BENEFICES (No. 2) BILL. (Hansard, 28 July 1898)

§ EARL FORTESCUE
I have a very few remarks to make, but I am very desirous of stating why, though several of the provisions of the Bill claim my warm sympathy, such as the interdiction of the sale of next presentations—to prevent colourable evasions upon the abolition of the question of donatives—yet I cannot join at all in the confident anticipations of the successful or satisfactory working of the most important provision of the Bill. Before stating my reasons I must ask leave to say that the noble. Lord in charge of the Bill, quite unintentionally, I feel sure, misrepresented the Amendment I moved the other day and its object. A great portion of one of the recommendations of the Ecclesiastical Commission was comprised in my Amendment. It proposed to secure to the patrons, if they desired it, a hearing with lay assessors. The very last thing I contemplated was the substitution of diocesan courts for the new courts provided by the Bill with a lay judge. I am very hard of hearing, and that is my reason for so very tardily explaining what the abject of my Amendment was. It was to secure to the presentee or the 114 patron, if either of them desire it, a fair trial by the bishop with lay assessors. The Bill provides for no trial at all of that description. It does not mention any trial by the bishop, and, therefore, excepting for the presentee of the patron, there is no. provision for any trial. He may be a very innocent and most calumniated presentee, and yet he has to appeal against the refusal of the bishop to present. That appeal must be costly, and will involve some delay, even if he can afford it; but that is doubtful in the case of the clergy, who suffer so much by diminution of their incomes; and then, if he is unable to appeal, he must submit to that refusal with, all its terrible consequences, to his prospects and character. Clearly the main object of the Bill seems to be the exclusion from livings of undesirable and inefficient incumbents, with the very minimum expenditure of money by the bishop—an object very desirable in itself. Several men of long Parliamentary and official experience think that this has been arranged regardless of the importance of securing at least a fair preliminary trial by the bishops before the public trial, before he pronounces his refusal. Each refusal must practically be as public as the notice of the name of the presentee to the parish. As I said, there is only one single trial, and this is called the trial on appeal. I cited an authority the other day to show the great importance of appeals, the case of the vicar of Silvertown, who, after being unjustly condemned by the Consistory Court, was entirely exonerated on appeal to the Privy Council; and I have the authority of Dr. Tristram for saying, when the judgment of those distinguished judges had been reversed on appeal to the Privy Council, that Dr. Lushington, in spite of his long experience and great ability as a judge, had assured him that he always approached these cases with great anxiety. The Bill does not seem to me to provide any adequate protection against the serious consequences to a very possibly innocent person. The Ecclesiastical Commission, however, comprised no fewer than 12 eminent ecclesiastics, of whom eight were either actually prelates, or were about to 115 become prelates, not to speak of eminent lawyers, and they, with practical unanimity, showed their episcopal discretion by coming, to this conclusion which, put shortly, is this: that a bishop may not act alone in any such cases without a legal assessor, but a lawyer might, under certain circumstances, sit alone on these cases. I must say that nothing has happened since the unanimous view taken by these eminent ecclesiastics in 1883 to satisfy the lay members of the Church of England, at any rate, that it is any more desirable now that the bishop should have greater discretion under this Bill than when no fewer than eight actual or existing prelates unanimously agreed that it was undesirable that they should sit alone in hearing such cases. That recommendation was as follows— If the clergyman does not submit or if the complainant refuses to consent to the bishop pronouncing sentence without trial, a complainant may set down the case for hearing before the diocesan court. The diocesan court shall consist of the bishop, with whom shall sit, as legal assessor, the chancellor of the diocese, or some other person learned in the law at the discretion of the bishop, unless tile bishop shall call upon the chancellor to heap the case alone, or sends the case direct to the court of the province if both parties give consent. I would also draw your Lordships' attention once again to the remarkable report of Lord Penzance on this matter. He uses very strong language. He says— Speaking generally, where discretion begins, the proper administration of the law, as such, ends. He says that he does not consider that for the administration of strict law in this sense an ecclesiastic is, by his training and acquirements, well qualified. He says that the bishop would not be careful to follow decided cases with which, perhaps, he would be little familiar, and that he would be apt to import into the enunciation of the law considerations of policy and the elasticity of discretion. The probable result would be a startling divergence of opinion in different dioceses, which, by rendering the law uncertain, would bring it into discredit and impair its efficiency. It is a matter of difficulty and of perplexity to those who have to obey the 116 law. No one individual proposes to himself too high a standard of duty as legally obligatory on the members of the clerical profession, and the danger is a tendency to encourage a policy of divergence and a spirit of adulation—and adulation is or should be disagreeable to the adulated and degrading to the adulator. I only hope that the unfavourable anticipations which I hold, which are quite sincere, may turn out to be unfounded, and I also hope that the most sanguine anticipations of the good results which will flow from this Bill may be verified, and that I shall prove to be mistaken in its consequences.

§ THE EARL OF WEMYSS
My Lords, I have been unable to be in my place during the previous stages of this Bill, and I should like to say a few words before it passes beyond our ken and receives the Royal assent. My Lords, I can but take this view of the Bill, that it is founded on the maxim of a well-known and very powerful religious order of the Roman Catholic Church, that you may do evil that good may come. My Lords, I do not for a moment dispute the good intentions of those who are dealing with this matter. It is no doubt essential that there should not be abuses of patronage in the interests of the congregation, the parishioners, and the Church, but I hold it to be absolutely unnecessary that in legislation of this kind you should do evil and introduce evil principles. Now, is there one of your Lordships who is prepared to deny that there are evil principles in this Bill? My Lords, how does it deal with property? An advowson is as much a property as any property belonging to your Lordships. It is transferable, it is heritable, and it is assessed for public purposes; and those who hold this property say that this Bill will materially affect its value—its pecuniary value. And one writer says that it is practically a confiscatory Measure, and that no amount of cant or hypocrisy will make it other. Another gentleman whose letter I have here—what does he say about the Bill as it stands, and to which your Lordships are about to give a Third Reading? He says— As the owner of an advowson, which is the sole property I have to leave to my children"; 117 he then thanks me for a letter I wrote to the Times, and says— I protest against this confiscatory Measure. This Bill does not deal in that way with property, and I imagine that it is unnecessary that it should do so, because you might have given compensation as you have done in other cases. I am happy to say that, although I come from the land of Rob Roy, we do not treat patronage in Scot land in the way your Lordships are about to treat it in this country, because when patronage was abolished compensation was given to those patrons who chose to take it. Very few did, but they had the chance. So far as regards the question of property, what is the reason that advowsons are treated in this way—differently from other property? I imagine that the flattering unction that those who are responsible for this Bill lay to their souls and the salve they lay to their consciences is this, that it is a peculiar property, that it is exceptional property, and that, therefore, because it is exceptional and peculiar, you are justified in applying to it exceptional legislation. Exceptional legislation! That is a term which is all too well known to your Lordships, especially to my friends who come from Ireland. Twenty-eight years ago we heard a good deal about exceptional legislation—you are only to do this because it is such an exceptional case. The principle was wrong in the Irish Land Bill; that we admitted; but still it was said, this is so exceptional a case you need have no fear. My Lords, from that hour to this Parliament has been up to the neck in exceptional legislation, and in dealing with contracts in every sort of way, and in interfering with everybody and everything, and all that, and always in consequence of the great breach, which was made in the sound principles of legislation by the Irish Land Bill, which I believe at that time was said to transfer £95,000,000 worth of property from one class of men to another, simply because one class of men shot their landlords. That, I believe, was the whole secret of the Land Bill legislation. If you apply this exceptional legislation to property of this kind, which a man 118 says is all he has to transmit to his children, and the value of which you are knocking down by this Bill, do you suppose for a moment that the evil principle will not tell some day, if things go on at the rate they are going, against Church property, and that it will not tell against the property of your Lordships, whether it be in England, Scotland, or Ireland, or even to those who shall then hold the property of Hatfield? It is as certain as it is certain that the sun will rise, and that is the result of indulging in this evil legislation, and saying, as an excuse, that it is exceptional. There is one other point, and that is the question of the man's civil rights. Can anything be more valuable or more carefully guarded than the rights of a free-born Englishman to civil rights which he has obtained through centuries of history—striking for liberty, and cutting off kings' heads, and things of that kind? What do you do by this Act? Can anyone deny that you take away from a man his civil rights—I care not who it be, the Anglican priest or any other priest, call him what you may—he has a right to appeal to the ordinary tribunals of the Crown. You take that from him, and what do you establish in its stead? A hybrid court with an archbishop at its head and a lay judge assessor at his side. But what is that but the substitution of an episcopal tribunal for the ordinary tribunals of the land? And I venture, my Lords, to say that that is a thoroughly retrograde step, and in this letter to which I have referred the writer ends by saying this— I am surprised that no one in the House of Lords has been found to raise his voice against this confiscatory Measure, which is opposed to common honesty. Considering the very strong views that I entertain upon this matter, I felt that I should not be doing justice to those strong feelings if I did not trouble your Lordships with these few words.

§ * THE EARL OF SELBORNE
In reply to the noble Earl behind me it is quite true, and I greatly regret it, that I did misunderstand the exact object of his Amendment. I thought he proposed to substitute a fresh court for the court pro- 119 posed by the Government in clause 3, whereas his object was not to substitute a fresh court, but to introduce another court, to make two courts to have jurisdiction instead of one. If I had understood fully at that time what the noble Lord proposed, it would hare been equally my duty to say that it was quite impossible for the Government to accept that great addition to the machinery and consequently to the costs of the operation of this Measure. Nor can I allow that the Silvertown case is at all parallel to any case which may arise in this Act. In the case of the Clergy Discipline Act we were dealing with the case of clergy who have a freehold. This deals with clergy who are presented, and who have not yet got the freehold. I am afraid I must be content to differ from the noble Earl as to the proper machinery for dealing with this question and as to the likely effect of this Bill. I am sure that your Lordships greatly regret the reasons which have prevented the noble Earl who spoke last from being present during its previous stages. The noble Earl objects to the Bill because he says it proposes to do evil that good may come. With the greatest respect to the noble Earl I do not think that he has really read this Bill. In the first place, he holds it up to your Lordships' reprobation because it will decrease the value of advowsons—that it is an unwarrantable interference with the rights of property, and he holds up for your Lordships' admiration the procedure which took place in Scotland. In Scotland the whole right of private patronage was abolished and compensation certainly was given. But this Bill does not abolish the right of patronage at all, it abolishes the power to divide the right of patronage, and to sell the next presentation apart from, the whole thing—that is very different to abolishing the right of presentation altogether. As regards also the deprivation of the Anglican priest of his civil rights by the court set up by this Bill the noble Earl described that court as one with the archbishop at its head and the judge sitting by his side as lay assessor. A more inaccurate description of that court could not be well imagined. The judge and the archbishop are of equal authority, but so far as the 120 question of fact is concerned the judge is the sole authority, and the archbishop is to take the law and the facts as the judge finds them. If that is the position of an assessor, then his position as estimated in the eyes of the noble Earl must be different to that which it is in the conception of your Lordships. I am afraid that the noble Earl and the Government differ fundamentally as to the rights of property and the responsibilities of the trust, which together make up an advowson. Her Majesty's Government have considered all through, as I have said, that the property is incidental to the trust, and not the trust to the property. That is the view with which this Bill was framed, and I trust that it is with that view that your Lordships will assent to the Third Reading.

§ * THE EARL OF SELBORNE
There are one or two Amendments, if your Lordships will consent to put them in now.