Skip to main content

Law As To The Regulation And Inclosure Of Commons

Volume 229: debated on Monday 29 May 1876

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Applications in relation to Commons.

Clause 2 (Alternative provisional order for regulation or inclosure of Commons).

moved, as an Amendment, the insertion of words at the end of the clause, to the effect that after the passing of the Act the Commissioners should entertain no application for the inclosure of any common, but only for the regulation of it. The purpose of the facilities given by the Inclosure Acts had been the growth of corn, and the best land was already inclosed. The feeding of cattle was obtained as well by regulated pasture as by converting common land into private property. No public advantage was secured by changing commons into private parks, woods, or game preserves. Though individual labourers might be compensated, their successors, as a class, were deprived of comfort and profits. The loss to the public would be severe when all waste lands were fenced in, and they ceased to be used for public enjoyment and recreation. The open land in England was not more than sufficient, and certainly facilities for inclosures should not be given. Perhaps in particular districts there might be advantages to the neighbourhood by inclosing, and thus creating a demand for labour; but still the land had probably been open ever since the Norman Conquest, and there was no particular reason that it should be inclosed just at this time. He believed that the Amendment which he proposed would be an advantage in carrying out more effectively the object which the Secretary of State said he had in view in proposing the measure.

Amendment proposed,

In page 2, line 31, to leave out all the words after the word "Common," to the end of the Clause, in order to insert the words "but after the passing of this Act the Commissioners shall not entertain an application for the inclosure of any Common or any part thereof; and notwithstanding any proceedings taken under any Act other than this Act, or any Provisional Order of the Commissioners made but not already confirmed by Act of Parliament, proceedings may be taken under this Act for the regulation of any Common,"—(Mr. Cowper-Temple,)

—instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Clause."

differed very materially from the right hon. Gentleman, though he would endeavour to identify his own feelings with those of the right hon. Gentleman so far as he could. He, however, was sure that the plan proposed would to some extent be destructive of the object sought—the regulation of commons. Now, he maintained, that inclosuse and regulation were necessarily hand in hand. The right of common was nothing more than the right of certain persons to enjoy rights of a definite kind over the land of another. Common rights were of three sorts—appendant to certain estates, appurtenant to certain districts, or common in gross; and the common rights was mostly of four kinds—feeding animals on the land, catching fish, cutting turf, or cutting wood. If all the persons so interested in the lands agreed, then it could be inclosed without the action of the Inclosure Commissioners, who were only required when some of the parties did not agree. The Bill provided that in regulating commons they might purchase up certain interests; but still a man might say that he would not have money, that he would only forfeit his right upon having a portion of the land allotted to him. To arrange in such a case there must be a power of inclosure. In many instances also inclosure was of the greatest benefit. At present the public had not the full enjoyment of commons, for certain persons could insist on cutting wood, digging gravel, and exercising their other rights at the best places, and he could fully bear out the statement of the leading journal that commons were often taken possession of by a low class of people, to the exclusion of the respectable portion of the public. In his opinion, the present Bill was rather hard upon the owners of land, and especially upon the lords of manors. He declared that it was the most liberal and advanced mea- sure on the subject that had been introduced into Parliament during his experience.

contended that the Bill should be confined to the regulation of commons, which had never yet been tried on any large scale, and that inclosures should be postponed for five or six years, in order to give a fair trial to the schemes for regulations. If the regulation schemes succeeded, it would not be necessary te proceed to inclosure. His fear was that if they offered the alternative of inclosure, parties would not be found to put the scheme for the regulation of commons into operation. He entirely disagreed with the hon. Member who had just spoken that this measure was the most liberal and advanced one which had been introduced into Parliament. It did not compare in this respect with the Bill of 1871.

said, it was impossible for the Government to adopt the suggestion of the hon. Gentleman opposite (Mr. Shaw Lefevre), for the reason that if all inclosure was stopped, they would be doing all they could to further illegal inclosure. The Committee had already decided, by a very large majority, that it would not interfere with the rights of the lords of the manors or of the commoners without compensation. That question might be considered as settled. The Bill was accompanied with proper safeguards, and, under its regulations, it would be found that the commoners would derive much greater benefit from their commons than they had ever done before. Moreover, he believed that lords of the manor and commoners would not make application for inclosure where there was any chance of its being opposed and lost. Therefore he did not apprehend the dangers entertained by the hon. Gentleman, and he hoped the Committee would assent to the scheme propounded in the Bill. On the other hand, the Amendment would so mutilate the measure as to make it hardly worth passing into law.

said, that on the last occasion when this subject was before the House he voted in favour of the Amendment of the hon. Member for Hackney (Mr. Fawcett), because he thought it desirable that commons near large towns ought to be preserved. But he thought that commons of that kind and those situated in distant parts of the country stood on a very different ground. He was opposed to the present Amendment, for he thought it would be to the benefit both of the lord of the manor and of commoners that in certain cases provided for inclosures should take place. He thought that commons under the authority of the Crown ought to be brought within the purview of the Act. While the Bill provided facilities for keeping open commons near large towns, it did not provide sufficient facilities for inclosing the waste lands in remote and hilly districts such as he knew in North Wales, and especially in Cardiganshire. They were held, not in common but in severalty. The consequence was, that the sheep walks were over-stocked, to the injury of the farmers themselves as well as of the community. The Returns on this point were misleading. He knew of one district in which the waste and uninclosed lands were given at 460 acres, whereas they amounted to 20,000 acres. He hoped the Government would provide greater facilities for the inclosure of such wastes in remote and thinly-populated districts. He was sure such a measure would be popular throughout the whole country.

agreed with the hon. and learned Member for Beaumar is as to the necessity of inclosures, and said that large commons in remote districts—like that in his own county (Radnorshire), which embraced 28,000 acres—should be dealt with on a different footing from suburban commons of 100 or 200 acres. These large commons led to constant feuds and bad blood, to sheep stealing; while, in his own part of the country, one of the chief reasons given for the spread of foot-and-mouth disease was the indiscriminate feeding of sheep on common able lands.

supported the Amendment. He asserted that mountain pastures such as were referred to by the two last speakers were exceptional cases, and might with advantage be dealt with by Private Bills. He would also observe that sections of the Act other than that under discussion would give the Commissioners ample power to deal with any quarrels that might arise as to common rights in the case of regulated pastures.

said, he was glad to hear some common sense on the subject after the poetical talk to which they had listened from some hon. Members. These wastes in remote districts ought to be inclosed, for in their present state they simply encouraged a race of "squatters," a most miserable class of neighbours, and the lands undrained and uncared-for were a source of disease. He thought it would be advisable to separate the regulation from the inclosure clauses in the Bill.

supported the Amendment of the right hon. Member for South Hants. Whatever might be the case in the remote healthy districts to which hon. Members had referred, he hoped the Government would take care that in the Home and Southern counties the small open spaces in the neighbourhood of large populations would be preserved for public recreation.

based his opposition to the Amendment on the argument that it would neither be possible nor politic to make a law that should apply to all commons. He was disposed to allow commons to remain open where they would be for the benefit of the district, but held that it was monstrous to lay down the proposition that no commons whatever should be inclosed, as many inclosures would be for the benefit of the country. He wished to see each question as it arose dealt with on its merits. He would like to ask the right hon. Gentleman who moved the Amendment who was to pay for the expense of regulating those commons under the Bill. Was the cost to be borne by the lords of the manor or the commoners? In either case he believed it would be difficult to work the Act. Much of what had fallen from hon. Gentlemen opposite was nothing but "wild talk," and he challenged them to point out in what possible way the poor man would be deprived of any right that he possessed at the present moment.

said, he could not agree in the views expressed by the hon. and gallant Baronet in opposition to the Amendment. He did not understand it as going to the extent of prohibiting inclosures altogether. He was of opinion that the Bill did not sufficiently provide for the interests of those who, perhaps, could not claim to have rights in the strictly legal sense, but who had undoubtedly exercised the privilege of enjoyment over commons for centuries. The object of the Amendment was to impress on the Committee that the Act of 1845, which might have been at the time considered satisfactory, inasmuch as it gave power to bring portions of the commons into cultivation for the increased production of food and the increased employment of labour, was now no longer required as the objects which that Act had in view, had been sufficiently attained. Looking at all the circumstances, he approved of the Amendment, and should give his vote in support of it.

pointed out the error of supposing that it was commonly the interest of the lord of the manor to inclose, and that of the commoners to keep the commons open. He thought there would have been a great deal more to say for the Amendment if it had prohibited all inclosures whatsoever. That might have been impossible, but it would at least have made the proposal a consistent one. He would urge his right hon. Friend opposite not to press the Amendment to a division; for, as he understood the drift of it, it would not prevent illegal inclosures while it would take away that control over possible inclosures which might be given under the remaining clauses of the Bill by shutting the door on all but high-handed proceedings.

said, as he understood his right hon. Friend the Mover of the Amendment, he said—"You have suspended the inclosure of commons for the last six years, and you now come forward with a scheme which you call a Bill for the regulation of commons, which would give you a power to inclose." But legislation for the future must be guided by the experience of the past, in which several objectionable inclosures had been proposed by the Commissioners, and he contended that admitted abuses could be got rid of by regulation without inclosure. They were asked who were to pay the expenses of those proposals. Let the right hon. Gentleman who had charge of the Bill answer that. He had received a number of letters from gentlemen on this subject, and amongst them from rectors of parishes, expressing their disapproval of the scheme for inclosing the commons and taking them from the people. With the object and spirit of those letters he entirely agreed, seeing that some of the commons scheduled in the last Report of the Commissioners were the most beautiful commons in England. He would be glad to know to what commons the Bill would apply.

said, that the Bill would apply to commons of a different character from those of Wisden and Withycombe, which the Commissioners had proposed to inclose, but whose schemes the House refused to sanction. For his own part, he had never attempted to pass any one of such schemes through Parliament. He could not accept the Amendment, and trusted the right hon. Gentleman opposite (Mr. Cowper-Temple) would not press it to a division.

said, the alternative of inclosure or regulation did not give the latter fair play. More money could be made by individuals out of a common by making it saleable private property than by improving it as joint property. But the public interest was not promoted by inclosure. The Bill would work better for the welfare of the nation if his Amendment were carried, and therefore he would divide the House.

opposed the Amendment, urging that if the Bill were confined to the mere regulating provisions, they would be thrown back, as regarded inclosures, upon the Act of 1845, which it was most desirable to amend in the way proposed by the Government.

contended that the argument of the Home Secretary, that if they accepted the Amendment it would very much increase the temptation to inclose commons without the intervention of Parliament, had no foundation. He did not see how the Amendment could be rejected consistently with the observations of the right hon. Gentleman. The admirable regulating scheme proposed by him would be rendered nugatory, if it were accompanied by provisions for inclosure. In answer to the assertion that the existence of commons encouraged a lawless set of persons to squat upon or near them, he would refer to the evidence given before the Select Committee of last Session in relation to the New Forest, which showed that the existence of that large tract of uninclosed ground had tended to foster the settlement on its borders of a honest and independent class of people. In reply to the challenge which had been thrown out to him to state what the right of the public was in regard to the Sussex commons, he said as one of the landless public he enjoyed the right and privilege of wandering over all the commons which existed in the Kingdom. But the moment the commons were in closed every rood of this public land was converted into private property.

Question put.

The Committee divided:—Ayes 203; Noes 66: Majority 137.

On the Motion of Mr. Whitwell, Amendment made in page 2, line 32, by inserting after "commons," the words "or parts of a common."

moved as an Amendment, in page 3, line 6, to insert the following words after "effect:"—"unless they are of opinion that such application will be for the benefit of the neighbourhood."

said, he had no objection to the principle of this Amendment, only it came in the wrong place.

Amendment, by leave, withdrawn.

moved an Amendment, to the effect that while application might be made by two-thirds of the commoners for inclosure, one-third of the commoners might apply for regulation.

Amendment negatived.

said, that the House having decided that inclosures were to take place, he was anxious that they should not take place in any other way outside the present measure. He would therefore move as an Amendment, in page 3, line 9, after "order," to insert the following words:—

"From and after the passing of this Act any inclosure of a Common, Town Green, or Village Green existing at the time of the passing of this Act, or of any part thereof, shall be unlawful, unless sanctioned by Parliament under the provisions of this Act."
He must remind the House that during the last few years numerous attempts had been made to inclose commons under the pretended sanction of the Statute of Merton or otherwise. Lords of manors had arbitrarily seized commons, trusting that no one would undertake the vast cost of proceedings in Chancery to resist them. Fortunately, in every case public spirited persons had been found who had undertaken the task of resisting these inclosures, and a series of suits had been promoted, which culminated in the great Epping Forest suit. In every one of these cases the Courts of Law had decided that the inclosures were illegal. It might, therefore, be confidently stated that, although theoretically, a lord of the manor could inclose with the consent of the commoners, yet that practically it was impossible for him to obtain this consent, and that all inclosures were illegal which had not been sanctioned by Parliament. This was in conformity with the views of all lawyers for centuries, for if not, why was it that so many thousand private Inclosure Acts had been applied for and passed by Parliament, and why was a general Inclosure Act necessary? If an inclosure took place with the consent of Parliament, the interests of the public were considered, and the claims of the labouring poor for garden allotments were provided for; but if inclosure took place without Parliamentary sanction, no such consideration was given either to the public or to the labouring poor. If there was any ground for believing that these inclosures were legal, he would not ask for such a remedy; but the experience of the last 10 years had conclusively shown that all such inclosures were illegal, and that it was only necessary to institute a suit in the name of a commoner, though at a vast cost, in order to abate them. It might be said, why not, then, trust to the remedies already provided by the Courts of Law? The answer was that the prize at stake was so valuable that it was worth while to a lord of a manor arbitrarily to inclose or to run the risk of being opposed in the Courts of Law; on the other hand, the commoner was called upon to defend, at a vast expense, a right of common of little or no pecuniary value to him, where success only resulted in leaving things as they were in preserving the common from inclo- sure, and in maintaining a right of turbary, the value of which consisted in its being the means of keeping the common open. It appeared to him that these cases of arbitrary inclosure had become a great scandal. They amounted to land robberies on a great scale, and they ought to be put down in the interest not only of the public, but of morality.

Amendment proposed,

In page 3, line 9, after the word "order," to insert the words "From and after the passing of this Act any inclosure of a Common, Town Green, or Village Green, or of any part thereof, shall be unlawful, unless sanctioned by Parliament under the provisions of this Act."—(Mr. Shaw Lefevre.)

opposed the Amendment, on the ground that it would interfere with the rights of property by not only prohibiting lords of manors from inclosing commons under the provision of the Statute of Merton, but also denying them the power so to do even though the whole of the commoners consented. What was complained of was the practice which some lords of manors pursued of filching pieces of commons, in closing them, and taking the chance of commoners instituting Chancery suits to upset illegal proceedings of the kind. The fault of the Bill was that it offered no opposition to such cases, and he would on the Report bring up a clause to deal with them.

opposed the Amendment, remarking that it would involve an interference with the rights of property, against which the House had already decided by an overwhelming majority on the early stage of the Bill. The principle the Bill went upon was that they should not take away rights without giving compensation, and he must endeavour to confine the measure to giving power to acquire rights by paying for them. The Bill already provided against illegal inclosures; but if his hon. Friend the Member for Maldon thought he could improve upon the proposal contained in the Bill, his suggestions should receive careful attention.

denied that the Amendment was an attack on the rights of property, and maintained that it was necessary to prevent lords of manors and commoners, in con- cert or separately, from filching hundreds of acres from the commons, to the detriment of their poorer neighbours.

said, that the Amendment would have an ex post facto operation. It applied to every "existing" inclosure, and under it every inclosure of a common since the time of Adam might be held to be bad.

did not think the words of the Amendment included past inclosures; it was certainly not intended that they should, and on no principle of construction could it be held that they had this interpretation. The words had been inserted with the object of limiting the application of the Amendment and not of extending it.

also was of opinion that the Amendment would have an ex post facto operation.

thought it would be a pity for the Committee to go to a division on a false issue; and would, therefore suggest an Amendment of the proposed Amendment, to prevent the possibility of such a result, and to ensure something being done towards putting a stop to illegal enclosures.

moved to Amend the proposed Amendment by omitting the words "existing at the time of the passing of this Act."

said, he would consent to the omission of the words, though he could not admit they had the meaning imputed to them.

thought it did not make the slightest difference whether the words were retained or omitted. What he said was, that they had no right to interfere with the rights of property. The proposed omission the Committee might accept without a word, and then they could negative the whole thing. He thought the omission, however, had better be negatived.

Amendment of said proposed Amendment negatived.

Question put, "That those words be there inserted."

The Committee divided:—Ayes 82; Noes 206: Majority 124.

said, notwithstanding the result of the division, and recollecting that two hours of the valuable time of the House had been wasted the other night—["Oh, oh!"] He said "Yes" —two hours of their valuable time had been wasted the other night.—[Renewed cries of "Oh!"] He said "wasted."—[Laughter, and loud cries of "Oh!"] Notwithstanding that two hours of their valuable time had been "wasted" the other night by hon. Gentlemen on the Ministerial side of the House in opposing a Motion of the hon. Member for Hackney, and notwithstanding the interest taken in the measure, he would now move that the Chairman report Progress, and ask leave to sit again.

hoped the Committee would consent to pass the clause under the discussion, as it had been thoroughly discussed. As soon as that had been done, and Clause 3, to which an Amendment had been proposed, had been disposed of, he would himself move that Progress be reported.

supported the appeal of the Home Secretary, as he considered his suggestion a very fair one.

Motion negatived.

Motion made, and Question put, "That Clause 2, as amended, stand part of the Bill."

The Committee divided:—Ayes 252; Noes 9: Majority 243.

moved that the Chairman report Progress, and ask leave to sit again.

rose to a point of Order. He wished deliberately to impugn the decision of the Chairman when the Motion to report Progress was previously made by the hon. Member for Meath (Mr. Parnell). The Chairman's ruling that the "Noes" had it had been distinctly challenged on the second and third occasions when the question was put, and yet no division was taken.

said, that though he had listened attentively, he had not heard the Chairman's decision challenged.

also held that there was no ground whatever for impugning the decision of the Chairman, who invariably presided over their proceedings with dignity and fairness, which he (Mr. Cowen) had never seen surpassed. Hon. Gentlemen near him wished to adjourn the House at an early hour—a desire with which he sympathized; but they should pursue their object openly, and not by a course which had the appearance of factiousness, and which would never receive his support.

said, the hon. Member for Dundalk (Mr. Callan) was wrong in one point. He (Mr. Parnell) should not feel the least afraid of impugning the decision of the Chairman if he thought it was the wrong one; but on the present occasion he thought nobody was in fault but himself. He owned he had not been sufficiently attentive in challenging the Chairman's decision on the one or two occasions when he put the Question. He knew not whether the Chairman was right or not in his ruling; but there was a larger question involved—namely, as to the practice on the part of hon. Members who had not attended the discussion during the evening, but who came down to the House at a late hour and voted without knowing the merits of the question at issue.

rose to Order, and asked whether the hon. Member was speaking to the Question?

said, the Question before the Committee was that he report Progress, and ask leave to sit again. After he had put that Motion the hon. Member for Dundalk challenged his decision on a previous question. He hoped he was not wrong in supposing that no hon. Member would impugn his conduct in the Chair, unless he thought he had some reason for doing so. The hon. Member for Dundalk (Mr. Callan) he was quite sure, would not have impugned his conduct in the Chair unless he had felt it his duty to do so. He (the Chairman) thought it was only respectful to the hon. Member for Meath and to the Committee to wait before giving any explanation of his decision until the hon. Member for Meath had an opportunity of responding to the appeal made to him by the hon. Member for Dundalk. He acted simply in conformity with the Rules of the House when he declared that the "Noes" had it. He was justified in doing so, because no voice had been heard in the affirmative. He trusted that the hon. Member for Dundalk and the Committee were satisfied with what he had done.

said, he had made the statement on the authority of the hon. Member for Meath, and on that impression he voted with him, although he would otherwise have voted against him.

, who spoke amid considerable interruption, said, he considered he was perfectly in Order, the question being the propriety of proceeding with legislation at that late hour of the night; and that hon. Members who had not heard the discussion should leave their conscience at the disposal of the Whip and do as he directed them.

said, he agreed with the hon. Member for Meath in principle, and characterized the conduct of the House as that which might be expected not from an Assembly of Gentle-tlemen, but an assembly of coal porters. ["Oh, oh!"]

said, the hon. Gentleman the Member for Stafford must see on reflection that his observations were not respectful to the House. At the same time he would point out to the Committee that the hon. Member for Meath (Mr. Parnell) was entitled to a fair hearing.

withdrew the observation he had just made, but considered the business of the House should be concluded at 12 o'clock. He and other Members had made up their minds that they would make use of every means which the Forms of the House allowed to put a stop to these late sittings. They had shut up places of amusement, and when the House rose the only stray persons to be found in the streets were the Members of the House of Commons.

regretted the interruption of Public Business, but, considering it was now 1 o'clock, he would not oppose the Motion for reporting Progress.

Motion agreed to.

House resumed.

Committee report Progress; to sit again upon Thursday.