It is not to be expected from the nature of these general commentaries, that I should particularly specify what things are titheable, and what not; the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual (17) increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or feræ naturæ (18), as deer, hawks, &c. whose increase, so as to profit the owner, is not annual, but casual (r). It will rather be our business (r) 2 Inst. 651. not the tenth toll, or tenth dish of the corn ground, belongs to the parson; but the tenth part of the clear profits, after the charges of erecting the mill, and the other charges of servants, horses, and other incidental expenses deducted. (Chamberlain v. Newte, 1 Br. P. C. 160, fol. edit.; Manby v. Curtis, 2 Pr. 295.) It appears, then, that for all corn mills, however ancient, if they have been accustomed to pay tithe, and for all corn mills erected since the statute, tithes must be paid. But where the date of the first erection of an ancient mill is not known, and it has never been subject to the payment of tithes, it will, in legal intendment, be taken to have been erected before the statute, and so to be tithe free. (Bohun, 127; Hughes v. Billinghurst, 2 Gwill. 644; and see 2 & 3 Will. IV. c. 100.) However, if any additional pairs of stones are added to an ancient mill, it seems now settled, after considerable fluctuation of judicial opinion, that tithe must be paid in respect of the increased quantity of corn ground. (Manby v. Taylor, 3 Ves. & Bea. 71.) Corn mills only are regularly subject to payment of personal tithe; but, by custom, tithe may be payable for mills of any other description. (Gibs. 666; Talbot v. May, 3 Atk. 18.) Besides the distinctions of tithe noticed in the text, as predial, mixed, and personal, there is another division of them into great and small tithe, which will be adverted to, post, in the note to p. 28. (17) See ante, notes 13 and 14 to this page, that this description holds good generally, but not universally. (18) By special custom, tithe may be payable in respect of animals feræ naturæ. Custom, if well established, and not inconsistent with positive law, or public policy, is conclusive upon all questions of tithe. (See stat. 27 Hen. VIII. c. 20.) Perfectly wild rabbits, in which no man has a fixed property, are not titheable of common right, when taken. (Worden v. Benet, 1 Rolle's Abr. 635.) Even of rabbits preserved in a warren, and which are strictly private property, it seems, no tithe can be demanded, except by custom: but a claim to tithes in kind of rabbits from a warren, or to a modus for them, may be established by proof of a custom. (Waltonv. Tryon, 1 Dick. 248; Ambl. 135.) The origin of tithes. to consider, 1. The original of the right of tithes. 2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying them. 1. As to their original, I will not put the title of the clergy to tithes upon any divine right (19), though such a right certainly commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, besides the positive pre-. cepts of the new (20) testament, natural reason will tell us, that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with the necessaries, conveniences, and moderate enjoyments of life, at their expense, for whose benefit they forego the usual means of providing them. Accordingly, all municipal laws have provided a liberal and decent maintenance for their national priests or clergy: ours in particular have established this of tithes, probably in imitation of the Jewish law: and perhaps, considering the degenerate state of the world (19) The excellent Bishop Latimer, Yet, gospel institution." The Jewish theo cracy apart, it has since been proved, by the learned Selden, (Tr. on Tithes, c.5,) that "the payment of tithe to the Christian church cannot be dated further back than the close of the 4th century." (See also Prideaux on Tithes, 139.) (20) Rayner, (Introduc. ii.) observes, that "our author might have referred to the Old, more properly than to the New Testament." The latter, indeed, it is believed, affords no positive precepts on the subject: but Rayner refers to the following authorities in the Old Testament: Levit. xxvii. 32. Numb. xxiv. 28. Deut. xii. 6, 11, 12, 13, 28; xxvi. 12. 2 Chron. xxxi. 5, 6, 12. Nehem. x. 37, 38; xiii. 5, 12. Amos iv. 4. Mal. iii. 8, 10. A similar remark had previously been made by Ayliffe. (Parerg. 505.) in general, it may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine right whatsoever, unacknowledged and unsupported by temporal sanctions (21). troduction into We cannot precisely ascertain the time when tithes were Their first infirst introduced into this country. Possibly they were con- this country. temporary with the planting of Christianity among the Saxons, by Augustin the monk, about the end of the sixth century (22). But the first mention of them, which I have met with in any written English law, is in a constitutional decree, made in a synod held A. D. 786 (s), wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in (s) Selden, c. 8, s. 2. (21) "In point of natural justice, it is clear, that the clergy have a claim to some public provision, and tithes are the species of such provision prescribed by the municipal law; the foundation is sufficiently solid on which to rest their title." (Toll. on Tithes, 11, citing Sims v. Bennet, Gwill. 887.) (22) Upon the passage in the text, Toller (s. 3, p. 6) observes, "if the only ground for the surmise is, that the payment was commonly urged and inculcated from scriptural texts, as consonant to the divine code, then, it may be referred, with equal probability, to a much earlier period than that of Augustin's mission from Gregory the great: for, Christianity prevailed generally among the Britons, and many ecclesiastical synods were holden here anterior to the Saxon dynasty." Any reader, who is disposed to pursue this subject further, (and, it is believed, whoever does so will find the trouble of examination repaid by the interesting nature of the information he will acquire,) may discover incidental illustrations of it in Tertullian, Origen, Eusebius, Theodoret, VOL. II. Clemens Romanus, &c., or, without the labour of examining these original authorities, he may find summaries thereof in the introduction to Camden's Britannia, in Usher's Antiq. Brit. Eccles., in Stillingfleet's Orig. Brit., and as popular (perhaps as judicious) a one as any, in the second section of the second chapter of Henry's Hist. of England. The short result is, that the truths of Christianity were acknowledged in this country, by some converts, as early as the time of the Apostles; and that, as three bishops of the British nation assisted at the Council of Arles, A. D. 314, the Christian Church must have obtained an establishment here for some time (in all probability for a considerable time) previously, though the precise date cannot now be discovered. It would, no doubt, be an error to suppose that the title of bishop, in those early days, implied any thing like the temporal distinction and wealthy endowment which, at present, accompanies that spiritual rank. Still, the appointment of bishops denotes a recognized establishment. See Vol. IV. p. 105. E their parliamentary conventions of estates, respectively con[26] sisting of the kings of Mercia *and. Northumberland, the bishops, dukes, senators, and people. Which was a very few years later than the time that Charlemagne established the payment of them in France (t) (23), and made that famous division of them into four parts; one to maintain the edifice of the church, the second to support the poor, the third the bishop, and the fourth the parochial clergy (u). To whom tithes are due. The next authentic mention of them is in the feodus Edwardi et Guthruni; or the laws agreed upon between king Guthrun the Dane, and Alfred and his son Edward the elder, successive kings of England, about the year 900. This was a kind of treaty between those monarchs, which may be found at large in the Anglo-Saxon laws (w): wherein it was necessary, as Guthrun was a pagan, to'provide for the subsistence of the Christian clergy under his dominion; and, accordingly, we find (x) the payment of tithes not only enjoined, but a penalty added upon non-observance which law is seconded by the laws of Athelstan (y), about the year 930. And this is as much as can certainly be traced out, with regard to their legal original. 2. We are next to consider the persons to whom they are due. And upon their first introduction, as hath formerly been observed (z), though every man was obliged to pay tithes in general, yet he might give them to what priests he (23) With respect to the quadripartite division of tithes mentioned in the text above, and in Vol. I. p. 385, Toller (p. 6) thinks it was not only more ancient than the law of Charlemagne upon the subject, but also conformable to some very old canon or usage. He draws this inference, reasonably enough, from the answer returned to Augustine, who, when he inquired of the Pope as to the bishop's portion of the oblations of the faithful, was told, that the custom was, generally, to make such a division as (z) Book i. Introd. s. 4. that alluded to:—a division which has very long been disregarded. With the exception of the chancel, which the rector is still bound to repair, no part of the tithes is, at the present day, applicable to the maintenance of the church. The quantum devoted to the poor, depends entirely upon the voluntary charity of the incumbent. And the bishop no longer looks, for the due support of his rank, to a participation in the tithes paid to the parochial clergy. : pleased (a) (24); which were called arbitrary consecrations of tithes or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in common (b). But, when dioceses were divided into parishes, the tithes of each parish were allotted to its own particular minister; first by common consent, or the appointment of lords of manors, and afterwards by the written law of the land (c). *However, arbitrary consecrations of tithes took place [ 27 ] again afterwards, and became in general use till the time of King John (d). Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under Archbishop Dunstan and his successors: who endeavoured to wean the people from paying their dues to the secular or parochial clergy (a much more valuable set of men than themselves), and were then in hopes to have drawn, by sanctimonious pretences to extraordinary purity of life, all ecclesiastical profits to the coffers of their own societies. And this will naturally enough account for the number and riches of the monasteries and religious houses, which were founded in those days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes somewhere, might think it good policy to erect an abbey, and there pay them to his own (c) LL. Edgar, c. 1 & 2. Canut. (d) Seld. c. 11. (a) 2 Inst. 646. Hob. 296. (b) Seld. c. 9, s. 4. c. 11. (24) Prideaux, (p. 302,) controverts this. His arguments, however, are feeble; and Burn, though he cites them, lays no stress upon them. A man might be at liberty to pay tithe to another than the minister of the nearest adjoining church, yet, that minister might compel payment to himself, unless the payment to another was proved. And the general discretion allowed, as to the choice of the party to whom tithe should be paid, might be superseded by a special appropriation, made by a competent authority, in favour of a certain individual, or particular ecclesiastical corporation. The objections of Pri- |