Joseph Hyder: The Case for Land Nationalisation
Chapter IV: Landlords’ Powers and Privileges
“PASSING from the way in which land has come into the possession of its present holders, we come now to an examination of the way in which they have used the power which its possession confers upon them. So far-reaching is that power that they would have been more than human if they had always used it unselfishly and with consideration of the rights of others. To say that they have used it generally for their own enrichment, and for the establishment, maintenance, and extension of many unfair privileges, is not so much to condemn them as individuals, who are inherently worse than others, as to condemn the system, which invests them with the power to act as they have done.
Cosmo Innes tells us that the original charters of free barony usually included the following rights and privileges: “The woods and plains, the pastures and meadows, mosses and marches, the running waters, ponds and fish-tanks, the roads and paths; with the brushwood, jungle and heaths, the peatries and turbaries, the coal-fields, quarries, stone and limestone; with the mills and sucken, the smithies, brewhouses and saltworks; and the fishings, hawkings, and huntings.”
The comprehensiveness of the property of the landlords is in fact absolutely unique. From the height above to the depth beneath all in Nature is theirs. From the centre of the earth to the zenith of the sky is theirs by the law. It would be impossible for the masters of such property as that to fail to become the ruling class, and it would be miraculous if they had not exercised such far-reaching mastership with disastrous consequences to all who were outside their own charmed circle.
Landlords as Legislators
All wealth passed into their hands save such as was necessary to maintain a bare subsistence for the workers. A property qualification was the only passport either to the House of Lords or to the House of Commons, and the only property qualification that was recognised was that of property in land. To become a law-maker it was not merely necessary that a man should be rich, but it was stipulated that he must be rich in land. Even so late as 1868 it was the law that every candidate for a county constituency must have a rent-roll of at least £300 a year; and the special franchise of the 40s. freeholder still remains to remind us of the time when few but landlords had the vote, and to form the basis of the iniquitous system of plural voting. A mere tenant, however great may be the rent, which he pays, must qualify by residence, and it often takes him nearly two years before he can be enfranchised. But the possession of a freehold worth only £2 per annum secures the vote as a matter of course in three months.
A Committee of the House of Lords was appointed in 1819 to search the journals of the House, Rolls of Parliament, and other records and documents touching the Dignity of a Peer of the Realm; and they found that only those who held land by Barony were originally entitled to the special writ as Lords of Parliament. “The result,” they said, “of the whole of the documents which have come under the view of the Committee, from the Conquest to the close of the reign of King John, seems to be, that the great Council of the Realm consisted only of persons falling under the general denomination of Barons – that the Council therefore was a Council of Barons; that, as Barons, their obligation to attend the Great Council probably originated in the tenure of their lands, which may be inferred from the Constitutions of Clarendon representing the duty of the clergy to attend the King’s Courts as arising from the tenure of their land.”
While for centuries the House of Lords was a House of Landlords, the House of Commons was also dominated by the same class. In 1816 no less than 300 out of a total of 658 members of Parliament were nominated by Peers, and 171 by commoners, who were in all cases landlords. Lord Lonsdale nominated 9, the Duke of Rutland 6, the Duke of Newcastle 5, the Duke of Northumberland 4, the Duke of Buccleuch 4, Lord Mount Edgcumbe 4, Lord Fitzwilliam 8, the Duke of Norfolk 6, Lord Grosvenor 6, the Duke of Bedford 4.
When the Reform Bill was passed, in 1832, “the House of Commons swarmed with cousins and nephews of great noblemen, who were patrons of family boroughs, and with wealthy squires who scorned a peerage but made it a point of honour to stand for their own county at the first general election after they came of age.”[i]
With such a machinery of law-making the common people were as clay in the hands of a potter, and the administration of the law was controlled by the landed interests – for the judges were the nominees of the Government of the day. As Lord Chancellor Haldane has recently said, most of our law is judge-made, and when we remember by whom the judges were appointed, we can understand how the law has been almost invariably interpreted so as to strengthen the position of landlords as against the rest of the community.
Turning to the administration of the law by the unpaid magistrates, particularly in rural districts, the same phenomenon appears. The position was satirised by Charles Dickens in David Copperfield.
“‘How do you suppose he comes to be a Middlesex magistrate?’ said I. ‘Oh, dear me,’ replied Traddles, ‘it would be very difficult to answer that question. Perhaps he voted for somebody, or lent money to somebody, or bought something of somebody, or otherwise obliged somebody, or jobbed for somebody who knew somebody who got the Lieutenant of the County to nominate him for the commission.'” Only very slowly is the constitution of the rural magisterial bench being democratised. Its bias in defence of the rights of property is proverbial, and particularly when the sacred right of preserving game is involved.
“In Blackstone’s time,” said Lord Chief Justice Coleridge, in an address before the Glasgow Juridical Society in 1888, “there were one hundred and sixty felonies punishable with death, and, as but few of these had reference to the defence of life or person, the vast majority of these statutable crimes were made crimes in defence of property, and the statutes which created them were statutes to protect the enjoyment of property. In the time of Sir Samuel Romilly – the contemporary, remember, of Lord Byron, of Wordsworth, of Mr. Canning, of Lord Palmerston, of Sir Robert Peel – it was capital to steal in a dwelling-house to the value of 40s.; capital to steal in a shop to the value of 55.; capital to counterfeit the stamps used in the sale of perfumery; capital to counterfeit those used in a certificate for hair powder; capital to cut down a hop-vine growing in a hop plantation; capital, I believe (but I cannot verify this statement, so take it as doubtful), to cut down a cherry-tree in Kent.” Lord Coleridge goes on to say, “All these horrors were abolished by slow degrees, and in the face of the most determined resistance by men whom I cannot call great, but who were certainly men of great ability and high character, who based their resistance always on the ground that to abolish these terrible laws was to attack property, and to attack property successfully was to subvert society itself.”
Every attempt to humanise the law was met with the antagonism of the governing classes, that is, chiefly, the landlords. Every attempt to extend the franchise they opposed. A national system of education was impossible until their power had been weakened by the introduction of non-landlords to the franchise and to Parliament. They opposed the emancipation of the slaves in the West Indies, on behalf of the sacred rights of property. On behalf of the Established Church they opposed the emancipation of Jews, Catholics, and Nonconformists from the degrading disabilities under which they long laboured.
It was the landlords who passed the infamous Corn Laws in the interest of the high rents, which they were thus enabled to extort from the farmers. The sufferings of the starving people made no appeal to their sympathy. In The Age of Bronze Byron scathingly satirised the indifference of the lords of the soil to everything except their own hard-wrung profits of ownership.
“The land self-interest groans from shore to shore.
For fear that plenty should attain the poor.
The peace has made one general malcontent
Of these high-market patriots; war was Rent!
Their love of country, millions all misspent.
How reconcile? By reconciling Rent.
And will they not repay the treasure lent?
No: down with everything and up with Rent.
Their good, ill, health, wealth, joy, or discontent,
Being, end, aim, religion – Rent, Rent, Rent!”
Paying Twice Over
An application was made by a poor woman on October 5, 1911, to Mr. Rose, the magistrate at Tower Bridge Police Court. She stated that previous to July 15 she occupied a house in Little Surrey Street, Blackfriars Road, at a rental of 12s. weekly, the landlord paying rates and taxes. On that date she moved into another house in the same street and under a different landlord. On September 27 a distress was levied upon her furniture for rates and costs in regard to the house she had formerly occupied, as the rates had not been paid by her landlord there. He had had the money from her, but had not paid it to the Southwark Borough Council. The Court Missionary made inquiries at the request of the magistrate, and he found that the course adopted by the Council of suing the tenant instead of the landlord was a strictly legal one, and there were hundreds of similar cases. The applicant’s only remedy was to sue her late landlord in the County Court. He, as landlord, must be sued in the County Court, but she, as a mere tenant, is subject to the summary process of distress, and is liable to have her goods seized, not to pay her own debt, but his.
Landlords as Preferential Creditors
Distres is the taking, without legal process, of cattle or goods as a means to compel the payment of rent. Without any express or implied agreement every landlord has the right to distrain for rent in arrear. At one time practically everything upon the land, whether it belonged to the tenant or not, could be seized to pay the tenant’s rent, and there was no limitation as to the length of time over which arrears were thus recoverable. One of the first things the Reform Parliament did in 1833 was to pass the Real Property Limitation Act, which prevented the landlords from distraining for rent more than six years in arrear. Fifty years later landlords of agricultural holdings were limited to rent one year in arrear, though landlords of houses and shops and ordinary buildings may still distrain for six years arrears. Until the passing of the Agricultural Holdings Act, in 1883, any machinery hired by a farmer, or any cattle taken in by him to graze, could be seized. The wearing apparel and the bedding of the tenant or his family, up to the value of £5, and the tools of his trade, are, by a merciful dispensation, exempted from distress. And the property of lodgers has, since 1871, been exempt if they claim the protection and comply with the requirements of the Lodgers’ Goods Protection Act, 34 and 35 Vict. c. 79.
Even after the winding up of a company in bankruptcy has commenced, distress is possible with the leave of the Court. Goods liable to strangers may be taken to satisfy a distress. Things fixed to the freehold, as affixed machinery or a blacksmith’s anvil, are exempt, for they have become part of the sacred land itself. Things delivered to a person exercising a public trade to be carried, wrought, or worked up, e.g. a carriage under repair, or silk sent to be worked up, are exempt, but a picture returned to the artist to be altered has been held to be distrainable. A ship being built in dock can be distrained upon for rent owing by the builder, even though the customer may have paid on account many thousands of pounds for the execution of the work.
Again, in ordinary cases of debt, the debtor may set off any amount due to him from his creditor. Only the balance is recoverable, and that by the County Court. Thus if A owes B £100 and B owes A £50, B can only recover £50. But if the £100 is rent, the whole amount can be distrained for, notwithstanding that the net debt is only £50.
Distraint upon a Street Organ
An elderly man complained to Mr. Paul Taylor, at Southwark in June 1904, that a street organ, by which he and a blind man obtained their living, had been distrained upon. It appeared that the applicant placed the organ at night in a stable, paying a small rental. The actual tenant became in arrear with his rent, and the landlord put in a distress. One of the articles seized by the plaintiff was the organ. Mr. Paul Taylor said the applicant was not a lodger, and he could do nothing for him. The bailiff had a perfect right to seize the organ, and as long as the law allowed the landlord to be the preferred creditor this sort of thing would occasionally occur. The applicant said the tenant of the premises had advised him to attend at the sale of the property seized and buy in the organ. The only advice which the magistrate could give him was that he had better attend and buy back his own property.
Lent Pictures Liable for Rent
The following case was reported in the Times Law Reportsin 1908. Challoner v. Robinson, T.L.R., XXIV.
“The plaintiff was sub-lessee of certain premises upon which he carried on a club to which artists (members) sent pictures for exhibition. Members and friends introduced by them alone could use the club, and the plaintiff received a commission upon all pictures sold. By the rules of the club the entire management of the pictures and their exhibition was vested in the Picture Committee. Certain pictures, which were being exhibited were distrained upon by the superior landlord for rent due from his lessee. Plaintiff, and the artists who owned the pictures, brought an action claiming an injunction to restrain lessor from proceeding with distress. Mr. Justice Neville held that the plaintiff did not carry on public trade so as to render the pictures privileged from distress.”[ii]
Sub-Tenant’s Liability for the Ground Rent
The following case shows that a sub-tenant was liable for the leaseholder’s payment of the landlord’s ground rent, although he might have already paid the money for it to the leaseholder.
The exercise by a landlord of his full rights against a sub-tenant moved the latter to complain in the columns of the Morning Leader. The ground rent being overdue, the landlord distrained on a sub-tenant, the occupier, of whose name he and his agent were ignorant, and who was naturally surprised to find a man in possession for a debt of which he had never heard. No notice of the impending process had been received, nor any sent, except a circular addressed “Occupier,” which, naturally enough, never met the tenant’s eye. The landlord asserted, no doubt with truth, that no notice of any kind was legally necessary. That is how the law of landlord and tenant stands in England today – a survival from feudal times in which most men, more or less, mildly acquiesce. The man who lends money can only recover it by taking action in the Courts. He cannot even arrest his debtor if he sees the latter flinging his money away broadcast. When he lends a house or land he is by its very nature protected against such loss. His capital is so safe that the expression “safe as houses” has become a proverb. Why, then, does the law give him, of all others, the power of summary process at his own instance for the recovery of his interest, even from a man who is under no contract with him? Merely because the law has done so from time immemorial. Add the fact that the landlord, and especially the ground landlord, is peculiarly exempt from rates and taxes, and we have a state of favouritism that stands greatly in need of alteration. (Vide Daily News, January 16, 1906.)
An Australian Case
The Sydney Bulletin in August 1909 showed that British law, which makes the landlord a preferential creditor, was imported into Australia to protect the Australian landlord. It says:
“An ancient statute of George II. raised its untidy head in a Sydney police court, and smote one of the lieges of Edward Vll. just where he least expected. The defendant owed his landlord 49s. Instead of paying he removed at daylight one morning by the back door. The aggrieved landlord sued him under the senile statute mentioned, and got a verdict for £10, being twice the value of the goods, which went out at the back door, andcosts. The Act is an instance of the British law’s veneration for the blessed landlord. Had the person who fled owed his butcher, milkman, or vegetable John 49s., the creditor would have been lucky to get a verdict for the bare amount, let alone one for four times the sum due.”
The following is an interesting case which shows how the omission of a landlord to punctually pay rates, the money for which he has already collected from his tenants for that purpose, leads to their being struck off the list of voters.
It was raised at the South Hackney Revision Court on September 14, 1911, arising out of the landlord of a number of small houses compounding for the rates, but failing to pay them at the proper time.
The houses were owned by one landlord, to whom the tenants paid their rates with the rent. The landlord had not, however, paid his quota to the local authorities within the statutory period, and the overseers consequently omitted the names of the occupiers from the voting lists, unpaid rates being a disqualification.
Mr. Sexton (Liberal) asked whether the local authorities or any one else had made inquiries to see whether the landlord had done this wilfully or not.
The Barrister said he did not think the question could be discussed there.
The Registration Clerk: The rates were not paid, so the names were struck off.
Mr. Sexton: It seems quite clear, then, in that case that any gang of landlords may paint the town red or blue at their own pleasure by omitting to pay the rates until the tenant is struck off.
The Barrister pointed out that he was bound by the decision of the Master of the Rolls that the rates must be paid before a vote could be allowed.
It was stated that in the North Hackney Division the voters in fourteen houses in Windus Road would be similarly disfranchised. What would have been said if, through default of the tenant, the landlords had been struck off the register? We may be sure that a law, which would have permitted such a catastrophe would speedily have been altered.
Allotments for Londoners
Within the County of London there are nearly 14,000 acres of open land. And there are a few hundred thousand workingmen who would be glad to have even the temporary use of it as garden allotments until it is needed for building or other purposes. So in 1898 the London County Council decided to promote an Allotment Bill to secure some of it for them, as the Allotment Acts of 1887 and 1890 do not apply to the County of London. The Lords threw the Bill out, but the next year the Council tried again. Lord Carrington introduced the Bill. The Lord Chancellor took his seat on the Woolsack at 4.15 and the House rose at 5.20. In that short space of time they disposed of this laudable effort to make land accessible to labour, and threw the Bill out by a majority of 58 to 16. Then they went home to dine, knowing that they had done what they were expected to do.
The Water Supply
As the greater includes the less, land includes water. Before a community can establish a water supply it must buy off the lord of the land. The gathering-grounds are his, the bed of the running waters is his, and the land on which the pipes have to be laid is his.
Fortunately a town can obtain compulsory powers, but an act of parliament is a very costly luxury, and the expenses of an arbitration are heavy. And so landlords are in a position to drive very hard bargains.
In 1892 there was a great scarcity of water in Hawick, and the Town Council decided to augment the town’s supply by asking the Duke of Buccleuch to permit them to take some of the surplus water from the Skelfhill Burn. The Glasgow Weekly Mail, in reporting the subsequent meeting of the Town Council, said that “the Duke’s agent replied that his Grace would only grant permission on condition that the Council erected a subsidiary reservoir to supply his feus on high-lying ground, and conveyed to him strips of ground in the neighbourhood of the town as compensation for the right to use the water.” And the Council decided to let the question lie over till the ratepayers had an opportunity of expressing their opinions. But the only way in which the ratepayers can meet a difficulty like that, is by using their votes to put an end to the stupid system which forces a great community to go hat in hand, either to the Duke of Buccleuch or some one else, before they can use the good things which Nature so abundantly supplies and intends for the welfare of all.
In 1900 the Campbelltown Town Council desired to extend their water supply, and they applied to the Duke of Argyll, the head of the Campbells, for some of the water that now runs off from “his estate” into the sea. His Grace refused, and on January 24 the Town Council decided to publish the whole of the correspondence, which was so voluminous that it occupied three columns in the local newspaper. The Provost said that “the whole thing is disgraceful”; and one of the Councillors said, “We are threatened year after year with epidemics, to prevent which water is one of the greatest essentials. There are millions of gallons running waste to the sea, and I do not think that any man, let him be ever so good, should have the power of saying to the people, you shall or you shall not get water.”
The Brighton Corporation compulsorily acquired 47½ acres in 1898 in the parish of Old Shoreham, in connection with the town water supply. It was pasture land worth a rent of £3 an acre, and formed a part of an estate of 4,500 acres. The landlords claimed £10,000, and the jury awarded £6,000. But the land contained a stream called Spring Dyke, and the landlords claimed also for the water which would be taken from it for the inhabitants of Brighton. It was argued for the Corporation that the private landlords had no property in the running water and had only the right to take it for ordinary purposes. There were other riparian owners, above and below, and it was absurd to suppose that any one or two of them were legally entitled to draw an unlimited amount for themselves, and to empty the stream or to divert it if they could. Hitherto the water had only been used by the landlords for the watering of stock. But they saw their chance. They calculated that the Corporation had drawn 547,440 thousand gallons in the past twelve months. At a penny per 1,000 that means £2,281. They then capitalised this at 25 years’ purchase, and found it came to £57,025. To this they added 10 per cent. for compulsory purchase, making a total of £62,727.
In the end they got what they claimed, and, by investing it at 4 per cent., they and their descendants can now draw nearly £50 per week in perpetuity for the water that used to flow to the sea unchecked while the land was in their possession, and until it was found to be necessary for the people of Brighton.
Among the privileges, which kings conferred upon their favourite one of the most valued was the sole right to hold a market. Thus Henry III. gave letters patent to his beloved valet, Edmund do Lacy, to have one market every week on Thursday at his manor of Brafford. This right was confirmed by Edward I. to Henry de Lacy, Earl of Lincoln, in 1294. Under Richard II. it passed to the Marquis of Dorset, and from him to the Archbishops of York and Canterbury. In 1628 it went to “certain citizens of London,” and in 1795 John Marsdon got the charter, and sold his rights the same year for £2,100 to Benjamin Rawson. Only seventy-one years later, in 1866, the Corporation of Bradford took a lease of the manorial market rights of their town for a term of 999 years at an annual rent of £5,000. In 2865 A.D., those rights will revert once more to the lord of the manor, unless something else happens, as it probably will.
At Sheffield the Duke of Norfolk had the monopoly of a market, and in 1874 his nett profit was £6,543. In 1875 the Corporation wanted to buy the Duke out, but the price he asked was £267,450, and the mayor, in giving evidence before a Royal Commission, described the conditions as intolerable. Twenty years later the price had gone up to £526,000 and the Corporation had to yield, or at any rate did yield.
Three Acres and a Market
In 1661 Charles II. granted to the Earl of Bedford, his heirs and assigns, the right for ever to hold and keep a market within the parish of St. Paul, Covent Garden, in a certain place there, called the Piazza, measuring 3 acres and 34 perches. In 1866 the Duke’s agent, Mr. Bourne, admitted that there was a clear profit of £15,000 on the chartered market alone. He also admitted that toll was taken on goods not brought to the market at all, but consigned direct from the producer to the purchaser. Toll was also charged upon each wagon that stood in the adjacent streets outside the market area, but this charge was afterwards found to be illegal and has had to be discontinued. And, of the £15,000 admitted annual profit, not a penny is paid towards the local rates, which have to be spent for the cleansing of the streets after the wagons have been taken away.
Spitalfields Market depends upon a Charter given by Charles II. to John Blach. The Goldsmids hold it now, and receive a rent of £5,000 a year from the lessee. And when the Great Eastern Railway opened a market at Stratford in 1897 for the convenience of farmers and market gardeners, they were beaten in a lawsuit, and agreed to pay toll to the lessee of Spitalfields Market for all goods sold at Stratford or Bishopsgate. The dead hand of Charles II. is indeed a living reality even in the twentieth century. We have long seen the folly of granting perpetual pensions, yet, if there ever was a perpetual pension, the grant of a market monopoly comes under that description. The only difference is that the pension is not fixed in amount, and that it invariably grows as the needs and numbers of the people increase.
Foreshores In Stroud’s
Judicial Dictionarya foreshore is defined as follows: “The seashore up to the point of high-water or medium tides, between spring and neap tides, is called the foreshore, and is prima facie vested in the Crown, subject to the rights of the King’s subjects for fishing and navigation only, not only in the sea, but in all tidal and navigable rivers, and of passing over the foreshore itself; but it may belong to a subject, either by itself or as part of a manor.”
But foreshores have been alienated by the Crown in thousands of cases and the rights of the public have been circumscribed or destroyed.
Wild Fowl on the Severn
In the case of Fitzhardinge v. Purcell, in 1908, the House of Lords held that Lord Fitzhardinge’s ownership extended over the foreshore to the middle of the deep-water channel of the Severn. The defendant had been shooting wild fowl on the river, but it was held that the wild fowl were Lord Fitzhardinge’s property, they being birds of warren. “The franchise of free warren is of great antiquity,” said Lord Tenterden in a former judgment, “and very singular in its nature. It gives a property in wild animals, and that property may be claimed in the land of another to the exclusion of the owner of the land.” The defendant was a trespasser on the foreshore unless he could establish a right to be there. As a matter of fact, the only right he claimed was as a member of the public, or as one of the inhabitants of the manor, under a custom long exercised by such inhabitants for the purpose of wild-fowling. This was not enough, so the judgment went in favour of the lord of the manor, as judgments generally do.
The Landlord’s Right to the Seaweed
In 1892 the Seaware (Crofting Counties) Bill was promoted, but never reached the Statute Book, to give a right to crofters in the Highland counties to take seaweed from the beach wherever it was accessible to them, and to give them rights of way to carry it to their crofts to be used as manure. The Bill also sought to empower the crofters to take the seaweed to manufacture it into kelp, an industry that was at one time widely practised on the seaboard of the Western Highlands and Islands. The seaweed was laboriously brought beyond high-water mark, and dried in the sun. It was then burnt in shallow pits, and twenty tons of seaware yielded one ton of ash called kelp, which used to fetch £8 to £10 per ton. The harvest of the sea was a harvest for the lords of the shore.
The seaweed is the chief manure of many crofts. The big farmers did not use it themselves, but they objected to the crofters using it unless they paid for it, and the landlords took the side of the big farmers.
In fixing judicial rents along the coast of Connemara the value of the seaweed driven by the wind and waves on to the shore is taken account of by the Land Sub-Commissioners. The possibilities of it being made into kelp are urged by the landlords as a reason for a higher rent than would otherwise be fair, and the Commissioners allow the claim. And when such land is bought by the State under the Land Purchase Acts, the existence of the seaweed adds to the price.
Where the actual collectors of the seaweed are owners of the adjacent land there is, of course, much more justification in them claiming it as theirs. Thus on the southwest coast of Norway the farmers are more fortunate than the landless peasant of Connemara and the Hebrides. The burning of the weed illuminates miles of coastline during the period of collection. Every member of the household of those farmers and peasants with holdings running to the seashore is busily employed in the work.
As a source of income, says Consul Lasmussen, of Stavanger, the apparently worthless growth has in a very few years surpassed fishing and agriculture in fortune-building. The ashes resulting from the burning are sold to British agents, and contain many valuable chemical properties, including iodine, but the use to which they are ultimately consigned is not known in Norway.
“Old debts,” the Consul adds, “have been paid off, small farms that were isolated and surrounded by unproductive land have had their boundaries extended by the draining of marshes and clearing of rocky wastes that have not been utilised since the Stone Age, and this very land, which has been considered worthless and unfit for cultivation, has by this evolution become productive.
“Not more than twenty years ago there was not a mowing machine in the entire district, while now there are mowers, hay-rakes, harrows, and other modern machinery on nearly every farm.”
The Right To Beach A Boat
In 1893 the Duke of Argyll sought an interdict to prevent a fisherman from beaching his boat on any part of the foreshore adjoining his Rosneath estate, which runs along Gareloch and Loch Long. The fisherman had been driven in by stress of weather and a leaking boat. But the Dumbarton Sheriff Court said, “It would be inhuman to deny a refuge to any one in such peril as the defender was,” and rightly described the Duke’s claim as a preposterous one. However, the mere fact that such a claim was made is significant of the spirit in which landlords’ rights are frequently asserted.
The Right to Bathe
In the Chancery Division, in January 1904, Mr. Justice Buckley gave judgment in the action of “Brinkman v. Maltby,” whereby the trustees of the Marquis of Conyngham sought to restrain an alleged trespass in Joss Bay, Broadstairs, claiming to be absolute owners of the foreshore as lord of the manor of Minster. The defendant, a Poplar schoolmaster, with the permission of Mr. Harmsworth of Joss Farm, had a camp of boys at the farm, and they bathed in Joss Bay. The contention for the defendant was that there was a customary right of all the inhabitants of Minster to go on the foreshore, and that there was a customary right of all his Majesty’s subjects to bathe in the sea.
Mr. Justice Buckley found for the plaintiffs, and made a declaration that they were absolute owners of the foreshore. He granted an injunction with costs.
Any hope of establishing a claim on the part of the public to a common-law right of bathing in the sea or tidal waters was destroyed in 1821, by a decision of the Court of King’s Bench.
This decision has been endorsed in several cases. For instance, in 1899 the present Master of the Rolls, in giving judgment in an action brought by the Llandudno Urban District Council against a clergyman who had preached upon the foreshore in defiance of their bylaws, said: “The public are not entitled to cross the shore even for the purposes of bathing or amusement. The sands on the seashore are not to be regarded as in the full sense of the word a highway.”
It is therefore clear that the law must be altered, for the public generally cannot hope to establish any claim to a common-law right to bathe. The Royal Commission on Coast Erosion recommended that the law should be altered so that “a clear right of passage by foot upon all foreshores in the United Kingdom, whether Crown property or not, should be conferred upon the public, in addition to the rights of navigation and fishing which they already possess.”
The Commission suggested further alterations, which will commend themselves to all seaside inhabitants and visitors, when they added to their report:
“We recommend, as regards the public use of the foreshore for further purposes, such as those of bathing, riding, driving, collecting seaweed, etc., that the Board of Trade should be empowered by order, after a local inquiry, if necessary, to define such public user and its extent, in localities where it may be desirable in the public interest that it should be exercisable, with power to put limitations on such user if necessary.”
The Magic of Property Turns Sand into Gold
Sometimes the ownership of the foreshore gives substantial gains to the landlord. In such cases Arthur Young’s famous saying that “the magic of ownership turns sand into gold” proves to be very true, though in a different way from the one that he had in his mind when he said it. The ownership of the sands on the shore at Bootle meant a clear gift of £80,000 to Lord Derby when the Liverpool Docks extended seawards. The sands were useless for agriculture, and useless for building, but they were absolutely essential for the making of the Bootle Docks. And Lord Derby had to be bought off before a single navvy could start work. Similarly the sand-hills at Southport have proved a goldmine to the Heskeths and Scarisbricks.
The Government have an artillery station at Shoeburyness, and the big guns fire seawards over the Maplin or Foulness Sands. The sea covers the sands at every tide, and they are practically worthless for any other purpose than as an artillery range. But it was not to be expected that the Government would be allowed to train gunners there in the art of national defence without some substantial recognition of the sacred rights of private property. A long and costly lawsuit, carried to the Court of Appeal in 1891 (Attorney-General v. Emerson and others, Appeal Court, 649), ended in the complete victory of the lord of the manor. No evidence was brought forward that the sands had ever been granted by the Crown, but a grant was presumed in favour of the landlord, and he exacted £30,000 from the taxpayers. In addition, they had to pay thousands of pounds in costs for contesting his claim. Such are the fruits of private property in land.
The lord of the beach at Shoreham has graciously permitted some hundreds of bungalows to be erected there. The ground rent used to be £1, but it is now £3. And at other places rent is paid for the erection of bathing tents, as at Marske-by-the-Sea, where Lord Zetland is lord of the shore. No service is rendered in return for the rent. It is obviously simply a payment for permission to live, or to be in a particular place by the sea. And it is a striking illustration of the Ricardian dictum that “rent is the price which is paid for the original and indestructible properties of the soil.”
Jet is found in the cliffs and on the sea beach at Whitby, but it cannot be got without the ground landlord’s permission. And “the flint stones are his also.” They wash out of the cliffs or are thrown upon the beach, and poor men collect them. They get a shilling a ton for them from the Local Council, and out of every shilling the lord of the manor takes a penny. It reminds one of the famous passage from Carlyle’s French Revolution: “The widow is gathering nettles for her children’s dinner; a perfumed seigneur, delicately lounging in the Ail de Bœuf, hath an alchemy whereby he will extract from her the third nettle and call it rent.”
Again, the lord takes sixpence for every load of sand taken from the Whitby beach. Farther north there are fossils known as “Whitby snakes.” The poor man who collects them has to pay royalty to a marquis and a baronet who own the shore where they are found. Then, and not till then, he is permitted to grind, polish, and mount them, and make what he can of them.
Swansea and The Duke of Beaufort
The following evidence was given by the Mayor of Swansea and others before the Welsh Land Commission. The Commissioners report, “It is of importance in our eyes, as showing the vigilant care taken to press the rights of the Duke of Beaufort to their utmost legal extent, and as an illustration of the inconvenient economic effect of allowing vague rights to persons whose permission enables their agents to exercise pressure (however well founded in law) upon others engaged in industrial pursuits.”
Under a grant of King John, the Duke of Beaufort, as successor in title of the grantee, is lord of the “terra de gower.” This includes the right to a great many manors, including that of Swansea. Until recent times the Duke had his private prison in Swansea Castle.
There was an Act of Parliament passed in 1762 to allot two parcels of open and enclosed land to the Duke and the Corporation. The Duke was to have 150 acres of the Town Hill, and the foreshore. The Corporation was to have the Burrows. Now the Duke has got it all. The Duke charges for sand, clay, and seaweed taken from the whole of the foreshore of Swansea Bay. A portion of the shore he sold for £25,000, and half of this was afterwards sold for £56,000, showing an unearned increment of over 400 per cent.
The Corporation have to pay the Duke for their sewer outlets, and he charges a way-leave for the pipes that bring salt water to the baths. The construction of the pier by the Corporation reclaimed a considerable quantity of land from the sea. The Duke claims it as his, although the ratepayers’ pier created it, and public land adjoins it. Thus the burgesses cannot gain access to the sea at certain points without committing a trespass. The Corporation brought an action and lost. It was held that, as the land had been reclaimed by artificial means, and not by accretion, it belonged to the Duke, although the whole cost of the reclamation was borne by the Corporation.
The Swansea Harbour Trustees have paid large sums for the Duke’s foreshore, including £1,600 for his rights to a ferry across the Tawe, £500 for land for the continuation of the pier, and £17,500 for land for the Prince of Wales’s Dock. In exchange for some of the land reclaimed from the sea he secured a wharf frontage on the South Dock, 1,300 feet long by 120 feet wide. The terms demanded by the Duke were so high in other cases that two companies were prevented from carrying out extensions that were greatly needed and would have been beneficial to the trade of the port. And the beautiful yellow sands of the bay are spoiled by the tipping of black rubbish which is carried on by the Duke’s lessee, and the Bay is thus spoiled for bathing purposes.
Again, the Duke claims the bed of the Swansea river as his absolute property. As a result it is impossible to deepen it or improve in anyway the navigation of the Tawe without gaining his permission and compensating him. The sewerage system was delayed for a very long time on that account. It was also proved by Mr. Hartland, a solicitor, that the Duke claims the bed of the river Tawe for miles beyond the flow of the tide. He prohibits mining under it, or the throwing of a bridge across it, either altogether or only on payment of a way-leave. One colliery company had to close its works on account of the restrictions. A tin-plate company built a bridge, and the rent was £3, and a farthing a ton royalty to the Duke. The Graigola Colliery Company has built a bridge, the rent being £5, but with the stipulation that they are not to take goods across it belonging to any one else.
Again, there was a charge of Ave guineas for the building leases of artisans’ cottages, and no assignment could be made without a licence with the signature of the Duke himself. This meant that the new leases had to be sent to London, and much delay was caused. The Duke’s solicitors charged two guineas for each licence.
The unspeakable absurdity of a community being thus placed at the mercy of one man, on the warrant of a grant from the dead hand of King John, must be obvious to the simplest intelligence. Such claims are no real “rights” of property at all, but are a standing violation of the true rights of the whole people.
Fairs in the Public Streets
The Buckinghamshire County Council lately summoned the proprietor of a travelling cinematograph show for damaging the highway by driving stakes into the ground. A statute fair has been held in the main streets of Marlow for a great number of years, and up to the present efforts to get General Owen Williams to relinquish the charter, so that the fair might be removed from the streets, have been unsuccessful. In previous years much damage has been done to the surface of the road by the erection of booths, swings, etc. It is a strange anachronism that in the twentieth century a private individual can claim the right to treat the public road as his property, if only for a single day in the year.
A Claim Withdrawn
At a meeting of the Reigate Town Council, in July 1910, the Town Clerk read a reply from Lord Monson’s solicitors to the Council’s application for his consent to the laying of an electric cable along Carlton Road, Redhill. They stated that Lord Monson was “disposed to grant” a licence under conditions. The conditions were that the Corporation were to pay Lord Monson a yearly rent of 10s. for every house connected with the cable, and pay all the costs, including the deed of licence, and the cable was only to be used for supplying electricity to the houses of Lord Monson’s estate.
It was decided that the Town Clerk should inform the solicitors that these terms could not be entertained, and recommended that the occupiers of houses in Carlton Road should be informed that, in consequence of difficulties with the owner of the road, the Electricity Committee would be unable to supply current to the houses in question. At a subsequent meeting it was reported that Lord Monson’s agent had written to the Council withdrawing his conditions, “understanding that the financial position of the undertaking would not justify the payment.” Criticism of the original charge must therefore be tempered by the fact of its withdrawal, but the fact that it was ever put forward is significant. Such claims are as common as the withdrawal of them is rare.
The Bloomsbury Barriers
For many years there existed bars and gates that obstructed certain streets on the Bedford estate in Bloomsbury. They were erected to prevent people using the streets other than those who paid for their making and repair. But, long after this cost had been placed on the ratepayers generally, the barriers were maintained and caused very great inconvenience. The opposition to their removal by the London County Council came chiefly from 200 of the Duke of Bedford’s leaseholders, who enjoyed greater quiet because of them, and they struggled hard to prevent their removal. The Marquis of Salisbury, then (in 1890) Prime Minister, in the course of the debate on the second reading of the Bill, said, “Being a frequent passenger across this particular district to the Great Northern Railway Station, I never approach these sacred gates and bars without internal imprecations against the persons who placed them there.” The passage of the Bill, after this declaration, was assured.
Landlords And Railways
The Law Times of June 2, 1900, reported two cases in which railway companies and noblemen were the litigating parties. In the one, the Duke of Fife sought to compel the Great North of Scotland Railway to drain some of his land in proximity to the railway. When the land was bought, nearly fifty years ago, the conveyance stipulated that “the said railway company shall be bound and obliged to preserve the effective drainage of the lands in so far as the same may be interfered with by the railway works.” This was done at the time, but the Duke wanted it done again. The Court, however, took the view that the duty was not without a time limit, and that that limit had been reached. They therefore decided that the Duke must drain his own lands at his own expense.
In another case at the same Court the Marquis of Hastings applied for power to compel the North Eastern Railway Company to pay a way-leave rent to him for coals shipped by them at Blyth, in Northumberland. This coal, in its passage from the collieries to the staithes, was not carried over any land of the Marquis, and the contention of the Company was that he was therefore not entitled to any way-leave in respect of its carriage.
The question depended upon the true construction of an agreement for a way-leave lease, dated 1854, by the predecessor of the present Marquis. Until recently, no rent had ever been claimed or paid, except in respect of coal, which had passed over some part of the said nobleman’s estates.
But, apparently, that gentleman had been looking round for some means of increasing his income, and he found what he wanted in this forty-six-year-old agreement. The Court of Appeal and – higher still – the House of Lords have decided that that lease does give him power to charge way-leave, even for coals, which may never go near his land.
King-Made “Rights “in a River
The navigation rights in the river Ouse, for thirty-four miles between Bedford and St. Ives, are a monopoly in the hands of one man. The monopoly was granted by Charles I. Three years ago (in 1910) the case came before the Lords at the instance of the Huntingdonshire County Council, and three law lords out of five decided in favour of the successor in title to the original grantee. It is admitted that he made some improvements, and conducted a carrying trade for a time, but the river had then been closed for thirteen years. At a time when an improved system of inland navigation is coming to be recognised as a national necessity such a monopoly cannot be allowed to stand in the way.
The bed of a river being the property of the landlords, it, of course, follows that the fish in the river are theirs also. But it is not generally known that in at least one important case the landlords even claim the fish when they have left the river and gone out to sea for a change of water. The Tweed Commissioners are a statutory authority representing the landlords along the banks of the Tweed, which is celebrated for its salmon. And they are empowered to treat as poachers any of the Berwick fishermen who dare to take a salmon from the North Sea for many square miles near the mouth of the Tweed. The presumption is that the salmon caught there are Tweed salmon, and the landlords succeeded in getting a landlord Parliament to pass a law extending their rights of property even to the ocean itself. Some years ago the naval forces of the Crown were engaged as marine gamekeepers against the fishermen who neglected to put back into the sea the sacred salmon that happened to get into their nets along with the other fish which the Duke of Roxburghe and the other Tweed owners have not yet branded as their particular property.
The River Wye
The freeholders of five parishes adjoining the river Wye have for centuries, possibly even since Doomsday, enjoyed by custom the right of fishing in a reach of the river seven miles in length, without any question by anybody, or any attempt on the part of the riparian owners to interfere with them. In most cases a custom that is thus exercised unchallenged for a certain time is held to establish a right. But the superior right of the manorial owners of the river was there all the time, although it had not been asserted, and both the Court of Appeal and the House of Lords have recently upheld it. They declare that this immemorial custom has established no right. The fish belong to the superior lords because of some royal grant in the distant past, and thus the means of livelihood of a number of honest men are at one stroke taken from them.
Lough Neagh, in Ireland, is the largest lake in the United Kingdom. It is twenty-four miles in length and sixteen miles in breadth, and it communicates with the sea by the river Bann. For several hundred years the fishermen in the neighbourhood have fished in Lough Neagh. No one has ever questioned their right until this year of grace 1913. There are 800 men engaged in fishing there, and it constitutes the chief or the whole of their living. According to the evidence brought before the House of Lords there was a grant made by James I., and confirmed by Charles II., of all the fisheries in the river Bann to the Lord Donegall of that day. Those rights are now leased from the Donegall Estate for £800 a year, and, on the authority of that royal grant, the Supreme Court has granted an injunction against Lough Neagh fishermen taking eels from the Lough. This judgment destroys the right of any one to take any fish at all from Lough Neagh except such as get a licence, and of course pay for it. Common sense says that a custom, which has been so long in existence, ought to create a right. And, as in the Wye case, this was the view taken by Lord Chancellor Haldane and two of the other law lords. They said that it was reasonable to presume some antecedent creation of a corporation so as to be the possessors of a right, which must have had some legal existence if it had been constantly used for centuries. But the other four law lords took a different view.
In all matters like this much depends upon the judges. They have to interpret the law, and, as many of them found their way on to the judicial Bench by service in party politics, they are apt to interpret it according to the principles of the party which they served as politicians, and by the head of which their appointment was recommended to the Sovereign. \Mien the political antecedents of certain of the judges are known, their legal decisions, where rights of property are concerned, are fully explained. The effect of a general election is thus seen to extend much further than the life of a Parliament, for it often means that the judicial Bench is packed with reactionaries appointed for life, who create bad precedents which govern subsequent decisions, and strain the law^for the defence of vested interests, however inequitable they may be, or however repugnant to the most ordinary common sense.
The Right to the Road
Another example of this is to be found in the celebrated case of Harrison v. the Duke of Rutland, which came before the Court of Appeal on December 3, 1892. Daniel Harrison was a workingman who had objected to the Duke shooting grouse in proximity to the high road, which ran across a Yorkshire moor, and, standing on the road with a handkerchief and umbrella, he had frightened the grouse from the guns and spoilt the Duke’s “sport.” The gamekeepers threw him down and held him down on the public road for twenty minutes. It was held that, although he had not stirred off the road, he was trespassing on the Duke’s land, the forcible restraint was justified, and five shillings was held to be sufficient compensation.
Watching Race-Horses from the Road
In March 1911 a labourer was charged with trespassing on a public road at Broughton, Hants, by using it to watch the galloping of race-horses on adjacent land and reporting the result of his observations for the information of racing men elsewhere. An injunction was granted, and, if he did it again, he could be imprisoned for Contempt of Court.
A Case at Battersea
On January 30, 1899, the Court of Appeal decided a case in which the Battersea Vestry asked for an injunction against an electric-lighting company which had, without authority and in defiance of it, torn up a street and placed its pipes underneath. The Court held that the conduct of the company was in every way utterly and entirely illegal in engaging men to tear up a public street in the night. But they refused the injunction because the pipes were then resting in the subsoil of the private landlord, two feet beneath the surface. This case clearly shows that the public have only the right to the surface of a road or street, and that the private property of the landlord still exists as to the land underneath. Well may the landlord be described as the “spoilt child” of the law.
One of the most flagrant examples of the way in which landlords have used their powers in the furtherance of their own interests is their shifting of the burdens of taxation from their own shoulders to those of the rest of the people. The result is that, whereas land formerly paid the whole expenses of government, it now carries but a small part of it. Further, land which is put to a use inferior to its possibilities pays local rates only on the low rent actually received, and the land which is withheld from use escapes rates altogether.
Richard Cobden, speaking in the House of Commons on March 14, 1842, said: “For a period of 150 years after the Conquest, the whole of the revenue of this country was derived from the land. During the next 150 years it yielded nineteen-twentieths of the revenue. For the next century, down to the reign of Richard III., it was nine-tenths. During the next seventy years, to the time of Mary, it fell to about three-fourths. From this time to the end of the Commonwealth the land appears to have yielded one-half of the revenue. Down to the reign of Anne it was a fourth. In the reign of George I. it was one-fifth. In George II. ‘s reign it was one-sixth. For the first thirty years of George III.’s reign, the land yielded one-seventh of the revenue. From 1793 to 1816 (during the period of the property tax) land contributed one-ninth. From that time to the present one-twenty-fifth only of the revenue has been derived directly from land. Thus, the land, which anciently paid the whole of the taxation, pays now only a fraction of one-twenty-fifth, notwithstanding the immense increase which has taken place in the value of the rentals.”
Besides this, it is notorious that their great country mansions, the “Stately Homes of England,” are disgracefully under-assessed, as the following figures relating to the Dukeries, given by Sir Frank Newnes, will show:
- Clumber (the seat of the Duke of Newcastle) and 121 acres are rated at £355 per annum.
- Welbeck Abbey (the seat of the Duke of Portland) and 2,200 acres are rated at £2,200.
- Rufford Abbey (the seat of Lord Savile) and 4,300 acres are rated at £1,950.
- Thoresby (the seat of Earl Manvers) and 1,500 acres are rated at £855.
- Serlby (the seat of Viscount Galway) and 400 acres are rated at £730.
The cumulative effect of all the foregoing examples of class legislation and class administration can scarcely fail to convince an unbiased mind that powers which have been used so unjustly should never have been entrusted to irresponsible individuals at all, and that the time has come for them to be taken away.
[i] George III. and Charles Fox, by Sir George Trevelyan.
[ii] The hardships disclosed by the three cases have been removed or mitigated by the Law of Distress Amendment Act, 1908 (passed mainly in consequence of the pictures case), by which, subject to certain conditions, binder-tenants and strangers can obtain for their goods the same protection as lodgers have enjoyed since 1871. But the laiv is still full of anomalies, all of which are in favour of the landlord and against the tenant.