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TITHE AND ITS RATING.1

On the 22nd of June last a bill was introduced by Mr. Long into Parliament with the object of remedying an alleged injustice suffered by clerical owners of tithe ; the bill, which received the Royal assent on 1st August, and is now law, relieves clerical owners of half the burden of rates levied on their tithe.

The matter was fully and somewhat hotly discussed in the House before the measure finally became law: but the whole subject is still of great importance for two reasons : a good deal of misconception exists as to the strength of the clergyman's case for relief ; if the British Government is represented as grasping abroad, that isas nothing to the character for rapacity often given to the Church at home; and secondly the Act passed this summer only remains in force for two years, at the end of which time the whole question must again come up for consideration in Parliament. The subject involves points of considerable legal and historical difficulty, and it is only possible here to outline, as clearly as space allows, the chief landmarks on the field over which the battle has been fought.

Tithe-rating has at any rate this satisfactory feature as distinct from many Church matters which are now attracting attention. No question of party is involved : if the rain descends alike on the just and on the unjust, the hand of the rate collector is equally heavy on the clergyman who owns tithes, be he High, Low, Broad, or of any intermediate dimension.

In discussing the rating of tithe we must get working notions of two words, (1) tithe, and (2) rates and rating.

(I) Tithe-From the earliest times the Church preached to landowners the obligation of setting a tenth of all annual produce aside for pious purposes. The obligation was very generally recognised even in Anglo-Saxon times, and came to be

· Being the substance of a Paper read before the Church Congress in the Imperial Institute, October 1899.

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considered a regular charge on the land, and statutory authority for enforcing the obligation was given by legislation as early as the time of Edgar.

Though the custom varied in different parts, tithe was generally leviable in England on that which yields an annual return : such as:

a. Crops: e.g. Corn, hay, wood, flax, hops, vegetables, and fruit trees.

b. Animal produce-such as tithe of calves, colts, pigs and deer, of wool and lambs; of milk, cheese, and even bees.

c. Finally tithe of personal work in certain cases existed in some parts of England, such as of mills and fishing.”

On the other hand, mines and quarries, wild animals, or fish did not pay tithes, as not being capable of yielding an annual return.3

Originally a man might pay this tenth part of his produce to what Church or sacred institution he pleased, but it came to be recognised about the time of the Lateran Council (1180), that all tithe of produce within a parish was attached locally to the church of the parish and was payable exclusively to the parson : this practice did not, however, long continue, for during the next 350 years, up to the Reformation, many monasteries acquired advowsons and appropriated" the benefices to themselves, putting in a deputy or vicar to perform the services: the monasteries retained the chief or great tithes, viz. on corn, hay, and wood, and paid the vicar by handing over to him the lesser tithes, i.e., tithes on all other produce, which not only were of less value, but were more difficult to collect. When the monasteries were dissolved in Henry VIII.'s time, these “ appropriations " passed to the Crown, and thence into the hands of private persons or corporations.

The legal conception of tithes is not very consistent or logical :

1 See Phillimore, Eccl. Law, vol. ii., p. 1147. Selborne, Ancient Facts and Fictions concerning Churches and Tithes. G. Edwardes-Jones, History of Tithe in England. Second Report of Royal Commission on Local Taxation, 1899, p. 8.

? Burns's Eccl. Law (1842), Title, Tithes. Watson, Compleat Incumbent (1712), C. 46, 1 Roll. Abr. p. 641 (1668).

3 Thus following the Levitical rule, Leviticus, xxvii. 30–32.

* See Coke, Inst. II., p. 641 : but contra Prideaux, On Tithes, p. 302 ; Lindwood, De loc. et Conducto.

6 Second Report on Local Taxation, 1899, p. 8. The difference between “great" and "small" tithe depended on the nature of the produce, and not on the amount of the tithe. The original spiritual Corporations, assignees of the tithe, were called appropriators; the subsequent lay holders, after confiscation and grant from the Crown, were called impropriators. Appropriations required the consent both of the Crown and of the Bishop. No. 37.-VOL. X.

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from the point of view of the tithe-owner they are for most purposes regarded as real property, they are technically incorporeal hereditaments, and when in the hands of laymen descend like other real property to the heir-at-law on intestacy; like other real property they are subject to dower and curtesy, they can be settled or willed or leased : and they come within the terms of the settled Land Act 1882 (Sec. 2, § 10).'

On the other hand, from the point of view of the landowuer, they are not treated as real property: as against him the parson's right to tithe gives the latter no estate in the land, it is merely a personal right to a portion of the produce enforceable originally only by spiritual censures in the ecclesiastical Courts, and tithes were excluded from the relief given to agricultural land generallyin 1896.

Not unnaturally the actual collection of a tenth of the produce led to much unseemly friction between clergy and farmers : voluntary arrangements were therefore often entered into to secure a money payment in lieu of the actual produce: this fixed money payment was called a modus and might extend to the whole parish or only to some particular lands in it; by agreement between the landowner or occupier and the parson, the former sometimes paid the rates before handing over the tithe, the modus being of course reduced to the extent of the rates so paid. In 1836 the Tithe Commutation Act was passed whereby the varying share of the annual produce was to be commuted into a fixed money payment, arrived at by taking an average for the previous seven years.?

The commuted sum so ascertained, henceforward called a tithe rent-charge, was not, however, an absolutely fixed sum : the amount payable was to vary according to the current price of three crops, wheat, barley, and oats; in other words if the average tithe receivable by the vicar of St. Mary's, Anywhere, calculated on the average for the seven years preceding 1835 was £100, that would have purchased in 1836 say 60 bushels of wheat, 150 bushels of oats, 100 bushels of barley. The vicar of St. Mary's will receive this year the money value of the same number of bushels of wheat, oats and barley: the price of these three crops has

1 See Bacon's Abridgment (1832), vol. viii., p. 2.

2 Deductions were allowed for any rates, charges, or assessment, to which the tithe was liable: also for expenses of collection, preparing for sale and marketing. In some cases where voluntary compositions had been made previous to the Act, additions to the average were made; see Appendix, vol. i., to Evidence of Royal Comm. on Loc. Tax., 1898; Memorandum of Rev. C. Stevens, p. 211; Memorandum of Mr. E. W. Peterson, p. 145.

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fallen very much during the last few years, so that during the current year our vicar's £100 is worth to him only £68 2s. 40.1

It is important to notice exactly what the Act did : it secured to the tithe-owners a sum in money which though liable to some variation with the price of crops, was practically fixed, thus avoiding the friction of collecting and disposing of an actual tenth part of corn or wood from each farm : but at the same time it prevented the tithe-owner reaping the benefit he would have secured under the old system as years went on from better cultivation, and therefore increased annual production; that this increase of production has been considerable admits of little doubt : Sir John Caird, a tithe commissioner, estimated in 1876 that the Church was £2,000,000 a year poorer nowadays for accepting the arrangement in 1836.2 It is often said that at the passing of this Act a large sum was given to the owners of tithe so as to secure them an income for the future free of rates; that, as a matter of figures, a considerable sum was added to the tithes there can be no doubt : but only in those cases where there had been an arrangement previous to the Act by which the rates had been paid by the tithe-payers, and only to the extent of sums so paid : in the words of the tithe commissioners in their report of 1st May 1838, “It is the purpose of the Act to put upon exactly the same footing the tithe-owners who have paid their own parochial rates, and the tithe-owners whose rates have been paid for them by the tithe payers. If, therefore, in two parishes, in each of which the tithes have been treated as worth £600, the tithe-owner in one has received £400 and £200 has been paid for him as rates, that £200 must be added to make up the tithe-owner's real average and put him on a footing with his neighbour.' The Act only gave with one hand to take away with the other.

The only other important legislative change with regard to tithe, or rather tithe rent-charge, was that in 1891 the landowner and not the tenant was made immediately liable, and the titheowner was allowed, instead of the troublesome remedy of distraining for arrears, to sue for them in the county court. The total amount of the tithe rent-charge now payable annually is roughly

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See Sec. 37, 6, 7 Will. IV., C. 71. The average annual value since 1837 has been £97 0s. 74d. See Ch. of Eng. Year Book for 1899, p. 575.

2 See Appendix to Evidence, Vol. I., Roy. Com. on Loc. Tax., p. 143 ; Memorandum of Mr. E. Peterson. On the other hand it must not be forgotten that tithe was only payable on produce, i.e., on agricultural land ; houses built on land affect the value of the land, but not of the tithe.

3 Memorandum of Rev. C. Stevens, loc. cit.

four millions, of which three millions go to clerical owners, and one million to lay impropriators.1

II. -Rates are burdens leviable on the profit arising from land and houses; rates however are not levied on the full value of land or houses; the whole subject is exceedingly complicated, but roughly we may say that the basis of rateable value is arrived at in the following way.

The enjoyment of land in England is usually divided between two people, the landlord and the tenant: the gross profits of the land may be regarded as divisible into three : 2

(I) Expenses of cultivation, wages, machinery and incidental charges.

(II) A profit over and above the cost of cultivation on which the tenant lives, i.e. the tenant's profits.

(III) The residue which goes to the landlord in rent, and which is usually called occupier's, but should properly be named, landlord's profits.

It is on this last that rates are calculated : 3 much land never is and never will be let at an annual rent to any one : but a supposed rent has somehow to be arrived at: and a vast array of overseers, assessment committees and distinguished judges are employed from time to time in discovering hypothetical tenants for such very unlettable properties as a Board School, Euston Station, or Bedlam Asylum.

Such being the nature of tithe and of rating, what is the connection between thetwo? Where, say the average man, is the hardship in the tithe paying rates ? If one-tenth of the produce of land is set aside for the parson or lay impropriator, and the other nine-tenths pay rates, why should not the parson's one-tenth also pay? Father Healy defined a Scotchman as “A mon who keeps the Sawbath and anything else he can lay his hands on ”; the average man thinks of that and applies it to his clerical friends.

One answer to the question of the average man is obvious : the farmer does not pay rates on the whole of his nine-tenths, and it is difficult to see why the parson should pay on the whole of his one-tenth. If the cost of cultivation of land (including payment of say £50 tithe) be £500, tenants' profits £500, and rent £500, rates are paid not on £1,500 but on one-third of that, i.e. the rent, £500,

1 While the value of tithe cannot increase, the rates imposed on it have very largely increased since 1836. See Ch. of Eng. Year Book,

2 Castle, On Rating (1895), p. 127; R. v. Adames, 4 B. and Ad. 61. 3 This principle of “annual value” was adopted by statute, 6 7 Will. IV., c. 96.

P. 575.

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