But,

the times, have masses for ever sung for his soul. in process of years, the income of the poor laborious parish priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by pope Innocent the third, about the year 1200, in a decretal epistle, sent to the archbishop of Canterbury, and dated from the palace of Lateran: which has occasioned sir Henry Hobart and others to mistake it for a decree of the council of Lateran, held A. D. 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen', whereas this letter of pope Innocent to the archbishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards directed by the same pope in other countries . This epistle, says sir Edward Coke ", bound not the lay subjects of this realm: but, being reasonable and just, (and, he might have added, being correspondent to the antient law,) it was allowed [ 28 ] of, and so became lex terrae. This put an effectual stop to all the arbitrary consecrations of tithes; except some footsteps which still continue in those portions of tithes, which the parson of one parish hath, though rarely, a right to claim in another: for it is now universally held', that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. (7) This parson of the parish, we have formerly seen, may be either the actual incumbent, or else the appropriator of the benefice: appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy; by way of substitution to arbitrary consecrations of tithes.

3. WE observed that tithes are due to the parson of common right, unless by special exemption; let us therefore see,

e

Opera Innocent. III. tom. 2. pag.452.
Decretal. 1.3. t.30. c. 19.

& Ibid. c.2. 6.

h 2 Inst. 641.

i Regist. 46. Hob. 296.

* Book I. p. 385.

In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See book I. p.113. 284.

(7) The origin of portions probably may be found in the circumstance of a lord's estate extending into what has since become two parishes; and the tenants still continuing to pay their tithes to the church which he had founded.

thirdly, who may be exempted from the payment of tithes, and how lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally; first, by a real composition; or, secondly, by custom or prescription.

FIRST, a real composition is when an agreement is made between the owner of the lands, and the parson or vicar with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompence given to the parson, in lieu and satisfaction thereofm. This was permitted by law, because it was supposed that the clergy would be no losers by such composition; 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 made necessary to render the composition effectual and hence have arisen all such compositions as exist at this day by force of the common law. But experience shewing that even this caution was ineffectual, and the pos[ 29 ] sessions of the church being, by this and other means, every

:

day diminished, the disabling statute, 13 Eliz. c. 10., was made: which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives, or twentyone years. So that now, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives, or twenty-one years, though made by the consent of the patron and ordinary: which has indeed effectually demolished this kind of traffic; such compositions being now rarely heard of, unless by authority of parliament. (8)

m 2 Inst. 490. Regist. 38. 13 Rep. 40.

(8) The real recompence mentioned in the text may be a rent-charge issuing out of land, or the doing something to the ease or profit of the parson. A real composition must have had its commencement within time of memory, and its commencement must be shown; in order to establish it, the courts require either the actual production of the deed of composition, or at least some independent proof of its having once existed. The reason for this is stated to be, that if it were otherwise, the church

would

SECONDLY, a discharge by custom or prescription, is where time out of mind such person or such lands have been, either partially or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties; as it is in it's nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been formerly made. This custom or prescription is either de modo decimandi, or de non decimando.

A modus decimandi, commonly called by the simple name of a modus only, is 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. This is sometimes a pecuniary compensation, as two-pence an acre for the tithe of land: sometimes it is a compensation in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth in consideration of the owner's making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe-eggs; and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.

To make a good and sufficient modus, the following rules [ 30 ] must be observed. 1. It must be certain and invariable", for payment of different sums will prove it to be no modus, that is, no original real composition; because that must have been one and the same, from its first original to the present time. 2. The thing given, in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons only°; thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parson. 3. It must be something different from the

would be defrauded, and every bad modus (bad for its rankness) would be turned into a good composition. See Toller on Tithes, 219. Burn, Ec. L. 3. 437., and the cases there referred to.

:

thing compounded for P: one load of hay, in lieu of all tithe hay, is no good modus; for no parson would bona fide make a composition to receive less than his due in the same species of tithe; and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be discharged from payment of one species of tithe, by paying a modus for another 9. Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but not of barren cattle for tithe is, of common right, due for both; and therefore a modus for one shall never be a discharge for the other. 5. The recompence must be in its nature as durable as the tithes discharged by it; that is, an inheritance certain: and therefore, a modus that every inhabitant of a house shall pay 4d. a year, in lieu of the owner's tithes, is no good modus; for possibly the house may not be inhabited, and then the recompence will be lost. 6. The modus must not be too large, which is called a rank modus: as if the real value of the tithes be 60l. per annum, and a modus is suggested of 40l., this modus will not be established: though one of 40s. might have been valid. Indeed, properly speaking, the doctrine of rankness in a modus is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law. For, in these cases of prescriptive or customary moduses, it is [ 31 ] supposed that an original real composition was antiently made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence such usage was derived. Now time of memory hath been long ago ascertained by the law to commence from the beginning of the reign of Richard the first "; and any custom may be destroyed by evidence of non-existence in any part of the long period from that time to the present; wherefore, as this real composition is sup

P 1 Lev. 179.
a Cro. Eliz. 446.

Salk.657.

2 P. Wms. 462.

11 Mod. 60.

ation in a writ of right. But, since by the statute 32 Hen. VIII. c. 2. this period (in a writ of right) hath been very rationally reduced to 60 years, it seems

Pyke v. Dowling, Hil. 19 Geo. III. unaccountable, that the date of legal

C. B. 2 Bl. R. 1257.

u 2 Inst. 238, 239. This rule was adopted, when by the statute of Westm. 1. (3 Edw. I. c. 39.) the reign of Richard I. was made the time of limit

prescription or memory should still continue to be reckoned from an æra so very antiquated. See Litt. § 170. 34 Hen. VI. 37. 2 Roll. Abr. 269. pl. 16.

posed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the first, this modus is (in point of evidence) felo de se, and destroys itself. For, as it would be destroyed by any direct evidence to prove it's non-existence at any time since that æra, so also it is destroyed by carrying in itself this internal evidence of a much later original.

A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged from all tithes.(9) So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesiæTM. But these personal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy; for their tenant or lessee shall pay tithes, though in their own occupation their lands are not generally titheable. And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet. But spiritual persons or corporations, as monasteries, abbots, [ 32 ] bishops, and the like, were always capable of having their

(9) In the case of the Earl of Hertford v. Leech, Gwill. 486. there is rather a strained attempt to refer this prerogative of the king to his being persona mixta, et sacro oleo unctus, having the supreme ecclesiastical jurisdiction in him, and being the supreme ordinary that hath the cure of souls. If this were correct, then all the absolute exemptions might in some sense be said to be founded on one principle, that of ecclesia decimas non solvit ecclesiæ; but it seems more safe and simple to refer it to mere usage, upon which the king by prerogative may prescribe for the holding free from payment of tithes. Perhaps this may enable us to reconcile the difference which prevails in the books, as to how far this prerogative extends; some stating it, as in the text, to be merely personal, (and if so, it is obviously almost nugatory,) others affirming that it includes the king's tenants for years or at will. Neither may be right universally; and yet the decisions both ways may be correct, if they were governed by the particular prescriptions proved or admitted in each case, which from the shortness of some of the printed reports cannot be ascertained. All, however, agree, that where the king aliens the freehold, the privilege does not extend to his patentee. Com. Dig. Dism. E. 2. 2 Woodd, 100. Gwill. 184. 869.