The National Register. — London, England, 1818-02-22 00:00:00

11111.1.......7111.11.111711111.171111.1.171.1.1.11111.11511.11.11......11.m.4 / / i/dk Gribie-t / 1 rbt alio :di ititrr+ Our ink, t!'ondtitution any No. 514.—V0L. XI. SUNDAY, FEBRUARY 2E, 1818. Plod: 9.}d• Mr. CURIVEY'S SPEECH on the TITHE LAWS, and I own savours strongly, as I view it. of injustice. —lle next point to which I would wish to call the attention of the House, is to compositions real, which are compositions made between person, patron and or dinary, which might legally have been done till the res training act of the 13th of Elizabeth, chap 10. Maw such, no doubt, were mule. In a lapse of 240 years *once dose agreements were restricted, many deeds have been destroyed or lost. That at the revolution, the 31st of Henry VII I., 1.539, nearly one third of the whole property of tithes; passed into the hands of the Crown, and was sold and disposed of. That this per lion of tithes became, .to all intents and purposes, a temporal possession, end was parcelled out and sold to individuals many never had the original deed of convey ance in their possession. Now, the law rules as to compositions, that possession is no proof of title, no presumption of an original grant. The deed, and the deed only, is proof of any title. This is a monstrous doctrine ; what does Lord Ellesmere, Lord Chancellor, with the principal Judges, say, for tempts est edas rertnn, and records and letters patent, and other writings, either consumed, or are lost, or are embezzled ; and God forbid that ancient grants and deeds should be drawn in question, although that can not be shown which at first was necessary to the pro tection of the thing. Lord Hobart, in Slade and Drake, says, it is a strange anomaly to be thus dif fering from all other cases of law ; for whereas pre scription anti antiquity of time justifies all other titles, and supposeth the best beginning the la.v can give them. In this case it works clean contrary, and tide in favorem ecelesia., lest laymen should assail the church: .Non', if just and equitable us to the church, can have no reference to the lay impropriator.— In the ease of Barry and Evans, 1735, the Court will nut presume any grant or purchase of tithes, not eves in a case of it lay impropriator. Many Joa F es haveha different time expr6sed dissatisfaction at this doctrine. —The lath Lord Chief Baron of the Exchequer, in a case, Lord Peter and Memos, 1797, expressed him. self thus: " These determinations are perhaps to /:9 lamented; I should have liked better to have found, in regard to tithes, the same principal of' decision which regulates the title to every other :iv, It' non-payment for any length of time forms no presnmpticn of a grant ef the tithes, then the length of enjoyment, which in all other cases is the best possible title; serves only to weaken the claim of exemption from tithes, as the dif ficulty of tracing the origin is encreosed.' Lord lamgh . borough, in the case of Rose anti Colland, in Chan cery, 1800, also expressed his: disitatisfitction. And the present Lord Chancellor, in the' cage of Berney and Harvey, in 1809, says, " h do not think that I ought now to disturb this de , trine, which has prevailed so Ling, whatever I might have originally thought of it." —ln the case of Faushaw and Hare, in the Exche (per, 1743, Baron ('lark expressed himself on this point, as follows : I know no case that deserves mote consideration than this; for though the authori ties against such a praseription (meaning a prescription in non de:Almada) are very great, yet the objections to 'them grows weaker every day. Before the Reforma tion, all tithes were ecclesiastical, and a layman could have thew by diseaurge only, by the grant of I'arson, Patron, and Ordinory. Since that time there arc many other ways,. bah of having tithes, and being discharged from them. Since tithes have been in the hands of lay.impropriators, many persons have perchased dis charges for tlar particular lan.ls ; yet if these grants are lost in the cmnnson fhte of things, those persons must loose the benefit of their purchases, and that must often happen, though they be int-ailed, or any other way be taken to preserve them. Very few re cords relating to the church are now would be very hard that time, that t oilier rights, should weaken this." I . there will be little doubt of the juste uninterrupted possession that right it h cases, aga'nst the ('gored. Against the tors there cannot be a - shadow of-pET4ars iiro'ding it. On this point Ido tact an4ir jeetion" From anal 4fter the etlth . of 1570, agreements were made fig eat, change: Ned t omposii:ons, sari Mir Chancery all inclosures of wastes cil ,tisiges. &c. teem carried". into elTet by this mode, and, held valid . ; tjR the diseuseion by Lord Northington, 1 1 7(iti, In thithise • of the Attorney. creneral and Biosi v..Chohnlev,' When I they teeretleebred to be invalid. In the space of 1;;e1 scars; m any trewients were made anti earned wishing to contend fir. - Tor strict lege' pleadings in the courts of law, it was necessary that deeds should he lodged in the co l u,- that the oprsing parties tight ,have acce's to T) e the . Forty MOO years ego, Ke pyone in we case of Reid v.Wool:mai; ru ed, that instead of the prefect, it might be alledged that the deed was lost or destroyed by time and accident, .and that tisage would .prtele its Lord 'Kenyon obsoiverl, ." And this is fou aded. on neeesiiti7ittee Maunsati prudence can render deeds existing for ever." It will be incumbent on those who oppose the truth and jus tice of this noble lord's observation, to show why a de cision that has' preserved many just rights, should not equally be applied to tithes ! Having shewn both the proceedings of this time, and the latter practice of the Courts, has gone to strengthen and establish • the rights of possession, and to attribute to it the best beginnings,. I shall now proceed to discuss What the defects of the laws relative to tithes are, and the remedies . ] would propose. The ancient mode of the Clergy's proceeding for the recovery of tithes, vas in their own ecclesiastical court. When matter of fact arose, the Court of King's Bench stayed the proceeding till they were decided Dis putt% arising between the Ecclesiastical and Law Courts, as to the exercise of their jurisdiction, the same came to a solemn hearing before King James I. who decided, with the unanimous approbation of the Judges of the land, that the ancient law of .the King dom should be abided by ; Magna Charter having pro vided, "that no man should be deprived of his free hold, or free custom, but by the judgment of his peers, or by the law of the land. This decision seems acqui esced in fin. upwards of a 0 years, when by a fiction of law, the Clergy commenced their proceedings is the Exchequer, by acknowledging themselves to be debtors of the King, from the payment of tenths. Thus things proceeded till the case of' Gardiner amid Pule, 17W, whim Chief Baron Ward, and other Barons, trialyepeuee asa e ttato fox lr,y, a rank modes. is was appeaslea s safraMstreittid reversed in the liouse of Lords, and lield a good neelus. In the (*se of • Sansom and Shaw, in the Common Nees, 1748. i when it was contendiel that teapence fur mesultny or pasture was rank. . Setkant Belfield said, he was so old as to remember almost the very begin, ning of the name cf rank modus. That ,Lord Chief Justice B. Ward, was the first that intro ductal, it ; that he was a great patron of the clergy, and carried their rights a great way." Lord Chief J. Wills says, '• I am afraid, truly, there have been many cases determined upon the footing of rattling The fewer the better ; and I ant glad they :in: not in print, for then they might have in: s letl inere than they have already ; and. he observes, that the conse quence of these determinations is to il,.prive the laud . holders of what they have fitirly pttrehased and paid for." Mr—lustice Burnet says, " sty bruthor Beltield has given tic the history of the beginning of tile. doc trine of rank inoduees, in Lord Chief Larni Ward's time ; and I have had another cite given me. by a. learned judge, which chews the end of it. See the case of Gifford and Webb in the Exeltequer.—rn fortunately this did not prove to be the case. The e-, fence of the Courts of' Equity deciding ens !Mateo of fact, is alledged the prejudices cf Juries, their ignorance . of the value of money in the time of Richard I. on this head Ihave an authority that will weigh Is ith this House, and I hope on the Members opposite nee-1 ineen that I of the present Lord Chancellor, who, in tl:e case of , • O'Connor and Cooke, gives the true and constitutional answer, " I cannot Bold the language that has. been held as to sending this to the prejudice of a jury.--'1 jeer/ is the ainstittrtiouel tribunal of the country, and I ant not at libreeyeo suppose it will be guided by preju dice." Now, Sir, of the integrity met ability of those who preside in our courts of justice, no one entertains a higher opinion than I du ; but with every deference. I would ask, is it possible for them to establish any rule of discussion that can suit all cases ? Does not the quality of land as well as locality, produce a Area . ' and material difference ; what might be-right in one 'case, would be quite the reverse in another, and does not this font a very material fact flir ti ,jury toimpiire ink. There is one rule of the Courts - of Lquity, the grounds and justice of which I do net comptebeitd. In nil . cases where the Vector prays an issue. a trial by jurv, it is granted. Even were the misfits such es the Court would sustain, still they send iCto - a juity.-- Mhy the defendant should not equally be - i , it , 0 led to have a trial by jury, is quite inrienp.t . ...troibl.' to mc, The importance of the qustion of Tithes to all classes of the colo n:n:14y is such, that we conceive Mr. Curwen is rendering an essential serviiat by the industry with which he has purwrid the rihject ; and we trust no over-mmtiom will eperate to defeat the end 11,:lias in view, tiatneli,to assimilate the lawof Tithei to Ow of every oth,:r property. Amongltb:: many evils which the present srtem produces, that of Fourier the grinds of the parishoners against their pastors is not the least ; for as recourse to law is too often necessary tdobtaln that which the Incumbent thinks Ms right, the event, he it fur or against him, fails not to make all those to whom be was opposed, his towlines. 'fins leads to a, disgust to the church alto . settler, and hence the swarm ni sectarians that are spread over the country. Impressed, as we are, with a deep sense of the necessity • Of a change, we do nothesitate to give the very able speech of Mr: thirwen iA he .Hanse of Commonson Thursday night, entire. It siio4o a depth °treading on the subject, and an ability in its argil. ' Cr.ent \ which %;: Ales itto the highe 4 consideration. In rising to move foile4e to. bon g ina Bill to amend the laws relative to Tithes, the iimi l ',lcathus addressed the chailr : fn..SptAKER, _ .. .. . . . "Presrseigito catering on the subject which it is now my duty- to submit to the ['Ouse, I wish to explain and apOlegize for having taken up a business that would have come,yo much better front many other membns, I was induced to embark in it from the assistance af forded me by one of the ablest and most constitutional lawyers of the day, I mean my friend Baron Wood.— I trust this will not only be received as a justification, but entitle me to the attention of the House. The measure is, doubtless, one of great importance, both as it effects property, 'and as it has influence on the murals of the community. In order that the object of the Bill I have to 'propose, might be fully understood, and to prevent also groundless alarms, it was judged expedient to introduce it in the last Session, in order to have it. printed and widely dispersed. The avowed intention of the measure, is for the security of Tithe property, and the prevention of the extended and extending stale of litigation. By the papers befuce . the lieu . pe, it ap- pearS,..lllo Tithe - causes were decided is the last seven years, arid that an equal or greater number art pending; when 4.4. considered, that each of these. causes may have continued fire six or seven years, occasioning feuds and animosities that cause the church to be totally de weal ; this alone presents as evil that calls loudly for redress, were there no other grounds of claim for the interfereuce of the legislature. From the moderation and liberality which generally distinguishes the Church, I arc ; fatisfied it would nut be their Wish or desire the law should afford them facilities for the invasion of the tights and properties of others. Goa forbid any attempt shoUld be •matle to invalidate the security of the vested rights of any body. I - need . not disclaim it for irtybell, and still less for the quarter firm whence I have received such -able assistance. The Jealousy of this Hoek on all subjects which can 'be sopposed to inno vate an the rights of property, are highly honourable to it, and must render hopeless all attempts to infringe on vested interests of any kind. I contend for nothing that has not the sanction of the highest law authorities of ancient as well as modern Limes. I need scarce ob slave to the House, that, prima facia, all lands are legible to the payment of tithes. That the grounds of exemption are the paYment of moduses or exemptions, prascriptions, compositions, or discharges. M °doses, 'suppose a commencement prior to Richard ll. Forty years uninterrupted payment, pre-son:tows title which is impeachable in two ways, first, by show ing its eimmeneement to he antecedent to Richard I. and latterly, that ii, within little more than a century, by impeaching it on the ground of rankness. Ex emptions, prescriptions, compositions and discharges, are not proved by immemorial possession, but by the pro ductiim alone of the original grant 9r deed, by which they were created. These exemptions would be le gally granted till the I:3th of Elizabeth. before I proceed to discuss these diTerent branches, it may be expedient to advert to the law as it stood, with respect to other property. • Previous to the 9th of the present reign, possession was 11 3 bar to tlle.eaims of the crown. The injustice and oppression which' arose out of this, and especially oat °lone of the last eases, I mean, that. of the Duke of Por:land and Sh Lowther, when front the embezzlement nt destruction ofa deed enrolled in one ()tithe public offices, the Noble-bake had nearly been deprived of his property This produced the nulled:a tem pas act, by which the rights of the crown are limited to sixty years This MI is a foil recognition on the ant 0 of the legislature of the principle 1 am extant, and • 6 I strengthens I 3:unill h.. 1 11117,1 P. Lice of givinc , 4.4 • has in all PP . 4ewt c ism w • 11f,''IVA ttittipate a „.4 4 oC i';`%b nKeyani es, ItY it decreeilf-::N ..., 1 .