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Five Acts of the 19th Century

These five acts of parliament are important in our story for they shaped the work of the land surveyor for almost fifty years. They may seem dry and uninteresting, but in their own way they revolutionised the countryside and they were important to Martin in his role as land surveyor. They increased their work load, made many of them rich and probably stimulated the drive for professional recognition. All of the acts have two things in common. They paved the way for uniform standards in national life and at the same time abolished the customary practices by which the lives of many had been ordered and governed. The Tithe Commutation Act was seen by many in the Anglican church as yet another attack on their dominance in national life coming as it did after the Catholic Relief Act of 1829.

Inclosure Consolidation Act being ‘An Act for consolidating in one Act certain provisions usually inserted in Acts of Inclosure; and for facilitating the Mode of proving the several Facts usually required on the passing of such Acts’

1801 41 Geo.3 c.109 [1]

The background to inclosure will be discussed later but suffice it to say that during the 18th and 19th centuries no inclosure was lawful unless it had been conducted under the authority of a private act of parliament. The 18th century acts all had different terms and conditions attached to them and the conduct of the inclosure commissioners was often variable. With the rate of inclosure rising to a crescendo towards the end of the 18th century it was felt that what we would today call ‘best practice’ should be enshrined in a single law. After this act there was a single common framework to work to. Those seeking to inclose a parish still had to obtain a private act of parliament to deal with local issues, but included in the act there was a clause that bound the commissioners to the 1801 act. For example at Rampisham in 1813 the act stipulated the commissioners act under the “several powers, authorities, directions, and provisions as are expressed in a certain Act of Parliament passed in the forty first year of the Reign of his present majesty intituled “An Act for consolidating in one act certain provisions….” This referred to the Inclosure Consolidation Act.

The act did nothing to address the over all policy, fairness or justice of inclosure, it was intended that parliament should address any unfairness when the private bill was presented to it. It’s main function was to regulate the actions of the inclosure commissioners. As a result few of the forty four clauses in the act had anything to do with the surveyor directly. Indirectly however it affected them greatly, as for the first time the commissioners were required to determine and if necessary fix parish boundaries, a task that would be impossible without the land surveyor.[2]

The act also required commissioners to order a full “Survey, Admeasurement, Plan, and Valuation of the Lands &c. to be inclosed”. Although inclosure commissioners were often land surveyors themselves they could not, under this act, conduct the survey themselves. They had to appoint a surveyor to work under them and both they,and the surveyor had to swear oaths that they had acted fairly and impartially [see Charminster Inclosure].

Inclosure commissioners had long had the right to stop up or divert any pre-existing roads and create new ones. Two types of new road were now defined, Publick [sic] Carriage roads which everyone could use and Private Carriage roads which only the occupiers of the fields were supposed to use. The act now specified the width of these new roads; 30 feet for publick roads, 20 feet for private roads, and required that they be laid out so as to be ‘most commodious to the Publick’. It also required that these roads had to be made by a qualified surveyor and a separate map had to be prepared for public display showing these roads laid out. I am not aware of any of these maps having survived [at least in Dorset]. The wording of the act suggests that it was anticipated that the surveyor of the lands and the surveyor of the roads might be different people although it would appear that John Martin undertook both parts of the work.

Common Field Inclosure Act

1836 6 & 7 Will.4 c.115

This act was important to John Martin as under its terms he was able to inclose Child Okeford [Dorset] and Ditcheat [Somerset] as inclosure commissioner and surveyor. The principle feature of the act was that it allowed the owners of “two thirds in number and value of the common arable fields” to inclose without the need to consult Parliament. If seven- eighths of landowners agreed to inclose it was not even necessary to have a commissioner at all. The only stipulations were that the inclosure had to be more than ten miles from the centre of London and a mile from the centre of a town of 5000 inhabitants. Not hard to do in Dorset. The Act was intended to cover arable lands only but Tate [3 ]noted that it was alleged to have been used to inclose other commonable lands and this seems to be the case as we will see.

Although it does not affect us in our story it is worth mentioning another inclosure act of 1845. This was passed probably to correct abuses of the 1836 act. It required inclosure plans to be submitted to a newly created inclosure commission which examined any proposal to inclose and then reported to parliament. If parliament agreed to the inclosure it could proceed as if an act had been passed even though it had not. John Martin was not involved with any inclosures under the later act.

An Act for the Amendment and Better Administration of the Laws relating to the Poor in England and Wales.

1834 4 & 5 Will. 4 c. 76

The Poor Law Amendment Act [PLAA] was passed in 1834 and at the time it is doubtful that surveyors thought it would affect them greatly: in this they were wrong. Under the original Poor Law act of 1601, care of the poor was passed to the parishes. The Churchwardens and two worthy citizens, known as the “Overseers of the Poor”, were required to levy a ““competent Sums of Money for the support of the poor. This in time would become known as the Poor’s rate.[4]

The 1601 act gave no guidance as to how the Overseers were to assess the ability of the inhabitants or occupiers to pay, except that it was roughly dependent upon the worth of his property. The occupier of valuable property usually had a greater ability to pay than the occupier of a poor property, and he was assessed or rated accordingly. Nor was anything said about collection of the rate. Appeals to Quarter Sessions were provided for, if anyone felt himself aggrieved with any tax or with any act done by the overseers. It thus appears that under the Act of 1601 the overseers did their duty as best they could and in such a way as they saw fit.”[5]

The money they raised was used to provide what was known as outdoor relief, which is to say the poor were looked after within the parish, usually by payment of small amounts of money. The 1834 PLAA changed that; in principle at least if not in practice. It abolished out door relief and providied ‘indoor relief’ instead. Under the new law the poor were to be removed from the parish and confined to workhouses. The old Poor Law act had established ‘Houses of Correction’ and some larger parishes even had workhouses but the vast majority did not.

To make workhouses affordable, parishes were grouped together into ‘unions’ managed by local ‘Boards of Guardians’ and the whole thing overseen by a Poor Law Commission in London. This did not come cheap and the Board of Guardians had to proceed to ascertain and assess the Value of the Property in the several Parishes of such Union rateable to the Relief of the Poor”.

The devil, as ever, is always in the detail and the PLAA had a fatal flaw for all “such Valuation[s] or Assessment[s] shall be made, allowed, published, and recovered in such and the same Manner as Rates for the Relief of the Poor are now by Law made”.[6] In other words the assessment and collection of the Poor Rate was left to the custom of the parish. In theory it should have been simple, each property would have been valued and a percentage of this, perhaps 6d in the pound raised as a rate paid to the overseers. The practice was completely different and the flaw became immediately obvious, for each parish raised the rate in widely different ways.

In the first of many annual reports about the act, the Poor Law Commission stated: The mode of rating is now, like many other parts of the administration of the Poor-Laws, in the highest degree uncertain and capricious.” The Poor Law Commissioners found, “in the first ten parishes named, …… nine different rates of assessment are now in operation, and these vary in the, proportion of one-fifth of the rent or actual value, as assessed at Ashburton, to the full or actual value as assessed at Bath; while at Bridgnorth, a little further on in the Return, it appears that, in the seven parishes of the same town, five different modes of assessment are adopted.”[7] At Southampton the rate was based on a valuation some sixty years old.

This was clearly unsatisfactory and neighbouring parishes, within the same Union, soon realised they were being charged different amounts even though they were of the same rateable value. Something had to be done and that something was a further act of parliament in 1836. Straight away there were implications for land surveyors.

An Act to regulate Parochial Assessments.

1836 6 & 7 Will. 4 c.96

The preamble to the act explains it’s single purpose: “Whereas it is desirable to establish one uniform mode of rating for the relief of the poor throughout England and Wales, and to lessen the cost of appeal against an unfair rate.” In future no poor law rate would be accepted unless it had been made “upon an estimate of the net annual value of the several hereditaments [8 ] rated thereunto; that is to say, of the rent at which the same might reasonably be expected to let from year to year.” [9]

Whilst this might seem simple enough it was to prove a complex business for the net annual value had to be calculated on the “the rent at which the same might reasonably be expected to let from year to year, free from all usual tenants’ rates and taxes, and tithe commutation rent-charge, if any, and deducting therefrom the probable average annual cost of the repairs, insurance, and other expenses, if any, necessary to maintain them in a state to command such rent.”

The Parochial Assessment act posed as many questions as it solved. Compared to valuations under the Tithe Commutation Act, or even an inclosure, valuations under this act were potentially much more difficult. The valuer had not only to assess the rental value on the basis of the previous three years value and then had to take into account not only the considerations mentioned above but a whole raft of complicating factors some of which are can have hardly occurred to those drafting the act.

It might be thought similar properties or land holdings in the same area would have the same value but this was not necessarily the case. Even an apparently simple issue such as the location of the premises could make a difference; for example the distance [in the case of cultivated land] from the township would affect its value. Some properties gradually eroded with use, as in the case of a mine or quarry so their rental values would diminish with time. Cemeteries too caused problems: privately owned cemeteries sometimes sold their plots outright with no annual rent, whereas other plots were leased and an annual rent was due. And what of the land in the cemetery that was yet to be used and had as yet no rental value?

Perhaps the biggest difficulty was the sheer range of properties that fell into the remit of the act. Before the PLAA the overseers had to set a rate but appear to have been under no obligation to have the parish formally valued, indeed there could be considerable resistance to the idea, since a valuation would incur expense. They seem to have done it very much themselves, no doubt accounting for the great variability in custom. The Parochial Assessment Act now required the rate to be set based on the rental income of the property but how were the new Unions to have this assessed?

The act gave no guidance as to when, or under what circumstances a survey or valuation should be made, but it is easy to imagine that faced with a variety of different valuations and assessment methods the Guardians would have little option but to order a valuation of the parishes in the Union according to the principles laid down in the PAA. Even this was not simple for the process was bureaucratic to say the least.

In order to avoid expense the Poor Law Unions were not allowed to order a valuation without first gaining the authorisation of the Poor Law Commission in London. The Union had to write to the Commission using a standard letter:

The Board of Guardians of the Union, in the County of ####, are of opinion that a fair and correct estimate of the rateable property in the Parish of #### for the purposes of the Act of 6 & 7 Will. 4, c. 96, commonly called (the Parochial Assessments’ Act,) can not be made without a new valuation…..”.[10]

Swayed by such comprehensive and detailed arguments the Commissioners could, if “they shall see fit,.. order a survey, with or without a map or plan, on such scale as they shall think fit.” It was then left to the Board of Guardians locally to appoint the surveyor, neither the Commission in London or the local parish officers having a say in the matter. That at least was the theory but the practice may have been different for as we shall see in at least one parish, Child Okeford, John Martin was appointed to value the parish directly by the Vestry without any reference to the Guardians.

Valuations under the PAA were carried out less frequently than under the tithe commutation. Kain and Oliver estimated that some four thousand parishes were surveyed under the act by 1843 but only ninety maps made for this purpose have survived [11] none of which are in Dorset. Immediately after the passing of the PLAA the newly appointed Poor Law Commissioners seemed to be unaware of the problems that would await them. Their first annual report, published in 1835, bemoaned the wide variation in methods of assessment to the poor rate but there is no mention of surveys or valuations or maps. The PAA determined how the valuation was to be made but it had introduced a complicating factor in the form of the map. At first this did not appear to much of a problem because “almost simultaneously with these valuations, the commutation of tithes has taken place in different parishes; and it became an object with the commissioners to make one survey and map answer the purposes of the commutation of the tithes and the parochial assessment”[12]

Unfortunately for the Poor Law Commisioners the act on which their hopes were dependent was to prove contentious and was also flawed. It was not precisely the answer to their prayers.

Tithe Commutation Act

1836 6 & 7 Will 4 c 71

Each year English and Welsh farmers were required to give a tenth of their annual produce to the rector of their parish. The rector might have been the incumbent of the parish, a distant Oxford or Cambridge college, a lay person or an officer of the local cathedral. Wheat, barley, oats, lambs, pigs, calves, hay, hops, milk, wood, whatever the produce was a tenth had to be given away. This was not an option – it was the law, vigorously enforced by the church.

We will consider the origin of the tithe in due course but the Tithe Commutation Act [TCA] abolished it. In a strictly limited, the act achieved this;no longer would the farmer have to part with his produce instead he would have to make a monetary payment instead. The act was important as it seemed to emphasis the ascendency of the secular state over what had traditionally been regarded as purely ecclesiastical affairs. A few slender references in the Old Testament had been taken to indicate that payment of the tithe was God’s law. As it was a divine law the Churchinsisted that legal cases concerning the tithe should be tried in their own, Ecclesiastical courts. As the church defined what constituted the tithe and how it should be paid it was inevitable that legal cases about the tithe would abound. Over the centuries there were tens if not hundreds of thousands of cases concerning the tithe and the church was both judge and jury in most cases.

With time this power diminished and many more cases began to be heard in the King’s courts, but not all. The new act swept away all previous methods of paying the tithe, it stopped dead legal cases over what or was not included in the tithe and it replaced all customary ways of paying the tithe with a single monetary payment known as the tithe rent-charge. The administration and oversight of the new system lay solely in the hands of a government appointed, secular, commission. It is true that one of the three Commisioners appointed at the start was a Cleric but he was appointed more for his expertise in tithe matters as the fact he was a member of the Anglican Church. Here was an extension of secular power over the affairs of the church which was bitterly resented.

The act did not consider the virtues or otherwise of having a Church that was financially supported by only one sector in society – the landowners. The act was only concerned with replacing one form of property, the tithe with another – a rent. The tithe was a form of property and no government, except communist ones, have ever viewed the abolition of private property with anything but dismay. The tithe could not be simply be abolished for this would abolish a form of property but it was deemed acceptable to substitute one form of property with another to be known as the rent-charge.

The actual value of the tithe that had been paid in the seven years before Christmas 1835 was calculated, the average was then taken and this amount of money constituted the new rent-charge.

This amount had to be agreed between the landowners and the rector but once it had a third party, known as the apportioner, had to identify each piece of titheable land in the parish and then apportion a part of the rent-charge to it; the amount apportioned being determined by the value of the land which in turn depended on the area of the land and its quality.

On publication of the act the land surveyors must have been rubbing their hands in glee for it was ideally suited to their work. Many were used to valuing tithes and importantly the act required that a map of the parish be produced so that each piece of titheable land could be identified. Who better to act as apportioners if not land surveyors? Most would have seen a profitable future ahead. Implementation of the act got off to a quick start and then rapidly stalled for there was a fundamental flaw in the act and it would take an extraordinary man of genius to see a way through.

Next        Robert Kearsley Dawson

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1 Prior to 1963 Acts of Parliament were referred to by the regnal year and the ‘chapter’ number within the session of parliament. In this case the act was the 109 th act passed in the forty first year of the reign of King George III. Occasionally sessions would cross years so two regnal years would be mentioned.

2 This could only be done with the agreement of the local quarter sessions.

3 The English Village Community and the Enclosure Movements W E Tate 196

4 Martin [and others] used the term ‘ Poor’s Rate’ i.e the rate belonging to the poor.

5 The English System of Real Property Taxation Frank Murdoh Jnr 1935 University of Pennsylvania Law Review.

6 An Act for the Amendment and Better Administration of the Laws relating to the Poor in England and Wales. 1834. My emphasis.

7 Poor Law Commissioners Report 1834 page no depends on which version you read.

8 Property that can be inherited.

9 The Law of Parochial Assessments by W G Lumley various editions this one from 1844

10 The Law of Parochial Assessments by W G Lumley various editions this one from 1844

11 Maps and the Assessment of Parish Rates in Nineteenth-Century England and Wales Oliver and Kain 2008 published on line Imago Mundi: The International Journal for the History of Cartography

12 The Law of Parochial Assessments by W G Lumley various editions this one from 1844