HC Deb 18 July 1854 vol 135 cc372-81

Order for Committee read.


said, he wished to propose the following instruction to the Committee— That it is expedient in this Bill, renewing the Act 14 & 15 Vict. c. 104, to define more clearly the intention of the following words in the first clause of that Act, namely, 'It shall be lawful for any Ecclesiastical Corporation, sole or aggregate, with the approval in writing of the Church Estate Commissioners, who shall pay due regard to the just and reasonable claims of the present holders of lands, under lease or otherwise, arising from the long-continued practice of renewal, to sell to any lessee, under any lease granted by such corporation, the reversion, estate, and interest of such corporation in all or any of the lands comprised in such lease, for such consideration, upon such terms, and in such manner as such corporation and lessee may, with such approval as aforesaid, think fit' He thought it right that the attention of the House should be called to this question, and he, moreover, wished to call to the recollection of the House what had taken place many years since, when the present lord Monteagle, then Mr. Spring Rice, introduced a Bill on the subject, and reminded the House that Parliament had decided that due regard should be paid to the just and reasonable claims of the present holders of land, whether under lease or otherwise. In the year 1832 the Real Property Commissioners recommended that a final settlement should take place between the Church and the laity on the basis of customary payments. In the Agricultural Com- mittee of 1833, a plan was suggested in favour of the uniform settlement of the tithe question at the rate of 75 per cent; but the noble lord the President of the Council stated that it had been the custom of Devonshire from time immemorial to pay only 40 to 50 per cent, and that it would be absolute confiscation to come down to the House, and say that the persons who had paid only 40 or 50 per cent should be called upon to pay 75 per cent. The noble lord accordingly brought in a Bill in the year 1836 to settle the tithe question precisely on the basis of customary payments. After the year 1837 Parliament began to interfere between the landlord and the tenant, and the lessor and the lessee. The parties were previously competent to drive a bargain with each other; but when Parliament backed one party to stand out against the other, the other had no chance whatever, and that was the injustice of which, practically, the lessee had to complain. In 1850, when the Estates Commissioners Bill passed, which enabled the Bishops to transfer their material interests into the hands of the Estates Commissioners, and to accept in return a fixed income, he had asked his noble Friend (lord J. Russell) whether that Bill would prejudice the lessees' case; and his noble Friend said "No, no." But the House would observe how it had very materially prejudiced it; for when once the tenure was changed, and the power to lease was transferred from a dying body like the bishop to the hands of an undying body like the Commission, the Commission might choose to say that they would not renew, and, consequently, the indirect effect of passing the Estates Commission Act had been to prejudice very materially the lessees' interests. That was not carrying out the intentions of Parliament as expressed in the Act of 1851, or providing that due regard should be paid to the just and reasonable claims of the holders of lands under lease or otherwise. The Bill of 1851 having passed as a permissive Act, he (Mr. Cayley) was in hopes that at the expiration of the three years his noble Friend would have brought in a compulsory measure in order to effect a settlement of the question. In 1851 the principle of the compensation of the lessee where loss was sustained by him was affirmed by Parliament, but it was done in a singularly vague manner, and no general discussion had taken place. If the noble lord the President of the Council was re- ferred to, to state the sum at which the amount of compensation should be fixed, he would have no fear of the result. For a period of 200 years successive renewals of church leases had been allowed, and such was the confidence felt in the continuance of the system that settlements in some parts had been made with reference to them. The tenure was peculiarly popular among the yeomanry of the country, as by it that class became virtually proprietors of the land, and in the diocese of Durham, where one or two cases of disputed title occurred, it was not the bishop or the dean who came forward to vindicate it, but the lessee, who, it was considered, was most interested in the question. Such entire reliance had been placed upon that custom in the diocese that nearly the whole of the town of South Shields had been built upon leasehold land. Another point to which he wished to call the attention of the House was, that the Estates Commissioners based their calculations on the lives actually in the leases. Now that rule would press very hardly upon the holders of leases, particularly of small properties; because, in consequence of the reliance which had been placed on obtaining renewals, the lives were frequently not in so favourable a state for the lessee as they might have been. After all, this came to a question of extracting more from the lessees than they had been in the habit of paying. The plan which the Government proposed in 1837 would have had the effect of taking 250,000l. a year more out of their pockets than they had previously been charged with. This, at thirty years' purchase, amounted to 7,500,000l. The Church Estate Commissioners, however, according to the system they had pursued, would take 12,000,000l. from them —really a very large sum to charge upon so limited a body of persons, especially when it was recollected that they had hitherto considered themselves as practically the proprietors of the land.


said, that such an instruction was unnecessary, because, under the title of the Bill, the Committee were empowered to entertain the question referred to by the hon. Member.


said, he must appeal to the hon. Member to allow the House to go into Committee. He could then move any Amendments he wished.


said, he would withdraw his Motion.


said, he wished to call the attention of the House to the propriety of giving the places where funds arose from dealing with church property a prior claim to relief from them. This principle had already been approved by Parliament in dealing with the tithe rentcharge. At Hartlepool, Berwick, Newcastle, leeds, and other towns in the north, the means of spiritual instruction were quite inadequate to the demand; in one large parish, containing 22,000 inhabitants, there was only one church and one parochial school, capable of instructing about 100 children. At Gateshead there was not church and school accommodation for one-seventh of the population. The clergy of Hartlepool had not, altogether, an income of more than 1,500l. a year, and the incumbent of one of the largest parishes in that borough had only 170l. a year. In several townships there were neither churches nor schools, and the natural result followed in the degraded condition of the juvenile population. He did not wish to throw any blame on the Estate Commissioners, but he did think that those places from which large sums of money were derived had a prior claim to relief from them. One object of ecclesiastical property was undoubtedly to provide for the spiritual wants of the people, and Parliament ought not to be indifferent to the purposes which that property was intended to meet. If the House assented to the introduction of an arbitration clause in the present Bill, they would undoubtedly facilitate the enfranchisement of church property. This would necessarily place large funds in the hands of the Estate Commissioners, and it was therefore especially necessary that the House should now recognise the claims of the places where the property so enfranchised was situated.


said, he thought that nothing could be so desirable as to have some good and clear guide with respect to what are just and reasonable rights to compensation on the part of the lessees.

House in Committee.

Clauses 1, 2, and 3 agreed to.

Clause 4,


said, he was convinced that some alteration in the machinery was necessary in order to ensure greater despatch in the transactions under the Bill. He would, therefore, suggest that there should be a body for arbitration, or set of arbitrators appointed, to get rid of the difficulty to which he referred, and would consequently move the introduction of the following words to the clausel That the Bill be extended for two years, and that in every case where a treaty shall have been entered into under the provisions of this Act, for the sale, purchase, or exchange of any episcopal or capitular estate in England, or of any interest in such estate, it shall be lawful, by the consent of both parties to such treaty, to refer to arbitration the finding of the annual value of such estate, and of the value of the fee simple thereof, subject to the exceptions and reservations, if any, to be excepted and reserved thereout, and that such finding shall be adopted in computing the terms of such sale, purchase, or exchange, regard being had, in the final settlement of such terms in every such case, to the just and reasonable claims of the present holders of land under lease or otherwise, arising from the long-continued practice of renewal; and that in every such case one arbitrator shall be appointed by each of the parties to such treaty, and the two arbitrators so appointed shall, before they proceed in the matter referred to them, appoint an umpire or third arbitrator, and the proceedings upon such arbitration shall be conducted in like manner, and subject to the same rules and enactments as upon a reference made by consent upon a rule of court or judge's order. Provided always, that it shall be lawful for the parties to such treaty to appoint one and the same person to act as sole arbitrator; and in such case the valuations, acts, and award of such arbitrator shall have the same effect as valuations, acts, and award of the arbitrators and umpire, under the provisions herein contained; and in every case the costs of such arbitration and award shall be in the discretion of the said arbitrators or umpire, as the case may be. He considered that the clause did not interfere with the present voluntary character of the Bill, and he thought that the interests of the lessees would be better stated before a court of arbitrators, and more easily decided upon than in protracted negotiations with capitular bodies.


said, that if the object of the hon. and learned Gentleman was to enable the dean and chapter, on one side, and the lessees on the other, to appoint arbitrators to decide between them, all he could say was, that it was now open to the parties to do so, and there was no objection in point of form, which prevented the dean and chapter, on the one side, and the lessee on the other, appointing joint or single arbitrators for the purpose of ascertaining what, in their view, was the value of the property. Any clause of this nature was, therefore, unnecessary, and absolutely a work of supererogation. But if the hon. and learned Gentleman meant that the Church Estates Commissioners were to be bound by the arbitration entered into between the two parties, the case was totally different, and the proposition was one to which that House should not accede. It should be borne in mind that the principle on which the House had sanctioned this dealing between the capitular body and their lessees was this, that there was a hidden value in the property which it was fair should be divided, not between those two parties. but between the body that was interested in it (the capitular body) on the one side and the general interests of the Church on the other. It was only out of the surplus which was to be derived after the arrangements had been made that there was any hope of deriving funds for the relief of that spiritual destitution which an hon. Gentleman opposite (Mr. H. G. Liddell) had pointed out in such strong and just terms as prevailing in different districts within the county which he represented. The whole objection was that an arrangement should be made to suit entirely the objects of the two parties who contracted it, and it was necessary that it should be made with reference to the interests of the Church at large, for the purposes to which he had already alluded. The capitular body and the lessee might have a joint interest in depreciating the interest of the estate to the lowest possible amount. The capitular body would derive no advantage from the augmentation of the value, and the lessee, connected as he might be with the other, as agent or trustee, would have a manifest interest in depreciating the value of the property with which he had to deal. If the decision were made by two arbitrators, one of whom was appointed on behalf of each of those parties, it might occur that the interests of the Church, which were ultimately to be served, would only be injured. Before any opinion could be expressed on the clause it was necessary to understand whether the arbitrator's decision was to be subject to the uncontrolled revision afterwards of the Church Estates Commissioners, or whether it was to be held as one that should be binding and compulsory upon them.


said, that the proposed clause contained nothing to interfere with the power of the Church Estates Commissioners to pronounce a final decision on these questions.


said, that in that case the apprehensions which he had expressed with respect to the clause were removed; but he did not know whether the Committee would be disposed to agree to a clause merely to sanction that which the two parties might do at present. The only objection he saw to the proposed clause was, that in its working it was likely to excite dissatisfaction with the proceedings of the Church Estate Commissioners in cases where they set aside the award of the arbitrators.


said, the explanation of the hon. and learned Member the mover of the clause was certainly exactly the reverse of that which he expected, for he understood it was intended to provide something definite in the way of arbitration. That might have been the subject of discussion, but, as explained by the hon. and learned Gentleman, the clause would be not only unproductive, but mischievous, by causing much useless irritation and heart-burning between the lessees and the Church Estates Commissioners. As he read the clause, he understood that the award of the arbitrators would be binding on the Commissioners, for, although it came before them for confirmation, if it did not bind them, it would be of no utility whatever. There could be no doubt that, however liberal the arrangement might be, under the Act of Parliament the lessee would lose some years' valuation, and regard ought to be had to his interest. The clause, as it stood, did not seem to confer any benefit upon him, and he hoped the hon. and learned Member would either give some further explanation or not press it.


said, at present there were no means of knowing how the sum charged was calculated. What he wished by this clause was to have an arbitrator, not for the purpose of fixing the sum to be paid, but of ascertaining the value of the fee simple, the rent, and other particulars which might form the basis upon which the calculations would be made by the authorities when they came to consider the amount to be paid, and which amount would, of course, depend on the value of the lease and the consideration to be given to the lessee beyond his term, the whole matter being eventually submitted to the Church Estates Commissioners. At present, they had no power to reduce the amount, however excessive it might be.


said, the present was a permissive Bill, and the great advantage of the proposed clause was, that it did not interfere with its permissive character. But his hon. Friend the Member for Cockermouth (Mr. Aglionby), would turn it into a compulsory Bill. Now, he asked, would that be preserving its character, and would they keep within its title and direction if they introduced a compulsory clause of that nature? The object of the hon. and learned Member for South Shields (Mr. Ingham) was to establish some machinery for the purpose of bringing the parties together, and he begged to ask whether it would be consistent with the opinions of the noble lord the President of the Council, that an arbitrator should be appointed by the Church Estates Commissioners to act on behalf of the Church generally; and, as that could not be done without the assistance of Parliament, it would get rid of one of the objections that had been urged?


said, that Parliament having adopted this plan for the enfranchisement of capitular estates, it was desirable to carry it into effect; his hon. Friend who spoke last said with great truth, that the intention of Parliament was, that this Act should be voluntary, and it was advisable to maintain that principle. His right hon. Friend the Member for the University of Cambridge (Mr. Goulburn) had stated correctly that it would not be sufficient that the bishop or the capitular body on the one hand, and the lessee on the other, should each appoint an arbitrator who should choose an umpire, because it might be that the interests of the two parties alone would be consulted, and that of the Church neglected; for, although there might be many instances in which the lessee and the chapter might have no interests in common, in other cases large estates might be transferred without proper regard to the general interests of the Church. His hon. Friend the Member for Malton (Mr. E. Denison) bad said this was a question of giving great facilities for arrangement between the lessee, the ecclesiastical body, and the Church Estates Commissioners, and he (lord J. Russell) thought it was desirable that such facilities should be given, and considered that the suggestion the hon. Member had made would tend to produce a just and fair settlement of the question. He did not know whether the exact words drawn out by his hon. and learned Friend the Solicitor General would answer the purpose, but he proposed to insert after the word "treaty," the words "with the approbation of the Church Estates Commissioners," and, after the words "in every such case one arbitrator shall be appointed," to omit "by each of the parties," and insert instead, "by the Ecclesiastical Commissioners, and the other by the lessee or the intending purchaser." That seemed to him a very fair proposition, and he should like to know the opinion of his right hon. Friend the Member for the University of Cambridge on it. It was with great pleasure he had observed during the discussion that justice had been done to the Church Estates Commissioners, who, it must be admitted, on all hands, had manifested a very fair and impartial spirit in the working of the Act.


said, he doubted very much whether the adoption of the suggestion of the hon. Member for Malton would facilitate transactions of the kind they were now considering. He could quite understand that a capitular body would be willing to enter into negotiations with their lessees, when they were to be conducted by each party nominating an arbitrator; but he feared they would not be equally ready to do so if they knew that, the moment they commenced a negotiation, another body would send down an arbitrator. He did not think that the Committee had any reason to be dissatisfied with the progress that had been made in the enfranchisement of church property, seeing that in the last two and a half years, 3,000,000l. of property had undergone that process. Every one knew what would be the course of proceeding under this clause. In all cases of arbitration, the arbitrator of one party fixed the price as high as possible, and the arbitrator of the other as low as possible, and then the umpire took the medium. Now, no doubt, in arbitrations under this clause, the lessee would fix the value of the property as low as possible; but if the Church Estates Commissioners fixed the price as high as possible, he (Mr. Goulburn) would be asked by some hon. Member how they came to fix so exorbitant a value upon the property; and it would be no answer to that complaint to say that they had done so because they knew the umpire would take the medium between the highest and the lowest price. The Commissioners would thus be placed in a very difficult and invidious position.


said, he thought the object of the clause was, to give some protection to the lessee, but if it were true that the latent value which was said to be in the property was to be applied to the funds for decreasing spiritual destitution, what became of the lessee's interest in the renewals? He thought the clause as it stood might be easily carried out, and he did not see, because extreme cases might occur, in which lessees attempted to depre- ciate the value of the property, that they should be debarred from a fair consideration of their rights arising out of the long-continued practice of renewals. The lessees had held those estates in continued succession since the enabling Acts of Elizabeth, and all the improvements in the property for the last 200 years had been made by them; it was not fair, therefore, that they should be subjected to the control of the surveyor appointed by the Church Estates Commissioners and be placed under his veto. Such a proceeding would not be in accordance with the intentions of the legislature, conveyed in the Act of 1851.


said, it was not correct to say there was a latent value in the property, for, although an additional amount might be obtained by the Church Estates Commissioners if they compelled the lessees to sell separately, which they would have to do at a disadvantage, yet until that occurred, whatever latent value existed was enjoyed by the lessee.


said, he concurred in thinking that much injustice had been done to the lessees, and that the only question was, whether they should adopt or reject the addition to the clause proposed by the hon. and learned Member. He trusted the Committee would, without further discussion, accept it in its amended form.


said, he did not think the words that had been introduced by the Solicitor General would give the Church Estates Commissioners the appointment of one of the arbitrators.


said, he would beg to call the attention of the right hon. Gentleman to the words of his Amendment— In every such case, one arbitrator shall be appointed by the Church Estates Commission and the other by the lessee or intended purchaser. The right hon. Gentleman the Member for the University of Cambridge (Mr. Goulburn) was under a misapprehension in supposing that the value was to be ultimately settled by arbitration.

Clause, as amended, agreed to.

House resumed.

Committee report progress.