of commercial morality in France, where the debtor can only be discharged of his obligations by actually paying his debts, confirms the view that if the Act is administered satisfactorily insolvency may prove less agreeable, and reckless trading receive a corresponding check.

On the other hand, a great deal of evil has arisen from the laxity and indolence of creditors in dealing with bad debts: the administration of bankrupt estates has been thoroughly careless just because it is rarely a man's interest, if he has made a bad debt of £500, to take much trouble on the chance of reducing that debt 5 per cent. or 10 per cent. He prefers to forget an unpleasant subject; and with the view of stimulating the energies of creditors, and checking the sources from which fraudulent debtors draw, it would be better to abolish the Bankruptcy Laws and leave "creditors to their Common Law rights. You would then find that creditors would be more careful how they gave credit. They would not be inclined to do then what the competition of trade induces them to do now -to push trade by giving undue credit; and . . . when a debtor failed to pay his debt within a reasonable time, the creditor would have recourse to his legal remedy."1 But the present measure, by ensuring better administration and relieving them of personal trouble, can hardly be expected to have a moralising effect so far as the creditors are concerned. In fact with reference to the morality both of creditor and debtor no amendment of the Bankruptcy Laws could do half so much as their abolition, so as to let "the relations of debtor and creditor stand upon the Common Law."

...

The present measure then only affects the Bankrupt after his failure, it does not really prevent his obtaining 1 Mr. Serjeant Simon, 3 Hansard, cclxxvii. 870.

credit and speculating rashly because it brings no restraint to bear on the lenders; and so long as he can do this an enterprising trader is little likely to be much affected by the anticipations of possible severities if he fails of success and even this slight influence will be removed if there is any irregularity in the practice of the receivers, and consequent uncertainty in the expectation of being severely dealt with in case of fraudulent failure. On the whole it appears that the moralising influence of the Act cannot be counted upon with great certainty, and that the justification for State interference in this matter must be rested, not on the advisability of doing a public service by means of public offices, but on the superiority of public to private administration of bankrupt estates so far as the division of assets among the creditors is concerned. If the departments can really succeed in the arduous task of administering these estates, all creditors will have reason to be glad that the duty has been undertaken by the State, while there may possibly be some improvement in commercial morality from the uniform and steady pressure put on fraudulent debtors. But the success of the department in this great undertaking has yet to be proved.

3. National Resources.

65. In the preceding sections those measures have been discussed which were concerned with the development of national resources by facilitating the application of capital to the land: it only remains for us to examine those enactments which had reference to the management of existing resources, and to the prevention of damage and waste. Such objects can be attained without the

application of additional capital, and thus come not unnaturally to form another division.

66. Few bills in recent years have elicited more diametrically opposed opinions both in regard to existing circumstances, and to the character of the legislation required, than did Mr. Cross's Bill in regard to the Enclosure of Commons.1 Its supporters desired a measure which should define the terms on which enclosure might proceed, and thus facilitate the passing of schemes which had been delayed for several years: its opponents desired to render any further enclosure of commons practically impossible. The supporters had their attention fixed on the re-adjustment of existing and recognised rights, due regard being had to the interests of the general public : the opponents desired to enforce what they held to be the long-forgotten rights of the poor and to have the commons managed in behalf of the toiling millions of this and succeeding generations; they claimed that the general public should have a voice in all proceedings of the kind. And therefore the opposition was based on what we may call "communistic" grounds: it demanded the creation of a right in every citizen to what had previously been controlled by a limited number. Mr. Fawcett regarded the bill as "defective in certain vital points," because "it did not give an ordinary person the locus standi of a commoner for the institution of proceedings against an encroacher." 2 As the encroacher did not encroach on the rights of "an ordinary person," but only on the rights of a commoner, to give the ordinary person the power of instituting proceedings could only be defensible on the ground that the "ordinary person was sus2 3 Hansard, ccxxix. 1222.

1 39 and 40 Vict. c. 56.

taining an injury, or in other words had rights as against the encroacher. Mr. Fawcett's attitude on this question was communistic in the strictest sense of the word, not merely because he wished to confer new rights on the ordinary person, but because he distinctly opposed private possession in the interests of common enjoyment. He was "determined resolutely and persistently, to maintain the principle that the worst and most miserable of all economies was that which, for the sake of aggrandising the few and making a paltry addition to the productive wealth of the country, would sacrifice those open spaces where the toiling millions could breathe the fresh air of heaven and behold the beauties of Nature unspoiled by man." 1

Such a doctrine as this is noteworthy whether we regard it as deserving of praise or blame: but a few words may be necessary in order to remove some misconceptions with which the subject is surrounded.

The nature of the existing rights connected with unenclosed lands may be most easily apprehended from reading the Act of 1845, and the admirable speech in which the Earl of Lincoln introduced it;2 from this it will be seen that that much-abused measure carefully provided for the rights of the poor whatever they were, and wherever they were found. In the greater part of unenclosed parishes, the commoner had defined rights of pasture on the common waste-pasture for two cows or so many sheep, but his rights of pasture were strictly defined, and none but commoners possessed any rights of pasture at all. In such a case the labourer would, generally speaking, have no rights in the common, and therefore no legal claim to compensation when it was 13 Hansard, ccxxix. 1227. 2 Ibid. lxxx. 23.

enclosed. There were, however, parishes in which the common pasture was unstinted, and where consequently the whole of the inhabitants of the village had a share in the pasturage, and in these cases no enclosure was allowed without the previous direction of Parliament.1 In these cases too the Act provides for the laying out of allotments for the villagers in the neighbourhood of their houses, to be held at a rent of any person entitled to an allotment out of lands to be enclosed.2 There were also cases where village greens existed, the use of which for purposes of recreation had been enjoyed by the inhabitants time out of mind: this use-and-wont privilege was carefully preserved, and the commissioners were impowered to extend it.3 And further, the wellbeing of the inhabitants of neighbouring towns and their numbers, were to be taken into account, before any measure received the approval of the Commissioners or of Parliament.

Such then were the actual recognised rights of the poor, and these rights were carefully regarded by the Act of 1845: in fact one of the reasons for the passing of that Act and instituting Enclosure Commissioners, was to give a double opportunity-before the Commissioners as well as before Parliament for the poor man to assert his rights. Those who have most severely criticised the action of the Commissioners, have been accustomed to

1 8 & 9 Vict. c. 118, § 12. 2 Ibid. §§ 31, 68, 108-110. enforced by the Charity Commissioners. Labourers, 45.

These clauses have been very little Stubbs: The Land and the 3 Ibid. § 15.

4 "This I know, that in 19 cases out of 20, Committees of this House, sitting on Private Bills, neglected the rights of the poor. I do not say they wilfully neglected those rights: far from it; but this I affirm, that they were neglected in consequence of the Committees being permitted to remain in ignorance of the claims of the poor man, because by reason of his very poverty he is unable to come up to London, to fee counsel, to produce witnesses, and to urge his claims