Encyclopædia Britannica, Ninth Edition/Tithes

by William Robertson Smith

TITHES. It has been explained in Sacrifice (vol. xxi. p. 133) that among ancient peoples sacrificial gifts frequently assume the character of a tribute in kind, paid to the deity in acknowledgment of the fruits of the land, or the increase of flocks attributed to his blessing. At first this tribute is not measured or enforced by law: the gift is a voluntary one, the magnitude of which may be fixed by a vow, or influenced by public opinion as to what is reasonable, but is not prescribed by any stated authority having power to exact what is prescribed. In the oldest Hebrew legislation sacrificial gifts to Jehovah (firstlings and first-fruits) are demanded; but apart from the consecra tion of the firstlings, which is imperative (Exod. xxii. 29, /., xxxiv. 19 sq.), the amount is not fixed. In Deutero nomy (xiv. 22 sqq.), on the other hand, the tithe or tenth of corn, wine, and oil is required in addition to the firstlings of the flock and the herd. This precept, written down in the 7th century B.C., is plainly no innovation, but rests on older usage (cp. Gen. xxviii. 22; Amos iv. 4); the new point emphasized is not that tithes must be paid, but that they must be consumed at the central, instead of a local, sanctuary (Deut. xii. 6, 11, xiv. 23 sqq.}, apparently at the great autumn feast or Feast of TABERNACLES (q-v.). 1 Such a tithe is still nothing more than the old offering of first-fruits (bikkiirlni) made definite as regards quantity, and it was only natural that as time went on there should be some fixed standard of the due amount of the annual sacred tribute. 2 The establishment of such a standard does not necessarily imply that full payment was exacted; in Gen. xxviii. 22 Jacob vows of his own free will to pay tithes, just as the Arabs used to vow the tithe of the in crease of the flock (schol. on Harith, Moall., 1. 69, ed. Arnold). The Arab did not always fulfil his vow, and there was no force to make him do so. But, however in exactly it may often have been paid, the proportion of one part in ten seems to have been accepted in many ancient nations as the normal measure of sacred tribute paid from the gains of husbandry, trade, or even of war. 3 The tithe, in fact, appears to have been a common form of tax upon the produce of land or other revenues, for civil as well as for sacred purposes. Ve find it in Greece (as at Athens), and in Sicily and Asia, under the Roman empire; but its special home was in the East. It was exacted on agricultural products and flocks by Hebrew kings (1 Sam. viii. 15, 17), and on imports by the monarchs of Babylon (Aristotle, (Econ.,ed. Berlin, p.!352b). Aristotle gives the tithe on fruits of the soil the first place among the revenues of satraps (Ibid., p. 1345b), and it still forms an important element in the fiscal system of Mohammedan states. It will be observed that the proportion of one in ten has been applied in the East, and in antiquity generally, to imports of very different kinds, and in Mohammedan taxation we find the name retained in cases where much less than a tenth is actually taken. In like manner Aris totle (ut supra) makes Senary a mere synonym of K<opiov, or tax on produce; the proportion of one to ten, it would seem, was so commonly taken in antiquity as the basis of ad valorem taxes that any such tax or tribute might be called a tithe. As regards the sacred tithe of the Hebrews, a distinction is drawn in Deuteronomy between the ordi nary annual tithe, which may not have been a full tenth, and the " whole " or " full tithe," paid once in three years 1 Cp. Deut. xxvi. with 1 Sam. i. 21 (Sept.), and Jerome on Ezek. i. 3; and see Wellhausen, Prolegomena, p. 94 (Eng. tr., p. 92 sq.). - In Deuteronomy, accordingly, the first-fruits (bikkuntn) are not mentioned; the tithe takes their place. The word translated " firstfruits " in Deut. (reshith) is a small gift to the priests, a mere basket ful (rviii. 4, xxvi. 2 sq.). 3 For instances see Spencer, De Legibus Hebrteorvm, lib. iii., cap. 10, 1. Among the Semites in particular note the tithe paid by the Carthaginians to the Tyrian Melkarth (Diod., xx. 14), and the tithe of frankincense paid in Arabia to the god Sabis (Pliny, H.N., xii. 32; and comp. W. R. Smith, Prophets of Israel, p. 382 sq.). A tithe of cattle appears in Lydia (Nic. Damasc., fr. 24). (Deut. xiv. 28, xxvi. 12), which the legislator directs to be stored at home, and spent in feeding the poor.

From Amos iv. 4 it is sometimes inferred that in the 8th century B.C. the sacrificial tithe, presented at a sanctuary, was triennial. But when the prophet, mocking the false zeal of the people, says, "Bring your sacrifices every morning and your tithes every three days" (not "years," as E.V.), he hardly implies more than that occasions of sacrifice were three times as frequent as tithe-day, and so alludes to the fact that there were by old usage three annual feasts and one annual tithe. A triennial sacrificial tithe is incon ceivable when it is remembered that the tithe is only an extension of the first-fruits. The triennial tithe in Deuteronomy seems to be rather an innovation necessary in the interests of the poor, when sacrificial feasts were transferred to the central sanctuary, and ceased to benefit the neighbours of the offerer, who had a prescrip tive claim to be considered on such occasions (comp. 1 Sam. xxv. 8 sqq.; Neh. viiL 10; Luke xiv. 13).

The priests of the sanctuaries had of old a share in the sacrificial feasts, and among those who are to share in the triennial tithe Deuteronomy includes the Levites, i.e., the priests of the local sanctuaries who had lost their old perquisites by the centralization of worship. After the return, and before the work of Ezra, when Deuteronomy was still the law of the new Israel, but the Levites had become subordinate ministers of the temple, and required a more regular provision, the "whole tithe" was naturally fixed on for this purpose; but, instead of remaining in the hands of the tithe-payers to be doled out in charity, it was stored in the temple. Such, at least, was the plan pro posed, though from Mai. iii. 8 sqq. it appears that it was very imperfectly carried out. As Malachi speaks in Deuteronomic phrase of the "whole tithe," the payment to the Levites was perhaps still only triennial; and, if even this was difficult to collect, we may be sure that the minor sacrificial tithe had very nearly disappeared. The indifference complained of in Mai. i. was in great part due to the fundamental changes in the religion of Israel, which made private altar gifts and feasts almost meaningless. On the other hand, the provision of regular support for the priests and Levites, the ministers of the public ritual, was now all important, and received special attention from Ezra and Nehemiah (Neh. x. 37 sqq., xiii. 10 sqq.). They effected it by enforcing the new law of the priestly code (Num. xviii. 21 sqq.), in which it is formally laid down that the tithe is a tribute paid to the Levites, who in turn pay a tithe of it to the priests. The plain inten tion of the priestly code is to allow the old tithe of Deuteronomy to drop; but the harmonistic interpretation of the later scribes was to the effect that two tithes were to be paid every year, and a third tithe, for the poor, on every third year (Tob. i. 7 sq.; Jos., Ant,, iv. 8, 22). The last change in the system was the appropriation of the Levitical tithe by the priests, which apparently was effected by John Hyrcanus, though a tradition glaringly inconsistent with Nehemiah ascribes it to Ezra (Mishnah, " Ma aser Sh.," v. 15; "Sota," ix. 10, and Wagenseil's note).^[1] (w. r. s.)

Tithes in Law.

Tithes were generally regarded up to the 17th century as existing jure divino, and as having been payable to the support of the church ever since the earliest days of Christianity. History, as Selden showed in his learned and exhaustive treatise (History of Tithes, 1618), does not bear out this view.^[2] In the words of Hallam, "the slow and gradual manner in which parochial churches became independent appears to be of itself a sufficient answer to those who ascribe a great antiquity to the universal payment of tithes."^[3] Long before the 8th century payment of tithes was enjoined by ecclesiastical writers and by councils of the church; but the earliest authentic example of anything like a law of the state enforcing payment appears to occur in the Capitularies of Charlemagne at the end of the 8th or beginning of the 9th century. Tithes were by that enactment to be applied to the maintenance of the bishop and clergy, the poor,^[4] and the fabric of the church. In course of time the principle of payment of tithes was extended far beyond its original intention. Thus they became transferable to laymen and saleable like ordinary property, in spite of the injunctions of the third Lateran council, and they became payable out of sources of income which were not originally tithable. The canon law con tains numerous and minute provisions on the subject of tithes. The Decretum forbade their alienation to lay proprietors, denounced excommunication against those who refused to pay, and based the right of the church upon Scriptural precedents.^[5] The Decretals contained provisions as to what was and what was not tithable property, as to those privileged from payment, as to sale or hypo thecation to laymen, as to priority over state taxes, &c.^[6] Various questions which arose later were settled by Boniface VIII.^[7] The council of Trent enjoined due payment of tithes, and excommuni cated those who withheld them.^[8]

In England the earliest example of legal recognition of tithes is, according to Selden, a decree of a synod in 786.^[9] Other examples before the Conquest occur in the Fcedus jElfredi et Guthruni and the laws of Athelstan, Edgar, and Canute.^[10] The tripartite division of tithes does not appear to have been recognized in England by any genuine legal enactment except as what Mr. Freeman calls "a counsel of perfection."^[11] The earliest mention of tithes in statute law proper is in the Statute of Westminster the Second in 1285, c. 5 of which deals with the patron's writ de advocatione decimarum. From that date until the present year (1887) there have been a large number of Acts dealing with tithes, the earliest which is still law being 2 Hen. IV. c. 4, making it an offence to purchase a bull from the pope for the discharge of land from tithes. The law has only attained its present condition by slow degrees, and by the combined effect of statutes and judicial decisions. The effect of the Tithe Commutation Act of 1836 has been to make most of the old law of merely historical interest, as in the course of the commutation all the questions of law as to prescription, exemptions, &c., would have been duly considered by the commissioners before the rentcharge was finally apportioned.

Tithes in English law are of three kinds, predial, arising imme diately from the soil, as of corn; mixed, arising from things nourished by the soil, as of milk or wool; personal, as of the profits of manual occupations or trades. The right to the last was considerably re stricted by 2 and 3 Edw. VI. c. 13. They are also divided from other points of view into ordinary and extraordinary, the latter being a tithe at a heavier rate charged on hop and market gardens, and into great and small, as a rule those which go to the rector and vicar respectively. In general great tithes are predial, small are mixed and personal. It is not everything that is tithable; ex emptions are claimable either from the nature of the property or the privilege of the owner. Stone, lime, and such other substances as are not of annual increase are exempt. So are creatures ferse naturae. Exempt by privilege are the crown by its prerogative, and spiritual corporations in accordance with the maxim recognized equally by canon and common law, ecclesia decimas non solvit ecclesiae. Thus a rector pays no tithes to his vicar, or a vicar to his rector. On the same principle it is a ground of exemption that lands were anciently the property of the privileged orders (at the time of the dissolution of monasteries, the Cistercians and Hos pitallers), or were lands of the greater monasteries discharged from tithe by 31 Hen. VIII. c. 13. Exemption may also be claimed by redemption, by substitution of a rent-charge, by a real composition (that is, an agreement between the incumbent and the landowner, with the consent of the ordinary and patron, for the discharge from payment of tithe by means of satisfaction by giving of land or some other real recompense), by a modus (that is, a partial discharge owing to some customary method of tithing or modus decimandi), or by prescription under 2 and 3 Will. IV. c. 100. Tithes in extraparochial places belonged at common law to the crown, except by custom. Tithes are incorporeal hereditaments (see Real Estate), and may be dealt with like any other real estate of that nature. Thus they are, if in lay hands, tenements which may be entailed or leased, are subject to dower and curtesy, are assets for the pay ment of debts, and are (whether in lay hands or not) within the Statute of Limitations. They do not, however, issue out of the land like rents, but are collateral to it. Accordingly tithes are always freehold, even though they are charged on copyhold lands. Tithes are presumed to go to the parson of the parish. This presumption may be rebutted by proof that some or all the tithes go to the vicar, where the rector is in holy orders, or to a lay impropriator. It is said that about a third part of the tithes in England is in the hands of laymen. At one time arbitrary consecration of tithes was allowed, that is, payment to any priest at the will of the tithe payer. This was forbidden by a decretal epistle of Innocent III., about 1200. "This epistle decretall," says Coke, "bound not the subjects of this realm, but the same being just and reasonable they allowed the same, and so became lex terræ."^[12] A vestige of the arbitrary consecration perhaps exists in the rarely occurring right of the parson of one parish to a portion of the tithes of another. Tithes are payable by all persons alike, whether members of the Church of England or not. Special enactments deal with their recover} from Roman Catholics and Quakers. Up to 1836 tithes were paid in kind, unless where any other method of payment applied in a particular case, such as a modus in the nature of a pecuniary compensation, or a pecuniary payment under the terms of a public or private Act, as in the city of London by 37 Hen. VIII. c. 12, 22 and 23 Car. II. c. 15, and other Acts. Even before 1836, however, the bulk of the tithes had been commuted, but such commutation was in ordinary cases good only during the tenure of a particular incumbency, and did not bind the incumbent's suc cessors. The Act of 1836 merely completed and gave legislative sanction to a tendency which had been long on the increase.

The effect of the Tithe Commutation Act, 1836 (6 and 7 Will. IV. c. 71, frequently amended since), was to substitute for the tithe paid in kind or the fluctuating commuted tithe a rentcharge commonly called the tithe rent-charge equivalent to the market value from time to time on a septennial average of the exact quantities of wheat, barley, and oats which made up the legal tithes by the estimate in 1836. Excepted from the operation of the Act are (unless where there is a special provision approved by the commissioners) tithes of fish or of fishing, or any personal tithes other than those of mills, or any mineral tithes, or pay ments or rent -charges in lieu of tithes in London and other places, resting on the authority of local Acts. The Act has not been wholly successful in its working. By the transfer of estates, and by changes in local agriculture, the old estimates are nolonger fairly applicable in all cases. The commutation has been, on the whole, to the advantage of the landowners, for the tithe remains fixed while the rental of land since 1836 has risen, accord ing to Sir James Caird, from 33 millions to 52 millions per annum. Commutation under the Act is either by a voluntary agreement, confirmed by the tithe commissioners,^[13] or by an award of the commissioners. The machinery for determining the tithe for any given year is as follows: the Board of Trade is to cause the average prices per imperial bushel of each sort of British corn tobe computed from the summaries sent by the inspectors of corn returns, obtained from the averages stated by the inspectors, and published in the London Gazette weekly, quarterly, and yearly, and a septennial average is to be obtained from the sum of the annual averages divided by seven (45 and 46 Viet. c. 37, supersed ing sect. 56 of the Act of 1836). The rent-charge is computed on the basis of one-third for wheat, one-third for barley, and one-third for oats. The respective prices were originally fixed by 7 Will. IV. and 1 Viet. c. 69, s. 7 (as altered by the London Gazette of 9th December 1837), at 7s. l^d. for wheat, 3s. lld. for barley, and 2s. 9d. for oats per bushel. The prices for 1887 were 4s. lid., 3s. 10d., and 2s. 74d. respectively. Owing to this fall in prices, tithe rent-charge which stood at 100 in 1836 was worth in 1887 only 87, 8s. lOd.

After the coming into force of the Act of 1836 all lands were discharged from tithe, and the tithe rent-charge was substituted, payable by equal half-yearly payments, each 1st of July and 1st of January. A tenant paying the rent-charge is to be allowed the same in account with his landlord. The charge thus ultimately falls upon the landlord, whether or not he pays it in the first in stance to the tithe-owner. Land may be given instead of a rentcharge where the tithe-owner is an ecclesiastical person. Gardens or small tenements may be exempt from tithe by 3 and 4 Viet. c. 15. Later Acts give a power of redemption of rent-charge in the case of land required for public purposes, settled land, &c. (9 and 10 Viet. c. 73; 23 and 24 Viet. c. 93; 41 and 42 Viet. c. 42; 45 and 46 Viet. c. 38). Merger of the rent-charge is allowed by tenants in fee or in tail under the Act of 1836, and by persons having powers of appointment, tenants for life, and owners of glebes under 1 and 2 Vict. c. 64 and 2 and 3 Viet. c. 62. The mode of recovery of arrears provided by the Act of 1836 was a new one. Up to that time arrears could not be distrained for, unless in exceptional cases. The remedy of the parson was a suit for subtraction of tithes, which, by 2 and 3 Edw. VI. c. 13, could only be brought in a spiritual court. The remedy of the lay holder was a suit or action in any temporal court by 32 Hen. VIII. c. 7. It is provided by the Act of 1836 that, if the rent-charge be in arrear for twenty-one days, the person entitled to it may, after ten days notice in writing, distrain upon the lands liable to the payment of it. If it be in arrear for forty days, and there be no sufficient distress on the premises, a writ of habere facias posscssionem may issue, directing the sheriff to summon a jury to assess arrears. Not more than two years arrears can be recovered by either means. It appears from these sections of the Act that the charge binds the land alone, and that there is no personal liability of either landlord or tenant. Though the charge is on the land, it is not on the inheritance, and it has been recently decided that arrears are not recoverable by sale of the lands out of which the rent-charge issues. The assessment of the rent-charge on wastes, common or Lammas lands, coppice wood, turnips, cattle agisted, &c., and the commutation of corn rents created by local Acts, are the subject of special provisions. The Act of 1836 and later Acts pro vided for the division of the charge upon hop grounds, orchards, fruit plantations, and market gardens into the ordinary and extra ordinary charge, the latter to be a rate per acre in addition to the ordinary charge. The extraordinary tithe applies only while the land is cultivated as a hop ground, &c., and in case of new cultiva tion comes into operation gradually, the full rate not being levied at once. The incidence of the extraordinary tithe having been found an impediment to agriculture, especially in Kent, the Extraordinary Tithe Commutation Act, 1886 (49 and 50 Viet. c. 54), was passed as a remedy. It provides that no extraordinary tithe is to be charged upon any land newly cultivated after the passing of the Act. With regard to land subject at the passing of the Act to extraordinary tithe, the Act enables the land commissioners to certify the capital Talue of the extraordinary tithe on each farm or parcel of land, the land to be charged in lieu of the tithe with the payment of an animal rent-charge equal to 4 per cent, on the capital value. The owner or any other person interested in the land may redeem the charge at its capital value. Tithe rent-charge is subject by the Act of 1836 to all parliamentary, parochial, and county rates, and is an hereditament within the Poor Rate Act of the same year (6 and 7 Will. IV. c. 96). The latter Act further enacts that in estimating the net annual value of rateable hereditaments, the rent is to be estimated free, inter alia, of tithe commutation rent-charge, if any.^[14]

Scotland.—The terms " tithes " and " teinds " are both in use, but the latter is the more common. Teinds are either drawn in kind, valued, or redeemed. Originally they were all drawn in kind, as in England, but their commutation or redemption was the subject of many Acts of the Scottish parliament, especially those passed in 1633, the practical effect of which has been to make a fixed burden on the land take the place of a fluctuating payment, and to sub stitute a payment of one-fifth of the rent for one-tenth of the pro duce. In the first instance all teinds went to the church; but, when at the Reformation the crown became proprietor of the church lands, grants were made by it to the lords of erection or titulars of the tithes, laymen holding of the crown. The Act 1587, c. 29, annexed the church lands to the crown, with certain exceptions in favour of lay holders and others. All bishops teinds and those formerly part of the revenue of the chapel royal are now crown property. The Church Patronage Act of 1874 does not affect the right to teinds of a patron or titular. Teinds in lay hands are sub ject to the burden of providing a suitable provision for the minister, the stipend being fixed by the Court of Teinds. All lands are sub ject to teinds except those which before the Reformation were feued cum decimis inclusis et nunquam antea separatis, so that the grantee held lands and teinds together. In order to prove such an exemp tion, the person claiming under a decimas inclusae title must show that the lands and teinds belonged to a monastery, that the lauds were never teindable, that they were novalia, or reclaimed by the monks themselves, that the title bears that the lands are held cum decimis inclusis, &c., and that it is previous to 1587. The judges of the Court of Session sit as commissioners of teinds, a jurisdiction specially preserved by art. xix. of the Act of Union, and exercise wider powers than any existing body in England, as they possess at once the jurisdiction of a court of justice and of the English land commissioners. The constitution and procedure of the Court of Teinds is regulated by 48 Geo. III. c. 138 and sub sequent Acts.^[15]

Ireland.—Many Acts of the Irish parliament deal with tithes, both generally and locally, the earliest being 33 Hen. VIII. c. 12, based upon the English Act, 28 Hen. VIII. c. 20. After the "tithe war " at the beginning of the 19th century, a tithe composition payable by the occupier was fixed by 4 Geo. IV. c. 99. In 1838 an annual rent-charge equal in amount to three-fourths of the tithe composition was substituted for the latter by 1 and 2 Viet. c. 109. The rent-charge is recoverable by distress where the person liable is the occupier, in other cases by action in the High Court of Justice, or by civil bill in claims under 20. The Irish Church Act, 1869 (32 and 33 Viet. c. 42), vests all tithe rent-charge then belonging to clergy of the Irish Church in the commissioners of church temporalities in Ireland. By that Act and the amending Act, 35 and 36 Viet. c. 90, the commissioners are enabled to purchase the surrender or assignment of any subsisting lease of tithe rent-charge made by an ecclesiastical person or corporation, and to sell any rent-charge vested in them to the owner of the land charged therewith for a sum equal to twenty -two and a half years purchase.(J. W†.)

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1. A cattle tithe is demanded in Levit. xxvii. 32, and spoken of in 2 Chron. xxxi. 6. It is doubtful if this was ever acknowledged in practice. See Kuenen, Godsdienst, ii. 269 sq., and Wellhausen, op. cit., v. 1, §2 (Eng. tr., p. 155 sq.), who argue that the passage in Leviticus is a later addition. The tendency of the Pharisees was to pay tithe on everything, and to make a self-righteous boast of this (Matt, xxiii. 23; Luke xviii. 12).
2. It was his denial of the divine right of tithes that brought down the wrath of the Star Chamber upon the author. He was forced to retract an opinion too liberal for the time. See Selden.
3. Hallam, Middle Ages, ii. 205.
4. See Dante, Par. xii. 93, "decimas quæ sunt pauperum Dei."
5. Pt. ii. 16, 7.
6. Bk. iii. 30.
7. Extrav. Comm., bk. iii. 7.
8. 5 Sess. xxv. 12.
9. C. viii. s. 2.
10. 7 The grant said to have been made by Æthelwulf in 855, to which the general payment of tithes in England has been commonly traced, appears not to rest on satisfactory evidence; see Hallam, Middle Ages, Supplemental Notes, p. 180.
11. See Rev. Morris Fuller in National Review, November 1886.
12. 2 Inst., 641.
13. 19 By the Settled Land Act, 1882, the tithe commissioners have, with other bodies, been merged in the land commissioners constituted by the Act.
14. 1 See, in addition to the authorities already cited, Montesquieu, Esprit des Lois, bk. xxxi. c. 12; Prideaux, On Tithes; Eagle, On Tithes; Shelford, On the Tithe Commutation Acts; Phillimore, Ecclesiastical Law, vol. ii., 1483; Stephen, Comm., vol. ii. bk. iv. pt. ii. ch. iii.
15. See Selden, History of Tithes, c. vii. s. 9; G. J. Bell, Principles, §837, 1147; W. Bell, Law Dict. and Digest, "Teinds".