§ Order of the Day for the House to be put into Committee, read.
§ Moved, "That the House do now resolve itself into Committee upon the said Bill."—(The Marquess of Salisbury.)
§ LORD BRABOURNE
said, he must ask the permission of their Lordships to make a few remarks on the general scope and character of the Bill. He must confess that he was rather disappointed on the occasion of the second reading. He came down to the House fully prepared and expecting to hoar an exhaustive debate on the principle involved in the Bill, which, he thought, the importance of the subject deserved. The House was well filled, and several Members of the Episcopal Bench were present; but, to his surprise, the Prime Minister moved the second reading of the Bill without a word of comment, the Question was promptly put from the Chair, and that stage of the Bill was passed with a celerity which, he humbly submitted, was hardly respectful to the great interests which were involved. It was under these circumstances that he humbly craved the indulgence of their Lordships, and he did so for a special reason. It appeared to him that this Bill touched the fringe of a great question, and touched it in such a manner as would infallibly cause it to be brought prominently before the public in a manner not contemplated by the framers of the Bill. In his introductory speech the Prime Minister told their Lordships that the Bill related to a subject which had recently attracted considerable attention—namely, the incidence and the mode of collection of tithe. But why had this question attracted considerable interest? Because the unusual and long-continued depression which had fallen on the agricultural community had caused tithe rent-charges to be collected with less facility than heretofore, and because, also, whereas the tithe rent-charge at the time of its commutation was calculated on the price of certain agricultural produce, the price of that produce had fallen considerably in value. If, in these circumstances, the noble Marquess had thought it right to bring in a Bill for the re-valuation of 824 tithes, or if he had thought it well to cause any alteration to be made in the basis on which they were collected, or, if objecting to such an alteration, he had proposed a Select Committee to inquire into all the circumstances of the case, possibly the public mind might have been for the moment satisfied. But the noble Marquess had taken a very different course. He had declared that tithe was not excessive; that at the time of the commutation the landowners made a good bargain; and he met the distress of the agriculturists and the complaints of the tithepayers by the singular device of increasing the security of the titheowners. Such a mode of proceeding would hardly be found satisfying; and he believed it would be found that, in proposing what the noble Marquess had done, he had made an innovation which would at once be noted by his opponents. For the first time in the history of this country the noble Marquess practically divorced the tithe from the land, made it a personal debt recoverable from an individual, and thus, he feared, inserted the thin end of the wedge, upon which the hammers of the friends of Disestablishment would hereafter be busily employed. The novelty of the principle thus introduced by the noble Marquess—the whole tenour of his Bill, and, indeed, the very basis upon which it rested—obliged him (Lord Brabourne) to say a few words upon the general question of tithe as it bore upon this particular measure. It was necessary to do so, both on account of something which had happened in the past, and of something which would certainly happen in the future. That which had happened in the past was this—that the advocates of Disestablishment and the defenders of the Church had put forward statements concerning tithe so contradictory as to confuse and mystify the public mind on the subject. That which would happen in the future was this—that when this Bill went down to the other House it would be carefully scrutinized and discussed by men who held different views, and he submitted that it was hardly wise—nay, hardly creditable to their Lordships—that they should proceed to legislate as if there was only one side to the question. While he thought that the advocates of Disestablishment had put forth many statements difficult to substantiate, he 825 was bound to say, on the other hand, that the defenders of the Church had not always assumed a position which was entirely impregnable. No doubt, many of their Lordships had read the defence of the Church which had emanated from the pen of the noble and learned Earl who had recently occupied the Woolsack (the Earl of Selborne). It would be presumptuous in him (Lord Brabourne) to speak of the ability and research displayed in that book, because nothing but research and ability would be expected from such a quarter. But, even in that volume, he could not help thinking that he detected something of the dogmatic tone which prevailed in the writings of ecclesiastical authorities. Statements were made concerning facts which had always been in dispute, as if those facts were beyond all doubt and controversy, whilst writers who had arrived at conclusions different from those of the noble and learned Earl were summarily dismissed as "uncritical writers," and their statements treated as "idle stories." There was a notable instance of this in regard to this very question of tithes. There was a very large party in this country who would not be excluded from this question, and who maintained that the clergy had not the exclusive right to the tithe, but that there was originally a division of the tithe for several purposes. They were in the habit of quoting the famous answer of Pope Gregory the Great to Augustine, in which he stated that the division of the offerings made by the faithful at the altar should be fourfold—first, a share to the Bishop and his family—propter hospitalitatem atque susceptionem; secondly, a share for the maintenance of the clergy; thirdly, the relief of the poor; and, fourthty, the fabric of the churches. Afterwards, when the Bishops were supported from other resources, their share was eliminated, and the division was threefold. Now, the noble and learned Earl admitted that this answer was given by Pope Gregory; he admitted that this division of tithes prevailed in parts of Western Christendom; but he denied that it ever existed in England. He (Lord Brabourne) would not presume to enter into an argument with the noble and learned Earl, neither would he trouble their Lordships with a disserta- 826 tion upon the Law of Tithes; but he called their attention to these facts in order that they might be aware that the exclusive right of the clergy to tithe was still challenged, and that it would be unwise to discuss this question as if the contrary were the case. In his humble judgment, the true wisdom of the Church of England would be to rest her claim to tithe, not on the appeals of ecclesiastical writers to a history which was at least doubtful, but upon a law and a fact which were beyond doubt or dispute. The law to which he referred was the Commutation Act of 1836, which gave the Church a Parliamentary title to the tithe, though, of course, at the same time it assumed and asserted the right of Parliament to determine the manner in which, and the extent to which, tithes should be levied. And the fact to which he alluded, and which he believed gave to the Church still greater security, was a fact to be found in the exemplary lives of her clergy, their conscientious discharge of their duties, and the liberal and generous spirit in which their incomes were spent among their people. He (Lord Brabourne) believed that there never was, at any time or in any country, a class of men who bestowed a larger proportion of their incomes in charity and good works than did the clergy of the Church of England, and he should indeed regret it if any legislation of that House should diminish their influence, or lessen their powers of well-doing. It was, therefore, in no spirit of hostility to the Church that he (Lord Brabourne) proceeded to comment upon the Bill. His noble Friend (the Marquess of Halisbury) had stated that, at the time of the commutation in 1836, the landowners had made, and still had, a good bargain. He ventured to say, on the one hand, that a good bargain had been made by the Church. It was easy enough to point to the value of tithes before the commutation, and to show by figures that the Church afterwards received a less amount. But figures were deceptive things, and there was something else to be taken into consideration. Did the noble Marquess remember what was the state of things before the Commutation Act? In introducing his Bill Lord John Russell said that "the objection to tithes was daily increasing in strength, and that men were becoming 827 more and more unwilling to pay them." He stated, moreover, emphatically, in allusion to those who "were in the habit of talking of the absolute right to tithe," that, in his opinion, tithe was "the property of the nation, although participated in by individuals." Well, at the time of the Act in question voluntary commutation had taken place in about 2,000 parishes in England. Over the greater part of the country tithe was still taken in kind. And what did that mean? That in a very large number of cases the clergyman had either to secure the goodwill of his parishioners by a considerable sacrifice of income, or to run a grievous risk of forfeiting that goodwill by insisting upon his strict legal rights. People talked now as if tithe meant the tenth of the net produce—that was, the realized produce of the land. It was no such thing. It was the tenth of the gross produce to which the clergyman had a right—he could take the tenth sheaf of wheat, the tenth cock of hay, the tenth lamb, and so on, down to the tenth egg; and, if time permitted, he (Lord Brabourne) could tell their Lordships some laughable stories as to the deception which was sometimes practised in these matters. But then the clergyman had to convert the produce into money as he could. Many of their Lordships could doubtless remember the old barns and premises which used to stand in the vicinity of country rectories. What did those mean? They were the places in which the tithe produce was stored, and in which took place the process of conversion into money. They represented the trouble and expense to which the clergyman was put, plus the actual expense of collecting the tithe, and they represented something more—those barns and premises represented an item of repairs and dilapidations which greatly reduced the income of a clergyman, apart from the actual cost already named. All this the clergyman entirely got rid of by the Act of 1836, and he had since received his money without any of the enormous trouble and expense which before that Act he was obliged to encounter. But he gained something more. Besides the Parliamentary title to tithes acquired under that Act, the Church got quit of that friction which had previously existed between the clergy and their parishioners, and which 828 was of very serious import. The Church had, indeed, made no bad bargain under the Act of 1836, even if there had been some sacrifice of actual income. That was the opinion at the time, and if noble Lords would take the trouble to refer to the debates, they would find that the Bill was constantly referred to as "the Clergyman's Bill," on account of the belief which was entertained that it was favourable to the interests of the clergy. In his (Lord Brabourne's) opinion, not only was the Act in question beneficial to the Church, but the friction between the clergy and their parishioners had become so great as to be almost unbearable; and if some such well-considered measure had not been passed at the time, he felt confident that serious mischief would have ensued, and that the position of the advocates of Disestablishment would have been far stronger to-day than was happily the case. The noble Marquess had stated that this was legitimately an owner's and not an occupier's tax. The same thing was clearly stated in the noble and learned Earl's (the Earl of Selborne's) pamphlet. He said—The rent of tithe-free land is always greater than that of land subject to tithe; if there were no tithe, the landowner, and not the occupier, would have the benefit.Now, that was not exactly the form in which the matter presented itself to the agricultural mind in this time of distress. Take the case of a farmer who was paying 30s. an acre for his farm—20s. in rent and 10s. in tithe, and in many cases the tithe actually bore a higher proportion to the rent than that. Now, in many such cases the occupier had received a reduction from 20s. to 15s. in his rent, so that this 25 per cent reduction brought his total payment down to 25s. per acre. He could not expect to obtain a similar reduction from the titheowner. But he knew perfectly well that if there were no such thing as tithe, and that it had been 30s. per acre paid to one man, his reduction would, in all probability, have been from 30s., not to 25s., but to 20s., because it was much easier to get a reduction from one man to whom the whole 30s. was payable than from two men who divided the receipts in the proportion of 20s. to one and 10s. to the other. That was the practical way in which the question presented itself to the occupier; 829 or, put it in another way, if there were no tithe the landowner could better afford to let his land for 20s. per acre to the occupier than he could afford to let it at 15s. or 16s. with a payment upon it of 10s. per acre to the titheowner. No doubt the intention of the Act of 1836 was that the occupier should pay the tithe and deduct it from his rent. In practice, the landowner let his land at a lower rate than he otherwise would have done, and the tenant undertook to pay the tithe. It was thus practically made an occupier's debt, which could be recovered, just as rent, by distraint. But was this so wholly wrong? Tithe, in its origin, was not a charge upon the land, but upon the produce of the land; and it did not seem unwise or unjust that, upon whomsoever the burden should ultimately fall, it should, in the first instance, be discharged by and through the person who dealt directly with the produce—namely, the occupier. Moreover, it was much more convenient that it should be so, inasmuch as the occupier was almost always resident upon the land, whilst the landlord was constantly non-resident. Now, what good would this Bill effect in that respect? He (Lord Brabourne) did not understand that it was proposed to interfere with the contract which might be made between man and man. If such interference were contemplated, it would probably be evaded; but if not, what would probably be done? The landowner would still, for obvious reasons, desire to keep before his tenants' eyes what the land was paying for rent and for tithe separately. He would, therefore, say to his tenant—"We will keep the rent as it is, and as the Legislature has now directed that the tithe is to be paid through me and not through you, I will pay it, and we will have a covenant in our agreement that you shall pay me an equivalent for that tithe in our annual settlement of rent." The payments will thus be still kept separate—the occupier will know, as he now knows, what he is practically paying on account of tithe, and all that you will have effected by this Bill will be to have put an end to an arrangement which, upon the whole, has been proved by experience to be the most convenient for all parties concerned. But now he (Lord Brabourne) desired to gall their Lordships' attention 830 to two points of special importance—first, with regard to the owners; and, secondly, with regard to the remedy proposed by the Bill in lieu of distraint. Now, first, as to the owners, who were they? Their Lordships' House was frequently designated a House of Landowners; and there from some persons deduced the singular argument that they were unfit to legislate upon any question relating to land. But he earnestly wished to impress this upon their Lordships—that they were not now dealing with a matter which concerned only large landowners. This question had been greatly misunderstood. There was a very large number of small landowners in this country. The most rev. Prelate (the Archbishop of Canterbury) was recently endeavouring to show that the reduction of 5 per cent to owners for prompt payment was unnecessary, and that there was practically very little expense and inconvenience to the clergy at present in the collection of tithes. To show that the most rev. Prelate took 10 parishes, taken haphazard from five different counties—two from each county—and said that in these parishes, out of 883 tithepayers, upwards of 700 were owners of the land, for which they paid tithes. And he went onto say that out of 58,000 persons who paid tithes to the Ecclesiastical Commissioners, 37,000, or nearly two-thirds, were owners. Now, these words were pregnant with meaning and instruction, Let their Lordships examine a little more closely into this question of small owners. Take the case of any parish in which there were men occupying 10, 20, 50, or 100 acres, which he would call a small occupation. Now, if these men were the tenants of a large owner, the clergyman's tithe was practically secure. It was not from them that the difficulty arose. And why? Because the landowner and his agent knew perfectly well that if the tenant left at Michaelmas with his tithe unpaid, the titheowner could recover it from the land. Therefore, the land agent who knew his duty would take care that no tenant leaving a farm received his valuation from an incoming tenant until he could produce the receipt for his tithe, just as much as for his rent. So the clergyman had the landowner and his agent standing between himself and the occupier, and his tithe was secure. 831 But now take the case of men holding 10, 20, 50, or 100 acres of their own. These men were amongst the most suffering of the whole community. The legislation of the last 40 years, whether it was right or wrong, had been all in favour of the consumer, and had pressed most cruelly upon the British producer. Those small owners of land had felt the full pressure and weight of this legislation. They had been ground down to the ground. In an immense number of cases they had been obliged to mortgage their small properties up to the hilt, and they were crippled by the payment of interest which was higher than would have been their rent if they had been the tenants of a large landowner. Now, to these men, the payment of 5s., 6s., 8s., or 10s. per acre tithe was a grievous burden, and it was with them that the chief difficulty arose. What relief was offered them by this Bill? Not one fraction. Remember, moreover, that this class of small owners was one which many people thought it was most desirable to extend and encourage. But the only change which this Bill proposed to make in their condition was a change for the worse. He (Lord Brabourne), being no lawyer, spoke with diffidence upon legal points; but he apprehended that when tithe was made a simple debt, and a man was made personally liable, as proposed by the Bill, it meant that all his resources must be called upon to defray the debt, and that failing payment he must suffer in his person. So that what this Bill would do would be to make the small owner personally liable, and all his property, whatever it might be, liable, for a debt which, at present, attached only to that part of his property which happened to be in land. He (Lord Brabourne) could not help thinking that his noble Friend at the head of the Government had felt this to be a hardship, and had had this class of small owners in view when he proposed that 5 per cent reduction should be allowed for payment within 3 months. If he (Lord Brabourne) had introduced this Bill, he was not prepared to say that he should have proposed relief to the tithepayer in that form; but as the noble Marquess had done so, he could not but regret that he had withdrawn it at the very first blast of clerical opposition. There was something to be said on both sides. Where the clergyman 832 had incurred small or no expense in collecting his tithes, on account of the paucity of owners from whom he had to collect, no doubt the effect would have been that he would have been giving 5 per cent to his tithepayers without equivalent advantage to himself. In other words, he would just now be giving a reduction of 5 per cent, where his lay brethren were giving 20 and 25 per cent reduction in their rents. But if he had been obliged to incur expense and trouble in collection, this would have been saved to him; and, moreover, there would have been the inducement to small and struggling owners to strain every nerve to pay quickly, and thus obtain their 5 per cent, instead of deferring payment until the last possible moment. Moreover, as there was going to be a new security given to the Church, this proposal of 5 per cent reduction did not seem wholly unreasonable, and would have been hailed as some earnest of sympathy with the distressed agriculturists on the part of the Legislature. He therefore regretted that, having been proposed, it had been so summarily withdrawn. And now he (Lord Brabourne) came to that which had been heralded forth as the great been to be given by the Bill—namely, the abolition of distress for tithe. He confessed that he was rather a heretic in that matter. He very much doubted whether the abolition of the power of distraint was going to do all the good which was expected. He had no figures to show to their Lordships upon this subject; and, if he had, he doubted if he should trouble them with figures which were apt to mislead. But many of the cases of distraint in the counties of Kent and Sussex had been with respect to "Extraordinary Tithe," with which this Bill did not deal. It had been dealt with last year by a Bill which he, for one, had weakly accepted, because he found that the whole Bench of Bishops were unanimously in its favour, but which he believed to be one of the most unjust Bills ever placed upon the Statute Book. Extraordinary tithe essentially related to a specially remunerative kind of produce, of which the occupier got the benefit; and the Bill in question had placed a permanent charge upon the land after the remunerative crop had ceased to be grown, and when it had probably rendered the land less valuable for the future. But 833 they were now dealing only with ordinary tithe, and he could not say how many cases of distraint had recently occurred. As he understood the present measure, it substituted for distraint the ordinary process of the County Courts. Now, he (Lord Brabourne) believed that recalcitrant tithepayers would be much less in fear of the County Court than they were at present of distraint. Distraint was a very disagreeable thing. It was very unpleasant to have bailiffs in possession of your premises, and to have your goods sold to defray your debts. But, because it was so disagreeable, people were the more anxious to avoid it, and the remedy, though short and sharp, was effective. A man would generally prefer to pay his tithe, rather than submit to this process. But proceedings in the County Court did not come home to him nearly so soon, whilst they put the person who instituted them to considerable trouble and annoyance. First, there was the summons to be taken out, and the debt proved. If that was done, an order was generally made for the payment of the debt by instalments. Perhaps these were paid at first, and then suspended. Then came another application to the Court, and, finally, a judgment summons was issued. Upon that a month was usually given before the expiration of which the debt was to be paid. During all that time the clergyman would be placed in the invidious position of prosecuting his parishioner, and if, at the end of the month, the debt was not paid, he did not recover his debt as he did by distraint, but the remedy was the committal of the non-paying tithepayer to prison for 14 days. He very much questioned the advantage to the Church of this change. It would enable people who objected to the payment of tithes to pose as martyrs, and would be not unlikely to give rise to an agitation of which the consequences could not be foreseen. He much feared that the change would be productive of very little advantage. And now there was only one more detail of the Bill with which he must trouble their Lordships. He alluded to the Redemption Clauses. He had seen with some surprise that these had been objected to by the clergy, for they appeared to him (Lord Brabourne) rather favourable than otherwise to the Church. Let him take a case. 834 The noble Marquess proposed that 20 times the value of the apportioned rent-charge should be the price of redemption—that was to say, that for £100 of rent-charge an owner would pay £2,000, or 20 years' purchase. But as, at present, the value of the £100 was about £87, the actual number of years' purchase would be 23 and not 20. But the value of the rent-charge was falling, and competent judges expected it would ere long be at £75, or even at £70, which would make the number of years' purchase considerably greater. A man who was about to redeem tithe rent-charge would have to take this falling value into account. Moreover, when the tithe was redeemed he would no longer have to point to this charge, when letting his land, as some criterion for the rent; and though this seemed to matter little, in reality it was of some moment, and a person hiring the land would not take into account the sum which an owner had paid to redeem tithe, though he would necessarily take into account the annual charge so long as it existed. But there was something more. One of the great complaints of the clergy was that their tithe rent-charge was rated up to its full value. Now, as soon as the clergymen had received and invested his redemption money it would no longer be rateable. But as the same amount of rates would still have to be raised, it followed that a larger amount would fall upon the land upon which the tithe rent-charge had been redeemed. Taking this into account, the proposal of the noble Marquess would not work out very advantageously to the landowner, and he would think once, twice, and three times before he redeemed upon the proposed terms. But now look at it from the other side. The clergyman would receive a capital sum of £2,000, instead of £87 per annum now paid. But this £87 was likely to fall to £75. If his investments were restricted, he might not be able to get more than 3½ per cent for his £2,000, which would be £70 instead of £75. But he would at once obtain immunity from rates which could not be calculated at less than 10 per cent on the average; so that, when the question came to be closely worked out, it would be found that the actual loss to the clergyman would be very small, if eventually anything at all. But would he gain nothing, inde- 835 pendently of pecuniary considerations? There would be a far greater security for his new investment than there was for his rent-charge to-day. It was impossible to observe what was passing daily in this country without coming to that conclusion. No one could see the attitude taken by the advocates of Disestablishment without foreseeing future struggles. He (Lord Brabourne) did not wish to make Party allusions in this debate; but he could not help feeling that the events of the two or three last years had shown the probability that, at any moment, political exigencies might throw the whole weight of a powerful Party organization into the Disestablishment scale, and that we might have eminent men coming forward and pointing to particular sentences in their past speeches, which proved that for 12 or 14 years past they had not uttered a word against the principle of Disestablishment. Therefore it was that he (Lord Brabourne) felt sure that anything which drew the Church and her revenues outside the whirlpool of political agitation and political intrigue would be beneficial to the Church, even if it should involve some sacrifice of income, and therefore it was that he should rejoice if such terms of redemption could be offered as would make it a matter of easy and early accomplishment. And now he had only a few words to say besides thanking their Lordships for the indulgent hearing which they had given him. He could not help feeling that, in all these discussions, they were shirking the great difficulty which really underlay the question of tithes. There could be no doubt that, on the one hand, the burden pressed heavily upon the weaker part of the agricultural community in its present depressed condition, whilst, on the other hand, the incomes of the parochial clergy were really insufficient for the calls made upon them. What, then, was the real truth which lurked behind the question? It was this—that if a National Church was to exist among us as an Establishment, it ought to be supported by all kinds of national property. When tithes were first given by landowners, and afterwards imposed as a charge by Popes and Synods, land was practically the only property in the country. That had long ceased to be the case. Other sources of wealth had sprung up; men possessed great wealth 836 from these sources who contributed nothing to the Church, and the land, reduced in comparative value, still bore the whole burden. Why should that be so? There was but one answer—namely, that public opinion would not allow that act of justice to be done which would place the support of the National Church upon the general national taxation. No Minister would venture to propose it, because the Representatives of the people would not entertain the proposition, and therefore it must be considered as beyond the range of practical politics. But because that was so, it was not necessary to trifle with the subject by means of a Bill which gave no relief to those who were suffering. In the present depressed state of the agriculturists, this Bill, which only sought to perpetuate the present system and to stereotype an injustice, would not be received with any gratitude. Such a Bill might, indeed, be accepted by their Lordships on the powerful recommendation of the noble Marquess; it might even be accepted by the other House of Parliament, because, for other reasons, all sensible men, there and elsewhere, desired to keep the noble Marquess in power; but it was a Bill which, with whatever good intentions it might have been conceived, would neither settle the question, strengthen the Government, nor satisfy the country. He (Lord Brabourne) would not take upon himself the responsibility of moving the rejection of this Bill; but if such a Motion should be made he would feel bound to support it.
§ THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)
In moving the second reading of this Bill without making any observations, I was actuated by the desire to spare your Lordships an unnecessary speech, as I had already spoken on the question upon the first reading, and I think I followed the rule upon such matters. As regards the speech of my noble Friend, (Lord Brabourne) his remarks were more properly applicable to the second reading, and I regret that the well-known diffidence of the noble Lord prevented him making his speech then. I did not know precisely to what points I ought to address myself in the speech of the noble Lord, because he took a very 837 wide range. I understood in the earlier part of his speech he was contending that tithe ought to be divided into four parts, of which only one part should go to the clergy, and that we ought to do that on the strength of an observation made by Pope Gregory the Great at the end of the sixth century. If the opposite doctrine has been accepted during the centuries that have since elapsed, I think that is as good a title, based on prescription, as the clergy could wish to have. The noble Lord spoke of the enormous advantage which (he Church had derived in 1836 from getting a Parliamentary title. I am not quite sure that I appreciate the advantages of a Parliamentary title, after the experience of recent years. I am inclined to define a Parliamentary title as a title which Parliament thinks itself entitled to upset; at all events a prescription of 1,000 years seems to be superior to a Parliamentary title. But then a change seemed to come over the noble Lord's opinions in the course of his speech, and he makes a proposition which would make the hair of the Chancellor of the Exchequer stand on end—namely, that the payment of the clergy should be put on the general taxation of the country. Neither of these two propositions appears to me to be sufficiently within the range of practical politics. Perhaps, however, the best thing I can do in answer to the speech of the noble Lord is to re-state, in a very few words, what the object of the Bill is. That object is to relieve both the titheowner and the farmer from grievances under which they at present suffer—the titheowner that he has to recover a tithe from the person who does not owe it, and the farmer from the grievance that though he does not really owe it he is called upon to pay it. I am aware that the farmer is put into that position by his own act—by an agreement made with his landlord—but the inconvenience of the process is unquestionably very great, because all variations in the amount of tithe fall upon the farmer and are felt by him. in bad times, causing much exasperation, owing to the farmer having to bear the brunt of the payment at a time when he can least afford it, and leaving him subject, if he does not pay it, to a process—that of distraint—which we know from experience is singularly calculated to excite popular feeling. The agitation is going on in Wales and in 838 some of the western and southern counties of England at this time. I could easily produce most effective, striking, and I might almost say heartrending appeals from the clergy in those parts of the country, asking Parliament to come to their succcur by providing some mode of recovering the tithe that is due other than that of levying by distraint, as the state of popular feeling makes that remedy almost absolutely useless, involves great expenditure, and leaves a bitterness of feeling behind that it is difficult for them to overcome. There is a great political danger in the present state of things. It is not merely that the clergy cannot obtain what is their due, and that a burden is placed on the farmer which appears to him to be a hardship, but ill-feeling is thus being gradually fomented against one of the institutions of this country which may cause great embarrassment in the future. It is to put an end to this state of things that the present Bill is introduced, and I do not believe that any injustice will be caused by this Bill. There can be no doubt that it is the land and the land only that is liable for the tithe. The occupier never has been, and is not now, by law liable. What is liable is the gross produce of the land. If land yields no produce, then there is no tithe due. That has been the case hitherto, and that will still be the case under this Bill. Though the Bill makes the landowner liable for the tithe, it really only provides a change of procedure, substituting the simpler procedure of the County Court in the place of the ancient and exasperating procedure of distraint. The noble Lord raised again the question whether there ought not to be a change in the bargain made in 1836 on account of the changed circumstances since that time. I waited for him to state his case, and I expected that he would produce figures to show that tithe in those days was less valuable than it has become since, and to show the difference between tithe levied under the old law and under the present law. But he did nothing of the kind. I do not think that this can be shown. I still believe that, if you look at the prices of produce as it is now, and the prices in 1836 you will find that prices are still higher than they were at that time. The price of grain has, no doubt, fallen, but the other produce of the 839 land is more valuable than it was in 1836, and therefore the settlement of 1836 is more advantageous to the landowner than if he remained under the old law. The noble Lord did not make out the shadow of a case for reopening the question of valuation and tearing up the bargain which Parliament made in 1836. I do not think that this suggestion of the noble Lord has any support in this House, and I shall not. therefore, detain your Lordships any longer on this point. I acknowledge that the Bill only touches the fringe of a very large subject, and that it touches only that part of the subject with which we can hope most successfully to deal with; but I deny that, because the area the remedy covers is small, therefore the remedy ought not to be applied, or that, because certain great difficulties are beyond our powers, we should not address ourselves, where we can, to solve those smaller difficulties which are within our reach.
§ Motion agreed to: House in Committee accordingly.
§ Clause 1 (Short title).
§ On the Motion of The Duke of MARL-BOROUGH, Amendment made, in page 1, line 23, to leave out ("personally").
§ On the Motion of The Marquess of SALISBURY, Amendment made, in page 1, line 5, to leave out ("recovery").
§ Clause, as amended, agreed to.
§ Clause 2 (Personal liability of owner of lands for tithe rent-charge).
§ On the Motion of The Marquess of SALISBURY, Amendment made, in page 1, line 17, to leave out ("occupier of the land") and insert ("lands liable to the payment thereof ").
§ Amendment moved, in page 1, lines 19 to 24, leave out Sub-section 2.—(The Marquess of Salisbury.)
THE EARL OF KIMBERLEY
, in opposing the Amendment, said, that the Bill gave no new right to the tithe-owner, whose only remedy, up to the present time, had been that of distraint. There could not be a greater mistake than to assume that England was parcelled out among large landowners. Although he would be glad to see a larger number of owners, there were still many owners who were not large landowners, and it was really those 840 owners, as well as the titheowners and the agriculturists, who were suffering most from agricultural depression. They were men of influence in their various districts, and still formed a yeoman class. These men would regret the withdrawal of this concession as a great grievance, and the withdrawal of it would be likely to prevent the passing of the Bill, or to interfere with the working of it. He believed that the concession embodied in the sub-section was only a just and wise concession to make.
THE BISHOP OF LONDON
, in supporting the Amendment, said, it was not a one-sided bargain, because account ought to be taken of the 2nd sub-section of Clause 3—which limits arrears recoverable to the profit of the land. That would considerably diminish the claims of the titheowner. Hitherto, his claim had stood first, replacement of farmers' capital second, the profit of the farmer third, and the rent of the landlord fourth. But the 2nd sub-section of Clause 3 put the tithe rent-charge after the replacement of capital and after the profit of the farmer, and made it only precede the actual rent. At present, the claim of the titheowner was a perfectly clear one; but, under the Bill, it would be a question for the Court to decide. There was no doubt there would be a number of losses under the 2nd subsection of the 3rd clause.
§ THE EARL OF SELBORNE
, who had also given Notice of his intention to move the omission of this sub-section, supported the Amendment.
§ LORD BRAMWELL
also supported the Amendment on the ground that the titheowner would lose 5 per cent, for which he received no benefit in return, and the landowner would get 5 per cent for no reason whatever.
§ LOLD BRABOURNE
said, he hoped his noble Friend at the head of the Government would consent to modify, instead of striking out, the sub-section which gave the 5 per cent reduction for prompt payment. Their Lordships could now show that they desired to benefit, not themselves, but that class of small owners upon whom the depression of the times weighed so heavily. He would propose that the section should be amended, so that relief should be given not to all owners, but to owners of less than 50 or 100 acres of land, who would 841 fairly represent the class with which they all sympathized, and whom they could thus, to some small extent, relieve.
§ THE MARQUESS OF SALISBURY
said, that many clergy collected their own tithes, and many tithes were collected at small costs, and upon the whole, it would be better to omit the words.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clause 3 (Recovery of tithe rent-charge from the owner).
§ On the Motion of The Marquess of SALISBURY, the following Amendments made:—In page 1, line 27, leave out ("may be sued for such arrears"); in line 28, leave out ("for"); in line 30, leave out("so sued"), and insert ("sued by virtue of this Act "); and in page 2, line 25, after ("judgment") insert ("for such arrears or sum").
On the Motion of The Marquess of SALISBURY, the following Amendment made:—In page 1, line 27, after ("payable"), insert—
("Such arrears together with the full costs of recovering the same shall be recoverable from").
On the Motion of The Earl of SEL-BORNE, the following Amendment made:—In page 2, line 7, after ("land"), add—
("When the owner so sued is not himself the occupier of the lands, the rent received or receivable by such owner in respect thereof shall be deemed, for the purposes of this Act, to be the profit of the land ").
On the Motion of the Earl of SEL-BORNE, the following Amendment made:—In Sub-section 5, page 2, line 39, after ("therein") add—
("When the owner of any land in hid own occupation has been assessed to the poors rate in respect thereof on a valuation exceeding the amount of the tithe rentcharge for any such period of twelve months, the tithe rentcharge shall not be deemed to exceed the profit of the lands during such period").
§ EARL BEAUCHAMP
, in reference to the subject under notice, said, he wished to point out that the section which gave the Court power to make orders against the landowner, did not provide for the case of farms being thrown upon the landowner in a bad state of cultivation, and which required a large outlay to bring them into a good state, but before that was done, had produced no return. During the past few years it had hap- 842 pened to him to have, from time to time, farms put on his hands in a state of inferior cultivation. By a sufficient outlay those farms had been brought into a good state of cultivation, but while they had been in the hands of the landowner no profit had been received. As he understood this sub-section, it appeared to him that the owner who cultivated his own land in these circumstances would be exonerated from the payment of tithe rent-charge. He did not think this was fair, and he trusted words would be inserted to guard against the application of the subsection as he stated it.
§ THE MARQUESS OF SALISBURY
said, his noble Friend must remember that under the old Law of Tithe, if there was no produce there was no tithe; and under the law as it existed, if there was not sufficient distraint, there was no tithe, unless the person interested took the land into his own hands. Their Lordships might assume that, as regarded cultivation, most persons would act on the ordinary principles of profit and loss; but if the cultivation produced no profit the payment of tithe would cease.
In page 2, line30, after ("trust") add ("it shall in every such case be incumbent upon the owner to specify, to the satisfaction of the court, the property held upon such trust, and the court shall have power thereupon to order execution to issue against such property, by all or any such ways and means as would have been proper if the same had belonged to the owner for his own benefit").—(The Earl of Selborne.)
§ Amendment agreed to.
In line 30, at end of line insert as a separate sub-section:—"Arrears of tithe rentcharge may be recovered in the county court for the district in which the lands charged with such tithe rentcharge or any part of such lands are or is situate, and may, whatever the amount of such arrears, be recoverable with full costs, and where it is shown to the county court that by reason cither of the absence of the owner of such lauds or of the difficulty of ascertaining the person who is the owner thereof, there is likely to be delay in the payment of any sum adjudged to be paid for such arrears, the court may, in adjudging payment of the arrears or any sum in respect thereof, order that in the event of the non-payment of such arrears or sum within the time; limited by the judgment, the person in that behalf named in the judg-
ment shall be receiver and manager of the lands charged with such tithe rentcharge, and upon the expiration of the said time, without payment having been made, the person so named shall, without any further order of the court, become a manager and receiver of the said lands as if he had at the date of such expiration been appointed by the court."—(The Marquess of Salisbury.)
§ LORD BRAMWELL
said, he thought it important to distinguish who was the owner, and he would suggest that some obligation should be put upon the occupier upon request to say who was owner. The Bill in some cases, he thought, seemed to contemplate that there would always be an owner and an occupier, not bearing in mind that a person might be both owner and occupier in some instances.
§ Amendment agreed to.
§ LORD HERSCHELL
said, cases might arise in which a man might let his son or some other person into occupation of land without paying rents, or where in consideration of a lump sum a small rent was taken. In these cases, there would be no profit, in the first instance, because there was no rent; and, in the second, a smaller profit than was really due by reason of the reduced rent. These were matters which would require consideration before Report.
§ THE MARQUESS OF SALISBURY
said, that there would be a beneficial occupation; but the question would receive consideration.
§ THE EARL OF SELBORNE moved an Amendment, to the effect that, when the owner of any land in his own occupation was assessed to the poor rate on a valuation exceeding the tithe rent-charge, the tithe rent-charge should not be deemed to exceed the profit of the lands.
THE EARL OF CAMPERDOWN
said, that what the Amendment meant was, that after an owner of land had exercised all due diligence to let his land and had been unsuccessful, thereupon becoming the occupier himself, the Poor Law valuation was to be taken as the net profit of the land. He objected to that, because it was contrary to the whole principle of the Bill, which was that the owner was to be liable for what he had actually received. A great deal of land was not even cultivated; but he knew of no case in which the Poor Law valuation regarded land as worth nothing.
§ THE MARQUESS OF SALISBURY
said, that it was not from what the land was estimated to bear from year to year that the assessment was determined, but from the value taken over a long average of time. The practice proposed by the Amendment would, therefore, have a disturbing effect.
§ Amendment (by leave of the Committee) withdrawn.
In page 2, line 39, after Sub-section 5, add following paragraph:—"If the owner of the lands liable to tithe rentcharge shall also be the occupier thereof, the wages of labour and all other expenses of cultivation, including interest at five pounds per centum upon the capital invested in the stock, implements, and similar things, shall be charged against the lands for each twelve months before any rent or profit is deemed to accrue from the said lands."—(The Earl of Camperdown.)
§ Amendment negatived.
§ Clause, as amended, agreed to.
§ Amendment moved, after Clause 3, add now Clause (A.):
§ (Attachment of rent.)
§ "(1.) It shall be lawful for the judge of any county court having jurisdiction in the place where any lands on which tithe rentcharge is charged are situate, although no action for the recovery thereof may be then depending, upon affidavit made by the person to whom such tithe rentcharge is due, or by any person on his behalf who can swear positively to the facts, stating that the tithe rentcharge charged upon such lands, or any part thereof, has been due, and in arrear for not less than three months after the same has become payable, and still remains unsatisfied, and verifying the amount so due and unsatisfied, and that any person other than the owner is in occupation of such lands, as a tenant holding to the best of the deponent's belief under such owner, and liable to pay rent to him in respect of such occupation, to order that any rent then duo from such occupying tenant to such owner, or thereafter to become due from him to such owner until all such tithe rentcharge so in arrears shall be fully paid and satisfied, shall be attached to answer and pay the tithe rentcharge so in arrear; and by the same or any subsequent order, it may be ordered that such occupying tenant shall appear before the court as the judge thereof may appoint, to show cause why he should not pay to the person to whom such tithe rentcharge is due the rent then due, or thereafter to become due from him to such owner, or so much thereof as may be sufficient to satisfy the amount of the rent-charge so due and in arrear as aforesaid.
§ "(2.) Service of an order whereby the rent so due or to become due as aforesaid to the owner of such lands shall be attached, or notice thereof given to such occupying tenant in such manner as the court shall direct, shall bind all the rent so due, and which shall thenceforth, until the rentcharge so in arrear shall be fully 845 paid and satisfied, accrue or become due in the hands of such occupying tenant.
§ "(3.) If, out of the rent so due, or which shall have so accrued and become due as aforesaid, the occupying tenant, on whom such order for attachment of rent shall have been served, or to whom notice thereof shall have been given in manner aforesaid, shall not, on demand duly made by the person entitled to such tithe rentcharge, pay the same, or so much thereof as such rent as aforesaid shall extend to satisfy, the person entitled to such tithe rentcharge shall be at liberty to proceed against such occupying tenant by writ, to be issued on an exparte application out of the said court, calling upon him to show cause why there should not be execution against him for the amount of the tithe rentcharge so in arrear, or for the amount of the rent then due from him to the owner as aforesaid, if less than the amount of the tithe rentcharge so in arrear, and also for costs; and, unless such cause shall be shown to the satisfaction of the judge, the court shall thereupon order execution to issue in a summary way, in the same manner as if judgment for such amount had been recovered in an action duly brought in such court.
§ "(4.) Payment by, or execution levied upon, an occupying tenant under any such attachment or proceeding as aforesaid, shall be a valid discharge to him, as against such owner as aforesaid, to the amount of the rent so paid or levied.
§ "(5.) In any proceeding taken in any court under this section notice of such proceeding shall be given to the owner, or left at his last usual place of residence (if known), at such time and in such manner as the court shall direct, unless there shall be any difficulty in ascertaining or discovering such owner, or in giving such notice, in which case the court shall have power to dispense with the same.
§ "(6.) The costs of any application for an attachment of rent under this Act, and of any proceedings consequent thereon, shall be in the discretion of the court."—(The, Earl of Selborne.)
§ THE LORD CHANCELLOR (Lord HALSBURY)
said, he thought it ought to be inserted, so that a fuller opinion might be taken as regarded it.
§ LORD MONK BRETTON
said, that if the new clause was inserted, much of the good which was anticipated from the Bill would be undone. Under the Irish Tithe Act a Receiver was appointed.
§ THE MARQUESS OF SALISBURY
said, that he would accept the clause. On the whole, it perhaps would be better to take the opinion of the House of Commons upon it.
§ New Clause agreed to, and added to the Bill.846
§ Clauses 4, 5, and C separately agreed to.
§ Clause 7 (Facilities for discharge of land from tithe rent-charge).
§ Amendments made.
§ On the Motion of The Earl of SEL-BORNE, the following Amendment made:—In page 4, line 10, to leave out ("equal to") and insert ("not being less than.")
§ Amendment moved, in page 4, lines 16 to 36, to leave out Sub-section 3.—(The Lord Bishop of London.)
THE ARCHBISHOP OF CANTERBURY
, in supporting the Amendment, paid, he wished to point out that the plan proposed in that sub-section as to endowment trustees would be attended with great expense, with constant change as to the trustees, and also with great risks as to the securities.
§ THE MARQUESS OF SALISBURY
said, he would accept the Amendment, re-serving to himself the power of suggesting alterations at a future stage.
§ Amendment agreed to.
On the Motion of The Lord Bishop of LONDON, the following Amendments made:—In page 4, line 38, after ("sole") insert ("or aggregate, or to the Ecclesiastical Commissioners for England"); in lines 40 to 43, leave out ("invested by them") to the end of Sub-section 4, and insert—
("Carried by them to the redeemed tithe fund herein-after mentioned, and invested together with that fund, and the Ecclesiastical Commissioners shall pay out of that fund to the person who would otherwise have been entitled to receive the tithe rentcharge redeemed such annual sum as at the time of the redemption the Commissioners may determine to be the net annual sum available for such person out of the redemption money");
and in page 5, line 2, leave out ("parson or").
§ Clause, as amended, agreed to.
§ Clause 8 (Supplemental provision as to endowment trustees).
§ On the Motion of The Lord Bishop of LONDON, Clause struck out of the Bill.
§ On the Motion of The LORD BISHOP of LONDON, the following new Clauses agreed to, and ordered to stand part of the Bill.
§ New Clause 8—847
§ (Provision for redemption of tithe rentcharge).
§ "(1.) Any person desirous of discharging his lands from liability to tithe rentcharge payable to any ecclesiastical corporation, or to the Ecclesiastical Commissioners for England (in this Act referred to as the Ecclesiastical Commissioners) may redeem the said tithe renteharge by the payment of an annuity of such amount and for such term of years as may be agreed upon with the Ecclesiastical Commissioners.
§ "(2.) The annuity shall be payable to the Ecclesiastical Commissioners, and shall be carried by them to a separate fund, in this Act referred to as the redeemed tithe fund.
§ "(3.) There shall be payable in perpetuity out of the redeemed tithe fund to the person who would otherwise have been entitled to receive the tithe rentcharge, such annual sum as is determined in manner herein-after mentioned to represent the net income derived from the tithe rentcharge.
§ "(4.) The Ecclesiastical Commissioners shall pay out of the redeemed tithe fund all sums properly incurred by them in or incidental to the execution of this section, and subject thereto shall invest the same in any securities in which they can by law invest their common fund, and the dividends and income arising from such securities shall be carried to the redeemed tithe fund and applied in like manner as directed by this Act with respect to that fund.
§ "(.5) A person desirous of discharging his lands from any tithe rentcharge by an annuity under this section shall apply to the Ecclesiastical Commissioners, and those Commissioners shall thereupon name the annual amount which they consider ought to represent the net income derived from that tithe rentcharge, and the amount and duration of the annuity by which the same is to be redeemed, and shall send, if the tithe rentcharge is payable to the parson of a benefice having the cure of souls, to the incumbent and the patron of the benefice, and it the tithe rentcharge is payable to any other ecclesiastical corporation, to that corporation, notice of the annual amount which they consider ought to represent the net income derived from the tithe rentcharge, and before finally determining such annual amount and agreeing with the applicant on the annuity, shall consider and have duo regard to any objections to such amount which may be sent to them within one month after such notice.
§ "(6.) When the Ecclesiastical Commissioners have agreed with the applicant upon an annuity under this section, they shall certify the same to the Land Commissioners, and thereupon the Land Commissioners shall issue a certificate discharging the lands from liability to the tithe rentcharge redeemed by the annuity, and charging the lands with the annuity, and thereupon the annuity shall during the specified period be a rentcharge issuing out of the said lands, and be charged thereon in priority to all other charges and incumbrances whatsoever, except land tax, Crown rents, chief rents, and quit rents, and be recoverable in like manner as any oilier rentcharge is recoverable by law, and shall not be liable to any poor or oilier local rate or to land tax.
§ "(7.) The owner of any lands charged with the payment of an annuity under this section 848 may at any time determine such annuity by payment of a capital sum of such amount as may be agreed upon with the Ecclesiastical Commissioners. Upon payment of the said capital sum, the determination of the annuity shall he certified by the Ecclesiastical Commissioners to the Land Commissioners, and thereupon the Land Commissioners shall issue a certificate of such determination, and the certificate shall discharge the lands from liability for the annuity.
§ "(8.) The said capital sum shall be carried to the redeemed tithe fund, and be applied in like manner as directed by this Act with respect to that fund.
§ "(9.) Any tenant for life or person having the powers of a tenant for life under the Settled Land Act, 1882, also any person having power under the Lands Clauses Consolidation Act, 1845, to sell land by agreement in pursuance of that Act shall have power to agree with the Ecclesiastical Commissioners for the redemption of tithe rentcharge under this Act, and any money which may by law be applied in the redemption of tithe rentcharge charged on any lands may be applied in payment of a capital sum for the determination of an annuity charged under this Act on such lands."
§ New Clause, to follow new Clause 8—
§ (Compulsory redemption of small sums of tithe rentcharge.)
§ "(1.) Where the total amount of tithe rent-charge which is payable to an ecclesiastical corporation or to the Ecclesiastical Commissioners, and is charged on the lands of the same owner, does not exceed two pounds, the person for the time being entited to the tithe rentcharge may by notice in writing require such owner to redeem the same by payment to the Ecclesiastical Commissioners either of a capital sum equal to twenty-one times the amount of tithe rentcharge fixed by the apportionment or any altered apportionment, or of an annuity of fifty-two years calculated at the rate of one pound sixteen shillings for every two pounds of tithe rent-charge fixed by the apportionment or any altered apportionment.
§ "(2.) If within six months after such notice has been served on the owner, the said capital sum has not been paid, the Ecclesiastical Commissioners may certify the amount of the annuity to the Land Commissioners, and shall satisfy the Land Commissioners that the said notice had been duly served, and if the Land Commissioners are so satisfied, the provisions of this Act shall apply as if such annuity had been agreed upon between the Ecclesiastical Commissioners and the owner of the land.
§ "(3.) A notice for the purposes of this section shall be served on the owner by serving the same either on him or on the person actually receiving the tithe rentcharge whether as agent or otherwise, and by so serving the same either on such owner or person personally, or by leaving the same at his most usual or last known place of abode in England. Such notice may also be served by post, and it shall be sufficient in proving such service to prove that the notice was prepaid and properly addressed and put into the post office, and the same shall be denied to be properly addressed if addressed 849 to such owner or person at his most usual or last known place of abode in England.
§ "(4.) The sums received by the Ecclesiastical Commissioners under this section shall be carried to the redeemed tithe fund, and applied in like manner as directed by this Act with respect to that fund, and the Commissioners shall pay in perpetuity out of that fund to the person who would otherwise be entitled to receive the tithe rentcharge redeemed under this section such annual sum as the Ecclesiastical Commissioners may at the time of the redemption determine to be equivalent for the purposes of such redemption to the net income derived from the tithe rentcharge."
§ Clause 9 (Savings) verbally amended, and, as amended, agreed to.
§ Clause 10 (Meaning of owner, and liabilities of several owners and mode of service of writ on owner).
On the Motion of The Marquess of SALISBURY, the following Amendments made:—
In page 6, line 31, leave out the first (''or"), and insert ("means the Commissioners of Her Majesty's Woods, and in case of lands belonging to"); in line 32, leave out ("Commissioners and"); in line 33, after ("1836") insert ("so however that the provisions of this Act with respect to persons holding lands in trust for a public purpose shall apply to such Commissioners and officers, and any sums recovered from the Commissioners of Woods under this Act shall be deemed to be part of the expenses of the management of the land revenues of the Crown, and shall be payable out of such money and in such manner as those expenses are by law payable"); and in line 33, at end of foregoing paragraph ("Any reference in this Act to a person entitled to tithe rentcharge shall, in the case of tithe rentcharge belonging to the Queen in right of her Crown, mean the Commissioners of Woods, and in the case of tithe rentcharge belonging to the Duchy of Lancaster, or to the Duchy of Cornwall, mean the officers mentioned in section thirteen of the Tithe Commutation Act, 1836").
§ Clause, as amended, agreed to.
§ On the Motion of The Earl of SEL-BORNE, the following new Clausesagreed to, and ordered to stand part of the Bill:—
New Clause (B.)—
Nothing in this Act shall alter or affect the order or priority of any lithe rentcharge, as a charge upon any land, as between the person entitled thereto and any persons entitled to other charges upon the same land.
New Clause (C.)—
(1.) The purchase money of land sold by a, university or college under the Universities and College Estates Act, 1858, or any other Act amending the same, may, with the consent of the Land Commissioners, be applied by the university or college in. the discharge of any lands
belonging thereto from liability to tithe rent-charge in manner provided by this Act.
(2.) The consent of the Land Commissioners shall be evidenced by an order under their hands and common seal in the form or to the effect set forth in the third schedule to this Act.
§ Clause 11 (Definitions).
§ On the Motion of The Marquess of SALISBURY, the following Amendment made:—In page 7, after line 29, insert as a separate paragraph ("The expression 'parson' means rector, vicar, or other incumbent").
§ Clause, as amended, agreed to.
§ Remaining Clauses agreed to, with Amendments.