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have ever been held and allowed in England to be a good discharge of the payment of tithes. Hence have arisen all such compositions as exist at this time by form of the common law. By this means the possessions of the church were daily diminished. To obviate this, the disabling statute was passed in the reign of Elizabeth,* which prevents, among other spiritua persons, all parsons and vicars from making any conveyances of the estates of their churches for more than three lives, or twenty-one years. By virtue of this statute therefore, no real composition, made since the 13th of queen Elizabeth, is good for any longer period than three lives, or twenty-one years, even although it should be made with the consent of the patron and ordinary. This statute has effectually demolished this kind of traffic; such compositions being now rarely heard of, unless by authority of parliament. A composition established even by act of parliament, if madė since the disabling statute of Elizabeth, and confirmed by a decree of a court of equity, though good for the life of the incumbent, is not binding on his successor. If the successor continues to receive the next payment due after the death of his predecessor, he is accountable to the executors only for such portion of it as the value of the tithes, if paid in kind, accruing due between the last composition received by the late incumbent and his death, would have amounted to, and not pro rata according to the time which had run before his death from the last payment. Neither is the succeeding incumbent bound by a lease made conformable and prior to the disabling statute, but such lease is entirely void at the decease of the parson or vicar who made it.
II. A discharge by custom or prescription is, when time out of mind, such persons or such lands have been either partially or totally discharged from the payment of tithes. This immemorial usage is binding upon parties. It is in its nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been formerly made. This custom is either de modo decimandi, or else de non decimando. A modus decimandi, called shortly a modus, is a composition for tithes in kind within a certain district. By this modus a layman is discharged from rendering his tithes, on his paying to the parson, in lieu thereof, what the local custom of that place directs. This is sometimes a pecuniary compensation, as twopence an acre for the tithe of land. Sometimes it is a compensation in work and labour, as that the parson shall only have 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 and imperfect tithe, the parson shall have a less quantity, when ar rived to a greater maturity, as a couple of fowls in lieu of tithe eggs, and the
* 13 Eliz. c. 10.
like. 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. So a vicar shall pay no tithes to the rector, nor the rector to the vicar. The manner or form of setting out for payment of tithes, is generally governed by the custom of the place. In a special case it was held, that a farmer may cut down a field in portions most convenient for himself, provided it be not done vexatiously, and with a design to trouble the clergyman. He must not, however, proceed to carry away such separate cuttings before he has set out the tithe of all the cuttings. It is a general rule, that a farmer may not at his pleasure tithe, and carry part of a field of corn before the whole has been tithed, and then proceed to another field, so as to oblige the parson to come to the field at another time to take his tithe. But still there is no rule of law which obliges a farmer (all fraud and vexation apart) to tithe and carry the whole of that part of the field lying in one parish before tithing any part of the same field in another parish; and this without previous notice of his intention to carry such part. The general rule, that the farmer must not carry part of the crop of a field of corn before the whole has been tithed, must be understood with all necessary exceptions of partial ripeness, and whether the neglect of taking the advantage of which would be prejudicial to the crop. The parson, vicar, improprietor or farmer, cannot come himself and set forth his tithes without the license and consent of the owner. If he tithe of his own head the corn or hay of any land holden within his parish, and carry it away, he is a trespasser, and an action will lie against him for it. But every person is bound, of common right, to cut down and set out the tithes of his own lands. That it may be done faithfully and without fraud, the laws of the church entitle the parson to have notice given him. It was enacted in the reign of Edward VI., that at all times whensoever, and as often as any prædial tithes shall be due, at the tithing of the same it shall be lawful to any party to whom any of the said tithes ought to be paid, or his deputy or servant, to view and see their said tithes justly and truly set forth and severed from the nine parts. It has been held in law, that the parishioner must have his nine parts a reasonable time in the field for the parson to compare the tithe with them. It has been also held, that if the parishioner reaps one land, and in coming back along the same land to reap the next, throws out the tithe of the first, and shocks his nine sheaves, he does not give a sufficient time for the parson to compare. But if, after due notice, the tithe owner does not come in convenient time, it is his own fault, and he will lose the benefit of making the comparison. The care of the tithes, as to waste or spoiling, after severance, rests upon the parson, and not upon the owner or occupier of the land. The parson is by law at his peril to
take notice of the tithes being set out. It has been declared, that although the parishioners ought de jure to reap the corn, yet they are not bound to guard the parson's tithes. After the tithes are set forth, he may, of common right, come himself, or send his servants, and spread abroad, dry, and stack, his corn, hay, or the like, in any convenient place or places upon the ground where the same grew, till it be sufficiently withered and fit to be carried into the barn. But he must not take a longer time for so doing than is "convenient and necessary." By the statute of Edward VI. "It shall be lawful quietly to take and carry the same away. And if any person carry away his corn or hay, or his other prædial tithes, before the tithe thereof be set forth, or willingly withdraw his tithes of the same, or of such other things whereof prædial tithes ought to be paid; and if any person do stop or let (hinder) the parson, vicar, proprietor, owner, or other their deputies or farmers, to view, take, and carry away their tithes, as is above said, he shall forfeit double value with costs, to be recovered in the ecclesiastical courts." The parson may carry his tithes from the ground where they grew, either by the common way, or any such way as the owner of the land uses to carry away his nine parts. If, after he has duly set forth his tithes, the owner of the soil will stop up the ways, and not suffer the parson to carry away his tithes, or to spread, dry, and stack them upon the land, this is no good setting forth of his tithes, without fraud, within the statute. In consequence, the parson may have an action upon the said statute, and may recover treble the value; or he may have an action upon the case for such disturbance; or he may, if he will, break open the gate or fence which hinders him, and carry away his tithes. But in this he must be cautious, that he commit no riot, nor break any gate, rails, locks, or hedges, more than he necessarily must for his passage. When he comes with his carts, wains, or other carriages, to carry away his tithes, he must not suffer his horses or oxen to eat and depasture the grass growing or cut. But if his cattle do in their passage, against the driver's will, here and there snatch some of the grass, this is excusable. If tithes set forth remain too long upon the land, the owner of the soil may distrain them as damage feasant. If he be sued for them in order to justify, he must set forth how long they had remained before he took them. When they shall be said to remain too long is tryable by a jury. An action upon the case will lie against the parson for his negligence in this behalf. No action, however, in such a case will lie, unless the parishioner has duly set forth his tithes, and has also given notice to the parson that they are so set forth.
The period of the establishment of tithes, or teinds, in Scotland, is involved in some degree of uncertainty. Spottiswood asserts, that Convallus appointed tithes to be paid universally in his reign, which was in the sixth century; while Craig affirms, that teinds were introduced only a short time
before the Lateran council, in 1179. The history of Scottish tithes, or teinds, is naturally divided into three periods: I. Preceding the Reformation; II. Between the Reformation and the introduction of valuation and sales; III. The period subsequent to the commencement of valuation and sales.
I. Personal teinds were unknown in Scotland. Teinds were altogether prædial, affecting the fruits of the land, and are either natural or industrial. Industrial teinds correspond to the mixed tithes in England. Till the teinds were regulated by the valued rental, there was hardly any tithing of natural fruits. Prædial tithes, therefore, of industrial fruits, have all along constituted the whole teinds leviable by the church of Scotland. There have been, however, some local and consuetudinary exceptions. They consisted of the tenth of all profit produced by the application of industry to land. Glebes, temple lands, lands belonging to the religious orders, were excepted; and also lands, the proprietors of which have acquired their teinds originally from churchmen. They were leviable without any deduction, propter curam et culturam, in favour of the possessor. They were of two kinds, parsonage and vicarage. The parsonage teinds were due exclusively to the parson, or others having right to the parochial benefice, and were leviable from corn alone, at the terms of Whitsunday and Michaelmas. Vicarage teinds were paid to the vicar, if originally appointed by the patron; yet where he was not, they also went to the incumbent, who might make what agreement he pleased with curates or assistants of his own appointment. The vicarage teinds were drawn from all the minor fruits, such as cattle, fowls, eggs, milk, hay, lint, fishings, &c. These were not levied according to a certain fixed rule, as the parsonage teinds were, but according to the usage of every individual benefice or parish. Before the Reformation, the church enjoyed tithes or teinds de jure communi, and had besides extensive landed property. But the teinds were by degrees almost entirely carried away from their proper destination : 1. by the consecration of tithes to other churches or churchmen unconnected with the lands; 2. by papal exemptions; 3. by infeudation of tithes to laymen. The useful and laborious parochial clergy were reduced to a state of comparative indigence. It frequently happened that, in the vacancy of parochial charges, the patrons appropriated great part of its tithes to some favourite monastery. The right of presentation was likewise frequently conveyed away to monasteries, making them the perpetual beneficiary of the church annexed. To the very great injury of religion, the pope usurped the patronage of all those parishes where no one else could show a valid right of presentation. He naturally threw as much power into the hands of religious bodies, exempted their land from tithes, and thus directly robbed the parochial clergy of their just rights. Patrons fre
quently made grants of the tithes to needy laymen. The religious houses also sold the tithes to the crown or other laymen. Leases were also granted of the tithes at a low rate, on payment of a fine. Various measures were, at different times, ineffectually adopted to check this systematic spoliation of the parochial clergy.
II. At the Reformation, the crown became the proprietor of all the church lands, either by resignation or confiscation, especially of those belonging to the religious houses. On the death or dispersion of the abbots and priors, the crown appointed lay commendators for life. The monasteries and priories were then turned into temporal lordships. These men were styled "Lords of erection," or "Titulars of the tithes," into whose hands the possessions of the church were permanently transferred. At the same time, the crown assumed the place of the pope, and became patron of every regular parochial charge to the patronage of which no subject could show a good title. The lords of the new erection continued to exercise the rights which their predecessors, the abbots, had formerly exercised. They presented ministers to parishes, and assigned such stipends as they chose. In 1587, a check was put to the practice of erections, and all church lands were, by act of parliament, unalienably annexed to the crown. The following exceptions were made: 1. the temporal lordships erected by the crown prior to the date of the act; 2. lands made over to hospitals, schools, and universities, and not diverted from their original uses; 3. benefices which, before the Reformation, had been retained by the original lay patrons; 4. The manses and glebes of the popish churchmen which were not annexed, and were reserved for their protestant successors. This did not altogether prevent new erections. On the restoration of the bishops, the annexation of their benefices and those of their chapters were rescinded by acts of parliament.* It appears, that after the Reformation the whole teinds of the country belonged either to the crown, to the lords of erection, called titulars, to the patrons, or to the feuars from the church. The whole rights of the church were thus transferred to, and vested in, these several parties.
III. The teind was originally made by drawing it. That is, the beneficiary carried off every tenth sheaf from the ground. It became a frequent custom to commute the tithes, either for a certain yearly tack duty, or a certain number of rental bolls, to which both parties were, under certain limitations, bound permanently to adhere. It frequently happened, that the beneficiary vexatiously delayed to draw his teind, for the purpose of making better terms with the occupier in any agreement for a commutation. Parliament attempted various remedies, all of which were inoperative.
* 1606, c. 2, 1617, c. 2.