CHAPTER VIII

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_TITHE LAWS MADE BY ANGLO-SAXON KINGS._

Prideaux says: “For King Alfred, the son of Ethelwulf, about thirty years afterwards (885), having published a body of laws for the well government of the realm, in one of them strictly enjoins the payment of these tithes to the Church.”[112] He quotes as his authority for this statement, Spelman’s “Concilia,” tome i. p. 360, No. 38: “Decimas, primigenia, et adulta tua Deo dato.” This is the Vulgate translation of the Saxon. Thorpe translates the Saxon thus: “Thy tithes and thy firstfruits of moving and growing things, render thou to God.”[113]

It is important to note that King Alfred placed a long Scriptural preface to his secular laws. He began with the ten commandments, translated and transposed them in a strange manner. It is all in Anglo-Saxon, which Alfred had translated from the Vulgate which they taught him at Rome when there in his younger days. The passage quoted from Spelman is taken from Exodus xxii. 29, and this is in Alfred’s Scriptural preface to his laws. The Vulgate translation is, “Decimas tuas et primitias tuas non tardabis reddere.” [“Thou shalt not delay to give thy tithes and firstfruits.”] The renderings of this passage in the Septuagint, Vulgate, and English Bible, are _paraphrases_ and _not translations_ of the Hebrew text. For example, “Thou shalt not delay to offer the first of thy ripe fruits and of thy liquors.”[114] Again, “Thou shalt not delay to offer from thy abundance and of thy liquors.”[115]

This passage in his preface was not one of his laws on tithes, as Prideaux states. “In King Alfred’s laws,” says Lord Selborne, “there is nothing about tithes. He made a treaty of peace with Guthrum; in that treaty there was nothing about tithes.”[116] I quote his lordship because recently the Rev. M. Fuller has dedicated “Our Title Deeds” to him. Should his lordship take the trouble to read through that book, he would be astonished at some of the statements made in it; _e.g._, Mr. Fuller says that King Ethelbert of Kent passed laws for the payment of tithes, and that King Alfred passed a law for their payment, quoting, of course, for the second case, Dean Prideaux, who has misled so many on the subject of tithes. “In a code of laws,” says Mr. Fuller, “published during Alfred’s reign, he in one of them strictly enjoins the payment of these tithes to the Church.”[117] And adds, “In this Digest of the laws of his predecessors, Alfred made not a _new_ law for tithes; he merely copied from them whose laws have long since been lost.”[118] Now, the only reference to tithes in Alfred’s laws is the above quotation, which he made in his preface from the Vulgate translation of Exodus xxii. 29.

“No legislative enactment,” says Mr. Kemble, “can be shown on the subject of tithes in the codes of Alfred, Ini, or the Kentish kings.”[119]

“It is not easy to say,” says Johnson, “with what view Alfred put this Scriptural preface to his laws, if it were not to show his great esteem for God’s word. There is no hint given that he expected his people should make the judicial precepts of Moses the rule of their action,”[120] etc.

Again, Mr. Fuller says, “Alfred, with the consent of his Witan, entered into a treaty with Guthrum, by which the former ceded to the latter the provinces of East Anglia and Northumberland upon six conditions, the sixth being, ‘If any man withhold tithes, let him pay lah-slit (a fine of twenty shillings) among the Danes, and wite (a fine of thirty shillings) among the English.’”[121] Those Danes were heathen, and it seems strange that they were compelled to pay tithes to the Christian Churches. But this treaty was not concluded between Alfred and Guthrum I., but between his son Edward and a Guthrum II. “Our Title Deeds” must have been very loosely prepared. The rubric to this law states, “This is the ordinance which King Alfred and King Guthrum, and afterwards King Edward and King Guthrum, chose and ordained.”[122] “The rubrics to these laws,” says Mr. Thorpe, “are very defective in the manuscripts.”[123] “The party,” adds Mr. Thorpe, “to this treaty with Edward was apparently a second Guthrum, who, according to Wallingford, was living in Edward’s time, and probably succeeded Eohric, the immediate successor of Guthrum I.”[124] Edward the Elder succeeded his father in 901, and died in 924. The treaty was made in 907. Guthrum I. received East Anglia and Northumberland in 880, and died in 891.

Selden says, “It may be seen by this that some other law preceded for the payment of tithes, or else that the right of them was otherwise supposed clear.”[125] There may have been some previous secular law which is now lost. As I have stated before, we have lost most valuable Anglo-Saxon charters and laws during the incursions of the Danes and the disturbed state of the whole country. There is a dead silence as regards tithes for 120 years between the Council of Chelsea, A.D. 787, and the treaty between Edward and Guthrum, A.D. 909. “What we now possess,” says Thorpe, “of Anglo-Saxon laws is but a portion of what once existed.”[126]

ATHELSTAN’S LAW ON TITHES.

Athelstan succeeded his father in A.D. 924, and in 927 published the following Ordinance:—

“I, Athelstan the king, with the counsel of Wulfhelm, archbishop, and of my other bishops, make known to the reeves at each burgh, and beseech you in God’s name, and by all His saints, and also by my friendship, that ye first of my own goods render the tithes both of live stock and of the year’s earthly fruits, so as they may most rightly be either meted or told or weighed out; and let the bishops then do the like from their own goods, and my ealdormen and my reeves the same. And I will that the bishops and the reeves command it to all those who ought to obey them, that it be done at the right term. Let us bear in mind how Jacob the patriarch spake, ‘Decimas et hostias pacificas offeram tibi’; and how Moses spake in God’s law, ‘Decimas et primitias non turdabis offerre Domino.’ It is for us to think how awfully it is declared in the books: if we will not render the tithes to God, that He will take from us the nine parts when we least expect; and moreover we have the sin in addition thereto.”[127]

This is unquestionably the first general law in England for the payment of predial and mixed tithes. I admit, and have stated, that tithes were paid by Edward’s treaty with Guthrum, and that clause in the treaty implied that they were paid previously, but there was no public law recorded like Athelstan’s, which set forth the payment of predial and mixed tithes.

Now, Lord Selborne states that Athelstan’s ordinance is not in form a public legislative Act, but merely a royal message addressed to his reeves, bishops, and ealdormen.[128] Against this opinion, I place the opinions of Selden, Kemble, Bishop Stubbs, and Dean Prideaux.

(1) Selden says: “King Athelstan, about the year 930, by the advice and consent of the bishops of the land made a general law for predial and mixed tithes.”[129]

(2) Kemble says: “It is well known that the earliest legislative enactment on the subject of tithes in the Anglo-Saxon laws is that of Athelstan, bearing date in the first quarter of the tenth century.”[130]

Kemble further adds: “The tithes mentioned by Athelstan is the predial tithe, or that of the increase of the fruits of the earth, and increase of the young of cattle. The nature of the sanction of tithes is obvious; it is the old, unjustifiable application of the Jewish practice, which fraud or ignorance had made general current in Europe.”[131]

(3) Bishop Stubbs says: “The formula by which the co-operation of the Witenagemót was expressed is definite and distinct. Alfred issues his code with the counsel and consent of his Witan; Athelstan writes to the reeves with the counsel of the bishops.”[132]

Here Bishop Stubbs _includes_ Athelstan’s law among the examples he gives as regards the definite and distinct formula used to indicate the co-operation of the Witenagemót. And the Bishop’s opinion is the most important because Lord Selborne’s objection is founded on a technical point, viz., the _formula_ used. But the Bishop admits that the formula used in this case was an indication of the co-operation of the Witenagemót.

(4) Dean Prideaux says, “This law was passed in a Parliament of all England, assembled at Grately, about the year 928, etc.”[133]

Dr. Lingard calls the law a “Circular letter which the king sent to his officers. From the tenour of this circular it seems probable that numerous pleas of exemption had been set up in favour of the lands belonging to the Crown, the bishops and the ealdormen, and also of lands held under them by others.”[134]

Lord Selborne then agrees with Dr. Lingard; the former calls it “a royal message to his reeves,” the latter, “a circular letter from the king to his officers.” If so, why should the Parliamentary _formula_ have been used?

(5) Mr. Thorpe may also be added to the four. He clearly lays down the rule by which he was guided in classifying and separating the Laws from the _Monumenta Ecclesiastica_. “All ordinances,” he says, “proceeding from the king and Witenagemót, whether of a secular or ecclesiastical character, _are considered as Laws_. Those without such sanction, and of a nature strictly ecclesiastical, are placed among the _Monumenta Ecclesiastica_.”[135] He placed it among the Laws.

The question here is, What constitutes a Witenagemót? The word means a meeting of the Witan or wise men. It was a counsel of wise men. Our information is indeed very vague as to its constitution. There is no law extant prescribing or defining the constitution of the Witenagemót. A synod with the king present would constitute a Witenagemót. There is no trace whatever that it was representative or elective, or that there was a property qualification. It is on record that the king named the members who were to attend.[136] But the members were the leading men of the country, viz., the archbishops, bishops, abbots, presbyters and even deacons (the priests and deacons doubtless attended on the bishops), princes, ealdormen and thanes.

The formula used in this law is, “The king, with the council of his archbishops and other bishops.” This was a council of wise men presided over by the king. And whether it was called a synod or a council, the laws passed by such a meeting formed the general laws of the kingdom. The objections raised by some writers to the formula used in making Anglo-Saxon laws, and to the words Ordinance, Council and Synod, are groundless and have no force. Mr. Fuller in “Our Title-Deeds” is conspicuous for this sort of objections. He says, “It was _not_ an act of the Witan, but was an Ordinance made at a council or synod only, at the council of Greatanlea,” etc.[137]

Let us examine the formula used in other laws generally admitted to be laws.

(1) “The Laws of King Edward.” “Edward’s Ordinances,” “King Edward commands all his reeves,” etc.[138] There is not a word here about the Witan, archbishop, bishop, etc., yet they are admitted as laws.

Athelstan’s secular ordinances passed at the council of Greatanlea,[139] had been enacted by the same Witan which enacted the King’s Ordinance to his reeves as regards tithes. If one is a “Royal message” or “Circular letter,” so are the secular Ordinances. But the latter are admitted to be laws, so therefore are the former.

To carp about the words “council” and “synod,” shows ignorance of the Latin translation of Witenagemót, viz., _concilium_, _conventus_, _synodus_, etc.

“Although synods,” says Kemble, “might more properly be confined to ecclesiastical conventions, _the Saxons do not appear to have made any distinction_, probably because ecclesiastical and secular regulations were made by the same body, and at the same time.

“But it is very probable that the Frankish system of separate houses for the clergy and laity prevailed here also, and that merely ecclesiastical affairs were decided by the king and clergy alone. There are some Acts in which the signatures are those of clergymen only; others in which the clerical signatures are followed by those of the laity; and in one remarkable case of this kind, the king signs at the head of each list, as if he had in fact affixed his mark successively in the two houses as president of each. This is in Codex Diplomaticus, No. 116.”[140]

THE LETTER OF THE KENTISH MEN TO KING ATHELSTAN.

Dr. Lingard makes the following remark on the thankful acknowledgment which the Kentish men sent the King on the promulgation of his Ordinance dated A.D. 627.

“The meaning is evident; in consequence of the King’s admonition, they promised to pay tithes.”[141]

Mr. Freeman makes some very important observations on the above letter.

“As the other kingdoms merged in Wessex, the Witan of the other kingdoms became entitled to seats in the Gemót of Wessex, now become the common Gemót of the Empire. But Gemót of the other kingdoms seem to have gone on as local bodies, dealing with local affairs, and perhaps giving a formal assent to the resolutions of the central body. The letter of the Kentish men to Athelstan reads like an act of acceptance on the part of a local Gemót, of resolutions passed by the general body.”[142]

Mr. Freeman then opposes Dr. Lingard’s theory and also Lord Selborne’s, “for the resolutions of the general body” were those of “the common Gemót of the Empire.” He therefore sides with Selden, Kemble, Stubbs, etc., that the Ordinance passed at Greatanlea was a general law.

But I shall quote the most conclusive evidence to show that the Ordinances passed at Greatanlea were legal enactments, viz., “That they would all hold the frith (peace) as King Athelstan and his Witan had counselled at Greatanlea.”[143]

DEFINITION OF TITHE.

Tithe was the tenth part of the increase yearly arising and renewing from the profits of lands, the stock upon lands and the personal industry of the inhabitants.[144]

Tithes were (1) Predial, (2) Mixed, and (3) Personal.

(1) Predial tithes were the crops and wood which grew and issued from the ground. (2) Mixed tithes were wool, sheep, cattle, pigs and milk. They were called _mixed_ because they were predial in respect of the ground on which the animals were fed, and personal from the care they required. (3) Personal tithes were the tenth part of the clear gain after charges were deducted; in other words, on net profits of artificers, merchants, carpenters, smiths, masons, and all other workmen. Even the servant-girls paid a tenth of their wages. The Scriptural passage quoted in support of personal tithes is Deuteronomy xii. 6. “And thither ye shall bring your tithes and heave offerings of your hand.”

By 2nd and 3rd Edward VI., c. xiii. s. 7, “Every person exercising merchandizes, bargaining and selling clothing, handicraft, or other art or faculty, by such kind of persons and in such places as heretofore within these forty years have accustomably used to pay such personal tithes, or of right ought to pay, other than such as be common day labourers, shall yearly, before the feast of Easter, pay for his personal tithe the tenth part of his clear gains, his charges and his expenses, according to his estate, condition or degree, to be therein abated, allowed and deducted.” Sec. 9. “And if any person refuse to pay his personal tithes in form aforesaid, that then it shall be lawful to the ordinary of the diocese, where the party that ought to pay the said tithes is dwelling, to call the same party before him, and by his discretion to examine him by all lawful and reasonable means otherwise than by the party’s own corporal oath, concerning the true payment of the said personal tithes.” Sec. 12. “Except the inhabitants of the city of London, Canterbury, and the suburbs of the same, and also those of any other town or place that used to pay their tithes by their houses, otherwise than they ought or should have done before the making of this Act.”

THE LAWS OF KING EDMUND.

He succeeded his brother Athelstan A.D. 940.

The Laws Ecclesiastical. “King Edmund assembled a great synod at London, during the Holy Easter-tide (about A.D. 994), as well of ecclesiastical as of secular degree,” etc.

“Of Tithes and Church-Scots.”

## Act 2. “A tithe we enjoin to every Christian man by his Christendom, and

Church-scot and Rome-feoh, and plough-alms. And if any one will not so do, let him be excommunicated.”

## Act 5. “We have also ordained that every bishop repair the houses of God

in his own [district], and also remind the king that all God’s churches be well conditioned as is very needful for us.”[145]

Church-Scot = _Cyriesceat_ = Firstfruits, _primitiæ seminum_. The Jews had been commanded to give firstfruits[146] as well as tithes. Here again the Levitical legislation was taken to be applicable to the Christian ministry, and hence we find firstfruits as well as tithes given to them.

This impost remained a fixed charge upon the land till the time of the Conquest, when it ceased to be generally paid.[147] The first instance of this payment in Anglo-Saxon law is found in the laws of King Ina [A.D. 690]: “Let church-scots be rendered at Martinmas. If any one do not perform that, let him forfeit 60 shillings and render the Church-scot twelve-fold.”[148] This Act was passed more than 200 years before the legal enactment of tithes. It is strange that we should find firstfruits but not tithes enacted by King Ina. The omission proves that tithes were not then paid in Wessex. In Athelstan’s law passed at Greatanlea, it is stated, “I will also that my reeves so do that there be given the church-scots.”[149] Between the laws of Ina and that of Athelstan, there is no mention of church-scots in Anglo-Saxon laws.

There must have been a large number of landowners’ churches erected in the country at the time the above law was passed, for the priests received only one-third of the tithes, the remaining two-thirds was paid to the baptismal churches of the diocese and placed at the bishop’s disposal; one-third of the two-thirds was for the repairs of churches. The bishop who had the control of these funds must have neglected their repairs, and this law commanded the bishops not only to repair the churches but also “to remind the king that all God’s churches be well conditioned.”

If there had been no customary appropriation of tithes, as some assert, why should this law place the expenses of repairing the churches upon the bishops?

We are gravely told by Mr. Fuller that this law passed in A.D. 940 is no law, although presided over by the king, because the meeting was called a “_Synod_” and not a “_Witan_”![150]

Prideaux calls it a law.[151] Selden says: “About 940, Edmund, king of England, in a great synod or council, a kind of Parliament both of lay and spiritual men held in London, made this Act.”[152] Kemble, Freeman, Bishop Stubbs, and every writer of distinction admit this to be a proper legislative enactment.

KING EDGAR’S LAWS.

Edgar succeeded his brother Edwig, or Edwy, in 959; died 975.

In the following law, Mr. Thorpe takes his text from a collection of two important manuscripts; (1) Corpus Christi MS. 265 (K. 2); (2) Cott. Nero, A. 1, both apparently written in the middle of the 11th century.

“This is the Ordinance[153] that King Edgar, with the counsel of his Witan, ordained, in praise of God and in honour to himself and for the behoof of all his people.”

## Act 1. “These then are first, that God’s churches be entitled to every

right; and that every tithe be rendered to the old minster to which the district belongs, and that be then so paid, both from a thane’s inland[154] and from geneat-land[155] so as the plough traverses it.”

## Act 2. “But if there be any thane who on his bocland has a church at

which there is a burial place, let him give the third part of his own tithe to his church. If any one have a church at which there is not a burial-place, then of the nine parts, let him give to his priest what he will; and let every church-scot go to the old minster according to every free hearth; and let plough-alms be paid when it shall be fifteen days over Easter.”

## Act 3. “And let a tithe of every young be paid by Pentecost; and of the

fruits of the earth by the equinox; and every church-scot by Martinmas on peril of the full wite which the doom-book specifies; and if any one will not then pay the tithe, as we have ordained, let the King’s reeve go thereto, and the bishop’s, and the mass-priest of the minster, and take by force a tenth part for the minster to which it is due; and assign to him the ninth part; and let the eight parts be divided into two; and let the landlord take possession of half, half the bishop; be it a king’s man, be it a thane’s.”[156]

In these laws there is a threefold division of churches. (1) The “old minster,” that is the senior church, which name was anciently given to the monastic or cathedral church. (2) A church with a burial place. (3) A church without a burial place. “The old minster,” says Selden, “was the ancientest church or monastery where he hears God’s service, which I understand not otherwise than of any church or monastery, that is his parish church or monastery. They were in many places the only oratories and auditories that the near inhabitants did their devotions in.”[157]

This is the first English law which expressly appropriates tithes. They were previously appropriated according to custom. In the first mention of tithes which is found in Theodore’s “Penitential,” it is a customary and not a legal appropriation.

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