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Part I—Law As To The Regulation And Inclosure Of Commons

Volume 229: debated on Thursday 1 June 1876

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Applications in relation to Commons.

Clause 4 (Explanation of adjustment of rights).

moved, in page 4, line 11, after "land," to insert—

"(4a.) The confirmation of any exchange of any portion of any Common for any adjoining land of equal or greater value, or any sale of any portions of any Common for the purpose of purchasing adjoining land of equal or greater value out of the proceeds of such sale: Provided, the Commissioners are satisfied that such exchange is beneficial to the interests in the Common affected by such sale or exchange, and that such exchange has been or shall be approved by the vestry or vestries of the parish or parishes in which such Common is situate, and provided that, in the case of any such sale as aforesaid, land of equal or greater value adjoining the Common has been or shall be purchased and thrown into the Common, or an equivalent improvement or benefit to the Common carried out."

did not object to the principle of the Amendment, but said there were certain legal difficulties in the way which he did not at present see the way to overcome, but he would give the matter further consideration.

Amendment, by leave, withdrawn.

moved, in page 4, line 22, after "Common," to insert—

"Provided always, That no such adjustment of rights shall prohibit the use of any Common or uninclosed land for the free passage of a person or persons thereupon for the purpose of going from place to place, or for the enjoyment of air, exercise, or scenery on foot or on horseback, in such, manner, freedom, and extent as such person or persons or other persons have heretofore been accustomed to enjoy."
His object was to prevent any person from being deprived of any privilege which had been enjoyed from time immemorial, and he trusted that nothing would be done to prevent the free enjoyment over the broad expanse of mountain tracks which had hitherto existed.

objected to the Proviso, and said he thought it would be better to leave the matter as it now stood in the Bill.

hoped the Amendment would not be pressed. At present no express right was enjoyed by the public, and he did not think it desirable to confer upon them a right which did not now exist.

apprehended that there was danger of those rights which had been acquired by custom being withdrawn in the absence of legal sanction, which the hon. Member for Kendal aimed at obtaining.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 5 (Explanation of improvement).

moved, in page 4, at end, to add—"5. The appointment from time to time of Conservators of the Common for the purposes aforesaid."

Amendment agreed to.

Clause, as amended, agreed to.

Clause 6 ("Inclosure" means inclosure in manner provided by the Inclosure Acts) agreed to.

Clause 7 (Provisions for the benefit of a neighbourhood applicable alike to orders for regulation and orders for inclosure).

Amendment agreed to.

Clause, as amended, agreed to.

Suburban Commons.

Clause 8 (Sanitary authorities to be represented in the case of commons in the neighbourhood of towns).

moved, in page 5, line 22, after "situate," to insert "either wholly or partly in any town or towns or."

Amendment agreed to.

moved, in page 5, line 22, after "Common," to insert "or any part of a Common."

Amendment agreed to.

moved, in page 5, line 38, after "aforesaid," to insert—

"Provided that after the passing of this Act the Commissioners shall not entertain an application for the inclosure of a suburban Common."
He thought there was no valid public reason for facilitating the conversion into private property of common land that was furnishing health, recreation, and enjoyment to the weary inhabitants of smoky towns. The powers of regulation would enable lords of manors and Commoners to improve waste lands for pasture without shutting out the public by fences, or transforming them into villas and streets; but if the alternative of inclosure or of regulation was given, the pecuniary profit of the former to individuals would outweigh the advantages to the public of regulation.

Amendment proposed,

In page 5, line 38, after the word "aforesaid," to insert the words "Provided, That after the passing of this Act the Commissioners shall not entertain an application for the inclosure of a suburban Common."—(Mr. Cowper-Temple.)

opposed the Motion, urging that there were a great many commons to which the Amendment would not apply, and that it would be a very unjust, very injurious, and very inconvenient course to take, to decide by a hard-and-fast line, that no commons within a certain distance of a town should be inclosed. Every case must be judgedon its own merits; and there were several strong provisions in the Bill to enable the local authorities to prevent these commons being inclosed if they ought not to be inclosed. In his opinion, they had very much better leave this matter to the discretion of the local sanitary authorities.

supported the Amendment, which he thought an extremely important one. He felt satisfied that unless they drew a cordon round the large towns and said these commons should not be inclosed, there would never be any application for their regulation. There might be an absolute prohibition of the inclosure of commons within a certain distance of populous towns. The principle in this clause had received the sanction of both Houses of Parliament, and although the different Bills on the subject had been lost, the clauses they contained embodying it had been agreed to.

urged that some latitude should be allowed to corporations, who should be empowered to appropriate portions of their funds to the preservation of suburban commons in cases in which they thought it desirable to adopt that course.

pointed out the difficulties that would arise if a hard-and-fast line were drawn which should apply to commons within six miles of towns having 5,000 inhabitants equally with those which were within that distance from towns having 500,000 inhabitants, and stated that in his view the Committee should not hastily lay down an arbitrary rule of that character, which would disregard all local peculiarities and requirements. It being difficult to argue a point of this kind without having some particular case in view, he would take that of Windsor and Eton in illustration of his contention. Windsor and Eton contained some 14,000 or 15,000 inhabitants, to whom Windsor Forest, with its beautiful scenery and everything that conduced to their enjoyment, was always accessible, and could the Committee suppose that any great hardship would be inflicted upon those persons by some small and almost unknown common six miles away being inclosed? A similar observation might be made with reference to the commons near Richmond, the inhabitants of which town, also had the enjoyment of a fine park. For these reasons he was unable to support the Amendment.

did not attribute the same importance as the hon. Member for Berkshire (Mr. Walter) did to the argument founded upon Windsor Forest and Richmond Park. For his own part, he preferred to walk over a common, because he could go where he liked and felt as if it was his own property. Words could be inserted in the Amendment which would restrain it from applying to small towns in the same way that it would to large ones. He hoped it would be pressed to a division. It had twice been accepted by both Houses of Parliament so far as its principle went. Without the Amendment it would be impossible to work the scheme of the Home Secretary, because the proposal to improve a common would be vetoed, and when nothing else could be done application would be made to Parliament to have the common inclosed.

regretted the proposal had been made in so short and crude a form. He suggested that it should be withdrawn; but if it were pressed he must vote in its favour, as a protest against the inclosure of suburban commons.

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

The Committee divided:—Ayes 91; Noes 135: Majority 44.

moved, in page 6, line 34, after "expedients" to insert—

"Where any Common (whether situate within six miles of any town or not) is situate within six miles of any village or villages, or other populous place or places, containing in the aggregate not less than five thousand inhabitants, but not constituting a town, notice of any application under this Act in relation to such Common shall be served as soon as may be on the urban sanitary authority or authorities, or the rural sanitary authority or authorities having jurisdiction over any such village or populous place, and all or any of the powers conferred by this section upon the urban sanitary authority having jurisdiction over any town may be exercised by any urban sanitary authority or rural sanitary authority having jurisdiction over any such village or populous place.
"When more than one sanitary authority is entitled to exercise the powers conferred by this section in respect of the same Common, the Inclosure Commissioners may consign the future management of such Common, under any order for its regulation, to a body composed in such proportions as they deem advisable, of representatives of all or any of such sanitary authorities, and may decide that certain parts of the parish or parishes in or near which such Common is situate shall be a contributory district for the purposes of this Act, and may make such rules for the election or nomination of such representatives by such sanitary authority as they think fit."

objected to the proposed Amendment, on the ground that it was not necessary. With respect to the mention of villages and places comprising 5,000 inhabitants, he might say there were no such places. This question had been discussed two years ago, and he was very sorry he could not now assent to it.

said, he was sorry to have heard the Home Secretary express himself so. He could not understand how the inhabitants of a village, or place, or places in the neighbourhood of a common, and not having 5,000 inhabitants, should not have a right to appear as a representative body. It seemed to him altogether wrong, and he should certainly support the Amendment.

said, there were many places having populations amounting in the aggregate to 5,000 and upwards, and it would be right that they should have a voice in the matter. The object of the Amendment was to give those somewhat scattered inhabitants the benefit they would have if more densely situated. They were anxious to have their commons regulated and improved, and were willing to bear their share of the expenses.

said, if there was one thing which was more necessary than another, it was to give the scattered rural populations the same advantages as were given to the populations of towns, and on those grounds he should certainly vote for the Amendment of his hon. Friend; but if the Government would bring up a clause having a similar object he should support it.

said, that hon. Gentlemen opposite, in the many Bills they had brought in on this subject, never introduced any such provision. What were rural sanitary authorities? They were here to-day and away to-morrow. He had no intention of doing what he was certain would lead the ratepayers into endless litigation.

remarked that it was no answer to say that this provision had not been contained in former Bills which were introduced when people were ignorant of the extent of the common lands in England. He was ready to admit that it was a defect in former Bills that they did not contain this provision. He thought if there were several villages and places, the inhabitants of which amounted to 5,000, that they might apply to the Commissioners.

suggested that application might be made to the Guardians. He considered them a proper body through whom representations should be made, and he hoped the Home Secretary would give to all Boards of Guardians the power to make representations, and to have a voice in the matter. He thought the right hon. Gentleman ought to take the Guardians by the hand.

contended that if this Proviso were adopted they would be opening up a frightful source of public expenditure on the part of Boards of Guardians.

said, the Government had so much time at its disposal as to introduce a Bill that never was asked for. He was surprised to hear the Home Secretary speak of the Guardians in the manner he had described them—as "here to-day and gone to-morrow"—thus indicating that they were a body not to be trusted. He (Mr. Fawcett) submitted that the Guardians were the official persons; and if it was proposed to inclose a common they were the proper authorities to whom power on the question should be given. The right hon. Gentleman the Home Secretary addressing the Members who sat on the front Opposition bench, used the tu quoqueargument, saying—"Why did ye not bring forward a measure of this kind when ye were in power?" He maintained that the course taken by the Home Secretary was singularly unfair; and the moment they proposed anything that was not in the Bill of 1871, the Home Secretary said—"Oh, but that was not in the Bill of 1871."

explained that the object of the clause was to empower the rural sanitary authorities to contribute to the funds for the improvement of the commons, and give compensation for the rights of the commoners. The question of notice would be dealt with in Clause 10.

said, he was surprised that the Home Secretary should treat the Board of Guardians with contumely. In the Education Bill he had not treated them as bodies that were "here to-day and gone to-morrow," but had entrusted them with the permanent administration of the educational affairs of the rural parishes.

congratulated the hon. Member for Hackney (Mr. Fawcett) on the change of his views in regard to the rural authorities, and inquired of the hon. Member for Reading (Mr. Shaw Lefevre) his authority for saying that there were only 1,500,000 acres of common in England. He hoped the Home Secretary would stand to his guns and not make the concession asked for, because the more concessions he made the more were required.

trusted the Committee would insist upon the carrying out of two objects—first, that notice should be served upon the rural sanitary authorities as authorities, and not merely as individuals; and, secondly, that they should have the power to do certain things which at present they had not the power of doing for the benefit of those whom they represented.

expressed a hope that the Government would adhere to their proposition, for he was quite convinced that the sanitary authorities had quite a sufficient number of matters to attend to at the present time.

explained that he had taken his figures from Doomsday Book, and judging from the Returns given for the Home Counties, with which he was personally acquainted, he was induced to think the total correct. The Inclosure Commissioners who, in 1870, stated that there were between 8,000,000 and 9,000,000 acres of uninclosed common land, now stated that there were only 2,500,000 acres; but he thought their estimate was still too large and that the Doomsday Book was nearer the mark.

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

The Committee divided:—Ayes 55; Noes 79: Majority 24.

moved the insertion of the word "three" instead of "five" in page 6, line 41, the object being that the word "town" in the clause should be held to mean a place with 3,000 inhabitants, and not the greater number.

Amendment proposed, in page 6, line 41, to leave out the word "five,"

in order to insert the word "three."—( Mr. Whitwell.)

thought that by adopting the number of 5,000 the Government had gone quite far enough.

Question put, "That the word 'five' stand part of the Clause."

The Committee divided:—Ayes 64; Noes 46: Majority 18.

moved, in page 7' at end of line 4, to add—

"The powers conferred by this section upon the urban sanitary authority of acquiring by gift and holding any suburban Common, and any rights in such Common, and of purchasing and holding any saleable rights of Common or any tenement of a commoner having annexed thereto rights of Common, may be exercised by the mayor, aldermen, and burgesses acting by the council of any borough constituted such either before or after the passing of this Act (whether they are the urban sanitary authority or not), with respect to any Common within seven miles of such borough, whether the borough have a population of not less than five thousand inhabitants or not."

pointed out that the Amendment might have the effect of giving these burgesses power to charge rates outside of their district, but promised that it should be considered before the Report.

Amendment, by leave, withdrawn.

On Question, "That the Clause do now pass,"

asked why the urban authority should be compelled to purchase the land as well as the rights of common in respect to such places within a certain distance of towns? Why should they not have power to purchase the rights of common and hold them for the benefit of the people?

observed, that any right whatever could be purchased under the Bill as it stood; and he thought that it would be sufficient to meet everything that was required.

Clause agreed to.


Clause 9 (Issue of forms by Commissioners) agreed to.

Clause 10 (Rules as to application to Commissioners) agreed to.

Clause 11 (Rules as to local inquiry) agreed to.

Clause 12 (Rules as to provisional orders).

moved an Amendment, the object of which was that whilst the assent of two-thirds of the commoners should be required before any common could be inclosed, and while the lord of the manor should have a veto on that transaction, that the assent of one-half of the commoners should be sufficient to regulate the common, and the veto of the lord of the manor should in the case of mere regulation be abolished.

Amendment proposed, in page 12, line 25, after the word "order," to insert the words "for the inclosure of a Common."—( Mr. Shaw Lefevre.)

said, he did not see why the veto should not apply to regulations, considering that the same rights were involved as in inclosure, and he objected to reduce the proportion of assents because liability to be rated for improvement would follow.

observed that regulation would not deprive the the lords of manors of their rights in the soil, nor the commoners of their use of it, as inclosures did.

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

The Committee divided:—Ayes 43; Noes 74: Majority 31.

moved in page 14, line 42, after "Commons," to insert "with such modifications, if any, as to Parliament seem fit," the object being to enable such defects as might be found in the original scheme to be amended.

Amendment proposed, in page 14, line 24, after the word "Common," to insert the words "with such modifications, if any, as to Parliament seem fit."—( Mr. Shaw Lefevre.)

could not accept the Amendment. The scheme would be drawn up after certain consents had been obtained. If a power of altering it were given, the scheme might become altogether different from that to which the consents had been given.

supported the Amendment, on the ground that in the original scheme some minor points might have been overlooked which it would be desirable to provide for.

said, that the original design of the Home Secretary was to bring all the details of a scheme under the review of Parliament. As the Bill stood the Standing Committee, no matter what the defects of the scheme, would not be able to add a single acre to the recreation ground of the public or the allotment grounds of the poor. They must either accept or reject as a whole the Provisional Order. Considering that the very essence of the Bill was to bring these schemes under the review of Parliament, the measure would be a perfect farce without such provisions as he had proposed.

said, under the existing law when Provisional Orders were passed by the Inclosure Commismissioners, the Home Secretary had to bring in a Bill for their confirmation, and he did that with the whole strength of the Government in the House of Commons at his back. It was to that he objected. He therefore fell back upon a Standing Committee who would go through all the details and see whether those schemes were such as in their opinion ought to be presented to Parliament. The bringing in of a Bill in that case would be purely a Ministerial act. But if they were to say that this Standing Committee might alter what had been agreed upon that would be quite another thing.

opposed the Amendment, on the ground that if they passed an Act saying a scheme should be dependent on certain consents, they should not turn round when those consents had been obtained and allow something else to be done. He would suggest to the right hon. Gentleman the Home Secretary that the measure should be so altered as to provide for schemes being adopted which had the assent of all the persons interested in the commons to be dealt with.

said, if the Amendment were adopted, it would be unsafe for persons to apply for an inclosure, as they would be completely in the power of the Committee.

pointed out that Committees on Private Bills had power to alter the schemes submitted to them. It was possible that as this Amendment was now worded, the parties would not be able to withdraw from their proposal if they disapproved of the changes made; but that difficulty could easily be met by an addition to the Amendment.

believed the Home Secretary would have met with stronger opposition at the earlier stages of the Bill, if it had been understood that he meant to leave everything to the Inclosure Commissioners, whose decisions the Standing Committee could not revise.

suggested that the Home Secretary should bring up a clause which would place the parties to an inclosure before the Select Committee in the same position as the promoters of a private Bill, and enable them to withdraw the scheme if they did not like any change which was made in it. If the right hon. Gentleman would not assent to that course, it would be desirable that the hon. Member for Reading should divide the Committee on his Amendment, though it did not fully solve the difficulty.

said, the right hon. Gentleman the Home Secretary proposed to give to a Standing Committee powers which he objected to confer upon the House. For his part, he objected to any such power being given to the proposed Committee, and he hoped the proposal would be rejected.

thought the clause as it stood proposed a convenient as well a reasonable mode of procedure.

objected to the method proposed by the Home Secretary, that these Provisional Orders should be submitted to a Standing Committee of that House, simply for acceptance or rejection, without giving such a Committee the power of going into details, and making such alterations as they might think reasonable. A doctrine of that kind, if acted upon, would furnish a very unsatisfactory precedent for the conduct of Select Committees, and one which, so far as he knew, was altogether foreign to the practice of the House of Commons.

said, the object of the Bill was to put the Select Committee in the place of the Secretary of State, who at present could make no alteration in schemes and could only refuse to bring forward the Bill embodying them. If the Select Committee had power to alter the particular schemes, it could only be after hearing the parties; but the result of such an arrangement would be much in favour of the rich man, for the poor persons interested could not afford to appear. A local inquiry, where all parties could be heard, was the cheapest and simplest way of making any changes in a scheme. Sir George Grey, when at the Home Office, would not allow alterations to be made in an inclosure scheme even in this House, because the parties interested had consented to the scheme as it stood, and it would be unjust afterwards to alter the scheme without hearing them. In the same way he proposed when the Bill embodying these schemes went before the Committee that they should have before them the documentary evidence and say whether a particular scheme was one which, in their opinion, Parliament ought or ought not to accept. He was willing to confer with the right hon. Gentleman (Mr. Dodson) before the Report; but he could assure the Committee that there were practical difficulties, and meanwhile he hoped the Amendment would be withdrawn.

said yes; the subject was one of difficulty, and here was a defect in the measure to which there were great objections. The observations which the right hon. Gentlemen addressed to the Committee were an argument against the whole Bill. It seemed to be a Bill for relieving the Secretary of State from responsibility and throwing it upon the Standing Committee. It was going very far to say that a Select Committee, of this legislative body, should have no power to alter and modify a scheme because the Secretary of State, who was an Executive officer, had no such power.

still retained his opinion that a Parliamentary Committee ought to have power to deal with the details of schemes. He had always understood until now that the intention was that the Committee should have the power of making modifications.

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

The Committee divided:—Ayes 56; Noes 99: Majority 43.

Clause, as amended, agreed to.

Clauses 13 to 17, inclusive, agreed to.

House resumed.

Committee report Progress; to sit again upon Thursday next.

In reply to the Marquess of HARTINGTON,

said, that the Commons Bill would be taken as the First Order on Thursday, after which Supply would stand next if the Bill was got through in sufficient time. Then on the following Monday the First Order would be the second reading of the Appellate Jurisdiction Bill, and if there was time afterwards they would proceed with the University of Oxford Bill. On Thursday, the 15th, they hoped to take the second reading of the Elementary Education Bill.