PRESCRIPTION BILL. (Hansard, 22 September 1831)

The Bishop of Bristol

said, agreeably to an intimation on a former evening, he wished to suggest an alteration in this Bill, under a strong conviction of its expediency. Having already called the attention of the noble and learned Lord by whom the Bill was introduced, and of the noble and learned Lord on the Woolsack, to the subject, he hoped that the amendment which he had to propose would be approved by their Lordships. He trusted, that it was sufficiently evident that the learned and right reverend Prelates, among whom he had the honour to sit in that House, had done all in their power to remove any subject of just complaint against the Establishment, and to render it as unexceptionable as it could be made. He was equally anxious 481 with the noble and learned Lord to see some limitation put to the period which had been hitherto allowed for invalidating fictitious claims to prescriptive payments in lieu of tithes. He should be one of the last persons in that House, as well from consideration of the clergy themselves, as from regard to the interest of the landholders, to encourage precarious litigation for the setting aside of any modus; and it must be admitted that the clergy were not eager to come forward in such contests. A noble Baron, lately obtained an order for a return of the number of suits which had been instituted with a view to subvert unfounded claims; and as the result of the inquiry had not been brought forward, he had a right to presume that not many of the causes had been found to be vexatious or frivolous. He should not have objected to the period of sixty years, and the three incumbencies, if it were not obvious that these might already have had their retrospective operation, and that, in consequence, a very large proportion, of the whole body of incumbents, who had submitted to alleged prescriptions without any apprehension of injuring the property of the Church, would, were the Bill to pass in its present form, be precluded from any power of asserting their rights, however capable of being sustained. It had appeared that the intelligent and practical men, who were consulted by the Commissioners of Real Property upon this subject, in general contemplated prospective arrangements. He begged leave, therefore, to propose, that no prescription should be deemed valid and indefeasible, in lieu of tithes, where the sixty years should have expired, till after three years of a third incumbency, in the appointment of some person, to take place after the passing of this Act.

The Bishop of London

said, that in framing the Bill, it seemed to have been forgotten that the clergy were in a very different situation from the lay holder of tithes, whose property was in fee simple, and descendible to his heirs, and who therefore would take care not to let any modus or collusive payment be established; whereas the clergy, having only a life interest, and depending upon the nullum tempus principle, which made it practice- 482 able for any of their successors to assert their rights, had suffered many of these rights to fall into disuse—some from inattention, some from poverty, some from a love of peace, and some from a fraudulent agreement with their patrons. The effect of the Bill, with respect to the clergy, would be to extinguish almost all doubtful claims; for no person would think of setting up a modus, which could not be proved to have been paid for more than sixty years; and it was not probable that one half of the clergy, who were prepared to prove the invalidity of moduses, would undertake to institute suits within three years from the passing of the Bill, after which time all claims would be foreclosed. The effect of limiting the institution of suits to so short a period would be peculiarly hard on the clergy. It would compel them to bring a vast number of causes into the Exchequer, at a time of all others most unfavourable to the assertion of their rights, and would load them with an obloquy which the lay impropriator might fearlessly defy, or they must be content to see their just claims for ever extinguished. For these reasons, satisfied as he was that putting an end to the nullum tempus principle would be not less advantageous to the interests of the Church, than due to the just rights of landed proprietors, he thought that a longer period than three years, after the passing of the Bill, ought to be allowed to the clergy for the institution of suits.