We get very few glimpses into the underworld of the common and obscure people, whose homes and fortunes trembled on the chance that a quarrel over tithes and the conflicting claims of squire and parson might disturb the unanimity of a score of gentlemen sitting round a table. London was far away, and the Olympian peace of Parliament was rarely broken by the protests of its victims. But we get one such glimpse in a passage in the Annual Register for 1767.
‘On Tuesday evening a great number of farmers were observed going along Pall Mall with cockades in their hats. On enquiring the reason, it appeared they all lived in or near the parish of Stanwell in the county of Middlesex, and they were returning to their wives and families to carry them the agreeable news of a Bill being rejected for inclosing the said common, which if carried into execution, might have been the ruin of a great number of families.’[59]
When the Committee on the Enclosure Bill had reported to the House of Commons, the rest of the proceedings were generally formal. The Bill was read a third time, engrossed, sent up to the Lords, where petitions might be presented as in the Commons, and received the Royal Assent.
A study of the pages of Hansard and Debrett tells us little about transactions that fill the Journals of the Houses of Parliament. Three debates in the House of Lords are fully reported,[60] and they illustrate the play of forces at Westminster. The Bishop of St. Davids[61] moved to recommit an Enclosure Bill in 1781 on the ground that, like many other Enclosure Bills, it provided for the commutation of tithes—an arrangement which he thought open to many objections. Here was an issue that was vital, for it concerned the interests of the classes represented in Parliament. Did the Church stand to gain or to lose by taking land instead of tithe? Was it a bad thing or a good thing that the parson should be put into the position of a farmer, that he should be under the temptation to enter into an arrangement with the landlord which might prejudice his successor, that he should be relieved from a system which often caused bad blood between him and his parishioners? Would it ‘make him neglect the sacred functions of his ministry’ as the Bishop of St. Davids feared, or would it improve his usefulness by rescuing him from a situation in which ‘the pastor was totally sunk in the tithe-collector’ as the Bishop of Peterborough[62] hoped, and was a man a better parson on the Sunday for being a farmer the rest of the week as Lord Coventry believed? The bishops and the peers had in this discussion a subject that touched very nearly the lives and interests of themselves and their friends, and there was a considerable and animated debate,[63] at the end of which the House of Lords approved the principle of commuting tithes in Enclosure Bills. This debate was followed by another on 6th April, when Lord Bathurst (President of the Council) as a counterblast to his colleague on the Woolsack, moved, but afterwards withdrew, a series of resolutions on the same subject. In the course of this debate Thurlow, who thought perhaps that his zeal for the Church had surprised and irritated his fellow-peers, among whom he was not conspicuous in life as a practising Christian, explained that though he was zealous for the Church, ‘his zeal was not partial or confined to the Church, further than it was connected with the other great national establishments, of which it formed a part, and no inconsiderable one.’ The Bishop of St. Davids returned to the subject on the 14th June, moving to recommit the Bill for enclosing Kington in Worcestershire. He read a string of resolutions which he wished to see applied to all future Enclosure Bills, in order to defend the interests of the clergy from ‘the oppressions of the Lord of the Manor, landowners, etc.’ Thurlow spoke for him, but he was defeated by 24 votes to 4, his only other supporters being Lord Galloway and the Bishop of Lincoln.
Thurlow’s story of Sir George Savile’s ‘meanly habited man’ did not disturb the confidence of the House of Lords in the justice of the existing procedure towards the poor: the enclosure debates revolve solely round the question of the relative claims of the lord of the manor and the tithe-owner. The House of Commons was equally free from scruple or misgiving. One petitioner in 1800 commented on the extraordinary haste with which a New Forest Bill was pushed through Parliament, and suggested that if it were passed into law in this rapid manner at the end of a session, some injustice might unconsciously be done. The Speaker replied with a grave and dignified rebuke: ‘The House was always competent to give every subject the consideration due to its importance, and could not therefore be truly said to be incapable at any time of discussing any question gravely, dispassionately, and with strict regard to justice.’[64] He recommended that the petition should be passed over as if it had never been presented. The member who had presented the petition pleaded that he had not read it. Such were the plausibilities and decorum in which the House of Commons wrapped up its abuses. We can imagine that some of the members must have smiled to each other like the Roman augurs, when they exchanged these solemn hypocrisies.
We have a sidelight on the vigilance of the House of Commons, when an Enclosure Bill came down from a committee, in a speech of Windham’s in defence of bull-baiting. Windham attacked the politicians who had introduced the Bill to abolish bull-baiting, for raising such a question at a time of national crisis when Parliament ought to be thinking of other things. He then went on to compare the subject to local subjects that ‘contained nothing of public or general interest. To procure the discussion of such subjects it was necessary to resort to canvass and intrigue. Members whose attendance was induced by local considerations in most cases of this description, were present: the discussion, if any took place, was managed by the friends of the measure: and the decision of the House was ultimately, perhaps, a matter of mere chance.’ From Sheridan’s speech in answer, we learn that this is a description of the passing of Enclosure Bills. ‘Another honourable gentleman who had opposed this Bill with peculiar vehemence, considered it as one of those light and trivial subjects, which was not worthy to occupy the deliberations of Parliament: and he compared it to certain other subjects of Bills: that is to say, bills of a local nature, respecting inclosures and other disposal of property, which merely passed by chance, as Members could not be got to attend their progress by dint of canvassing.’[65] Doubtless most Members of the House of Commons shared the sentiments of Lord Sandwich, who told the House of Lords that he was so satisfied ‘that the more inclosures the better, that as far as his poor abilities would enable him, he would support every inclosure bill that should be brought into the House.’[66]
For the last act of an enclosure drama the scene shifts back to the parish. The commissioners arrive, receive and determine claims, and publish an award, mapping out the new village. The life and business of the village are now in suspense, and the commissioners are often authorised to prescribe the course of husbandry during the transition.[67] The Act which they administer provides that a certain proportion of the land is to be assigned to the lord of the manor, in virtue of his rights, and a certain proportion to the owner of the tithes. An occasional Act provides that some small allotment shall be made to the poor: otherwise the commissioners have a free hand: their powers are virtually absolute. This is the impression left by all contemporary writers. Arthur Young, for example, writes emphatically in this sense. ‘Thus is the property of proprietors, and especially of the poor ones, entirely at their mercy: every passion of resentment and prejudice may be gratified without control, for they are vested with a despotic power known in no other branch of business in this free country.’[68] Similar testimony is found in the Report of the Select Committee (1800) on the Expense and Mode of Obtaining Bills of Enclosure: ‘the expediency of despatch, without the additional expense of multiplied litigation, has suggested the necessity of investing them with a summary, and in most cases uncontrollable jurisdiction.’[69] In the General Report of the Board of Agriculture on Enclosures, published in 1808, though any more careful procedure is deprecated as likely to cause delay, it is stated that the adjusting of property worth £50,000 was left to the arbitration of a majority of five, ‘often persons of mean education.’ The author of An Inquiry into the Advantages and Disadvantages resulting from Bills of Inclosure, published in 1781, writes as if it was the practice to allow an appeal to Quarter Sessions; such an appeal he characterised as useless to a poor man, and we can well believe that most of the squires who sat on such a tribunal to punish vagrants or poachers had had a hand in an enclosure in the past or had their eyes on an enclosure in the future. Thurlow considered such an appeal quite inadequate, giving the more polite reason that Quarter Sessions had not the necessary time.[70] The Act of 1801 is silent on the subject, but Sinclair’s draft of a General Inclosure Bill, published in the Annals of Agriculture in 1796,[71] provided for an appeal to Quarter Sessions. It will be seen that in five of the cases analysed in the Appendix (Haute Huntre, Simpson, Stanwell, Wakefield and Winfrith Newburgh), the decision of the commissioners on claims was final, except that at Wakefield an objector might oblige the commissioners to take the opinion of a counsel chosen by themselves. In five cases (Ashelworth, Croydon, Cheshunt, Laleham and Louth), a disappointed claimant might bring a suit on a feigned issue against a proprietor. At Armley and Knaresborough the final decision was left to arbitrators, but whereas at Armley the arbitrator was to be chosen by a neutral authority, the Recorder of Leeds, the arbitrators at Knaresborough were named in the Act, and were presumably as much the nominees of the promoters as the commissioners themselves.
The statements of contemporaries already quoted go to show that none of these arrangements were regarded as seriously fettering the power of the commissioners, and it is easy to understand that a lawsuit, which might of course overwhelm him, was not a remedy for the use of a small proprietor or a cottager, though it might be of some advantage to a large proprietor who had not been fortunate enough to secure adequate representation of his interests on the Board of Commissioners. But the decision as to claims was only part of the business. A man’s claim might be allowed, and yet gross injustice might be done him in the redistribution. He might be given inferior land, or land in an inconvenient position. In ten of the cases in the Appendix the award of the commissioners is stated to be final, and there is no appeal from it. The two exceptions are Knaresborough and Armley. The Knaresborough Act is silent on the point, and the Armley Act allows an appeal to the Recorder of Leeds. So far therefore as the claims and allotments of the poor were concerned, the commissioners were in no danger of being overruled. Their freedom in other ways was restricted by the Standing Orders of 1774, which obliged them to give an account of their expenses.
It would seem to be obvious that any society which had an elementary notion of the meaning and importance of justice would have taken the utmost pains to see that the men appointed to this extraordinary office had no motive for showing partiality. This might not unreasonably have been expected of the society about which Pitt declared in the House of Commons, that it was the boast of the law of England that it afforded equal security and protection to the high and low, the rich and poor.[72] How were these commissioners appointed at the time that Pitt was Prime Minister? They were appointed in each case before the Bill was presented to Parliament, and generally, as Young tells us, they were appointed by the promoters of the enclosure before the petition was submitted for local signatures, so that in fact they were nominated by the persons of influence who agreed on the measure. In one case (Moreton Corbet in Shropshire; 1950 acres enclosed in 1797) the Act appointed one commissioner only, and he was to name his successor. Sometimes, as in the case of Otmoor,[73] it might happen that the commissioners were changed while the Bill was passing through Committee, if some powerful persons were able to secure better representation of their own interests. In the case of Wakefield again, the House of Commons Committee placated Lord Strafford by giving him a commissioner.
Now, who was supposed to have a voice in the appointment of the commissioners? There is to be found in the Annals of Agriculture[74] an extremely interesting paper by Sir John Sinclair, preliminary to a memorandum of the General Enclosure Bill which he promoted in 1796. Sinclair explains that he had had eighteen hundred Enclosure Acts (taken indiscriminately) examined in order to ascertain what was the usual procedure and what stipulations were made with regard to particular interests; this with the intention of incorporating the recognised practice in his General Bill. In the course of these remarks he says, ‘the probable result will be the appointment of one Commissioner by the Lord of the Manor, of another by the tithe-owner, and of a third by the major part in value of the proprietors.’[75] It will be observed that the third commissioner is not appointed by a majority of the commoners, nor even by the majority of the proprietors, but by the votes of those who own the greater part of the village. This enables us to assess the value of what might have seemed a safeguard to the poor—the provision that the names of the commissioners should appear in the Bill presented to Parliament. The lord of the manor, the impropriator of tithes, and the majority in value of the owners are a small minority of the persons affected by an enclosure, and all that they have to do is to meet round a table and name the commissioners who are to represent them.[76] Thus we find that the powerful persons who carried an enclosure against the will of the poor nominated the tribunal before which the poor had to make good their several claims. This was the way in which the constitution that Pitt was defending afforded equal security and protection to the rich and to the poor.