§ On the Question that the House resolve itself into a Committee of Supply,
§ SIR J. PAKINGTON
rose to put the question of which he had given public notice to the hon. and learned Attorney General, with regard to the part which he had taken in the differences which had arisen between the Trustees of the Grosvenor-place district and the Marquess of Westminster, as to the repair of the highway known by the name of the King's-road, Pimlico. The state of that road had become a most intolerable nuisance to that portion of the public who resided in that part of London, and he had to state, on the part of the ratepayers who reside in that district, that in their judgment they had to complain of a very serious grievance. He, therefore, considered that he was taking a perfectly proper and constitutional course in availing himself of that occasion, on the Motion for a Committee of Supply, to address to the hon. and learned Attorney General the question which he intended to propose to him. He wished the hon. and learned Gentleman to understand distinctly that he (Sir J. Pakington) did not then come forward as one of the trustees of the district in question. He had nothing to do with the trustees. He was no party to anything that they had said or done. The position in which he wished to put this question to the hon. and learned Gentleman was as a ratepayer of that district. In that character he had no hesitation in saying—and he believed he spoke the sentiments of his fellow-ratepayers—that he considered himself to be directly aggrieved by the conduct of the 861 Marquess of Westminster in reference to the road in question. He was glad to see the noble Lord the Member for Chester in his place. He begged to assure him, that in what he might say, he did not mean the slightest discourtesy to the Marquess of Westminster when he said frankly, that as a ratepayer, he considered himself to be aggrieved by that noble Lord. He would not venture to use that expression if he was not supported in that opinion by the very high legal authorities which he should proceed to state to the House.
§ MR. ANSTEY
Mr. Speaker, I certainly must rise to order. When I did not interfere between the hon. Member for Glasgow, and the exercise of his discretion as to giving way with respect to his Motion, I certainly did understand that the hon. Baronet would shortly state his question. He is now going into a long statement of circumstances which will entitle the two noble Lords to whom he has alluded, to reply, or at least to make comments on his statement. I, therefore, having a Motion on the paper next to that of the hon. Member for Glasgow, must certainly protest againt the hon. Baronet entering into such a statement as will prevent me from bringing forward my Motion.
§ MR. SPEAKER
The hon. and learned Member will not be prevented from bringing forward his Motion after the hon. Baronet has proposed his question.
§ SIR J. PAKINGTON
He was very sorry to be obliged to delay the Motion of the hon. and learned Gentleman. He was about to say that the origin of this dispute was an agreement that was entered into in the year 1820, between the Marquess of Westminster and the Crown, by which an exchange was made of the then existing King's-road, as it was called, for that large thoroughfare now known by the same name, which passed through Eaton-square. It was a most important advantage to the Marquess of Westminster to have become possessed of the old King's-road. All who were acquainted with the district must be conscious of the very great advantage which the Marquess of Westminster derived from that exchange. He had been thereby enabled to build the north side of Baton-square, which, as the House was well aware, contained one of the handsomest range of residences in this or any other metropolis. The row of mansions on the north side of Eaton-square 862 were built upon the site of the old King's-road. In order to be enabled to build that row of mansions on the old King's-road, the Marquess of Westminster effected an exchange with the Crown, by which he transferred to the Crown what was now the present King's-road; and the condition upon which that exchange was made was, that the Marquess of Westminster should undertake for himself and his heirs to complete that line of road, and maintain it for ever thereafter for the use of the King, his heirs, and successors, and for the use of the said Marquess, his heirs, and successors, and all other His Majesty's subjects. In 1820 the Crown abandoned the old King's-road as a private road, and the roads of that neighbourhood were at the instance of the Marquess of Westminster committed by Act of Parliament to the management of the trustees of the Grosvenor-place district. In perfect ignorance of any covenant between the Marquess of Westminster and the Crown, the trustees repaired that road for about three years, at the end of which they discovered the existence of that covenant. They consequently ceased to repair the road, and a negotiation with the noble Marquess took place, and to this very important point he wished to call the attention of the hon. and learned Gentleman. In consequence of that negotiation the late Marquess of Westminster, after having investigated the circumstances, made an arrangement with the trustees by which he paid to them 150l. per annum for the repair of the road, and he continued to do so till the time of his decease, in 1844. Upon the decease of the late Marquess of Westminster, the trustees continued to repair the road, presuming that of course they were to receive the usual payment of 150l. a year. After the lapse of some time, the present Marquess of Westminster refused to continue the payment. In consequence of that refusal, the trustees thought it necessary to take counsel's opinion. They consulted two of the most eminent counsel, namely, Mr. Watson, Q.C., and Mr. Hay. Those gentlemen, were of opinion that the Marquess was liable to repair the road in pursuance of the provision of the indenture of 1820. They then went on to say that in their judgment the trustees would hardly be justified in continuing to expend the money of the ratepayers in repairing the road without making an attempt to enforce the obligation to repair on the part of the Marquess created by the deed of 1820. 863 They then proceeded to say that in order to enforce that covenant it would be necessary to obtain the permission of the Crown to bring an action against the Marquess of Westminster. After that opinion the trustees proceeded to lay the same case before two other most eminent counsel—the Attorney General and the Solicitor General. He must beg to recall the attention of the hon. and learned Attorney General to the opinion of himself and the Solicitor General. [The ATTORNEY GENERAL: I am quite aware of it of course.] That opinion was to this effect:—Primâ facie, the parish is bound to repair the road; but the Marquess of Westminster is also liable to the Crown upon his covenant to repair. This covenant can only be enforced by the Commissioners of Woods and Forests, in whose name the trustees would have to sue. The trustees ought to apply to the commissioners for permission to sue upon the covenant in the name of the commissioners.In consequence of that opinion the trustees made application to the Commissioners of Woods and Forests; but it was found upon investigation that the Attorney General and not the commissioners was the proper party to sue the Marquess. The trustees again took legal advice as to the course which they should pursue, when they were of course advised that they should apply to the Attorney General for his permission to sue. The hon. and learned Attorney General sent this answer:—Temple, Oct. 24, 1849.Sir—With reference to your application on behalf of the trustees of the Grosvenor-place district for liberty to sue the Marquess of Westminster in my name for the purpose of enforcing a covenant entered into by the late Marquess with the Crown for the repair of a part of the King's-road, I have to inform you that, having considered the circumstances mentioned in your memorial, I must decline to allow you to use my name for that purpose. The covenant was evidently intended to relieve the Crown from any liability which might accrue by reason of the alteration of the line of road, and not for the benefit of the public at large. The road being now open to the public without obstruction, should be repaired by the trustees, in the same way as other roads within the limits of their jurisdiction.—Your obedient servant,JOHN JERVIS.A. M'Arthur Low, Esq., 65, Chancery-lane.Now, he (Sir J. Pakington) must express the extreme surprise with which he read the words, that this covenant was not intended for the benefit of the public at large. He had just read all the words of the covenant, in which the Marquess of Westminster and his heirs were bound to repair the road for ever, for the benefit of His Majesty and all His Majesty's sub- 864 jects. The answer of the hon. and learned Attorney General then proceeded thus:—And the road being now used for the benefit of the public should be repaired by the trustees in the same way as the other roads within the limits of their supervision.That answer was dated the 4th of October, 1849. The trustees held a meeting to consider the circumstances, and at that meeting they passed a resolution, in which they declared that the Attorney General's reasons did not appear to them to be well founded, or consistent with the opinion of himself and the Solicitor General; and they therefore determined to renew their application to the hon. and learned Gentleman for his permission to sue the Marquess, and they addressed to him a letter, requesting his permission to bring such action. The Attorney General sent them a much more extended answer; he would not trouble the House by reading the whole of it, but there were two passages in it to which he must beg to recall the hon. and learned Gentleman's attention. He said—The Committee is mistaken in supposing that there is any inconsistency between the opinion given by myself and the Solicitor General, that the Marquess is liable to the Crown upon the covenant to repair, and my refusal to enforce that covenant.The hon. and learned Gentleman went on to make use of what he (Sir J. Pakington) must describe as a very remarkable expression, for he spoke of there being a vast difference between the existence of a legal liability and the propriety of enforcing it. There was something he must say in that expression of which he felt himself called upon to require from the hon. and learned Gentleman a public explanation. It did riot appear to him (Sir J. Pakington) that it was for the hon. and learned Gentleman to take upon himself to decide, when parties were at issue upon a point of law, and were seeking to litigate it, the propriety of allowing that question to be decided by the proper legal tribunal. The ratepayers of the district felt that the Marquess of Westminster did derive a great direct pecuniary advantage from the exchange. They had the authority of the hon. and learned Gentleman himself that the Marquess was liable to the repairs, and they were, therefore, surely entitled to some voice on the question with regard to the propriety of enforcing that liability, a fact which the hon. and learned Gentleman did not for a single moment attempt to contravene. Then the hon. and learned Gentleman pro- 865 ceeded in his answer to state his reasons for refusing the use of his name. One of those reasons was that the trustees of the Grosvenor-place district had obtained an Act of Parliament with respect to the repair of this road; but that was an error; it was obtained by the Marquess of Westminster himself for the benefit of his own estates. In consequence of these repeated refusals on the part of the hon. and learned Gentleman, the trustees determined to apply for relief to a court of equity, and they laid their case before Mr. Rolt, Q. C, one of the most eminent members of the Chancery bar. Mr. Rolt said—There is no appeal to any legal tribunal from the decision of the Attorney General refusing his name to sue the Marquess of Westminster on the covenant in question.After discussing the legal merits of the case, Mr. Rolt proceeded to say—Although the legal remedy is thus doubtful, I am of opinion, on the facts before me, that the advisers or officers of the Crown will do an act of injustice to the ratepayers of this district either by attempting to release the Marquess from the operation of the covenant, or by refusing to sue upon it. I cannot understand what is meant by saying that a covenant by a private individual with the Crown, making that individual for ever maintain a road for the use of all the subjects of Crown, was not intended for the benefit of the public at large.He (Sir J. Pakington) begged to say that as far as he could form an opinion, he entirely concurred with Mr. Rolt in thinking that the Attorney General's refusal would be an act of injustice to the ratepayers, and it was that act of injustice that he now wished him to explain. Mr. Rolt concluded thus:—I advise the trustees to lay the matter again before the Attorney General, and to attend him either personally or by counsel. It is probable that the case has not been fully presented to him. If he should still decline to allow his name to be used, then, after the experiment of a suit inequity, the only course for the trustees to take will be to appeal to the Government or the Legislature for their assistance.An appeal to the Government had been made. The trustees intended to wait upon the noble Lord the Prime Minister, but he declined to receive a deputation upon the subject. He should not blame the noble Lord for that decision. The noble Lord considered that a point of law was at issue, with which, as a Member of the Government he had nothing to do. He (Sir J. Pakington), therefore as a ratepayer of the district, was prepared to act upon the latter suggestion of Mr. Rolt, and to appeal to the Legislature on the subject. But he 866 preferred making that appeal not in the shape of a direct Motion, but by way of an earnest request to the hon. and learned Gentleman, that, considering the broad justice of the case, he would reconsider his decision, and that he would not persevere in his refusal to allow these parties to go into a court of law. He believed that the noble Marquess himself was anxious to have the matter settled by a legal tribunal. He was not disposed to think that the noble Marquess was desirous of shrinking from his legal obligation.
§ MR. ANSTEY
rose to order. He begged to ask whether the argument they had been hearing for the last half-hour came within the definition of a statement?
§ MR. SPEAKER
The hon. and learned Gentleman has been in the House long enough to know that upon the question that the Speaker do leave the chair on going into Committee of Supply, any hon. Member may bring forward a question of what he considers to be a special grievance. While the hon. Baronet was speaking on such a question, it would be very improper for me to interfere.
§ MR. ANSTEY
, still speaking on the question of order, wished to ask whether, having given notice of a Motion on the question of the Speaker leaving the chair, and having distinctly stated that although the hon. Member for Glasgow gave way, he (Mr. Anstey) did not, he had not a right to precedence over the hon. Baronet?
§ MR. SPEAKER
If the hon. Baronet had signified his intention to conclude with a Motion, then no doubt the hon. and learned Gentleman ought to have precedence over him; but the hon. Baronet having stated that he only intended to put a question, I do not think that I ought to interfere.
§ SIR J. PAKINGTON
hoped that it would be some consolation to the hon. and learned Member to know that he had nearly concluded. In consequence of the advice of Mr. Rolt, an interview took place between that learned Gentleman and the Attorney General; and here he desired to direct the attention of the House to an expression of the hon. and learned Gentleman. He said that in questions of a social character they should take care that in enforcing the letter of the law, they did not inflict hardship on individuals. In his opinion the hon. and learned Gentleman did not sufficiently bear in mind the hardships which were inflicted on the ratepayers. The hon. and learned Gentleman said, 867 also, that a court of law would not travel out of the record before them; but that, as his decision should be final in the case, he was bound to look to all the circumstances of the case. [Cries of "Question!"] He would not detain the House much longer; he was very sorry for having detained it so long, but he did not think that they had any right to complain at his bringing forward this question at such a length as would make it intelligible, affecting as it did the rights and privileges of the subject. He appealed to the noble Lord at the head of the Government, as a constitutional statesman, whether he was prepared to give his approbation to the principle, that it was right there should be any authority which might interfere to debar any portion of Her Majesty's subjects from making an appeal to a court of law to decide the merits of what they conceived to be a grievance? It did appear to him that this was a very serious case. The ratepayers were aggrieved by the Marquess of Westminster. They were desirous of going to law to remedy the injustice—they were supported by the opinions of the most eminent counsel in their favour. Mr. Watson, the Attorney General, and Mr. Rolt, had all declared that the Marquess of Westminster was liable. They desired to go into a court of law to prove that liability; but the Attorney General refused them the use of his name, and he was at a loss to conjecture what answer he would give; and how explain his conduct. [Mr. ANSTEY: Question, question!] He was not disposed to detain the House much longer; but if the hon. and learned Member for Youghal persisted in his uncourteous interruptions, he would proceed at greater length than he originally intended. He was informed by good legal authority that the indictment which was now pending would not raise the question of the liability of the Marquess of Westminster. He would conclude by asking the hon. and learned Gentleman to make a public explanation on what grounds it was that he debarred the ratepayers from their undoubted right, and whether he intended, as the first law officer of the Crown, to persevere in his refusal, and lend his name as it had been desired.
The ATTORNEY GENERAL
said, it would be inconvenient to enter into a general statement of the grounds of his decision, especially as an indictment was now pending against the trustees for the repair 868 of the road. But as the hon. Baronet was manifestly in want of information, he would partly answer his question. He did not complain that the hon. Baronet had not given notice of his question on the Votes, as he had personally conveyed to him (the Attorney General) his intention of putting it. But the circumstance of its not being on the Votes, might have precluded some hon. Members who wished to make a statement on the subject from doing so.
§ SIR J. PAKINGTON
said, the hon. and learned Gentleman was very grievously misrepresenting him. He had given notice of this question before the holidays; it was upon the books; and he had now put the same question. He had given public notice, on the first night after the holidays, that he intended to renew this question on the next supply day. He had explained the accidental omission, by the clerk at the table, of his notice from the book; it ought to have been there; but he had last night given the hon. and learned Gentleman notice that he should put this question.
The ATTORNEY GENERAL
said, he had not complained of what the hon. Baronet had done, nor had he at all misrepresented him. He found a notice on the paper, on the Monday after the holidays, that the hon. Baronet would put this question, which had been stated to him verbally that day and the day before. What he had stated, and would again repeat was, that it might possibly be inconvenient to those who wished to say something on this question, that the notice had not appeared on the Votes; but that might not be the fault of the hon. Baronet. He was very glad to find that his hon. Friend disclaimed any participation in the "statement" which had been drawn up and circulated amongst all the inhabitants; and that there might be no mistake, two copies had been sent to himself. Anybody who knew his connexion with the city of Chester, knew that he was not assailable on that charge at least; and those who made the statement, or believed it, without taking the trouble to ascertain the facts, were utterly beneath his contempt; and, therefore, he would say no more about it. He quite agreed with his hon. Friend that the ratepayers had a very great grievance to complain of. He was a ratepayer in the district, and was open to the same grievance; living two or three doors from his hon. Friend, he thought he had a very great grievance to complain 869 of. Their grievance was fourfold. He was particularly aggrieved that the new road in the centre of Eaton-square was not watered, on account of the dust; he was extremely aggrieved by its not being lighted, and being therefore made a resort and receptacle of everything that was improper; he was greatly aggrieved likewise at its not being cleansed; and also because it was not repaired. Now, whatever doubt there might be as to one of those liabilities, between the Marquess of Westminster and the trustees, there was no question whatever that the trustees had taken upon themselves by Act of Parliament the imperative liability to light, water, and cleanse the road; and because the Marquess of Westminster would not repair, they would not do the other three things. The hon. Gentleman; if he would forgive him for saying so, had misunderstood the whole question. The question between the Marquess of Westminster and the trustees was, who was legally bound to keep the road in repair. The Marquess alleged that though it was true he entered into a covenant with the Crown to keep the road in repair, yet the road having been made public he was not bound to do so—that if he attempted to set up any exclusive right to it, he would be liable to be driven off by the public. The trustees, on the other hand, said he was bound by the covenant, and that the road should be repaired by him. Now, if he brought an action on the part of the Crown, he must do so on the covenant, and there could be no defence whatever. There must be a verdict for the Crown, whatever the damages might be, whether they were nominal or not. The only question was whether the Crown should bring such an action. He had come to the conclusion that it ought not to do so. He had come to that opinion according to the best of his judgment; and he should feel that he was unfit for the office he held, if he arrived at a different conclusion because the trustees might be dissatisfied with his decision. But having come to that decision without any communication with the Marquess of Westminster, he was pleased, after his opinion and final determination had been come to, by receiving from the agent of the Marquess, a confirmation of that opinion on the part of the present Chief Baron of the Exchequer, the present Chief Justice of the Queen's Bench, and Mr. Crompton, all of whom concurred with him that no proceedings could be taken. He believed the hon. 870 and learned Member for Plymouth, and the hon. and learned Member for Pontefract, also concurred in the view which he took. He was in the position of a judicial officer on this question, and it would not be right for him to enter into the grounds upon which his decision rested, and therefore he was not going to argue the question again. He arrived at the decision on the responsibility of the position he held; and, even if that decision was wrong, he could not help it.
§ MR. GRENVILLE BERKELEY
wished to know from the hon. and learned Gentleman, as one of the trustees, how they could now get out of the scrape?
The ATTORNEY GENERAL
said, that he had had the misfortune to get into some difficulty, by giving a professional opinion. He must, therefore, decline to give an unprofessional one now.
§ VISCOUNT CASTLEREAGH
disclaimed the intention of casting any imputation on the hon. and learned Gentleman; but the conduct of the hon. and learned Gentleman had been severely critised by the board of trustees, and many of the gentlemen of that board were in the habit of calling things by their right names—[laughter]—he meant by harsh names. He believed that the right hon. Gentleman in the chair had suffered from the grievance, and that oven the Crown had not been insensible of it. The trustees had done their best, and acting under the opinions they had received, they had endeavoured to procure the hon. and learned Gentleman's sanction to a proceeding at law; but the hon. and learned Gentleman had declined, and at the same time gave them no reason why he would prevent them from bringing the question before a court of law. He would ask whether, henceforward, in England there was to be an officer who should prevent any one of Her Majesty's subjects from bringing a question before a court of law. If so, there was no law, no liberty in England. He was astonished to find the hon. and learned Gentleman, whom he remembered as one of the most gallant and distinguished advocates for liberty in former days, now coming forward in a most despotic manner, and saying he had given his opinion upon the subject, taking, indeed, a view of it which was not sanctioned by four or five eminent Queen's Counsel. Mr. Rolt, in very gentle terms, in his opinion, on the question, speaking of the hon. and learned Gentleman, said, "it is very probable that the case has not been fully pro- 871 sented to him." He had never heard any thing half so severe as that little hint of Mr. Rolt's. He should be extremely sorry to come forward and assert that the hon. and learned Gentleman had not given the trustees the power of going into a court of law, but as it was they must suffer under what he must consider was nothing less than tyranny and despotic conduct. He grieved to say there was a general impression, that the hon. and learned Gentleman had rather acted on a preconceived impression, and given a decision from which he did not now like to depart.
§ MR. S. MARTIN
said, as one of the ratepayers of this district, he had read a vast number of papers that had been submitted to them, and he should be ashamed of himself if he did not rise and state to the House that, having read those papers, he believed his hon. and learned Friend the Attorney General would have been guilty of a most gross dereliction of duty if he had permitted his name to be used for the purpose for which the trustees required it. If the noble Lord would apply himself to what was the real business and duty of the Attorney General, he would see that it would have been a great injustice that the Attorney General should so lend his name as was desired.
§ VISCOUNT CASTLEREAGH
said, he had applied himself to this question; he did not want the law, but he wanted permission to go to law.
§ LORD R. GROSVENOR
said, that he doubted whether, after what had passed, it was necessary for him to say anything upon the subject now before the House. As, however, the name of his noble relative had been so much in question, he thought he might be permitted to give the House the opinions of three very eminent lawyers upon the case, in order to show that the Marquess of Westminster had not acted upon light grounds in the decision to which he had come. The noble Lord then read the following opinions of Sir F. Pollock, Lord Campbell, and Mr. Crompton:—I am of opinion that the Marquess of Westminster cannot be deemed liable to repair the road, either at the suit of the Crown or any other party. I think there is no pretence for considering the Marquess liable as between him and the public; the only ground upon which any liability rested was the covenant to repair given to the Crown and the commissioners; and this, I consider was abandoned when the Crown gave up the road to the public. In my opinion no indictment would lie, and a court of equity would restrain any action on the covenant. The road ought to 872 be repaired by the parish in which it lies, or by the body on whom that duty has devolved by any Act of Parliament. "F. POLLOCK.Temple.I am of opinion that the trustees are compellable to repair the road in question. The liability cast upon them by the Act passed in 1826 is not affected by the Marquess of Westminster's covenant contained in the deed of 1820. There is no pretence for calling upon him to keep it in repair for all the heavy waggons which may travel upon it in consequence of the Woods and Forests, with the concurrence of the Treasury, having entirely surrendered the King's Road to the public.Temple." "J. CAMPBELL.I concur in the opinions that have been given as to the Marquess of Westminster being under no liability to repair the road in question.Temple." "C. CROMPTON.[Viscount CASTLEREAGH: What was the date of those opinions?] The opinion of Sir F. Pollock was given in 1833; that of Lord Campbell in 1835, and Mr. Crompton's in 1840. It was a matter of great regret to his noble relative that his tenants and the inhabitants of that district had been put to so much annoyance, and he had felt it so much that, contrary to the strenuous wishes of his advisers, he had offered to pay an annual sum as a compromise, which had been refused by the trustees. He would only add, in conclusion, that he could most conscientiously confirm all that had been said by the hon. and learned Attorney General, as well in regard to his position as representative for the city of Chester, as to the entire absence of communication of any description between himself and the persons interested on behalf of his noble relative.
§ LORD C. HAMILTON
regretted the view taken by the hon. and learned Member for Pontefract. It was on the ground of such eminent men as the hon. and learned Member and others holding different opinions on the subject, that he and many other inhabitants of that neighbourhood were anxious to appeal to that which he had always conceived to be the right of a British subject—the power of trying a great question in the public courts. Mr. Rolt had given his opinion against the noble Marquess; the Attorney General for him. Why not, then, allow the matter to go before a tribunal which no influence, authority, or bribery could warp? He must say that he considered the conduct of the Attorney General in this case as harsh and arbitrary, and a great grievance, of which the public had a right to complain. It was worthy of remark, that, since the opinions of Lord Campbell and Chief Baron Pollock had been given, the one seventeen 873 and the other fifteen years ago, the Marquess of Westminster had continued to repair the road in the way in which it had been previously repaired.
§ Subject dropped.