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that is of the substance of the earth, as stone or lime, nor for wild animals, whose increase is not annual, but casual.
Origin. The title of the clergy to tithes is not upon any divine right, though a competènt maintenance for ministers of the gospel is undoubtedly jure divino. Natural reason informs us, as well as do the positive precepts of the Bible, that this class of men should be furnished with the necessary conveniences, and the moderate enjoyments of life. Hence all municipal laws have provided a liberal and descent maintenance for their national clergy; ours have established that of tithes, probably in imitation of the Jewish law.
History. Possibly tithes were introduced into England by Augustine the monk, contemporary with the planting of christianity among the Saxons, at the end of the sixth century. Charlemagne established their payment in France, dividing them into four parts: one to maintain the church edifice, a second for the poor, the third for the bishop, and the fourth for the parochial clergy.
To Whom Due. At their introduction, though all men were obliged to pay tithes, they might give them to what priests they pleased, or pay them to the bishop, who distributed them among his diocesan clergy. But when dioceses were divided into parishes, the tithes of each parish were alloted to their own minister.
Special Exemption from Payment. This exemption may be accomplished by a real composition, or by a custom or prescription.
Real Composition. 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 for the future shall be discharged from the payment of tithes, by reason of some land or other recompense given to the parson. By statute of Elizabeth, no real composition is good for over three lives, or twenty-one years, and is now rarely heard of.
Discharge by Custom or Prescription. This is where, time out of mind, persons or lands have been partially or totally discharged from the payment of tithes. It is either de modo decimandi, where by custom, a particular manner of tithing is allowed, different from the general law, or a prescription de non decimando, which 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 therefrom. These personal privileges, where not annexed to the land, are confined to the king and the clergy, for their tenant or lessee shall pay tithes. Spiritual persons or corporations, in various ways, were capable of having their lands totally discharged of tithes.
3. Common. The right of common is a profit, which a man has in the land of another, as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like: of pasture, of piscary, of turbary, and of estovers.
Of Pasture. This is the right of feeding one's beasts on another's land, for in waste grounds or commons, the property of the soil is generally in the lord of the manor. It is either ap
. pendant, appurtenant, because of vicinage, or in gross.
Appendant. Common appendant is a right belonging to the owner or occupier of arable land to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. These beasts are such as are of the plough, or such as manure the ground. This is of universal right, and is inseparably incident to the grant of the lands.
Appurtenant. Common appurtenant arises from no connection of tenure, nor from any absolute necessity, but may be annexed to land in other lordships, or extend to other beasts, as hogs or goats, which neither plough nor manure the ground. It is not of general right, but can be claimed by immemorial usage, which the law esteems proof of a grant for this purpose.
Because of Vicinage. This is where the inhabitants of two contiguous townships have usually intercommoned the beasts of one straying into the fields of the other, without molestation. This is only a permissive right, to excuse a trespass, and therefore either township may enclose and bar out the other. Neither has any person of one township a right to put his beasts originally into the other's common, but if they escape and stray thither, the trespass is usually ignored.
In Gross. This is annexed to a man's person, being granted to him and his heirs by deed, or it may be claimed by prescriptive right, and may be vested in one owning no land.
Limited in Number and Time. These species of pasturable common may be limited as to number and time. The lord of the manor may enclose so much of the waste as he pleases
for tillage or wood ground, provided he leaves common sufficient for such as are entitled thereto. The lord and commoner may bring actions for damage done, either against strangers or against each other, the lord for public injury, and a commoner for his private damage.
Of Piscary and of Turbary. Common of piscary is a liberty of fishing in another man's water, and common of turbary is a liberty of digging turf upon another man's land.
Of Estovers. The word estovers from estoffer, to furnish, is a liberty of taking necessary wood, for the use or furniture of a house or farm from off another's estate. It is synonomous with the Saxon word bote. These botes or estovers must be reasonable ones, and the tenant or lessee may take them without waiting for special permission, unless restrained by special covenant to the contrary.
4. Ways. This is the right of going over another man's ground. This does not refer to the king's highways, nor of common ways, leading from a village into a field, but of private ways, in which a particular man may have a right, though another be the owner of the soil. This may be granted by a special permission, as when the owner of land grants to another the liberty of passing over his grounds to go to church, to market, or the like, in which case the right is given to the grantee alone, and dies with him. In such grant, there can be no assignment, nor has the grantee the right to have any person accompany him.
By Prescription. A way may be also by prescription, as if the inhabitants of a hamlet, or the owners and occupiers of a farm, have immemorially used to cross a certain ground for a particular purpose; for this usage presupposes an original grant.
By Act and Operation of Law. If a man grant a piece of land in the middle of his field, he at the same time tacitly and impliedly gives the grantee a way to come out of it, and the latter may cross the land for that purpose without trespass. For when the law gives a thing to a man, it grants impliedly whatever is necessary for enjoying the same.
5. Offices. These are a right to exercise a public or private employment, and to take the fees and emoluments thereto belonging. They are incorporeal hereditaments, whether public, as those of magistrates, or private, as of bailiffs or receivers. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only. No judicial office can be granted in reversion, but ministerial offices may, for they can be executed by deputy. By statute, public offices cannot be sold.
6. Dignities. These bear a near relation to offices. They are a species of incorporeal hereditament, wherein a man may have a property or estate.
7. Franchises. Franchise and liberty are synonomous terms.
Defined. This is a royal privilege or branch of the king's prerogative, existing in the hands of a subject. Franchises usually arise from the king's grant, or in some cases may be held by prescription, which presupposes a grant. They are of various kinds, and may be vested in either natural persons or bodies politic, in one man or in many, but the same identical franchise that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant.
Examples. To be a county palatine is a franchise, vested in a number of persons, It is likewise a franchise, for a number of persons to be incorporated, and subsist as a body politic, with a power to maintain perpetual succession, and to do other corporate acts. And each member is also said to have a franchise. Other franchises are to hold a court leet, to have a manor, to have wrecks, estrays, treasure trove, forfeitures or deodands, to have a court of one's own, to have the cognizance of pleas, to have a bailiwick, a fair, or a market, to take tolls, or to possess a forest, park or fishery, endowed with privileges of royalty.
Forests. A forest is the same as a chase, and differs from a park in not being enclosed, and in not being limited to a man's own grounds. Yet it is not every enclosed field or common, which a man stocks with deer, that constitutes a park, for the king's grant or immemorial prescription is a prerequisite. Free warren is a similar franchise, erected for the preservation and custody of animals ferae naturae.
Fisheries. A free fishery is the exclusive right to fish in a public river, and is a royal franchise. The making such grants, restraining the use of running water, was prohibited in the great charter of king John.
8. Corodies. These are a right of sustenance, or to receive certain allotments of provisions and victuals for one's mainte
nance. In lieu of which, a pension or sum of money is sometimes substituted.
9. Annuities. These arise from temporal, as corodies do from spiritual persons. An annuity is very distinct from a rent charge, with which it is frequently confounded, a rent charge being a burden imposed upon and issuing out of lands, whereas an annuity is a yearly sum, chargeable only upon the person of the grantor. Therefore if a man by deed grant to another a certain sum per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it, but it is a mere personal annuity.
10. Rents. The word rent or render, reditus, signifies a compensation or return, in the nature of an acknowledgment for the possession of some corporeal hereditament. It is defined to be a certain profit, issuing yearly out of lands and tenements corporeal.
Must be a Certain Profit. It must be a profit, yet not necessarily money, for grain and other things frequently are rendered for rent. It may also consist in services or manual labor, as to plough land, to attend the king or lord to the wars, which services in the eye of the law, are profits. This profit must also be certain, or that which may be reduced to a certainty.
Must Issue Yearly. It must also issue yearly, though not necessarily every successive year, for it may be reserved every second or other year, yet, as it is a recompense produced out of the profits of the lands or tenements held, it ought to be reserved yearly, because the profits annually arise. It must issue out of the thing granted, and not be part of the thing or land itself.
Must Issue out of Lands and Tenements. That is, it must issue from some inheritance, whereunto the owner or grantee of the rent may have recourse to distrain. Therefore, a rent cannot be reserved out of an advowson, a common, an office or a franchise. But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt, though it does not affect the inheritance, and is no legal rent in contemplation of law.
Kinds of Rent. At common law, there are three kinds of rent: rent-service, rent-charge and rent-seck.