SOUTHWARK IMPROVEMENT (NO. 2) BILL. (Hansard, 26 April 1842)

Mr. It. Palmer
moved the re- 1111 sumption of the adjourned debate on the clause of the Southwark Improvement Bill which he had proposed on Tuesday last. Question again put that the clause be read a second time.

§ Mr. Lambton
having presented an important petition from many church leaseholders in the county of Durham, praying the Legislature not to sanction any compulsory sale of church leasehold property without a clause to ensure compensation to the church lessees for their right of renewal, must contend that this was the most proper and fitting time to discuss the important principle involved in this bill; for this bill was the first attempt in the new Parliament to upset—to reverse the most important decisions that took place in the last Parliament, with regard to the principle of compensation to church lessees, for their right of renewal; and it was clear that if this bill passed without such a clause as was now asked, it would be used as a dangerous precedent for future violations of the principle in future legislation; and it would be seen how very important this subject was, and how very large the amount of property was, that might be affected, when he reminded the House that the average annual rental of the church leases was 1,323,000l., and that not only thousands but hundreds of thousands were laid out expressly on the faith of this renewal. He particularly called upon all those Members of the new Parliament who were not in the last, to observe what were the decisions of the last Parliament on the subject. On the Irish Temporalities Bill —it was argued in the debate on the great church-rate proposition of the late Government, when the Chancellor of the Exchequer admitted the principle; and it was ably and admirably argued by the present Solicitor-general and the hon. and learned Member for Ripon—it was minutely enquired into by the church-lease committee, when able witnesses were examined from all parts of the country—and one of them was so important as to induce him to read one of his answers. Mr. Hodgson, Receiver-general to the Archbishop of Canterbury, and Auditor to the Bishop of London, was asked this question —: You have found, in your own experience that the amount of the purchase money is a great excess above the value of the lease, computed as an annuity? Answer;— 1112 I should say, that the church property I have sold, I sold with some increase of value, by there being considered a sort of tacit consent allowed by the lawyers and the public— what is termed the tenants' right of renewal; I find it even spoken of in the law books. The hon. Member then quoted from Wood fall's Landlord and Tenant, and from Butler's Notes on Coke upon Littleton, to show the very important light in which the highest authorities of law-books regarded this subject. This principle was again discussed in the Farnham Rectory case, when the noble Lord, the present Secretary for the Colonies, ably advocated the principle; and lastly, this very Southwark Improvement Bill, with the very clause of compensation, passed this House, but was not discussed by the Lords on account of the dissolution of Parliament. He did not pretend to argue the question as a lawyer; but he did pretend to take a common sense view, and a common justice view of the question—and what was it? Why, here were parties coming to this House to ask for a compulsory sale of church leasehold property. The church lessees say—" If you take our property, give us the fair marketable value of our property: this right of renewal has a distinc marketable value: and therefore we ask for it." And it surely would be a manifest gross injustice to refuse them this demand. They cannot get it by a common compensation clause: it had been tried before: it was tried in the case of the Liverpool and Manchester Railway Company in 1837. There was no difference of opinion among the judges as to the marketable value of the right of renewal; but as it was not what is called a strict legal interest, and as the clause of the act of Parliament was not sufficiently comprehensive, the judges could not decide in favour of the church lessee; but Mr. Justice Littledale said,— There are no words in this act sufficiently comprehensive to include an interest of this description: there were such in the Hunger-ford Market Act. Now the case of this Hungerford Market was an important illustration for what the House was now discussing. The claimant insisted on his compensation for the "right of good-will"—all the judge gave it in his favour, because the clause of the Act of Parliament was sufficiently comprehensive to allow them to do so, it is remarkable to see how evidently anxious the judges 1113 were to do justice to this peculiar kind of interest, when the act of Parliament allowed them. The right of good will is a similar kind of interest to the right of renewal—a practical interest, but not a strictly legal interest; but the right of renewal rests on much stronger grounds; because it rests on the uniform practice of three centuries, and is upheld by different acts of Parliament. Upon the Hungerford Market case, Mr. Justice Littledale says,— It is perhaps strictly true there may be no interest in a good-will; but we know that there is practically such an interest, which is usually a subject of sale; that interest the Legislature seems to have contemplated in this section. All the judges agreed. It is clearly the duty of the Legislature to contemplate and guard with the greatest carefulness, all such peculiar interests as these. It is the peculiar province of the House to see that in these private acts no injustice is done to any one. Lord Eldon had expressed a remarkable opinion on this point: and doubtless Lord Cottenham and Lord Lyndhurst would agree with it. It was in some case, in 1824, when some individual went before him on account of an injustice done to him by a private act. Lord Eldon thus speaks of private acts of Parliament;— When I look upon these acts of Parliament, I regard them all in the light of contracts made by the Legislature, on behalf of every person interested in any thing to be done under them; and I have no hesitation in asserting, that unless that principle is applied in construing statutes of this description, they become instruments, of greater oppression than anything in the whole system of administration under our constitution. Apply this to the case before the House. The Legislature is called upon to make this contract, so that the church lessees shall have the same marketable value for their property that they would have had if the proposed act had not passed. The hon. Member, after calling upon the House to support the principle, observed that he should propose to alter a good deal of the wording of the clause of the hon. Member for Berkshire.

§ The Speaker
informed the hon. Member that he could not then propose his amendment.

§ Captain' Fitzroy
said, it was undoubtedly the anxious intention of the com- 1114 mittee to do the fullest justice to the lessees. The jury clause, he conceived, proved this. That clause set forth— That if any dispute shall arise as to the value of such houses with the commissioners, or if any dispute shall arise with the said commissioners, as to the value of any interest therein, the same shall be decided by a jury summoned for that purpose. Now, when those cases were brought before a jury of honest men, was it not a sufficient warrant, that they would take into full consideration the probability of the renewal of those leases, and that they would award proportionate compensation? Much had been said about marketable value, and the words were introduced in the proposed amendment of the hon. Member for Durham (Mr. Lambton). But were there not two marketable values? Might not the property be taken into the market with a distinct understanding, that a renewal of the leases would be granted —or might it not be brought into the market with a distinct notification, that the Bishop refused to renew the leases? And he should like to know whether in the latter case, the marketable value would not be very different from the marketable value in the former, although, according to the amendment, the marketable value was to be set down at the same amount as if this bill had not passed. He should oppose the clause, as he deemed it unnecessary.

§ Mr. Thesiger
said, as the hon. and gallant Member who had just sat down, had declared, that it was the anxious intention of the committee to give to the lessees every fair and just advantage which they could claim, he could not see why the hon. and gallant Member should object to the clause of the hon. Member for Berkshire, which only went to carry out the principle of due compensation. It was said, that this bill was intended to effect a great public improvement. Now, as the bill stood, it appeared to him, that it was calculated to work much injustice, and, in his opinion, if a measure having public improvement for its object, could not be carried into effect, without inflicting injustice on individuals, it would be better to abandon it.

§ Lord G. Somerset
said, he should prefer the clause as it was proposed to be amended by the hon. Member for North Durham (Mr. Lambton), and he, therefore, wished to have the opinion of the 1115 Speaker whether it could be substituted for that before the House.

§ The Speaker
said, that notice should have been given by the hon. Member for North Durham of his intention to propose the clause. It was impossible to receive the clause now, but if the House should assent to the second reading of the one before them, it would be possible to amend it in such a manner, as to make it like that proposed by the hon. Member for North Durham; or further proceeding's son the present clause might be adjourned, and another brought forward after proper notice.

§ Sir R. Inglis
said, he saw no reason for giving to the complaining parties in this case any greater right than the law at present gave them. If a wrong were committed, for such wrong the law provided a remedy. It could not be said, that in this country there was any wrong without a remedy. But those who supported the clause would not only leave to these parties the benefit of the operation of the existing law, but would grant to them a right which the law never intended or contemplated. He knew with what an invidious feeling church property was viewed by many eyes in that House. But, let him remind the right hon. and learned Gentleman, who had cheered when it was stated, that the Church received annually 1,300,000l. that much of that property was in the hands of lay lessees—that it did not, by any means, all go to the Church and the hierarchy—that gentlemen in blue coats, as well as in black coats were interested in it. He could not conceive why any additional power should be granted to those parties to profit, especially by that property. If they possessed a right, which the law conferred on them, why, let them use it; but he could see no reason why a special law should be made in their favour. In conclusion, he would observe, that it was contrary to all precedents, in cases of this nature, to take a private bill out of the hands of its promoters, for the purpose of introducing a clause of which they wholly disapproved.

§ Sir T. Wilde
said, the hon. Baronet; called on the House not to give to those parties a right that was not now in existence; and he had quoted a maxim which sounded very well, but which few practical lawyers would admit to be a correct one,—namely, that there was no wrong without a remedy, Now, the opponents 1116 of this bill demanded nothing of the kind; they did not require, that any new right should be given to these parties. All they said was, "Leave the possessors of these church leases as they are, and they ask for no further right." The question was not to give them a right they did not now possess; but the real question was, "Will you take from them their property at less than its full and just value?"— that value which the property was likely to command, when it was brought into the market in connection with a promise of renewal that was never refused. If the promoters of the bill were anxious to effect a great public improvement, why should those parties who were interested in this property be saddled with the expense of it? The lessees had no legal right against the Church; but the interest of the Church was at present their security; and that security would cease, if this bill were passed. He could not look at the claims of these parties in the light of compensation for an imaginary right. They demanded the price of an article; they demanded, that their property should not be taken away, without receiving the full value for it.

§ The Solicitor-General
said, that he was not disposed to vote for the clause that had been printed and circulated with the votes, but he concurred in the substantial part of the clause of the hon. Member for Durham. He would suggest, that the hon. Member for Berkshire should withdraw the clause, and bring up an amended clause on the third reading of the bill.