TITLE X. TIT. X. Of Teinds or Tithes. HE doctrine of tithes falls naturally to be explained after that Teinds. THE of servitudes, tithes being truly a servitude or burden affecting lands. But as nothing has been hitherto said of church-lands, in so far as they differ from temporal, the general doctrine of church-benefices may be taken under consideration in this title; and to throw the greater light on the subject, a short account may be premised of the funds by which the clergy were supported in the first ages of the Christian church. 2. Christians are commonly thought to have had originally all things in common; but it may be justly doubted, whether the text upon which that opinion is grounded, Acts iv. 34, 35., is to be taken in the full extent of the words; for if it had been an universal Christian duty, it is not likely that the Evangelist would have made special mention of the single instance of Barnabas disposing of his estate for the common benefit, vers. 36, 37. Neither is that notion favoured by the Apostle Peter's severe reprehension of Ananias, Acts v. 3., who it appears was at full liberty to hold his estate as his own property. His crime consisted in lying to the Holy Ghost, and imposing on his brethren; as if, after the sale, he had given up the whole price to be divided by the Apostles, when in fact he retained a part for private use. Thus much may be certainly affirmed, that if they had any proper communion of goods, it was of exceeding short duration; for we find weekly oblations, made as early as the apostolical age, for the saints, by every man according to his abilities, Acts xi. 29.; 1 Cor. xvi. 1, 2, 3, which presupposed a right of property. These donations, while Christians were persecuted by the state, consisted chiefly of money, which could be more easily concealed than land: for by the Roman law, no bequest could be made to any community or corporate body without the Emperor's licence, L. 8. C. De hær. inst.; and several of the persecutions raised against the Christians were owing to the view of profit that the Emperors proposed to receive by the confiscation of the lands that had been bequeathed to the church. But immediately after Christianity became the established religion of the Empire, the church were allowed to hold whatever should be left to them by testament, L. 1. C. De sacros. eccl.; and they were soon enriched by the large donatives of land estates granted to them, proceeding either from the devotion or from the vanity of the donors. All those lands were put under the management of the bishop of the diocese; and the yearly rents distributed by the deacons, according to his direction, for the support of the clergy and the poor. To prevent the abuses which even then were beginning to be committed in the application of the church-revenues, it was ordained by Pope Simplicius, anno 475, that they should be divided into four parts; one to the bishop himself, one to the inferior clergy, one for preserving the fabric of the several churches within the diocese, and the remaining fourth to the poor, Caus. 12. Q. 2. C. 28.; the proportions of each division to be fixed by the bishop, Origin of the Church's right to fruits of land. Book H. When their right to a tenth was ascertained. Temporality and spirituality of benefices. bishop, ibid. C. 23. But the corruption of the clergy still growing from evil to worse, most of the bishops, sensible how necessary an instrument money was to church-preferments, appropriated the whole to themselves; and so left the inferior clergy destitute of all support or provision, but what depended on the voluntary contributions of those who were under their charge. 3. Great murmurings having been occasioned by this additional burden on the laity, churchmen bethought themselves seriously of an expedient, which had been formerly recommended by St Aus+ tin, a father of the fourth century, of laying in a claim to the tenth of the fruits of every real estate, after the example of the Levites in the Jewish law. We find accordingly in some of the churchcouncils held in France, in the sixth century, the payment of tithes pressed by the warmest exhortations; and some donations of tithes were, according to Mezeray, freely made by persons of great estates in that century, and about the beginning of the seventh, chiefly to monasteries, and but a few to the secular clergy, who, if the church's claim had been well grounded, would have had the most equitable right to them. But all this was voluntary: For the right of tithes is not once mentioned among the many constitutions enacted by Justinian and the Christian Emperors, his predecessors, for fixing and preserving the rights and privileges of the church; nor is such right declared by any law of the Visigoths, Lombards, or other nations, which emerged out of the ruins of the Western Empire, till Charles the Great established it in general terms, towards the end of the eighth or beginning of the ninth century, Leg. Lang. L. 3. T. 3. C. 1. & 2. And, in fact, tithes were not before that period exacted, either in France, Africa, or the Eastern Empire; see Padr. Paolo's treatise of Benefices, and L'Esprit des Loix, L. 31. C. 12. At what time this right was acknowledged in Scotland, is uncertain; for the affirmation of Hector Boetius, Lib: 9., that K. Convallus enjoined their payment by an act about the year 570, long before it was received by any nation in Europe, is neither probable in itself nor supported by authority. David I. made two grants of lands with the tithes to particular churches; copies of which are preserved in Anderson's Diplom. Scotia; and there is an express statute of David II. C. 42. § 3., inflicting the pains of excommunication upon those who should refuse to pay their tithes. 4. Thus, after the right of tithes came to be universally allowed to the church by Christian princes, the church's patrimony consisted of two branches; first, Of the property itself of such lands as had been gifted or devised to them from time to time; which was called the temporality of benefices; but lands given to, or acquired by a bishop tanquam quilibet, are no part of the church's patrimony; for they descend to the bishop's heirs, and not to his successors in office. 2dly, The tithes of all lands; which get the name of the spirituality of benefices, because they were accounted, in a more proper sense, their patrimony; though it is certain that tithes, in their infancy, were given, not to the clergy alone, but to lay monks, who took on themselves the name of pauperes, and to other indigent persons. The word benefice, which was originally used to signify a grant of temporal lands to a vassal for military service, was afterwards transferred by canonists to church livings; because these were also gratuitous rights in favour of churchmen, in consideration of their spiritual warfare. 5. 5. The several divisions of benefices, stated by writers, into secular and regular, cathedral and parochial, &c. have been sufficiently explained, supr. B. 1. T. 5. It is common to all benefices, that they are not the property of the beneficiaries, whose right is only temporary, and who ought therefore to use it without destruction or waste, that their livings may be preserved entire to their successors. Hence it was by the Canon law declared unlawful for bishops to do any acts relating to their churches, without the consent of the chapter, Decretal. L. 3. T. 10. C. 4.; or to exchange or dispose of any part of their benefices, even with the concurrence of the chapter, unless the deed appeared evidently profitable to the church, Caus. 12. Q. 2. C. 52. Nor could the heads of religious houses, as monasteries or priories, alienate without consent of the conventual brethren. As to the law of Scotland, it appears by the preamble of 1606, C. 3., that the consent of the chapter was, from the earliest times, required in all alienations or leases granted by the bishop of any part of his benefice; and that, on the same ground of law, the consent of the bishop, and of the majority of the chapter, was essential to all deeds granted by the dean, or any single member of the chapter, as to his particular benefice, Spottisw. voce KIRKMEN, p. 186, College of Aberdeen, (DICT. p. 7948.). But this incapacity did not strike against their power of receiving the heirs of vassals; for though the entry of heirs be a renovatio, it is not an alienatio feudi. Craig acquaints us, Lib. 1. Dieg. 13. § 14., that before the Reformation, it behoved the chapter to give their consent to the bishop's deed in a meeting assembled for that very purpose; or, according to the phrase of those times, in a meeting chapterly convened; but by the said act 1606, the subscription of the majority, however procured, and though adhibited at different times, and in different places, was declared sufficient. Yet it was still necessary that the majority should sign their consent during the bishop's life, and while he continued in that church, without having revoked the deed; for either the death, translation, or revocation of the bishop, was a mid impediment or bar hindering the chapter's consent from being connected with the deed consented to. Hence a posterior deed granted by the bishop, to which the chapter's consent was presently obtained, excluded a prior, though the prior should have got the full number of subscriptions to it after the posterior deed was consented to by the chapter, Cr. ibid. 6. When a vacancy happened in the episcopal see, by the death, deprivation, or translation of the bishop, the chapter supplied the place of the bishop, or represented him, both in spiritual matters, except in conferring benefices, the collation of which belonged to the bishop, Decretal. L. 3. T. 9. C. 2.; and even in temporal, 6to, Decretal, L. 1. T. 8. C. 3. But Craig's opinion, Lib. 1. Dieg. 13. § 16. sub fin., is probable, and appears agreeable to our practice, that this right in the chapter extended not to deeds of alienation, but was confined to ordinary acts of administration, as letting leases for a moderate endurance, removing tenants, &c. Spottiswood, voce KIRKMEN, p. 187, Erskine, (DICт. p. 7962.). 7. By our ancient usage, parsons, and other of the inferior clergy whose benefices did not depend on the bishop, might feu out the lands belonging to them, Cr. Lib. 1. Dieg. 13. § 17.; notwithstanding the text in the Cons. Feud. L. 1. T. 1. pr. But no feudal grant of church-lands, whether by them, or by the dignitaries of the church, was valid, either by the Canon law or our usage; unless, first, the condition VOL. I. 6 D Book II. Their powers in this respect, how altered since the Reformation. condition of the benefice was thereby made better, i. e. unless the yearly feu-duty exceeded the rent of the lands feued, Cr. L. 1. Dieg. 13. § 18.; 2dly, unless the patron gave his consent, Caus. 16. Q. 7. C. 34.; for every one might reclaim a donation made by himself or his ancestor to the church, if the beneficiary, whose right was only temporary, should, by alienating it without his concurrence, attempt to invert it to a purpose different from what the donor had expressed in his grant, St. 2. Rob. I. C. 1. § 4, 5. And hence the King's confirmation was necessary in the alienation of church-lands belonging to bishops or abbots, Reg. Mag. L. 2. C. 23. § 1, because the law presumed the King to be the donor, and of course the patron of those benefices, ibid. § 2. After the Papal power was grown to its greatest height, the Pope, in 1468, wrested this right from the patrons, whether the King or subjects, and declared all alienations of church-lands or goods void which were granted inconsulto Romano pontifice, Extr. Com. L. 3. T. 4.; see Craig, Lib. 1. Dieg. 15. § 29. When churchmen, on the first appearance of a reformation in this kingdom, began to suspect that they might soon be deprived of their church revenues, they frequently feued their lands at a yearly duty considerably below their true value, for which they received large sums from the feuars in name of fine or entry; and the Pope, from the same apprehensions, readily strengthened those grants by his confirmation. To remove the hurtful consequences of this kind of dilapidation, and prevent it for the future, it was enacted by 1564, C. 88. and 1584, C. 7., That all feus of church-lands should be confirmed by the Sovereign; and that all such feus already granted, which had not been confirmed by the King or Pope, or which should not be confirmed by the King within a determinate day, should be null. And thus the Sovereign's power in that matter, as coming in place of the Pope, was not only revived, but enlarged above what it had been formerly; for by the two last-quoted acts, his right of confirming reached over all church-lands, whether he was patron of the churches or not; whereas his original right was confined to the special lands of which the Crown was either the real or the presumed patron. As several feus had been granted by bishops in the reign of James V., to which that King had consented by his superscription and privy seal, but which were not formally confirmed either by the King or Pope, these are declared by 1593, C. 186. to have full force, and to be preferable to posterior grants of the same lands confirmed by the King in consequence of the act 1584. 8. Churchmen were, by acts passed early after the reformation, restrained, not only from granting feus of church-lands, but from charging them with burdens to the prejudice of the benefice. Thus, by 1585, C. 11., it behoved all who were to be provided to bishoprics, abbacies, or other benefices in the King's gift, to give security that they should leave them in as good condition as they found them at their entry; and all leases, pensions, or other deeds hurtful to the benefices, were declared null. More particularly, bishops, by 1606, C. 3., were prohibited to grant pensions out of their benefices, to endure longer than their own right; by 1594, C. 203, no beneficiary under a prelate was allowed to grant leases of a longer duration than three years, without consent of the patron; and by 1617, C. 4., no prelate was to let any part of his patrimony for a longer term than nineteen years, nor any churchman, under a prelate, for a longer term than their own lives, and five years after, under the pains pre pains of deprivation and infamy. As several churchmen under lates took occasion, from this last act, to grant leases for the term thereby indulged to them, without consent of the patron, it was declared, by 1621, C. 15., that the act 1617 was not intended to derogate from the former law, which required the consent of the chapter or patron to the leases of church-lands in which they had a legal interest, but merely to restrain the unbounded liberty that churchmen assumed in granting leases to last for many lives, and many nineteen years; and that therefore all leases that had been granted by any inferior clergyman, to continue longer than three years, should be void where the patron had not interposed his consent. Leases granted by churchmen, though they should have exceeded the legal terms of endurance, were sustained for the term allowed by law, and set aside as to the remainder, Stair, July 18. 1668, Johnston, (DICT. p. 6848.). How churchmen might acquire a right to church-lands by possession, see infr. B. 3. T. 7. § 33, 34. 9. The teind, or tithe, which is called the spirituality of benefices, may be defined, that proportion of our rents or goods which is due to the Christian clergy, for performing divine service, or exercising the other functions proper to their several offices. to their several offices. We are taught by natural as well as revealed religion, that a part of our substance is due for the support and maintenance of the worship of God, and that those who serve at the altar ought to live by the altar. But whether the special proportion of a tenth of our yearly revenues is due to the Christian clergy by a divine and unalterable right, is a point which has been agitated with great heat. It is affirmed by all the canonists, by most of the Popish clergy, and by no inconsiderable number of the Protestant, among whom our first reformers from Popery may be reckoned; and it is denied by most of the Protestant princes and states of Europe. The topics urged in proof of the affirmative are chiefly drawn from that article of the law of Moses, by which God himself ordained the tenth of the fruits of the ground to be given to the Priests and Levites, Numb. xviii. 21. et seqq. But, first, This argument is improper in a question, What the divine law is in the Christian church? for the Mosaical law, in so far as related to the policy of the Jewish church, was not given forth as a rule to other nations; and, being but temporary in respect even of the Jews, lost its force at the coming of our Saviour, when the order itself of the Priests and Levites was abolished. 2dly, The Popish clergy, who offer this plea, do themselves disclaim the obligatory force of the Jewish law, where it interferes with their views of power or interest; for they have, in spite of an ordinance of Moses, which prohibits the Levites to possess lands in their own right, Numb. xviii. 23, 24., drawn to the church, besides the tithes, a considerable property in land, in all the countries that acknowledge the see of Rome. There can be no doubt of the sentiments of the Scottish legislature on this point since the Reformation; for our Sovereigns, in place of transferring the tithes from the Popish to the Protestant clergy, have assumed the power of bestowing grants of the greatest part of them to laymen, with the burden of reasonable stipends to the clergy; which grants have been, either expressly, or by consequence, ratified in parliament. 10. The canon law divides tithes into predial and personal, Decretal. L. 3. T. 30. C. 20. Predial tithes arise from the product of lands, whether merely natural, or in part industrial; the whole of which is tithable, without any deduction or abatement given to the possessor, |