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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 VIII., 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 JoaFes 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 tomposii:ons, sari Mir
Chancery all inclosures of wastescil,tisiges. &c. teem
carried". into elTet by this mode, and, held valid.; tjR
the diseuseion by Lord Northington, 117(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; many 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 colu,- that the oprsing parties tight
,have acce's to T) ethe . 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 asaettato fox lr,y, a rank modes. is
was appeasleassafraMstreittid 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:sletl 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. bong ina Bill to amend the laws relative to Tithes, the
iimil ',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
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