bishop and patron are one and the same person in which case the bishop cannot present to himself; but he does, by the one act of [23] collation, or conferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson or donative. donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction.i This is said to have been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry II. And therefore though pope Alexander III. in a letter to Becket, severely inveighs against a prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of christianity in this island; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris," which speaks of presentation to the bishop as a thing immemorial. The truth seems

the debt. Gilb. Exec. 39. 2 Saund.
63. f.

He who has an advowson or right of
patronage in fee, may, by deed, transfer
every species of interest out of it, viz. in
fee, in tail, for life, for years, or may grant
one or more presentations. The right of
presentation descends by course of inhe-
ritance, from heir to heir, as lands and
tenements, unless the church become va-
cant in the lifetime of the person seised
of the advowson in fee, when the void
turn being then a chattel goes to the ex-
ecutor, unless it be a donative benefice,
and in that case the right of donation de-
scends to the heir, 2 Wils. 150.; if, how-
ever, the patron presents and dies before
his clerk is admitted, and his executor
presents another, both these presentments
are good, and the bishop may receive
which of the clerks he pleases, Co. Lit.
388. a. Burn E. L. tit. Advowson, Mire-
house on Advowsons, 139., where see in
general the right of presentation. See
further as to presentation by joint-tenants
and tenants in common. 2 Saund. 116. b.
Where the same person is patron and in-

1 Decretal. l. 3. t. 7. c. 3.

cumbent, and dies, his heir is to present, 3 Lev. 47. 3 Buls. 47.; but such patron and incumbent may devise the presentation. 1 Lev. 205. 2 Roll. Rep. 214. 6 Cruise Dig. 21. Mirehouse, 70. But as we have seen an advowson in gross will not pass by the word "lands" in a will, though it will be comprehended under the terms "tenements and hereditaments," ante 16. n. 1.

The remedy for the infraction of the right of presentation is an action of quare impedit, in which, although we have seen that no profit can be taken for presenting the clerk, yet the patron, whose right of patronage is injuriously disturbed, recovers two years' value of the church, if the turn of presentation is lost. 3 Cruise, 17, 18. The particulars of the action of quare impedit will be considered, post 3 vol. 242 to 253. When the bishop refuses without good cause, or unduly delays to admit and institute a clerk, he may have his remedy against the bishop in the ecclesiastical court. 3 Cruise, 17. As to any remedy for the clerk at law, see 13 East, 419. 15 East, 117.

to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now be- [24] come for ever presentative, and shall never be donative any more." For these exceptions to 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. (4)

II. A second species of incorporeal hereditaments is that of tithes; II. Tithes; (5) which are defined 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 predial, as of corn, grass, hops, and wood: the second mixed, predial, as of wool, milk, pigs, &c., consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross; the third personal, as of manual occu- personal. pations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due.o (6)

n Co. Litt. 344. Cro. Jac. 63. P Ibid.

(4) The contrary is held by a later authority than the authorities referred to by the learned Judge; in which it was declared, that although a presentation may destroy an impropriation, yet it cannot destroy a donative, because the creation thereof is by letters patent. 2 Salk. 541. 3 Salk. 140. Mirehouse, 26. It may here be observed, that when an incumbent is made a bishop, the right of presentation in that case is in the king, and is called a prerogative presentation; the

• 1 Roll. Abr. 635. 2 Inst. 649.
q 1 Roll. Abr. 656.

law concerning which was doubted in
Car. II.'s time, but in the time of king
William it was finally determined in fa-
vour of the crown. 2 Bla. R. 770.

(5) As to the law of tithe in general,
see Mirehouse on Tithes, and Selden;
Plowden; Toller; Burn E. L. tit. Tithe;
Com. Dig. Dismes; Bac. Ab. Tithes; 2
Saund. index, Tithe; Eagle and Young's
Tithe Cases.

(6) The distinction between predial and mixed tithe is, that predial tithes, so

mixed,

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; (7) the time when, or the manner and proportion in which, tithes are usually due. (8) 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 increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or ferae naturae, as deer, hawks, &c. whose increase, so as to profit the owner, is not annual, but casual.' [25] It will rather be our business 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.

r2 Inst. 651.

called from prædium a farm, are those
which arise immediately from the soil,
either with or without the intervention
of human industry. Those are mixed
which arise mediately through the increase
or other produce of animals, which re-
ceive their nutriment from the earth and
its fruits. Therefore agistment is a pre-
dial tithe, though, as it is incapable of
being set out in kind, it is not within the
statute. 2 & 3 Ed. VI. c. 13. per Macdo-
nald, Ch. B. 3 Anstr. 763. Personal tithes
are so termed because they arise entirely
from the personal industry of man. Mire-
house, 1 & 2. These personal tithes are
not, at present, paid anywhere except
for fish caught in the sea, Bunb. Rep.
256. 3 T. R. 385. and for corn-mills,
Mirehouse, 95 to 101. Tithe is not pay-
able of common right of things feræ na-
turæ, as of deer in a park, or rabbits in
a warren, or a decoy in hands of owner,.
but by special custom may be due. Com.
Dig. Dismes, H. 4. 16. Owen, 34. Gwm.
275. Cro. Car. 339. 8 Price, 39.

In addition to this triple distinction,
ail tithes have been otherwise divided
into two classes, great or small; the for-
mer, in general, comprehending the tithes
of corn, peas, and beans, hay and wood;
the latter, all other predial, together
with all personal and mixed tithes. Tithes
are great or small, according to the na-
ture of the things which yield the tithe,
without reference to the quantity. Thus,
clover-grass made into hay is of the na-
ture of all other grass made into hay, and

consequently is a great tithe; but if left
for seed, its nature becomes altered, and,
like other seed, it becomes a small tithe.
Neither the manner or place of cultiva-
tion, nor the time of gathering, as has
been formerly supposed, makes any alter-
ation in its denomination. The inquiry
is to be confined to the question, whether
the nature remains the same; for on that
alone the rule depends. Discussions have
arisen on these points; it has been ar-
gued that all garden-tithes are of a dis-
tinct and different description, that every
renewal within the small compass of a
garden, even wheat itself, when sown
there, should yield a small tithe. If,
however, a root were to be called a small
tithe when planted in a garden, and a
great tithe when planted in a field, there
would be great confusion and variation
in the tithes of every parish every year.
The nature of crops admits of a definite
description, their quantity is always lia-
ble to dispute; therefore, the law which
aims at certainty, adopts the above men-
tioned rule; and, in direct subservience
to it, it seems now settled, although in
contradiction to some respectable autho-
rities, that all personal and mixed tithes,
as well as hops, flax, potatoes, turnips,
herbs, apples, and fruit, cole-sced, clover-
seed, rape-seed, saffron, teasels, thyme,
and tobacco, are small tithes, however
large the quantity in which they may be
cultivated. Mirehouse, 2.

(7) See Mirehouse, 40 to 123.
(8) See Mirehouse, 30 to 40.

gin.

1. As to their original, I will not put the title of the clergy to 1. Their ori tithes upon any divine right; 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 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 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. (9)

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. 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, wherein the pay• Seld. c. 8. § 2.

(9) It has been truly observed, that the clergy have the same right to tithes as the heir at law has to his ancestor's estate, yet still this mode of raising a revenue for the support of the church has ever been obnoxious to those upon whom it is imposed, and seems liable to the same objections as were urged on all hands against the property tax, viz. that' it is a tax upon industry. The argument that tithes may be taken to be part of the rent which the farmer pays for his land, is more plausible than sound, for the sum which he pays to his landlord under that name is certain, while the amount which he pays to the clergyman increases with the increase of his harvests, though that has been effected by an increased expenditure both of money and labour; it seems hard therefore that he should be stripped of one tenth of the results of his superior

husbandry in addition to the tenth of the
produce of his farm, by the ordinary
course of cultivation. In the case of per-
sonal tithes, only a tenth of the clear pro-
fit is payable after deducting all expenses.
3 Anstr. 915. Mirehouse, 108. Why,
therefore, should the tenths of the produce
of lands be allowed without any deduc-
tion for expenses. The policy of a sys-
tem which gives rise to jealousies, dis-
trusts, and quarrels between the people
and their spiritual guides, is at best ques-
tionable, and the true friends of the church-
must be anxious for those changes be-
coming general, which have prevented the
recurrence of those evils wherever they
have been introduced. Accordingly the
courts and juries look with favour upon
and endeavour to support compositions,
ancient payments, and moduses.

ment of tithes in general is strongly enjoined. This canon, or decree, which at first bound not the laity, was effectually confirmed by [26] two kingdoms of the heptarchy, in their parliamentary conventions of estates, respectively consisting 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, 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."

2. To whom due. (10)

The next authentic mention of them is in the foedus 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: 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 the payment of tithes not only enjoined, but a penalty added upon non-observance: which law is seconded by the laws of Athelstan," about the year 930. And this is as much as can certainly be traced out, with regard to their legal original.

X

2. We are next to consider the persons to whom they are due. And upon their first introduction (as hath formerly been observed2), Seld. c. 6. § 7. Sp. of laws, b. 31. c. 12. У сар. 1. z Book I. Introd. § 4.

t A. D. 778.
w Wilkins, pag. 51.

u Book I. ch. 11.
x cap. 6.

(10) The rector is prima facie entitled to all the tithes of the parish, small as well as great; and the vicar, in order to take any part of them from him, must either produce an endowment or give such evidence of usage as presupposes an endowment, since courts will not presume any thing in favour of the vicar against the rector. 2 Buls. 27. 2 Ves. Sen. 511. Yelverton, 86. 3 Atk. 497. Mirehouse on Tithes 11. Where an endowment does not extend to the tithe in question, a subsequent more extensive endowment may be presumed from usage, Hardr. 328. 2 Buls. 27. 1 Price, 13. 2 Price, 250. 284, 329. 9 Price, 231.; and forty years' usage is sufficient to afford presumption of a subsequent endowment, 4 Price, 198. 2 Price, 450.; and perhaps 30 or 20 years would suffice. Gwil. 648. Bunb. 144. 9 Price, 231. 2 Bar. & C. 54. Mirehouse on T. 15. 17. In general, a

curate has no claim to the tithes of a parish. Mirehouse on T. 20.

Portions of tithes may be vested in a person who is neither rector nor vicar, by grant before the restraining statutes, and which may be evidenced by long possession. Degge, c. 2. 226. 1 Anst. 311. Gwil. 1513. It however being a claim against common right, the rector bas a right to throw the onus probandi upon the portionist. The parson of one parish, or other person, may prescribe to have some of the tithes in another parish, Bac. Ab. Tithes, H.; and in an action of debt for not setting out the tithe claimed, it will not be necessary for the plaintiff to set. forth his title, particularly as such portionist, though it must be accurately shewn in evidence over what precise land the portion was granted. Cro. Jac. 437. Sandford v. Porter, Mirehouse, 25. 6 Price, 483.