TITHES, EXPENSES, AND LITIGATION. (Hansard, 28 February 1831)

Lord King

presented a Petition from Grey-stock, praying for an Amendment of the Tithe-system. The petitioners complained, that they had been for thirty years involved in litigation with their Rector, and that they had lost many thousand pounds in endeavouring to support their ancient customs and moduses; that they had been dragged into all the Courts at Westminster, and into the Ecclesiastical Courts at York and Carlisle; that at one time forty or fifty suits were pending against different persons; and that, although the Earl of Eldon and Lord Lyndhurst had decided in favour of the petitioners on the subject of moduses, still the Rector persevered in opposition to their decisions. 1002 He would, with their Lordships' permission, read an extract from the Report of the Commissioners appointed to inquire into the laws relating to real property. The Commissioners say— On the still more important subject of tithes, we propose at present to consider of a limitation for them in the hands of the laity only. We hope to suggest some improvements in law, by which tithes, in the hands of the ecclesiastics, may remain equally valuable to them, and be rendered less productive of vexation to the laity. We are deeply impressed with the conviction that the property of the Church should be held sacred, and that the clergy should be protected in the enjoyment of their possessions and rights; but we conceive that the clergy might derive benefit from regulations that might lessen the litigation to which the claim to tithes now too frequently gives rise, and might rescue this species of property from the odium which, on this account, is sometimes unjustly cast upon it. We should venture to bring forward any propositions on this subject only after the most mature consideration, and after an ample opportunity had been afforded to those most immediately interested to give an opinion as to their probable tendency. With this view we have submitted certain questions respecting tithes and other ecclesiastical property to the right reverend the Bishops, and we delay proposing any alteration in the law upon this subject, until we shall have been favoured with the answers of such of them as may be pleased to communicate their opinions to us. We feel reluctance to propose any new rule affecting the property of the Church without their previous sanction. We are fully prepared to say, that in our opinion, the right to impropriate tithes in the hands of the laity ought to be regulated by the same principles as the right to any other species of lay property. For this purpose, they are not to be distinguished from common of pasture, estovers, rent-charges, or any other profit issuing out of land. They are in commerce, and they ought to be subject to the same rules of limitation and prescription by which other property is governed. The law has been settled otherwise. There is no statute of limitations applicable to the right to appropriate tithes; and, contrary to the general principles of jurisprudence, by the practice of the Courts, every thing has been presumed to disturb enjoyment and to stir up controversy. In a parish where the rectory is impropriate, it can be proved, that no tithes have been paid for a certain portion of land, and no claim has been made for them during two hundred years: the lay rector may have conveyed the tithes to the owner of the land. The presumption of a court of justice under these circumstances might be expected to be 1003 that he has done so, and that the deed has been lost: this is not like the presumption of a lost grant of an casement which we have ventured to censure. Upon sound principles of reasoning, the legitimate inference from the premises is, that there was a grant by which the tithes were severed from the rectory. Though the existence of an Act of Parliament has been presumed against the Crown to protect a much shorter period of enjoyment, it has been held, that such a grant cannot be presumed from non-payment against the lay-impropriator; and that, unless evidence be given of the grant having existed, tithes must still be paid to him. Long enjoyment, which strengthens all other titles, weakens this; and here the longer that the claimant has been out of possession, he has the better chance to recover. If the Lord Chief Justice had been in his place, he should have taken the opportunity of asking that noble and learned Lord, whether he intended to bring in a bill relating to tithes, which he was understood to have in contemplation, as there was a learned Gentleman in the other House who had a measure prepared on that subject, which he had delayed only on the supposition that the Chief Justice was about to introduce a bill relating to the subject.