Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

In the fourth century, the restraint being taken away, these largesses from the rich and superstitious, to the church became much greater; but the general voluntary contributions from all who could spare, diminished, the apparent necessity for them being lessened; and the zeal of the people, which persecution had kept warm and fervent, slackened from ease and security. The bishops, who were the distributers, prided in vying with each other in the magnificence of their churches; and, being now raised to an eminent rank in the state, were not satisfied to live in such a manner as contented the simplicity of the antient fathers of the church; so that by the year 400, the inferior clergy and the poor were, in many places, but in very scanty circumstances. This induced many of the pious to fix upon a certain rate out of their own annual gains to supply these necessities, and as the tenth was what had been assigned to the Levites in the mosaical law, that generally became the proportion. But as the payments of those tithes were purely voluntary, so did the givers appropriate them in such manner as they pleased, and as they thought they were most wanted[136].

In Egypt, where, it seems, this practice began, they were commonly given to the monks, who had devoted themselves to a religious poverty; in Illyricum generally to the poor; in other places to the inferior clergy of such a district, or, if the church itself was indigent, to the bishop, for the use of his church. The famous preachers about this time, particularly St. Ambrose and St. Augustine, inforced this practice with all their eloquence, and insisted on the levitical law of tithes as binding on christians. This had great, but not general effects. Some gave the tithe, others, of more zeal, gave more, and others less; and though these contributions began now to be aided by the spiritual arms of excommunication, yet were these only used to oblige a man, in testimony of his being a christian, to make some offering, not to pay precisely the tenth, or any other portion[137].

These payments of the tenth hitherto we see were voluntary; but there 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.