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HOWEVER this may be, if, as the law now ftands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowfon is now become for ever presentative, and shall never [ 24 ] be donative any more". For thefe exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and conftrued as strictly as pos fible. If therefore the patron, in whom such peculiar right refides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclefiaftical livings (3).
II. A SECOND fpecies of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increase, yearly arifing and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: the firft fpecies being usually called predial, as of corn, grafs, hops, and wood; the fecond mixed, as of wool, milk, pigs, &c. 3, consisting of natural products, but nurtured and preferved in part by the care of man; and of these the tenth must be paid in grofs; the third perfonal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due (4).
It is not to be expected from the nature of these general commentaries, that I fhould particularly fpecify, what things are titheable, and what not; the time when, or the manner
n Co. Litt. 344. Cro. Jac 63.
91 Roll. Abr. 656.
(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 prefentation may destroy an impropriation, yet it cannot deftroy a donative, because the creation thereof is by letters patent. 1 Salk. 541.
(4) But perfonal tithes are only payable by a special custom, and perhaps are now paid no where in England, except for fish caught in the fea, and for corn mills. 3 Burn. Ec. 473.
and proportion in which, tithes are usually due (5). For this I must refer to fuch 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 fubftance of the earth, or is not of annual increase, as ftone, lime, chalk, and the like; nor for creatures that are of a wild nature, or ferae naturae, as deer, hawks, &c. whofe increase, fo as to profit the owner, is not annual, but cafual' (6). It will rather be our business to  confider, 1. The original of the right of tithes. 2. In whom that right at prefent fubfifts. 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 minifters of the gofpel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, befides the pofitive 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 profeffions, for the fake of the rest of mankind, have a right to be furnished with the neceffaries, conveniencies, and moderate enjoyments of life, at their expence, for whofe benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priefts or clergy: ours in particular have established this of tithes, probably in imita
r 2 Inft. 651.
(5) This is a very important fubject, but the difcuffion of it here would have no immediate reference to the author's text, and it would be too extensive for a note; it will therefore be reserved by the editor for the fupplemental volume.
(6) Tithes may be payable of deer and rabbits by special
tion of the Jewish law: and perhaps, confidering 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 unfupported by temporal sanctions (7).
WE cannot precisely ascertain the time when tithes were first introduced into this country. Poffibly they were contemporary with the planting of chriftianity among the Saxons, by Auguftin the monk, about the end of the fixth century. But the first mention of them, which I have met with in any written English law, is in a conftitutional decree, made in a fynod held A. D. 786s, wherein the payment of tithes in general is ftrongly 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, refpectively confifting of the kings of Mercia and Northumberland, the bishops, dukes, fenators, and [ 26 ] people. Which was a few years later than the time that Charlemagne established the payment of them in France', and made that famous divifion of them into four parts; one to maintain the edifice of the church, the second to fupport the poor, the third the bishop, and the fourth the parochial clergy ".
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 fon Edward the elder, fucceffive kings of England, about the year 900. This was a kind of treaty between thofe monarchs, which u Book I. ch. 11. Seld. c. 6. § 7. Sp. of laws, b. 31. c. 12.
Selden, c. 8. § 2.
(7) The clergy have precifely the fame right to tithes, as the heir at law has to his ancestor's eftate, or the former to the poffeffion in confequence of his leafe; and the proprietor has no more reafon to complain that his land is not tithe-free, than he has that his neighbour's field is not his own.
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may be found at large in the Anglo-Saxon laws: wherein it was neceffary, as Guthrun was a pagan, to provide for the fubfiftence of the chriftian 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 feconded by the laws of Athelftan, 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 And upon their first introduction (as hath formerly been obferved 2) though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased2; which were called arbitrary confecrations of tithes: or he might pay them into the hands of the bishop, who diftributed among his diocefan clergy the revenues of the church, which were then in common b. But, when diocefes were divided into parishes, the tithes of each parish were allotted to it's own particular minister; first by common confent, or the appointments of lords of manors, and afterwards by the written law of the land".
HOWEVER, arbitrary confecrations of tithes took place again afterwards, and became in general-use till the time of king John . Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under archbishop Dunstan and his fucceffors: who endea voured 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 fanctimonious pretences to extraordinary purity of life, all ecclefiaftical profits to the coffers of their own focieties. And this will naturally enough account for the number and riches of the monafteries 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 fomewhere, might think it good policy to erect an abbey, and there pay them to his own monks; or grant them to fome abbey already erected: fince, for this dotation, which really coft the patron little or nothing, he might, according to the superstition of the times, have masses for ever fung for his foul. But, in process of years, the income of the poor laborious parish priests being scandaloufly reduced by these arbitrary confecrations of tithes, it was remedied by pope Innocent the third about the year 1200 in a decretal epiftle, fent to the archbishop of Canterbury, and dated from the palace of Lateran: which has occafioned fir 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', whereas this letter of pope Innocent to the archbishop enjoined the payment of tithes to the parfons of the refpective parishes where every man inhabited, agreeable to what was afterwards directed by the fame pope in other countries. This epistle, fays fir Edward Coke", bound not the lay fubjects of this realm: but, being reasonable and just, (and, he might have added, being correfpondent to the antient law,) it was allow-  ed of, and fo became lex terrae. This put an effectual stop to all the arbitrary confecrations of tithes ; except fome footfteps which still continue in those portions of tithes, which the parfon of one parish hath, though rarely, a right to claim in another for it is now univerfally held ', that tithes are due, of common right, to the parfon of the parish, unless there be a special exemption. This parfon of the parish, we have formerly feen *, may be either the actual incumbent, or elfe the appropriator of the benefice: appropriations being a method of endowing monafteries, which feems to have been devised by the regular clergy, by way of substitution to arbitrary confecrations of tithes.
e Opera Innocent. III. tom. 2. pag. 452.
f Decretal. 1. 3. t. 30. 6. 19. g Ibid. c. 26.
A 2 Inft. 641.
i Regift. 46. Hob. 296.
In extraparochial places the king,