HL Deb 28 July 1842 vol 65 cc752-7

On the Order of the Day for the second reading of the Limitation of Actions (Ireland) Bill,

The Earl of Glengall

objected to the bill. It was a measure of an important character, and a memorial signed by 700 noblemen and gentlemen, representing the hardships that would be inflicted by the bill had been presented against it to the Lord Chancellor.

The Archbishop of Armagh

The object of the bill which is now on your Lordships' Table, is to extend to Ireland the provisions of an act which was adopted nine years ago, respecting advowsons in this country. The bill proposes to limit the time within which quare impedit actions may be brought. It is founded on a principle recognised distinctly and of old by the laws of England—which principle is this, that a long period of adverse possession gives an indefeasible right to the property which has been so held. The act to which I allude was passed in 1833, and had reference to both real and ecclesiastical property. Its provisions with regard to the former, extended to Ireland as well as to England; but from the benefit with regard to the latter, the patronage of advowsons —Ireland was excluded. The design of the present bill is to assimilate the law of the two countries, and to give to Ireland the advantage of that measure, which was deemed requisite for the quieting of titles to church patronage in England. The same weighty reasons which convinced your Lordships of the propriety of passing the act of 1833, apply with equal force to induce your Lordships to extend its provisions to Ireland. The provisions which this bill contains are most equitable: they assign as a limit the term of sixty years adverse possession, or three successive incumbencies. But they enact that in no case shall a possession for 100 years be disturbed, although there may not have been three incumbencies in that lengthened period. Noble Lords are not to imagine that this bill is framed so as to work exclusively for the advantage of the Prelates of the Church, in securing to them the patronage to which they lay claim. On the contrary, I know myself an instance in which it will operate in favour of a noble Lord on the opposite side of the House, by preventing the Bishop of a diocese adjoining my own from endeavouring to recover the presentation to a valuable benefice to which he thinks he has a right, though his predeces- sors have been unable to establish it; and, doubtless, there are many similar cases. The measure, however, was one which, after mature deliberation, and the advice of the most learned, impartial, and upright judges, was thought to be fair and equitable as regarded such property in England. We take those provisions just as they stand, no matter for whom or against whom they may operate; and we ask you to apply them to Ireland, for the quieting of titles to property there, in the same manner as they have quieted titles here. A memorial, I have heard, has been presented to the Lord Chancellor by some noble Lords against the passing of this bill, on the ground of their ancestors having been Roman Catholics, whose titles to advowsons had been, as they represent, usurped during to incompetency of their true patrons. But I would observe, that there is not one of the noble Lords who have presented that memorial against the passing of the bill, who is himself a conformist from Popery, and now beginning for the first time to inquire into the rights which appertained to his ancestors. No, every one of them was born and brought up a Protestant; and it is too hard that the patronage of the Church should be left unsettled for the mere purpose of enabling the next generation, or the generation after that, to disturb this property, when neither the memorial lists nor their fathers thought fit to take the proper steps during the last fifty years, for trying their titles thereto. Had such a principle as that which is put forward by the memorial lists been adopted, had it found any favour in your Lordships' House, had it been thought to be fair and equitable, the act of 1833 would never have been passed by the Legislature. The benefits conferred on this country by the provisions of that act are acknowledged by all; I therefore wish them to be extended to Ireland; and would intreat your Lordships to give your support to the bill before the House; for the second reading of which I shall now give my vote.

The Marquess of Clanricarde

said, that on a future occasion it would he necessary to have much more discussion than the most rev. Prelate seemed to contemplate. They should look to the nature of the property to be affected by this measure. He had himself instituted many actions, and never failed, except in one case where a nonsuit was directed. He hoped the subject would be allowed to stand over for the present, and that some mode would be adopted of settling titles equitably.

The Earl of Wicklow

said, it was desirable that the measure should pass, and the question be set at rest. Ireland was originally included in the bill passed in 1833, but for some reason which he did not know, was excepted in committee. The law should be assimilated in the two countries, and he hoped they would go into committee, and that a day would be appointed for the third reading. There was no reason why the bill should not pass.

The Bishop of Derry

> said: My Lords, it is with great reluctance I rise to offer myself to your Lordships' attention, but as I am not in the habit of doing so often, and as the subject under consideration is one in which I must naturally be supposed to take considerable interest, I trust I may be favoured with your indulgence while I make a few observations upon it. My Lords, I certainly derive peculiar satisfaction from the course which the noble and learned Lord on the Woolsack has thought it advisable to pursue with respect to this bill, which I trust your Lordships will permit to be read a second time this day. My Lords, I look upon it as decisive evidence of the importance which the noble and learned Lord continues to attach to this measure, I say continues, because in the I Session of 1833, I find from the Mirror of Parliament the noble and learned Lord urged the adoption of this bill, with that clearness and perspicuity for which he is so eminently distinguished:— It is founded on a principle,"the noble and learned Lord said, "long recognised by the law of England, which principle is—that a long period of adverse possession gives an indefeasible right to the property which has been so held. Advowsons can only be contested in cases of vacancy. Now a vacancy may not occur within a period of twenty years; therefore, a period of three incumbencies, or sixty years, is adopted, but in no case to exceed a hundred years, although the three lives may go beyond that term. I find also by reference to the Parliamentary Debates on the same occasion, that my noble and learned Friend opposite (for I must take the privilege of calling him so) made the following observations— I do not recollect what was the case as regards the statute of James, but I think no limitation was fixed; it was from and after the passing of the act. The period so settled, and the date from which the act is to take effect, may work hardship to individuals. If, for instance, you say that this act should not come into operation for a year and a day, what would be the consequence? Why, the consequence would be, to bring a number of worthless and unfounded claims into the courts for the sole purpose of avoiding the operation of the bill. But, then, it has been said, that we are passing a law which is to have an ex post facto operation. Why, the very last act on this subject, that which was introduced by my Lord Tenterden, had that effect most completely; and Baron Hullock decided at Carlisle that its operation was intended to be such. It is obvious that if you do not insert the words ' from and after the passing of this act,' you induce a person whose right is about to be barred, to arrest his debtor merely for the purpose of obtaining an acknowledgment of his debt from him. And on reference to the debate on the third reading of this bill I find the following observations by the noble and learned Lord (Lord Brougham):— I have consulted the Chancellor for Ireland, and he is not aware of any reasons why Ireland should be exempted from its operation. Lord Plunket said— I certainly am not aware of any grounds upon which Ireland should be exempted from the operation of this measure. The bill was then read a third time and passed. My Lords, I have quoted these high authorities to satisfy your Lordships of the soundness and justice of this measure, and I can quote, further, the authority of another noble and learned Lord (Lord Campbell) now in his place, who propounded this measure to the other House of Parliament. I may be permitted to add, that the noble and learned Lord, who was then Chancellor for Ireland, had full cognizance of the justice and necessity of extending to the Irish Church the protection of this act, for he had, not long previously, presided as chief justice at one of those vexatious trials respecting advowson brought by the Irish Society against the late Bishop of Derry. Having alluded to this society, I must claim your Lordships' indulgence whilst I read a brief but correct return of their proceedings against the Bishops of Derry since the date of their incorporation:— THE VARIOUS PROCEEDINGS TAKEN BY THE IRISH SOCIETY AGAINST THE BISHOPS OF DERRY SINCE THEIR INCORPORATION, IN 1613. 1629. The farmer of the Taylors' Com- pany, deriving from the Irish Society, sued the Bishop of Derry, in a quare impedit, for the recovery of the advowson of Camus (the advowson now in dispute). The Bishop removed the cause to the Council Table, and further proceedings were stayed. 1662. The Irish Society instituted proceedings against the Bishop of Derry for the recovery of the advowson of Duhboe; but, after the cause was at issue, further proceedings were stayed. 1789. The Irish Society instituted proceedings against the Bishop of Derry for the recovery of the advowson of Faughanvale, but were unable to sustain them, and the proceedings were abandoned. 1830. The Irish Society sued the late Bishop of Derry, in a guare impedit, for the recovery of the advowson of Killowen, and a trial at bar was held in the Court of Common Pleas, before Lord Plunket and three other jndges, and a special jury, and a verdict was recorded against the society, with costs. 1838. The Irish Society sued the present Bishop of Derry, in a guare impedit, for the recovery of the advowson of Camus. A trial at bar was held in the Court of Common Pleas, before the four judges and a special jury, and a verdict was recorded against the society, with costs.—May, 1840. 1840. The Irish Society applied for a second trial of the same cause, which, after a lengthened argument, the court granted, in consideration of the weight and importance of the case; and a second trial was held at bar, before the same judges and a different special jury, and a second verdict was recorded against the society, with costs.—November, 1840. 1841. The Irish Society appealed to the twelve judges in the Court of Error, upon the allegation that illegal evidence had been admitted by the judges of the Court of Common Pleas. The case was fully argued during the Easter and Trinity terms of 1841, and the judges of the Court of Error gave an unanimous judgment against the society, with costs. —20th April, 1842. My Lords—In these proceedings, which affect the diocese of Derry, your Lordships will perceive that, in no one instance, have this society been successful, and I am really at a loss to discover upon what ground they can hope to succeed, except it be upon the weight of a corporate purse as opposed to the funds of an individual. I trust, my Lords, I have stated sufficient facts to induce your Lordships to extend to the church in Ireland that protection which you have already afforded to the church in England. I abstain from entering more at length into this subject, after the convincing arguments addressed to your Lordships by the most rev. Prelate who presides over the church in Ireland, and whose unwearied efforts to promote its best interests are too well known, and too universally acknowledged, to require any eulogium from me. The most rev. Prelate, no doubt, possesses a much higher reward—indeed the best earthly reward—the approbation of his own mind.

The Lord Chancellor

said, that, in the bill of 1833, Ireland had been left out, in order to give time to parties to establish their rights; but, though nine years had since elapsed, it appeared that nothing had been done, and that they had allowed those rights to lay dormant ever since. The object of the bill was to bring those proceedings to a close, but sufficient time would be allowed, as the bill gave no power to require that suits should be commenced immediately. When they went into committee upon the bill, there was no doubt that they would be able to come to some arrangement that would be mutually agreeable, but, at all events, it was time that litigation of this kind should be put an end to.

The Earl Fortescue

supported the second reading of the bill.

Lord Campbell

thought, that the time had now arrived when, taking care of existing interests, this measure should be extended to Ireland. It was monstrous that, in Ireland, parties should be able to go back to the time of Strongbow, if a presentation had been made so long ago, while in England a measure for the limitation of these suits had been carried.

The Lord Chancellor

would endeavour, before the bill went into committee, to frame a clause the object of which should be to protect existing interests.

Bill read a second time.