§ Order of the Lay for the Second Reading, read.
§ * LORD THRING
said, this was a very short Bill, and would require but little explanation. Its object was to extend to wastes belonging to freehold manors the same provisions as appertained to copyhold manors: in short, to make in both cases the assent of the Hoard of Agriculture a condition precedent to enclosure. The Bill was in amendment of one of our most ancient laws, the Statute of Merton, passed iii 1235 in the 20th year of Henry III. at Merton in Surrey. The Statute dealt with the most ancient tenure known to us, called the mark in Germany, which became the manor in England, and which was prevalent throughout Europe in feudal 603 times. The manor or mark might shortly be described as the property of a landed community consisting of the lord's domains, of arable laud, and of common waste. The arable land was cultivated by the free tenants, and as a compensation for holding that land they rendered services to the lord. The common land was shared between the lord and the tenants, and was intended to provide pasture for the cattle employed in the cultivation of the arable land. Even at that very early period, as land became valuable, disputes arose with regard lo the common land, the lords wishing to appropriate it, and the tenants strenuously resisting. Accordingly the Statute of Merton was passed, declaring that if the lord could prove he had left sufficient of the common land for his tenants he might enclose a portion of it. That Statute remained dormant for centuries. It became a fad of political economists to enclose these lands, and some thousands of Acts were put upon the Statute Book for that purpose. Latterly the fashion had changed; enclosure became more difficult. The Statute of Merton was revived, and attempts had been made to enclose land under it. Those attempts were resisted, and enormously expensive litigation followed, which had been generally successful in favour of the commoners, He would quote the case of Banstead Downs, which now remained open owing to a resistance longer in duration than the Siege of Troy, for it lasted 13 years, and cost an enormous sum of money. The object of this Amendment was to interpose the consent of the Board of Agriculture before enclosures could be allowed. It was, in fact, to substitute that consent for what under the old Statute of Merton was called a writ of novel de seisin, long since disused, to test the sufficiency of the laud left to the tenants, that sufficiency having to be determined by a Judge and jury. An exact precedent existed for the Bill in the case of the Copyhold Act of 1887, which imposed a similar restriction on the enclosure of wastes in copyhold manors. For the measure he claimed the sympathy of the noble Viscount opposite (Lord Cross), who, in 1876, passed a Bill for the regulation of commons, a measure which, in his opinion, had done more to prevent the undue and 604 unfair enclosure of waste lands than almost any measure on the Statute Book. He hoped, therefore, for the noble Lord's assistance, and trusted their Lordships would give a Second Reading to the Bill, which he believed to be a just measure. He had brought it in at the instance of the Commons Preservation Society, and it would, without interfering with the just rights of property, protect those open spaces which formed the breathing-places of the people, and which constituted the heritage of the stranger and the poor.
§ Moved, "That the Bill be now read 2£"—(The Lord Thring.)
§ THE: MARQUESS OF SALISBURY
My Lords, I confess I wondered very much what arguments the noble Lord would adduce in favour of this remarkable and far-reaching Bill. He has brought in many matters which seem to me irrelevant. I shall not follow him in a, discussion as to the identity of the manor and the mark, or of the battleground which has been fought over by Sir Henry Mayne and Mr. Seager. Those are interesting antiquarian questions: but they belong to a period far anterior to the passing of the Statute of Merton. Nor is it necessary that I should go into the Copyhold Bill of a few years ago. There were some difficulties in copyhold tenures which led Parliament, after careful examination, to think it necessary to enact that no further copyhold tenures should be created; and I think that was generally received as the solution of a controversy which was difficult of solution in any other way. But this is a Bill simply to take away from landowners or lords of manors a right which they have had under Statute for six centuries, and to take it away without a whisper or a shadow of compensation. I cannot understand on what grounds such a proposal can be recommended to the House. No doubt there is the reservation that if the Board of Agriculture choose to permit a lord of the manor he may exercise his rights without any such check or supervision; but there is no word to indicate to the Board of Agriculture on what principles they are to exercise their discretion. The noble Lord said it was practically the same thing as the ancient writ of novel de seisin, which would have ascertained 605 whether the tenants under the operation of the Statute of Merton had retained a sufficient amount of the common land to satisfy their legal claims when the lord of the manor enclosed the remainder. But there is nothing of that kind in the Bill. There is no word about the rights of the tenants.
§ THE MARQUESS OF SALISBURY
The words in the Bill (Clause 2) an—An inclosure or approvement of any part of a common purporting to be made under the Statute of Merton shall not be valid unless it is made with the consent of the Board of Agriculture.3. In giving or withholding their consent the Board shall have regard to the same considerations as are directed by the Inclosure Acts to be taken into account by them in giving or withholding their consent to any inclosure of common lands under those Acts, and shall give an opportunity to all persons interested in the common to object to such inclosure or approvement.The only rights tinder the Statute of Morton are the rights of the commoners of the manor. The rights affected by this Bill are totally different, (treated by Act of Parliament subsequently as a condition for the interference of Parliament. Parliament has recently declared it will not interfere with its supreme authority to secure the enclosure unless under certain conditions which in the judgment of Parliament are necessary. Of course, it was open to Parliament to make any conditions it pleased for the exercise of its supreme power. But this is a totally different matter. Here you interfere with a statutory right that requires no support from Parliament, but which acts by itself, and you try to impose the same conditions which Parliament has hitherto imposed as the condition for its own supremeaction. If you take away the rights of it lord of the manor in this way you are bound to compensate him. It is a simple question of the ordinary rights of property. I do not believe the Statute of Merton, as it at present acts, does any harm. On the contrary, I believe that in the past, in spite of the noble Lord's history, it has done a great deal of good, and that it is largely the cause of the extensive cultivation of the poorer land in this country. But be that as it may, this right has been in the lords of the manor without contest 606 for six centuries, and it is contrary to all the principles by which Parliament guarantees the sanctity of property in this country that property should be taken away without some compensation being offered.
§ * LORD RIBBLESDALE
said, the Board of Agriculture quite admitted that the Bill required careful consideration in detail, and they hoped ample time would be given for such consideration: but the Government hoped their Lordships would give the Bill a Second Reading. There was nothing novel in the Bill. It proceeded on no startling new principle, but a principle which already existed in legislation. Some doubt seemed to exist as to what right was conferred by the Statute of Merton, and as to whether that was not merely a declaratory enactment. He thought that cases of action taken under the Statute of Merton would be difficult of treatment: but the Board of Agriculture felt that the same measure of control should be provided in the case of enclosures under the Statute of Merton as had already been provided by Parliament in regard to other enclosures—that was, that the benefit of the neighboarhood should be considered as well as the benefit of private, individuals. The Bill, as he had said, proceeded on no new principle. The Bill proceeded on the modern policy of Parliament in these matters. That was a provident policy, and it already existed in the Acts of 1866 and 1876 and 1887, the former being the first Act which embodied this modern policy of Parliament, and prevented the Enclosure Commissioners from entertaining the bare idea of enclosing a Metropolitan common.
§ THE MARQUESS OF SALISBURY
That Was done by Act of Parliament. The Commissioners had no rights under the ancient Statute.
§ LORD RIBBLESDALE
quite agreed, but said the principle was the same. Parliament had assented to the principle that the interests of a community living in crowded neighbourhoods were to be considered before a common wits enclosed. The Board of Agriculture were of opinion that this was it useful Act in harmony with the legislation which Parliament had already affirmed, and they hoped that a Second Reading would be given to the Bill. In view of the 607 conditions under which they lived and the great density of population, the Board thought no further enclosures of any sort should he allowed unless some Central Authority was of opinion that the proposed enclosure would not militate against the interests of the district.
THE EARL OF CAMPERDOWN
said, that under the Statute of Merton a lord of the manor desiring to make enclosures was obliged to prove before a jury that he had left sufficient pasture for the commoners; but that process seemed to have been abolished. What was to take the place of that jury in future? The noble Marquess had said that the commoners under the Statute of Merton were a different body from those under the Enclosure Act. Would the noble Lord in charge of the Bill admit that that was the case?
THE LORD CHANCELLOR (Lord HEERSCHELL)
My Lords, I cannot agree with the noble Marquess that this Bill introduces any new principle, and if it interferes with the rights of property the Copyhold Act interferes with those rights in exactly the same way; because this Bill only imposes upon the lord of the manor who might have the right to enclose under the Statute of Merton the same restriction as the Legislature has already put upon him in connection with copyhold, where there existed a custom to enclose with the consent of the homage. It is quite true, as the noble Marquess has said, that the Statute of Merton has existed for centuries; but I believe it has been practically obsolete for centuries, and it is only in comparatively recent times that it has been revived and again put in use. Where a Statute has been so long obsolete it is evident that the exercise of rights under it cannot be regarded as of a valuable character. The means of trying the right of the lord to enclose by a writ of novel de seisin is a process which is not only obsolete, but which has ceased to exist. That was a question as between the lord and the commoners whether the lord was leaving sufficient common. Under the Statute of Merton attempts have been made to enclose portions of common laud. These attempts have been successfully resisted, and the only result of reviving the Statute of Merton has been to encourage certain individuals to waste a vast amount of money in what 608 has proved to be profitless litigation, imposing, at the same time, a great deal of expense upon other people, without-getting any benefit themselves. Surely it would be better to have a measure by which the enclosure of common land under the Statute of Merton should be restricted in the same way, and subjected to the same approval, as enclosure under the Copyhold Act. It seems to me it would not interfere with any substantial right of property, and that it would be advantageous as putting the whole question of the enclosure of commons on the same footing.
§ VISCOUNT CROSS
My Lords, the noble Lord, in introducing the Bill, quoted as an example and precedent for it that of 1876, for which I was responsible; but that Act was on a totally different footing. At the time of the war it was thought that, as there were a large number of commons lying idle, an Act should be passed to enable those commons to be enclosed for the purpose of providing food for the people. A number of commons wore enclosed under those Acts; but they were dealt with under Statute, and there were no rights involved otherwise than those conferred by Statute. Then, at a later date, it was found that the commons were being enclosed at a greater speed than was wise of necessary for the people, and that it was wise to maintain some of the waste lands, if possible, as open spaces. But the rights were not interfered with at all. That being so, the object of my Act of 1876 was simply to make it more difficult to make enclosures than it was before; and Parliament, which gave the Enclosure Commissioners the right to enclose, had an equal right to impose restrictions upon those enclosures, and to take care there should be some system of regulation in enclosing commons. I have thought it necessary to make this explanation, because the noble Lord opposite (Lord Thring) stated that I had made a precedent for this Bill, and I only wanted to show that that was (tarrying out an entirely different policy, and that that Act stands upon an entirely different footing to those alluded to by the noble Lord.
* THE EARL OF SELBOPNE
said, what the noble and learned Lord on the Woolsack had stated as to the analogy between this Extension Bill and the 609 Copyhold Act of 1887 was quite true; but he rather demurred to the idea of the application of the word "enclosure" to the rights of lords of the manor under the Statute of Merton, or to the right to create new copyholds which had been placed under restriction by the former Acts. There was a great difference between the general enclosure of a whole common and the right which a lord of the manor exercised in enclosing some part of it. Under the Statute of Merton the right was only to take such portions of the common as was reasonable without interfering with the rights of the commoners. The tendency of the Courts had latterly been to construe the rights of the lords very strictly in favour of the commoners. The result had been expensive litigation, in which the lords had usually failed, and be was very far from thinking this Bill would be unfavourable to lords of the manor. In any ease in which there was reasonable ground a fair arbitrator would allow him to make his approvement. He could not he sure that this would not be favourable to the lord, assuming always that the duty of arbitrating was properly performed by the Board of Agriculture. It might save him from much expense, and from uncertainty as to the result. The noble Marquess had pointed out that the rights of lords of manors had not yet been taken away without compensation. If he were thoroughly convinced that the right as it now stood was practically ratable, and would be taken away, he would certainly agree in the noble Lord's conclusion; but that was a question of fact, and the result had been under recent decisions practically to destroy the value of the right, and no lord of a manor in future would be likely to exercise it unless in cases where it was clear he was not injuring the rights of the commoners. If, therefore, their Lordships went to a Division he could not vote against the Bill.
§ * LORD HOBHOUSE
said, be must give his voice in favour of the Bill. He had had to study the history of enclosures in one locality—Epping Forest—and he had been strongly impressed that the result of leaving the lords to enclose at their will and of leaving the commoners to resist by whatever means they could (the legal means being extinct) were extremely lamentable, and that it would 610 be of great advantage if some impartial authority could be brought in before the quarrel arose to say whether an enclosure should be made or not. In the case of Epping Forest the lords of manors could not get Enclosure Bills, because they were always opposed and defeated. They, therefore, had recourse to enclosing partly under the Statute of Merton (whether called enclosures or approve-ments did not matter in the least, the land being turned from open into enclosed land), and partly under the custom which had been referred to of enclosing the waste with the consent of the homage, he granting plots in copyhold. It was a very curious result that in that way a customary estate might be created de novo—a, rare and exceptional instance, but there it was. The noble Marquess was quite right in saying that the Act of 1887 was directed to limit the creation of copyholds, and in pointing out that distinction between it and the present Bill. Gradually large tracts of laud became affected, with the result that the number of enclosures was so great that people resorted to every kind of controversy for settling their differences. But in Epping Forest the enclosures went on under both methods; and they wore so numerous and extensive, and their legality so disputable, and the feeling of resentment at the disappearance of open spaces so widespread and deep, that every conceivable mode of resistance was resorted to. There were public speeches, and newspaper writings, and overthrowing of fences, and lawsuits, and Chancery suits, and criminal prosecutions, and riotous meetings, with the common accompaniment of fisticuffs and broken heads, and Debates in Parliament; in short, whatever method there was for people to settle, or to embitter, their dissensions, that method was followed. And that went on for 10 years, with an expenditure of rime, temper, and money which no man could calculate. However, the Gordian knot was not loosened, but, on this contrary, was rather tightened, by all this tugging and pulling. And at last Parliament had recourse to the rather rude device of appointing an arbitrator, giving him broad outlines of directions, and arming him with the power of Queen, Lords, and Commons, to settle all differences which could arise between the Crown, the lords, the commoners, 611 and the public. He happened to be that unfortunate arbitrator, and it was in the course of four years' hard labour in that capacity that lie formed the conclusion which lie had ventured to express to the House. The Copyhold Act of 1887 was referred to a very strong Committee, of which lie was Chairman. The effect of granting copyholds out of the waste was that in a year's time the copyholder applied to be enfranchised, and the property was lost to the waste for ever for the benefit of the lord. To control that custom certainly was an interference with the rights of property. But that right of property was so hard to exercise; it was exercised under such limitations of quarrels, litigation, and expense, that the Committee found that very little indeed was taken away from the lord. As the Earl of Selborne had said, the lord would have his chance of obtaining an opinion in his favour from the Board of Agriculture, and then the enclosure would take place without any dispute at all. He understood that a few cases had conic before the Board of Agriculture (they could only be few, because the custom which the Act restrained was a comparatively rare one), and that sometimes the Board gave the leave and sometimes refused it, the Act working with great smoothness and satisfaction. He thought a good case had been shown for reading this Bill a second time.
§ On Question, their Lordships divided:—Contents 32; Not-Contents 23.
§ Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday next.