The Legal Position of the Clergy

by Philip Vernon Smith

[18]. Under the Tithe Act, 1836,[370] and various amending Acts, a tithe commutation rentcharge has now been substituted for all the ancient tithes, except tithes of fish or of fishing, personal tithes (other than the tithes of mills), mineral tithes, payments instead of tithes within the City of London, permanent rentcharges or other payments in lieu of tithes calculated on the rent or value of houses or lands in a city or town under a custom or private Act, and tithes commuted or extinguished under a previous Act. And any of the excepted tithes and payments, as well as Easter offerings, mortuaries, and surplice fees, could be brought within the operation of the Acts by special provisions inserted in the parochial agreements framed under the Acts and approved by the Tithe Commissioners.[371] Where the rectory is impropriate and there is a vicarage, the tithe commutation rentcharge payable to the rector has been assessed in lieu of the rectorial or great tithes, namely, those on corn, hay and wood, and the rentcharge payable to the vicar has been assessed in lieu of the vicarial or small tithes, those on fruits, herbs, live stock, poultry, milk, cheese, and eggs. Under the earlier Acts an extraordinary tithe rentcharge was leviable on lands for the time being cultivated as hop gardens, orchards, fruit plantations, and market gardens; but this special rentcharge has since been abolished, the lands which had been in practice liable to it having been made liable to a fixed additional rentcharge instead.[372] The ordinary tithe rentcharge varies with the average prices of wheat, barley, and oats during the preceding seven years. It was originally assessed on the footing that £33, 6s. 8d. would buy 94.96 bushels of wheat, or 168.42 bushels of barley, or 242.42 bushels of oats; so that £100 of rentcharge was equivalent to those amounts of the three grains. The actual amount of £100 nominal rentcharge in any year is accordingly the sum which would buy those amounts of the three grains at the septennial average prices published in the London Gazette at the beginning of the year.[373]

[19]. Tithe commutation rentcharge is payable half-yearly by the owner of the land on which it is assessed. If it is in arrear for more than three months, it may be recovered on application to the county court, (a) if the owner is in occupation of the land, by distress, or, if there is no sufficient distress, by proceedings to obtain possession of the land under section 82 of the Tithe Act, 1836, and (b) in other cases, by the appointment of a receiver of the rents and profits of the land.[374] Special facilities are given for the recovery of tithe rentcharge payable in respect of land in the hands of a railway company which is in arrear for twenty-one days or upwards, by distress upon the goods of the company on any part of its line.[375]

[20]. The dues payable to the clergy are of two kinds: (i.) ordinary dues and offerings, and (ii.) dues or fees payable for special services or special concessions. Both kinds vary considerably by law or custom in different places, and, as regards the former, an Act of 1548 provides that all persons who by the laws or customs of the realm ought so to do, shall yearly pay their offerings to the parson or vicar of the parish in which they dwell at the accustomed four offering days, or in default thereof at the next following Easter. Generally speaking, Easter offerings are the only offerings of this description which are still payable.[376] They are enjoined by the rubric at the end of the Communion Office and are due of right, and are recoverable under the Small Tithes Recovery Act, 1696,[377] before two justices, subject to an appeal to quarter sessions. Their legal amount, in the absence of custom to the contrary, is twopence per head, or, in London, fourpence per house.[378] But these sums were fixed when the value of money and the wealth of the country were very different from what they are at present; and it is reasonable that voluntary Easter offerings should now be made on quite another scale. The vicar of a new ecclesiastical parish has the same right to Easter offerings as the incumbent of the ancient parish out of which it was carved.[379]

[21]. Mortuaries or offerings at the time of a person's death are due in certain places by custom, and, where so due, are recoverable in the ecclesiastical courts. But by an Act of 1529, they were limited to 10s. as the maximum and to small amounts where the deceased died worth less than £40 in movable goods, none being payable if the deceased was not a householder and worth at least ten marks in movable goods, and a penalty was attached to demanding an illegal amount.[380]

[22]. Dues or fees payable for special services or concessions have already been mentioned in connection with churchings, marriages and burials, including in the last mentioned category those payable for the funeral itself, for the grave, and for any tombstone or monument to be erected upon it.[381]

[23]. In some cases the incumbent's stipend depends wholly or in part upon pew rents. They can only legally be taken where authorised by a special or general Act of Parliament. In some churches they have been sanctioned by a special Act, which prescribes their application, and the proportion (if any) which shall go towards the incumbent's stipend. They are also sanctioned in certain cases by the Church Building Acts and New Parishes Acts. Where pew rents are fixed under these Acts, the incumbent is entitled to such portion of them as may be settled in the manner therein prescribed;[382] and he can recover that portion from the churchwardens by an action at law.[383] An incumbent, who has a vote for a parliamentary borough as a resident therein, and who receives for his own use part of the pew rents of the church, which is also situate in the borough, but which is his freehold, has a parliamentary vote for the county as a freeholder, since he does not occupy the church within the meaning of 2 & 3 Will. 4, c. 45, s. 24.[384]

[24]. The incumbents of certain ancient benefices above the yearly value of £50 are liable to the payment to Queen Anne's Bounty of first fruits in the first year of their incumbency and tenths in succeeding years. The first fruits are the amount of one year's value of the benefice as recorded in the valor beneficiorum or King's Books compiled in the sixteenth century, and the tenths are one-tenth of the same amount. They were originally paid to the Pope, and were annexed by Henry VIII. to the Crown, until Queen Anne bestowed them on the Bounty which bears her name, to form a fund for the augmentation of poor livings. Where they are payable, first fruits are due three months after admission to the benefice, and tenths annually at Christmas. An incumbent is only chargeable with the whole of the first fruits if he remains incumbent at the end of two years from the occurrence of the vacancy which he was appointed to fill. He is liable to none, or to one-fourth, one-half or three-fourths, if he dies or is removed within the first, second, third, or fourth half-year after that event.[385] Two Acts passed in 1706 and 1707[386] discharged from the payment of first fruits and tenths all benefices which at the time were under the annual value of £50, except that those of which the tenths had been previously granted away by the Crown to other parties were still to continue liable to tenths only. Other exemptions have been granted in favour of particular benefices at different times; and in 1837, out of 10,498 benefices with and without cure of souls, only 4898 remained liable to tenths, 4500 of that number being also liable to first fruits.[387]

[25]. Income or property tax is payable by an incumbent under schedule (A) in respect of his house of residence, glebe lands, and tithe rentcharge.[388] In respect of any landed property (other than a house of residence) actually occupied by him, income tax is also payable on one-third of its annual value, except that if he occupies it for the sole purpose of husbandry and can show that his profits fell short of that one-third, the tax is payable on the actual amount of the profits.[389] The tax is also payable by him in respect of all other stipend, fees, perquisites and profits accruing to him by reason of his incumbency. But in estimating these a clergyman or other minister of religion may deduct money paid and expenses incurred wholly, exclusively, and necessarily in the performance of his ministerial duties. In two Scotch cases these deductions were held to include the expense of visiting members of his congregation, attending church meetings enjoined on him as part of his duty, outlay on stationery, and communion expenses; but no deduction was allowed in respect of part of the manse used as an office for his clerical business, or for the cost of books or for a voluntary contribution made by him towards the stipend of an assistant minister.[390] There is sometimes a difficulty in determining whether sums of money which are granted or given to a clergyman, but are not part of his legal or recognised stipend, are taxable perquisites or profits accruing to him by reason of his office or not. The true test, namely, whether the gift is made to him in respect of his office or is personal to himself, is not easy to apply in particular instances. In another Scotch case it was held that a voluntary contribution made by parishioners to their minister, and received by him in respect of the discharge of the duties of his office, was taxable.[391] A grant to a curate by the Curates' Augmentation Fund in recognition of upwards of fifteen years' faithful service is not taxable, not being made in respect of performing present duties. But a grant to an incumbent from the Queen Victoria Clergy Fund, being made in respect of the poverty of his benefice, was decided by the Court of Appeal to be taxable, although the Divisional Court below had held the contrary.[392]