Decima

DECIMA. - I. IN THE BIBLE. - The part (originally, the 10th part) of the produce that the Israelites had to pay over to the Temple and its ministers (priests, Levites) for the maintenance of worship and of the persons attached to it. The cultic tithe, alongside which there also existed a royal tithe (I Sam. 8, 15.17), represents an ancient institution (Gen. 14, 20; 28, 22) and is based on the concept of an offering directed to the deity as owner of the land (Lev. 25, 23; Deut. 26, 1 ff.).

The amount and the manner of collecting this tribute were not always the same (Lev. 27, 30-33; Num. 18, 20-32; Deut. 12, 6, 11; 14, 22-29; 17-19; 26, 12-15; cf. Am. 4, 4). Numbers and Deuteronomy consider grain, new wine and oil subject to the tithe. Pharisaic teaching extends the obligation of the tithe even to plants of minimal importance (Mt. 23, 23; cf. Lk. 11, 42; 18, 12). The Mishnah (Ma'aser, I, 1) extends the obligation to everything that serves as food, is stored up and grows from the earth. Lev. 27, 30-33 concerns the tithe taken from domestic animals; where the tribute was not given in kind, a sum increased by a fifth of the value had to be delivered (Lev. 27, 31). According to Num. 18, 20-32 every tithe of the threshing floor and of the winepress belongs to the Levites, who may dispose of it freely, but they set aside one for the priests. According to Deut. 12, 6 f. 17-19 the tithe is to be consumed, like the sacrifices, in the central sanctuary. In cases of considerable distance, the tithes could be sold and with the proceeds one could procure everything needed for the agape near the sanctuary (Deut. 14, 22-27). In the course of time the tithe could be assigned to the Levites, strangers, widows and orphans in the place of the taxpayer's domicile (Deut. 14, 28 f.; 26, 12 f.). With the fall of the Temple the institution of the tithes fell as well.

Eugenio Zolli

II. HISTORY

The principles that had governed the payment of the tithe in the Old Testament were revived in the New, but the tithe did not arise at once as an institution of its own. Although from the very beginning St. Paul had applied the Gospel maxim "dignus est operarius cibo suo" (Mt. 19, 10; Lk. 10, 7) to the ministers of the altar "qui altari deserviunt cum altari participant..." (I Cor. 9, 13), nevertheless the spontaneous flow of offerings and the spontaneous exercise of certain professions by the clergy made an explicit precept of the Church on the matter superfluous. As spontaneous offerings grew scarce, in order to provide for its own needs and those of its clergy, the Church had recourse to exhortations, and then to precepts and laws, from which the institution of the tithe arose.

The first trace of legislation is found in the Councils of Tours of 567 and of Mâcon of 583 (Mansi, IX, 804-805, 932). The system of tithe taxation soon became established in Gaul, England and Ireland, as may also be inferred from the penitential books of those countries. Attempts to adopt the tithe in Italy occurred from the 7th century onward (cf. Mansi, XII, 226, 298; XIII, 852-53).

The councils of the Middle Ages frequently repeat the precept of the payment of the tithe, an evident sign that it encountered many difficulties of application. In this respect the work of Charlemagne is meritorious: besides repeating this obligation in many of his capitularies and subjecting even the sovereign's own goods to it, he brought the civil authority to bear against the recalcitrant with fines, seizure of goods, prison, exile and confiscation (E. Amann, L'epoca carolingia, 757-888, in Fliche-Martin-Frutaz, VI, pp. 92-93) and made the legal obligation to pay the tithe practically universal.

But soon the usurpations begin. In the struggle of the Gregorian reformers one of the abuses lamented is the cession of ecclesiastical tithes to laymen. The Roman Council of 1059, ch. 9, also deals with the subject (Mansi, XIX, 907). But in the following century the Third Lateran Council (1179) must return to the subject as well, and in order to put an end to the abuse it sanctions the non-transmissibility of the privilege, however obtained by laymen (Mansi, XXII, 250, 281-82).

At the same time exemptions from the payment of tithes begin, exemptions granted first to the monks who broke up uncultivated lands and then extended to the Cistercians, Templars and Hospitallers (Mansi, XXII, 256, 326-32).

New norms on the matter come from the work of Innocent III and some of his predecessors: a distinction is made between the personal tithe (de artificio, vel negotiatione et agricultura), which is paid to the parish proper to the person, and the predial tithe (mestium seu fructuum arborum), which is paid to the parish where the land is located. A sovereign concession cannot exempt from the payment of the tithe, nor, even if acted upon for thirty years, produce the extinction of the right of the ecclesiastical body that is the creditor.

On the basis of these legal provisions, a whole doctrinal elaboration of the institution unfolds: on the source of the obligation (tithes are due materialiter by natural law; formaliter by positive ecclesiastical law) and on the classification of tithes by right of origin (dominical, sacramental, noval, sanguinal, etc.).

Alongside the tithe properly so called, others exist: the papal tithe, for example, which weighs on ecclesiastical goods, imposed occasionally by the pope and transferable to sovereigns. Others are proper to certain places (in Italy the tithes mortuorum are found).

From the 13th century onward the lay power had begun a struggle against the tithe, but it was the reformers who took a clearly opposed position. Hence the Council of Trent (Sess. XXV, de ref., c. 12) inflicted excommunication on those who did not pay tithes.

The exemption of the regular clergy from the payment of the tithe, by then made universal, is contained by the jurisprudence of the Congregation of the Council in the sense that it is not extendable to new acquisitions or to goods acquired from laymen and subject to tithe.

The period of the Enlightenment begins the abolition of tithes by the civil authority. Attempts were made in the Kingdom of Naples (1759, 1772), but the one that gave the general impulse to the abolitions was the decree of the French National Assembly (4 Aug. 1789).

In Italy, at the unification of the Kingdom, legislation was fragmentary. Then the law of 14 July 1887, no. 4728, abolishes "the tithes and other dues established under any denomination and paid in any manner..." and allows only the dominical ones to survive, that is, those paid for a non-ecclesiastical title, but rather as an acknowledgment of eminent domain over the land.

Pietro Palazzini

III. CANON LAW

The word d. designates a payment owed to specific persons, consisting of a share of the products either of lands, or of animals, or of human activity. Thus, the term d. must not be given an arithmetical meaning, inasmuch as it denotes not, as originally, a tenth part of the fruits, but any share whatsoever of them.

Tithes are distinguished: a) into dominical and sacramental (or ecclesiastical or spiritual), according as they are payments owed, on the basis of ancient concessions, by the possessors of a piece of land, as a reservation of the ancient domain of the grantor, or payments owed by the faithful to ecclesiastical bodies, as compensation for the functions of worship; b) into predial, personal and blood tithes or mixed, according as they weigh upon the products of lands, upon the products of human activity or upon the products of animals.

Those tithes which were owed on the products of lands put under cultivation for the first time were called novales, as opposed to antiquae; those owed on the first products of a piece of land were called primitiae (v. PRIMIZIE).

Not only Catholics are bound to the payment of sacramental tithes, but also heretics and, exceptionally, even pagans and Jews: the former without any limitation, since they are considered subject to the laws of the Church, although they are outside it; the latter, who indeed do not benefit from the functions of worship, are bound only as regards predial tithes, to prevent the right of tithe from being extinguished through the alienation of lands by Christians to pagans and Jews.

Once the principle is laid down that the payment of sacramental tithes can have as its object only fruits legitimately acquired, one arrived at the Thomistic distinction between acquisition illegitimate in itself, which occurs, for example, in the case of theft, and acquisition illegitimate by reason of its cause, such as, for example, the compensation received by a prostitute: only if the acquisition is illegitimate in itself are tithes not owed, although it is ill-advised to exact tithes from prostitutes, so as not to appear accomplices of their sins (Sum. Theol., 2ᵃ-2ᵃᵇ, q. 87, 2 ad. 2).

While dominical tithes find their foundation in a reason of private law, being payments that presuppose a concession of property, the payment of sacramental tithes is founded on the principle of public ecclesiastical law according to which - to repeat an expression of St. Paul (I Cor. 9:13, 14) "qui altari deserviunt cum altari participant... qui Evangelium annuntiant de Evangelio vivere" - in conformity with the Gospel maxim "dignus est operarius cibo suo" (Mt. 10:10; Lk. 10:7), that is, whoever performs functions of worship has the right to receive from those who benefit from them a stipend for his support. Sacramental tithes draw their historical origin from the Old Testament, according to which all possessors of lands had to give the Levites a tenth part of their products.

The juridical nature of sacramental tithes is disputed. While some hold that the sacramental tithe is a real right, others see in it a personal right. But the prevailing opinion distinguishes between personal and mixed tithes and predial tithes, considering the former personal rights and the latter real rights. These must be placed within the category of real charges, inasmuch as they partake of the character of rights of credit, having as their object a payment, and of the character of real rights, the payment being owed by the person insofar as he possesses the land on whose fruits the tithe weighs.

As regards the juridical character of the sacramental tithe in itself, setting aside its various species, a great analogy has been recognized between it and the tax, observing that, just as the tax is a share of wealth which citizens are bound to give to the State, municipality or province, in order to meet the needs of public services, so the sacramental tithe is a periodic payment which the faithful make to the ecclesiastical authority, so that the latter may provide for religious services and the functions of worship (N. Coviello, Manuale di diritto ecclesiastico, edited by V. Del Giudice, I, Rome 1915, p. 263).

The matter of tithes is regulated, in the ius vetus, by chapters 30 and 39, X, III; by chapters 13 and 20, in VI, III; by chapter 12, Council of Trent, session XXV.

At present it is regulated in canon 1502 of the CIC, which, as far as concerns the payment of tithes - which in past centuries constituted one of the richest tributes of the Church - limits itself to referring to local laws and customs. Accordingly, this matter must now be studied bearing in mind the canon law (written or customary) in force in each region.

IV. ITALIAN LAW

With art. 1 of the law of 14 July 1887, no. 4727, 2nd series, the Italian legislator abolished, in all regions, sacramental tithes, designated as "prestations established, under any denomination and in any manner paid, for the administration of the Sacraments or for other spiritual services, to bishops, to ministers of worship, to churches, to factory boards, or to other moral bodies whose purpose is a religious service, even if conventionally or judicially recognized or converted into a pecuniary prestation," while it preserved, making their commutation into a fixed canon in money obligatory and their redemption optional, "all other perpetual landed prestations, consisting of shares of fruits, paid to moral bodies and to private individuals under any denomination" (art. 3 of the cited law).

Since the demonstration of the non-sacramental character of a prestation is sufficient to be able to affirm its preservation, the question concerning the burden of proof of the sacramental character or otherwise of the tithe is of great practical importance. There are those who affirm that the legislator has laid down the presumption of sacramental character and that therefore the burden of proving non-sacramental character falls on the plaintiff, by virtue of the principle "actori incumbit onus probandi" (abolition would be the rule, preservation the exception); there are, on the other hand, those who hold that the legislator has laid down the presumption of non-sacramental character and that therefore the burden of proving sacramental character falls on the defendant (preservation would be the rule, abolition the exception). The case law favors the first opinion. There are finally those who affirm that the burden of proof falls on the debtor, the owner of the land, not on the basis of a legal presumption of non-sacramental character (since the existence of any presumption either of non-sacramental character or of sacramental character cannot be affirmed), but on the basis of an entirely different criterion, observing namely that the burden of proof falls on the defendant because the latter is already bound by an obligatory relationship, founded on a specific title contained in a provision of law, that is, in art. 5 of the law of 24 January 1864, no. 1636, which reads thus: "Possession continued for thirty years, without interruptions, peaceful, public, unequivocal, of the right to exact an annual canon or other prestation, shall take the place of title for the purposes of the present law." From this provision it is argued that the possession of the right to exact the tithe is equivalent to title of the right and that therefore, whenever the ecclesiastical body can demonstrate that it arrived up to 1887 (the year in which sacramental tithes were abolished) with possession continued for thirty years, without interruptions, peaceful, public, unequivocal, of the ius exigendi, such possession having been consolidated, by virtue of the cited art. 5, into a juridical title of exaction, that body must be considered exempted by law from any other proof of its substantive right to exact a decimal prestation: whereas he who, already appearing as debtor, assumes himself to be freed from the obligation, based on that precise juridical title, which is art. 5 of the law of 1864, and affirms that such liberation derived from the provision of art. 1 of the law of 1887, which abolished sacramental tithes, finds himself obliged, by virtue of the principle "affirmanti incumbit onus probandi," to demonstrate that the prestation, which continued to be paid perhaps even after the law of 1887, is of such a nature as to fall precisely, insofar as it is sacramental, within the abolition provided by this law (V. Del Giudice, Corso di diritto ecclesiastico, Milan 1949, p. 234 ff.).

Pio Fedele