§ House in Committee, according to order.
§
Amendment proposed—
Page 1, line 8, leave out 'two months,' and insert 'one month.'"—(The Earl of Selborne.)
§ THE EARL OF SELBORNEThe effect of making the period two months was not appreciated at the time. By subsection (a), clause 2, the bishop is entitled to refuse to institute if transfer has taken place one year previously to the vacancy, and by sub-section 2 of the same clause the bishop is directed to give one month's notice to the churchwardens of any parish of the name of the presentee. If the clause were left to stand as it is at present, it would be possible that transfer might be effected on the 31st December, with the understanding that the incumbent would then at once resign, and a certain named person would be presented to the benefice. The 1151 transfer might take place on the 31st December; the incumbent might on the 1st of January apply for leave to resign—he might obtain that permission within a week if there was no obvious reason for refusing it. The patron would then present at once, and the bishop would submit the name of the presentee to the churchwardens. The notice would expire in February, and the bishop might then at once proceed to institute, and only a few weeks afterwards, at the end of February, would he be aware that a transfer had taken place just previously to the vacancy and the presentation. It ought obviously not to be possible for a change in the incumbency to be carried through before the fact of the transfer has been necessarily made known to the bishop by registration. I am sure that there is ample precedent for registration as quickly as this, because it is necessary by the present law to register a bill of sale within seven days, and therefore there can be no hardship in having to register the transfer of a right of patronage within one month.
§ LORD HERSCHELLI do not rise to oppose the proposed duration of time, but to call attention to the fact that there is no obligation laid upon the diocesan registrar to register within any time. It must be registered in the prescribed manner within one month; but registration does not depend upon the patron but upon the registrar who is registering, and there is no duty cast upon him anywhere to register. The rule-clause does not provide for any rule which will cover that case. I think it would be quite sufficient, probably, if it were provided for by rules, but there are two or three rules in connection with this registration, which do not seem to me to be within the rule-making power, that had better perhaps be considered under the rule-making clause.
§
Question put, and agreed to—
Page 1, line 15, after 'auction' insert 'or otherwise.'"—(Lord Herschell.)
§ LORD HERSCHELLThe amendment which I have to move contains an abstract of the views which I laid before the House on the second reading of this Bill. 1152 I do not intend to detain your Lordships more than a very few moments, and I shall not insist upon pressing my amendment to a Division if the Government do not see their way to accept it. It is necessary in connection with this amendment to refer to one other in order to show what the scheme is which I propose to submit to the House. On the second reading of the Bill I do not think there was any question raised as to the expediency, speaking generally, of allowing the sale of advowsons, which in a large measure, at all events, was an evil of the same character as the sale of next presentations. I do not think it was denied. The noble Earl objected to the extension of the Bill in that direction, and alluded to a case in which it was desirable to sell an advowson in connection with an estate, and that in that exceptional case the evil did not exist in the same measure, and moreover that there were certain advantages connected with it. Now I do not propose to alter the provision of the sub-section which enables the advowson to be sold in conjunction with an estate in the particular case alluded to, namely, by auction, and therefore it would be the same with regard to these cases. An advowson would remain incapable of sale in such cases as that suggested by the noble Earl in charge of the Bill. I do not propose, so far as relates to sale otherwise than by auction, that the provision should come into operation for thirty years. It may be said, why not wait until some future time and then Parliament can deal with the matter in the meantime. The difficulty is this, if you give notice of this distinction and allow this period of thirty years, I do not think there can be any serious complaint of interfering with existing interests. If you do not do anything you are met by the same difficulty—whether five or ten years hence the question be raised of stopping the sale of advowsons in the manner provided by this Act, it will be said you ought not at once to stop the sale of advowsons, excepting by compensation, and what difficulties the question of compensation would give rise to is apparent on the second reading. The scheme is one which would end in the ultimate abolition of the sale of advowsons, but it would not operate at the present time at all—not 1153 till thirty years had expired from the passing of the Act. That is the point really raised by the amendment, and I now beg to move—
Page 1, line 15, after 'auction' insert 'or otherwise.'
§ THE EARL OF SELBORNEI think I am correctly interpreting the object of the noble and learned lord by saying that he means by this amendment to stop any possibility of the sale of advowsons thirty years hence, except by way of auction, under limited conditions.
§ LORD HERSCHELLNo, not by auction—"sale or otherwise." Any sale will be stopped unless in conjunction with an estate.
§ THE EARL OF SELBORNEThat is exactly what I mean to say—any sale will be stopped thirty years hence, excepting one under certain limited conditions in connection with the sale of an estate. Now, my Lords, this is the class of amendment that was pressed very much upon the Government in the House of Commons; and I think it would really be almost sufficient if I were to say that it is wholly and entirely outside the purview of this Bill. It may be a good object or a bad one, but the Government in the House of Commons resolutely opposed any attempt to enlarge the scope of the Bill, so as to include the object which the noble and learned lord has in view. I would respectfully say, also, that even if there was not that fundamental objection to introduce legislation of this kind into this Bill, the matter is not so simple as the amendment of the noble and learned lord might seem to lead one to suppose. Surely provision has to be made, if such legislation happens in the future, for what is to happen to the rights of presentation which cannot henceforth be sold. It is not sufficient, surely, to say that in default of the voluntary transfer and in the case of complete negligence of the duty of presentation, the right of presentation will in the course of time lapse to the bishop of the diocese. Surely that would be rather a haphazard and loose way of legislating upon this very important subject. It would be necessary to provide machinery to which all rights 1154 of presentation could be transferred, when, after a certain length of time, those who were legally owners of that right showed complete indifference to their rights, or if they were willing to transfer them for nothing. My Lords, I hope that the noble and learned lord will pardon me when I say that I do not think his object is secured by his own amendment. He proposes to insert the word "or otherwise" in line 15 after the word "auction," so that the clause would read—"It shall not be lawful to offer for sale by public auction or otherwise." That would not stop the transfer of livings for pecuniary considerations after thirty years. All that it would do would be that it would make it unlawful to offer them for sale. It would be lawful for the owner of an advowson to accept money for the livings which he possessed—it only would forbid him to offer the living for sale. Therefore, if there were not the objections which I have endeavoured to enumerate, there is the objection that the object of the noble and learned lord would not be met by his own amendment. Without dwelling further upon that point, I have to say that the amendment is outside the purview of the Bill, and cannot be accepted by Her Majesty's Government.
§ LORD HERSCHELLI do not intend to press the amendment further after what has been said, although I cannot admit that the amendment is outside the purview of the Bill. This is a Benefices Bill. Its purview is a very wide one, and I cannot see how dealing with the sale of advowsons is more outside the purview of a Benefices Bill than dealing with the sale of next presentations. One is as much connected with a Benefices Bill as the other. I quite understand the difficulty at the present moment of passing an amendment of this description, which the Government are not prepared to accept, as raising a larger and wider question no doubt than that which is dealt with in the Bill. I do not think it would be so ineffectual as the noble Earl suggests, but I do not think it is worth while discussing that, because I do not intend to press it further.
§
Amendment, by leave, withdrawn.
1155
Page 1, line 16, after 'advowson' insert 'held and.'"—(The Archbishop of York.)
THE ARCHBISHOP OF YORKIt appears that many of your lordships have felt, as was described by the noble and learned lord, that this clause opens the door rather too wide as regards the cases in which sales may take place of advowsons by public auction, and I venture to suggest that the difficulty might be met if the words "held and" were inserted after the word "advowson." At present it would be very easy for anyone wishing to sell an advowson to put it up for sale in conjunction with any manor when he may not have held it in conjunction with that manor, and by requiring that it should be held in conjunction, I think it would shut the door against very great abuse which might still exist after the passing of the clause as it at present stands. It is quite possible that some other amendment might meet this difficulty in a better way, but I should like to feel sure that it would be met somehow. It seems to me that at present, even as the clause stands, the facilities for sale by public auction of advowsons remain very great indeed, and much greater than there is any necessity for maintaining, even with a view to the preservation of the rights of the present owners of advowsons. I therefore move the insertion of the words "held and" after the word "advowson." The subsection would then read—
It shall not be lawful to offer for sale by public auction any right of patronage save in the case of an advowson held, and to be sold, in conjunction with any manor or hereditament.
§ THE EARL OF SELBORNEI hope that the most reverend prelate will not press that particular Amendment, because, if he will look at the Paper of Amendments, he will see that I have an Amendment which, I think, would meet the objection he has in view. I propose presently, if the most reverend prelate withdraws his Amendment, to move to leave out "any manor or hereditament" in line 17, and to insert "not less than one hundred acres of land in the same or an adjoining parish, and belonging to the same owner." The effect of that will be that no advowson can be offered for sale by public auction unless it is sold 1156 in conjunction with at least 100 acres of land in the same or an adjoining parish, and belonging to the same owner. I think that carries out the effect intended by the most reverend prelate, and it also meets the criticism of the learned Lord made by him on the Second Reading of the Bill the other day.
THE ARCHBISHOP OF YORKThe suggestion meets most of the difficulties of the case, but these hundred acres may not be acquired ad hoc, while any other might be. The point is met by the words, that it should be held by some settlement, along with the manor. Under the words of the noble Earl, it will be possible for a man to acquire 100 acres of land. This Amendment does not shut the door against that purchase of land for the purpose of enabling him to sell the advowson.
§ THE LORD CHANCELLORMight I suggest to the most reverend prelate that his own words are exactly subject to the same criticism; it might be held for one hour.
§ THE EARL OF PORTSMOUTHA hundred acres is rather a small quantity of land. If the noble Earl would raise the number of acres there might be something in it. A hundred acres might be arranged to be sold with the advowson.
§ THE LORD CHANCELLORThe most reverend prelate's Amendment does not say so.
§ Amendment, by leave, withdrawn.
§ LORD HERSCHELLI would suggest to the noble Earl whether there is a necessity for leaving out "manor," and putting in "land of 100 acres in the parish," because I am told that there are cases where the owner of the manor might not have a hundred acres; and if he owns the manor, the charge has always been held, and in the sale of the 1157 manor it would be a case of transferring the advowson.
§ THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRSIs not a manor a hereditament?
§ LORD HERSCHELLYes, but it is not to be less than a hundred acres. My Amendment was to leave in the word "manor," and then add, "or with." I think, if you are to allow it with 100 acres you should allow it with the manor.
§ THE EARL OF SELBORNEThen it would read "manor, or with an estate."
§ LORD HERSCHELLIf the noble Earl will leave out "hereditaments," and insert "with an estate in land of not less than 100 acres, situate in the parish in which the benefice is situate, or in an adjoining parish, and belonging to the same owner," it would, I think, meet the requirements of the case.
§ THE EARL OF SELBORNEI move the Amendment in that form:
Page 1, line 17, leave out 'hereditament' and insert 'with an estate in land of not less than one hundred acres situate in the parish in which the benefice is situate or in an adjoining parish and belonging to the same owner.'"—(The Earl of Selborne.)
§ Question put.
§
Amendment agreed to.
Page 1, after line 17, insert 'any sale or any transfer of a right of patronage in contravention of this sub-section shall be void: provided always that the foregoing provision in so far as it relates to a sale otherwise than by public auction, shall not take effect until the expiration of thirty years after the passing of this Act.'"—(Lord Herschell.)
§ LORD HERSCHELLI do not know whether the noble Earl accepts that Amendment.
§ THE EARL OF SELBORNEI cannot. The point has been very carefully considered since the noble and learned Lord brought it forward on the Second Reading. I am advised that, although no doubt an actual conveyance would be valid in which money had passed, yet the contract for that conveyance would be void, and the vendor would be indictable, and, as an auction cannot be 1158 an easily concealed affair, it must be fairly publicly known that the auction has taken place, and, that the vendor in that contract has, at that auction, broken the law, I am advised that it is not necessary to insert the words that the noble and learned Lord proposes. I am advised that there is an absolute objection, because, whereas the transaction might, by some inadvertence, have escaped attention at the time, the point might be raised many years afterwards, and if the noble Lord's words were inserted, although the conveyance had taken place many years previously, and although the patron who was then enjoying the benefit derived from that conveyance might have been perfectly innocent of the transaction, the whole title might be upset. The real answer to these technical points is that these sales by auction are extremely few in number, and that it is not necessary, in the opinion of those who have been studying the subject, to close the door further than is done by the words as they stand at present. I am, therefore, unable to accept the noble and learned Lord's Amendment.
§ LORD HERSCHELLI cannot say that I am quite satisfied with the noble Earl's reasons. It is perfectly easy to preserve the rights of a third person, but I do not see why you should allow the transaction to be valid as between the parties who are pronounced by the law to be doing an unlawful act. As the clause now stands, he may accomplish all he wishes to accomplish, subject to a chance of being indicted.
§ Question put.
§ Amendment negatived.
§ THE EARL OF SELBORNEThe punishment will be by indictment.
Page 2, line 8, after 'section' insert 'or commits any breach of the promissory part of his declaration.'"—(The Earl of Portsmouth.)
§ THE EARL OF PORTSMOUTHThe Amendment I have down on the Paper is similar in principle to the Amend- 1159 ment which I see my noble Friend in charge of the bill has down—I mean the Amendment he put down subsequent to my Amendment. The object of my Amendment is to render any breach of the promissory part of the declaration punishable. I do not myself think there will be any difficulty in inserting these words, because Parliament is quite within its rights in saying that any breach of the promissory part of the declaration will render the man making it liable to a misdemeanour—liable to the punishment attaching to the law of perjury. My noble Friend thinks it will be, perhaps, more consistent if the Amendment to carry out the same object were inserted somewhat subsequent in the Bill—a few lines lower down—and, as our intentions are quite the same, I am quite willing to withdraw my Amendment on the understanding that he will press his.
§ Amendment, by leave, withdrawn.
§ THE EARL OF SELBORNEIt would not have been possible to accept the Amendment in the form in which my noble Friend moved it, because breach of promise is not perjury, and it would not be possible to make it so, but it seems to the Government a very proper offence to include amongst those which can be dealt with under section 1 of the Clergy Discipline Act, 1892. Therefore, I would move the Amendment I have down—
Page 2, line 8, after 'section,' insert 'or commits any breach of the promissory part of his declaration.'
§ Question put.
§
Amendment agreed to.
Page 2, line 21, after 'redemption,'insert—
(8) A transfer of the whole interest of the transferor in the right shall not be necessary where the consideration for the transfer shall be applied to some church purpose approved by the bishop, in writing, provided that such transfer is registered in the prescribed manner in the registry of the diocese within two months from the date of the transfer."—(The Marquess of Bristol.)
§ THE MARQUESS OF BRISTOLMy Lords, there are two reasons for which I think this Amendment should be 1160 accepted. One, because I think it would be an advantage to the Church, and the other because I am not one of those who think that, when Parliament is engaging in some reform, it would be well to go further than the necessities of the case require. I apprehend, my Lords, that those who have charge of this Bill have put into it the forbidding of the sale of next presentations, in order to prevent the scandals which, unfortunately and admittedly, have been happening in connection with these sales. But in the Amendment I propose, I do not think there is any danger to scandal arising. Scandals must attach either to the vendor or the purchaser. I think that where the vendor, openly and above-board, and for purposes which no doubt have the approval of everyone, sells an advowson—in that case there can be no scandal. But I can quite imagine that some of your Lordships might think that, with regard to the purchaser, the case might be somewhat different. Those who hold that view must, I think, have a very small belief in the adequacy of those safeguards which have been so abundantly placed in this Bill against the appointment of certain persons, who would not be fit for the performance of the sacred duties of the parish, and it is because I think that these scandals will not happen in this case, that I trust the noble Earl and your Lordships will agree to the Amendment, and I think, if you do, that it will be the means, from time to time, of enabling some increase to be given to the smaller and poorer livings, of which there are so many in all the dioceses of the kingdom.
§ THE EARL OF SELBORNEI am afraid that this Amendment is one which it is quite impossible for the Government to accept. The point of view from which this Bill has been drafted is that the sale of next presentations is, in itself, an indefensible transaction, and it cannot be argued, if that view is sound, that an indefensible transaction becomes defensible because the money received for it is applied to a good and worthy purpose. It would, therefore, be quite impossible, on its own merits, to accept the Amendment; but there is another, and very cogent reason, which I am sure will commend itself 1161 to the noble Marquess, and that is, that if he is of opinion that this exception should be made to a general rule, there may be others in your Lordships' House, who think that there should be other exceptions, and if one exception were let in there would be an immediate demand to let in a large number more; but the whole principle of the particular exception now asked for is against the view which Her Majesty's Government have taken in promoting this Bill, and I cannot accept the noble Lord's Amendment.
§ Question put.
§ Amendment negatived.
§
Question put—
That clause 1, as amended, stand part of the Bill.
§ LORD HERSCHELLI should like to ask the noble and learned Lord the Lord Chancellor to consider, before the next stage, the point we have been discussing. I confess I feel a great objection to forbidding a transaction, and then not providing any punishment for doing the thing which is prohibited. It is not upon the lines of recent legislation to leave a thing of that sort to a common law indictment, and, further, it would be much better to make a transaction invalid as between the parties—that is really the best penalty—while, at the same time preserving from injustice any persons who subsequently took without notice of the invalidity.
§ THE LORD CHANCELLORI am not quite satisfied with the language as it stands, because it is only a question of offering for sale, and does not operate against any of the parties but the unfortunate auctioneer; but I doubt very much whether there is any necessity to go so far as the noble and learned Lord suggests. I think one might alter it so as to provide a specific penalty or what not, but I may remind the noble and learned Lord that where you have prohibition of marriage under certain circumstances—Lord Hardwicke's Act—the marriage is perfectly valid; but the person who celebrates it is liable for 14 1162 years' penal servitude; so there is an analogy between the celebrating clergyman of a forbidden marriage and the officiating auctioneer at a forbidden sale. However, as I think the form in which this section is cast at present is certainly open to some objections, I will consult my noble Friend upon the subject.
§ LORD HERSCHELLI shall be quite content with any form which will give some substantial penalty.
THE BISHOP OF SALISBURYI would ask Her Majesty's Government whether it is possible in any way to check, not only public auction, but public advertisement of benefices. I have recently had in my hands a publication called the Church Patronage Gazette, in which there are at least three benefices in my diocese offered for sale—a form of advertisement which would be much more likely to attract unworthy presentees than a sale by public auction.
§ THE EARL OF SELBORNEOf course, the right reverend prelate's suggestion will be considered, but I cannot hold out any hope that we will be able to do anything towards meeting what is, I believe, a very novel proposal.
§ Motion agreed to.