II. A second species of incorporeal hereditaments is that of tithes; when 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. grass, hops, and wood: (0) the second mixed, as of wool, milk, pigs, &c., (p) consisting of natural products, but nurtured 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)" 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 ferae naturue, as deer, hawks, &c. whose increase, so as to profit the owner, is not annual, but casual. (r) It [25] 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. 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. 7 o 1 Roll. Abr. 635, 2 Inst, 64o, P lbid. q 1 Roll Abr. 156, + 2 Inst. 6.31. (5) As to the law of tithe in general, see Mirehouse on Tithes, and Selden; Plowden, Toller Burn E. L. tit. Tithe; Com. Dig. Disines; Bac. Ab. Tithes; 2 Saund. index, Tithe; Eagle as ! Young's Tithe Cases. (6) The distinction between predial and mixed tithe is, that predial tithes, so called from præs dium, a farm, are those which arise immediately from the soil, either with or without the inter vention of human industry. Those are mixed which arise immediately through the increase ir other produce of animals, which receive their nutriment from the earth and its fruits. Therefore agistment is a predial tithe, though, as it is incapable of being set out in kind, it is not within the statute. 2 & 3 Ed VI c. 13 per Macdonald, ch. B. 3 Anstr. 763 Personal tithes are so termed because they arise entirely from the personal industry of man. Mirehouse, 1 & 2 These personal tithes are not, at present, paid any where except for fish caught in the sea, Bond Rep 256. 3 T R 385. and for corn-mills, Mirehouse, 93 to 101. Tithe is not payable of common right of things ferr naturæ, as of deer in a park, or rabbits in a warren, or a decoy in hands of owner, but by special custom may be due. Com. Dig. Dismes, H. 4. 16. Owen, 31. Gwm. £75. Cro. Car. 339. 8 Price, 39. Chatty. (7) It has been been truly observed, that the clergy have the same tight to tithes as the bheir at 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, (3) 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 par- [26] liamentary conventions of estates, respectively consisting of the 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 (1) 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. (u) The next authentic mention of them is in the foedus 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 (r) 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 950. 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. s Seld. c. 8. § 2. 14. D. 778, у сар. 1. u Book I. ch. 11. Seld. c. 6. 7. Sp of laws, b. 31. c. 12. And Low has to his ancestor's estate, yet still this mode of raising a revenue for the support of the church has ever been obnoxious to those upon whom it is imposed, and seems liable to the same objections as were urged on all hands against the property tax, viz. that it is a tax upon industry. The argument that tithes may be taken to be part of the rent which the farmer pays for his land, is more plausible than sound, for the sum which he pays to his landlord under that name is certain, while the amount which he pays to the clergyman increases with the increase of his harvests, though that has been effected by an increased expenditure both of money and Jabour; it seems hard therefore that he should be stripped of one tenth of the results of his superior husbandry in addition to the tenth of the pro-luce of his tart, by the ordinary course of cal Lvation. In the case of personal tithes, only a tenth of the clear profit is payable after deduct ing all expenses. 3 Anstr 915. Mirehouse, 108 Why, therefore, should the tenths of the produce of lands be allowed without any deduction for expenses. The policy of a system which gives rise to jealousies, distrusts, and quarrels between the people and their spiritual guides, is at best questionable, and the true friends of the church must be anxious for these changes becoming general, which have prevented the recurrence of those evils wherever they have been introduced. Accordingly the courts and juries look with favour up on and endeavour to support compositions, ancient payments, and moduse ». (8). The rector is pruna facie entitled to all the tithes of the parish, small as well as great ; and the ricar, in order to take any part of them from him, must either produce an endowinent or give such evidence of usage as pres ippo es an endowment, since courts will not presume any Ling in favour of the vicar gamit the rector. 2 Buls 27 2 Ves. Sen. 511 Yelverton, §6. 3 Atk. 497, Mirehouse on Tithes, 11. Where an endowment does not extend to the tithe in question, a subsequent more extensive endowment may be pre, uned from usage, Hurdr. 328. 2 Bula 27. 1 Price, 13. 2 Pnce, 250. 284. $29. 9 Price, 251; and forty years' usage is sufficient to afford presumption of a subsequent endowment, 4 Price, 198. 2 Puce, 450; and perhaps 30 or 20 years would so thee. Gwil, 648. Banb 144. 9 Price, 231. 2 Bar. & C.51 Mirchiouse on T. 15. 17. In general, a curate has no claim to the tithes of a parish. Mirchouse on T. 20. Portions of tither may be vested in a person who is neither rector nor vicar, by grant before the restraining statutes, and which may be evidenced by long possession. Derge, c ? 25) 1 Anst 311, Gwil 13 it however being a claim against common right, the rector has a night to throw the onus probandi upon the portionist The parson of our parish, or other person may prescribe to have some of the traks in another parish, Buc. Ab. Tithes, H., and ki ap ** upon their first introduction (as hath formerly been observed), (2) though every man was obliged to pay tithes in general, yet he might give them to what priests 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. (c) [27] 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 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 (e) Third 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, (ƒ) 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 cor[28] respondent to the ancient law), it was allowed of, and so became ler 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, (i) that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. This parson of the parish, we have formerly seen, (k) may be either the actual incumbent, or else the appropriator of the benefice: appropriations being a 1 Bok I. Introd 4. a Inst. €46. Hob. 290. iRegist. 46. Hob 236. ten of debt for not setting out the tithe claimed, it will not be necessary for the plained to se. a title, particularly as such pertionist, though it most be accurately chewn iti cvitence OVET Te land the port on was granted. Cro, Jạc 437, Sand ord v. Porter, Mathouse, 26 method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes. (1) 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, [29] 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 twenty-one years." So that now, by virtue of this statute, no real composition made since the 13 ! In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See Book 1. p 313. 284. m 2 Inst. 490. Regist. 38. 13 Rep. 40. (9) As to real compositions in general, see Mirehouse, 157. In order to establish it in evidance, the deed itself, executed between the commencement of the reign of Richard the First and the 13 Eliz., must be produced, or such evidence from whence, independent of mere usage, it may be inferred that the deed once existed, for otherwise every bad modus might be turned into a good composition. 3 Bro. Rep. 217. 2 Anst. 372. Wightw. 324. 1 Daniel's Rep. 10. 1 Price, 253. Gwil. 587. Without such evidence of a deed, a composition real cannot be proved by reputation, though corroboratory evidence of non-payment of tithes, and a deed creating a com position real, will not be presumed from payment for two hundred years of a sum of 20%. in lieu of tithes. 4 Mad. 140. 2 Bos. & P. 206. Mirehouse, 156, 7. 159.; but see 5 Ves. J. 187. With respect to compositions entered into between the tithe owner and any parishioner. for the latter to retain the tithes of his own estate, they are clearly legal and binding on the parties; and it has been decided, that they are analogous to tenancies from year to year, between landlord and tenant; and if they are paid without, or beyond, an agreement for a specific time, they cannot be put an end to without half a year's notice, expiring at the time of the year from which the composition commenced; and the parishioner may avail himself of the defect of no tice, at the same time that he controverts the right of the incumbent to receive the tithes in kind, an objection not permitted to a tenant who denies the right of the landlord. 2 Rayner on T. 999 2 Bro. 161. 1 Bos, & Pul. 458. And this doctrine was confirmed in 12 East, 83, where it was also decided, that the notice must be unequivocal. A parishioner who has compounded with the parson one year for his tithes, and has not determined the composition, cannot set up as a defence to an action for the next year's composition money, that the plaintiff is simoniacis 6 Taunt 5332 Marsh. 38. If the occuper disclaim any liability to pay uthes at all, and deny the parson's title, this dispenses with the necessity for a notice to determine the composition. 1 Brod & B. 4. 3 B. Moore, 216. S. C. (See the form of notice, Tidd's Forms, chap. xlvi. 5.; and if the time be uncertain, see id. s. 3.) In case of death of the incumbent who has agreed to the compo sition, the successor is entitled to tithe in kind; and there is no apportionment of the compos tion money under the 11 Geo II c. 19.; but if the successor continue to receive the same pas ment thereon, be will be entitled to an apportionment. 10 East, 269. 8 Ves, 308. 2 Ves, & B. 334. Bunb 294 Price v. Lytton, per Plumner, m of rolls, H. T. 1818. By agreeing to ac position, a rector loses hus remedy on the land, and on the statute Edward VI, and has only a personal action for the arrears of his composition 4 Mad. 177. These compositions are pure, personal, and in case of a change in the occupation of the land, the fresh occupier will be liable to set out tithe in kind. 2 Chitty's Rep. 405. Chitty (10) And a composition made since that act, though conûmed by a decree in the court t chancery, will not bind the successor. 2 Wooddes. 107. Christia law and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. (f) For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other. : Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the 4 5 particular names of the things are equally sufficient to pass them, ex[19] cept in the instance of water; by a grant of which, nothing passes but a right of fishing: (g) but the capital distinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, every thing terrestrial will pass. (h) CHAP. III. OF INCORPOREAL HEREDITAMENTS. AN incorporeal hereditament is a right issuing out of a thing' corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. (a) It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the sub f Brownl. 142. (4) As to the remedy for the infraction of this right, 11 Mod. 74. 130. 2 Burr. 1114. 1 Stark Rep. 56. (5) Or the right to use the water, as in the case of rivers and mill-streams. Twenty years exclusive enjoyment of the water in any particular manner by the occupier of the adjoining lands, affords a conclusive presumption of right in the party so enjoying it; and he may maintain an action if the water be diverted from its course, so that the quantity he has thus been accustomed to enjoy is diminished, although the fishery may not be injured, 6 East, 208. 7 East, 195. 1 Wils. 175. ; and he may legally enter the land of a person, who has occasioned a nuisance to Chitty. a watercourse, to abate it. 2 Smith's Rep. 9. Com. Dig. Pleader. 3 M. 41. |