The Gazette 1983

GAZETTE JANUARY/FEBRUARY 1983 Compulsory Registration and the Irish Church Act, 1869 by Robert D. Marshall, Solicitor W E all live in conditions which are a legacy from the past. For lawyers, this is undoubtedly true, A policy of converting the tithe into a monetary payment began with the Tithe Composition Act of 1823 and was continued by a series of Acts until 1836. This policy of composition was abandoned in 1838 in favour of a system of rent charges under the Tithe Rent Charge Act of 1838.

but particularly so for conveyancers, the basic principles of whose craft are regúlated by ancient statute laws such as De Donis Conditionalibus and Quia Emptores. In recent years, the extension of the categories of title which are compulsorily registerable in the Land Registry under the Registration of Title Act 1964 has begun to rear its ugly head in urban and rural con- veyancing, with the result that conveyancers shudder when they hear of the Irish Church Act of 1869 some, perhaps, wishing that the Church of Ireland had never been disestablished. The purpose of this article is to examine the circumstances leading to the passing of that Act and the Sections of the Registration of Title Act 1964 which give rise to the conclusion that the title to large areas of land hitherto unregistered is compulsorily registerable. It is not proposed to go into the Redemption of Rent (Ireland) Act of 1891. Many of the consequences of that Act for modern convey- ancers are the same as those of the Irish Church Act of 1869. In the writer's opinion it would be better to deal with it under a separate heading. The Historical Background The period of almost thirty years between the passing of the Act of Union and "Catholic Emancipa- tion" in 1829 was the only period in Irish history of which it can safely be said that the country was ruled from Westminster on Westminster's terms. Thereafter, the degree of integration between the two countries was gradually reduced, starting with the religious issue, before turning to the land question and independence. Strangely enough, it was the resolution of the religious and land questions which was to have the most profound effect on Land Law rather than independence itself. Catholic Emancipation did not prove to be the panacea that people expected. During the 1830s, agrarian violence forced O'Connell to return repeatedly to the question of the tithe. The tithe was an incorporeal heréditament, originally in the nature of an ecclesiastical tax, amounting to one-tenth of the produce of the land, payable in kind, to support the Church of Ireland. The tithes were of two types, lay and ecclesiastical, but in political terms they were regarded as a tax payable to support the established Church, to which the majority of the people did not belong. 1

Five years previously, the Ecclesiastical Commissioners had been established under the Church Temporalities Act of 1833. Their powers were to concur in the making of fee farm grants by fixing a purchase price and to supervise the variation of rent charges in accordance with the terms of that Act. Under the Act, persons holding land from the Church corporations became entitled to expand their short leases to come into effect in futuro and the akin to the procedure for converting leases for lives renewable for ever into fee farm grants. The amount of the rent charged under such leases was related to the average price of corn which was grown in the area. For our purposes, the legislation of the 1830s had the following effects:- 1. t he Ec c l e s i a s t i c al Comm i s s i o n e rs we re established; 2. land was granted under statutory fee farm grants at a rent payable to the Church; 3. tithes were converted into monetary payments, for which the landlord was responsible. Despite the Church Temporalities Act of 1833, many ecclesiastical corporations continued to grant short leases to come into effect in futuro and the writer has seen one dated the 29th December 1870 2 made by the Vicars Choral of the Cathedral Church of St. Patrick Dublin for a term of twenty years commencing on the 1st October 1910. Disestablishment The next development did not occur until the passing of the Irish Church Act in 1869 and this, strangely enough, although stemming from Gladstone's desire to pacify Ireland, was passed partly as the result of Fenian agitation in drawing attention to Ireland's woes and partly as the result of a political ploy whereby Gladstone forced a dissolution of Parliament and a general election which Disraeli, the Prime Minister, lost. The election was fought specifically on the question of disestab- lishment of the Church of Ireland. 3 The primary aim of the Irish Church Act was to dissolve the union between the Church of Ireland and the Church of England and to sever the con- nections between Church and State in Ireland. Other 5