§ Mr. Gisborne
said, that he must revert to a question which he had put to the noble Lord on the subject of tithes on coals and other minerals—a question of great local importance in many parts of the country, and in respect to which the Bill brought forward by his Majesty's Government was silent. The noble Lord was not prepared on a former occasion to answer the inquiry; and he therefore now begged to ask whether it was the intention of the Government during the present session to introduce any measure relating to tithes on minerals?
§ Lord John Russell
said, that he had given the matter his serious consideration since it was last mentioned, but had not been able to come to any satisfactory conclusion in respect to tithes on minerals, 593 and therefore he could not undertake to bring forward any measure with reference to them during the present session.
§ Lord John Russell
replied, that he had none of any importance, or at all affecting the principle of the Bill. He therefore should be glad to get into Committee, in order to hear the suggestions and opinions of hon. Members on each clause as proposed.
§ Sir R. Peel
said, that many cases would arise which were not provided for in the provisions of this Bill. He wished to know in what way the modus was to be disposed of—who were the authorities to decide whether the allegations that a modus existed were valid or not?
§ Lord J. Russell
said, he had a clause to propose to set that point at rest, but at present he would not enter into the details of it.
said, that the noble Lord could not be more anxious than he was to see a system for the entire commutation of tithes; but he was persuaded that this Bill, as it now stood, was incapable of effecting that object, unless some most important alterations were made in it. He was extremely anxious to give effect to a measure for the entire commutation of tithes, but he was sure, that if the law-officers of the Crown would examine this Bill, and compare it with that of the hon. Member for Tamworth, they would see that the latter was best calculated to bring about the views and intentions of his Majesty's Government.
§ Lord John Russell
had not seen the Bill of the right hon. Baronet before he had brought forward his own measure. He had asked the right hon. Baronet to state his plan last session, and he was sorry that the right hon. Baronet had not acceded to his request. He however, did not think that at present he should be justified in adopting the provisions of that Bill.
§ Mr. Estcourt (O. U.)
said, he saw that the Bill of the noble Lord contained no provisions as to the time within which voluntary commutations must be effected, and before the expiration of which compulsory commutations would not be enforced, He 594 wished to know from the noble Lord whether he meant to introduce a clause for this purpose.
§ Lord John Russell
said, that he had originally intended to limit the time for voluntary commutations to six months; but that upon consideration, he thought that time was too short, and he therefore meant to introduce into the Bill words which would make that point clear. He should propose that twelve months, from the 1st of October next, should be allowed before compulsory commutations could be made.
§ Sir Robert Peel
said, he had put certain questions to the noble Lord merely for the purpose of being guided in considering the details of the Bill by the answers he might receive. He, for one, had no objection to the House resolving at once into Committee, if the noble Lord so desired; but there being many important omissions in the Bill, and the noble Lord not being prepared to supply them, he (Sir R. Peel) should certainly feel some difficulty in offering suggestions to do that which the noble Lord was not prepared to do in respect to his own measure.
§ Sir Robert Price
was of opinion, with many of his constituents, who had paid a great deal of attention to tithes that before Surveyors or Commissioners were sent to value tithes, with a view to a permanent commutation, it would be advisable, if not necessary, that some law should pass, to declare what is and what is not titheable, since there prevailed, at the present moment, the greatest uncertainty on that subject. There had been a great contrariety of decisions on the point, and the consequences of an attempt to make a permanent settlement, under such circumstances might (as in the case of Lord Tenterden's Act) be, the commencement of an infinite number of actions to try disputed questions. The state of the law with respect to timber trees had always been considered as free from tithe, of above twenty-years growth, until the decision of the case of the executors of Dr. Ford which had ever since involved the point in great doubt and uncertainty. He should conclude by expressing a hope that if the Government did not at once bring in a Bill to settle this and other similar questions, they must not be chagrined if they found, in consequence of their own measures, increased litigation should take place.
§ Mr. Gally Knight
said, in the interval 595 which has elapsed since the introduction of the new Commutation Bill we have only been able to ascertain that the question is surrounded with difficulties. For no boon was there ever so loud an outcry; but whenever the termination is approached, the petitioners hang back. One tiling is clear—that the more the subject is investigated, the more does it redound to the honour of the Church; for the real difficulties arise, not from the grasping, but the liberal manner in which the clergy have collected their dues. The tithe-payers have at last found out that they have had a good bargain of the Church, a better bargain than they thought for, and now that the settlement is at hand, commutation no longer appears to be so decided an advantage. It is but fair to the Church that this should be mentioned. Whatever is finally concluded, let it always be remembered, that, nothing was ever more untrue than the charges which have been preferred against the clergy, as a body. Let it always be remembered, that it is now in proof that, as a body, the clergy have always been liberal. Yet, however perverse it may seem, it is, I believe, inherent in flesh and blood to dislike to pay more than a man has been accustomed to pay. So at least has it been since the fall; and perhaps, in a country where the laws are duly enforced, as much as a man can obtain may be considered as not very distant from his equitable claim. Exceptions, of course, shall be made in cases of our indulgence, which shall not be permitted to prejudice future interests. But the status quo, the habitual practice of the country, should appear to be no improper basis for a general rule; and the rather because, should no commutation take place, a continuation of the status quo is as much as could be hoped for. And here appears at once, in arranging the conditions of any commutation of which the compulsory principle forms a part, the difficulty of exclusively basing those conditions on an average of crops. It is vain to say that no regard must be had to the means by which abundant crops are raised; the habitual practice of the country shows that this maxim has long been obsolete. The terms of all existing compositions admit that ample room and verge enough must be left for the improvements of the agriculturist. The tithe-owner is fully aware that crops are as much the produce of capital as of the land; and, in having 596 regard to this fact, the tithe-owner has shown as much wisdom as mercy, for had he proceeded in a different manner, the only result would have been, that abundant crops would not have been produced. At the same time, Sir, it appears, that whilst liberality has been the rule and rapacity the exception, yet has there been nothing like uniformity in the different parts of the country. From whatever circumstances it may have arisen, there is a greater variety in the terms of composition than might have been expected. In Devonshire (where, by the way, the outcry has been the loudest) the terms are comparatively low, in Kent they are comparatively high; and this variety throws another obstacle in the way of coming to any final arrangement. It is almost impossible to propose any exact limits, which would be universally just. Under these circumstances, if you retain the compulsory principle, the only course appears to be to enlarge the powers of the Commissioners, and give them a greater latitude in dealing with extreme cases. Some persons are in favour of taking the actual value of the land as the basis of commutation,—others prefer other methods; but the enlargement of the powers of the Commissioners appears to me the preferable course. Nor can I see, then, there need be more danger in placing the summary disposal of property in their hands, on the present occasion, than there is in the case of every enclosure, where Commissioners are constantly invested with powers equally large. At the same time the Commissioners should be instructed in all cases, where under sixty per cent. has been taken, to secure to the clergyman to the full as much as he has hitherto received; and, in cases of overindulgence, which will not be found to be few, invariably to adjust the balance in favour of the Church. Upon such conditions the compulsory principle might be retained, and I should be loth to abandon it, because without it I fear the Bill would not come into extensive operation. Should however, such an arrangement as I have alluded to be considered inexpedient, in that case, the only alternative would be to fall back on the voluntary principle, and give it a fair trial. But in any plan that may be adopted, I should be anxious to include the power of redemption, because, without it, no final termination would be put to that which is acknowledged to be an evil; and with it I am persuaded 597 the tithe-payer would more willingly acquiesce in better terms for the Church, when he felt that the benefit arising from his own outlay would in future be for himself, and that he would be secure from all possible loss that might arise out of future changes. Redemption has been introduced in all cases of enclosure, and without, I believe, leading to any inconvenience. At the same time, as I can conceive cases in which such an arrangement would not be desirable, I should wish in any plan to leave this part of the scheme in a voluntary form. I have felt it a duty to make these few observations, because I am really anxious that commutation should take place, and that it should allay discontent, I am not anxious to put into the landowner's pocket any thing more than the produce of his own expenditure, and in no case should I wish to deprive any but the grasping tithe-owner of any part of what he has hitherto been able to obtain, and willing; to take. On the contrary, if commutation were accompanied by redemption, I think it would only be fair that the landowner should pay something for a really permanent settlement. Let us endeavour to lay aside the feeling by which we are usually divided, and do our best to work out a measure which shall be just to both parties concerned—which shall enable the agriculturist to carry on his improvements without apprehension, and secure to the Church the undisturbed possession of its equitable dues. At all events, let us do something. Let commutation take place in one shape or the other. The Bill is a proof that His Majesty's Government are acting with perfect good faith. Let them only have the resolution to persevere.
§ Mr. Lennard
said, it was in his mind an extreme defect in the Bill, that in ascertaining the rent-charge, which was to be permanently settled on the land, no regard was had to the real nature and staple of the land to be so charged, nor to the consideration, that of two farms similar in soil and in situation, the one under a good and enterprising tenant might be producing ten times as much as the other under a slovenly one. No provision was made for that period, if ever it should arise, when the corn laws would be repealed, and when those lands which were cultivated as corn lands, in consequence of the monopoly given by those laws, should 598 be thrown out of cultivation—that, in fact, it allowed for no future modification of the rent charge, in consequence of any change of circumstances, whether of an accidental, temporary, and local, or of a permanent character, nor in consequence of any unforeseen damage or misfortune which might occur to any portion of such property. The only exception to the iron rule laid down in this Bill was in the case of hop grounds. Now there were a variety of cases in favour of which, in his opinion, there ought to be a similar provision. He doubted whether hop grounds were cultivated more artificially, or at a greater expense, than much of the land in the neighbourhood of this metropolis, which was, in fact, a sort of hot-bed, producing two and, in some cases, three crops a-year. There was land as distant from London as seven or eight miles, on which the tithes paid for, amounted to from 30s. to 42s. per acre, in consequence of the high state of cultivation into which they had been brought by the monopoly they now enjoyed of the London market. Now, supposing this monopoly to be destroyed by the rail-roads, he was assured, that the value of the tithe would fall to 15s. or 21s. an acre. He doubted not but that the same was the case with land in the neighbourhood of other great cities; and he was sure the House would feel it was only reasonable, that the Bill should make provision for such cases. The same thing, though in a less extent, was true of much of the inferior corn land of this country. He would not argue the question of the corn-laws, it was sufficient for the purposes of his argument, that some of the most distinguished advocates of the repeal of those laws admitted, that if they were repealed, the effect would be to throw much of the poorer lands out of cultivation. The injustice was obvious of continuing to exact from the owner of lands which might have been converted into a rabbit warren, or a sheep walk, the same amount in corn as was made when the land grew corn. The fluctuation in the value of landed property, arising from the migration of manufactories was another point for consideration. The manufactures of the kingdom had frequently changed their localities. Considerable manufacturing towns had, in some instances, gone to decay from that circumstance, and land in the neighbourhood of them, which let at high rents, 599 and was highly cultivated for accommodation purposes, had sunk in value, and been applied to the ordinary purposes of agriculture. It was not unreasonable to anticipate that what had happened might occur again; but the rent-charge once fixed on land of this description, would still continue to be collected and received, how onerous soever it might be, since the Bill, in its present state, made no provision for any change in circumstances. He would take another case, that of a farm on the coast, subject to the inroads of the sea, it was well known, that on parts of the coast of the kingdom, considerable tracts of land had been washed away by the action of the tides, sea, and storms. Harwich, the coast of part of Kent and Sussex, furnished examples. If half a property were thus lost, the remainder would pay the rent-charge without the power of claiming the least abatement. Again, he would take the case of gardens, whether for pleasure, or profit, paying high rents, and subject to vicarial tithes. Now, these were so vexatious in their nature, that they were often compounded for, and paid for at a much higher rate than even a tenth part of their actual annual value. Sometimes they were attached to a house, and sometimes not. In the case of those attached to a house, when, in process of time the house fell to decay, or was pulled down, the garden became immediately, even if kept as a garden, of much less comparative value. It was still more the case if it should be converted into arable or meadow land, but it would for ever be liable to the rent-charge, which was to be awarded under the powers proposed to be given under this Bill. The unattached gardens, and that case applied to the market gardens in the vicinity of towns, would be involved in the same hardship, when from local circumstances, such as the decay of the town, or the removal of its manufactories, the market garden ceased to be such, and became land used for the ordinary purposes of agriculture. The Bill proposed to give the tithe-owner a right to seek his remedy on any portion of the estate belonging, or in the holding of one tenant, and that notwithstanding the closes of parts of the property had been separately valued and assessed. That increased the injury likely to be done to owners of land in the few districts which were subject to what was termed a breach of bank, by 600 which occasionally hundreds of acres were sometimes flooded, and the crops either totally lost or materially damaged. As the law now stood, the tithe-owner taking his tithe in kind, bore his proportion of that loss, and either lost his tithe entirely, or took it in its deteriorated state. But by the present Bill, if nine-tenths of the farm were flooded, the tithe-owner would take his rent-charge from the remaining one-tenth, and would continue to receive the same, although the injury done by the flood might be irreparable, and the land probably not restored for many years, if at all to its former state. It should be observed too, that the fen districts, like many other districts to some of which he had alluded, were cultivated very artificially and expensively, for mills, drainage, &c.; and if in progress of time, and the low price of grain, or from any alteration in the corn-laws, it should not be deemed worth while to cultivate them in that expensive manner, and the town level of the fen land should be abandoned, the upper or higher grounds would still be liable to the whole rent-charge. There did not appear to be any distinction in the Bill between rectorial and vicarial tithes, or the rent-charge payable in respect of either, as he thought there ought to be, particularly in those cases where the change of cultivation made the land occasionally subject to one or the other kind of tithes. According to the present law, the owner and occupier had the option of cultivating his land, so as to make it liable to either. He might convert arable, paying great tithe to the rector, into pasture, and, by feeding it, be subject to the tithe of agistment, which was a vicarial tithe; the Bill proceeded on an assumption, that great and small tithes were equally valuable. The reverse was the fact; nevertheless, under this Bill, the owner would always have the same amount of rent-charge. In many cases, it might not be the exercise of an option which induced him to change the modes of using his lands, but a hard necessity, from its want of productiveness and insufficiency to pay the expenses of high cultivation, as arable land, at the then prices of produce. By the present Bill, supposing land liable to rectorial tithe to be converted into land subject to vicarial tithe, it would for ever pay at the former rate, although great tithes were usually reckoned at from five to seven shillings 601 an acre, whilst small tithes were reckoned at from three to four shillings an acre. He could mention a variety of other cases of a similar nature, were he not afraid by so doing that he should weary the House. If it was determined that, in every case, the annual average of what had been paid for the last seven years should continue to be paid for ever, it would, he conceived, operate greatly against the tithe-payer, and in favour of the tithe-owner. The depression of prices during the last few years, had induced many farmers to employ even more labour and capital on their land than they had employed before, in order, by increase of quantity, to make up for lowering of price. The consequence of that had of course been, not any increase of tithe, because wherever the quantity of produce had increased, the tithe had also increased. Surely it would be most unfair on the landlord, that that increase in tithe from a cause purely accidental should be fixed upon him as a permanent charge. For these reasons, it seemed to him quite essential to the satisfactory and safe working of the Bill, that means should be provided, in extreme cases, of modifying the charge, which, if this Bill passed, would be fixed upon the land. Now it had been said, but as he thought erroneously, that such a revision or modification as he was contending for, would be subversive of the Bill, for it was said, if it were allowed in favour of the tithe-payer, it should also be allowed in favour of the tithe-owner. He should admit the force of this argument, if the Bill would have the effect of placing the tithe-owner, as in many cases it did the tithe-payer, in danger of losing the greater part, or the whole of his present income; but that could not be the case, because the Bill guaranteed to him not a variable but a fixed income measured in corn, so that in his case no such extreme case could occur as to justify a departure from the rule. It was true be gave up the chance of any improvement in his income, in consequence of any improvement in the land, but that was the price he paid for that Bill which relieved him from all the troubles and odium which belonged, in many cases, to his present situation, and which gave him in exchange for an uncertain and precarious income, depending on personal security, a certain income founded on the best of all securities. In 602 spite of the many cases in which individual injury might be done by this Bill, it might nevertheless be beneficial as a whole; but, as it was said last year by Sir Robert Peel, to the many persons who might be seriously injured, or ruined, the more fortunate state or situation of their neighbours would afford small consolation. It was not on every occasion the policy of this country to overlook the claims of individuals and the rights of property. He contended, therefore, that if this measure was to be passed on the ground of general policy, it was their duty as far as possible to guard against its becoming a source of oppression to individuals. When the Bill was before under discussion, he had endeavoured to show the House, that the last seven years afforded a most unfavourable period to the tithe-payer for taking an average by which he was in future to be bound; a fair average, could never be got from a period in which prices were either constantly rising or falling. It was well known that rents did not rise or fall immediately on the rise or fall of prices, but that they remained stationary for some short time. Now during the last seven years, prices had been continually falling, but the reduction of tithe did not take place immediately on the reduction of price, so that the last seven years gave an average of comparatively high rent and high tithes, which under this Bill would be calculated on an average of low prices. He did not believe any intelligent farmer would guarantee to his landlord for all time to come the average amount of rent which he had paid for the last seven years, at least, before he gave such a guarantee he would desire to know what was to become of the corn-laws, and how he could be secured against those accidents and contingencies of which he had already spoken. He knew there were serious objections to making the clergyman a land-owner to any great extent, but he believed it would be found, that this Bill which gave him a right of entry as long as the tithe was in arrear, would in very many cases do that which was objected to. Many persons thought the increasing population, and wealth of the country would ensure a corresponding improvement in agriculture; without disputing that position, he contended that they should endeavour to guard against those cases of individual hardship and ruin which might arise amidst general pros- 603 perity. The Members of this House had a delicate duty to discharge in the settlement of that question. Above eighty of them, and of that eighty he was one, had a direct and personal interest in it, as being either patrons of livings, or impropriators, or both, and when, in addition to this, it was calculated how many of the Members of that House had through their relations an indirect interest in the question, there was little ground for saying that the interest of the tithe-owner was not fully represented there. He had endeavoured to point out, though he was aware very imperfectly, some of those extreme cases which in his mind authorized him to ask that the Bill might in certain cases be modified. With that view, he would now move, "that it bean instruction to the Committee to insert provisions, enabling owners of lands, where there had been a compulsory commutation as regards the original owner of such lands to re-open the valuation at successive periods of ten years, when it shall appear that the annual value (to be ascertained by valuation) of the tithes, if they had been taken in kind for the preceding five years, after deducting twenty-five per cent, would have been one-third less than the sums annually paid on account of such composition, within the same five years."
said, the present question was one of such immense importance that he thought it ought to undergo a much fuller discussion before they went into Committee, for which the House was not prepared—as from what was said by the noble Lord (Lord Howick) on a former night; the impression on his mind was (and most of the hon. Members near him were impressed with the same notion) that they were to have had a full discussion of the principle of the Bill to-night, in order to bring out the facts and bearings of the subject—and to go into Committee on some future night. It now appeared, however, that, notwithstanding this supposed arrangement, an attempt was to be made to pass over the general discussion of the Bill, and to go into Committee at once. He should object to such a proceeding, because when such immense interests were at stake, and when the question was so little understood both in and out of the House, he thought much more time was necessary for the consideration of the subject than had already been given, or could 604 be given, to it before the recess. He hoped, therefore, the measure might be discussed now without going into Committee, and that it might stand over until after the recess, when they might, in the mean time, consult their constituents. It appeared to him that the Bill contained this great defect; that it was founded on the assumption that the tithe-owner had the abstract right to the tenth of the gross produce of the land, and that he could enforce the collection of that tenth, and that, in whatever arrangements might be made for the adjustment of the disputed rights between the land-owner and tithe-owner, regard must be had, so as to award a full equivalent for that tenth, making only a certain deduction (which was perfectly inadequate) for the expense of collection. For myself (said the hon. Member) I deny the assumed right. There are, I believe, decisions both ways, both for the tenth in gross produce, and for the tenth of the net gains, the latter of which only is consistent with fairness and reason; but admitting, for the sake of argument, that the tithe-owner is entitled to the tenth of the gross produce, I ask this House, I ask the country, has he ever been able generally to enforce it? I tell the framers of this unfortunate Bill, the tithe-owner never has been able, and never will be able, to enforce it, though rent-charge may be substituted for the odious name of tithes! Let the land owners bear this in mind, that by the Act of Parliament passed in 1819, commonly called "Peel's Bill," one-third of their property was transferred to another interest.—With this great mistake in legislation, will they tamely acquiesce in the proposed Tithe-Bill, which, without considerable alteration in favour of the land-owners, will transfer another large slice of their property to the tithe-owners—remember they will now do it with their eyes open! and will have to blame themselves only if they do not bestir themselves. He should now pass (the hon. Member continued) to the Bill itself; there were many parts of it which required attention and improvement, but the two clauses which deserved the greatest consideration were the 28th and 29th—the two main provisions of the Act. By the 28th, an award might be called for and obtained for commuting tithe. In that case, the rent-charge to be for ever fixed on an estate was to he founded on the average of the compositions paid or agreed to be paid for 605 such estate for the last seven years—or when tithes had been taken in kind, on the value of the tithes so taken in kind, deducting the expense of collection, marketing, or otherwise—and the rent-charge was to be the first charge on the land—without any allowance or equivalent whatever, given to the land-owners for taking such a charge on themselves, which now the tenant is only personally liable to, and not the land or the land-owner; nor was there to be any abatement made to the skilful and spirited improver, whatever might have been his outlay of capital; so that a man for skill and industry would be punished, and for sloth and neglect would be rewarded. The man who has made his acre, which was worth only 1l., now, by labour, manure, and draining, worth, 2l. or 3l. is to be fixed for ever with a charge on his land, as a land-tax, in the exact proportion of his improvements up to the time when the commutation takes place—was that fair? But it was said, after tithes were once commuted, the charge beyond the rent charge could not be increased; but who could tell what might happen. Commerce and manufactures might decay, agriculture might decline, and many other circumstances might arise, which might make that charge intolerable to the land-owners; therefore it did appear to him, not only expedient, but perfectly just, in making a final settlement of this question, that the land-owner, for taking these risks upon himself, and for giving the tithe-owner a security advanced from eighteen or twenty years' to twenty-eight or thirty years' purchase, was fully entitled to an equivalent, and also to a liberal allowance for giving up that advantage he at present possessed, viz., of withholding the application of capital to the land, of rearing certain descriptions of cattle not titheable, of converting arable to pasture land, of planting his whole estate if he pleased, by which no tithe would be payable, or of availing himself of tithe-free land in his neighbourhood, &c. &c. He considered the land-owner, in common justice, entitled to such an equivalent, and to such liberal allowance, and he could not see with what propriety any other course could be taken. The rent-charge, in his opinion, should be founded on the average paid within a few past years, say three, five, or seven, for composition, deducting therefrom any return made, and deducting also at least 10 per cent, for the reasons he had 606 already stated. But if tithes had been taken in kind in a few instances, (and he believed they were few indeed) the rent-charges in these rare instances might be computed and fixed according to the rate of composition paid in neighbouring parishes, having due regard to the difference of soil and other circumstances, and with the same amount of abatement as in other cases of composition.—This would be an easy and practical method for settling this great question. It would be a measure based on past payments with only a moderate deduction for advantages given to the tithe-owner. It would cause but little disturbance, and little irritation, it would be giving up theory for practice, and most probably would, in 99 cases out of every 100, not be unsatisfactory, if it did not give complete satisfaction. But if the claim of the abstract right to the tenth of the gross produce were to be set up, as the 28th and the 29th clause, and acted upon, every case would be made an extreme case—appeals without number would take place, and a scene of confusion and irritation would ensue, which might be better conceived than described. He therefore should, whenever the Bill was in Committee, propose that the rent-charges should be formed on the compositions with the deduction and abatement he had before stated, and not on the gross produce, and he had prepared amendments to that effect. These were the principals parts of the Bill, but there were others of minor importance, not to be overlooked when in Committee. "Concurring (said the hon. Member, in conclusion) most heartily as I do in the general policy pursued by his Majesty's Ministers, I cannot be supposed to be actuated by any unfriendly feeling towards them or their Government, by pointing out the defects, and suggesting improvements, in any measure they may bring before this House, more especially one of such vast importance as the English Tithe Bill; but if I were, I should feel the duty I owe to my constituents and to the country of paramount importance to every other consideration, and they may rest assured that I would not fail to take care of their interests [Cheers.] I, however, by the cheers of the noble Lord (John Russell,) perceive that my observations, frank as they have been, are received in the same friendly spirit in which they were made. I trust the information that will be obtained 607 by the discussion this night, will lead to good results, and that, before the end of the Session, we shall see a Bill for a compulsory commutation of tithes, that will be satisfactory to that long-aggrieved class, the tithe-payers, not only carried through this House, but become the law of the land.
§ Mr. Blamire
said, that connected as he was with a part of the country in many respects peculiarly circumstanced as to the payment of tithes, and having for a number of years had considerable experience in all rural matters, and having, as a practical man, had ample opportunity of observing the working of the tithing system in its various ramifications, he trusted he might be allowed to obtrude himself for a short time on the attention of the House. He said he must, in the first place, beg that it might be understood that the observations he was about to offer to the consideration of the House were more especially applicable to the working of the system in the north of England, where alone he felt competent to give an opinion with any degree of confidence; and said, he must beg that it might be distinctly understood that he was not about to hazard any conjecture as to the success or failure of the measure now proposed in the midland or southern counties, where he had not had the opportunity of acquiring the requisite information. To the intricacies and perplexities of this great and important question he was perfectly alive, and he was well aware of those difficulties with which it was surrounded and beset—difficulties which none but practical men could fairly or duly appreciate. He was also well aware that it was much more easy to raise objections to, and point out imperfections in, any plan that might be proposed, than to devise a suitable and judicious remedy; and, in consequence, he felt no slight degree of diffidence in stating his objections to the plan proposed by the noble Lord, and in submitting such suggestions as occurred to him; but since the measure of a commutation was first brought forward, he had, on various occasions, stated it as his opinion that it was far beyond the reach of any degree of ingenuity to contrive one general measure fairly and equitably calculated to meet the difficulties of each particular and varying case. All that could be done, therefore, and all that it was prudent to attempt to do, was to place 608 the parties in the happiest and best position for effecting an arrangement between themselves, and for a time, at least, to leave them free from all control and interference. As he now saw no reason for flinching from the opinions he had formerly expressed, he felt it incumbent upon him to endeavour to vindicate them on the present occasion. Whether he might do so successfully or not, he must ever feel individually, as also on behalf of his constituents, the greatest obligation to the noble Lord for the labours he had bestowed on this most difficult subject; and though the present attempt might not be a successful one, he trusted the time was not far distant when the matter would be settled equitably and satisfactorily. To the great principles contained in the Bill he had no objection to offer, nor to the application or adaptation of those principles to districts of a certain extent, and of varied cultivation; but it was to their application to particular and individual cases that he found himself obliged to offer his most strenuous and decided resistance. Since the Bill had been upon the table of the House, he had applied himself closely to the subject, and had, in many instances, where he suspected the case would prove an extreme one, ascertained from the individuals themselves what amount of composition they had heretofore paid, and how that amount would be affected by the Bill now proposed. And he felt constrained to have to say, that he did know numerous instances where the greatest injustice must be done to the parties—in some to the tithe-owner—but more uniformly to the land-owner. In that part of the country with which he was best acquainted, the most numerous class who would suffer from the Bill, as now proposed, were those whose lands were in a certain state of deterioration; and this would not be a matter of surprise, when the House was pleased to recollect, that within the last twenty-five years not less than six millions of acres of waste lands had been brought into cultivation, that a considerable proportion of them had been enclosed, subject to the payment of tithes.—Now these lands were generally most productive on their first being cropped, not from any superior degree of innate fertility in the soil, but from the accumulation of vegetable matter which for centuries had gone on increasing in them, and which at once was brought into action, 609 from an inert state, by the application of lime, or fire, or both. Lands so circumstanced must deteriorate, and could not be continued in their first state of productiveness, by their own resources alone, and without the aid of adventitious manure. In many of these instances, and similar ones, the oppression that must be produced by the operation of the proposed Bill would be grievous, and in place of the composition being lowered, as in justice it ought to be, it would in many instances be increased, and materially so. The tenant of a farm of this description has been driven to the necessity of ploughing his land excessively, in the hope of being able thereby to meet his engagements, and has paid his rent, not by the fair annual return of the land, but by sending in to the landlord, year by year, a part of the fee-simple of the estate, by the reduction on the real value which his system of deterioration was producing. The landlord complains of the amount of rent-charge assessed upon him. The Commissioners apply the test proposed by the Bill, and find not that the tenant has paid too much, but that, with reference to the quantity of grain actually produced during the prescribed period of the seven years, he has paid much too little. It would, however, be obvious to any man of common understanding, that this production could not continue, and that, in place of increasing the amount of composition, it ought to be materially reduced. Such a case as he had described would be an instance of a landlord suffering from the circumstance of his having had a bad farmer; but he would also be made to suffer under the provisions of the Bill, from his having had a superior and enterprising tenant, who had expended a larger proportion of capital than his predecessor had done. He could point out many instances where injustice must arise in this way, but he would confine himself to one. He would name a farm of 450 acres of high poor grass-land, upon which but a small proportion of corn had been grown for many years past. The tenant had compounded for his tithes during his occupation, at the rate of seven guineas, or thereabouts. The estate in question was lately purchased by a wealthy and enterprising farmer for the purpose of converting it into an improved grass farm; but to do this, he must break it all up; he therefore contracts for the tithe of it for 610 twelve years at the rate of 40l. per annum, and in doing so, thought he had made an excellent bargain. But apply the principles of the Bill in this case, and you fix upon the property for ever the increased payment of the 40l.; whereas, in all human probability, no considerable quantity of corn will ever be grown upon it after the expiration of the present contract, for from the soil and climate it is infinitely better calculated for grazing than producing corn. Now it did so happen, that the adjoining farm of 600 acres is a striking instance of the injustice that would arise to the tithe-owner from the operation of the proposed Bill. It is also a farm of high poor grass land, a very small proportion of corn has as yet been produced upon it, and the sum of 3l. is at present paid as the amount of composition, and the contract will not for some time expire; but this farm has also been let to a spirited individual for the purpose of improving it, as in the other case, before it is returned to grass, and in a short time the tithes from it must be worth in all probability not less than 60l. or 70l. But apply the principle of the Bill, and you fix a rent charge upon it of only the sum at present paid—viz., the 3l. The hardship in these cases arose from the change in the condition and mode of cultivation of the farms, and he would, therefore, name a class of cases where great hardship would arise from circumstances of a totally different nature, produced by the mere change of contract. He could state on the authority of an eminent land-surveyor, whose integrity was above all imputation, that he had been lately called upon to assess the amount of composition to be paid by two adjoining parishes where the tithe was the property of the same individual. In one parish he had found it necessary to raise the amount of composition to be paid 150 per cent., and in the other to reduce it 25 per cent. In the one case the former composition had been of very old standing, and entered into under peculiar circumstances; and in the other it had been raised to its full extent some years ago, and was in consequence now to be reduced. Apply the principles of the Bill in these two cases, and how glaring would be the result? Another description of case not provided for, would be found in the situation of lands recently cultivated. By the 2nd and 3rd of Edward the 6th, no land which could be called barren, or 611 which had not been ploughed, was liable to tithe until it had been seven years in cultivation. Now, what was to be done in some of these cases, where the seven years had not expired, or were only just expiring? Was it intended to provide for them or not? He felt at a loss. In the case of lands now planted, but which had heretofore grown corn, what was to be done? He asked if the one case was left as a set-off to the other? But this would be manifestly unjust. Then as to the case of lands now in grass, and which had been so for upwards of seven years, but which were liable to tithe if broken up, what was to be done? This was the case in which the tithe-owner in the north would have the strongest ground for complaint. Such instances were very numerous, both from the local peculiarity of climate and position as to markets. Many lands so circumstanced must be broken up at certain intervals, not containing a sufficient degree of innate fertility to be continued permanently in grass. He could go on and state case after case, proving a greater or less degree of injustice to the one party or other, under the provisions of the Bill; but he should be sorry to weary the House, and he thought he had stated enough on which to ground his argument, that in its present shape the Bill would not work fairly and equitably. If the noble Lord should admit, that in the cases he had stated, the injustice would be great and decided, but should refuse to provide for them, on the ground that they were rare, and only exceptions to the general cases, he must beg to assure the noble Lord that they were not rare, but abounded, he feared, in all parts of the country. The noble Lord might say, that in a great measure of this kind, he could not be expected to do minute justice to all the parties concerned, and must be content to administer a sort of rough justice, which, on an average, might be right and proper; but the noble Lord ought to recollect that it would be no satisfaction to him to see his neighbour benefitted at his expense, and that he must also bear in mind, as affecting the popularity or unpopularity of the measure, that those who got a good and beneficial bargain would in silence hug themselves, whilst those who were harshly dealt with would be loud in their complaints, and even represent the case as worse than it really was. If the noble lord proposed to remedy the grievances 612 complained of by vesting the Commissioners with large discretionary powers, he should most decidedly object, as he thought it would not be prudent or wise to intrust any men, however carefully selected, with such extensive powers; and if you give this discretionary power to protect the interest of the landowner in the one case, you cannot withhold it in the other—and then you involve yourselves in difficulties from which there is no retreat—for who can say what grass-lands may or may not be permanently, at the caprice of the owner, continued in grass, though he thereby should incur much loss? Suppose the noble Lord should consent to the plan proposed of taking a certain proportion of the rent as the basis of the rent-charge, would that lead to a satisfactory result? In some districts it possibly might, but he knew many others, and particularly in the north, where this principle would lead to the grossest injustice. He knew himself instances where more than 30l. per cent, of the rental was paid for tithe, and others, where not 2l. (about 1½ per cent, only) was paid. And in these cases the lands were of equal fertility, and the difference arose alone from the mode of cultivation—the one being principally in corn and the other in grass—and there was no reason why the relative situations of those two farms might not in a few years be so changed, that the lands now paying near 30 per cent. should, by conversion into grass, escape with a payment of one or two per cent., and the land at present in grass be broken up. Or suppose the noble Lord should accede to the proposition of fixing the amount of rent-charge, without reference to the crops actually produced, but with reference to the staple quality of the soil, and that the Commissioners should have the power to value lands now in grass as if they had been in tillage, on the ground that tillage would be their best appropriation, and that they are alone fitted for convertible husbandry, this he must say would, in his opinion, be of all objectionable plans, as applied to the north of England, the most objectionable, and would, of necessity, open the door to so many difficult and perplexing questions, that he hoped most sincerely the noble Lord would pause and consider the matter well in all its bearings before he assented to it, though it was warmly advocated by a number of most intelligent men, both in and out of the House. Now, as to the 613 plan of voluntary individual commutation. he begged to say a few words. He thought it most questionable in policy, and feared it would be found to interfere materially with voluntary parochial commutation. In every parish you must expect to meet with some instances of obstinate, ignorant, self-willed men, who would be disposed to act in opposition to their neighbours, unless you make it worth the while of their neighbours, and those who have an influence over them, to endeavour to carry them along with the rest into a voluntary parochial commutation, which would in some way, in most cases, be effected by pecuniary or other influence, and a parish would generally gain largely by a voluntary commutation, though some sacrifice might be made to an individual who thought himself peculiarly circumstanced; but remove the necessity for exercising that influence, and no one would be found to take the requisite trouble, as the commutation might go on, however partial and chequered it might be, and the object of getting rid of tithes altogether not be effected without much compulsion. Instances, he thought, would be rare where the interests of an owner would be prejudiced by restraining at first, at any rate, all voluntary individual commutation; and much might be said in objection to the plan on the score of expense. Then came the great and important question, what can be done to effect a permanent commutation, with justice to the interests of the parties, and without undue favour to either? He, for his part, must again and again repeat, that it was hopeless to attempt to provide for all the difficulties, all the peculiarities and intricacies of each particular and varying case, by one general enactment, and that all that could be done, and all that it would be well or prudent to attempt to do, would be to place the two parties interested in the commutation of tithes in the happiest and most favourable situation for making a satisfactory arrangement between themselves, free from all control in the first instance, at any rate, from the Commissioners; and he would venture to suggest to the noble Lord and the House, that it should be set about in this way. The machinery of the Bill should be created as proposed by the noble Lord, or in any other way to which, for the purpose, he might give a -preference; the Commissioners should ascertain as correctly as possible, with 614 reference to the payments that had been made, the fair, and moderate, and reasonable value of the tithes in each particular parish, or benefice, or tithing district, as the case might be; and having ascertained that amount, that it should be left to the parties interested, for a time at least, to apportion or applot the account of the rent-charge amongst themselves, without any interference on the part of the Government or the Commissioners. He said he would not then enter upon the principle, on which it would be fair to assess this permanent rent-charge after the observations just made to the House by his hon. Friends the Members for Maldon and Totnes; but it ought to be borne in mind, and he hoped would be, that the landowner was now to be called upon to relinquish for ever that corrective power which he always had enjoyed of controlling the demands of the tithe-owner by not producing on his lands certain titheable crops; but he hoped, and he had every reason to believe, that the rent-charge would be assessed on the fairest and most unobjectionable grounds, and with reference to what was fairly due to the interests of the two parties. The noble Lord might say, and probably would say, that this proposition would effect but little, and that compulsory measures were absolutely necessary for the purpose of extinguishing tithes. But he would beg the noble Lord to bear in mind, that if he could not so frame one general enactment as fairly and equitably to meet all cases, it would be well and prudent to pause, and not commit gross injustice in any class of cases, until every method had been tried, and tried in vain, of bringing the parties to. voluntary and satisfactory arrangements. To delay the full and entire accomplishment of even a good purpose would be prudent, until it had been ascertained that no injustice would be done by enforcing it. He objected most strongly to the serious expense that would be imposed on the country by the machinery of the Bill, if the parties were not left to assess and applot the amount of rent-charge amongst themselves. The method proposed was in his opinion, complex, expensive, and unsatisfactory, and the appeal from the award of the Commissioners could not be acted upon where the properties were small and much subdivided, as in the north of England. Where 6l. or 7l. was the amount of the rent- 615 charge assessed on an individual, it would be much better for such an individual to submit to it, than undertake the appeal, which would cost him, as he was informed by legal men, probably not less than from 25l. to 50l. There was nothing new or speculative in the suggestion he had ventured to throw out to the noble Lord, it was constantly acted upon in the north of England, and with the happiest and most satisfactory results; a parish, or some of the most leading individuals in it on behalf of the parish, contract for the tithes at a given sum. They depute a committee, in whom they can place confidence, to examine into the relative state and quantities of the crops, and have no difficulty in satisfactorily arranging the different applotments. In all those parishes where this mode had been resorted to, he had not heard of any sort of difficulty; and he believed that, under the Voluntary Tithe Composition Act, this had been the course pursued in Ireland, and he was not aware that any difficulty had been found in regulating the applotment under the plan; but he spoke under the correction of many hon. Members who must know how far this statement, as affecting Ireland, was correct. The noble Lord might not consider his suggestion as applicable to the kingdom generally, but he felt confident that in the north it would work satisfactorily, and save much expense to the parties; and he trusted that the noble Lord would be induced to allow a provision to be introduced into the Bill, empowering such parties as petitioned the House on the subject (under certain reasonable restrictions) to adopt the voluntary system of assessment, and to make the applotment themselves. The advantages to be derived from the application of the principles of the proposed Bill to a large parish or district were great and decided, as compared to their application to a single farm or small parish, as all extreme cases might with ease and without injustice be modified. The man whose lands were now extensively under the plough would get relief as he ceased to produce his former quantity of corn, and the man whose land had borne but a small proportion of the assessment, during the time it was principally in grass, would find that proportion increased upon him, with an extended tillage of the farm. In this way he believed much of the difficulty would be got over without injustice—for 616 he found, upon a close and careful examination of the facts, that in a district where no particular disturbing cause existed as to the accustomed cultivation, that as nearly as possible the same extent of corn was produced year by year. He had in several cases ascertained that the amount did not vary more than from four to seven per cent., as the extreme, in the parish or district, though the cultivation of some particular farm or farms in that district might, in a few years, have varied materially. Where there were no particular causes to prevent it, the amount of corn produced in different years continued as nearly as possible the same for a successive number of years, at least it had done so in a number of districts where he had been able to ascertain the facts. He would again press the noble Lord to agree to his suggestion in particular cases, affirming that there did not exist in the country any disposition to pay the tithe-owner a farthing less than he was entitled to, and that the country generally was most desirous of seeing a commutation of all tithes effected. The difficulties which had heretofore stood in the way of voluntary commutation were chiefly the trouble and expense; and these removed, tithes would soon cease to exist. He felt sure that the noble Lord had no indisposition to settle the question upon any other than the most fair principles. He thought that the most advantageous course would be to endeavour to remove the general difficulties in the best and safest way they could, and then leave the parties to make the ultimate arrangements amongst themselves, in the manner they might think most satisfactory.
§ Viscount Howick
was sure, that the observations which the House had on that night heard, must naturally have made the strongest impression. Any one who had listened to what had fallen from the hon. Gentleman must have derived the most valuable information from it, and must have felt the importance of advice proceeding from a Member of so much practical experience. The subject which they had to deal with, it must be admitted, was one beset on all sides with difficulties, and some of those difficulties were of a formidable character. He could not agree in the opinion which the hon. Member for Cumberland had expressed, that, in the present state of the country, it was desirable that they should hold out an inducement and temptation to voluntary com- 617 mutation. He certainly admitted, that in the part of the country with which he was connected, as well as that which the hon. Member for Cumberland came from, there might be found a general disposition to enter into a voluntary commutation on fair principles. But, from what had been said by many Members in the course of this discussion, of the irritation and animosity that prevailed in many places on this subject, he could not anticipate any such satisfactory result from the adoption of any scheme of merely voluntary commutation. From what he had heard and seen of the feeling entertained on this subject, he feared that to pass a measure of voluntary commutation would be to effect the greatest injustice to many parties in the end; and, in the meantime, to produce a great deal of inconvenience to the public at large. If the proposition for voluntary commutation had been made at an earlier period, he did not doubt but that it would have been attended with the best success. If the measure last year brought forward by the right hon. Member for Tamworth had been introduced some years ago, he had no doubt that it would have been attended with the happiest results; but it appeared to him, that whenever the doctrine of a compulsory commutation founded on the amount of actual previous payment had once been broached, there was a great difficulty placed in the way of voluntary commutation, and any measure of that description was no longer likely to be attended with satisfactory results. This must be expected from the situation in which persons with conflicting interests would be placed from the anticipation of a compulsory measure. Supposing that six or seven years were laid down as the period at which compulsory commutation should take place, both parties in the meantime commenced preparations for an event which they all foresaw; on each side there was an endeavour to do whatever would be likely to render the compulsory composition which must occur most conducive to their own interests; and the one party would have the strongest inducement to adopt every device for diminishing, the other for exacting to the utmost, the payments during the interval, as these would determine the amount of the permanent charge to be fixed on the land. Looking to the struggle that would thus be caused, to hold out the remote expectation of the 618 compulsory assessment would, he thought, be very injudicious. In the meantime, the land would, in many instances, be converted into plantation, or employed in producing some other similar untitheable article. He thought that this might not take place extensively in the North; but he feared it certainly in the South of England; and the mere circumstance of throwing out of employment in this way a great number of persons engaged in the cultivation of arable land would in itself be a great evil. There would also be a general derangement of the whole industry of the country, most injurious to all classes, and particularly to various small traders in country towns, who were in the habit of supplying the labouring population. When these consequences were fully looked into, he was sure that they would not be content with a plan of mere voluntary commutation, holding out at the same time the remote application of the compulsory principle. But, if they felt the necessity of applying the compulsory principle at once, he would ask, could that principle be carried into effect better than by the present Bill? The hon. Member for Cumberland had stated, and most truly, that to make the future charges on land not proportioned to the amount of tithes, but to the amount of rent, would be in itself a very great injustice. If, indeed, they were now for the first time about to make an endowment to the Church he would not say but that it might be better to make such endowment consist of some proportion of the rent of the land, than of the gross produce; but to do so now, would be to sweep away an extensive institution, and to raise up another in its stead- The hon. Member for Totnes had stated, that in his opinion they ought, in the assessment, look at nothing but the agreement made between tithe-payer and tithe-owner. Now he did not think that a fair principle to be applied. He could easily conceive a great many cases where a great difference existed between those parties. He could conceive, in many cases, they were so unequally assessed as not to depend so much upon, strict legal rights as upon long-established custom. There were also many cases in which the terms might not be satisfactory. However, on this point, the principle laid down in the course of the discussion by an hon. Member who spoke at that side of the House, appeared to him (Lord Howick) 619 most satisfactory. That principle was to ascertain, as far as could be, the existing agreements, and when those agreements presented any difficulty, that a power should be given to ascertain the amount that ought to be paid. He was aware that in these arrangements many great difficulties might arise; but he thought that it was a great advantage that, in any arrangement that might take place, they should render the charge once fixed permanent, and not subject to any future alteration. The noble Lord, after having proceeded to make some further observations, said, that he feared he had not succeeded in explaining" satisfactorily the points to which he wished to call the attention of the House. He believed he was just in presuming that some compulsory measure would be found necessary, and, such being the case, he did not think that that principle could be better carried into effect than by the present Bill. He hoped, therefore, that there would be no objection to allow the measure, as the principle seemed admitted, to go into Committee, and they would then have an opportunity of considering the objections that had been made to the details of the measure.
§ Sir Robert Peel
regretted that the House had been involved in the present discussion on the principle of the Bill before the question of going into Committee; because, whatever his opinion might be on some important particulars, not being opposed in principle to a compulsory commutation, he should have been disposed to forego all preliminary objection, and go at once into Committee, in order to have an opportunity of obviating any objections of detail which might be made to the various provisions of the Bill, and rendering it in all its parts as complete and unobjectionable as possible. In point of fact, the principle of compulsory commutation being conceded, the policy of applying it depended so much on the machinery by which it should operate, that it was difficult to consider the principle apart from the details; the policy of admitting the principle depended almost wholly on the perfection of the details, and the manner in which they were to be applied. But, at the same time, after the very able and powerful speech of the hon. Member for Cumberland, whose opinion on this question was entitled to so much weight, urged, as it had been on the present occasion, with such consummate knowledge of the sub- 620 ject, and so much clearness of expression as to render its subtleties perfectly intelligible to those less conversant with its details, he was not surprised that the noble Lord had thought it necessary to vindicate the leading principles of the Bill; and, in the outset, he must say, he entirely concurred in the justice of one observation made by the noble Lord—that even with respect to a voluntary commutation, and much more in attempting to carry into effect a compulsory principle, it was infinitely more easy to suggest difficulties than satisfactorily to obviate them; and he, for one, should, therefore, be the last to urge it as a party objection against any, Government that they had made an honest attempt to settle this question on the principle of compulsion. Still the noble Lord must admit, that it was most advisable, for the interests of the country and the Government, before the opinion of the House was finally pledged in favour of that principle, or any other, to foresee all the difficulties and various objections which occurred to different minds, by which they might be accompanied, in order, admitting their force, if possible to obviate them, than afterwards to find, having adopted a particular measure for the settlement of tithes, and passed it into a law, that, on experience, it was incapable of practical operation. If it were necessary, in such a case, to revoke what had been done, having once passed a bill on the subject, they might indeed altogether despair of effecting a commutation of tithes on a right and satisfactory principle. He, therefore, repeated, that he for one would allow no party feeling to enter into the discussion of a bill brought for-ward with the proper intention of effecting a commutation of tithe on just principles. He apprehended, that those who were anxious for this—he meant the settlement of the question upon just principles—would feel thankful rather than otherwise to those who, whilst there was yet time to consider them, urged the objections which they entertained against the principles on which the present Bill was founded. The noble Lord maintained, that the compulsory principle possessed a great advantage over the voluntary principle; and he was willing to admit the justice of that opinion, qualified to this extent—that the compulsory principle adopted should be consistent with equity, and likely to give satisfaction; because, unless it were a just 621 principle, and likely to give satisfaction to the parties concerned, its adoption, however speculatively preferable, would not, in point of fact, be attended with any advantage. The noble Lord stated his objection to a voluntary principle: he stated that if a voluntary principle were adopted, compulsion being held out as the alternative in prospect, they might depend on it they would thereby prevent any persons from taking advantage of a voluntary arrangement. Now, that was precisely his objection to the present Bill. They were about to extend the voluntary system for two years, at least a year and a-half beyond the six months already propounded in the Bill; but all that time, according to the argument of the noble Lord, must be spent quite unprofitably, because every one would naturally consider how far the compulsory principle proposed, would be favourable to his interest, and whether he should wait for its operation. But if Parliament declared, "we give fair time for voluntary arrangement, without precluding ourselves from the compulsory principle—we are not prepared to state what that compulsory principle is—we will take the experience of the intervening period, in order to guide us in the application of a compulsory principle, which we will not now indicate to you, but which, if necessary, we shall hereafter adopt and act upon,"—in that case, they would not throw in the way of voluntary arrangement that impediment which the noble Lord anticipated, and which must prevail, if they indicated now the precise terms on which compulsion would hereafter be adopted. There were immense difficulties in the way of carrying a compulsory principle into effect. He could easily conceive, that if they considered only the interests of two parties, the tithe-owner and tithe-payer, and if they could assume, that the interests of one class of tithe-owners were identical with those of every other, one man fairly representing the whole, it might be possible to make an arrangement which would be satisfactory as between the great mass and the Church. But, unfortunately, another element must be taken into consideration. They had not only to do justice between the great interests concerned, but, in order to give satisfaction, they must do justice tolerably well between every individual constituting a portion of the aggregate. It would not do to administer what an hon. Member, 622 who had spoken, called rough justice. This was not a case in which such a principle was at all applicable. They could not apply the doctrine of compensation here, as they did so beautifully in dynamics, so as by the contraction of one part of the machine to compensate for the dilatation of the other, and ultimately to produce a just equilibrium, a perfect and equable motion. That principle was not applicable in the present case. By doing manifest injustice to a great class of tithe-payers, they would not, in point of fact, be at all benefitting the Church, they would be defeating their own ends without serving the Church. Wherever in one place a reduction was made, the Church might suffer, but where by way of compensation to the Church more was required than the Church was fairly entitled to, they were unjust to individuals, and the influence of the Church would suffer from the wrong done in its name. He did not mean to enter into the question of the maximum or minimum propounded in the Bill, but he could not help calling the attention of the House to one fact—that, from many concurring circumstances, a great fluctuation was taking place in the value of the land: for instance, he believed there were applications this Session for at least forty or fifty railroads. Suppose them successful—he did not mean successful to the speculators, but suppose the applications granted, suppose them passed into law, and railroads established, would not the necessary consequence be, to cause a very great revolution, which it was not difficult to foresee, in the value of land? Had not the improvements of steam-navigation in Scotland made the greatest possible change in the relative value of land in that country? What would be the consequence of improved communication of land carriage by means of steam? It would be, undoubtedly, to diminish the disadvantages under which distant land at present laboured; to a certain extent it would, in point of fact, annihilate space, and bring into competition with land hitherto enjoying the monopoly of town supply, land situated at a greater distance, hitherto uncultivated in consequence of its situation, but which intrinsically, when cultivated, might be more valuable and productive, and, when steam conveyance was more rapid and extensive, would come into most formidable competition with 623 land, which, on account of its vicinage, now possessed the advantage of the market. What would be the bearing of all this on the produce of that land? It might hereafter become absolutely necessary to convert what to a considerable extent had enjoyed the monopoly of the market into pasture, or its produce might become greatly diminished in value. Now, was it not dangerous at once, in such a case, to apply the compulsory. principle, and estimate the value of tithe on the average of the last seven years, as a future inextinguishable, permanent, unvarying rent-charge on the land? Was there no danger that the parties in possession of that land might feel the utmost dissatisfaction with the arrangement they were now making, and protest that by acts which they could not contemplate, to which they were no necessary parties—namely, encouragements afforded to steam-communication, the value of their land had been materially reduced? Against those acts they might have no right to protest; but would they not have a right to protest against the assumption of an arbitrary value, to be fixed as the basis of a permanent charge in time to come? Those were matters which well deserved mature consideration. There was great advantage in the voluntary principle, the circumstances with respect to tithe collections were so different in places; even in the same parish there were frequently two or three different kinds of tithe to be collected. The value of vicarial tithe differed very much from rectorial, and the expense of collecting the one was different from that attaching to the other, so that it was exceedingly difficult to say beforehand what was the principle which they ought to apply to compel the commutation of both. It was much better, therefore, to call into operation in such circumstances the voluntary assent of parties,—that assent, which in all civil matters was of the utmost importance, and the failure of which was the only reason for the application of law, than at once, without experience, to apply a general compulsory principle. He hoped the noble Lord really intended to make some alteration in this part of the Bill. He did not mean, of course, by the voluntary assent of parties, because he admitted, even if a voluntary principle were determined on, so much of compulsion should be added, that a certain num- 624 ber of parties interested in a parish should necessarily bind the remainder, lest by an extreme rigid adherence to principle they should altogether prevent the completion of any arrangement on this subject. He was sorry to have been led into this discussion of the principle of the Bill. At the same time it was wise to anticipate the difficulties by which they were encumbered, and not to be betrayed by a general desire to effect an arrangement, the policy of which, if practicable, all would admit, into the adoption of a particular measure, which, hereafter finding it impracticable, it might be necessary to revoke. He would offer no opposition to going into Committee, and he would lend his best assistance towards perfecting the material details of the Bill; but, so great were his apprehensions with respect to the application of any compulsory principle, that he very much feared investigation in the Committee would not remove them. If, however, his fears were removed, if he saw that a compulsory principle could be applied to individual cases, so convinced was he of the policy of effecting an arrangement on this most important subject, that no minor difficulties would induce him to withhold his consent to it.
§ Lord John Russell
did not regret the discussion which had taken place, because when they came to consider the clauses of the Bill they might take advantage of the observations which had been thrown out, and their decisions, in consequence, he hoped, would be calculated to give a wider scope and efficacy to its provisions. His object in desiring the Bill to be committed that night was, that they might hear and have time to consider all those points upon which there was any difficulty, that they might listen to any practical suggestions, and adopt or reject them in rediscussing the matter after Easter, as might appear to be advisable. He agreed that it would be a great misfortune hastily to adopt a measure for the sake of its principle, which might afterwards be found so faulty in its details, as to aggravate the very mischief it was intended to remove. As to the question of a voluntary or a compulsory commutation of tithe, he considered the right hon. Gentleman had not fully answered the observation of his noble Friend, the Secretary-at-War, who stated that a measure to facilitate the voluntary commutation of tithes, con- 625 nected with one of an indefinite nature in prospect, to provide for the compulsory commutation of them, would tend to retard rather than to advance the object for which it was enacted. The right hon. Gentleman thought that if the terms on which it was intended that the compulsory settlement should proceed, were to be stated at the outset, it would be more likely to have that effect. He looked upon the matter in a different light. He believed that if an Act to facilitate voluntary commutation were passed, declaring that, if a settlement on that principle was not effected in five years, another Bill would be passed of a compulsory nature, people would be led to anticipate some advantages from that measure, of the principle of which they are left in ignorance, and would, in consequence, in the mean time, neglect those voluntary agreements which it might be in their power to make, perhaps really of a more advantageous nature to them than those which they would be compelled to enter into under the subsequent Act. On the contrary, if the legislators said, that at the end of a year, or a year and a half, if the voluntary commutation be not sooner made, power shall be given either to the titheowner, or to the tithepayer, to demand a settlement upon certain terms, as that the titheowner shall not receive more, nor the tithepayer pay less, than a certain proportion of that which is paid at present, the question then in the mind of the parties, would be simply whether the terms of the voluntary or the compulsory commutation were the most advantageous, and the commutation would be either made at once, or postponed accordingly. If the Bill were so framed as to meet the cases of most ordinary occurrence, the effect will be that the parties would not consider it worth their while to wait any considerable time for a settlement equally desirable to each of them, to be effected under the command of the Legislature, and which they might enter into of their own accord, and without a moment's delay. He thought, therefore, if at the time of passing the Act for voluntary commutation the principle were stated upon which the future compulsory commutation was to be effected, it was more likely that a general voluntary commutation would take place, than under the plan of the right hon. Gentleman. The consequence of leaving all parties at liberty to enter 626 into a voluntary commutation, without providing for an ultimate compulsory commutation, would be, in his opinion, as he had before mentioned, and he had not heard any argument to induce him to alter his opinion, that everything short of forcible resistance would be resorted to by the tithepayers to reduce the amount of the tithes to the lowest possible farthing. He might mention in proof of this, that he was not long since discussing this matter with a farmer with whom he was well acquainted, who told him that his tithes amounted to 2s. 9d. per acre. He then said to the farmer, "This is certainly less than I supposed you to pay, and I must confess that you will pay more under this Bill; how is it that you pay no more than 2s. 9d. per acre, when the average value of the tithe is not less than 6s. per acre?" The farmer said, in answer, "The fact is, that in our part of the country, we thought the Church got too much, we therefore battled the matter with them, until we thought they would reduce the tithe no lower, and then we came to a determination among ourselves to pay them no more than we do." This was the sort of conflict which would be carried on throughout the country, and the clergy it was to be feared, as in this instance would lose by the contest. Some persons said, that to give the clergy sixty per cent of the gross produce, by way of commutation, was too much, because the cost of collection, when taken in kind, amounted sometimes to fifty per cent. He had also heard it declared, on the part of the lay impropriators, that in some cases the cost of that collection was not more than ten per cent, and, therefore, to reduce them to seventy-five per cent, under a compulsory commutation, would be the greatest robbery imaginable. It was plain, and it was perhaps one of the greatest evils attendant upon the present tithing system, that, whilst the lay impropriator might demand and receive his ninety per cent of the gross produce, the clergyman was prevented from making a claim to the amount of sixty, on the ground that what he might gain by it in point of income, he would lose in that moral and religious influence which he must endeavour to maintain among those from whom his tithe was to be collected. That was one of those grounds, on which,—as well for the sake of justice as for the interest of the country at large, involved as 627 that certainly was in a satisfactory settlement of the tithe question, he was most anxious that a Bill should be passed providing for a compulsory settlement of the question. With respect to the terms on which the Bill proposed to make the settlement, he had certainly heard many objections, but he agreed with the hon. Member for Cumberland, that it was more easy to make objections than to devise remedies, to point out the difficulties attendant upon a plan of this nature, than to indicate a course exempt from them; and with the exception of the suggestion made by the hon. Member himself, for which both the House and the Government were much indebted to him, he must say, that he had not yet heard any practical substitute for the provisions of the measure before the House proposed by any hon. Member. The plan he had most frequently heard proposed out of the House, had been, that a certain proportion of the rent should be taken in lieu of the tithe of the produce; but that was a plan which could not justly be adopted. It had been proposed by some one, that that proportion of the rent should be one-sixth. In examining a witness the other day before the Agricultural Committee, he had asked him what rent he paid, he said 14s. per acre, and, in answer to another question, he said that the tithe was 5s. 6d. per acre over the whole of his farm. Stronger instances than this might be mentioned, but he would ask the House whether it would be consistent with justice to reduce, as in this case, the tithe from 5s. 6d. to 2s. 4d. per acre, in order to make it square with this compulsory proposition of taking the tithe at one-sixth of the rent? and there were hundreds of instances in which the injustice would appear still more glaring. It had been mentioned to him that, in many instances, tithes had been commuted into a portion of the rent, or a portion of the land; but if such instances were more numerous than they are, they could afford no data upon which to proceed in establishing one general compulsory principle. It was one thing for two parties to agree upon such a commutation as that, and another for the House to sanction it, and adopt it as a general principle, by which all parties should be bound. Suppose one man owed another 100l., and the debtor said to the creditor, "I am not able to pay you the 100l. in money, but I have a 628 horse and gig, which you may take in discharge of what I owe you," this might be a fair equivalent, and one which the creditor would be willing to accept under the circumstances; but it would be a very different thing, if he were compelled by Act of Parliament, to waive his right to the 100l., and take the horse and gig in lieu of it; and that would be precisely the injustice the House would commit, if they were to sanction a particular commutation of tithe entered into voluntarily by both parties, and lay down a principle from it to which every titheowner and payer in the kingdom should be bound to adhere. If, then, they set aside any such modes of determining the question as these, they must come, he thought, to something like the principle of this Bill, He did not say that they were to agree to it in all its details, but that they must adhere to its principle; because the produce of the land was that in which the right of the tithe-owner was vested; and when he was told by the hon. Member for Cumberland, that the produce for the last few years might be so great as to afford no fair criterion of the average produce, he answered, that the matter with which they had to deal was tithe or produce; and the time at which they had to deal with it was the present time; therefore, if they wanted to determine upon an equivalent for it, they could have no other criterion than its value for a certain number of years recently past, which being ascertained, they could only determine upon a certain portion of that value, 50, 60, or 80 per cent, as the amount of the compulsory commutation His hon. Friend, the Member for Cumberland, had observed, that if this principle were laid down, there were many cases in which it would bear very hard upon either the tithe-owner or the tithe-payer. He did not deny the fact; he acknowledged it to be one of those objections to the Bill which it was easier to make than to obviate—the difficulty which attached itself to the very nature of tithe commutation; but they must look at the general advantages to be derived from the commutation.—What was the testimony of men of science and intelligence upon the subject of tithe? It acted as a bar to improvement, which one general and uniform principle of com-mutation would effectually remove. At present, if a man laid out his capital upon land, and increased the produce of it by that means, whether he himself were a 629 gainer or a loser by the outlay, the tithe would be increased in proportion to the increase of the produce; but the commutation being once permanently settled, the owner of the land might lay out his 5,000l., or his 10,000l. upon it, increasing its general value and fertility, without being subject to any additional charge. The measure which effected such a commutation, removing that which was at present a penalty upon improvement, became a bonus and an encouragement to those who were disposed to employ their capital in fertilizing and improving their land. But, notwithstanding that fact, it had this disadvantage, that a person who had overworked and overploughed his land during the last seven, ten, or twenty years, would have to pay according to an amount of produce, which the land would not afterwards yield, and this would be, to him, a very burdensome tax. If the House should think proper to remedy this defect, perhaps it might be done by a plan suggested by Lord Spencer the other evening, when he was mentioning to him the heads of this Bill—that of charging the land, according to the criterion of every five years' produce, the owner of the land having the power to demand a fresh award; but this also was attended with its disadvantage: because it could not well be done without empowering the tithe-owner to require a change also, and to say to one farmer, "You, during the last five years, have changed your land from grass to arable, and as I am losing by your neighbour, who has changed his land from arable to grass, I must have an equivalent from you." Such a measure, instead of making a permanent settlement of the question, would cause it to be agitated from time to time; the improvement of the land would be equally impeded by the power given to the landowner, of increasing or diminishing the tithe according to the tithe payer's manner of cultivating the land. Then there was the plan of parochial commutation, proposed by his hon. Friend, the Member for Cumberland, which, he said, would be found in practice to work well; but he was inclined to doubt it. I should think, if the various tithe-owners and payers in a parish were brought together to decide upon a mode of settlement as against themselves, they Would be more likely to fall into dispute, and quarrel, than to come to any agreement. But he believed that the plan might be modified in this way: that where 630 no satisfactory applotment could be made between the parties in a parish, the Tithe Commissioners should be appointed as arbitrators to settle the matter, and that their decision should be conclusive.—Whatever might be the determination of the House upon these matters, there could be no doubt that if we were disposed to adopt any measure for the commutation of tithe, it must proceed upon the principle, that the agricultural produce of the country, under proper cultivation, was likely much to increase in quantity. If it were said, indeed, that it had been greater for the last seven years than it was likely to be in the seven to come, a measure for the commutation might be altogether inexpedient; but, he said, agricultural knowledge and skill had for many years past, greatly increased, and no prospect of its declining. He did not know why the art of cultivation should not increase with the increasing demand caused by the increase of people, and the prosperity which attended our manufactures and trade.—It was very certain that, owing to the improved agricultural processes of modern years, some parts of the country were cultivated with much greater skill, and much greater productiveness, than others; and consequently there must be large portions of land which had yet to be brought up to this improved standard of cultivation. It would undoubtedly be a great advantage to all who were employing their capital and their skill in the cultivation of the soil, taken as a body, to be subject to the payment of a fixed and certain amount, which could not be enhanced by the tithe-owner, instead of one liable to augmentation. At the same time, however, he must observe, that he despaired of being able to frame any measure for this purpose, from which some individual cases of hardship might not result. He should, therefore, go into Committee prepared to listen to every suggestion, with a view of obviating all such objections of detail as far as it was possible. As to the general principles of this Bill, however, he must say, that he considered them to be such as would do justice to both parties. He had not heard that the clergymen throughout the country had complained of the measure, though in some cases it took away forty per cent from their tithes; on the contrary, he believed it was a settlement which they were inclined to accept. At the same time he believed that the measure would not be a hardship upon the tithe-payer, but, on 631 the contrary, looking at the general reduction it would give, and at the advantage of limiting the payments, the tithe-payer ought to regard it as a very great boon.—He had certainly heard some complaints made, but to an extent that he hardly gave credit to, as to the amount of deduction which should be made. He was inclined to think, that if the Bill, on its present principles, were adopted, it would be found to confer a great benefit upon the landowner, the titheowner, the cultivator, and the country at large. That being his opinion, it was undoubtedly his intention to proceed with the Bill. He did not intend to hurry it; he would have the details of it amply discussed, and the opinion of the House most fully expressed—convinced as he was, that the Government had done its duty in bringing forward a measure specific, just, and beneficial to all parties.
§ Sir Edward Knatchbull
thought there would be more cases of hardship than the noble Lord had anticipated. If the noble Lord meant when he said that agriculture was likely to advance that the more highly cultivated lands in England, and those lands in Ireland which would doubtless speedily be brought into cultivation, would be sufficient to meet the demands of our population to whatever extent it might increase, he fully agreed with him. But what then was to become of the inferior soils under such competition? They would be thrown out of cultivation, and how would it be possible for them to pay the amount of tithe permanently fixed upon them by this Bill, on an average taken on the basis of their present value? There were many other points to which he would refer at the proper time. At present he would only say, that whatever the result of this Bill, and whatever the result of the Bill of his right hon. Friend might be, nothing could be more gratifying to the House and to the country than that this important question should have been brought forward and discussed as it had been, so wholly free from political or party bias. His noble Friend, (Lord John Russell) had failed, in rebutting the objections which were urged against his Bill at an early stage of the debate, by the hon. Member for Cumberland (Mr. Blamire) in the able and lucid speech for which the House was so much indebted to him. In the views of the greater part of that speech he cordially concurred. It was true, that a commutation on compulsory principles was abstractedly the best; 632 and he was in favour of it,—because it would at once and for ever put an end to the jealousies and heartburnings respecting tithes; but if, by any erroneous calculations or false notions of right, the tithe-payer, were saddled in perpetuity with a charge that might absorb all the profits of production; if the probable result of a compulsory Bill, were to lead to great and glaring injustice; then, indeed, however, anxious for a compulsory commutation, he would rather bear the present ills of the system, than run headlong into a change that might increase them tenfold.
§ Mr. Cayley
approached the present measure, or any measure of a similar nature—unless it were voluntary in its principle, with the deepest distrust and apprehension of the result. He was not only diffident of his own powers to decide this question equitably for both parties, but he was doubtful of the data on which others proposed to decide it. There could be no dissentient voice as to the principle of commutation of tithe; its object was to relieve the tithe receiver, especially if he was a clergyman, of an obnoxious and invidious and most unpopular mode of collecting an ecclesiastical revenue. It released capital to be hereafter invested in the soil from being taxed in the ratio of one-tenth of its gross returns. The difficulty in the question was, how to arrive at correct data upon which to ground a just arrangement. He was averse to any plan of reduction which amounted virtually to a release from the payment of tithe; he was equally averse to enhancing a customary payment, or perpetuating a charge on a temporary system of cultivation, to such an extent as involved confiscation. There were various opinions as to the origin and real legal claim of tithe. Authorities of equal weight differed in opinion. One said that the claim was one-tenth of the produce, another that it was one-tenth of the land; and he believed that Justice Wray had laid it down that every tenth laid in a field should be for the tithe-owner, and that the farmer might cultivate it as badly as he pleased. Into this question he should not enter. They could not go so far back. Latterly, decisions of Judges, he believed, had been more in favour of the tithe-owner than the tithe-payer. Whatever might be considered the law upon the subject, common sense and common justice had, in ninety- 633 nine cases out of a hundred, protested against one-tenth of the produce being exacted of the latter, especially when, perhaps, three-fourths of the produce might have been the offspring of the capital of the occupier, and only one-fourth the produce of the natural fertility of the soil. He believed in no other country in the world was one-tenth of the produce taken as the test of the tithe. It could never have been the intention of the original devisors or imposers of tithes that they should tax labour—the most sacred of all kinds of property. However, a middle course had been for the most part pursued; agreements, real or implied, had been made between the tithe-payer and the tithe-receiver generally, on the basis, although the terms were various, of a composition at a certain rate. The cultivator, before he invested his capital, stipulated that only a limited increase should be made in his tithe, otherwise he refused to improve the land. Whatever increase there was, would be an advantage to the tithe-owner; and so, rather than lose this advantage, he would consent to abridge his claim of tithe; and on the faith of this, the capital was invested. The tithe on a farm which at its full value was only worth 30l. a-year, might thus be raised to 40l. the composition; although the full value, from double produce, would be 60l. Would it be fair to raise this? He contended, it would be the grossest injustice. Where agreements had not been made in limitation of the full tithe, and the system of improved tillage was only temporary, it ought not to be liable to a permanent charge. The only fair basis of commutation was customary payment, and customary tillage, or customary arrangement. There might be instances where customary payments were very high; that arose from the tithe-payers not being aware of the power in their own hands to thwart the tithe-owner. There were powers on both sides, which, in districts where the question had been agitated, were well known to both parties. The tithe man could take in kind, the cultivator could change his crops, and grow such as were of less titheable value. A clergyman in the county of Durham demanded increase of tithe from a large coal-owner; he met his demand by shutting up the coal mine in that clergyman's parish, and opening one in another; so that the tithes were all gone. He did not advocate such a 634 principle, but gave it as an illustration of the power which was possessed on the one side as well as on the other. It was on account of this power on each side, by the exercise of which both, probably, would be losers, that an amicable arrangement was entered into. With such arrangements or compositions, Parliament ought not to interfere, unless to sanction them, or to afford means of arbitration where, with low prices, they absorbed all profit. The fault, the crying fault of his noble Friend's Bill was, that it went to disturb the proportions of those compositions. He, therefore, feared he could not give the Bill—for the whole Bill was contained in the provisions of the Clauses twenty-eight and twenty-nine—his support, unless the limit or minimum of composition was taken away. The noble Lord might say, that the tithe-owner could claim in full, and that it was unjust to him to allow of more than forty per cent, reduction. His answer was, that the reduction to forty per cent, was a concession to the habit of the country and to customary payment, and that he had forsaken hi3 general principle in reducing the tithe at all, except for mere charges. And glad he was, that the noble Lord had forsaken the general principle, for it was the worst of all legislation to stand out for abstract rights and general principles in defiance of vested interests and common usage. Lord Althorp's second Bill went to ascertain the proportion between rent and tithe; and henceforward tithe was to fluctuate with rent, but retain the old proportion. That was much simpler than the present principle, and much more just, inasmuch as it laid down no limit to adjustment on customary payment. At the same time, it was faulty to a certain extent in principle, as continuing the tax on capital. He had given his noble Friend's Bill his best attention, but he could not sanction the limit on the minimum of composition. It would operate as confiscation; and we had had enough of confiscation of landed property in one generation. It would be with the greatest pain that he should feel himself compelled to go against his noble Friend's plan; he trusted he would see reason to alter it in Committee; for sure he was, the country, when it became fully aware of it, which at present it was not, would revolt against it. The Morning Chronicle had already sent out a very able article on its injustice. A certain bonus 635 was held out, that all compositions over seventy-five per cent. should be reduced to that extent. This was, in his opinion, a mere nominal advantage in the Bill, for \ few he believed were so high as that. He could not understand either, why the Clause twenty-eight should not be on the same principle as twenty-nine:—twenty-nine related to composition, and was to be reduced to seventy-five per cent; twenty-eight related to collecting in kind, and was to have no reduction, but the ordinary charges. We must not forget that much land at present prices could not be tilled, and must either go to grass or to waste, in which cases the value of tithe would be reduced. Then the Corn-laws might be altered. He repeated, that the only equitable mode of adjusting this question was, by taking at least not more than the customary payments and customary tillage as the basis, so far as proportion was concerned. The actual money payment would, of course, vary with the price of agricultural produce. Here again he objected to the last seven years being taken as a test of prices, as well as a test of arrangement. It was only about two years ago that they had reached the bottom of a level which they must preserve, in consequence of the change in the value of money. The next five years, added to the last two, might be a fair basis; but certainly not the last seven. It was but fair to look, in some respects, favourably on the case of the tithe-payer. The increased expenses of cultivation, since the war, fell upon him; the tithe-owner, in the main, was free from these. There was a case given before the Agricultural Committee, when, prices being about the same as in 1790, the surplus for rent and profit on a large farm, in 1834, was only 330l. per annum, whereas in 1790, it was 851l. Now, supposing the tithe was at each period 150l.—and it would be about the mark—in the former time, it would be less than one-fifth of the profit and rent; and in 1834, it would be one-half. This showed how heavily tithe now pressed; indeed it might absorb all the rent in extreme cases. Even his noble Friend himself, in the Committee of 1833, he remembered very well, had contended that, according to the evidence, the usual payments for tithe had varied from fifteen to fifty per cent. reduction of the tithe in kind; and he contended that it would be confiscation to raise it from fifty per cent. 636 If he remembered rightly, his noble Friend was Member for Devonshire then—he wished he had remained so; he must acknowledge, however, that, in introducing the present measure, the noble Lord had been perfectly candid in stating the difficulties in the way of a satisfactory adjustment of the question, and even threw out a doubt whether the voluntary Bill of the right hon. Baronet might not be more acceptable. It had appeared to him, that the most legitimate way of arriving at a sound conclusion as to the data on which to proceed with a commutation was, to ascertain what proportion was allotted in private Inclosure and other Acts in lieu of tithe for a length of time back. Since 1757 up to 1830, he found that two thousand private Acts of this nature had passed. Here was an extended basis for legislation. He had, therefore, moved for the following return, which had been ordered, viz.:—"Return from the Inclosure and other private Acts, in which provisions are included for the Commutation of Tithes, of the proportion in land, yearly money payment, or corn rent, allotted in lieu of tithe, distinguishing the old inclosures, the open field land, and the Commons, and the proportion for tithe allotted in the case of each of such description of lands." These returns would show what was the customary value of the tithe in the estimation of both the payer and the receiver. Latterly, he believed, the proportion had increased; whereas, in justice, it ought to have decreased, considering the increased expenses of cultivation. The fairest way would be to take an average of the whole period with respect to proportion. This would be found to be, if his information were correct, about one-fifth of the land in open field, one-seventh in the old inclosure, where the cultivator had the power in his possession of changing from tillage to grass, and one-ninth of the commons. But a proportion of the land was not so valuable as a proportion of the rent, because the latter was clear of all repairs and other such expenses. He hoped this return would soon be on the table. Some such knowledge would be the best basis to go upon. Each party had had the power to resist and refuse assent, and, therefore, it might be fairly argued that a just compromise had been come to between the parties. If the noble Lord persisted in his Bill and carried it, he knew cases where the tithe would be 637 raised by it from 3s. 6d. to 7s. or 8s. per acre; and this where the composition had been last made, even under the high prices of 1810. If the Bill was not altered, he saw no alternative but for the landed interest to take shelter under the permissive Bill of the right hon. Baronet, the Member for Tamworth. He could not be said to be attached to Bills generally wearing that right hon. Gentleman's name; but as far as he had been able to see into the operations of his Bill, only a few days ago, he must say that it appeared to give great facilities for a voluntary commutation. He wished he would reserve the second reading of it until they could ascertain how far the present Bill could be modified; and then, under disappointment, they might claim protection under his voluntary Bill, which could, at least, work no injustice. If there had been the permissive Bill before, instead of 2,000 parishes commuting, we should have had probably 10,000 out of the whole 16,000, or some such number of parishes, already commuted. They had been prevented by the expense of a separate Act of Parliament. The best he expected from a measure of this kind—whatever advantage might accrue to new capitalists—would be to protect the old possessors from an enhanced rate of payment. He sought no undue advantage over the tithe-owner. The agriculturists were deeply distressed; they were sitting up stairs with the avowed object of discovering some mode of relief; it would be insanity to pass a measure which, in its unjust effects, might more than counterbalance any relief that could be afforded. He only feared that the expectations of the tithe-owners might have been so raised by the benefits which would accrue to them from his noble Friend's Bill, that they would no longer listen to reason and fair terms, even under a voluntary Commutation Bill. The landed interest, as a body, were better without any Bill at all than with the noble Lord's, as it at present stood. It was no advantage to the country generally, merely to release new capital from the tax of tithe, if the old capital invested in the soil were to be offered up a sacrifice to it. The case was full of difficulties; it was with the utmost diffidence he offered any opinion upon it. At present, he confessed he saw no equitable and safe way out of the difficulties but the voluntary principle, at least as a preparation for ulterior mea- 638 sures, although his mind was open to any suggestion that might offer itself.
§ Mr. Benett
said, his hon. Friend was mistaken in what he said respecting the average of the last seven years, as the payment, though fixed, would bear a relative proportion to the current produce and value. As to what he said about customary payments, nothing could afford a more uncertain test. He knew one instance, in Wiltshire, where a man paid a composition, for forty-five years, of 300l. per annum; and, on the death of the incumbent, the tithes were again valued, and were only valued at 180l. per annum. And he knew another case, in Dorsetshire, where a farmer had paid only 120l. for tithe under a voluntary agreement, and when that was terminated they were valued at 246l. Thus it would be seen that the voluntary agreements between parties, in this way, would afford anything but accurate data on which to found a general compulsory enactment.
was understood to say, that, while he was anxious for an equitable adjustment and final settlement of the tithe question, he could not but admit that there were strong objections entertained against the present measure. The injury resulting from the project of taking the estimate from the last seven years, would extend over a larger share of England than the noble Lord imagined, and the discontent would be in proportion. Against the plan of taking the estimates from the last seven years he begged to enter his protest; and he hoped there would be introduced some modifications in the Bill, to render it palatable to the country.
§ Mr. Wrightson
thought that the experience derived from Inclosure Acts was fully sufficient to found at once a compulsory system on. At the same time he did not think that the present measures had not the proper medium. To the twenty-ninth clause, which contained the principle on which the commutation was to be effected, he strongly objected, and he should prefer the voluntary Bill of the right hon. Baronet (Sir Robert Peel) to the present measure, if that clause were retained unaltered.
said, the principle of voluntary commutation was adopted in many cases, and was found not to have worked well. He thought the principle of compulsory commutation was the only good 639 one. Most of the objections urged against the Bill were only applicable to the details, and therefore he would not, at that stage of the Bill, enter into them. He thought the present an improvement on the former plan.
§ Viscount Ebrington
said, that his opinions on this question had been strengthened by what he had heard. Whatever might be the fate of this or any other measure brought forward on the subject, the country would at least see that the question was fully discussed, and that there was a desire on both sides of the House to do something effectual in the matter. He felt obliged to the right hon. Baronet for what he said, and he agreed with the right hon. Baronet, that no measure founded on the voluntary principle would be attended with any great benefit. Indeed, it appeared to him to be almost impossible to frame a measure on any one principle, which should be applicable to the whole of the kingdom. All the measures which had been brought forward in this House for the commutation of tithes had hitherto proved unsatisfactory; but of all the measures which had been brought under the notice of Parliament on this question, that which appeared best calculated to effect a practical compulsory commutation was the Bill introduced by Lord Althorp in 1834. Now, there was a very great objection to the principle of that Bill, and being aware of the objections urged against it from many quarters, he was convinced that it was quite impossible for Government to carry such a Bill through this House. He trusted his noble Friend (Lord John Russell) would endeavour to effect a compulsory commutation upon fair grounds; but he was afraid it would be found impossible to frame a measure upon certain fixed principles, so as to make it generally applicable. For instance, the minimum of sixty per cent, which this Bill proposed to give to the tithe-owner, might be just as respected other counties in England; but with regard to the county which he had the honour to represent, it would raise the value of tithes, which, partly from forbearance on the part of the clergy, and partly from local circumstances, was lower there than in the other counties in England. There were other circumstances which operated in Devonshire against the tithe-payer. A large quantity of pasture land had been brought under the plough. This had 640 increased the burdens on the tithe-payer; and, when taken in connexion with the recent depression of prices, had tended greatly to increase the difficulties under which the agriculturists of Devonshire had been labouring. It had happened, too, that the amount of tithe had increased; in many instances, just as the means of payment had diminished. The great pressure of the tithe in some places, caused the strong desire which generally prevailed in that county for some commutation. If any plan could be devised, by which tithes could be commuted on fair and just principles, no man would be more desirous than he should be to see it carried into effect; for there was nothing which would give greater satisfaction to the country at large. He was aware, that it was a subject attended with great difficulties, and he should be willing to exert himself in order to overcome them and settle the question.
§ Mr. Lennard's Amendment was withdrawn, and the House went into a Committee on the Bill.
§ On the 1st Clause—
§ Sir Robert Peel
said, that the party who drew up the Bill seemed to have paid very little attention to accuracy. In one clause it was stated to be a Bill for England, and in another a Bill for England and Wales. He should like to know from the noble Lord, or from the Attorney-General, to what section of the empire, England alone, or England and Wales, did the Bill apply?
§ Lord John Russell
said, the Bill was to apply to' England and Wales; and the word England alone was used, as he understood that England included Wales.
§ Mr. Arthur Trevor
inquired whether the two Commissioners who were to be appointed by the Secretary of State, would be members of the Church of England?
§ Lord John Russell
was understood to say, that as the appointments emanated from the Crown, that was a sufficient guarantee that they would be properly bestowed.
§ Mr. Cayley
wished to ask from what class of persons these Commissioners were to be selected? Were they to be of the same sort as the Poor-Law Commissioners? He thought they should be acquainted, not only with law, but also with the nature and value of cultivated land.
§ Sir Robert H. Inglis
hoped that the interests of the Church would be attended 641 to in these appointments. He wished that the answer of the noble Lord (Lord J. Russell) to his hon. Friend, the Member for Durham, had been different. It was but fair to ask, that where the property belonging to the Church was so much concerned, its interests should be carefully attended to in the appointment of those who were to arbitrate to so great an extent as to that property.
said, the principle which claimed that the Commissioners should be of the Established Church because the Church was one party to the contract, would go to prove there should be one Commissioner a Catholic, and another a Unitarian, because both these opinions existed among the parties on the other side.
§ Sir Robert Inglis
said, whether the hon. Member for Hull meant it for wisdom or for wit, there was little to surprise in the fact of such a suggestion originating in such a quarter.
§ Clause agreed to.
§ On Clause 2nd—
§ Mr. Arthur Trevor
said, from the reply his question had received from the noble Lord, he felt it imperative upon him to press on the House the amendment of which he had given notice upon this clause. It was evident, as the Bill stood, that the two Commissioners to be appointed by the Secretary of State, might be of any sect—Unitarian, Roman Catholic, or, in short, any person whatever. Now, though, in the opinion of hon. Gentlemen opposite, this discretion might be deemed a fitting discretion, he and other friends of the Established Church looked upon it with fear and apprehension. The remedy he proposed was this: the Archbishop of Canterbury was to have the appointment of one Commissioner; and, as there was no reason to apprehend that he would not appoint a member of the Church of England, it would be well to provide that, in every case in which the interest of the Church was affected, a casting vote should be given to the Archbishop of Canterbury's Commissioner. The effect of this precaution would be, that no decision could be come to unless it had the sanction of the Archbishop's Commissioner [laughter.] He was not surprised his proposition excited laughter from the other side of the House. Unfortunately, it was in the present day a 642 bold deed to stand forward as the advocate of the Church of England; but, despite of taunts or ridicule, he was determined to do his duty towards that Church by supporting its interests. The hon. Member concluded by moving that after the words "No Report of the Commissioners shall be of any force," there be inserted the words "unless it be sanctioned by the Commissioner of the Archbishop of Canterbury.
§ Mr. Richards
said, his hon. Friend, he was sure, would give him credit for being favourable to the Established Church, but he could not support the amendment his hon. Friend had introduced. In his opinion, it would not even bear discussion; he earnestly entreated him, therefore, to withdraw it.
§ Mr. Edward Buller
The hon. Member had professed to bring forward the amendment from a regard for the Church. In his opinion, it would be considered only as an expression of suspicion and distrust against the Dissenting portion of the community. The House must remember this Bill involved a question of property; and he put it to the House to say whether an honourable Dissenter of that rank in which it was likely those persons would be who would be selected for this purpose, would not deal quite as fairly with that question of property as any Churchman?
§ Clause agreed to.
§ On Clause 12, "Owner of land and tithe may contract for a commutaion"—
§ Mr. Greene
rose to move an amendment. He objected to the principle of allowing individual commutation. He thought it would lead to great inconvenience and great inequality; and, in some cases, to the grossest injustice. The substance of his amendment would be this: that an individual should not have the power of commuting his own particular tithes, but that the consent of the whole parish should be required.
§ Mr. Edward Buller
considered that this clause involved one of the most important questions which the House would have to decide. It involved the question of individual and parochial commutation. The Bill of the right hon. Baronet, the Member for Tamworth proceeded rather, upon the principle of parochial; the Bill of the noble Lord, the Secretary for the Home Department, favoured 643 the principle of individual commutation. He himself believed immense advantages were on the side of the former. The first object of course under this Bill would be to ascertain the right of the tithe-owner; this right he believed would be far easier ascertained by allowing the tithe-owner to state the average receipts in gross on a whole parish, than to prove his right in many individual cases; particularly when, as might and would indeed certainly often happen, there had occurred a change of occupancy, or when a person held under two landlords. Again: where the rights of the tithe-owner were brought forward in gross before the whole of the parishioners, there would be more likelihood of their agreeing to any reasonable proposal, the majority binding the rest, their decisions would not be obstructed by the obstinacy of individuals; and there would be less personal collision so desirable to be avoided between the clergyman and his flock, on the other hand he believed there could not but be great difficulties in the other mode of commutation: and the Commissioners in London would have all the trouble, and the same time and labour and expence would be incurred in sending down Assistant Commissioners to inquire into the tithe of a particular individual as if of a whole parish. He felt inclined therefore for these reasons to support the Amendment of the hon. Member for Lancaster.
observed that it appeared to him as this Clause and the following then stood that occupying tenants, for instance under a lease for seven years, which must be nearly expired, would have the right of binding the inheritance for ever, with the sanction of the Commissioners without the consent of those really interested in the land. That surely could not be the intention of Government.
§ The Solicitor General
said, such undoubtedly was not the intention of Government. It was their intention only to give the power to those who were really the owners of some portion of the inheritance: either the owner of the estate or the tenants, under church leases, leases for renewals, or for lives, who, as his hon. and learned Friend was aware were considered in the Courts of Equity as having a permanent interest in the soil.
Sir, it appears to me, that on this clause there are two important and distinct questions; first, what is the 644 class of persons to whom certain powers shall be intrusted? Next, whether, having agreed as to the persons, it is fit that those powers should be intrusted to them? With regard to the first, I agree with my hon. and learned Friend near me (Mr. Pemberton), that under this clause, coupled with the interpretation clause, occupiers, for whatever term, paying less than a rack-rent; i. e., as interpreted by the next clause, occupiers for less than three-fourths of the improved value of the land will be competent, as being included in the term "as owner," to make a bargain; which, with regard to its permanency, ought only to be made by a person having a permanent interest in the soil. If we are agreed upon this point, (as I believe we are), it will not be difficult to come to some terms which will convey our meaning; which is, if I understand, the opinion on both sides of the Committee, that only persons having a permanent interest in the soil should have the right of binding themselves and their successors. Now, we come then to the next point. I am of opinion that it is desirable, more especially if we desire to encourage voluntary commutation of tithes, that we should not limit too strictly mutual agreements, in the first instance, to parochial agreements. Under the first part of the clause, as it now stands, any gentleman having a permanent interest in the land is to have the power of agreeing with the incumbent for the amount to be paid by him in consideration of tithe during the period of that incumbency. Then, under the latter part of the clause, persons having a certain power of inheritance in the land, shall be entitled to make that agreement binding, not only upon him, but upon his successors; in the case of the incumbent, not without the consent of the patron or ordinary—in the case of persons not having a certain estate in the land, not without the consent of the Commissioners. Now, I am rather doubtful whether, even with the consent of the Commissioners, parties not having a certain interest in the land, a permanent interest, ought to be allowed to make an agreement binding their successors. But, again, there was a question raised by my hon. Friend, the Member for Lancaster, whether in the case of a single individual having an interest in the land, though an interest less than three-fourths of the whole value of the tithe-land in the parish, should be empowered 645 to agree for himself and successors with the incumbent, with the consent of the patron or ordinary. I am inclined to think that in this case, the case of persons having a fee-simple estate, it would be beneficial to depart from the principle of parochial agreement, and to allow that individual, on his own behalf, to make his commutation without the consent of the parish generally; for I cannot understand why an individual should be bound down by the decision of a majority in his parish, so as to be prevented from entering into an agreement, which Parliament is desirous of sanctioning. At the same time, it is my opinion that it will not prevent parochial agreements being afterwards entered into; on the contrary, if all the landowners in a parish were to see the beneficial effect produced in the case of an individual commutation, its tendency would be, not to discourage but to encourage it; every other landowner being impelled to it by the example of his enterprising and successful neighbour. Now, Sir, some hon. Gentlemen say, "don't encourage individual commutation; if you do, look at the want of uniformity you will produce—one individual in a parish commuting, and another not." Why, Sir, the very same argument will apply to counties. "Look, what an unequal, what a checquered system you introduce. In one parish the tithes are commuted, in another the old system prevails. In one hundred the tithes are commuted, in another not." Seeing, therefore, that this argument may be as justly carried out in respect to counties as with respect to parishes, I am, on all considerations, disposed to agree to this clause, so far as it enables a person having a real interest in the parish to commute on his own account with the tithe-owner, having the sanction of the patron and ordinary, or of the Commissioners. But I am not disposed to extend the interpretation of the word "owner," as it is proposed to be extended, so as to allow any person, not having a permanent interest in the inheritance, to make a commutation binding upon his successors, even though made with the consent of the Commissioners.
§ Mr. Cutlar Fergusson
deprecated the injustice of preventing an individual willing to commute from commuting, without the consent of the majority of the parish.
§ The Solicitor General
said, with regard to the objection against allowing commu- 646 tation by any except the absolute owners of the estate, it should be recollected how impossible and unjust it would be to throw upon the tithe owner the burden of finding whether the person with whom he was treating was possessed of the absolute fee-simple. That was only one of the inconveniences which would result from such a restriction. He admitted the Clause was somewhat erroneously framed; and that as his hon. and learned Friend, the Member for Ripon had pointed out, it might include more than was intended by the Government to be included. At the same time he could not consent to make the clause nugatory, by requiring an absolute ownership.
§ Sir Robert Peel
the Clause under consideration allows any owner of land, and any owner of lithe, to contract with each other. It would therefore appear that the owner of land, part of which is subject to rectorial and part of it to vicarial tithes, might, if the owner of the former consented, contract with him, and that with the consent of the patron or ordinary, that contract might be made a permanent one. In the 17th Clause, it is enacted, that "to every agreement that shall be entered into for the commutation of tithes, pursuant to the provisions of this Act, there shall be parties the owner of the land whereof the tithe is proposed to be commuted, as also every owner of any tithe arising from, or out of, any such lands?" Now I ask, is it intended that a party holding land subject to two descriptions of tithe, may contract with the owner of one description of tithe? [The Solicitor General. Certainly not.] Then what is the meaning of the words in Clause 12, "the owners of any land and the owner of any tithe may contract with each other?" How is it possible to reconcile the 17th Clause to the 12th Clause. It appears to me that individual commutation of tithe by voluntary agreement, will open the door to great abuse: it will produce, first a greater want of uniformity than at present exists. In the same parish you may have tithe-free land, the tithes of which are commuted under the system of individual voluntary commutation, and land subject to the payment of tithe in kind; thus not attaining that object so essential to the settlement of this great question, uniformity, You will have every variety of tithe, and consequently every mode of recovery 647 adapted to the different descriptions of tithe to be recovered. Then, as to individual award, which should be connected with the consideration of individual commutation by agreement. I think you ought not to give an individual the power of inflicting the inconvenience and the expense of the complex machinery introduced by this Act for the settlement of his particular tithe. But the most important question under this Act will be the question of jurisdiction; how will you provide for the recovery of the different portions of the rent-charge to be paid by each individual landowner; how will you; for instance, in the case I have just put, provide for the recovery by the rector and the vicar of the different portions of tithe?
§ The Solicitor General
—The parties agree: say the Rector for 30l. the Vicar for 15l.; well, then each of them will have their rent-charge to those distinct amounts.
§ Sir Robert Peel
But there is no distinct provision for the mode of recovery of their tithe or that such agreement shall be necessary; and I see great difficulty in the way of settling that point as the Bill stands.
With respect to individual commutation by agreement, I confess I do not see so much difficulty in the way of general parochial agreement, yet, as the consent of each party is necessary, if you combine the consent of the rector and vicar, I am not disposed to offer any opposition to the clause at this period.
§ Sir Robert H. Inglis
concurred with his noble Friend (Lord Stanley), that voluntary individual commutation would lead to general commutation through the parish, and that the clause as it now stood, limited by the word "owner," would meet the necessities of the case.
§ Lord John Russell
I think that as to the mode of recovery: there will be no difficulty, and that justice will be done by this clause: when the owner of the land and the owner of the tithe agree. I can see no danger whatever in individual voluntary commutation. With respect to individual or compulsory award, I will not now touch upon that.
suggested that the last line and a-half of the clause in question (unless the same should have been confirmed under the hands and seal of the Commissioners) should be omitted; the effect of which would be, that while pre- 648 venting an incumbent from entering into an agreement for a longer period than his own incumbency, without the consent of the patron and ordinary, as the persons permanently interested in the revenues arising from that particular parish. It would at the same time prevent any owner having an estate less than a fee-simple or fee-tail from entering into any agreement for a longer period than the period of his estate. The present clause gave to the Commissioners the right of superseding the rights of all successors and inheritors, and he suggested that they should take away that power from the Commissioners of sanctioning an agreement with a person having only a limited fee.
§ The Attorney General (Sir John Campbell)
considered the rector and the vicar, in the case put by the right hon. Baronet, the Member for Tamworth, as joint owners of the tithe, and therefore the consent of both was necessary. With regard to what the noble Lord, who had just sat down, had said, as to limiting the power of agreement binding successors and inheritors to owners of fee-simple or fee-tail, he entirely protested against that opinion. There was a Bill now upon the table which he had had the honour of introducing into the House, the great object of which was to give to the owners of particular estates the power of enfranchising copy-holds; at present the liberty to agree with the landlord for enfranchisement being limited to owners in fee-simple or fee-tail. The principle of that Bill had been sanctioned by the House, and it was upon that very principle that this clause had been framed. Indeed, if that principle was not admitted, they had better strike out the clause altogether; for it was well known that all the great landed estates of the country were preserved in the family by their being limited, with remainders in tail; almost all the nobility in the country held their estates only for life, with remainder in tail to first and other sons, &c., and the effect of such a limitation as that proposed by the noble Lord, would be, to render the clause, nearly, if not wholly, ineffectual by imposing a most widely-operating check upon the power of commutation.
had never conceived it possible, as the Bill was framed, that the consent of both rector and vicar should be required in the case put by his right hon. Friend (Sir R. Peel). He was surprised 649 to hear the hon. and learned Attorney General say, that the rector and vicar were joint owners of the tithe. Nobody ever heard of such a thing! And he could not conceive that Government intended to prevent the possibility of an arrangement with the vicar without the consent of the rector; and vice versâ.
§ The Solicitor General
There appears to me, Sir, to be two points raised by my hon. and learned Friend the Member for Ripon. First: whether the rector and vicar should be allowed to commute distinct from each other; and secondly, whether the Clause, as it stands, gives them the power of doing so. Now to advert to the latter point, in the first place: at the beginning of the 12th Clause, it is enacted that the "owner of any land, and the owner of any tithe, may contract" together in manner hereinafter mentioned. In the 17th Clause we find a provision, that "in every agreement which shall be entered into for the commutation of tithe, pursuant to the provisions of this Act; that there shall be parties, the owner of the land whereof the tithe is proposed to be commuted, as also every owner of any tithe arising from or out of any such land." Now although, undoubtedly I admit there may be some apparent obscurity in the first of these clauses, yet the words "in manner hereinafter mentioned," plainly couple it with the second, and therefore it is clear what meaning is meant to be conveyed by the two together. Now, to look at the question in the light of principle; is it or is it not advisable to require the concurrence of the rector and the vicar in any agreement for commutation of tithe. I do assure hon. Gentlemen that this was matter of very serious consideration to Lord Althorp, and I admit that it is fair matter for discussion. But he came to the conclusion that it was advisable to prevent the possibility of jobbing between the owner of the land and the tithe owner, or of one of those persons, to the prejudice of the other.
agreed in the necessity of preventing that species of jobbing, but was of opinion that in the succeeding part of the Bill that danger was not sufficiently provided against, inasmuch as any landowner might compel any tithe-owner to commute his particular tithe.
§ The Clause was agreed to.
§ The House resumed; the Committee to sit again.