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

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.