A history of tithes

by Henry William Clarke

Every reader of “Facts and Fictions” cannot consult the Worcester volume to judge for himself whether this statement is correct or not. Readers generally accept as true what men of position and education publish, without investigating—for they have not time—the truth of the subject-matter. Mr. Fuller makes the following candid admission: “In Thorpe’s ‘Anglo-Saxon Laws,’ i. 342, the tripartite division seems expressly sanctioned by law; it will be therefore necessary for us to investigate this important fact, and see if it is not possible to shake its authority and bearing on the case.”[219] This is exactly the spirit with which certain writers attack the law. Let us test the above quotation from “Facts and Fictions.” The volume contains 184 folios quarto. Folios 1 to 39 form the first tract in the volume; 42 to 56 the second; 57 to 68b the third; 71 to 97b the fourth, etc.

There was a good deal of guess work in arranging the tracts in this order. They were not written by the same hand; some were written early in the eleventh century, and others in the third quarter of the same century. The laws of Canute, Edgar, and part of Alfred’s, were written in the Conqueror’s reign. A large portion of Alfred’s laws is written in Josseline’s hand, in the 16th century, then a common practice to complete imperfect manuscripts, and the manuscript of Alfred’s laws in the Worcester volume is very imperfect. Then the laws of Athelstan and Edmund may be seen at once to be a much earlier hand, of the first quarter of the 11th century—the period assigned by Thorpe. There is a fragment of Edgar’s laws at folio 89, placed between Edmund’s and Ethelred’s, and in the same handwriting, and fully sixty years earlier than Edgar’s laws, which are at folios 15 to 41. These facts as to dates of handwriting can easily be verified by comparing them with charters of certain dates. I have compared the handwriting in the several tracts with the charters written towards the end of the 10th century, and beginning, middle, and end, of the 11th. The Church Grith law was certainly written before Canute’s death in 1035. There are several breaks in the volume between the laws of the five kings, although Lord Selborne says, “All in Anglo-Saxon, without break.” The first break is of six folios between the first and second parts of Alfred’s laws. Then a second break of no less than twenty-eight folios between the last part of Alfred’s and the beginning of Athelstan’s. Here, then, are two breaks of thirty-four folios, and there are seven heads of other manuscripts on different subjects which are bound up in these breaks of thirty-four folios.

It is quite evident that in the Worcester volume, Nero, A. 1, we have two incomplete sets of Anglo-Saxon laws, picked up by Sir Robert Cotton and thus preserved from destruction, which Lord Selborne would lead one to think were one complete, continuous set of laws of these five kings. The other parts are lost. I have already given a brief sketch how our antiquarians collected, as best they could, the tons of manuscripts which belonged to the libraries of the dissolved monasteries scattered throughout the country.

Here is one specimen out of many from “Our Title-Deeds,” p. 119, by which Mr. Fuller attempts “to shake the authority” of the Church Grith Law. “A document,” he says, “which Selden casts a slur upon, is surely not one upon which to rest a fact of English history.” Then in a footnote Mr. Fuller adds, “Selden calls it only a sort of document, and passed in a Council in a kind of Parliament, and tells us it remains only a manuscript of or about the time of the Roman Conquest. The preface of it shall be here first noted, that the authority of it may be better understood, i.e. appraised at its real value.”

Mr. Fuller’s book is dedicated to Lord Selborne, who truly states that Mr. Selden, in his “History of Tithes,” made no mention of the Church Grith document.[220] Of course, Mr. Fuller is romancing as usual. Miserable efforts “to shake the authority” of a law. There is not one word of truth in the whole of the above quotations. “Roman Conquest!” Utter nonsense.

Mr. J. S. Brewer.

Mr. J. S. Brewer in “The Endowment and Establishment of the Church of England,” supported the tripartite division of tithes. But after his demise, Mr. L. T. Dibdin[221] has edited a new edition in which he opposes Brewer’s views. He adopts the views of Archdeacon Hale and Lord Selborne. He states that the supporters of the tripartite division can bring forward only spurious canons and laws to prove their case, and then instances (1) a spurious passage in the “Penitential” of Archbishop Theodore, for proof of which he refers to “Haddan and Stubbs, ‘Councils,’ iii. 173, note 203”; (2) An alleged law of Ethelred (1013), and adds in reference to Ethelred’s law, “But the better opinion [he actually blends together the opinions of Price, Stubbs and Selborne] appears to be that the code, of which it is a part, is a private compilation or collection of points of Canon Law gathered indifferently from foreign and home sources, published tentatively, and not recognised as possessing any legislative force. With this exception (if it be one), no English law as distinguished from Ecclesiastical ordinance or opinion, directs the division of tithe into thirds or fourths, or refers to the supposed right of the poor to a share.”[222]

As regards the quotation from the well-known writings of Haddan and Stubbs, they actually held the opposite opinion to that attributed to them by Dibdin. They state that Theodore’s “Penitential” is genuine. Here are their words, which may be contrasted with Dibdin’s: “In 1851, at Halle, Dr. F. W. Wasserschleben, Professor of Law in the University of Halle, published from a comparison of several continental manuscripts, the work of the ‘Discipulus Umbrensium,’ which is to be found in our text.” They then enumerate nine editions of works published under Theodore’s name. They reject all as spurious except the “Discipulus Umbrensium,” which they printed from the Corpus Christi College Cambridge MS. 320. The three eminent scholars, Mr. Haddan, Bishop Stubbs and Professor Wasserschleben, pronounce distinctly and emphatically in favour of the genuineness of the treatise of the “Discipulus Umbrensium” as being the genuine “Penitential” of Theodore. The Cambridge manuscript, they assert, was written not later than the eighth century, although the reference to another copy found in lib. ii. c. xii. s. 5 seems to preclude the idea that it is the original.[223]

Bishop Stubbs, in his history, remarks that in this very “Penitential,” viz., lib. ii. c. xiv. s. 10, commencing, “Decimas non est legitimum dare,” the clergy had not the sole use of the tithes.[224]

I refer the reader to pp. 20-23 in this book for a full discussion on this point.