The Gazette 1983

GAZETTE

JANUARY/FEBRUARY 1983

Compulsory Registration and

the Irish Church Act, 1869

Robert D. Marshall, Solicitor

E all live in conditions which are a legacy from

the past. For lawyers, this is undoubtedly true,

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.

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.

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

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.

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