A history of tithes

by Henry William Clarke

In the second place, as regards Mr. Price’s opinion, I must also refer the reader to p. 107.

Cnute’s Laws.

These laws are divided into three branches, (1) Ecclesiastical, (2) Secular, (3) Constitutiones de Foresta.

The text from which Mr. Thorpe prints (1) and (2), is Cott. Nero., A. 1, which was written in the middle of the eleventh century. The text of (3) is from Spelman’s “Glossarium Archæologicum.” There are twenty-six laws in (1); eighty-five in (2); thirty-four in (3).[225]

In A.D. 1018 at a Witenagemót at Oxford, Cnute confirmed the laws of Edgar. “The laws of Edgar,” says Lappenberg,[226] “had shown particular regard to the Danes dwelling in England, while in those of Ethelred, as far as we are acquainted with them, similar provisions do not appear.” This was the true reason for Edgar’s laws having been adopted as a model by Cnute. He also made use, however, of Ethelred’s laws, especially those on Ecclesiastical subjects. It is remarkable to find very many of the articles of “Grith and Mund” and of “Church Grith” embodied in Cnute’s laws, although much pains have been taken to prove that these laws were spurious and unauthentic. And yet we find that no less than thirty-six of the forty-four articles in the Church Grith law are incorporated in Cnute’s laws! It is interesting to notice how Lord Selborne disposes of the remaining eight. Five (articles 36 to 39 and 43), he says, are of that historical, rhetorical, expostulatory and didactic character as are not proper for laws which could in that or any similar form be enacted by any legislature. One was omitted apparently as superfluous (i.e. 41: “If a monk or mass-priest become altogether an apostate, let him be for ever excommunicated, unless he the more readily submit to his duty.”) Two remain which were evidently, on consideration, disallowed. One is for the tripartite division of tithes, of which there is no trace in any later collection of Anglo-Saxon laws, and one is rejected (art. 32) which gave extraordinary aid and protection to abbots and their stewards.[227] Now by rejecting article 32, are we to suppose that the abbots and their stewards were not to be protected by the king’s reeves? for the article states, “And the King commands all his reeves in every place that ye protect the abbots on all secular occasions as ye best may; as ye desire to have God’s or my friendship, that ye aid their stewards everywhere to right, that they themselves may the more uninterruptedly dwell closely in their minsters, and live according to rule.”[228]

It has escaped Lord Selborne’s notice that Cnute’s confirmation of Edgar’s law, which grants one-third of the tithes to the manorial priests, comes to the same thing as the threefold division of tithes in the Church Grith law. The principle is the same in both, namely, that the manorial priest, or the priest of the mother church, was legally entitled to no more than one-third part of the tithes, and that the modern use of taking all the tithes was contrary to all rules, laws, and customs. They were never originally given, and would never be given to the priests on any such condition, namely, to convert them all to their own personal use—in fact, to be their own private property or income, as is the case now.

Now the great and important question is, “When and in what way did the manorial priest acquire the other two parts?” How did the third, asks Lord Selborne, pass into the whole? His answer is, “There is not, as far as I know, so much even as a canon of any council, or a decree of any Pope in the nature of a legislative act, enlarging the right, or appropriating tithes generally, to parish churches in England or elsewhere.”[229]

His conclusion is, that as the laity were at liberty to give their tithes to whatever church they wished, “they might with equal right and reason endow parish churches on their own estates with the predial tithes of their lands within the parishes; and the probability was that they would do so. No more likely explanation of the general prevalence of such parochial endowments, where churches were not appropriated to monasteries, has yet been suggested.”[230]

Lord Selborne’s statement is very plausible, but will not stand investigation. The incumbents were only trustees, and as such received all the tithes. They had a common law right to a usufructuary part only, so had the poor and strangers and the church fabric. But in the various changes which took place in the thirteenth and fourteenth centuries the trustees gave what they liked of the tithes to the poor, and also placed the expenses of repairing the church fabric upon the parishioners. It is too much to assume that the poor and strangers were in a pecuniary position to appeal, as Lord Selborne and others assert, to the superior courts and claim their share of the tithes. A body representing the poor with funds at their disposal might have done so, but it is really too much to expect that the individual poor person had his or her “legal remedy,” as they assert, against the parson for his or her part of the tithes. The fact is, that the incumbents began in the thirteenth century to consider themselves not as trustees but actual owners of all the tithes of their parishes, and doled out to the poor some alms, and therefore kept up a semblance of assisting the poor. It is remarkable that lay and clerical rectors in receipt of the rectorial tithes are bound, up to the present time, to keep the chancel of the church in proper repair, and if blown down, to rebuild it. This is a remnant of the original claim on the tithes to repair the fabric of the church. The monastic rectors set the example of totally neglecting to repair the churches appropriated to them, and the parishioners, for their own comfort and convenience, collected funds among themselves to keep the churches in repair, although it is a fact that the owner of the rectorial tithes was bound by common and canon law to keep in repair the whole church fabric, including not only the chancel but also the body of the church.[231] The secular rectors were not slow in following the example of the religious rectors, and in course of time they saddled the parishioners with the expenses of repairing the body of the church. The present trustees have therefore misappropriated all the tithes to their own use. Again, it is stated by Lord Selborne and others that when the poor laws were enacted, Parliament would have made the tithe-owners contribute to the support of the poor, if it thought they were bound to set apart a portion of the tithes for this purpose. But who were then the law-makers? The majority of them were then in possession of the extensive monastic tithes, and landed properties. It is well known that the properties were handed over to them subject to the same burdens which had been attached to the same properties when they were in possession of the monastic bodies; but the new owners ignored these burdens.