§ Mr. Curwen
rose and said.—Previous to entering on the subject which it is now my duty to submit to the House, I wish to explain and apologize for having taken up a business that would have come so much better from many other members. I was induced to embark in it from the assistance afforded me by one of the ablest and most 546 constitutional lawyers of the day, I mean my friend baron Wood. I trust this will not only be received as a justification, but entitle me to the attention of the House. The measure is, doubtless, one of great importance, both as it affects property, and as it has influence on the morals of the community. In order that the object of the bill I have to propose, might be fully understood, and to prevent also groundless alarms, it was judged expedient to introduce it in the last session,* in order to have it printed and widely dispersed. The avowed intention of the measure is, for the security of tithe property, and the prevention of the extended and extending scale of litigation. By the papers before the House it appears 120 tithe causes were decided in the last seven years, and that an equal or greater number are pending. When it is considered, that each of these causes may have continued for six or seven years, occasioning feuds and animosities that cause the church to be totally deserted; this alone presents an evil that calls loudly for redress, were there no other grounds of claim for the interference of the legislature. From the moderation and liberality which generally distinguishes the church, I am satisfied it would not be their wish or desire the law should afford them facilities for the invasion of the rights and properties of others. God forbid any attempt should be made to invalidate the security of the vested rights of any body! I need not disclaim it for myself, arid still less for the quarter from whence I have received such able assistance. The jealousy of this House on all subjects which can be supposed to innovate on the rights of property, are highly honourable to it, and must render hopeless all attempts to infringe on vested interests of any kind. I contend for nothing that has not the sanction of the highest law authorities of ancient as well as modern times.
I need scarce observe to the House, that, primâ facie, all lands are liable to the payment of tithes. That the grounds of exemption are the payment of moduscs or exemptions, prescriptions, compositions, or discharges. Moduses suppose a commencement prior to Richard 2nd.—Forty years uninterrupted payment presupposes a title, which is impeachable in two ways; first, by showing its commencement to be antecedent to Richard*See Vol. 36, p. 1070.547 1st; and latterly, that is, within little more than a century, by impeaching it on the ground of rankness. Exemptions, prescriptions) compositions, and discharges, are not proved by immemorial possession, but by the production alone of the original grant or deed, by which they were created. These exemptions would be legally granted till the 13th of Elizabeth. Before I proceed to discuss these different branches, it may be expedient to advert to the law as it stood, with respect to other property. Previous to the 9th of the present reign, possession was no bar to the claims of the Crown. The injustice and oppression which arose out of this, and especially out of one of the last cases, I mean that of the duke of Portland and sir James Lowther, when, from the embezzlement or destruction of a deed enrolled in one of the public offices, the noble duke had nearly been deprived of his property. This produced the nullum tempus act, by which the rights of the Crown are limited to sixty years. This act is a full recognition on the part of the legislature of the principle I am wishing to contend for. For strict legal pleadings in the courts of law, it was necessary that deeds should be lodged in the court, that the opposing parties might have access to them. Forty eight years ago, lord Ken-yon, in the cause of Reid v. Brookman, ruled, that instead of the prefect, it might be alleged that the deed was lost or destroyed by time and accident, and that usage would prove it. Lord Kenyon observed, "And this is founded on necessity, since no human prudence can render deeds existing for ever." It will be incumbent on those who oppose the truth and justice of this noble lord's observation, to show why a decision that has preserved many just rights, should not equally be applied to tithes.
Having shown both the proceedings of this time—and the latter practice of the courts has gone to strengthen and establish the rights of possession, and to attribute to it the best beginnings—I shall now proceed to discuss what the defects of the laws relative to tithes are, and the remedies I would propose. The ancient mode of the clergy's proceeding for the recovery of tithes, was in their own ecclesiastical court. When matters of fact arose, the court of King's-bench stayed the proceeding till they were decided. Disputes arising between the ecclesiastical and law courts, as to the exercise of their 548 jurisdiction, the same came to a solemn hearing before king James 1st, who decided, with the unanimous approbation of the judges of the land, that the ancient law of the kingdom should be abided by; Magna Charta having provided, "that no man should be deprived of his freehold, or free custom, but by the judgment of his peers, or by the law of the land." This decision seems acquiesced in for upwards of 50 years, when, by a fiction of law, the clergy commenced their proceedings in the Exchequer, by acknowledging themselves to be debtors of the king, from the payment of tenths. Thus things proceeded till the ease of Gardiner and Pole, 1705, when chief baron Ward, and other barons, held twelvepence an acre for hay a rank modus. This was appealed against, and reversed in the House of Lords, and held a good modus. In the case of Sansom and Shaw, in the Common Pleas, 1748, when it was contended that tenpence for meadow or pasture was rank, Serjeant Belfield said, he was so old as to remember almost the very beginning of the name of rank modus; that lord chief baron Ward was the first that introduced it; that he was a great patron of the clergy, and carried their rights a great way. "Lord chief justice Willes says," I am afraid, truly, there have been many cases determined upon the footing of rankness. The fewer the better; and I am glad they are not in print, for then they might have misled, more than they have already;" and he observes, that "the consequence of these determinations is, to deprive the landholders of what they have fairly purchased and paid for. "Mr. Justice Burnet says," My brother Belfield has given us the history of the beginning of the doctrine of rank moduses, in lord chief baron Ward's time; and I have had another case given me by a learned judge, which shows the end of it. "See the case of Gifford and Webb in the Exchequer. Unfortunately this did not prove to be the case. In defence of the courts of equity deciding on matters of fact, is alleged, the prejudices of juries, and their ignorance of the value of money, in the time of Richard 1st. On this head I have an authority that will weigh with this House, and I hope on the members opposite me—I mean that of the present lord chancellor, who, in the case of O'Connor and Cooke, gives this true and constitutional answer:" I cannot hold the language that has been held, as to 549 sending this to the prejudice of a jury. A jury is the constitutional tribunal of the country, and I am not at liberty to suppose it will be guided by prejudice."—Now, Sir, of the integrity and ability of those who preside in our courts of justice, no one entertains a higher opinion than I do; but with every deference, I would ask, is it possible for them to establish any rule of discussion that can suit all cases? Does not the quality of land as well as locality, produce a great and material difference? What might be right in one case, would be quite the reverse in another; and docs not this form a very material fact for a jury to inquire into? There it one rule of the courts of equity, the grounds and justice of which I do not comprehend. In all cases where the rector prays an issue, a trial by jury, it is granted. Even were the modus such as the court would sustain, still they send it to a jury. Why the defendant should not equally be entitled to have a trial by jury, is quite incomprehensible to me, and I own savours strongly, as I view it, of injustice.
That next point to which I would wish to call the attention of the House, is to compositions real, which are compositions made between person, patron, and ordinary, which might legally have been done till the restraining act of the 13th of Elizabeth, chap. 10. Many such, no doubt, were made. In a lapse of 240 years since these agreements were restricted, many deeds have been destroyed or lost. At the Reformation, the 31st of Henry 8th, 1539, nearly one-third of the whole property of tithes, passed into the hand of the Crown, and was sold and disposed of. This portion of tithes became, to all intents and purposes, a temporal possession, and was parcelled out and sold to individuals many of whom never had the original deed of conveyance in their possession. Now, the law rules as to compositions, that pos- session is no proof of title, no presumption of an original grant. The deed, and the deed only, is proof of any title. This is a monstrous doctrine; what does lord Ellesmere, lord chancellor, with the principal judges say, "for tempus est edax return, and records and letters patent, and other writings, either consumed or are lost, or are embezzled; and God forbid that ancient grants and deeds should be drawn in question, although that cannot fee. shown which at first was necessary to the protection of the thing." Lord Hobart, 550 in Slade and Drake says, "It is a strange anomaly to be thus differing from all other cases of law; for whereas prescription and antiquity of time justifies all other titles, and supposeth the best beginning the law can give them, in this case it works clean contrary, and this in favorem ecclesiœ, lest laymen should assail the charge. Now, if just and equitable as to the church, it can have no reference to the lay impropriator." In the case of Barry and Evans, 1735, the court will not presume any grant or purchase of tithes, not even in a case of a lay impropriator. Many judges have at different times expressed dissatisfaction at this doctrine. The late lord chief baron of the exchequer, in a case, lord Peter and Blencow, 1797, expressed himself thus: "These determinations are perhaps to be lamented; I should have liked better to have found, in regard to tithes, the same principle of decision which regulates the title to every other fee. If nonpayment for any length of time forms no presumption of a grant of the tithes, then the length of enjoyment, which in all other cases is the best possible title, serves only to weaken the claim of exemption from tithes, as the difficulty of tracing the origin is increased." Lord Loughborough, in the case of Rose and Collard, in chancery, 1S00, also expressed his dissatisfaction. And the present lord chancellor, in the case of Berney and Harvey, in 1809, says, "I do not think that I ought now to disturb this doctrine, which has prevailed so long, whatever I might have originally thought of it." In the case of Fans-haw and Hare, in the exchequer, 1743, baron Clark expressed himself on this point, as follows:—"I know no case that deserves more consideration than this: for though the authorities against such a prescription"(meaning a prescription in non decimanda) "are very great, yet the objections to them grows weaker every day. Before the Reformation, all tithes were ecclesiastical, and a layman could have them by discharge only, by the grant of parson, patron and ordinary. Since that time there are many other ways, both of having tithes, and being discharged from them. Since tithes have been in the hands of lay impropriators, many persons have purchased discharges for their particular lands; yet if these grants are lost in the common fate of things, those persons must lose the benefit of their purchases, and that must often happen, though they be inrolled, or any 551 other way be taken to preserve them. Very few records relating to the church are now extant, and it would be very hard that time, that strengthens all other rights, should weaken this."
I should hope, Sir, there will be little doubt of the justice of giving to uninterrupted possession that right it has in all other cases against the church. Against the lay-impropriators there cannot be a shadow of pretence for withholding it. On this point I do not anticipate an objection. From and after the 12th of Elizabeth, 1570, agreements were made for conveyances, exchanges, and compositions, sanctioned by a decree of chancery; all inclosures of wastes, drainages, &c. were carried into effect by this mode, and valid, till the discussion by lord Nor-thington, 1766, in the case of the iattor-ney-general and Blois, v. Cholmley, when they were declared to be invalid. In the space of 196 years, many agreements were made and carried into effect between rectors and spiritual persons and land owners, in exchange of land for other lands, and pecuniary payments upon inclosures and drainages, sanctioned by chancery. These are now liable to be set aside, and, in fact, many have been so. I instanced, last session, in the case of Dr. Peplow Ward, the rector of Cottenham. I am sorry to find the reverend gentleman, whom I believe to be a highly respectable character, was hurt by the statement. Had it been in any way incorrect, I should not have hesitated to have immediately retracted it; but believing it perfectly correct, I must restate it.—In 1596, composition had been made by articles of agreement, and confirmed by a decree in chancery, by which lands had been allotted to the rector and his successors for ever, in lieu of tithes of the before-mentioned land with a view to the drainage and improver ment of it. The defendants, who were thirty-two in number, filed a cross bill, founded on the composition deed, praying, that Dr. Peplow Ward, might be declared not entitled to the tithes he claimed, and if entitled, might account to them for the profits of the inclosures and inclosed grounds, which he held in lieu of tithes, and that he might be decreed to vacate the possession. The court, bound by former decisions, held the composition void, and decreed an account of tithes to the rector, and costs, as the composition deed was not stated in the answer; and if it had, the court might have left him to his 552 remedy, in which he must have recovered as the law stands at present; and the cress bill was dismissed, because the complainants in it could make no title to the and allotted in lieu of tithes. Can a more palpable-case of injustice be adduced? Admitting the result was not in the rev. doctor's contemplation, it is not in his power, beyond the term of his own life, to cure this monstrous injustice; the lands must descend to his successor. A case was at issue in the county of Lancaster, between the late rector of Mailing, and persons with whom exchanges of certain portions of glebe had been made, highly beneficial to the church. Though above 250 years had elapsed, the probability was, the lands would have been recovered, and possession kept of the grounds given in exchange. Some remedy should be provided against such palpable acts, if wrong. It might, indeed, be stigmatized by a much stronger epithet. I should propose, on such agreements being set aside, the lands should be held for the use of the poor, till the legal owner should appear to claim. The last regulation in the bill I should wish to propose, would be, to give power to a jury to apportion lands covered by moduses, when the bounds were, from changes, lost or changed. These would be the objects I would wish to provide for. Whilst provision was made to assimilate the law of tithes to that of every other property, injustice would be prevented, and litigation most considerably checked. I dislaim all interference with any rights of the Church, or asking any thing more than what the legislature has established with regard to the Crown—that possession should work for and not against the holders of tithes. The hon. gentleman then moved, "That leave be given to bring in a bill for the Amendment of the law in respect to Tithes."
§ Sir W. Scott
believed, that if the petitions which had been presented upon this subject last year were carefully attended to, and the grounds upon which they proceeded duly considered, the House at least upon such grounds as the petitions stated, would not see the necessity of giving the subject any very grave consideration. Many of them related to a. single parish. They were determined upon in about four days. They were all drawn up in the same, or nearly the same terms. They were circulated through the country, and signed by women and 553 by persons of the lowest class. The con- tents of those petitions wore extremely absurd. They stated, that the system of tithes was injurious to the agricultural interests of the country and the christian religion; they prayed the House to make such regulation in them as might best suit the insular situation of Great Britain, and be most consistent with its political relations. There was one from Horn-church, in Essex, which complained that the tithe was let to a lawyer and a clergyman, and that this was ruinous as well to agriculture as to religion. There were some petitions from Ireland upon the same subject, and he could not say whether the local situation of that country might not admit of some beneficial amendment with respect to tithes. There were also two from Gloucester, which prayed for redress upon the principle that the system of tithe placed too large a proportion of property in the hands of the clergy. The object of the bill was, to alter the provisions of the Jaw as they at present existed upon the subject of tithe. He did not rise to oppose the introduction of the bill. There would be other opportunities for objecting to it if he should consider objection necessary. On so delicate a matter he would call upon the House to proceed with the utmost caution. If necessary at any time it was most certainly so when they were about to touch one of the most ancient institutions of the country—one which, for centuries, had been undergoing the revision of the wisest and the ablest men, and who had transmitted to posterity that system in the state in which they now found-it. The question was between the landholders on one side, and the tithe proprietors on the other. It was one of great delicacy, and required the utmost caution and prudence. He did not mean to oppose the introduction of the bill, but he should watch its progress through the different stages.
§ Sir S. Romilly
said, that the bill of last year, in his mind, promised the most extensive and beneficial improvements. So far from seeking to put an end to tithes, the bill sought to strengthen the system throughout, by adopting a principle of tithe more equitable and rational. As to the operation on the minds of members, by the petition mentioned, the right hon. gentleman might as well have attributed the introduction of the bill to the diffusion of the principles of the Spenieeans or of the Hampden club. The ob- 554 ject of the last year's, and, no doubt, the present year's bill, was, to put an end to the inconvenience and anomaly of the present principle of tithe law. In the instance of the Crown an undisputed possession of sixty years put all its claims to rest, whilst a tenfold latitude was given to claims on the part of the church. In fact, to give a title to a modus, which barred all inquiry on the part of the clergy or impropriator, it must be shown to have had its existence prior to the time of Richard the first, a period of 600 years. What he had said had merely originated in a desire to do away with the impression he felt was likely to be made by the grave arid solemn warning given by the learned judge of the Admiralty, to abstain from intermeddling with rights so sacred and generally recognised as those of the clergy. It was too absurd a proposition to be gravely entertained in that House, that any thing in the tithe system militated against the interests of the christian religion, except in the angry feelings which not unfrequently were the consequence of feuds and contentions between pastors and their flocks, upon the subjects of litigation respecting tithe cases. By the present system, the older a man's claim to a right of modus or composition, the weaker it was—contrary to the general and well-known principle of law in all other cases. It was now two centuries and a half since the disabling statute of queen Elisabeth, which followed about thirty years after the dissolution of the monasteries by her father. Lay impropriators still continued capable of alienations, until the decision of the corporation of Berwick disturbed the foundations of the law as it had previously stood; of which decision he could only say, he knew not whether most to reprobate, its folly or its dangerous consequences—as its direct tendency was, to protect lay impropriators, as if they had been ecclesiastics. There were parts of the bill to which, though trifling in themselves, he felt an objection; although he acknowledged, that, in the course of his experience, he had never seen an act of parlialiament drawn up with a juster or more profound knowledge of the subject treated, nor one more admirably adapted to erasure the execution of its several provisions. He should reserve his objection until a more advanced stage of the bill, and should for the present give it his most decided support.
§ Mr. Lockhart
said, he did not feel that awe and that tremor which the right hon. gentleman seemed to feel upon this bill, arid which he expressed as it were for the purpose of preventing the House from entering upon it. The bill in its object was a most useful one. The object was only to legislate upon one species of property in the same way as was done upon all others. The right hon. gentleman seemed inclined to cast a slur upon the committee and upon the House by the allusions which he had made to the petitions presented last year upon the subject. The committee were not at all influenced by the language of those petitions. He had been a member of that committee, and he never sat with any set of gentlemen who seemed to have more regard for the interests of the church. They, however, had made no objection to the measure. As to the case alluded to of the lawyer and the clergyman who held the tithe, it gave rise to a great deal of litigation, and was by no means an unfit subject to be mentioned in a petition. The bill he considered as one which ought to receive the countenance of the legislature.
observed, that he did not understand his right hon. friend to say that he looked upon the bill as one to provide for; the abolition of tithe. A proof of this was, that his right hon. friend had acquiesced in the motion for bringing it in. He merely recommended that the House should use some caution in countenancing a measure for the removal of a practice upon which the country had acted for centuries. It would not, in his opinion, be difficult to show, that, however they might in appearance be founded on equality, the application of the same principle of prescription to tithes as to other property would be very unjust. This bill would rather contribute to increase, than to suppress litigation. The statement that there were now 120 causes pending in the court of exchequer might, if not explained, seem to make against the clergy. The truth was, that only 69 of these causes had been instituted by the clergy. Only 35 of them had been commenced within the last three years. That did not amount to twelve in each year, which was no proof of excessive litigation. He should reserve to another stage of the bill whatever objections he had to make.
§ Mr. J. H. Smyth
said, he would not oppose the motion for leave to bring in the bill, 556 although he was apprehensive that it would be difficult to reconcile some parts of it to principles of sound policy. He thought there were many serious difficulties which it would not be easy to get over. It was a measure of great importance, and required the utmost caution.
admitted that the subject was one of great importance. This, however, was not the time for proposing any objections against it or arguments in its favour. It would be better to wait until they had an opportunity of seeing the bill. They would then be better able to judge of its objects. He did not understand his right hon. friend to say any thing that could tend to prejudice the House against the measure. He merely recommended caution in the adoption of it. When any legislative regulations were proposed with respect to tithes, they should be approached with the same caution as those proposed with respect to other property. He could not collect from any thing which had fallen from his right hon. friend, that he was inclined to bar a fair discussion. He merely recommended that church property, being as sacred as any other, should be touched with the same caution.
§ Mr. Brougham
agreed with the noble lord that it was better not to anticipate any objections or arguments upon the bill. He thought, however, that his hon. and learned friend was very justifiable in the remarks he had made upon what had fallen from the right hon. gentleman opposite. His (Mr. Brougham's) habitual veneration for that right hon. judge induced him to pay the utmost attention to what had fallen from him, and it did strike him that the object of his language was, to stigmatize the measure in its birth, and to set it forth to the world as one by which it was meant to trench upon the property of the church. It was now stated, that such was not his intention, but merely to caution the House against rash legislation. He wished just to mention one thing, which would show what it was the bill was meant to remedy, and the groundlessness of the clamour that was raised against it. What he should mention was, the right of composition. Composition real was legal 248 years back. Suppose a composition of that kind effected while it was legal, that it was acted upon and no tithe paid, but the parson possessing the land for 200 years. Under such circumstances, the 557 parson at present had only to file his bill for tithe, and the court could not refuse him a decree unless the other party could produce his composition real; not an old moth-eaten parchment, but one quite legible. It had been so decided in the court of exchequer. So that, by this means, the parson might retain the land which he got in composition, and get the tithe besides. It was not the object of the bill to unsettle the right of church property, but to clear it of difficulties. The property of the church should be held sacred, but not more so than the property of the crown, which had long lost the benefit of the nullum tempus
§ Mr. Brougham
could not immediately recollect the name of the case, but he was quite certain of it.
§ Mr. Curwen
was surprised to hear the right hon. gentleman take such a view of the case as he had given to the House. He had put the bill into his hands before he had moved for leave to bring it in. He did not then make the same objections against it which had fallen from him that night; nor did he (Mr. Curwen) expect that an attempt would have been made to create a prejudice against it in consequence of the petitions alluded to. With those petitions he had nothing to do.
§ Leave was given to bring in the Bill.