HL Deb 19 July 1887 vol 317 cc1311-24

Order of the Day for the House to be put into Committee, read.

LORD HOBHOUSE

, in moving, "That the House do resolve itself into Committee upon the Bill," said: Before your Lordships go into Committee on this Bill, it will be convenient if I state the character of the principal alterations made in it since it was last before the House. It has been very largely altered, in some respects improved, as I think, not in others; and I do not conceal that I am very sorry for some of the alterations that have been made. I will deal first with the parts that have been struck out, and then with the now matter that has been inserted.

The most obvious omission is that of the clauses which put pressure upon the parties interested in copyhold lands to effect enfranchisement of them. We had in Committee a great deal of evidence on this point; and a great deal of that which is called evidence, but is really discussion and statement of opinions. And the effect produced on my own mind was this—I thought that the sort of compulsion which the Bill proposed—or even a more absolute compulsion—would not be any hardship upon the lord. But as regards the tenant, it seemed to me that there might be an appreciable number of cases in which a man, having paid his fine for admittance, having only small rents to pay for the rest of his life, not wanting to improve, and not caring for his successors, would feel irritated and aggrieved at being saddled with the payment of a substantial rent, or of a lump sum, in order to acquire the freehold. Therefore, I was averse from absolute compulsion, such as was proposed to the Committee, and supported by several Members of it. On the other hand, I found myself more convinced than before that a modified compulsion would be practicable and useful. There are a great number of manors in which the lord's fines are of fixed amount, and in them the steward has a greater interest than the lord in the continuance of the manorial system. Mr. Waugh, an energetic promoter of the Bill, and a principal witness, boldly calls them "stewards' manors." And a vary able and active opponent of the Bill, Sir Richard Nicholson, of whom I ventured to ask the question whether in such manors "the steward's interest was more than the lord's," candidly answered— "Yes; his actual receipts upon admission are very much larger." Now, in those fine-certain manors, I feel confident that if it were provided—as in the Bill it was provided—that as each occasion for admittance came the lord should serve notice of enfranchisement, the process, being once begun, would go on to its end, to the mutual satisfaction and advantage of both lord and tenant. Both would gain by it, and nobody would lose, except the steward, whose business would be gone.

My Lords, on these grounds, I much regret the disappearance of the whole of these provisions; and I am sure that it will be a keen disappointment to those who have twice carried the Bill through the House of Commons and have supported it out-of-doors. And I thought it right to put Amendments on the Paper, by way of showing to my Colleagues, and to other noble Lords, precisely what form of compulsion—being nearly, but not precisely, the original form—it might be beneficial to apply. But as to moving those Amendments, I intended to be guided by the result of counsel with others when they had seen them. It is very far from my wish to raise any discussion of an abstract or unpractical nature on this Bill. And, in the result, those who are favourable to the proposed Amendments agree that there would be so small a chance of inducing the House to reverse the deci- sion of the Committee, that I propose to withdraw them, if I may be allowed to do so.

My Lords, another set of important provisions which have wholly disappeared are those which relate to sporting rights. And in a sense I am sorry for this also. That is to say, I think it leads to considerable inconveniences when one man has the ownership of land, and another has the right of going over it in search of game. Nobody, I think, differed as to that; and we should have been glad enough if any practicable mode could have been provided for the extinction of that divided ownership through the medium of the Copyhold Acts. But none of us saw our way. Speaking for myself, I was convinced that the matter is too complicated; that we should do more harm than good by adopting the provisions of the Bill, or any other provisions that were suggested to us. In fact these original provisions of the Bill stepped beyond the province of copyhold and dealt with enclosures. With regard to enfranchised copyholds the difficulty is not so great, because, as a rule, the lord of the manor has no right of sporting over copyholds. But, as a rule, he has the right of sporting over the wastes of the manor, and upon enclosure that right has been continued to him in its integrity. Now, suppose that a large waste, say 3,000 acres, has been enclosed. The right of sporting over that space is of great value. But if there be a plot, say 50 acres, allotted to one of the tenants in the middle of it, and the sporting rights over that plot are to be extinguished, that largely impairs the value of the sporting over the whole area. How is compensation to be assessed in such a case? Either you must throw a great burden, probably a prohibitive one, on the landowner, or you will inflict a serious injury on the owner of the sporting rights. And, then, what is to be done when a second owner of some small plot comes to set that free, and a third? Are they to have the benefit of the deterioration in value effected at the expense of the first comer, or are they not? Your Lordships will readily see the amount of embarrassment in the case. I myself believe that the thing cannot be done, except by single operations over entire areas, for which some new authority must be created. Whether or no there exists sufficient cause for that is matter of opinion; but it relates to old enclosures much more than copyholds, and we thought that in this Bill we had better let it alone.

I pass to the matters which have been newly inserted in the Bill. And first of minerals. Everybody who has approached the question of copyhold enfranchisement has begun by thinking that the title to minerals should be settled when the enfranchisement takes place, and everybody has turned away disappointed. The difficulties are greater than in the case of sporting rights; they are enhanced by the far greater value of the subject-matter; and, further, in the case of deep minerals which are the most important, by the uncertainty whether they will be found under the particular plot of ground in question. There may be, say, coal throughout the area of the manor; but under the plot of three or four acres there may be none, or the seam may run very thin. If the parties were to deal with them upon enfranchisement they would be dealing in the dark. All that we could see our way to do has been expressed in Clause 7 of the amended Bill. It is intended to apply to those cases in which the lord has the freehold property in mines, and the tenant the possession, so that neither party can use them without the consent of the other. The tenant, it is said, keeps the box in which the lord's property is placed. If the lord were to work the minerals he would be committing trespass on the tenant; and if the tenant, he would be guilty of waste against the lord. The lord's interest is the greater in value, for the freehold property is his, and much more extended in area and therefore more workable, for he is interested in the whole manor, and the tenant only in his own plot. It is reasonable therefore that the lord should be able to buy out the tenant by the usual methods of compulsory acquisition of property.

Before quitting the subject, I should like to mention the name of the gentleman who supplied us with this plan. It is Mr. White, the solicitor of the Ecclesiastical Commission. He has taken great pains to improve this Bill, and we have availed ourselves of several other suggestions of less importance which have come from him.

The next subject to which I draw attention is that of escheat, which is dealt with by Clause 4. Your Lordships are aware that wherever the ownership of land is found to be vacant for want of lawful successors to a deceased owner, it passes by escheat to the superior lord of whom the land is holden. If it is common socage land, or ordinary freehold, that is held of the Crown, and it escheats to the Crown. If it is copyhold land, that is held of the lord of the manor, and it escheats to him. When copyhold is turned into freehold, of course the lord loses his chance of escheat, and he must be paid for it. But what we found was that the payment actually made is unduly high. Escheat is extremely rare. Mr. Gregory, a solicitor of vast experience, never knew of one. The Ecclesiastical Commissioners own 450 manors, Mr. White of whom I have just spoken, mentioned only one case as known to him in the course of that business, though he knew of another in another quarter. Mr. Waugh, the principal promoter of the Bill, a solicitor of 50 years' standing in a district abounding in copyholds, never heard of an escheat. I am not exaggerating when I say that the chance against any given property escheating within any period of time worth considering must be many hundreds to one. But the least sum received for escheats—it is true they are mixed up with forfeitures, but I shall have occasion to distinguish that matter presently—the least sum is a quarter of the improved annual value of the tenement; it often rises to a-third or a-half, and there is evidence that sometimes more is obtained. Now, when a property has been improved, as by building, such a demand very much increases the cost of enfranchisement. I will refer your Lordships to an instance put in evidence among others by Mr. Woodcock, a solicitor from the Honour of Clitheroe. A copyhold tenement carries a quit rent of 6½d., and a fixed fine of equal amount. That was all the lordgot—6½d. a-year, and an occasional 6½d. more. But the land had been built on; not by the lord, of course, but at the expense and risk of the tenant. And when he came to enfranchise, the sum he had to pay was £146. It was the case of an industrial co-operative society, who, Mr. Woodcock states, had to pay £146 for getting rid of 6½d. a-year. Then came this question and answer— The Earl of Selborne: May I ask how much of that goes to the consideration of the chances of escheat and forfeiture? Mr. Woodcock: 15s. 2d. is for the rent, and £94 18s. 3d. is for the escheat. The rest is made up of steward's charges; compensation, and loss of fees, £32; and cost of preparing the deed, some £19 more. Now, your Lordships will bear in mind that for this £94 the copyholder gets nothing— absolutely nothing. His land escheats as before, only it escheats to the Crown instead of the lord. It is a great burden on the copyholder to be compelled to make such a purchase for the benefit of the Crown. We thought he ought to be compelled no longer. And though it is rather bold to make the first encroachment on the Statute of Subinfeudations, which has been woven into the tissue of our law for five or six centuries, the Committee have inserted provisions that upon enfranchisement the lord shall retain the benefit of escheats, and therefore shall not be paid for the loss of them.

My Lords, I think that in the next clause the Committee have not drawn the full inference from this change of law. But I have an Amendment to move on that subject, and will reserve my observations on that point for the present. The next clause I have to mention is the 6th, which deals with the creation of new copyholds. It is often a surprise even to lawyers to hear that new copyholds can be created, because a copyhold is the creation of custom, and no man can make a custom de novo; and the general rule is that a new copyhold cannot be created. But in some manors there is a custom that, upon due action of the homage, the lord may grant portions of the waste or common land to be held by copy of court roll. According to the evidence of Mr. Hunter such customs exist, or at least are alleged to exist, widely in the South of England manors, and that they have been acted on with much greater frequency, and on a much larger scale, in modern times. In the days when the manor was a vigorous local institution, well attended by the tenants and suitors, such grants were not made without careful consideration, and, we may suppose, not without good reason. But manorial courts have fallen into decay, the homage has become a phan- tom, the lord of the manor has had no check upon him, and, at least in many places, has done pretty much what he pleased, and has been pleased to make such grants simply for his own emolument. No public notice is given of the proposed grant; the steward summons two or three persons of his own choice to sit on the homage; and grants out of the common are thus made with, the greatest ease. In the Epping Forest case it was proved that some such process as this went on. A, B, and C were summoned to the homage. A would walk out of the room, while the steward and the other two passed a grant to him. When he came back A received his grant; then B walked out, and a grant was made to him; and so on, through as many letters of the alphabet as had been selected for grants on that day. That was proved in the Chancery suit; and I can add my testimony, having had to examine a great number of such cases, that these grants were commonly made upon agreements with the grantees that they should build houses, and that the land should then be enfranchised, the lord of course getting a large sum on the improved value. In Epping Forest, as your Lordships will remember, this thing was done on a very large scale, whole commons disappearing under the process. It is true that there was a flaw in the proceedings there, through which some of the land was recovered. But there can be no doubt that there and elsewhere the custom in question has been worked in a way quite foreign to its spirit and its former working. Under these circumstances, what the Committee looked for was some check upon the lord's action in lieu of that which has decayed away; but not being able, in the absence of those local institutions which are always going to be created, but never are, to discover any local authority likely to place due restraint on such grants, they have proposed that the consent of the Land Commissioners shall be necessary for a valid grant of a new copyhold. And this, I trust, will commend itself to your Lordships.

The only other subject which I think it necessary to dwell upon now is one of extreme difficulty, which is dealt with by Clause 55. That clause is directed to a group of manors comprised in the Honour of Clitheroe. The state of things is very complicated; and, without taking much more time than would be convenient, I should despair of giving to your Lordships any complete account of it. But I may perhaps be able to give a general outline sufficient for a due understanding of the objects of Clause 55. A full account will be found in the evidence of Mr. Woodcock. The rents and fines in these manors were fixed in the Reign of James I., and are quite insignificant compared with the value of the property. A large population, exceeding 200,000 souls, and consisting chiefly of the artizan classes, has sprung up in the district, and the land has been built over to a great extent, and has become subdivided into many tenements. It is said that there are from 8,000 to 10,000 such tenements, and that they increase every year. It is the custom in the South of Lancashire to grant building leases for 999 years—one of those devices by which people sought to escape from the Statute of Subinfeudations— and the custom of these manors is for a copyholder in fee to grant leases as he pleases to persons who are entered on the rolls as tenants. They again grant leases as they please, and so on in infinitum. All lessees are entered on the rolls; so that in respect of a single tenement you may have a number of tenants entered for subordinate interests. That is quite contrary to the usual custom of manors which do not admit of leases by the tenant, nor of the entry upon the rolls of any other interest than the fee simple. Now your Lordships may imagine the embarrassment which arises from such a state of things. It is aggravated by the circumstance that the customs as to transfer in these manors appear to be more clumsy and inconvenient than ordinary. On each dealing with each house, cumbrous and expensive proceedings have to be taken. The rents and fines to the lord are ludicrously small—so small that rents are not collected; but fees and law charges make a substantial burden. Why do not the tenants enfranchise? Well, I cited just now an instance from Mr. Woodcock's evidence showing why. Because the land has been built upon, and escheats and forfeitures have to be bought up on the footing of its improved value. The lord lost 6½d. a-year; but, besides the price of that, he received £94 for the loss of a contingency remote beyond calculation. I will now quote another passage from Mr. Woodcock, giving an example of this state of things— Here is a plan of a number of club-houses built about 50 years ago, and owned by about 60 working men. Each of these working men is subject to a lord's rent of a farthing per annum, and the fine on death or alienation is a farthing, and if it were strictly ascertained it would be very much less. My Lords, I have tried to do the sum, and if my arithmetic is correct, the rent in the instance given would be one-seventh of a farthing. We have heard something lately of extortionate landlords; but here the unfortunate lord can hardly demand less than the smallest coin of the Realm, and so he is obliged to screw up his rents to a farthing. Per contra, he does not collect them. But Mr. Woodcock goes on— If the Bill passes as it stands, each copyholder is to have notice, and valuers are to be appointed; one to represent the lord, and one to represent the copyholder, and an umpire; he is to have an award of enfranchisement, and a memorandum of enfranchisement with the consequent cost. And what for? All to get rid of the lord's rent of a farthing a-year. My Lords, we felt that such a condition of things demanded at least an attempt at a remedy; the ordinary processes break down under the stress of the circumstances; and there is nothing for it but to create another process of a more or less summary and arbitrary kind in order to cut the knots which can hardly be untied. This is not the time to describe in full the details of the plan. It will probably be sufficient now to say that we propose to give to the Land Commissioners powers of making a local inquiry, of ascertaining in each manor whether there is a very general desire for enfranchisement on the part of the copyholders, and if there is, of proceeding to effect enfranchisements throughout the manor.

My Lords, there are other alterations which will be seen when the Bill is in Committee, but, I think, none of sufficient magnitude to warrant my detaining you any longer at this stage.

Moved, "That the House do now resolve itself into Committee."—(The Lord Hobhouse.)

THE EARL OF KIMBERLEY

said, he was glad to hear his noble Friend say that he was not going to move an Amendment to Clause 1, of which he had given Notice, involving the question whether a kind of indirect compulsion to enfranchise should be brought to bear on lords of manors. He was of opinion that one of two things should be done. Either it should be directly provided that all copyholds should be enfranchised by law, or that enfranchisement should be voluntary as at present. Indirect methods of compulsion he was entirely opposed to. Thinking it desirable that immediate compulsory enfranchisement should take place, he moved a Resolution to that effect before the Select Committee, but it was lost. That being the case, he was of opinion that the Bill should be passed in its present form, leaving enfranchisement entirely voluntary. He believed that the Bill contained a number of useful amendments of the law, and that it was well worthy of consideration.

THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)

said, he agreed with the noble Lord that the subject of the Bill was one of extreme difficulty, and, in his opinion, the House did a most sensible thing in remitting it to the consideration of a strong Select Committee. He thought their Lordships should be prepared to accept the decision of that Committee as a compromise after having referred the matter to them.

THE EARL OF SELBORNE

said, that, while he concurred generally in what had been said by the noble Marquess, he hoped the noble Marquess did not go so far as to object to the consideration of Amendments which might be moved. Some were of importance and consistent with the general principles of the Bill.

Motion agreed to.

House in Committee accordingly.

Clauses 1 to 4 agreed to.

Clause 5 (Corresponding abatements to be made from the lord's compensation).

LORD HOBHOUSE

, in moving an Amendment, to add, at the end of the clause, the words "or forfeiture," said: The reason for the Amendment is this. The 16th section of the Copyhold Act of 1852 specifies the things which the values are to be taken into account in ascertaining the lord's compensation. They are as follows:— Facilities for improvement, customs of the manor, fines, heriots, reliefs, quit-rents, chief-rents, escheats, forfeiture, and all other incidents whatever of copyhold or customary tenure, and all other circumstances affecting or relating to the land. In speaking of escheats, I mentioned that they had been mixed up with forfeitures. It does not appear that there ever was such a thing as a separate valuation of forfeitures apart from escheats. The sums which I mentioned, so much of the annual value of the tenement, were given as lump sums to cover the two things. Now escheats are to be preserved to the lord. It is therefore necessary to strike them out of the instructions to valuers, and the clause rightly does so. But then forfeitures remain, and if they remain the valuers will be compelled to go on adding something for them. That, I submit, is not right. My Lords, there were two totally distinct kinds of forfeitures, those which were consequent upon attainder or outlawry, and those which were the mere incidents of tenure, and the remedy for wrong doing by the tenant. Both attached to freehold land as well as to copyhold; only, where freehold land would be forfeited to the Crown, copyhold would be forfeited to the lord of the manor. But all forfeitures consequent on attainder or outlawry have been abolished bylaw, and neither Crown nor lord can now reckon on anything from them. I am speaking in the presence of those who are more familiar than myself with this branch of the law, and shall be set right if I am wrong. But, unless I have fallen into error, forfeitures for crime were finally swept away in the year 1870 by the Statute 32 & 33 Vict. c. 23, and outlawry on civil process was absolished in the year 1879 by the Statute 42 & 43 Vict. c. 59. As long as these forfeitures existed, they were, like escheats, a chance for the lord of some emolument beyond his due from the tenant, and he might rightly be paid something for losing that chance, however slight it was. But the other class of forfeitures never were the proper subjects of compensation when the lord's rights were bought up, because they were only his remedy in case his rights were denied to him. If, for instance, the tenant committed waste, the lord had no action of waste at Common Law; but the remedy given him was to forfeit the wasted tenements after due pre- sentments by the homage. No doubt, the lord has for a great length of time had better remedies in Equity by injunction and account, and the clumsy and somewhat odious remedy by forfeitures has fallen into disuse. It is much rarer even than escheat. Mr. Gregory, Mr. Woodcock, and Mr. Waugh had never heard of such a thing. There was no witness who knew of a forfeiture being enforced.

THE EARL OF MILLTOWN

said, that Mr. White spoke of an enforced forfeiture.

LORD HOBHOUSE

I was just going to say that one of the witnesses—I have just been searching for the passage, but could not lay my hands on it—said that he had known threats of forfeiture in order to compel tenants to do their duty; but I thought that none spoke to an enforced forfeiture. It matters little. The extreme rarity of the process is clear—clear that the thing is for anything but its proper function—namely, the safe-guarding of the lord's rights, a phantom so attenuated that a mere nominal sum would be sufficient compensation for it, even if it were the proper subject of compensation. But, as I have endeavoured to show, it has not, and never had, any existence independent of the lord's rights against his tenant. All those rights are bought up and paid for upon enfranchisement; and to pay a man first for all his rights, and afterwards for the remedies which he would have if those rights were denied him, is contrary to all principles of justice. My Lords, if the words of the Act of 1852 were not express upon the point that forfeitures should be valued, there would be no need for this Amendment. Nay, I believe that if the matter were argued before this House judicially, it would be found that the thing which was contemplated by the Act of 1852 does not exist, and that if, owing to the express words of the Act, any valuation must be made of it, a nominal sum would satisfy it. But this matter goes into the hands of persons who may be well skilled in valuations, but who are unskilled in law, and probably not acquainted with the history of the matter. And it is likely that they will think themselves bound to place some substantial amount on that which an Act of Parliament tell them to value, I ask your Lordships now to omit that which was rightly included in the Act of 1852, and had a justification up to the year 1879, but then became an anachronism, which probably, when mixed up with escheats, did no practical harm, but will, when escheats are omitted, be productive of injustice between the parties.

Amendment moved, in page 2, line 12, after ("escheats") to insert ("or forfeitures").—(The Lord Hobhouse.)

THE EARL OF SELBORNE

said, he should support the Amendment on the ground that the Lord's right of forfeiture had not been shown to have been ever exercised in practice, or to profess to have any practical value. He could not think it right or productive of anything but an expense and difficulty which ought not to stand in the way of enfranchisement, to direct valuers to put a price on something which really had none, and so make the costs of a valuation necessary for that purpose only, when for every other purpose the scale of compensation fixed by the Land Commissioners would be enough.

THE LORD CHANCELLOR (Lord HALSBURY)

said, he could not agree to the Amendment, which, in his opinion, proposed to take away something valuable from the lord. It would leave him without compensation for the loss of an undoubted right. What the value might be, it was for the valuer to decide.

LORD HERSCHELL

said, he heartily supported the Amendment. If the copyhold tenant performed his duty the lord had no right of forfeiture. The lord was getting compensation for all his rights, and it was not reasonable to give him compensation for the right of forfeiture in addition.

THE EARL OF MILLTOWN

said, he should oppose the Amendment. He contended that the right of forfeiture was a valuable right, and if the lord was deprived of it, he ought to receive compensation.

THE EARL OF KIMBERLEY

pointed out that the question was of considerable practical importance. There were, especially in the North of England, manors where the rights of the lord were exceedingly small. For instance, he might receive a quit rent of 6d. or 1s. and a few shillings as fine when a new tenant was put on the roll. But the land had been built over and was exceedingly valuable, and if a value was put upon the right of forfeiture, enfranchisement would, be made absolutely impossible.

THE MARQUESS OF SALISBURY

said, that there was something valuable in the right of which the lord ought not to be deprived without compensation.

LORD BRAMWELL

said, he should oppose the Amendment.

On Question? Their Lordships divided:—Contents 23; Not-Contents 53: Majority 30.

Clause agreed to.

Clauses 6 to 15, inclusive, agreed to, with Amendments.

Clause 16 (When compensation to be secured by rent-charge)

LORD HOBHOUSE

said, he wished to move an Amendment rendered necessary by the abandonment of the compulsory clauses in the Bill, to restore the' existing rule with respect to enfranchisement—namely, that where the enfranchisement was effected at the instance of the lord of the manor, the compensation paid to him should be by way of rent-charge, but where at the instance of the tenant by payment of a lump sum.

Amendment moved, in page 5, line 24, after ("agree") insert ("in every case in which the enfranchisement is made at the instance of the lord, and").— (The Lord Hobhouse.)

Amendment agreed to.

Clause, as amended, agreed to.

Remaining Clauses and Schedules amended, and agreed to.

The Report of the Amendments to be received on Thursday next; and Bill to be printed as amended. (No. 180.)