COMMITTEE. (Hansard, 19 July 1858)

§ MR. A. SMITH

said, that the reason he objected to this measure was that its real object was quite different from that professed by its title. The subject ought to be regarded in two aspects: first, in reference to the Crown revenues; and secondly, to the great foreshore question, which had created much agitation throughout the country for many years. In his opinion the Bill was calculated to increase the great dissatisfaction that had been felt in consequence of the manner in which the claims of the Crown had been pressed in the mining districts. He some time ago moved for the production of the arbitration and the documents upon which the decision of the arbitrator was founded, and the Secretary of the Treasury of that time promised, as soon as a third point, which was still pending, was decided, they should be produced, and it was also stated that no legislation would be attempted in the meanwhile. Nevertheless the documents laid upon the table included nothing but a few letters of reference with comments, and contained none of the statutes, charters, cases, or arguments upon which Sir John Patteson had founded his award. He contended that without such information the House was not justified in confirming the arbitration of any individual, however eminent, which took away from the Crown valuable property in which the public, during the present reign, at all events, had a beneficial interest; and also that other persons, whether bodies corporate or individuals, who might have to enter into similar contests, had a right to have the benefit of knowing on what evidence the Crown claimed, particularly as that evidence had been collected at the public expense. The Bill spoke of mines between high and low-water mark; but property of a much more extensive and valuable character was involved. It was said that the right to such mines involved the right to the fundus or bed of the river or estuary, and the power of disposing of the foreshore, so that the probability was, that the minor right would be held hereafter to carry with it the major. This had been done before; and in the case of the Keyham Docks, where the public had rights of fishing and other rights, those 1751 rights had been taken by the Crown without compensation. There were many similar instances where public rights had been invaded, and indeed it was only last year that the Duchy of Cornwall derived a considerable income in this way. It was remarkable that they never heard anything about the rights of the Crown to the bed of a river, or to land between high and low-water mark on the shore of the sea, when there was anything to pay, but only when there was something to be received. If improvements were required the public had to pay for them; but if advantages were to be had, the Crown claimed them. Again, he must demur to the position that minerals in the bed of the sea belonged to the Crown, because it had been settled that anything which was found upon the surface, although under water, belonged to the finder. It also had become a serious question whether the wastes on the sea shore and in estuaries ought not to be considered in the same light as waste lands, and be treated in the same manner; for where there were wastes in a manor in which the public had certain rights, Parliament always gave a compensation when it deprived the public of their rights. Judge Bayley and his commentator Mr. Woolrych, both laid it down that the foreshore was placed in the hands of the Crown, not for its own benefit, but as a trustee for the use of the public. He was moreover inclined to think that the present Bill contemplated something more than mere mineral rights, from what he observed in the 9th clause, where he found this expression—that mines and minerals should comprehend all mines and minerals, and all quarries, veins, beds of stone, and all substrata whatsoever. Now, that, he thought, was an acknowledgment of a right which would be very prejudicial to the owners of property on the sea shore. He had taken up this question solely on public grounds. Scarcely anybody in Cornwall knew anything of the provisions of the Bill, not even legal gentlemen, and he asked the Government whether it was just to bring in such a Bill at the fag-end of the Session. There could be no damage to any one from delay, and he would therefore move the Amendment of which he had given notice.

THE SOLICITOR GENERAL

said, that he should be wanting in courtesy to the hon. Gentleman if he did not explain the history of the measure, which was simply as follows. Primâ facie, the whole of the soil, and every thing under the soil, between high and low water mark on the shores of the kingdom, belonged to the Crown; and in numerous instances that right had been granted away, or passed to individuals by adverse possession against the Crown. In the case of the Duchy of Cornwall the difficulty had been this—that very large grants were made of the soil and shore to the Prince of Wales in the time of Edward III. by charters, and great difficulty had always arisen with regard to the construction of those charters. That doubt had been further increased by innumerable dealings which had since taken place between the Crown and the Prince of Wales in the shape of statutes, other charters, and deeds of various kinds. In consequence it had in recent times become matter of extreme uncertainty whether, as regarded the soil between high and low-water mark, and even below low-water mark, in the Duchy of Cornwall, the rights to minerals was in the Crown or the Duchy. In the year 1856 it was considered desirable that these doubts should be resolved, for it was found that the existence of doubts had had the effect of putting an end to various kinds of improvement, and checking mining operations. The consequence was that the mines along the shore of Cornwall remained entirely unproductive. In this state of things Lord Cranworth, as representing the Crown under the late Government, and Mr. Pemberton Leigh, as representing the Duchy, considered that it would be unseemly for the two interests to enter into litigation in the ordinary courts of law, and they agreed to request Sir John Patteson to take the very great trouble of reading over all the documents in this case and give his award. Sir John undertook the task, in February 1856, and from that time to June, 1857, when he made his award, he paid to the subject the most unremitting attention; all the charters, grants, and other records extending over many thousands of folios, and which the hon. 1753 Gentleman, not content with results, was anxious to have laid in extenso upon the table of the House, being examined and considered by him. On reading over the award, however, it was found desirable before final arrangements were made for carrying it out, that a further question should be submitted to the arbitrator and settled. In February this year this point was also decided. The rights of the relative parties were determined—those of the Crown to the soil of the bed of the river and the minerals below, and those of the Duchy to the shore between high and low water mark and the minerals below. But as to reach the mines of the Crown it was necessary to pass through or over the property of the Duchy, Sir John Patteson suggested that an arrangement should be made for that purpose, which arrangement this Bill proposed to carry out. The hon. Member said there was no great pressure on the subject, and that it might be delayed till the next year. He could assure the hon. Member that there was very great pressure, as the mines were now remaining wholly unproductive, and besides there were scores of men who were anxious to purchase these rights or to settle disputed claims. He could also assure the hon. Member the rights of no single individual in the kingdom were affected by this Bill; it concerned the rights of the Crown and of the Duchy alone, and there was a saving clause most carefully drawn securing the rights of every person except those in dispute between the Crown or the Duchy. But then the hon. Member said that the Crown sacrificed its own rights. Now the Crown had given up no rights except such as Sir John Patteson declared it had no right to possess. The Consolidated Fund lost nothing, for, in fact, in consequence of these disputes, the mines in question had remained all along unproductive; but now those rights that had been awarded to the Crown would be made available, and their proceeds brought into the Consolidated Fund. Under these circumstances he hoped the hon. Member would not offer further opposition to the Bill.