general rules and common right are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclesiastical livings.

II. A second species of incorporeal hereditaments is that II. Tithes: of tithes; which are defined (12) to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: the first species being usually called pre- predial, dial, as of corn, grass, hops, and wood (o) (13): the second

(0) 1 Roll. Abr. 635. 2 Inst. 649.

clearly appear from the reports, that no instance in which more than a tenth
the dictum is to be understood gene-
rally; on the contrary, as the court,
in the case cited, assigns as the reason
for the judgment then given, that the
donative was created by letters patent;
the inference should rather seem to be,
that with respect to donatives which
are such merely by prescription, by
repeated interruptions (if not by a
single voluntary one) the prescriptive
title would be lost.

(12) The definition proposed in the text is not strictly accurate. Ayliffe (in his Parerg. Ju. Can. 504), observes, "tithe is a certain quota, or portion of moveable goods; I say a quota or certain portion, because tithe is not in all places the tenth part, but various, according to the custom of parishes." (And see Doct. and Student, c. 55). This objection, however, is not of great weight, for, whatever may have been the case in other times and countries, with us the word tithe has acquired a fixed meaning. It is believed, there is

is here paid as tithe, eo nomine; and
that a parson shall take less than a
tenth part of any specific article, hav-
ing a compensation in the parishioner's
work and labour, by no means dis-
proves the parson's right to a full
tenth, but shews that he receives a
consideration, which is in fact an ac-
knowledgment of that right. (Smyth
v. Sambrock, 1 Mau. & Sel. 73. Jack-
son's case, Clayton, 60). The faulty
part of the definition seems to be the
supposition that tithe consists, in all
cases, of the tenth part of the increase
yearly arising and renewing. This is
not correct, even as to predial tithes,
universally; and to mixt and personal
tithes it does not at all apply. (See
the 4th ch. of Toller on Tithes).

(13) Wood is one of the instances to
shew that predial tithe may be payable
in respect of an article of which the
renewal is not annual. Silva cædua is
titheable when it is felled; and be-
tween the falls several years com-

mixed,

personal.

mixed, as of wool, milk, pigs, &c. (p), consisting of natural products, but nurtured and preserved in part by the care of man (14); and of these the tenth must be paid in gross: the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due (q) (15).

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 (16) increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or feræ naturæ (17), as deer, hawks, &c. whose increase, so as to profit the owner, is not annual, but casual (r). It will rather be our business to consider, 1. The original of the right (r) 2 Inst. 651.

of them into great and small tithe, which will be adverted to, post, in note (26).

(16) See ante, notes 12 and 13, that this description holds good generally, but not universally.

mills, however antient, if they have and personal, there is another division 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 antient 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). However, if any additional pairs of stones are added to an antient 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,

(17) 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. (Walton v. Tryon, 1 Dick. 248. Ambl. 135).

The origin of tithes.

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 (18), 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 precepts of the new (19) 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 expence, 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

(18) The excellent Bishop Latimer, however, hardly deserved to be called a mere "dreamer," (as he is by the author of Grounds and Rud. of Law and Eq., p. 337), for having followed all the judges and serjeants of the Court of Common Pleas, (see Dyer, 43 a), and all the justices of the Court of King's Bench, (see Parkins v. Hinde, Cro. Eliz. 161), in referring the right of tithe in the English, as was clearly the case with respect to the Jewish priesthood, to a divine original. When backed by such high lay authority, it was hardly to be expected, that churchmen should have been the first to reduce their claim to a lower, though safer and more tenable ground. Yet, whilst the chief sages of our law still held tithes to be due jure divino, Wickliffe published the doctrine, that "tithes were merely alms, and by no means of gos

pel institution." The Jewish theocracy apart, it has since been proved, by the learned Selden, (Tr. on Tithe, 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).

(19) Rayner, (Introduc. ii), observes, that "our author might have referred to the Old, more properly than to the New Testament. The latter, indeed,

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).

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 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 (20).

We cannot precisely ascertain the time when tithes were first introduced into this country. Possibly they were contemporary with the planting of Christianity among the Saxons, by Augustin the monk, about the end of the sixth century (21). But the first mention of them, which I have met

(20) "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).

(21) 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, 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, properly accompanies that spiritual rank. Still, the appointment of bishops denotes a recognized establish

ment.