It will be noticed further that two interests are chosen out for special representation. They are the lord of the manor and the impropriator of tithes: in other words, the very persons who are formally assigned a certain minimum in the distribution by the Act of Parliament. Every Act after 1774 declares that the lord of the manor is to have a certain proportion, and the tithe-owner a certain proportion of the land divided: scarcely any Act stipulates that any share at all is to go to the cottager or the small proprietor. Yet in the appointment of commissioners the interests that are protected by the Act have a preponderating voice, and the interests that are left to the caprice of the commissioners have no voice at all. Thurlow, speaking in the House of Lords in 1781,[77] said that it was grossly unjust to the parson that his property should be at the disposal of these commissioners, of whom he only nominated one. ‘He thanked God that the property of an Englishman depended not on so loose a tribunal in any other instance whatever.’ What, then, was the position of the poor and the small farmers who were not represented at all among the commissioners? In the paper already quoted, Sinclair mentions that in some cases the commissioners were peers, gentlemen and clergymen, residing in the neighbourhood, who acted without fees or emolument. He spoke of this as undertaking a useful duty, and it does not seem to have occurred to him that there was any objection to such a practice. ‘To lay down the principle that men are to serve for nothing,’ said Cobbett, in criticising the system of unpaid magistrates, ‘puts me in mind of the servant who went on hire, who being asked what wages he demanded, said he wanted no wages: for that he always found about the house little things to pick up.’
There is a curious passage in the General Report of the Board of Agriculture[78] on the subject of the appointment of commissioners. The writer, after dwelling on the unexampled powers that the commissioners enjoy, remarks that they are not likely to be abused, because a commissioner’s prospect of future employment in this profitable capacity depends on his character for integrity and justice. This is a reassuring reflection for the classes that promoted enclosures and appointed commissioners, but it rings with a very different sound in other ears. It would clearly have been much better for the poor if the commissioners had not had any prospect of future employment at all. We can obtain some idea of the kind of men whom the landowners considered to be competent and satisfactory commissioners from the Standing Orders of 1801, which forbade the employment in this capacity of the bailiff of the lord of the manor. It would be interesting to know how much of England was appropriated on the initiative of the lord of the manor, by his bailiff, acting under the authority given to him by the High Court of Parliament. It is significant, too, that down to 1801 a commissioner was only debarred from buying land in a parish in which he had acted in this capacity, until his award was made. The Act of 1801 debarred him from buying land under such circumstances for the following five years.
The share of the small man in these transactions from first to last can be estimated from the language of Arthur Young in 1770. ‘The small proprietor whose property in the township is perhaps his all, has little or no weight in regulating the clauses of the Act of Parliament, has seldom, if ever, an opportunity of putting a single one in the Bill favourable to his rights, and has as little influence in the choice of Commissioners.’[79] But even this description does less than justice to his helplessness. There remains to be considered the procedure before the commissioners themselves. Most Enclosure Acts specified a date before which all claims had to be presented. It is obvious that there must have been very many small proprietors who had neither the courage nor the knowledge necessary to put and defend their case, and that vast numbers of claims must have been disregarded because they were not presented, or because they were presented too late, or because they were irregular in form. The Croydon Act, for example, prescribes that claimants must send in their claims ‘in Writing under their Hands, or the Hands of their Agents, distinguishing in such Claims the Tenure of the Estates in respect whereof such Claims are made, and stating therein such further Particulars as shall be necessary to describe such Claims with Precision.’ And if this was a difficult fence for the small proprietor, unaccustomed to legal forms and documents, or to forms and documents of any kind, what was the plight of the cottager? Let us imagine the cottager, unable to read or write, enjoying certain customary rights of common without any idea of their origin or history or legal basis: knowing only that as long as he can remember he has kept a cow, driven geese across the waste, pulled his fuel out of the neighbouring brushwood, and cut turf from the common, and that his father did all these things before him. The cottager learns that before a certain day he has to present to his landlord’s bailiff, or to the parson, or to one of the magistrates into whose hands perhaps he has fallen before now over a little matter of a hare or a partridge, or to some solicitor from the country town, a clear and correct statement of his rights and his claim to a share in the award. Let us remember at the same time all that we know from Fielding and Smollett of the reputation of lawyers for cruelty to the poor. Is a cottager to be trusted to face the ordeal, or to be in time with his statement, or to have that statement in proper legal form? The commissioners can reject his claim on the ground of any technical irregularity, as we learn from a petition presented to Parliament in 1774 by several persons interested in the enclosure of Knaresborough Forest, whose claims had been disallowed by the commissioners because of certain ‘mistakes made in the description of such tenements ... notwithstanding the said errors were merely from inadvertency, and in no way altered the merits of the petitioners’ claims.’ A Bill was before Parliament to amend the previous Act for enclosing Knaresborough Forest, in respect of the method of payment of expenses, and hence these petitioners had an opportunity of making their treatment public.[80] It is easy to guess what was the fate of many a small proprietor or cottager, who had to describe his tenement or common right to an unsympathetic tribunal. We are not surprised that one of the witnesses told the Enclosure Committee of 1844 that the poor often did not know what their claims were, or how to present them. It is significant that in the case of Sedgmoor, out of 4063 claims sent in, only 1798 were allowed.[81]
We have now given an account of the procedure by which Parliamentary enclosures were carried out. We give elsewhere a detailed analysis, disentangled from the Journals of Parliament and other sources, of particular enclosures. We propose to give here two illustrations of the temper of the Parliamentary Committees. One illustration is provided by a speech made by Sir William Meredith, one of the Rockingham Whigs, in 1772, a speech that needs no comment. ‘Sir William Meredith moved, That it might be a general order, that no Bill, or clause in a Bill, making any offence capital, should be agreed to but in a Committee of the whole House. He observed, that at present the facility of passing such clauses was shameful: that he once passing a Committee-room, when only one Member was holding a Committee, with a clerk’s boy, he happened to hear something of hanging; he immediately had the curiosity to ask what was going forward in that small Committee that could merit such a punishment? He was answered, that it was an Inclosing Bill, in which a great many poor people were concerned, who opposed the Bill; that they feared those people would obstruct the execution of the Act, and therefore this clause was to make it capital felony in anyone who did so. This resolution was unanimously agreed to.’[82]
The other illustration is provided by the history of an attempted enclosure in which we can watch the minds of the chief actors without screen or disguise of any kind: in this case we have very fortunately a vivid revelation of the spirit and manner in which Committees conducted their business, from the pen of the chairman himself. George Selwyn gives us in his letters, published in the Carlisle Papers, a view of the proceedings from the inside. It is worth while to set out in some detail the passages from these letters published in the Carlisle Papers, by way of supplementing and explaining the official records of the House of Commons.
We learn from the Journals of the House of Commons that, on 10th November, 1775, a petition was presented to the House of Commons for the enclosure of King’s Sedgmoor, in the County of Somerset, the petitioners urging that this land was of very little value in its present state, and that it was capable of great improvement by enclosure and drainage. Leave was given to bring in a Bill, to be prepared by Mr. St. John and Mr. Coxe. Mr. St. John was brother of Lord Bolingbroke. On 13th November, the Bill was presented and read a first time. Four days later it received a second reading, and was sent to a Committee of Mr. St. John and others. At this point, those who objected to the enclosure began to take action. First of all there is a petition from William Waller, Esq., who says that under a grant of Charles I. he is entitled to the soil of the moor: it is agreed that he shall be heard by counsel before the Committee. The next day there arrives a petition from owners and occupiers in thirty-five ‘parishes, hamlets and places,’ who state that all these parishes have enjoyed rights of common without discrimination over the 18,000 acres of pasture on Sedgmoor: that these rights of pasture and cutting turf and rushes and sedges have existed from time immemorial, and that no Enclosure Act is wanted for the draining of Sedgmoor, because an Act of the reign of William III. had conferred all the necessary powers for this purpose on the Justices of the Peace. The petitioners prayed to be heard by themselves and counsel against the application for enclosure on Committee and on Report. The House of Commons ordered that the petition should lie on the Table, and that the petitioners should be heard when the Report had been received from Committee. Five days later three lords of manors (Sir Charles Kemys Tynte, Baronet, Copleston Warre Bampfylde, Esq., and William Hawker, Esq.) petition against the Bill and complain of the haste with which the promoters are pushing the Bill through Parliament. This petition is taken more seriously: a motion is made and defeated to defer the Bill for two months, but the House orders that the petitioners shall be heard before the Committee. Two of these three lords of manor present a further petition early in December, stating that they and their tenants are more than a majority in number and value of the persons interested, and a second petition is also presented by the thirty-seven parishes and hamlets already mentioned, in which it is contended that, in spite of the difficulties of collecting signatures in a scattered district in a very short time, 749 persons interested had already signed the petition against the Bill, that the effect of the Bill had been misrepresented to many of the tenants, that the facts as to the different interests affected had been misrepresented to the Committee, that the number and rights of the persons supporting the Bill had been exaggerated (only 213 having signed their names as consenting), and that if justice was to be done to the various parties concerned, it was essential that time should be given for the hearing of complaints and the circulation of the Bill in the district. This petition was presented on 11th December, and the House of Commons ordered that the petitioners should be heard when the Report was received. Next day Mr. Selwyn, as Chairman of the Committee, presented a Report in favour of the Bill, mentioning among other things that the number of tenements concerned was 1269, and that 303 refused to sign; but attention was drawn to the fact that there were several variations between the Bill as it was presented to the House, and the Bill as it was presented to the parties concerned for their consent, and on this ground the Bill was defeated by 59 to 35 votes.
This is the cold impersonal account of the proceedings given in the official journals, but the letters of Selwyn take us behind the scenes and supply a far livelier picture.[83] His account begins with a letter to Lord Carlisle in November:
‘Bully has a scheme of enclosure, which, if it succeeds, I am told will free him from all his difficulties. It is to come into our House immediately. If I had this from a better judgment than that of our sanguine counsellors, I should have more hopes from it. I am ready to allow that he has been very faulty, but I cannot help wishing to see him once more on his legs....’
(Bully, of course, is Bolingbroke, brother of St. John, called the counsellor, author of the Bill.) We learn from this letter that there are other motives than a passion to drain Sedgmoor in the promotion of this great improvement scheme. We learn from the next letter that it is not only Bully’s friends and creditors who have some reason for wishing it well: