Lords Sitting of 1 March 1897

REPRESENTATIVE PEER FOR IRELAND. (LORD EARNHAM.)
Report made from the Lord Chancellor, that the right of Somerset Henry Maxwell, Baron Farnham, to vote at the elections of Representative Peers for Ireland has been established to the satisfaction of the Lord Chancellor; read, and ordered to lie on the Table.
PRIVATE BUSINESS.

  CHRISTCHURCH INCLOSURE ALLOTMENTS BILL.
  THE LORD CHANCELLOR (LORD HALSBURY), moved "That this Bill be now read a Second time."
  LORD HOBHOUSEmoved to leave out all the words after "That," and to insert
  "having regard to the policy of Parliament as declared by the Commons Act, 1876, especially with respect to fuel allotments, this House is not prepared to pass a Private Rill in order to enable the sale and inclosure of fuel allotments contrary to such policy."
  His Lordship said that he made the Motion entirely on public grounds, and in support of the policy which was fixed in 1876, after a great deal of fluctuation. It was not necessary to enter into minute detail as to the early history of those lands. They formed part of a much larger tract of open land, which in 1802 was the subject of an Enclosure Act. By that Act the Commissioners were directed to award to the Lords of the Manors so much land as they considered proper for a turf common for certain described cottages, and the Lord of the Manor was to hold the land awarded to him in trust for the occupiers, for the time being, of the cottages as a turf common—that was to say, as fuel allotments. In pursuance of that order the Commissioners set out to the lord of the manor in the case in question 425 acres, about five acres a cottage, the maximum they were empowered to
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  set out. The present lord of the manor was Sir George Meyrick; he was the owner of the soil as a trust common, but in trust for the occupiers of the cottages. The number of cottages had decreased to about 53 at the present time, and oddly enough, the acreage had decreased in almost exact proportion as the cottages. Railways had taken a small portion of the land, and the Corporation of Bournemouth had taken about 50 acres for a cemetery. The same public body had taken about 100 acres for a park, but this was taken in accordance with the Act, and to be kept as open ground. The result was that there were now left about 260 acres of open land, and that land it was proposed to sell, and, of course, to enclose. The policy laid down by the Legislature was clear enough. The views held in regard to the subject of enclosures had, as their Lordships knew, undergone very considerable alteration, and it was now maintained that the public—the people of the neighbourhood—had an interest in those questions of land enclosure, and that whenever it was necessary to come to the Legislature for extraordinary powers beyond the law, in order to enclose any common land, Parliament would have regard to those public interests, and particularly to those of the cottagers and others living in the neighbourhood. Those views found expression in the Commons Act of 1876, which laid down general principles, and also principles as regarded fuel allotments. The earlier part of the Act summed up the provisions of former Acts down to the year 1868, and showed that in determining upon enclosure regard was to be had to the health, comfort, and convenience of the local public, and in order to insure that the enclosures would be a benefit to the neighbourhood as well as to private interests, it directed the Inclosure Commissioners to make inquiries with that view. Then, as to fuel allotments, Section 19 of the Act recited that fuel allotments for the poor had, by words under the Inclosure Act prior to 1845, been set out and vested in divers persons as trustees. Except in regard to the words "for the poor," which were not in the Act, the present case was precisely similar. The Act of 1876 enacted that it should not be lawful to authorise the use of any such fuel allotments for any purposes other than those declared by the

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  Act of Parliament, and this involved a direct contravention of what the Bill under consideration sought to do. The words "the same as hereinafter mentioned" in the Act, referred to a power given to the Charity Commissioners to take fuel allotments as gardens or recreation grounds, and to make schemes for their administration accordingly. That seemed to him directly in the teeth of this proposal. Directions were given to the Inclosure Commissioners, and to the Charity Commissioners, and to the Board of Agriculture, which had succeeded the Inclosure Commissioners, not to allow the sale or inclosure of fuel allotments. In 1893 the same principles were affirmed. In that year the inclosures, under the Statute of Merton, were forbidden, except with the assent of the Board of Agriculture; and in considering whether it should give assent or not the Board was directed to have regard to the considerations laid down in the Act of 1876, and he thought that those enactments laid down a standard from which the House ought not lightly to depart. The only distinction he could understand—he did not know it was taken or not—between the case before the House and the case mentioned in the Act of 1876 was that the Act mentioned allotments for the poor. Can it be conceived that, if it was forbidden to aid the poor by turning the fuel allotments into something more valuable, it ever was intended that the rates should be aided by turning their fuel allotments into something more valuable? If the distinction were taken, that eliminated the question of charity altogether, and referred them to the general principles that the inclosure must be for the benefit of the neighbourhood and the public. No doubt the Bill came here under the sanction of the Court of Chancery; but, he asked, in whose interest was that sanction given? The Court of Chancery had jurisdiction to administer the settled estate of Sir George Meyrick, and it had jurisdiction to administer charitable trusts generally. But it had no jurisdiction to order an inclosure or sale of fuel allotments, and it was on that ground that this Bill came before the House. He took it that the Court's orders were excellent for those subjects under which it had jurisdiction, but the neighbours were not heard before the Court, the public were not heard,
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  and, in all probability, not a single thought had been given to those interests. Their safeguard lay in this, that it was necessary to come here for the sale and inclosure of the lands. He did not doubt the omnipotence of Parliament. This and the other House might pass a Bill containing a provision quite contrary to anything that had been previously laid down by the Legislature, and he did not doubt there were instances in which it would be quite proper to depart from that policy. In the case of the Bournemouth Cemetery, part of these lands were taken; there was a great public object, and the fuel rights were taken. He could not find from the Bill that any attempt was made to show that in this case the Legislature was warranted in departing from the policy it had previously laid down. Judging from the Attorney General's report, and from certain communications coming from the local bodies, which were not before the House, he maintained that the case for departing from the general policy of the law was a very weak one. What interests were to be served by this proposed sale? He perceived that the Lord of the Manor was declared entitled to half of the value. The Lord of the Manor stood in the same position as every other Lord of the Manor who asked for inclosure—certainly no better—because this particular lord had rather smaller interests than others, for he was debarred by the Act of 1802 from pasturing the land, and he could not get minerals, because the land was devoted to turbary, and he must not disturb the surface. He did not know what interest the Lord of the Manor had in the land, beyond the important one of being the owner of the soil, and the unimportant one of being entitled to a right of sporting over the surface. He supposed they would hear that this was a charitable trust. If it was a charity, of course it fell within the Act of 1876. If some distinction was taken on that ground, he asked what the charity was? It was a charity only in a technical sense, because it was a trust for the benefit of a number of persons large enough and indefinite enough to be called the public, and such public trusts were called charities. If they made the distinction that was sought to be made here they would include such a number of cases as would go very far

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  to repeal the Act so far as it related to fuel allotments. But he observed that the nature of the charity, calling it such, was simply to cut turf over, at most, five acres of land for each cottage. If he translated that into money value, 40s. a year would be the utmost value. There was now in the Court of Chancery the sum of upwards of £7,000 accruing on behalf of the fuel rights from the 50 acres taken for the Bournemouth Cemetery, and that alone, if it were divided amongst the 53, would yield an income considerably larger than anything they or their predecessors could possibly have had in fuel rights. He noticed that the increase contemplated was not for the objects of the Act of 1802. It was declared to be devoted indefinitely to general charitable purposes, and a scheme was to be made in which these particular objects were to have due regard shown to them. They would, therefore, have this result; not only were the lands to be diverted from the uses to which they were devoted by the Act of 1802 and the other general Acts, but they were to be diverted, he did not know to what extent, to certain uses—they did not know what uses. They knew nothing of them but this, that they must be something entirely different from any uses that were dreamed of by those who made the arrangement of 1802. He submitted, with some confidence, that that was an extremely weak case with which anybody could come to Parliament and ask it to depart from the declared policy of the law. What had they on the other side? They had an enormous rapid increase of population and building. If he might be a witness in the case, he could say that in his early youth one used to journey by coach from Christchurch to Poole for eight miles of almost continuous open moor, and now one made the same journey through eight miles of almost continuous lines of houses, each house with its inclosure, and every here and there a dense settlement behind a fringe of houses. This absorption of open land was going on with great rapidity, and he learned from the four local bodies who were opposed to the Bill that already recreation ground was lacking, and they were desirous of securing land. He asserted that the most charitable use that could be made of the lands for the neighbourhood, for the public, even for the
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  53 owners or occupiers of the cottages, was to leave the lands in the present state, of which the law approved. There were no reasons for departing from the practice, while there were strong reasons for them adhering to it, and he hoped their Lordships would refuse their sanction to the Bill.
  *THE LORD CHANCELLORsaid this Bill was promoted under the sanction of the Attorney General. The Lord of the Manor claimed to be substantially the owner, but various persons claimed to have an interest in the land. It was necessary for the Attorney General to intervene for the protection of the charity. The matter was carried from Court to Court, and in 1892 that House decided that the Lord of the Manor had a substantial interest, but subject to rights of turbary. That was the condition of things when the Attorney General entered into negotiations with those interested for the purpose of rendering this property for all time valuable to those whom it concerned. The original settlement was made in 1782, and there were four different occasions when portions of this land had been taken for railway and other purposes, and there remained 200 out of 421 acres. The only effect of the rejection of the Bill would be that nobody would be able to make the land valuable for anything. He wished to say one word as to the public park which had been obtained for Bournemouth. The noble Lord said something about somebody getting something. He did not know to whom the allusion was made, unless it was intended as an attack on the Lord of the Manor.
  LORD HOBHOUSEdenied that he made any attack on the Lord of the Manor.
  *THE LORD CHANCELLORasked what was the meaning of the references to the rich and the poor? The Lord of the Manor waived his right altogether, and Bournemouth obtained a public park on very cheap terms indeed, by reason of the Lord of the Manor giving up his interest for the benefit of the public. The noble Lord suggested that the interest of the Lord of the Manor was very small indeed, but that was not so; it was 18–20ths of the whole. He did not think the suggestion quite candid. Now what was the result of what had been done? The Attorney General reported, as their Lordships knew, on all matters affecting

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  charities, and had recommended this scheme to their Lordships as an expedient thing for the charity. His noble Friend seemed to be very much shocked at the intervention of the Attorney General in order to settle the matter. His hon. Friend spoke as if he represented some great public body, but he thought there were only 53 of the turf claimants altogether. Before the Committee everyone could be heard, and show what interest they had. The Charity Commissioners could make no claim in respect of money paid under the Act if the Bill should pass, and under the 11th Section it was provided that due regard should be shown to the claims of those who had turbary rights. He had explained only why the Attorney General had intervened. He had intervened solely on behalf of the public, and the utmost care had been taken in dealing with the allotments. He thought it would be most unusual if their Lordships rejected this Bill at that stage. One portion of the land had been in litigation so long that the law costs had swallowed up everything, and this Bill would prevent further lighting. The offer of the Lord of the Manor was a very generous one, and one which the Attorney General was very glad to accept. Under these circumstances he trusted their Lordships would not take the unusual course of rejecting a Bill of that sort on the Second Beading. Everything that had to be urged could be urged in Committee. The Attorney General, in the exercise of his great office, had recommended this as a proper arrangement to be made in the interest of the public, and he trusted the House would not set the bad example of refusing the Second Reading.
  LORD HERSCHELLsaid if he could agree with the premiss of the noble and gallant Lord he could agree with the conclusion at which he arrived. With all respect to the noble and learned Lord on the Woolsack he must say that the fallacy of his argument arose from the fact of his having mixed together two questions which were absolutely separate, namely, that which arose with regard to the portions of the land which had been sold, and that which arose with regard to that portion which remained unsold. The portion of the land which had been sold had been acquired by railway companies under their statutory powers, and
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  by other parties, and the money which had been received for it was, of course, subject to the jurisdiction of the Courts of Law. The Amendment of the noble Lord, however, referred not to the sold portion of the land but to the unsold portion of it. He could not regard the Measure in the light that the noble and learned Lord looked at it, because it appeared to him that it dealt with a matter of public importance. If this subject were to be dealt with in a private Bill the door would be opened for numbers of such Bills being introduced with the object of contravening the avowed intentions of the Legislature with regard to these fuel allotments. In his view the Amendment of the noble Lord would not kill the Bill because it would merely operate as an Instruction to the Committee that they should strike out that part of the Bill which proposed to deal with the unsold portion of the land. By the 10th Section of the Commons Act of 1876 Parliament had said to the Inclosure Commissioners,
  "You are not to deal by way of inclosure with any land which has been appropriated to fuel allotments."
  And Parliament had further said that when such fuel allotments were no longer required for that particular purpose, they were to be used as recreation grounds or for field allotments. No authority whatever was given to anyone to dispose of these allotments by way of sale, except under the powers that might be conferred by an Act of Parliament. Even those to whom fuel allotments belonged could not dispose of them by agreement between themselves. It was evidently the intention of Parliament that when the very limited user of these allotments came to an end the rights of the public in the land were to be considered, and the allotments were to be appropriated to recreation grounds if they were not required for field allotments. By this Bill it was proposed simply to sell the land and to divide the money which it realised. The argument of the noble and learned Lord on the Woolsack with regard to the litigation in reference to the land and to the compromise which had been arrived at appeared to him not to apply in any way to the unsold portion of the land. The parties concerned could not legally agree among themselves to sell that which

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  they had no right to sell. There was, of course, nothing to prevent dealing with the money that formed the proceeds of the sold portion of the land. He confessed that he could see no reason why the policy that had been laid down by the Legislature in the Act of 1876 with regard to these fuel allotments should now be set aside. In these circumstances he hoped that their Lordships would accept the noble Lord's Amendment. ["Hear, hear!"]
  *THE CHAIRMAN OF COMMITTEES (The EARL of MORLEY)said that he would venture to say a few words to their Lordships in reference to this Measure, although, of course, he was almost afraid to touch upon the legal question which it involved after the opinions which had been expressed with regard to it by such eminent legal authorities as the noble and learned Lords who had already spoken upon it. The reason why he had not moved the Second Heading of the Bill in the ordinary course was not because he objected to the Measure, but because he felt that as it involved an important legal question he ought not to move its Second Reading. The noble and learned Lord who had just spoken had objected to the Bill on the ground that it dealt with what, in his opinion, were fuel allotments under the Commons Act of 1876. But, with all submission, he understood from the speech of the noble and learned Lord upon the Woolsack, and from the report of the Attorney General, that the whole foundation of this Bill was that it did not deal with fuel allotments under that Act.
  LORD HERSCHELLsaid that that could hardly be the case seeing that the noble and learned Lord upon the Woolsack had made no allusion whatever to the Act of 1876.
  *THE CHAIRMAN OF COMMITTEESsaid that, as he understood the matter, the Court of Chancery had decided that these fuel allotments were a charitable trust, created by the Act of 1802, and could therefore only be dealt with by Parliament. The whole property, whether sold or unsold, appeared to him to be included in the compromise that had been arrived at, so it would not be right to exclude the unsold lands from the Bill. Ha ventured to hope that their Lordships would give a Second Reading to this Bill, because if they did not adopt that course
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  litigation must necessarily go on and the whole value of the property whatever it might be would be swallowed up in law costs. In his opinion the Amendment, if adopted, would certainly kill the Bill, and would thus prevent the Measure from going before a Committee before whom the local authorities who were interested in the disposal of the land might be heard. For these reasons he hoped that their Lordships would reject the Amendment and would read the Bill a Second time.
  *LORD THRINGsaid that there had been no litigation and no compromise with regard to the unsold portions of this land which it was now proposed to deal with by this private Bill. The truth was that these 250 acres of land originally formed part of a large tract of waste land which was situated close to Bournemouth, and was now of the utmost possible value to that town and to the surrounding neighbourhood if kept open. In 1802 it was agreed to enclose the greater portion of this waste land and to leave these 250 acres as fuel allotments for the benefit of the poor. By this private Bill it was proposed to take power to sell the land and to hand over half of the proceeds to the Lord of the Manor, in spite of the tendency of legislation dining the past 30 years. In his view that would be a most monstrous proceeding. If this Bill were not passed there would be no litigation with regard to this land. As a matter of fact no litigation was required. There was no dispute and no intricacy at all. He was sorry not to see Lord Cross in the House, for he was sure the opponents of the Bill would have his sympathy.
  *THE LORD CHANCELLOR: I may inform the noble Lord that I only took possession of this Bill because Lord Cross could not be here to move the Second Reading. [Laughter.]
  *LORD THRINGsaid he was very sorry that Lord Cross was not in the House, for he had never known any Minister to take so much trouble to preserve common land. This, a private Bill, violated the express provisions of the Act of 1876 with regard to fuel allotments. That Act provided that they should not be appropriated except for the purposes of recreation grounds. It further provided that no inclosure should take place except

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  it was determined by the authorities having jurisdiction over the inclosure of the common that it was for the benefit of the neighbourhood, it directed a local inquiry to be held by the Board of Agriculture to ascertain that fact, and, finally, even if an inclosure were made, it contained provisions for the protection of the public. In spite of all this legislation, this private Bill was brought in, without any provision for the protection of the public or of the neighbourhood, and giving one-half of the land to the Lord of the Manor. With the greatest submission to the Chairman of Committees, he contended that the Bill ought to have been disallowed as an inclosure Bill and not a private Bill. He could not conceive a Bill their Lordships ought more readily to throw out, seeing that it violated a practice that had existed for 30 years, as well as the express provisions of several statutes. He hoped their Lordships would declare that, so far as these 250 acres of laud were concerned, they, at least, should be preserved for the benefit of the 60,000 people in Bournemouth and the neighbourhood.
  LORD HOBHOUSEasked leave to make a brief personal explanation. His hon. and learned Friend on the Woolsack seemed to entertain the idea that he had mentioned poor people and rich people with the view to creating some prejudice. Such a thing never occurred to him. He never dreamt of it. The reason why he mentioned poor and rich was that the Act of 1876 spoke of allotments for the poor, and the particular Act under which this inclosure was made did not mention the poor.
  *THE LORD CHANCELLORthen put the Question as follows: The original Question was, "That this Bill be read a Second time," since which an Amendment had been moved to omit all the words after "That" in order to insert the following:—
  "Having regard to the policy of Parliament, as declared by the Commons Act 1876, especially with respect to fuel allotments, this House is not prepared to pass a Private Pill in order to enable the sale and inclosure of fuel allotments contrary to such policy."
  The Question is that the words proposed to be left out stand part of the Question.
  On Question that the words proposed to be left out stand part of the Motion. The House divided:—

  CONTENTS

  …

  …

  58

  NOT-CONTENTS

  …

  …

  24

  CONTENTS.

  Halsbury, L. (L. Chancellor.)

  Bateman, L.

  Chelmsford, L.

  Devonshire, D. (L. President.)

  Churchill, L. (Teller)

  Clinton, L.

  Bedford, D.

  Colchester, L.

  Fife, D.

  Colville of Culross, L.

  Bristol, M.

  Cottesloe, L.

  Hertford, M.

  Fermanagh, L. (E. Erne.)

  Lansdowne, M.

  Salisbury, M.

  Forester, L.

  Belmore, E.

  Glenesk, L.

  Clarendon, E.

  Hillingdon, L.

  Dartrey, E.

  James, L.

  de Montalt, E.

  Kintore, E. (E. Kintore.)

  Dudley, E.

  Feversham, E.

  Lawrence, L.

  Graham, E. (D. Montrose)

  Mendip, L. (V. Clifden.)

  Monckton, L. (V. Galway.)

  Lauderdale, E.

  Lucan, E.

  Northington, L. (L. Henley.)

  Minto, E.

  Morley, E.

  Poltimore, L.

  Portarlington, E.

  Ranfurly, L. (E. Ranfurly.)

  Romney, E.

  Selborne, E.

  Rothschild, L.

  Stanhope, E.

  Rowton, L.

  Vane, E. (M. Londonderry.)

  Sinclair, L.

  Stewart of Garlies, L.(E. Galloway.)

  Waldegrave, E. (Teller)

  Bridport, V.

  Sudley, L. (E. Arran.)

  Knutsford, V.

  Wenlock, L.

  Abinger, L.

  Windsor, L.

  Ampthill, L.

  Zouche of Haryng-

  Bagot, L.

  Worth, L.

  Balfour, L.

  NOT-CONTENTS.

  Ripon, M.

  Kenry, L. (E. Dunraven and Mount Earl.)

  Carrington, E.

  Crewe, E.

  Kimberley, E.

  Kinnaird, L.

  Malmesbury, E.

  Lingen, L.

  Spencer, E.

  Monkswell, L. (Teller.)

  Stamford, E.

  Northbourne, L.

  Strafford, E.

  Reay, L.

  Oxenbridge, Y.

  Stanmore, L.

  Davey, L.

  Thring, L.

  Farrer, L.

  Tweedmouth, L.

  Herschell, L.

  Wandsworth, L.

  Hobhouse, L. (Teller.)

  Welby, L.

  Resolved in the affirmative; Bill accordingly read a Second time.

RETIREMENT OF VESTRYMEN AND AUDITORS (LONDON) BILL. [H.L.]
A Bill to amend the law relating to the retirement of vestrymen and auditors in London was presented by the Lord Monkswell; Read 1a; to be printed.—(No. 17.)
CHURCH PATRONAGE TRANSFERS BILL. [H.L.]
A Bill to regulate the transfer of Church Patronage was presented by the Lord Archbishop of York; Read 1a; and to be printed.—(No. 18.)

PARLIAMENTARY FRANCHISE (WOMEN) BILL. [H.L.]
Second Reading (which stands appointed for this day) put off to Monday next.
House adjourned at Half-past Five o'clock, till To-morrow, a Quarter past Ten o'clock.