The National Register. — London, England, 1818-02-23 00:00:00

I. S : I ~,h05iaia.....00. . 7 4 ;. , _ - 1 / 4 10.4. A "IN • fogfc 110 Vitn a i t 0 oaf •ts • 911, , tyig, Ctue ton6titntion anu tat ! No , 5`24.-I ' ot.. XI SPERCII on thc i; The important . ..l of the qaestio3 of Tithei•to rilLeVitetOf the vim ta.mity it such. that we coaceive Mr. C4rwen is rvnilering un es-Troial service by the imht•try with which he has potqled tin' sa!tivvt ; ani we tri ;t •io •r- , rlllln will ty.w.it,t3 d.Font the real he has in view. n:iinAy,to at:boil:It; the law of Tithes to that of every other property. Among the ni:oly crila whieh the I,retvitt t•stetit pm:loc.:A. that of wiring or the pn•ithotier , tezainst their rotors it not the 1e34 ; for et reeont so to Liw it too ofiva b.-ces.nry to obtain that which the Incumbent thiriltt hi; ri i :ht. the event. 1 1 / 4 , it for or against him. f. 111.4 not to make ail Cott: to wins) he %vat opposea, hit ere ::i:3. 'Phi; l? 31. t 3 a e..4. r itt. t.) et, chore) alto gather. ant? lie= Cu s , ....arni of a ,•tari:oll that ore t;weriti ovn the c Irri•reasell, RI WI ar.. with 3 li2V Of the of a change. we (to not hetitaw to give the v..ry ahlv .pc .h of Po.: CTrwen in the iionte of Co mnias lb ni4ht, emir I' a'atiriaa a depth of rattling on M... inivet. un.l an a Oimty i stmt which ent'.ll;:t it to the loighe;t conti.ieratiAnt. In tisiliz to rimy,' f to bring in a fill to a' n mi the Lys; r.;Litive Mernhzr Cott a.l.lr.;ssv.i the chair : Nitt.Sortnrn, t' Pi.M9its to emeriti • on the riblect which it is now t^.7 duty to submit to the House, I wish to explata and ipiogize fur having taken lip u busin:ss that would have come so much better from many other mcissbcrs. 1 was induced to embark in it from t 11: assistance at tract' me be one of the ablest a-id ufbst constitutianal law'yers of the nay, I moan my friend uz Wu:4 l -- I trust this will not only be received a: a jitsti::.%tti:in, b-... entitle me to the attention of the 1 lause. T;te ta:asare is, donbtles::, olie of great importance, beds as I: qffects property, and as it has influence on the utor,di of the community. In order that the ohlea of ::te i•;.:1 4 ... 1 1:1ve to propose, tni.c;hl be hilly 1:111.rso:rl, ,tel to pv...event trio groundless alarms, it was jtqlge,l expedi.tt t: - .• intr duce it in the last ,Seision, in order to have it p...nteal and widcly dispers.• I. The avowed intention ui the nawsurc, i.+. tor the secorltv of Tithe property, to! '. ill.; prJvcatioa of the 14::terlei and e\tending seale o's' iiiigation. By the papers lair.: the Masse; it :41- I b ica:s, I i:tt Tithe rans,;s acre deciacd in. the last seven years, and that an equal or greater number are petsdiag; V.*:TOPI it is consil :reit, that e a:•it of these causes may I::::•ccntiattet l fat sir or sevos years, occ a•ion" io , • leads tml Ituitnt,::llic. f, 4 at empt4i. the e hureh to he tot4tily de 4...ried; thi,a 1 -7 preßtipt an cvii that calls loudly fn. reslress, v..cre there no other grottntls of elaiai for the i7rerfer...nee of the legislature. Frew en. moderation -- ; 1 lilter.dity witich gutterallydistingoishes the CiturA, 1 out satisliea it ivotth! not he their with or desire the law shinild a. 1,.. I t:tcat facilities for *e invasion of the tights stud properties of others Cio:I fostad any a:tenipt should lic male to invalidate the si.entity of the v e t:d rights of stay to ly. 1 lioed not ins:l:Lim it ti r tlysele, sued s;i11 I. .s for the tiva,ler fr,pot wile' nee 1 Ii'AVC rec.!ived %Orli a bleassistance. The j,..aloasy of this lions,: on all saute... is which van Is. supposed to inno. vao on the rights of propet'v, are hi sly honourable to it, and must realer kip:less 'all attempts to infringe on vested interests of smy kind. I c attend for nothing that has. tan the sanctioss of the highest lax authuriticX of ancient as well as ashlers) times. I need scarce oh %arcc to the I lause, that, priol.4 jacir, all lands are liable to the icayment of tithes. That the grounds of c. , :emptioss are the payment of moduses or exemptions,• prescriptions, c o:apositions, or stischarigcs. NI oduscs, suppose a cominence tnent prior to liichard 11.- Forty Years uninterrupted payment, pre-supposes a tide which is impeachable in two wilt's, first, by show ing its comm.:net:meta to 1w stntecedent to Richard L and latterly, that is, within little more than a century, by it it on the ground of rankness. Fa t:alp:ions, prescriptions, compositions amd discharges, are not proved by immemorial possession, but by tl - e pro duction alone of the nriginal grant or deed, by which Clay were created. These exemptions would, be le g Illy granted till the 13th of Elisabeth. Before I proceed to discuss these diflitrent branches, it may be c%peiliut to advert to the law as it stood, with respect to other property. Previous to the 9th of the present rign, possession was no bar to the claims of the crown. The nip:nice and o pression which arose out of this, and especially out of one of the last cases, I mean, that of the Duke of Portland and Sir Jas. Lowther, when iron the e mbezzlement or destruction of a th4.‘d enrolled in one of the public offices, the Noble Duke hatl nearly b"en deprived of his property This rad:lced the -nuflaot herpes art, by which the rights of the crown 't t. , 'fun; tcd to slltv years This act is a fall recognition ' 011 flea var. o: the 14slaturc :....f the Finei•ie I am MONDAY, !:8, ISIS. wishing t 9 contend for. - For strict le 7 Tal pleadings in the court:: of law, it %vas TlVVessnry that deeds should he lodged in the court, that the Opposing parting might haVe iteeess to them. Forty eight years ago, Lord Ke nyon, in the east. of Itehl v. llrool.man, ruled, that instead of the prefoct, it might be aliedgksl that the 4,4 wiis lost or tlestro el by time and accident, and th.it it•zage would prove it. Lord Kenyon olyeryea, " And this is (.11 .ne,•essity, hire nu human prod..nct, can render deeds existing for ever." incn:nhent on those who o;m ise the truth awl jos ti..e of this nohlt lord's oliservation,•to show why a de cision that has preserved many .just rights, should nut o ptally l e Opp:iea to tit!1;.”:. AIX:111' shown Loth the !hi: true, ttni tho latter practice of the Coca:, has groat to str•:.ngthEts and establish the riOtts of posseF.,ion, awl to attribute to it the be.it i shall noes prOOV't to discuss tilt% (111,7,•ts of the lows I.4tativc to tithes odd the rctuodi.s I would propos.. The ancient made of the prim-Kling for the r •:.(.wy of thilk`S, WfIS in their own e:Tle•iastieal court. Nt . lien matter of fall 1M1';0, OW Court of ring's 11..n.e1i stayed the proceeding till they were decided Dis putes arising llitweeti the Eeticsiastical and Law t.onrts, ns to the e.;oreise of their jurisdietion, the same came to a solemn bearingb.!fore King James 1. who decided: ct ids the unanituoug approbation of the Judles of the hind, that the tioeient law of the Xing than should L. abided by ; Magna Charter having pso vided, " that no 111;111 141011111 be deprived of his free hold, or free custom, but by the jitilgotent of his peers, or by tis law of the land. This deei:;lost s'ettnis acqui esced in for upwards. of years, when by a fiction of Inv:, the Clergy emmtntheed their proeeeditty.s ht the E xc hequer, by aelittowhdging themselves to be debtors '.l the King, from the payment of tenths. This things proceeded ti!l the ease of Garlina mut Pok, 1705, who, Chid Baron Ward, nod other Barons, held twe'.vepenee au „mese -for. lay, a rank moans. This was app . ,:aled agaitra, and reversed its the. House of inttl • held a •good tinslits. In the case of nn and Shaw, in the - C , uitmon Plots, i 748. when it was eotwr that t•nipcne.! for meadow or picture was rtne:. .erjetint roltield said, he was so old us to real; caber almost the very begin ning the name cf nod: mans. 'That Lore'. C4ier Baron Ward, was tl:e find that introduced it ; that 1.4 was a ;.,T4.::it patroa et the c'secgv, and c their ri g iit a .way." Lord Chief J. " I am afraid, truly, there have been many eases determined upon the tinning of mai:els. The fewdr the better ; mid I am glad they are not in print, tie then tli c y might have misled more thaa they have ; and be ob:..rves, that the muse quil&.! ti.ese (feterminations is to kprive the land holders of what they . have flirty pttrehnsed and paid M osl r..liee I;urnet say•:, Nly brother h a s g i vco 411: the history of 0..: 1A• itting of the doe trine 01 rank nahitises, in I .ord Chick' harms Ward's time; and 1 have lost another c.ass ~oiven by a learned judge, whirls sliews the end of it. See the case•of Gifford and .\ sl - Qbb in the E.:ch.:quer —Cu flirtunately this did wit ittive to be the 'canoe. use de fence of the Courts of Eqiiity decidid.,:, on matters of fie, is idledged the prejtidiees of Jurics, their ignorance if the value of money ill the. time of Richard I on 1:11S head 1 have an authority that will weigh with this I and I hope On the Members upposite me--4inean shut of the present Lord Chancellor, who, In the case of O'Connor and Co.ike, gives the true and constitutional answer, " I cannot hold the language that has been held as to sending this to the prejudice of a jury. —.1, .jury is the constitutional tribunal of the country, and I tun not at liberty to suppose it will bef guided by preju% dice." Now, * Sir, of the integrity and ability of those who preside ip our courts of justice, a.> one entertains a higher opinion than I do; but with every deference, I would ask, is it possible for, them to establish any rule of discussitm that can DA all cases P Does not the quality of land as well as locality, prodnce a great and material difference ; what might be right in one case, would be quite the reverse in soother, and does not this form a very material fact far jury to inquire into. There. is one rule of the Courts of Equity, the grounds and justice of which I do not eomprehend. In all eases where the Rector pray; nn issue, a trill by jtirr, it is granted. Even were the modus such 2S the Court would sustain. still they send it to a ury.— Wle'the 4.4niivint should not equally he entitled to have a trl.ll by . ; , try, is quite incomprehensible to me, .. • ' 91. d. incrust; nod I own savours'itrotwly , . nit view it of r• • - .. .. —The next point to which 1 would stish to call t!.e. attention of the [louse, is to compositijEi real, w1,'.. , , are composition.; made betwerit pemon, patron mid or dinary, which might legally have been done till the re'- training act of the I tit' Elizeletth, chary lit. Many . such, no &edit, were made. la a lapse of 2.40 rears since these. agreetnonts were restricted, menus 1..1, letee been tlestroytel or lost. That et the revcdution, the 31st of ['clay VIII., 15.39, nearly one third of the whole pm;ierty of tithes, passed into the hand: of the Crown, roil was gold and disposed of. That 111:s le r tion of tithes liecame, to all iottniet an-I pur;;:eee, a temporal possession, and was parcelled out and sehl tee individuals titaey never hail the originel deed tiler:tee:. :we in their pessession. Now, the law rolee us 1,) cotepositione, tint? possessien is no proof of title, no presumption of tin t te . i .,inal grant. The deed, ue I the deed only, is proof of any title. T:.ie I: I 11ffiTIStreolg dot trille ; ".;I::t does 1.0111 Ellesmere, lard Chnneeller, svith the principal .Itelges e ety, fla (e pipes es! ilk:: rerosot, anti Iceords nod letters patent, and ether writinge. either eiatsureed, or are lost, cur are etithe.zeled ; and t N 011 fisrliid that aneitnt grant; and deeds should be thetwn in quiehion, ulthreig); tbate4m not he sliewn which At 11r4 was neccesary to the pro, teetiim of the thing. Lord il haft, itt Slade tell Drake, says, it is a strange unoinaly to be thus dif fer ing from all other cases of lacy ; for whereas pre.: scription and ;Antiquity of time justifies all other titles t and supposeth the best begiiiiiiug the law can givie them. In this case. it works clean vontrary, and this) in tarorent ceelesia., h.,:t ht:eiten should assail the church. Now, if just and equitable as to the church, tint have no reteretite to thou lay impropriator.-- In the ease.. of Ban: aad Evaree 1 : %;5, the Court will not presume any grant or. purchase of tithes, not even in a case of a lay intproi z ettor. Many ,lodges have at tiiili..rent time expressed disettisfaction at this doctrine. -iethe lete Lord 'Chief Baron of .Inn Exchequer, in 4. eAse. Lora Petra and .111 Tau ee, • t 1(.3'4 . - exereeeed him.. telt' thus: - " These detA*.niihtiftl .:ere piti.letps to its lanientetl; I should have iikcs' better to have found, in reeurd to tithes, the we prine.ipal of tleciedun whits's regulates the title to e. 46 - testier fee. If non-payment for any length of time fit: ns ao pressitnpticn of a grunt of the tithes, then the . length of enjoyment, which in all tither - eases is the best possible title, serves et 4 t', weaken the claim of exemption nem tither, ,Is the dig. ficulty of truing the origin is encreased." Lord Lotigh. borough, ill the case of Rose and Collard. lie Char eery, I SISO, also expressed his dissatisfaCtion. And the present Lord Chancellor, in the ease of Berney anl Harvey, in - I 809, says, " I do not think that I (eight now to dietirb this doctrine, which has prevailed to . lono, whatever I might have origitially thought of ii." —ln the lase of Fanshaw end Ilere, in the E er i e .. pier, 174:3, Baron Clark expressed himself on this peint, as follows: " I know no case that dews t more c e nt•itleratien than this ; for though the author'' , ties against such a ta.iseriptititt (meaning a prescription i n nun dee;lnitn.lo . , arc very great, yet the olliertitais to than grows weaker every day. lief Ore the lit:forma tion, all tithes were ecclesiastival, and a layman could have theta by di:telt:age tinily, Lv tite grant of Parson, l'atrote:.and it)111 4 0ory. ,Siatez that tittle there are . amity other witysebyth i )it having tithes, at,d lisieg tlischarged frinii•thent. Sitiee tithes have.been in'the 'lianas et lity-itapropriators, many peesonx. have pm-chased di s. eherges fir , h •ir particular 1311:is , i• yet if these grants arc lost itt the common thte of thing.. ;flose p e rs o ns must loose the benefit .of their• vurekases, and that must often happen, though they be inrolled, or say other way lie taken to preserve them. Very few re cords relating to the church are now extant, and it would be very hard that time, that strengthens all other rights, should weaken this." I should hope, Sir, there: will be ii“le doubt Of Coe justice of giving to uninterrupted possession that rifht . it has in all other rit eases , a e a'nst the Church. Ag ainst the lay-imp . •.• .. tors there ceanot be a eltalow of pretence rim ho ding its On this point Ido get anticipate an db. jertion. Front and after the 68th of Viatica', 1570, a g reements were made: Ott conveyances, ex.. changes and emitpovitions, sanctioned by 1 6 d ec ree ~f Chaerery ; all incloeures of wastee, drainages. &c. were carried into effect by this mode, and held valid, tit the discussion ley Lord Northington, 174(7, in the ca.sent' the Attorney General and Mori v.. Cholnilev, when they were dithered to he invalid. In the space of l 9 years, many avectneuts were male .tad teattitel ;ray ~_~..