Lords Sitting of 2 July 1872

MINUTES.
PUBLIC BILLS—First Reading—Local Courts of Record* (185).
Second Reading—Inclosure Law Amendment* (169).
Select Committee—Church of England Fire Insurance* (102), nominated.
Third Reading—Bankruptcy (Ireland) Amendment* (175); Debtors (Ireland)* (175), and passed.

INCLOSURE LAW AMENDMENT BILL.
(The Earl of Morley.)

(NO. 169.) SECOND READING.
Order of the Day for the Second Reading, read.
THE EARL OF MORLEY, in moving that the Bill be now read the second time, said, the subject of the inclosure of commons was one which had long engaged the attention of the other House of Parliament. As far back as the end of the last century a Select Committee of the House of Commons was appointed to consider the question; and it made certain recommendations. A Consolidating Act was passed in 1801, but no important changes were made till 1844, when there was another inquiry, and in 1845 an Inclosure Act was passed. That Act leaves the lords of the manor in precisely the same position as they had occupied before. They may still inclose under a Private Act; or, if they can obtain the unanimous consent of their tenants, without any Act or Provisional Order; and, further, they have under the almost obsolete Statute of Merton the power of approvement. In addition to these powers of inclosing the waste of manors, the Act of 1845 established a new method, by which inclosure would be much facilitated, or by which the expense would be much decreased. In the Report of the Committee of 1844 there was this statement—
"It has been maintained that the increased value which the passing of a general Inclosure Act would confer on the property possessed by individuals in common lands renders it equitable for Parliament to make provision in such an Act for the benefit of the industrious poor and of the ratepayers, more especially as the inclosure of most common lands deprives some poor persons of advantages which they would otherwise enjoy, either by sufferance, by payment, or by rights which have been extinguished."

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The operation of the Act of 1845 was considered by a Committee of the House of Commons in 1866, and in the Report of that Committee it was stated—
"Parliament regards the granting of facilities for inclosure as a boon to the parties, and, consequently, that in the public interest any terms may be imposed, or that the privileges may be entirely withheld. The inhabitants of the neighbourhood of commons are regarded as having certain primâ facie right of exercise and recreation of commons."
The lords of the soil and the commoners were the only persons who had legal rights in respect of the commons; but custom from time immemorial had given persons living in the neighbourhood of commons privileges of which it would be impossible to deprive them without injustice—one of those privileges being that of roaming over the commons. In addition to this general privilege, the poor inhabitants had the right, or the prospect of obtaining rights of common by grants or uses, of which inclosures would absolutely deprive them. The Act of 1845 acknowledged these rights, and distinctly maintained that the public and poor should be compensated for them. Inclosures were regarded as beneficial to the country at large, as increasing largely its powers of production—incidentally, they were greatly to the advantage of the proprietors, and Parliament demanded certain conditions to be complied before the proprietors obtained the benefit of the inclosure. The compensation the existing law provides for exclusion of the public from the commons, over which they had been accustomed to roam or to resort for purposes of recreation, was a reservation of allotment and recreation ground, which was entirely discretionary with the Inclosure Commissioners. In order to show how exclusively the rights of the lords of manors and of the commoners had been considered, to the exclusion of those of the public or of the labouring poor in the neighbourhood of commons, he would refer to a few particulars. It appeared that from the year 1710 up to 1800 no fewer than 1,760 private Inclosure Acts were passed, and that 2,000 were passed in the course of the following 40 years. About 7,000,000 acres had been inclosed under those Acts. Lord Lincoln, in introducing the Act of 1845, asserted that in 19 cases out of 20 the rights of the labouring poor had been entirely neglected. The number
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of acres inclosed since 1845, when the Inclosure Commissioners were first appointed, was 540,358 acres, of which 370,848 were liable to have public allotments reserved. Out of this large extent only 1,600 acres had been reserved for recreation ground, and 2,113 for allotment—altogether not more than 1 per cent on the whole acreage. The truth was that that Act was greatly defective, in so far as it left the reservation of land for allotment or recreation ground perfectly optional with the Inclosure Commissioners. They were not compelled to make any such reservations, or they might confine them within the narrowest limits; and there was a general feeling in the House of Commons, and out of it, that they had been too narrow in the exercise of their discretion. The Assistant Commissioner, it is true, conducted the local inquiries; and as the poor were generally unrepresented before him, their interests were almost as a matter of course neglected. Indeed, the appropriation of any portion of the inclosed commons for the public purpose appeared to depend on the chance whether the incumbent of the parish or some other philanthropic gentleman took the matter up. He found no fault with the Inclosure Commissioners for this, since they had, in fact, no means of protecting the interest of the poor, nor had they any rule by which to guide themselves. So much dissatisfaction, however, was excited by the working of the Act that in 1867 the whole subject was investigated by a Select Committee of the House of Commons. They recommended that no more inclosures should take place until a new Inclosure Act had been passed; and, in conformity with that suggestion, all operations of the kind had been absolutely suspended for the last three years, the Home Secretary having refused to introduce any Bill confirming Provisional Orders for that purpose. It was, therefore, most desirable that some measure should without further delay receive the sanction of the Legislature. That no such measure had hitherto become law was not the fault of the Government. A Bill founded on the recommendations of the Committee of 1867 was introduced by the Government in 1870, and was then referred to another Select Committee. It was re-introduced in 1871; but, having

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again failed to pass, it now became his duty to submit it to their Lordships. The most important change which it would effect with regard to rural commons was that of taking away from the Inclosure Commissioners a certain amount of their discretion as to the reservation of allotment and recreation grounds, and imposing upon them a minimum of reservations for such purposes. In small commons, not exceeding 500 acres, the allotment for recreation grounds and field gardens was to be not less than one-tenth part of the whole; but, where the extent of the whole was more than 500 acres, the Commissioners were to be empowered to make such allotment as they might think fit, having regard to the special circumstances of the neighbourhood, and being controlled by a provision in the Act that no such allotment should be more than one-tenth of the common, or of less extent than 50 acres. The Bill contained clauses which provided for the regulation of recreation grounds, and for the letting of field gardens to poor inhabitants. In respect of commonable lands, used by the inhabitants of the neighbourhood for the purpose of recreation at any time of the year, there was a provision that in case such commonable land was proposed to be inclosed, the Commissioners should, in their Provisional Order relating to such land, specify, as one of the terms and conditions of the inclosure thereof, the appropriation, free of any charge, of an allotment for a recreation ground. An allotment under the provisions of this section was to bear the same proportion in extent to the allotment which would have been made out of the commonable land proposed to be inclosed, if such land had been common, as the portion of the year during which the inhabitants used such land bore to the whole year. The Commissioners were authorized to specify in their Provisional Order, that one of the conditions of the inclosure was the appropriation, in addition to the recreation ground, of paths, or rides, or drives, for the exercise or recreation of the inhabitants of the neighbourhood. The Bill provided further for the conversion of common or commonable land into "regulated pasture," and protected the lands so converted against intrusion during a reasonable time. So much for the rural commons. The next part of the Bill related
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to suburban commons. It defined a suburban common as land subject to be inclosed under the General Inclosure Acts, and situate in the suburbs of any town—the distance from a town which constituted a suburban common depending upon the number of inhabitants in the town. To these the Bill would extend the provisions of the Metropolitan Commons Act, under which commons within the metropolitan district were excluded from the operation of the General Inclosure Acts. Such commons could not now be inclosed except by private Act of Parliament. The local authorities of any suburban or metropolitan common were authorized to buy up out of the local rates any estate or interest affecting such common. Such would be the position of every common within a certain distance of a town if this Bill passed. In fact, so fast was our population increasing that, although it might be desirable to inclose rural commons with a view to increase the agricultural produce of the country, it was not expedient to encourage the inclosure of those which in the neighbourhood of towns and cities were so materially conducive to the health and pleasure of their inhabitants.
Moved, "That the Bill be now read 2a."—(The Earl of Morley.)
THE EARL OF POWISsaid, the main object of the Bill appeared to be to enable the Commissioners to take from the lords of the soil and the commoners a larger portion of the common than they now could and appropriate it to recreation grounds. It was very desirable that a Bill settling the question should be passed, because for three years no inclosure had been permitted to take place—not because the Bills that had been introduced on the subject by the Home Office had been rejected, but because the Government had failed to prosecute them. He hoped as much time would be given before the second reading of this measure was taken as would enable those most interested to well consider the details, and see how far it was likely to interfere with the working of the existing law. He did not object to the quantity of ground to be taken for recreation and exercise grounds, but he complained that the expense was to be borne not by those who

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were mostly interested, but out of the pockets of the commoners whose lands were to be inclosed. It was, in fact, taxing the country for the benefit of the towns. The noble Earl (the Earl of Morley) appeared to have borrowed a portion of the machinery of the Irish Land Act for the new tribunal it was proposed to establish. By the present law the rights of commoners were proved before Assistant Commissioners, under the supervision of the Inclosure Commissioners; but in addition to that, it was proposed to give the conflicting jurisdiction to the County Court Judges. Another useless piece of expenditure was to be placed upon the unfortunate commoners by compelling that an additional copy of the award should be lodged at their cost with the Commissioners of Public Works, together with a copy of the Ordnance map, as primâ facie evidence of the quantity taken.
THE DUKE OF RICHMONDsaid, he quite concurred with his noble Friend who had just spoken that this Bill contained provisions of an extremely large and wide character, which would have to be very minutely looked into. He doubted whether so great a change in the law as that shadowed forth by the Bill could be satisfactorily carried out except by means of a Select Committee. It appeared to him that it was a great interference between the rights of the existing lords of manors and commoners for the purpose of conferring the property belonging to certain individuals upon third parties, who had no legal status or right to such property whatever. They had no legal right whatever in those commons beyond walking over them or using them as recreation grounds. Now, according to the provisions of the Bill as he read them, no common could be inclosed without a large portion of it being taken away and appropriated to the benefit of persons who had at present no claim to its special uses. It was therefore very essential that their Lordships should look very closely into the mode in which this appropriation was proposed to be effected. Some of the provisions of the Bill were of so arbitrary a character that they required to be very closely looked into. One great objection to the Bill was that it was compulsory, and that the Inclosure Commissioners would have a right to take from a proprietor or lord of the manor
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his property whether he liked it or not. Further, before proceeding with the details of the Bill their Lordships ought to be put in possession of the Reports of the Committees of the other House to which the noble Earl had referred.
EARL FORTESCUEconcurred with the noble Duke (the Duke of Richmond) in thinking that the Bill required very careful consideration. It proposed to give very large powers to the Inclosure Commissioners. He wished these Commissioners enjoyed more of the public confidence than they did. It could not be said that they had shown any indifference to the interests of attorneys and surveyors; since the appointment of Mr. Darby to be Chief Commissioner, his fear that his professional tendencies would lead to a multiplication of reports and surveys had been fully verified. In the different parts of the country where he had property (North Devon) frequent complaints had been made of the unnecessary expenses imposed by what were considered to be the superfluous precautions of the Inclosure Commissioners against possible wrong or inaccuracy, however improbable. The result had been greatly to discourage exchanges of land—one of the chief objects of the appointment of the Commissioners. Within his own experience he could state that having to exchange little more than an acre with another person it had cost £22 as the expenses in the locality itself, in consequence of the additional particulars required by the Commissioners, which was raised to £28 by the bill of the Commissioners' costs. Since that time he had carefully avoided resorting to the Commissioners when he desired to effect an exchange or inclosure. His objection to this system of procedure on their part was that it practically neutralized the object of the Legislature, which was to cheapen and simplify the inclosure of commons and the exchange of lands between proprietors for the public benefit. He saw no provision against those defects in the present measure, and he hoped it would be submitted to a careful and searching consideration in Committee.
THE DUKE OF RICHMONDchallenged the noble Earl to prove that Mr. Darby had put parties to expense in an improper manner. No magistrate or country gentleman in Sussex was more highly respected, and his services as

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Chief Commissioner had been most valuable.
EARL FORTESCUEdisclaimed any imputation on Mr. Darby's motives. He only feared that his natural professional tendency to require a mass of detailed information would, as it had done already, discourage inclosures and exchanges.
EARL DE LA WARRwished that more concessions had been made to the labouring poor. He hoped to be instrumental soon in completing a large inclosure of 500 or 600 acres of waste land. As to field gardens, he thought the Bill should contain a provision by which the poor man should be able to obtain a field garden at a rent of not more than 5s. a rood. If that were not done those gardens and inclosures would be placed beyond the reach of the labouring man.
LORD REDESDALEsaid, that under this Bill land might be taken from the commoners, who had some rights in it, and given to "the inhabitants of the neighbourhood," who had no rights at all—that seemed to him something like confiscation. Then the Bill provided the allotment wardens might let the allotment to "poor inhabitants of the neighbourhood," in plots not exceeding one quarter of an acre each—at rents not exceeding the value of the land for farming purposes. He objected that land compulsorily taken from the commoners for recreation ground, should be let to individuals for several occupancy. He objected to the power of taking one-tenth of the common for recreation purposes. The lord of the manor usually received only one 1–16th, and surely the public were not entitled to double that proportion. Although there might be a great deal in this Bill which was good—at the same time there were many parts in it which required the most careful consideration.
THE EARL OF KIMBERLEYsaid, he should have thought it his duty to have defended Mr. Darby against the charges which had been brought against him by the noble Earl opposite (Earl Fortescue), had not the matter already been touched on by the noble Duke. There was no more faithful public servant than Mr. Darby, and he regretted the attack that had been made upon him by his noble Friend. With regard to the Bill he denied that there was anything like confiscation in it, or that it at all attacked
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the rights of property. The fundamental principle of the Bill was simply this—to confer the right of inclosure where all parties were agreed. It left the rights of the lords of the manors and of the commoners, where they all agreed to inclose, exactly as they stood at present, and it merely proposed to deal with those cases in which the lords and the commoners were unable to agree upon the terms of inclosure. The question was one of some urgency, because the present state of affairs was this—the inclosures were stopped because the House of Commons was of the opinion that under the Act of 1845 inclosures took place on insufficient conditions, and therefore the House refused to pass any Inclosure Bill until those conditions were amended. So that unless they were prepared to accept new conditions, no more inclosures could be made. In his view, Parliament had full right to dictate upon what terms commons should be inclosed, and he thought the conditions laid down in this measure as those upon which alone inclosures of open spaces should be permitted were fair and reasonable and consistent with the interests of the public at large. Well, then, were the conditions proposed by this Bill unreasonable ones? He thought they were not. It was not unreasonable that any person in future seeking to obtain an Inclosure Act should set apart not less than one-tenth of the land to be inclosed for the use of the poor. That seemed to him to be a just and proper proposal. He did not see anything unreasonable in the proposition that poor people of the neighbourhood should be allowed to rent small portions at fair rents, say from 5s. to 10 s. a rood; while it was proposed that, as a general rule, open spaces in the neighbourhood of large towns should be preserved, subject to the rights of the lords and commoners of the manors. He did not think that the Bill as it stood would enable tenants for life to deprive the reversioners of their rights over the inclosed lands, but if it had that operation, it might easily be amended in Committee. People looked to that House to take a fair and just view of the interests of the large labouring population, and he maintained that this measure provided for the interests of both the rural and the urban poorer classes. He trusted the noble Duke opposite would not insist upon the measure being

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sent before a Select Committee, seeing that it contained no provisions of such a character as would preclude them being dealt with by their Lordships in Committee, or which would prevent the Bill being passed into law this Session.
Motion agreed to.
Bill read 2a accordingly; and committed to a Committee of the Whole House on Thursday the 11 th instant.

LOCAL COURTS OF RECORD BILL [H.L.]
A Bill to amend the law relating to Borough and other Local Courts of Record—Was presented by The Lord REDESDALE; read 1a. (No. 185.)
House adjourned at Seven o'clock, to Thursday next, half past Ten o'clock.