when the king, or any subject by his license, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction. (i) This is said to have been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of Archbishop Becket in the reign of Henry II. (k) And therefore though Pope Alexander III, (1) in a letter to Becket, severely inveighs against a prava consuetudo as he calls it, of investiture conferred by the patron only, this however shows what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of Christianity in this Island; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris, (m) which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feudal dominion over ecclesiastical benefices, and in consequence of that, began to claim and exercise the right of institution universally as a species of spiritual investiture. However this may be, if, as the law now stands, the true patron once waives this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the *advowson is now become forever presentative, and [*24] shall never be donative any more. (n) For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavorable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up forever; and will therefore reduce it to the standard of other ecclesiastical livings. (3) II. A second species of incorporeal hereditaments is that of tithes; (4) which 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: (5) the first species being usually called predial, as of corn, (i) Co. Litt. 344. (m) A. D. 1239. (k) Seld. tith. c. 12, § 2. (1) Decretal, l. 8, t. 7, c. 3. (3) [The contrary is held by a later authority than the authorities referred to by the learned judge; in which it was declared, that although a presentation may destroy an impropriation, yet it cannot destroy a donative, because the creation thereof is by letters patent. 2 Salk. 541; 3 id. 140; Mirehouse, 26. It may be here observed, that when an incumbent is made a bishop, the right of presentation in that case is in the king, and is called a prerogative presentation; the law concerning which was doubted in Car. II's time, but in the time of King William it was finally determined in favor of the crown. 2 Bla. R. 770.] The whole subject of advowsons is foreign to the American law. Congress is forbidden by the first amendment to the constitution of the United States to make any law respecting an establishment of religion, and the people of the states have been careful, by their state constitutions to prohibit any such establishment under state laws. Religious societies are voluntary organizations in America, and their pastors or teachers are chosen by the members, or in such other mode as the articles of association shall prescribe. (4) Tithes no longer exist as a distinct species of incorporeal hereditaments; they have become members of the family of rents. (5) [The definition proposed in the text is not strictly accurate. The faulty part of the definition seems to be the supposition that tithe consists, in all cases, of the tenth part of the increase yearly arising and renewing. This is not correct, even as to predial tithes, universally; and to mixed and personal tithes it does not at all apply. Wood is one of the instances to show that predial tithe may be payable in respect of an article of which the renewal is not annual. Silva cædua is titheable when it is felled; and between the falls several years commonly (and a great many years not unfrequently) intervene. Page v. Wilson, 2 Jac. and Walk. 523; Walton v. Tryon, 1 Dick. 245; Chichester v. Sheldon, 1 Turn. and Russ. 249.] grass, hops, and wood: (0) the second mixed, as of wool, milk, pigs, &c., (p) consisting of natural products, but nutured and preserved in part by the care of man; and of these the tenth must be paid in gross; 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. (q) (6) It is not to be expected from the nature of these general commentaries, that I should particularly specify what things are titheable, 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 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. [*25] 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 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, 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 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, (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 onsisting of the kings of Mercia *and Northumberland, the bishops, dukes, nators, and people; which was a very few years later than the time [*26 ] tat Charlemagne established the payment of them in France, (t) and made tt famous division of them into four parts; one to maintain the edifice of he church, the second to support the poor, the third the bishop, and the forth the parochial clergy. (u) A he next authentic mention of them is in the fœdus Edwardi et Guthruni; or e laws agreed upon between King Guthrun the Dane, and Alfred and his son'dward the Elder, successives kings of England, about the year 900. This was kind of treaty between those monarchs, which may be found at large in (q)1 Roll. Abr. 656. (r)2 Inst. 651. (t) A. D. 778. (u) Book 1, ch. 11. Seld. c. 6, 7. Sp. of Laws, b. 31, c. 12. (0) ll. Abr. 635. 2 Inst. 649. c. 8, 22. (8) S. (p) 1bid. (6) [addition to this triple distinction, all tithes have been otherwise divided into two classes, eat or small; the former, in general, comprehending the tithes of corn, peas, and beans, hay angrood; the latter, all other predial, together with all personal and mixed, tithes. Tithes alreat or small, according to the nature of the things which yield the tithe without reference the quantity.] 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 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 due. And upon their first introductions(as hath formerly been observed,) (2) 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. (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. (e) *However, arbitrary consecrations of tithes took place again after[*27] wards, 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 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 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 layman, (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 Edwar Coke, (h) bound not the lay subjects of this realm: but, being reasonable ar just (and, he might have added, being correspondent to the ancient law [*28] it was allowed of, and so became lex terræ. This put an effectual stopo all the arbitrary consecrations of tithes; except some footsteps which still c1tinue in those portions of tithes, which the parson of one parish hath, thogh rarely, a right to claim in another: for it is now universally held, (i) that thes are due of common right, to the parson of the parish, unless there be a spial exemption. This parson of the parish, we have formerly seen, (k) may be her the actual incumbent, or else the appropriator of the benefice: appropriationsing a method of endowing monasteries, which seems to have been devised by t'regular clergy, by way of substitution to arbitrary consecrations of tithes) (7) (x) Cap. 6. (w) Wilkins, page 51. (y) Cap. 1. (z) Book I, Introd. § 4. (h) 2 Inst. 641. 113. 284. (7) [A parsonage is appropriate when it belongs to a spiritual corporation or pon; inappropriate when it is in lay hands. Ante, book 1, p. 385; Plowd. 493.Ĵ 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. 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 shewing that even this caution was ineffectual, and *the possessions of the church being, by this and other means, every day dimin- [*29] 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, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives, or twenty-one 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 two-pence 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 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 must be observed. 1. It must be certain and invariable, (n) for payment of differ[*30] ent sums will prove it to be no modus, that is, no original real composition; because that must have been one and the same, from its first original to the present time. 2. The thing given, in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons only; (0) thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parson. 3. It must be something different from the thing compounded for; (2) one load of hay, in lieu of all tithe hay, is no good modus; for no parson would bona fide make a composition to receive less than his due in the same species of tithe; and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be discharged from payment of one (m) 2 Inst. 490. Regist. 38 13 Rep. 40. (o) 1 Roll. Abr. '649. (p) 1 Lev. 179. VOL. I.-44 (n) 1 Keb. 602. 345 species of tithe, by paying a modus for another. (q) Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but not of barren cattle for tithe is, of common right, due for both; and therefore a modus for one shall never be a discharge for the other. 5. The recompense must be in its nature as durable as the tithes discharged by it; that is, an inheritance certain (r) and therefore a modus that every inhabitant of a house shall pay 4d. a year, in lieu of the owner's tithes. is no good modus; for possibly the house may not be inhabited, and then the recompense will be lost. 6. The modus must not be too large, which is called a rank modus: as if the real value of the tithes be 601. per annum, and a modus is suggested of 401., this modus will not be established; though one of 40s. might have been valid. (s) Indeed, properly speaking, the doctrine of rankness in a modus is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law. (t) For, in these cases of prescriptive or customary moduses, it is supposed that an original real composition was anciently made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence *such usage was derived. Now time of memory hath been [*31] long ago ascertained by the law to commence from the beginning of the reign of Richard the First; (u) and any custom may be destroyed by evidence of non-existence in any part of the long period from that time to the present; (8) wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the First, this modus is (in point of evidence) felo de se, and destroys itself. For, as it would be destroyed by any direct evidence to prove its non-existence at any time since that era, so also it is destroyed by carrying in itself this internal evidence of a much later original. 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. (v) So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesiæ. (w) 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 lessee shall pay tithes, though in their own occupation their lands are not generally titheable. (r) And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet. (9) But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes by various ways; (2) 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: [*32] 4. By prescription; having never been liable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knight-templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes. (a) Though upon the dissolution of abbeys by Henry VIII, most of those (t) Pyke v. Dowling, Hil. 19 Geo. III, C. B. (8) 11 Mod. 60. (u) 2 Inst. 238, 239. This rule was adopted, when by the statute of Westm. I (3 Edw. I, c. 39), the reign of Richard I was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII, c. 2, this period (in a writ of right) hath been very rationally reduced to 60 years, it seems unaccountable, that the date of legal prescription or memory should still continue to be reckoned from an era so very anti quated. See Litt. § 170. 34 Hen. VI, 37. 2 Roll. Abr. 269, pl. 16. (v) Cro. Eliz. 511. (w) Cro. Eliz. 479, 511. Sav. 3. Moor. 910. (y) Ibid. 511. (z) Hob. 309. Cro. Jac. 308. (a) 2 Rep. 44. (2) Cro. Eliz. 479. Seld. tith. c. 13, 2. (8) The time of prescription was shortened by Lord Tenterden's Act, 2 and 3 Wm. IV, e 10, to twenty, thirty, forty and sixty years for different classes of cases. For cases under thi act see Parker v. Mitchell, 11 A. and E. 788; Wright v. Williams, 1 M. and W. 77; Welco v. Upton, 6 id. 536; England v. Wall, 10 id. 699; Richards v. Fry, 3 Nev. and P. 67; Ward v. Robins, 15 M. and W. 237; Bright v. Walker, 1 Cr. M. and R. 211; Eaton v. Swansea Water Co., 17 Q. B. 267. (9) Prescriptio is the proper word here, instead of modus. See 4 Young and C. 285. |