Tithes in Country Life

‘A Relique of Popish Tyranny, not only Iniquitous, Oppressive and Incompatible with the Spirit of the British Constitution, but also destructive to the Ardour of Agriculture and Improvement.’

An anonymous layman: 1773.

A few barns in the countryside; a few lines in the current edition of Halsbury’s Laws of England: that is all that is left.

The Tithe Acts of 1836 and 1936 abolished the old system, but two hundred years ago tithes were engraved upon the lives of the entire population: a source of income, luxury and avarice for the privileged; a tax at 2s. in the £, and a source of anger and resentment for everyone else.

In origin, tithes were the income of church property held in trust by the clergy for the use of the poor, and as such were established in the early Christian era. They were introduced into England in the form of voluntary offerings for the same purpose in the eighth century and made compulsory by King Offa in Mercia in 794: tradition has it that he had, in the preceding year, treacherously murdered King Ethelbert of the East Angles, and, in order to expiate the crime and obtain absolution from the clergy, he granted them a tenth part of the produce of his kingdom for ever. In the following century the clergy succeeded in having compulsory tithes established throughout the kingdom.

Tithes were closely associated with the Roman Catholic Church; their rules were governed by Canon law; they were enforced in the Ecclesiastical courts. Some there were, in the 1530s, who hoped that tithes would follow the monasteries into oblivion: but they were to be disappointed, for in 1540 an Act was passed for the True Payment of Tithes and Offerings; the preamble of this Act sets out that many persons had been contemptuously presuming to offend and infringe the good and wholesome laws of the realm by withholding tithes, and went on to enact that everyone was to pay all tithes according to the lawful customs and usages of parishes and places where they were due, that both the ecclesiastical and lay courts were to have power to enforce tithes according to Canon law and punish anyone who withheld what he owed. Thus tithes were again embedded into the law of the land and there they remained for another three hundred years.

The law, at any rate in the later period, was of extreme complexity, full of subtle distinctions that might baffle the present generation of legal practitioners, accustomed as we are to fine points. Tithes in England are believed to have been much more complicated, and more far-reaching, than in other countries. Primarily, they were payable on annual profits - but came to be charged on other assets as well - and were naturally, in an agricultural community, based on agricultural produce; and the study of the law reports and text-books of the period throws an interesting sidelight on the farming practices of the eighteenth century.

Tithes that arose directly from the ground, on hay, grain, wood, fruits and herbs, were known as predial tithes; those that were payable on the profits of labour and industry were known as personal tithes and were confirmed by statute in 1548; those that arose partly from the ground and partly from industry, such as calves, lambs, chickens and dairy produce, were known as mixed tithes.

Tithes were payable, according to rules that varied in different parts of the country, to archbishops, bishops, archdeacons, deans and chapters, prebendaries, rectors, vicars and curates. In practice, it would appear that they were usually paid to the parish priest, and for this purpose a distinction was drawn between ‘great tithes’ - on corn and hay and other major crops - which were due to the rector, and ‘small tithes’ -on herbs and root crops - which were due to the vicar.

The customary laws varied from one parish to another, and there were some 10,000 parishes in the country. In some cases, as a further complication, bodies that had been endowed with tithes by the Pope subsequently fell into the hands of laymen, and so these ‘lay impropriators’ were also entitled to receive tithes; conversely, abbeys and monasteries had been exempt from tithes and after the dissolution this privilege was preserved in favour of those who came to hold their lands.

Tithes were originally paid in kind, and the methods of assessing such items as hay, hops and honey will be considered shortly. Sometimes, however, an arrangement was entered into between parishioners and parson. Such a composition took different forms in different parishes: it might be a lump sum for the entire tithe on a particular farm; it might be a fixed rate per acre on com or hay; it might be a contribution in kind on one type of crop in lieu of all others, as, for example, at Drayton Bassett, Staffordshire, where a tithe-payer supplied nine cartloads of wood in lieu of all other tithes.

Until the sixteenth century it had been possible for the clergy to enter into arrangements of this nature to bind not only themselves but future incumbents of their livings; in the course of time, the documentary evidence of such arrangements was often lost, but they were kept alive by custom.

A customary method of tithing was called a mode - a modus decimandi -and if it was a reasonable one the courts continued to enforce it; most moduses however had been agreed, probably, in the fifteenth or early sixteenth centuries, and by the eighteenth century, owing to the fall in the value of money, were substantially below the real value of the tithes; but owing to a peculiar rule of law, whereby customs, to be valid, had in theory to be traced back to 1189, the fictional date for the commencement of legal memory — a fiction which was, I suspect, invented by the clergy in conjunction with Ward, Chief Baron of the Court of Exchequer from 1695 to 1714, to vitiate unfavourable moduses, and subsequently extended to customary laws in general - a modus could be invalidated if it could be shown that the rate would have been excessive in that year.

Many moduses were, in fact, invalidated on this ground e.g. 5s. an acre on wheat and rye, 1s. per milch cow, 3d. per lamb. The evidence of the law reports and the text books indicates that, while some members of the clergy were favourably disposed towards their parishioners, many were avaricious and ruthless men who had no hesitation in exacting the full amount to which they were legally entitled, and did not scruple to overthrow a modus of long standing, and insist on reverting to a full 10 per cent rate in kind on everything produced in their parishes.

The principal crops were, of course, corn and hay. The tithe on corn was payable by the tenth shock, cock or sheaf. The usual practice was to leave the corn in the field; in a case from Barrow, Suffolk, the farmer carried away nine out of every ten cocks, leaving the tenth ones for the parson, but the court ruled that this was wrong and that he should have left it all out in the field, with the parson’s cocks marked with a green bough, so that he could come and view the crop and judge if the share left for him was fair.

It was, in fact, an express term of the Tithes Act, 1548, that in the case of crops growing in the fields the parson or his agent must be allowed to enter the fields, examine the crops and take away his share; and the farmer had to leave the crop there until the parson took it, and if he delayed, though the crops rotted and he was unable to turn his beasts out on to the land, the farmer had no redress. A farmer could not even evade his liability by not sowing a field, for he was still bound to pay tithe on the crop that he would have grown.

Sometimes, however, by local custom, the corn had to be brought to the church door or churchyard. Likewise, hay was tithed in swaithes, windrows or cocks, whether mown ripe for cattle or green for deer. Clover was introduced into England comparatively late and could not therefore be subject to a customary mode dating prior to legal memory: like hay, it was tithed as a ‘great tithe’ - but if the seeds were fed to animals it was a ‘small tithe’.

A second crop, known as an after-mowth, was subject to tithe just as the main crop, but rakings were free unless scattered fraudulently. Any waste land that was improved, or fenny land drained, or even land reclaimed from the sea, became subject to tithes when converted into arable or meadow - although sometimes such land was relieved during the first seven years.

Other crops were subject to similar tithes. Peas and beans, if set out and planted in rows, were tithed as hay or corn. ‘The tithe of it must be set out’, said a judge in 1798, ‘as soon as it comes into divisions or parcels, so as to let the tenth be seen and judged of and husbanded.’

 This applied if the crop was grown for sale or to be fed to cattle, but not if eaten at home. Turnips were also titheable: in 1731, in probably the earliest turnip case, it was argued that in the dry and sandy soil of Staffordshire, the turnips were planted to improve the land so that the parson got the better share of corn, lambs and wool; but this argument was of no avail: the turnips had to be set out in heaps to enable the parson to claim his portion. The same applied to potatoes, which Sir Walter Ralegh had introduced from Virginia into Ireland in 1610 whence they had subsequently been brought over into Lancashire.

The tithe on hemp and flax had caused ‘many grievous, chargeable and vexatious suits and animosities’, according to the preamble of an Act passed in 1691, and was accordingly fixed at 4s. an acre, raised to 5s. by an amending Act in 1700. Tares were titheable, and so were items of garden produce such as parsley, sage, cabbages and onions, but these were usually assessed in cash.

The dye plants - saffron, woad and madder - were tithed. Saffron was usually tithed in cash by agreement. Woad had to be set out in baskets at the first and second cutting for the parson to take his share. Madder was the subject of special statutory provision: the preamble to an Act of 1758 states that as madder was an essential ingredient in dyeing and calico printing, and could be raised in England as well as in any foreign country, and its production would provide employment for the poor during the winter, a fixed tithe would encourage its production: accordingly it was fixed at 5s. an acre for fourteen years.

A second Act, in 1765, set out that it was desirable to put the tithe on a more permanent basis, because the cultivation of madder required so long a time, and the buildings and mills and other requisites for manufacturing it were so expensive, that many people were not prepared to introduce it: so the 5s. rate was continued for a further fourteen years. Thereafter the same rate was probably paid by agreement.

Trees in ancient time had been titheable, but a statute, known as the Sylva Caedua Act, 1372, prohibited tithes on timber of twenty years growth, on the ground that such timber was a capital asset rather than an annual profit. Many trees, however, were not sylva caedua and were subject to tithes, either in general or by local custom.

Ash was usually tithe-free, but it was uncertain whether it was titheable when used for carts and ploughs or for building material in houses; elms, oaks and willows were tithe free, but alders, aspens, beeches, birches, broom, cherry trees, hazel, holly, maple and whitethorn were titheable; osiers were titheable, except when used for making hurdles for sheep.

In the Wealds of Kent and Sussex, it seems, all timber was tithe-free by custom. In Buckinghamshire, where other timber was scarce, beeches were tithe-free: indeed it is said that ‘bucks’ means beeches and that the county owed its name to the number of beech trees grown there. Aspens were also tithe-free in Buckinghamshire, since they were used for making arrows for the defence of the realm. I can find no reference in the literature to pine trees or any other conifer.

Timber trees retained their privilege even when they were decayed and became ‘dotards’, and the privilege applied, too, to the loppings; but any timber that was cut and corded for fuel became titheable. Acorns and beech masts were titheable, unless they were eaten by pigs belonging to the owners of the trees.

Apples, including windfalls, were titheable, but not if they were stolen (unless they were taken after they were ripe through the neglect of the farmer in allowing them to hang too long); where the apples were turned into cyder, it was the cyder which was tithed: a modus of 2d. per hogs-head was paid in Termoham and Cockington in Devonshire in 1763.

Pears, plums, cherries and other fruits were governed by similar rules. In a case in 1724, from Radnage, Buckinghamshire, it was argued that black cherries that grew wild in the hedges were tithe-free, but the argument was rejected.

Hops were subject to tithes like any other crop. A remarkable instance of the lengths to which the Church and the law were prepared to go in pursuit of tithes occurred in 1753, when the rector of Dorking, Surrey, claimed tithes on hops. The farmer had planted several acres of hops and offered £1 per acre which the parson rejected; thereupon the farmer gave notice of the date on which he proposed to start gathering the crop to enable the rector’s agent to attend, and he set out every tenth ‘hill’, severing the hop-binds from the soil and leaving them on the poles for the rector to collect; the rector demanded that the whole crop should be gathered and put in baskets and that every tenth basket should be reserved for him, but the farmer refused to do this and ultimately, after several months, the hops rotted on the poles.

The farmer claimed damages against the rector, alleging that he had suffered from being unable to cultivate his fields; the rector counter-claimed for tithes on the ground that setting out every tenth hill was not a proper method of tithing, and the court found in his favour.

The farmer appealed to the House of Lords, arguing that by putting the hops into baskets they would be damaged and he would be put to much additional expense; the rector argued that, by setting out every tenth hill, a farmer could neglect to manure and improve those reserved for tithes and would be able to defraud him. The House affirmed the decree of the court below. Hops, having been introduced in the time of Elizabeth I, could not be subject to tithes under a customary mode; and there was no tithe at all on hop poles. Grapes, although a ‘great’ tithe in France, were a ‘small’ tithe in England.

The advent of market gardens in the seventeenth century caused new problems. In 1664 it was held that young trees in a nursery were titheable, and it was laid down that if they were pulled up for sale by the nurseryman, he should be responsible for the tithes, but if they were sold in situ, to be removed by the purchaser, then the purchaser should be responsible.

About a century later, the vicar of Kensington successfully claimed tithes on hot-house plants, but a different decision was reached in 1801 in an action brought by Dr Waller, the rector of Clifton, Gloucestershire, against Messrs Miller & Sweet, two nurserymen, for tithes in kind on all nursery produce, young trees, fruits and garden stuffs, pineapples, grapes and other exotic plants grown in hot houses and greenhouses.

The nurserymen admitted that they did produce melons and cucumbers, but not other fruits, and that they sold young trees, and they said they had notified Dr Waller to have an agent in constant attendance to receive the tithe set out; but as the times and occasions of selling were uncertain, it might be necessary for him to be present from the rising to the setting sun; they added that when they produced early cucumbers they set out every tenth one they cut, covered and preserved for the rector who for a long time neglected to come and take them away, and when he did he complained that they were withered and spoiled; and likewise with melons.

They had also set out tithes of the young trees they had sold, but as the rector neglected to take them, several had perished for want of care and attention. The rector lost his case.

Animals and dairy produce were subject to similar rules. The usual practice was that every tenth calf, lamb, colt and pig was titheable immediately it was weaned and could live without its mother, and the value of one tenth of every such animal less than ten was payable in cash.

Some farmers moved their animals from one parish to another in order to reduce tithe liability, as was illustrated by a Yorkshire case in 1723: the farmer kept his ewes at Driffield until Christmas, and then moved them to Skerne, where a small modus only was payable on lambs; there he kept them until Lady Day, when he brought them back, after the weaning of the lambs, to Driffield: the vicar of Driffield alleged fraud against the farmer, but he was acquitted.

A further tithe was payable on agistment, that is the pasturing, either of one’s own or of other people’s beasts on one’s land. This could naturally never be paid in kind and was payable in cash, and gave rise to many complications: sometimes it was the owner of the land who had to pay, sometimes the owner of the beasts, but where sheep were fed on turnips it was the owner of the turnips who was liable: these were points of some importance when the owner of the animals lived in one parish and the land was situated in another.

Wool was titheable, including the wool of dead animals which had died of disease, and ‘neck-wool’ cut off to improve the quality of the fleece. It was at one time apportioned between the rectors of the various parishes in which the sheep has been pastured, but after 1732 the law was that the tithe was payable to the rector of the parish in which the sheep were shorn. In order to avoid fraud, the wool had to be set out in bales or heaps, in sight and within touch of the other nine parts, to enable the parson to judge the fairness of his share by weight, quality and measure.

The parson was entitled to every tenth ‘morning meal’ and every tenth ‘evening meal’ of milk. If it was the custom of the parish for the parishioner to carry the milk to the parsonage house, or some other particular place, he had to do so; otherwise it was sufficient if he milked his cows in the usual place and put the milk in his own pails, and if the parson failed to collect it before the next milking time he could throw it away. Cheeses were only titheable if there was no tithe on milk.

Poultry were governed by special rules. The usual custom seems to have been that tithe was paid on the eggs, but where there was no tithe on eggs it was paid on the young birds. This applied to hens, geese, ducks and also to turkeys which had, by the eighteenth century, come to be regarded as tame birds. Wild birds, on the other hand, were exempt, and partridges and pheasants seem always to have been tithe-free even if tamed and reared by hand.

By the Stuart period doves and pigeons were tithed by local custom, especially if kept in dove-cotes. Bees were titheable if hived, the tithe being paid on the honey and wax, not on the swarms.

Even rabbits were titheable by local custom: in 1751 the parson of Mickleham, Surrey, succeeded in claiming a tithe on rabbits from Ashhurst’s warren - rabbits were then commercially farmed - and the occupier was compelled to kill and take a tenth part of the rabbits whether he could get at them or not.

Fish caused problems of their own. The general rule was that fish in a pond were not titheable in the absence of a local custom to the contrary, and probably the same rule applied to fish caught at sea.

In a case in 1719 a Yorkshire parson claimed 1s. in the pound on all fish brought into Hartlepool and sold within the parish, and one-twentieth of all fish caught and sold elsewhere: the case was settled, but the court expressed an opinion that the custom was valid.

A few years later the court ordered all the parishioners of Paulin, Cornwall, who were proprietors or occupiers of any fishing boat or net, or any craft which was usually moored, when not at sea, within the parish, to pay the tenth part of all fish caught in the bay or adjoining seas to the rector.

In 1716 the vicar of Mevagissey, Cornwall, obtained an order for the payment of tithes on pilchards and other fish caught in the bay, and half a century later the rector of the neighbouring parish of St Ewe claimed a tenth part of the wages of those of his parishioners who worked with the master seynors (that is, seine-netters) of Mevagissey: fish caught in drift nets were exempt, and the use of drift nets was regarded as a fraud on the custom.

The substance of the earth itself was not in general subject to tithes: this applied to chalk, clay, coal, gravel, lead, lime, turf, salt and slate - unless there was some local custom to the contrary. Houses in the City of London were subject to a statutory tithe, similar to a modern rate, at 2/9 in the pound. Elsewhere, houses were frequently tithed by custom: thus in Gargrave (Yorkshire) in the mid sixteenth century some houses were rated at an annual hen, and in 1721 it was held that houses in Southwark should pay a rate of 12s. per annum. Mills paid a tithe of every tenth dish of corn or other material milled.

Everyone was tithed from cradle to grave: no one was exempt, whatever their religious beliefs, and special provisions were made for the enforcement of tithes owed by Quakers. Mothers gave an ‘offering’ to the Church after their babies were born, and after death a ‘mortuary’ was payable from the estate of the deceased in recompense for any tithe accidentally overlooked during his lifetime; originally, the mortuary took the form of some chattel such as a horse, but by a statute of 1530 this was converted into a form of death duty at a fixed rate according to the value of the estate.

Tithes were originally enforced in the ecclesiastical courts, by a lengthy and expensive process, but the courts of common law had certain supervisory functions and could intervene to prevent the ecclesiastical courts from exceeding their jurisdiction. In later times, especially in the eighteenth century, the clergy found it convenient to proceed in the courts of equity, especially the Court of Exchequer which had special facilities and experience in the assessment and enforcement of matters akin to taxes; and small tithes, by statute, could be enforced before the local justices.

The appeal procedure led ultimately to the House of Lords. The complexity of this branch of the law was such that it must have been a valuable source of income for the various legal professions - barristers and doctors, attorneys, solicitors and proctors. Merchants and craftsmen paid a tithe of their income by statute: but there is a strange dearth of information as to whether the lawyers were expected to pay a tithe on their fees.