HC Deb 20 April 1860 vol 157 cc2071-80

Order for Committee read.


said, this Bill contained matter, not only affecting the Duchy of Cornwall, but important public interests. He had refrained from opposing its former stages, knowing that he should have the opportunity of doing so at that time. The Bill came before the House in a mild and inviting form—that of the limitation of suits—but hon. Members would find very important clauses in the latter part of it, which went beyond the mere limitation of actions, inasmuch as they gave powers of leasing and selling certain properties which, by the Submarine Mining Bill, had been decided to be part and parcel of the soil and territorial possessions of the Duchy. This Bill was in fact the sequel to that Act. The Submarine Mining Bill had, like the present measure, been introduced at a late hour, and it was passed in a hurry. Instead of the disputed rights relating to the shore being settled by a court of law, they were settled by collusion between the Woods and Forests and the Duchy. They were referred to Sir J. Patteson, and the object of the Submarine Mining Act was to con- firm his adjudication. By Amendments made in that Bill in "another place," rights which originally referred to mines under the shore were made applicable to the surface; and the present Bill was to enable the Duchy of Cornwall to deal with those surface rights. There was no intervening body that would act fairly between individuals and the Duchy, and if the Bill should pass in its present form, it would give the Duchy the power of enforcing claims that would interfere with valuable rights of property, both of individuals as of public bodies. Such measures as the present ought to be introduced as private Bills, in order that they might be sifted by a Select Committee. Very heavy charges had already been imposed on the public through the agency of the Bill referred to. Thus the Corporation of Truro were required to pay £1,600 for about 80 acres of mudland and bed of the tidal estuary running up to that town, to enable certain harbour improvements being completed. These would cost about £17,000, so that for every £1,000 expended, the Duchy claimed £100 for property which brought them no return, and which in reality did not belong to them. In like manner a sum of £3,500 had been charged for seventy acres of the Hamoaze tidal waters to form Keyham Docks at Devonport. These claims were quite unjustifiable, especially when it is remembered how liberally the public and Parliament had behaved to the Duchy in giving £16,000 a year in compensation for the tin-tolls; as also grants of £17,000 for the erection of the Duchy Office, and £20,000 towards fitting up Marlborough House for the Prince of Wales, though the clear income he derived from his Duchy was not less thou £40,000 a year, besides which there was more than half a million of accumulated income during his minority now invested in His Royal Highness's trustees, as shown by the accounts annually laid before Parliament. Common justice requires that this Bill should be made one of bonâ fide limitations.

House in Committee.

(In the Committee).

Clause 1, agreed to.

Clause 2.


said, that before proposing the Amendment, of which he had given notice, he felt it necessary to explain to the House the circumstances under which the present Bill was introduced. It was right that the Committee should know that for some years a dispute existed between the Duchy and the Crown, as to certain rights in the foreshores and estuaries of Cornwall. The subject was referred to Sir John Patteson, who gave his award in favour of the Duchy; and in 1858 the Duchy sought to confirm that award by an Act of Parliament. Many parties in Cornwall became much alarmed—inasmuch as an adverse possession of sixty years was good as against the Crown; but it was held by some that something like 500 years of adverse possession would be necessary as against the Duchy. Both the Attorney General of the Duchy and the lute Solicitor General insisted that there was no cause for alarm; but the Members for the County of Cornwall felt it necessary to persist in their opposition; and upon this a promise was made by the Duchy to bring in a Bill to place the Duchy on the same footing as the Crown. With that promise the Members were satisfied and the Bill passed. The Bill now before the House was the one introduced to redeem that pledge. With the principle of the Bill he (Mr. Kendall) found no fault. But the question was "does the Bill virtually carry out the promise made?" Certainly, as it stood, it did not carry out that promise fully, and a sixty years' adverse possession would be valueless, if any property so held had been "in charge" to the Duchy; in fact a property might descend from generation to generation, improved in its transit by large outlays, till it became a fortune to its possessor; but he might awake one morning, find that his property was "in charge," and that he was a beggar. Perhaps the House was much at a loss to understand what the words "in charge" mean. As he (Mr. Kendall) understood, it was a simple entry on the Duchy rolls, as against the property, say of 2d. per annum only; but, perhaps, never demanded from—nay, never made known to the possessor; and still that charge silently remaining on the rolls, would be good as against any adverse possession for 500 years. This blot was hit in the Assessionable Manors Act in 1844, was admitted by Sir Robert Peel and Lord Lincoln then, and to heal it, the clause now proposed to be added was introduced into that Act. The House would, he thought, agree that he might stop there; but he would go further, and say, that as regards the estuary shores of Cornwall they were included in the Bill of 1844, and this very clause passed through the Commons; but in the Lords, those who represented the in- terests of Cornwall urged the introduction of a clause which should give a power of appeal. Those who watched the Duchy interests refused, but added that the estuaries might be left out of the Bill; and they were excepted. The question as to the estuaries being now again before the House in this Bill to settle titles, there ought not to be the slightest hesitation as to the introduction of the clause. He was aware it would be said that the Bill would put the Duchy on the same footing as the Crown, according to promise, and that what was good with respect to being "in charge," as regards the Duchy, would obtain as regards the Crown. His answer was first, that we are not aware of any property being "silently" in charge as regards the Crown; but that if there were, it was the fault of parties themselves for not ascertaining the fact, as the records are open to the public. Not so the Duchy records; all was private and secret there; no man knew how he held any property in the estuaries of Cornwall. But the main point of all was this—what was the understanding apart from all technicalities? Was it not that an adverse possession of sixty years as against the Duchy should be made a valid possession? He called on the promoters of this Bill to make good that understanding and pledge, and therefore proposed to insert, after Clause 1, the following proviso:— Provided always that Section 72 of the said Act of the 7th and 8th year of Her Majesty shall be, and the same is hereby incorporated with this Act, and shall be read as part thereof. If this Motion were agreed to, he should propose to add a clause to the effect that no land should be duly in "charge" to the Duke of Cornwall as long as any person should be in possession thereof adversely to the said Duke. He maintained that this was in accordance with the clear understanding come to when the Cornwall Submarine Mines Act was passed.

Amendment proposed,— At the end of the Clause, to add the words 'Provided always, That Section seventy-two of the said Act of the seventh and eight year of Her Majesty shall be, and the same is hereby, incorporated with this Act, and shall be read as part thereof.'


said, he had no doubt that this Bill technically enacted what had been promised, and that, in fact, the promise had been kept to the letter as it was given. But every one who took part in the previous discussion considered that sixty years' possession was to be bonâ fide a bar against all claims on the part of the Duchy, without any quibble or technicality. He hoped that even if the proposed clause were not agreed to that the Council for the Duchy would, upon consideration, insert some clause which would be tantamount to it, so as to give the assurance that sixty years quiet possession should be a bar to all suits on the part of the Duchy. It would relieve the minds of many and would really not injure the Duchy.


said, he concurred in the strongest manner in what the hon. Gentleman had stated to the House, and he would beg to ask what, in the opinion of the law officers of the Crown, would be the probable effect of this Bill, if passed, as to the limitation of title to 60 years as respects property now in charge, or that may at any time hereafter be put in charge to the Duke of Cornwall.


said, he could not accede to the proposal made by the hon. Gentleman opposite to add the proviso to the clause. The facts were so plain that there was no need for any argument. Reference had been made to the Act passed in 1858, called "The Cornwall Submarine Mines Act," and it was perfectly true that an understanding had been come to during the passage of that Bill through the House, between those who acted on behalf of His Royal Highness the Duke of Cornwall and hon. Gentlemen connected with the county. He did not himself know personally what that arrangement was precisely, but looking at the probabilities it was clear that there must be some misapprehension in supposing that there was any other arrangement than that which the Bill before the Committee proposed to carry out. Previous to the passing of the Cornwall Submarine Mines Act, questions had arisen between the Crown, on the one hand, and the Duchy of Cornwall on the other, as to the property in certain mines and minerals lying between high and low-water mark, and under estuaries and tidal rivers, and the bed of the sea on the coast of Cornwall. The decision of these questions was referred, by a binding instrument on the part of the Crown and of His Royal Highness the Duke of Cornwall properly represented, to Sir John Patteson, who decided that all mines and minerals lying between high and low-water mark, and under estuaries and tidal rivers even below low-water mark in Cornwall, were vested in His Royal Highness as part of the soil of the Duchy. But all mines and minerals below low-water mark under the open sea adjacent to that county, being no part of the soil of the Duchy, were vested in Her Majesty the Queen, in right of her Crown, even although such mines might be won by workings commenced above low-water mark, and extending below it. It was, therefore, as clear as the sun in the firmament that that award did not, in any way, affect the rights of third parties; and the Cornwall Submarine Mines Act itself, which was the result of it, distinctly specified that all other rights, titles, claims, and demands whatever, except those between the Crown and His Royal Highness, were to remain the same as previous to the passing of the Act. He was informed that the Chancellor of the Exchequer of the day, upon a representation that private individuals might be prejudiced in respect of limitation and adverse claims, yielded to the representation so far as to say that there was a case for consideration, and that if the further discussion of the matter were given up during the passing of the Cornwall Submarine Mines Bill, care would be taken at an early period of the next, namely the present, Session, that a Bill should be introduced to obviate the difficulty, by putting the position of the Duchy, in respect of the limitation of time, and the possibility of gaining an adverse title, on the same footing precisely as that of the Crown. That, he contended, was done in the present Act. The Duchy was placed by it under precisely the same conditions, as regarded adverse possession, as the Crown had been put by the 9th of Geo. III., commonly known as the Nullum Tempus Act. But if the proviso now brought forward were added, it would place the proprietors, in whose interest it was suggested, in a better position than that in which they stood previous to the passing of the Cornwall Submarine Mines Act, and give them an advantage to which they had no fair claim. Having given this history of the transaction, he hoped the House would be of opinion that it would not be right to grant that which was asked. The old saying, "You should not look a gift horse in the mouth," was applicable to this matter. The Duchy made concessions to individual proprietors, and asked of them nothing in return. It might be said that this property differed from private property, but it did not differ in a legal sense; and it would not be fair to seek to attach to it a detriment to which no other property of the Crown was subjected. For these reasons, he could not advise the Committee to accede to the Amendment. With regard to property "in charge," opportunities would be given to ascertain what this was, by reference to the archives of the Duchy, which would be considered, for this purpose, as public records.


, apologizing for occupying the attention of the House for the first time, commenced by reading an extract from a letter of the Secretary to the Duchy Council, in answer to an application made to the Council by the Committee of Landowners, for leave to inspect those very records, which showed most distinctly that they could only be allowed to inspect the records, on the condition that it "should not interfere with the progress of the Bill in its present shape." Though the Crown records therefore were public, those of the Duchy were not, and the Bill would not place the Duchy on the same footing as the Crown, without the proviso which was now sought to be inserted. To show that the question was not an unimportant one to Cornish people, he stated that whilst the sea shore was 200 miles in extent, that of the estuaries was 300 miles at the least; and it would be a strange anomaly if, whilst the former was subject to the limitation given in the Assessionable Manors Act, the latter should be allowed to remain subject to the present Bill, which did not contain the same limitation. Where was the line to be drawn between the two cases of sea-shore, and estuary shore? The Committee would see that this difference must prove to be an endless source of vexatious litigation, which he (Mr. Rogers) was quite sure that the Duchy Council could not desire. Again, it was contrary to the spirit and principle of all modern legislation that the Duchy should have the power to harass owners by the retention of a right to put lands "in charge" secretly, and without notice. The Crown had been bound by an Act of limitation 200 years ago, namely, by an Act of James I., and there was no reason why the Duchy should claim to be free in any respect from limitation of action. As to the Nullum Tempus Act to which the Solicitor General referred, he would remind the Committee that at the time of passing of the Assessionable Manors Act, the Duchy Council had conceded that the provisions of the Nullum Tempus Act were not sufficient without the clause now sought for, because the law had been altered since the 9th Geo. III., by the decision in the case of Attorney General v. Lord Eardley, on this very question of the right to put in charge. If then the Duchy conceded the clause then, why should they refuse it now? Again, with reference to the probability argued on by the Solicitor General, he could say that from the very first meeting of the Cornish Committee on the subject till now such a proviso had always been regarded by them as an essential part of a Limitation Act, and be thought that the Amendment now proposed was a most reasonable one, and one which the Council of the Duchy might well allow.


observed, that if it were designed to concede a boon to the gentlemen of Cornwall it would be as well to grant one which would be gratefully accepted by the county. If this was intended as a boon it was not one which the gentlemen of Cornwall would have much to be thankful for. It had been agreed between the officers of the Duchy and the landowners of Cornwall that there should be a limitation of the rights of the Duchy to sixty years according to the provisions of the Nullum Tempus Act. When that came to be carried out, however, it was found to be worthless, as, according to the words of the Nullum Tempus Act, the limitation did not apply in cases where the manor in which the land was situate had been kept "in charge," that is, where a return was made of the proceeds of the manor, even if the return were nil. Still, even if they failed to obtain any further concession at present, he should recommend his hon. Friends to take what was offered, and look to a future Session to wipe away what he thought was a disgraceful anomaly in the Nullum Tempus Act. He trusted their clause might be conceded; but if not, he hoped the Bill would be carried through the House because it was a step in advance, though as a concession there was utterly wanting the grace which, would render the gift palatable to the recipients.


would add nothing to the statements made by other honourable Members, but would merely join with them in expressing the regret which he felt, and which he believed would be felt from one end of Cornwall to the other, at the disappointment of the hopes which the Cornish proprietors in question had certainly entertained, and which he thought that they were justified in entertaining, that this Bill would be really one for quieting titles, instead of being full of the seeds of future litigation, and would give them the bôna fide power of acquiring, by sixty years' undisturbed possession, a substantial right of ownership over property which they had inherited from their ancestors; which hopes appeared now likely to be disappointed by a technicality of law, easily misunderstood, but the probable effect of which appeared but too manifest.


said, he could not agree with the views of the hon. Member for Truro (Mr. Montague Smith), though he had stated them with very great ability. So far as he was able to form an opinion, and without entering upon the new points that had been raised, he felt bound to say that the Bill faithfully carried out the engagements entered into between the Government of the day and the gentlemen of Cornwall. It was promised that the proprietors under the Duchy should be placed in the same position as those who held under the Crown, and that was faithfully carried out in this Bill.


said the hardships pointed out as arising from the words of the Nullum Tempus Act were precisely the hardships that applied to persons holding under the Crown, and that the understanding arrived at was fairly carried out in the Bill.


observed that the landowners always understood that the Duchy would offer them a fair bonâ fide limitation without reserve, but the present limitation was expressly coupled with a reserve which destroyed their title in many cases.


complained of the conduct of "somebody" towards parties who had expended large sums of money on property, which they were now told was not their own. If that were justice, he must confess himself ignorant of its first principles. He denied that the Bill fairly carried out the agreement which had been entered into.


said, that though he did not think the Bill worth a fraction without the clause, yet as he was aware that the Government had resolved to withdraw the Bill if the clause be carried, and that there were certain parties in the county who thought that the Bill as it stood was of some small value, he could not take on himself the responsibility of risking the Bill by a division, and therefore withdrew his clause.


said, he felt it his duty to persist in taking the sense of the Committee upon the subject.

Question put, "That those words be there added."

The House divided:—Ayes 17; Noes 69: Majority 52.

Clause agreed to; as were the remaining clauses.

House resumed.

Bill reported, as amended.