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 their parliamentary conventions of estates, respectively consisting of the [ *26] 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) (22), 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). 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 (s) Selden, c. 8, s. 2. (u) Book i. c. 11. Seld. c. 6, s. 7. (22) With respect to the quadripartite division of tithes mentioned in the text, Toller (p. 6) thinks it was not only more antient 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 that alluded Sp. of Laws, b. 31, c. 12. 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. 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 To whom tithes due. And upon their first introduction (as hath formerly are due. been observed (x), though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased (a) (23); 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 again afterwards, and became in general use till the time of King John (d). Which was probably owing to the intrigues (c) LL. Edgar, c. 1 & 2. Canut. (y) Cap. 1. (z) Book i. Introd. s. 4. (23) Prideaux, (p. 302), controverts this. His arguments, however, are feeble; and Burn, though he cites them, lays no stress upon them. A parishioner might be at liberty to pay tithe to another than his parochial minister; 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 corpo c. 11. (d) Seld. c. 11. ration. The objections of Prideaux [ *27 ] [ *28 ] 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 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 for ever 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 afterwards directed by the same pope in other countries (g). This epistle, says Sir Edward Coke (h), bound not the lay subjects of this realm: but, being reasonable and just, (and, he might have *added, being correspondent to the antient law (24), 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 (25); for it is now universally held (i), that tithes are due, of common right, to the parson of the parish, unless there be a special exemption (26). This parson of the parish, we have for (i) Regist. 46. Hob. 296. (24) Our author, of course, does not mean to contradict here, what he advanced two pages before, as well as in Vol. i. pp. 111, 112, namely, that the most antient law of this country respecting payment of tithe, allowed every man to pay it to what church or parish he pleased. See the last note and the next. (25) "A portion of tithes, means a profit of tithes which a man hath within the parish of another parson or vicar, and its origin must have been in times when it was lawful for every one to distribute, and pay as he chose, his tithes, or any portion thereof, to any church according to his best devotion; and there was no restraint to any church or parish in certain; so, by continuance, that grew to a right and title." (Dean and Chapter of Bristol v. Clarke, Dyer, 84 b. Gibson's Codex, 663). (26) See the last note. It must also be recollected, that some lands are still extra-parochial, and to the tithes arising from such lands, the king is entitled. Moreover, lands lying within a royal forest do not pay tithes, although they be within a parish. (Banister v. Wright, Styles, 137. Roll. Abr. 657). 1 were capable of having their lands, whether in their own occupation or not, totally discharged from payment of tithe, either by real composition, (Donison v. Elsley, 1 M'Clel. & Younge, 23), by prescription, (Markham v. Smith, 12 Pr. 131. Clavill v. Oram, 3 Eag. & Y. 189), or by a papal bull of exemption, in cases where such bull was once legally recognized in this country. (Wright v. Hildersham, Hob. 309. Page v. Wilson, 2 Jac. & Walk. 528. Townley v. Tomlinson, 2 Eag. & Y. 189). And where lands appear to have been before, and at the time of, the council of Lateran, (Staveley v. Ullithorne, Hard. 101), part of the possessions of any of the greater monasteries, suppressed in the time of Henry VIII., and to have remained so till the dissolution; (Norton v. Hammond, 1 Younge & Jerv. 108. Willis v. Farrer, 2 Y. & J. 236); and there is no evidence of the payment of tithes for those lands at any time, our courts will consider them as discharged, by some way or other, before the dissolution. (Lamprey v. Rooke, Amb. 291). It has been said, however, that as privilege of order was the most common mode of exemption, that will be presumed to have been the only ground of All spiritual persons and corporations discharge, unless some other is proved. merly seen (k), may be either the actual incumbent, or else the appropriator of the benefice; appropriations being (h) Book i. P. 385. 522. 175. 423. (Bury St. Edmund's case, Comyns, 655. Page v. Wilson, 2 Jac. & Walk. Bowles v. Alkins, 2 Keb. 162, Sydown v. Holmes, Cro. Car. but see Ingram v. Thackston, 3 Eag. & Y. 1242). And the privilege of exemption from payment of tithe, when claimed by ecclesiastical communities merely ratione ordinis, was restricted to lands in their own manurance and occupation. (Young v. Naylor, 2 Eag. & Y. 349. Slade v. Drake, Hob. 296). The king may prescribe de non decimando, and so may tenants of the royal demesnes; as may a bishop, and his tenants (see post, note (41). The cases, also, of tenants of certain estates which formerly belonged to religious houses, are exceptions to the general rule, that laymen cannot prescribe de non decimando; (Branche's case, Moor, 219. Clavill v. Oram, 3 Eag. & Y. 1370); for this right was, at the dissolution of the greater abbies, reserved to the crown, and its grantees, by the statute of 31 Hen. VIII., confirmed by 2 & 3 Edw. VI. c. 13; but to support the prescription, the lands to which it is applied must be shewn, by competent evidence, to have been possessed by the suppressed religious house, before the council of Lateran, A. D. 1215. (Markham v. Smyth, 11 Price, 131. Norton v. Hammond, 1 Younge & Jerv. 103). However, usage, which cannot be legally accounted for on any other hypothesis, will be held to afford such competent evidence; (Donnison v. Elsley, M'Clel. & Y. 24); and when a man occupies lands which came to the crown at the dissolution, discharged from tithes, and such property has been the subject of ordinary transfer, by the same sort of conveyances as lay fees, Courts of Equity will lend no assistance to disturb the possession, by putting the occupier to prove the commencement of the title; (Williams v. Bacon, 1 Sim. & Stu. 418), but will send the party claiming tithe to make out his case at law. (Berney v. Harvey, 17 Ves. 127). Unity of possession, at the time of the dissolution, in the reign of Henry VIII. of a parsonage, and of lands which would otherwise have been liable to pay tithes thereto, will afford a primâ facie evidence of an immemorial prescription de non decimando, if the union cannot be shewn to have taken place within time of memory, and there is no evidence of tithes having even been paid; (Peake's Law of Evid. 416, 417. Doubitofte v. Curteene, Cro. Jac. 454); though a legal foundation for the presumption must, of course, be first laid, by satisfying the Court which has to decide upon the question, that such unity of possession did, at all events, exist at the time of the dissolution; (Phillips on Evid. c. 7, s. 7); but, we have just seen, Courts of Equity are not technically precise and rigid with respect to the evidence which they require on this head. Mere unity of possession, however, when the union can be proved to have taken place within time of memory, wants the most essential quality of a prescription. (Case |