THE MALVERN HILLS.
APRIVATE Bill will be introduced in the coming Session of Parliament which merits no common amount of public attention and support. It is a Bill "for the prevention of encroachments upon the Malvern Hills," and it deals with the question in a far larger spirit than has yet been shown in regard to" the preservation of Commons. The objects it is. sought to attain by legislation are two :—In the first place, it is proposed to vest in the hands of a body of elected Conser- vators two tracts of debateable common land, which the re- spective lords of the manor have consented to surrender to the public. In the next place, it is proposed to give these same Conservators the power of protecting from illegal enclosure the whole of the Malvern Hills. The first of these objects calls for no comment. The lords of the manor in question believe that they are entitled to inclose certain portions of the hills, but in consideration of the surrounding lands being pro- perly protected and managed, they are willing not to prese their rights. It is obvious that a lord of the manor may be willing to forego a claim on these terms which, without this stipulation, he would have good reason for insisting on. If he simply refrains from enclosing when enclosure is going on all round about him, he may injure his own property, without doing any good to the public. It is the second object of the Bill that gives it its novelty and importance. There is an old Act of Parliament providing that two-thirds of the Forest or Chase of Malvern "should be from thenceforth and for ever 'eft free for the freeholders, and tenants, and commoners to take their common of pasture and common estovers therein, as theretofore they had been accustomed," and forbidding any "mean lords of fens or manors, or other freeholders or owners whatsoever," to "enclose any part of the said grounds." It might seem therefore, that under this provision the Malvern Hills are sufficiently protected against encroachment ; and in theory, no doubt, they are so. But in practice, a provision of this kind goes for very little. The rights are there, if there were any one to enforce them. The violations of these rights are duly forbidden, if there were any one to see that the prohibition is obeyed. But where the offender is a lord of the manor, and the persons whose rights are infringed are cottagers, there is no equality between the attack and the de- fence. The lord of the manor satisfies himself, in one way or another, that what he proposes to do is not contrary to law. If he has any lingering doubt upon this head, he soothes his conscience by the recollection that, if he is mistaken, the Courts will do justice between him and the commoners. And so, no doubt, they would, if the facts in issue between the parties were properly before them. But a cottager naturally thinks twice before he goes to law with a wealthy neigh- bour.
In point of fact, he has not the means of going to law with him. Possibly, too, he may not wish to do so, because the lord has paid him something for the right of common of which he is to be deprived ; and though the bargain would be a bad one for the cottager, if he were sure of always remaining in the same place, it may not be a bad one for a man whose work may any day carry him into another neighbourhood. But though the commoner may be content with what he gets for surrendering his rights of common, the impersonal public behind him may be irreparably injured by his act. From the point of view of the community, land left in common and land enclosed are different things. Both, no doubt, have technically their individual owners,—the lord and the commoners jointly in the one case, and the lord or some one claiming under him in the other. But in the land held jointly by the lord and the commoners, the public has a real, though not a legal interest. It is open waste, and as such it can be walked over or ridden over at pleasure. What this Bill aims at is the creation of a body which shall re- present the commoners, and shall at the same time repre- sent the public which is indirectly concerned in protecting the commoners' rights. The eighth clause makes the Con- servators " capable on their own behalf, or on behalf of any freeholder or tenant of any manor, or other per- son entitled to any rights of common or other commonable rights exercisable upon or in the Hills, or any part thereof, of taking any such proceedings and doing any such things for or in the protection or defence of any of the said rights, or for preventing or remedying any inclosure or encroachment on the Hills, as any person entitled tc the said rights would be capable of taking and doing ; and for that purpose, the Conservators shall be deemed to have and be entitled to all rights of com- mon of pasture and estovers and other commonable rights upon the Hills." It will be seen that this clause makes no change in the legal property in the Hills. What the lord of a manor can legally do now he will be able legally to do after the Bill has passed. The difference will be that he will not then be able to do illegal things with impunity. Now, he can do them with impunity. He can enclose on the chance that none of the commoners will object, and the public, which is equally interested with the commoner in preventing enclosure, has no locus standi in the matter, and consequently can do nothing to oppose him. If this Bill passes, the Conservators will, as re- garde all manors the lords of which have assented to the scheme, be in the position of commoners, and have the same rights of preventing enclosure. They, moreover, unlike the commoners, will not be afraid of litigation, and they will represent an interest which cannot be bought off.
It might have been thought that the clause which enacts that the provisions of the Bill shall not affect the manor until the lord shall have consented to the same in writing, would have disarmed all opposition on the part of the lords. Apparently, however, this is not the case. Notice of opposi- tion has been given by the owners of one of the manors it is hoped to include in the scheme, the idea presumably being that if the Bill passes, public opinion will force them to consent to it, though it may still be in their power to induce Parliament to throw the Bill out. So far as we see at present, the proviso about consent is framed in a spirit of extreme, though perhaps not needless caution. The lords lose nothing by this Bill that is rightly theirs. If they enclose now, they are apparently going in the teeth of an Act of Parlia- ment, though it is more than likely that none of those who are competent to resist them will have the courage or the means to do so. All that the Bill does is to create a protec- tor of the settlement,—an authority which shall have an effec- tive instead of a merely technical right to see that enclosures are prevented. Neither the lords nor the commoners will in
any single respect be the worse for its passing. Each will retain the rights that they now enjoy. The only difference will be that in future no one will be able to go beyond his rights. One great advantage of this mode of disposing of the question is that it leaves the Malvern Hills just as they are. They are not to be turned into a public playground, but to remain the wild upland pasture that they have always been. None of the commoners will lose their rights in the Hills by reason of this Bill. In the future as in the past, they will turn out their sheep and cut the gorse and bracken. Never, in short, has so promising a scheme of commons preservation been presented to Parliament ; and in the interest not of Malvern only, but of other districts to which a similar measure may in time be applied, its progress deserves to be watched with keen sympathy and interest.
Previous page
