§ [Progress, 8th August.] Order for Committee read.
§ House in Committee.
§ Clause 20.
§ MR. WHITESIDEsaid, he objected to the clause. He was satisfied that no judicial member of the other House had seen and scrutinised the clause in question, which, it could not be disguised, referred specially to the case of Sir Thomas Wilson, who was the proprietor of Hampstead Heath, and who, it was stated, intended to enclose that heath. Now he (Mr. Whiteside) had a map of Sir Thomas Wilson's estate at Hampstead, and the farm, marked A and B on the map, was the site on which he proposed to build, but which farm was one mile and a-half from Hampstead Heath. Sir Thomas Wilson had previously granted to the parish of Hampstead a right to make a public road through his farm on one side, and a railway passed through it on the other side. All, therefore, that Sir Thomas wished to do was to build on the remaining portion of the farm. The opposition 2053 offered to Sir Thomas Wilson entirely rested on private grounds. The fact was, that a portion of the land on which he proposed to build adjoined the property and demesne of Lord Mansfield. Now, it appeared on the statement of Sir Thomas Wilson that in 1830 he received a letter from the late Lord Mansfield, saying that he should oppose Sir Thomas Wilson's building on that piece of ground; the fact being that Lord Mansfield wished to become the purchaser of it. The site in question consisted of about fifty acres. The present Lord Mansfield was equally anxious to be the owner of the ground. Both those noble Lords had been unceasing in their application to Sir Thomas Wilson to induce him to sell the property to them. It was quite clear, therefore, that the opposition to Sir Thomas Wilson entirely rested on private grounds. The solicitor of Sir Thomas Wilson had only that morning told him that Sir Thomas Wilson had no more intention of encroaching upon Hampstead Heath than he had of committing suicide. The introduction of such a clause as the one before the Committee into an act of legislation would be most unwise, impolitic, and mischievous, especially when the measure in other respects was a good one; he therefore begged to move that Clause 20 be struck out.
§ MR. J. FORSTERsaid, he had lived at Hampstead for several years, and he believed the hon. and learned Gentleman knew pretty well that Hampstead was chiefly inhabited by merchants connected with the City of London, and who were persons not to be influenced by any grand clique. That, however, was the first time he had heard that Lord Mansfield had any other objection to Sir Thomas Wilson's building on the property than that which any other persons entertained. It was well known that Sir Thomas Wilson several years ago commenced building operations, although in a small way, and that in the course of those operations he made some encroachments on the Heath itself, his chief building, however, being in a field adjoining the Heath. He had built a large bridge over a ravine, and had made a large brickfield for no other object, as it would appear, than to annoy the inhabitants; and there could be no doubt that his intention was to build on the Heath as soon as he should get the power to do so. Parliament was perfectly entitled to say that it would not delegate to the Court of Chancery, or any other Court, power to 2054 grant what it had itself on more than one occasion refused.
THE SOLICITOR GENERALsaid, he objected that at that late period of the Session the subject of Sir Thomas Wilson's claims should be revived and discussed. The Bill in question was a general Bill and a general object, and it ought to be so regarded. The ground on which a leasing power to Sir Thomas Wilson was refused was the construction which the Judges of the land had put upon the will of the father of Sir Thomas Wilson.
§ MR. WHITESIDEsaid, if that had been the ground of the refusal it would have been quite right; but that was not the ground. The real ground was the preservation of Hampstead Heath for the benefit of the public.
THE SOLICITOR GENERALsaid, that that would be on public grounds a very good reason for refusing the powers sought by Sir Thomas Wilson, but, then, if the public wished to have his property they ought to pay for it. That was the view of the case he should always entertain whenever Sir Thomas Wilson should think proper to apply to Parliament. The 20th clause was introduced into the Bill in consequence of its being stated to him that, unless the Bill contained some clause more explicity defining the jurisdiction of the Court of Chancery, it would be impossible to carry the second reading of the Bill. His reply was, that he would not consent to any clause being introduced to give the Bill the character of a private law passed against any individual. He thought the clause contained a correct and sound principle. Whoever was of that opinion let him vote for it even though the case of Sir Thomas Wilson should be included in it; but whoever was against it, let him vote against it upon general grounds, and not in reference to the case of that gentleman. Let Sir Thomas Wilson come again to Parliament, and if the Committee should be of opinion that a tenant for life ought not to be bound by the prohibition of the will under which he claimed, and that there was ground for relieving him from that prohibition, let the House of Commons grant that specific relief. It was to Parliament, whose judgment had already been raised upon the subject, and not to a Court of Justice, that that application ought to be made.
§ MR. BARROWsaid, he felt bound to vote for the continuance of the clause, because he disapproved of the Bill altogether. 2055 As regarded Hampstead Heath, if the public wanted it they should buy it; and he objected to the assumption by any court of law of powers to alter the provisions of any man's will, as the Bill proposed to do. He was sorry to hear an imputation thrown out upon a nobleman who was not present, and who had therefore no opportunity of answering it. He (Mr. Barrow) would vote against the general principle of interfering with the wills of testators.
§ SIR JOHN SHELLEYsaid, his objection to the clause being expunged was, that if it were it would enable a gentleman to do, by a side wind, what Parliament had prevented his doing on preceding occasions. If Sir Thomas Wilson chose to come before the House of Commons, no doubt the House would do him justice. He (Sir J. Shelley) did not consider that the refusal to Sir Thomas Wilson inflicted any hardship on him; and he was satisfied the testator knew what he was about in limiting the leasing powers under his will. The House of Commons had refused, on more than one occasion, to reverse the will; and he (Sir J. Shelley), therefore, objected to the powers being obtained through the Court of Chancery.
§ SIR JAMES GRAHAMsaid, the principle of the Bill was the enlargement of the powers of tenants for life with regard to leasing and selling their property. That principle had been sanctioned by the House of Lords and affirmed by the House of Commons. Sir Thomas Wilson, being a tenant for life, would necessarily be entitled to the advantage of that principle; and the question before the Committee was narrowed to that point, whether there were any peculiar grounds why his case should be an exceptional case, and one which should be taken out of the purview of the Bill. He was a great admirer of Hampstead Heath, and should be exceedingly sorry to see it enclosed. It would, he believed, be greatly injurious to the public health. He entirely subscribed to the doctrine of the hon. and learned Gentleman the Solicitor General, that instead of Hampstead Heath being enclosed, the full value of Sir Thomas Wilson's rights ought to be paid for, and the whole of the land purchased by the public in order to prevent its enclosure. But then the question arose, if it was thought fit to empower a Court of Equity to decide whether a tenant for life should have the benefit of the provisions of the Bill, whether the case of Sir Thomas Wilson in respect to Hampstead 2056 Heath formed a special case to be excluded from the benefit of those provisions? It appeared that the testator did give Sir Thomas Wilson power of leasing with respect to other property, but not with respect to Hampstead Heath. He thought there was not a better tribunal than that of a Court of Equity to decide whether that gentleman should have the same power with regard to his property at Hampstead which he enjoyed over his property at Woolwich and elsewhere. The only difficulty, in ordinary cases, was the absence of parties to oppose any application to the Court by tenants at will; but in the case under consideration the hon. Member for Berwick (Mr. J. Forster) had shown that parties would not be wanting. He, however, wished to decide the question upon general principles, and he could not help thinking, upon the whole, that if the principle of the measure was right the exception which had been suggested was not to be maintained. On those grounds he objected to the clause as it now stood, and would wish to see it modified.
§ MR. I. BUTTsaid, there was a general power in the Bill to tenants for lives to lease for twenty-one years, and Sir Thomas Wilson was not exempted from it. He (Mr. I. Butt) would never have consented to a personal exception, as in the case of Sir Thomas Wilson, only that a public principle was involved in it. The Bill was the last of a series of Estates Bills, and the question was, whether the case should be decided by Parliament. If he could have seen any grounds for resisting the strong public principle in question, he would not support the exclusion of Sir Thomas Wilson from the operation of the Bill. The principle of the Bill had been misrepresented. Unless the clause was allowed to stand it would lay the House open to the imputation that legislation for a particular case was intended under cover of a general law. The Bill, as it stood, left Sir Thomas Wilson exactly where he was before.
§ SIR DENHAM NORREYSsaid, the decision of Parliament had been given less against Sir Thomas Wilson in the former Bill than in favour of the public. He (Sir D. Norreys) could not conceive how a greater injustice could be done than had been done to Sir Thomas Wilson; and he believed that if the testator could have foreseen the extension of the metropolis in that direction he would not have omitted leasing powers from his will in respect to his Hampstead property. Sir Thomas 2057 Wilson had been unjustly treated, because that House had not moral courage enough to oppose the desires of the public to possess Hampstead Heath. He thought, therefore, the clause ought to be omitted.
§ MR. HENLEYsaid, the clause placed the Committee in great difficulty. He was not enamoured of the Bill, still leas of the clause. The former Bill had been rejected on the ground that it was opposed to the will of the testator; but the statement which had been made by the hon. Member for Berwick (Mr. J. Forster) had put that matter in a new point of view, and showed what injustice the House had been led to commit, with regard to Sir Thomas Wilson. It also appeared that the land in question was situate one mile and a quarter from Hampstead, and it was said that there would be no objection to allow that being built upon, provided that Sir Thomas Wilson would come to some stipulation with regard to his land which abutted on the Heath. If the Committee was to come to a decision in the present case and prevent Sir Thomas Wilson from building on his land situate one mile and a quarter from the Heath, there would be nothing to prevent him going to the Court of Chancery with reference to his land abutting upon the Heath, so that the present clause, if agreed to, would not effect the object which hon. Members had in view. If the Court of Chancery was the best tribunal to decide those cases, then no exception ought to be made of a matter because Parliament had before dealt with it. They would, by the present clause, under the pretence of its involving a general principle, inflict an injury on a particular individual, and, under those circumstances, he felt bound to vote against it.
§ SIR BENJAMIN HALLsaid, that it would be very convenient if they could disconnect the name of Sir Thomas Wilson from the Bill, but that, apparently, was impossible, as it had been sent down from the Lords—he would not say with the intention of its meeting that gentleman's case, yet such would be its effect. He had been informed that it was Sir Thomas Wilson's intention to have introduced, during the Session, another Bill for the purpose of directly attaining his object, but as the Judges to whom that Bill was referred were hostile to it, it was not proceeded with, and now the present Bill, which met his case, had been brought in. That was hardly a fair proceeding, and 2058 fully justified the insertion of the clause. There were also public rights over that property which it was considered that Sir Thomas Wilson ought not to interfere with, as he had attempted to do by previous Bills. The Bill had been allowed to pass its second reading, on the distinct understanding that the present clause should be inserted, otherwise the Bill would not have been allowed to pass, as it did, in its early stages.
§ MR. MALINSsaid, the object of the Bill was to rectify the powers in wills which were effected by an unskilful construction of those instruments. He was no party to any understanding that the case of Sir Thomas Wilson should be excepted on the second reading of the Bill. Sir Thomas Wilson had no intention to enclose Hampstead Heath, nor could he do so without the consent of every commoner having rights of commonage on that Heath. Sir Thomas Wilson wanted to build only on the fields beyond the turnpike in the Finchley road, which could not in the slightest degree interfere with Hampstead Heath. To refuse him the power of building on that property was to do Sir Thomas Wilson the greatest injustice. The Court of Chancery, and not the House of Commons, was the proper tribunal for judicial decisions on the rights of property. There was no more reason why Sir Thomas Wilson should not build upon his land beyond the "Spaniards" on Hampstead Heath, as far as a view of that Heath was concerned, than on his land at Woolwich. There were plenty of houses already overlooking Hampstead Heath; why should Sir Thomas Wilson alone be prevented from building houses overlooking the Heath, when he did not interfere with the rights of commonage? Why should Sir Thomas Wilson alone be selected to encounter all the expense of coming over and over again to Parliament for powers to lease when it was proposed by the Bill to give jurisdiction to the Court of Chancery to confer those powers upon any other tenant for life in the same predicament? The Bill purporting to be a general Bill, he would rather stop it altogether than be a party to such erroneous legislation as went to exclude one individual from its operation. He therefore gave his most strenuous opposition to the clause.
§ LORD ROBERT GROSVENORsaid, he must deny being under the influence of popular clamour on the present occasion, as no tumultuous meetings had taken place 2059 on Hampstead Heath—at least since it had ceased to be the scene of the Middlesex election. As a Member of the Committee he had objected to the Bill on account of its importance, and of the lateness of the Session; but he had withdrawn his objection on the suggestion of the hon. and learned Solicitor General that the clause in question should be introduced for the purpose of preventing cases which had been adjudicated upon by Parliament from coming before the Court of Chancery for decision. He must deny also that the Metropolitan Members had been actuated by a prejudice to do Sir Thomas Wilson injustice. The House of Lords had rejected Sir Thomas Wilson's application five times; the Judges had been uniformly against it; and only on one single occasion had it been entertained by the House of Commons. He (Lord R. Grosvenor) had opposed the application on the same grounds as the Judges—namely, that it was for powers contrary to the intention of the testator. It was upon the same grounds he supported the clause in the Bill then in question. As regarded the imputation against Lord Mansfield, he (Lord R. Grosvenor) had had a great deal of communication with that nobleman on the subject of Sir Thomas Wilson's estate, and he declared upon his honour that he had never heard anything fall from him which could justify the slightest imputation.
§ MR. J. G. PHILLIMOREsaid, he objected to the Bill, as giving too extensive powers to alter wills to the Court of Chancery. He was of opinion that the Houses of Parliament were safer in regard of wills than any Judges. To pass the Bill with the clause in question would be a violation of the general principle which was laid down as the basis of the measure. He thought the Bill ought not to pass at all; but if it did pass, the 20th clause ought to be expunged from it, as preposterous and unjustifiable.
§ MR. WIGRAMsaid, if the case of Sir Thomas Wilson had not been suggested, the clause would not have been objected to. He would suggest, however, whether it would not be as well to let the House take a ride to Hampstead Heath and enjoy themselves as to compel it to discuss a Bill which no one could hope would pass in the present Session. He thought the Bill a useful piece of legislation; but he did no think it of that urgency to require passing until next Session.
THE SOLICITOR GENERALsaid, if 2060 the clause were rejected he was so bound by his engagements with hon. Members who had agreed to the second reading, lat he could not proceed with the Bill. He considered the Bill one of the most valuable measures of the Session in respect to the amendment of the law, and he should, therefore, abandon it with regret.
§ MR. HENLEYsaid, he thought the importance of the Bill required more time than was before the Committee; and he considered, therefore, that it would be a very great advantage if it stood over until the following Session.
§ SIR GEORGE GREYsaid, as the general opinion was that the Bill should be withdrawn, he would move that the Chairman report progress, and sit again that lay three months.
§ SIR HENRY WILLOUGHBYsaid, he wished to know what would be the position of the public in case Sir Thomas Wilson died in the interval? His successor would lave the power which he did not possess. The present, therefore, was the time for a compromise. He deprecated the imputations cast upon two noble Friends, the late and present Lord Mansfield, for it was his confident belief that neither was capable of the conduct imputed to them.
§ MR. WHITESIDEsaid, the agent of Sir Thomas Wilson had distinctly alleged that Sir Thomas Wilson was bound by the statements in the letter, and the accident of its concerning those noble Lords he (Mr. Whiteside) could not avoid.
§ House resumed; Committee report progress; to sit again this day three months.