesmen. The list of advertisements put out by some advertising firms is very large, and one of the leading agents told the Royal Commission who examined him on the subject that three-quarters of his transactions were illegal. But there are many people who never come near an agent at all, so that this by no means reveals the amount of the evil that is going on. A firm of agents sent me a circular the other day stating that— owing to their being University men, their relations with their clients had always been pleasant; and no wonder, when they add that as they commanded the assistance of a firm of lawyers, they could "assure the patron of every safeguard with regard to simony." Violation of the law was never asserted in a more determined way than this. But what is the kind of men who are being introduced into the Church in the meantime, and what is the kind of training which all this exercises upon the men? A clergyman the other day was offered a preferment of large value, and he was prepared to give between £10,000 and £20,000 for it. While the transaction was being completed the incumbent died. The patrons, however, proceeded, and thought the purchaser would in honour complete the bargain; but as soon as he was placed in possession he turned round and declined to give the original sum, because, whereas when he entered on the purchase there was an aged incumbent in the living, now there was a young incumbent, himself, and therefore the living was of much less value, and he declined to pay. Is such a man as that the kind of pastor the English Church creates? Is it decent that a system which encourages and makes possible such a class of men, and such a state of morals should continue? It is exercising a pernicious effect upon the Church. The aim of this Bill then is simply to make the present law effective. We have no desire to alter the law. We have no wish to interfere with any person's rights, but those rights must be regarded in view of the law as it exists, and all we aim at is to make the law a reality. The law has always spoken most decidedly against the sale of vacant livings; but the practice which has arisen now is the effort to evade the law and to make easy the sale of practically vacant livings. What we desire to interfere with is the evasion of the law, these tricks against the law, not to alter the spirit of the law. There is a new form of advertisement, offering immediate "legal" possession. "Legal" possession! That is done by actually turning the law as to resignation itself into a instrument of fraud. All these elusions are calculated to introduce into the Church a class of men whom good Churchmen, I am sure, do not desire to have ministering to them. For the existing state of things is a scandal and stumbling-block to the very best of our people. I cannot help saying that it is like the buying and selling in the Temple, and while I hold that private patronage is most serviceable both to the nation and to the Church, I am quite sure that if these abuses are not corrected private patronage will be abolished with them. But I am persuaded that these abuses can be prevented, and that private patronage can be protected; and it is with the view of making the law effective for this purpose that the Bill has been introduced. I might be asked what the great body of the clergy think of the Bill, and whether they are prepared to accept it. I can only say that it has been subjected to their criticism, has been improved by that criticism, and that it is now acceptable to the great mass of the clergy. The Bill has been approved by the clergy in Convocation and by the Houses of Laymen in both Provinces. Sion College, a vigilant guardian of their interests, the London Diocesan Conference, and the Church Congress have approved the Bill. Certain objections which were at first entertained by those whom I may term honest purchasers of advowsons—who are as anxious as any people to see the law made real—have been met, as well as those of others, by omitting the clauses as to compulsory resignation and sequestrations. Efforts have also been successfully made to meet the objections of certain bodies of trustees, whom we have bought under the list of public patrons—bodies of trustees without powers of sale—and their rights are safeguarded by the Bill. There is a class of objectors whom we have not tried to meet. An association largely composed of those who have bought their livings, and are still in the interest of the agents. You send to the chambers which are called their office, and you are referred for their papers to a notorious firm of agents. How is the Bill to act? The main idea of this Bill is to provide efficient means to render illegal purchases unsafe without trenching on recognised rights of property. It is proposed to effect this by enacting that whenever a benefice is transferred from patron to patron, or transmitted, except by devise, death, or action of law, the transferee shall not present to any vacancy occurring within a year. The principle is the same as it is in the case of a gift of real property; a man making a gift to a charity must by law, in order as far as possible to prevent heirs from being defrauded, live a year afterwards, or his transfer of property takes no effect. In bankruptcy, to prevent fraud, an assignment of property must be made, I think, ten years before the bankruptcy. So here the hope is to prevent simony by providing that when a living is purchased the new owner shall not present to it within 12 months. A longer period has been proposed, but I believe one year would be quite sufficient, simply because these people do not trust one another; a common practice is to deposit the money in the hands of a third person, simply because there is no trust. They know the transaction in which they are engaged is illegal, and that if a man takes advantage of the law in one respect they will in another. I am assured by those who have had a great deal to do with transactions of this kind that one year is quite sufficient to discourage simoniacal transactions. I will now return to the question of the protection of the honest person. By the Bill of last year a vacancy which occurred within two years was not to be filled up by the new owner, and the presentation to the living was to go to the Bishop. Difficulties were felt in regard to that, and it is now provided in this Bill that the lapse shall be to the Crown, with this provision—that the Crown is not to take advantage of the lapse if it receives a certificate from proper persons who investigate the matter, armed with powers to investigate, that the transaction was honestly meant and accomplished. A man who has just bought a large property may wish to buy the advowson of the neighbouring church, because it is to him a matter of the highest interest that there should always be a fit person presented to the living, and it would be very hard on such a man if, after having bought the advowson, the clergyman should die, or be promoted, within 12 months, so that he would not again have an opportunity of presenting to the Church for perhaps 40 years. The right person to inquire whether the advowson has been bought honestly is the Bishop—the Bishop and his officers, who are in the habit of considering the propriety of institution. The new arrangement relieves the Bishop also of the possible odium of the living lapsing to him; he can have no kind of interest in it. I believe that the people will trust the Bishops to act in the most thorough spirit of investigation. It has been said that the Bishops were hungry for Church patronage; but from my experience, and from that of all other Bishops, I can say that of all duties they have to perform, the patronage of the livings is one of the most difficult and delicate; it is open to perpetual criticism. Their object is not to possess themselves of livings, but to find the right man to fill them. I believe then that this interposition of a year will prevent subterfuge, and will make the spirit and letter of the law agree, and by this simple method we hope to alter this great scandal and make it thoroughly unsafe to purchase livings with dishonest intent. The Bill deals with other matters which can be more fully explained in Committee. One of them is, that it gives the power of remonstrance, or representation, to the parish before appointment. I believe there is a great deal of feeling on this subject, and also that strength will be given to a new incoming incumbent through his name having been submitted to the parish in that way. Then, again, the Bill proposes to strengthen the administrative right of the Bishop to refuse vicious and incapable men; it is not left entirely in the hands of the Bishop, as judicial proceedings are also provided afterwards, and the Bishop may be called upon to justify his refusal. Proper power is therefore given to investigate the case. At present the Bishop may be put to great expense, even if he succeed in proving his point. The Bill also proposes to abolish donatives, which are really the most potent instrument that these simoniacal dealers have at present. Finally, the Bill will prevent clergymen henceforth from presenting themselves, which I believe to have been always the intention of our Statutes. The cap. 11 of the Act passed in the 13th year of Queen Anne begins:— Whereas some of the clergy have procured preferments for themselves by buying ecclesiastical livings, and others have thereby been discouraged: and it then proceeds to forbid the sale of next presentations. I cannot interpret that in any other way than that at that time the sale of advowsons was very rare, and that the only sale of livings was by purchase of next presentations. I repeat then that the aim of this Bill is not to construct an ideal system of patronage; it recognises the present state of things, but attempts to remove the evils. The construction of a complete system of patronage is too great an undertaking to be done at once, and for the present I am content if I can, as I hope by this Bill to do, effectually remove the shameful scandals by which patronage is defiled.


acknowledged willingly that this was the best Bill on this subject which he had seen. Some of the objections he had made to former Bills of the kind, though they were rather sneered at then, have been gradually admitted. The first, of 1887, was entirely remodelled, both in form and substance. The proposal of 1893 not to allow a resale of patronage for the monstrous period of 21 years had been reduced to one, and that with a qualification to protect the owner from suffering by a purely accidental cause, which was probably sufficient. He believed that a Bill removing some of the most objectionable features of the exercise of Church patronage might have been passed many a time, and certainly in 1887, without the slightest difficulty; but people had been allowed to ride their hobbies too hard, with the result that the Bills introduced had always been injudiciously encumbered. He thought that in one or two points this Bill went rather too far, and in one it did not so far enough. He thought the right to devise, as well as to transfer, advowsons to public bodies ought to be allowed. Indeed, it seemed to have been omitted by mistake, as the 1893 Bill contained it, and nobody objected. The most serious defect still was the mode of dealing with objections to institution or collation. Sub-section 4 of Clause 6 provided that a month's notice was to be given to the parishioners before a clergyman was instituted to a benefice, and that representations in writing objecting to the institution might be lodged by any parishioner. He agreed with the expediency of giving notice to the parishioners before any presentation was made. But there, was no limit of time in regard to the misconduct that might be alleged against the clergyman. Was a clergyman to be called upon to face charges of this kind ranging over all his life? Something done in his college days, for instance, might be raked up against him. Under the old Clergy Discipline Act two years was the limit. He had thought the period too short, and in 1892 it was extended to five years. But under this Bill there was no limit whatever. Any old story of a clergyman's life might be sent to the Bishop by any person, and the clergyman would be obliged to meet it. To fix no limit to the period was against the principle of English law, except in the case of actual crime; and even in the case of actual crime no such indefinite time was allowed in the Clergy Discipline Act. Moreover, the less the time was limited, the greater facility and temptation were offered to blackmailers as well as informers for mere spite, especially with such a mode of trial was was now proposed. For the clergyman, was to be tried for any alleged misconduct by his Bishop in camera. There was nothing to show how the trial was to be conducted; there were no prescribed rules of evidence. To deal with cases of that kind they should have competent judges, free from all suspicion of prejudice. Did anybody imagine that a Bishop, who had offered to collate a man to a living or a canonry, would be regarded as standing in the same relation to him as to one presented by a stranger, and both of them perhaps notoriously differing from the theological views of the Bishop? In 1873, during the progress of the Judicature Bill in the House of Lords, Lord Salisbury moved that all appeals from Ecclesiastical Courts (including ecclesiastical appeals) should be heard by a lay judge. Bishop Wilberforce supported the Amendment and said— I do not think that judgments in ecclesiastical cases by Bishops are likely to be as just, or if they were, to appear as just, as judgments pronounced by judges who are not ecclesiastics. That, too, was the ultimate opinion of Parliament. Indeed, if he were a Bishop he would say that he could not properly try those charges, unless both parties consented. One thing he was quite certain of, and that was—that the first time a clergyman was kept out of a benefice under this Bill, by a Bishop who was opposed to him in ecclesiastical views, there would be a strong feeling that he had not got justice. The Bishop was, of course, bound to assign reasons for rejecting the clergyman; but these might be excuses and not reasons. He must be a poor Bishop indeed, who could not make reasons that would hold water. At least he could, and many of the Bishops were as clever as he was in that way. That was a position in which the Bishops would not like to find themselves, but they were put into it by the Bill. It was a matter that would require more careful and quiet consideration than it had received yet. They were told there was an appeal to the Archbishop, and that the Archbishops always sat with an assessor in hearing similar appeals now. But that was not a real trial. He would not "assess" an Archbishop on those terms He would say: No; if you mean me to act as a judge, either with or without what may be called a jury, I will do so; but if you mean that I am to sit merely to keep you straight on legal matters, I will not. But, further than that, there was no obligation in the Bill that the Archbishop, or a Bishop, should sit with an assessor. In a paper which had been circulated regarding the Bill it was said:— The secretary of the Archbishop of Canterbury, Mr. Lee, a lawyer of long experience, testified in the Poole case what the Archbishop's 'hearing' under 1 and 2 Viet. c. 106, customarily was. In his affidavits he said: His Grace did not at such hearing sit as a Court, but as the Archbishop in person, in camerâ suâ. That there were no minutes, pleadings, or acts in court made, entered, or brought in previous to the hearing of the appeal. That there were no witnesses examined on the hearing of the appeal with reference thereto, or the acts which formed the subject-matter thereof or otherwise. That His Grace, under the advice of his assessor had refused the evidence of witnesses tendered at the appeal on behalf of the appellant, and excepting the statement of the appellant himself, and of three persons, not purporting to be taken on oath, there were not any documents in the nature of depositions or affidavits read or used. That during the time the deponent had been secretary of the Archbishop all appeals had, under the provisions of the Statute 1 and 2 Vict. c. 106, been made in writing, pursuant to the 111th section of the Act, and decided by His Grace upon such written documents; and that no appellant or respondent had eves been heard virâ voce, or by oral testimony of the witnesses, or by counsel or agent.' He was quite willing to believe that the present Archbishop of Canterbury did always sit with an assessor; whether the other Archbishop did he did not know, but he concluded not, as he had never been asked to sit with him. It was further said in the paper— So much for the 'historic continuity' of the practice actually adopted. The Queen's Bench, indeed, held that the Archbishop, though bound to 'hear' the accused, was left perfectly free as to the details of the 'hearing.' Lord Campbell said: 'As to the mode of hearing we give no opinion.' Lord Justice Compton said: 'Whether it would be a hearing to say "you shall put all in writing" would be another question; it is not necessary for us to give an opinion on that. He must hear. And if, in the course of the argument, counsel or parties wish to introduce important matter, that is a question for the Judge presiding over the argument, whether he does or does not want to hear such matters as may be inconvenient for him to hear.' He rather gathered that was in 1873— [The Archbishop of CANTERBURY: "I think it was 50 years ago."] The Poole case? ["Yes."] That may have been so, but there was no evidence of any change of practice, and certainly there was no legal obligation. Even if it were provided by the Bill, that the Archbishop should always sit with an assessor, he did not think that was the way a clergyman ought to be tried. The question of expense was, of course, given as a reason for such a summary and injudicial way of ruining a clergyman who was prepared to face the cost rather than lose everything. And if the expense to the Bishop was a serious thing what was it to a poor clergyman? It was a monstrous thing that at this time of day in England, a clergyman should be told:— You shall not have a trial by any kind of jury; you shall only go before the Bishop and his assessor, and if you can satisfy them well and good, but if not you will be condemned for life. Some of their Lordships would remember the care that was taken, both at the Lambeth meeting, which the most rev. Prelate fully described in 1890, and in that House afterwards, which agreed with it, to secure a full trial of charges under the Clergy Discipline Act; and he could not conceive why Incumbents were less entitled to it at the beginning of their career than at any other time. He could not help thinking a great deal of good might be done by cutting down this Bill, he did not mean permanently, but by having some further consideration about matters of that kind. He thought a great improvement might take place if this part of the Bill were postponed, especially when they remembered how matters had progressed in consequence of the delays which had taken place hitherto.


was very glad the noble Lord who had just addressed them had come to the position of being favourable on the whole to this Bill. He had on previous occasions, been rather hostile—[Lord GRIMTHORPE: "To other Bills."]—to other Bills of a similar character. He was glad they had succeded in satisfying his Lordship so far, and with regard to the particular provisions on which he had spent his time, that he only implied that the Bill ought not to pass as long as Clauses 6 and 7 were in it. There was a good deal to be said in answer, but anyhow this was a kind of objection which could be more properly dealt with in Committee than upon the Second Reading, because it did not really touch the principle of the Bill at all. The analogy followed in the Bill was that of the ordinary dealing with a licensed curate. A licensed curate, as everyone knew was liable to have his licence revoked by the Bishop of the diocese on such grounds as satisfied the Bishop that it was no longer proper he should continue to hold his licence. This was the sort of judicial duty which no Bishop could escape from discharging. He supposed every Bishop who had been on the Bench for more than six months must have, in some way or other, some experience of the working of that procedure. What happened was, that the Bishop sent for the Curate to appear before him and to show cause "why his licence should not be revoked." He did not know of any Bishop who would call upon a man to answer a charge and at the same time not take care to produce the evidence upon which the proposal to revoke was grounded. He had revoked licences, but the Curate had always had the opportunity of cross-examining the witnesses and of putting forward his defence. He had never known a Bishop refuse to allow a Curate to bring witnesses on his own side. It might be said:— Why not have a regular open court for the judging of such questions? Why leave it in the Bishop's hands at all? His experience was, that, as a general rule, the person to be tried proposed that nothing should be said about the matter, that it should be kept as private as possible, because, in the view of some people, it was a slur to be tried at all. If the decision were contested, an appeal was made to the Archbishop, and he always heard the cases in open court. It was a very long time indeed since any Archbishop had heard a case of this kind without some legal assessor with him. In three cases there had been appeals against his (the Bishop of London's) decisions. The Vicar General had always been there as the Archbishop's assessor, and the Vicar General had taken the position which a lawyer in such cases invariably took. In theory, when the Archbishop or Bishop called in an assessor, he was supposed to decide the question himself, and the assessor simply stood by and took care the Bishop or Archbishop did not make any legal mistake; but he did not think it was ever so in practice. When Bishop of Exeter, he, in the case of Philpotts v. Boyd, asked an assessor to sit with him. It never occurred to him he should sit there and conduct the trial, and let his assessor simply advise him here and there where he thought a blunder was being made. He asked the assessor to conduct the trial for him. As a matter of fact, the matter was entirely in the hands of Mr. Justice Keating, for it was he who was good enough to come down an act as assessor. If it were desirable to make things more clear and definite, in the direction which the noble Lord had indicated, he did not see any reason why they should not consider the matter in Committee. But he deprecated a postponement of the Bill altogether simply because the noble Lord was not prepared with any Amendments which he thought were necessary. Reference had been made to previous Bills. Those Bills had passed through their Lordships' House, and they had not been rejected in the Lower House. They had not been passed in the House of Commons for lack of time to consider them. It certainly could not be said that the objections had been pushed to such a length as to interfere with the acceptance of the Bills. He therefore, hoped their Lordships would give the Bill a Second Reading, and if there were Amendments which it was right to introduce, he should be very ready to take his part in considering them.


said, he entirely sympathised with the most reverend Prelate's desire to put an end to the scandals to which he had referred. His only complaint against the Bill was that it did not go nearly far enough. It prevented the sale of livings or any right of patronage by public auction; but he should like to see a measure which would prevent the sale of livings at all. The notion that a living or a presentation to a living was a thing to be bought and sold was descended from evil times, when men did not realise their duties, but regarded as a right of property what they should have regarded as a sacred trust. The idea of a man selling the presentation to a living would never be countenanced nowadays. It had come down by tradition, and he admitted the difficulty of getting rid of it altogether; but to prevent, the sale by public auction merely would not get rid of much of the scandal to which reference had been made. Many of the advertisements which had been quoted had no reference to sale by public auction; and they would continue to appear if sale by private contract were allowed. Public opinion of late years had been very much changing in the direction which he had indicated; and nowadays it would not be felt to be an unjustifiable attack on property, as would have been the case many years ago, if the right of buying and selling livings were much more limited than the Bill proposed. He recognised the difficulty of dealing with the question, and that if too much were attempted the attempt might fail altogether, but he doubted whether much was done by forbidding sale by public auction. Perhaps such sale was more scandalous than sale by private contract, but the result of this prohibition was to appear to give a fresh sanction to all those sales which were not conducted by public auction. He thought it would be better to omit that provision altogether, and simply deal with the question of presentations. No one could deny that Lord Grimthorpe had touched upon a very serious question. Everyone would agree that it was desirable to extend the power of the Bishop to deal with the cases of presentees whose past conduct had been such as to make their occupation of the new living, however much to their own advantage, a great detriment to the parishioners. But, of course, it was a very serious matter to refuse on such grounds the institution of a man who had been presented. It must ruin him for the rest of his life. In the first instance, of course, every presentee would desire that the inquiry by the Bishop should be private, for, however much the inquiry might result in his favour, a public inquiry often led to some dirt sticking, and that would be bad for the presentee when instituted. It would be worth considering whether, when the decision was against the presentee, it would not be well to give assurance that the appeal would be a real and substantial appeal, in which the case would be satisfactorily reconsidered.


said that, in view of the enormous difficulty in the way of Bishops getting rid of men who were disgracing the livings which they held, and the very serious questions involved in the removal of an incumbent, proper inquiry before institution ought to be facilitated.

Bill read 2a