HC Deb 16 March 1818 vol 37 cc1131-42

Mr. Curwen moved the second reading of the Tithes Law Amendment bill. In making that motion, it was not his intention to say more than a few words. Considerable misunderstanding had taken place with regard to the bill. He disclaimed entirely all intention whatever of invading the property of the clergy. After the past discussions on the subject, some prejudices had arisen against the bill, which would not, he was confident, exist after its provisions and intentions were well understood. The question was not whether any thing was to be taken from the church, but whether the church had a right to take what never properly belonged to it? It was not his intention to attempt in any way to injure the clergy, but it was his wish that justice should be done to all parties.

Sir W. Scott

said, he had the strongest objections to this bill, and in particular to the clauses which went to disturb the settled system of law, as it had been laid down by chief baron Comyns, and other eminent authorities. The right hon. and learned gentleman then explained the policy of the 13th of Elizabeth, on the subject of what were called real compositions on tithes, and also on the act of Richard 2nd, relative to moduses, and showed the distinction between each. It was, he said, the object of the hon. gentleman's bill to shut out the church from tithes, where they were not claimed within living memory. He could not agree to such a proposition as this, for it would at once set aside the necessity of producing that documentary evidence, which ought to be adduced on such an occasion by the landed proprietor. This evidence was surely to be procured, as all tithe compositions were recorded in the bishop's registry. There was, then, no necessity for setting up common usage against contracts so registered; and if the House were to adopt the plan, it would be at once a virtual repeal of the statute of Elizabeth. Besides, the hon. gentleman's plan went to make moduses the same as compositions, and to break down the marked distinction between each. The next class whose interests were taken up in this bill, were the lay impropriators, and yet no evil was shown to exist at present relative to their interests. The object was here to appoint, in every disputed case, commissions to be issued for ascertaining the precise parochial boundaries in litigation. There was no reason for such a provision, and it was, like the other clauses, wholly uncalled for. He thought it extremely dangerous to make any alteration in the state of a property most sacred in law, and peculiarly and essentially connected with the welfare of the community. He objected to all the clauses, and was persuaded that the bill would put clergymen in an extremely disadvantageous situation. On the grounds he had stated, he should move, by way of amendment, "That the bill be read a second time this day six months."

Sir Samuel Romilly

said, he approved of the principle of the bill, though, perhaps, some of the clauses in it might be capable of improvement. Nothing could be more unjust than to represent the bill as an invasion of property, or as calculated to promote litigation. Its object was, and its effects would be, to secure property, and prevent litigation. It would secure property on the safest and most widely admitted principle, that of length of possession. He deprecated, as much as any man could, any attack on the property of tithes; they were as much property as any other species of possession; and the clamour against them as being mischievous was, as far as it impugned such property wholly unwarrantable purchaser might as well say at once, that because he had paid for nine tenths he had a right to the whole. But this bill would settle property, and secure claims. It night have been originally inconvenient that real compositions should be made; but the statute of Elizabeth, passed to prevent, could only be prospective; and yet the courts of justice had done on this head, what the legislature could not do, by insisting on the production of he deed itself. The statute of Elizabeth never meant to set aside compositions previously made, though the deeds that attested them were extremely rare. The courts, however, required the production of the deed in this case, after a lapse of more than two hundred years, though it did not in any other case of equal duration. As to the improvidence with which these compositions had been made, that was a good reason for passing a law to prevent them for the future; but none for setting aside those already made, or doing that which was not done with regard to any other species of property. If a purchaser bought property because it had not paid tithe for two hundred years, and the clergyman preferred a claim, the purchaser must still show a modus as old as Richard 1st, or that his land had been abbey land, or produce a composition deed, though he bought the property, relying on the non-payment for such a length of time, which would have been a sufficient exemption from demand in any other case. As to the right hon. gentleman's quotation from baron Comyn, "What hardship was there in obliging an individual to preserve his deeds?" there was no hardship in this as to a single individual; but through a long succession of possessors and the lapse of centuries, it was often absolutely impossible. No man could guard against the effects of fire, civil commotion, &c. but here, unlike all other property, in which length of time improved the title, the claim rendered was more doubtful and more endangered by every hour that elapsed. No innovations would be made by the bill on the tenure of lay impropriations, for what Henry the 8th gave to his courtiers, he gave subject to all the conditions originally attached to it.—The clause on farm moduses was especially called for; for in the present division of property, if a modus was ever so well established, and the limits of the farm over which it extended could not clearly be traced, the whole modus was avoided. The right hon. gentleman had contended that the clause with respect to lay impropriations would interfere with the whole system of tithes, but if it appeared that lay impropriations were under the present regulation, a manifest injustice, they should remove that injustice, and not be deterred by the apprehension of mere speculative disadvantages. There might be many objections to the bill as it now stood, but to dispose of such a bill on the second reading was in effect to say that they would not consider it. He agreed, that the property of the church should be held sacred, but the best way to accomplish that object would be to provide that it should not be rendered an instrument of injustice. The House should at least go into a committee to consider the various clauses of the bill.

Mr. Wetherell

said, he was sorry to differ from his hon. and learned friend as to the effects which the bill then before the House was likely to produce. He was not one of those men who thought that an abuse should be allowed to continue merely because it was of long standing; on the contrary, he agreed with his hon. and learned friend, that whatever time such abuse might have existed, it ought to be corrected when pointed out. But before an alteration of the nature proposed was made so important a branch as that of the church revenue, he thought it was necessary to make out a very strong case indeed of the necessity of such alteration. In looking into history, however, he could not find a single instance where injustice was complained of under the existing system of collecting tithes. In looking over the bill, and he had looked most carefully over it, he could not find more than one clause which he thought likely to be of service,—he meant the clause which provided against a clergyman holding the lands given in composition for certain tithes, and at the same time enforcing the payment of those tithes. He did not object to a remedy being proposed on that point, but he thought it would be going too far to consent to nineteen objectionable clauses for the purpose of adopting one beneficial one. Any person wishing to prove that his land was exempted from tithes would be obliged to prove one of two things; he would be obliged to prove it by the production of the deeds by which such exemption of tithes took place, or else he must give reasonable proof that such deeds had existed. Before any land could be legally exempted from tithes, one of those two things must be proved. But by the bill, all that was necessary to prove such exemption, would be an assertion, generally, that such deeds had at one time existed. Nay, more, one clause went so far as to make it necessary for the clergyman to prove that no such deeds had existed. How far was such a clause consistent with justice, or with the se- curity of church property? The hon. and learned member then went through the several clauses of the bill, and pointed out what he conceived to be the injurious tendency of each. The bill, he observed, would, instead of producing beneficial consequences, only serve to introduce confusion, disorder, and injustice into the system of collecting tithes. His hon. and learned friend had said, that land-holders or purchasers of land were likely to be injured by the uncertainty which existed in the payment of tithes. This he would take leave to say was not the case. The first question asked by any person about to purchase land was, whether it was tithe free, or how it was situated with respect to tithes; whether the tithes were paid by composition, by moduses, or in what other manner. No injury could therefore be sustained on that point. Taking the bill in every point of view, he thought it would injure instead of amend the present mode of collecting tithes, and he should therefore vote against it.

Mr. J. H. Smyth

objected to the bill. Its provisions, he conceived, were of a most injurious tendency, as they regarded the protection of church property. According to one of the clauses, every payment of tithes, whether by composition, or by modus,. would be valid, provided no arrangement to the contrary took place during the life of an incumbent. But if one clergyman was to give up the tithes of his district, or to enter into a trifling composition for them, was the church to be deprived of its property on that account? He thought such a principle would be destructive to the whole system on which the church was supported. Here was a bill that went to legalize an ex-post facto operation. He conceived that sufficient ground had not been made out in support of the bill, and therefore he felt it his duty. to oppose it.

Mr. Brougham

began by recalling the attention of the House to the question on which they were about to decide, if they agreed to the right hon. gentleman's amendment. It would be a resolution absolutely to admit of no arrangement whatever for quieting men's possessions against the claims of the church. The arguments used by all who had opposed the bill were confined to its particular provisions. But he asked gentlemen if they were prepared to say, that no time, however long, should bar those claims? Men might differ. as to the best mode of fixing the limitation. It might be advisable to adopt a longer period than sixty years in order to meet one objection. Another might be got rid of by annexing the farther condition of three incumbencies, as was proposed by Mr. Justice Blackstone, and as had also been proposed in the bill of 1772. It might even be agreed that the time and succession of incumbents taken together should not be a bar, but only throw the proof upon the church; or the plan of the present bill might be adopted, that the proof of enjoyment, as far back as living memory could go, should be a primâ facie evidence in favour of the owner, liable to be met by contrary proof on the part of the church. But the gentlemen opposite reject all periods and every kind of limitation; and he contended that the House should not listen to them, unless it was satisfied that no measure for quieting such possessions could safely be adopted. The right hon. gentleman who moved the amendment had not fallen into the same errors with some others (Mr. Wetherell and Mr. Smyth) respecting the argument. They had represented this bill as fixing thirty, and even seventy years as a period, the enjoyment during which should exclude all claim of tithes. No man meant this when he spoke of living memory. Witnesses must be called to carry the possession back as far as the recollection of old persons could go. Nor would any judge, who might try such an issue, let the cause go to a jury, or call on the opposite party for an answer, if it rested on the testimony of persons who only spoke of twenty or five-and-twenty years back. But the right hon. gentleman had met the question more fairly; and feeling the point that pressed him, he had maintained that the church was in a different situation from all other properties—reminding the House of the risks of collusion between patron and incumbent, and of the possible length of incumbencies, as lord Coke had said that in his part of Norfolk two successive rectors continued in possession for above one hundred years. It is, however, not enough to say there is some difference in the situation of the church, or that extraordinary circumstances may occur to render collusions possible, unless it can be shown that there is a probability of such things recurring, and unless it can also be proved that the situation of the church is so extremely different from that of all other properties. as to put every kind of limitation out of the question—checks may be desired to prevent the collusion. The control of the ordinary may be superadded, the period may be extended, and if three or four incumbencies are joined to the lapse of time, the probability of successive collusions during a change both of parsons and patrons becomes extremely small. The change of patrons was a most material consideration in this view, for each collusive bargain made by the parson might then be expected to expire, there being no interest on his part to renew it with the succeeding patron. he asked, whether the House was prepared to say, not only that church property was peculiarly circumstanced, but that it was so completely different from all other property, that it never could be left to the legal protection which was deemed sufficient for every other kind of right? The right hon. gentleman had frequently described it as most sacred, and had dwelt on this expression; if he meant very sacred, he was not at all disposed to deny it. But if he meant to speak in the superlative degree, as instituting a comparison with the sacredness of other property, he must deny the justice of the expression, or say, that to him it was unintelligible. He admitted the rights of the church to be as sacred as those of other property—when he said they were rights of property, it was enough, for all property was in some sense sacred; it was not to be touched unless the public good imperiously required it; and the legislature always held, that the rights of individuals were to be respected, and never to yield unless where the necessities of the whole community demanded the sacrifice; in which case they every day were interfered with. That parliament had repeatedly legislated upon the rights of the church, was a matter of notoriety in every part of the united kingdom. He did not go to Ireland only for examples: he would not cite the famous vote of the Irish House of Commons against tithe agistment, as subversive of the Protestant interest; but if the act of the Irish parliament abolished that tithe, he did not feel himself at liberty to speak with the same disrespect, not only because it was brought in by the noble lord (Castlereagh), but because it was an act of the whole legislature. It proceeded, too, somewhat like Henry 8th's statutes dissolving the monasteries, upon a pre- amble that the claim had been for a long time abandoned. A better precedent was to be found in Scotland, where a most religious prince, the fast friend of the church, and one whom the church, on her part, regarded with peculiar favour, Charles 1st had immediately, on coming to the ancient crown of his family, carried through a measure for the universal abolition of tithe, commutation, and sale. But this measure, how beneficial soever it had proved for Scotland, he did not cite as an example for this country, where any such violent change was quite out of the question. He only gave it as a specimen of the interference with church rights, which parliament had from time to time sanctioned. In England it had also dealt with them for the public weal—to promote agriculture it exempted newly-cultivated land, in Edward 6th's reign, from all tithe for seven years. In the reign of king William it fixed the tithe of hemp and flax at a certain small sum in money; and just before the present king came to the throne, it made a similar regulation for exempting madder from tithe. He called for no encroachments; he only asked, that when the plain interests of the community, and the quiet of men's possessions required it, the House should not deem itself precluded from legislating, because the church was in question. He verily believed the interests of the church itself, and those of religion, required it as much as those of the lay proprietors. The same arguments which are now urged against limiting the church, had been used against the Nullum Tempus bill respecting the Crown. The church, too, it might be remarked, was the first author of the statutes for limiting the Crown. The maxim, that no time should bar the Crown, was first objected to by the church, with whose quiet it was found to be incompatible. Lord Coke, whose authority was relied on so much, finds no epithets severe enough for the concealors in those days; he calls them gluttons and harpies—but it is "templorum helluores"—they swallowed up the church property by availing themselves of the dormant claims of the Crown. As soon as the church took the alarm, the first bill for limiting the Crown passed in the 39th of Elizabeth, and it was confined to securing the diocese of Norwich against such claims. In the next reign, the more general measure was brought forward; but it was met, as the present bill is, with many arguments on the danger of limiting the Crown. The Crown property, it might be said, is held in trust for the benefit of the state. The king does not himself superintend its management; he confides in persons who have no permanent interest in it: favorites whose interest is not only different from, but opposed to, that of the community, may obtain possession, and keep it by connivance of the prince and his advisers; and thus the Crown may be despoiled of the property vested in it for the benefit of the commonwealth. All such arguments, perhaps more applicable to the case of the Crown than of the church, were urged in vain, both in James 1st's time, and against the more effectual measure of 1769. After much opposition, both from the sovereign and in parliament, the first bill passed, and the 9th of George 3rd was again carried through parliament after ample discussion. Placing the claims of the Crown upon the same footing with those of every other person; and giving the subject the same perfect security against the Crown, as he enjoyed against all others except the church, it was only just and reasonable that now at length the same principle, modified in its application according to the circumstances of the case, should be extended to the church itself. The gentlemen on the other side, were apt to forget the origin, and the history of property in tithe. He did not mean to mention the early division of them, by which at first a fourth and afterwards a third alone, were enjoyed by the rector. But it might be observed, that for many ages they were held by the church upon conditions, from which the lapse of time and the provisions of the legislature had wholly relieved it. One condition was, the repair of the whole building of the church; this by the common law, is now confined to the chancel. Another condition was, the maintenance of the poor, now thrown upon the landowner. Nor was this last condition confined to early times. As late as the end of the 14th and beginning of the 15th century, there were express provisions for setting apart a yearly sum out of the tithe to support the poor of the parish, as often as any rectory was appropriated. The statutes of Richard 2nd and Henry 4th required this provision to be made, as well as that for a vicar; and it was the condition, sine quâ non, of every appropriation. This continued to be law, as long as appropriations were practised. Blackstone considers (in which opinion he has not perhaps been followed) that an appropriation may still be made. If it is, it can only be effected legally by a compliance with the statutory conditions of endowing a perpetual vicarage, and providing permanently for the support of the poor. The residence act of Henry 8th proceeds upon a statement, that one of the chief duties of the rector is the support of the poor; and the keeping of hospitality. This principle runs through its whole provisions; and also through all the decisions upon it, down to the time of lord Mansfield. Nor can any weight be given to the opinion of those who question the position, that the maintenance of the poor formerly devolved on the church and the monasteries, and who vouch for this from sixty years having elapsed between the dissolution of the religious houses and the 43d of Elizabeth—for it is well known, that no less than ten statutes for the relief of the poor were made between those two periods; one of then: the same year that the lesser monasteries were dissolved. Now, when the church has gained so much by lapse of time; when the change has been so great in its favour, that it now, and for many years past, has enjoyed its tithe and lands wholly unfettered by the conditions under which they were first given, and for so many ages held, surely it is not asking too much to require the adoption, upon the other hand of such regulations as may communicate to the land owner something like a secure and quiet enjoyment of his property. The burdens formerly annexed to church property are, by usage and positive law, indisputably made to rest on the owner of land. He only asked, that the course of time and events might be suffered to complete the security of his tithe, which he takes with all its burdens, new and old. He counted it a grievous mistake to complain of innovation in this question and on the church. The truth was, that they on his (Mr. B. 's) side of the question, had alone the right to make such a complaint. Every year changed the period of limitation (such as it was) in favour of the church; for every year carried us farther away from the 1st of Richard 1, and the 13th of Elizabeth. There was a constant change going on in favour of those who cried out against alteration, and against those who desired that rights and titles should be fixed in security. What, he asked, was to draw the line, and prevent this innovation from going on any longer, until it rendered every thing like certain, and quiet possession impossible.—He had only applied himself to answer the arguments brought forward professedly in behalf of the church, and as he thought really contrary to its true interests. But nothing whatever had been urged in defence of the lay impropriator's right to hold his tithe free from all limitation. To his case none of the arguments had any application. Indeed, the right hon. gentleman had almost admitted this, although he endeavoured to set up something like a claim on the part even of the lay impropriator, by asserting that every thing which affected the right to tithes, in whose hands soever it might be, indirectly, if not immediately injured the claims of the church. To this, he should only say, that it proved too much; for tithe was not the only kind of property enjoyed by the church. It was richly endowed also with land; and the right hon. gentleman might, therefore, just as reasonably contend that there should be no limitation to claims of real property generally in laymen, because the kindred rights of the church to its real estates might suffer consequently. This kind of argument, he could not help thinking somewhat refined, and even fantastical. It betokened no great solidity in the distinction taken upon tithe property. Indeed, he conceived the case of the lay impropriator to be abandoned by the antagonists of the bill. Hence alone, if there were no other reason, he should have expected the bill to be at least sent to a committee. His learned friend (Mr. Wetherell), had defied them to produce any authorities in favour of their principle. He had already referred to Mr. Justice Blackstone, no great enemy to the establishment, and no very rash reformer. But he should now cite another, still higher name among the friends of the existing system, and the adversaries of all innovation—he meant Mr. Burke—who had strenuously supported the bill of 1772, for quieting men's possessions against the claims of the church—and these were his words—"This is to take nothing from the church, but the power of making herself odious. If she be secure herself, she can have no objection to the security of others. I heartily wish to see her secure in such possessions as will enable her ministers to preach the gospel with care, but of such a kind as will enable them to preach it with full ef- * fect, so that the pastors shall not have the inauspicious appearance of a tax-gatherer."*—This, too, was his (Mr. Brougham's) earnest wish. Among the causes of irreligion or lukewarmness, and ecclesiastical feud and schisms, he believed none to be so prominent as the disputes which arose out of tithe: and of these disputes by far the most irksome to both the parson and the land owner, were those which grew from the insecurity of possessions, and the liability to be disturbed after long enjoyment. He wished to sec the ground of these for ever removed, that nothing but peace and harmony might prevail within the sacred precincts of the church, and that the pastor and his flock might live in uninterrupted concord.

Mr. Peel

declared, that he should not have trespassed on the patience of the House, by opposing the bill in its present stage, had not the hon. and learned gentleman thought proper to allude to the sentiments of his right hon. friend. The hon. and learned gentleman had objected to the words, "most sacred," as descriptive of the patrimony of the church. Perhaps there might be some difficulty in such an application of the word, but at. any rate there were peculiarities in the property of the church which distinguished it above all property that ranked as secular. It was set apart for the support of the ministers of religion; and although he would not insist on this point, the House must. be so far aware of the importance of religious instruction to the community as to respect the maintenance of those who imparted it. It was greatly to be feared that the tithe-holders formed the majority in opposition to the claims of the church. With respect to the hon. member's bill, he must say, that in his opinion, it was the most extraordinary that could well have been framed, considering the magnitude of the subject. The preamble did not even state the grounds and objects of the bill; and if the hon. mover should withdraw the first paragraph, which he seemed disposed to do, it would declare any thing, except the matters to be enacted by it.

The House divided: For the second reading of the Bill, 15; Against it, 44: Majority, 29. The Bill was consequently lost. * See New Parliamentary History, Vol. 17, p. 307.