called a perpetual vicar or curate, with a proper salary, such vicar to be appointed by the bishop. In this way the vicar came to be the parson, and stood towards the bishop in the same relative position as the rector, who was appointed by the patron, stood towards his bishop, the latter being the ecclesiastical superior of both. The appropriations to a religious house were said to convey the interest both temporal and spiritual, while there were also some appropriations to laymen where the temporal interests only were conveyed, while the cure of souls resided in an endowed perpetual vicar. In time these appropriations came to be so glaring an abuse that it was expressly enacted by statute, that the vicar of a church appropriated should be sufficiently endowed.2 One of the incidents of an appropriation of a benefice was, that a pension was reserved to the bishop, payable by the religious body to whom the appropriation was made, this pension being an indemnity for the loss of profits during the vacation of the benefice; for as a corporation never died, this recurring perquisite was necessarily cut off.3 The parson or rector in modern times may thus be either lay or spiritual. The rector who made the endowment of the vicar was deemed in the eye of the law the patron, though the patronage may also be appendant to the manor from which the endowment originally was derived. The endowments of a vicarage are now ascertained mostly by prescription, the origin being seldom clearly traced.5 And courts of law have the jurisdiction to decide upon all the compositions set up in lieu of them; though if both rector and vicar are spiritual persons, the Ecclesiastical Court could entertain their disputes. One distinction is observable, namely, that in cases where the rector is a layman, though the freehold of the church is in him, yet the right of possession to the church belongs to the vicar and his churchwardens; and hence they are entitled to break open 1 D. Portland v Bingham, 1 Consist. 162. 2 Rot. Parl. 15 Rich II. 138; Stat. 15 Rich. II. c. 6; 4 Hen. IV. c. 12. In 1875 it was said there were 3,687 vicarages, 5,098 rectories, and 2,970 benefices neither rectorial nor vicarial. a door leading from the churchyard into the chancel in order to complete this possession.1 One peculiarity of vicarages was, as already stated, that the ordinary had power to compel spiritual impropriators to augment them.2 But after the dissolution of monasteries and regrants to laymen, this obligation was extinguished, and the impropriation is on the footing of ordinary inheritances. The courts said it was now only the same obligation in this respect against the parson as against a layman.3 Common law relating to tithe.-A vast variety of learning has been brought to bear on the question at what date the tax called tithe was first imposed on proprietors of lands in England, and next on nearly all trades and occupations which had little or nothing to do with land. 1 Griffin v Dighton, 5 B. & S. 93. 2 15 Rich. II. c. 6; 4 Hen. IV. c. 12. 3 2 Ventr. 35. But powers more or less voluntary and enabling have been given by statute for these augmentations.-29 Ch. II. c. 8; 12 Anne, c. 4; 1 & 2 Will. IV. c. 45; 6 & 7 Vic. c. 37; 28 & 29 Vic. c. 42; 29 & 30 Vic. c. 111, § 22. And means have been provided for converting vicarages into rectories through the medium of certain ecclesiastical commissioners.-3 Geo. IV. c. 72. In those cases where the incumbent of a modern ecclesiastical district is entitled to the fees for marriages and baptisms, and to discharge the duties, he is entitled to the designation of vicar.-31 & 32 Vic. c. 117, § 2. 4 The ancient notion was, that tithes were of divine right, and were merely unnecessary during the apostolic age, because the doctrine of community of goods then prevailed. When the church became more powerful in the fourth century, and governors were eager to show their zeal, then tithes, or something like it, were paid to the clergy.-Selden's Hist. Tithes, c. 5. In 895 a council of Tribus near Mayence boldly laid it down as the voice of God, that the tenth of all things was for the maintenance of the church and its ministers. -6 Act. Concil. P. I. p. 443; 2 Ranken's Hist. Fr. 182. The payment of tithe had been first required by a canon of a Provincial Council at Maçon, in France, in 586.-Selden, c. 5, § 1. And Charlemagne was said to be the first who enforced it in 780.Selden, c. 5, § 2; 1 Hallam, Mid. Ag. c. 7. The practice prevailed in England in the eighth century, and the amount was settled as one-tenth of the income; one-third being devoted to the poor, onethird to the ornament of the church, and the remaining third to the priest for his own use.-Ecgbright's Exc. A.D. 740; Selden, c. 8, § 1. But it was treated as a voluntary payment till King Ethelstan made it compulsory.-Ethelst. L. Eccl. A.D. 925; Thorpe, 83. It has been said that the law of Offa, a friend of Charlemagne in 794, first gave to the clergy in England a civil right in all the land of the But this research is of little importance, for the moment the general rule was accepted, acted on, and enforced by the common law, and at a time when the legislature was still in a rudimentary condition, it was precisely the same as if the legislature had invented and imposed it for the first time. Many maxims and elementary rules of common law cannot be traced to any existing statute, simply because the common law was formed by taking up some generally accepted truth current at the time and enforcing it long before our series of statutes begin. Therefore, from whatever quarter-whether the voice of a king or of a council of the Church-the common law appropriated the general rule or maxim, that all real property, and all trades and occupations, were bound to yield a tenth of their produce or earnings for the support of the clergy, this was as good as any statute, and had precisely the same binding authority. And if the rule of the common law was first in the field, all subsequent statutes must be so interpreted as not to supersede or displace it without express words or necessary implication. And as nothing but legislative authority, by whatever name known whether called common law or statute law-could lay down and enforce a universal rule of that kind, all speculations as to the precise moment it first assumed the certainty of a fixed law are somewhat superfluous. It is enough, that all the wise men of the time thought this was, or ought to be, law, kingdom of Mercia as a species of property, and that Ethelwulph, sixty years later, extended the same law to the rest of England. And though it has been doubted whether this referred to a gift of the land or of the produce, it is of little importance, if the clergy and leading men interpreted it as a creation of a legal right.— Prideaux, Tithes, 167; 2 Hallam, Mid. Ag. c. 7; 1 Collier, 156; 1 Turner, Ang.-Sax. 489. At least from the ninth to the twelfth century payment was enforced by the courts like any other legal right.-3 Selden, Tithes, 1108. Thus Edgar, in 967, and Ethelred, in 1008, made a law, that if the tenth part was not paid, the owner was to forfeit the eight parts and keep only one ninth to himself.-1 Spelman, 420 (Brompton Chronicle.) The laws of William the Conqueror, re-enacting those of Edward the Confessor, go into some detail as to the tenth sheaf, and calf, and lamb, the tenth of butter and of bees, and the tenth part of fisheries, and mills, and orchards, "and of trade, and of all things which the Lord shall give," and the owner was declared to be bound to pay this tithe.-Hoveden's Annals, 1 Spelm. 620. . and then and there they, having the power, made it the law. And it is not wonderful that they should have called it a divine law, for men and courts equally believed at the same epoch that all other laws also had a divine origin,1 though probably, owing to the produce of the law of tithes being used for the support of the clergy, they may have thought this as the most divine of all divine laws. And yet when the Quaker Bill was debated in Parliament in 1736, all the statesmen of the time agreed, that there was nothing more divine in the law of tithes than any other law, and declined to support such law on the theory of any such divine right.2 Presumptions of common law in favour of tithe.Whatever may have been the uncertainty as to the antecedent law, it was deemed part of the common law in 1200 that the tithes belonged as of right to the clergy of the church of the parish in which the lands lay or the persons laboured, and the Decretal Epistle of Innocent III. to the Archbishop of Canterbury merely recognised that law.3 And yet this rule was subject to the exception, probably arising from manors and parishes not coinciding, that a parson might prescribe for tithes in another parish, then called a portion of tithes. There could be no presumption for the lord of the manor or the proprietor of land and his assigns to take the tithe from the terre-tenants; for the effect of this would be to make the right of taking tithes assignable, and would make a layman capable of holding tithes in gross. Coke said, that a man might by presumption prove a valid variation as to the mode of paying tithe, but could not prescribe for an absolute discharge. And the reason given was, that "the law will not put it to the trial of laymen, who will rather strain their conscience for their private benefit than yield to the Church the duties which belong to it. And the law hath great policy therein, for the decay of the revenues of men of Holy Church in the end will be the overthrow of the service of God and His religion." 6 5 1 See 1 Pat. Com. (Pers.) 110. 3 2 Inst. 641. 4 Y & C. 283. 28 Parl. Hist. 1186. 4 Gibs. 663. Knight Waterford, 6 Bp. Winchester's Case, 2 Coke, 44. One maxim as to tithe was, that the glebe lands of the parson were exempt, because the church Different classes of tithes.-These rights called tithes were at an early period divided into prædial, mixt, and personal. Prædial were said to arise directly out of the soil, as grain, fruits, and herbs. Mixt tithes arose less directly, as cattle and fowl, milk and eggs. Personal tithes again arose from personal labour, and had nothing whatever to do with land. There was also another division according to value. The great tithes were the prædial tithes of corn, hay, and wood, while the small tithes inIcluded all the other tithes. But these distinctions were subject to variation by custom, and arose out of circumstances which were extremely minute, and scarcely now intelligible.1 Difficulties in applying the law of tithe.-The law of tithe, being like all ancient laws, very vague, it became the duty of the courts of law, and the ecclesiastical courts, to interpret and apply it to particular cases. This was done by the courts of law by way of prohibition, whenever it was clearly seen, that the spiritual courts were exceeding, or about to exceed, their jurisdiction in enforcing payment of what was illegal. The parson sometimes claimed more than what the parishioner thought right, and there were constant disputes as to the time and place and manner in which the tithe became payable, as will be seen from some leading difficulties that arose. What are tithable things and profits of land.—One characteristic of tithable things was, that they must yield a natural increase once a year or oftener, or at least an increase like saffron, once in three years. Hence slate and other quarries and houses were not tithable, because they yielded no natural fruit; and even to this rule there was an exception by custom, as was evident from the shan no. pay tithes to the church; but this was true only so long as the parson held possession of the glebe and the tithes.-Moyle e Ewer, 2 Bulst. 183. 1 It was finally settled in 1742, that the question whether tithes were great or small depended rather on their nature and quality than their quantity. And hence it was solemnly decided by Lord Hardwicke, that potatoes were small tithes, whatever be the extent of ground occupied by them.-Smith v Wyatt, 2 Atk. 364. Another decision was, that grass severed with an instrument was great tithe, but if severed by the mouth of an animal was small tithe.-Lewis e Bridgman, 2 Cl. & F. 747, 2 Gibs. 669. |