Page:Harvard Law Review Volume 10.djvu/121

95 A BRIEF SURVEY OF EQUITY JURISDICTION. 95 at all; and, therefore, there would seem to be no propriety in directing him to account for the rents and profits of the land. Passing now from the subject of rent to that of tithe, it may be remarked that the latter, unlike the former, has ceased to be of much practical importance even in England, and hence the law applicable to it is chiefly interesting for the principles which it involves. Attention has already been called to a few points in which rent and tithe are alike ;^ but perhaps their differences are more impor- tant than their resemblances. First, rent, as has been seen, is created entirely by the acts of the parties interested in it, and its form and incidents are such as the parties choose, within the limits of the law, to give it. In short, the law has no purpose of its own to serve, nor any policy of its own to promote, in regard to rent; and in this respect rents may be likened to contracts. In regard to tithe, however, it is very different; for every obligation to pay tithe is created by the law alone ; and hence the nature of the ob- ligation is such as the law makes it, while its form and incidents are such as the law gives it. Moreover, the law by which the obli- gation is created is uniform in its operation, and hence the nature of the obligation, and also its form and incidents, are always the same; and therefore it follows that the subject of tithe is primarily much less complex than that of rent. Indeed, the creation of the obligation to pay tithe is simply an act of sovereign power, exer- cised at the expense of private persons, but for the benefit of the public. In truth, tithe is a species of tax; and the law governing it is a part of the public law of the State. According to modern ideas, this tax should be collected and applied by public authority; but in fact the right to receive the tithes payable in each parish is vested in the parson of the parish as a private right: otherwise there would be no propriety in speaking of the subject of tithe in this place. Secondly, while a rent is generally payable in money, — the amount of which is fixed, and constitutes a debt in the strict Eng- lish sense, — predial tithe is always by law payable in kind,^ i.e.j it consists of one tenth of the actual produce of the land. Hence it is necessary that the tenth part be separated from the other nine parts before the tithe-owner can receive his tithe ; but the moment that a separation takes place, the right of the tithe-owner undergoes 1 See supra, p. 78. 2 There seems to be no doubt that rent also was in fact originally payable in kind. 13