DECIMA

DECIMA. —

I. IN THE BIBLE

A portion (originally, the tenth part) of the products that the Israelites were required to pay to the Temple and its ministers (priests, Levites) for the maintenance of worship and of those devoted

to II. 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 addressed 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 regard grain, new wine, and oil as 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 kept, and grows from the earth. Lev. 27:30-33 concerns the tithe levied on domestic animals; where the tribute was not given in kind, a sum increased by one-fifth of the value had to be paid (Lev. 27:31). According to Num. 18:20-32, every tithe of the threshing floor and winepress belongs to the Levites, who dispose of it freely, but leave one part of it for the priests. According to Deut. 12:6 f., 17-19, the tithe is to be consumed, like the sacrifices, at the central sanctuary. In cases of considerable distance, the tithes could be sold, and with the proceeds everything necessary for the sacrificial meal at the sanctuary could be procured (Deut. 14:22-27). In time, the tithe could be assigned to the Levites, foreigners, widows, and orphans in the place where the payer resided (Deut. 14:28 f.; 26:12 f.). With the fall of the Temple, the institution of the tithes also fell.

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 tributary system of the d. soon became established in Gaul, England, and Ireland, as can also be inferred from the penitential books of those countries. Attempts to adopt the d. in Italy were made from the 7th century onward (cf. Mansi, XII, 226, 298; XIII, 852-53).

The councils of the Middle Ages frequently repeated the precept requiring payment of the d., clear evidence that its application encountered many difficulties. In this respect the work of Charlemagne was meritorious: in addition to repeating this obligation in many of his capitularies and subjecting even the sovereign’s own possessions to it, he brought the civil authority to bear against those who resisted, through fines, sequestration of property, imprisonment, 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 d. practically universal.

But usurpations soon began. In the struggle of the Gregorian reformers, one of the abuses denounced was the transfer of ecclesiastical d. to laymen. The Roman Council of 1059 also dealt with the matter, chap. 9 (Mansi, XIX, 907). In the following century the Third Lateran Council (1179) had to return to the subject and, in order to put an end to the abuse, decreed the intransmissibility of the privilege, however it might have been obtained by laymen (Mansi, XXII, 250, 281-82).

At the same time exemptions from payment of the d. began to appear. These exemptions were first granted to monks, who were bringing uncultivated lands under cultivation, and were later extended to the Cistercians, Templars, and Hospitallers (Mansi, XXII, 256, 326-32).

New regulations on the subject were issued by Innocent III and some of his predecessors: a distinction was made between the personal d. (de artificio, vel negotiatione et agricultura), which was paid to the person’s own parish, and the predial d. (mestium seu fructuum arborum), which was paid to the parish in which the estate was located. A sovereign concession could not exempt anyone from payment of the d.; nor could it, even if maintained for thirty years, result in the extinction of the right of the creditor ecclesiastical institution.

On the basis of these legal provisions, a whole doctrinal elaboration of the institution developed: concerning the source of the obligation (the d., materialiter, are owed by natural law; formaliter, by positive ecclesiastical law) and the classification of the d. according to their origin in law (manorial, sacramental, noval, sanguinal, etc.).

Alongside the d. properly so called, there were others: the papal d., for example, which was imposed on ecclesiastical property, levied occasionally by the pope, and transferable to sovereigns. Others were peculiar to certain places (in Italy there are the mortuorum d.).

From the 13th century onward, lay power had begun a struggle against the d., but it was the reformers who took a clear stand against them. Consequently, the Council of Trent (Sess. XXV, de ref., c. 12) imposed excommunication on anyone who failed to pay the d.

The exemption of regulars from payment of the d., by then made universal, was restricted by the jurisprudence of the Congregation of the Council in the sense that it was not to extend to new acquisitions or to property acquired from laymen and subject to the d.

The period of the Enlightenment initiated the suppression of the d. by the civil authorities. Attempts were made in the Kingdom of Naples (1759, 1772), but the measure that gave general impetus to the suppressions was the decree of the French National Assembly (4 August 1789).

In Italy, at the unification of the Kingdom, legislation was fragmentary. Then the law of 14 July 1887, no. 4728, suppressed «le d. ed altre prestazioni stabilite sotto qualsiasi denominazione ed in qualunque modo corrisposte...» and left surviving only the manorial ones, that is, those paid under a non-ecclesiastical title, but as acknowledgment of eminent domain over the land.

The d. are distinguished: a) as dominical and sacramental (or ecclesiastical or spiritual), according as they consist of payments owed, on the basis of ancient grants, by the possessors of a piece of land, as a reservation of the grantor’s former dominion, or of payments owed by the faithful to ecclesiastical institutions, as consideration for the functions of worship; b) as predial, personal, and sanguinal or mixed, according as they burden the products of land, the products of human activity, or the products of animals.

The d. owed on the products of land brought under cultivation for the first time were called novales, in contrast to antiquae; those owed on the first products of a piece of land were called primitiae (v. PRIMIZIE).

Not only Catholics are obliged to make sacramental payments, but also heretics and, exceptionally, 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 others, who do not benefit from the functions of worship, only with regard to predial d., in order to prevent the right to d. from being extinguished through the alienation of land by Christians to pagans and Jews.

Once the principle had been established that sacramental payments could have as their object only fruits lawfully acquired, the Thomistic distinction was introduced between acquisition unlawful in itself, as, for example, in the case of theft, and acquisition unlawful because of its cause, such as, for example, the payment received by a prostitute: only when the acquisition is unlawful in itself are the d. not owed, although it is inadvisable to demand d. from prostitutes, lest one appear complicit in their sins (Sum. Theol., 2ᵃ-2ᵃᵇ, q. 87, 2 ad. 2).

Whereas dominical d. are founded on a principle of private law, being payments that presuppose a grant of property, sacramental payments are 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 accordance with the evangelical maxim «dignus est operarius cibo suo» (Mt. 10, 10; Lc. 10, 7) — that is, whoever performs functions of worship has the right to receive from those who benefit from them an emolument for his support. Sacramental d. derive their historical origin from the Old Testament, according to which all possessors of land had to give the Levites a tenth of their products.

The juridical nature of sacramental d. is disputed. Whereas some hold that sacramental d. constitute a real right, others see in them a personal right. The prevailing opinion, however, distinguishes between personal and mixed d. and predial d., considering the former personal rights and the latter real rights. These must be included in the category of real burdens, since they partake of the character of rights of credit, having a payment as their object, and of the character of real rights, since the payment is owed by the person because he possesses the land whose fruits are burdened by the d.

As regards the juridical nature of sacramental d. in themselves, apart from their various forms, a close analogy has been discerned between them and taxation. Just as a tax is a share of wealth that citizens are obliged to give to the State, municipality, or province so that the needs of public services may be met, so sacramental d. are a periodic payment that the faithful make to ecclesiastical authority, so that it may provide religious services and functions of worship (N. Coviello, Manuale di diritto ecclesiastico, edited by V. GIUDICE, I, Rome 1915, p. 263).

The law of tithes is regulated, in the ius vetus, by chs. 30 and 39, X, III; by chs. 13 and 20, in VI, III; and by ch. 12, Council of Trent, sess. XXV.

At present it is regulated by can. 1502 of the CIC, which, with regard to the payment of d. — which in past centuries constituted one of the Church’s richest forms of taxation — limits itself to referring the matter to local laws and customs. Consequently, this subject must now be studied with reference to the canon law (written or customary) in force in each region.

IV. ITALIAN LAW

By art. 1 of the law of 14 July 1887, no. 4727, 2nd series, the Italian legislator abolished, in all regions, sacramental d., designated as “payments established, under any designation and in whatever manner rendered, for the administration of the Sacraments or for other spiritual services, to bishops, ministers of religion, churches, church-factory boards, or other juridical bodies whose purpose is a religious service, even if recognized or converted into monetary payments by agreement or judicial decision,” while it retained, making their commutation into a fixed monetary rent obligatory and redemption optional, “all other perpetual land payments, consisting of shares of produce, paid to juridical bodies and private persons under any designation” (art. 3 of the aforementioned law).

Since proof that a payment is not sacramental suffices to affirm its retention, the question concerning the burden of proving whether or not the d. is sacramental is of great practical importance. Some maintain that the legislator established a presumption of sacramental character and that, consequently, the burden of proving its non-sacramental character falls upon the plaintiff, by virtue of the principle “actori incumbit onus probandi” (abolition would be the rule, retention the exception); others, on the contrary, hold that the legislator established a presumption of non-sacramental character and that, consequently, the burden of proving sacramental character falls upon the defendant (retention would be the rule, abolition the exception). Case law favors the first opinion. Finally, some maintain that the burden of proof falls upon 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, whether of non-sacramental or sacramental character, cannot be asserted), but on the basis of an entirely different criterion: namely, that the burden of proof falls upon the defendant because he is already bound by an obligatory relationship founded upon a specific title contained in a statutory provision, namely art. 5 of the law of 24 January 1864, no. 1636, which reads as follows: “Continuous possession for thirty years, without interruption, peaceful, public, and unequivocal, of the right to demand an annual rent or other payment shall take the place of title for the purposes of this law.” From this provision it is inferred that possession of the right to demand the d. constitutes title to the right and that, consequently, if the ecclesiastical body can prove that its possession continued until 1887 (the year in which sacramental d. were abolished), with continuous, uninterrupted, peaceful, public, and unequivocal possession for thirty years of the ius exigendi, such possession having been consolidated, by virtue of the aforementioned art. 5, into legal title to collection, that body must be deemed by law exempt from any further proof of its substantive right to demand a decimal payment; whereas the person who, already being a debtor, claims to have been released from the obligation based upon that precise legal title, namely art. 5 of the law of 1864, and asserts that such release resulted from the provision of art. 1 of the 1887 law abolishing sacramental d., is obliged, by virtue of the principle “affirmanti incumbit onus probandi,” to prove that the payment, which continued to be made perhaps even after the 1887 law, is of such a nature as to fall, precisely because it is sacramental, within the abolition enacted by that law (v. GIUDICE, Corso di diritto ecclesiastico, Milano 1949, pp. 234 ff).