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B.A., LL.B. ST John's college and the midhle temple. 

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In the following pages an attempt has been made to deal 
with the History of the Law of Tithes, as far as concerns the 
arrangement, upon a plan which if somewhat novel has still the 
slight merit of being both scientific and peculiarly adapted to 
carry out one of the objects for which the work was written. 
That is, to present to the reader a short and clear history of the 
rise and growth of the Tithing System in this country, free from 
technical and other difficulties. The plan adopted is first to 
treat of the history of the Substantive, and then of that of the 
Adjective Law of Tithe. The first six chapters are devoted to 
the former, and thus in a succinct form what may be called the 
more popular and to the general reader the more interesting 
part of the subject is comprised. The seventh chapter has an 
intermediate position, and deals Avith the history of Titheablo 
matters; the eighth, ninth and tenth are occupied with the 
Adjective Law or Procedure, the tenth being devoted entirely 
to the consideration of Discharges and Exemptions. The law 
as regards the City and Liberties of London is shortly dealt 
with, apart from the other portions of the work, in tlie last 
chapter. The working-out of such a plan as the above ne- 
cessitates a certain amount of overla})ping and repetition, l)nt 
this, it is hoped, does not constitute a formidable disadvantage. 

viii PREFACE. 

The Author has avoided any political treatment of his 
subject. He has touched very lightly on the alleged tripartite 
division of tithe upon which the claim of the poor to a share is 
based, as the existence of such a division is not revealed in the 
impartial history of the law, and the statute of Richard II., 
which compelled the monasteries to give as alms a part of the 
revenues of an appropriated benefice after suitable provision for 
the vicar had been made, imposed a new charge on the monas- 
teries, and did not refer to parochial tithes. 

The references to Selden will all be found in his great work 
on the Historie of Tithes (a.d. 1618), to which the Author is 
greatly indebted. He has also extensively used Mr Haddan 
and Bishop Stubbs' Collection of Councils and Ecclesiastical 
Documents, which for brevity are referred to as " H. and S." 

St Asaph, N. Wales, 
30 November, 1887. 



Tithes in Ancient History 

Tithes after the introduction of Christianity 

Clergy supported by Voluntary Contributions till a.d. 400 

Claim to Tithes as of moral ripht made a.d. 400 

Payment of them enforced by Councils of Tours and Magon 

Enforced by law on the Continent, a.d. 779 

The British Church 

Diocesan Episcopacy . . . • 

After Saxon Invasion . . . • 

Church and State .... 

Final subjection to Canterbury, a.d. 1*200 





Reduction of Enj^'land to Christianity 
The Saxon Church 

Its organisation . 

Growth of Parishes 

Moral obligation to pay Tithe 
Saxon Tithe Laws 

(i) Egbert's Exccrptiones 

(ii) Councils of Pincahala and Cclcliytli 

(iii) Grants of Offa and Ethelwulph . 

(iv) Laws of Alfred, Athelstan, and Edward 

(v) Edgar's Laws 

(vi) Laws of Edward the Confessor . 
Saxon Parishes 

Parochial Tithes 
Saxon Abbeys ... ■ • 

Secular and Regular Clergy .... 










12, ]:\ 



1 I, 1.^ 




Normau organisation 

Tithes under the Normans : . . . . 

Jus Parochiale and Jus Communi 

Rector's right fully established at common law 

Councils of the Early Angevins . 







Doctrine of the old law books and practice 

Parnynge's and Ludlow's views .... 
Innocent's letter and Coke's and Blackstone's views 
Councils of Lateran, Selden's and Selborue's views 
Infeudation of Tithes . 
Appropriation of Tithes 
Special customs of Tithes 
Licenses in Mortmain not required 
Rectories and Vicarages 
Divisions of Tithes 




Precedents and the Alien Priories 28 

The Dissolution of the Monasteries 29 

Dissolving Statutes 29-31 

Impropriations 29, 31 

Validity of Appropriations and Cases 30 

Validity of Imi^ropriations and Cases 30 

Parcellers 31 

Perpetual Curacies 31 





estates under Elizabetli 

Conveyance of Impropriate Tithes 

Tithes separate and not appurtenant to Lands 

Descent of Imi^ropriate Tithes 

Devise of Impropriate Titlies 


Exchange of Tithes for Bishop's < 
Powers of Leasing;; 
The Enabling Statute 
The Restraining Statutes . 
Charges on Benefices . 
Penalties on Non-residence 
Leasing powers up to Victoria 


32, 33 




The Tithe Commutation Act and Sir R. Peel' 

s and Lord John Russel^^ 


Tithe Commissioners .... 


Voluntary agreements for Commutation 
Compulsory Award .... 

Com Averages 

Substituted Rent-charge 
Deduction of it from Rent . 




Rates and Taxes, including, 


Poor Rate ..... 


Land Tax ..... 


Highway Rates . . . . . 
Church Rates .... 


Land given in lieu of Tithes 



Later Acts of Parliament . 

44, \-> 





Definitions of Tithe . 
Prsedial Titheable Subjects 

List of in "William I.'s Laws 

Tithes enforced by Councils 

Winchelsey's Council . 

And Enforcement of Personal Tithes 

Stratford's Synod enforcing Tithes of Silva Caedua 

Conflict with the Commons 

Case of Lozon v. Pryse 

Commutation Acts and Tithe of Wood 

Agistment ...... 

Hops, Market-gardens and Orchards . 

Extraordinary Tithe .... 

Market-gardens Act of 1873 

Extraordinary Tithe Redemption Act. 
Personal Titheable Matters, viz. Mills and Fish 
Things not Titheable except by custom, viz., 

Stones, Slate, &c 

Lammas Lands .... 

Commons and Extra-parochial places 

Barren and Waste Lands brought into cultivation 

Iiiclosures ........ 




51, 52 




Tithe Laws of Charlemagne 

The Saxon Period ..... 

The Shiremoot ..... 
The Norman Period 

Separation of the Ecclesiastical and Temporal Courts 

But suits of Tithes still determined in both 

Procedure during the Norman Period 

Gradual ousting of jurisdiction by the Ecclesiastical Courts 

Procedure in them ...... 

In Secular Courts Proliibitions, in the nature of an 
Indicavit and Inquest ..... 

Statutes of Westminster II. and Circumspecte Agatis 




Writ of Indicavit granted wIkmi not less tliiui a fourth of the vahie of 

the Tithe is in dispute, wliich makes way for the Writ of Right of 

Advowson of Tithes 

Form of an Indicavit . 

Writ of Scire Facias . 

Finding by Inquest 

When right appears by Patent 

When right appears by Fines and Recoveries 

Process of Command or Mandamixs 





Prohibitions when granted 

Suggestion ......... 

Consultation ........ 

Acts of Henry VIII. and Edward VI. and Rulings . 

Recovery of Small Tithes before J.P's. under 7 and 8 Will 

Limitations of the Canon Law by 2 and 3 Ed. VI. c. 13 

Quakers ......... 

Statutes of Anne and the Georges .... 

Courts of Common Law and Equity .... 

Statute of Limitations ; how applied to Tithes . 
The Commutation Act ....... 

Recovery by Distraint ...... 

Writs of Assessment and Habere Facias Possessionem 

Quakers under the Act ...... 

Railways ......... 

Tenants quitting without paying Tithes . . . 


c. 6 





I. (A) Real Composition 

Ancient Case ...... 

Effect of the Disabling Statute . 
Recjuisites for a Real Composition 
Establishment of tlu'iii by Courts of Ecjuity 




(B) Modus Decimandi 90 

Ancient Jurisdiction in matters of Modus 91 

Eequisites of a Modus 92 

Leaping Modus 93 

Eank Modus 93 

Discharge of a Modus 94 

Modus Act of William IV 95 

II. De Non Decimando 96 

III. Grant or Privilege 97 

The privileged orders 97 

Papal Bulls of Exemption from Tithes 97, 98 

Prajmuuire 98 

IV. Unity of Possession .......... 98 

Eequisites 98 

Exemptions under Henry VIII.'s Acts 98 

Of the Privileged Orders uuder them 99 

Quantity of Estate necessary 99, 100 

Privileged Orders discharged by Composition or Prescription . 101 

The Commutation Act .......... 102 



Voluntary Offerings 103 

Ordinance of Bishop Niger 103 

Acts of Henry VIII 104 

Acts of Charles II. after the Great Fire 106 

Acts of Parliament for certain Parishes 100 

General Conclusion 107 


" In examining an expression," says Sir Henry Maine when 
speaking of the term Equity', "which has so remote an origin 
and so long a history as this it is always safest to penetrate if 
possible to the simple metaphor or fignre which at first shadowed 
forth the conception." We may well apply this rule to an 
elementary historical consideration of the term " tithe." First, 
then, etymologically tithe in its proper sense is "tenth," the 
words in fact being doublets, the original form of which appears 
in Anglo-Saxon as teoSa, whilst its modern description is " the 
tenth part of the produce as offered to the clergy." The original 
metaphor appears to be the offering of a certain part to those 
who administer the benefits of religion in return for their 
administration. Thus in the early Biblical narrative we read 
how Abram gave a tenth of his booty after the kings' war as an 
offering to the High Priest. Jacob vowed tithes at Bethel, and 
under the Mosaic Law most onerous and well-nigh intolerable 
payments were exacted to support the priestly class. 

Although the Romans were, comparatively early in their 
history, freed from the iron bonds of sacerdotalism, the potency 
of gods was often specially recognised after a successful campaign 
by the offering to their service of a tenth of the booty. A 
profitable sale was often made the occasion for a vow of a tenth 
of the profits, but the gods were precluded from being instituted 
heirs lest the property so left should only go to increase the 
luxury of the priests^ As Rome proceeded to her world-wide 
dominion direct taxation except as regards customs became 
unnecessaryl The tribute paid by conquered provinces went 

^ Ancient Law, p. 58. ■' Nicbuln's lioin. Ilixt. vol. ii. 

^ Ulpian Frafj. 22. G. p. 21'J. 

Y. E. 1 


into the cotfers of the government and was used for its support 
and that of the sacred colleges. Indeed the fruit of that great 
triumph of Paulus after the victory of Pydna, as he marched to 
the capitol clad in the vesture of Jove himself, was the upas-like 
secretion finally resulting in the degradation and demoralisation 
of the Republic. 

In the same way, the Greeks were wont to dedicate to the 
gods, after a success in battle, a tenth of the spoils \ and this 
practice seems to have been fairly general in the early African 
kingdoms, although the Punic exactions for the support of 
religion were particularly hard and onerous. We have thus seen 
that the payment of tithes or tenths has existed from the earliest 
times, we now come to consider briefly the practice after the 
introduction of Christianity. 

First of all we may note that there is no special enjoining of 
the tithe system in the New Testament, and it is not until the 
time of the Fathers SS. Jerome, Augustine, and Chrysostom 
that the right of the clergy to tithe of the produce of land is 
laid down. The excessive bounty of the early Christians, who 
in their zeal for the new faith literally sold all to follow the 
Cross, and the communistic principles under which they lived, 
supply abundant reason for the fact, that no claim to the tithe of 
increase is made by the earliest Christian clergy on the ground 
that they are the representatives of the Levitical priesthood, till 
close upon the fifth century. This communistic method of 
living however did not survive long after the time of the 
Apostolic fathers. In the three hundred years that intervened 
the Christian Church was supported by purely voluntary offer- 
ings^ which, besides being devoted to clerical purposes, were also 
applied to charitable uses. Selden^ appositely remarks that the 
opinion of Origen, who lived about 200 A.D., was that first-fruits 
were due to the Church, but he does not mention tenths as being 

At the end of the fourth and the beginning of the fifth 
centuries such a claim as of right is laid down by the Fathers, 
both of the Greek and of the Latin Church*. This right 

1 Xen. Anab. v. 3, 4, 5. ^ Selclen, iv. 3. 

- Tertullian, Ajwl. 39. •• H. and S. iii. p. 637. 


however is not described as possessing a legal sanction, it is one 
of moral and religious obligation, and is thus maintained by 
SS. Ambrose, Augustine, Jerome, and Chrysostom, the first two 
holding that a full tenth is due by God's Law, the latter that 
not less than a tenth should be oflfcred*. 

Again, in several Councils of the Church the payment of 
tithes by the faithful is insisted on^ one of the earliest of which 
is that of Tours held in the year a.d. 567, where it is declared, 
" But we most earnestly press this upon you, that, following the 
example of Abraham, it may not grieve you to offer to God 
tithes of all for the preserving of the remaining goods which you 
possess." ("Illud vero instantissime commonemus ut Abrahae 
documenta sequentes, decimas ex omni facultate non pigeat 
Deo pro reliquis quae possidetis conservandis oflferre.") And 
again this is more strongly enjoined by the Council of Macon, 
held A.D. 589 — the authenticity of which Selden^ denies, and he 
further adds that no law s^Tiodal or pontifical occurs, where 
tithes are enjoined to be paid till near the end of the 8th 
century. Payment of tithes being thus enforced by a moral and 
religious sanction it remains for us to show the attachment of a 
legal sanction. This was done for the Frank kingdom by 
Charles the Great A.D. 779, and afterwards in the year 787 when 
he had become Emperor these laws were received as Imperial 
laws. It was ordained as follows " concerning tithes ; that each 
person shall give his tithe, and that they be dispensed according 
to the order of the bishop." (" De decimis ; ut unusquisque 
suam decimam donet, atque per jussionem pontilicis dispensen- 
tur^") By this enactment the eleemosynary nature of tithe in 
the Frank kingdom ceased. It at once assumed a legal 
character. "The tithe," says Milman, "was by no means a 
spontaneous votive offering of the whole Christian people. It 
was a tax imposed by imperial authority and enforced by 
imperial power^" Summing up the general history of the 
subject at this period Hallam^ says, " We find the payment of 
tithes first enjoined by the canons of a provincial council in 

' Bingham's Antiq. ii. 81, 85. 
- Council of 'Tours, a.l>. uG7. 
^ Scldcn, .58-00. 

* Capitt. (ed. Baluzc) i. Ill, 112. 
•'' VuL II. p. 2'J2. 
« Mid. Afjes, p. 335. 



France near the end of the sixth century. From the 9th to the 
end of the 12th century and even hiter it is continually enforced 
by similar authority. Father Paul remaiks that most of the 
sermons preached about the 8th century inculcate this as a 
duty, and even seem to place the summit of Christian perfection 
in its performance. This reluctant submission of the people to 
a general and permanent tribute is perfectly consistent with the 
eagerness displayed by them in accumulating voluntary donations 
upon the Church. Charlemagne was the first who gave the 
confirmation of a civil statute to these ecclesiastical injunctions ; 
no one at least has, so far as I know, adduced any earlier law 
for the payment of tithes than one of his capitularies." 

We have then arrived at the point where the right to tithes 
is established on the continent of Europe. They are paid to 
monasterial houses, to the clergy and the poor, and perpetual 
consecrations are often made at the pleasure of the owner. 
Before proceeding to the more particular part of the subject of 
this essay, viz. that which refers to the History of the Law 
of Tithe in England, it may be as well to consider the question 
as to the existence of tithes in the British Church as distin- 
guished from the Anglo-Saxon. 

How and when the Britons embraced Christianity or who 
was " the first that ever burst " into the sea of their savagery 
are questions not for us to determine. Suffice it to say that at 
the end of the 2nd century there were regions in Britain 
inaccessible to the Romans "subdued to Christ'." During this 
time too a full diocesan episcopacy existed, as is shown from the 
signatures to the Council of Aries (a.d. 314) summoned to 
suppress the Donatist heresy. There does not seem to have 
existed in the British Church any division of dioceses into 
parishes. The diocese itself was the parish, and the churches 
studded over it were used more as mission-houses or capellae. 
The ministering clergy lived together in the collegium or 
monasterium, the head of which was the abbot. These monas- 
teries were at first supported by the free-will offerings of the 
people^, but as they became more numerous and the obligations 
and benefits of religion more understood and appreciated, these 

1 Tert. adv. Juda-os, c. 7. - Thomas, Hist, of St. Asaph, p. 14. 


casual offerings took a more systematic form. At length certain 
kinds of produce were taxed voluntarily, and lords of the soil in 
founding churches would reserve as an endowment what we 
may call a rent-charge as a provision for some member of their 
family. This was in the nature of a creation of an advowson, 
and it was the natural result that the succession to the benefice 
became hereditary. This peculiar endowment accounts for 
many of the endless moduscs which in later years make the 
history of the law of tithes almost appear frivolous. 

After the Saxon invasion the British Church still existed in 
the parts known as Strathclyde, North Wales, and West Wales. 
By this time the monastery had become the bishopric, and the 
abbot the bishop. New churches have now sprung from the 
mother-churches, and the latter have secured some service from 
their offspring. Here we see the origin of those cases where in 
one parish a part of the tithes is payable to another. 

Even in these early days there appears to have existed a 
substantial connexion between the Welsh State and the Welsh 
Church, for in the femous code of Howel the Good it is declared 
to be "the duty of the sword to protect the staff," the privileges 
of the Church, her rents, services &c. being dependent on the 
land are also dependent on the king. In the compilation of 
those laws the assistance of the clergy is specially invoked "lest 
the laity should enact anything that was contrary to the Holy 
Scripture \" 

Finally, it remains for us to add that from the refusal of the 
British bishops to acknowledge the supremacy of the See of 
Canterbury at the Conference of Augustine's Oak, the Welsh 
Church maintained for a long time, in a limited degree, its 
independence. The settlement of the great controversy, which 
divided Christians into two opposing hosts as to the proper 
time for the celebration of Easter, was effected as regards 
England by the Council of Whitby in A.D. GG4. The Roman 
method was then adopted, but it was well-nigh a century before 
the British Church acquiesced in the rule. North Wales agreed 
to follow the English and Roman course in the middle of the 
8th ccnturyl A Welsh victory over the English at Hereford 

1 11. and S. I. p. 'il'J. - Ant. Iliit. Church, i). 250. 


for a time upheld the refusal of South Wales, but the latter 
submitted a few years later (a.d. 777). Attempts were however 
made to return to the ancient practice, and though the virtual 
supremacy of Canterbury over the British Church may be said 
to date from the above settlement, the constant disputes that 
were ever arising between the two Churches show it to have 
lacked that finality, which only the process of the years could 
bring. It was not till after the Norman Conquest that juris- 
diction was directly claimed by, and not till the middle of the 
12th century that the last Welsh bishop finally gave in his 
adherence and professed obedience to, the Primate of All 


Of the five invasions to which our country has been subject 
the little Isle of Thanet, hardly distinguishable from the marsh 
and mud of the Thames bank, has been the spot where twice 
the foreign foot has first touched our soil. Scarce a century 
had elapsed since Hengist and his fierce war band landed at 
Ebbs-fleet, ere the little company of monks under Augustine 
commenced there the peaceable invasion which reduced England 
to Christianity. 

Surprised and amazed Augustine well might be, when he 
found at Canterbury the ruined remnants of an ancient 
Christian church, and, dimly as it were, heard of the existence 
of another in the heart of Wales. But in England itself the 
very memory of the British Church had passed away. Fifty 
years had been quite long enough to efface from recollection 
the brave asceticism of the monks, who, from the monstre 
monastery at Bangor Is y Coed, had followed the army of the 
Britons to death and defeat before Ethelfrith of Northumbria. 
It is not our business to trace the course of the conquering 
Christianity. Thirty-five years saw the new religion fairly 
established, though the death-struggle of heathendom was yet 
to come. To Augustine the early lawyers are wont to refer the 
introduction of the custom of tithe-paying, chiefly on account 
of one of the answers sent by Pope Gregory the Great to him. 
The question referred to the payment of the clergy, and Gregory 
advises Augustine and his monks to abide by the rule of the 


Apostles, "to all of whom all was common*." The usual plan, 
however, he explains, was to divide the free-will offerings into four 
parts, for the bishop, the clergy, the poor, and the repair of 
churches^; but there is no mention of tithes, and as we shall see 
they were of a later growth. Augustine and his immediate 
followers were essentially missionaries. They converted the king 
first and the people after. Dioceses coincided with kingdoms, and 
the bishop himself was but a royal chaplain. He was both rector 
and bishop of his parish or diocese, and after the tithing system 
was established, the right of all tithes belonged to him. These 
dioceses were manifestly too unwieldy, too few, and too large. 
Further a great schism divided the Saxon Church in the middle 
of the 7th century, and though it was merely the final contest of 
Rome for supremacy over the Irish Church, yet it was a contest 
of vast importance to England. The secession of the monks of 
Holy Island, after the judgment of the Council of Whitby, left 
in England a united Church. It was to re-organize and con- 
solidate this united Church that Rome sent over a priest whose 
work remains to us to this day. Theodore of Tarsus landed in 
A.D. 668, and the diocesan church which exists now is practically 
the same as he left it in A.D. 690. New sees were created and 
grouped round Canterbury as centre, and new bishops acknow- 
ledged her bishop as primate. To Theodore has also been 
attributed our " parish " system in the modern sense, but this is 
a mistake due to a confusion of the ancient and modern senses 
of the word "Parochia." In the ancient sense it denotes a 
bishopric or see, and these Theodore did constitute ; but the 
modern parishes are of a natural growth. They are the 
natural descendants of the original mm'k, and their confines 
the confines of the village community ^ The process of the 
formation of a parish would be somewhat as follows. In 
building and dedicating churches the founders used as boun- 
daries those already established for the township or village 
community. There might be some existing in the latter part 
of the 7th century*, but there were none in Northumbria as 

1 Greg. Ep. 1. 0. -50. Maimliourg, >' Digby, Hist. Bcid FjJttj. under 

201— in. Parhhcs. 

- II. aiad S. in. p. 10. ^ H. and S. ni. p. 122. 


far down as the year 734. In later Saxon times these town- 
ships with the churches situated in them became manors, a 
name first used in the reign of Edward the Confessor. " The 
services were rendered to the supreme Landowner who at the 
Conquest became a Norman instead of a Saxon. The name 
manor becomes now general, and England is parcelled out into 
manors often coinciding with the boundaries of the parish'." 

As early as Theodore's time the duty of giving tithes to 
sacred purposes was part of the law of the Church, and as we 
have already seen it was established by Church Councils on 
the Continent. Thus we find in Theodore's Penitential II., 2. 
7, " A priest is not bound to pay tithes " (Presbitero decimas 
dare non cogitur), and again ib. 14. 1, "The proper seasons for 
fasting are three a year for the people, viz., forty days before 
Easter, when we pay the tithes of the year (ubi decimas anni 
solvimus)." The custom having thus been established as a 
moral obligation, we shall now proceed to trace the different steps 
by which it gradually became established by law. In later times, 
when parishes have become more defined and settled, the mission 
church (capella), or that built by the lord, becomes the parish 
church, the mission priest, or the lord's chaplain, the parish 
priest, and the tithes paid by the lord's holding the permanent 
endowment of the minister of the parish. 

(1) It has often been held, that the earliest tithe laws by 
which a legal sanction was first attached to the already existing 
moral obligation on the part of Christians to pay tithes, are con- 
tained in a collection of Canons, attributed to Egbert, archbishop 
of York, and supposed to have been written between the years 
743 and 7G7. The substance of the canon in question is that 
the priest is to teach the people to pay tithes and to keep a 
register of them himself. There is also a tripartite division of 
them for the church fabric, the poor, and the priest. Comber' 
and others uphold the validity of these canons, but Seklen' 
rightly declares them to be spurious. "The fact these 
Excerptiones contain extracts from the Capitularies of Charles 
the Great is fatal to their claim to be regarded as 

J Digby, ibid. - Vind. nf Dir. i;i<jlil ni Tithes, 1685, p. KIT. 

•■» Sclclcn, 1). r.l7. 


Egbert's\" They therefore cannot be regarded as the earliest 

(2) In the year 787 the first real legal sanction was 
attached and the payment of tithes made compulsory ; and 
this it will be observed was contemporary with the tithe 
legislation of Charlemagne. In the previous year Pope Adrian 
I. sent legates to Britain " to renew the faith." These legates 
were George, bishop of Ostia, and Theophylact, bishop of Todi. 
Two important synods were held, one in the north under 
Ethelwald, king of Northumbria at Pincahala — either Finchale 
in Durham, or Wincle in Cheshire — and the other in the south 
under Offa, king of Mercia, both in 787. The legates had 
previously met Offa and Kynewulf, king of the West Saxons, 
on their landing in 786, but the latter king was killed in that 
year. At the southern council, which was held at Celchyth, or 
Chelsea, the decrees of the northern council were confirmed. 
The legates sent a lengthy report of the proceedings to Adrian, 
Chap. XVII. of which is headed, " That tithes be paid in full " 
(Ut decimse juste solvantur)^ After quoting some scriptural 
commands as to tithes it says, "Wherefore we do solemnly enjoin 
that all take care to pay the tenth of all that they possess 
because that specially belongs to God ; and let each one live on 
the remaining nine parts and give alms ; and we advised that he 
does these in secret because it is written ' When thou givest 
alms sound not the trumpet' " (Unde etiam cum obtestatione 
prsecipimus, ut omnes studeant de omnibus quae possident deci- 
mas dare, quia speciale Domini Dei est : et de novem partibus 
sibi vivat, et eleemosjmas tribuat, et magis eas in absconditis 
facere suasimus, quia scriptum est, " Cum facis eleemosynam, 
noli tuba canere ante te "). The decrees of this council it will 
be noted were accepted as binding by the king and Witan of 
Mercia and Northumbria, and in all probability by the Witan 
of the West Saxons. There does not appear to be any other 
enactment extant, in which is laid down the obligation to pay 
tithes, though, as we shall see, it is established as law in the 
time of Edward the Elder, 901. In what way the decrees of 

i H. and S. in. p. 415. « H. and S. iii. 456. 




the councils were enforced, or whether they were enforced at 
all we do not know\ , 

(3) Next may be noted two mistakes made by the old 
chroniclers, Avhich have been the cause of much misconception 
as to the legal origin of the right of the clergy to tithes. The 
first — one not nearly so fertile a source of error as the second — 
is that Offa, king of Mercia, made a grant of all the tithes of his 
kingdom to the Church as a penance for a murder which he had 
committed. The second is, that a similar grant Avas made by 
Ethelwailf in the year 855. In the opinion of modern historians 
this grant which has been supposed by many to be the original 
deed of gift upon which the legal right to tithes in England 
depends, does not really relate to tithes. The explanation of this 
Charter given by Kemble in the Codex Diplomaticus^ is now re- 
garded as correct. Ethelwulf at that time being humbled and 
terrified at the success of the Danish invaders, decided to liberate 
a tenth part of his estate from the services and exactions which 
accrued by their hereditary tenure, whether they were in the 
hands of the clergy or the laity. " He released from all pa}Tiients 
except the inevitable three," i.e. the trinoda necessitas, viz.: F}Td, 
Brig-bot, and Burh-bot, a tenth part of the folc-land or unen- 
franchised lands, whether in the tenancy of the Church or his 
thanes. In this tenth part of the lands so burdened in his favour 
he annihilated the royal rights of Regnum or Imperium. The 
charter thus amounts to a grant of freedom from royal taxation to 
a tenth part of his lands. In an important note on this charter 

^ In his "Ancient Facts and Fiction.s 
concerning Churches and Tithes" 
which was pubhshed after the com- 
pletion of this Essay, pp. 144 — 167, 
Lord Selbornc disputes the legislative 
character of the Acts of these Councils. 
Ho declares from an examination of 
' ' external and internal evidence " that 
their character is that of " a pastoral 
precept and not legal enactment," in 
fact that there is no sanction attached 
to the articles but a spiritual one. In 
this view he is opposed by such great 
authorities as Haddan and Bishop 

Stubbs and by several others. His 
strongest arguments are deduced from 
the form of the Legate's report, but 
they are discounted by the very fact 
that it was merely a report. It does 
not pretend to be an exposition of the 
laws but only to declare what the legates 
actually did. It is a narrative of tlicir 
work and not a copy of the Statutes 
passed. Some of the articles are ex- 
pressly called "decrees," and others 
"admonitions," and others " dis- 

'■' (K. C. D. MXLVIIl) (CCLXXV). 


in Haddon and Stubbs' Councils and Ecclesiastical Documents^, 
the subject is thus summed up: "The bearing of the whole dis- 
cussion on the subject of tithe appears to be, that Ethelwulf 
merely used the tenth as a convenient measure for ecclesiastical 
and other benefactions ; and that this testifies to an established, 
or at least, a growing recognition of the tithe as a clerical portion. 
The measure, whatever its character, affected Wessex only." 
We may also add, that as the Legatine Councils of 787 had 
the force of law, Ethelwulf's donation could not be a gift of 
tithes. Lord Selborne" appropriately remarks with reference 
to this charter that Messrs Haddon and Stubbs' note hardly 
does justice to the great authority of Selden, The latter — 
though he had his own view on the subject — states the question 
fairly as one of doubtful construction. Mr Clarke in his History 
of Tithes, published early in 1887, seems still to hold that Offa 
and Ethelwulf granted to the Church the tithes of the whole 
kingdom. He adopts the construction, that tithes were to be 
given as a free-will offering, and by this explains the fact that 
no punishment is laid down in the charter for disobedience. 
He attributes the granting of them to the Church to Roman 
influence over the weak and superstitious mind of the king. 
Such a construction of the charters has been abandoned by 
nearly all modern historians. An examination of them shows 
that Ethelwulf's act was merely an act of enfranchisement. 
It converted a tenth of the folc-land into hoc-land, which thus 
became liable only to the three services, of military expeditions, 
and the repair of roads and bridges, and of forts. 

(4) By the time of Edward the Elder, A.D. 901, we find the 
legal obligation of the tithe established as law. Among the 
conditions of peace between Alfred and Guthrum the Dane, 
and which were renewed by Edward his son, appears one for 
the payment of tithes. " If any one withhold tithes let him 
pay lahslit among the Danes, and wite among the English ^" 
In this we first see a legal sanction attached to the legal 
obligation. It here takes the form of a penalty or mulct for 
non-payment. About the year 927 Athelstan issued a royal 

' Vol. III. p. 637. ^ Wilkins, I.ctjcs Amjlo-Sax. p. 51. 

- Defence of Church of Eiig. p. 131. 

ATHELSTAN's injunction. — EDGAR'S LAWS. l'^ 

injunction with the consent of the archbishops and bi.shops for 
all the realm, for the payment of prsedial and mixed tithes and 
of living cattle, and ordered that his judges should see it well 
executed \ This, it must be remembered, was not an act of 
legislation. It was a royal command, and the penalty for 
non-obedience would be the same as that for contempt of the 
royal authority. Further, thirteen or fourteen years later, 
king Edmund ^ in a national synod made excommunication the 
penalty for non-payment. Thus we have a definite real sanction 
attached to the recognised religious obligation to pay tithes. 

(5) The ordinance of the Himdred enacted by Edgar circ. 
970 contains the first recognition of the rights of particular 
churches to tithes. We shall consider these laws more fully 
■when we come to describe the growth of the parish system. It 
is sufficient here to state that by it tithes are to be paid to "the 
old Minster to which the district belongs" both from a thegn's 
in-land, i.e. demesne, and from geneat-land, i.e. land cultivated by 
geneats, or those holding by service. The times for paying 
tithes are fixed at Whitsuntide, when tithe of cattle was to 
be given, and at Martinmas (ad aequinoctium) for earth's-fruits. 
The means of enforcing payment are very stringent. The king's 
and bishop's reeves together with the mass-priest of the principal 
church were to go to the defaulter and take the whole of his 
produce. The tithe due to the principal church was then taken 
and the defaulter given back one-tenth. The remaining eight- 
tenths were divided between the lord and the bishop. The above 
rules were re-enacted by Canute, and according to some authori- 
ties by Ethclred. The laws attributed to the latter are identical 
with Edgar's laws except in one point. Upon this the claim of 
the poor to a part of the tithes is based. The division given is 
tripartite, the third part being for the poor. There does not 
however appear to be sufficient authentication for this collection 
of laws. Lord Sclborne'' rejects it entirely. Perhaps his 
strongest argument is that had they ever been enacted Canute 
would have been asked to confirm them and not those of Edgar. 
He holds that they are of ecclesiastical origin and are part of 
the conflict between the regular and secular clergy. At this 
1 Selden, 214. ' Fleta, 2, 47. ^ Dcf. Ch. of Evff. p. 132. 


time the parochial system was in its infancy, and the monastic 
orders were naturally anxious to keep any endowments they 
could get hold of, especially as they themselves would at this 
time constitute the poor. 

(6) A collection of laws, rights, and customs attributed to 
Edward the Confessor was made by William I. The laws of the 
Church are declared good, and a long list of titheable matter is 
given, such as wheat, flocks, goats, butter, cheese, bees, pigs, 
mills, fisheries, gardens, merchandise, &c. Eecovery of tithes 
due was provided for in the Bishop's court, and aid could be 
obtained if necessary from the King's court. Of this elaborate 
collection Selden justly says that "it contains mixtures of later 

We have referred above to the origin of the parish system 
and seen how its germ lay in the mark of the old village com- 
munity. From this the system itself was of natural and gradual 
growth. During the 8th century there were many churches 
built and endowed with tithes by the lords of the soil, and it 
also became customary to appropriate some of these churches 
by the lords, who were their patrons, to religious houses. As 
however religion spread the lords of the soil became desirous of 
having near their residences chapels and chaplains to administer 
in them for the benefit of both themselves and their under- 
tenants \ Such chapels and churches were continually being 
built all over the country, and the tithes of the lord's lands 
formed the endowment of the minister. In earlier times these 
tithes would go to the common treasury of the diocese and be 
then distributed by the bishop among his clergy as he thought 
fit. This plan naturally checked the devotion of rich men, and 
between the ninth and tenth centuries the practice was relaxed. 
Laymen were then allowed to endow the churches they had 
built with the tithes of the land which surrounded them, the 
limits being usually conterminous with the territories of the 
founders. In this way most of the parish foundations which 
exist now in all dioceses at first arose. The laws of Edgar 
referred to previously are the only legislative acts of the Saxon 
period which refer to the parochial system. This however is 

1 Selden, p. 259. 


natural enough, for at that time the system itself was only in its 
infancy. Three kinds of churclies are mentioned in the laws : 

(i) The older or principal church ; 

(ii) Churches with burial grounds which lords might have 
on their manors or lordships ; 

(iii) Churches without burial grounds. 

The laws give all tithes arising in the adjacent parish to the 
first class of churches provided there is no church of the second 
class ; but should there be such a church then one-third was 
assigned to it, and the remainder to the principal church. As 
regards this principal church, some have held that it was the 
minster or cathedral of the diocese. Blackstone^ seems to hold 
that the parish system existed in full in the time of Edgar. 
Selden however takes this to mean "the ancientest church or 
monasterie, where he hears God's service which I understand 
not otherwise than of any church or monasterie whither usually 
in respect of his commorancie — i.e. as an inhabitant of a house 
in a village or manor— he repaired^". That is the church which 
a lando^vner frequented when he had not one of his own. The 
second class of churches, viz. those having the right of sepulture 
even though built within the limits of the old parish, became 
themselves parish churches and took from the endowments of 
the old church those appertaining to the adjacent land and not 
merely the one-third given by Edgar's law. The third class of 
churches remained merely chapels of ease with no endowments 
abstracted from those of the mother church. 

During the Saxon period a large number of abbeys were 
built and endowed, and it must be kept in mind that it 
was to them that tithes were chiefly paid. It was not till 
about the year 1200 A.D. that the practice of paying parochial 
tithes was fully established, though as we have seen it did exist 
in a limited form during the Saxon period. Up to the middle 
of the eighth century the clergy who occupied monasteries were 
of a mixed character. That is to say the well-known distinction 
between regular and secular clergy had not arisen. The dis- 
advantages however of such a system were apparent, and by the 
4th canon of the Council of Clovcsho held in 747 a reformation 
1 liook IV. c. iv. - Selden, p. 2GH. 


of the monastic system was effected \ It in fact established the 
distinction between secular and regular clergy, and hence began 
a breaking up of the monastic communities into separate houses 
of monks and canons. The cathedral clergy are now known as 
canons who live together without monastic vows. This had a 
great effect on the future of tithes, for the monasteries were free 
to use that influence over men's minds, which in after years 
secured to their institutions the arbitrary consecrations of the 
tithes of whole tracts of land. 

1 H. and S. iii. p. 364. 

xoRMAX CHURCH ohoanizatiox. 17 


The troublous times, through which our country passed in 
the years immediately prior to the Norman Invasion, had of 
necessity an effect upon the practice of paying tithes. We find 
that towards the end of the Saxon period the payment of them 
was virtually discontinued. Selden attributes this to the in- 
dolence of the clergy, who by this time had become so rich a 
body that they neglected to collect the tithes which w^erc due. 
In Domesday Book tithes are scarcely mentioned, though the 
real endoAvnients and revenues of the clergy are put down and 
valued. The property given to the religious houses during 
Saxon times had been for the most part held in common. 
After the Conquest this plan was changed. Portions of the 
revenues of principal churches were set aside by the Norman 
bishops for the canons as a common fund, whilst the remainder 
they kept for themselves. Separate endowments of lands and 
tithes were given to the deans and chapters, priors, and other 
principal officers of the cathedral churches. Further, out of the 
episcopal revenues the Norman bishop purchased estates for the 
endowment of prebendaries, and this practice lasted till about 
the beginning of the 13th century. Such separate endowments 
have remained more or less intact till the passing of the 
Cathedral Act of 1840, by which they were taken away and 
merged in the common fund managed by the Ecclesiastical 

The refusal of the people to pay tithes, from whatever, 
having become so general and extensive at the time of the 
Y. E. 2 


second Henry, Pope Alexander III. interfered in order to 
re-establish the ancient practiced In a letter addressed to the 
Bishops of Worcester and Winchester, he declares that it is the 
custom or institution of the Church of England, that each 
parishioner should pay his tithe of fruits to the church of his 
own parish. Even earlier than this Adrian IV. speaks of the 
parochial payment of tithes " as a known right." This however 
is certainly an anachronism as far as tithes in England are 
concerned. In the time of Henry II. no title to tithes was 
made out by merely parochial right ^; but prescription and 
consecration were the grounds whereon they were demanded. 
The Jus Parochiale was merely the right of having the cure of 
souls and the free-will offerings of the people. When a church 
had been endowed and granted cum decimis, this and the jus 
parochiale gave the right to tithes. As the power of the canon 
law increased in the darkest age of our history, this distinction 
gradually faded. Arbitrary endowments, as we shall see in the 
next chapter, had ceased by the beginning of the reign of Henry 
III., and by the middle of that reign it had become received law 
that all lands were regularly to pay tithes to the parish or 
mother- church. The establishment of this parochial right is 
more easily seen a few years later, when after the passing of the 
statute " Circumspecte Agatis^" in the writ of Indicavit founded 
upon it, it is declared that in and before that time the parochial 
tithes were the most known revenue of the Church. And this, 
as is shown later in the reign of Ed. III., agrees with the count 
in a writ of Right of Advowson of Tithes, wherein the esplees 
are chiefly laid in tithes, because " the Advowson of the whole 
tithes is no other than the Advowson of the Church*." It has 
now become clear law, and has remained so that every parson 
has a common law right to the tithes within his parish. It was 
unnecessary for him to show any other title to them in cases 
where no title or discharge was alleged by the defendant when 
he brought his libel for them. 

A number of important councils affecting the payment of 

1 Counc. Lat. 4. 4. * per Judge Stoner in Corbet's case, 

2 Selden, 361. 4 Ed. III. f. 27. 

3 13 Ed. I. 


tithes were held during the reigns of the early Angeviu kings. 
In 1175 Richard, Archbishop of Canterbury, held a great council 
at London, the king and his son — also king — being present'. 
A list of titheable subjects was given and the people of the 
province were enjoined " to pay in full their tithes. Whereas 
if being advised so to do they shall not have paid let them be 
anathematised" ("decimas integre persolvant. Quod si commoniti 
nou emendaverint, anathemati se noverint"). And again in 
1195 another council was held under Hubert Walter, Archbishop 
and Chief Justiciar, which among other things ordained that 
tithe should be paid out of the wages of labourers and servants. 
To the Councils of Lateran we shall specially refer in the next 
chapter. Perhaps however the most important canon of the 
English canon law for the payment of tithes was that passed in 
the year 1295 (23 Ed. I.) at a s^mod held in London under the 
great Archbishop Winchelsey^ which endeavoured to settle an 
uniform custom of tithing. 

We may here briefly touch upon a custom which, though 
not prima facie forming part of the subject of this essay, yet is 
still intimately connected with the practice of tithing, and this 
is the custom of paying Mortuaries, which consisted of a gift 
claimed by and due to the minister on the death of any of his 
parishioners. Originally they were — like heriots in the descent 
of copyhold property — purely voluntary bequests. On the death 
of a man it was usual for a gift to be made out of his property, 
to the Church, as a recompense for the personal tithes he had 
omitted to pay during his life-time. For this purpose after the 
lord's heriot had been taken the second best chattel was reserved 
for the Church. Conscience-money, in our day, received by the 
Chancellor of the Exchequer is of the same character as mortu- 
aries anciently were. 

The jurisdiction which the Church had over testaments of 
chattels easily explains the growth of this custom into a right. 
By the time of Henry III. mortuaries were the necessary ingn>- 
dients of wills; though the form they took varied as the custom 
was in different places. In many i)laces the clergy exacted a 
mortuary or corse-present when any corpse was carried through 
' Sclden, p. 228—33. - Vidf i>ost, \^. IH. 


their parishes, the more general rule however being that mortu- 
aries were limited to the parish in which the dead man had lived. 
In Wales a mortuary was due upon the death of every clergyman 
to the bishop of the diocese, but this was abolished and recom- 
pense given by 12 Anne, st. 2, c. 6. By the statute of Circum- 
specte Agatis^ mortuaries became payable as other debts, but up 
to the year 1530 (circ.) they continued to be paid in kind, the 
parson having the right to seize the second best beast wherever 
he could find it. By a statute^ then passed money payments 
were substituted, the amount being in proportion to the wealth 
of the deceased. It was also enacted that no mortuary was to 
be paid unless it was due by custom of the parish. An action 
of debt would lie under the provisions of this statute for the re- 
covery of the amount due. By 28 Geo. II. c. 6 mortuaries were 
taken away in some English dioceses. The practice now has 
fallen into disuse, but perhaps it is represented in some parishes 
by the offerings of the mourners which are collected during the 
reading of the burial service inside the church. 

1 13 Ed. I. 2 21 Hen. VIII. c. 6. 



The laxity of the administration of ecclesiastical law during 
the Norman period, and the conflict between the Church and 
the king in the reign of Henry II., account to a certain extent 
for the fact, that during this period, the lords of the soil were 
in the habit of appropriating or consecrating the tithes of their 
lands to whatsoever churches or religious houses they pleased. 
In the period between the Conquest and the end of the reign of 
Henry II. no less than three hundred and seventy monasteries 
were erected in this country, and from the year 10G6 to the 
year 1200 nearly the whole of the appropriations of tithes were 
made to such bodies. An attempt was made in the year 1125 
to stop this practice — by which the tithes of certain lands were 
made payable to houses far distant from the parish in which 
such lands were situate — at a National Synod held at West- 
minster it was enacted that no abbot, prior, or clergj^man 
should receive any church-title or benefit from a layman without 
the consent of his bishop. But this canon was never enforced. 
The Church was weak, and lay patrons could afford to pay no 
attention to what they considered an encroachment on the 
rights of private property. At any rate, it is certain that the 
practice was for years afterwards continued, and that churches 
with tithes were commonly given by lay patrons without the 
bishop's assent or institution, both by appropriating them to 
religious houses and by filling them with incumbents. Such 
conveyances of the right to tithes in th(! form of a rent-charge 
were good according to the common law. 'j'hc doctrine on (he 


subject is laid down in the old law books, and is recognised as 
good as far back as the time of Edward III.\ "Before the 
Council of Lateran," it runs, "any man might grant his tithes to 
what spiritual person he would^" This power possessed by the 
lords of the soil and fostered by the religious houses was used very 
extensively, as we have remarked, to the benefit of the latter. 
Tithes were conveyed to them from different parts of the country, 
and, in return, masses were to be sung for the souls of the 
departed pious donors. Sir Edward Parnynge, in the year book 
7 Ed. III.^ gives the earliest judicial authority for the practice. 
" In ancient times, before a new constitution made by the Pope, 
a patron of a church might grant the tithes within that parish 
to another parish." (" En auncien temps," he says, " devant un 
constitution de nouvelle fait per le Pape, un Patron d'un 
Esglise puit granter Dismes deins mesme le paroche a un altre 
paroche ".) And some years later^ Judge Ludlow writes, " In 
ancient times each man could grant the tithes of his land to 
what church he liked." (En auncien temps chescun home 
purroit graunter les Dismes de sa terre a quel Esglise il 
voudroit). To which is added by another judge, in abridging 
the case, " Quod verum est." The large number of such endow- 
ments, collected by Selden^, shows the practice to have been as 
general as we have declared it to be. What constitution of the 
Pope, or which council of Lateran j)ut a stop to it, has been 
the subject of much controversy. Blackstone^ following Sir 
Edward Coke, declares that the condition of the secular clergy 
being rendered so poor by the system induced Pope Innocent 
III. to write a letter in the year 1200 to the Archbishop of 
Canterbury, Hubert Walter, as follows : " It has come to our 
hearing, that many persons in your Diocese pay their tithes in 
full, or two parts of them, not to the churches of those parishes 
in which they dwell, or where they hold their lands, and where 
they receive the Church's sacraments ; but bestow them upon 
others, according to their own pleasure. Since, therefore, it 
seems inconvenient and contrary to reason, that churches which 

1 Coke's Reports, ii. 44. * 44 Ed. III. f. 5, pi. 22. 

' HoharVs Rep. p. 205. = Selden, ch, 11. 

3 Fol. 5, pi. 8. « Vol. HI. p. 83. 


discharge spiritual functions sliould not reap and possess the 
temporalities from their own parishioners, by the authority of 
these presents we grant to you that you may, notwithstanding any 
contradiction on this, or any one's title, or any custom hitherto 
observed, declare the law, and effect that which you have 
determined upon to be steadily observed, under the censure of 
the Church." (Pervenit ad audientiam nostram quod multi in 
Diocesi tua Decimas suas integras, vel duas partes ipsarum non 
illis Ecclesiis in quarum Parochiis habitant, vel ubi proedia habent 
et a quibus Ecclesiastica percipiunt sacramenta, persolvunt: sed 
eas aliis pro sua distribuunt voluntate. Cum igitur inconve- 
niens esse videatur et a ratione dissimile, ut Ecclesiae quoe 
spiritualia seminant, nietere non debeant a suis Parochianis 
temporalia, et habere ; fraternitati tuse autoritate prsesentium 
indulgemus ut liceat tibi super hoc non obstante contradictione 
vel appellatione cujuslibet, seu consuetudine hactenus obser- 
vata, quod Canonicum fuerit ordinare, et facere quod statueris 
per censuram Ecclesiasticam firmiter observari^). This letter 
being dated from the Lateran Palace was mistaken — it is said 
— by the chroniclers, for a decree of the Council of Lateran, 
held in the year 1179—80. Of it Sir Edward Coke'' says, "At 
first, it bound not the lay subjects of the realm, but being 
reasonable and just, it was allowed of and so became lex terrce." 
There appear to have been four Councils of Lateran, held 
between the years A.D. 1119 and 1216, the third of which was 
held under Pope Alexander IIL, in 1179 — 80, and the fourth 
under Innocent III. in 1215 — 6. Selden^ seems to think that 
it was at the former of these two latter councils that the 
practice was forbidden, or, if not, by a constitution of the Pope 
received in England about the time of the Council of 1215 — 6. 
Lord Selbome* thinks the former opinion of Selden to be the 
correct one. Quoting from the Acts of the Council of 1179 — 80, 
he shows how the system was recognised, and adds, " Orders 
were then made against the continuation of these practices; 
which may have caused all the ecclesiastical authorities from 
that time forthwith to oppose themselves to what Selden calls 

J Inn. III. Ep. Dceret. lib. 2. p. 452. ' p. 295. 

2 2 Jmt. 641. * Drf. Ch. of Eng. p. 135. 


' arbitrary consecrations of tithes,' i. e. to appropriations by 
landowners at their own will and pleasure of the tithes, arising 
within their lordships and estates." It must be added, that to 
this Council of Lateran Blackstone^ attributes the prohibition 
of what is known as the " infeudation " of tithes, i. e. their being 
granted to mere laymen. Such a practice was certainly very 
common on the Continent, and there is reason to believe that 
it existed to a very limited extent in England^. Whichever 
view is taken, it is certainly true, that landowners did make 
perpetual grants of tithes, both to capitular bodies, monasteries, 
and parish churches, and that this is the origin of the tithe 
endowments of the latter, so general all over the country. 
Further, though the Council of Lateran of 1215 — 6^ is not 
generally considered the one to which the old law books refer, 
it still has its place in the history of tithe law, for by it the 
former appropriations to persons out of the parish were confirmed, 
and thus the tithes which parsons then possessed could not be 
appropriated afterwards to any other persons or institutions. 

In many cases w^here a lord held land in several parishes, he 
would endow the church he had built near his own mansion with 
the tithes of the several parishes. In this way — in cases where 
parish churches are not the daughter-churches of some mother- 
church — it happens that in our own day the tithes or a portion 
of them in one parish are paid to the incumbent of another. In 
making appropriations originally, as tithes were considered 
merely private property, the consent of the king and ordinary 
was not necessary, but in the 11th century their consent became 
so. The following is a main outline of the form of a grant of 
appropriation to a capitular body. The usual mode of livery of 
seisin was to place the deed and a knife, or cup, on the altar of 
the church of the monastery, or cathedral, as the case might be. 
" Know that I, A. B. of — , for the soul of my father and my 
mother, and for myself, and my wife, and my brother, give and 
grant the church of, and my advowson of H, with the lands and 
all tithes appertaining to it, to the Dean and Chapter of the 
Church of — , to have and to hold to their own use, by the said 

1 Com. vol. III. p. 83. ^ Corp. Jur. Council, Lat. iv. c. 

2 Seld. chap. xiii. § r. xiii. 


Dean and Chapter, and their successors for ever. May they be 
able to hold them for themselves and their successors for ever, 
and enjoy them Avithout let or hindrance." (Sciatis quod ego 
A. B. de &c. pro anima patris mei et matris meae et pro me et 
uxore mea et patris mei &c. do et concede ecclesiam et advoca- 
tionem meam de H. cum terris et decimis omnibus ad earn 
pertinentibus Decano et Capitulo ecclesioe. Habend. et Tenend. 
&c. iisdem Decano et Capitulo et successoribus in perpetuum... 
immediate in suos proprios usus Tenere sibi et successoribus 
suis in perpetuum possint et valeant absque molestatione efc 
impedimento &c.'). One of our old authorities, though the 
author is unable at present to cite it, states that the word 
appropriation arose from the fact that they were made "in 
proprios usus." It is perhaps needless to remark that the novm 
is derived from the adjective " appropriate," which is merely 
formed from the Latin ad and proprius, one's own. In such 
grants from the use of the Avord successores and not heredes 
arises the rule that the receiving party must be a corporation, 
sole or aggregate, as a natural person could not fulfil the 
perpetual succession. In the year 1304, it was decided by the 
Chancellor", treasurer, and all the judges and barons that 
appropriation of tithes is no mortmain " because tithes are 
purely spiritual things of which the jurisdiction belongs to the 
court Christian and not to this court." (Quia decimac sunt 
merge spirituales quarum cognitio ad curiam Christianitatis 
pertinet et non ad curiam istam.) A license in mortmain is 
therefore not necessary, but the consent of the king in Chancery 
and of the ordinary must first be obtained. 

The special customs of tithing, which exist in particular 
places, had their origin in express as opposed to general grants 
from the lords of the soil, fur the payment of tithes in respect 
of matters not generally titheable. Thus we have a Charter of 
Hugh Lupus', Earl of Chester, to the Abbey of Chester, in 
which he grants tithes of all the fish taken in the Dee. The 
customs of tithing lead and minerals in Stanhope, in Durham, 
have a similar origin. 

1 Jacob, I.dic Diet. Ofi. 

2 Prior of Worcester's case, Rep, ^ Sugd. Monast. ii. 385— G. 


We have observed how the practice of arbitrary conveyance 
of the right to tithes was put a stop to about the beginning of 
the 13th century. As in other attempts to stay the hand of 
the regular clergy, a means of evading this prohibition was soon 
discovered. Formerly the tithes alone were conveyed to a 
religious house ; now the church and the tithes are conveyed. 
The monasteries in this way became possessed of a multitude 
of rectories, which number was increased by the rule of law, 
that " the advowson of the whole tithes of a parish was none 
other than the advowson of the Church." The duties of such 
"appropriated" rectories were performed by substitutes ap- 
pointed by the Abbots, Abbesses, &c., to whose house the 
rectory had been conveyed. Such a deputy was called a 
Vicarius or Vicar (quasi vice fungens Rectoris). At first he 
was nothing more than a curate in charge and removable at 
pleasure, but in course of time his position became more defined 
and a legal right attached to it. Further, by the 15 Richard 
II., c. 6\ it was enacted, that in making appropriations of 
rectories — which could only be done by license from the king 
in Chancery'^ — provision shall be made out of the tithes and 
profits of the benefice for the vicar and the poor and that the 
former must be a secular, and not a regular clergyman. It will 
thus be seen, that vicars obtained a portion of the tithes of the 
parish by prescription and endowment. By prescription the 
tithe was apportioned between the rector — in these cases the 
religious house — and the vicar. The vicar got what were 
called the Small Tithes, and the rector the Great Tithes. 
This distinction, which is purely arbitrary, seems to be based 
on the quantity and vahie of the subjects titheable. The cases 
decide generally to what class a subject belongs, and they do 
not seem to have been based on any intelligible principle. 
The rule of the common law is that corn, grain, hay and wood 
are great tithes, and that all other " prasdial " tithes along with 
mixed and personal are small. This latter division is into 
three classes, viz. : Prsedial, Mixed and Personal. Preedial 
tithes are those that arise immediately from the soil. Mixed 
are those that arise mediately through the increase of 
' A.D. 1315. ' 8 Rep. 11. 


animals \ Thus corn, grain, hay, wood, fruits, herbs, &c., are 
of the first class, quia ex fructibus praediorum debentur. Colts, 
calves, pigs, wool, milk, eggs, &c., are of the second. 

Personal tithes are those which arise wholly from the labour 
and industry of man, as from that of millers, fishermen, &c. 
English law has been most concerned in the division into 
Great and Small Tithes. How arbitrary it is may be seen from 
the fact, that when the cultivation of what is usually a Small 
Tithe is general in a parish that has been held sufficient to 
turn it into a Great Tithe ^ Further, the place of sowing has 
determined the class to which a subject should belong, e.g. 
hops sown in a garden were small, but in a field great tithes. 

As a natural result of 15 Rich. II., c. 6, the monastic houses 
endeavoured to obtain for themselves vicarages, which had been 
endowed under the terms of that statute. The practice did not 
last long, for by the 4 Henry IV., c. 12, all appropriations of 
vicarages were annulled and the older statute confirmed. The 
secular parson had now to be ordained vicar ; but the amount 
of his endowment was to be left to the discretion of the 
ordinary. In consequence of this it has happened that the 
right of the vicar to tithes is very different in different parishes. 
But in spite of the above statutes the monks still managed to 
obtain appropriations and became as it were immortal incum- 
bents. The cure of souls rested with them, and the minister 
whom they employed was merely a stipendiary. From this 
practice has sprung that kind of appropriation witliout a 
vicarage endowed; and it is also the origin of the stipendiary 
curacies in which the impropriator is bound to ]-)rovide divine 
service, which may be done by a curate not instituted but only 
licensed by the bishop ^ 

^ Per Macdonald C. B. in Sear v. ^ Duke of Portland v. Bingham. 

Trin. Coll. Cam. Gwill. 1415. 1 Hagg. Cx)ns. R. 157. 

2 1 Cro. 578. 



Among the many causes of the personal supremacy of the 
Tudors, not the least is the almost total annihilation of the old 
baronage brought about by the long and bloody wars of the 
Houses of York and Lancaster. The nobles of the reign of the 
8th Henry were powerless to restrain or prevent the concentra- 
tion of all secular and ecclesiastical power in the hands of one 
who had been a mere Commoner. It was this concentration of 
power in Wolsey that accustomed England to the supremacy 
which Henry achieved later through the Machiavellian policy 
of Thomas Cromwell. One institution after another gave way 
before the iron hand of the minister, until only the Church was 
left to offer resistance to the royal will. The schemes for 
religious reform propounded by the men of the New Learning 
were, it is true, fostered by popes and bishops, but to them the 
monastic houses were determinedly obstinate. The friars of 
the older times had degenerated into bands of beggars ; the 
monks had become great landowners whose only anxiety was 
to enlarge their revenues and to diminish the number of those 
who could share them. Indulgence, ignorance, and waste, were 
rampant in their abbeys. They had, in fact, outlived the 
work for which they were created. The destruction that was 
coming upon them had already years before been foreshadowed 
by the suppression, in the reigns of Henry V. and Henry VI., 
of the alien priories whose tithes and rents were usually sent 
over to monastic houses on the Continent \ Before this, 

1 2 Hen. V. 9 Eot. Pari. 1, and 19 Hen. VI. 


Edward I. had seized their property, and his inimcdiatc 
successors followed his example in 132-i and 1337. Out of 
the property transferred by the above-mentioned statutes a 
number of Colleges in the Universities were founded and en- 
dowed. These were sufficient precedents for the great acts of 
Hemy VIII., and further and above all, the independence of 
the religious houses, both of the king and bishops, was the only 
remaining bar to the fulfilment of Cromwell's policy. Two 
royal commissioners were dispatched to make a general visita- 
tion of the religious houses, and when their report was read in 
the House, the cry of " Down with them " broke uproariously 
from the Commons. Exaggerated no doubt as this report was, 
still the total suppression of the houses could not be done at 
once. A compromise was effected, and only those whose incomes 
were below £200 a year felP. Three years later the larger abbeys 
succumbed, their sites, properties and revenues being vested 
in the king^ From these statutes arise what are known in 
the history of tithes as lay impropriators. The old rule of law 
was that "no layman is capable of tithes or a portion of tithes V' 
but by the above statutes the appropriations that belonged to 
the monasteries were given " to the king, his heirs and assigns," 
in as ample a manner as the abbots of the houses had held 
them formerly. These lands and appropriated rectories — 
amounting to one-third of all the parishes in England — were 
granted by the king to his subjects by letters patent. These 
persons are now called lay impropriators, and tithes to a known 
extent have become temporal inheritances in the hands of 
laymen. By the provisions of the dissolving statutes the 
king's patents were made sufficient in law, notwithstanding 
mis-recitals, and further the lands which before the Dissolution 
had been held discharged from paying tithes were to continue 
so discharged, but only as regards those of the larger monasteries, 
for the 27 Hen. VIII. c. 28 docs not contain any such provision. 
Hence for such lands to be discharged the privilege, or custom, 
must be determined in non decimando. If however they had a 

' A.n. l.GSO. 27 lion. VIII. c. 27 ^ Bp. of Wiucliostor'H case 2 lirp. 

and 28. 13, 41. 

2 31 lien. VIII. c. 13. 


right to a Modus Decimandi, real composition, or prescription 
might be pleaded. To this we shall refer more fully when we 
come to consider the different methods of discharge. By a 
statute* of the same year the hospitals, — e.g. those of the 
Knights of Jerusalem, — were dissolved and their properties 
annexed to the crown, to be granted out in the same manner as 
those of the abbeys and monasteries. Again, other colleges, 
chapels, chantries and hospitals, &c. were dissolved, and their 
possessions placed at the disposal of the crown by 37 Hen. VIII. 
c. 24 and by 1 Edward VI. c. 14, which was the last statute for 
the suppression of religious houses. 

Various questions have arisen as to the validity of ancient 
appropriations, but where there has been a, vicarage and the 
rectory remained appropriate^, the courts would hold that a 
presumption existed that all requisite circumstances were 
observed. This was the holding of the court in the leading 
case of Grymes v. Smith^, tried in the year 1588. The abbot 
of Sulby had held the parsonage of Lubbenham, in Leicester- 
shire. Under a grant of Henry VIII. the plaintiff claimed. 
The defendant had obtained a presentation of the queen, and to 
destroy the impropriation shewed the original instrument of it 
anno 22 Ed. 4 with condition that a vicarage should be endowed; 
and alleged that such vicarage had never been endowed, and 
therefore the appropriation was void. As a matter of fact there 
was no instrument nor evidence of the endowment of the 
vicarage. But as the rectory had always during the time been 
taken appropriate, and as a vicar had been presented and in- 
ducted and had paid his hrst-fruits and tenths, it was resolved 
that it should be presumed that the vicarage was lawfully 
endowed for that " omnia praesumuntur solenniter esse acta," 
and it would be a dangerous precedent to examine the originals 
of impropriations of vicarages, for that "the originals of them in . 
time will perish." But where there was no evidence of an 
appropriation, only the fact of mere non-payment, no such 
presumption would exist \ It being held in 1821 that an 

1 32 Hen. VIII. c. 24. s Gwil., 158, 

2 Woolley V. Brownbill, M'Clel., ^ Norbury y. Meade, 3 Bligh, 211. 


appropriation before 1 5 Rich. II. or 4 Henry IV. should be shown, 
and that if a discharge from tithes was terminated by the dis- 
solution of the monasteries, the right of the rector revived. 
Even the possession of a deserted rectory, since the time of 
Henry YIII. by a layman's ancestors, together witli the receipt 
of tithes was not sufficient for an appropriation to the lay 
patron\ The right of the crown under the dissolving statutes 
remained and the tithes went to the parson presented by the 

Lay impropriators, as we have seen under the dissolving 
statutes, must still claim tithes under Spiritual or Ecclesiastical 
persons, and by them they have the same rights as if they were 
ecclesiastical persons. Thus tithes have most of the incidents 
of temporal inheritances. Chief among these is the power of 
alienation which gave rise to what are known as Parcellers of 
tithes. Parcellers are proprietors of certain portions or parcels 
of the tithes which originally formed part of a rectory. Like 
the rectories of the religious houses they were granted to 
lavmen by the king or his patentees, and since to others deriving 
title through them''. In Andrews v. Drever, where evidence was 
given of a grant from the crown in 1579 and of modern enjoy- 
ment of tithes, it was ruled that the jury might presume inter- 
mediate conveyances of the rectory between 1579 and a lease of 
tithes dated 1686. 

By the statute 4 Hen. IV. c. 12 we have already observed it 
was enacted that in every appropriated church there should be 
ordained a vicar convenably endowed. Exemptions from this 
statute were allowed for particular reasons; as for instance where 
from the ancient documents it appeared that a chapel had 
immemurially existed with rites of baptism, marriage and 
sepulture, and chaplains to administer the services. In these 
cases no vicar would be instituted and endowed, but on proof by 
usage that the chaplain received all the small tithes the endow- 
ment became a perpetual curacy'. Further by 29 Car. II. c. 8, 
impropriators are obliged to find such curates, and some portions 
of the tithes are settled on them\ 

I Macgill r. lie Strancre, Gwil., HVi. ^ Dent r. Hoh. 1 Y. and Coll. 1. 

'■! y Bli^'h N. S. 471 ; 2 liinj;. N. 11. 1. * lionscy r. Lee, 1 V. rii. 'i IT. 



After the Dissolution tithes first came into lay hands as a 
new species of property. They were granted to laymen and 
their heirs, or to them and the heirs of their bodies, or for a term 
of years, and so were hereditaments in which estates might be 
holden similar to others of a separate incorporeal nature, and 
became tenements within the statute De Donis Conditiona- 
libus (13 Ed. I. c. 1). Consequently the necessity of a new law 
to determine the character and attributes of this new property 
immediately arose. Most prominent was the question how 
were these estates to be conveyed. This was at once settled by 
an Act of Parliament passed in the year following that of the 
dissolution of the greater monasteries, which directed the same 
means for the conveyance of tithes as had been used for assur- 
ances of lands, tenements and other hereditaments \ Thus 
recoveries and fines of impropriate tithes and other lay ecclesias- 
tical possessions were suffered and levied in the same way as of 
lands, but in order to pass them tithes must be expressly named 
in such assurances^ They are thus a particular species of 
property, collateral to the land, but quite distinct from it, and a 
specific description is requisite to pass them in conveyances. 
Tithes are not therefore " appurtenant to land, " and a convey- 
ance of land and its appurtenances without mentioning tithes 
would leave the latter in the hands of the conveyor. And so it 
followed that prior to the Tithe Commutation Act the owner- 

1 32 Hen. VIII. c. 7, s. 7. N. C. 516 ; a.d. 183G. 

- Chapman v. Gatcombe, 2 Bing., 


ship of both land and tithe would not have the effect of merging 
the one into the other. Under the General Inclosure Act of 
41 Geo. III. c. 109, s. 6 \ tithes were held to be within the 
meaning of the word hereditaments, which latter was said to be 
peculiarly applicable. By the Inclosure Acts and some local 
ones, many of which have been passed in the last and present 
centuries, provisions for allotting to owners lay and ecclesiastical 
lands instead of tithes have been made, and even tithes of whole 
parishes have been commuted for fixed money payments. On 
account of their spiritual nature tithes cannot lie in tenure, and 
hence they do not pass by copy of court roll, nor will unity of 
possession extinguish them. For the same reason impropriate 
tithes descend according to the rules of common law; and thus 
in Doe d. Lushington v. Bishop of Llandaff it was held that 
ancient customs^ e.g. gavel-kind or borough-English, did not 
affect the descent of tithes, inasmuch as before the Dissolution 
no laymen were capable of tithes, and so there could be no 
ancient descent of them. 

From analogy with other forms of devisable property the 
same rules apply to tithes ; for instance, a man who is seised in 
fee may devise them as any other hereditaments ^ and the Wills 
Act of 7 Will. IV. and 1 Vict. c. 26 extends equally to them. 

By the common law churchmen who had been properly 
inducted into their benefices and who were seised in fee enjoyed 
as ample a power of leasing as those seised of temporal estates, 
provided the consent of certain parties had been previously 
obtained*. With regard to this latter a distinction existed 
between ecclesiastical corporations aggregate, where no consent 
was required^ and sole, where that of the patron and ordinary 
was necessary. This ability of leasing was altered first by what 
is known as the Enabling Statute 32 Hen. VIII. c. 28, where it 
was enacted that all leases for years or lives of any lands, 
tenements or other hereditaments by persons having an estate 
of inheritance in right of their churches shall be binding on 
their successors, provided certain requisites are observed. The 

1 Doe d. Watson r. Jefferson, 9 ' Rich v. Sanders, Styles, 2G1. 

Moore 200. * Co. T^itt. 11. 

-• 2 New Rep. 491. " Toller 24. 

Y. E. 3 


Act did not extend to parsons and vicars, for by s. 4 it is 
expressly declared that it should not enable them to lease their 
tithes or other possessions otherwise than they might have done 
before. Of the requisites to be observed the most important 
were, that the lease must begin from the making ; it must be 
either for 21 years or three lives, and of lands and tenements 
commonly letten for 20 years past and further the lease must be 
of corporeal hereditaments. By this last requisite such leases of 
tithes under this statute were made impossible, being as they 
were of an incorporeal nature. The provision however was 
dispensed with in 1765 by 5 Geo. III. c. 17. During the reign 
of Elizabeth there were several important statutes passed, not 
only with reference to leases of tithes \ but also with reference 
to compositions, to which latter we shall refer later. The first 
statute, generally known as the Disabling or Restraining Statute, 
1 Eliz. c. 19, prevented archbishops and bishops from making 
any leases or alienations of the possessions of their churches 
other than for the term of 21 years, or three lives, from such 
time as the lease, grant, or assurance shall begin, and without 
reserving the old or accustomed annual rent. But by a saving 
clause this statute did not extend to any grants made by bishops 
to the crown. By this clause the practice of exchanging im- 
propriated tithes for an equal value of episcopal lands was 
extensively carried out. Under Henry VIII. those courtiers 
who had received inferior monastic lands had been able to 
induce him to make exchanges with the existing episcopal 
estates. Elizabeth by this provision in the first Restraining 
Statute was authorized to take into her hands, on the voidance 
of any bishopric, so much of the lands belonging to it as should 
be equal in value to confiscated rectorial tithes belonging to 
the crown in that diocese, and to exchange such lands for the 
tithes. In this way large revenues from tithes came into the 
possession of bishops and cathedral chapters, whilst their 
original estates were distributed among the queen's favourites. 
This practice was effectually put a stop to by the 1 Jac. I. c. 3, 
which extended the original prohibition of 1 Eliz. c. 19 to 
grants and leases made to the crown, as well as to any of its 

1 5 Geo. in. c. 17. 


subjects. The second of the Restraining Statutes, viz. the 
13 Eliz. c. 10', makes void all leases, conveyances, &c. made by 
masters and fellows of colleges, deans and chapters, parsons and 
\dcars, of tithes, other than for the term of 21 years or three 
lives, and whereon the accustomed rent must be reserved. This 
statute was explained and enforced by 14 Eliz. cc. 11 — 14 ; 
18 Eliz. c. 11, and 43 Eliz. c. 29, the provisions of which how- 
ever refer more to corporeal property. They make all leases by 
the persons mentioned in 13 Eliz. c. 10 of their property, whereof 
any former lease is in being and not to be expired or surrendered 
Mdthin three years, void. Further, all bonds or covenants tending 
to frustrate the provisions of the first two Restraining Statutes 
are likewise void. It was held in the year 1605^ that leases void 
under them were so only as against successors, but remained 
binding during the life of the grantor. Again, a lease of tithes 
only for three lives rendering the ancient rent was held void, 
inasmuch as there was no remedy for the rent by distress or 
assize. "For tithes lie in prender." This rule of law was 
ultimately altered by a statute passed early in George III.'s 
reign'. Under it such leases for one, two, or three lives were 
made effectual against the lessors and their successors, and an 
action of debt against the lessee was given in case the reserved 
rent became in arrear. It must be observed that as parsons 
and vicars had not their leasing powers by the Enabling 
Statute neither were they restrained till the .statutes of Eliza- 
beth, but from henceforth* they were restrained from making 
any leases or grants other than for 21 years, or three lives with 
the proper qualifications, yet, such leases must be confirmed by 
the patron and ordinary because excepted in the Enabling Act, 
and because by the common law they never could bind their 
successors mthout such confirmation. Nor do they relate to 
rectories and tithes which have come into the hands of laymen. 
The impropriator in fee might lease his Avhole rectory or a part 
of it — as the tithes of a particular farm — without restraint. At 
common law no action for debt would lie against a tenant for 

1 S. 3. o Geo. III. c. 17. 

2 Finch'B case, 2 Leon 138. * Wood's hint. 271. 
- Talentine v. Denton, Cro. Jac. Ill; 



life or years for any arrears of rent, but by a statute of Anne* an 
action for debt was given to any person having rent in arrear in 
the same manner as if such rent were reserved upon a lease for 
years. It having been held that tithes are incorporeal heredi- 
taments and lying in grant it folloAvs that a lease of them must 
be by deed ; and further by the Statute of Frauds^ all greater 
interests in lands and hereditaments than for a term of three 
years must be created in writing. 

Other provisions of the Restraining Statutes show still 
further the great zeal of Elizabeth for the thorough reformation 
of abuses in the Church. It had become common for patrons 
to present to their livings incumbents who would be glad to get 
hold of them on any terms. Grants of rent-charges and demises 
of glebe, &c. were made by such incumbents to secure annuities 
for the patrons who had presented them. By 13 Eliz. c. 20, 
ecclesiastical persons who had the cure of souls were restrained 
from charging their benefices so as to render them liable to the 
payment of pension or profit out of them, even in their own 
time. Instruments framed as leases but really amounting to a 
charge have been held void under this statute ^ and so too not 
only a direct charge but an agreement to charge a living falls 
under the same consideration. ^By the 43 Geo. III. c. 84, s. 10, 
the 13 Eliz. c. 20 was wholly repealed, and so the clergy were 
under no restraint as to charging their benefices by mortgage 
or warrant of attorney. This Act was however repealed in its 
turn 14 years- later by 57 Geo. III. c. 99, and the old Act of 
Elizabeth came again into operation, or at least that part of it 
relating to the charging of livings. Between the times of the 
two Acts^ of Geo. III. grants of tithes to a trustee for securing 
annuities were held to pass the legal estate ; and even when a 
vicar covenanted in case of an exchange of livings to transfer 
the charge to the new one^ but did not execute the deed till 

1 8 Anne, c. 14, s. 4. Geo. III. c. 99 (10th July, 1817) are 

- 29 Car. II. c. 3. valid, but all made previously to 7 July, 

s Shaw V. Pritchard 10 B. and C. 1803, and after 10 July, 1817, are void. 

241 ; Newland r.Walkin, 9 Bing. 113 ; ^ Doe d. Coates v. Somerville, 6 B. 

Alchin V. Hopkins, 1 Bing. N. S. 99. and C. 126. 

* Charges on benefices between 43 ^ Metcalfe ik Archbishop of York, 

Geo. III. c. 84 (7th July, 1803) and 57 6 Sim. 224. 


after the revival of 13 Eliz. c. 20, the court held that the 
covenant was a subsisting charge on the new living. A similar 
statute to 13 Eliz. c. 20^ was passed in the reign of Charles I., 
which extended its provisions to Ireland. 

This statute of Elizabeth is important, not only as it put a 
stop to the charging of benefices but also as it was the means of 
compelling incumbents to reside in their parishes. The absence 
of the clergy had been a scandal in the time of Henry VIII., 
who had himself endeavoured to put a stop to the practice. 
There are three Acts of Parliament which were passed during 
this period with the same object : 
(^) 21 Henry VIII. c. 13. 

(B) 13 Elizabeth, c. 20. 

(C) 18 Elizabeth, c. 11, s. 7. 

By (A) non-residence was punished by a fine of £10 for 
each offence, half to go to the king and half to the informer. 

By (B) a year's profit of the living was confiscated by the 
bishop, who was to distribute it amongst the poor of the 

By (C) further means of enforcing the same penalty were 
provided. The bishop was to sequester the living, and if he 
did not do so each individual parishioner might withhold his 
tithes. The period which constituted non-residence was eighty 
days in one year. 

The powers of alienation possessed by incumbents remained 
much the same from the time of the Restraining Statutes to 
the reign of William IV. There were, it is true, a number of 
enactments dealing with the subject during this interval, but 
these were more or less partial relaxations, enabling ecclesiastics 
and other corporations to make for certain purposes certain 
dispositions of their property. But during the reign of William 
IV., so fertile a period for the remodelling and expansion of 
English law, more general legislation commenced. By 6 and 7 
William IV. c. 20, restrictions are made against the renewal of 
leases, and certain intervals made to elapse after the expiration 
of the old ones. However, by the 4th section of the Act 
ecclesiastical persons may grant certain leases conformable to 

1 10 and 11 Car. I. c. 2. s. 7. 


the usual practice, and the practice must be shown by the 
certificate of the archbishop of the province and the bishop of 
the diocese. Following this statute come 5 and 6 Victoria, cc. 
27 and 108, which enable incumbents to demise their lands and 
corporations to grant building leases. The 14 and 15 Vic. 
c. 104, which is an Act for the better management of ecclesias- 
tical and capitular estates, and does not include colleges, rectors 
or vicars, provides for the sale to their lessees of the reversion 
of their estates, provided the approval of the Ecclesiastical 
Commissioners is first obtained. Further provisions for leasing 
were contained in the Ecclesiastical Leasing Act, 1 858 \ and the 
set of enactments was finally brought to a close by 24 and 25 
Vict. c. 105 (amended by 25 and 26 Vict. c. 52), which declares 
it unlawful — even where customs exist — for any prebendary 
(not of a cathedral or collegiate church), rector, vicar, or 
perpetual curate who, after the passing of the Act, is possessed 
or entitled to any manors, lands, tenements, or hereditaments 
to lease or grant out the same by copy of court roll in any 
other way than is authorized by the provisions of the afore- 
mentioned statutes^. 

1 21 and 22 Vict. c. 57. U and 15 Vict. c. 104 ; 21 and 22 

2 5 and 6 Vict. cc. 27 and 108 ; Vict. c. 57, and 23 and 24 Vict. c. 124. 



The general substantive law of Tithe rcinaiued uiul4i the 
same during the two centuries and a quarter that elapsed 
after the reign of queen Elizabeth. In the prolific period of 
legislation embraced in the fourth decade of the present century, 
this law was placed upon an entirely different footing to what 
it had been in the preceding ages. " ^The institution of Tithes 
though venerable from its Scriptural origin and its antiquity, 
and though entitled, as far as the principle of making a 
competent provision for the ministers of religion is concerned, 
to universal approbation, is nevertheless in its specific form 
odious to the people, and unsatisfactory to the political econo- 
mist ^ A tax, consisting of a fixed proportion of the gross 
produce, is open to this objection ; that it takes advantage of 
increased fertility; while it makes no allowance for increased 
expenditure ; and thus tends to check the spirit of agricultural 
improvement. It is obvious, too, that the produce of the soil 
cannot be collected in kind without much waste and expense to 
the tithe-owner ; nor without danger of engendering animosities 
between him and his flock. It is, however, on the other hand 
of not less manifest importance to the Church that the legal 
provision for its members should be such as to secure to them 
upon some steady basis a competent portion of the necessaries 
of life, and to make them independent of any fluctuations in 
the value of money. It is therefore with great wisdom that 

1 Blackstonc, Vol. iii. p. 90. Smith's Wailtli of Nations, iii. p. 274. 

» Paley's Moral Phil. Vol. ii. p. 40G; 


Parliament has lately consented to the adoption of a plan for 
commuting the tithes of every parish into a rent-charge, the 
amount of which is to be adjusted annually according to the 
average price of corn." We may add that the agricultural 
depression during the four years previous to 1836, and the 
growing discontent of the agricultural tithe-payer, greatly added 
to the manifest necessity for some radical change in the then 
existing law. Several statesmen attempted the task of solving 
this problem, notably Lord Althorpe in 1833 and 1834, and 
Sir Robert Peel in 1835, the principle of whose Bill was that 
there should be a fixed money payment in the shape of a corn 
rent, in lieu of tithes, varying yearly according to the price of 
the corns, wheat, barley, and oats, and that it should be a 
voluntary arrangement between the tithe-owner and the tithe- 
payer. Three commissioners were to be appointed to carry out 
the Act. Within a month after the introduction of this Bill, 
the Government went out of office, but the subject was imme- 
diately taken up by its successor. Lord John Russell, who intro- 
duced the new Bill, adopted the main principles of Sir Robert 
Peel's plan'. A board of commissioners was established under 
the title of " The Tithe Commissioners for England and Wales ^" 
which board had entire conduct of the Act. The commissioners, 
or assistant-commissioners whom they might appoint, had the 
power of examining witnesses and calling for documents, a 
refusal to give evidence being made a misdemeanour. The 
commutation was to be effected in one of two ways^ : 

(A) either by a voluntary agreement entered into by a 
certain proportion of the parties interested and confirmed 
by the commissioners*, 

(B) or by the compulsory award of the commissioners. 

As regards the former the agreement of two-thirds of the 
landowners and tithe-owners, and as to what sum should be 
paid as a commutation of the small and great tithes of the 
parish^, was made to bind the whole of the parish. By 2 and 3 
Vict. c. 62, s. 8, such an agreement might be rectified on the 

1 6 and 7 Will. IV. c. 71. * Ss. 17 aud '27. 

2 S. 2. 5 s. 37. 

3 S. 93. 


ground of fraud ; and in 1842 it was decided by the Master of 
the Rolls of the time being that though under s. 66 the award 
of the commissioners was final, a claim to a portion of the rent- 
charge, the right to which qua tithes had been by accident 
forgotten until after the agreement was made*, might be 
established in the court. Valuers of the tithes of a parish were 
to be appointed, who had power to enter on the lands in order 
to effect the valuation". 

As regards the second way, if no agreement were come to 
after Oct. 1st, 1838, the commissioners were to. take as the 
basis of their commutation (but with power in certain cases to 
depart from it to a certain extent), the clear average value 
of the tithes of the parish^ — or of the composition payable in 
lieu of them, wherever they had been compounded — for the 
period of seven years ending Christmas 183o. After the value 
of the tithes has been so voluntarily agreed on* or awarded by 
the commissioners, and disputes as to modus^ &c. settled, the 
commissioners were to prepare a draft, stating the sum ascer- 
tained, and this amount was to be the total rent-charge*^ payable 
in respect of the tithes of that parish, and afterwards was to be 
apportioned among the lands of the parish', having regard to 
their average titheable produce and productive quality. The 
lands are afterwards absolutely discharged from the payment of 
all tithes, and instead subject to their portion of the rent- 
charge®, which is payable to the former tithe-owner in two half- 
yearly payments. The amount of these payments is to fluctuate 
according to the price of corn, which is determined as follows : 

Immediately after the passing of the Act, and also in 
January every year^ an advertisement shall be inserted, by the 
Controller of corn returns, in the Londuii Gazette, stating the 
average price of wheat, barley, and oats for the seven years 
ending on Thursday before Christmas-day then next preceding. 
By 5 and 6 Vict. c. 14, weekly returns of the purchases and 

J Clarke v. Yonge, Rolls, 22 July ' S. 46. 

1842, M. S. « S. 50. 

■^ S. 34. ' Ss. 33, 54. 

8 S. 37. 8 S. 67. 

* S. 50. » S. 56. 


sales of British corn are to be made in the different cities and 
towns mentioned there. 

Every rent-charge is to be deemed of equal value of so 
many bushels of the three corns in equal quantities as would 
have been competent to be purchased according to the prices 
inserted in the aforesaid advertisement. 

By section 80 of the Act any tenant paying the rent-charge 
" shall he entitled to deduct the amount thereof from the rent 
payable by him to the landlord, and shall be allowed the same 
in account with his landlord." It was evidently the intention 
of the Legislature that payment of the rent-charge should be 
made by the landlord, but in consequence of the wording of the 
clause this seldom takes place. The general practice is that 
the farmer in his lease or agreement agrees to pay the tithes 
himself to the tithe-owner, and the rent is computed accordingly. 
It therefore follows that the tenant pays the tithes for the 
landlord. If he should take the farm without making any 
such agreement the 80th section would come into force. Legis- 
lation was recently attempted to enforce the spirit of the 
Commutation Act, but the Bill fell in the slaughter of the 
innocents at the end of last session \ 

The power of Distraint to recover arrears of rent-charge 
given to the tithe-owner by the 81st section of the Act*^ 
introduces the anomaly that though the charge itself comes out 
of the landlord's pocket, yet the tithe-owner cannot bring an 
action against him for arrears. He has to go on the land itself, 
and in this way the tenant has virtually two landlords. This 
power was granted to the tithe-owner in consideration of the 
fact that landlords being often absent it would be very difficult 

1 A Bill has been introduced into the 
House of Lords this session (1888) by 
Lord Salisbury, but it is to be in effect 
only prospective and not retrospective. 
The second section after reciting section 
80 of the Commutation Act declares 
it expedient to make that enactment 
compulsory as regards all future con- 
tracts. It is to have full effect not- 
withstanding any contract to the con- 

trary, and any such contract made 
after the passing shall as far as it is 
contrary be void. Nothing in the Act 
is to affect the rights and liabilities of 
the owner and occupier of lands as 
between themselves under any existing 
contract. What the fate of the Bill 
will be remains yet to be seen. 
2 6 and 7 Will. IV. c. 71. 


in many cases to obtain the rent-charge Irom them. It will be 
observed that now the tithe has become a direct charge upon 
the land itself. The old definition is done away with, and tithe 
is no longer a part of the increase or produce of the land. The 
rent-charges are subject to all the rates and taxes to which the 
tithes before commutation had been subject \ The occupier in 
case he pays them may deduct the amount from the rent due 
next to the landlord, and the latter may recover that amount 
from the tithe-owner. But by a later Act^ the rates may be 
assessed upon the owner of the rent-charge, and the whole or 
any part may be recovered from any one or more of the 
occupiers of the land in case they have not been sooner paid by 
the tithe-owner. To what rates and taxes were tithes formerly 
liable ? They were certainly rateable to the poor as early as 
the first real Poor-law statute of 1601 ^ where we read "to 
raise weekly or otherwise by taxation of every inhabitant, 
parson, vicar, and other, and of every occupier of lands, houses, 
tithes impropriate, propriations of tithes, coal-mines, or sale- 
able underwoods in the said parish .... to be gathered out 
of the same parish, according to the ability of the same 

In the year 1798 the land-tax was made perpetual, but pro- 
visions for its redemption by the payment of a lump sum were 
contained in the Act\ Tithes were here expressly enumerated 
amongst the i^eal estates upon which the tax was directed to be 
charged. It will be remembered that this form of direct taxa- 
tion was reintroduced shortly after the Revolution in 1690, in 
the shape of an annual grant of about Ss. in the pound. A 
large portion of the land-tax of 1798 remains unredeemed and 
is annually paid to this day. Hence we find tithes, or rather 
the rent-charge in some parishes, still liable, where in the 
adjoining parish the tax has been redeemed. 

The General Highway Act passed in the year 1773 enume- 
rates the "occupier of tithes" as one upon whom the assessment 
is to be made^ The more modern Highway Acts have however 

1 Ss. 69, 70. * 38 Geo. III. c. 5. 

2 7 Will. IV. and 1 Vict. c. 69, s. 58. " l:i (icu. III. c. 73, s. 45 ; 5 and 6 

3 43 Eliz. c. 2. Will. IV. c. 50. 


adopted the plan of levying the rates on all property liable for 
the relief of the poor. 

By immemorial custom the chancel of a church is repaired 
by the rector or impropriator \; but it does not seem that an 
impropriate rectory, having been made a lay fee by the 
statutes of Henry VIII., can be sequestered by the ordinary for 
the repair of the chancel. The parishioners were liable for the 
repair of the body of the church, and for this purpose church- 
rates used to be levied. Rectorial property was always ex- 
empted from paying them, and vicars were not charged for their 
tithes or glebe in a parish, because out of them they were 
bound to repair the chancel. Tithes, however, have been held 
liable for a church-rate under the general words of an Act of 

The Commutation Act further enacts that the incumbent — 
and note this does not apply to lay owners — may receive 20 
acres in lieu of his rent-charge, the lands of the parish being 
then exempted. An agreement for such exchange requires the 
consent of the patron and the confirmation of the commis- 
sioners ^ 

We have already observed that under the old law tithes 
existed separate and distinct from the land, and that ownership 
of both in the same person would not have the effect of merging 
the one into the other. By the Commutation Acts^ provision 
is made for the merger of the tithes or rent-charge in the land, 
by which the tithes or rent-charge may at once be made to 
cease whenever both land and tithes or rent-charge belong to 
the same person. In the year 1838* the class of persons who 
had the power to merge their tithes, and which had been 
restricted to tenants in fee simple and in tail, was extended to 
those who had powers of appointment over the fee simple; and 
in cases where tithes and the lands charged with them are 
settled to the same uses, the tenant for life may cause them to 
merge in the land^ By section 4 of the same Act it was 

1 2 Inst. 489. and 2 Vict. c. 64 ; 2 and 3 Vict. c. 62, 

2 6 and 7 Will. IV. c. 71, ss. 29, 62, s. 1 ; 9 and 10 Vict. c. 73, s. 19. 
68 ; 2 and 3 Vict. c. 62, ss. 19, 20, 21 ; M and 2 Vict. c. 64, s. 1. 
and 5 and 6 Vict. c. 54, ss. 6, 7. ^ S. 3. 

» 6 and 7 Will. IV. c. 71, s. 71 ; 1 


enacted that tithes could be merged in lands of copyhold tenure, 
doubts having been felt as to whether the Act of 1S3G applied 
to the latter. In actual practice this merger of tithes was 
found to be hindered in a number of cases by the existence of 
incumbrances on the tithes proposed to be merged. This 
difficulty was removed by the second Tithe Amendment Act' 
which made any legal charge on the tithes the first charge on 
the lands in which the tithes were merged", and the same 
remedies were given against the lands as existed previously to 
the merger. 

Finally, we may remark that the Commutation Acts provide 
for the preservation in the substituted rent-charge of any 
interest which existed previously in the tithe, and that every 
estate in the rent-charge shall be liable to the same incidents 
as a like estate in the commuted tithe. Lands previously 
exempted from the payment of tithes for any reason arc still to 
remain exempted from the rent-charge. The Tithe Acts were 
regarded by their promoters as a final settlement of the mani- 
fest evils of the old system. The fifty years or so that have 
passed since their introduction show but slight prospect of the 
fulfilment of these wishes. A number of Amendment Acts 
have been passed, chiefly dealing with the alteration of the 
apportionments and for the redemption of the rent-charges 
alter apportionment. 9 and 10 Vict. c. 73, s. .■) provides for the 
redemption of such charges where they do not amount to more 
than 205. by the payment of consideration money, not less than 
24 times the amount of the rent-charge, which is to be paid to 
the Governors of Queen Anne's Boimty. And in 1878 a further 
Amendment Act was passed providing for the redemption of 
the rent-charge at 25 years' purchase in cases where land is 
taken for the building of places of worship, cemeteries, erection 
of elementary schools, or public buildings generally, including 
improvements under the Artisans' Dwelling Act, 1875, or under 
the Sanitary Acts. Orders for the redemption must, however, 
have been made by the Tithe Commissioners to whom the 
money is to be paid. By s. 4, where the rent-charge exceeds 
20.S. the commissioners may, upon the joint a|)plication of laud- 
1 2 ami 3 Vict. c. 62, b. G. ^ ibid. s. 1. 


owners and tenants, order its redemption at 25 years' purchase, 
provided the consent of the bishop and patron has been ob- 
tained, in ease the person is entitled thereto by right of any 
benefice. The same means of redemption are provided where 
the land is cut up for building purposes \ These numerous 
attempts of settling the tithe difficulty by processes of redemp- 
tion, &c., have not met with much success, and the problem has 
still to be solved by our statesmen. Active agitations are 
already spreading over the country for a change in the law, and 
more particularly in Wales, where the common cry is now that 
the tithes are the property of the nation and should be applied 
to national purposes. The Commutation Acts themselves con- 
tain the seeds of their own disparagement, not the least of 
which we shall see when we come to discuss what is known as 
the Extraordinary Tithe. 

1 S. 5. 



Before proceeding to discuss the history of the machinery 
by means of which the payment of tithes was enforced, it may 
be well to sketch briefly the gradual extension of the tithing 
system to all subjects until we come to the definition of tithe as 
"the tenth part of the increase yearly arising and renewing 
from the profits of lands, the stock upon lands and the personal 
industry of the inhabitants." This is Blackstone's definition*; 
but in the older law books are these additional words, "and 
payable for the maintenance of the parish priest by every one 
who has things titheable if he cannot show a special exemption V 

As early as the end of the 9th century it was established 
that corn, grain, hay and cattle are subjects upon which tithes 
of their increase must be paid. At a council of bishops held by 
Athelstan, king of all England, about the year 925 ^ the king's 
reeves are directed to pay tithes of " yearly increase " and 
" living cattle." In the laws attributed to Ethelred, but which 
appear to have been compiled in the Norman period, we have, 
" Tithings of crops and of calves and of lambs " (Decimationes 
Frugum et Vitulorum et Agnorum), but the first list of any 
importance or length is in the collection of the laws, rights, and 
customs of his new subjects made by William I., and generally 
known as the laws of Edward the Confessor. Wo give the list 
ill full, as it shows how in course of time, and especially during 
this period, the tithing system was enormously extended. " The 

' Vol. III. p. 80. •' Selden, 214. 

2 Wood's Imtit. IGl. 


tenth trave of all the yearly produce is due to God and there- 
fore ought to be paid. And if any one had a herd of mares let 
him render the tenth foal. He who has had one mare or two 
for each single foal let him give a penny. Likewise he who 
had several cows, the tenth calf He who has one or two for 
each single calf a single half-penny. And he who has made 
cheese let him give to God the tenth. But if he has not made 
cheese let him give the milk on the tenth day. Likewise the 
tenth lamb, the tenth fleece, the tenth cheese, the tenth churn- 
ing and the tenth porker, and from bees also the tithe as con- 
venient\" (De omni annona, Decima garba Deo debita est et 
ideo reddenda. Et si quis gregem equarum habuerit, pullum 
reddat Decimum. Qui unam vel duas habuerit de singulis 
pullis singulos denarios. Similiter qui vaccas plures habuerit, 
Decimum vitulum. Qui unam vel duas, de vitulis singulis 
obolos singulos. Et qui caseum fecerit, det Deo Decimum. Si 
vero non fecerit lac decima die. Similiter agnum Decimum, 
vellus Decimum, caseum Decimum, butyrum Decimum, por- 
cellum Decimum. De apibus vero similiter Decima commodi.) 
The Councils held during the times of the early Plantagenets — 
some of which we have already noticed — appear to have taken 
this list as the foundation of their demands. Li 1175, after the 
receipt of the epistles from Pope Alexander IIL, a Provincial 
Synod was held, at which trees and wool were added. The 
number of such synods, held in the succeeding years, shows 
that, though the object of the Church was to make every 
substance liable for tithes, its consummation was very difficult. 
The next important canon, and in fact the most important of 
them all, was that passed in the year 1295. The synod was 
held in London, and presided over by Archbishop Winchelsey. 
We see in it the first real distinction between praedial and 
personal tithes, though it had existed in the reign of Richard I. 
The object of the canon was to settle one uniform custom in 
tithing and to prevent the scandal that arose from quarrels 
between parsons and their parishioners. It orders''' that tithes 
were to be paid on the gross value of all crops from the ground, 
from trees, herbs and hay; on the produce of animals, lambs 

1 Selden, 225. = Selden, pp. 233—6. 


and wool. Expenses Avere not to be deducted. For six lambs 
or under six halfpennies were to be paid, but if there were more 
than seven, the seventh lamb was to be given to the rector, " who 
shall pay three half-pence by way of recompcnce to that 
parishioner from whom he has received that tenth " (qui tres 
obolos in recompensationem solvat parrochiano a (juo decimum 
ilium recepit). And so on for the eighth lamb ten halfpennies. 
Again, if sheep were fed in one place in winter and in another 
in summer, the tithe was to be divided, so if they were bought 
or sold in the middle of the time, and it was known from which 
parish they came, thb tithe was to be divided : if it were not 
known, the Church should have the tithe in which parish the 
shearing took place. Tithing of milk and cheese was regulated 
and so was that of agistment or pasturage. Mills, bees, fisheries, 
&c., were also included. As regards personal tithes we may 
quote the canon as being one of the first in which they are 
strictly ordered to be paid as such. " We decree also that per- 
sonal tithes be paid by artificers and merchants for instance 
from the profit of any business. Likewise by carpenters, smiths, 
plasterers, weavers and by all other workmen working for wages, 
to wit, to give a tenth of their wages, unless the workmen 
themselves prefer to give something definite towards the work 
and light of the church if it be satisfactory to the rector of that 
church " (Statuimus etiam quod decimae personales solvantur 
de artificibus et mercatoribus scilicet de lucro negociationis. 
Similiter de carpentariis, fabris, cementariis, textoribus, et 
omnibus aliis operariis stipondariis ut videlicet dent decimas 
de stipendiis suis nisi stipendarii ipsi aliquid certum velint 
dare ad opus vol ad lumen Ecclesiae si rcctori ipsius Eccle- 
siae placuerit). Personal tithes were thus to be paid only 
of the profits, that is, after all necessary expenses had been 
deducted. In these Councils to which wc have referred it must 
be remembered that laymen had no place, conseciuently in these 
Middle Ages, as the power of the Church increased, so did the 
list of titheable matters. Laymen paid because they were 
coerced into paying by the anathemas of the Church, but as 
was natural, sooner or later, the latter was sure to over-ride the 
mark. This occurred when in 1344 a canon was passed at a 
Y. E. 4 


Synod held under Archbishop Stratford at which was decided 
what wood was titheable as silva caedua. It had not been 
disputed that tithes of silva caedua were payable, but the 
question was, what wood came under that description. This 
Council defines silva caedua as wood of every description which, 
after the tree has been cut, grows from the root^ (quae etinam 
succisae rursus ex stirpibus aut radicibus renascitur). This 
rule which practically made all wood titheable — except timber 
trees growing from seed and perhaps fir-trees, for the clergy do 
not appear to have ever claimed tithes of those, — was hotly 
opposed by the commons. In the Parliament that was being 
then held they petitioned against the rule on the ground that 
such tithe was not due by custom. An evasive answer was given 
to this petition and also to a similar one presented in the follow- 
ing year. From another, presented three years later in 21 Ed. III., 
it seems the claim of the clergy had been reduced to iinder wood. 
The matter however remained in dispute till 1372, when the 
Commons succeeded in limiting the power of the Canon. By 
the Statute known as Silva Caedua^ it was enacted that tithe 
should not be exacted of great trees, i.e. those of 20 or.more years' 
growth, and that should a suit be brought in any spiritual court a 
prohibition should be granted. No claim — it must be remem- 
bered — was ever made for tithes of timber growing from seed, so 
that the construction of the Statute is that no tithes should be 
payable for timber trees growing from the stools or roots of cut 
trees which were more than 20 years old. There seems to have 
been much dispute in later times as to whether timber-trees grow- 
ing from old stools, whatever their age, were exempted by the 
Statute or not^; but in Lozon v. Pryse, Lord Cottenham in 1840, 
after examining all the authorities, came to the conclusion that 
trees of the growth of 20 years or upwards sprung from the roots 
or stools of old trees formerly cut down are within 4i3 Ed. III. c. 
3, and therefore not titheable. In a case decided in 1825, viz., 
Evans v. Rowe, the Chief Baron and two barons had no doubt 
that this was the true construction had the question been 
unfettered by decision, but that a current of decisions in favour 

1 Selden, 237. ■' Evans v. Eowe, M'Clel. and Y. 577. 

"' 45 Ed. III. c. 3. 


of the contrary made it their dut}- to follow suit. The}^ relied 
chiefly on Bibyc v. Huxley decided in 1725', and Chichester v. 
Sheldon decided in 1823^ two years previously. The Lord 
Chancellor in Lozon v. Pryse having carefully reviewed the 
above cases said', " I am now called upon to consider whether I 
am bound to follow the same course. I say bound because with 
the opinion I have formed of the original right under the 
Statute and the subsequent exposition of the law and the 
practice under it for above four centuries, nothing but feeling 
bound by the principles and rules upon which Courts of Justice 
have thought it right to act upon similar questions of discretion, 
could induce me to aid in perpetuating what I believe to be an 
error productive of the greatest injury and injustice * * * * I 
am therefore satisfied that I am at liberty to act upon the 
opinion of the law which, after a laborious examination of all 
the authorities, I have formed, and that the decisions are not 
such as to make it my duty to hold against the positive enact- 
ments of 45 Ed. III. that any gros bois or timber trees above 
20 years' growth are liable to tithe." As regards other kinds of 
wood, e.g. pollards, apple-trees, wood in hedge-rows, hop-poles, 
&c., the cases have decided whether and in what way they are 

By the 41st section of the Commutation Acf* where any lands 
of a parish are coppices the Commissioners on notice by the 
land-owner or tithe-owner shall estimate the value of the tithes, 
having regard to the average value of the coppice-wood of the 
same kind cut during the 7 years preceding Christmas 1835 in 
that parish and the neighbouring parishes. The value so found 
was to be added to that of the other tithes of the parish 
ascertained in the manner explained before. 

Agistment is a subject about which there is much un- 
certainty and doubt in the early cases. In the old books'' it is 
defined as the pasturing of other men's cattle at a rate of so 
much a week, and is called so because they are suffered (/iser 
(jacere to lie down). In its legal sense Agisting means the de- 

' Gwil. G.57. ■• G and 7 Will. IV. o. 71. s. 41. 

■^ .3 E. and Y. 1245. » 2 List. C43. 

" M. and Cr. COO. 



pasturing of the occupier of the laud as well as that of a 
stranger. Tithes are due for the agistment on lands that have 
paid no tithes that year. If the pasture is used by unprofitable 
cattle, i.e. such as are not profitable to the parson through their 
milk, labour, &c. a tenth part of the value of the land was due, 
or at a rate of 2s. in the £. This is not a yearly charge, but 
only at that rate during the actual time of agistment. 

A great number of cases have been decided on the subject 
of agistment tithe, e.g. whether it is due for sheep agisted in 
the parish after shearing time and sold in the winter, although 
tithe of the wool has already been paid. 

Agistment tithe was long neglected, and not till the begin- 
ning of the present century generally demanded in the North 
of England. It was not till the early part of last century that 
the Courts held that agistment tithe was a small tithe, and so 
a grant to lay impropriators of tithes, not only of grain and hay, 
but also of herbage, did not prevent a vicar making out his 
title to agistment tithe in the year 1816 by showing that he 
alone had taken the other small tithes, although the former had 
not till lately been received or demanded by him or his 

Hops appear to have been introduced into this country 
about the time of the later Angevin kings. They certainly 
are mentioned in a statute of Henry VIII. and they do not seem 
to have been cultivated to any extent before the reign of 
Elizabeth. It was formerly a matter of much controversy as to 
how hops were to be tithed, whether by the hill, the pole, or 
the bushel. Lord Chief Justice Rolle tells us they ought not 
to be tithed before dried, but now it is decided that their tithes 
are to be set out by every 10th bushel after the picking and 
before they are dried. 

The 40th and 41st sections of the Commutation Act make 
special provisions for the substitution of the rent-charge, and 
for the charge of culture of hop grounds and market gardens. 
The 42nd section establishes an extraordinary rent-charge 
calculated on each acre, in addition to the ordinai^y rent-charge 
on hop grounds, orchards, and market gardens brought into new 
cultivation. The history of this unfortunate section is some- 


what as follows. After the introduction of the bill and before 
its second reading, "a deputation of Middlesex market gardeners 
waited upon Lord John Russell, and pointed out that they had 
expended a large amount of capital on the improvement of 
their market gardens for the last seven years, and that if they 
had to pay a rent-charge on the average of those years they 
would be liable to a heavy annual amount, whilst owners or 
occupiers of neighbouring land having only a small tithe 
composition to pay would transform their lands into gardens 
and thus come into competition with them, which .would finally 
result in their ruin\" This argument had the desired effect, 
and in consequence the very principle upon which the Act was 
passed was violated, and incessant disputes have been the 
result. It was provided that the amount to be charged on hop 
grounds and market gardens was to be divided into an orcUnar']/ 
and extraordinary charge per acre ; grounds ceasing to be so 
cultivated were to be liable only to the ordinary charge, and 
newly cultivated grounds to become liable to the extra-ordinary 
charge, but this additional charge was not to be due on the 
first year of cultivation, and only half of it on the second. In 
1839^ an Act was passed which extended the extraordinary 
tithe system to orchards and fruit plantations, but it should 
only apply to parishes where such charge was distinguished at 
the time of commutation^ On grounds ceasing to be cultivated 
for hops, market gardens, and orchards the extraordinary charge 
was to cease. In mixed plantations of hops and fruit trees two 
extraordinary charges were not to be paid, but the higher of the 
two for the time being was to be paid*. In the year 1873 
market gardens were put upon the same footing as orchards 
under 2 and 3 Vict. c. 62, s. 27. The vicar of a Cornish parish 
had endeavoured to enforce payment of an extraordinary charge 
of Is. 6d per acre on 213 acres brought into new cultivation. 
This gave rise to an outburst of indignation which resulted in 
the passing of the Market Gardens Act (30 and 37 Vict. e. 42) 
as explained above. Ever since the passing of the first Com- 
mutation Act this extraordinary rent-charge has been a fruitful 

1 Clarke, IIU. of Tithes, p. 125. » S. 27. 

2 2 an J -A Vict. c. 02, s. 20. •» S. 29. 


source of discontent. It is bad in principle and should be 
abolished. An attempt was made last year (1886) to deal with 
the subject when the Extraordinary Tithe Kedemption Act was 
passed \ It does not appear to have had the successful results 
which were hoped for from it. It enacts that no extraordinary 
charge shall be charged or levied after the passing of the Act 
on any hop ground, orchard, fruit plantation, or market garden, 
newly cultivated as such under the Tithe Commutation Acts. 
Power is given to the Land Commissioners to fix the capital 
value of the extra charge payable on each farm or parcel of 
land at the date of the passing of the Act. The 3rd section 
indicates the manner in which the capital value is to be 
ascertained. The land is then to be charged with the payment 
of an annual rent-charge equal to 4 per cent, on the capitalised 
value of the extraordinary charge. This rent-charge is made 
payable half-yearly and on the days on which the former one 
was. Arrears are recoverable in the High Courts of Justice, or 
County Courts, or in the same way as the ordinary rent-charge 
is recoverable. The new charge is not subject to any parochial, 
county, or other rate, and it may be redeemed by the owner or 
other person interested in any land subject to it. Such 
redemption money must be paid to the Governors of Queen 
Anne's Bounty to be applied for the benefit of the incumbent 
if the owner be the incumbent of a benefice. Should a tenant 
have contracted before the passing of the Act to pay the extra- 
ordinary rent-charge to the tithe owner he shall do so no longer, 
but shall pay to the landlord during his tenancy the rent- 
charge substituted for the extraordinary charge. The landlord 
is thus made liable to the owner notwithstanding any previous 
agreement. The Ecclesiastical Commissioners are empowered 
to adjust the fixed charges made before the passing of the Act 
on the income of benefices in receipt of extraordinary tithes in 
favour of other benefices, or of district churches or chapelries 
within the parishes of which the incumbents are in receipt of 
extraordinary tithes. Mr Clarke, in his History of Tithes\ 
states that there are rumours that the above Act is so unsatis- 
factory that it will have to be repealed. Of the other titheable 
1 49 and 50 Vict. c. 54. " p. 129. 


subjects which with the above were liable to praedial tithe, 
either by custom or at Common Law, it is needless to com- 
ment. Numberless cases fill the text books which arc only 
interesting as showing the gradual extension of the tithing 
system till we arrive at the definition of tithe with which this 
chapter opened, viz. the tenth part of the increase yearly 
arising from the profits of lands, or of the stocks upon lands. 
These subjects roughly include hemp, flax, and madder ; milk, 
eggs, wool, and the young of animals ; fowls &c., and newly 
introduced products of agriculture, as turnips and potatoes. 
The original annexation of many of the former of these 
subjects to the list of titheable matters we have already shown 
in the Canons of the different Councils held during the 
Angevin rule. 

We have already noted that in the copy of the Laws of 
Edward the Confessor tithes are said to be payable of mills 
and fish. Later in the reign of Henry II. a Pontifical 
Decree was sent by Pope Alexander III. (circ. 1170) to 
all the bishops commanding them " to compel all men under 
penalty of excommunication that from the produce of mills 
and fisheries they honestly pay the tithes to whom they 
were due " (Sub excommunicationis districtione compellerc ut 
de proventibus molcndinorum piscariarum * * * * decimas 
quibus debentur cum integritatc persolvant). This decree 
which is now a part of the Canon Law or its substance does 
not appear to have been actually incorporated in the canons 
of the great Council held in the year 1175, and by which 
several of the Pontifical Decrees as to titheable matters were 
declared binding. Still the practice of tithing mills and fish 
seems to have been more or less established by the time of 
Henry III, and these are expressly mentioned in the canon 
attributed to a council of Archbish(jp Winchelsey, to which we 
have already referred. This undecided state of the law remained 
till the reign of Edward II., wlien in VM') corn-mills more 
ancient than that year were by the Statute called Articuli 
Clcri' impliedly discharged from tithes. The enactment runs: 
" Likewise if any one has erected a mill on his estate, and after 

' !J Ed. II. c. 5. 


the tithe of it is exacted by the Rector, the Royal Prohibition 
is shown in this form : — ' Whereas tithes of such mill have not 
been hitherto paid, We Prohibit '...the answer is 'In such a 
case the Royal Prohibition has never issued by the wish of the 
Prince Avho decides that such a Prohibition never shall ' " 
(Item si aliquis in fundo suo molendinum erexit de novo et 
postea a rectore loci exigatur decima eodem, exhibetur regia 
prohibitio sub hac forma : — ' Quare de tali molendino hactenus 
decimae non fuerunt solutae prohibemus &c., et sententiam 
excommunicationis, si quam hac occasione promulgaveritis, 
revocetis omnino.' The answer is ' In tali casu nunquam exivit 
regia prohibitio de principis voluntate qui et decernit talem 
perpetuo non exire '). The construction of this statute stated 
above was laid down in the case of Ansell v. Adman ^ in the 
year 1701, and also it was held in 1723, if it can be proved that 
the mill was erected before the memory of man, or that the 
date is unknown, and that it never paid tithe, the Court will 
presume it to be within the statute ^ It must be remembered 
that other mills, as paper, fulling or lead mills, are exempt from 
tithes unless there be a custom to pay them, or they have been 
paid within forty years before the passing of the 2 and 3 
Edward VI. c. 13. It had always been held by the canonists 
that the tenth toll-dish of the corn ground at the mill should 
be paid as a praedial tithe, and there was great difference of 
opinion amongst the authorities as to whether tithe of mills 
was praedial, personal, or mixed. Lord Coke, although he 
gives his opinion that it is a personal tithe, says that in his 
time the question had not been judicially determined I How- 
ever, in 1706, upon an appeal from a decree of the Court of 
Exchequer* by which the appellants were ordered to account 
for the value of the tenth toll-dish, it was determined by the 
House of Lords that tithes of corn-mills were personal tithes 
only, and payable by the teath part of the clear profits after all 
incidental expenses had been deducted. The decree was there- 
fore reversed. It was also decided in this case that newly 
erected corn-mills, for which no tithes had been paid within 

1 Gwill. 982. 3 2 Inst. 621. 

2 Hughes I'. Billinghurst, Gwill. 644, •» Newte v. Chamberlain, Gwill. 596. 


forty years, Avere not within the forty years' limitation prescribed 
by 2 and 3 Edward VI. c. 13. :Mr Eagle in summing up the 
law on the subject says^ "The result of the cases seems to be 
that such tithes are personal as regards the thing paid in two 
ways, viz. a tenth part of the clear profits, and as to the time of 
payment, viz. Easter under the 2 and 3 Edward VI. c. 13, but 
also praedial and local, first as regards the person to whom they 
are paid, viz. the parson of the parish in which they are 
situated, and secondly as not being within the forty years' 
limitation of 2 and 3 Edward VI. c. 13." 

We have seen how the older church canons enforced 
the payment of tithes of fisheries. When taken out of the 
sea or common rivers on the principle of their being ferae 
naturae, fish are not titheable except there be a special custom 
to the contrary as in Wales, where a considerable number 
exist. By the statute just referred to', which was passed 
in 1549, tithe of fishing was made payable only in those 
parishes or places where it has been accustomed to be paid 
within the period of forty years, and this seems to apply 
to parishes situated on the sea coasts as well as to inland 

Tithes of mills and fish are the last survivors of what were 
known as personal tithes. How and when general payment of 
the latter kind of tithe became obsolete will be related ni 
another chapter. The Commutation Act' does not extend to 
tithes of fish unless by special provision to be inserted in some 
parochial agreement, and specially approved by the Com- 
missioners. But by the Second Commutation Acf this is 
altered, and tithes of fish and fishing may be commuted by a 
parochial agreement any time before the confirmation of any 
apportionment after a compulsory award. 

Houses and mines and wild animals, except by custom, pay 
no tithes'. The rule of law was well established in o\ir Courts, 
by the beginning of the l7th century that what was not of the 
increase but of the substance of the earth was not liable. In 

= 2 aud -A Ed. VI. c. 13. ■' Oiecnc c Hull, in 41 Eliz., aud 

' () aud 7 Will. IV. c. 71, s. 90. Stoutpil'H caac 1 E. aud Y. '>m. 


the dark ages the Church being then all powerful did exact 
tithes of stones, quarries, &c., for we find that in the year 1404 
the Commons presented the following bill against the practice. 
" Moreover the Commons pray that as many of the liege 
subjects of our Lord the King are often plagued and troubled 
by Parsons and Vicars of Holy Church by citations and censures 
of Holy Church for tithes of stones and slates, worked and 
brought from quarries, and as no tithe of such stone or slate 
had ever been demanded or paid that it may please the King 
to grant that if any Prohibition be made on the case no 
consultation shall be granted to the contrary " (Item priont 
les Commons que comme plusors lieges nostre Seignior le Roy 
sont souvent faites vexiz et travaillez per Persons e Vicaires de 
Seinte Eglise per citations et censures de Seinte Eglise pur 
Dismes de perres et sclattes oueres et trahez hors de quares de 
sicomne nul Disme de nul tiel pierre ne sclatte unques ne feust 
demande ne nulle Disme ent paie, que pleise a grantor que si 
ascun prohibition soit fait en le cas que nul consultation soit 
grant a contrarie). Whatever was the immediate result of 
this we do not know, but the opinions of later Judges went to 
form the Common Law rule stated above. The Commutation 
Act^ did not extend to mineral tithes, but provisions for their 
commutation were made similar to those explained with regard 

to fishl 

There are large tracts of lands in different parts of the 
country held in severalty only during a certain period of the 
year, usually from February to August — Candlemas to Lammas — 
from which time such lands are thrown open until the return 
of Candlemas to such persons as have rights of common on 
them. These lands, called Lammas Lands, together with 
commons in gross, had to a great extent been liable to tithes 
of produce during the occupation of the occupiers, and at other 
times to agistment tithes for cattle feeding. The Commutation 
Act was found inoperative against these, but by the Second 
Amendment Act^ provision is made for fixing a rent-charge on 
such lands and commons payable during the separate occu- 

1 6 and 7 Will. IV. c. 71, s. 90. ^ 2 and 3 Vict. c. 62, s. 13. 

■^ 2 and 3 Vict. c. 62, s. 9. 


patiou, the amount of which is to be ascertained with reference 
to the average value of the tithes. The Act, however, does not 
extend to such lands where no tithes or payments instead of 
them have been taken during the seven years ending Christmas 

In early times, as we have already explained, the tithes 

paid by the laity formed with other offerings a common fund 

distributed at his will by the bishop. When the parochial 

system was fully established, tithes of places which were 

extra-parochial were claimed and obtained by the bishop of the 

dioceses in which the places were situated. Their claim itself 

was never established at law although it is laid down as of 

right in the Canon Law. Basing his opinion on this law, 

Sir William Herle, a judge of the reign of Edward III., declared 

" A man cannot grant his tithes which are out of the parish to 

whom he likes, for the bishop of the place shall have them " 

(Ore ne poet home ses dismes que sont hors de parish; grant a 

que il voudra, car levesque del lieu les avera). " This opinion," 

says Lord Coke*, "is against the law of the land, and never had 

allowance in it, for it is that the king shall have them." In 

spite of Herle's opinion in a case of the same date'' they were 

adjudged to the king, and his right seems to have been resolved 

in Parliament as early as the reign of Edward I.^ The sense 

in which this holds now appears to be this from the authorities*, 

that the tithes belong jjrima facie to the crown unless they 

have been granted out by it or its right barred by the Nullum 

Tempus Act". In the last cited case, which is a comparatively 

recent one, an attempt was made to limit the crown's right to 

such lands as had been parts of forests, but it did not succeed. 

In 1 549® every person having cattle tithcable and pasturing on 

any land whose parish was not known was compelled to pay the 

tithe of their increase to the parson or vicar of the parish in 

which they the owners lived. This was to remedy the frauds 

that were continually being practised, by which severe hjsses 

' 2 Imt. 646. and Y. 'jyi. 

2 5 or 7 Ed. III. » 9 Geo. III. c. 10. 

» 2 Itist. Olfi. « 2 and 8 Ed. VI. c. 1.3, s. 8. 

* Att. Gen. r. Lord J-^ardlcy, 3 E. 


were sustained by parsons from the difficulty and almost im- 
possibility of ascertaining where the tithes of the cattle were 
due. By the Common Law all land was liable to the payment 
of tithes, so that when new land was brought into cultivation 
the right immediately attached. This acted in the middle 
ages as a great bar to the spread of agriculture. A modification 
however was effected by the above-mentioned Act of Edward 
VI.*; section 5 enacted that "all barren or waste ground 
which before this time have lain barren and paid no tithes by 
reason of the same barrenness and now be or hereafter shall 
be improved or converted into arable meadow shall after the 
end of seven years next after such improvement pay tithe for 
the corn and hay growing upon the same." The difficulty as 
to which parish such tithes should be paid was settled a little 
more than a century later^ at least as regards what had been 
formerly fens and marshes, by the legislature which enacted 
that tithes of such lands should be paid to the tithe-owner of 
that parish which lies nearest to such lands. Many Inclosure 
and some local acts have been passed in the last and present 
centuries containing provisions for allotting to owners lay and 
ecclesiastical lands instead of tithes, and under some of them 
the tithes of whole parishes have been commuted for fixed 
money payments. 

1 2 and 3 Ed. VI. c. 13. - 17 Geo. II. 2, c. 37. 



In our introductory chapter we traced the growth of the 
tithe sj'stem on the continent from originally a purely voluntary 
offering to a claim by the church backed by a moral and 
religious sanction, and then finally to a legally established 
system, — a law for tithe in the Austinian sense of the term. 
Charlemagne, about the year 787, made the first lay law 
decreeing the payment of tithes to the clergy. " The collection 
of tithes," says Milman', "was regulated by compulsory statutes; 
the clergy took note of all who refused to pay ; four or eight or 
more jurymen were summoned from each parish as witnesses 
for the claims disputed ; the contumacious were three times 
summoned ; if still obstinate they were excluded from the 
church ; if they still refused to pay they were fined over and 
above the whole 'tithe six solidi ; if further contumacious the 
recusant's house was shut up ; if he attempted to enter it he 
was cast into prison to await the judgment of the next plea of 
the crown." Such was the administrative system in the Frank 
Kingdom for enforcing the new tithe-law. As regards the 
Saxon period in the history of our own country we have no 
such full details. How and in what way the decrees of the 
Councils of Celcythe and Pincahala were enforced, we do not 
know. The conditions of the Danish truce contain a penalty 
for the withholding of tithes, and as we have already soen'^ I he 
laws of Edgar contain very stringent measures for enforcing the 
payment of tithes. Cases of dispute and of those who I'eliised 

1 Vol. IL p. 202—3. -' Ante pp. 12 and ir,. 


to pay came under the jurisdiction of the Court of the Hundred. 
The Hundred or Wapentake was a cluster of town-ships whose 
presiding officer was the Hundred-Man. He called the Hundred- 
moot together and originally Avith a body of free-men could 
declare the law. Ecclesiastical and secular pleas were decided 
in this court. It was attended by the bishop, sheriff, and lords 
of the surrounding land, and appeals on questions of law would 
readily lie to the Shire-moot and from there to the king him- 
self The presence of the bishop or his arch-deacon was 
necessary for the settlement of spiritual ; of the sheriff or 
hundred-man, of civil cases. The settlement of suits between 
persons of different wapentakes was made by the Shire-moot. 
In this the Bishop and the Ealdorman presided but in the 
absence of the latter the High-Sheriff or Viscount filled his 
place. Ecclesiastical causes were first tried, next those which 
concerned the King, and thirdly disputes between private 

The fusion of ecclesiastical and secular authorities in the 
courts lasted till the year 1085, when the Conqueror separated 
the spiritual from the temporal courts. The words of the 
Ordinance are as follows, "Propterea mando et regia auctoritate 
praecipio, ut nullus episcopus vel archidiaconus de legibus 
episcopalibus amplius in hundret placita teneant, nee causam 
quae ad regimen animarum pertinet ad judicium secularium 
hominum adducant, sed quicunque secundum episcopales leges, 
de (piacunque causa vel culpa interpellatus fuerit, ad locum 
quem ad hoc episcopus elegerit vel nominaverit veniat, ibique 
de causa vel culpa sua respondeat, et non secundum hundret, 
sed secundum can ones et episcopales leges, rectum Deo et 
episcopo suo faciat. Si vero aliquis per superbiam elatus ad 
justitiam episcopalem venire contempserit vel noluerit, vocetur 
semel, secundo et tertio ; quod si nee sic ad emendationem 
venerit, excommunicetur, et si opus fuerit ad hoc vindicandum, 
fortitude et justitia regis vel vicecomitis adhibeatur. Hie 
autem qui vocatus ad justitiam episcopi venire noluerit pro 
unaquaque vocatione legem episcopalem emendabit. Hoc 
etiam defendo, et mea auctoritate interdico, ne ullus vicecomes 
aut praepositus seu minister regis, nee aliquis laicus homo, de 


legibiis quae ad eplscopum pertinent se intromittat nee aliquis 
laicus homo aliiini honiinem sine justitia episcopi ad jiidieium 
adducat. Indicium vero in nullo loco portctur, nisi in episco- 
pali scde aut in illo loco quem ad hoc episcopus constituent." 
In this ordinance we see the origin of the ecclesiastical courts. 
The summary of it is, that no bishop or archdeacon should hold 
pleas in any of the ordinary courts, i.e. county, hundred, or 
sheriff's concerning episcopal laws or canons ; but that every 
one who had transgressed the episcopal laws should be judged 
in such place as the bishop should appoint, and if, after being 
summoned three times he did not appear, should be excom- 
municated. And further no sheriff, reeve, or king's officer, or 
any layman was allowed to meddle with the administration of 
the episcopal laws. The bishops were thus deprived of a great 
privilege and their jurisdiction limited to spiritual causes. The 
effect of this law was not to transfer totally the settlement of 
disputes as to tithes to the cognisance of the bishop. For during 
the Norman period, that is, up to the time of Henry II., we have 
abundant proof that suits for tithes were settled both in the new 
spiritual courts as well as in the secular courts. By original 
suit in the bishop's court tithes were recovered and in the secular 
court by Prohibition. Selden gives several examples of the 
former\ In the reign of Stephen the monks of Northampton 
recovered two parts of tithes from Anselm de Cochis in the bishop 
of Lincoln's court — the bishop sitting as ordinary. Appeals to 
Rome from these courts appear not to have been infrequent. 
A tenant of land in the parish of Lenham was sued in the 
Archbishop of Canterbury's court for tithes by the rector of the 
parish. He alleged in court, " that he had been forbidden by 
his lord, a nobleman, William, brother of the King, from enter- 
ing into any case in his absence on account of tithes respecting 
which the suit had been brought " (Sibi a nobili viro Wil- 
lielmo fratre Regis, Domino suo, esse prohibitum ne eo absente 
super Dccimis do fjuibus agcbatiir, causam ingrederetur). In 
spite of this the court proceeded and on sentence being ready 
to be given for the plaintiff the case was sent to Rome on the 
defendant's appeal. Under the first two Nonnan monarchs the 

• Soldcn, 414. 


secular courts appear to have determined rights of tithes. A 
dispute arose in the time of the second as to the tithes of some 
parishes in Sussex. A judgment of the Conqueror's was cited 
by which it was shown that they had been given to a Norman 
Abbey. The other disputants were therefore compelled to pay 
to the Abbey the profits they had appropriated to themselves. 
In consequence of delay in execution the King issued a writ to 
his chief justiciar and several other bishops, &c. to enforce it. 
The following writ of Henry I. taken from the Liberties of St 
John of Beverley, is given as an example for the Norman 
Period. " Henry, King of England to Osbert, sheriff of York 
and Gerald de Bridesala greeting — I order that you cause the 
church of St John of Beverley to have its tithes just as it 
always had them in the time of King Edward and my father, 
from all those lands respecting which men of the shire of York 
shall give evidence that they ought to have them. And who- 
ever shall have withheld them know that I wish him to do right 
to God and to St John and to me " (Henricus Rex Anglorum 
Osberto Vicecomiti de Eboraco et Geraldo de Bridesala salutem. 
Praecipio vobis, ut faciatis habere Ecclesiae Sancti lohannis de 
Beverlaco, Decimas suas sicut unquam melius habuit, in tempore 
Regis Edwardi et patris mei, de illis videlicet terris omnibus de 
quibus homines Comitatus Eboraci testimonium portabunt quod 
eas habere debent. Et quicunque detinuerit, sciatis quod ego 
volo ut rectum faciat Deo et S. lohanni et mihi). The striking 
analogy between this writ and a lusticies is remarked upon by 
Selden\ The latter writ was directed to the sheriff in some 
special cases by virtue of which he might hold plea of debt in 
his court for a larger sum than by law usually allowable. It 
was certainly in use in the time of Bracton^ and the one may 
very well be an early form or copy of the other. By the time 
of Hen. II. the power of the ecclesiastical courts over ecclesias- 
tical subjects had greatly increased, and the practice of suing 
for tithes in secular courts was viewed with extreme jealousy 
by the Church and clergy. One of the five ancient customs 
incorporated in the Constitutions of Clarendon (1164), and 
which the Church fought so much against, runs, " That the 

1 418. 2 ^ract. lib. 4. 


laity, the king or others should hold pleas of Churches and 
Tithes and the like;" and another of the Constitutions provided 
that the King's Court should decide whether a suit between a 
clerk and a layman whose nature was disputed belonged to the 
Church's courts or the King's. Although the final victory in 
the contest between Henry and the great Archbishop rested 
^vith the King, the Church remained still powerful enough to 
maintain her jurisdiction over tithes, and in course of time, with 
the assistance of papal decrees, to make it nearly exclusive. 
Thus we find Alexander III. on a dispute as to tithes in which 
one side had appealed to him as Pope and the other to the 
King, writing, " For no one is allowed to appeal to the secular 
judge on spiritual matters " (Quoniam nemini liceat super 
rebus spiiitualibus ad secularem judicem appellare), which even 
at that time was a considerable stretch both of fact and fancy. 

With the increase of the power of the Church during the 
reigns of the early Angevin Kings a gradual ousting by the 
ecclesiastical courts of the jurisdiction of the temporal courts 
in matters of tithe took place. By the time of Henry III. the 
spiritual courts, or Courts Christian as they were called, had 
obtained the sole jurisdiction over suits between parsons and 
their parishioners as regards tithe where questions of customs, 
modus, or right did not come in. Thus we read in Fleta^ when 
he is speaking of such suits, " Tithe suits should be held in the 
ecclesiastical court " (Decimae in (juantum decimae debent in 
foro ecclesiastico intentari), with which Bracton, who lived in 
the reign of Henry III., agrees ^ The proceedings in such cases, 
and which remained much the same till the jurisdiction of the 
spiritual courts in tithe suits was abolished by 8 and 4 Will. 
IV. c. 27, s. 48 in 1833, were according to the Civil and Canon 
Law by Citation, Libel, Answer upon oath, &c. But as regards 
suits between rectors, or in cases of custom or right of tithe, the 
temporal courts maintained, to a limited extent, their jurisdic- 
titju. The different kinds of original procedure during this 
period may be roughly classed as follows : 

I. By the writ Indicavit and Inquest. 

1 Fleta, lib. C, c. IM. - Lib. r,, dc Exccptionibus, fol. 103 and ch. 10, fol. 107. 
Y. E. 5 


II. By the writ Indicavit and writ of Right of Advow- 
son of Tithes. 

III. By Scire Facias. 

IV. By process of Command and Payment. 
V. By Prohibition. 

We have ab-eady shown how the parish system, which exists 
now in England, was of gradnal growth until it reached its 
present form some time about the beginning of the loth cen- 
tury. Disputes between the rectors of neighbouring Churches 
— daughter Churches which in course of time had sprung up at 
first dependent on the mother Church — and questions as to 
which of these the tithes of a certain place or portion of land 
were due, were naturally of common occurrence. In such suits 
the civil courts managed to maintain their jurisdiction. " Be- 
cause a Patron may incur damage of his advowson" (Quia 
possit Patronus jacturam suae advocationis incurrere). The 
means they adopted were somewhat as follows. The clerk of 
one parish sues in the spiritual court the clerk of another for 
certain tithes received by him. Evidently should the first 
clerk-plaintiff win the suit, there will be a loss incurred in the 
value of the advowson of the clerk-defendant, the presentation 
to which belongs to the patron. The civil court therefore 
grants a writ to either of the two latter which prohibits the 
prosecution and holding of the plea in the spiritual court. 
This writ or prohibition is afterwards known by the name of 
Indicavit. Our authorities make it somewhat doubtful whether 
a certain portion of the tithes must be in dispute before the 
Indicavit will lie. Bracton doubtfully says that if the matter in 
dispute be less than a sixth part of the tithes of the parish, the 
writ will not lie, but Selden, after a careful analysis of the 
authorities, holds that, in these early times, i.e. before the 
statutes of Westminster II. and Circumspecte Agatis (13 Ed. 
l.y, it was gran table upon a suit for ani/ portion of the tithes. 
It seems fairly well established that after these statutes not 
less than a fourth part of the tithes must be in dispute, though 
some of our authorities^ would still refer this limitation to the 

1 A.D. 1285. '^ Wood's Inst. 5G7. 


later statute of Articuli Cleri' made in the year 1316. Seldeii 
quotes in support of his view the complaint of the Clergy 
assembled in the National Council of London held under Otho, 
the Pope's Legate in 1237, to correct certain proceedings, "Quae 
fuerunt in regno Angliae in pracjudicium libertatis Ecclesias- 
ticae," which proceeds ^ " Likewise let not the Prohibition run 
' Ne judices ecclesiastici cognoscant de jure Patronatus,' but 
that clerks be able to sue for tithes which belong to their 
Churches as it were of common right. Because the patrons of 
the Churches or Chapels which own the tithes sued for, say that 
by such a petition their right of patronage is weakened and 
they are unwilling for the justices of our lord the King to judge 
what part of the tithes is or ouglit to be sued for before the 
spiritual judge " (Item ne currat prohibitio (i.e. the Indicavit) 
ne judices ecclesiastici cognoscant de jure Patronatus quominus 
Clerici possunt petere Decimas tanquam de jure communi ad 
ecclesias suas pertinentes. Quia Patroni ecclesiarum vel capel- 
larum quae decimas petitas possident, dicunt per talem peti- 
tionem juri Patronatus sui derogari et nolunt justiciariis Doniini 
Regis judicare quota pars Decimarum peti possit vel dcbeat 
coram judice ecclesiastico). Another complaint is "Likewise 
let not the King's Prohibition run that a rector of a parish 
Church may not sue those who take the tithes within the limits 
of his parish " (Item ne currat prohibitio Domini Regis, ne 
Rector Parochialis ecclesiae impetat eos qui percipiunt Decimas 
infra limites Parochiae suae). Again the pleading in the Abbot 
of Selby's case runs — and this was within six years of the 
passing of the statute, " Because the writ for a fourth part of 
the tithes began at first to have place from the time of tlu' 
statute of the King at Westminster then published" (Quod 
breve de cjuarta parte Decimarum primo locuni habere cocpit a 
tempore statute regis nunc apud Wcstmonasterium indc editi, 
&c.). Wo may therefore take it that the Indicavit would lie 
against a suit for any part of the tithes. By its forcf tin" 
proceedings in the spiritual court were stopped. Had it the 
effect of removing the case to the temporal courts ? The 
answer is, they could only take cognisance of it with the con- 
1 9 Ed. II. c. 2. - Scldcn, 129. 



sent of the two Patrons. On consent being granted — as was 
usual — an Inquest was taken. The form of procedure was an 
inquisition of jurors on proof made of the fact on either side 
when it is referred to their trial. The jurors were returned into 
court by the writ Venire Facias directed to the sheriff. Such 
was the course of procedure in cases between Rectors till the 
time of the passing of the two important statutes Westminster 
II. 13 Ed. I. c. 5 and Circumspecte Agatis. The latter, which 
originally was nothing more than a royal direction intended to 
settle the disputes as to the jurisdiction of secular and eccle- 
siastical courts, but was afterwards treated as having the force 
of a statute, ordains, after remarking that tithes are the most 
knoAvn revenue of every church, that no prohibition or Indicavit 
should lie where the matter in dispute was less than a fourth 
of the value of the tithes or advowson. The express words are 
" dummodo non petatur quarta pars valoris ecclesiae." The 
statute of Westminster II. gives in cases where an Indicavit 
has been sued the Writ of Right of Advowson of Tithe, by 
which the suit is brought into the civil courts for trial and thus 
takes the place of the old fashioned Inquest. To sum up then, 
the Writ of Indicavit is virtually a prohibition that lies to the 
patron of a Church whose clerk is sued in the spiritual court by 
another clerk for tithes that amount to a fourth of the profits of 
the advowson. It is directed to the spiritual judge not to 
proceed, for the cause now belongs to the temporal court. It 
has cleared the ground and the clerk-plaintiff in the original 
suit or his patron has merely to sue out the Writ of Right of 
Advowson of Tithes, after which the cause is tried and deter- 
mined in the King's court. It will be observed that the Indi- 
cavit is always between four persons, viz. two patrons and two 
clerks, and in cases only where the subject matter is not less 
than one-fourth of the value of the tithes. There is, however, 
one exception to this latter rule, and that is in cases which 
concern the Crown it does not hold'. The writ must be 
brought before judgment in the spiritual court, for if after it is 
void. Should the part be less than a fourth, and this is sur- 
mised by the other party, he can have a Consultation which 

1 New Nat. Br. 66, 101. 


removes the suit back to the spiritual court. The Indicavit is 
called so from the first important words in the writ, viz. " Indi- 
cavit mihi," &c. The particulars follow in which is recited 
that the clerk-defendant in the spiritual court " holds a fourth 

part (or more) of all the tithes issuing from, etc from the 

advowson of the Patron Whereas it is manifest that the 

said (Patron) might run the risk of the loss of his advowson of 
the said tithes if the said Rector succeed in that cause : We 
Forbid you to hold that plea in the Court Christian until it 
shall have been determined in our court to which, of them the 
advowson of the same tithes belongs'" (tenet quartum (or 

more) partem omnium Decimarum provenientium de &c de 

advocatione of the Patron Quia manifestum est quod 

praedictus (the Patron) jacturam advocationis Decimarum prae- 
dictarum incurreret si praedictus Rector in causa ilia (clerk- 
plaintiif) obtineret; vobis Prohibemus ne placitum illud 
teneatis in Curia Christianitatis donee discussum fuerit in 
Curia nostra ad quem illorum pertineat earundem Decimarum 
advocatio). According then as the Writ of Right^ is afterwards 
tried, so must the spiritual judge give sentence. 

Prior to the year 1345 the Writ of Scire Facias was grantable 
against prelates and clerks who took tithes after they were 
severed, but not against possessors of the land in three special 
cases which we shall briefly discuss. 

First, upon the finding in an Inquest as to the title of the 
demandant to the tithes in question, there is reason to believe 
that the writ was issued. In many cases a commission was 
issued to determine certain facts, the proceedings being exactly 
in accordance with the preamble to a statute^ passed in 1345, 
which declared that the Writ Scire Facias shall no longer be 
issued in such cases. Selden* gives several instances of com- 
missions of inquiry being sent out, one of which we quote as an 
example. About the year 1280 a commission was sent to one 
Nicholas of Stapleton commanding him to incpiire whether the 
Prior of Worksop ought to have the tithes of all the profits of 

J Bract. Lib. 5 de Except, c. 4, fol. » 18 Ed. III. 

403. ■• pp. 135—38. 

2 13 Ed. I. c. 5. 


the Manor of Gringley which had been subtracted by Henry of 
Alemannia. The commission returned that the Prior had the 
right to them by prescription, and that the said Henry had 
wrongfully subtracted them. " What could be more proper," 
says Selden\ "than to have a Scire Facias upon the Inquisition 
according to the intent of the preamble of 18 Ed. III., in which 
Scire Facias the right might be tried between the parties, and 
so judgment be given." The cases however seem to refer only 
to tithes out of royal demesnes and immediate tenancies of the 
crown. The practice would evidently, had it been at all 
general, be sufficient for us to say that the temporal courts had 
jurisdiction of tithes in matters purely between a rector and his 
parishioners, but the view that a Scire Facias was only grant- 
able for tithes of the royal demesnes seems to be expressly 
corroborated by an answer of Edward I. to a petition to him in 
which he distinctly refers the question to the ecclesiastical 
courts. Selden however is of opinion that Scire Facias might 
have been issuable wherever an original writ or commission had 
been required to settle or inquire into the right of tithes ^ and 
these being few and scarce, have not had any appreciable effect 
on the usual practice. 

Writs of Scire Facias appear also to have been grantable in 
cases where the tithes have been granted by Patents from the 
crown. In 1344 we find a writ directed to the Sheriff of Essex 
which relates that the Churches of certain places had been 
granted with their tithes to the Dean and Chapter of the 
King's Free Chapel of St Martin's in London by Queen Maud, 
and that for the previous twenty years the Abbot of Colchester 
had taken two parts. The writ then runs^ " And whereas we 
wish and are bound to maintain the rights all and singular of 
our free Church aforesaid, and to reclaim those which have been 
taken away or are illegally held, we command thee to ascertain 
what belongs to the Abbot now in our Chancery wherever it 
may be by the fifteenth day from that of St John the Baptist 
next ; then an answer must be given to us and to the said 
Dean and Chapter respecting the seizures, occupation and 
withholding of the said two parts of the tithes as aforesaid" 
1 p. 436. - ib. p. 438. ^ Seldeu, 441. 


(Et quia nos omnia et singula jura liberae capcllae nostrae 
supradictae manutenere volumus et tenemur, ct ea quae 
subtracta fueriut sive injuste occupata revocare, tibi praccipi- 
mus quod Scire Facias nunc Abbati quod sit in Cancellaria 
nostra in quiudenam S. Johannis Baptistac prox. futuruni 
ubicunquc ; tunc fuerit ad respondendum tam nobis quam 
praefatis Decano et Capitulo de usurpationibus, occupatione et 
detentione dictarum duarum partium Deciniarum praedictarum, 
&c.). This writ was returned by the Sheriff with Scire Feci, 
and in the subsequent pleading the Abbot's council takes 
exception to the jurisdiction of the temporal courts and declares 
that the pleas should only be held " in Curia Christianitatis " 
since the two Churches were "in jurisdictione ordinaria Episcopi 
London." The court answered that where the suit was taken 
against them that ought to pay the tithes, i.e. in case of 
subtraction of tithes, the plea would be good and the cause be 
under the jurisdiction of the spiritual court, but not when it 
was brought against them that were wrongful takers of 
tithes. How the case was finally decided there is no record, 
but it seems to have been a main reason for the passing of the 
Statute 18 Edward III. c. 7, discontinuing the granting of such 
Writs of Scire Facias. The clergy had petitioned the King in 
Parliament complaining of the practice to which the King 
answered as follows': "That such writs as formerly are not 
granted, and that the process upon such writs be abolished, and 
that the parties be dismissed before the secular judges of 
such kind of pleas, save and except our right as we and our 
ancestors have had and of right ought to have " (Que tielx breifs 
desorenavant ne soient grantes et que les proces pendant sur 
tielx breifs soient anentes et que les parties soient dismisses 
devant secular judges de tielx manner de Flees saves a nous 
nostrc droit tiel comme nous et nous ancestres avouns eit et 
soloions aver de reson). This act has been generally received 
as a statute, but it does not appear to have ever had niucli 
force. For by reason of the saving clause, not only the King 
him.self, but also patentees under him dbtained Writs of Scire 
Facias in the chancery after the statute, and Selden (jikiIcs" such 

» 2 Itut. 040 and Selden, 443. - p. 111. 


a case which occurred within four years after the making of the 

We have already observed that tithes were subject to all 
the incidents of inheritable property, and that upon them fines 
could be levied, and Recoveries suffered just in the same way 
as on a manor or an advowson. It is not for us to describe the 
proceedings or their history in what are well known as Fines 
and Recoveries, we need only say here that in very early times 
we find Fines levied on the right of tithe in the King's Courts, 
not upon Writs of Covenant which in later days were in general 
use for the recovery of damages but in Writs of Right of 
Advowson. Thus in Fin. Trinit. 10 R. lohannis before the 
king and his justices upon a Writ of Right of Advowson brought 
by an Abbess against one Henry of Abeny for the patronage of 
a chapel, the concord runs that the Abbess grants it to him in 
fee except a pension of two shillings a year to a certain church. 
" And by this acknowledgment and peaceful claim and by Fine 
and by Agreement the same Henry... has acknowledged and 
granted all the tithes from his demesne " (Et pro hac recog- 
nitione et quieta clamatione et fine et concordia idem Henricus 

recognovit et concessit omnes Decimas de Dominico suo). 

Again in the Leiger Book of the Priory of Merton there is a 
Fine before the same King between one William de Cantelupe 
and the Prior of Merton upon the right of advowson of a church 
wherein it is agreed that the chaplain of the demandants shall 
not take '' tithes nor oblations from the parishioners of that 
church " (a parochianis ejusdem Ecclesiae nee in decimus nee in 
oblationibus), but leave them all to the parish Church. Further 
instances of Fines in the succeeding reigns might be quoted, 
but these are enough to show that the adoption of the incidents 
of inheritable property to the new property which arose after 
the Dissolution of the Monasteries was only an extension of 
what had previously existed. Scire Facias was the writ which 
lay upon Fines, levied upon lands &c., there is no reason 
therefore to suppose that it would not lie for Fines levied upon 

As in the cases of Inquests and of Writs of Scire Facias 
granted upon them the process of bare commandment to pay 


by writ from the crown seems only to have hvvn in force over 
crown lands, forests and such like. The title generally, as in 
the former cases, must have been by patent. The following is 
a writ issued by Henry III. to the keeper of the forest of 
Shirewood and telling him that " For the peace of the soul of 
King John, our father, we have granted to the Monks of 
Basingwork that they may take in turn up to the feast of 
St Michael in the 7th year of our reign tithes of the corn sown 
in our close between Blakebrok and Glossop ; and therefore we 
command you to permit those Monks without any .hindrance to 
take the aforesaid tithes " (Pro salute animae Domini lohannis 
Regis patris nostri concessimus Monachis de Basingwerc quod 
percipiant hac vice usque ad Festum S. Michaelis anno regni 
nostro vii. Decimas de bladis seminatis in defense nostro 
inter Blakebroc et Glossop et ideo vobis Mandamus quod ipsos 
Monachos hac vice sine impedimento permittatis decimas 
praedictas percipere). There are a number of other such writs 
relating to the tithes in forests of Game, Venison, &c. The 
latter being as a rule crown property the spiritual courts would 
not have jurisdiction over them. However the practice of 
granting such writs as well as those of Scire Facias, already 
referred to, appears to have ceased about the middle of the 
reign of Edward III. 



We have already referred to the means by which the civil 
courts in the middle ages maintained, to a limited extent, a 
jurisdiction over tithe suits in cases where the right of patron- 
age was, however vicariously, invoked. The writ Indicavit 
which stopped the proceedings in the spiritual courts was only 
a particular form of another writ known by the name of a 
Prohibition which issued from the King's Courts on their being 
informed that a judge in the Spiritual, Admiralty, or Court of 
Chivalry was holding plea where he had no jurisdiction. It 
forbad the judge to proceed whether the court at law gave a 
remedy or not. As the determination of Customs has always 
formed part of the business of the common law it is only in 
consonance with first principles that such questions, even when 
relating to such spiritual matters as tithes have always been 
held to be, should also be determined by the rules of the common 
law, and in the common law courts. When therefore a suit 
was entered in the spiritual court with respect to the payment 
of tithes, in which the amount to be paid was determined by 
the custom of the parish in which the paying lands were, a 
Prohibition with the above mentioned effect at once lay. From 
the earliest times tithe-paying in England, though at various 
times enforced by Acts of the legislature, has always been 
more or less regulated by custom. 

It is through immemorial custom that the Modus — to which 
we shall refer more particularly later — has been established. 


In all matters, therefore, where a modus or custom of tithe- 
paying was iu question a Prohibition would lie which ousted 
the jurisdiction of the spiritual court. This writ, which as we 
have seen dates back to the Norman period, was granted upon 
suggestion, i.e. representation of the matter to the court — and 
the latter, it may be incidentally remarked, was regulated by 
Magna Charta^ — and was du-ected not only to the judge but 
also to the disputant parties. Should either of them proceed 
in the case an attachment could be had or an action on the 
case. The party prohibited might however appear, take a 
declaration on the suggestion and go to trial, and if it be found 
against the plaintiff in the Prohibition, a Writ of Consultation 
was awarded. The granting of these writs which had the effect 
of sending the case back to the spiritual court was first regu- 
lated in the year 1296, by what is known as the Statute of 
Writ of Consultations, which declared that it was to return a 
cause removed by Prohibition back to the ecclesiastical court 
when the judge found that the latter had jurisdiction or that 
the Suggestion was false. Circumspecte Agatis as we have seen 
had decided ten years previously in what cases Prohibitions 
should not lie, and though they would lie on the claim of the 
clergy to take tithes of matter which had not been before tithe- 
able by custom, still, in later years, the Writ of Consultation 
was a tremendous weapon in the hands of a powerful Church. 
In the dispute that raged between the Commons and the clergy 
in the question whether wood should be tithed according to the 
canon made at Stratford's Synod, the constant prayer of the 
Commons is', "That it may please our Lord the King to grant 
a Prohibition luithout a Consultation to those who in such a case 
demand it and that the said gentlemen of Holy Church be pro- 
hibited from demanding tithes of timber trees " (Que plcise a 
nostre Seigniour le Roy cut gninter Prohibition sans Consulta- 
tion a toux ceux que le voillent dcmander en tiel cas e c|ue les 
dites gents do S. Esglise soiont defenduz a demander Dismes do bois). Again in 1404 a similar petition which we have 
given at length^ against the attempt of the clergy to exact 
tithes of ([uarries of stone and slate against custom and the 
' 9 Hon. III. c. 28. - Hot. Pari. 25 Ed. III. art. 37. ' p. 5H. 


common law concludes, " que si ascun Prohibition soit fait en le 
cas que nul Consultation soit grant a contrarie." The ancient 
practice^ in cases of Prohibition when they were granted on 
motion, was for the party prohibited to sue out a Scire Facias, 
Quare consultatio non debet concedi post Prohibitionem, in 
which writ the Suggestion was recited and also the Prohibition 
granted thereon ad damnum of the party, but in later years 
this practice was altered into somewhat as follows : upon 
granting a Prohibition to the Plaintiff the court bound him 
in a recognisance to prosecute an Attachment of Contem'pt 
against the Defendant for suing in a spii'itual court, &c., after a 
Prohibition granted, and then to declare upon the Prohibition, 
so that he who was the Defendant in that court now becomes 
Plaintiff in the court above. In the Act for the Recovery of 
Tithes, passed in the first years of Edward VI.'s reign ^ it is 
enacted that in suggestions for Prohibitions in tithe suits, the 
suggestions must be proved to the court by two witnesses 
within six months after the Prohibition granted ; provided the 
Suggestion does not contain a negative. It is needless for us 
to enter into any detail of the numerous cases that have been 
decided in our courts touching Prohibitions. We may merely 
mention one which shows nicely the distinction as to jurisdic- 
tion where a question of custom comes in, and which appears 
to have been decided about the middle of the 15th century. A 
parson granted to one by deed that he should be discharged of 
tithes of his lands, and afterwards sued in the spiritual court 
for them. It was held^ that the party sued shall not have a 
Prohibition because he can suggest the matter in the spiritual 
court to discharge him of the tithes; but if it were upon a 
Composition made before time of memory and now the parson 
sues for tithe of the lands, he shall have a Prohibition against 
the parson. 

We have already commented on the condition of the Church 
at the time immediately prior to the dissolution of the monas- 
teries ; then as Sir Edward Coke informs us^ that through " the 
noise of the dissolution laymen taking small occasions to with- 

1 Plowd. 472. ■' Mich. 8 Ed. IV. 14. 

2 2 aud 3 Ed. VI. c. 63. ^ 2 Imt. 648. 


draw their tithes" the practice of tithiug, had so to speak, greatly 
fallen away, to such au extent that some special means were at 
once necessary to preserve to the parson what law and custom 
had held to be his due. These means were provided by the 
legislature in two Acts of Parliament. It was enacted by 27 
Henry VIII. c. 20, that "through all the King's dominions every 
subject according to the ecclesiastical laws and ordinances of 
this Church of England, and after the laudable usages and 
customs of the parish, or other place where he dwelleth or 
occupieth, shall yield and pay his tithes," and further if a judge of 
the ecclesiastical court makes complaint to two Justices of the 
Peace (one Quorum) of any contumacy or misdemeanour com- 
mitted by a defendant in any suit depending for tithes, &c., the 
said justices "shall commit such defendant to prison there to 
remain without bail till he finds sufficient surety to be bound 
by recognizance or otherwise, to give due obedience to the 
process, decrees, and sentences of the said ecclesiastical court." 
This Act which extends to all kinds of tithes — praedial, personal 
and mixed — gives relief only to ecclesiastical persons, when 
therefore after the dissolution, the monasteries to which tithe 
and parish Churches had been appropriated, were settled on the 
crown and afterwards conveyed into lay hands, an Act was 
passed' commanding every man " fully, truly, and effectually to 
divide, set out, yield or pay all and singular tithes and offerings 
according to the lawful customs and usages of the parishes and 
places where such tithes or duties shall grow, arise, or become 
due" and that, " if tithes and offerings are not set out and paid, 
the party grieved ecclesiastical, or lay, and their farmers may 
convene him that detains them before the ecclesiastical judge." 
" But all persons that are disseised or kept from their lawful 
inheritance, freehold, term, right or interest in any parsonage, 
vicarage, pension, tithes, oblations or other ecclesiastical, or 
spiritual profit, which arc made temporal and abide in temporal 
hands to lay uses by law, may have; the like remedy in the 
temporal courts, as for other lands and tenements." After 
sentence in the ecclesiastical court, on certificate from the judge, 
power was given to two justices of the peace to commit any 

> :^2 Heu. Vlll. <:. 7, 


person, still refusing to pay his tithes, to prison. It will thus be 
seen that remedy is given for ecclesiastical persons before the 
Ordinary and for lay impropriators in the secular courts. 

It will be observed too that they may sue in which court they 
prefer. There is no mention either of " contumacy " so that under 
this statute the party could not be compelled in the ecclesiastical 
court to give security for his obedience, but only to the definitive 
sentence where as under 27 Hen. VIII. c. 20 security could be 
demanded upon contumacy in any part of the proceedings. It 
is easy to see that the above acts still left open many oppor- 
tunities for fraud. To remedy their defects, an important act 
was passed in the year 1549^ which enacted "that every subject 
shall without fraud yield and pay all j-jraecZm^ tithes in kind as 
hath of I'ight been yielded and paid within forty years before the 
making of this Act, or of right and custom ought to have been 
paid. And if any carries away such tithes before he hath justly 
divided and set forth the same, or otherwise agreed for them 
with the parson, &c., or farmer thereof, he shall forfeit treble 
value of the tithes so taken away." Again, " that at all times 
and as often as the praedial tithes shall be due at the tithing 
time of the same, it shall be lawful for the parson, &c., or his 
deputy, or servant, to view and see the tithe justly set forth, 
and the same quietly to take and carry away. And if any 
person carry away his corn or hay, &c., before the tithe is set 
forth or willingly withdraw his tithe of the same, or do stop or 
let the owner thereof, or his deputy or servant to view and carry 
away the tithes to the loss or hurt of the same, then upon due 
proof before a spiritual judge the party shall pay double the 
value of the tithes besides costs of suit and may be excommu- 
nicated." Section 7 of the Act enacts that, " Every person 
exercising merchandizes, bargaining and selling cloth, handicraft, 
or other art or faculty, by such kind of persons and in such 
places as here-to-fore within these forty years have accustom- 
ably used to pay such personal tithes, or of right ought to pay, 
other than such as be common day labourers, shall yearly, 
before the feast of Easter, pay for his personal tithes the tenth 
part of his clear gains, his charges and expenses, according to 

i 2 and 3 Ed. VI. c. 13. 


his estate, condition or degree, to be therein abated, allowed 
and deducted" ; and by section 9, " if any person refuse to pay 
his personal tithes in form aforesaid, then it shall be lawful to 
the ordinary of the diocese, where the party that so ought to 
pay the said tithes is dwelling, to call the same party before him 
and by his discretion to examine him by all lawful and reason- 
able means otherwise than by the party's own corporal oath 
concerning the true payment of the said personal tithes." 

The general run of opinion and cases decided upon the above 
Act is briefly summed up as follows. 

The sense of the words " as of right been yielded" relates to 
tithes in kind }delded within forty years'; and of the words "of 
right and custom" relates to a rightful custom, de modo deci- 

If the tithes are set out and severed from the nine parts by 
the owner, they are become lay chattels ^ so that if after sever- 
ance, they are carried away by a stranger, the remedy against 
the stranger is in the temporal courts for treble the value. If 
the owner of the land carries them away, there is no setting 
forth I This was decided about the year 1602 in a prohibition 
between Heale and Sprat. H. had set out the tithes correctly 
bvit soon after carried them away. S. sued for subtraction in 
the ecclesiastical court and H. pleaded that he had set them 
out according to the Act. It was adjudged that his carrying 
them away was fraud and guile under the Act. 

The treble damages are to be recovered in the temporal 
courts by Action of Deht*, because they are given generally, not 
limiting where they are to be recovered. The whole Court of 
Exche(|uer decided" that the forfeiture should be given to the 
party grieved, alth(jugh no person in certain is mentioned in the 
Statute". This is the first leading case on the point and it has 
ever since been held to be law. But such forfeiture cannot be 
demanded by executors, because the wrong was personal, ami 
"Actio personalis nioritur cum persona" and further, it is a 
personal contempt of the Statute. 

1 2 Imt. 0.50. ■' 1 //I.S7. 151) and 2 1ml. (112, 050. 

•' 1 Cro. 007. 5 A.D. 1587. 

3 2 Imt. 013, 040. '' Att. (Jcii. v. Wood. 


The double value, it is to be observed \ is to be recovered in 
the ecclesiastical court and is equivalent to the treble forfeiture 
recoverable in the temporal courts, because in the former court 
the tithes themselves can be sued for, i.e. a recompense for them 
plus the double value. Thus the suit in the ecclesiastical court 
was more advantageous, because in addition, costs could be 
recovered. We may here note that the two proceedings were 
not put on an equal footing in this respect till nearly a hundred 
and fifty years afterwards, when it was enacted^ that costs 
should be given with the treble value in the temporal courts 
where the single value or damage found by the jury does not 
exceed twenty nobles. 

The Act of EdAvard VI. extends only to praedial and 
personal tithes, but since it rehearses' 27 Hen. VIII. c. 20 and 
32 Hen. VIII. c. 7, which extends to all kinds of tithes, it 
includes mixed tithes as well. It will be observed that in the 
following ways the Act limited the canon law. 

(1) By that law the owner of the corn, hay, &c., had to give 
notice to the parson of its harvest or cutting, &c. By the 
common law no such notice was necessary, and the statute 
merely gives the parson the right of seeing the tithes set out, 
and does not oblige notice to be given. 

(2) The canon law compelled all persons in all places to pay 
their personal tithes, the Act restrains it to such persons as have 
accustomably used to pay them within 40 years before the 
making of the Act*. 

(3) Labourers are freed from payment of personal tithes I 

(4) The bishop or ordinary before the time of the Act could 
examine the party upon oath but after the Act he could not^ 

This taking away of the oath to prove that personal tithes 
were due, rendered the recovery of them almost impracticable, 
and supplies the reason that in course of time the practice 
of paying such tithes fell into disuse. We have already remarked 
that the only personal tithes payable at the time of the Commu- 
tation Acts were of mills and fish. 

1 2 Inst. 650. ■* Phillimore's Eccles. Law, p. 1537. 

2 8 and 9 WilL III. c. 11. ' I^iid. 

3 2 Inst. 662. ® Il^id- 



Such was the state of the law till nearly the end of the reign 
of William III. when an Act was passed for the more easy 
recovery of small tithes. It was then enacted^ in cases where the 
small tithes do not amount to above the yearly value of 40 
shillings from any one person, " that if any person shall subtract 
or withdraw or fail in the payment of such small tithes by the 
space of twenty days after demand thereof, that then it shall be 
lawful for the person to whom the same are due to make his 
complaint in writing to any two justices of the peace within 
the county or place where the same shall grow due, neither of 
M'hich justices is to be the patron of the church' whence the 
said tithes arise or in any ways interested in such tithes." The 
justices may then summon the party in writing and after 
appearance or default proceed to hear and determine the 
complaint". The case is to be adjudged in writing with costs 
not exceeding ten shillings against the plaintiff or defendant ^ 
with liberty to appeal to the Quarter Sessions*, whose judgment 
shall be final unless the title of such tithe is in question. The 
justices have power to administer an oath to any witnesses 
brought before them', and to levy the money adjudged by 
distress upon refusal ten days after noticed The judgment is to 
be enrolled and cannot be removed by writ of certiorari, &c.' 
If the defendant however sets up a modus, and gives security 
for costs and damages in the courts above, the justices shall not 
proceed I It has been ruled° that he must set up the modus 
before the justices in the first instance, and if he neglect to do 
so and an order is made he cannot on appeal to the sessions 
give evidence of the modus^", and the effect of the section is to 
take away from the justices the power of trying a questiun of 
modus in any case. 

In the same year, in consequence of the refusal of Quakers 
to pay tithes and Church rates, an Act was passed" much on 

> 7 and 8 Will. ITT. c. P., s. 1. 

7 S. 7. 

■' S. 2. 

» S. 8. 

=» S. 12. 

9 Rex V. Jeffereys, :} E. and Y. 10'.)8 

* S. 7. 

1" A.n. 1824. 

••' S. 4. 

" 7 and s Will. III. c :U. 

« S. H. 

v. E. 


the same lines as the above for the recovery of tithes which 
they refused to pay. Two justices of the peace, having the 
same power as to oath, &c., were to determine the case, provided 
the amount to be recovered did not exceed ten pounds, and they 
could levy the money ordered to be paid by distress and sale of 
the offender's goods. The same provisions are made for appeal 
as in the former Act, but no warrant of distress can be granted 
till the appeal is determined. It will be observed that this Act 
refers to great and small tithes and is not limited like the 
former. Both these Acts were passed for a period of years, but 
the first was made perpetual by 3 and 4 Anne, c. 18, s. 1, and the 
jurisdiction of the justices was extended to " all tithes, obliga- 
tions, compositions subtracted or withheld where the same does 
not exceed ten pounds" by 53 George III. c. 127; and the 
second was made perpetual by 1 Geo. I. c. 6, and the jurisdiction 
of the justices extended to any amount not exceeding fifty 
pounds by 53 Geo. III. c. 127. However by 5 and 6 Will. IV. 
c. 74, s. 1^ proceedings for the recovery of tithes under the value 
of £10 (except in the case of Quakers) were to be had only 
under the powers given by the afore-mentioned Acts, viz., 7 and 
8 Will. III. c. 6, and 53 Geo. III. c. 127, and that in the case of 
Quakers no suit or proceeding shall be had in respect of great 
and small tithes, &c., of or under the value of fifty pounds, but 
that all complaints touching the same shall be heard and 
determined under the powers and provisions contained in 7 and 
8 Will. III. c. 34, and 53 George III. c. 127, provided of course 
that in all cases no question of title comes in. By the second 
section of the Act^ in the case of Quakers no execution or 
decree shall issue or be made against their persons, but the 
plaintiffs shall have execution on their goods or other property. 
And in case any should then be detained in custody they are to 
be discharged by the sheriff, who shall issue other execution for 
recovery out of their property. The above Act was extended in 
the year 1841' in such a way as to take away the jurisdiction 
from the ecclesiastical courts of all cases where the matter 
involved is not above the value of £10, or in the case of 
Quakers of £50. 

' 5 and Will. lY. c. 74. - 4 aiicl 5 Yict. c. m. 


Before proceeding to discuss the change wrought by the 
Commutation Acts in the means for the recovery of tithes we 
may remark that in addition to what has been already said that 
though tithes could have been recovered in the ecclesiastical 
court when they are admitted to be due still those courts had no 
jurisdiction to try the right to tithes, unless between spiritual 
persons, and they would be prohibited from trying any cases of 
modus or prescription. The action of debt given by 2 and 3 Ed. 
VI. c. 13, being a common law action, could only be brought in 
Courts of Common Law. Courts of Equity had also jurisdiction 
over tithes to the extent that they could decree an account and 
payment of tithes, where a legal right to them appears, but they 
could not enforce the payment of the treble or double value given 
by the above-mentioned statute. The ancient practice and the 
most general, notwithstanding the statute, was to file bills for 
an account of tithes, and with regard to these. Courts of Law 
and Equity had a concurrent jurisdiction. In the Court of 
Exchequer — where the clergy usually exhibited their bills for 
the recovery of tithes — the course of proceeding was to decree 
an account of tithes to the time of the filing of the bill ; but in 
the Court of Chancery the account was carried down to the time 
of the master's report \ As regards the time in which actions 
could be brought it was held by all the Court as early as 1G39, 
that the Statute of Limitations could not be pleaded in an 
action of debt for not setting out tithes brought under 2 and 3 
Ed. VI. c. 13^. For the 3rd section of the former Act is confined 
to actions of debt grounded upon a lending or contract without 
specialty and to debt for arrears in rent. So likewise it could 
not be pleaded in bar to a bill in Equity for subtraction of 
tithes'. However this state of the law was changed early in the 
present century when it was enacted by 53 Geo. III. c. 127, s. 5, 
that "no action shall be brought for the recovery of any penalty 
for the not setting out of tithes, nor any suit instituted in any 
Court of Equity, or in any Ecclesiastical Court to recover the 
value of any tithes, unless such action shall be brought or such 
suit commenced within 6 years from the time when such tithes 

' 2 Eagle on Tithes, .372. ' Marston v. Claypole, 1 E. and Y. 

-' Talorv v. .Taeksnn, Cm. Car. ;'1;{. H12. 



became due"; and further in 1832^ it was enacted that after 
the 31st December, 1833, no person claiming any tithes recover- 
able at law or in equity shall bring a suit or other proceeding 
in any spiritual court to recover the same but within the period 
during which he might bring such action or suit at law or in 

We now proceed briefly to show the change in this part of our 
subject which was wrought by the Commutation Act. By the 
81st section power is given for the recovery of the rent-charge 
and this power is a power of Distress. When the rent-charge is 
in arrear for 21 days after the half-yearly days of payment, the 
person entitled to the rent-charge after having given or left 10 
days' notice with the tenant in possession, can distrain upon the 
lands liable to the rent-charge for arrears, and can dispose of 
the distress when taken. In fact he must " demean " himself in 
regard to it in the same way as a landlord taking a distress for 
rent, provided however that not more than two years' arrears 
shall at any time be so recovered. It will be noted that the 
distraint must be on the lands and that there is no personal 
remedy against the non-payer. This is specially declared by 
the 67th section where it says that nothing contained in the Act 
shall be taken to render any person personally liable to the 
payment of the rent-charge. 

In case the payment has been in arrear for over 40 days and 
no sufficient distress appears on the land upon affidavit of the 
facts before the Court^ the judge may issue a writ to the sheriff 
of the county requiring him to summon a jury to assess the 
arrears still unpaid and to return the Inquisition thereon to the 
court. A copy of the writ stating the time and place of execu- 
tion must be left with or given to the owner of the land or his 
agent 10 days previous to the execution. On the return of the 
writ to the Court, the tithe- owner may sue out a writ of Habere 
facias possessionem directed to the sheriff, who will put him in 
possession of the lands which he may keep till all arrears and 
all costs are paid. This latter clause was necessary in order to 
defeat the attempts of land-owners to deprive tithe- owners of 
their right by leaving the lands uncultivated ; this having been 

1 .8 and 4 ^Yill. IV. c. 27, s. 43. - S. 82. 


held' not to entitle them to an action tor daniago. The persons 
in possession of distrained lands have to keep perfect accounts 
of all expenses and profits, and by the 12th section of 5 and G 
Vict, c. 54 the owner of the rent-charge may let land taken 
under a writ of possession for one year in possession. Section 
84 of the Act gives special remedies against Quakers whose 
goods may be distrained off the premises and sold without being 

Under the Fourth Tithe Amendment Act^ the notice of 
distraint or a copy of the writ to assess shall be considered as 
given or served, in case no person is found on the land, by 
affixing it in some conspicuous place on the land, and the 
previous section^ gives a remedy to one tithe-payer, who has 
paid a larger contribution than he considers just, when the land 
charged with one amount of rent-charge has several owners or 
tenants, against them by summons before the Magistrates' 
Courts who may order payment under their hands and seals. 

The remedies provided by the different Commutation Acts 
having often proved ineffectual in cases where the rent-charges 
had been charged upon land taken for railway purposes, an Act* 
was passed in 1844 extending the power of distraint over the 
goods, chattels, and effects of such companies, in case the rent- 
charge has remained unpaid for 21 days after the half-yearly 
day fixed for payment. And seven years later by clause 4 of 
14 and 15 Vict. c. 145, when a tenant who has undertaken the 
payment quits without having done so, the landlord may pay 
the charge and recover the amount from his late tenant as if it 
were a simple contract debt. 

1 Rex V. Commissioners of Nene ^ S. 10. 

Outfall, 4 M. and R. 017. ^ 7 and 8 Vict. c. 85, s. 2-'. 

- 5 and Vict. c. 51, s. 17. 



The history of tithe law shows that payment of tithes has 
been exempted or discharged in four different ways, viz., by 

I. (A) Real Composition, or by 

(B) Prescription de Alodo Decimandi. 

II. General prescription de non decimando. 
HI. Grant or Privilege. 

IV. Unity of Possession. 
I. (A) Real Cornjjosition. A Real Composition according 
to the old law books^ occurs " where an agreement by deed or 
fine is made between the parishioners and the parson or vicar 
with the consent of the patron and ordinary, that certain lands 
shall be discharged from the payment of tithes in consideration of 
certain land or other real recompense for ever." A Real Com- 
positiofi and a Modus are in fact the same things in nature and 
substance, differing only in the times of their commencement. 
The essence of the former is that it has been made within the 
time of legal memory, i.e. since the beginning of the reign of 
Richard I.; the essence of the latter is that it was arrived at 
before the time of legal memory. There is reason to believe 
that the practice of giving land as a real satisfaction for tithes 
with the necessary consents existed in the reigns of the early 
Angevin Kings. Perhaps the first 7'ecorded case of such a Real 
Composition occurred about the year 1236. We read how one 

1 Bishop of Winchester case, 2 Eep. 43, 44, 45. 


Sampson Foliot* brought a prohibition against Thomas, parson 
of Swindon, "because he had brought a suit in the Court 
Christian concerning his Sampson's lay fee in Drayeot, etc., and 
the defendant pleaded that he had not brought the suit con- 
cerning a lay fee, but that he wishes to speak the truth and he 
declares that in fact he sued before the appointed judges for 
tithes of the hay of a certain meadow in Walcot within his 
parish of Walcot, and he seeks for nothing in the parish of 
Drayeot, etc. And Sampson replies that his ancestors in former 
times granted two acres of meadow to the church of Drayeot in 
lieu of the tithe of hay wdiich the said Thomas 'sues for, and 
which acres in the same meadow the same church still has and 
since always has had, wherefore it appears that the said Thomas 
sues for as tithes that which is in a lay fee and that the meadow 
from which the said Thomas sues for as tithes is in Draicot as 
the writ shows and not in Walcot, etc." (quare secutus est in 
Curia Christianitatis de laico feodo ipsius Sampson in Draicot, 
&c." and the defendant pleaded that " non est secutus placitum 
de laico feodo sed verum vult dicere, et dicit quod revera coram 
jiidicibus delegatis petiit ab eodem decimas feni de (piodam 
prato in Walcot infra parochiam suam de Walcot, &c. et nihil 
petat in parochia de Draicot, &c. Et Sampson dicit quod ante- 
cessores sui antiquitus dederunt duas acras prati ecclesiaj de 
Draicot, pro decima feni quam pra^dictus Thomas petit, et in 
eodem prato quas eadem ecclesia adhuc habet et semper hucus- 
que habuit, unde videtur quod illud quod pra?dictiis Thomas 
petit decimas est in laico feodo, et quod pratum illud de quo 
idem Thomas petit decimas est in Draicot sicut breve dicit, et 
non in Walcot). Whereupon several issues being joined the 
jury gave the following verdict, that Thomas pursued his plea 
" in the Court Christian concerning the said lay fee of Sampson 
etc. by claiming from him tithes of the said meadow in Drayeot 
fr(jm which his ancestors gave to the church of Drayeot two 
acres in lieu of tithe of hay and which tithe the said Thomas 
now sties for and which acres the said chnrch still has and since 
has had" (in Curia Christianitatis de laico feodo praedict' 
Sampson isic. pretendo ab eo decimas of llic said meadow of 

' Midi. 2.-.. Hrii. TIT. Kot. "). 


Sampson in Draicot, unde antecessores sui dederunt ecclesiae de 
Draycot duas acras prati pro decima feni quam praedict' Thomas 
modo petit, et quas eadem ecclesia adhuc habet et semper 
hucusqiie habuit). Judgment is thereupon given for the 
l^laintifF in the prohibition and that he should recover tAventy 
marks damages. We have quoted the case fully not only on 
account of its historic interest as being a very early one of a 
E.eal Composition, but also as showing how the common law 
courts maintained their jurisdiction in matters w^here land and 
title came in, and as affording an instance of the rule that they 
take cognizance to the ousting of the ecclesiastical courts of 
cases where boundaries of parishes are tried. Speaking of such 
compositions Blackstone says\ they were "permitted by law 
because it was supposed that the clergy would be no losers, 
since the consent of the ordinary, whose duty it is to take care 
of the Church in general — and of the patron, whose interest it 
is to protect that particular Church — were both necessary to 
render the composition effectual : and hence have arisen all 
such compositions as exist to this day, by force of the common 
law. But experience showing that even this caution was in- 
effectual and the possessions of the Church being, by this and 
other means, every day diminished, the disabling statute 13 
Eliz. c. 10 was made which prevents" — 1 Eliz. c. 19 having 
done so in the case of Archbishops and Bishops — " among other 
spiritual persons, parsons and vicars from making any con- 
veyances of the estates of their churches other than for three 
lives or twenty one years l" Compositions real then are those 
agreements already described made after the beginning of the 
reign of Richard I. and before the year 1570, when the right to 
make them was stopped by the legislature. Although there 
are dicta that a composition real must have been made within 
the time of legal memory there is no absolute necessity for so 
limiting it and probably what was originally meant was that 
"they may and not that they must have originated after the 
time of legal memory, and before the restraining statutes^" 
When a real composition has been established the land is 

1 Commentaries, Vol. iv. p. 86. ^ Shelford on Tithes, p. 184. 

- Ante, p. 35. 


discharged for ever from tithes both at common law and by the 
statutes 82 Hen. VIII. c. 7, and 2 and 3 Ed. VI. c. 13, s. 4 ; the 
latter of which expressly provides that no person shall be sued 
for tithes of any lands that are discharged by composition 

In order to prove a real composition the courts have held 
that a deed must be produced, and where one cannot be pro- 
duced some evidence must be given referring to it, and showing 
that it did exist independent of mere usage. Baron Wood 
appears to have several times insisted though unsuccessfully' 
that a composition deed ought to be presumed' from length 
of usage and enjoyment, and Lord Cottenham seems to have 
held the same opinion ^ Two reasons have been given for the 
rule of law stated above, viz.: 

(A) Should a deed be presumed any bad modus might be 
turned into a good composition*. 

(B) The presumption would run counter to the maxim 
" nullum tempus occurrit ecclesiaj'*." 

Real compositions, as we have already seen, could not be 
tried in the Court Christian. If a suit were entered in the 
latter for tithes in kind, a prohibition would issue to remove it 
should a composition be pleaded ; though of course suits for the 
amount of the composition itself could be brought in the 
ecclesiastical courts. 

As in other matters well known to the student of our legal 
history, the Court of Equity exercising its jurisdiction as a 
Court of took upon itself to over-ride the express 
enactments of the legislature ; so with regard to real composi- 
tions in many cases it confirmed them though made since the 
passing of the disabling statutes, where they were done with 
the consent of the ordinary and patron and seemed to be for 
the benefit of the Church. However, about the year 1780— 
although an analogous case had been decided in the same way 
in 17G5, the Court of Chancery adopted a more reasonable 

1 Bennet v. Skelllngton, 3 E. and Y. =* Hoathcote v. Mainwaring, 2 E. 

827. Bennet v. Neale. and Y. 'dW\ 

■i E. and Y. 6.%. Ward v. Shepherd, * Ward v. Shepherd, ibid. 71)5. 
3 E. and Y. TJo. 


r\\\e\ to the effect that a decree in equity confirming an agree- 
ment for the acceptance of land for tithe made since the 13 
Eliz. c. 10 was not binding on the succeeding incumbent. 
However by the Modus and Exemptions Act of 1832^ it was 
enacted that every composition for tithes which had theti been 
made or confirmed by the decree of a court of equity in England, 
in a suit to which the ordinary, patron and incumbent were 
parties, and which had not since been set aside or departed 
from, should be valid in law. 

We have already observed that by Inclosure or other private 
Acts of Parliament, many permanent compositions for tithes 
have been established, and we may add that the rule of the 
restraining statutes applied only to ecclesiastical persons or 
corporations, for lay impropriators have full power to enter into 
what compositions they please. 

(B) Modus Decimandi. A prescription by de modo deci- 
mandi, or commonly a " modus decimandi is," says Blackstone^ 
"where there is by custom a particular manner of tithing allowed, 
different from the general law of taking tithes in kind, which 
are the actual tenth part of the annual increase," as for instance 
two pence per acre for the tithe of land ; or it may be a 
compensation for labour, as the twelfth hay-cock in considera- 
tion that the owner makes it for the parson ; or again a couple 
of fowls in lieu of tithe of eggs. In short any means by which 
the general law of tithing is altered and a new method estab- 
lished is called a modus decimandi. It has been long a rule 
of law* that rights founded on custom or prescription must 
have existed from time whereof the memory of man was not to 
the contrary, which was understood not merely of living memory, 
for if there were sufficient proof by any record or writing to the 
contrary, although it exceeded the memory of any one living yet 
it was legally within the memory of man. This period called 
"legal memory" as distinguished from the memory of man 
or living memory by equitable construction of the Statute of 
Westminster I. was made to commence from the first year of 

1 Jones V. Snow, 3 Gwill. 119'J, and ^ 2 Black. Comm. 2'J. 

3 E. and Y. 1291. ^ Coke Litt. 115 a. 

■^ 2 and 3 Will. IV. c. 100, s. 2. 


the reign of Richard I. a.d. 1189. Accordingly then as moduses 
are either customary or prescriptive they are supposed by the 
law to have commenced before the year 1189, and are in fact 
real compositions arrived at before that date. The distinction 
however between them is shown, in that a modus is presumed 
to have commenced by deed, but it is not necessary to produce 
that deed, inasmuch as after a constant annual payment in lieu 
of tithes from time immemorial or time out of mind, a legal 
commencement will be presumed \ 

As we have before remarked the determination of questions 
of modus belonged to the temporal courts, which always granted 
prohibitions de modo decimandi in case a suit for tithes had 
been brought in the spiritual court, and a modus-plea set up. 
The latter court it is true could enforce paj-ment of the amount 
of the modus (allowed) for it is expressly stated in Circumspecte 
Agatis, "and if a Rector sues against his parishioners for offerings 
and tithes due by law or by custom... the spiritual judge has 
jurisdiction notwithstanding a royal prohibition" (et si rector 
petat versus parochianos oblationes et decimas debitas vel 

consuetas judex ecclesiasticus cognoscere regia prohibitione 

non obstante). Speaking of this Act Lord Coke remarks ^ that 
since consuetas is used modus decimandi, real composition or by 
custom or prescription is established, " for wo have decimas 
debitas and decimas consuetas, and that is a duty, &c., in 
satisfaction of tithes as a yearly sum of money or other duty... 
and the parson may sue in Court Christian and is warranted by 
the Act." The record of the succeeding ages is still a constant 
endeavour on the part of the Church to obtain jurisdiction for 
her courts over the right of tithes and the customs of paying 

Even in the early part of the reign uf James I. we find 
a determined attempt in a series of articles by Richard Bancroft, 
Archbishop of Canterbury l Upon these articles all the judges 
and barons of the exchequer drew up resolutions which, though 
they were never made part of the law, still are " resolutions of 
the highest authorities in law." Speaking of the action of the 

' 13 Rep. 13. =* Aiticuli Cleri, 3 Jac. Regis. 2 

2 2 ///.s-r I'.tO. lust. (149. 


clergy in attempting " to work in the spiritual courts more 
commodity instead of being content with what was usually 
paid," Answer 15 says, "but now they grow so troublesome to 
their neighbours, as, were it not for the prohibition (as may 
appeare by the presidents before remembred) they would soone 
overthrow all prescriptions and compositions that are for tithes, 
which doth and would breed such a garboile amongst the 
people as were to be pitied and not permitted. And where 
they say there bee many statutes that take away these proceed- 
ing from the temporall courts, they are much deceived ; and if 
they look well into it, they shall find even the same statutes 
(they pretend) to give way to it. And it is strange they will 
affirme so great an untruth, as to say, they are not permitted to 
traverse the suggestion in the temporall court, for both the law 
and daily practice doth allow it " 

As in the case of a composition real the 2 and 3 Edward VI. 
c. 13 provides that no person shall be sued for tithes of lands 
which " by any privilege or proscription are not chargeable." 

The very numerous cases respecting moduses that fill our 
reports show them to have been a subject of unending litigation. 
It is beyond the scope of this Essay to enter into any historical 
analysis of them, we shall merely note as briefly as possible a 
few of the leading rules which the courts have established. In 
the first place moduses are either customary or prescriptive \ 
A customary modus is one which extends over a hundred, parish, 
township, or hamlet, and so covers all the lands in the district, 
but which exists in notion of law independent on the lands ; 
whilst a prescriptive modus is confined to a particular farm or 
quantity of land and so can no more exist without certainty in 
the lands than a shadow without its substance. The law has 
established many distinctions necessary for the proof of these 
different kinds of moduses which it is unnecessary for us to 
enter upon. The following rules appear mostly to have been 
established by the end of the 16th century in our courts. 

(1) A modus must in its origin have been beneficial to the 
parson and not to third persons only. Thus in Elizabeth's 
reign it was decided'^ that a modus to find straw for the body of 
1 Degge, 3.>3— 4. - Scory v. Barber, Gwill. 163. 


the church was invalid because the parson is not bound to find 
it ; though the case would have been different had it been to 
find straw for the chancel. 

(2) It must be something different from the thing com- 
pounded for'. Thus one load of hay in lieu of all tithe hay is 
not a good modus because the law presumes that no parson 
would take less than is his by right and the number of modus- 
cases appears to confirm this view. 

(3) It must be something as certain and durable as the 
tithe though it may not be so valuable, or in legal language it 
m.ust not be a desultory or leaping modus as that could not 
have been settled from time immemorial. The leadinof case 
upon this is Startupp v. Dodderidge^ decided in the year 17()G, 
which more particularly refers to a modus regulated by the 
value or improved yearly rent of land. In this it was decided 
that a custom to pay 25. in the pound of this true improved 
yearly rent of the land was void, not only on the ground of 
uncertainty but also that the lands might be unlet, underlet, or 
overlet. Here we come upon the doctrine of rankness. The 
same case is a leading one on this point also. It finally- 
decided that 

(4) A modus must not be too large, i.e. a rank-modus, or 
variable, as if the tithes be worth £60 per annum a modus of 
£40 cannot be established though one of 40s. might be good. 
The reason for this is that the presumed original composition 
was an equitable contract in which the full value of the tithes 
was given at the time of making. The time of making is taken 
as we have said as being prior to the reign of Richard I., and it 
is manifest that the present value of such a modus greatly 
exceeds the value of the tithe at that period. This doctrine is 
therefore a mere rule of evidence and not of law and the modus 
is in ])oint of evidence felo de se and destroys itself 'i'lic 
question is really one of fact to be tried by a jury, and rankness 
is only evidence against the immemoriality of the payment. 
As an instance of a modus bad through rankness we may take 
the following supposititious case. If tlic titlic-cliargc ii|)(iii (I 

' Penrose /•. Shepherd, 1 E. nvd V. - 11 Mod. OO, 1 ]•;. mid Y. DCl), 

44s. Gwill. r,H7. 


acres of meadow-land amounts in a year to 18s., a modus of 
Is. Qd. an acre would be rank because since a modus is invari- 
able (generally) Is. Qd. was evidently much more than the 
value of the tithe a.t the beginning of the reign of Richard I. 
Distinctions have it is true arisen on the question of rankness 
between farm payments and those for particular species of 
produce, but it is unnecessary for us to touch upon them here. 
On the question of variability the cases generally refer to tithes 
of occupied houses. Thus in Elizabeth's reign the court decided 
against a modus' by which time out of mind the occupiers of 
farm houses on one side of a road had paid Sd. a year, and those 
on the other side 2d. The reason for this is that houses may 
become uninhabitable through decay, &c., and so the payment 
would cease. The argument however did not apply to a modus 
to be paid by the inhabitant householders within a town or 
village", as it is not to be contemplated that a town or village 
could ever be wholly without inhabitants. The above at least 
seems to be the distinction deducible from the cases. 

(5) A modus for one species of titheable subjects does not 
discharge payment of tithes in full of another species^ This 
rule though decided by the judges in Elizabeth's reign is 
confirmed by the leading case already mentioned*. Thus a 
modus of one penny for every milch cow will discharge the tithe 
of milk kine but not of barren cattle. 

A modus may in several ways be discharged and the tithes 
again become payable in kind, as for instance by the removal, 
alteration or destruction of the thing for which it was paid®, e.g. 
a modus for hay or grass is destroyed or rather suspended when 
the land is converted into hop-gardens, though it will revive 
should the lands be again cultivated for hay. It is also said® 
that it may be lost by frequent payment of tithes in specie, but 
the following case decided by the Judges about 1601 seems to 
point the other way'. In a prohibition between Nowell and 
Hicks, vicar of Edmonton, the plaintiff alleged a custom, time 

1 Perry v. Soam, 1 E. and Y. 96. * Startnppi'.Dodderidge, ante, p. 93. 

2 Bennet v. Bead, Gwill. 1272. ■' 1 EoU. Abr. 651, 1. 35. 
Travis v. Oxtan, ib. 1066. « Com. Dig. Dismes (E. 20). 

^ Grysman v. Lewis, Cro. Eli?;. 44fi. " 2 Inat. 653. 


out of mind, of parang one penny for every lamb. The jury 
found that before the twenty years last past thei-e was such a 
custom, a modus decimandi : but in the last 20 years, by reason 
of suits and troubles, the inhabitants had paid lambs in kind. 
The judges held that': 

(1) " When a custom doth create an inheritance this cannot 
be waived or adnulled by payment or other matter in pais ; 

(2) Albeit that the modus had not been yielded or pay'd 
for 20 years, yet the prescription may be general and that the 
custom once established doth continue." 

Under the provisions of a late statute all persons may in 
certain cases claim exemption from tithes, in respect of long 
usage, that is when the usage can be shown to have lasted for a 
certain period of time. This is a principle entirely new to the 
common law, which never recognised a modus that had not 
existed immemorial ly, and allowed no total discharge from 
tithes by force of any custom or prescription whatever — except 
in the case of spiritual persons — thus maintaining inviolable the 
old maxim^ " modus de non decimando non valet." The 
statute which introduced this new principle was passed in 
1832^ (amended a year after*), in which it is provided that^ 
when tithe is demanded by any lay person not being a corpora- 
tion sole, or by any corporation aggregate, any modus or total 
discharge set up in answer to such claim shall be deemed valid, 
upon evidence showing an usage in support of it for thirty 
years ; unless it can be met by evidence that such usage has 
been by virtue of some agreement in writing ; or that before the 
thirty years the usage was different. And that a modus or 
discharge so set up in answer shall be deemed indefeasible, 
upon evidence showing an usage for as much as (JO years in 
support of it ; unless it be proved to have been by virtue of 
some agreement in writing. And further, that when tithe is 
demanded by any bishop, parson, or other corporation sole 
(spiritual or temporal), any claim of modus in discharge shall be 
valid and indefeasible, upon evidence of usage duiing the whole 

1 43 and 44 Eliz. * (.3 and 4 Will. IV. c. HH.) 

a Wright v. Wright. ' S. 1. 

:' 2 aii.l :j Will. IV. <•. 1(10. 


time that two persons in succession shall have held the benefice 
or office, and for 3 years after the institution or appointment of 
a third person thereto ; unless it shall be proved that such 
usage was by some agreement in writing. Provided however 
that^ if the whole time of the holding of such two persons shall 
be less than GO years, then it shall be necessary to show such 
usage not only during the whole of such time, but also during 
such further period as shall with such time make up the full 
period of 60 years and the further period of 3 years aforesaid. 

II. De JS^on Decimando. A custom or prescription De 
Non Decimando is to be discharged absolutely of tithes and to 
pay nothing in lieu thereof It has always been the rule of the 
common law — in accordance with the maxim, " ecclesia decimas 
non solvit ecclesiae" — that all ecclesiastical and spiritual persons 
and bodies, as bishops, abbots, priors, deans and chapters, 
parsons and vicars, and the king as being a persona mixta, are 
capable of prescribing in non decimando without being required 
to give any positive proof of the origin of the discharge, or to 
adduce any other evidence of title than usage and enjoyment 
from time immemorial. But a layman cannot prescribe in non 
decimando, not even lessees of the ancient demesnes of the 
crown^ unless he derives it from a spiritual person, as for 
example in the case of the lands in the hands of laymen which 
belonged to the religious houses dissolved by Hen. VIII. As 
examples of prescription in non decimando we may take the 
following. A bishop may prescribe that he and all his prede- 
cessors seised of a certain manor in right of his bishopric have 
held the manor by them and their tenants discharged of tithes, 
and it was decided in Elizabeth's reign ^ that copyholders of 
inheritance of a spiritual person may have a similar prescription, 
for the court will presume that the tithes were discharged 
before the creation of the copyholds. Attempts have been 
made in the courts* to uphold a prescription for the lords of 
manors to pay certain sums of money to the parson in lieu 
of tithes and for them to take the tithes themselves. The 

1 t^ 1_ * Pigot r. Heron, 1 E. and Y. 135. 

'-! 1 Cro. 511. Pigot V. Simpson, ib. 148. 

:: 1 E. and Y. 140. 


authority however is very strong against such prescriptions'; 
for if it could be legally done it would make the right to tithes 
assignable from one layman to another, and would make a 
layman capable of tithes in gross. The old law books state that 
though a parish or particular hamlet cannot prescribe in non 
decimando, yet a county, wild, or hundred, or any well-ascer- 
tained district, may have such a privilege for things titJieable by 
ciLstom. It is even stated positively by Lord Coke in the 
Second Institute " that a county may prescribe to be quit of any 
othei^ tithe. 

It must be remembered that where cases concerning pro- 
scriptions in non decimando could be brought within the Modus 
Act* and its Amendment, its terms would apply*. 

III. Grant or Privilege. Lands may be totally discharged 
from the payment of tithes by privilege or by Act of Parliament. 
All abbots, priors, and other heads of monastic houses were 
originally subject to the payment of tithes, until Pope Paschal 
II. exempted the religious houses from paying them in respect 
of lands in their respective possession, or as it was expressed, 
" quam diu propriis manibus excoluntur^" About the year 
1160, Pope Adrian IV. limited this exemption to the three 
orders — known generally as the privileged orders — of Cister- 
cians, Templars and Hospitallers, in respect of lands that were 
then in their own management. This privilege was confirmed 
by the canons of the last General Council of Lateran held in 
the year 1215, and was allowed by the general consent of the 
realm as part of the law of the land*'; but it extended only to 
lands which they had before the date of the council. Lord 
Coke informs US'" that Pope Innocent III. by his bull discharged 
the Premonstratenses from payment of tithes of such lands as 
were of their own manurance, but the cases decided in the 
courts* go to show that the privilege did not extend to this 

' Phillips V. Prytherick, 3 E. and Y. "2 Inst. 652. 

1273. Knight i;. Marquis of Waterford, ''Ibid. 

4 Y. and Coll. 328. " Dickenson v. Grccnhill, 1 E. and 

2 (545_ (jio Oil. Y. 332. Bradshawr. Clifton, 3 E. and 

^ 2 and 3 Will. IV. c. 100. Y. 1231. Townley v. Tomlinson, Gwill. 

4 3 and 4 Will. IV. c. 27. 1001. 

» 2 Rep. 44 b. 

Y. E. 7 


order, and consequently a title to hold lands discharged from 
the payment of tithes either absolutely or while in the manur- 
ance of the owners of the inheritance cannot be derived under 
that order. After the passing of the statute De Viris Religiosis 
in 1279, which gave a terrible blow to the monastic bodies, the 
privileged orders endeavoured to obtain by purchase or other- 
wise bvills of exemption from tithes from the Pope for their 
lands let to farmers, and also for the lands acquired by them 
since the time of the above-mentioned Council of Lateran. 
These bulls having the force of law by the Canon Law were 
allowed in actions for tithes which, as we have already shown, 
were brought in the spiritual courts. However in the year 1400 
this method of evasion was put a stop to by the 2 Hen. IV. c. 4, 
which subjected not only Cistercians, but all other religious and 
secular bodies which put any bulls in execution for discharge of 
tithes of their lands, to the danger of a praemunire. The 
Statute of Praemunire \ which was passed in A.D. 1393, as a 
supplement to that of Provisors which had stopped appeals to 
the Court of Rome, rendered persons or bodies who put papal 
bulls, excommunications, &c., in execution, in causes whereof 
the cognisance belonged to the King's Courts, liable to for- 
feiture of their lands and goods, and also to imprisonment. 
The Act of Henry IV., it will be noticed, created only a penalty 
for using such papal instruments, which were not made void and 
of none effect till the time of the dissolution of the monasteries, 
when this was done by the 28 Hen. VIII. c. 16. The effect of 
the dissolving statutes on the lands of the privileged orders 
will be considered presently. We must however remark that 
the object for which the Templars' order had been called into 
existence having ceased the order was dissolved in the reign of 
Edward II., and their lands were given to the prior of the 
Hospital of St John of Jerusalem. 

IV. Unity of Possession. Lands might have been dis- 
charged from tithes by Unity of Possession, as when the rectory 
of a parish and lands in the same parish both belonged to a 
religious house, but only whilst such unity of possession con- 
tinued. The requisites for such exemption which were laid 

1 16 Rich. II. c. 5. 


down ill the Archbishop of Canterbury's Case, decided in the 
38th year of Elizabeth and in a few other cases, were as follows: 

(A) The union must have been founded upon legal title ; 

(B) And equal with respect to the quantity of estate ; 

(G) The lands must have been free from the payment of 
any tithes in any manner, and freedom and possession must 
have existed immeinorially and must not be presumed*. 

The exemptions enjoyed by lands belonging to religious 
houses under the above-mentioned circumstances being personal 
would have fallen "with the houses at the dissolution and the lands 
become again titheable had not they been supported and 
continued by Act of Parliament. The statute 31 Hen. VIII. c. 
13, s. 121, in dissolving the Greater Abbeys declared that the 
king and his patentees, or all and every other person, their 
• heirs and assigns, who had or should have any lands &c. belong- 
ing to the monasteries and other houses should keep and enjoy 
them, discharged of the payment of tithes in as large and ample 
a manner as the abbots, priors, &c., enjoyed the same at the 
day of their dissolution. The Act which dissolved the smaller 
monasteries ^ i.e. those of or under the annual value of £200, 
did not contain any such clause, so that it is usual to speak of 
the exemption as confined to the greater monasteries. But it 
must be remarked that the 31 Hen. VIII. c. 13, comprehended 
all monasteries which were dissolved after February lo35 (27 
Hen. VIII.), so that the lands of those smaller abbej^s which 
were surrendered to the king subsequent to the 4th February 
1535, come within the operation of the section of the Act that 
relates to discharge. The 27 Hen, VIII. c. 28, had provided 
that notwithstanding that Act the king might continue any of the 
said monasteries, which he did in some cases, but which were 
dissolved by the Act which dissolved the large monasteries^ 
By virtue of the statute 31 Hen. VIII. c. 13, s. 21, the owner 
of abbey lands was discharged from tithes if he could show that 
at the time of the dissolution there had been an unity of 
po.ssession with the requisites above mentioned. To sum up, 
then, we may state that to establish a claim to exemption : 

» Lamprey v. Rooke, Gwill. 859. =' Wood's Inxt. IHU. 

•-' 27 Hen. VIII. c. 2H. 



(A) The lands must have belonged to one of the greater 
monasteries, or of the smaller if they came under the statute ; 

{B) They must have been held by the monastery discharged 
of the payment of tithes at the time of the dissolution. 

Lands so exempted under the statute have been held free 
from tithes \ although they had been paid ever since the Act ; 
and even where land which had formed part of the possessions 
of an abbey as a fish-pool had been drained and cultivated, it 
was held that the discharge from tithes remained. 

Similar to exemptions derived from unity of possession those 
of the privileged orders would have been determined by the 
dissolution of the spiritual body to which they were annexed, 
but for the provision in the 31 Hen. VIII. c. 13, which also 
continued them. But at the time of the dissolution there were 
only two privileged orders, viz. the Cistercians and Hospitallers, 
the Templars having been dissolved years before, and their 
lands given to the Hospital of St John of Jerusalem. There 
was some difference of opinion as to whether the lands of the 
latter body which came to the Crown by 82 Hen. VIII. c. 24, 
were entitled to the benefit of the protection contained in 81 
Hen. VIII. c. 13. But it was settled in James I.'s reign, in the 
case of Cornwallis v. Sparling*, that they were. 

It was formerly held that the exemption from pa3dng 
tithes applied only to those who had an estate of inheritance 
in the land, and not to tenants for life^; but this was overruled 
in the year 1799, and a tenant for life under a settlement was 
held entitled to the exemption. The case was Hett v. Mead*, 
and it was objected that a tenant for life of lands formerly 
belonging to the Cistercian order, and exempt from tithes of 
lands in the manurance of the owner, had not such an interest 
in him as would support the privilege ; for that to entitle the 
lands to the exemption, the owner must be the absolute owner, 
and have the same estate as the monastery had. It was held 
that there would be no reason why the estate for life and all other 

^ Earl of Clanricarde v. Lady Den- ^ Wilson v. Redman, E. and Y 

ton, 1 E. and Y. 306. 430. 

2 Gwill. 224. 4 Gwill. 1515 and 3 E. and Y. 1384. 


component parts of the estate should not be exempt as they 
came into possession, and the Court unanimously decreed that 
the tenant for life was exempt. It seems, however, that a mere 
common lessee would not be discharged, because he does not 
hold a kindred estate to that which the abbeys had done. 

An exemption derived from the fact of lands having belonged 
to a privileged order does not rest on prescription. The 
claimant must therefore show' that the monastery was seised of 
the lands before the year 1215, and also at the time of the 
dissolution ; and as in the case of other monastic lands exempt 
under statute, proof of payment of tithes by the owners of the 
lands will not affect the continuation of the privilege"''. 

It must not be concluded that the privileged orders were 
incapable, in consequence of their privilege, from being dis- 
charged by real composition or prescription. There has been, 
how-ever, some difference of opinion, but now the general opinion 
is^ that they were as capable as every other order or individual. 
Their privilege could not deprive them of a right which they 
had in common with others, otherwise that which was called a 
privilege would have been a disqualification and not an advan- 
tage. A common notion has prevailed that all lands which 
happen to have belonged to dissolved monasteries were dis- 
charged from tithes, but, as we have seen, the law was that 
they were as liable as any other lands unless a legal exemption 
could be shown. Thus the greater part of the possessions of 
the smaller monasteries, the Colleges, Chantries and Free 
Chapels given to the Crown by statute 1 Ed. VI. were not 
entitled to exemption unless discharge could be proved by the 
other legal means. This explains the fact that in our day one 
piece of land may pay no tithe whilst the adjoining field is 

By section 4)4 of the Commutation Act any modus, com- 
position real and customary payment instead of tithes were to 
be taken at their actual amount and added to the value of thr 
other tithes, the only difference being that such payments were 

1 Norton v. Hamnioud, 1 Y. aud Y. 118. 

Jerv. 94. "' Donnison v. Elslcy, i E. ami Y. 

2 Stavcly r. Ullithorue, 1 E. aud 1393. 


for the future converted into rent-charges varying with the 
price of corn. Disputes as to the amount, or existence of the 
modus, &c. could be determined by the Tithe Commissioners \ 
subject to an appeal to a court of law on an issue or special 
case, should the yearly payment in dispute exceed the value of 
£20. When lands were exempted by reason of privilege or 
where the tithes might be considered as suspended, as in the case 
of glebe or barren lands, a certain portion of the rent-charge 
was allotted to each^ if they had been included in the valuation. 
The lands of privileged orders would only become liable to the 
portion fixed on them when they lost the benefit of their privi- 
lege by not being in the manurance of their owners. Glebe 
land belonging to one parson situate in the parish of another^ 
was always liable to tithes unless a prescription in non deci- 
mando had been established. Such lands were then liable to 
the rent-charge under the Commutation Act, and when in the 
occupation of the tithe-owner would only be exempt. Barren 
lands* become liable to the portion of the rent-charge fixed 
upon them at the expiration of seven years after they were 
brought into cultivation. 

1 SS. 45, 40. 3 ss. 67 and 71. 

2 S. 21. * S. G7. 



Houses as such have never in law been liable for the pay- 
ment of tithes, yet in the City and Liberties of London they 
form a notable exception to this rule. Tithes are there paid by 
all persons liable in law to the relief of the poor. The growth 
of this practice, from originally a purely voluntary offering into 
a right by custom, demandable by the parsons of its parishes, 
and finally confirmed and regulated by Acts of Parliament, was 
briefly somewhat as follows. 

Prior to the year 1228* no tithes as tithes were paid in the 
City, but the clergy were maintained by an offering on each 
Sunday and Apostle's day of a farthing for every 10s. of rent. 
There is evidence, however^ that in one of the Liberties, viz. 
that of St Martin's-le-Grand, tithes as such were paid before 
that date, but this appears to have been a notable exception. 
"The fifty-two farthings," Selden says, "so yearly paid on 
Sundaies only, came so neere to the just tenth of the rent, that 
they were thought on as a Tithe paid ; the other " — that is on 
the Apostles' days — "being reputed rather by the name of 
Offerings." Whether to confirm these customary payments or 
because they had been found to decrease, it appears clear that 
in the year 1228 the then Bishoj) of London, Roger Niger, 
made an ordinance that every occupier of a house should offer 

• Selden, 244—5. Selden, 245. 

^ Grant's Case, lieports, 11 fol. 


as his tithe ^d. for 205. a year rental, and ^d. for 10s. a year 
rental, for every Sunday and every Apostle's day whereof the 
eve was fasted. " By an ancient Ordinance in the said City 
they are bound, on every Sunday and on the principal Feast 
Days both of the Holy Apostles and of others whose Eves are 
fasted, to pay one farthing for every ten shillings of rent of the 
house which they occupy." (" Ex Ordinatione antiqua," says 
Lindwood\ "in dicta Civitate, tenentur, singulis Dominicis 
diebus et in principalibus Festis et Sanctorum Apostolorum et 
Aliorum quorum Vigilise jejunantur offerre pro singulis X. 
solidis redditus domus quam inhabitant unum quadrentum.") 
Taking the Apostles' days at eight the annual amount paid for 
20s. rent would be 2s. Qd. and for 10s. rent Is. Sd. In accord- 
ance with this ordinance such tithes were paid by the citizens 
of London till the year 1389, when Thomas Arundel, Archbishop 
of Canterbury, made an attempt to increase the number of 
Apostles' days by adding twenty-two more saints' days, thus 
increasing the tithe payments to 3s. 5d. a year. Constant 
quarrels between the citizens and their clergy followed this 
arbitrary interference, but the archbishop appears to have 
gained his point, as it was confirmed by Pope Innocent VII. in 
1403. In the records of the Common CounciP fifty years later 
there appears a protest against this increased payment, but 
there seems to be no doubt that it was enforced by the eccle- 
siastical courts. 

In this state the matter remained till the year 1535, when 
an Act of Parliament^ was passed, authorising the citizens of 
London to pay their tithes at a rate of 2s. 9d. in the pound. 
Ten years later another Act* was passed, in which it was 
enacted " that the citizens and inhabitants of London and the 
liberties of the same shall yearly without fraud or covin for 
ever pay their tithes to the parsons, vicars, curates, of the said 
city and their successors for the time being, after the following 
rate : For every 10s. rent by the year of all houses, shops, ware- 
houses, cellars, stables, &c. within the City and Liberty 16jd; 
and for every 20s. rent by the year 2s. 9d.; and so above the 

1 Selden, 244. 3 27 Hen. VIH. c. 21. 

2 Letter-Book K. 32 Hen. IH. ■» 37 Hen. VIII. c. 12. 


rent of 205. ascending from IO5. to 10s. according to the rate 
aforesaid." Further, if no rent were reserved the tithe should 
be paid according to what the house had been last let for. 
Provided however that where a less sum than 2s. 9d in the 
pound hath been accustomed to be paid in such cases the 
former custom shall continue. After the Great Fire of 1666, in 
consequence of the confusion necessary upon the alteration of 
houses and streets, an Act of Parliament^ was passed by which 
it was intended to reduce the tithing of the City to " certainty." 
Fifty-one parishes are there named, and amounts allotted op- 
posite their names, varying from £200 per annum, the greatest 
income of Rectors, to £100 the loAvest, over and above per- 
quisites, gifts, &c., which sums of money were to be paid in lieu 
of tithes^ in the respective parishes and which should be taken 
to all intents and purposes to be the respective annual main- 
tenance of the parsons, vicars, &c. of the parishes. The money 
was to be levied by rate and assessment on the inhabitants 
made by the Aldermen of the several Wards, Common Council- 
men and Churchwardens. In case of refusal or non-payment 
the Lord Mayor should issue his warrant of distress, and if he 
refused to do so the Lord Chancellor or Keeper of the Great 
Seal, or any two or more of the barons of the Exchequer, should 
issue warrants of distress. In the parishes where there were 
impropriations, the impropriators were to pay and allow what 
they formerly used and ought to pay to their several incum- 
bents. No court or judge ecclesiastical or temporal was to have 
any cognisance of any dispute relating to the sums due in lieu 
of the tithes except those mentioned in the Act. 

It must be remarked that the inhabitants of those parishes 
within the City and Liberties which were not destroyed by the 
fire continued under the old system. The general Acts of 
Parliament referring to tithes which have been passed since the 
reign of Henry VIII. always exclude tithes of the City of 
London and Liberties from their operation, and this is also done 
by the 90th section of the first Commutation Act"'. 

During late years, in consequence of numerous disputes 

1 22 and 23 Car. II. c. 15. » G and 7 Will. IV. c. 71. 

2 S. 3. 


various Acts of Parliament have been passed dealing with 
certain of the parishes. 

(i) By the Christ Church (City) Tithe Act of 1879 \ the 
Hospital of St Bartholomew, which had been founded and 
endowed by Henry VIH. with the impropriate rectory and 
tithes of the parish of Christ Church, was to receive £1800 in 
lieu of tithes, which sum was to be levied and collected from 
persons by law rateable to the poor in the parish. Tithes in 
arrear could be recoverable by distress in the same way as 
under the Commutation Act. The Governors of the Hospital 
were also empowered, if they thought fit, to pay the Vicar of 
Christ Church £150 a year instead of the £40 already paid. 

(2) The City of London Tithes Act' of 1879 provides for 
the commutation of tithes in certain parishes and for the 
redemption of rent-charges charged upon lands under the Act. 

(3) In the parish of St Botolph-without-Aldgate disputes 
arose as to the payments made to a lay-impropriator under the 
above Act. In consequence thereof a special Act^ was passed in 
1881, by which he as tithe-owner was to receive £6500 a year in 
lieu of tithes, which was to be levied and collected by the 
churchwardens from the persons rateable to the poor, and 
assessed on the annual rateable value of houses for such poor 
rates. The owners of houses were empowered to redeem the 
tithes as if they were rent-charges under the Commutation Act. 
The sum of £6500 was arrived at by calculation of the sum of 
2s. 9d. on the valuation of the parish, it having been not within 
the scope of the Act of Charles II. Notice of a new bill to be 
introduced next session has appeared, by which it is proposed to 
redeem the tithe of this parish by raising the money on mort- 
gage of the rates of the parish. 

We have now traced the history of our subject, from the 
metaphor which first foreshadowed its conception to the establish- 
ment of a purely voluntary system of tithing in the dim light 
of the dawn of Christianity in our country ; to the enforcement 
of it by the Fathers of the Church as a right with a moral and 
religious sanction ; to the recognition of it as a right in the 

1 42 and 43 Vict. c. 93, =* 44 and 45 Vict. c. 197. 

» 42 and 43 Vict. c. 176. 


strict sense of the term and to its establishment as such by the 
act of the Legislature. We have seen the gradual extension of 
the system till it embraced nearly every subject that touches 
the hand of man — the dying otf of some, the increased vitality 
of the power of the law over others. We have noted the growth 
of customs, their embodiment in the law of the land and the 
peculiar rules concerning them which our courts have held. 
We have observed the causes which have led to important 
changes in the law ; and in our own day the various attempts 
that have been made to adapt it to a combination of both the 
principles of justice and the wishes of the people. Though we 
have come to the end of our history, the history of the Law of 
Tithe is not yet finished. There may be many changes and 
startling innovations before that book is closed. 


Abbeys, Saxon, 15, 16 

Abraham, 1 

Action of Debt, 79, 83 

Adrian iv, Pope, 18 

Agistment, 51, 52 

Alexander iii. Pope, his letter to en- 
force tithe paying, 18, 23, 48, 55 

Alfred, King, his laws, 12 

Althorpe, Lord, 40 

Angevin period, procedure in, 65 

Animals, wild, 57 

Apportionment, 41, 45 

Appropriation of Tithes, 24 

„ Form of, 24, 25 

„ is no Mortmain, 25 

,, Validity of Ancient, 30 

Archbishops, their leasing powers, 34 

Athelstan, King, his royal injunction, 

Attachment of contempt, 76 

Augustine, Saint, 2, 3, 7 

Award, compulsoi-y, 41 

Bangor, Monks of, 7 

Bartholomew, Hospital of Saint, 106 

Bees, Tithes of, 48 

Bishops, their leasing powers, 34 

Blackstone, 15, 22, 24, 39, 88 

Boclaud, 11, 12 

Borough-English, 33 

Botolph-without-Aldgate, Tithes in the 

parish of, 106 
Bounty, Queen Anne's, 45 
British Church, the ancient, 4 — 6 
British Dioceses, 4, 5 
Bulls, Papal, 98 
Butter, Tithes of, 48 

Canon Law, Statutory limitations of 

the, 80 
Canute, King, his tithe laws, 13 
Cases, vide Table of 
Cattle, Tithes of, 47, 48 
Chancery, Court of, 83 
Charges on Benefices, 36, 45 
Charles the Great, his tithe laws, 3, 4, 61 
Cheese, Tithes of, 48 
Chrysostom, Saint, 2, 3 
Chiuch Kates, 44 
City of London, Tithes in the, 103 — 


Clarke, Mr, History of Tithes, 12 
Coke, Sir Edward, 23, 91, 97 
Command and Payment, Process of, 

Common Lands, 59 
Common Law, Courts of, 83 
Commutation of Tithes, 33, 40 

,, ,, ,, modes of, 40 

,, Acts, Object of, 45, 46 

Compositions, Real, 86, 87, 88, 89, 90 
Consecration, Right to tithes by, 18 
Consultation, Writ of, 75, 76 
Controller of Corn returns. The, 41 
Copyholds, 33, 38, 45 
Corn, Tithes of, 47 
Corporations, aggregate and sole, 33 
Cottenham, Lord, 50 
Council of Aries, 4 

,, Chelchyth and Pincahala, 

10, 61 
,, Clovesho, 16 
„ Lateran, 22, 23, 24 

London (a.d. 1175), 19, 48 
Loudon (a.d. 1237), 67 
London (a.d. 1295), 19, 48 
,, Macon, 3 

,, Pincahala and Chelchyth, 
10, 61 
Tours, 3 
Whitby, 5, 8 
Cromwell, Thomas, his policy, 28 
Customs, Questions of, how determined, 
,, Special, of Tithing, 25 

De non Decimando, Prescription, 96 
Deduction of Rent-charge from the 

rent, 42 
Dee, Tithes of fish in the, 25 
Disabling Statutes, 33—36, 88 
Discharg;e of Tithes, 86—102 
Dissolution of the Monasteries, 27 — 
„ Procedure in suits after 

the, 77 
Distraint, 42 

,, Powers of, under Commuta- 
tion Act, 84 
,, Notices of, when served, 85 

Easter Controversy, the, 5 



Ebbsfleet, First landing-place of the 
English at, 7 

., of Au- 
gustine at, 7 
Edgar, King, his laws, 13, 14, 15 
,, ,, Ordinance of the Hun- 

dred. 13 
Edward the Elder, King, his laws, 12, 

Edward the Confessor, Iving, his laws, 

14, 47 
Egbert, Archbishop of York, 9 

,, Exceptions attributed to, 9 
Enabling Statutes, 33 — 3C 
Endowments, Arbitrary tithe, 21 — 25 
Equity, 1 

,, and Tithe suits, 83 
,, Courts of, Jurisdiction of, 89, 90 
Ethelred, King, his supposed law for 

the partition of tithes, 13, 47 
Ethelwulfs Charters, 11 

,, „ their bearing on 

tithe law, 12 
Excerptions of Egbert — spurious, 9 
Exchange of lands for tithes, 34 
Exchequer, Court of, 83 
Extra-ordinary Tithe, the, 52, 53, 54 
Extra-parochial places, Tithes in, 59 

Fines, 72 

Fire, The Great, and Tithes in London, 

Fish, Tithes of, 55, 56 
Foals, Tithes of, 48 
Folc-land, 11, 12 

Gavel-kind, 33. 

Grant, Discharge of Tithes by, 97—98 
Great Tithes, 26 
Greeks, Tithes under the, 2 
Gregory the Great, Pope, 7 
Guthrum the Dane, his treaty with 
Edward, 12 

Habere Facias Possessionem, Writ of, 84, 

Haddan and Stubbs', Messrs, " Coun- 
cils ", 2, 5, 8, 9, 10, 18 

Hallam, 3, 4 

Heriots, 19 

Highway Rates, 43 

Hops, Tithes of, 52, 53, 54 

Hospitals, Dissolution of the, 30 

Houses, Tithes of, 57, 103 

Howel the Good, his code, 5 

Hundred-moot, 62 

Impropriators of Tithes, 29 
Impropriate tithes, how conveyed, 31 
„ „ not appurtenant to 

land, 31 

Impropriate tithes. Descent of, 33 
,, ,, Devise of, 33 

,, ,, Lease of, 35 

Increase, Tithe of, 43, 47 
Inclosure Acts, 60, 90 
Indiravit, Writ of, 65, 66, 67, 68, 69 
Infeudation of Tithes, 24 
Innocent in. Pope, his letter to Wal- 
ter, 22 

,, VII. Pope and Tithes in Lon- 
don, 104 
Inquest, 65, 68, 69 

Jacob, 1 

Jerome, Saint, 2, 3 
Jus I'arochidlf, 18 
Jitsticies, Writ of, 64 
Justices, Ilecovery of Tithes before, 81, 

King, the, his right to tithes, 59 

Labourers, Tithes paid by, 49 

Lambs, Tithes of, 48 

Lammas Lands, 58 

Laud Tax, 43 

Leases of Tithes, 33 — 36 

Leasing powers at the pi'esent time, 38 

Limitations, Statute of and Tithe suits, 

London Gazette, the, 41 
London, City and Liberties of. Tithes 

in the, 103—106 
Ludlow, Judge, 22 

Maine, Sir Henry, 1 

Magna Carta, 75 

Mandamus, 73 

Manors, 9 

Market Gardens, 53 

Merger of Tithes, 44 

Milk, Tithes of, 48 

Mills, Tithes of, 55, 56, 57 

Milman, 3 

Mines, Tithes of, 57 

Mixed Tithes, 26 

Modus, 90—96 

,, Commutation Act, 102 

,, Definition of, 90 

,, Discharge of, 94 

,, Ancient Jurisdiction in, 91 

,, Answers of judges in regard to, 

,, Requisites of, 92 — 94 

,, Leaping, 93 

,, Rank, 93 

„ Act, The, 95 
Mortmain, 25 
Mortuaries, 19, 20 

Niger, Bishop, Ordinance of, 104 



Non-residence, penalties against, 37 

Norman Church, Organization of the, 

Norman period. Procedure in the, 63, 

Normans, Tithe paying virtually dis- 
continued under the, 17 

Oak, Conference of Augustine's, 5 
Offa, King, his supposed grant of tithes, 

Origen, 2 
Orders, the Privileged, 97, 99 

,, ,, ,, Exemptions, of 

100, 101 

Parcellers of Tithes, 31 

"Parochia", 8 

Parochial Right to tithes, 18 

Parishes, History of the growth of, 8, 
14, 15 

Parnynge, Sir Edward, 22 

Patents, 70 

Paulus, 2 

Peel, Sir Robert, 40 

Perpetual Curacies, 31 

Personal Tithes, 27, 49 

,, ,, become obsolete, 80 

Pigs, Tithes of, 48 

Poor Rate levied on Tithes, 43 

Possession, Powers of, in case of non- 
payment, 84, 85 

Potatoes, Tithes of, 55 

Praedial Tithes, 26 

Praemunire, 98 

Prender, Tithes lie in, 35 

Prescription de non decimando, 96, 101 
Right to Tithes by, 18 

Priories, Supi^ression of alien, 28 

Privilege, Discharge of Tithes by, 97 — 

Profits, Tithes of Merchants, 49 

ProMbitio7is, 67, 75, 76 

Provisors, Statute of, 98 

Punic tithe exactions, 2 

Quakers refusing to pay tithes, 82 
Quarries, Tithes of, 58 

Railways, 85 

Rates and Taxes, 43 

Rectories, Origin of, 26 

Rectors' right to tithes established, 18 
,, suits between, 66, 67, 68 
„ right to Great Tithes, 26 
,, leasing powers, 35, 36 
,, right to repair the Chancel, 44 

Recoveries, 72 

Redemption of Tithes, 45, 46 

Rent-Charge, Tithe, 40—43 

,, liable for interest as be- 

fore the commutation, 45 
Right of Advowson, Writ of, 68 
Romans, Tithes under the, 1 
Russell, Lord John, 40 

Saxon Church, the, 8, 9 

Saxon Procedure, 61, 62 

Scire Facias, Writ of, 69 

Selborne, Lord on arbitrary consecra- 
tions, 23 
,. ,, on Ethelred's supposed 

laws, 13 
,. „ on Ethelwulf's Char- 

ters, 12 
,, ,, on the Legatine Coun- 

cils, 11, note 1 

Selden, John, 2, 3, 12, 13, 14, 15, 22, 
23, 67, 71, 103 

Separation of the spiritual from the 
temporal courts, 62 

Silva Caedua, 50, 51 

Shiremoot, 62 

Slates, Tithes of, 58 

Small Tithes, 26, 81 

Statutes, see Table of 

Stones, Tithes of, 58 

Stratford, Archbishop, 50 

Subjects Titheable, 47, 55 

Suggestion, the, 75 

Synod of London, 48, 49 

Synod of Westminster, 21 

Tenants flitting, 85 

,, Life and Discharges, 100 
Tithe Commissioners, The, 40, 41, 45 
Tithe, Definition of, 1, 47, 55 
Theodore of Tarsus, 8 
Theodore's Penitential, 9 
Turnips, Tithes of, 55 

Unity of Possession, Discharge by, 98 

Venire Facias, Writ of, 68 
Vicarages, Origin of, 26 

,, Appropriation of, 27 
Vicars, their right to small tithes, 26 
,, their leasing powers, 35 — 36 

Wapentake, 62 

War, the Tithe, 46 

Waste Lands, 60 

William the Conqueror, 14, 47, 62 

Winchelsey, Archbishop, 48 

Wood, Tithes of, 50, 51 

Wool, Tithes of, 48 

Workmen, Tithes paid by, 49 


Abbot of Selby's Case 67. 

Alchin i\ Hopkins 36. 

Andrews v. Drever 31. 

An sell ?'. Adman 56, 

Att. Gen. v. Lord Eardley 59. 

Bennet v. Neale 89. 

„ ,, Eeade 94. 

„ ,, SkefSngton 89. 
Bibye v. Huxley 51. 
Bishop of Winchester's Case 86. 
Bonsey v. Lee 31. 
Bradshaw v. Clifton 97. 

Canterbury's, Archbishop of, Case 99. 
Chichester v. Sheldon 51. 
Clarke v. Yonge 41. 
Corbet's Case 18. 
Cornwallis v. Spailing 100. 

Dent V. Rob 31. 
Dickenson v. Greenhill 97. 
Doe d. Watson v. Jefferson 33. 

,, ,, Lushington v. Bishop of Llan- 
daff 33. 

,, ,, Coates V. Summerville 36. 
Donnison v. Elsley 101. 
Duke of Portland v. Bingham 27. 

Earl ofClanricardev. Lady Denton 100. 
Evans v. liowe 50. 

Finch's Case 35. 
FoUot's Case 87. 

Grant's Case 103. 
Green v. Hull 57. 
Grymes v. Smith 30. 
Grysam v. Lewis 94. 

Heathcote v. Mainwaring 89. 
Hett V. Mead 100. 
Hughes V. Billinghurst 56. 

Jones V. Snow 90. 

Knight V. Marquis of Waterford 97. 

Lamprey v. Kooke 99. 
Lozon v. Pryse 50. 

Macgill V. Le Strange 31. 

Marston v. Cla-^'pole 83. 

Metcalfe v. Archbishop of York 36. 

Newland r. Walkin 36. 
Newte t'. Chamberlain 56, 57. 
Norton v. Hammond 101. 
Nowell V. Hicks 95. 

Penrose v. Shepherd 93. 
Perry v. Soam 94. 
Phillips V. Prytherick 97. 
Pigot V. Heron 96. 

,, ,, Simpson 96. 
Prior of Worcester's Case 25. 

Rex V. Commissioners of Nene Outfall 

Rex V. Jeffereys 81. 
Rich V. Sanders 33. 

Scar V. Trin. Coll. Camb. 27. 
Scory IK Barber 92. 
Shaw V. Pritchard 36. 
Startupp V. Dodderidge 93, 94. 
Stavely v. UUithorne 101. 
Stoutfil's Case 57. 

Talory v. Jackson 83. 
Talentine ?'. Denton 35. 
Townley v. Tomlinaon 97. 

Ward V. Shepherd 89. 
Wilson V. Redman 100. 
Woolley V. Brinvnhill 30. 
Wright V. Wright 95. 


9 Hen. III. c. 28 (Magna Carta) 75. 
13 Edw. I. c. 1 (De Bonis) 32. 
13 Edw. I. (Ciicumspecte Agatis) 18, 
20, 66, 68, 90. 

9 Edw. II. e. 5 (Articnli Cleri) 55. 
18 Edw. III. c. 7. 71. 

45 Edw. III. c. 3 (Silva Caedua) 50. 
15 Eich. II. c. 6. 20. 

10 Eich. II. c. 5 (Praemunire) 98. 
2 Hen. IV. c. 4. 98. 

c. 12. 27. 
21 Hen. Vllf. c. 0. 20. 
„ c. 13. 37. 

27 Hen. VIII. c. 20 (Strengthening 

Statute) 77. 
„ c. 21. 104. 

c. 27 and 28 (Dissolv- 
ing Statute) 29, 99. 

28 Hen. VIII. c. 16. 98. 

31 Hen. VIII. c. 13 (Dissolving Statute) 
29, 99, 101. 

32 Hen. VIII. c. 7. 77, 89. 

„ c. 24. 100. 
,, ,, c. 28 (Enabling Statute) 
37 Hen. VIII. c. 7. 32. 
,, c. 12. 104. 
„ c. 24. 30. 

1 Edw. VI. e. 14. 30. 

2 and 3 Edw. VI. c. 13. 56, 57, 59, 60, 
78, 83, 89, 92. 

1 Eliz. c. 19 (Eestraining Statute) 34, 

13 Eliz. c. 10 (Eestraining Statute) 35, 

„ c. 20. 36, 37. 

14 Eliz. cc. 11—14. 35. 
18 Eliz. c. 11. 35, 37. 

43 Eliz. c. 2 (Poor Law Statute) 43. 

„ c. 29. 35. 
1 Jac. I. c. 3. 34. 

21 Jac. I. c. 16 (Statute of Limitations) 

10 and 11 Car. I. c. 2. 37. 

22 and 23 Car. II. c. 15. 105. 

29 Car. II. c. 14 (Statute of Frauds) 

7 and 8 Will. III. c. 6. 81, 82. 

„ „ c. 34. 81, 82. 

8 and 9 Will. III. c. 11. 80. 

3 and 4 Anne, c. 18. 82. 

8 Anne, c. 14. 36. 

12 Anne, st. 2, c. 6. 20. 

1 Geo. I. c. 6. 82. 
17 Geo. II. c. 2. 60. 
28 Geo. II. c: 6. 20. 

5 Geo. III. c. 17. 34, 35. 

9 Geo. III. c. 16 (Nullum Tempus Act) 

13 Geo. III. e. 5. 43. 

„ „ c. 73. 43. 

41 Geo. III. c. 109 (Inclosure Act) 33. 

43 Geo. IIL c. 84. 36. 

53 Geo. III. c. 127 (Statute of Limita- 
tions) 82, 83. 
57 Geo. III. c. 99. 36. 

2 and 3 Will. IV. c. 100 (Modus Act) 
90, 95, 97. 

3 and 4 Will. IV. c. 27. 84, 97. 

4 and 5 Will. IV. c. 36. 82. 

5 and 6 Will. IV. c. 74. 82. 

6 and 7 Will. IV. c. 20. 37. 

,, ,, ,, c. 71 (Commutation 

Act) 40, 41, 42, 43, 
44, 52, 53, 54, 84, 
102, 105. 

7 Wm. IV. and 1 Vict. c. 26. 33. 

11 ij ,1 )5 c. bj. 4s. 

1 and 2 Vict. c. 64. 44. 

2 and 3 Vict. c. 62. 44, 45, 53. 
5 and 6 Vict. c. 14. 41. 

„ c. 27. 38. 
,, ,, c. 50. 43. 

„ c. 54. 44, 85. 

„ c. 108. 38. 
7 and 8 Vict. c. 85. 85. 
9 and 10 Vict. c. 73. 45. 

14 and 15 Vict. c. 104. 38. 

„ c. 145. 85. 
21 and 22 Vict. e. 57. 38. 

23 and 24 Vict. c. 124. 38. 

24 and 25 Vict. c. 105. 38. 

25 and 20 Vict. c. 52. 38. 

36 and 37 Vict. c. 42 (Market Gardens 
Act) 53. 

42 and 43 Vict. c. 93 (Christ Church 

City Act) 105. 
„ c. 176 (City Act) 105. 

44 and 45 Vict. c. 197 (St Botolph- 
Without-Aldgate Act) 105. 

49 and 50 Vict. c. 54 (Extraordinary 
Tithe Eedemption Act) 54. 


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M(7J'. 1888. 





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