modern origin, the chance is, that terriers, and predecessors' books, would have been, as I have classed them, decidedly unfavorable to its validity; and that there would have been almost nothing in the shape of evidence on the other side. But if the modus had been of one hundred and fifty years standing, there is no doubt whatever that, in some one terrier, Incumbent's book, or receipt, it would have been so recognized-if it had been still a century older, such, to a certainty, would have been the case in many terriers, &c.—and your Lordship knows well the weight, which Courts of Law and Equity uniformly give to a single admission of a modus by an old Incumbent. In proportion, then, as the reputed modus is ancient, those classes of evidence, upon which the Clergyman naturally depends, become unfavorable to him; and he is thrown still farther back into periods, the documents belonging to which are much more likely to have perished on his side than on the other -for how very differently are the situations of the two parties calculated for the safe transmission of documents? The landowner has a permanent-the Incumbent only a life, interest; the former has a natural inducement to preserve evidence for his heirthe latter stands in no such relation to his successor; the heir of a property enters immediately into pos session-the succeeding Incumbent not until some months have elapsed; the new proprietor has a right to all the papers of his predecessor, and it is hardly possible that any of them should be lost or destroyed; in passing from the one to the other but the papers of the preceding Incumbent belong to his family, who may destroy, detain, or deliver them up to the adverse party. In direct opposition, therefore, to the learned opinions, which accompany the Commissioners' Report, I do not for one moment hesitate to repeat, what I have already affirmed, that the present law is favorable to the finding of a modus; and that the title to such protection, from the payment of Tithes, improves every day to the disadvantage of the Church -and I appeal the case, with great confidence, to your Lordship, notwithstanding the number of the authorities opposed to me. But it may be asked here-is it not plain, from the statements and reasonings on both sides, that an evil exists, which calls for the remedy proposed by the Bill? The gentlemen, who have expressed their opinions, have certainly found it a very easy matter to say that such a remedy is highly proper. But, my Lord, I have the misfortune not to be able to perceive any legitimate connexion there is, between the evil and the remedy. I agree with them most readily, that there is a case for the Legislature-but, then, the evil is one of law-proceedings; and the remedy proposed is to take away a right altogether. Now, this remedy, I grant, has the merit of being a summary mode of settling disputes. It has been no unusual observation, that if a large sum of money once got into Chancery, not more than two-thirds had any chance of getting out of it again; and the dread of a total absorption frequently led parties, in the end, to an amicable division. But a new principle might be introduced, in accordance with the spirit of the legal Appendix, which would speedily reduce the arrears of business in that expensive Court, and, at the same time, remove every ground of quarrel between the partiestake away the right at once, and keep the whole sum. And such a plan is, by no means, without its authorities; for it would be one way of following up Jupiter's surgical rule— immedicabile vulnus Ense recidendum and in perfect harmony with the "prescription" given in one of our English plays, as the last effectual “remedy" for a head-ach, "Cut off the head." But, my Lord, if the alleged evil, in the case of moduses, can only be remedied by depriving a party of a right altogether, I beg to remind your Lordship that here there are two parties, enjoying conflicting rights. Why, then, has it not occurred to "learned" gentlemen to propose the taking of the right from the opposite party? If a plan to this effect had been suggested to them, I have no doubt whatever that we should have had the fable of the Lawyer's decision, about the dead ox, in the case between him and the farmer, exemplified to the very letter-things would instantly have been changed, and the old half-hudibrastic saying adopted in the south, which is common in Scotland In Edinbro' the legal phrase is- -a new light would have broken in upon the Bar; and it would have been discovered that frequency of suits, and enormity of expense, and necessarily inherent ignorance in poor Clients formed no rational 、 ground of objection to the right itself, but only to the mode of proceeding, by which alone such right can at present be established; and we should have had are commendation, not that the right ought to be taken away, but only that some more speedy and cheaper process should be devised, to ascertain its existence, and give it effect. Your Lordship, I trust, will not believe that I have any serious intention of proposing that the Land owners should be deprived of the protection, which they enjoy from moduses and prescriptions. I am merely desirous of exposing the absurd haste, with which sensible men sometimes arrive at conclusions per saltum, and of showing them that they have ac tually accomplished a much greater feat, than if they had taken the other leap, which lay equally in their way. It would, perhaps, materially diminish the regrets of some gentlemen, who seem to fancy that the Church has been making rapid encroachments upon the good old privileges of landed proprietors, if they could be induced to believe-what is really not far from the truth-that, not more than one in three hundred of the reputed moduses in England, is so old as the time of the Dissolution; and yet, if they were all brought into Court, that nine out of ten would be declared to be good in law and valid-notwithstanding the advantage, which the Church possesses, of proving back to the reign of Richard the First. I regret that I have not, for this purpose, the published opinions of the most experienced EquityLawyers, to which I might refer as authorities. Your Lordship requires no such opinions; but the public, and many of the correspondents of the Law Commissioners evidently do stand in need of them; and, therefore, it would have been desirable, if a question had been put to men of the greatest experience in Equity, with the view of drawing answers from them respecting the probable antiquity of moduses in general. I will venture to say, that if Mr. Bell, for instance, had been asked for his opinion of this matter, he would have said that he had been consulted in a very great number of Tithe Causes, but that he never saw evidence of a modus, which led him to believe that it had originated before the time of the Commonwealth and, perhaps, he would have accounted for the number, which seemed to have arisen about that period, in the following manner-the Clergy rejoiced to find themselves re-established; and were contented to receive, during their Incumbencies, the same sums which had been paid for Tithes during the last years of the Commonwealth; their next successors required no great inducement to continue the receipt of the same payments-and, hence, they have descended to us with the venerable air of moduses, or immemorial prescriptions. I do not presume to say, that Mr. Bell would have used these precise words; but I have no doubt that such is substantially his opinion, as well as the opinion of many others of the most extensive experience. As the origin and history of moduses are imperfectly understood, and a certain knowledge of them is necessary, in order that they may be fairly dealt with in any new Legislative enactment, I will go a D |