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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
the land, than upon any divine right whatsoever, unacknowledged and unsupported by temporal sanctions.
We can not precisely ascertain the time when tithes were Introduction first introduced into this country. Possibly they were cotem- gland. porary 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. Which was a very few [ 26 ] 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 Fædus 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
Seld., c. 8, 02. + A.D. 778.
u Book i., ch. 11. Seld., c. 6, $ 7. Sp. of Laws, b. 31, c. 12.
w Wilkins, page 51.
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 priest 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.
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 those days, z Book i., Introd., $ 4.
· LL. Edgar, c. 1 and 2 ; Canut., c. a 2 Inst., 646; Hob., 296. Seld., c. 9, Ø 4.
d Seld., c. 11.
(13) The rector is primâ facie entitled person who is neither rector nor vicar, to all the tithes of the parish, small as by grant before the restraining statutes, well as great; and the vicar, in order to or by special appropriation, when it was take any part of them from him, must lawful for every one to distribute and either produce an endowment, or give pay as he chose (Dig., 84, b), and which such evidence of usage as presupposes may be evidenced by long possession. an endowment, since courts will not (Degge, c. 2, 226 ; 1 Anst., 311; Gwill., presume any thing in favor of the vicar 1513.) It being, however, a claim against against the rector. (2 Buls., 27; 2 Ves. common right, the rector has a right to sen., 511; Yelv. 86 ; 3 Atk., 497 ; Mire- throw the onus probandi upon the porhouse, 11.) Where an endowment does tionist. The parson of one parish, or not extend to the tithe in question, a sub- other person, may prescribe to have sequent more extensive endowment may some of the tithes in another parish be presumed from usage (Hardr., 328 ; (Bac. Ab., Tithes, H); and in an ac2 Buls., 27; 1 Price, 13; 2 Id., 250, 284, tion of debt for not setting out the tithe 329 ; 9 Id., 231); and forty years' usage claimed, it will not be necessary for the is sufficient to afford presumption of a plaintiff to set forth his title particularly subsequent endowment (4 Price, 198; 2 as such portionist, though it must be acId., 450); and perhaps thirty or twen- curately shown in evidence over what ty years would suffice. (Gwillim, 648; precise land the portion was granted. Bumb., 144; 9 Price, 231; 2 Barn. & (Cro. Jac., 437; Mireh., 25; Price, Cress., 54 ; Mirehouse, 15, 17.) In gen- 483.)-[Chitty.) Tithes of extra-paeral, a curate has no claim to the tithes rochial lands belong to the crown. (8 of a parish. (Mirehouse, 20.)
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; 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 [ 28 ] added, being correspondent to the ancient law), it was allowed of, and so became lex terræ.14 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 ;15 for it is now universally heldi 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, 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.
e Opera Innocent. III., tom. 2, pag. i Regist., 46; Hob., 296. 452.
k Book i., p. 385. * Decretal., 1. 3, t. 30, c. 19.
In extra-parochial places, the king, & Ibid., c. 26.
by his royal prerogative, has a right to h 2 Inst., 641.
all the tithes. See Book i., p. 113, 284.
(14) See 7 B. & Cr., 152.
Hen. VIII., c. 13, which confirmed the
royal grants, expressly include parsona(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 layer 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 conse- ments. (Co. Lit., 6, 159, a; 3 Price, quence of the dissolution of monasteries. 323; stat. 3 & 4 Will. IV., c. 74.) The statutes 27 Hen. VIII., c. 28, and 31 Tithes so impropriated do not merge
3. Who or what discharged
ment in kind.
3. We observed that tithes are due to the parson of common 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. 1. By real First, a real composition is when an agreement is made becomposi
tween 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.18 But, experience showing [ 29 ] that even this caution was ineffectual, and the possessions of
the Church being, by this and other means, every day dimin: ished, 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., which they arise, and will not pass by a 10; 1 Price, 253 ; 3 Id., 608 ; 4 Id., 143; conveyance of the land with all heredit- 4 Madd., 140 ; 2 You. & J., 548; Gwil., aments and appurtenants thereunto be- 587.) Without such evidence of a deed, longing." (6 Bac. Ab., 756 ; 3 Bos. & a composition real can not be proved by P., 362.) But the recent statutes for reputation, though corroborated by evithe commutation of tithes have provided dence of non-payment of tithes; and a for the merger of impropriated tithes. deed creating a composition real will (Infra, p. 32, n.)
not be presumed from payment for
two hundred years of a sum of £20 in (17) Where the owner of lands natu- lieu of tithes. (4 Mad., 140; 2 Bos. & rally barren improves and makes them P., 206 ; Mirehouse, 156, 157, 159 ; but productive, they are by the statute 2 & see 5 Ves. J., 187.) Where a composi3 Edw. VI., c. 13, s. 3, exempted from tion real is to be presumed, there must tithes for seven years. (7 Bac. Ab., 742; appear to be mutual loss or gain on the 5 Mau. & S., 166; 6 Taunt., 297; 1 B. respective parts of the parson and occu& Ad., 907.)
pier. (3 Bos. & P., 207.) See n. (29),
p. 32, infra. (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
by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives, or twentyone years, though made by consent of the patron and ordinary: which has, indeed, effectually demolished this kind of traffic; such compositions being now rarely heard of, unless by authority of Parliament.20
Secondly, a discharge by custom or prescription is where, 2. By pretime out of mind, such persons or such lands have been, either scription de partially or totally, discharged from the payment of tithes. And mandi. this immemorial usage is binding upon all parties; as it is in its nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been formerly made. This custom, or prescription, is either de modo decimandi or de non decimando.
A modus decimandi, commonly called by the simple name of of a modus. a modus only, is where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation, as two pence an acre for the tithe of land : sometimes it is a compensation in work and labor, as, that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs, and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.
To make a good and sufficient modus, the following rules [ 30 ] must be observed. 1. It must be certain and invariable,n for Rules repayment of different sums will prove it to be no modus, that is, enesti ne cer
: no original, real composition ; because that must have been tain, one and the same, from its first original to the present tin 2. The thing given in lieu of tithes must be beneficial to the beneficial to parson, and not for the emolument of third persons only:• thus parson, a modus, to repair the church in lieu of tithes, is not good, ben 1 Keb., 602.
0 1 Roll. Abr., 649. equity in England, in a suit to which the ment, for a specific time, they can not ordinary, patron, and incumbent were be put an end to without six months' noparties, and which had not since been tice before the time of payment; and the set aside, abandoned, or departed from. parishioner may avail himself of the de
fect of notice at the same time that he (20) With regard to compositions en- controverts the right of the incumbe tered into between the tithe-owner and to receive tithes in kind; an objection any parishioner for the latter to retain not permitted to a tenant who denies the tithes of his own estate, it has been the right of the landlord. (Case of Kendecided that they are analogous to leas- sington, 2 Rayner, 992; 2 Bro., 161; 1 es from year to year between landlord Bos., 458.)-[CHRISTIAN.) (4 Mee. & and tenant; and if they are paid, with- W., 198.) out or after the expiration of an agreeVOL. II.-C