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whereas under the law as it stood till this year, the owner of the £50 tithe would be rated on almost the whole, say £48.1
The state of affairs in existence until the Act of this year was passed was no doubt legal; and even those who felt the burden most keenly would not accuse the state of any conscious determination to oppress the clergy: the law has developed gradually, unconsciously, by a series of steps, each of which by itself passed almost unnoticed, but the result is none the less distinctly inequitable.
Mr. Boscàwen in his evidence before the Royal Commission gave many instances of the pressure of rates on the clerical titheowners. To take only one, at Lyminster in Sussex the gross income of the clergyman derived almost entirely from tithe rent-charge is £253 : against this must be set rates £39, curate's stipend £161, other necessary expenses £25, leaving a net income of £29, or actually £10 less than the amount paid in rates on the tithe.?
Mr. Gladstone so long ago as 1852 could say, " The clergy have a real grievance. It is admitted, and every one who has examined the subject of local rating will tell you, that the clergy suffer cruelly by being rated upon their gross incomes.” They have suffered patiently for many years : possibly, like the eels, from constant skinning, they were supposed to have got rather fond of the operation.
There are three main lines of argument adopted by those who say that the method of rating of tithe in vogue up to the present year was unjust and these arguments can best be put in the order of strength.
I. There can be little doubt in the minds of those best able to judge that tithe in the hands of clerical owners, which differs in many important incidents from that in the land of lay impropriators, was never meant in inception to be rated at all.3
The Act which inaugurated the system of Poor Law rating, and on which the whole of our principles of rating are based, was passed in 1601 (the famous Act, 43 Eliz. c. 2). The object
See facts in R. . Capel, 12 A. & E. 382, 840. For facts as to close rating of tithe see below.
? See for numerous similar cases Mr. Boscawen's Memorandum Appendix, vol. i., Report on Local Taxation, 1898, p. 349.
3 See Mr. Meadows White's evidence, House of Lords, Paper 150, for 1850 ; evidence of Mr. Castle, Q.C., the well-known authority on rating, Local Taxation Commission, vol, ii. of evidence, p. 83.
* This was only the last of a series of Acts of a similar character, 5 Eliz. c. 3, 14 Eliz. c. 5, and 39 Eliz. c. 3. The latter draws the same distinction between inhabitant and oce
the Act of 1601 ; the judges resolved in 1597 or 1598 that parsons were liable under 39 Eliz, as inhabitants, and lay impropriators as of the Act was to enable overseers in each parish to raise funds to buy flax, hemp, wool and other things so as to set the sturdy “poor on work," and to provide relief for the impotent, old, and blind, and those incapable of work. The Act mentions two classes of persons on whom the overseers were to levy charges or rates to provide the necessary funds, namely :
1. “Every inhabitant, parson, vicar, and other," i.e., every inhabitant in the parish.
2. Every occupier of land, houses, mines, &c.; and in the category are specially mentioned “tithes impropriate and propriations of tithes,” tithe, that is, separate from the benefice, and contributing nothing to its support, whether held by a layman or by a religious foundation.
The distinction between the two classes is important: a rate placed on inhabitants generally, “according to ability,” to use the words of the Act, would naturally seem to mean a tax on the income of all solvent persons residing in the parish from whatever source derived. A butcher has a shop, a cart, makes large profits which are consumed by a large family. His real property, the shop, and his personal property, the cart, and furniture, and his profits would then be taken into account on one side, his expenses, e.g., house rent, on the other, and the balance will represent his ability to pay. In the case of landlord and tenant mentioned just now, the tenant would be the inhabitant, his ability to pay measured by his tenant's profits, less his necessary outgoings. Similarly with a parson, his “ability” would be his net income after deducting expenses. This, however, is not quite the construction which the Courts? have placed on the Act. They have made the distinction between the two sections of the Act coincide with the difference between real and personal property; the second section deals expressly with real property, the first section has been confined by the Judges to personalty. But whatever the theoretically correct interpretation of Section I., in which the parson is included, may be, it makes very little difference from the parson's point of view, as we shall see directly for this first section soon fell into disuse.
occupiers. Under the early but irregular Sewers' Act, 23 Hen. VIII., spiritual tithe was never rated, but impropriation of tithe always. Second Report on Local Taxation, 1899, p. 9; Parliamentary Paper 486 of 1843, Pt. 1., p. 11.
1 The Act of 1601 speaks of “the ability of the parish,” the “ Hue and Cry Act” 1585, expressly referred to the “ability of the inhabitants." These phrases amount to the same thing. Second Report, 1899, p. 11. See Memorandum of Rev. C. Stevens, Appendix to Loc. Tax. Report, 1899, vol. i., p. 165.
? See R. v. Lumsdaine, 1839, 10 A. & E. 160.
The second class were to be rated purely in connection with landholding: the basis of rating was occupation of land, coal mines, &c.; tithes, it is true, are mentioned, but the point is only when in the hands of the lay holders of tithes, not of the ordinary clerical holder. Now the words, “ Tithes impropriate or propriations of tithe," are carefully chosen, and in other cases the Courts have interpreted the words of the Act most rigidly; for instance, in one case the Court of Queen's Bench said that as Coal Mines were specifically mentioned, coal mines alone were meant, and refused to extend the Act to lead mines. So that following a similar rule here it seems impossible to include clerical tithe-owners under the second section of the Act.
Both sections of the Act were, doubtless, at first properly applied. In his clear statement put before the Royal Commission last year, Mr. Peterson 2 gives some interesting instances from the old Maidstone rate-book. There were two columns in the book: one headed “abilities," corresponding to the first section of the Act; the other for land. For instance, in 1668, the Lady Ashley is put down for 3 acres of land, on which she is rated at 11d., while in the column headed “abilities,” she is rated at 18s. Many naturally appear under the head of “abilities” who have no land.
To assess the varying profits a man makes every year is obviously difficult: and whatever its exact meaning, the first part of the Act, which, as we said, included the parson amongst other inhabitants, soon fell into disuse. Overseers in Elizabeth's time had no inquisitorial machinery like that provided by the Income Tax; landed property, on the other hand, is a tangible thing, which cannot run away or be made to appear less than it is. By tacit consent the rates were very soon allowed to fall entirely on the second class, i.e., occupiers of land ; 3 and in 1840 the custom of 200 years was made law by the Poor Rate Exemption Act, which prohibited rates from being placed on “any other property,” save that mentioned in the second part of the Act of Elizabeth.
Now what exactly happened with regard to the rating of the parson during the years from 1601 to about 1700 no one knows; but it must be remembered that overseers and assessment committees, who fix the rates, are largely drawn from the farmer
| Lead Smelting Company v. Richardson, 3 Burr. 1341 (1762), law altered by Rating Act, 1847.
Secretary, Tithe Rent-charge Owners' Union. Appendix to Vol. I. of Evidence, Local Taxation, 1899, p. 131.
3 Mr. Castle mentions a case where a mandamus was refused for rating of personalty before 1840 (Q. 14, 071)
class. They saw the parson had some interest in the land, for they paid him tithes of its produce themselves, so that when he ceased with other inhabitants to be rated in the inhabitant class in which he was mentioned, what happened probably was, that up and down the country the farmers, his neighbours, inserted him gradually, skilfully, but illegally in the second or occupier's class in which he was not mentioned.
However it arose, the custom became general, and was accepted by numerous decisions of the Courts; so much so that the Act of 1840, when exempting personal property generally, meaning thereby every one mentioned under Section 1, especially said the parson was still to be liable under the Act, but under the second section, as an occupier, though, as we have seen, be was not mentioned in the Act as an occupier at all, but as an inhabitant.
That is the first point: that the clerical tithe-owners were originally never meant to be rated for their tithes at all.
II. Assuming, however, that Her Majesty's judges have been right in allowing tithe rent-charge in the hands of clerical owners to be rated under the second section of the Act of Eliz., though parsons are only mentioned under the first, the next complaint is, that clerical tithe-owners are rated on quite different principles to all other occupiers. To revert for a moment to the case of the landlord and the tenant, £500 we assumed went in cost of cultivation, £500 in tenants' profits, and £500 to the landlord as rent; it is on this last alone that rates are levicd: in other words, the basis of rates is not the gross profit, but the gross profit less costs and tenants' profits; tenants have to live, even in England; and farmers will not offer a rent that does not allow them a margin of subsistence.
Now tithe suffers in comparison with rating of land in two ways, one practical, the other legal. ( 1)The practical grievance is this : farmers in the country mainly constitute the assessing authorities, they rate themselves ; if they own their own land, then there is no rent payable and there is no simple means of arriving at the sum which represents the landlords' profits. While even in the case of tenant farmers, when the rent actually paid to the landlord is beyond dispute and affords the proper basis of rating, farmers will often be found to rate themselves on something less than the known amount of their rent; one of the witnesses before the Royal Commission quoted a case which he described as “ almost amusing,” of pasture land at Thaxted, put up to auction and fetching 50s. per acre rent in the open market, yet the assessing farmers refused to put the rating value at a higher figure than 25s. on the ground that if they took 50s. as the rating value, as they were bound to by the Act, they would have to raise all the rest of the land in proportion. In fact, the tendency is in the case of ordinary agricultural lands for farmers mutually to keep swelling the list of deductions, and to keep reducing the rateable value.? Of course in theory it makes no difference whether the rateable value of property be fixed at a high or low figure, so long as all fare alike; if a rate of £100 has to be levied in a parish on two landowners who own land of the same value, they must each pay £50 whether their land be rated at £5,000 or £50,000; the point is that in the case of clerical tithe all have not fared alike, for while the rateable value of land and houses is uncertain, and at any rate in the country probably at least one-third below its true value, yet since the Commutation Act, the parson's tithe is a fixed sum, its value is known, no rough and ready deductions from it can be claimed.
1 Dalton's County Justice, 1842, says : “Every clergyman is to be rated for his glebe and tithe ” on the ground that the Act mentions every occupier of tithe, which is what the Act does not.
In practice some unions have allowed deductions. It was stated before the Royal Commission that the Dunmow Guardians have for twenty years allowed 20 to 25 per cent. off to represent all charges, though it was admitted that this abatement was not legal.
But such allowances have not in practice been at all general, and in the words of Mr. De Bock Porter, the well-known Secretary to the Ecclesiastical Commissioners, tithes are rated "pretty well up to the hilt."' 4
(2). The legal inequality is this : Some small deductions have always been allowed in order to ascertain the true rateable value of the tithe rent-charge, but the tendency of the Courts for the
1 Evidence of Rev. E. F. Gepp, 1898. Comm. on Loc. Tax., Vol. I. of Evidence,
2 This under-assessment of agricultural land as compared with tithe was fully admitted by Mr. Asquith in the House of Commons, Times, June 28, p. 6.
3 Mr. Peterson advocated 45 to 50 per cent. deduction, Mr. Boscawen 30 per cent. See Mr. Gepp's Evidence (Q. 8553). The legislature itself apparently has felt the system of reductions to be reasonable, and in the Public Health Act, 1875, restricted for the purposes of that Act the rateable value of tithe to one quarter of its net annual value (Sec. 211 (1), b). The Baths and Washhouses Act made a similar reduction.
* Comm. on Loc. Tax., 1898 (Q. 10,980).