HL Deb 02 August 1842 vol 65 cc952-63
The Lord Chancellor,

in moving, that the Limitation of Actions' (Ireland) Bill be committed, took that opportunity of stating, that he had prepared a clause guarding the rights of persons who were not in a position at present to enforce them. He thought it, however, better to postpone introducing the clause until the third reading of the bill.

The Earl of Glengall

wished to know the nature of the clause, and also when the bill was to come into operation.

The Lord Chancellor

The nature of the clause was, that those who at present had not conformed to the Protestant religion, should have their rights reserved to them. He proposed, that the bill should come into operation in July, 1844.

The Archbishop of Armagh

objected to so long a period being allowed to elapse between the passing of the bill and the time of its coming into operation. When the English act passed, it came into operation on the 31st December following, and he saw no reason why any difference should be made in the present bill. It was his (the Archbishop's) intention, if the noble and learned Lord adhered to the period specified by him, to move, that the bill come into operation at the close of December, 1842.

Lord Monteagle

said, that in ordinary cases, six months would be ample time to give parties an opportunity of commencing actions. But, in the present instance, he thought that period by no means sufficient. The case that might arise was this. Suppose a living now filled, no steps could be taken by the party claiming the right to presentation until the death of the present incumbent. It would, in his opinion, be very unjust, that the party should be debarred from asserting his rights whenever an opportunity for his doing so arose. Let the shortest possible period be given after the appointment really occurred; but he (Lord Monteagle) considered it very hard indeed, that the party claiming the right should be debarred by any interval of time, if in that interval no opportunity had arisen for contesting his claims.

The Bishop of London

What the noble Baron has urged is as applicable to one, two, or three years, as to any other period. In fact, his suggestion, if acted upon, would vitiate the principle of the bill altogether. A period of sixty years and three presentations he thought sufficient protection to those claiming the right of presentation.

The Lord Chancellor

The bill was in that respect, precisely the same as the English bill. Now, with respect to the memorial signed by the twenty-six Peers, there was not one of them who had not been for sixty years in a position to enforce his rights.

Lord Campbell

said, that the bill, as it stood, afforded ample protection. No man could reasonably complain, when sixty years' adverse possession, and three incumbencies, were necessary to bar an action.

Earl Glengall

said, the noble and learned Lord appeared ready and anxious to strangle those who claimed the rights of presentation with the utmost rapidity. He regretted that a bill of this nature should be forced on at so late a period of the Session. In fact, all the opponents of the measure, except in his solitary instance, had left town. It was generally believed that this bill had been postponed sine die, and so, in fact, it was on their Lordships' papers. The Irish Society had also left, and he was there as their single representative and he much feared they had left their case in very incompetent hands. He must insist upon it, that there was considerable difference between the English case and that of Ireland. The Irish Roman Catholic families had been deprived of their right to the presentation of livings, first in the time of King Charles, and again in the time of Queen Anne. The Crown and the Church received the livings in trust, until the Roman Catholics should conform to the Protestant religion, and on behalf of those who had conformed he stood there to support their just rights. It had been insinuated that those conformed Roman Catholics had not done their duty; but he maintained that it was the Crown and the Church that had not done their duty. Those confiscations took place after the great rebellion of 1641, and again after the battle of the Boyne. The treaty of Limerick, however, protected the rights of the Roman Catholics. The second article of that treaty states that all the Roman Catholics who adhered to King Jamesߞ "That they and every of them shall hold, possess, and enjoy all and every their estates of freehold and inheritance, and all the rights, titles, and interests, privileges and immunities which they and every or any of them held, enjoyed, or were rightfully and lawfully entitled to. And all and every the said persons shall have, hold, or enjoy all their goods and chattels, real or personal, to them or any of them belonging and remaining, either in their own hands or the hands of any persons whatsoever in trust for, or for the use of, them or any of them. Now that was exactly the state in which the heirs of those parties were at present, and are they all to be deprived of their rights? Have you not (said the noble Earl)—have you not taken enough from us already? Will not three-fourths of our estates satisfy you? Are the adventurers of Cromwell and King William the 3rd not yet satiated with the plunder of the Roman Catholics of Ireland, but that you must now, in 1842, perpetuate a portion of the penal laws? The noble and learned Lord opposite said we, who signed the memorial, had all of us for sixty years been in a position to try our rights. I, for one, have not had that period, and I know others whose families have not been sixty years conformed to the Protestant religion. He appealed, therefore, to the justice of the House not to debar the heirs of those who, by conforming, had regained rights forfeited at the periods to which he had alluded. It was to the trusteeship part of the business he, however, principally objected. The Crown and the Church had not fulfilled their trust. They had seized upon the livings of the Roman Catholic gentry, and by this bill they seek to maintain a legal right to them. Whenever the Crown and the Church present by lapse, they admit that there is a rightful owner, and that owner was to be found in the Roman Catholic families who had conformed. They had forgotten that they were but trustees, and had presented to their advowsons jure suo. The effect of this bill, if passed, would be to force parties to present to the livings forthwith; but if their Lordships knew the number of the livings claimed, they would see how utterly impossible it would be to do so. He was almost afraid to name the number, but be thought he should be under the mark when he stated the number to be 500; and it was no easy matter to get 500 clergymen to name to those livings. This was a case which should not be taken up hastily in this manner, and at the end of the Session. It was one which required the greatest consideration, and the calmest attention of Parliament. When the question was last brought before the House, and at a time when the noble and learned Lord (Lord Brougham) was on the Woolsack, ample time was given to the parties interested. In the course of the recent discussion the case of the Irish Society had been strangely mixed up with that of the Roman Catholic families, but they had nothing whatever to do with each other. But then it was said that because a bill, like the present, had been passed for England, its provisions must, of course, be extended to Ireland. He must loudly protest against such a principle being acted upon. It was too bad, because wrong had been done in England that that wrong was also to be inflicted on Ireland. He (Lord Glengall) was a sincere friend of the Church, and was the last man who would be inclined to say anything against it. If he were its enemy he could support his arguments in a very different manner. But he repeated he was the staunch friend of the establishment, and would do nothing to disparage either the Church or the Crown. It was well known that he always stood up for the Church, and abused his old friends the Roman Catholics as lustily as any one. There was no sacrifice in reason he was not ready and willing to make in support of the establishment, but the present bill he thought was going too far. The noble Earl concluded by expressing a hope that the rights of persons situated as he was would be guarded as well as those who had not yet conformed to the Protestant religion.

The Earl of Wicklow

trusted that the Government would press the bill without any further delay. The bill at present on their Lordships' Table was the same as that introduced nine years ago. The amendment which had been made in the bill at that time was made with a view to give the parties interested time to take steps for the recovery of their rights. lf, therefore his noble Friend had allowed the nine years to pass without instituting proceedings, the fault was his, not their Lordships. The evils of the system were accumulating, and he firmly relied that the House would not consent to perpetuate them. He had before stated, he regretted that the provisions of the bill for England had not been extended to Ireland. It was now, however, necessary, that this tardy act of justice should be done to the Church. He trusted his noble and learned Friend would not adhere to his statement relative to the period at which this bill was to come into operation. In England a delay of only six months was given, and he thought the same period with respect to Ire- land would be amply sufficient. His noble Friend (Earl Glengall) said that persons must be blind who did not see the difference between England and Ireland in respect of this bill. He was one of those blind persons, for he confessed he could not see the difference. The two classes who required protection under the bill were those who had not as yet conformed, and those who had already done so, but not a sufficient length of time to enable them to contest their claims. Those two ought to be protected, and when that was done, he hoped the bill would pass without delay.

The Archbishop of Armagh

When this bill was read a second time, a noble Marquess who sat at the opposite side, stated, as the ground on which he opposed this measure, that during the incapacity of the Roman Catholic patrons of advowsons in Ireland the Crown had neglected the trust reposed in it, and had either usurped those advowsons for itself, or allowed the bishops to usurp them, and that the bill now before the committee would prevent their true patrons from recovering them. He conceived that this broad assertion made by the noble Marquess respecting the usurpation of advowsons, was not borne out by the facts of the case; and I wrote to a professional gentleman in Dublin—one of the most eminent civilians of the day—who has been engaged in almost every suit that has been instituted respecting advowsons for several years past, and I have received from him a letter, part of which I would take the liberty of reading to the House. The writer of it is Joseph Radcliffe, Esq,, L.L.D.:— As to Lord Clanricarde's assertion of general encroachments of bishops, they are not warranted by the facts of any case brought to trial within my recollection, But if his Lordship will specify the particular cases to which he has referred, I can make inquiries to ascertain the correctness of the charge in such instances. I presume his Lordship knows nothing of such matters himself, and only derives his information from others. So far as my experience goes, I think the interests of the Crown in regard to its ecclesiastical patronage have been for years and are particularly well attended to. If encroachments have been made, I think such have been more on than by bishops. And though I do not wish to state particular instances from memory, I am certain 1 could bring forward one case at least in which the Crown has converted at best a very doubtful title, into what may be called a good one by possession, in cones- quench of the unwillingness of the bishop to embark in expensive litigation. The rule of law, that on its appearing to the court in a trial of guare impedit between A. and B., that the title is in the Crown, judgment should be given for the Crown, though no party to the action, throws much difficulty in the way of encroachments. Your Grace is probably aware, that in former times, and particularly after the restoration of King Charles the 2nd, patents were often obtained from the Crown granting advowsons, and other properties to which the Crown had no manner of title Length of time has terminated all disputes respecting other species of property, but there being no statute of limitation as to advowsons, difficulties still arise from such grants. Bishops cannot in general prove original title save by collations, the records whereof are in many dioceses imperfect; and in some cases lay patrons, owing to the destruction of public records, and their own muniments of title, are obliged to rely on presentations in support of their title. The bill in question will, in my judgment, benefit all parties, particularly lay patrons, who, if desirous to sell their advowsons, can seldom make out a good title without incurring great expense. Besides, if a purchaser were tolerably certain of a good title, the rate of purchase of advowsons (at present low) should increase. I conceive, my Lords, that this letter supplies a satisfactory answer to the assertion of the noble Marquess respecting the usurpation by bishops of the advowsons which Roman Catholic patrons were deprived of by the acts of Charles the 2nd and Queen Anne; for it appears that in the many quare impedit actions which have been brought within the memory of this distinguished civilian, none of them have been grounded on any such plea, relative to usurpation of advowsons on the part of the Crown. My Lords, there is a remedy within the reach of those noblemen who have memoriated the Lord Chancellor against this bill, and who ask for some cheap and expeditious means, should be afforded them of recovering their rights. In the "Ecclesiastical Law Cases," will be found an account of the manner in which Lord Dunsany, whose ancestors were Roman Catholics, recovered the advowsons which belonged to them. The case is briefly this:ߞ The petition of right of Randal, Lord Baron of Dunsany, 6th February,1816:ߞ Upon the day and year above-mentioned, the Ring committed in charge to Thomas Lord Manners, Lord Chancellor of Ireland, a certain petition of right, signed with the King's hand, and by him thus inscribed. Let right be done our parties," to be executed in form of law, the tenor of which is as follows -.—That Randal Lord Dunsany, who had been an Irish Papist, died on the 16th of July, 1736, leaving Edward Plunket, his eldest son, and heir-at-law—that by virtue of the statute of the 17th of Charles the Second, and of the conformity of the said Edward Lord Dunsany, the advowsons of the churches of Kentstown, Oldcastle, and Kill-bride, did of right re-vest in the said Edward Lord Dunsany; but that King George 2nd, upon the next vacancies, continued to present to the said churches, by colour of the statute aforesaid—that Edward Lord Dunsany died on the 26th of June, 1781, seized of the advowsons aforesaid, leaving petitioner his eldest son and heir-at-law, who has always during his life been bred up and educated in the Protestant religion, by means whereof petitioner became seized of, and was, and is entitled to, the advowsons of the aforesaid churches—and that nevertheless King George 3rd did continue to present to them upon the next vacancies, and the incumbents so presented are still in the enjoyment of the respective churches; wherefore petitioner prayed his Majesty might take his case into consideration, and cause right to be done him in the premises. Upon the petition being read, the Lord Chancellor appointed certain persons to make diligent inquiry of the truth of the contents of said petition, and their inquest to return into the Court of Chancery under their hands and seals without delay. The commissioners accordingly reported that the several allegations contained in such petition were true; whereupon the aforesaid Randall, Lord Dunsany, now suppliant, came into court on the 1st of February, 1816, and prayed judgment, that he to the possession of the advowsons of these churches might be admitted and restored; whereupon the King's attorney-general saith, that inasmuch as all the matters contained in said petition are true, he does not but acknowledge and confess that the right of advowson of the churches aforesaid belongs to the said suppliant Randall, Lord Dunsany and ought, ac- cording to his petition in this behalf, to him be restored; and accordingly it was adjudged by the said Lord Chancellor of Ireland, that the hands of the said Lord the King should from the possession of the aforesaid advowsons be removed, and the petitioner to the same restored, saving, nevertheless, the right of all persons. With reference to those noble Lords who signed a memorial to the Lord Chancellor against the passing of this bill, I must beg leave to state, that there is not one of them who was not born a Protestant, as were also their fathers, and their grandfathers—[Lord Glen gall: "No."]—with the exception of the noble Earl's father; and he was a contemporary of mine at the University of Oxford, and of course was then a Protestant, and that is fifty years ago; and the noble Earl himself has been in possession of his property for the last eighteen years. So that ample time has been allowed to all those noblemen to discover the claims, if any, of their Roman Catholic ancestors, and to recover them by means of the proper tribunals. It is easy for noble Lords who have never themselves suffered from the evils which this bill is intended to remedy, to speak of those evils as if they were not of any great consequence. But those who, like myself, have been sufferers from the want of a limitation to actions respecting property, know to our cost how grievous the state of things has been in Ireland in this respect. My Lords, it has been my misfortune to have had to defend my property against a claim to it, which was set up by the Crown. A verdict was given in my favour at the county assizes where the case was tried. It was brought before the Court of Exchequer, and a decision given in my favour there. It was re-heard, and a third decision given in my favour. It was brought before the twelve judges, and they unanimously decided for me. I have never complained of this treatment, or paraded it as a grievance before the public. But I must say, that if I had not possessed an official income in addition to my paternal property—(it was my paternal estate which was assailed in this case)—the expense of successfully defending it would have been ruinous to me. And if the office of the Woods and Forests were to disclose what has been the outlay on the part of the Crown in these suits against me, I should think the expenditure on their side would be found to have been nearer 10,000l. than half that sum. My Lords, I have also lately had an escape, and a hair-breadth escape, of another contest with the Crown respecting the right of an advowson. I refer to the living of Armagh, to which my predecessors have presented for more than a hundred years past. On occasion of a vacancy of that parish, some years ago, I applied to the noble Duke (the Duke of Wellington) who was then Prime Minister, requesting him to give the deanery of Armagh to the person whom I was about to appoint to the rectory, as it was desirable that the two offices should not be separated (for the deanery in itself is but of little value), and as I was then about to commence extensive improvements in the cathedral, which made it desirable that the dean should be of one mind with myself in carrying on such an undertaking; I submitted at the same time the proofs which I possessed of my right to this advowsons. The noble Duke complied with Cy request, and the same person was nominated to the rectory and the deanery. In them month of August last, the situations again became vacant, and I wrote, as soon as I heard of it, to acquaint Lord Fortescue with the event, and to request that he would, as had been done before, present the deanery to the person whom I was about to nominate to the rectory. If it was wished, there was a living of about equal value with the deanery which could have been placed at the disposal of Government in lieu of it. I got a very civil letter from Lord Fortescue, saying that he had already given away the deanery. The Ministry, it so happened, were just then leaving office, and there was no time to spare scarcely sufficient time, indeed, to make good the presentation of the deanery to their friend. Lord Fortescue, however, said in his letter, that he had only nominated his friend to the deanery, although there seemed to be some doubt as to whether the rectory was not also in the gift of the Crown. The person whom I appointed to the living was the Regius Professor of Divinity in the university, Dr. Elrington, the ablest and fittest person I could find for the situation, which is one of considerable importance, as the parish of Armagh is very populous, and contains many public institutions. To my surprise, Dr. Elrington informed me that the Government were going to dispute my right to the advowson. I thought that this was impossible; however, I soon learned that the intelligence was derived from the Attorney-general himself, and was too true. I wrote to Lord De Grey, to mention the facts which I have already stated to your Lordships, and I received from his Excellency a very civil letter, in which, nevertheless, he stated that his first duty was to defend the rights of the Crown, as to which he must be guided by the law officers of the Crown. I then proposed to submit my case to the law officers of the Crown, if they would allow me to see their case; for if any facts with which I was unacquainted had come to their knowledge, and gave a different complexion to he business, I was ready to submit; I but I felt assured that my case was irresistible. After five or six weeks I went to Dublin, to pay my respects to Lord De Grey on his arrival, and I met at the levee the Attorney-general, when he politely offered to acquiesce in my proposal, that we should mutually see each other's cases before we proceeded to action. This was done and I never saw a mote defective ease than that which had been drawn up and submitted for the opinion of the law officers of the Crown. It omitted some most important words in transcribing a document which it quoted, and it omitted all mention of the fact that the patronage of this advowson had been already recognised by the House of Lords, as belonging to the archbishops, an appeal having been decided on by that House in the year 1730. When the Attorney-general and other law officers found, from my case, that the House of Lords had already admitted my right to this advowson, they at once abandoned the suit. The Attorney-general, with my permission, showed my case to Dean Hudson's counsel, leaving it open for him, if he pleased, to proceed with the suit, although the Government would not attempt so hopeless an enterprise. Mr. Blackburne, however, has been attacked in some of the newspapers which are friendly to the late administration, for having given up this action; and hints have been thrown out, that if there were a change of Ministry, and that Mr. Hudson's friends returned to power, I might expect to have my right to this advowson called in question by the Crown, and a suit commenced against me. On another occasion I was involved in a contest with Trinity College, respecting an advowson to which my predecessors had presented for 150 years, and which was of such small value, that neither the college nor myself would have contested it, but that we felt compelled to do so as guardians of a property, the right of which we were bound to maintain for the advantage of our successors. My Lords, having thus had experience myself of the hardships that ensue from leaving the patronage of the Church exposed to incessant litigation, I would urge you to pass this bill for limiting the time within which actions may be brought respecting advowsons.

House went into a committee.

The Lord Chancellor

said, after what had occurred, he should move words to the effect that the bill should come into operation on the 1st of January, 1843.

Earl of Glengall

That is only six months from this date. It will be quite impossible to find incumbents in the time.

The Lord Chancellor

As far as my experience goes they are plenty enough.

The Earl of Glengall

objected most strongly to the short time for commencing actions. It was impossible to try a quare impedit action for less than 1,500l., and, therefore, it would be very inconvenient for most people to try more than one at a time. The most rev. Prelate appeared to think, that the noble Marquess knew nothing of what he was speaking about on a former night. But the noble Marquess succeeded in his case, and, therefore, he did know what he was about; no man knew better what he was about than his noble Friend. As to the other part of Mr. Ratcliffe's letter, he perfectly coincided in opinion with the writer, and he would not desire a better case to go into court with. In the time of the reign of Charles 2nd, inquisitions were held on every man's estate in Ireland, and the Crown clearly ascertained what each man was possessed of. These inquisitions are now in existence, and are the best titles the proprietors had, and the most valuable documents they possessed.

Bill passed through committee with amendment.

House resumed; bill to be reported.