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THE

LITERARY PANORAMA.

FOR MAY, 1808.

act of plunder upon its property; that the idea of increasing the salary of Curates upon a scale graduated by reference to their Rector's incomes, and not by referee to the quantum of the Curate's duty, as well as that of interfering to regulate and prescribe the terms of the contract between the Rector and the Curate (two parties competent to take care of their own interests) is inconsistent as well with the principles of justice as of policy; and lastly, the whole has been represented as proceeding from some dark and mysterious design of hostility to the established church, which, disguised under the hypocritical appearance of meaning well to the Church and Religion, aims a deadly and fatal blow at the interests of both, and pursues its object by nieans of new, unprecedented and discretionary powers given to the Bishop, which, destroving the independence and dignity of the Ecclesiastical character, will drive from the profession every person of a liberal and independent mind.

As to those objections which consist in the supposed impropriety of Parliamentary interference, in the alledged violation of Ecclesiastical property, the innovation upon the Established Church, and the plunder of its property, I cannot introduce my answer to them more properly than by first pointing out the circumstances which originally attracted my notice to the subject.

description to Bishops for compelling residence in those cases in which it still continues to authorize a legislative and penal compulsion to reside), it unquestionably frees the Clergy from the penalties which attached on non-residence in a great variety of cases in which, but for that Act, they would have remained liable. It was contended at that time, and I contend still, that when Parliament relaxed to the beneficed Clergy their obligation to residence, it ought to have done so upon terms; it ought to have annexed to that extended liberty of non-residence the condition (and an indispensable condition too it should have made it) of furnishing their respective parishes, during their absence, with a resident Curate; and of furnishing that Curate also with a maintenance by which he might support the character, and represent the dignity, of the officiating Minister in his parish, in a manner which should bear some degree at least of proportion to that in which, if the Rector remained to do his own duties, he would have been enabled, from the income of his rectory, to have supported it himself; and of which, consequently, he deprives the parish of the benefit, by withdrawing himself from the discharge of his duties. Such a provision, I say, ought to have constituted a part of that Act. It was contended in the House of Commons, and in the House of Lords too, that there ought to have been such a provision. It was admitted by those who supported that Act, that such a provision was most reasonable; but is was contended, that such a provision, with all the modification and qualification with which it must have been accompanied, would have very much incumbered that Bill, and that therefore it had better be made the subject of another. The Act was therefore permitted to pass on the express undertaking of those who favoured it, that a Bill, on the principle on which mine proceeds, should

You are well acquainted, no doubt, with the Act which was brought into Parliament by Sir William Scott, respecting the residence of the Clergy. It appeared to me, and to others who interested themselves in the diseussion which it underwent in its progress through Parliament, that it should have been accompanied by such provisions as my Bill is intended to supply; and, indeed, it was contended, that such provisions should have been embodied in that Aet. That Act was indisputably intended, by its most respectable author, to enforce the residence of the Cler-immediately be brought in. In pursuance of gy, and it certainly does contain some very beneficial provisions for that purpose, by giving to the Bishops a more summary and effectual power of enforcing such residence; but it cannot be denied, that it contains also not only a prodigious number of excuses for non-residence, which myself and others ineffectually endeavoured to diminish, but also what we with equal ill success endeavoured to oppose, a great extension of the time which was recognized before as the legal limit within which non-residence was exempted from penalty. It extends, for instance, the one month allowed under the statute of Henry VIII. to three; that is, it extends it at once from a twelfth part of a year to a fourth part; consequently, whatever powers of a summary nature it may give, (and it does give, as 1 have before stated, most useful powers of that

such promise, such a Bill was brought in. Unfortunately, however, a money provision was annexed to it in favour of those Curates who, it was imagined, might be deprived of their curacies by the effect which Sir William Scott's Act would have upon compelling the residence of the Rectors: and the Lords rejected it, upon the objection that it was inconsistent with their privileges, to it pass under such circumstances. The Bill for the same purpose was again brought in and passed through the House of Commons in the next Session: it passed also through the House of Lords; but in its passage through that House, it was amended in some of its money clauses, and the House of Commons then, consistently with the uniform practice of that House, could not do otherwise than refue their cousent to a Bill, in the money provi

sions of which the Lords had made any amendment. When this Bill, so amended, came back from the Lords, the Session was too far advanced for a new Bill, and therefore the renewal of it was necessarily deferred to the following Session. In the following Session it was renewed, but then Mr. Pitt, who had uniformly given it his steady support, was no more; and, Mr. Fox flinging his weight against it, into the scale of the opponents, it was lost on the second reading. Why the change of Government should have made such a change in the opinions of the House of Commons on such a measure as this, it is by no means to my present purpose to enquire; but, as far as respects Mr. Fox's opposition, it is but due to him to state, that he expressed himself as friendly as possible to the general object of the measure; and if I have any ground of complaint against his opposition, it is, that wishing well to the object, he gave, as it appeared to me at least, too great weight to objections which were made to some of the detailed provisions, and which might certainly have been removed by amendments in the Committee.

enforce the object of such a measure as is now under consideration, upoit any other ground than such (if any such can be produced) as may shew its inexpediency and impolicy, is extravagant to a degree that is perfectly incomprehensible.

It cannot be doubted that the canon law, the common law, and the statute law, require residence. In the third volume of Dr. Burn's Ecclesiastical Law, p. 281, under title "Residence," you may find authorities for this position.

"The Bishop shall provide that in every "church there shall be one resident."

"The rule of the ancient canon law "was, that if a clergyman deserted his "church or prebend without just and neces"sary cause, and especially without the con"sent of the diocesan, he should be de

prived" and agreeably hereunto was the practice in this realm: for, though some times the Bishop proceeded only to seques tration, or other censures of an inferior nature, yet the more frequent punishment was deprivation. Gibs, 827.

Regularly residence is required of eccle"siastical persons upon their cures." The intendment of the common law is, that a clerk is resident on his cure. 2 Inst. 625.

In furtherance of these canon law and common law obligations to residence, the le gislature interfered about the time of the reformation, to impose statutary obligations to reside, and pecuniary penalties for non-resi dence. Those obligations were by Sir Wil liam Scott's act modified, at least, if not relaxed. And all that my argument assumes is this, that the legislature which does relax these canon and common law obligations to residence, and does define its limits, must of necessity be competent to annex such conditions upon its modifications and relaxations, as it shall see fit; and may therefore unques tionably say to the clerk, who, by the canon law, is obliged to reside, "we mean to en "force the canon law obligations to resi"dence by temporal penalties, but they shall not apply unless your non-residence is of a given extent, provided you secure the re"sidence of a curate in your absence, and "furnish him with what we deeth a compe "tent maintenance. If you do not choose "to comply with these terms, then we will "compel you by temporal penalties to per

This fate could not, as I think at least, have at ended this measure, if the provision for it had been ingrafted into Sir William Scott's Act; for many who were eager and anxious for the act relaxing the obligations to residence in favour of the Rectors who did not perform their duties, exhibited, unfortunately, no similar eagerness and anxiety for a Bill which was to provide for the better maintenance of the Curates who did perform those duties in their stead. But I cannot see how either Patron, or Rector, or any advocate for either of their interests, could have objected had the provision for such better maintenance made part of that Act. The condition must have been felt to be reasonable; it would have been urged, and must have been felt, that the law would only apply to cases of nonfesidence; if the Rector did not take the advantage of non-residence he would not be within the reach of that law, and if he did take that advantage he could not complain" that he was obliged to submit to the condition upon which alone he was admitted to the advantage. The objection that the Legis lature can have no justifiable ground for interfering and exercising its jurisdiction upon the subject, could not possibly have been urged or felt by them, at whose instance, and for whose benefit, the Legislature was called upon to interfere to exercise its jurisdiction, by relaxing the obligations to residence, by indemnifying against penalties which had been incurred, and modifying with new provisions those which were to attach thereafter. And, even in the state in which the matter now stands, the idea of denying the propriety of parliamentary interference to

form that duty which the canon law imposes upon you." With this view of the argument, surely it must be absurd to contend that it is incompetent for Parliament to interfere, and that such interference is either an innovation on the church, or a violation and plunder of its property.

As to such interference being charged as an innovation on the established church, the church of England, the church which takes

the date of its legal establishment certainly ties. It was given, probably in early times not before Henry VIII.'s time, see how that of christianity, by kings or great proprietors, charge stands. It is clear, from what has for the support of the ministers of religion in been already said, that the statutary penal- the performance of their important duties. ties for non-residence are as old as the Refor- How it was originally derived to the church mation. The English church has never had is a matter of mere antiquarian curiosity and an existence but accompanied with the le- research. The canon and common law gislative provision of the statute of Henry which have been referred to, prove the conVIII., till the passing of Sir William Scott's dition on which it is now holden, whatever act. Can any man possibly deny the right of might have been the condition on which it the legislature to repeal Sir William Scott's was originally given. Nothing can be more act, which has passed within these four years, clear than, that the non-performance of these and which is only a temporary law that will duties is an actually legal cause of forfeiture. expire of itself, unless it is continued; and Can it then be seriously maintained, that if consequently (for such would be the effect of use, the fashion of the times, or any other its repeal) to revive the penalties of the former cause, shall have introduced too great a destatute of Henry VIII.? If then it is clearly gree of remissness in the discharge of any of competent to the legislature to repeal the late those duties, that the legislature cannot inact, can there be any doubt that it can, in- terfere, either by punishment to correct this stead of repealing it entirely, suffer it to re remissness, or by regulation to qualify and main, annexing to the advantages which it diminish its mischievous effects, without confers on the beneficed clergy those condi- being charged with a violation of private protions on which alone they may still be al-perty, and an abandonment of those cautious lowed to enjoy them? The impropriety, therefore, of legislative interference, must unquestionably depend entirely on the inexpediency and impolicy of such interference, and not on any doubt of the competency of Parliament to interfere. And I do trust that these observations are abundantly sufficient to remove any degree of possible doubt which has been endeavoured to be raised, upon the full, absolute, entire, and unquestionable competency of the legislature to interfere with whatever regulations it may conceive expedient and necessary to enforce the performance of any duties which the common law, which the canon law, and which the reason and nature of the establishment annex to the possession and enjoyment of ecclesiastical property.

principles on which it abstains in other cases from interfering with the rights and possessions of individuals?

The argument cannot be pushed to that extent; at least, if it is, it cannot have any effect on persons really acquainted with the subject. But then it is said by those, who cannot deny that church property is held on the condition of performing the duties belonging to the station to which it is annexed, that all the duty which is annexed to this species of property is this: that the proprie tor, the incumbent, should either discharge the duties of it himself, or find some one who will discharge them for him ;-that the terms on which he can prevail on a man 1o discharge these duties are mere matters of private contract between the rector and his curate-that the curate is the true and only person to put the proper estimate on the value of his own labour; and if he is contented, no one else has a right to interfere or complain.

The objection which is founded upon the supposed violation of ecclesiastical private property, which ought to be held as sacred as any other, is in no small degree affected by the argument on the former point. I agree, and would contend as strongly as any man, that ec- Now I must deny absolutely the proposiclesiastical property should be held as sacred and tion that no person has a right to interfere in inviolate as any species of property whatso-regulating the salary of the curate, except the ever; but, the question is not, whether that rector and the curate themselves. But I am property ought not to be held as sacred, as not disposed to deny, that all the condition much under the protecting guardianship of which is annexed to this sort of property, the legislature as any other; but, whether and on which the incumbent holds it, is elthere are not duties and conditions annexed ther to discharge the duties of his office himto the enjoyment of that property, which do self, or to find another person as his curate not attach to any other? and whether those to discharge them for him. But then those duties ought not to be held sacred also, and duties, which are to be performed either by ought not to be protected by legislative guar- himself or his substitute, must be well underdianship? That it is subject to many consi- stood; and it must also be taken into the acderations which distinguish it materially from count, that he is not himself the judge to other property, it is impossible that any one determine whether they are sufficiently disshould seriously deny. This property is ra- charged. We have seen by reference to the ther to be considered as the reward and sa- canon law, that residence is one of those duJary for the performance of ecclesiastical duties; that the desertion of the benefice is a