Imágenes de páginas
PDF
EPUB

were of a mixed character, do you now contend that in this statute they are spoken of as 'meer spiritual' ?" My answer is, that at the time of this statute they were wholly so regarded, and no remedy in the temporal courts could be had respecting them. It was not till 1548 that the temporal courts received authority by statute 2, 3, Edward VI., c. 13, which they had not at common law, (see 32 Henry VIII., c. 7, in the preamble,) to interfere in the matter; and then only by imposing a heavy fine by way of punishment for not setting them out, not by proceeding to recover the tithes themselves. To this hour, tithes themselves cannot be recovered in the temporal courts; that being, as Gibson observes, p. 697, "out of the jurisdiction of those courts, and wholly in the spiritual court;" or, to use Blackstone's words, III. 89, "one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompence for them, by the ancient law. . . . . But no suit [lies] in the temporal courts for the subtraction of tithes themselves.”

*

Mr. Goode says, in reference to this statute, "that it is evidently a misnomer to call it [i. e., the duty of making religious offerings to the house of God for the maintenance of religious worship,] a thing merely spiritual." I can only say, I am surprised to hear him say so. He says also, "if it were a thing purely and exclusively spiritual, no doubt the common-law courts would not interfere to enforce it." We have seen already the common-law courts under Lord Kenyon and Chief Justice Abbott peremptorily refuse to interfere to enforce the making a rate, on the distinct ground alleged, that it is a "subject purely of ecclesiastical jurisdiction." I must add one word in explanation of an expression in my pamphlet on Church Rates which Mr. Goode has misunderstood. When I said that, "Rates up to this hour are a voluntary contribution on the part of the parish, to which if they refuse there is no earthly power to compel them;" (the italics are in the original;) my meaning was, that they could not be wrung from them by earthly violence, that no distress could issue against their goods, as in the case of any common-law obligation strictly so called; and I have yet to learn that any such power of distraint exists, except in the cases provided for by the act of 1813. I wrote that sentence under an impression that the saving clause in § 7 of the act of 1813, 53 Geo. III. c. 127, which in other cases reserved to persons demanding the rates power to "proceed to the recovery of their demand according to due course of law, AS HERETOFORE USED AND ACCUSTOMED, had preserved to the bishops the power of excommunication in this case, which the beginning of the act apparently had denied them. I gather from Dr. Nicholls' pamphlet, p. 49, that such is not the case, and that only sentence of contumacy can issue, which, though exercised indeed by a spiritual court, I admit can hardly be termed an appeal to conscience. But besides this, I believe, and still believe, that the most simple and summary mode for the bishops to adopt is by interdict of religious offices in the place,-a remedy which, if it were generally known that

Origin of Church Rates, p. 31.

the bishops could exercise it, and were prepared to do so in case of
necessity, would, I believe, operate so strongly and effectually by way
of prevention as to obviate the necessity of its ever actually being had
recourse to. The attorney-general is pleased to call this " "impos-
sible;" but as he cites no authority for such an assertion, and as,
first, it is not denied that the bishops had this power before the Re-
formation,-nor, secondly, that the statute of 25 Hen. VIII. c. 19,
has secured to them the authority they then had, which is not con-
trariant to the laws of the realm and the prerogative of the crown,—
and as, thirdly, it is not pretended that any subsequent act has abro-
gated it,-nor, lastly, does it appear how the spiritual punishment of a
purely spiritual offence be construed as against the prerogative of the
crown, I believe it to be perfectly in the power of the bishops, if
they think fit to exercise it. This I think Mr. Goode must admit to
be an appeal to conscience, and not an exercise of earthly power.
With much respect to him, I am, Sir, yours very faithfully,
ARTHUR PERCEVAL.

East Horsley, Aug. 5, 1838.

RATING OF TITHES.

SIR,-In Mr. Shaw Lefevre's Bill for the Rating of Tithes, there appears to me a principle which has not been observed.

If we take the clergyman in the light of a farmer, then when the farmer is rated upon the amount of rent, it is the same thing as if he were rated on the amount of profit, for they are, on rough calculations, counted equal. Now the rent does not go into his own pocket, but only the profit; he is therefore, in fact, rated upon his whole income, in the same way as the clergyman would be were he rated according to the actual value of his tithe. So far well; but then there is another class of men living upon the produce of the farm-viz., the landowners, who do not seem to be taken into the account. These, upon this principle, pay no rates at all, but receive the net profit clear into their pocket. Now, were the farms of a fixed annual value, this tax would press heavily on the one class and not at all on the other; but because there is not a fixed annual value there is a mutual accommodation, and the rent is proportionably reduced, so that, in point of fact, each pays his proportion of the rate, or is rated upon half his profit. Now, were a landlord to demand a rent so high that no farmer could pay it, and manage to live upon the farm, it is perfectly clear that no farmer would take it, and the landlord would be reduced to the necessity of cultivating it himself; and he would then take into his own pocket both the rent and the farmer's profit, and he would be rated upon one of these-i. e., upon half his whole income; one half of the net produce would be the remuneration for his labour as farmer, the other half his remuneration as landlord.

Now, when a clergyman took his tithes in kind, he was then in the place both of landlord and farmer, because he had a right to the

[ocr errors]

whole produce of his living. If he took a composition in lieu thereof, then, as in case of landlord and tenant, there was a mutual understanding with regard to rates, so that practically it fell equally on both; if the farmer paid them, he paid the clergyman a less composition, if the clergyman paid them, the farmer paid a larger composition. But supposing the rates to amount, as they have done in some cases, to twenty shillings in the pound, then the tenant would have to pay as rates an amount equal to the rent, which, if rent and profit are estimated equally, would be the sum total of his own share of the produce, leaving him without one shilling for maintenance. Would he think this right, even were he bound to it by lease? Would he not apply for a reduction of rent? And would he not be thought to have a very harsh landlord were this reduction refused? A portion of the burden would undoubtedly be thrown upon the landlord, and the tenant proportionably relieved; so that his rental (rack-rent) is necessarily fluctuating. Now this is not the case with the clergyman; his is a fixed income. He is supposed to have the net produce of his living to apply to his own use; and if he be rated at twenty shillings in the pound, he has no landlord to fall back upon, to whom he pays a rent equal to the amount of his living, and whom he might ask to let him have back again a portion of that rent for a maintenance, his own being swallowed up by the rates; so that, to place them in a fair position, he should be accounted as occupying tithes to double the amount of his living; so that, if his rates are twenty shillings in the pound, and his living happens to be, for instance, £500 a year, he should be rated as a farmer would be, the produce of whose farm was a thousand, but who paid £500 a year rent to his landlord, and who, if his rates were to be twenty shillings in the pound, would pay £500 a year rates, and then immediately would apply to his landlord for a reduction of rent, and would, in equity, have the matter arranged, so that each should receive half of the remainder-i. e., £250 a year; and thus the farmer, who properly ought to receive £500 a year reward of his labour, would really be receiving only £250. So with the clergyman; he receives, on this supposition, £500 a year remuneration for his services as minister, and he pays £500 a year to his landlord, and his rates amount to twenty shillings in the pound, which entirely swallow up his £500 a year: why should he not then equally with the farmer be entitled to fall back upon his supposed landlord, and demand a reduction of his supposed rent, and so accommodate matters, that the remaining profits should be equally divided according to the law of equity, and thus he also receive his £250 a year?

The farmer, were there no rates, would receive £500, the landlord £500, the clergyman £500; the farmer, were the rates twenty shillings in the pound, would receive £250, the landlord £250, the clergyman £250. I have chosen the amount of rates at twenty shillings in the pound as the clearest examples, though the principle holds good in all cases.

Now I do really think that much of the plausibility of Mr. Shaw Lefevre's bill rests upon the erroneous hypothesis of a fixed rent being paid by the farmer, calculated before there was any possibility of a

20

r+40

rate ever being wanted. But we know that, practically, no rent is fixed, or at least agreed upon, without the rate being previously considered in the outgoings, and the profit to be divided not reckoned until that deduction is made; and even then, after this deduction, the rate is only apportioned to half of this remainder; so that, in point of equity, the rating of the tithes should be deducted before it is calculated upon the half of the remainder. This will be truly represented under the form, x = where a represents the amount of tithes, r the number of shillings in the pound at which the rate is made, and æ the actual amount of rate paid. The result of this is, x = a ×, If r should 20, or the rate be twenty shillings in the pound, then X= , or the rate is one-third of the whole, which it would be in the case of a farm where the rate is made at twenty shillings on the half produce, and deducted before that half is calculated. It will be seen that those deductions for outgoings, which should be made from the gross amount of the clergyman's income, are not here specified; but respecting these there can scarcely be a question, and my method of calculation refers only to the net income of the clergyman after all necessary outgoings, save and except the rate, have been made; so that I believe I arrive at the same result with those who have maturely considered the subject. E. J.

PAROCHIAL ASSESSMENTS.

SIR,-In consequence of the alteration in the law respecting parochial assessments, considerable excitement prevails throughout the whole country as to the mode in which different kinds of property are to be rated in the parish books, and what proportion their respective assessments are to bear to each other. It certainly must be allowed by all parties, that every species of property ought to be rated according to its full relative value, so that if the poor-rates were to go on increasing, the holders of each might be ruined at the same time. And in order to have a uniform mode of rating different properties, and an equal assessment on all, and, at the same time, clearly to shew that such equal assessment is laid upon the full relative value of each property, the following plan seems to me worthy of consideration. We may fairly, I presume, hold it to be a fact, that the real value of any species of property is to be judged of by the sum it will fetch in the market, by the number of years' purchase at which it may be obtained. In the purchase of landed property, about 3 per cent. is considered a fair average return upon capital so invested. We may therefore suppose that the rack-rent of any estate represents 3 per cent. upon the purchase money, or gross value of it. In the purchase of a living, I believe, a return of about 10 per cent. on the purchase money, or gross value of it, is expected; if therefore the tithes of any parish have been commuted for £300 per annum, the purchase money, or gross value of such living, will be £3000. Now, 3 per cent. on £3000, or gross value of the tithes, will bear the same propor

tion to the real value of the living that the rack-rent of any estate does to the real value of such estate; consequently if, as is now contended, the rack-rent be the fair amount at which to rate such estate, such living of £300 per annum ought to be rated at £90 per annum. The same rule will apply to all property, houses, factories, &c. House property is worth, say fifteen years' purchase; consequently, a house which lets at £100 per annum will be worth £1500 as its full value. At 3 per cent. this house ought to be rated at £45 per annum, to bear an equal proportion of burden with landed property, if such landed property is to be rated at the rack-rent, or 3 per cent. on the value of the capital invested in it. I am not sufficiently acquainted with these matters to know whether I have taken the value of the different properties at a fair price, but the principle thus proposed seemed to afford a good test of real value; and the different average value of different kinds of property in the market is, of course, easily known. I remain, your obedient servant,

A LOVER OF JUSTICE.

RATING OF TITHES.

SIR,-If this letter be worth publishing, let it be so, as you like. cannot perceive that the bill brought in by Mr. Charles Shaw Lefevre gives the protection to the tithe-owner that his brother, the poor law commissioner, suggests; but on the contrary, it makes no allowance to him, and yet exempts other profits.

Shenley.

T. N.

July 18th, 1838.

MY DEAR MR. NEWCOME,-I saw yesterday in the "Times" your letter, as to the hardship of tithes being rated to their value. As you may not have seen Mr. John Lefevre's opinion upon the existing Parochial Assessment Bill, I shall send it to you without further apology. Mr. J. Lefevre is, I believe, a poor-law commissioner. Lord John Russell's letter is in answer to an application from Lord Western, to know how tithes were to be rated. With compliments, yours truly, &c.

"Whitehall, June 14th, 1838. "MY DEAR LORD WESTERN,-I referred your letter of the 11th instant to Mr. John Lefevre, and enclose a memorandum which I have received from him, and which gives a clear exposition of the case. "Charles Lefevre has given notice of a declaratory bill upon the subject, which it is my intention to support. Very truly yours, "J. RUSSELL.”

[ocr errors]

Memorandum on Lord Western's Note of the 11th June, 1838.

"The doctrine to which Lord Western alludes has arisen from the combined operation of the Parochial Assessment Act, and of the decision in Rex v. Joddrell.

"That act, which prescribes that all hereditaments are to be assessed to the poor-rate at their respective value, contains this proviso:-'Nothing herein contained shall be construed to alter or affect the principles, or different relative liabilities (if any), according to which different kinds of hereditaments are now by law rateable.' 2 R

VOL. XIV.-Sept. 1838.

« AnteriorContinuar »