Bible Encyclopedias
Tithes

1911 Encyclopedia Britannica

a form of taxation, secular and ecclesiastical, usually, as the name implies, consisting of one-tenth of a man's property or produce. The tax probably originated in a tribute levied by a conqueror or ruler upon his subjects, and perhaps the custom of dedicating a tenth of the spoils of war to the gods led to the religious extension of the term, the original offerings to deity being "firstfruits." The custom was almost universal in antiquity; for Greece and Rome see Pauly-Wissowa, Realencyclopadie, iv. 2306, 2423; for Babylon, M. Jastrow, Religion of Babylonia and Assyria, p. 668; for China, J. Legge, Chinese Classics, i. 119; for Egypt, G. Maspero, Struggle of Nations, p. 312.1 The general notion of tax or tribute often prevailed over that of "the tenth" part, so that in Dion Halicarnassus (i. 23) and Philo (De mutat. nom. i. 607) airapxai and bErc circa are synonymous, and in Mahommedan law the "tithe" is sometimes only - 0 th or - T o th.

Among the early Hebrews the king could exact a tithe from cornfields, vineyards and flocks (1 Sam. viii. 15, 17). On the religious side the oldest laws (e.g. Exod. xxxiv. 26) speak of bringing the firstfruits of the land to the house of Yahweh. In the 8th century the term "tithe" was used in Israel of religious dues (Amos iv. 4; Gen. xxviii. 22), and in the 7th century Deuteronomic legislation the word is often found. In Deuteronomy 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, i i, xiv. 23 sqq.), apparently at the great autumn feast or feast of Tabernacles.' Such a tithe is still nothing more than the old offering of "firstfruits" (bikkurim) 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.' 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 increase 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. A distinction is drawn in Deuteronomy between the ordinary annual tithe, which may not have been a full tenth, and the "whole" or "full tithe," paid once in three 1 For other instances see Spencer, De legibus hebraeorum, 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 cf. W. R. Smith, Prophets of Israel, p. 382 seq.). A tithe of cattle appears in Lydia (Nic. Damasc. fr. 24).

2 Cf. Deut. xxvi. with, Sam. i. 21 (Sept.) and Jerome on Ezek. i. 3; and see Wellhausen, Prolegomena, p. 94 (Eng. trans., p. 92 seq.).

3 In Deuteronomy, accordingly, the firstfruits (bikkurim) are not mentioned; the tithe takes their place. The word translated "firstfruits" in Deut. (reshith) is a small gift to the priests, a mere basketful (xviii. 4, xxvi. 2 seq.).

years (Deut. xiv. 28, xxvi. 12), which the legislator directs to be stored at home, and spent in feeding the poor. Amos iv. 4, "Bring your sacrifices every morning and your tithes every three days" (not "years" as E.V.), hardly implies more than that occasions of sacrifice were three times as frequent as titheday, and so alludes to the fact that there were by old usage three annual feasts and one annual tithe. A triennial sacrificial tithe is inconceivable when it is remembered that the tithe is only an extension of the firstfruits. 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, as stated above, had a prescriptive claim to be considered on such occasions (cf. 1 Sam. xxv. 8 sqq.; Neh. viii. io; 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. In Ezekiel as in the Law of Holiness there is no mention of tithes; he proposes to support all public worship from the proceeds of a general tax (xlv. 13) levied by the prince, the old firstfruits being allotted to the priests. In the Persian period the tithe was converted to the use of the Temple (Mal. iii. 8 - io). As Malachi speaks in Deuteronomic phrase of the "whole tithe," the payment to the Levites (now subordinate ministers of the Temple) 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 Mal. 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. io 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. It is doubtful whether the system ever worked. The plain intention 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 seq.; 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, alleging that he deprived the Levites because so few of them were willing to return to Palestine (Mishnah, "Ma'aser Sh." v. 15; "Sota," ix. 10, and Wagenseil's note).2 On the whole subject of Hebrew tithes see further G. F. Moore in Ency. Bib. col. 5102; A. S. Peake in Hastings's Dict. of the Bible, iv. 780; and the works on Hebrew antiquities by H. Nowack and I. Benzinger. (A. J. G.) 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.

1 The tithe offered to Yahweh may have originally been consumed - in whole or in representative part - on the altar, but in the rituals preserved to us the offering is symbolical, the deity ceding his tithe to the priest, so that from quite early times the tithe helped to support the priesthood who like the poor had a customary share (guest-right) in the feasts.

A cattle tithe is demanded in Lev. 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 seq., and Wellhausen, Prolegomena, V. 1, § 2 (Eng. trans., p. 155 seq.), 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). The Mishna (Ma'aseroth i. 1) says "everything that is eaten and is watched over and grows out of the ground is liable to tithe." History, as Selden showed in his learned and exhaustive treatise (History of Tithes 1618), does not bear out this view.' 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." 4 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 the beginning of the 9th century. Tithes were by that enactment to be applied to the maintenance of the bishop and clergy, the poor, 5 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 contains 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.6 The decretals contained provisions as to what was and what was not tithable property, as to those privileged from payment, as to sale or hypothecation to laymen, as to priority over state taxes, &c. 7 Various questions which arose later were settled by Boniface VIII. $ The Council of Trent enjoined due payment of tithes, and excommunicated those who withheld them .° In England the earliest example of legal recognition of tithes is, according to Selden, a decree of a synod in 786.10 Other examples before the conquest occur in the Foedus lElfredi Guthruni and the laws of Athelstan, Edgar and Canute."A full discussion of their origin and history is to be found in Lord Selborne's Ancient Facts and Fictions concerning Churches and Tithes (1888); the History of the Law of Tithes in England, by G. Edwardes Jones; and the Sacred Tenth, Ancient and Modern, by H. Lansdell (1906). (J. W.) Tithes in England may be best dealt with in two chronological divisions - tithes under the system existing previously to the Commutation Acts and tithes under the system then introduced.

1. Whether or not, as it is said, before the Council of Lateran in 1180, a man could have given his tithes to any church or monastery that he pleased, at any rate since that time, with the division of dioceses into parishes, they now of common right belong to the church Acts. within whose parish they arise, although by prescription they may belong elsewhere. The general rule was said to be that all lands within a parish are subject to tithes, and a layman was not allowed to prescribe generally that his lands were exempt; but he had to show a special exemption, and no length of possession was regarded in law in view of the maxim nullum tempos occurrit ecclesiae, although equity did take account of it. The tithes in places extra-parochial, e.g. forest lands, belong to the Crown, although by canon law they were to be disposed of by the bishop; but by custom a parson or vicar might be entitled to them. The tithes of tithable cattle pasturing in any waste or common ground, whereof the parish is not certainly known, were made payable to the parson of the parish where the cattle dwell by a statute of Edward VI.

Tithes were classified according to their nature as praedial, or 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.) Hallam, Middle Ages, ii. 205.

5 See Dante, Par. xii. 93," decimas quae sunt pauperum Dei."6 Pt. ii. 16, 7.7 Bk. iii. 30. s Extra y. Comm. bk. iii. 7.

9 Sess. xxv. 12.1° C. viii. § 2.

" The grant said to have been made by lEthelwulf in 855, to which the general payment of tithes in England has been commonly traced, appears not to rest on satisfactory evidence.

arising immediately from the ground, e.g. grain of all sorts, hay, wood and the like; mixed, or arising from things immediately nourished by the ground, e.g. colts, lambs, eggs and the like; or personal, namely, of profits arising from the honest labour and industry of man, and being the tenth part of the clear gain, e.g. fishing, mills and the like; or according to value, as great, e.g. corn, hay and wood; or little, which embraced all others. Of common right tithes were only payable of such things as yield a yearly increase by the act of God, and generally only once a year. They were not payable of the following, except by custom: things of the substance of the earth, such as coals, minerals, turf and the like; things ferae naturae, such as fish, deer and the like; things tame, such as fowls, hounds or fish kept for pleasure or curiosity; barren land, until it is converted into arable or meadow land, and has been so for seven years; forest land, if in the hands of the king or his lessee, unless disafforested; a park which is disparked; or glebe land in the hands of the parson or vicar, which was mutually exempted from payment by the one to the other, but not if in the hands of the vicar's lessee. Another exception to the incidence of tithes were abbey lands. These were exempted generally by Pope Pascal II. while in the hands of their owners, but the privilege was restricted by Pope Adrian IV. in the time of Henry II. to the three religious orders of Cistercians, Templars and Hospitallers (to whom the Templars' lands were given on their dissolution in 17 Edw. II.), to which Pope Innocent III. added the Praemonstratenses. The Council of the Lateran in 1215 further restricted this exemption to lands of which these orders were in possession before that council. A custom by the religious to obtain exemption for lands let to their tenants by means of bulls from the pope was put an end to by a statute of Henry IV. making the acquisition or use of such bulls henceforward a praemunire. When the religious houses were dissolved by Henry VIII., in the case of the greater abbeys and priories the exemptions from payment of tithes enjoyed by them passed to the Crown or the persons to whom the Crown assigned them, and thus any lands which might have been thus exempted, whether they had been actually so or not, were presumed to be exempt; and a further exemption was created by parsonages coming into the same hands as tithable lands, which lasted so long as such union continued.

A further exemption from tithes was given by an act of 1832 (2 & 3 Will. IV. c. loo), which fixed a period of prescription against claims of tithe by laymen or corporations aggregate, of thirty years during which there had been no payment of tithes or a modus or composition had existed, in the absence of contrary evidence, and in any case of sixty years; and against corporations sole, of sixty years or the tenures of two successive incumbents and three years after the entry of a third. The tithes which came into lay hands by the dissolution of the religious houses and the previous suppression of alien priories by Henry V. became in all respects incorporeal freehold property. Under the Limitation Act of 1833 twenty years of adverse possession of an estate in tithes gave a good title, except as against spiritual or eleemosynary corporations sole whose right to recover tithes was limited, if at all, to a period of two incumbencies and six years afterwards, or sixty years (s. 29).

Tithes were generally recovered by a writ against the owner of the tithable property usually brought in the ecclesiastical courts (questions of title to tithes being reserved to the temporal courts), the jurisdiction of which in this respect was confirmed by the statutes Circumspecte agatis (13 Edw. I.), Articuli cleri (9 Edw. II.), and others of Henry VIII. and Edward VI., and was enforced by ecclesiastical censures and the writ De excommunicate capiendo; and an act 2 & 3 Edw. VI. made any person refusing to set out tithes liable to pay double the value in the ecclesiastical court or treble in a common law court. Tithes of small amount or due from Quakers could be recovered by summary proceedings before justices under statutes ranging from William III. to Victoria. Tithes could also be sued for in equity, especially the equity side of the exchequer. A custom also sprang up, and was common at the time of the Commutation Acts, for a tithe-owner to accept a fixed sum of money or fixed quantity of the goods tithable in place of the actual tithes, known as a modus decimandi, whether in respect of a whole parish or only of particular lands within it; and this could be sued for in the ecclesiastical courts. Tithe-payers could also file bills in equity to establish a modus against a tithe-owner. In the City of London there were customary tithes; in other towns and places there were compositions for tithes which were confirmed by local acts of parliament; and according to a return presented to the House of Commons in 1831, there were passed between 1757 and 1830 no less than 2000 local acts containing clauses for the commutation of tithes. Enclosure Acts often gave a portion of the lands enclosed to the spiritual or lay rector and exempted the rest from tithes; and in other local acts a corn rent or yearly money payment was substituted for tithes. Except, however, where made under parliamentary authority, no composition for tithes, although made between the landowner and the parson or vicar with the consent of the patron and ordinary, bound a succeeding incumbent, the statute 13 Eliz. c. so prohibiting any parson or vicar from making any conveyance of (inter alia) tithes, being parcel of the possessions of their churches, to any persons, except leases for twenty-one years or three lives.

2. The principle of the Tithe Commutation Acts (1836-1860) is to make permanent and general the system which had been only partial or temporary (in most cases), After the and to "substitute a corn rent (known as a tithe rent charge), permanent in quantity and payable Acts. in money, but fluctuating in value, for all tithes, whether payable under a modus or composition or not, which may have heretofore belonged either to ecclesiastical or lay persons" (Phillimore, Eccles. Law, ii. 1161).

Commissioners (now the board of agriculture) are appointed to execute the acts; a rent charge on all lands liable to tithes at the time of the passing of the first act is substituted for those tithes, of which the gross amount is ascertained either by voluntary parochial agreement, or, failing that, by compulsory award confirmed by the commissioners; and the value of the tithes is fixed in the latter case by their average value in the particular parish during the seven years preceding Christmas 1835, without deduction for parochial or county and other rates, charges and assessments falling on tithes, the rent charge being liable to all the charges to which tithes were liable. The rent charge is apportioned on all the lands liable in the parish, and such apportionment may be altered or a new one made: and the value of the rent charge is fixed at the value (at the time of confirmation of the apportionment) of the number of imperial bushels and decimal parts of bushels of wheat, barley and oats as the same would have purchased at the prices so ascertained by the advertisement (of prices of corn) to be published immediately after the passing of the act 6 & 7 Will. IV. c. 71, in case one-third part of such rent charge had been invested in the purchase of wheat, one-third part in the purchase of barley, and the remaining third part in the purchase of oats; and the respective quantities of wheat, barley and oats so ascertained shall be stated in the draft of every apportionment. The price at which the conversion from money into corn is to be made at the time of confirmation of such apportionment, according to the provisions of the said act, are 7s. old. for a bushel of wheat, 3s. 112d. for a bushel of barley and 2s. 9d. for a bushel of oats (7 Will. IV. and i Vict. c. 69); the average price of the bushel of each grain is now computed by substituting for the "advertisement" above the statement of the septennial average price of the imperial bushel of British corn made under the Corn Returns Act 1882; and thus the value of the statutory amount of corn is now fixed for each year at the beginning thereof at the average price of the three components of corn for the previous seven years. The extent of the depreciation in value of tithe tray be gathered from the fact that for 1902 the price of the wheat bushel is thus fixed at 3s. 54d., that of the barley bushel at 3s. old. and that of the oats bushel at 2s. 1d.

As already indicated above, certain lands are exempt from payment of tithes while in the occupation of their owners, either by reason of their having been parcel of the possessions of any privileged order, or by reason of their being of the tenure of ancient demesne and exempt whilst in the tenure, occupation or manurance of the Crown, its tenants, farmers and lessees or under-tenants, although they are subject to tithes when aliened or occupied by subjects not being such; and in these and in all such cases, with the consent of such owners, a fixed rent charge may be substituted for any contingent rent charge imposed on them (2 & 3 Vict. c. 62; 3 & 4 Vict. c. 15, now repealed except as to tithes not commuted). In certain cases where commutation of tithes for rent charge in the ordinary way was impracticable, e.g. in the case of Lammas lands or in the case of common lands, power was given to charge a fixed sum or rate per head of the cattle there pasturing, with an exception in the case of Lammas lands which for seven years before Christmas 18, 35 had paid no tithe; and also to fix a rent charge in respect of tithes of common appurtenant on the allotment made in respect of the lands to which such right of common attached (2 & 3 Vict. c. 62; 3 & 4 Vict. C. 15; 9 & 10 Vict. C. 73). By an act of 1860 (23 & 24 Vict. C. 93) a gross rent charge can be substituted for a commutation of tithes on common rights at a fixed sum per head; a gross rent charge made payable in respect of the tithes of a gated or stinted pasture rated to the relief of the poor may be apportioned thereupon and enforced in the method prescribed by the other Tithe Acts; a rent charge on commons may be commuted for part of the land or redeemed, if the landowners and persons liable for tithe so agree; and upon enclosure, a rate per head may be converted into a rent charge on the lands allotted. These rent charges are not subject to the Tithe Act of 1891. This act of 1860 also gave power to convert the corn rents established under local acts into rent charges.

In the case of hop-grounds, orchards, fruit-plantations and gardens power was given to the commissioners to value them separately, according to the average rate of composition for the seven years preceding Christmas 1835, and to fix an ordinary and an extraordinary charge for tithes thereof, the former for such lands going out of cultivation, the latter for such as were thereafter newly cultivated; lands subject to the latter were exempted during their first years of cultivation; and such lands were only subject to it if situated in a parish in which an extraordinary charge had been distinguished at the time of commutation (6 & 7 Will. IV. C. 71; 2 & 3 Vict. C. 62; 3 & 4 Vict. c. 15; 23 & 24 Vict. c. 93; 36 & 37 Vict. c. 42). In 1886, however, it was enacted that no such extraordinary charge shall be levied on any such grounds so newly cultivated in future; the capital value of the existing charges was assessed, and the payment of interest thereon was made a rent charge on the land payable in priority to all other charges until its redemption, and recoverable in the same way as ordinary rent charge and exempt from all rates, charges and assessments: the charge was redeemable at the capital value, and, saving existing contracts, it was as between landlord and tenant payable by the landlord, any agreement to the contrary notwithstanding; and it is not subject to the Tithe Act of 1891. Under the act of 1840 (3 & 4 Vict. c. 15) gardens and lawns and the like, of small size, could be exempted from tithes.

Besides the tithes dealt with by local acts as already mentioned, certain other kinds of tithes are outside the scope of the Commutation Acts, namely, tithes of fish and fishing, personal tithes other than tithes of mills, and mineral tithes, unless the landowners and tithe-owners consent to make a parochial agreement for commutation before the confirmation of an apportionment after a compulsory award in such parish. As already seen, fish being ferae naturae are only tithable by custom; but fish taken in the sea by the custom of the realm are tithable as a personal tithe, i.e. in some small sum for the net profits of the fishing, and customs for payment in kind have been upheld by the courts. Personal tithes, if not commuted or otherwise still payable, are regulated by a statute of Edward VI., which (except in the case of fishing and tithes for houses in cities and towns, which may be due by custom) restricted them to such persons exercising merchandises, bargaining and selling clothing, handicraft or other art or faculty in such places as had for forty years previously so used to do. Personal tithes are now rare, except of fish caught at sea, when they are payable to the church where the taker hears divine service and receives the sacraments. Tithes on houses or customary payments in lieu of tithes have, by local acts, in some cases been turned into church rates. Statutory provision is also made for allowing tithes and tithe rent charge to be exchanged for land, and for the redemption of rent charges made under the acts, and also of corn rents under the local acts. Tithe rent charge may also be merged in the land tithable, with the consent of the tithe commissioners and the landowner, by the legal and equitable owners of tithes in fee simple or fee tail, or persons having power to appoint the fee simple in tithes, or owners of glebes, or owners of lands and tithes settled to the same uses.

Tithe rent charge under these acts is subject to the same liabilities and incidents as tithes, such as parliamentary, parochial, county and other rates, especially the poor rate and highway rate; but the owner of tithe rent charge attached to a benefice has been exempted by an act of 1899 from payment of half the amount of any rate which he would be liable to pay under the Agricultural Rates Act 1896, the other half being borne by the Inland Revenue Commissioners. The limitation of time for recovery of tithes or estates in tithes, whether between rival claimants to tithes or tithe-owners or tithe-payers, if belonging to lay individuals or lay or spiritual corporations aggregate, is a period of twelve years, as in the case of other real property (37 & 38 Vict. c. 57); and in the case of spiritual corporations sole the period of limitation of actions, if any, is governed by the Limitation Act 1833, s. 29, already quoted, the act 2 & 3 Will. IV. c. 100 being held only to apply to demands of tithe in kind.

The method of recovering rent charge under the Commutation Acts was distraint where the rent charge is in arrear for twentyone days after the half-yearly days of payment, and entry and possession with power of letting if it is in arrear for forty days, and arrears for two years are so recoverable: this power of distress and entry extends to all lands occupied by the occupier of the land whose tithe is in arrear as owner or under the same landlord; but no action lies against the owner or occupier of the land personally. If a tenant quits leaving tithe unpaid, the landlord may pay it and recover it from him. The tithe-owner cannot recover damages from the tithe-payer for not cultivating the land. Special provision is made for the recovery of the rent charge in railway lands.

The act of 1891, has, however, altered this method of recovering tithes, and substituted another intended to shift the burden of responsibility from the occupier to the landowner, by making the latter directly and solely responsible, but giving the remedy against the land. The landowner is made liable to pay the rent charge in spite of any contract to the contrary between him and the occupier; the rent charge if in arrear for three months is recoverable by an order of the county court, whatever its amount may be: if the land is occupied by the owner, the order is executed by the same means as those prescribed in the Tithe Acts; but if it is not, then by a receiver being appointed for the rents and profits of the land: neither landlord nor occupier is personally liable for payment; and appeal lies to the High Court on points of law; and a remission of rent charge may be claimed when its amount exceeds two-thirds of the annual value of the land. The act does not apply to the particular kinds of rent charges mentioned above.

The Tithe Acts do not apply to the city of London, which has always had its own peculiar customary payment regulated by episcopal constitutions of 13 Hen. III. and 13 Ric. II. and statutes of Henry VIII., confirming a decree of the privy council, under which the rate of tithes was fixed at 162d. for every 10s. rent, and at 2s. 9d. for every 20S. rent of houses, shops and the like by the year. Provision was made by statute after the fire of London for certain annual tithes to be paid in parishes whose churches had been destroyed, and there have been local acts from time to time with regard to particular parishes therein.