Lords Sitting of 14 July 1876

MINUTES.
PUBLIC BILLS—First Reading—Isle of Man (Officers)* (174); Turnpike Acts Continuance* (175).
Second Reading—Elver Fishing* (164); Public Works Loans* (167).
Committee—Commons (137–176.)
Committee—Report—Settled Estates Act (1856) Amendment* (151); Customs Duties Consolidation* (162); Customs Laws Consolidation* (163).
Report—Merchant Shipping (160–177); Local Government Board's Provisional Orders Confirmation (Chelmsford, &c.)* (161)—(Artizans and Labourers Dwellings)* (127).
Third Reading—County of Peebles Justiciary District (Scotland)* (158), and passed.

COMMONS BILL—(No. 139.)
(The Lord President.)
COMMONS BILL—(No. 139.)
  House in Committee (according to Order.)

  PART I.—LAW AS TO THE REGULATION AND INCLOSURE OF COMMONS.
  Applications in relation to commons.
  Clauses 1 to 7, inclusive, agreed to.
  Suburban Commons.
  Clause 8 (Sanitary authorities to be represented in the case of commons in the neighbourhood of towns.)
  THE DUKE OF NORTHUMBERLAND,after explaining that the last section of the clause stated that
  "The population of any town for the purposes of this Act shall be reckoned upon the last published census for the time being, and distances shall be measured in a direct line from the outer boundary of the town to the nearest point of the suburban common,"
  moved an Amendment to substitute "four" miles for "six" as the limit of
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  distance, and to leave out ("outer boundary of the town") and insert—
  ("Town hall, or if there shall be no town hall, then from the cathedral or church if there shall be only one church, or if there be more churches than one, then from the principal market place of such town.")
  THE DUKE OF RICHMOND AND GORDONsaid, he understood the object of the noble Duke in proposing the Amendment was that there should be some definite point laid down in the Bill from which the measurement should be taken, so as to remove uncertainty. He agreed that that was desirable; but he was not altogether satisfied with the words suggested by the noble Duke, which might possibly be improved. If the noble Duke would now withdraw the Amendment he would consider the matter before the Report.
  THE EARL OF KIMBERLEYremarked that the Metropolitan Commons Act was much more stringent than that clause, because it did not allow any common within 15 miles from the centre of London to be inclosed. He did not know why other towns were to be treated on a different principle. The Bill had been announced as a compromise on this question; but if the advantages conferred by the Bill were to be taken away little by little, the Government might be able to carry their measure, but it would not be accepted as a compromise, and the whole question would be re-opened.
  THE DUKE OF SOMERSETobserved that the case of the Metropolis in respect of commons was altogether exceptional.
  THE LORD CHANCELLORpointed out that the one question before the Committee was whether they should have a constantly shifting boundary or one fixed central point in a town from which to measure the six miles.
  EARL FORTESCUEsaid, that if the boundary of the borough was to be deemed the boundary of the town, it was only reasonable that there should be some better definition of the boundary than that given in the Bill. Some municipal boroughs had their boundaries quite in the country. For instance, a small river in his deer park was the boundary of a small borough several miles distant. He would himself be quite unaffected by the Act, but he thought that there should be some better

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  definition of what was to be deemed the "boundary" of a town; and it would be well there should be a different distance fixed for a large town of 500,000, from what there should be for a small of 5,000 inhabitants.
  THE EARL OF MORLEYsuggested that this proposal was well worthy consideration.
  THE DUKE OF NORTHUMBERLANDsaid, that after what had been said, he would leave the matter to the consideration of the Government.
  Amendment (by leave of the Committee) withdrawn.
  THE EARL OF KIMBERLEYsaid, he desired to propose an Amendment to put a stop to an evil which had been long prevalent. It constantly happened that when a common adjoined a town persons were tempted to inclose small pieces from time to time without any right whatever. As no person was entitled to resist such encroachments but the commoners themselves, and the process was exceedingly expensive, practically no one interfered. He might point out a notable instance in Epping Forest, where thousands of acres had been inclosed, during many years, without any right whatever; and but for the accident that the City of London had acquired rights as commoners, and had the spirit and the funds to interfere, that beautiful district would have been lost to the public. He thought it but reasonable that some authority—the urban authority—should be empowered to come forward to protect the rights of the public. He therefore proposed to insert in the clause after the 7th sub-section the words—
  "In the case of a suburban common it shall be lawful for any urban sanitary authority which would be entitled under this Act to receive notice of an application for an inclosure to apply, if it shall think fit, to the county court within whose jurisdiction such common is situate for an order or injunction under the provisions of Section 30 of this Act."
  This Amendment would not interfere with rights of lords and commoners to inclose their commons by agreement among themselves, but it would give the urban sanitary authority the right to interfere to prevent inclosures which were simply illegal.
  THE DUKE OF RICHMOND AND GORDONsaid, he could not consent to the Amendment, which would set up a
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  new right of property. The Government, in introducing this Bill, stated its principle was to preserve all existing rights of property, and did not seek to confer any right on the public which they did not enjoy at the present moment. The Amendment, moreover, would enable an urban authority to contest the right of a private individual at the expense of public funds, and that, he thought, would be undesirable and unjust.
  THE EARL OF MORLEYsupported the Amendment, which he thought desirable, in order to prevent the encroachment by individuals on public rights. It seemed to him to lie within the scope of the Bill, and would only slightly add to the power which the Bill conferred on urban authorities.
  THE LORD CHANCELLORsaid, that the Amendment was foreign to the principle of the Bill. Whilst he fully recognized the high honour that was due to the Corporation of London for what they had done in connection with Epping Forest, he could not sanction the general principle that private rights should be contested by means of public funds.
  On Question? resolved, in the negative.
  THE DUKE OF NORTHUMBERLANDmoved, at end of clause, to insert—
  "When part only of a common is situate within the aforesaid distance from a town, such part shall be deemed for the purposes of this Act to be a common separate and distinct from the part situated without and beyond such distance."
  Amendment agreed to.
  Clause, as amended, agreed to.
  Procedure.
  Clauses 9 to 18, inclusive, agreed to.
  Clause 19 (Allotments for recreation and gardens.)
  THE DUKE OF NORTHUMBERLANDmoved to omit the clause.
  THE DUKE OF CLEVELANDasked what the clause really meant.
  THE DUKE OF RICHMOND AND GORDONsaid, the clause was not in the Bill as originally introduced, but had been inserted in the passage of the Bill through the other House. He would look into the matter before the bringing up of the Report.
  Clause agreed to.
  Clause 20 (Gravel digging) agreed, to.
  THE DUKE OF SOMERSETmoved, after Clause 20, to insert new clause—
  "After the passing of this Act in all commons where rights of turbary exist it shall not be lawful for any person to skim or pare off the surface soil of such common, whether the peat in such common be exhausted or not."
  THE DUKE OF RICHMOND AND GORDONsaid, he could not accept the Amendment of the noble Duke. The fundamental principle of the Bill was the preservation as far as possible of existing rights, and, therefore, if persons had a right to pare a common that right must not be interfered with.
  THE DUKE OF BUCCLEUCHalso opposed the Amendment on the ground that the right of turbary was one of the most ancient rights known to the law.
  On Question, whether to insert? resolved in the negative

  PART II.—AMENDMENT OF THE INCLOSURE ACTS.
  Field Gardens and Recreation Grounds.
  Clause 21 (Expenses of clearing, draining, and fencing field gardens.)
  THE EARL OF POWISsaid, the clause enacted that the valuer should cause every allotment made for a field garden to be cleared, drained, fenced, levelled, and otherwise made fit for immediate use and occupation; and the expenses incurred by the valuer under this section should be paid as part of the general expenses of the inclosure. This introduced quite a new principle, and he moved that it be struck out. The fencing would be done as part of the inclosure under the existing law. The preparing of the ground should be done by the local authority, in whom the garden would be vested, and who would repay themselves out of the rents.
  THE DUKE OF MARLBOROUGHwas in favour of the provision, which he thought only carried out the principle of the Bill.
  THE MARQUESS OF BATHsaid, it was very difficult to understand the meaning of the clause. No valuer, he thought, would be able to apportion the expenses of the valuation.
  THE LORD CHANCELLORsaid, that the Government were of opinion that drainage should be part of the
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  general scheme in regard to any inclosure, and the clause would keep everything under one system. He should therefore oppose the omission of the clause.
  On Question, whether to omit? resolved in the negative.
  Clause agreed to.
  Clauses 22 to 29, inclusive, agreed to.
  Clause 30 (Jurisdiction of County Court in respect of illegal inclosures.)
  LORD ABERDAREasked whether the jurisdiction to be given to the County Courts in respect of illegal inclosures would extend to preventing those who sunk pits for coals or other minerals from tipping the waste, or spoil, or rubbish on any common lands?
  THE LORD CHANCELLORsaid, that the only answer which he could give was, that if such rights existed now in respect of spoil and so forth, the County Court Judges would have no power to interfere; but if such rights did not exist they would have jurisdiction.
  Clause agreed to.
  Clauses 31 and 32 agreed to.
  General Amendments.
  Clauses 33 and 34 agreed to.

  PART III.—MISCELLANEOUS. DEFINITIONS.
  Clauses 35 to 38 agreed to, with Amendments.
  Report of the Amendments to be received on Tuesday next; and Bill to be printed, as amended. (No. 176.)

MERCHANT SHIPPING BILL.
(nos. 99, 160.)
(The Lord President.)

MERCHANT SHIPPING BILL.

  REPORT OF AMENDMENTS.
  Amendments reported (according to Order.)
  Clause 4 (Sending unseaworthy ships to sea a misdemeanour.)
  THE DUKE OF SOMERSETmoved to leave out the first paragraph of the clause, and substitute the following:—
  "Every person, including the managing owner, who sends, or attempts to send, or is

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  party to sending or attempting to send, a British ship to sea in such unseaworthy state that the life of any person is thereby endangered, shall be guilty of a misdemeanour if it shall be proved that he did not use all reasonable means to ensure her being sent to sea in a seaworthy state, or that her going to sea in such unseaworthy state was under the circumstances reasonable and justifiable."
  THE DUKE OF RICHMOND AND GORDONsaid, he had hoped that the Government had succeeded in removing all objections to the clause as it stood by the Amendment which he proposed to move—that it should apply to all persons and not merely to the managing owner. He could not accept the Amendment of the noble Duke.
  Amendment negatived.
  THE DUKE OF RICHMOND AND GORDONmoved to leave out the words—"and the managing owner of any British ship so sent to sea from any port in the United Kingdom." The omission of these words made it clear that "every person" who sent, or was party to sending, a ship to sea in such unseaworthy condition as to endanger the life of any person was guilty of a misdemeanour.
  Motion agreed to; words struck out; Clause, as amended, agreed to.
  Clause 24 (Penalty for carrying deck loads of timber in winter.)
  THE DUKE OF RICHMOND AND GORDON,in connection with the Proviso that a master or owner should not be liable to any penalty under this section, moved the following additional exception:—
  "If he proves that the ship sailed from the port at which the wood goods were loaded as deck cargo at such time before the sixteenth day of April as allowed a reasonable interval according to the ordinary duration of the voyage for the ship to arrive after that day at the said port in the United Kingdom, and by reason of an exceptionally favourable voyage arrived before that day."
  Motion agreed to; words added.
  Proviso, that nothing in this section "shall affect any foreign ship coming into any port of the United Kingdom under stress of weather, &c," amended by leaving out the words "foreign ship coming," and inserting in lieu thereof, "ship not bound to any port in the United Kingdom which comes,"
  Further Amendments made; Bill to be read 3a on Friday next; and to be printed as amended. (No. 177.)
  House adjourned at a quarter past Seven o'clock, to Monday next, Eleven o'clock.