in ecclesiastical law, 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, grapes, hops, and wood; the second mixed, as of wool, milk, pigs, &c. consisting of natural produce, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in goods; the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth-part of the clear gains and profits is due.

We shall, in this article, 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.

1. As to their original, we will not put the title of the clergy to tithes upon any divine right; though such a right certainly commenced, and we 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, Tithes, 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.

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 Augustine the monk, about the end of the sixth century. But the first mention of them which we have met with in any written English law, is 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 eftates, respectfully consisting of the kings of Mercia and Northumberland, the bishops, dukes, senators, and people. Which was a 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 fædus Eduardii et Guthrumi; or the laws agreed upon between king Guthrum 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 Guthrum 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-obfervance: 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.

2. We are next to consider the persons to whom tithes are due. Upon their first introduction, though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased; 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 afterwards by the written law of the land.

Arbitrary consecrations of tithes took place again afterwards, and were in general use till the time of king John. This was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other orders, 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 donation, 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 III. 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 infodation 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 afterwards 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, it was allowed of, and so became lex terrae. 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 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.

3. We observed that tithes are due of common right to the parson, 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.

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. 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 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 21 years. So that now, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives or 21 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.

Secondly, a discharge by custom or prescription, is where time out of mind such persons or such lands have been either partially or totally discharged from the payment of tithes. And 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 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 twopence an acre for the tithe of land; sometimes it is a compensation in work and labour, 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 at 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.

A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged from all tithes. So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non habet ecclesiae. But these personal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy; for their tenant or leetee shall pay tithes, though in their own occupation their lands are not generally titheable. And, generally speaking, it is an established rule, that in lay hands, modus de non decimando non valet. But spiritual persons or corporations, as monasteries, abbeys, bishops, and the like, were always capable of having their lands totally discharged of tithes by various ways: as, 1. By real composition. 2. By the pope's bull of exemption. 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession. 4. By prescription; having never been liable to tithes, by being always in spiritual hands. 5. By virtue of their order; as the Knights Templars, Cistercians, and others, whose lands were privileged by the pope with a discharge of tithes. Though, upon the dissolution of abbeys by Henry VIII., most of these exemptions from tithes would have fallen with them, and the lands become titheable again, had they not been supported and upheld by the statute 31 Henry VIII. c. 13, which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them. And from this original have sprung all the lands which being in lay hands, do at present claim to be tithe-free: for if a man can show his lands to have been such abbey-lands, and also immemorially discharged of tithes by any of the means before-mentioned, this is now a good prescription de non decimando. But he must know both these requisites: for abbey-lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey-lands.

It is universally acknowledged that the payment of tithes in kind is a great discouragement to agriculture. They are inconvenient and vexatious to the husbandman, and operate as an impolitic tax upon industry. The clergyman, too, frequently finds them troublesome and precarious; his expenses in collecting are a considerable drawback from their value, and his just rights are with difficulty secured: he is too often obliged to submit to imposition, or is embroiled with his parishioners in disputes and litigations, no less irksome to his feelings than prejudicial to his interest, and tending to prevent those good effects which his precepts should produce. It is therefore of the utmost importance to parochial tranquillity, and even to religion, that some just and reasonable standard of composition could be fixed. Land has been proposed, but in the present state of the division of property this is impossible: and as money is continually changing in its value, it would also be a very improper standard, unless some plan could be formed by which the composition could be increased as the value of money diminishes. A plan of this kind has been published in the Transactions of the Society institute at Bath, Vol. IV., which those who are interested in this subject may consult for farther information.