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.
LECTURE X.
_The right of Seignory and its consequences—The right of
Reversion—Rent seck—Rent charge—The nature of_ distress, _as
the remedy for recovering feudal duties. Observations on_
distresses _in general_.
Having spoken of tithes and advowsons, two kinds of incorporeal benefices
that arose in those antient times, I come now to treat of _seignories_
and their consequences. A seignory is an incorporeal right and interest
still remaining in the lord, when he parts with his lands, in benefice
to a tenant. Now the rights of a lord, in respect of his seignory, may
be considered in two ways, either as the services were due to the lord
from the _person_ of the tenant, or from the _lands_. He hath therefore,
in virtue of his seignory, a right to all those personal duties which
flow impliedly from the oath of fealty; such as to receive warning from
his tenants of any injury done, or impending danger to his person, his
dignity, or seignory, to receive faithful advice from them when called
upon, and to have his secrets faithfully kept by them; to be the judge
of their controversies, and the leader in war of such of them as hold
by military service. For these barbarous people had no idea of dividing
power, but always entrusted the civil and military sword in the same
hands; whereby they avoided the dangers and disorders that more polished
and richer nations have ever been exposed to, namely, of having the civil
and legal authority subverted by the military power. And so strict was
the bond between lord and tenant, that the latter could in no wise, in
point of judgment, decline his lord’s jurisdiction, by refusing him as
judge on account of partiality. Such a charge was a breach of fealty on
the vassal’s part, and no such presumption could be admitted by that law,
which looked upon the lord as equally bound by the oath of fealty, though
not taken by him, as the tenant was[147].
By the Roman law, a suspected judge might be refused by the suitors
for almost all the same causes, and grounded mostly upon the same
reasons, for which jurors, who in our law are _judges of the fact_,
may be challenged at this day. But the feudal customs admitted no such
suspicions as to the lord, and therefore in the English law, no judge,
however clearly interested in the cause, can be challenged. This maxim
once established, it was necessary, however, for the sake of justice,
that it should admit of some qualification. The _assessors_ in Germany,
who assisted the lord in judgment, from whom came, in after time, the
_pares curiæ_, were this qualification. But as these were not judges in
all feudal causes, but in some the lord alone continued sole judge; some
remedy was here to be applied, and on the continent and in England, they
proceeded differently. On the continent, the king, or superior lord,
appointed a _cojudge_, or assessor. In England the suitor, by applying to
the king’s courts was empowered to remove the cause thither; which hath
been one great occasion of these inferior courts of the lords dwindling
to nothing[148].
As to the right the lord had in the land by virtue of his seignory, the
principal, and upon which his other rights out of the land depended, was
his _reversion_. A reversion is that right of propriety remaining in the
lord, during the continuance of the particular estate of possession of
the tenant; whereby he is entitled to the service during the duration of
the term, and to the possession itself, when it is either expired, or
forfeited. Hence it appears that the fealty and services of the tenant
are incident to the lord’s reversion. Out of these reversions may be
carved another incorporeal estate, called a _remainder_, which is a
particular estate dependant upon, and consequent to a prior particular
estate; as if lands be granted to A. for five years, and afterwards to
B. for life. In this case A. hath a lease for years, B. a remainder for
life, and the reversion remains in the grantor. In our law, remainders,
and the particular precedent estate on which they depend are considered
as making but one estate; and so, in truth, they are with respect to the
reversioner, though not to each other. Therefore they must both pass out
of the grantor at the same time, though it is not absolutely necessary
that the remainder should vest in the grantee at the creation of the
precedent particular estate; for a remainder may be good which depends
on a contingency, as if a remainder, after a lease for life or years
to A, is limited to the eldest son of J. S. This is a good remainder,
but a contingent one, depending on the birth of J. S.’s son during the
continuance of the term of A; for the remainder being but one estate
with the precedent particular one, and only a continuation of it, must
commence instantly when it determines. Or, if after a lease to A, a
remainder is limited to the heirs of J. S. this is a good contingent
remainder, depending on the event of J. S. dying during the particular
estate. For it is a maxim of the English law, _Nemo est hæres viventis_.
To return to reversions, I mentioned fealty and services as incidents of
a reversion; but we must distinguish that fealty is an inseparable one,
which the services are not; for the tenure being from the reversioner,
and fealty necessarily incident to every tenure, it is impossible
they should be separated. A grant, therefore, of fealty, without the
reversion, is void; and the grant of the reversion carries the fealty
with it. But the case is otherwise as to the services; for the services
may be granted without the reversion, and although the reversion be
granted, the services, by special words, may be excepted[149].
It will be now proper to speak of the remedy the reversioner hath for the
recovery of his services, if they are not paid. In the antient times the
tenant was, at all the due times, at his peril obliged to perform his
service; for as each the smallest failure was a breach of his fealty,
his tenancy was thereby absolutely forfeited, and this long continued to
be the case in military tenures. But as the defence of the realm was not
concerned in the socage holdings, but only the immediate interest of the
lord, it was thought too hard, that every, perhaps involuntary omission,
should induce an absolute forfeiture; when the lord, where his dues were
certain, might receive an adequate recompence. Custom, then, introduced
the method of _distress_, in imitation of the Roman law, as the proper
method to recover an equivalent for the damages he sustained by the
non-performance of the duties. And afterwards, when the personal service
of the military tenants came to be commuted into a sum of money called
_escuage_, distress came to be the regular method of recovering that and
the other fruits of the military tenure; the damage the lord sustained
being now capable of a reduction to a certainty[150].