LECTURE IX.

Tithes—The voluntary contributions of the faithful, the original revenue of the church—The establishment of regular payments—The appropriations of the church—The history and general rules of tithes in England.

The next kind of incorporeal benefices taken notice of by the law of England, that I shall mention is tithes; the New Testament, as well as common reason, says, that they who serve by the altar, should live by the altar; but is silent as to the manner in which this support should arise. In the very first times, when their numbers were but few, and those confined to Jerusalem and its neighbourhood; the christians sold all they had, and lived out of the common stock. But this lasted a very short time. When they increased to multitudes, that method was found impracticable, so that each retained his possessions, and gave a voluntary contribution out of it at his discretion. This was the fund of the church; and in those times of fervent zeal in the laity, and simplicity of manners in the clergy, it was found abundantly sufficient, not only to support the ministers, and their own power, but also to build churches, and to do many acts of charity to some of the pagans.

The revenues of the church went on continually encreasing to the time of Constantine; and though by the Roman laws, no colleges, as they called them, that is, communities or fraternities, unless they had the sanction of the imperial authority, could accept legacies or donations, yet, such was the devotion of the times, that many such private grants were made; and the principal churches obtained great acquisitions, not only in moveable goods, but in landed estates; insomuch that some of the persecuting emperors were thought to be as much instigated to their cruelties by avarice, as by their blind attachment to their pagan superstition[135].

In the fourth century, the restraint being taken away, these largesses from the rich and superstitious, to the church became much greater; but the general voluntary contributions from all who could spare, diminished, the apparent necessity for them being lessened; and the zeal of the people, which persecution had kept warm and fervent, slackened from ease and security. The bishops, who were the distributers, prided in vying with each other in the magnificence of their churches; and, being now raised to an eminent rank in the state, were not satisfied to live in such a manner as contented the simplicity of the antient fathers of the church; so that by the year 400, the inferior clergy and the poor were, in many places, but in very scanty circumstances. This induced many of the pious to fix upon a certain rate out of their own annual gains to supply these necessities, and as the tenth was what had been assigned to the Levites in the mosaical law, that generally became the proportion. But as the payments of those tithes were purely voluntary, so did the givers appropriate them in such manner as they pleased, and as they thought they were most wanted[136].

In Egypt, where, it seems, this practice began, they were commonly given to the monks, who had devoted themselves to a religious poverty; in Illyricum generally to the poor; in other places to the inferior clergy of such a district, or, if the church itself was indigent, to the bishop, for the use of his church. The famous preachers about this time, particularly St. Ambrose and St. Augustine, inforced this practice with all their eloquence, and insisted on the levitical law of tithes as binding on christians. This had great, but not general effects. Some gave the tithe, others, of more zeal, gave more, and others less; and though these contributions began now to be aided by the spiritual arms of excommunication, yet were these only used to oblige a man, in testimony of his being a christian, to make some offering, not to pay precisely the tenth, or any other portion[137].

These payments of the tenth hitherto we see were voluntary; but there soon came in another practice, which, in particular places, made them compulsory. It was usual when a patron founded a church, in order for its support, to charge his lands with the payment of tithes to the minister who officiated therein. This created a permanent right in the church, not by the force of any general law, or canon (for all such attributed to these ages are forgeries of a later date) but from the especial gift of the grantor, and the power he had to charge his land. The earliest authority that proves a general right of tithes, through any country of Europe, is to be met with in the council of Mascon, held under king Guntram, who reigned in the south-east parts of France, in the year 586. There the right of tithes, through all his dominions, is acknowledged as an antient duty due to the church; and they are enjoined to be regularly paid. But it is observable, in the very words of this law, that the tithes so paid were not solely appropriated to the clergy, but much of them applied to other charitable uses, unde statuimus, ut decimas ecclesiasticas omnis populus inferat, quibus sacerdotes, aut in pauperum usum, aut in captivorum redemptionem erogatis, suis orationibus pacem populo & salutem impetrant. Thus the kingdom of Burgundy was the first that established the universal payment of tithes by a positive law. This payment, in the other parts of France, was long after at pleasure, or by particular foundation; but was daily gaining ground, especially after the impoverishment of the church by Charles Martel rendered them more necessary; and his grandson Charlemagne was the first that established them by a positive law, made in a general assembly of the states, through all France; and that as due by a divine right, in the year 778. And as he and his successors were masters also of Germany and Italy, the same law and opinion soon passed into those countries[138].

But as positive as his law was, in the direction of payment of them to the bishop or priest, it was for a long time not universally obeyed, and where it was obeyed, often shamefully eluded, as appears by the laws of his successors, and many ecclesiastical canons framed for the redressing those mischiefs. For as a portion of the tithes was originally distributed to the poor, under this pretence, it was customary for the superstitious laity, when they granted the tithes, instead of aligning them for the maintenance of the ministering, i. e. the secular clergy, to appropriate them to monasteries, which were societies of voluntary poor. These appropriations, or consecrations, as they were called, became very numerous, both from the unbounded veneration paid to the monks, and from the encouragement such grants received from the see of Rome, which looked upon the monastic orders as its fastest friends, and was bent upon raising them on the ruin of the secular clergy. But as the monks of those times were generally laymen, and incapable of serving the cure, it grew into a practice for them, if any of their own body was fit for the purpose, to get him ordained; or if they had none, to employ a secular priest, to perform the divine offices, under the name of their vicar or deputy, who was to account with them for the profits, and was to receive for his subsistence a stipulated proportion; and thus came in the division of parochial tithes, into rectorial and vicarial; the former remaining in the employer, the latter in the employed, who did the duty[139].

The same pretence of appropriating the tithes to the poor gave a handle likewise to many, when they found it necessary to pay tithes, to grant them to laymen in fee, under the like conditions and services as other fiefs; and many likewise were the unworthy churchmen, who turned the incomes of their church into provisions for their families, by granting them in fief. Thus, in process of time, were the ministering clergy, and the real poor, for whose support the tithes were originally granted, in a great measure stripped of them; and they were converted either into lay inheritances, for secular services, or applied to the support of monasteries; and both these abuses began under the specious pretence of charity. The latter, viz. the grants to monks, was always favoured by the heads of the church; and the former, in spite of all their censures, prevailed, until, at length, it was found necessary to apply some remedy to both. The evils were too inveterate to be finally removed; but this temper was found out in the council of Lateran, held in 1215, when it was enacted, That all tithes which from time immemorial had been given in fief might so continue, but no more be granted in that manner for the future; and the appropriations to monasteries were confined to three orders of monks who were looked upon as the most learned, and capable of furnishing men fit for the duty[140].

I shall proceed now to say something of the fate of tithes in England. That tithes had been paid in several parts of England during the heptarchy, and established by law in some of its kingdoms, is undeniable; but the first who ordained them by law, through all England, was Ethelwolf, in his parliament of the year 855; who had been himself, in his elder brother’s life, designed for the church; in this imitating Charlemagne, at whose court his father had long resided. This may well be allowed, although those authors that give us the copy of this law differ in the date, both as to the time and place where it was made. But be that as it may, his son Alfred certainly made a law for this purpose, to bind not only his own English, but also the new converted Danes, to whom he assigned seats in his kingdom, and whom he had submitted to the government of Guthrun. Such laws were renewed by almost every one of his successors down to the Norman conquest; an evident proof, that however zealous those princes were for the support of the church, their pious intentions were but ill seconded by their people. The severity of the law of Edgar was remarkable, and of itself sufficient cause of their backwardness; for it made the non-payment of the tenth a forfeiture of eight-tenths. The præpositus of the king and bishop, that is, I presume, the sheriff and arch-deacon, were to seize the fruits out of which the tithes had been with-held, and when they were divided into ten parts, one was given to the church that had been defrauded, another to the proprietor, and the remaining eight were divided between the king and the bishop[141].

During these times appropriations of tithes, to other churches than the parish one, and also to monasteries, were frequent, here as well as on the continent; but, for some time after the conquest, the largesses to the monks, with respect both to lands and tithes, encreased considerably, and were continually encouraged by the popes, the kings, the bishops, and nobility; by the popes for the reason already given; by the bishops and nobility, who were all Normans or foreigners, out of partiality to their countrymen (for such the monks generally were) and out of contempt and hatred to the secular clergy, who were universally English; by the kings, not only for this last mentioned cause, but for another peculiar to themselves. The government of the Saxon kings was remarkably moderate, and their laws and constitutions extremely favourable to the liberties of the people. The first race of Norman kings pretended, indeed, a right to the throne, and every one of them swore to observe the Saxon laws, with such emendations as had been consented to in parliament by William the First. But the conduct of every one of them shewed how little regard they had to that obligation, and how bent they were on setting themselves free from all restraint, and to destroy all traces of the old Saxon laws. For this purpose it was absolutely necessary to depress the secular clergy; who, in those times of ignorance, were the only lawyers; insomuch, that, in William the Second’s reign, it was said, nullus clericus, nisi causidicus; and, to render them unfit guardians of those privileges, the kings were resolved to trample upon them. For this end, a new language and new forms of proceeding were introduced into the courts, the secular and ecclesiastical jurisdictions, which had been united, were separated; and the clergy were banished from the temporal courts, and the greatest part of the business which formerly had been transacted in the country courts was transferred to the curia regis, under the immediate inspection of his judges[142].

Thus were the secular clergy daily reduced in circumstances and importance, while the monasteries flourished on their downfall. However, about the time of Henry the Third (for it is hard precisely to fix when it became an allowed maxim of the English law) all tithes arising in any parish were, of common right, payable to the priest of that parish, unless they had been previously appropriated to some other priest, or monastery, either by a positive appropriation appearing, or by prescription where that was lost, and that no layman could prescribe against the payment of them. I say no layman, for with respect to ecclesiastics, the case was otherwise. It had, indeed, been a controversy in France several centuries before, whether the lands of a church or monastery should pay tithes to the parish minister where they lay; but it was determined by the better opinion that they should. However the bishops of Rome, in complaisance to their friends the Monks, granted to many monasteries an exemption from tithes for their lands. And these are the lands, which we see at this day in the hands of laymen discharged of tithes, by virtue of a statute in the reign of Henry the eighth; before I proceed to which, it will be proper to take notice of what a modus is, as they were introduced in those early times.

A modus, then, is a composition for tithes in kind, within a certain district; whereby the layman is discharged from rendering his tithes, on his paying to the parson, in lieu thereof, what the local custom of that place directs. These compositions were originally for the mutual benefit of the clergy and laity; that one might have a settled certainty what to receive, and the other what to pay; and was, while the equivalent continued to bear any reasonable proportion to the value, an excellent means to prevent yearly disputes between the minister and his flock; but as most of them are fixed at certain rates of money, the change of its value hath, in all these cases, greatly impoverished the parochial clergy, especially as many of them grew up into a prescription, by the negligence of the clergy, without an original composition. These moduses have, likewise, not a little hurt the spiritual jurisdiction; for as their courts paid little or no regard to them, as being against the canon law, if the original composition did not appear to have the bishop’s authority, by being found in his registry, the temporal courts, wherever one is pleaded, send a prohibition to the ecclesiastical one, and reserve the tryal to themselves, by a jury of twelve men, as the legal judges of the custom[143].

When Henry the eighth threw off the pope’s supremacy, great was his danger both from abroad, and at home, particularly from the monasteries. A resolution therefore was taken for suppressing them, and applying their revenues to more useful purposes. The intention of Cranmer, at least, was to restore the tithes to the parochial clergy, and out of some part of the lands to found new bishopricks, and for other religious and charitable purposes; the remainder to be united to the royal demesnes to enable him to defend his realm without burthening his subjects with subsidies. But little of this kind was done. Five or six bishopricks, with very poor revenues, were erected, and the rest, both of lands and tithes, were distributed to the laity in whose hands they still remain, partly out of present political views, but principally from the extravagance of that king and the indigence of his successors, concurring with the avarice of their courtiers. As to the lands the abbots held discharged of tithes, the parish ministers right to them would, by the common law of England, have revived as soon as they got into lay-hands; as it would have done before, if the abbot had aliened with the consent of the convent, and this was the case of the lands of the lesser monasteries. But when the greater ones were dissolved by the act of 31st of Henry the eighth, it was expressly provided, that the king and his grantees should enjoy those lands, discharged from tithes, in as ample a manner, as the abbots held them before that time. Thus became a great part of the tithes of the kingdom, which by the common law of England were the legal maintenance of the parochial clergy, lay fees, and inheritances, as they continue at this day[144].

Tithes are of three kinds, prædial, personal or mixed. Prædial, are the fruits arising immediately from the ground, as all sorts of grain, hay, underwoods, fruits of trees, hops, saffron, hemp, flax, and such like. Mixed, which arise from cattle nourished by the ground as their young, colts, calves, lambs, pigs, or their productions, as milk, cheese, butter, &c. Thirdly, personal, which arise from the labour and industry of men using any merchandize, or manual occupation, and is the tenth part of their clear gain.

The two first had their foundation in the law of Moses, the last was introduced and strongly inforced by the canon law; nay so shameless were some of the canonists, as to insist that harlots were obliged to pay the tenth of their infamous gains; but this latter kind has had little effect in England, except by the local customs of some particular places[145].

As to what things are tithable or not by our law, it may not be amiss to lay down some general maxims concerning them.

First then, as to prædial tithes: Regularly, they are due only out of things that encrease annually, simul & semel, and therefore except by special custom, mines, minerals, chalks, stones, slates, turfs, being part of the soil, and not increasing annually, are not tithable; but this rule admits of some exceptions, of which I shall just mention two. Saffron, which encreases from three years to three years, is yet tithable; and so is underwood, that is, all trees cut under twenty years growth. The tithes of trees occasioned many contests between the clergy and laity in England, the one exacting it by their canons, and the commons in parliament constantly remonstrating against it. At length it was settled by parliament, that none should be exempted but timber above twenty years growth, as being fit for building. But this statute is so constructed, that if the trees be not of the nature of timber, they are tithable, though above that age, as bush, birch, and the like; but these, if for the scarcity of other timber, they are used in building, as beech is in Buckinghamshire, they are there exempted.

As to mixed tithes, the rule is, that things feræ naturæ are not tithable. Therefore fish, pheasants, partridges, rabbits, deer, bees, and such like are not; but several of these, if reclaimed, have been adjudged to be so, as bees in a hive, and the same reason holds as to pigeons in a dove house; though the opinion of common lawyers is, that they are not tithable, if spent in the house, and not used for sale.

But what shall we say for barren cattle, from whom no yearly profit arises? Shall the parson receive no benefit whatever from them, and shall it lie in the power of the occupier, by employing all his land in feeding nothing but barren cattle, to leave his minister without support? Certain it is, whatever the modern practice and opinion may be, that by the best authorities of the antient lawyers, agistment was due to the clergy which was the tenth part of the value of the lands, or the twentieth, which by custom, in most places, was generally paid, if the proprietor depastured the whole year, or less, according to the time and quantity of the cattle, saddle horses, or cattle for the plough, only excepted[146].

Thus much may suffice for the history and general rules of tithes, the second species of incorporeal rights, to which I may add, as much of the same nature, and founded on the same reason, what is called ministers money out of houses, in cities and towns, where there are no tithes, which the act of parliament, of the 17th and 18th of Charles the second, hath restrained to the twentieth part of the value of houses, as valued by a commission from the Lord Lieutenant and six of the council.