DECIMA

### TITHES

#### I. In the Bible

Originally the tenth part of the produce that the Israelites were to give to the Temple and its ministers (priests, Levites) for the maintenance of worship and those employed in II. Alongside the cultic tithe, there also existed a royal tithe (1 Sam 8:15–17). The cultic tithe represents an ancient institution (Gen 14:20; 28:22) and is based on the concept of an offering made to God as the owner of the land (Lev 25:23; Deut 26:1ff.).

The amount and manner of collecting this tribute were not always uniform (Lev 27:30–33; Num 18:20–32; Deut 12:6; 11:14, 22–29; 17–19; 26:12–15; cf. Amos 4:4). Numbers and Deuteronomy consider grain, wine, and oil as subject to the tithe. Pharisaic teaching extended the obligation of the tithe even to produce of minimal value (Matt 23:23; cf. Luke 11:42; 18:12). The Mishnah (Ma'āšer, I, 1) extends the obligation to everything used for food, which is stored and grows from the earth. Lev 27:30–33 concerns the tithe taken from domestic animals; if the tribute was not given in kind, an amount increased by a fifth of its value had to be delivered (Lev 27:31). According to Num 18:20–32, every tithe from the threshing floor and the winepress belongs to the Levites, who may dispose of it freely but must leave a portion for the priests. According to Deut 12:6ff., 17–19, the tithe is to be consumed alongside the sacrifices in the central sanctuary. In cases of considerable distance, tithes could be sold, and with the proceeds everything necessary for the agape could be procured at the sanctuary (Deut 14:22–27). Over time, the tithe could be given to Levites, foreigners, widows, and orphans in the place of the tributary’s residence (Deut 14:28ff.; 26:12ff.). With the fall of the Temple, the institution of tithes ceased.

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#### II. History

The principles governing the payment of tithes in the Old Testament were revived in the New, but the tithe did not immediately arise as an independent institution. Although from the outset St Paul had applied the evangelical maxim “the labourer deserves his food” (Matt 10:10; Luke 10:7) to ministers of the altar—“those who serve at the altar share in what is offered on the altar” (1 Cor 9:13)—the spontaneous flow of offerings and the exercise of certain professions by clerics rendered an explicit precept of the Church on this matter superfluous. As spontaneous offerings became rarer and the Church’s needs and those of its clergy had to be met, the Church resorted first to exhortations, then to precepts and laws, from which the institution of tithes arose.

The first traces of legislation are found in the Councils of Tours (567) and Mâcon (583) (Mansi, IX, 804–805, 932). The tithe system soon took hold in Gaul, England, and Ireland, as is also evident from the penitential books of those lands. Attempts to adopt the tithe in Italy date from the 7th century onward (cf. Mansi, XII, 226, 208; XIII, 852–853).

Medieval councils frequently reiterate the precept of paying tithes, a clear sign that its application encountered many difficulties. In this regard, Charlemagne’s work is commendable: besides repeating this obligation in many of his capitularies and subjecting even the sovereign’s own goods to it, he invoked civil authority against defaulters with fines, sequestration of goods, imprisonment, exile, and confiscation (E. Amann, *L’epoca carolingia*, 757–888, in Fliche-Martin-Frutaz, VI, pp. 92–93) and effectively made the legal obligation to pay tithes universal.

Yet soon abuses began. In the struggle of the Gregorian reformers, one of the grievances was the alienation of ecclesiastical tithes to laypersons. The Roman Council of 1059, c. 9 (Mansi, XIX, 907), also addressed the matter. But in the following century, the Third Lateran Council (1179) had to return to the issue and, to put an end to the abuse, decreed the inalienability of the privilege however acquired by laypersons (Mansi, XXII, 250, 281–282).

At the same time, exemptions from the payment of tithes began, first granted to monks who cultivated uncultivated lands and later extended to the Cistercians, Templars, and Hospitallers (Mansi, XXII, 256, 326–328).

New norms on the matter were issued by Innocent III and some of his predecessors: a distinction was made between personal tithes (from crafts, trade, and agriculture), which were to be paid to the parish of the person, and predial tithes (from harvests or fruit trees), which were to be paid to the parish where the land was located. A sovereign concession could not exempt one from paying tithes, nor could even thirty years of possession extinguish the right of the ecclesiastical creditor.

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

Alongside the tithe properly so called, other forms exist: the papal tithe, for example, which burdens ecclesiastical goods and is occasionally imposed by the pope and transferable to sovereigns. Others are peculiar to certain places (in Italy, the *decimae mortuorum* are found).

From the 13th century, the lay power had begun a struggle against tithes, but it was the Reformers who took a clear stand against them. Hence the Council of Trent (Session XXV, de ref., c. 12) decreed excommunication for those who did not pay tithes.

The exemption of regulars from the payment of tithes, now universal, was restricted by the jurisprudence of the Congregation of the Council to the effect that it could not be extended to new acquisitions or to goods purchased by laypersons and subject to tithes.

The Enlightenment period saw the suppression of tithes by civil authority. Attempts were made in the Kingdom of Naples (1759, 1772), but the general impetus came from the decree of the French National Assembly (4 Aug 1789).

In Italy, after the unification of the Kingdom, legislation was fragmented. Then the law of 14 July 1887, no. 4728, suppressed “tithes and other obligations established under any name and in any manner paid...” and allowed only those of a dominical nature to survive, i.e., those paid not on an ecclesiastical title but as recognition of eminent domain over the land.

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#### III. Canon Law

By the term *tithe* is meant a payment, owed to certain persons, of a share of the produce of lands, animals, or human activity. Hence the word *tithe* should not be given an arithmetical meaning, for it denotes, not—as originally—the tenth part of the fruits, but any share of them.

The tithes (d.) are distinguished as follows: a) into dominical and sacramental (or ecclesiastical or spiritual), according as they consist of payments due, on the basis of ancient concessions, by the owners of land as a reservation of the former ownership of the grantor, or of payments due from the faithful to ecclesiastical bodies as remuneration for the performance of divine worship; b) into predial, personal, and sanguinal or mixed, according as they are levied on the produce of land, on the products of human industry, or on the products of animals.

Tithes on newly cultivated land were called *novales*, in contrast to *antiquae*; those due on the first produce of a holding were termed *primitiae* (q.v.).

Not only Catholics are bound to pay sacramental tithes, but also heretics, and exceptionally pagans and Jews: the former without any limitation, being regarded as subject to the laws of the Church, although outside it; the latter, who do not benefit from divine worship, only in respect of predial tithes, to prevent the right of tithe from being extinguished by the alienation of land by Christians to pagans and Jews.

Given the principle that the payment of sacramental tithes can only have as its object fruits lawfully acquired, the distinction drawn by St Thomas Aquinas is applied between illegitimate acquisition *per se*, as in the case of theft, and illegitimate acquisition *per accidens*, as in the case of the earnings of a prostitute: only in the former case are tithes not due, although it is considered unwise to exact tithes from prostitutes, lest one appear to be an accomplice in their sins (*Summa Theologiae*, II-II, q. 87, art. 2 ad 2).

While dominical tithes are founded on a principle of private law, being payments which presuppose a grant of property, sacramental tithes are based on a principle of public ecclesiastical law, according to which—quoting the words of St Paul (1 Cor 9:13–14)—“those who serve at the altar share in what is offered on the altar... those who proclaim the gospel should get their living by the gospel,” in conformity with the evangelical maxim “the labourer deserves his food” (Matt 10:10; Luke 10:7). In other words, those who perform sacred functions have a right to an emolument for their support from those who benefit thereby. Sacramental tithes have their historical origin in the Old Testament, according to which all landowners were to give a tenth of their produce to the Levites.

The juridical nature of sacramental tithes has been much debated. Some hold that sacramental tithes are a real right, others that they are a personal right. The prevailing opinion, however, distinguishes between personal and mixed tithes on the one hand and predial tithes on the other, regarding the former as personal rights and the latter as real rights. Both, however, fall within the category of real encumbrances, partaking as they do of the character of rights of credit, in that they have as their object a performance, and of real rights, in that the performance is due from the person inasmuch as he possesses the land on whose produce the tithe is levied.

As regards the juridical nature of sacramental tithes in themselves, apart from their various kinds, a close analogy has been drawn between them and taxation, in that just as taxation is a share of wealth which citizens are bound to give to the State, commune, or province to meet the cost of public services, so sacramental tithes are a periodical payment which the faithful make to the ecclesiastical authority to enable it to provide for religious services and the performance of divine worship (*N. Coviello, Manuale di diritto ecclesiastico*, ed. V. GIUDICE, I, Rome 1915, p. 263).

In the old law, tithes were regulated by cc. 30 and 39, X, III; cc. 13 and 20, in VI, III; and c. 12, Council of Trent, sess. XXV.

At present they are governed by can. 1502 of the *Codex Iuris Canonici*, which, as regards the payment of tithes—which in past centuries constituted one of the richest revenues of the Church—merely refers to local laws and customs. Hence the study of this matter must now take account of the canon law (written or customary) in force in each region.

IV. ITALIAN LAW

Since the demonstration of the non-sacramental nature of a payment is sufficient to affirm its continued existence, the question of who bears the burden of proof regarding the sacramental or non-sacramental nature of the tithe (d.) is of great practical importance. Some argue that the legislator has established a presumption of sacramental nature, thereby placing the burden of proof of non-sacramental nature on the plaintiff, in accordance with the principle *"attori incumbit onus probandi"* (abolition would be the rule, preservation the exception). Others believe that the legislator has established a presumption of non-sacramental nature, thus placing the burden of proof of sacramental nature on the defendant (preservation would be the rule, abolition the exception). Jurisprudence favors the first opinion.

Finally, some assert that the burden of proof lies with the debtor, the owner of the land, not based on a legal presumption of non-sacramental nature (since neither a presumption of non-sacramental nature nor of sacramental nature can be affirmed), but rather on a wholly different criterion. They argue that the burden of proof falls on the defendant because they are already bound by an obligation arising from a specific title contained in a legal provision, namely Article 5 of the law of January 24, 1864, No. 1636, which states: *"Continuous possession for thirty years, without interruption, peaceful, public, and unequivocal, of the right to demand an annual tithe or other payment, shall serve as a title for the purposes of this law."* From this provision, it is argued that the possession of the right to demand the tithe (d.) constitutes a title to the right, and thus, if the ecclesiastical entity can demonstrate that it persisted until 1887 (the year in which sacramental tithes were abolished) with continuous, uninterrupted, peaceful, public, and unequivocal possession of the *ius exigendi*, this possession having been consolidated by virtue of the cited Article 5 into a legal title for collection, the entity is legally exempt from providing any further proof of its substantive right to demand a tithe payment. Meanwhile, the party who, already appearing as a debtor, claims to be released from the obligation based on that precise legal title, which is Article 5 of the 1864 law, and asserts that such release stems from the provision of Article 1 of the 1887 law abolishing sacramental tithes, is obligated, by virtue of the principle *"affirmanti incumbit onus probandi"*, to demonstrate that the payment, which may have continued even after the 1887 law, is of such a nature as to fall, as a sacramental tithe, within the abolition decreed by that law (v. GIUDICE, *Corso di diritto ecclesiastico*, Milan 1949, pp. 234 ff).

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