HC Deb 05 August 1857 vol 147 cc1087-96

Order rend for resuming Adjourned Debate on Question [4th August], "That the Bill be now read a second time."

Question again proposed.

Debate resumed.


said, he hoped the House would not for one moment entertain the Motion for the second reading of this Bill. It had been brought in for the purpose of reading certain clauses in an Act of Parliament passed so recently as last year, and which had the effect of precluding Sir T. Wilson from building on Hampstead Heath. That was an Act which, as originally introduced, instead of compelling persons who wished to procure an alteration in the settlement of entailed property to have a special Act of Parliament for that purpose, enabled the Court of Chancery to deal with such settlements, and thus gave a present tenant power to grant leases and powers of sale, which he would not otherwise have been able to do without the sanction of an Act of Parliament. That Bill was first brought in 1855, and it being a great novelty in legislation, the Bill was referred to a Select Committee, who, after duly considering its provisions, thought it would be dangerous transfer such a power to the Court of Chancery, without accompanying it with certain safeguards in the interest of the public, and the very clauses which it was now sought to strike out were inserted in the Bill for that purpose. That Bill, however, was, in consequence of the advanced state of the Session, withdrawn. In 1856 it was again brought forward, and it then contained clauses which gave the public protection against the Court of Chancery dealing with settled property with closed doors, and before subordinate officers of the Lord Chancellor. The House agreed to the Bill in the shape in which it was eventually passed into a law. But the House of Lords by a small majority rejected the particular clause which prevented the Court of Chancery reviewing the decisions of Parliament. The Bill was then returned to the House of Commons, and that House, for reasons urged by the hon. and learned Attorney General, insisted on the reinsertion of the clause which the Lords had rejected. The Lords afterwards, in consideration of the reasons given by the hon. and learned Attorney General, assented to the restoration of the clause in question, and the Bill was passed at the end of the last Session. Now, however, almost before that Act had come into operation, there came down to that House not a country gentleman, but a lawyer from Enniskillen and a distinguished Gentleman (Mr. Whiteside), and, acting in concert with the hon. and learned Member for Wallingford (Mr. Malins), actually proposed to the House to give up the safeguards in question, and to repeal the clauses enacting them when the ink with which they were written was barely dry. He (Lord R. Grosvenor) hoped the House would not be guilty of stultifying its proceedings in that way, and he should therefore move, in the absence of the hon. Member for Finsbury (Mr. Cox), who had given notice of a similar Amendment, that the Bill be read a second time that day three months. He might add, that he had always argued this subject on the broad ground of public justice, and without reference to the case of Sir Thomas Wilson, whose interests were said to be involved in it, but which he submittted were in nowise prejudiced by the Act of last year.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."


said, he was sorry that his hon. and learned Friend (Mr. White-side) who had charge of the Bill, was not present, as he would have defended the Bill in a more able manner than he (Mr. Spooner) could do. His hon. and learned Friend's absence was probably owing to the irregular course which had been taken in altering the usual mode of proceeding. The noble Lord had put a gloss on this affair which he was not justified in doing. The clause in the Act to which the noble Lord had alluded was an extraordinary one, and operated most unjustly towards individuals, for that clause absolutely enacted that no person should take any benefit under the Act of 1856 who had at any time—there being no limit to the time—applied to Parliament for additional powers of dealing with his settled estates. That clause would never be acted on except with reference to the individual case of Sir Thomas Wilson, because—and he had the authority of his hon. and learned Friend (Mr. Malins) for saying so—there was no similar case. Even if there were, it was most unjust to deprive a man of the right of applying to the Court of Chancery, when his case had in any form been before Parliament. The notion that the heath would be encroached upon was absurd; it was copyhold, and could not be enclosed for the purpose without an Act of Parliament. The land to which the Bill applied was not on the heath, and was land in which Sir T. Wilson had a life estate. The Attorney General supported the Bill.


said, that as the only Member present of the Select Committee who recommended the insertion of the clause in the original Bill, he wished to observe that this Bill was an attempt to unsettle without due consideration what had been settled on mature deliberation, and by agreement between both Houses. The facts of Sir T. Wilson's case were these: he had made many applications to the House of Lords with the same object in view, and it was a mistake to say that that House had uniformly reported in favour of these private Acts. He believed, on the contrary, that on every occasion but one [Lord R. GROSVENOR: On every occasion], the Judges reported against them, and on every occasion the House of Lords refused to pass them. Immediately on the rejection of the last private Bill the present measure was brought in, obviously for the purpose of meeting this gentleman's case. He thought that the decision of the Committee which had considered this question, of the House of Commons which had affirmed that decision, and the House of Lords, which, after a solemn conference, had acquiesced in it, ought not to be passed over as nothing; and he should therefore strenuously oppose this Bill. If, however, Sir T. Wilson wanted relief, let him come for it by a private Bill, and his case would be considered fairly.


said, he thought the name of Sir T. Wilson ought not to be mixed up with the question, which ought to be settled on general principles. The name had been introduced because an impression prevailed that it was an attempt to do by a general measure what had failed when attempted by a private Bill. The clause certainly only applied in cases in which the House had decided on, in cases in which the Judges had reported against a measure; but did his hon. Friend think that in no other case had the House of Lords rejected an application for extended power of leasing by a private Bill. He put the matter upon this footing, that when the Legislature had decided upon a question, its decision ought not to be liable to be overruled be the decision of a single Judge. Upon that ground—the ground of public policy—he should vote against the Bill.


said, he thought it was extremely unjust to preclude persons from taking advantage of the Act of last year on the mere ground of their having previously made an unsuccessful application to the Legislature. What would the House think, if, under the new Divorce Bill, a person was to be told that he should not have the opportunity of taking his case before the improved tribunal which was to be set up, because he had previously applied for a divorce before another Court? Would any one say that the introduction of this clause was not for the purpose of affecting Sir Thomas Wilson's case? If the Lord Chancellor had any prejudice at ill, it would be against the application. Why should not the first Judge in the kingdom be trusted with such applications is well as others? He should, therefore, support the Bill, because he considered that, as far as possible, the rights of Owners of property should be made absolute. In that way only could society obtain that advantage from property to which it, as well as the owners, was entitled.


said, he thought that to exclude the name of Sir T. Wilson from this discussion would be to act the play of Hamlet with the part of Hamlet left out. In fact, the whole opposition to the Bill arose from Sir T. Wilson's case, against whom the whole power of Parliament had been brought to bear, merely because he had a property which the London public coveted and hoped to have upon their own terms. In order to stop the Bill, the Metropolitan Members had been subjected to the most cogent pressure from their constituents: and, if it did not pass, it would be absurd on the part of Sir T. Wilson to attempt to bring in a private Bill to relieve himself from the position in which his property stood, for there would be such an excitement in the metropolis that hon. Members would not be safe in walking about London, And if it were likely to pass, the noble Lord (Lord Robert Grosvenor) would fraternize with his old Hyde Park mobs, the Members for Marylebone would bring down their vestries, and the hon. Member for Middlesex (Mr. Hanbury) would bring down his brewers to coerce the House. The opposition to the Bill was based on the grossest injustice.


said, that all which the clause sought to be repealed did, was to prohibit a lower tribunal revising the decisions of a higher tribunal, from which certain judicial matters had been remitted.


said, he thought it very impolitic for the Metropolitan Members to press so hard on Sir T. Wilson. He wished that some arrangement could be made to secure Hampstead Heath as a place of recreation, because there would be nothing to prevent the successor of Sir T. Wilson covering the ground with buildings.


said, the Metropolitan Board of Works were anxious to make an arrangement with Sir T. Wilson; but if this Bill passed, there would be an end of all hopes that any arrangement would be made.


said, that, up to the time of passing the Act last year, whenever a will was drawn defectively, so that the tenant for life had no power of granting leases, it became necessary to apply to Parliament for an Estate Bill, which cost from £300 to £500, and sometimes a larger amount. The Bill which passed last year was the second introduced by the Government with the same object, namely, to transfer the power thus exercised by Parliament to the Court of Chancery. He gave his cordial support to that Bill; but he warned the hon. and learned Attorney General against the clause which it was now sought to repeal. The hon. and learned Attorney General persevered, and the clause became part of the law. A short time ago the hon. and learned Attorney General told him that his object in supporting the clause last year was to give the Metropolitan Board of Works an opportunity of making an arrangement with Sir T. Wilson for the purchase of Hampstead Heath, and that, as the Board did not seem inclined to make any arrangement, he would support the present Bill, which would repeal that clause. The Act of last year enabled the Court of Chancery to confer powers of leasing for agricultural, mining, and building purposes upon tenants for life, and enabled trustees to sell and exchange property, and so forth. It had been in operation a year. He had anticipated that the applications to the Court would be numerous, and the result had proved his accuracy. He did not mean to represent that there had been shoals of applications, but the applications had been very numerous, and, as far as his experience went, in every instance they had been acceded to. But a clause in the Act provided that the Act should not apply to persons who had before made application to Parliament unsuccessfully for these powers. He believed there was no other instance of the rejection of an Estate Bill, except that of Sir T. Wilson; and therefore, at the time the original clause was passed, he invited the Attorney General to have the manliness to insert Sir T. Wilson's name, and say in words that which every one knew was meant—that the Act should not apply to Sir T. Wilson. The right hon. Gentleman the Member for Oxfordshire (Mr. Henley) supported the clause lest the Court of Chancery should over-ride the House of Commons. Now, it was not that House which decided on Estate Bills, but the House of Lords, and therefore, if any decision were over-ridden, it would be the decision of the House of Lords; and yet, last year, the House of Lords rejected the clause; and, unless an arrangement had been made, the Bill would have been lost because it contained that clause. It was true that, fifteen years ago, Sir T. Wilson unsuccessfully made application to Parliament for these powers; but lapse of time altered circumstances, and what was inexpedient in 1842 might be expedient in 1857. It did not, however, rest on that argument. The application of Sir T. Wilson was rejected because it was intermixed with the idea that Sir T. Wilson was going to build on Hampstead Heath. It was as ridiculous an idea as ever entered into the mind of man. Hampstead Heath was a common. Persons in the neighbourhood had rights of common upon it, and no lord of a manor could unrestrictedly enclose or build on a common without the consent of every commoner. It would have been prejudicial to Sir T. Wilson's interest to do so, and the law as it stood prevented his doing it. The whole value of the clause in the Act last year was, that it applied to Sir T. Wilson; and the whole value of this Bill was, that it would relieve Sir T. Wilson from restrictions which could not be justified. He showed last night that the proposed buildings were not in sight of Hampstead Heath or near it, and that, if the whole space were covered with a solid mass of buildings, Hampstead Heath would be just as beautiful and just as available for riding and walking as it was at present. An unprecedented and unwarrantable exception had been introduced into a general law, which would last only during the life of a man more than 60 years of age. He therefore hoped the House would support this Bill, and redeem Parliament from the stigma of such an act of injustice.


said, he had supported the introduction of the clause in the Bill last year upon general principles. He knew nothing of Sir T. Wilson, and very little of Hampstead Heath; but he did hold that it would be outrageous to authorize the Court of Chancery to over-ride the decisions of Parliament. If Parliament had decided against any person, and that person wished to appeal against the decision, he might appeal to Parliament; but he ought not to be allowed to obtain the reversal of a decision of Parliament, by appealing to an inferior tribunal.


said, he must call upon every hon. Gentleman who had property, and every hon. Gentleman who respected the law which gave security to property, to reflect before giving his vote against this Bill. The Bill was intended to repeal a clause in a general law passed last year; a clause which he could not but consider as a deliberate and barefaced invasion of the rights of property. When that clause was originally introduced the Bill was thrown out because it had the clause in it, and the hon. and learned Attorney General, who had been induced to consent to its being put in on the second occasion (upon the representation of the metropolitan Members that it was intended to buy the property) was now ready to support the Bill for its repeal. When an important Act of Parliament passed it was usual for some member of the bar to write a little treatise upon it. A member of the bar had written a treatise on the Leases and Sales of Settled Estate Act of last Session, and in it was to be found this commentary upon Clause 21, which this Bill sought to repeal: The simple truth is, that this section, though couched in general terms, was intended to meet a single case, and had no other object than to prevent Sir T. Wilson granting leases of certain lands near Hampstead Heath, of which he is tenant for life under his father's will. The arguments by which it was endeavoured to establish the distinction between the case of Sir T. Wilson and most other applicants for similar powers appear frivolous to any unbiassed person, and would assuredly not be listened to if the property stood in North Wales instead of Hampstead. If the public wanted the property they ought to buy it, but not attempt to compel the owner to receive Jess than its value. The Metropolitan Board of Works had behaved very well in the matter. They entered into the consideration of the purchase of Hampstead Heath, and passed a Resolution that it was not their intention at present to deal for it. The Metropolitan Board had turned their attention to a park elsewhere, for which they probably thought it would be easier to raise money than for Hampstead Heath, which was already open to the public, and which it was the interest of the proprietor to keep open to the public. The able and learned person who had written the treatise on the Act, after giving an account of the transactions, went on to say:— Such is the history of this prolonged struggle of Sir T. Wilson. With respect to the assertion that by the Bill introduced attempts were made to enclose Hampstead Heath, though often repeated out of doors, it is impossible any one can maintain it who professes to have read those Bills. Sir T. Wilson complained that statements the exact contrary of the truth should be repeated. He neither wished to build nor enclose Hampstead Heath. The law prevented his meddling with it; and all the alteration of the law which he wanted was to be allowed to lay his case before the Lord Chancellor, which every one else might do except himself. The hon. Member for Lambeth (Mr. W. Williams) said the treaty for the purchase might be interrupted if this Bill passed. There was no treaty. The Metropolitan Board of Works had had the opportunity to purchase the property, and they declined purchasing it, except at a preposterous price. What more could be done? He had postponed the Bill to see whether any public body would purchase the property. They would not, and there was an end of it. Did they mean by vexatious delays to force the acceptance of ruinous terms? Was that the justice of a British House of Commons? The noble Lord at the head of the Government said last night that he was of a cheerful spirit, and not easily discomfited. He was happy to say he had the same cheerful spirit, and if the Bill were lost now and he (Mr. Whiteside) should survive this Session, which he feared was doubtful, he should persevere in demanding a hearing in the next.


said, that it was precisely on the principle of allowing the case of Sir T. Wilson to be reconsidered that the clause was carried last year by a considerable majority, and these very grounds were alleged by the Attorney General as the grounds for not agreeing in the decision of the House of Lords as to the clause. There had never been any wavering of the House on the question, and he trusted the House would adhere to its own repeated decisions.


said, that this question had been repeatedly under the consideration of the House, and upon every occasion, in his humble judgment, injustice had been done to Sir T. Wilson. Whatever form the question had taken, his opinion as to the abstract question of justice had never wavered. He had not the slightest personal acquaintance with Sir T. Wilson, but that gentleman appeared to be in the unhappy position of Naboth, and possessed property which the public coveted. He had tried to obtain by private Bill the right of dealing with that property in the manner in which all other tenants for life were now entitled by general enactments to deal with their property; but, in consequence of his land being coveted by the public that privilege had been refused to him. Now, what the public desired was free access to Hampstead Heath, and it was important that their wishes in that respect should be gratified. But Sir T. Wilson had not an unqualified right to Hampstead Heath. There were other commoners, and before he could interfere with the enjoyment of the public he must obtain either the concurrence of all the commoners, which was highly improbable, or the sanction of Parliament to an enlargement of his powers for building purposes. The truth was, however, that what he desired to deal with was, not Hampstead Heath, but other property adjacent to it, where he was restrained from exercising the usual rights of a proprietor. Last year, or the year before, a general enactment was passed extending leasing powers most advantageously to tenants for life, but a special prohibition was inserted against Sir T. Wilson. A relaxation of that prohibition was now sought, and that relaxation was to be denied because, incidentally, Sir T. Wilson would be included. Whether, therefore, he endeavoured to obtain justice through the medium of a private Bill, or whether he claimed to be put in the same position as all other tenants for life, it seemed that the House was determined to treat Sir Thomas Wilson with injustice. But the public were not to be so served. He was satisfied that if the question were put to the inhabitants of the metropolis they would say, "By all means keep Hampstead Heath open as a great source of enjoyment to us, but do not on that account commit a gross act of injustice to an individual." He had felt bound in justice to Sir T. Wilson to state his views on the question, and for the same reason he should support the Bill.

Question put, "That the word 'now' stand part of the Question."

The House divided:—Ayes 77; Noes 59: Majority 18.

Main Question put and agreed to.

Bill read 2°, and committed for Tomorrow.