which, &c. to glean and gather the straw containing ears of barley, remaining and being dispersed and scattered abroad in the said close, in which &c. after the said crop had been so reaped, cut down, taken and carried away as aforesaid, being the gleanings of the said crop so remaining dispersed and scattered abroad in and upon the said close, in which, &c."
To this there was a general demurrer.
This cause was argued in Easter term 1787, by Le Blanc, Serjt., for the plaintiff, and Lawrence, Serjt., for the defendants; [52] and on a second argument in Trinity term 1787, by Bolton, Serjt., for the plaintiff, and Rooke, Serjt., for the defendants.
These arguments were fully entered into by the Court, who in this term gave judgement as follows:
Lord Loughborough:—When the claim of a right to glean was first brought before the Court, it was laid indefinitely to be in poor, necessitous, and indigent persons, I was then of opinion against the claim.
1st, I thought it inconsistent with the nature of property which imports exclusive enjoyment.
2dly, Destructive of the peace and good order of society,and amounting to a general vagrancy.
3dly, Incapable of enjoyment, since nothing which is not inexhaustible, like a perennial stream, can be capable of universal promiscuous enjoyment.
This right is now claimed by poor persons legally settled; but in this form also it is equally liable to objection. There can be no right of this sort enjoyed in common, except where there is no cultivation, or where that right is supported by joint labour; but here neither of those criteria will apply. The farmer is the sole cultivator of the land, and the gleaners gather each for himself, without any regard either to joint labour or public advantage. If this custom were part of the common law of the realm, it would prevail in every part of the kingdom, and be of general and uniform practice; but in same districts it is wholly unknown, and in others variously modified and enjoyed.
Although the division of parishes is of very high antiquity, yet a right to maintenance by settlement was first introduced the statute of the 45 of Eliz. In ancient times tithes were divided into three parts―the first for the maintenance of religion, the second for the church, and the third for the poor; but the third division was a matter of charity rather than of right. When by the second Lateran Council, in the 12th century (A.D. 1139), tithes were appropriated to particular parishes, they were not considered as making in any part a provision for the poor, which might be claimed as a right.
Although the law of Moses has been cited for a foundation for this claim, the political institutions of the Jews cannot be obligatory on us, since even under the Christian dispensation the relief of the poor is not a legal obligation, but a religious duty.
[53] The authority in our law upon which the right to glean is supported, is a dictum of Sir Matthew Hale, in the Trials per Pais; but though I entertain the highest respect for the authority and character of that great Judge, yet it would be doing injustice to his memory, to take every hasty expression of his at Nisi Prius as a serious and deliberate opinion. In truth, that dictum is not more than than that the question could not be raised without being put upon the record.
The consequences which would arise from this custom being established as a right, would be injurious to the poor themselves. Their sustenance can only arise from the surplus of productive industry; whatever is a charge on industry, is a very improvident diminution of the fund for that sustenance; for the profits of the farmer being lessened, he would be the less able to contribute his share to the rates of the parish; and thus the poor, from the exercise of this supposed right in the autumn, would be liable to starve in the spring.
Gould, J.:—Supposing a general right of leasing (lesing) in England, I think it must be in the case stated in these pleadings, which is after the crop is reaped and carried away, and for the poor and indigent parishioners.
If there be such a general right, it must be by the common law of the land; and though it should be admitted that in certain places there may be particular regulations of its exercise by custom, that will not derogate from the general right, any more than special modes of descent
C.P. IV.―2
