Lords Sitting of 21 July 1831

MINUTES.
Bills. Read a third time; Militia Ballot Suspension, Dean Forest Boundaries, and Assessed Taxes Composition.
Returns ordered. On the Motion of Lord TEYNHAM, the quantity of Capsicum and Capsicum Pods Imported for the last Seven Years, distinguishing each year, and the amount of Duty paid thereon.
Petitions presented. By the Marquis of THOMOND, from the Merchants, Traders, and Inhabitants of Cork, against the removal of the Naval Station from Cove. By the Bishop of GLOUCESTER, from the Minister and Inhabitants of Southborough (Kent), against that part of the Beer Bill which allowed Beer to be drank on the Premises. By Lord PLUNKETT, and the Marquis of DOWNSHIRE, from the Catholic Inhabitants of Charleville, for regulating Grants for Education; and of the Inhabitants of Dromara, Dromore, and Gawaghy, for continuing the Grant to the Kildare Street Society. By the Duke of RICHMOND, from the Inhabitants of Llanerehymedd, praying to Return a Member, in unison with other Boroughs.

FRAUDS ON CREDITORS.
Lord Wynford Lord Wynford moved, that the Order of the Day for the Third Reading of this Bill be discharged, and that the Third Reading be taken on Tuesday next.
Lord Plunkettsaid, that he had examined the Bill since it was last before the House, and he still considered the clause which he then objected to, to be harsh and oppressive. He thought it would be a severe enactment to bring under the operation of the Bankrupt-laws, a man who went abroad for his amusement, or in consequence of some temporary embarrassment, and who had no intention of defrauding his creditors. He imagined that, though the reference to a tribunal to decide on the fact of his absence was apparently fair, yet in reality it was no protection to him. The Bill provided that, after notice being given in the London Gazette, and at his last place of residence, unless he returned and compounded with his creditors within three months, his person and property became subject to the Bankrupt-laws. As to the notice in the Gazette, it, was not likely ever to reach the debtor, for men did not go abroad to read the London Gazette; and as to a notice at his last, place of residence, the probability in

131
most cases was, that the person who left the country had no house in it, and it was probable that the last thing he would do on going abroad would be, to dispose of his dwelling-place here. Notice of this nature to him was, therefore, a most doubtful proceeding, and where such a doubt existed, it was a hard enactment to sentence a man's person and property to the operation of the Bankrupt-laws, particularly when it was considered, that if he did not surrender within a certain time, he could be punished criminally, and became liable, as a felon, to transportation. It was evidently a harsh proposition, to declare a private gentleman, who never traded, to be a bankrupt if he did not compound with his creditors within three months. If their Lordships were determined to carry the spirit of the clause, he thought that, at least, it ought to be modified so far as that the proceedings in bankruptcy should be suspended during his absence. The whole principle of the law, hitherto, was against these cases of constructive bankruptcy; and the man who, as in Ireland, lent money on the estate of another, and secured the priority of his claim by a priority of judgment, would, by this Bill, have his right destroyed. The judgment creditor, if the law was in England the same as the law in Ireland, would, if this Bill passed, have no priority. He merely threw out these hints to the noble and learned Lord, and he reserved himself for a fuller investigation till the third reading of the Bill.
The Earl of Eldonintimated, that at present his feelings were against the principle of the Bill, though he admitted some legislation was necessary, to correct the abuses which it was intended to remedy. The Bill was of immense consequence, and should be well considered by their Lordships before it passed into a law. The Court of Chancery was in the habit of protecting young men of estate from constructive bankruptcy, though the attempt was often made, to bring them within the operation of that law, in consequence of transactions in horses or carriages. This Bill was founded on a principle directly opposed to that which had hitherto guided the Courts of Equity, and it required no slight degree of circumspection on behalf of the Legislature before it passed such a law. Before he sat down, he begged leave to give notice, that he intended to move for a copy of the record in the case of the King v. O'Con-
132
nell. He did not attach blame to any one, but he was anxious to ascertain, in a regular way, the reasons why sentence was not pronounced, and to take some steps towards remedying the state of the law, if it were from any defect in the Statute, that the proceedings were terminated so abruptly. In bringing forward this question, he disclaimed all feeling with regard to that particular case, and he inquired into it only for the purpose of ascertaining the state of the law.
Lord Plunkettsaid, that the insufficiency of the law to punish after the expiration of the Act against which the offence had been committed, and for the breach of which the party was tried, was so sensibly felt, that in many cases a clause was introduced, enabling the Courts to award punishment, notwithstanding the expiration of the Act. No such clause had been inserted in the Act for the infraction of which Mr. O'Connell was prosecuted, and the absence of it was one of the reasons which influenced the Law Officers of the Crown in giving their opinion that the sentence could not be enforced.
The Earl of Eldon was far from saying that any body had acted wrong; he only sought to have the question settled for the future.
Lord Wynfordsaid, that if the Bill was deficient in preventing judgment—creditors from being confounded with simple contract creditors, who ought to be distinguished, it was necessary that some further provision should be introduced into it, and he would be happy to attend to any suggestion of the noble and learned Lord on that or any other point.
Third Reading postponed.

TITHES' COMPOSITION BILL.
The Archbishop of Canterbury The Archbishop of Canterbury moved, that the Tithes' Composition Bill be committed.
Lord Teynhamobserved, that it was a subject of the greatest importance. The Tithe System was one which called for very material alteration and improvement, and the country expected, that such an improvement should be made without delay. He was not satisfied that this Bill would answer the purpose. He would not, however, oppose its going into the Committee; but unless it underwent considerable alterations, he would oppose it on the third reading.—The Bill was then committed.
On the first clause being read,
Lord Wynford Lord Wynford moved as an amendment, to insert the words "lay impropriator of any parish." It appeared to him that the Bill, if it did not extend to lay impropriators of tithes, would create great confusion, and, therefore, he wished his amendment to extend to every provision of the Bill.
The Archbishop of Canterbury expressed his hope, that if this amendment were to be adopted, the noble and learned Lord would lend his assistance to get it adapted to the Bill, without injuring its object and progress.
Lord Wynfordpromised his assistance, either in or out of the House.
The Earl of Eldon did not think, that the Bill was one which could pass in its present shape. There was no provision made in it for determining, in cases of moduses, whether there was a modus or not; or whether the modus, if one had existed, was or was not a legal modus. It sometimes happened, that very delicate questions arose, as to whether certain lands were or were not titheable; and sometimes, persons who had not paid tithe for their lands, were not able to tell the reason why they had paid none; and yet they might have good right of exemption. A case had occurred in the course of his professional life, where a man pleaded an exemption, but could not tell the reason why he had not paid tithes; and after an investigation of six years, it was found that he himself was the owner of the tithes, and that the Ecclesiastical Rector had nothing to do with them. Then there was no provision made in this Bill for cases where compositions real had been entered into, in which cases, lands had been given in lieu of tithes. These were material defects in the Bill; and as to a Barrister of five years' standing deciding in the cases which he had mentioned, he would not be sufficient for the purpose, even although he were a schoolmaster besides—begging pardon of his noble and learned friend, the Lord Chancellor. The person to whom he had alluded, as pleading an exemption for which he could not show the grounds, had found, at last, that the ancestor under whom he claimed had purchased the lands from a grantee of Henry 8th, and that the lands had belonged to a Monastery, and were, therefore, exempt from the payment of tithes. There was no proper provision in the Bill for settling difficult questions of this kind,
134
and cases of composition-real, where lands had been given in lieu of tithes, were in the same predicament. He could not help thinking, that the Bill must receive much more consideration than had yet been bestowed upon it. In all its provisions it seemed to be extremely deficient, and unless it were thoroughly recast, it, would be impossible for their Lordships to give it their assent.
The Archbishop of Canterbury said, that if the noble and learned Lord opposite had explained to him (the Archbishop) some months ago, the objections which he had that evening stated to their Lordships he should have been so governed by such an opinion, that he should have thrown the Bill into the fire. He agreed in every word which had fallen from the noble and learned Lord, as far as his (the Archbishop's) experience in those matters allowed him to form a judgment. But in this respect, he was compelled to differ from the noble and learned Lord—he could not possibly see what connexion all that the learned Lord had said had with the Bill. The only object of the Bill was, to provide a means of paying the clergy the value of the tithes to which they had a right, different from the mode in which they had hitherto been received. In devising a new mode of payment, it was necessary also to provide a new means of enforcing that payment. But it was by no means necessary that, in an Act providing for an assessment of tithes, there should be an enumeration of the various kinds of titheable produce. For his part, he (the Archbishop) could desire nothing more earnestly than that the noble and learned Lord should devise a mode for the settlement of all disputes as to tithes. If he could put an end to all differences on the subject of titheable produce, he would confer the greatest benefit upon the country. As to the duties to be performed by the Barrister, he thought a standing of five years was quite sufficient qualification for the competent discharge of them, as all that he would be called on to do was, to ratify the composition, and to see that it had been made in accordance with the Act.
The Earl of Eldon assured the most reverend Prelate, that he should be most anxious to assist him with the present Bill, or any other that he might, originate. As it appeared to him, however, where the lands of the same party consisted of

135
separate assessments, some of the lands being held where there had been a composition-real, or a modus non decimando, he would have nothing to do under this Bill, but to come in and claim one exemption for the whole. He would give his very best attention to the subject, out of respect to the interests of all parties concerned.
The Lord Chancellorwas sure, that nothing could be more advantageous to the Bill, or more calculated to secure its completeness, than that the assistance of the noble and learned Lord should be given to discover its faults, and to supply its deficiencies. He was sure, that if it passed with his assent, it would be free from errors, as he, surely, would allow no fault to escape. But he (the Lord Chancellor) did not think, that the Bill was liable to the objections alleged against it by his noble and learned friend. In the first place, the learned Lord had said, that the Bill contained no provision for cases in which there had been a composition-real. Now he (the Lord Chancellor) thought it would be safest on that subject to follow the precedent of the Irish Composition Act, which was, and so far it had been attended with no difficulty, to make no mention whatever of composition-real. He believed it was not mentioned in the Irish Act, and if he were mistaken, his noble friend behind him would correct him. The provisions of the Bill for the assessment were so distributive, that they might comprehend all cases that could arise. It was provided, that when a dispute might arise respecting the assessment of one particular part, then there should be, for that part, a separate assessment. In another clause, the case of composition-real was comprehended; for it contained a provision, that where any land had been before exempt from tithe, the Commissioners should have no power to make an assessment, as it was not the intention of the Act to give the tithe-owner a better title than he possessed before. The Commissioners should have no power to decide upon disputed claims, all which were, on the contrary, to be referred, after the Act, to the Courts of Law, as was the course followed at present. As to the objection to the qualification of the Barrister, looking to the very moderate jurisdiction, he thought that the experience of five years' standing was quite sufficient. He was not prepared to say, however, that there were not defects in the details of the
136
Bill; on the contrary, he believed, that the most reverend Prelate who introduced the Bill had some alterations to propose.
Lord Wynfordthought, that the Bill was particularly deficient in its principal enactment, inasmuch as it provided no means of ascertaining who constituted the two-thirds of the tithe-payers; and yet it was indispensable to have that ascertained before the first step could betaken towards that composition which was the great object of the Bill. Reference to the poor-rates would not, as had been said, be sufficient for that purpose. He thought it would be better to take the majority, say two-thirds of the parishioners assembled in vestry, as was done under the Irish Tithe Composition Bill. He thought, at the same time, that the public were deeply indebted to the most reverend Prelate for having introduced his Bill; and he knew how much attention the most reverend Prelate had bestowed upon the principle of the measure, although his mind was so much occupied with more important matters, that he must necessarily leave the preparing of the clauses to others. He (Lord Wynford) submitted to the Committee, that the Bill should be referred to a Private Committee, if such a proceeding were consistent with the practice of the House. He perceived, from the nod of a noble friend opposite, that his proposition could not be acted upon. He should, therefore, take the liberty of moving, that the noble Lord on the Woolsack should leave the Chair, and report progress to the House; so that, before the next sitting of the Committee, his noble and learned friend beside him, and other noble Lords, might have time to consider the Bill. He made that motion because he was friendly to the principles of the Bill, and he was satisfied that by postponing the Committee, such alterations might be proposed as would render it effective.
Lord Carnarvonproposed, that the Bill should be printed, and re-committed on a future day.
Lord Eldonsaid, that if the further consideration of the Bill were postponed, he would give it his best attention.
The Archbishop of Canterburyexpressed his pleasure at being able to avail himself of the professional advice of the noble and learned Lord.
The Earl of Abingdonbegged to be allowed to remove any impression that the most reverend Prelate might, have taken,

137
that his services had not been duly appreciated by the House. He could appeal with confidence to the opinion of all their Lordships, as to the beneficial tendency of the present Bill, and its general advantages to the country.
Bill to be re-committed.