§ THE EARL OF MALMESBURY,
in moving for certain returns relative to the New Forest, Hampshire, asked the indulgence of the House for trespassing upon their time with a matter which was so far personal to himself that he might be said to be one of those who were to some extent upon their trial before the Commissioners of the New Forest. He should first be obliged to trouble their Lordships with a summary of the circumstances connected with the appointment and the proceedings of the Commission. In 1851 an Act was passed for the purpose of putting an end to the deer, which contained a clause enabling the Crown to appropriate and plant 10,000 acres, in addition to the 6,000 acres already possessed by it in the New Forest; the commoners also were called upon by that Act to prove their rights before the County Court Judge at Southampton, and power was given to sell waste lands to the extent of £2,000 to 205 defray the expenses of carrying out the Act. That sum was found to be far too small for the purpose, and in 1854 another Act was passed appointing three barristers to adjudge on the claims of the commoners, and giving them power to sell any quantity of waste land in the forest, in addition to the £2,000 sanctioned by the Act of 1851 in order to defray the expenses. These Commissioners had been engaged ever since November, 1854; and he begged to remind their Lordships that many of the commoners were very poor persons, who had no original title, but who had a right of user of upwards of two centuries, and who felt this investigation to be of the very greatest importance, regarding it almost as a struggle between the Sovereign and themselves. It was of the highest importance that the Commissioners should proceed with the adjudication as rapidly as possible, because the witnesses were necessarily very aged and could not be expected to live much longer. The incendiary fires which took place in the New Forest a few years ago originated in the feeling which prevailed among the people against the Commission; and he had no hesitation in saying that the Commissioners could not evince too great a spirit of conciliation. Such a spirit had not been displayed. The population affected by the Commissioners covered about 60,000 acres, and the places at which the Commissioners held their sittings were at so great a distance from the residences of the parties whose claims they were called upon to decide, that in many instances the poorer commoners could not afford to pay the expense of conveying their witnesses. Only the other day several parties were obliged to attend the Commissioners at a distance of from ten to twenty miles from their residences. Again, it was matter of complaint that the Commissioners had sat only two years, and that during the first they had succeeded in disposing of no more than half-a-dozen claims, while during the second, 1856, they bad confined their sittings to forty days. He had been told by an ingenious lawyer, and he had every reason to believe the statement to be true, that every sitting of the Commissioners cost four acres of the forest. In November last, hearing that a court was to be held at Christchurch, and finding that his claims and those of his neighbours were not to be taken at that sitting, he ventured to address a communication to the Commissioners, against whom he entertained no sort of prejudice, explaining 206 his views on the subject. That letter was worded in what he believed to be a proper manner; but, in order that their Lordships might judge for themselves, he would take the liberty of reading it:—Heron Court, December 17, 1856.Gentlemen,—Having lately returned from abroad, I have only just learnt from Mr. Druitt, at Christchurch, that you are about to hold a Court upon Forest Claims at that place; but that mine, although my property is actually adjoining, are not to be investigated, but are deferred to a more, distant period and locality. I therefore beg leave I to ask you upon what grounds my interests are treated differently from the majority of cases belonging to this parish? If it be so, I am exposed to a great increase of expense in sending my witnesses (necessarily extremely aged persons) a long day's journey, instead of a short walk to the court, while the poorer claimants, whose witnesses would be nearly the same as mine and those of the large proprietors, are deprived of the advantage of saving their expenses altogether by calling them simultaneously with ours. As I consider it a case of great and apparently useless injustice and inconvenience to myself and others, I have taken the liberty to press upon you my view of it, in the hope that you may think fit to take the whole of this parish at the same time and place.I remain, Gentlemen, your obedient servant,MALMESBURY.The Hon. the Commissioners for Forest Claims.On the 1st of January—a fortnight after the date of his communication—he received the following answer:—Christchurch, January 1.My Lord,—I have laid your Lordship's letter before the New Forest Commissioners on the first occasion of their meeting since the receipt of it. I am directed by the Commissioners to acknowledge it, and to inform your Lordship that they cannot take any notice of the questions and arguments therein contained, as they do not recognise in any man the right to address them in the manner your Lordship has thought fit to assume.The usual public notice will be given of the time and place at which the Commissioners will hear and determine on your claim.I am your Lordship's very obedient servant,W. STEAD.Clerk to the Commissioners.To the Right Hon. the Earl of Malmesbury.When he received that letter, signed by the clerk to the Commissioners, he thought it was the ebullition of some prancing attorney, not conceiving it possible, having no intention of offending the Commissioners, that they had authorised the transmission of so discourteous a communication. But he had since ascertained that the Commissioners themselves, and not their clerk, were responsible for it. He rejoined in the following terms:—Heron Court, January 3.Sir,—I beg to acknowledge your note of the 1st inst.207Having been in the habit of corresponding officially with every class of public servants, both abroad and at home, and having myself had the honour to hold a high responsible appointment under the Crown, it would be truly unpardonable were I to deserve the charge of showing a want of courtesy and respect to persons delegated by Her Majesty for any particular service.With this feeling in my mind I have carefully read the copy of my letter of the 17th of December to the New Forest Commissioners, without being able to discover the unintentional offence which, as you state, 'the manner I have thought fit to assume' has caused. I could have had no motive in offering such to the public position of these gentlemen, and still less to them personally, because I am at this moment unacquainted even with their names.Had I found in my letter any expression which could be construed into a solecism in private or official correspondence, I would gladly offer them an apology. As it is, I cannot do so; but, on the contrary, must affirm that, in applying for an explanation of certain orders which appeared to subject myself and my poorer neighbours to unnecessary and therefore unfair expense, and in 'taking the liberty to press upon the Commissioners my views, in the hope that they might think fit,' &c., I was exercising the undoubted privilege of self-defence, and supporting it in the language of a gentleman. I knew that we had no appeal from the judicial decisions of the Court, but I believed that we might without presumption observe upon its preparatory acts, and, like other defendants in other courts, plead for speedy justice or a change of venue.But, as the Commissioners 'do not recognise in any man this right,' it only remains to me to ask in Parliament for a public explanation of the course of justice to which I (as a party concerned) object, and, if possible, also to ascertain in what more fitting form of diction than that which I have used, the New Forest Commissioners expect to be addressed by Her Majesty's subjects.I remain your obedient servant,MALMESBURY.The Clerk to the Commissioners for the New Forest Claims.If he had received from the Commissioners a letter of explanation, which, however, he did not say they were bound to give; if they had simply stated, in official language, that they could not comply with his request, he should not have troubled their Lordships with the subject; but he had read the correspondence to show the animus of the Commissioners and the absence of that delicacy of management which, desirable in all cases, was especially required in a Commission necessarily offensive to the people. After the correspondence had taken place, a memorial was addressed to the Commissioners by the magistrates and gentlemen residing in his neighbourhood, which had the effect of causing the Commissioners to announce their intention of holding their meeting in March at Christ-church, instead of at Southampton, The 208 following was an extract from a letter which he received from the oldest magistrate who attended the meeting where that memorial was agreed to:—Dear Lord Malmesbury—We did not ask you to sign our memorial, feeling that after the treatment you had experienced you ought not to be exposed to the chance of a repetition of it.What he wished to impress upon the Government was the cruelty of compelling persons to wait a long period for the settlement of their cases, imposing upon them the risk of losing their witnesses through advanced age, and also the necessity of modifying some of the terms which had been laid down by the Commissioners. There was one point to which he hoped the attention of the Government would be directed. When the deer were in the forest the month of June was kept as a fence-month, and the commoners were not allowed to put their cattle in. But in the Act of Parliament this circumstance was ignored altogether, and although there were now neither deer nor fawns in the forest, the fence-month was enforced more strictly than ever. Before concluding, he would refer to the case of Brecknock Forest, which was enclosed some years ago. They began with selling one-fifth of the forest, and at the end of seven year's the lawyers' bill had swelled to so. large an extent that it required the sale of two-fifths of the land to liquidate it. What became of the other two-fifths he supposed no one knew. With that precedent before them he thought they could not act with too much caution. He asked the noble Earl opposite whether the Government approved the letter which the Commissioners wrote to him in answer to the one he had sent them. The noble Earl then moved for the Returns.
§ EARL GRANVILLE
had on former occasions been warned of the extreme difficulties which he would have to encounter in answering in an efficient way questions relating to those departments of the Government not represented in that House, and the discussion now raised had afforded some proof of the wisdom of that warning. He was happy, however, to say that the responsibility did not in this particular case rest on him as a Minister of the Crown, for the Commission whose conduct had been impugned was responsible, and that to Parliament alone, having been constituted by an Act of Parliament. The noble Lord at the head of the Government, like the noble Earl, was a commoner in the New 209 Forest, and a defendant in this very suit; but there was this difference between them, that, while the noble Earl complained of the delay which had taken place, the noble Viscount was not very well pleased that his claim had been so speedily disposed of, and that in a manner not at all satisfactory to himself. Having received from the noble Earl opposite timely notice of his intention to move for these Returns, he had written to the Commissioners on the subject, and they had sent to him copies of a statement which they had transmitted to the noble and learned Lord on the woolsack, not in his capacity of adviser to the Crown, but as the head of the profession to which they belonged. He would, therefore, ask permission to leave the matter in the hands of his noble and learned Friend.
THE LORD CHANCELLOR
said, it was quite true that the papers referred to by his noble Friend had been put into his hand, and he would therefore make a few observations on the subject, especially as on one or two points, the noble Earl (the Earl of Malmesbury) had a little misunderstood the position of the Commissioners. The Act of Parliament passed in 1854 appointed the Judge of the County Court of the district to be the head of the Commission, and authorised the Lord Chief Justice of the Queen's Bench to select two other barristers to constitute the Commission, which was to be a Court for the purpose of hearing claims and adjudicating upon them. The gentlemen selected were Mr. Barstow and Mr. Coleridge, and it was due to them to say that two more honourable men did not exist. They proceeded to the district and entered upon the duty of hearing the claims of the commoners. The noble Earl seemed to suppose that a rule was laid down which required persons to prove an user from 1800. That was a mistake. All they did was to satisfy themselves that the commoners had acquired a legal right to their land. The Act of Parliament said that if any one could prove that he had been in possession from 1800, it was to be held sufficient; but such cases were exceptional, and in most instances the Commissioners had been satisfied with proof of twenty years' possession. In the discharge of their duties the Commissioners had to fix times and places to hear claims. This was a legitimate exercise of the powers conferred upon them, and they had stated to him that they were anxious to have the manner in which this duty was discharged examined 210 and sifted in the most searching manner. No persons could be more desirous than they were to conclude their duties. They had no interest, in point of remuneration, in delaying the adjudication of the claims, because, as he understood, the sale of the forest lands was to pay the expense of the Commission. He would now repeat to their Lordships what he had already told the Commissioners, that he thought they had misconstrued the letter of the noble Earl altogether. He said he did not think that letter called for the reply they had given to it, and they expressed their extreme regret that they should have so misunderstood it. But what they felt was that they were there, not so much as Commissioners of the Crown to contest with the commoners, as persons who were appointed to do impartial justice to all parties. When the noble Earl's letter came to hand the question was under consideration whether they should sit at Christchurch or some other place; and, in conformity with the oath they had taken, they felt that they were bound to decide this and every question judicially, and in accordance with the interests of the commoners. While this matter was under consideration the Commissioners received from the noble Earl a letter, in which it was stated that the course they were pursuing "would be attended with injustice."
THE LORD CHANCELLOR
Well, even if the expression had been "injustice" he did not think it would have justified the reply of the Commissioners. Indeed, in his opinion, there was nothing in the noble Earl's letter that called for an angry answer. He believed that the Commissioners had discharged their duties with the utmost zeal, and if there was any ground for complaint it was not that their proceedings had been too slow, but that they had been too hasty. He could only say, on the part of the Commissioners, that the returns which had been moved for would be prepared with the utmost care, and that they were anxious that their proceedings should be subjected to the most strict investigation. He would venture to say that the character and conduct of the Commissioners were unassailable, and that they had endeavoured to discharge their duties in a satisfactory manner. At the time they received the noble Earl's letter they were considering 211 whether it would be for the interest of the suitors that they should sit at Christchurch or not, and as they thought it would be advantageous to the suitors they determined to sit at that place
said, he thought the Motion of the noble Earl was far from being an improper one, for it was desirable that Parliament should have information as to the proceedings of all courts. He (Lord Campbell) took some interest in the conduct of these Commissioners, because, although he would gladly have been spared the duty of making the choice, he had been called upon by Parliament to appoint two of them. There were three Commissioners, one of whom—the County Court Judge—was named in the Act of Parliament, and in selecting the other two Commissioners he had acted upon the maxim, detur digniori, and had endeavoured to select the most competent men from the Western Circuit. He could not name a leader or a silk gown, who might not, perhaps, be able to afford time; but as many very difficult questions of law, involving a large amount of property, might arise, it was necessary to select men of some experience. He had named Mr. Barstow, with whom he had little personal acquaintance, but had long known as an eminent lawyer and most honourable man, and Mr. Coleridge, a member of a family highly distinguished for their ability, and himself one of the most rising men in Westminster-hall, and a man of spotless character. He thought that the reply of the Commissioners was hasty and to be regretted, and had since pointed out to them that the letter of the noble Earl was a most courteous one, containing nothing to excite the jealousy or offend the dignity of any public officer. The Commissioners doubtless looked upon the noble Earl's letter as an interference on the part of a suitor with the discharge of their functions; but he (Lord Campbell) thought there was no ground for such an opinion. He believed that when the returns for which the noble Earl had moved were produced it would be found that the Commissioners had discharged their duty ably, industriously, and with perfect fairness. He thought the noble Earl had somewhat prematurely censured the Commissioners in the letter he had addressed to The Times newspaper, and that he ought first to have moved for the returns and have reserved his censure until he found that it was justified by the facts.
§ THE EARL OF HARDWICKE
considered that his noble Friend (the Earl of Malmesbury) had rendered a public service by bringing this subject under their Lordships' attention, for he thought the conduct of the Commissioners ought to be carefully watched by Parliament. He believed there was no tribunal which was so satisfactory to the Commissioners and so unsatisfactory to landowners as an enclosure commission, for he had known cases where Commissioners luxuriated in turtle and champagne, and discharged their public duties in the most leisurely manner. The Lord Chancellor had said those Commissioners had been too hasty in their decisions, and he (the Earl of Hardwicke) thought they could not have paid very diligent attention to their duties, as they had only sat for forty days since their appointment. The letter of the Commissioners to his noble Friend was couched in such terms as he had never seen addressed by public officers to any gentleman in the land, and he had certainly expected that the noble and learned Lord on the woolsack—although he said he had no power to censure the Commissioners—would have expressed his strong disapprobation of the conduct of members of the Bar who had been parties to such a communication.
§ THE EARL OF MALMESBURY
wished to say that he did not complain that the judicial decisions of the Commissioners had been unfair, or even mistaken. He complained of their arrangements, which he thought were most objectionable. He had been under the mark in stating that the Commissioners had only sat four hours a day at Christchurch, for taking the average of a fortnight they had only sat three hours and a half a day.
THE LORD CHANCELLOR
said, it was clear that the Act of Parliament had not contemplated a continuous sitting, for it had appointed the County Court Judge of the district one of the Commissioners, and he was always employed in his duties some days in each month.
§ EARL GRANVILLE
reminded the noble Earl that the concluding paragraph of his letter to the Commissioners ran in these terms:—"As I consider it a case of great and apparently useless injustice and inconvenience upon myself and others, I have taken the liberty to press upon you my view of it, in the hope that you may think fit to take the whole of this parish at the same time and place." The Commissioners 213 might very well have regarded this as impugning their conduct, and that therefore they felt some irritation on the subject.
§ THE EARL OF MALMESBURY
said, he did not think it could be taken in that sense; and he must say that he was sorry to find that his noble Friend had not had either the courage or the friendly courtesy which he (the Earl of Malmesbury) might perhaps have expected from him more than from any other Member of their Lordships' House, of saying that which the noble and learned Lord had so fairly and generously said as to that letter. His noble Friend (Earl Granville) preserved absolute silence when asked if he approved of the letter, and not until the debate was closed did he endeavour to show that there was any reason for the answer he had received.
§ EARL GRANVILLE
thought there was no ground whatever for this attack upon him by the noble Earl. The noble Earl having brought his Motion and applied to him (Earl Granville), as the representative of the Government in that House, to give his opinion with regard to the course which had been taken by the Commissioners; and when he rose he stated, he thought, in a manner not in the slightest degree discourteous, the reasons why, as a Minister of the Crown, it would not only be unnecessary, but in some degree improper, for him to speak in reference to a case in which the Crown was a suitor. Further, he conceived that it would have been manifestly unjust if, in the absence of the Commissioners themselves, and upon a single point on which he believed them to have acted without sufficient consideration, he had condemned them before hearing the defence which his noble and learned Friend the Lord Chancellor had been able to make for them. He should have thought his noble Friend would have been grateful to him for correcting an unintentional statement on his part, instead of exhibiting what he could not help as regarding as some degree of anger and want of courtesy.
§ Motion agreed to.