It is a curious illustration of the superficial way in which practical questions are dealt with, in our time, that it is often said that, before certain Statutes were passed, there was no efficient mode of recovering Parish Rates. The fact, on the contrary, is, that the very instance which forms the Leading Case on the subject of Parish Rates, arose upon, and states the facts as to, the application of the simplest means of recovering rates that can be devised,--the means sanctioned by Common Law long before any Statute; and which are much simpler and less expensive, and safer because involving more responsibility, than any means devised by Statute. This remedy is by distress, under order of Vestry openly made. It is, practically, the same as that which different Statutes have merely re-declared, but accompanied with many formalities and the general lessening of the sense of responsibility, in reference to some particular rates. But it is a Common-Law remedy, to sanction which no statute is needed. It is applicable to the case of any rate which the Parish may choose to make, for any purpose of Common Good.‡

The incidents to every Parish Rate are, then, three: the making, assessing, and levying. The making the rate, involves the consideration of whether or not such a rate ought to be made at all; and, if determined on, what is the right amount needed. The assessing, involves the fixing every man's "scot," by the equal division, "pro rata," among all, of the burthen of the rate thus made.§ The levying, is the gathering in of the sums thus assessed.

No rate or tax has the characters that every just tax ought

Into this extraordinary error so usually careful and judicious a writer as Mr. Rogers falls. See his 'Ecclesiastical Law,' p. 226. The Poor Law Commissioners, in whom, as they set up for infallible, it is far less excusable, show, more strikingly, the same ignorance, in their 'Report on Local Taxation' of 1843; a document put forth with the object of getting up a case for the monstrous proposition, of bringing all Local Taxation under the blighting influence of their bureaucratic control.

+ See before, p. 178, and note. See also the case itself stated on p. 584. In the case of outgoing and incoming tenants, the proportion of rate must be equally adjusted. See 17 Geo. II. c. 38, s. 12.

§ The word " assessment" is sometimes used in the sense of stated rental. This is incorrect. The rental stated (on whatever basis it be dealt with, as before touched on) is merely the material upon which the actual assessment of the rate is founded. The assessment is the sum fixed as that on which each has to pay his ratal.

PAYMENT, HOW ENFORCED.

565

to have, unless all these steps are followed.* Without them, there is the door opened to every fraud, and there is the necessary presence of ignorance and delusion. It is thus with all those rates which are directed, by several modern Statutes, to be paid out of the Poor-Rate; a point which will be further alluded to in treating of that rate.

Every rate thus needs all care and consideration, not only before it is made, but in the way in which it is assessed. And so much, and properly, is it presumed that these will always be given to this responsible task, that a rate once made cannot be abandoned ;† nor can more than one rate be made for the same thing, and to run during the same time. This strictness is obviously necessary to the sense of certainty in local taxation.

As a general rule, no rate can be retrospective: that is, no Officer is justified in first spending money, or contracting an obligation, and then asking its reimbursement. This rule is obviously essential to the maintenance of actual responsibility.§

It must be well understood that the rates which will now be separately named, do not include all that are made by Parishes. The more usual ones only are taken. In the illustrations already given, other rates have been mentioned, in addition to those that will be here specified; and it has been shown that the matter of what rates shall be made, is one entirely in the hands of the Parish.

* Not necessarily, all taken by the primary parties. The making of a rate, may, in some matters, as County-rate, Amerciament, or National taxes, be properly settled by Representatives, or by a judicial act; and the assessment in gross, on Parishes, may be made by the same authority, on a sound datum and fixed basis. But the individual assessments in each parish, and the collection, should always be local. It used to be thus, even in cases of imperial taxation and it is essential to a true consciousness of the part each man has in the obligations and responsibilities of Society, that it should still be so. It would involve no inconvenience or expense whatever. The contrary system is a mere bureaucratic contrivance; but it is an exceedingly mischievous and demoralizing one.

+ R. v. Cambridge, 2 A. & E. 370; R. v. Fouch, 2 Q. B. 308.

R. v. Fordham, 11 A. & E. 73.

§ Tawney's case, 2 Lord Raymond, 1009; R. v. Haworth (Bradford), 12 East, 556; and see before, pp. 102, 159, and after, p. 595.

The Statute 10 Anne, c. 11, s. 24, expressly speaks of Poor's Rates, Highway-Rates, Church-Rates, "and other Parish Rates."

SECTION I.

HIGHWAY RATE,

AND ASSESSMENTS UNDER THE NUISANCES' REMOVAL ACT, 1855.

**

THE Highway Rate is a rate upon property. It is, in one form or another, the oldest charge on the land, and concerns the oldest Parish obligations, in England. It has, in later times, been thrown, to a large extent, off the land on to houses. The convenience of intercommunication is certainly as important to houses as it is to land. The growth of towns and the desirableness of dwellings clearly depend, usually, on the facilities of intercommunication.†

This is the rate whose antiquity and custom are so well known, that when first, on the failure of parsons to fulfil their obligations, it was sought to sustain a Church-Rate made by the Parish, this was done by showing the analogy of such a Rate to a Highway-Rate.

This rate is now made, assessed, and levied, by the Highway Surveyors, the openly elected officers of the Parish, whether individuals or a Board. They are bound to assess all property, without favour or exception. The assessment on the rate thus made, must be signed by the Surveyors. If there is a Board, three members, at the least, must sign it. Two justices are then bound (they have no discretion in the matter) to add their signatures, as the definitive authentication of that as the true rate. This is what is called the 'allowance.' The rate is then

* See before, pp. 104, 469, on the trinoda necessitas.

+ The Highway Rate is, in part, a commutation for personal service; to which, the same as to military service, all were originally bound. This has been illustrated in quotations from Steeple Ashton records. The personal service nominally continued, as to Highways, under the name of Statute Duty, until the present Highway Act was passed, in 1835. It was regularly compounded for however, on what were called "Composition days" (see before, p. 207). The whole is now commuted to a Rate. A money rate was always, however, made when any new road was to be made, or other special work needed doing.

Before, pp. 150 and 561.

HOW MADE: NOTICE: APPEAL.

567

published, by a notice of it being fixed on the doors of all churches and chapels, and other usual places in the parish. This must be done forthwith. If the rate be not thus published by the next Sunday after it has been allowed, it will be a nullity. As the Rate is not made in open Vestry, after Notice of the intention to ask it, this Publication is necessary as a substitute, though a very imperfect one, for that full knowledge of the rate which such Notice and open Vestry would otherwise give.

As soon as the rate has been made and published, as many small Notice-papers should be printed as there are ratepayers in the Parish. These should state, in print, the amount in the pound, and the date, of the rate.* Each one should then be filled up with the name of one ratepayer, and the amount of his assessment; and the amount of rate due from him in respect of that assessment: and a day,-left blank in the print, and filled up, to suit convenience, in ink,-should be named, on which payment will be called for. One of these should then be left at every House in the Parish. It is usual to give about

a week's notice.

In order to help them in assessing the rate, the Surveyors have the right to inspect the Poor-Rate Books, and to make any copies therefrom, either of the whole or of any part. But they are not at all bound by the particulars in the Poor-Rate Books. On the contrary, there may be compoundings of PoorRates which cannot be made of Highway-Rates. What they are bound to do is, to make a fair, equal, and true assessment upon all. The Vestry is bound to see that this is done.

Any person thinking himself aggrieved by any HighwayRate, may, besides the general appeal to the Vestry, or the Assessment Committee, as already named, appeal to the justices, at quarter sessions. For this purpose, he must give notice to the Surveyors, within fourteen days after the rate is made, of his intention to appeal, with the grounds of his appeal; and must find sureties to try the appeal.†

If there have been any errors in the rate as assessed, the Surveyor can correct them, with the assent of the justices at a

* That is, the date of the making,-not of the allowance. The "allowance" gives no force or validity to the rate; it is merely a matter of form. + 5 & 6 Wm. IV. c. 50, s. 105; the provisions of 41 Geo. III. c. 23, as to Poor-Rates, are, by s. 106, made applicable in all appeals against Highway-Rates. See before, p. 562, as to the general appeal.

special sessions for the Highways; that is, subject to the neces sity of producing proof that such alterations ought to be made.

Wherever Overseers of the Poor have powers, under any local act, to compound for rates with landlords, the Surveyors have like powers. This clearly does not extend, therefore, to the powers of compounding given by any general Act, such as will be presently noticed to exist in reference to the Poor-Rate. All such compounding is illegal in the case of Highway-Rates, except in the case of houses of a rateable value of less than £6; and then only with the assent of the Vestry.t

No Highway-Rate can be made of more than tenpence in the pound at one time; nor can rates be made to a greater amount, in the whole, than two shillings and sixpence in the pound in one year, unless by consent of four-fifths of the inhabitants, assembled in a Vestry specially summoned for that purpose, after ten days' notice given by the Surveyors themselves.‡

Special additional rates may, however, be made, by the Highway Surveyor, to meet charges for compensation for land taken to widen the Highways, or to make fresh ones.§ The same power applies in case of legal expenses properly incurred by the Surveyor, which he has not otherwise funds to discharge.||

There cannot be two rates made and running at the same time; though one may, and in practice generally must, be made before the preceding one is entirely got in and wound up.¶

Where Parishes join together into a District for the management of the Highways, each one still appoints a person to make and levy its own separate rate. It is his duty to pay over such rate to the District Surveyor. He is, indeed, much the same as the old "Assistant Surveyor."**

The Surveyor has the same powers and remedies for levying, and if necessary enforcing payment of, the Highway-Rates, as exist in case of the Poor-Rates; that is to say, by warrant, distress, and sale.tt A demand, after the Notice above named, must always be made, before a warrant can be applied for. The warrant is usually granted after a summons; in answer to which * 5 & 6 Wm. IV. c. 50, s. 30. + Before, p. 480; after, p. 578. § Ib. s. 82.

5 & 6 Wm. IV. c. 50, s. 29. Ib. s. 111.

** See before, pp. 110, 245, 246.

TR. v. Fordham, 11 A. & E. 73.

++ As to Collectors of Highway-Rate, see before, p. 179. As to division of rate between outgoing and incoming tenant, see before, p. 564, note ‡.