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Commons Bill—Bill 184

Volume 230: debated on Tuesday 20 June 1876

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( Mr. Assheton Cross, Sir Henry Selwin-Ibbetson)


Bill, as amended, considered.

asked what the Government intended to do in reference to the inclosure schemes which had been sanctioned by the Inclosure Commissioners, and which were at present under the consideration of the House?

, in reply, said, it was his intention that these schemes, having passed the Inclosure Commissioners, should be referred to Mr. Caird to report on them to the House whether any of them ought to go on or not. After further consideration, he thought all those schemes had better come under the operation of the present Bill and begin de novo. He was bound to say it was a question fairly to be considered whether the Treasury might not be asked to refund the money deposited by those who promoted these schemes.

said, the statement just made by the right hon. Gentleman would be received with much satisfaction both within and out of the House.

moved, after Clause 14, to insert the following Clause:—

"In any application to grant an injunction against the inclosure of land when it is upon the hearing of the case proved that the same is common or commonable, it shall not be necessary that the applicant should have rights of common in the same."
The object of the clause was merely to render security against illegal inclosures more easily obtainable.

Clause brought up, and read the first time.

Motion made, and Question proposed, "That the said Clause be now read a second time."

said, he did not think the clause necessary, and considered it would, if accepted, practically interfere with private property. He did not think there would be any difficulty in getting a person who had a real interest in the common to set the law in motion.

said, he thought the clause desirable, and was prepared to support the Motion of the hon. Baronet.

, in opposing the clause, said, it would, if accepted, operate as a violation of the principle that whoever set the law in motion should have an interest in the matter. As the Bill now stood, sufficient security against any such course as the hon. Baronet apprehended was provided.

said, he had a somewhat kindred Motion on the Paper, and he was apprehensive, from the manner in which the right hon. Gentleman the Home Secretary had expressed himself, he would not receive it favourably. He should, however, submit it to the consideration of the House. He regretted that the Government could not accept the Amendment of the hon. Baronet.

said, it did not strike him they would gain any advantage by adding the clause to the Bill.

said, there was a distinction to be drawn between land that was commonable and other land. This clause proposed to deal not only with commons, but commonable land. If they passed this clause, they would give a perfect stranger a right to apply for an injunction against an inclosure.

said, the sole object of this clause was to give persons who had certain privileges in connection with commons, without possessing an actual legal interest, an opportunity of opposing illegal inclosures, and he therefore supported, it.

said, that whatever technical objections might be made to the clause, it was intended to meet in a direct and practical way a great evil. It was said that the clause would produce no good, or little good, now that the Home Secretary had consented to refer such cases to the County Courts. But the difficulty in the case of such illegal inclosures was to find some one who, being a commoner, would undertake the responsibilities and bear the brunt and expense of an action to prevent such inclosures at the time they could be most successfully resisted. In the case of Epping Forest, the inhabitants of the metropolis would have lost the whole of that open space but for the mere accident of finding a commoner who had a legal interest in the forest willing to undertake the duty. The Bill of the Home Secretary gave no new security against illegal inclosures. What the hon. Member for Chelsea wanted was that the public should have the power to prevent such inclosures; and how could that clause be objected to by the Home Secretary, who admitted that the public had an interest in the preservation of these commons? The right hon. Gentleman himself admitted the principle in the case of village greens. Why not apply it also to commons?

said, the question was one of machinery to prevent illegal inclosures, and the proposals before the House went too far. Instead of giving a Roving Commission to anybody, whether he had an interest in the matter or not, it would be better to empower some constituted regular body—such, for instance, as the parish officers. If the clause was more restricted it would be more workable, and he hoped the hon. Member would not press it to a division.

said, he would not press his clause to a division if the Home Secretary held out any hope that a clause, however limited, aiming at the object of that now under discussion would be introduced. He had no objection to accept a limitation to freeholders residing in the parish. As the Home Secretary did not make any concession he should divide the House.

Question put.

The House divided:—Ayes 91; Noes 178: Majority 87.

moved, after Clause 14, to insert the following Clause:—

(Prevention of illegal inclosures.)
"From and after the passing of this Act any person making, or procuring to be made, any illegal inclosure of a Common shall forfeit the sum of one hundred pounds to such person as will sue for the same: Provided, That no action for the recovery of such sum shall be brought after the expiration of one year from the date of the said inclosure."

Clause brought up, and read the first time.

Motion made, and Question proposed, "That the said Clause be now read a second time."

said, he hoped the hon. Member would not press the clause to a division, as the same objection would apply to it as to the clause which had just been rejected. Besides, it would make a man who believed he was exercising a legal right liable to a criminal prosecution for doing so.

supported the clause, on the ground that if a man did an illegal act it was right he should be punished, and that the inclosures of the last 10 years were a public scandal.

said, the simple effect of the clause would be to make a man who might be mistaken in the assertion of a civil right liable to a criminal prosecution.

also opposed the clause, which he considered was intended for the propagation of that most hateful class of vermin—common informers.

said, a man in the exercise of what he thought a civil right might do a great injury to many persons, and ought to be punished if he acted illegally.

opposed the clause as vicious in principle, expressing his belief that if it were adopted, they would soon have to pass an amending Act to repeal it.

Question put.

The House divided:—Ayes 95; Noes 188: Majority 93.

moved, after Clause 18, to insert the following clause:—

(Notice of approvements or inclosures.)
"Where any person intends to approve or inclose, otherwise than under the provisions of this Act, the whole or any part of a Common or of the waste land of a manor, he shall, six months at least before commencing the approvement or inclosure, give notice of his intention to the Inclosure Commissioners, and furnish them with all such information and particulars as they may require; and if it should appear to such Inclosure Commissioners that there is good reason for resisting such approvement or inclosure, it shall be lawful for them to take all such legal proceedings and other steps as may be necessary for compelling the discontinuance of or for preventing such approvement or inclosure, in the same manner as if they were interested in such Common or waste as commoners, and any expenses incurred by them for this purpose shall be defrayed by them out of any moneys in their hands applicable to their general expenses."
He justified the clause upon the ground that it was the practice of the lords of the manors to encroach upon the commons when they knew that the commoners were too poor to incur the expenses of a Chancery suit in resisting an encroachment of the kind. The clause would put the Commissioners in exactly the same position as the commoners, and they would thus have a legal right to resist those illegal inclosures.

Clause brought up, and read the first time.

Motion made, and Question proposed, "That the said Clause be now read a second time."

said, he was sorry to have to oppose those clauses one after the other, as there was not anyone more anxious than himself to provide against illegal inclosures; but there were great practical difficulties in the way, as it was impossible at the outset to distinguish between legal and illegal inclosures. Under those circumstances, all he could do was to give a summary jurisdiction in the matter to the County Courts; and he believed that would have the effect of putting an end to illegal inclosures without interfering with private rights. Again, he thought the House ought to hesitate before it sanctioned any payment out of the public purse for such litigation as that contemplated by this clause.

believed that the charge upon public funds would be very slight, and he added that he thought that the clause, with some alterations, would meet the circumstances of the case.

thought it unwise to entrust to the Inclosure Commissioners such vague and indefinite powers, and to give them the command of the public purse in carrying them out. He reminded hon. Members that the clause was practically the same as one which had been rejected by a large majority when the Bill was in Committee.

thought that with a little alteration the proposed clause might be made a very useful and practical provision. When public rights were interfered with they should be protected by some public body, and such protection would be a perfectly legitimate object to which to apply public money.

objected to the clause because it would either be useless or mischievous, and should therefore vote against it. A man who knew that his inclosure would be illegal would not give notice of it; whilst those who were doubtful about the matter would give notice in order to see whether or not any objection would be taken.

believed that the Government had made up their minds to resist all improvement in the Bill. They had opposed this clause, which was the last of the many clauses on the Paper, designed to resist illegal inclosure. He wished to point out a very important consideration that had been omitted in the debate. The Bill professedly would greatly increase the difficulty of inclosure through Parliament, and therefore lords of the manor would have a strong inducement to resort to illegal means to carry out their object.

considered the hon. Member for Hackney was not justified in saying there was an intention on the part of the Government to resist any proposal which would improve the Bill, because the Amendments proposed by himself and his Friends had been negatived. As regarded this particular clause, he did not see any objection to it, and thought the Commissioners would be a very good body to carry out the duties proposed to be imposed upon them. He did not think that it would be a bad appropriation of public money to devote it to the purpose of preventing illegal inclosures.

suggested, on behalf of the hon. and learned Member for Durham (Mr. Herschell) that the clause should be amended by the alteration of the term of notice from six to three months, and the insertion of the words "in the interests of the public."

, although the clause did not go so far as he should wish, and was not exactly in the form which he should desire, would nevertheless give it his hearty support.

said, he would adopt the suggestions that had been made if the clause was accepted by the House.

Question put.

The House divided:—Ayes 155; Noes 189: Majority 34.

moved, after Clause 18, to insert the following clause:—

(Allotments for recreation and gardens.)
"The provisions of the Inclosure Acts 1845 to 1868 which authorize the Inclosure Commissioners to require allotments for exercise and recreation, and allotments for field gardens for the labouring poor to be made upon any inclosure of a Common which is waste of a manor, or subject to unrestricted rights of Common, shall extend to authorize them to require such allotments to be made upon any inclosure of Common which is not waste of a manor or subject to unrestricted rights of Common."

Clause agreed to, and added to the Bill.

moved, in page 16, after Clause 18, to insert the following clause:—

(Gravel digging.)
"After the passing of this Act, where any Common is regulated pursuant to this Act by a Provisional Order of the Inclosure Commissioners confirmed by Parliament, or is the subject of a scheme confirmed by Parliament under the provisions of 'The Metropolitan Commons Act, 1866,' or 'The Metropolitan Commons Amendment Act, 1869,' or (being situate within the Metropolitan police district) is the subject of any private or local Act of Parliament having for its object the preservation of such Common as an open space, no surveyor of highways or highway board constituted in pursuance of the Highway Acts, or trustees of any turnpike road, shall search for, dig, get, or carry away gravel, sand, stone, or other materials in or from such Common without the consent of the person or persons having the regulation or management of the same, or in default of such consent, without an order of two or more justices in petty sessions assembled, and acting in and for the petty sessional division in which such Common is situate, who may in their order prescribe such conditions as to mode of working and restitution of the surface as to them shall seem expedient."

Clause brought up, and read the first and second time, amended, and added to the Bill.

moved, after Clause 21, to insert the following clauses:—

(Field gardens to be free of rent-charge.)
"There shall be repealed so much of the Inclosure Acts 1845 to 1868 as relates to the charging of an allotment made for the purpose of a field garden with a rent-charge, and every such allotment made after the passing of this Act shall be made free of all charge."
(Allotments for recreation grounds to be vested in churchwardens and overseers.)
"There shall be repealed so much of the Inclosure Acts 1845 to 1868 as provides that an allotment made for the purpose of a recreation, ground may be allotted to any person entitled to an allotment under the inclosure, and every such allotment made after the passing of this Act shall be vested in the churchwardens and overseers for the time being of the parish in which the same shall be situate, and shall be held by them as provided by the Inclosure Acts 1845 to 1868."

Clauses agreed to, and added to the Bill.

moved the following clause:—

(Six months' notice of claim to inclose to be given in the "London Gazette" and local papers.)
"Any person intending to inclose or approve a Common or part of a Common otherwise than under the provisions of this Act shall publish, at least six months beforehand, a notice of his intention to make such inclosure, for three successive times, in the "London Gazette" and in two or more of the principal local newspapers in the county, town, or district in which the Common or part of a Common proposed to be in closed is situate."

Clause brought up, and read the first and second time.

accepted the principle of the clause, but suggested that three months' notice should be substituted for six months, and that The London Gazette should be struck out. It would also be desirable to add a Proviso that a copy of the newspaper should be evidence of the notice having been published.

Clause amended, and added to the Bill.

moved in Clause 8, page 7, line 4, at end, to add—

"Provided, That the Inclosure Commissioners shall not entertain an application for the inclosure of a Common or a part of a Common which is situate in or within one mile of any town comprising a population which exceeds 5,000; or in or within two miles of any town comprising a population which exceeds 10,000;or in or within three miles of any town comprising a population which exceeds 20,000;or in or within four miles of any town comprising a population which exceeds 50,000; or in or within five miles of any town comprising a population which exceeds 100,000; or in or within six miles of any town comprising a population which exceeds 200,000. When part only of any Common subject to be inclosed is situate within the aforesaid distance from the town, such part shall be deemed for the purposes of this Act to be a distinct Common from the part which is not situate within the aforesaid distance from the town."
The right hon. Gentleman explained that he proposed the Proviso in substitution for the Amendment he had moved in Committee. The objection to that Amendment had been that it interfered with the general scope of the Bill. This Proviso possessed the advantage of harmonizing with the purposes of the Bill. It applied to principal towns the same regulations that existed in the metropolis under the Metropolitan Commons Act Ten years' experience of this Act showed its application to be advantageous to the public, without infringing the rights of property.

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

said, the question had been practically discussed in the Committee, though not actually in the same form. The Government could not accept the Proviso, which was against the scheme of the Bill. He did not want to inclose those commons any more than the right hon. Gentleman did, but he must adhere to the scheme of the Bill, which allowed every common to stand upon its own merits. There was a clause empowering the authorities of any town interested in a common to appear before the Commissioners, and therefore unless there was a strong ground in favour of the inclosure it was not likely to be allowed.

contended that the Amendment was in no way opposed to the spirit of the Bill. It simply secured to towns any vacant spaces to which they might be entitled, and was for the purpose of facilitating the establishment of town parks. He hoped that the words would be accepted by the Government.

Question put.

The House divided:—Ayes 131; Noes 223: Majority 92.

moved in Clause 12, page 13, after sub-section (7) to insert—

"(7a.) On a request in writing signed by 12 inhabitant ratepayers of the parish in which the Common is situate to which a draft Provisional Order relates (whether such ratepayers are persons legally interested in the Common or not), the Inclosure Commissioners shall cause a public meeting to be held by an Assistant Commissioner at a suitable time and place for securing the attendance of the neighbouring inhabitants to consider such draft Provisional Order; and the provisions in this Act contained relating to the notice to be given of public meetings held by the Assistant Commissioner, the conduct of such meetings, and the report to be made to the Inclosure Commissioners respecting such meetings, shall apply to meetings held to consider a draft Provisional Order: Provided, That, if it be so requested in the aforesaid written request, the said meeting shall be held in the evening between the hours of seven and ten of the clock."
His object was to enable the public to express its opinion upon any contemplated inclosure, not only before the conditions of the inclosure were known, but also after the Provisional Order had been issued.

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

was unable to accept the Amendment, which he thought unreasonable. Under the Bill there was in the first instance to be had an inquiry before a Commissioner, when everybody would have an opportunity of stating his case, and then it was for the Commissioner in his quasi judicial capacity to form his conclusion. Then the Provisional Order would be sent down, and anybody might raise objections to it, the Inclosure Commissioners having power to modify the scheme.

Question put, and negatived.

moved, in Clause 12, page 14, line 20, to insert as subsection 11—

(Supplemental power to modify Provisional Order after expediency certified.)
"If after the presentation to Parliament of a Report made by the Inclosure Commissioners certifying the expediency of any Provisional Order for the regulation or inclosure of a Common, and before a Bill has been brought in for the confirmation of such Order, such Report is referred to a Committee of either House of Parliament for consideration, and such Committee recommend that such Provisional Order should not be confirmed by Parliament except subject to certain modifications, the Inclosure Commissioners may modify the Provisional Order accordingly, but such modifications shall not be of any validity unless they are consented to in the same manner as if they had formed part of the draft Provisional Order originally deposited by the Commissioners;
"And it shall be the duty of the Commissioners to take the necessary steps for ascertaining whether such consent as aforesaid can be obtained or not, and if such consent be obtained, the Commissioners shall make a special report to the effect that the order has been modified as aforesaid and such consent duly obtained, and such report shall be presented to Parliament; and thereupon the order so modified shall be deemed to be in the same position in all respects as if it were an order in respect of which a report had been made by the Commissioners certifying the expediency thereof, and such report had been presented to Parliament."

Amendment agreed to.

Bill to be read the third time upon Thursday.