CHAPTER XVIII
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_THE COMMUTATION ACT OF 1836_[285].
Up to the time that this Act was passed, the tithe-owner claimed in kind the tenth part of the gross produce of the land, without contributing anything towards cultivation or improvement. In fact, the claim retarded both, and the object of the Act was to advance and not to keep back the cultivation and improvement of the land. The tithe was a tax upon labour and capital. The collection of tithes became both unpopular and obnoxious.
“Tithes are a tax,” says Archdeacon Paley, “not only upon industry, but upon that industry which feeds mankind. They operate as a bounty upon pasture. The burden of the whole tax falls upon tillage, that is, upon that precise mode of cultivation which it is the business of the State to relieve and remunerate in preference to every other.”[286]
“The tithe,” says Adam Smith, “is always a great discouragement both to the improvement of the landlords and to the cultivation of the farmers. The one cannot venture to make the most important, which are generally the most expensive, improvements, nor the other to raise the most valuable, which are generally, too, the most expensive, crops, when the Church, which lays out no part of the expense, is to share so very largely in the profit.”[287]
Agricultural depression, during the four years previous to 1836, and the growing discontent of agricultural tithe-payers, demanded a speedy solution of this problem. Statesmen tried to solve it before Lord Russell attempted the task. Lord Althorp tried it in 1833, and again in 1834, but failed on both occasions. His three principal propositions were: (1) To substitute a money payment in lieu of tithes in kind; (2) The rent-charge to bear a fixed proportion to the rent payable on the land; and (3) To redeem the tithe by twenty-five years’ purchase, or the creation of a rent-charge of equal value. The second proposition was the weakest. Any attempt to establish a proportion between the tithe and rent would end in failure, for the two had no similar foundation. Tithe was founded upon produce, but rent was not. Lord Althorp would make tithe to fluctuate with rent, retaining a fixed proportion of rent-charge. In principle it was a tax on capital, and therefore failed.
In 1835, Sir Robert Peel, when Prime Minister, introduced a Bill on the same subject. The principle contained in his Bill was that there should be a fixed money payment in the shape of a corn-rent in lieu of tithes, varying yearly according to the price of the three corns—wheat, barley, and oats; that it should be a voluntary arrangement between the tithe-owner and tithe-payer. The machinery to carry out this Bill was to appoint three Commissioners, viz., two by the Crown, and one by the Archbishop of Canterbury. These Commissioners should appoint Assistant Commissioners. Within a month after he had introduced this Bill, his Government went out of office, on the 8th of April, 1835.
Lord John Russell, a member of Lord Melbourne’s Government which succeeded Sir Robert Peel’s, took up the subject of tithes by introducing a Bill on the 9th of February, 1836. “Tithe,” said his lordship, “was a discouragement to industry, a penalty on skill, a heavy mulct on those who expended the most capital and displayed the greatest skill in the cultivation of the land.” These were true words; and it gives one pleasure to observe that he had the courage to boldly express his opinions. But his boldest statement was that “tithes were the property of the nation.” This remark has again and again been quoted by the opponents of tithes, and it has as often been contradicted by the defenders of tithes.
Lord Russell rejected Lord Althorp’s plan which related to the establishment of a proportion between tithe and rent. He adopted the machinery and some other parts of Sir Robert Peel’s Bill. The principles contained in Lord Russell’s Bill were that the landowner or tenant might agree with the tithe-owner _to commute the tithe_, whether paid by modus or composition or otherwise, _into a corn-rent payable in money and permanent in quantity, but fluctuating yearly in value_, so that in future any improved value given to land would not increase the amount of the rent-charge. The corns were to be wheat, oats, and barley. The base of calculation was to be the average tithe paid for the seven years previous to Christmas, 1835. The arrangement was to be voluntary up to the 1st October, 1838, then compulsory. The Bill was at first but tentative, and was materially changed in its progress through the House.
The Commutation Act made a great change. The tithes were no longer to be paid on the produce or _increase_ of the land, as stated in the Mosaic Law, upon which law the payment of tithes in the Christian Church was founded. Before the passing of the Act, the tithe-owner had to sue the tithe-payer for arrears, but after the Act was passed, he had the power to distrain on the land for arrears, and the Act further empowers the tithe-owner to go on any other land belonging to the same landowner which may be in the same parish to recover the arrears of rent-charge, should the land from which the tithe was due be unable to satisfy his claim and costs. The tithe-owner has a prior claim to the landlord’s.
The following statement will serve as an illustration of Lord Russell’s Act. A money payment was fixed by the Tithe Commissioners on an average of seven years’ payment of tithes. Let this be £100; the third of which, or £33 6_s._ 8_d._, is for wheat, a similar sum for barley, and oats. The average prices of the three corns per bushel for the seven years’ previous to 1835 was—for wheat, 7_s._ 0¼_d._; for barley, 3_s._ 11½_d._; for oats, 2_s._ 9_d._ The tithe-payer has to pay in respect of his £100 rent-charge the price of 94·95 bushels of wheat, 168·42 bushels of barley, and 242·42 bushels of oats. Early in January of every year a duly authorized advertisement is inserted in the _London Gazette_ by order of the Comptroller of Corn, stating the average prices of wheat, barley, and oats for the seven years then next preceding. The serious objection to this plan is that the average prices of the three cereals are calculated on the prices sold to the millers, which included the cost of freight of one or more middlemen, instead of calculating on the prices sold by the farmers. This false system enhances the value of the rent-charge.
Supposing that for any year, say 1885, wheat was advertised in the _London Gazette_ at 5_s._ 1¾_d._ per bushel; barley, 3_s._ 11¾_d._; oats, 2_s._ 8¾_d._, what has the tithe-owner to receive for £100 tithe-rent charge?
He receives (94·95 × 61¾_d._ + 168·42 × 47¾_d._ + 242·42 × 32¼_d._) = £90 10_s._ 3½_d._
The 80th section of the Act says that “any tenant who shall pay any such rent-charge shall be entitled to deduct the amount thereof from the rent payable by him to his landlord, and shall be allowed the same in account with his landlord.” There are few instances in which the tenants deduct the tithes from their rents according to this section. The general practice is that the farmer, in his lease or agreement, agrees to pay the tithes himself to the tithe-owner, and the rent is computed accordingly. The tenant therefore pays the rent-charge for the landlord. If a tenant should take a farm without making any such agreement, then the 80th section comes into force. But in the other case the landlord contracts himself out of the 80th section. There is no doubt that the Legislature in 1836 intended that the landlords should pay the rent-charges, and thus prevent any friction which may occur in the collection between the clergyman and his parishioners. To remove this friction, the Government brought in a Bill in 1890.
In the Commutation Act, although the rent-charge is to be paid by the landlord, yet the tithe-owner cannot bring an action against him for any arrears, but is bound by the act to distrain on the land. The tenant has therefore two landlords. Hence we find in years of agricultural depression that tenants who receive a deduction in the half-year’s rents from their landlord, seek also for a deduction from their second landlord, the tithe-owner. These applications are generally made to parochial incumbents, who prefer making the deduction asked for than run the odium resulting from distraints on the lands of their parishioners. Other tithe-owners, such as the Ecclesiastical Commissioners, impropriators, colleges, schools, etc., will make no deduction whatever, but sternly carry out the provisions of the Act by making distraints on the lands. Similar conduct was pursued before the passing of the Commutation Act. The parochial clergy, in the most sympathetic manner, accepted very low tithes in years of agricultural depression, but the clerical appropriators and all the impropriators strictly exacted every part of their tithes.
When the Commutation Bill was passing through Parliament, it was urged that many landlords were often absent from the country for a considerable time, and therefore if the rent-charges were not paid, the tithe-owners would find it very difficult to get payment from absent landlords, who had no agents in the country. The law was therefore framed to enable the tithe-owners to distrain on the lands for arrears, just in the same manner as the landlords could distrain for arrears of rent. This was the origin of dual landlordism as it appears in the Act.
The rent-charges are liable to parliamentary, parochial, county, and other rates, charges, and assessments, to which the tithes were liable. The great injustice of tithe-rent charges is that they are levied only upon agricultural produce, thus leaving free of such charges the extensive city and town lands. The lands in the vicinity of large cities and towns, which produced a rental £3 per acre, and tithe, 10_s._, when converted to building purposes produce enormous ground-rents, besides a reversion of the house property at the expiration of the leases. In such cases the tithe-owner receives no tithe on the building value. Thus the value of the landlord’s acre is increased one hundredfold, but the tithe is not increased, and thus the growing value of the land leaves no part of it for the support of religion.
Let us take, for example, the enormous house properties in London held by three dukes, viz., Westminster, Portland, and Bedford. They pay but a small amount of rent-charge compared with their rentals.
When the Commutation Act was passed, there was much boasting by the supporters of the Church as to the humility of the clergy who had not petitioned Parliament, or held any meetings to protest against the Bill while passing through Parliament. There was good reason for such silent acquiescence. The Church made a good bargain under the circumstances. The expenses of collecting the tithes in kind sometimes reached 50 per cent, of the gross value. The tithe-owner is now relieved of all this expense and trouble, and the Act has given him a firm security.
Sir James Caird, in his book, entitled, “Landed Interest,” says, “Since the passing of the Tithe Commutation Act, in 1836 to 1876, the rent of tithable land increased from thirty-three millions a year to fifty millions a year. The tithe-rent charge in 1836 was four millions, and is about the same still.” He then asserts that the Church has lost two millions a year by the Act. In 1890, there is a considerable reduction in the rentals throughout the country, owing to agricultural depression. The repeal of the Corn Laws has led to the introduction of such large quantities of wheat from foreign countries, that our farmers, with their heavy rents, rates, taxes, and tithe-rent charges, are unable to compete with foreign producers. It is calculated that what is produced in England and Wales for the maintenance of the population, would only suffice for three months out of the twelve, and that nine months’ provisions are imported from foreign countries and from Ireland and Scotland. It is therefore doubtful that if the Commutation Act were repealed, whether the tithe-owners would receive more from tithes in kind than the gross rent-charge of four millions per annum. But it would be utterly unreasonable, and practically impossible now, to repeal this Act, as Church defenders want, and have a re-valuation; and even some go so far as to assert that the tithe in kind should again be collected. Now, one statement is sufficient to overthrow these assertions. The main object of the Commutation Act of 1836 was to prevent tithe-owners from receiving an increased quantity of tithes from increased agricultural improvements. So long as this system continued, landlords and tenants were always unwilling to sink capital in agricultural improvements, because a large part of the profits would be claimed by the tithe-owners who had not expended a shilling to realize these profits. But all this was changed by the Commutation Act; and, consequently, both landlords and tenants have expended, since 1836, enormous sums of money in improvements. Therefore, if there were now a re-valuation, it would be estimated upon present improvements, which it was the main object of the Commutation Act to prevent. And the re-valuation would be a gross injustice on those who sank their money in improvements. On the other hand, I must admit, in justice to the tithe-owners, that the repeal of the Corn Laws had never been anticipated when the Act of 1836 was passed, and it is an unquestionable fact that the repeal of these laws has brought about the present diminution of rent-charges, which are based upon the prices of three cereals, the most important being wheat, which has been and will be the most important and extensive article of importation from foreign countries, and its growing diminution of cultivation in England and Wales. The tithe, or tithe-rent charge being national property, and no compensation being made when the Corn-Laws were repealed, which obviously would affect, in course of time, the prices of the cereals in England, it seems to me that an act of injustice to this class of property was perpetrated when the Corn-Laws were repealed, and when no counterbalancing compensation was given, or provision made in the Act to meet any future diminution of this property _below par_, which diminution may be traced to the operations of this Act. This national property should be carefully safeguarded, especially against landlords, who, in the majority, are the law-makers.
REDEMPTION OF TITHE-RENT CHARGE.
The force of this observation is keenly felt when the property is put up for sale. It will be difficult to frame a Redemption Act, for one party will calculate the price at _par value_; another party, at the current annual value, which is now so much below par. And it is uncertain when the upward turn in the average annual value will occur, and when it does occur, it will be very small and slow. This is what makes the redemption question so difficult to deal with. In the Tithe Act of 1891, the provision for redeeming the tithe-rent charge is omitted and postponed. In framing a Redemption Bill, everything will turn on the meaning attached to the word _value_. Two values will be the salient points for discussion: (1) _Present market value_ of the tithe-rent charge; and (2) _a fair value_. The most opposite opinions will be found to prevail on these two vital points. Let us take £100 of the “commuted value,” and put it in the market for sale. The present value (1891) of the £100 is £73 3_s._ 3¾_d._ Present purchaser will reason thus: Depreciation, £24; rates and other charges, £20 = £100 - 44 = £56. Having arrived at this amount, the next important question the purchaser will ask himself, How many years’ purchase shall I give? Some will say twenty, but a reasonable man will say twenty-five, and will offer 56 × 25 = £1,400 for the £100 of the “commuted value.” Again, there is a powerful body, and among them the Ecclesiastical Commissioners, who would probably not sell at £1,400. They would start from _par value_ and only allow a deduction for rates and other charges, _i.e._, £ 100 - 20 = £80, and would not sell for less than twenty-five years’ purchase on this value, _i.e._, £80 x 25 = £2,000. These are the salient facts with which the framers of any Redemption Bill will have to deal. There may be a _modus vivendi_ arrived at by “splitting the difference,” and selling £100 say for £1,800, and other amounts in the same proportion. The Bill will never pass except both parties will agree to a _modus vivendi_, as above sketched out. But in my opinion, the price should not be less than £2,000.
The following statement is taken from the Tithe Commissioners’ Report, dated 4th July, 1887.
£ 1. Clerical Appropriators 681,695 2. Parochial Incumbents 2,415,040 3. Lay Impropriators 766,334 4. Schools, Colleges, etc 196,055 ---------- £4,059,124 ==========
The recipients of (1) and (4) are stated in the Appendix.
In 1891, the depreciation is £967,419, and the total gross value is £3,061,705. Assuming £2,000 to be the price by Act of Parliament of £100 commuted value; the Government would advance to the landowners £58,837,965 at £4 per cent., and would hand over stock at £2¾ per cent. to this amount to the Ecclesiastical Commissioners, in trust for the parochial incumbents and clerical appropriators. They would pay the dividends, amounting to £1,705,200 per annum, to the incumbents, etc., just as they do the dividends on other properties vested in them.
Now, in 1891, the same tithe-owners receive about £1,734,152 net. The depreciation in value of tithe is, we may say, at its _nadir_. Therefore the income from stock should not be less than this nadir value, and hence the purchasing value should not be less than £2,000. The property is national, and therefore care should be taken to maintain its value, and to prevent landowners, as in 1836, from getting another large slice of this national property.
THE EXTRAORDINARY TITHE-RENT CHARGE.
On one important point, Lord Russell had deviated from its leading principle in the second reading of the Bill. A deputation of Middlesex market-gardeners waited upon him after the Bill was introduced, who pointed out that they had expended a large amount of capital on improvements of their market-gardens during the past seven years, and that if they were to pay a rent-charge on the average of these seven years, they would continue liable to a very heavy charge, while the owners of arable land or common land in their neighbourhood, paying very low tithe composition, would come into competition with them and thus ruin them. This argument had actually influenced his lordship even against his own will, and so he introduced an extraordinary rent-charge, calculated on each acre, in addition to the ordinary rent-charge on hop grounds, orchards, and market-gardens, brought into new cultivation. In introducing this Bill, and before the Middlesex market-gardeners influenced him, Lord Russell used these remarkable words: “Whatever might be done with orchards and gardens now existing, he felt considerable difficulty in rendering land that might be converted into orchards or gardens in future, liable to increased tithes. Orchards were a precarious and uncertain description of property, and frequently did not bear in certain years; and in respect of garden lands, if the Legislature allowed the question to be opened again from time to time, it would give rise to incessant disputes.”[288]
Although he thus modified his views in the second reading, yet he was thoroughly opposed to the principle. And his prophetic words stated above, were fully realized in the subsequent amendment Acts which were absolutely necessary as regards the modification of extraordinary rent-charges. No extraordinary charge was to be made the first year for new cultivations, and only one-half of the charge for the second year, but the full charge was to be made in the third year. In thus deviating from the principle of his Bill, he made the following remark: “Tithes on extremely valuable crops, such as hops, orchards, and market-gardens, could not be allowed to enter into an average for a general commutation.” From the passing of the Act in 1836, up to the present time, this extraordinary rent-charge has been a fruitful source of discontent, because it is a tax on capital and labour, against which the principle of the Commutation Act was framed.
It kept almost stationary the cultivation of hops and market-gardens, instead of extending them. The hop proprietors were at the time in favour of the petition of the market-gardeners. When lands would go out of cultivation of hops, or of orchards, or of market-gardens, then they would be subject only to the ordinary rent-charge. But all new cultivations were to pay the extraordinary rent-charge, which in some cases reached as high as 30_s._ per acre. When this amount was added to the ordinary charge, the whole profit was absorbed, especially since the hop growers have now to compete with foreign countries, which pay no tithes nor duty on hops imported into this country.
It may be said that the duty on hops, having been repealed since 1862, the reduction of about £4 5_s._ per acre must have benefited the hop growers. The fact is, that the landlords and not the tenants mainly derived the profits from the reduction. Before 1836, there were 56,300 acres of hops cultivated; in 1880 there were 66,703 acres.
The Market-Gardens Act of 1873 was passed on account of a burst of popular indignation against the conduct of the Vicar of Gulval, in Cornwall, who endeavoured to enforce the payment of an extraordinary tithe-rent charge of 1_s._ 6_d._ per acre on 213 acres brought into new cultivation. It was enacted that the provisions relating to the extraordinary charge on market-gardens, newly cultivated as such, _should only apply to parishes where such charge was distinguished at the time of commutation_.
In 1839 (2 & 3 Vict. c. lxii. s. 27) an Act was passed in a quiet manner which placed orchards as regards the extraordinary tithe-rent charge on the same footing as the Act of 1873 (36 & 37 Vict. c. xlii.) placed the market-gardens. The Acts of 1839 and 1873 admit that extraordinary rent-charges are wrong in principle, and that those on hops should have been abolished.
In 1886 an Act was passed (49 & 50 Vict. c. liv.) in the preamble of which it is stated that the extraordinary rent-charge levied under previous Acts, is an impediment to agriculture, and therefore the Act should have been limited, and power given to redeem the same. It is enacted that after the passing of this Act, no extraordinary charge shall be made or levied under the Tithe Commutation Acts on any hop ground, orchard, fruit plantation, or market-garden newly cultivated as such. The Land Commissioners are authorized to fix the capital value of the extraordinary charge payable on each farm or parcel of land at the date of the passing of the Act. The third section indicates the manner in which the capital value is to be ascertained. Such land is to be charged with the payment of an annual rent-charge equal to four per centum on the capitalized value of the extraordinary charge, in lieu of the extraordinary charge. This rent-charge shall be payable half-yearly on the days on which the extraordinary charge was made payable. Arrears of rent-charge are to be recovered in one of the High Courts of Justice, or a County Court, “or in the same way that rent charge in lieu of ordinary tithe is recoverable, and subject to like conditions, or by entry upon and perception of the rents and profits of the land subject to such rent-charge.” The rent-charge is not to be subject to any parochial, county or other rate, charge, or assessment. The rent-charge may be redeemed by the owner or other person interested in any land, subject to an extraordinary charge or rent-charge substituted therefor. The redemption money is to be paid to the Governors of Queen Anne’s Bounty, to be applied for the benefit of the incumbent, if the owner be the incumbent of a benefice. Provision is made for the redemption of the rent-charge in other cases of ownership. If the tenant had contracted, before the passing of the Act, to pay the extraordinary rent-charge to the owner, he shall do so no longer, but pay to his landlord during his tenancy the rent-charge substituted for the extraordinary charge. The landlord is then made liable for the payment of the rent-charge to the owner, notwithstanding any agreement to the contrary which the tenant had made with his landlord. The Ecclesiastical Commissioners are empowered to adjust the fixed charges made before the passing of the Act, on the income of benefices in receipt of extraordinary tithes in favour of other benefices, or of district churches or chapelries within the parishes of which the incumbents are in receipt of extraordinary tithes.
Lord John Russell, when introducing the Tithe Commutation Bill, said these words: “The income of the clergy will now flow from the landlord and not from the farmer, and the clergyman will be relieved from an alternative that too often exists, either of making personal enemies by pressing his demand, or of injuring himself by abandoning it.” His lordship, in his “Recollections and Suggestions,” makes the following statement: “All the evils of the tithe system were the subject of fair compromise and permanent settlement by the Act of 1836. Three Commissioners, two of whom were appointed by the Crown and one by the Archbishop of Canterbury, were empowered, after examination, to proceed by certain fixed rules to a final adjudication. In about seven years this process was completed, and a work from which Pitt had shrunk was accomplished.”
In reading this statement one may smile at the “permanent settlement.” Ever since 1836 there has been a continuous struggle going on down to 1886 on the subject of “Extraordinary tithe-rent charge.”
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