Sitting of 11 July 1838

MINUTES.
Bills. Read a second time:—Registration of Voters (Ireland), No. 2; Insane Persons; Tithes and Land Managers.—Read a third time and passed:—Qualification of Electors.

PAROCHIAL ASSESSMENTS.
Mr. S. Lefevre, in moving the second reading of the Parochial Assessment Bill, said that his object was to put an end to the contention which had of late arisen, in consequence of a mode of rating being adopted which was found to work most unsatisfactorily. The Parochial Assessment Act, which had been passed some time back, was framed with the view of introducing throughout all the parishes of England an uniform mode of rating, but a proviso was unfortunately introduced into that bill during its progress through the House of Lords, he believed at the suggestion of the Archbishop of Canterbury, the object of which was to secure to the clerical tithe-owner all the advantage which was taken from the land-owner by the decision in the case of the King v. Joddrell. By this decision it was determined that the farmers' profits ought to be included in the assessment. The House would recollect that, by the statutes of Elizabeth, all property was liable to be rated, and the rate was levied in proportion to the ability of the parish. It followed, of course, that all personal property was subject to a rate, but gradually a great portion of personal property, such as that which arose from fees of professional men and the produce of labour, escaped being rated. In fact, wherever it was impossible to arrive at a fair valuation, the judges seemed to have sanctioned the principle, that property so circumstanced should not be rated at all. It was a hardship on the landed proprietor that his profits should be subject to be rated, but practically his legal liability cost him nothing, because the claim was never attempted to be enforced from the difficulty to which he had alluded; until the decision took place in the case of the King v. Joddrell. By several decisions as to the effect of the Parochial Assessments Act it was determined, that the property which was rateable was what the land would let for after deducting the poor-rate and the other expenses necessary to render it productive. In the case of the King v. Adams, which was the only one which had since been decided bearing

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exactly upon the point in dispute, in that of the King v. Joddrell, it was declared that the occupier ought not to be rated as to the profits; and though both cases were tried by the same judge, the judgment pronounced in the latter case did not bear out that of the former. Unless the House interfered, there would be appeals to the special Sessions from every parish in England, requiring that the law of rating profits should be speedily set aside. He was fully aware, that he had to encounter the opposition of the clerical tithe owners, mid he was quite ready to acknowledge that he had a powerful opponent to meet in a rev. gentleman who propounded his views on this subject not only in a pamphlet which was in the hands of almost all the hon. Members of that House, but also through the ordinary vehicles of public information, which came within every body's reach. The only thing of which he (Mr. S. Lefevre) complained in that rev. gentleman's advocacy of his opinions was, that he accused him of want of faith in not adhering to the proviso introduced into the Parochial Assessment Acts. He was not himself consulted when that proviso was under consideration, but he had communicated with those who were, and they stated their distinct understanding to be, that the proviso was inserted without the smallest prejudice to the landowner, and that it was quite open to bring the subject before Parliament in the Session subsequent to that in which the bill passed. The argument for excluding the tithe-owner's charge on the land from the operation of the decision in the case of the King v. Joddrell was this—that the duties annexed to this impost converted it into a species of salary, which, as personal property, ought to be exempt from rate. But was not a rent-charge for tithes one of the most available and secure properties in the kingdom? Was it not infinitely better paid than landed property, and ought it not to be subject to the same burdens? One of the principal objects of the Tithe Commutation Act—to do away with the dissatisfaction which prevailed from the relative positions of the tithe-owner and the landed proprietor—must be frustrated if the tithe owner were now placed in a better position than the holder of land. If the Legislature did not interfere, the announcement that it would not, would be the signal for litigation in every parish in England. Even supposing, that the de-
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cision of the King v. Joddrell was confirmed, how was it proposed to deal with cases where the occupier derived no profits, from the fact of his possessing a bad farm, or from other circumstances of that nature? The effect of allowing the law to remain in its present state would be to unsettle all fixed engagements connected with land, and he trusted, therefore, that the House would consent to read this bill a second time.
Mr. Goulburnsaid, that the hon. Gentleman in this bill very ingeniously concealed the object which he professed to have in view. He had no wish on the part of the clergy to avoid any burden that could be justly cast upon them by law. There was no desire on their part that they should not pay their full share of the burdens which Parliament imposed, whether for the general welfare of the country or for the maintenance of the poor within their parishes. All he claimed on their behalf was, that when they called upon all classes to contribute their proportion, the clergy should not be called upon to contribute more than fairly fell upon them. All he wished was, that the assessment should fall equally upon all classes. But how stood the present question? Two years since they had passed an act for the commutation of tithes in England and Wales, an act by which the clergy were called upon to forego any increase of property which should arise from an improvement of the agriculture of the country; and the clergy accepted in lieu of this an annual sum, founded upon the basis of what they had received during a certain antecedent period. This was in the nature of a bargain; for they called upon all parties to enter into a voluntary arrangement upon the principles laid down in the act? The 69th clause of that act enacted, that every rent-charge payable instead of tithe should be subject to all Parliamentary, parochial and other assessments, in like manner as the tithes were heretofore subject. He said, therefore, that if they now proposed to introduce a law which should make a difference with respect to the mode in which the rent-charges of the clergy should be rated to the poor-rates, leaving the charges themselves on the same footing they would most materially alter the conditions which they originally held out as an inducement to the clergy to agree to a general commutation. He thought upon

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a principle of good faith that the House ought to be cautious how they passed a measure which, whether more or less, imposed upon the rent-charges of the clergy, a burden which by law they were not heretofore liable to pay. If, indeed, they wished to alter the mode of rating, let it be done openly and without disguise. Let the subject be brought forward in the beginning of the Session, let it be fully and fairly discussed, and let the opinion of the House and the country be taken upon it. What would be the consequence of this bill? Why, that throughout the country every clergyman would be taxed to a considerable amount more than in the great majority of cases they had ever been subject to. He must say, then, that this was a measure of extreme injustice and hardship. Unless they applied to tithe property, and all property similarly situated, a different proportion of rating tithe of land rated at a rack-rent, they would not be doing justice to the tithe-owner. He begged to remind the House that this bill was not merely a declaratory measure: it was also an enacting measure, for it repealed that part of the 43rd of Elizabeth which enacted that all property should be rated. He was sure that there was a sufficient sense of justice in the House to induce them to reject the bill. He would conclude by moving, that the bill be read a second time that day six months.
Mr. E. Bullersaid, that the state of the law was such as to render legislation absolutely necessary. By the act of Parliament all property, whether capital or profit, was liable to be rated; and no custom, of however long standing, could set aside the clear intent of an act of Parliament. The decisions of judges were only valuable as interpreting acts of Parliament, but they could not alter them. He could not altogether support the present bill. He thought it was just and desirable as far as it was declaratory, but he objected to its enacting part, for it was an enacting bill, inasmuch as it declared, that certain property should not be liable to be rated. With this qualification, he would support the second reading of the bill, although at that late period of the Session, and considering the difficulties involved in it, there could not be much chance of its passing.
Mr. Aglionbycalled upon the House, as it valued the Church itself, to pass this bill into law. The ground upon which he supported the proposed alteration of
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the law, was this, that it could never be practically carried into effect as it stood. He did not deny, that by the original act of the 43rd of Elizabeth they might rate profits and stock in trade, but it was found, that so much mischief arose from it, that it gave such inquisitorial power to the overseers of the poor, and worked such detriment to the country, that by general consent it was never attempted to rate stock in trade or profits. If they allowed the matter to remain in its present state after the discussions that had taken place, they would have in every parish, contests between the tithe-owner and the landed interest.
Sir R. H. Inglissaid, he looked upon the question not as one regarding the clergy only, but as a question between the tithe-owner on the one hand, and the land-owner on the other; and which ought to be decided simply according to the law which regulated tithes, as well as every other description of hereditament. He held, that it would be very unbecoming in an assembly consisting in great measure of landowners, to take from the tithe-owners, who, in this case were the weaker party, that which the existing law did not take from them; for this bill, which pretended to be a declaratory law, was actually an enacting bill, altering the state of the law as to these particular individuals. He trusted, that the House would not pass such a bill.
Sir E. Sugdensaid, that upon mature reflection he was much inclined to think, that the principle of this bill was right. There were two grounds, however, upon which he was disinclined to vote in favour of the present bill. The first was, that the case of "The King v. Joddrell," having been decided, though he (Sir E. Sugden) was sure correctly so, in favour of the clergyman, and the Tithe Commutation Act having declared, that the rent charges in lieu of tithes should be treated in the same way as tithes, and Mr. Scrope's act having preserved all the rights of the clergyman then existing, he could not now take upon him to usurp the power of the court of law and reverse a decision, which, until it was reversed, was favourable to the claims of the clergy. The second reason why he could not vote for the present bill was, that its recital was not correct, for there was no doubt existing as to the construction of Mr. Scrope's act. For these reasons he should

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vote against the second reading of this bill.
The Attorney-Generalquite concurred with the right hon. Gentleman, that the principle of this bill was the correct one, and was only sorry, that the right hon. Gentleman's vote should not coincide with the view he took of the principle of the bill. He agreed with the hon. Member for the University of Oxford, that this was not a question between the clergy and the laity, but between the tithe-owner and the land-owner. With regard to the case, "The King v. Joddrell," that was by no means to be considered a clear decision; on the contrary, be apprehended, there were good and sufficient grounds to set it aside as bad law. And, therefore, when the right hon. Gentleman alleged, that the Tithe Commutation Act proceeded upon the principle laid down in this case, he (the Attorney-general) must beg leave with all respect, to differ from him. The tithe-owners received their commutation, not under the law as laid down in "The King v. Joddrell," but according to what was actually law; and, therefore, if the law was badly laid down in that case, no injustice could be done them by passing a bill declaratory of what the law was or ought to be. He agreed in the criticism, that this was not simply a declaratory bill, as it was styled, but an enacting one; but surely this was an error which could be corrected in Committee, when he should certainly recommend, that the words used be "be it declared and enacted." He did hope, however, that objections of this kind would not be held sufficient to throw out a measure which the circumstances of this country in this important point imperatively required. The passing of this measure would prevent a tremendous flood of litigation, of appeals, and reserved cases which would otherwise overwhelm the courts from all parts of the kingdom.
Mr. Darbywas quite convinced this was not a question of the clergy at all; but this one point ought to be considered—what would they do in cases which had been settled in direct opposition to "Rex v. Joddrell," cases of which he himself was aware? In those cases custom had prevailed against the law, and the question was, how far it had so prevailed? For his own part, he believed, that generally speaking the farmer had not been rated on the profits. The same judge who had tried the case of "Rex v. Joddrell," had
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intimated in "Rex v. Adams" the very great difficulty of arriving at a true account of the farmer's profits. This was the real state of the matter. How could you come at the profits? Suppose a farm was tithe free, the rent would be larger in proportion to what would be the value of the tithe: but was not the landlord rated on that farm to the whole amount? The fact was, this had not been a question of law, but (as the judges had often said) a question of custom. Taking, then, into view the whole of the question, and seeing, that great injustice would be done, if it were to be said, that the profits of the shop shall not be rated, but the profits of the farm shall be rated, he should support the principle of the bill.
Mr. R. Palmerlamented, that the bill had not been brought forward at an earlier period of the Session. During the time this question was in agitation every arrangemement would be arrested in its progress, and no man be able to make a commutation of tithe satisfactorily. If the law were as the Attorney-general had stated, and a different decision to that in "Rex v. Joddrell" would now be given, why bring forward this bill at all? Considering that the bill would work great injustice, he should vote against the second reading.
Dr. Nichollopposed the bill. The greatest injustice would be involved in its operation, for the tithe-owner was to be rated on the full amount, while the farmer was only rated to the extent of the rent he paid.
The House divided on the original question:—Ayes 104; Noes 42: Majority 62.

List of the AYES.

Abercromby, hn. G. R.

Chalmers, P.

Adam, Admiral

Childers, J. W.

Baines, E.

Chute, W. L. W.

Bannerman, A.

Craig, W. G.

Barnard, Edw. G.

Crawley, S.

Barneby, John

Currie, R.

Barry, G. S.

Curry, W.

Bernal, R.

Dalmeny, Lord

Bewes, T.

Darby, G.

Blake, W. J.

Divett, E.

Bridgeman, H.

Dowdeswell, W.

Briscoe, J. I.

Duckworth, S.

Brotherton, Jos.

Duff, James

Bruges, W. H. L.

Dunbar, Geo.

Bryan, G.

Ebrington, Visct.

Buller, Edw.

Elliot, hon. J. E.

Campbell, Sir J.

Evans, Geo.

Cayley, E. S.

Finch, F.

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Gibson, T.

Phillpotts, J.

Gillon, W. D.

Pusey, P.

Guest, Sir J.

Rich, H.

Harvey, D. W.

Roche, Sir D.

Hawes, B.

Rolfe, Sir R. M.

Hawkes, T.

Rundle, J.

Hector, C. J.

Rushbrooke, Colonel

Henniker, Lord

Salwey, Colonel

Hinde, J. H.

Scholefield, J.

Hindley, Charles

Scrope, G. P.

Hodges, T. L.

Smith, B.

Houldsworth, T.

Somerville, Sir W. M.

Houstoun, G.

Stansfield, W. R. C.

Howard, P. H.

Stenart, Robert

Hutton, R.

Stewart, James

James, W.

Strutt, Edw.

Lemon, Sir C.

Sturt, H. C.

Loch, James

Tancred, H. W.

Lockhart, A. M.

Thornley, T.

Lushington, Dr.

Troubridge, Sir E. T.

Lynch, A. H.

Villiers, C. P.

Marshall, W.

Vivian, J. H.

Martin, J.

Wallace, R.

Maule, hon. F.

Walsh, Sir J.

Mildmay, P. St. John

Warburton, H.

Morpeth, Viscount

Ward, H. G.

Morris, D.

Williams, W. A.

O'Brien, W. S.

Winnington, H. J.

O'Conor, Don

Wood, C.

Parker, J.

Wyndham, W.

Parnell, rt. hon. Sir H.

Yates, J. A.

Parrott, J.

Young, J.

Pease, J.

TELLERS.

Pechell, Captain

Aglionby, H. A.

Perceval, Colonel

Lefevre, C. S.

List of the Noes.

Acland, T. D.

Jackson, Sergeant

Alsager, Captain

Jones, T.

Baring, hon. W.

Kemble, H.

Blandford, Marquess of

Litton, Edw.

Mackenzie, T.

Broadley, H.

Mackinnon, W,

Buller, Sir J. Y.

Meynell, Captain

Courtenay, P.

Pakington, J. S.

Dalrymple, Sir. A.

Palmer, R.

Dungannon, Visct.

Parker, M.

Estcourt, T.

Parker, R. T.

Freshfield, J. W.

Price, R.

Goulburn, rt. hn. H.

Pringle, A.

Grant, F. W.

Rae, rt. hon. Sir W.

Grimsditch, T.

Sandon, Viscount

Heathcote, Sir W

Sheppard, T.

Hepburn, Sir T.

Sibthorp, Colonel

Hodgson, R.

Sugden, rt. hn. Sir E.

Hogg, J. W.

Tennent, J. E.

Holmes, W.

Wodehouse, E.

Hope, hon. C.

TELLERS.

Hope, G. W.

Inglis, Sir R. H.

Hurt, Francis

Nicholl, T.

SMALL DEBTS (SCOTLAND).
Sir William Raemoved, that the Small Debts Scotland bill be read a third time.
Mr. Wallacemoved, that it be read a third time that day three months.
The House divided.
Ayes 45: Noes 63. Majority 18.

List of the AYES.

Alsager, Richard

Hope, hon. C.

Arbuthnott, hon. H.

Houldsworth, T.

Blandford, Marquis of

Houstoun, G.

Broadley, H.

Hurt, F.

Bruges, W. H. T.

Inglis, Sir R. H.

Buller, Sir J. B. Y.

Jackson, Sergeant

Burroughes, H. N.

Jones, T.

Codrington, C. W.

Kemble, H.

Courtenay, P.

Litton, Edw.

Dalrymple, Sir A.

Lockhart, A. M.

Darby, G.

Mackenzie, T.

Dunbar, G.

Meynell, H.

Dungannon, Viscount

Sugden Sir Edward

Freshfield, J. W.

Parker, M. E. M.

Gibson, T.

Parker, R. T.

Gordon, hon. W.

Price, R.

Goulburn, H.

Pringle, A.

Grant, Colonel F. W.

Sugden, Sir E.

Grimsditch, T.

Teignmouth, Lord

Hepburn, Sir T. B.

Tennent, J. E.

Hinde, J. H.

Wodehouse, E.

Hodgson, R.

Young, J.

Hogg, J. W.

TELLERS.

Holme, W.

Rae, Sir W.

Nicholl, J.

List of the NOES.

Abercromby, G. R.

Lynch, A.

Adam, Sir Charles

Marshall, W.

Aglionby, H. A.

Martin, John

Baines, E.

Morpeth, Viscount

Bannerman, A.

Morris, David

Barnard, E. G.

O'Conor, Don

Barry, G. S.

Parker, J.

Bernal, R.

Parnell, Sir H.

Bewes, T.

Parrott, J.

Blake, W. J.

Pease, J.

Bridgman, H.

Pechell, Captain

Briscoe, J.

Rich, H.

Brotherton, J.

Rolfe, Sir R. M.

Bryan, George

Rundle, J.

Campbell, Sir J.

Salwey, Colonel

Cayley, E. S.

Smith, B.

Chalmers, Patrick

Stansfield, W. R. C.

Craig, W. G.

Steuart, R.

Crawley, S.

Stewart, J.

Curry, W.

Strutt, E.

Dalmeny, Lord

Tancred, H. W

Duckworth, S.

Troubridge, Sir E. T.

Duff, J.

Thornley, Thomas

Eliot, hon. J. E.

Vivian, J. H.

Evans, G.

Wallace, R.

Finch, Francis

Warburton, H.

Hawes, B.

Ward, H. G.

Hector, C. J.

Williams, W.

Hindley, C.

Winnington, H.

Howard, P. H.

Yates, J. A.

Hutton, R.

TELLERS.

James, W.

Gillon, W. D.

Lushington, Dr.

Maule, hon. F.

Bill put off for three months.

IMPRISONMENT FOR DEBT.
The Attorney-Generalmoved the second reading of the Imprisonment for Debt Abolition Bill, which had come down from the Lords, affirming a principle which had more than once received the sanction of that House. He would state in two sentences what the result of the present bill was. It abolished imprisonment for debt altogether on mesne process, unless on satisfactory proof to the court that a debtor was about to fly the country. Now, if the bill did no more than this, he considered it was one of the most beneficial measures that ever passed through Parliament. But it effected other and most important objects. It very much facilitated and improved the remedy of the creditor against the property of the debtor, inasmuch as it gave the former a remedy against funded as well as real property. It was a most important improvement of the law, and benefit to the creditor, that the debtor could no longer set him at defiance, by remaining without the walls of a gaol, or in the rules, and spending that property which belonged to his creditors. At present a debtor might be possessed of 10,000 l. a year, and, on being arrested, might take the rules and set his creditors at defiance, unless, indeed, he owed not more than 300 l.; and this was a most singular anomaly in the law—for in that case, by the Lords' Act, he was compelled to give up his property; but, if he owed more than that sum, he could remain in a prison, or in the rules, living in affluence and luxury. By the present bill, however, power was given to compel creditors, whatever the amount of their debts, to surrender up for the benefit of their creditors whatever property they possessed. He certainly regretted, that the bill did not go further, and abolish imprisonment for debt on judgments. The bill, however, had undergone the fullest inquiry in another place, and he thought the public was much indebted to the noble and learned Lords, who had bestowed so much attention on this subject in the other House of Parliament. It would be open to hon. Members to propose any amendments in Committee, but at the same time he should be extremely sorry to see so great an improvement in the law, adopted after so much consideration, interfered with. He begged to move, the bill be now read a second time.
Mr. Freshfieldsaid, that it was satisfactory to know, that the bill, as it had
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been sent down from the House of Lords differed in no one respect from what it would have been when sent up to them, if the recommendation of those who had opposed the bill as introduced by his hon. and learned Friend had been adopted. All the objections which had in the first instance been made to it had been remedied by the House of Lords. But, without allowing himself to indulge in any degree of triumph because those suggestions had been adopted and the objectionable parts of the bill had been omitted, he wished to call the attention of his hon. and learned Friend to one omission in the bill, a vital omission, and which would make the bill most mischievous if it were passed in its present state. The bill proposed the abolition of imprisonment for debt on mesne process; but in consequence of this there were taken away two great and leading acts of bankruptcy; the one being that a person might now lie in prison for twenty-one days without being able to procure bail, and the other, that he might remain in his house in order to avoid arrest. If the abolition of imprisonment were adopted, of course no person could commit these acts of bankruptcy, and in consequence he could not be compelled to make a distribution of his effects, as was the case now. There was also another improvement which he should wish to be made. He would propose to put traders not being Members of Parliament on the same footing with traders who were, so as to give security for the payment of their debts by bond, and that if such bond were not fulfilled, it should be considered an act of bankruptcy. He hoped his hon. and learned Friend would not object to the introduction of some such provisions into the bill, and if he did not, he had prepared a clause to that effect, which he would submit to the House; as also another clause giving a power to the bill of taking stock in execution. He wished these amendments to be made in the bill, and that the House would not adopt as a principle what had been said by his hon. and learned Friend, that because the bill had been sent down from the House of Lords, and was nevertheless defective in one or two particulars, either this bill or none was to be passed.
The Attorney-Generalsaid, he would not at the present stage offer any opinion on the suggested amendment of the hon. and learned Gentleman, further than to say

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that while he fully admitted the right of that House to make any amendment, however important, in the bill, yet he thought that any essential change in the bill from the state in which it had come down from the other House, ought to be deprecated, as being calculated to endanger the passing of the bill, at this advanced period of the Session.
Mr. Hawesshould not oppose the bill, though it was very far indeed from being the wholesome and salutary measure to which he had on a former occasion given his assent, and although he considered that while taking away the right of arrest by mesne process, it did not afford adequate means for the recovery of the property of debtors. Imperfect as the bill was, however, he hailed it as a contribution to a better state of things.
Bill read a second time.