10 It is not to be expected, from the nature of these general commentaries, that I should particularly specify what things are tithable, 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 increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or feræ naturæ, 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 [25] 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. Their origin. 1. As to their original, I will not put the title of the clergy to tithes upon any divine right, though such a right certainly commenced, and, I believe, as certainly ceased, with the Jew r2 Inst., 651. 240; 2 Price, 295; 3 Ves. & B., 71; 5 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 In addition to this triple distinction, admits of a definite description; their all tithes have been otherwise divided quantity is always liable to dispute; into two classes, great or small; the therefore the law, which aims at cerformer, in general, comprehending the tainty, adopts the above-mentioned rule; tithes of corn, peas and beans, hay and and, in direct subservience to it, it seems wood; the latter, all other predial, to- now settled, although in contradiction to gether with all personal and mixed some respectable authorities, that all pertithes. The distinction is important, soual and mixed tithes, as well as hops, because vicars are frequently endowed flax, potatoes, turnips, herbs, apples, and only with small tithes. Tithes are great fruit, cole-seed, clover-seed, rape-seed, or small, according to the nature of the saffron, teasels, thyme, and tobacco, are things which yield the tithe, without reference to the quantity. Thus, clovergrass, made into hay, is of the nature 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 cultivation, nor the time of gathering, as has been formerly supposed, makes any alteration in its denomination. The in- (12) A periodical increase, rather, for quiry is to be confined to the question tithes are due of underwood and copwhether the nature remains the same; pice wood, although they do not yield for on that alone the rule depends. Dis- an annual increase (Turn. & R., 249; see cussions have arisen on these points; it 4 Myl. & Cr., 600), and of saffron, which has been argued that all garden-tithes is gathered once in three years. (Gibs., are of a distinct and different descrip- 669.) tion; that every renewal within the small small tithes, however large the quantity in which they may be cultivated. (Mirch., 2; Jac., 95; 1 B. & C., 766; 7 Cl. & Fin., 744; 4 M. & Sc., 735.)— [CHITTY.] (10) See Mirehouse, 40 to 123. (11) See Mirehouse, 30 to 40. ish theocracy. Yet an honorable 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. into En We can not precisely ascertain the time when tithes were Introduction first introduced into this country. Possibly they were co- gland. temporary 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 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 their parliamentary conventions of estates, respectively consisting of the Kings of Mercia and Northumberland, the bishops, dukes, senators, and people. [ 26 ] 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." The next authentic mention of them is in the Fœdus 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 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 2. To whom due. [ 27 ] 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.13 And upon their first introduction (as hath formerly been observed), though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased;a 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. 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 appointments of lords of manors, and afterward by the written law of the land.c However, arbitrary consecrations of tithes took place again afterward, 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 endeavored 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 pretenses 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 z Book i., Introd., § 4. (13) The rector is primâ facie entitled 11. e LL. Edgar, c. 1 and 2; Canut., c. d Seld., c. 11. person who is neither rector nor vicar, by grant before the restraining statutes, or by special appropriation, when it was lawful for every one to distribute and pay as he chose (Dig., 84, b), and which may be evidenced by long possession. (Degge, c. 2, 226; 1 Anst., 311; Gwill., 1513.) It being, however, a claim against common right, the rector has 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 shown in evidence over what precise land the portion was granted. (Cro. Jac., 437; Mireh., 25; Price, 483.)-CHITTY.] Tithes of extra-parochial lands belong to the crown. (8 Price, 39.) 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 monks, or grant them to some abbey already erected; since, for this dotation, which really cost the patron little or nothing, he might, according to the superstition of the times, have masses forever sung for his soul. But, in process of years, the income of the poor laborious parish priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by Pope Innocent the Third,e about the year 1200, in a decretal epistle sent to the Archbishop of Canterbury, and dated from the palace of Lateran; which has occasioned Sir Henry Hobart and others to mistake it for a decree of the Council of Lateran held A.D. 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen ;f whereas this letter of Pope Innocent to the archbishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterward directed by the same pope in other countries. This epistle, says Sir Edward Coke, bound not the lay subjects of this realm; but, being reasonable and just (and, he might have added, being corre- [ 28 ] spondent to the ancient law), it was allowed of, and so became lex terra." This put an effectual stop to all the arbitrary consecrations of tithes; except some footsteps which still continue in those portions of tithes, which the parson of one parish hath, though rarely, a right to claim in another; for it is now universally held that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. This parson of the parish, we have formerly seen,k may be either the actual incumbent, or else the appropriator of the benefice; appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes.11 Hen. VIII., c. 13, which confirmed the (15) As to portions of tithes, see ante, ges and tithes; and the stat. 32 Hen. VIII., 26, note (13). c. 7, s. 2, entitled lay tithe-owners to the ecclesiastical remedies, as the 7th section (16) A parsonage is appropriate when gave them actions in the temporal courts. it belongs to a spiritual corporation or Lay tithes have all the incidents of othpatron; impropriate when it is in lay er temporal hereditaments, may be enhands. (Ante, vol. i., p. 385; Plowd., tailed, and such entails may be barred 493.) The impropriation of rectories, in the same manner as in other teneand of tithes in lay hands, was a consequence of the dissolution of monasteries. The statutes 27 Hen. VIII., c. 28, and 31 ments. (Co. Lit., 6, 159, a; 3 Price, 3. Who or what discharged from pay. ment in kind. 1. By real compositions. of com 3. We observed that tithes are due to the parson mon right, unless by special exemption; let us, therefore, see, thirdly, who may be exempted from the payment of tithes, and how lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally, first, by a real composition; or, secondly, by custom or prescription. 17 First, a real composition is when an agreement is made between the owner of the lands, and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof.m This was permitted by law, because it was supposed that the clergy would be no losers by such composition; since the consent of the ordinary, whose duty it is to take care of the Church in general, and of the patron, whose interest it is to protect that particular church, were both made necessary to render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the common law. But, experience showing [29] that even this caution was ineffectual, and the possessions of the Church being, by this and other means, every day diminished, the disabling statute, 13 Eliz., c. 10, was made; which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives, or twenty-one years." So that now, m 2 Inst., 490; Regist., 38; 13 Rep., 40. by unity of possession of the land out of Wightw., 324; 2 Bos. & P., 206; 1 Dan., (17) Where the owner of lands naturally barren improves and makes them productive, they are by the statute 2 & 3 Edw. VI., c. 13, s. 5, exempted from tithes for seven years. (7 Bac. Ab., 742; 5 Mau. & S., 166; 6 Taunt., 297; 1 B. & Ad., 907.) (18) As to real compositions in general, see Mirehouse, 157. In order to (19) And a composition made since establish it in evidence, the deed itself, that act, though confirmed by a decree executed between the commencement in the Court of Chancery, did not bind of the reign of Richard the First and the the successor. (2 Wooddes., 107; 2 13 Eliz., must be produced, or such ev- Swanst., 310; 2 You. & C., 421.) But idence from whence, independent of by Lord Tenterden's act (3 & 4 Will. IV., mere usage, it may be inferred that the c. 100, s. 2) every composition for tithes deed once existed, for otherwise every is declared valid, which, before the passbad modus might be turned into a good ing of the act, had been made or concomposition. (3 Bac., 217; 2 Anst., 372; firmed by the decree of any court of |
