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COMMONS INCLOSURE BILL-[BILL 119.] (Mr. Knatchbull-Hugessen, Mr. Secretary Bruce.)

SECOND READING.

Order for Second Reading read.

|be traced, not only in the Act itself, but in the debates which preceded its becoming law. The Preamble of the Act stated

"Whereas it is expedient to facilitate the Inclosure and Improvement of Commons and other Lands now subject to rights of property which obof labour;" struct cultivation and the productive employment

them upon a more satisfactory footing.
Lord Lincoln, who brought forward the
Bill on behalf of the Government, stated
this in his speech, and that it was sought
to get rid of the difficulties which sur-
rounded private legislation. He stated
his belief that in 19 cases out of 20 in-
justice was done to the poor by these
Committees, the fact being that the poor
could not, whilst the rich could, attend
in London to give evidence and protect
And Lord Lincoln
their own interests.
further made use of these words-

"My principal object, after the accomplishment of those views which I have stated to have deter mined me to introduce this measure, has been to secure to the poorer classes throughout this coun try a more extensive and effectual protection in their rights to common lands than they have heretofore enjoyed.”

MR. KNATCHBULL-HUGESSEN said, that at that late hour of the night he was very unwilling to detain the House; but that, as he had been unable so that certainly one main object of the to make any statement upon the intro-Act was to promote inclosures, and place duction of the Bill, it was necessary that he should preface the Motion for its second reading by a few observations. He did not wish to conceal from the House that, by this measure, a considerable change in the law was proposed; but he would state, as concisely as possible, the nature of that change, and the reasons by which he thought it might be justified. He would not attempt to occupy the time of the House by any long argument concerning the history of waste lands, and the circumstances under which they originally fell into the hands of lords of manors and commoners. There were many persons who contended that these waste lands were as much the property of lords and commoners as any gentleman's meadow is his property, the only difference being that the boundary fence has been erected in the one case and not in the other. It was argued on the contrary, by many persons, that these lands were for the most part granted originally to lords of manors with certain conditions and duties involved, and that they held them rather as trustees acting for the public than as private owners. In that case, of course, wrong must have been done to the public by their continual inclosure and absorption into private estates. But as he (Mr. KnatchbullHugessen) wished to consider, and to lead the House to consider, this question in a practical point of view, he thought it would be better to discard for the moment the various theories on either side, and to take for a starting-point the manner in which the Legislature had regarded the subject, as evidenced by the last general legislation in 1845. Then the House would discover what had been the intentions of Parliament; whether those intentions had been carried out; and, if not, what alterations in the law might be required. The Act of 1845 followed upon a full and careful inquiry before a Committee in 1843. The object with which that Act was introduced must

These words, and the perusal of the debates, really left little doubt as to the intentions of Parliament in the Act of 1845. How, then, had the Act operated? He (Mr. Knatchbull-Hugessen) would readily admit that, as a means of promoting inclosures, bringing land into cultivation, and simplifying titles after inclosure, the Act had been most effectual. Nor should those advantages be underrated. It must not be forgotten that, in many districts, the bringing of these lands into cultivation had been an unmixed advantage to the neighbourhood, and to the public. There might have been a time, therefore, at which it was desirable to facilitate these inclosures by legislation. The question was whether, looking at the altered circumstances of the case, it was not now rather desirable to point legislation in a contrary direc tion, and to regard mainly the preservation of open spaces for our crowded and increasing population. But if the Act had worked well in the above manner, wherein had it failed? He would give a brief answer from the last Report of the Inclosure Commissioners which he held in his hand. Since the passing of these Acts upwards of 531,000 acres had

we

been inclosed. Of these, 364,173 acres | We do not compel you to inclosehad been subject to allotments for re- rob you of no right-we leave the lords creation or field-gardens, and the amount even their veto upon inclosure; but if you allotted had been 3,671 acres, or some- choose to take advantage of our law, we thing like 1-99th part of the whole, require that in return, upon grounds of which the public had received, whilst public policy, you shall give something the rest had become the private property to the public for whom we are acting as of lords and commoners. Now he must trustees." Well, then, since the passing not be understood as casting any cen- of the Act the public had not received sure whatever upon the action of the anything like a sufficient portion, acCommissioners, who had felt their hands cording to his opinion, and Government tied by the words of the Act of Parlia- now wished to make provision for a ment, and who, standing as arbiters be- larger portion being secured to them in tween lords, commoners, and the public, future cases of inclosure. He (Mr. had acted to the best of their judgment. Knatchbull-Hugessen) would briefly deBut things had got to such a state that scribe the main changes proposed by whilst the Commissioners, considering the Bill, and as the points of difference that Parliament had retained in its own between himself and certain of his hon. hands the revision of, and right of veto Friends who did not agree with him upon, each inclosure, seemed to have could more properly be considered in left it to Parliament to see that the public Committee, he hoped the second reading received the full amount which Par- might then be taken, and the principle liament intended. Parliament, on the of the Bill agreed to namely, that other hand, seemed to consider that the larger provision should henceforward Commissioners had done everything be- be made for the poor and the public. fore the Bills confirming the Provisional The first change proposed was, that the Orders came before them, and, therefore, allotments for recreation grounds and got into the habit of passing these Bills field-gardens -one or both-should be as merely formal measures, requiring no compulsory in every case, instead of discussion. He must give credit to the being left, as at present, to the discretion hon. Member for Brighton (Mr. Fawcett) of the Commissioners. Government had for having shown great activity in the proposed in the Bill that a tenth of the matter, and having obtained the Com- quantity inclosed should be so allotted, mittee which sat last year upon the In- instead of a ninety-ninth, as had been closure Acts. Several hon. Gentlemen the case; but the precise quantity would who had served on that Committee were be a matter for consideration in Comthen present, and would bear out his mittee. He might here observe that he assertion that the Committee considered found many hon. Members, who had in and inquired into the subject with great view very large commons, objected to this provision. They said that in a common of, say 2,000 acres, an allotment of 200 acres, perhaps far from any population, would be preposterous. The idea of the Government was that, in such a case, the land might be sold, and the proceeds applied to the purchase of other land, or the improvement of other grounds, nearer to the population. But both as to the proportion, and also as to the question of dealing with commons of so large an extent in a different manner, he would be ready to listen to argument. It might be desirable to exempt from the operation of this Bill commons which contained above 1,000 acres; or it might be well to fix a maximum quantity for an allotment; but all this might be discussed in Committee, and he would entertain suggestions of amendment with every respect. Then the Bill proposed

care.

Their recommendations-many carried by large majorities and some unanimously-were embodied in the Bill before the House; but Government had thought it right to go further, and to propose a larger change in the law. There were three parties to consider the lords of manors, the commoners, and the public. The Government based their Bill upon the idea which he believed had been present to the mind of Parliament in 1845. He believed that Parliament had, in effect, intended to say this to persons desiring to inclose commons-There have been hitherto many irregularities in inclosures and much insecurity of title. We will pass a law which will facilitate these inclosures, and enable you to obtain a simple, cheap, and sound title to your respective shares in the commons affected, by an inexpensive process.

a change with regard to field-garden | had kept his word to the House, and not
allotments, which were at present given unnecessarily wearied them. His hon.
subject to a rent-charge which was diffi-
cult of collection, and diminished the
value to the recipient. Government
thought that this rent-charge should be
abolished, and that whatever was thus
given to the labouring poor should be
given free of charge. Then they pro-
posed to deal with commonable lands,
which were at present not subject to al-
lotment. The House would remember
the distinction between common and
commonable land; the former being land
over which rights were exercised in
common during all and every part of
the year; the latter lands over which
rights of severalty existed during a
portion of the year-that is to say, a
man might crop the land and the com-
mon rights of others did not come in
until his crop was cut and carried. Go-
vernment thought that in all cases where
the public had exercised rights for a
certain portion of the year-a certain
allotment should be given, though less in
proportion than in the case where those
rights had been exercised during the
whole year. The next provision to which
he would allude was, that which es-
pecially referred to suburban commons,
in which cases he proposed that the
consent of the local authorities should be
required before inclosure, so that towns
and large villages might not be deprived
of open spaces in the teeth of public
opinion. Some portions of the Bill of
the right hon. Member for South Hamp-
shire (Mr. Cowper-Temple) might have
to be engrafted upon this portion of the
Bill, which would have to be considered
hereafter. Then came a recommendation
of the Select Committee, which he had
himself had the honour of proposing
-namely, that provision should be made
for paths and drives across commons, so
that the public should not be deprived
of their right of passage from one point
to another, which might frequently be
a great inconvenience. Then there were
also provisions for more careful inquiry
by the Assistant Commissioner before
inclosure, as to the wants and feelings
of persons residing near commons, and
also for more detailed Reports by the
Commissioners. There were various other
minor changes proposed; but he had
stated the principal points, and although
he would willingly have gone into the
subject at greater length, he hoped he

Friend opposite (Mr. Walsh), who was
about to move the rejection of the Bill,
would probably tell him that he was
trifling with the rights of property. He
(Mr. Knatchbull-Hugessen) thought that
if you wished the rights of property to
be respected, you must exercise them
with discretion. If you strained such
rights, or grasped at rights which were
of a doubtful character, you might, in
the long run, peril far more than you
could possibly gain. But with respect
to the rights of property, he would re-
mind the House that property of almost
every kind was represented in that
House, whilst he was pleading for those
whom he might call the hand-labourers
of the country, who were personally un-
represented there. He said that in no
complaining spirit, nor would he ever
condescend to make sentimental appeals
to the House on such a subject. On the
contrary, alluding to this which he
called the hand-labour class for the
name of "working classes" did not ac-
curately represent one class as dis-
tinguished from another-he felt, it was
true, that this was a question specially
affecting that class; but his knowledge
and experience of English gentlemen
and the House of Commons led him to
the belief that the very fact of this hand-
labour class being unrepresented would
ensure for any question which specially
concerned them the fullest and fairest
consideration, accompanied by a tender
regard for their interests. He thought
that with a rapidly-increasing popula-
tion, too much stress could hardly be
laid upon the preservation of open
spaces in the vicinity of crowded dis-
tricts. This was one main object of the
Bill, and Government desired to pre-
serve such spaces without throwing un-
due impediments in the way of inclo-
sures where they might be necessary.
He hoped the Bill would be considered
in a fair spirit; its framers had every
desire to do justice to everyone in the
alterations in the law which they pro-
posed, and he trusted that the measure
might meet with a favourable reception
from the House.

Mr. Knatchbull-Hugessen

Motion made, and Question proposed, "That the Bill be now read a second time."-(Mr. Knatchbull-Hugessen.)

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Clause 4 (The remuneration of attorneys and solicitors may be fixed by agreement).

LORD CHELMSFORD said, he desired to call attention to the unlimited of the measure. He had heard of scope no ground stated for the introduction of the Bill, except a very restricted onethe unsatisfactory nature of the existing arrangement by which conveyancing business was remunerated that remuneration being in proportion to the length of the deeds or other documents. This arrangement, of course, offered a premium on prolixity, and there was no inducement to employ skill in abbreviating the prolix forms which at present prevailed. In 1864 his noble and learned Friend (Lord Westbury) brought in a Bill enabling attorneys to enter into agreements as to the amount of remuneration for conveyancing business; but it was objected to as having a larger scope, and it failed to become law. For himself, he saw no objection to allow these gentlemen to enter into agreements with their clients as to their conveyancing business. This class of business was usually considered the best part of the business of the profession; and persons of the highest character being employed in it, he was sure they would not abuse the power now proposed to be given them; but he very seriously objected to the Bill being extended to business of all descriptions, including actions. at law and suits in equity, on account of the overreaching and oppression which would inevitably result. In many cases business of those kinds was undertaken by persons who were not of the highest character in the profession; they knew very well what the expenses were likely to be, and could thus take care to make very good bargains for themselves; and their clients being generally ignorant were not equally able to take care of themselves, and though it was true that the agreement might be brought before a Court, and, if unreasonable, set aside, the parties in nine cases out of ten would not be aware of this mode of redress, and would not know whether the agreement was a fair one. The Bill, moreover, exempted these agreements from taxation, so that they would be eagerly entered into for the purpose of avoiding the scrutinizing eye of the taxing officer. He should have much preferred it had the Bill been.

confined to conveyancing business; but he feared it could not be modified in this sense without being re-drawn. He had therefore drawn an Amendment to this clause, which provided that when such an agreement related to any action or suit, the amount payable in it should not be paid until the agreement had been examined and allowed by the taxing officer of the Court, who, if he deemed it not fair and reasonable, might require it to be referred to the Court, which would be empowered to reduce the amount, or to order the agreement to be cancelled, and the costs to be taxed in the same manner as if no such agreement had been made. Without such a proviso the operation of the Bill would be most mischievous. As however his Amendment had not been printed, he would not move it on the present occasion; but would leave it for their Lordships' consideration, and would move it at a subsequent stage.

THE MARQUESS OF SALISBURY said, that as the object of the Bill was to allow freedom of contract as far as possible, and to enable clients to get their work done at less expense, he saw no objection to the Amendment.

LORD ROMILLY said, he thought the Bill as introduced by the noble Marquess a very valuable measure, believing that many persons would abstain from bringing actions if they knew the expense beforehand. At present, if they asked an attorney whether he would undertake to carry on a suit for any specified sum, the answer was, that the law did not permit him to make such a bargain, but he believed the cost would not exceed that sum. He feared that the suggested proviso would not work well, but would prove merely an expensive form of taxation; for a person could not go before the taxing officer with evidence without expense. The opponent would not be bound by the agreement, for if he lost the action he would have to pay the taxed costs irrespective of the sum agreed on.

where the costs would not come upon themselves, should be subject to the certificate of the taxing officer, and it was expedient to extend this safeguard to agreements relating to actions at law. He would remind their Lordships that what the proviso proposed to accomplish was in strict accordance with the objects of the Bill.

LORD WESTBURY feared the proviso, if adopted without some qualification, would practically nullify the clause. He admitted that care was necessary; but he hoped this Bill would be more successful than the measure which he introduced some years ago.

LORD PENZANCE remarked that the terms of the proviso would not apply it to the Court over which he had the honour to preside. Unless this omission was supplied, very ignorant clients in the smaller class of cases would be much imposed upon.

THE LORD CHANCELLOR said, that the evil complained of was fully recognized, and everyone would admit that it was very desirable that some means should be found of remunerating profes sional services by some other standard than that of the length of the documents. He approved of this Bill, thinking it would, to some extent, wipe away the reproach by offering some inducement to brevity. The obvious reason of the present system of forbidding bargains was that, while in other agreements a man was advised by his solicitor, in an agreement with his solicitor he would have no advice or protection. The Bill would tend to the benefit of the community in the majority of cases-certainly as regarded the more respectable practitioners; and the 8th clause provided that no action should be brought on these agreements until the Court had been applied to, to see whether they were fair or not. There was also a clause protecting infants and married women, for whom protection was imperatively necessary. As to the class who, though legally capable, were incapable through ignorance, they had LORD CAIRNS, while generally ap- one kind of protection from the persons proving the Bill, shared in the doubts of whom his noble and learned Friend of his noble and learned Friend (Lord (Lord Chelmsford) was afraid, though Chelmsford), and therefore supported not one much to be admired. These the proviso as a protection to the in-persons were not so few as to preclude terests of ignorant clients. The Bill already provided that agreements entered into by guardians and trustees, who might not be very strict in a matter Lord Chelmsford

competition among themselves, and the client would be in some degree protected by the competition as to who would transact the business most cheaply.

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