Where incum. sident. sequestered, and if the incumbent is dissatisfied he can appeal; but it seems that any less part than one-fifth might be sequestered; and where the ecclesiastical court is called on to sequester, it was said by SirJ. Nicholl that it seldom lays apart more than one-fifth. Of the duties of the sequestrators in such cases we shall have to speak hereafter, when we come to the general subject of sequestrations. be And here we may remark, that this proceeding may in like manner had recourse to, in order to compel the incumbent to repair the chancel, wherever the charge of executing such repairs is cast upon him. And in the case of the bishop himself, who should suffer the episcopal palace or other structure with the repair of which he was charged to become dilapidated, he might be suspended by the archbishop, and the profits of his bishopric in like manner sequestered, as was the case of Dr. Wood, Bishop of Lichfield and Coventry, who was suspended by Archbishop Sancroft, and the episcopal palace was built out of the profits so sequestered. Another common cause of dilapidations was the nonbent is non-re- residence of incumbents on their benefices. This has, however, been remedied by recent statutes, of which we shall have to speak when we come to the subject of the residence of the clergy; by one of those statutes it is enacted, that every spiritual person having a house of residence on his benefice, and not residing therein, shall, during such period of non-residence, keep such house in good and sufficient repair; and that the bishop may cause a survey of such house to be made by some competent person, the costs of which, in case the house is found to be out of repair, shall be borne by such spiritual person; and if the surveyor shall report that such house is out of repair, the bishop may issue his monition to the incumbent to put the same in repair according to such survey or report, a copy of which is to be annexed to the monition, and every such non-resident spiritual person who shall not keep such house in repair, or who shall not, upon such monition, and within one month after service of the monition, show cause to the contrary, to the satisfaction of the bishop, or put such house in repair within the space of ten months, to the satisfaction of such bishop, shall be liable to all those penalties for non-residence of which we shall hereafter speak, during the period such house of residence remains out of repair; which penalties are in fact sequestration, the first application of the sequestered profits being to the d North v. Barber, 3 Phill. 307. f Cited 12 Mod. R. 237. e See post. 1 & 2 Vict. c. 106, s. 41. h purpose of putting the premises in repair. It should be observed, however, that it does not appear from the words of the above section by whom the costs of the survey are to be paid, in case the house, upon the occasion of such survey, is not found to be out of repair. This enactment, as has very frequently happened in the recent statutes relating to ecclesiastical matters, appears to have been made without a due consideration of the law already existing, and in this case without consideration of the powers already vested in the bishop and archdeacon, for compelling the repair of dilapidations. Those powers, however, are not repealed, nor in any manner interfered with by this statute; they appear to have been amply sufficient, and well adapted for the purpose, nor is it easy to see in what respect the present enactment introduces any improvement; though it might probably create confusion, by making it appear that the repairs of dilapidations could be compelled by the bishop only in the case of a non-resident incumbent. In speaking here of the manner in which dilapidations are to be prevented and reparation enjoined, we are speaking generally only of permissive dilapidations or permissive waste; not because the same remedies might not be had recourse to in the case of wilful and actual dilapidations, but because there are other methods which we have spoken of under the subject of waste, which would be probably better adapted to cases which might require an immediate remedy, and a stop to be put to such wilful damage, such as we have already noticed under the subject of waste. CHAPTER II. OF TITHES AND TITHE RENT-CHARGE. THE provisions which we have hitherto mentioned for the General provimaintenance of persons ecclesiastical, are partial endow- sion for persons ments only for the benefit of particular corporations, or ecclesiastical, form but a small part of the means of support to the great body of the clergy. But we now come to consider that general provision which has been established, of the tithe h See post, Sequestration. by means of. Origin of. or tenth part of the produce of our lands, for the proper maintenance and support of the whole ecclesiastical body. An honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For besides the positive precepts of the New Testament, natural reason will tell us that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with necessaries, conveniences, and moderate enjoyments of life, at their expense, for whose benefit they forego the usual means of providing them." Accordingly all municipal laws have provided a liberal and decent maintenance for their national priests or clergy; ours in particular have established this of tithes, probably in imitation of the Jewish law. And perhaps, says Blackstone, considering the degenerate state of the world in general, it may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine right whatsoever, unacknowledged and unsupported by temporal sanctions." с During the first ages of Christianity, the clergy were supported by the voluntary offerings of their flocks; but this being a precarious existence, the ecclesiastics in every country of Europe claimed, and in the course of time established, a right to the tenth part of all the produce of lands. At what time this right was claimed or finally established in this country, it is impossible to ascertain precisely; but the first mention of them which Blackstone says that he has met with in any written English law, is in a constitutional decree made in a synod held A. D. 786, wherein the payment of tithes in general is strongly enjoined. This canon or decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the Heptarchy, in their parliamentary conventions of estates, respectively consisting of the kings of Mercia and Northumberland, the bishops, dukes, senators, and people.d The next authentic mention of them is in the Fœdus Edwardi et Guthruni, or the laws agreed upon between King Guthrun, the Dane, and Alfred, and his son Edward the elder, successive kings of England about the year 900. This was a kind of treaty between those monarchs, which may be found at large in the Anglo-Saxon laws, wherein it was necessary, as Guthrun was a Pagan, to provide for a 2 Black. Com. 24. b Ibid. c3 Cruise's Dig. 37. the subsistence of the Christian clergy under his dominion; and accordingly we find the payment of tithes not only enjoined, but a penalty added upon non-observance, which law is seconded by the laws of Athelstan about the year 930. This is, perhaps, as much as can be traced out with regard to their legal origin. But without doubt the Were estaright had been fully admitted in England before the Nor-blished before man conquest; the name of tithes being acquired from a conquest. Saxon word, signifying tenth." the Norman Tithes are of that class of things which are termed Definition of. incorporeal hereditaments, which are rights issuing out of things corporate, whether real or personal, or concerning or annexed to, or exerciseable within the same; and they may be defined to have been a right to the tenth part of all the produce of lands, the stock upon lands, and the personal industry of the occupiers, but in their essence they have nothing substantial or permanent; they consist merely in jure, and are only a right. So that an estate in tithes is no more than a title to a share or portion of the produce of a certain tract of land, after it shall have been separated from the general mass." Tithes were originally a mere ecclesiastical revenue, ecclesiastical persons only having a capacity to take them, and ecclesiastical courts only having cognizance of them. Originally, moreover, though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased, which were called arbitrary consecration of tithes, or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the Church, which were then in common; but when dioceses were divided into parishes, the period of which cannot be ascertained with any degree of certainty, the tithes of each parish were allotted to its own particular minister, first by common consent, or by the appointment of lords of manors; and afterwards, as Blackstone says, by the written law of the land. But whether by statute or by common law (for opinions vary upon the subject) the right of the parsons of the several parishes to tithes, and to demand and enforce the render of them, became part of the general law of the land.' 2 Black. Com. 26. 3 Cruise's Dig. 37. h Bacon's Abr. Tithes. Exemptions from tithe for merly. It would be much too wide a deviation from the general purpose of this work, if we were to enter further into the history of the origin of tithes, or upon the general subject of appropriation, as it has little or perhaps no bearing upon the present state of the law. m Formerly it might have been laid down as a general law, that all lands in this country in the hands of laymen were subject to the payment of tithes, until special exemption could be shown, so much so, that by the old law no layman was allowed to prescribe generally that his lands were exempt from payment of tithes ; for without special matter shown, it could not be intended that he had any lawful discharge. And even though non-payment of tithes from time immemorial could have been proved, the maxim nullum tempus occurrit ecclesiæ prevailed, so that no evidence of length of possession would have been regarded, for it was said the possession must have been unArrangement of lawful." To this rule there would now be many exceptions, the subject. but for the purposes of practical arrangement, and more easy consideration of the subject, it will be best to reverse the rule, and to state that all lands in this country, with the exceptions hereafter mentioned, are freed and discharged from the actual render of tithes by some one of the following methods: Discharge of all lands from tithes. 1. By non-payment of any tithe for a certain length of time. 2. By having formerly been parcel of the possessions of a privileged order, or as having been formerly or being now the property of ecclesiastical persons or bodies, or of the crown. 3. By compositions real. 4. By private acts of parliament in individual cases. 5. By some established modus decimandi. 6. By rent-charge in lieu thereof. 7. By lands given in lieu thereof. the various things which were or were not titheable, and of the manner in which, and the time when, the tithes of different kinds of produce were payable. The complicated decisions on these subjects might be made to fill a number of volumes, and no very condensed account of them would be intelligible. As the subject therefore will soon have lost all its interest, it has been thought best to omit it altogether. m Black. Com. b. ii. ch. 3. n Scott v. Airey, 2 E. & Y. 342. |