duce of them, as the tenth fheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments for they, being merely a contingent springing right, collateral to or iffuing out of lands, can never be the object of fenfe: that cafual share of the annual increase is not, till fevered, capable of being fhewn to the eye, nor of being delivered into bodily poffeffion. INCORPOREAL hereditaments are principally of ten forts; advowfons, tithes, commons, ways, offices, dignities, franchifes, corodies or penfions, annuities, and rents. I. ADVOWSON is the right of presentation to a church, or ecclefiaftical benefice. Advowfon, advocatio, fignifies in cli entelam recipere, the taking into protection; and therefore is fynonymous with patronage, patronatus: and he who has the right of advowfon is called the patron of the church. For, when lords of manors first built churches on their own demefnes, and appointed the tithes of those manors to be paid to the officiating minifters, which before were given to the clergy in common, (from whence, as was formerly mentioned, arose the divifion of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleafed (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron". THIS inftance of an advowfon will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily poffeffion of the church and it's appendages; but it is a right to give fome other man a title to fuch bodily poffeffion. The advowson is the object of neither the fight, nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal poffeffion be b Vol. I. pag. 112. This original of the jus patronatus, by building and endowing the church, B 3 appears alfo to have been allowed in the Roman empire. Nov. 26. t. 12. c. 2. Nov. 118. c. 23. had had of it. If the patron takes corporal poffeffion of the church, the church-yard, the glebe or the like, he intrudes on another man's property; for to these the parfon has an exclufive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invifible mental transfer and being fo vested, it lies dormant and unnoticed, till occafion calls it forth when it produces a vifible, corporeal fruit, by entitling fome clerk, whom the patron fhall please to nominate, to enter and receive bodily poffeffion of the lands and tenements of the church. : ADVOWSONS are either advowfons appendant, or advowfons in grofs. Lords of manors being originally the only founders, and of course the only patrons, of churches, the right of patronage or prefentation, fo long as it continues annexed to the poffeffion of the manor, as fome have done from the foundation of the church to this day, is called an advowfon appendant and it will pafs, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words f. But where the property of the advowfon has been once separated from the property of the manor by legal conveyance, it is called an advowson in grofs, or at large, and never can be appendant any more; but is for the future annexed to the perfon of it's owner, and not to his manor or lands. ADVOWSONS are alfo either prefentative, collative, or donative. An advowfon prefentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to inftitute his clerk, if he finds him canonically qualified: and this is the most usual advowfon. An advowfon collative is where the bishop and patron are one and the fame perfon: in which cafe the bishop cannot prefent to himself; but he does, by the one act of collation, or con d Co. Litt. 119. lbid. 121. $ Ibid. 307. g Ibid. 120. h Ibid. ferring ferring the benefice, the whole that is done in common cafes, by both presentation and inftitution. An advowfon.donative is when the king, or any fubject by his licence, doth found a church or chapel, and ordains that it fhall be merely in the gift or difpofal of the patron; fubject to his vifitation only, and not to that of the ordinary; and vefted abfolutely in the clerk by the patron's deed of donation, without prefentation, inftitution, or induction i This is faid to have been antiently the only way of conferring ecclefiaftical benefices in England; the method of inftitution by the bishop not being established more early than the time of arch-bishop Becket in the reign of Henry II *. And therefore though pope Alexander III', in a letter to Becket, feverely inveighs against the prava confuetudo, as he calls it, of investiture conferred by the patron only, this however fhews what was then the common ufage. Others contend, that the claim of the bishops to inftitution is as old as the first planting of christianity in this ifland; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the third, recorded by Matthew Paris ", which speaks of presentation to the bishop as a thing immemorial. The truth feems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refufe him: but where the clerk was already in orders, the living was usually vefted in him by the fole donation of the patron; till about the middle of the twelfth century, when the pope and his bifhops endeavoured to introduce a kind of feodal dominion over ecclefiaftical benefices, and, in confequence of that, began to claim and exercise the right of inftitution univerfally, as a fpecies of fpiritual inveftiture. HOWEVER this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the ad i Co. Litt. 344. k Seld. tith. c. 12. §. 2. B 4 1 Decretal. 1. 3. t. 7. c. 3a m A. D. 1239. vowfon Book II. vowson is now become for ever presentative, and shall never be donative any more ". For thefe exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and conftrued as strictly as poffible. If therefore the patron, in whom fuch peculiar right refides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the ftandard of other ecclefiaftical livings. II. A SECOND fpecies of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increase, yearly arifing and renewing from the profits of lands, the stock upon lands, and the perfonal industry of the inhabitants: the firft fpecies being usually called predial, as of corn, grafs, hops, and wood; the fecond mixed, as of wool, milk, pigs, &c. P, confisting of natural products, but nurtured and preferved in part by the care of man; and of these the tenth must be paid in grofs; the third perfonal, as of manual occupations, trades, fifheries, and the like; and of these only the tenth part of the clear gains and profits is due 2. It is not to be expected from the nature of these general commentaries, that I should particularly specify, what things are titheable, and what not, the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to fuch authors as have treated the matter in detail and fhall only obferve, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual increafe, as ftone, lime, chalk, and the like; nor for creatures that are of a wild nature, or ferae naturae, as deer, hawks, &c. whofe increafe, fo as to profit the owner, is not annual, but cafual'. It will rather be our business to confider, 1. The original of the right of tithes. 2. In whom n Co. Litt. 344. Cro. Jac. 63. 91 Roll. Abr. 656. that that right at prefent fubfifts. 3. Who may be discharged, either totally or in part, from paying them. 1. As to their original, I will not put the title of the clergy to tithes upon any divine right; though such a right certainly commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the minifters of the gofpel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, befides the pofitive precepts of the new testament, natural reafon will tell us, that an order of men, who are feparated from the world, and excluded from other lucrative profeffions, for the fake of the rest of mankind, have a right to be furnished with the neceffaries, conveniencies, and moderate enjoyments of life, at their expence, for whose benefit they forego the ufual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priefts or clergy: ours in particular have established this of tithes, probably in imitation of the Jewish law: and perhaps, confidering the dege nerate state of the world in general, it may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine right whatsoever, unacknowleged and unfupported by temporal fanctions. WE cannot precisely ascertain the time when tithes were first introduced into this country. Poffibly they were contemporary with the planting of christianity among the Saxons, by Auguftin the monk, about the end of the fixth century. But the first mention of them, which I have met with in any written English law, is in a conftitutional decree, made in a fynod held A. D. 786, wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of eftates, respectively consisting of the kings of Mercia • Selden, c. 8. §. 2. and |