HL Deb 30 July 1885 vol 300 cc482-93

Order of the Day for the Second Reading read.

LORD HOBHOUSE,

in moving that the Bill be now read a second time, I said, that the measure was one of a series of steps which had been taken by the advice of eminent lawyers and statesmen, men who in other departments of public life entertained the most divergent opinions, but who agreed in this— that it was desirable as fast as possible to diminish, and finally extinguish, the old inconvenient tenure of copyhold. Great and serious evils arose from this tenure. In the first place, there was a multiplicity of laws, not written and not generally known, and only ascertainable by tradition, which this system created. These laws could only be I ascertained on the oral evidence of persons cognizant of the customs of each particular manor. The question was inquired into for the first time in 1832 by a body of eminent lawyers, who dealt with the whole subject of real property. The Report of these gentlemen recapitulated the evils arising from the immense variety of customs in different manors, customs to be sought in oral traditions, and the Court Rolls which had often been kept by ignorant or negligent stewards. They remarked that it was not surprising that frequent litigation arose between lord and tenant, vendor and purchaser, and the vendor and others claiming an adverse interest to the vendor. It had been suggested that the true remedy for these evils lay in the adoption of a general registry of titles in England. But these, though, perhaps the most obvious, were not the greatest evils. The greatest was the system of arbitrary fines on each devolution of the copyhold interest and occasionally also of the freehold title. The lord might require the copyholder to pay two years' improved value of the land. That system was obviously, and, in fact, had been found to be, a serious obstacle to the improvement of land. In the same Report from which he had quoted, he found remarks on the check to improvements occasioned by the conflicting rights of landlord and tenant, and the consequent diminution of the public wealth, and the direct discouragement to agriculture and the erection of buildings. Remarkable evidence was taken also by the Committee which reported on the subject in 1852. In that evidence were some striking statements of one of the Drainage Commissioners on the unwillingness of copyholders to borrow money for drainage. This gentleman expressed an opinion that copyhold lands were worse cultivated than freehold. He was talking the other day to a veteran solicitor and steward of a manor, who said that he could tell by simple inspection which were copyhold and which freehold lands. Then the tenure discouraged the growth of timber, for if the lord cut the timber it was trespass against the tenant, and if the tenant cut it was waste against the lord. Thus no young timber was allowed to grow on copyhold land. Thus in Sussex copyhold land could be recognized by the entire absence of trees on one side, while there was on the other a well-wooded area. Then there were heriots. The lord might on alienation take his tenant's best chattel —in some cases it wa3 his best live chattel. Very startling and, in some cases, amusing stories were told of the devices resorted to by tenants to induce their lord to take the worst instead of the best chattel. These evils were aggravated in many instances by the confusion of boundaries between freehold and copyhold land. It frequently happened that when land had been held continuously for many years part of the same field was copyhold and part freehold without any distinction which was which. But the occupier was afraid of tilling the field to the best advantage because he might by his method of cultivation incur a a forfeiture of the copyhold portion. Then, too, it often became necessary to make both a freehold and copyhold conveyance of the same land, and the tenant dare not grow timber for fear of forfeiture. These insuperable objections existed in the case of purchase because the vendor could not point out the boundaries between the copyhold and the freehold. All these inconveniences were especially felt in the counties of Norfolk, Suffolk, and Essex. The Real Property Commissioners did not advise any compulsory action. In 1838 the matter was referred to a very strong Committee of the House of Commons, which recommended that a compulsory measure should be passed. The result of the recommendation of that Committee was the passing of the Copyhold Act of 1841, and the Legislature appeared to have followed the recommendation of the Committee by trying in the first instance what he might call the voluntary system. A Copyhold Commission, which was still at work, was established, and was empowered to receive applications for enfranchisement and to give effect to them in cases when the lord of the manor and the tenant were agreed on the subject. In 1851 the matter was again referred to a Select Committee of the House of Commons, and they reported to the effect that it was highly desirable that the entire enfranchisement of copyhold estates should be effected as soon as possible, due regard being had to the rights and claims of all parties, and that such enfranchisement should be compulsory on all. In 1852 a measure was passed enabling one of the parties to demand enfranchisement instead of requiring the consent of both. That Act, however, applied only to cases where the admission had taken place after the 3rd of July, 1853. The principle of that Act was found to be very beneficial, and the number of enfranchisements considerably increased. In 1858 another Act was passed which took away the restriction as to time and made the Act of 1852 apply to every copyhold in the Kingdom. Their Lordships might ask what had been the practical effect of this legislation. He held in his hand a Return made by the Land Commissioners down to 1882 which showed the operation of the various Acts. As long as the Act of 1841 or the voluntary system was prevalent the average number of enfranchisements was 42 a-year. When the Act of 1852 came into operation the average rose to 243 a-year, and when the Act of 1858 came into operation, taking it down to the present time, the average was 554 a-year. Perhaps he might be asked what proportion that was of the whole of the copyholds in the Kingdom, and whether the process of enfranchisement was going on fast or slowly. He was sorry to say that he could not answer that question. He found that no man could answer it. In the absence of registries we had no means whatever of ascertaining what quantity of copyhold land there was in England. Therefore, he could not say whether the proportion of which the enfranchisement had been effected was small or large compared with the proportion which remained. But it was agreed upon by everybody who understood the subject that there still remained a vast number of copyholds throughout England. The Bill now under their Lordships' consideration had been the subject of discussion for four years in the House of Commons, by many public bodies outside it, and by individuals who were interested in the matter; and the measure was, in fact, the work of many hands. It bore, indeed, the marks of that, as it was not quite so clear either in point of arrangement or in point of expression as could be desired. In these respects it was open to some amendment; but he believed their Lordships would consider it to be upon the whole a very valuable measure. It contained a large quantity of legislative details, and if he were asked what was the principle of the Bill he should say that it was a measure to carry into more complete effect the policy of the last 50 years and to promote and accelerate the enfranchisement of copyholds. He had heard this measure described by persons competent to judge of it as one which proposed to deal with the property of two persons in a way which neither of them desired should be followed; but what it did was to place the initiative in the hands of the lord who was required on admitting or enrolling any person as tenant to any land after the 31st of December, 1885, save where the admittance or enrolment took place in consequence of the death of a lord, to give a notice in writing to the tenant of enfranchisement, and the Bill provided that in default of such notice being given no fine, relief, or heriot should be payable to the lord on any subsequent admittance or enrolment. Every such notice of enfranchisement was to be accompanied by an offer to take a certain sum which, if accepted, was to be the compensation; the lord and the tenant were empowered to agree on compensation and to appoint valuers to fix it. Thus if the tenant desired to remain a copyholder all he had to do was to allow the lord's notice to drop. In the event of the lord not serving such notice the tenant might avail himself of the compulsory provisions of the Copyhold Acts. He anticipated that this measure would have a very important effect in enfranchising copyholds, and would benefit the lord, the tenant, and the public. The Bill came before the Incorporated Law Society, and met with their approval. In conclusion, he moved the second reading of the Bill, thanking their Lordships for the great patience with which they had listened to him.

Moved, "That the Bill be now read 2a." —(The Lord Hobhouse.)

LORD BRAMWELL

said, that the Bill was not prepared with such consummate skill as his noble and learned Friend would have them believe. He thought no one denied that it was desirable to get rid of the copyhold tenure, and if anyone did doubt it before he could not doubt it after having heard the very convincing speech to which the House had just listened. His noble Friend had shown the great mischief caused by the existing law. There was one evil he had not mentioned. The lord was the owner of the minerals under the surface, whilst the copyholder was the owner of the soil; therefore the lord could not take them, and the copyholder could not take them. This was another reason why this tenure should in some way be got rid of, and most certainly if some benevolent magician could do that with a wave of his wand without expense he did not suppose anyone would be found to object. He did not suppose the lord was desirous of being lord for the mere pleasure of the title. But did it not strike their Lordships that the more the noble and learned Lord showed that it was good to get rid of this tenure the more it followed that there were some difficulties in the way of getting rid of it which made it better for them to put up with it than to go to the expense involved? That, indeed, was the only reason for its existence—it was more troublesome and expensive to get rid of than to keep—the cost would be greater than the benefits derived from enfranchisement. There was a third person interested, and that was the steward, and certainly the Bill would be a boon to the present generation of stewards; and when his noble and learned Friend said that the Incorporated Law Society approved of the Bill he could well understand that, seeing that there was a great number of stewards in the Society. The stewards were most respectable gentlemen, but, like himself, were inclined to think that right which was pleasant. The lord could compel enfranchisement if he pleased; the copyholder could compel it if he pleased; and, therefore, the Bill could only be applicable to the case where both lord and copyholder, each being able to enfranchise, did not choose to do so. In that case the Bill said they should. He should neither affirm nor deny anything about land at the present time. It might very well be that the public was entitled to say that land should be held and dealt with in a way most advantageous to the public; but that could only be done through the individual. Why was it that both lord and tenant were so indifferent that they would not take the benefit which the law at present offered? It must be a peculiarity of the copyholder if he would not follow his own interests. He would tell them why the copyholder left things as they were. The game was not worth the candle, and the noble Lord on the Woolsack would agree with him that the worst of all expensive and wearisome proceedings in which a man could be involved was in the adjustment of parcel or boundary. This was the real reason why advantage had not been taken to a much larger extent of the existing law than had been the case. He wished to know why the provision for the lord having the right of access to his mines, with some arrangement in respect of it, was omitted from this Bill? Such a provision had been in all previous Bills. The Commissioners, whose Report had been quoted by his noble and learned Friend, rejected all plans for the compulsory enfranchisement of copyholds, and since that Report Acts of Parliament had been passed which introduced compulsory enfranchisement upon the application either of the lord or the tenant. The difference between those Acts and the present Bill was that in the case of copyholds which it would not be worth anybody's while to enfranchise the Bill would compel enfranchisement. He had often said if anyone were to make him a present of a piece of land occasionally to be seen by the wayside he would not take it if he had to defend the title, and there were several of those copyholds which he would not take as a gift if there was to be enfranchisement of them. He hoped their Lordships would not read the Bill a second time. The only reason by which the Bill could be justified was on account of some benefit, or supposed benefit, to the public. So far from that, it seemed to be a Bill simply to compel people to do that which they were told was for their good, but which they nevertheless thought was not for their benefit.

EARL STANHOPE

said, it was obvious, from the speech of the noble and learned Lord who moved the second reading, that this was a complicated and technical Bill, and being so vast and extensive, containing 54 clauses, it ought to have fuller consideration than could possibly be given it at this time of the Session. If the noble and learned Lord was correct in saying that the object of the Bill was to benefit the lord, the tenant, and the public, he would be the last person to propose to refer it to a Select Committee. But though he had put a Notice of such a Motion on the Paper he really believed that the Bill ought not to be gone on with at the present time. The principle of the Bill was to compel those who did not wish to enfranchise to enfranchise against their will. Speaking on behalf of the Ecclesiastical Commissioners, of whom he was one, he thought the Bill contained several objectionable provisions. Besides having presented a Petition carefully prepared from the Ecclesiastical Commissioners, he had also presented Petitions from the Dean and Chapter of Carlisle, from Trinity College, Cambridge, King's College, St. John's College, at Pembroke College, Cambridge, against the second reading. The Ecclesiastical Commissioners were among the largest lords of manors in England. They held 450 manors, and notwithstanding the slow progress which was alleged had been made, they had enfranchised over 2,500 copyholds. The noble Lord admitted that the enfranchisements were at the rate of 500 a-year. First of all, the mineral rights of the lords were prejudiced by the Bill, because, though it was true that the minerals could not be worked without the leave of the copy- holder, it was undisputed that they belonged to the lords, and the onus of proving the boundaries which hitherto fell on the tenant was thrown on the lord. That would be a very difficult and costly process. Another provision which injuriously affected the lords of manors was contained in a clause which said that the land should be sold at the actual value of the rent or the actual value of the land as it stood. That meant that all the advantage arising from land situated near towns was sacrificed. There was land in the neighbourhood of towns worth £200 an acre, for which the copyholder paid only a small line, which did not, at all represent its value. In fact, that clause would sacrifice the prospective value of building land all over the Kingdom. What was the evidence in favour of the Bill? All the evidence that he could gather was that it had been four years before the House of Commons. But it had never been discussed by the House of Commons. It was true that the Bill was referred to a Select Committee of the House of Commons last year; but that Committee refused to hear evidence whether of the lord or the copyholder, though a measure of such importance ought in all justice to be carefully sifted and weighed by a Committee receiving evidence. The facilities for enfranchisement given by the Acts of 1852 and 1858 had been admitted. The proposal of the Bill was that the parties, whether they liked it or not, should be obliged to enfranchise, and the law charges, the expense of the definition of boundaries, and the cost of notice all fell on the lord. The Bill would also inflict injustice on the tenant. A tenant who paid 6d. a-year for his copyhold was to enfranchise whether he liked it or not. He would, under the Bill, be obliged to borrow the money at 4 per cent, or be subject to a rent charge equal to 4 per cent. There were no Petitions from copyholders in favour, of the Bill. It was said that the copyholders of Accrington were very desirous that it should pass. Well, let them have a Bill of their own. He did not think anyone could allege that this Bill was likely to receive adequate consideration at the present time, and, therefore, he would take upon himself at once to move that it be read a second time that day three mouths.

Amendment moved, to leave out ("now") and add at the end of the Motion ("this day three months.")— (The Earl Stanhope.)

THE LORD CHANCELLOR (Lord HALSBURY)

said, he should like to ask the noble and learned Lord who moved the second reading of this Bill whether he would be content that the Bill should be read a second time without sending it to a Select Committee? If he gathered from the noble and learned Lord's observations that he did not desire that it should pass into law before its details were considered, it was obvious that it was absolutely impossible to thoroughly discuss those details this Session. The only object, therefore, in assenting to the second reading was that the House should affirm some principle on which the Bill was supposed to be framed. On that subject it appeared that the noble and learned Lord had not made up his mind as to what was the principle of the Bill. There was considerable doubt as to whether the 1st section made the Bill compulsory or not. What, in effect, it enacted was this, not that it should be compulsory, but that it should, whether the parties liked it or not, commence litigation which would be fruitless. Anything more injurious than such a state of things as that both to lord and tenant he could hardly conceive. He gathered from the noble and learned Lord that the Bill was the product of many minds, that the mode in which it was drawn was open to exception, and that he would not like it to pass into law without going through the ordeal of a Select Committee. By those admissions he judged that the noble and learned Lord would not desire to see this field of litigation thrown open to lords and tenants without a very careful scrutiny being made of the provisions of the Bill. He did not think that the noble and learned Lord dealt satisfactorily with the point that the Bill did not deal with minerals. The answer he gave was that it did not refuse to accept what former Acts had done; and he stated that Bills introduced on the subject had attempted to settle the vexed question of minerals, the state of the law with regard to which was very unsatisfactory. The Bill now before their Lordships, however, did not settle the question, and it would tend to pro- duce heartburning and make people believe that the question as between lord and tenant was settled when it was not. He presumed that their Lordships must make up their minds as to whether this was a compulsory measure or not before the second reading was taken. The noble and learned Lord stated that the lord must, to put the provisions of the Bill in operation, serve the tenant with a notice, but that the tenant might, if he liked, throw the notice behind the fire. If that was the true view of it how did the Bill differ from the law as it stood at the present time? It was not denied that the law might enforce enfranchisements; and if this was only another useless step to create expense it would be very undesirable to read the Bill a second time, and settle nothing by it.

THE EARL OF SELBORNE

said, he could not agree with his noble and learned Friend who had just spoken. The measure stated that it was very desirable to get rid of this inconvenient copyhold tenure, which had many disadvantages. He had never heard anyone point out an advantage in connection with copyhold tenure, and the principle of the Bill was that it took another step in the direction of getting rid of it. Were their Lordships going to reject a Bill founded on that principle—a Bill which had received the sanction of the House of Commons, of a Select Committee of the Land Commissioners, and of that branch of the Legal Profession which was conversant with the question? Were their Lordships going to reject the principle of the Bill because there was no time this Session to discuss details. Some of the clauses, no doubt, ought to receive very careful consideration; but he did not think that the House would put itself in a much better position with respect to the question than it now occupied if it affirmed the principle that it was desirable to make progress in the direction of getting rid of this tenure, and also that the details of the measure required consideration. His noble and learned Friend on the Woolsack asked why a Bill of this sort should be proposed when the law already enabled the lord or the tenant to compel enfranchisement. The answer to that was that the present provisions were such that nobody had an interest in putting them in motion except upon particular occasions. If the law could be set in motion in the manner proposed by the Bill they would practically get an important step towards the end which all agreed it was desirable to attain. He would not discuss the details of the measure because if the principle was right the details would have to be considered at the proper time. Everyone admitted that the present state of the law was unsatisfactory. There were minerals which could not be got at, and that was a state of things injurious to the public. Surely the proper course to adopt was to read the Bill a second time in order that the details might be discussed if there were time, and if there were not, that there Lordships might indicate that they were not hostile to the principle of the measure.

THE LORD PRESIDENT OF THE COUNCIL (VISCOUNT CRANBROOK),

said, he was disappointed that the noble and learned Earl who had just spoken had not laid down a principle on which they could vote. All he had said was that the Bill was a step in the direction of enfranchisement. He (Viscount Cranbrook) did not yield to anyone in his objection to copyhold tenures; but this seemed to be one of those Bills which originated in the feeling that something must be done, and then it often was supposed that anything would do. It was a sort of Joseph Surface Bill, full of high sentiments not carried into practice—an illustration of faith without works. The House ought not to be called upon to approve a principle which was not accurately defined by the noble and learned Lord who had introduced the Bill, or by those who had supported it, and to commit themselves to something of which an inconvenient application might be made next year.

EARL GRANVILLE

said, that if there was any imitation of Joseph Surface in the matter, it was in fully recognizing that there were evils that called for remedy, and yet in declining to support a measure calculated to diminish those evils. The principle of the Bill had been clearly stated by the noble and learned Lord who moved the second reading. It was admitted that the evils were considerable evils, that the tenure was a bad one, and that there were grave details for discussion in Committee; and no one had impugned the general principle of the Bill, which ought not to be rejected, simply because there might not be time to consider it in Committee.

THE EARL OF FEVERSHAM

said, he objected to the Bill as a piece of legislation intended to worry people who wanted to be let alone, and to compel them to enfranchise whether they liked or not. He believed that the Bill would, if passed in its present shape, affect very many rights over considerable tracts of moorland, and to that he objected.

On Question, That ("now") stand part of the Motion?

Their Lordships divided:— Contents 14; Not-Contents 46: Majority 32.

Resolved in the negative.

Bill to be road 2a on this day three months.