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period in which this custom was first established, did, no doubt, find his property diminished in value by its operation—by the pressure of such a charge upon his land; but those who succeeded him in his possessions, either by inheritance or by purchase, cannot be said to have borne any part of this burden. The onus of tithes having been once permanently fixed, all the landed property of the country has descended to, or been purchased by its present owners, subject to this charge; and the capital advanced in effecting the purchase of this species of property was reduced in proportion to the permanent charges to which it is subject.
In most of the discussions which have fallen in our way, with respect to the origin, the pressure, and the policy of the maintenance, secured by law for the English hierarchy, this is a view of the subject which is either ignorantly overlooked, or designedly kept out of sight. Tithes are generally represented as a charge, similar to a tax imposed by the legislature upon the produce of land; and it is assumed, that, as parliament can either remit or modify a tax imposed upon articles of consumption, it may exercise a similar power in abolishing tithes, or in modifying the manner in which they shall be levied. It must, however, be seen in an instant that no analogy whatever exists between the authority of parliament over the continuance of a tax, and its power over that portion of the produce of land reserved for the support of an ecclesiastical establishment. Between tithes and taxes, there are various and essential distinctions which leave to parliament that authority over one which it cannot legally exercise over the other. A tax is imposed by the legislature; what parliament, therefore, has the power to impose upon the nation, it has also the power to remove or modify. When a tax is imposed by the legislature, this body, as guardian of the public purse, is, in effect, the party which receives the impost; what it therefore has a claim to receive, it must necessarily possess the power to remit, at its pleasure. But it is not so with tithes; to these the government of the country has not, nor ever had, the least claim. They ever were, and still are, the inalienable right and property of a third party: no power, therefore, without an absolute subversion of the most sacred principle of equity", as well as of the British constitution—an uniform and inflexible maintenance of the private rights of individuals—can surrender the minutest portion of that property which is not its own.
It may, perhaps, be urged, that to represent tithes in England as flowing, in all cases, from a voluntary grant made by some former proprietor of the land on which they are now levied, is to assume a fact which cannot be proved. It must, no doubt, be
conceded, conceded, that it is impossible to prove, by existing documents, that in all the instances where they are now exacted, tithes were conferred upon the church by an express grant: but the absence of direct proofs, rendered unavoidable by the lapse of time, will by no means invalidate the supposition, that the right to exact them was, in most parishes, originally acquired in this manner. It is a well known maxim of English law, suggested by common sense, and recognized by every principle of justice, to infer, that the long and uninterrupted enjoyment of a civil right must have originated in a regular grant from the original owner, although no express evidence can be produced of the existence of such a conveyance. If the present owner of an estate and his predecessors have enjoyed any beneficiary interest for a term which goes beyond the memory of man, the law will not permit him to be dispossessed, although he can produce no document to establish his title: the law will ascribe to him a prescriptive right, and infer that a regular and valid conveyance of such an interest from a previous owner once existed, but that it has disappeared in some manner, of which no account can now be given.
Every candid individual must acknowledge, that the same reasoning will establish, on the firmest grounds, the right of ecclesiastics to the enjoyment of that provision which is secured to them by the laws of the land. It is, beyond all comparison, the most ancient claim to property which now exists: it can be traced back to the earliest records of the disposal of property in this country; and when we have traced it back to a period of antiquity so remote, as to render it doubtful in what manner it was, in the first instance, introduced, we are entitled to refer to the legal and equitable principle just alluded to, and assume that it was originally conferred upon the church by a voluntary grant from the owners and possessors of the lands from which it accrues. If we should even concede that • this claim was originally introduced by the gradual influence of custom, acquiesced in by the piety, or, as the adversaries of this claim would perhaps say, by the superstition of our ancestors, still the right of the English hierarchy to tithes will stand upon grounds equally firm in the eye of reason and law, as if it were derived from an express and formal grant. For the exercise of such a right acquiesced in for a number of centuries, assuming even that it was originally an usurpation, commits no wrong whatever on the individual now seised of property, subject to this claim, but who has acquired it subsequently to the date of this encroachment.
It has, indeed, been frequently maintained, that tithes were, in the first instance, conferred upon the church by one of the early Vol. xxix. No. lvin. N N Saxon Saxon monarchs. But we do not conceive that a grant from the sovereign ot" a district will account for the introduction of the claim for tithes over the whole kingdom: and we should also apprehend, that the force of a grant made by one of the monarchs of the Heptarchy could not have extended beyond the limits of his own private estates, without the consent or acquiescence of the other lords and proprietors of the soil. And such a grant from the monarch, sanctioned by the consent of his nobles and the owners of estates within the limits' of his kingdom, coincides perfectly with the theory which we have advanced with respect to the real origin of tithes.
In addition to these two modes—-grant and prescription—by which the right of ecclesiastics to levy tithes might have been introduced into this kingdom, we shall briefly notice another source from which the claim might have originated. We are not ignorant that the introduction of tithes has been ascribed to the authority of parliament by many, who, in consequence, represent the revenues of the church as a species of public property, which the representatives of the nation may remodel, or dispose of at their pleasure. But, whatever historical obscurity may hang over the early introduction of tithes into this realm; whether we suppose this claim to have originated in a voluntary grant from the owners of the soil; or in the gradual influence of custom, acquiesced in by the proprietors of land—still there can be no difficulty, in convmcing the most obstinate opponent of this claim, that its introduction cannot be ascribed to the authority of the public councils of the nation. For this purpose, it is not necessary to put forward the form and parade of argument; it is, we are sure, quite sufficient to remind our readers of a fact, which cannot be contested, and state, that the earliest parliamentary records now in existence, sanction and confirm the right of ecclesiastics to exact tithes, not as a novel demand, but as an old and established claim, already recognized by custom. When we find parliament, therefore, merely confirming a right, which had previously existed at common law, it is needless to observe, that this proves, in the most unequivocal manner, that it was not originally introduced by the authority of this assembly.
But let it be conceded, that the claim of the church to its revenues actually owes its introduction to the authority of parliament: assuming then, that, in the ninth century, the representative assembly of the nation did, by a solemn act, confer upon the church, a right to exact, from the occupiers of land, the tenth part of its produce, does the same public body, in the nineteenth century, possess, therefore, the power to resume the whole or any part of it i We confess ourselves utterly ignorant
of of any arguments or reasons by which the legislature can establish a claim to the exercise of such a power. In the reign of Queen Anne, parliament granted an estate, and built a palace for the Duke of Marlborough: will it be contended that, in the reign of George the Fourth, the same assembly has a right to resume this recent grant, and strip the present owner of Blenheim of his patrimony? Even if this were affirmed, we must enter our solemn protest against the revolutionary opinion, that parliament, in the nineteenth century, has a right to strip ecclesiastics of any particle of those proprietary claims to which a similar assembly had, many centuries ago, given them a title.
But we have no space, nor do we conceive it necessary, to proceed further in speculating on the manner in which tithes were originally introduced into England. Whether they were, in the first instance, acquired by a grant from the sovereign, as general and supreme lord of the soil; from individual owners, who built churches on their estates, and endowed them with a tenth part of the produce of their land; or by solemn and reiterated acts of those assemblies, in which was vested the power of legislating for the nation: these are points which do not appear to us of vital importance to ascertain. We are satisfied to rest our argument on one broad fact, which cannot be contested: no man will dispute that, for five centuries, at the least, the right of the ecclesiastical establishment to exact tithes from the produce of land, has been invariably and uninterruptedly recognized by the customs and laws of this country. It is not a dormant right, to be found only in books and records; but a right which, for ages, has been exerted and acted upon in practice. Whatever theory, therefore^ we may adopt with respect to the introduction of this charge upon the produce of land, it is indisputable, that it had been fully established by law, and universally recognized by practice, long anterior to the oldest titles, which the lay owners of any estates can produce. It may, therefore, be assumed as a fact, which no reasoning or historical inquiry can shake, that for five centuries, at the least, every acre of land, which is now titheable in this kingdom, has been inherited, or purchased, subject to this charge.
It may possibly be contended that, although the representation which has been here given of the nature and origin of ecclesiastical benefices, might establish the claims of the ecclesiastics to whom tithes were originally granted, it cannot be deemed a valid foundation for a claim to these revenues advanced by a Protestant incumbent. This is an objection which does not appear to us to possess much weight. In looking at these grants, we are rather called upon to consider the purposes for which, than the
N N 1 persons persons to whom they were made—we are to collect, as far as we can judge from analogy, in what manner the founders of benefices, if they were at this moment alive, and in the actual enjoyment of their original estates, would dispose of that portion of their property which they conferred upon the church by endowment.
Let it be assumed that, in the infancy of science, the proprietor of an estate had founded an astronomical lecture, and endowed it with a tenth part of the produce of his land, expressly ordaining that the individual enjoying this income should, once in each week, demonstrate the phenomena of the sun's revolution round the earth. When subsequent discoveries pointed out the incorrectness of this theory, it is evident that the nation, acting as trustees for the proper application of this endowment, acquired a right to dispense with the literal injunctions of the founder, and to order the individual holding this appointment, to lecture for the future on the more correct principles which later science had brought to light; but it cannot surely be contended, that because the founder had endowed a lecture to demonstrate a theory, which time had discovered to be false, the nation acquired the right of applying the funds of this endowment—not-to secure the continuance of the lectureship on correct astronomical principles—an object perfectly consonant to the founder's views—but to build a bridge over the Thames, or barracks on Warley Common, or to any other purpose foreign to the intention of the founder—which was the promotion of the science of astronomy.
In like manner, the founders of parishes appropriated a tenth portion of the produce of their estates to secure the instruction of their tenants and domestics, in doctrines and tenets consonant to the opinions of their own age. The voice of the public has pronounced some of these tenets superstitious in their nature, and injurious in their effects; but it does not hence follow, that the public has acquired a right to apply this property to purposes entirely foreign to the views of the original grantors. The power of the public over this property cannot, under these circumstances, extend farther than to regulate the instruction, which the present holders of these endowments should be required to minister. To those, who are in the actual enjoyment of ecclesiastical property, the public, acting as trustees for the original grantors, has a right to say, ' You shall not pray for the souls of the dead'—' You shall not teach that wine may be converted into blood; but you shall comprize, in your public instructions, those doctrines alone, which, on a mature consideration of the scriptures, the majority of the nation