HC Deb 31 March 1881 vol 260 cc417-26

Order for Second Reading read.


in moving that the Bill be now read a second time, said: The subject of this measure for the improvement of the Law of Teinds or Tithes in Scotland is one of a somewhat technical character; and I shall not occupy very much the time of the House in explanation of its provisions. It is right that I should state, at the outset, that the subject has attracted a great deal of attention in Scotland; and this measure has been prepared at the request of a very influential committee, consisting of representative members from the various County Boards of Scotland, who had appointed a committee of their number to investigate the subject and make recommendations. The judicial procedure regarding tithes in Scotland is one of the most antiquated, barbarous, and cumbrous systems of judicial process that exists in any part of the civilized world. While every other part of our judicial system has been simplified and improved in conformity with modern requirements, this department touching upon Ecclesiastical Law, and relating to the rights of the Church, has been allowed to remain as it stood two centuries ago; its very nomenclature unintelligible to the community; its rules, those that existed at the time when a Court of 15 Judges, sitting with endless opportunities of reclamation and appeal against its own judgments, had its time chiefly occupied in deciding questions of form. The object of this measure is to introduce a simpler and more economical method of ascertaining and valuing the tithes of the country, and of apportioning the liability between the different landed proprietors affected by it. In order to explain the provisions of the Bill, it will be necessary to state, in a sentence or two, how the Common Law stands at the present time with reference to the liability of owners of tithes towards the clergyman. It is probably known to many Members of the House that there is a material difference between the position of the clergy of Scotland and those of England—that while in England tithes are mostly in the hands of the rectors, who own the property of the tithes subject to certain deductions, in Scotland the tithes are almost entirely in the hands of persons who, in the language of the English law, would be called lay impropriators, but who with us are called titulars. It is matter of history that after the Reformation the great mass of the tithes in Scotland were made over by grants from the Crown to influential landed proprietors, who made use of their influence to obtain these favours. They have been assigned and have passed into various bands. I am glad to say that a considerable part of the tithe property belongs to the Crown, and is administered by the Commissioners of Woods and Forests. A considerable portion belongs to the Universities and other corporations. Much of the tithes remains with the proprietors of the soil from which they are levied; but a large portion still belongs to the titulars, who have no connection whatever with the soil; but who have the right of drawing the tithes by virtue of their titles from estates to which they are strangers. The clergy, as a rule, are stipendiaries. They, under an Act of the Scottish Parliament, passed soon after the Reformation, were entitled to have competent stipends assigned to them as a charge upon the tithes in whose hands so ever these might be found. In modern practice every clergyman was entitled once in 20 years to come into Court and ask for an augmentation or increase of his stipend; and there ensued a general litigation among all the heritors and landed proprietors of the parish to ascertain who were primarily liable, and to what amount, and whether the tithes were valued or not. Now, if the system that was devised after the Reformation had been carried out, this costly and troublesome process recurring at frequent intervals would have had no place in our judicial system. In the time of King Charles II. two successive Commissions were appointed, with powers to value all the teinds in Scotland, and to ascertain the liabilities of persons entitled to them. Unfortunately, a considerable part of the records of the valuation of these Commissions was destroyed by fire; another portion of them was removed to England, and lost at sea in the transit; and, by various accidents, the result is that only a part—though, undoubtedly, a considerable part—of the official valuations of the tithes of the country which were thus valued remain extant in the records of our Register House. The result is that whenever a minister has obtained an increase of stipend he has to call all the landed proprietors of the parish into Court. A common agent was then appointed to attend to the interests of the proprietors collectively; and every man appointed his own solicitor to look after his individual interests; and litigations went on that lasted for 5, 10, or even 20 years, sometimes becoming dormant and being revived again, and it not unfrequently happened that the cost of the ascertainment of the liability amounted to more than all the benefit the clergyman obtained by his application. This state of things has given rise to a great deal of feeling on the part of landed proprietors, and last year a Committee of the Commissioners of Supply or County Boards was appointed to draw up a scheme, and they requested the Government to give effect to it by bringing a Bill into this House. The provisions of the Bill, which have been adjusted after consideration with persons of great experience and practice in this branch of law, I shall shortly explain to the House. It appears to me that, instead of treating this branch of legal practice as a subject of litigation, it ought to be regarded as an administrative proceeding to be regulated by Commission; but, inasmuch as the questions that are likely to arise and to engage the attention of the Commission are of a legal character, it is desirable that the person who undertakes the settlement of these questions should be a lawyer of the highest reputation, and one who would command the confidence of the country. It is proposed that one of the Judges of the Superior Court should be appointed Judicial Commissioner for making up the roll of tithes in the various parishes. It is provided that he should begin with those in which the tithes have been already to a certain extent valued, beginning with the more recent cases and advancing to the more difficult; that he should make up a draft roll, and should then advertise a day on which he will proceed to hear all objections to that roll, and to declare it final with regard to the parish. Power is given, in case of any question arising of importance or difficulty, for granting an appeal to a Division of the Court of Session. I shall not trouble the House by explaining or enumerating the different matters which are to be embodied in a tabular form in the roll of the tithes, and which are to become the basis of future assessments for ministers' stipends. There is one other matter which requires attention. It had been the practice hitherto to allocate stipends of ministers in grain. He got so many bolls, firlots, and other ancient denominations, and measures of wheat, barley, oats, and beans; and after these had been carefully calculated and reduced to a tabular form they were converted back to money, and the clergyman was actually paid his stipend in money. We have thought it desirable that this antiquated process should cease, and that all stipends should be allocated in the current coin of the Realm upon an average of years preceding the making of the application. No change has been made with reference to the rights either of the minister or the rights of the proprietors. The right of the minister to apply to the Court for an increase of his stipend is preserved; but some improvement is made in the course of procedure, and the rights of the proprietors to the reversionary interest in the tithes are also preserved. The only change is in their mode of ascertainment. I am very hopeful that this measure will be favourably received by the landed proprietors of Scotland, because it is based on their own recommendations, and has met with the approval of some of the most eminent Judges and authorities on this branch of the law. I shall, therefore, as the subject is one which in its own nature cannot be familiar to many Members of this House, and which I must ask them, therefore, to take to some extent on trust, venture to ask the House to give a favourable consideration to the Bill. I know there are some hon. Members who desire not to be committed to the second reading of the Bill; and if an adjournment is proposed, I have no objection that some time should be given for consideration, and the second reading deferred till after Easter. I have been desirous to make this statement of the objects of the measure, and also to explain what objects are not contemplated by the Bill, in order that at the meetings of the county proprietors, which will be held in the ensuing month, they may have before them the views of the Government with reference to a subject in which they are much interested. I venture to hope that if the House will consent to pass this Bill a subject which has given rise to a great deal of heart-burning between the clergy and the proprietors may be simplified, and that the interests of the Church and the people, which in this matter are not in conflict, may, in some degree, be promoted by the reforms proposed.

Motion made, and Question proposed, "That the Bill be now read a second time."—(The Lord Advocate.)


had heard the statement of the Lord Advocate with great satisfaction that he was willing that the Bill should be allowed to stand over. The Bill was very technical, and dealt with a law of a very complex nature, and one not very well understood even by most lawyers. The Lord Advocate had had no opportunity of making a statement on the first reading, and the statement he had made that night was well worth consideration. He believed it would be satisfactory, not only to the Scotch Members, but to the Scotch community, that time should be given to consider that statement; and, therefore, he moved the adjournment of the debate.


seconded the Motion.

Motion made, and Question proposed, "That the Debate be now adjourned."—(Mr. Dick-Peddie.)


said, the main result of the Bill, apart from improving the mode of procedure, would be to compel every landlord to value his teinds at once. As all Scotch landlords were aware, it had been possible for them to value their teinds at any time they might select during the past 200 years. Those who valued them 200 years ago were now liable for a very small fee for the support of the clergy, while other landlords who had not done so were liable up to a fifth of the gross rental. If the proposition of the Lord Advocate were carried into effect all those landlords who had not had their teinds valued must value them at once on the year 1880–1. No Scotch landlord would think of valuing his teinds at this moment, because rents in Scotland were not rising, but falling. The consequence of that might be that in certain estates where the teinds had not been valued the landlord might at some future time be in considerable difficulty. That was a consideration which he should like to bring under the notice of the Lord Advocate, because the Bill might have the effect of doing a practical injustice in some few cases.


thought it was rather for the advantages of the proprietor that his teinds should be valued when rents were low, because his object was that teinds to be charged on the estates should be as low as possible.


said, he never knew such a course proposed as to delay a Bill when there was plenty of time for its discussion. The Lord Advocate seemingly had been informed by some hon. Members that the Bill was not agreeable to parties not belonging to Scotland, but to England; and he was prepared, by acquiescing in that dissatisfaction, to give them an opportunity of opposing the Bill. He thought the Bill a very important one. It had no reference to establishment or disestablishment. It was simply meant to get over a cumbrous and antiquated and expensive law. He thought the Lord Advocate would have shown more the spirit of a Scotch Representative if he had opposed this action. The opponents of the Bill would have an opportunity of expressing their views upon it in going into Committee.


joined with his hon. Friend who had just sat down in his representations on this subject. The Lord Advocate had made his statement with such lucidity and clearness that it was perfectly possible for anyone, even although perfectly uninformed on the subject, to follow the purpose of the Bill. It had been stated that the Bill was introduced at the instigation of the landed proprietors. Of that fact he was well aware before; but the Lord Advocate, having made that statement, followed it up by saying that the Bill should be discussed by the proprietors. Well, if the Bill was so introduced, what was the use of referring it to the landed proprietors? There was a little more in this than appeared. Along with his hon. Friend he joined in expressing astonishment that the Government should not take the opportunity of getting the second reading of a Bill which they judged to be of importance, and on which there could not be very much debate, partly owing to the Lord Advocate having said all that could be said on the subject, and partly that so many hon. Members were thoroughly ignorant of the subject.


suggested that the hon. Member should withdraw the Motion for adjournment.


expressed his surprise that the right hon. and learned Lord Advocate, after having moved the second reading of the Bill, should have consented to the adjournment of the debate. He thought the present was a most appropriate opportunity for discussing the measure. He wished, however, to draw the attention of Mr. Speaker to the fact that at the head of the Bill, as circulated to hon. Members, there was a statement or a summary of the objects of the measure drawn up on the authority of those who had introduced it. He thought that such a practice was a dangerous one, and that if such a statement was to be drawn up at all it ought to be done by an entirely independent authority. He should like the right hon. Gentleman in the Chair to give the House his views on the subject.


As the right hon. Gentleman has called my attention to the statement of objects contained at the head of this Bill, I am bound to say, while not expressing any opinion upon the particular statement with reference to this Bill, that I think the practice referred to is one which is open to abuse. My attention having been called to the matter, I can only say at present that I will look into it and see what course it would be best for the House to pursue. No doubt, to a certain extent, some convenience may result from the practice of accompanying a Bill by such a statement; but, at the same time, I feel the force of the observation made by the right hon. Gentleman that if a statement of this kind is desirable it should be drawn up by some independent authority.


There seems to be a general feeling, on both sides of the House, that the Bill should be proceeded with. I hope, under these circumstances, that my hon. Friend the Member for Kilmarnock (Mr. Dick-Peddie) will not persist with the Motion he has made for the adjournment of the debate, and that, as time is precious, he will allow the Bill to be proceeded with.


said, he rose to express his surprise at the Motion which had been made for the adjournment of the debate. There was a general complaint among the Scotch Members that no time could be obtained for the consideration of Scotch Business. They had now on the Notice Paper two Scotch Bills; and having put one off until after Easter, now that the other was brought on at a reasonable hour, the hon. Member for Kilmarnock proposed to adjourn the debate, but did not bring forward a single argument in favour of adjournment. The Bill, so far as he could judge, was admirably suited to the object the Lord Advocate had in view, and they ought to feel obliged to him for having brought it on at so early an hour, so that it might be sent clown to Scotland and discussed by the various Committees in the Recess, just as easily after the second reading as before. He therefore trusted that the Motion for the adjournment of the debate would be withdrawn, and that the House would read the Bill a second time, as he imagined there could be no opposition to it whatever.


said, that as the feeling of the House on both sides seemed to be strongly against the adjournment of the debate, he should not feel it right to press the Motion. He had moved the adjournment because he thought the statement of the right hon. and learned Lord Advocate was one that required careful consideration before they proceeded to discuss the Bill. In withdrawing the Motion he had made, he would only say that the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon), in stating that he had given no reason for the Motion, was mistaken. He had said that the Bill was of a technical and complicated nature; and seeing that no statement was made by the right hon. and learned Lord Advocate on introducing it, but that this was the first explanation that had been offered, he thought an opportunity should be afforded for considering the nature of its provisions. In withdrawing the Motion for the adjournment of the debate, he wished it to be understood that he reserved to himself the right of taking what action he might think proper at a later stage of the measure.


merely wished to say that he was not surprised at the course pursued by the Lord Advocate. ["Hear, hear!"] An hon. Member opposite said "Hear, hear!" assuming, of course, that he (Mr. Ramsay) was opposed to the Bill. It was not at all upon that ground that he made this remark; but because the right hon. and learned Gentleman, in answering a Question of his early in the evening, indicated that he intended to take this course, and had promised, after moving the second reading of the Bill, to adjourn the discussion upon the merits of the Bill. His (Mr. Ramsay's) reason for assenting to the proposal was not that he had any doubt as to the principle of the measure, but because he felt it was due to those at whose instance the Bill was drawn up that the Lord Advocate should take that course, in order that those who had the greatest interest in the Bill in Scotland —the landed proprietors—should have an opportunity of judging for themselves whether the principles which they had submitted to the Lord Advocate were fairly and fully embodied in the Bill. What he had felt was, that when they were called upon to vote for the second reading of the Bill, and to express, by so doing, their approval of its principles, that it was necessary that it should be fully understood by those at whose instance it had been introduced. The hon. Member for Dumbarton (Mr. Orr Ewing) had alluded to the course pursued by the Liberation Society of England. He (Mr. Ramsay) had never heard of such a resolution as that which had been referred to; and he had no more idea of it, in seconding the Motion for adjournment, than if it had never occurred. The truth was, he had felt the remark made by the Lord Advocate, in answering the Question which he put to the right hon. and learned Gentleman in the afternoon, might have been the means of inducing some of the Scotch Members who were then present to have left the House without waiting to hear the discussion. Ho felt, further, that the right hon. and learned Lord Advocate was fully justified in the course he proposed to take. He was quite sure that if the right hon. Gentleman opposite (Sir R. Assheton Cross), who had brought under the notice of the Chair the statement which appeared at the head of the Bill, had heard the answer which had been given to his (Mr. Ramsay's) Question, he would have felt there was no ground for surprise at the course the Lord Advocate had taken in assenting to the Motion for the adjournment of the debate.

Motion, by leave, withdrawn.


wished to put a question to the Solicitor General for Scotland. He wanted to know if it was intended to compel any landlord whose rents were falling now, and likely to fall, to have his teinds valued on the rents of 1880–1? That would not be so under the law as it stood; and he wished to know if the landlord would be compelled to accept that valuation under the present Bill, or whether any provision would be inserted in the measure to prevent injustice being done?


stated, in reply, that if the Bill became law it would necessarily deal with all the teinds of Scotland for as long a period as might be found requisite for the purpose in view; but, certainly, provision would be made that the real value of the land at the time would be the basis. Of course, all teinds would be valued if the Bill passed.

Main Question put, and agreed to.

Bill read a second time, and committed for Thursday next.