§ Mr. Curwensaid:—The question I have to submit to the House is of the utmost importance, not only as it relates to property, but in the influence it is likely to have in preventing vexatious and expensive litigations, highly injurious to public morals, as well as to the temporal interests of the clergy. I am anxious, in the outset, explicitly to disclaim all intention of proposing any thing which can lessen the security of the property of the church or lay proprietor of tithes. Tithes, like all other descriptions of property, ought to be held sacred. If I succeed in showing that the law of evidence for substantiating a title to tithes is at variance with itself, and in direct opposition to every principle as applicable to all other kinds of property,—that the powers with which the church is armed are unnecessary for the protection of its own property, and inconsistent with the rights of others; I shall, I trust have made out a case calling for legislative interference. Fortunately, this may be accomplished without the application of any new principle; all that is requisite to be done is, to make the law applicable to property analogous to all descriptions of tithes. No statute of limitation exists against the claims of the 1071 church; consequently no length of possession, nor even an uninterrupted enjoyment of centuries, bars her claims to tithes. Prima facie the church is entitled to them; and nothing less than complete proof of the origin of the exemption claimed by the land-owner can be of any avail against the demand. Prior to the 9th George 3rd, the Crown enjoyed a similar privilege. A possession of sixty years is now a bar against the ancient rights of the Crown; but no length of time whatever will preclude the right of tithes; and as the church is prima facie entitled to them, lapse of time, which in all other cases strengthens the title to property, has the effect of weakening it in the case of the church, in as much as the original evidence of the exemption becomes thereby more difficult to be obtained. Nothing can be more repugnant to justice than this. Uninterrupted enjoyment for a certain length of time ought, and in all cases but that of the church does, confer an unimpeachable title. Not to admit prescription and enjoyment as a ground of title, is to shake all title, and to leave property exposed to endless litigation. In the present instance of the church, as may be seen by the papers I moved for in the early part of the session, exhibiting above 120 causes determined in the courts of exchequer and chancery in the last seven years, and about an equal number now pending, the fact has but too well corresponded with the theory. Disputes daily arise; and the most tedious, and expensive suits, are the ordinary consequence of this palpable defect in our law. The land-owner is naturally unwilling to surrender a right which long enjoyment has taught him to think justly his, at the same time that he is perhaps unable to prove, from loss of deeds or other evidence of facts to make out his title to the exemptions according to the severe rules of evidence adhered to in the courts of equity. In the end, he is not only despoiled of his property, but is also loaded with the costs of a long and expensive litigation. The evil of the law as it now stands is glaring. In support of this opinion, I have the first law authorities, in a case decided in Chancery by lord Elks-mere, with the principal judges. For "tempus est edax rerum," "records and letters patent, and others writings, either consume or are lost, or are embezzled: God forbid that ancient grants and acts should be drawn in question, although 1072 that cannot be shown which at first was necessary to the perfection of the thing." In the case of church lands, it seems but reasonable the church should be bound by the same statutes and rules of limitation by which other property, not excepting the Crown itself, is bound, But the case of tithes is somewhat different. Tracts of land which have been hitherto barren, may, by modern improvement in agriculture, be brought into culture; and it would be unjust, in such cases, that the church should be deprived of her tithes. A modified limitation of half a century, from the present time, might be reasonable. The respectability of the church is an. object in which the nation at large is deeply concerned. Fully to appreciate the consequences of the extensive litigation of late years, it will be for the House to consider, that the duration of the hundred and twenty suits has not been less than six or seven years, pending which the churches have, in many instances, been nearly deserted. To such lengths have hostilities, in too many cases, been carried between the pastor and their flocks! Thus is that respect and veneration so necessary for the due discharge of the sacred functions broke through and destroyed. This is ground sufficient of itself to call for the intervention of this House. Great as the evil has been, it will, in the course of things, become yearly greater, as the security of property decreases. Whatever may be the degree of blame imputable to individuals, the great body of the clergy are distinguished by a very praise-worthy moderation. How long this body may be proof against the strong temptation the law holds out for litigation it is not for me to conjecture. Lord Hobart, in the case of Slade v. Drake, says, "It is a strange anomalum tithes differing from all other cases in law: for, whereas prescriptions and antiquity of time fortifies all other titles, and supposeth the best beginning that law can give them, in this case it works clean the contrary; and this is in favorem ecclesiœ, lest laymen should spoil the church." The practice of the courts of law, in latter times, has ' been, to fortify the claims of prescription: thus in the solemn argument of Reid v. Brookman, about 26 years ago, lord Kenyon ruled, that instead of the profert it might be alleged that the deed was lost and destroyed by time and accident, and that usage would prove it, observing, "this is founded on necessity, since no 1073 human prudence can render deeds existing for ever." In the case of Berney v. Hervey, 1809, the present lord chancellor says, "I do not think I ought now to disturb the doctrine which has prevailed so long whatever I might originally have thought of it."—The doubtfulness of the legality of its origin, added to its palpable injustice, is a strong reason for legislative redress. The practice is at variance with the feelings and common sense of mankind, and can only have existed so long because it has not been complained of, nor redress sought where alone it could be obtained. How the present practice arose, of which I complain, is not very material to inquire. The ancient mode by which the clergy proceeded for the recovery of tithes was by libel in the ecclesiastical courts, which were removeable, by a writ of prohibition, into the court of King's-bench, where the claim was decided by a verdict of a jury. Disputes arising between the ecclesiastical and civil courts, as to the right of interference of the latter, were at length decided by a solemn hearing before king James who ruled "He would abide by the common law of the realm." For nearly 50 years the practice thus settled was followed, when the clergy, to get rid of the trial by jury, resorted to the expedient of commencing their suits in the courts of equity.—My first object is to apply a remedy to this deviation of the laws of the land by courts of equity usurping a right to pronounce on matters of fact without the intervention of a jury, as is done by deciding on moduses, being what is termed rank, or from their amount arguing a more modern date than that of Richard 1st. The courts of equity pronouncing on the rankness of moduses is a usurpation on the indisputable rights of juries. It stands unsanctioned by any precedent; contrary, indeed, to the established laws of the realm. Nor is the practice of equity courts regulated by an equal measure of justice between the tithe owner and tithe payer. In all cases where the church prays an issue to try the case before a jury, it is granted,—not so to the landholder. This seems to me a very partial and arbitrary mode of proceeding. My object is, to re-establish the right of the subject to a trial by jury on all matters of fact. This practice of the courts to decide on rank moduses without the intervention of a jury has been attempted to be defended by impeaching the impartiality of juries in tithe causes. But at no period 1074 of our history did the value and estimation of juries stand higher. Such senseless invectives have a complete answer by referring to the decisions of juries on tithe causes, in the last seven years, which are so decidedly in favour of the clergy.—The next point to which I would draw the attention of the House is to what are termed compositions—a composition real, or composition made between parson, patron, ordinary, and the parishioners, by deed—by which perpetual composition in lieu of tithes was established. These agreements, prior to the 13th Eliz. were valid. Doubtless numbers of such were made before they were prohibited. The proof of these rests solely on the deed of agreement after the lapse of 246 years. I entreat the House to consider in how few instances can such a title be established. After four times the period that would bar the Crown, no security results to the possessor of tithes. On what grounds of justice should not perpetual and uninterrupted enjoyment beyond all memory be admitted to prove the existence of such a deed? Every day, every year, must augment the jeopardy in which such property is placed, if this practice be suffered to continue. Subsequent to the 13th Eliz. compositions were made by parson, patron, ordinary, and parishioners, by deeds sanctioned by decrees of chancery. The legality of such proceedings was not questioned till 1765, when, in the case Blair v. lord Cholmley and others, they were declared illegal. It will be sufficient to show what has resulted from this decision to induce the legislature to correct the flagrant injustice that has sprung from it. I refer gentlemen to the case of the rev. Paploe Ward, rector of Cottenham. The composition in this case was made by deed, bearing date 1595, and sanctioned by a decree in chancery. The lands given in lieu of tithes are known by the name of the undertakers' or adventurers' lands—most probably on account of a drainage. After an enjoyment of upwards of 200 years this was set aside, and the rev. doctor recovered his tithes. And because the legal representatives of the lands cannot now be all discovered, the rector holds the land and the tithes both. To meet and remedy such cases, I would propose, that where compositions by deed or decree of chancery shall be set aside, the lands so given should be held by the churchwardens for the use of the poor, till the property shall be legally claimed. This is referring them to the use of those 1075 for whose benefit the church in early times was bound to provide, and whence, probably, originated the payment of tithes. At the reformation a great many of the lands belonging to monasteries and religious houses passed into the hands of the Crown, and were disposed of to various purchasers. In very many cases, parties, claiming under these grants, are not able to make put, after so long a lapse of time, that their lands were parcel of such abbey lands; but have proof that such lands have always been enjoyed, exempt from the payment of tithes. Whilst the rector or vicar has constantly received tithes of all other parts of the parish, and never of these lands, yet this is not sufficient, and tithes are nevertheless recoverable. This is a case strongly calling for remedy,— There is a further class of tithe-owners, the lay-impropriator. These lay-impropriators have all the rights of spiritual persons whom they represent—and the same mode of decision is applied to them; though by the 32d Henry 8th they are become temporal inheritances with every right incidental to such property. The deeds, sanctioning such sales from the first grantees, are, in a great majority of cases, I believe, lost or destroyed; yet, monstrous as it may appear, the courts of exchequer and chancery refuse to admit uninterrupted enjoyment as a proof of the existence of such conveyances. In the case of the corporation of Bury v. Evans, 1735, it was decided the court would not presume the existence of a deed, in the case of a lay-impropriator, though the non-payment of tithes beyond all memory was made out. It is fairly to be presumed, rectors, vicars, and lay-impropriators, have been encouraged to institute suits in chancery and the exchequer, for the purpose of setting aside moduses, real compositions, and exemptions, merely on the chance of succeeding by the default of the defendants' title from loss of deeds, and have, in too many instances, been successful. To stop such disgraceful proceedings, the legislature must adopt measures such as I have now to recommend to them. Short of this the landholder will be despoiled of his legal rights, by the church. Without some legislative measure such as I propose, nothing can prevent the church from plundering the community and destroying those exemptions to which they are justly entitled.—It is not my intention to ask more of the House than to suffer the bill to be brought in, and read a first time, in 1076 order that it may be printed and circulated throughout the kingdom. I have now to move for leave to bring in a bill to amend the laws relative to moduses, prescriptions, and exemptions from tithes.
§ Sir W. Scottwould not resist the motion for the introduction of the bill, but although he coincided in much of what had fallen from the hon. gentleman, he should be sorry that it should go forth to the public, that he could ultimately agree to the great innovation which the bill proposed to make.
§ Sir S. Romillysupported the bill, although he feared it was too late in the session to give an opportunity sufficiently to discuss so important a subject. He confirmed all the statements of the hon. mover with respect to the inconveniences of the present law, and particularly the circumstance that long possession, which strengthened all other property, weakened church property; since, instead of a prescriptive title being obtained in 60 years, it was necessary to go back 600 years, in order to establish a claim.
§ Mr. Lockhartcontended, that such a bill would be most valuable, in order to settle the titles to church property, and put them on the best foundation.
§ Leave was granted to bring in the bill.