[confirmed in various councils, only a very few years later than the time when Charlemagne established the payment of tithes in France (c), when he also made that famous division of them into four parts,-one to maintain the edifice of the church, the second to support the poor, the third for the bishop, and the fourth for the parochial clergy (d). And in the laws agreed upon between King Guthrun the Dane and Alfred and his son Edward the Elder, successively kings of England, about the year 900, by the feudus Edwardi et Guthruni (which may be found at large in the Anglo-Saxon laws) (e), the payment of tithes was enjoined under a penalty for their non-payment ; which agreement was maintained and confirmed by King Athelstan, about the year 930 (ƒ).

For some time after the introduction of tithes, though every man was obliged to pay tithes in general, yet he might have given them to what priest he pleased, which were called arbitrary consecrations of tithes ; or he might have paid them into the hands of the bishop, for distribution by him among the diocesan clergy (9). But when dioceses were divided into parishes, the tithes of each parish were allotted to the particular minister of the parish (h); but arbitrary consecrations of tithes continued in general use till the time of King John (), whereby the income of the parish priests was often scandalously reduced. Pope Innocent the Third, however, (about the year 1200), in a decretal epistle sent to the Archbishop of Canterbury, and dated from the palace of Lateran (k), enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited; which epistle, says Sir

[Edward Coke, bound not the lay subjects of this realm, but, (being reasonable and just) it was allowed of, and so became lex terræ (1).] And it is now held universally, that tithes, or their equivalent, are due of common right to the parson of the parish, unless there be a special exception.

In some cases, indeed, the vicar, as well as the rector, is entitled to some part of the tithes ; but all tithes, primá facie, and by presumption of law, belong to the rector, except such as can be shown to belong to the vicar (m). The evidence of this may consist either of a deed of endowment, vesting certain tithes in the vicar, or of such long usage as is sufficient to raise the presumption that an endowment of that description, though now lost, was antiently made (n). It sometimes happens, that an endowment of tithes vests all the "small" tithes, eo nomine, in the vicar (o); and this raises the question, what are small and what great tithes, to determine which, no clear line of demarcation seems ever to have been drawn. Yet tithes mixed and personal are universally agreed to be small tithes (p), which are sometimes called also privy tithes (9); and, on the other hand, tithes of corn, hay, and wood are generally regarded as great tithes (r).

We have now to enquire, who may be exempted from the payment of tithes. [And here we must notice, first, that some persons are exempt by reason of some personal privilege; e.g., the Crown, by its prerogative, is discharged from all tithes (s). So a vicar shall pay no tithes to the rector, nor the rector to the vicar; the maxim in such cases being, that ecclesia ecclesiæ decimas non solvit (t). But these privileges are personal, both to the Crown and

(/) 2 Inst. 641.

(m) Daus v. Benn (1823), 1 B & C. 763; 2 Bligh. (N.S.) 83.

(u) Jackson v. Walker (1781), Gwill. 1231; Elsley v. Donnison (1828), 2 Bligh. (N.s.) 94, 103. (0) Bac. Abr. Tithes (K). (1) Ibid.

(7) Clee v. Hall (1838), 7 C. & F. 744.

(r) Com. Dig. Dismes. G. 1.

(x) Wright v. Wright (1591), Cro. Eliz. 511; Bac. Ab. Tithes (Q.); 1 Hardr. 315.

(t) Blinco v. Marston (1591) Cro. Eliz. 479; Wright v. Wright

[clergy, and extend not to their tenant or lessee of the lands (u). Secondly, spiritual corporations were always capable of having their lands totally discharged of tithes in various ways (a); and if a man can show his lands to have been formerly abbey lands, immemorially discharged of tithes, that will be a good exemption.

Again, any owner of lands may claim an exemption (either partial or total) from tithes, by reason of a real composition. This was an agreement made between the landowner and the incumbent (with the consent of the ordinary and the patron), that the lands should, for the future, be discharged from the payment of tithes, by reason of some land or other real recompense having been given in lieu and satisfaction thereof (y);] and by the Tithe Act, 1832, s. 2, every composition for tithes, which had at the date of that Act been made or confirmed by the decree of any court of equity in England, in a suit to which the ordinary, patron, and incumbent were parties, and which had not been thereafter set aside or departed from, was declared valid in law.

[Moreover, prior to the Tithe Commutation Acts, all persons (spiritual or lay) might claim by custom a modus, that is, a partial exemption from tithes; as where, by immemorial usage, a particular manner of tithing had been allowed, different from the payment of one-tenth of the annual increase. This customary mode of tithing was sometimes a pecuniary compensation, as twopence per acre for the tithe of land; sometimes it was a compensation in work and labour, as that the parson should have only the twelfth cock of hay and not the tenth, in consideration of the owner's making it for him; and sometimes it was, that in lieu of a large quantity of crude or imperfect tithe, the parson should have a less quantity

(1591), Cro. Eliz. 511; Sav. 3; Moore, 910, S. C.

(u) Blinco v. Marston, u'i sup.

(x) Wright v. Gerrard (1618), Hob. 309.

(y) 2 Inst. 490; 13 Rep. 40.

[when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs, or the like. Any means, in short, whereby the general law of tithing was altered, and a new method of taking tithe was introduced, was called a modus decimandi, and operated in law as a limited or partial exemption. But a modus decimandi, in order to be valid, must have had the following characteristics :-1. It must have been certain and invariable (a). 2. The thing substituted for tithe must have been beneficial to the parson himself (b); thus, a modus to repair the church, in lieu of tithes, was not good, because that was an advantage to the parish only, but to repair the chancel was a good modus, for that was an advantage to the parson. 3. It must have been something different from the thing compounded for (c); e.g., one load of hay in lieu of all tithe hay was no good modus, for no parson would bona fide make a composition to receive less than is due in the same species of tithe. 4. A man could not be discharged from payment of one species of tithe, by paying a modus for another (d); e.g., a modus of one penny for every milch cow would discharge the tithe of milch kine, but not of barren cattle, for tithe is, of common right, due for both, and therefore a modus for one would not be a discharge for the other. 5. The recompense must have been in its nature as durable as the tithes discharged by it (e). And therefore a modus that every inhabitant of a house should pay fourpence a year in lieu of the owner's tithes, was no good modus; for possibly the house may not be inhabited, and then the recompense would be lost. 6. The modus must not have been too large, for in that case it was a rank modus, and the alleged custom establishing it would have been bad.]

Lastly, an exemption from tithes (either total or partial) might have been claimed under the Tithe Act, 1832, on the ground of long usage, that is, such usage as can be shown to have lasted for a certain period of time, even though short of the time of legal memory. For, by that Act, tithe claimed by a lay person (not being a corporation sole), or by a corporation aggregate, may be defeated in general by a usage for thirty years; and when claimed by an ecclesiastical corporation sole, may be defeated in general by a usage for sixty-three years (ƒ).

But the law on the subject of modus, which applies only to tithes payable in kind, has now, though still nominally in force, become practically obsolete. For since the year 1836, a system has been largely carried out for the commutation of tithes into tithe rentcharge under the provisions of the Tithe Commutation Act, 1836, and the various statutes since passed for the amendment of that Act (g). This commutation may be effected in two ways; either, first, by a voluntary parochial agreement entered into by a certain proportion of the parties interested, and confirmed by the board of commissioners to whom this subject has been entrusted (h), or, secondly, by a compulsory award. The basis of the commutation is, in general, the clear average value of the tithes of the parish

(f) Salkeld v. Johnston (1849), 1 Ha. 196; S. C., 1 Mac. & G. 242; Dean of Ely v. Cash (1846), 15 M. & W. 617; Dean of Ely v. Bliss (1852), 2 De G. M. & G. 459.

(g) These are 7 Will. 4 & 1 Vict. (1837) c. 69; 1 & 2 Vict. (1838) c. 64; 2 & 3 Vict. (1839) c. 62; 3 & 4 Vict. (1840) c. 15; 5 & 6 Vict. (1842) c. 54; 9 & 10 Vict. (1846) c. 73; 10 & 11 Vict. (1847) c. 104; 23 & 24 Vict. (1860) c. 93; 41 & 42 Vict. (1878) c. 42;

45 & 46 Vict. (1882) c. 37; 48 & 49 Vict. (1885) c. 32 ; 49 & 50 Vict. (1886) c. 54; 54 & 55 Vict. (1891) c. 8; 60 & 61 Vict. (1897) c. 23.

(h) Tithe Act, 1836, s. 2. This board has been since consoli. dated with that of the Inclosure and Copyhold Commissioners. These commissioners were afterwards called the Land Commissioners (45 & 46 Vict. (1882) c. 38, s. 30); and are now called the Board of Agriculture (52 & 53 Vict. (1889) c. 30).