§ COLONEL SIBTHORPwould now call the attention of the House to the proceedings on the part of the Attorney General relative to the erection of buildings in Hyde Park for the proposed Exhibition of 1851. It had been his intention to have moved an address, "praying Her Majesty to direct her Attorney General to give his sanction to the filing of the proposed information for an injunction to restrain the erection of any building in any part of Hyde Park for the intended Exhibition of 1851;" but it appearing that the forms of the House precluded his making that Motion at the present moment, he should reserve it until some other opportunity when the House was going into Committee of Supply, or Ways and Means. After the very explicit opinion just given by those eminent counsel, Sir F. Kelly, Mr. Rolt, and Mr. Cairns, he trusted the hon. and learned Attorney General would be induced to reconsider his refusal to allow the filing of the information which required the sanction of his name. Such a course would be at once honourable on his part, and an act of justice to the public, and that numerous body of petitioners who had petitioned the House on the subject. He denied the efficacy of a vote of the House of Commons to contravene the public rights, and repudiated the notion that the Attorney General could not act in opposition to such a vote. He also denied the right of the Commissioners of Woods and Forests to appropriate the public parks of England to any purpose which might be pleasing to themselves, or which they might think congenial to wishes expressed by persons in certain quarters—persons whom it might be their interest, but certainly not their duty, to fawn upon and flatter. The right of enjoyment of our parks was vested in the people of this country, and had been recognised in the reigns of the Charleses, of William III., of George II., of William IV., and in the reign of the present Sovereign. He believed Her Majesty to be one of the last persons who would desire to do 353 anything or to sanction anything hostile to the feelings of Her subjects, or which could interfere with their rights and enjoyments. Hyde Park had been devoted uninterruptedly to the enjoyment and recreation of the people; and so strongly was their right held to be in the reign of William III., that hackney coachmen were not suffered to remain within the park, because at some previous period they had interfered with, molested, and insulted the respectable class of persons seeking recreation there. Hyde Park was emphatically the park of the people, and it was now proposed to be devoted to purposes which he must hold to be prejudicial to the people in a moral, religious, and social point of view. It was sought to appropriate it to the encouragement of—what? To the encouragement of everything calculated to be prejudicial to the interests of the people. An exhibition of the industry of all nations, forsooth! An exhibition of the trumpery and trash of foreign countries, to the detriment of our own already too much oppressed manufacturers. The Commissioners of Woods and Forests, as trustees of the public, were bound to protect their rights, and not permit them to be robbed and spoliated. The Attorney General said, "It is my will and pleasure that I should do as I propose," and forthwith he put his will and pleasure into execution. But even supposing the Attorney General to be right in refusing to file the information, was it wise to use the giant's strength he assumed to possess against the public good and against public principle? The public had a voice in such a matter, and were not to be trifled with. He thought it neither politic nor judicious to make the attempt. He believed that those who had been first and foremost in starting this exhibition regretted very much that they had ever taken it in hand. They now declined to retrograde, however, because they feared giving offence to foreigners. The promoters of this project had got into a scrape, and the sooner they got out of it the better. They were flying in the face of the rights of the public merely to gratify the foreigner, who had no right to be here at all. He called upon the Attorney General to give ear to the opinions expressed, and recommendations emanating from such eminent lawyers as Lord Chief Justice Campbell, and Mr. Justice Cresswell, and join in a censure upon the illegal and unconstitutional course the Commissioners of Woods and Forests 354 were pursuing. On a future occasion, he should move the address which he had read to the House; and on Monday next, in moving that a petition on the subject, presented a few days before by the hon. and learned Member for Abingdon be printed, he should again address some observations to the House.
The ATTORNEY GENERALsaid, that so far as he was personally concerned, he felt indebted to the hon. and gallant Member for bringing this question before the House, both because it was highly important that every public functionary should be ready to explain his conduct upon all occasions to the House, and also because upon this particular occasion he was extremely desirous to state to the House the motives which had actuated him in the course he had adopted with respect to the information in question. But before he proceeded to say anything on that subject, be thought it right that he should say that the course adopted in this case had been taken upon his own sole responsibility; that he had not been asked to take that course by anybody; and that he had not been advised by anybody to take it. He had not, indeed, consulted with anybody-previous to determining upon taking that course. He might very possibly be wrong in the judgment he had come to. If he had had any doubt upon the subject, he should have thought it his duty to take advice and counsel from those who were capable of giving it; but entertaining no doubt with respect to the course which he felt it his duty to pursue, he thought that the only proper and dignified course for him to take was to act upon his own responsibility. In this case, too, the House would permit him to observe that there could be no doubt at all that the duty of signing the information by the Attorney General was not a mere matter of form. It was a matter in which he had to exercise his discretion—in which he had to read every information in order to enable him to form an opinion whether it was a proper case to be submitted to the consideration of a court of justice. This had been the established and invariable practice, as far as he was aware, of all the Attorney Generals who had preceded him in his office; and he had heard regret over and over again expressed by every Judge who had presided in the courts of equity, that cases had not been fully brought under the attention of the Attorney General, because if that had been the case he would 355 never have sanctioned such proceedings. He had also known matters referred back to the Attorney General, with a recommendation from the court to reconsider them, and to see whether, upon increased information, he would deem it proper to proceed. And without detaining the House upon the subject, he might be allowed to say that various matters might technically arise in which great evil might be occasioned, if an information were permitted to be brought before the attention of courts of justice without considering how far the interests of other persons whose benefit was sought to be promoted would be affected by it. He had himself since he had had the honour to hold the office he now held, refused to grant his fiat to a petition under the 52nd George III., which was exactly analogous to the present proceeding, because he was convinced that the advantage which was sought to be gained by the redress of the inconvenience in the particular charity, was not commensurate with the expense which would be incurred in redressing it. There could be no doubt, then, about the discretion which was required to be exercised by the Attorney General, and the great responsibility which attached to him before he gave his sanction to any information whatever. He should now proceed briefly to explain the motives which induced him to refuse his assent to the information. The information was at the instance of certain relaters, who conceived that the building proposed to be erected in Hyde Park would interfere with the rights of individuals as well as with the rights of the public, and they therefore sought to obtain an injunction to restrain those who intended to erect such a building from proceeding with that undertaking. Now, it was essential that the House should hear in mind the several interests connected with this matter. The information alleged that there were two interests concerned—those of the Crown and those of the public; but the interests of the public were divisable into two parts, one portion that of the State, as represented by the Commissioners of Woods and Forests, and another portion that which the public had in the enjoyment of the park as a place of recreation. The rights of the Crown were simple and plain: Hyde Park was a portion of the hereditary property of the Crown, subject to no restrictions but what the statute law imposed. The rights of the Crown were those of a proprietor in fee simple—the Crown might do with that estate as it 356 thought fit, except so far as it might be restrained by the various Acts of Parliament having reference to its property, and except in so far that it had no power to alienate from its successors that or any other hereditary estate. It was part of the functions and duties of the Commissioners of Woods and Forests to manage the land revenues of the Crown, except in so far as that power might have been taken away by Act of Parliament. Now, in this case it was alleged that the Commissioners of Woods and Forests did not possess any authority to erect any such edifice as it was now proposed to build, and the statement was sufficiently correct if limited to the exercise of that authority as against the Crown; if that prerogative of the Crown were invaded, it would be the duty of the Attorney General to proceed, not by signing such an information as was now under consideration at the instance of relators: it would be his duty to file an information ex officio. But that the Crown—the Commissioners of Woods and Forests cooperating—did possess the power of erecting buildings in Hyde Park, was a position of which there could not be the slightest doubt. That to act upon that opinion had very long been the practice, there could also be no doubt whatever, in proof of which he might mention the barracks erected in St. James's Park, as well as various waterworks, for which no Act of Parliament had ever been thought necessary, the Royal sign-manual being the only authority, as happened also in the case of the cottage built in Windsor Park by George IV., then Prince Regent. For any building in any of the parks no sanction of an Act of Parliament was necessary if the Crown gave its consent. But he then limited himself to speaking of the erection of buildings which did not interfere with the rights of individuals; wherever those rights were affected, the persons concerned had their proper redress, but the power of which he spoke was one which the Crown had always possessed, and had always exercised. A question of right, however, arose when individuals claimed redress; the Crown, however, was not accustomed to use its prerogative to the injury of private interests. As he had already said, the interests of the public in this matter were divisable into two parts—that which the Board of Woods and Forests administered, and that which the people at large enjoyed when they took recreation in Hyde Park. The 357 Board (that of the Woods and Forests) by which the land revenues of the Crown were managed, had been created by Act of Parliament for the purpose of managing that property in a manner the most beneficial to the Crown. That Board received all the rents and fines accruing to the Crown, and by a species of compact, the civil list being provided for out of the Consolidated Fund, the issues and profits of the Crown lands were, by the Commissioners of Woods and Forests, paid over to that fund, and the Commissioners, representing the public, had an interest in the matter now under consideration; but he wished to consider the other interest that the public had in this matter. First, he alluded to the interest which they had when taking pleasure and recreation in the park; and here he would venture to say, that as to the legal point, the relators had no ground on which to base their resistance. The public, so far as recreation was concerned were in the same situation with regard to Hyde Park as that in which they stood with regard to all others of the Royal parks: they were admitted by the grace, and at the pleasure, of the Crown. It was an enjoyment with which the Crown was never likely to interfere; but that was not now the question. What he meant to affirm was, that, speaking as to the legal point, there was no right in the public to the enjoyment of those parks. There might, perhaps, be a right of way from one place to another, but that was a different question. The free access to the parks—the enjoyment of them as a place of recreation—was a matter which depended solely upon the grace and favour of the Crown, and no man could say that the public possessed any legal right to insist upon the gates of any park being kept open, say till any particular hour of the day, or to insist that any particular class of vehicle should not be excluded from the parks. He spoke now of the public possessing no common-law right to take pleasure or recreation in those parks. If there were particular customs in a matter of this sort, they could be enforced, not for the benefit of the public, but for that of some individuals, or set of individuals, who did not constitute the whole community, but a certain class or classes. Thus, the inhabitants of a certain district might possess by custom the right to play at cricket on the village green. That right might be very good as regarded the inhabitants of the district; 358 but it was one in which the public at large had a direct interest. This might appear a technical distinction, but, in the present case, it was by no means merely technical, for the information claimed a right on behalf of the public; but the public could possess no right independently of an Act of Parliament, and there was no statute which gave to the public a right to take pleasure and recreation in Hyde Park, or in any one of the parks. Assuming for a moment that any one supposed the rights of recreation and pleasure to be in persons residing within a certain distance of Hyde Park, in the inhabitants of London, Westminster, Southwark, and the villages adjoining them, the right would not be in the community at large, but in certain classes of persons; and they would not be entitled to proceed by way of information; the proper mode for them would be, that a few of the inhabitants of London and Westminster should file a bill on their own behalf, and on that of the other inhabitants of those districts; and no refusal of the Attorney General could prevent their doing so. Nothing more easy than for such parties to do so; but, as the Crown would be in possession, it might possibly be necessary to prefer a petition of right. The Attorney General, however, would be without any power in the matter, inasmuch as the right could not under such circumstances as he had supposed be claimed by the whole community. But in the present case there had been no allegation of any right possessed by any particular class. He thought that that was the proposition to be considered, and he thought that the Attorney General had a right, on the part of the Crown, to stop the course of the proceedings when the relators came forward on behalf of the public; and he had declined to sanction the information after giving to the subject the best attention in his power. It appeared to him that the relators sought not the advantage of the public, but their own advantage; and, under such circumstances, if the Attorney General had acceded to their wishes, he would have betrayed the interests of the Crown, and deserved the severe censure of the House of Commons. On the part of the relators, it was alleged that the Commissioners of Woods and Forests were trustees for the public, and that they could be made accountable in the courts of justice for the manner in which they administered the trusts confided to them. This he conceived not to be the 359 law; and he considered the question attempted to be raised one of very great importance. The Commissioners of Woods and Forests were Ministers of the Crown, appointed by the Crown to manage the Crown revenues for the benefit of the public, and to pay them over to the Consolidated Fund; they were, therefore, strictly accountable, but they were not accountable in any place other than in Parliament, and it would be a most dangerous innovation if the Court of Chancery were to be allowed to call such Ministers to account instead of leaving them to their responsibility in Parliament. It would be in the recollection of the House that six years ago a right hon. Baronet, now no more, had by an Order in Council suspended the admission of foreign corn free of duty. If he could have been made responsible for that in a court of equity, a collection of landlords might have sought for an injunction to restrain him; and that case appeared perfectly analogous to the position in which the Commissioners of Woods and Forests were now placed by the parties who called upon the Attorney General to concur in this most dangerous innovation, which appeared deeply injurious to the interests of the community; and he dwelt on this the more especially as it had been noticed of late that there was a great desire on the part of the courts of law to interfere with the privileges and prerogatives of that House. He did not propose to go into that question, but it had long been notorious to every one that such a disposition existed; and it had long been an adage in Westminster-hall that it was the part of a good Judge to endeavour to extend his jurisdiction; but if he had signed such an information as that presented to him, he would certainly have made himself instrumental in extending the jurisdiction of the Court of Chancery; and he did consider that if he had sanctioned the proceeding which he was called upon to give his name to, he should have been doing nothing more nor less than sanctioning an appeal from the House of Commons to the High Court of Chancery; and if the Attorney General had done anything of the sort, he would have been guilty of a gross neglect of duty. The interests of the Woods and Forests and those of the public had already been decided by that House, and nothing remained but to carry that decision into effect. Nothing would have been more easy for him than to have given his consent to the information. His doing so would not, 360 in any respect, have prejudiced him—whatever course he took it would not deprive him of the office which he now held, nor would it injure him in his profession. The House was well aware that if he had taken a different course, he would have had the powerful support of the press, and he could not be blind to the fact that, having resolved not to sign the information, vituperation and blame had attached to him in the course which he had taken; but he took that course because he firmly believed it to be his duty; and as long as he held the office which he had now the honour to fill, he would discharge its duties on his own responsibility alone, and he trusted that he should temperately but fearlessly do whatever he had undertaken to perform.