CHAPTER VL MAINTENANCE OF THE CLERGY AND THEIR TITHES. Origin of tithe and its development as a taxWhile parish churches had their origin in the enthusiasm or piety or less praiseworthy motives of lords of manors, it was not enough that a piece of land and also a church should be given up or dedicated to sacred uses, unless the permanent services could be secured of a priest to carry on these uses for ever. And this meant nothing less than finding an income for the priest, whereby he may live like his neighbours. Incomes which are capable of being enjoyed as regularly as the seasons revolve, and as quarterdays approach, could in early times only be got by fits of entreaty or threatening, and by a kind of provisional and hand-to-mouth arrangement. It may be conjectured, that though many donors could give a piece of land, still they could not, or would not, give more; and so they left it to others to assist in building the church, and after the church was secured they might still be unable to find an income to the priest. And all degrees of generosity, and ability, and inability, may be assumed then to have existed at each stage, as we find them to exist in modern times on like occasions. It is impossible to assume that every donor of a church either had the means or the will to burden his lauds with a perpetual payment by way of income, and none of the accompanying facts allow any such assumption. What really happened was, that at first the priest depended for his income on the offerings of his flock, and these were obtained without method or regularity, and without his having any hold whatever on the surrounding lands. All were at first mere personal alms, just as many centuries later was the case, when a poor-law was about to be established.1 We have seen that in the reigns of Henry VIII. and Elizabeth, when it first dawned on the legislature, that every person, however poor, had the right to live, and that some provision of a permanent kind must be made for him, there was at first and for a long time nothing more defined than a system of begging, and exhorting the wealthy to contribute.2 Then when exhortation was unavailing, the churchwardens were told to go round and ask each person on the spot for a fair contribution, and enter the same in a book. And when this personal house-to-house visitation became also unavailing, though followed by a lecture from the bishop, then at last it came to be declared by the legislature to be a regular debt, tax, or rate, which all must pay, and which was fixed on a certain scale and recoverable by distress of goods. The same process had been followed in the case of tithes, which is the oldest, and indeed the only tax known to the common law, and which that law adopted, accepted, recognised, and enforced. It was a species of rude incometax, and had all the defects which such a tax could have in modern eyes. It had gross inequalities, which the legislature had from time to time to redress. It had the glaring defect of harassing and exasperating the tax-payers, instead of being framed on the principle of inducing people to give up part of their property voluntarily, but if not voluntarily, then compulsorily, yet always with the least possible irritation, and sometimes without even letting them know and feel that they were paying it. This tithe or tax for support of the clergy failed most conspicuously in its mode of collection as well as of assessment, for the clergy practically assessed and collected their own tax, and were their own bailiff's; and thus came into collision with the struggling poor in odious ways which modern skill and experience would have taught them to avoid. The tax was from the first levied without that insight into human nature, which, perhaps, only time and the experience of centuries can give and are supposed to have given in other cases., Tithe as a tax enforced by legislative power.-Though tithe was a tax which the common law may be said to 1 In Egypt the priesthood had a real property in one-third of the whole territory.-Prichard, Eg. Myth. 409. 2 See 2 Pat. Com. (Pers.) 16. have treated as rightfully due, yet in reality it was owing to legislative authority, in precisely the same way as we now derive modern taxes from that source, though now always in more express language. The common law in the early centuries consisted, as we have seen,' merely of maxims of wisdom adopted from the old codes then current and from the wisest men of the times; and the clergy and their solemn synods being recognised as the most learned and wise during many ages, their views and maxims were largely absorbed and acted on by the courts, and by those councils and royal ordinances which then represented what we now call the legislature. In this way a law of tithes, which would now be called a rate or tax, became part and parcel of the common law; and the clergy took care to give to it the specious name of a divine right, which for ages prevented the legislature from disturbing or questioning it. But when in the time of Henry VIII. and his immediate successors, the art of printing and the Reformation made men think for themselves, and the people began to consider what was the object of taxes, and how far they corresponded with the benefits received, and whether they were capable of improvement, the legislature saw and removed many anomalies, and made the tax more universal and impartial. So that in reality the tithe law or tax did for the clergy the same as the Poor law did many centuries later for the rest of the population. It was reasonable and inevitable that those members of a profession set apart to definite duties, and looked upon as everybody's friends, and the nature of whose duties prevented them supporting themselves, should be enabled to live, and they had a right to live at the expense of their contemporaries. It is true that it was reserved for the times of Elizabeth to discover a still more general law, namely, a Poor law, which was founded on this indisputable first principle, that even the poorest of the poor have also a right to live at the expense of their contemporaries, if they have no means of their own to support themselves. And though at first the whole of the law of tithes was contained in a few general words, namely, that one-tenth of the produce of the land was to be given See 1 Pat. Com. (Pers.) 137. G G to the clergy for certain definite purposes, one of which was their maintenance, this ceased to be sufficiently comprehensive, when trades and employments not immediately connected with land increased. The same law, therefore, was easily extended to the tenth of the yearly gains of all artisans and manufacturers and traders. This was laid down as the rule in Winchelsea's Constitutions in the time of Edward II. or rather under Edward the Confessor, and was more emphatically declared by a statute of Edward VI., which exempted few except day labourers from giving up the tenth of their earnings for the support of the clergy.' The rule, indeed, was incorporated into the common law at an age so early, that its beginning can scarcely be traced, namely, that all lands and occupations are primú facie liable to yield tithe, and it lay on those claiming exemption to prove how such exemption arose." But the remote origin and imposition of the tax does not affect its substance, which always has continued undistinguishable from other taxes. All the rest was natural development from the primary rule adopted by the courts, temporal and spiritual. Though no statute is so old as to show its beginning, yet such a law could only originate, as all the main rules of the common law did also, either in some declaration made by those kings, and nobles, and clergy, who represented the legislature of their day, or in the universal acquiescence of the people acknowledging and instinctively following such rules, and thereby giving them the same effect as if these had been promulgated by statute. In this way the law of tithes covered the whole land of the kingdom, with a few trifling exceptions. It was a tax which reached every kind of income, and nothing but a legislature or its equivalent could establish a law so universal and so uniformly enforced, and so difficult to resist. Origin of appropriations of tithes.-At the time that 1 2 & 3 Ed. VI. c. 13. 2 Though potatoes and turnips were introduced into England since the statute of Edward VI. the courts held these crops were tithable on the general principle of being the fruits of the land. Hops were not cultivated for their present purpose till Elizabeth's time; they were also held to be tithable. So as to turkeys. Special statutes regulated the tithe of hemp and flax at a certain sum per acre.-3 W. & M. c. 3; 11 W. & M. c. 16; 1 Geo. I. st. 2, c. 26. parochial priests became settled as formerly mentioned, there were some leading notions then current which affected their position, and at least account for many conditions which afterwards appeared somewhat anomalous. And these anomalies show, that however powerful the councils of the church were, they could not produce unanimity. One notion was, that the proprietor of lands was entitled to choose his parish church and pay tithes to that one which best suited him, or even to pay them to a neighbouring religious house, for it was treated by the courts as enough, that he settled with one or other of these representatives of the church. Another notion was, inasmuch as the proceeds of the tithes were by a universal custom divisible into four and afterwards into three parts, one of which only was for the personal support of the priest, the other two being for the repair of the church and the support of the poor, it was reasonable that the patrons, if they chose, might themselves see to the last two uses, which they could see to as well as the priest. And so they appropriated those shares to themselves, undertaking to bestow them according to custom. But they soon began to use them as their own exclusive and absolute property, or made a gift of them to some religious college or monastery, and the advowson of the benefice also, on the understanding that the donees would see to the like application of the fund. The monasteries thus became possessed of many advowsons, and sent some of their prebendaries or prevailed on some of the monks to take orders and serve the benefices themselves. Distinction of parsons into rectors and vicars as regards tithes.-The abbot or prior of the religious house, thus taking advantage of his opportunity, farmed the advowsons, and often treated the clergy who did the priestly work as vassals or slaves. Within 300 years after the Conquest, it was estimated that about one third and those the richest benefices, had become the property of these religious houses. The priest was responsible to the bishop for the cure of souls, and responsible for the profits to the abbot or prior. But as the religious houses often sent out only a monk to do the spiritual duty who was idle and careless, the bishops remonstrated, and insisted on their employing a regular priest, who came to be |