HC Deb 24 April 1860 vol 158 cc25-37

MR. AUGUSTUS SMITH moved for a Select Committee to inquire into the rights of the Crown as connected with the foreshores, tidal rivers, estuaries, and bed of the sea round the coast of the United Kingdom, and the manner in which the Woods and Forests were dealing with the same. He said he had brought this question before the House on several previous occasions, both in the last and present Session, but had somehow always found his exertions rendered nugatory by a count out. This was more especially the case before the Easter recess. Such a result would have naturally made him draw the conclusion that the question was one of little or no consequence, but as on the last occasion the Second Heading of the Re-form Bill stood also for discussion, and the count out was the act of Government, the inference he arrived at must be either that the Reform Bill was of very little or his own Motion of very great importance. As applied to both questions, he believed this to be a correct description, and therefore again ventured to obtrude this Motion again on the attention of the House. If, however, it was as insignificant as some supposed, he felt it was utterly out of his power to give it an importance which did not belong to it—to raise a mountain from a mole-hill—if, on the other hand, it involved such great interests as he believed, and embraced weighty questions of law, his embarrassment was not less enhanced at the heavy responsibility he had undertaken in attempting to deal with a subject to which it might be beyond his power to do justice, and therefore prayed the House kindly to extend him their indulgence while he attempted to unravel a matter necessarily involved in somewhat dry details and legal technicalities. A few weeks ago he presented a petition from a gentleman residing in Carmarthenshire, in Wales, named Rees, a magistrate of that county, who complained that he had been for many years exposed to a vexatious and expensive litigation with the Commissioners of Woods and Forests in consequence of claims which had been made by the Commissioners to the foreshores. He said that he and his ancestors had had the advantage of this property for many generations without being interfered with in any way; and in 1838 he granted a lease to a company for the raising of coal upon this land. The land might be described as freehold property, and it consisted principally of marsh land adjoining the sea. About the year 1845 the Commissioners of Woods and Forests claimed this land as the property of the Crown, and they called upon him to point out the line and boundary of his property. Now he must here point out what an unreasonable demand this was on the part of the Woods and Forests. They had never been heard of before as claiming to be neighbours and to have an interest in property bordering on Mr. Rees's estate, and when they suddenly appeared in that character it was surely their part to name the boundary to which they claimed to be adverse possessors. Mr. Rees declined doing what was required, and the Commissioners appointed a Mr. Sop- with, a surveyor, to set out what this line was. He laid down a line which Mr. Rees could not admit, and in consequence litigation was commenced, and had been going on ever since. In 1854 a decree was pronounced by Lord Cranworth which settled that the boundary line of the foreshores was to be the medium rise of the tides. The litigation, however, still continued, but he would not trouble the House with the various phases which the suit assumed, through other parties being joined in the same proceedings; suffice it to say, Mr. Rendel, the Civil Engineer, and on his death, Mr. Bidder, of Great George Street, Westminster, was appointed by the consent of all parties to set out the line by actual survey. This was given in by Mr. Bidder in 1858, fixing a line considerably seaward to that claimed by the Woods and Forests on Mr. Sopwith's Report. The Commissioners have declined to abide by Mr. Bidder's survey, and are still harassing Mr. Rees by further legal proceedings. Other landlords had compromised the matter, and Mr. Bees stated that if he had known the trouble and expense, he would have done so too. In these proceedings another step has been taken, since Mr. Rees's petition was presented, to which he particularly called the attention of the House. It was only last week the case again came on before the Chief Clerk of the Master of the Rolls, a Mr. Whiting. Mr. Watson, the solicitor for the Woods and Forests, objected to Mr. Bidder's line, on the ground that it ought to be fixed by some tidal observations which had for some years back been kept at the adjoining port of Llanelly. This Mr. Bees said he had no evidence ready to show ought not to be accepted as the guide, and asked for delay that he might be able to prove this. Mr. Watson pressed, however, for an immediate decision, and on the ground that Mr. Rees had presented a petition to the House of Commons complaining of the delays he had been subjected to. Now it was quite monstrous that any official of a Government Department should attempt thus to press hard on a subject, because he had done that which he had an undoubted right to do, to petition the House of Commons on the persecution he had endured in this protracted suit lasting fifteen years. The case of Mr. Bees alone was one of such hardships, that, in his opinion, it justified the appointment of the Committee. This interference with shore property commenced when Lord Morpeth became Chief Com- missioner of Woods and Forests, and had been continued with vigour ever since. Between the years 1834–57, nineteen very important suits were instituted, but they were most of them compromised, so that the questions which they involved were not fully tried out. The most important of these were the suits connected with the Mersey, and that in respect of the Thames, in which he thought the City of London were very greatly to blame in not having fought that contest thoroughly out. The Woods and Forests, however, were enabled, by the apprehension of legal proceedings which those actions excited, to make a great number of bargains. In the ten years 1830–9 there were only four sales; in the next ten years there were eighteen; but in the seven years 1850–6 there were were no fewer than 117; making a total of 139. In 1858 there were thirty, and in 1859 there were thirty-nine sales, for which upwards of £170,000 was received. There had also been a great and an increasing number of leases for foreshores. Now, how was this money disposed of? It was entered into the capital account of the Crown lands, and went wholly to enhance the ultimate value of that property which the public only hold, as it is now the fashion to assert, during the life of the present Sovereign. Such payments, however, were almost entirely on account of interests given up by the public, which, like those of commoners in a Manor, are much larger than those of any Seignorial right that might vest in the Crown. A Return lately laid on the Table showed the interest of a mere Lord of a Manor not to exceed a 14th or an 18th in the waste, but in the sales of shores the Crown appropriated to itself the whole proceeds. It was only of late that these pretensions had boon put forward, for in former times it was always believed that the foreshores were vested in the Crown for the benefit of the public—that the Crown was, in fact, the trustee for its subjects. The language, however, now used claimed such as being part and parcel of the soil and territorial possessions of the Crown, in all respects the same as any other of the landed estates under the Woods and Forests. This doctrine is put forth in their Annual Be-ports, but still more strongly in certain documents laid on the Table at the close of last Session. These embrace a long correspondence relating to the Submarine Telegraph Company, well worthy on many accounts the attention of the House, as showing how any party or company may be driven from pillar to post through the interference of different Government offices, and accordingly we have here first the Foreign Office, then the Admiralty, the Board of Trade, the Treasury, and more especially the Woods and Forests, all evoked to bully this company. Mr. Gore, one of the Commissioners of Woods and Forests uses this language— "Primâ facie the shores of the sea, between ordinary high and low-water marks, and of all navigable rivers as far as the tide flows belong to the Crown. … . With respect to the bed of the sea from low-water mark, I apprehend the Crown title is indisputable, and that it cannot lawfully be permanently occupied by a subject without licence from the Crown. He would ask whether even with licence such occupation could be given? Mr. Gore goes on to say— As an illustration of the Crown's right to the bed of the sea, I beg leave to enclose "—what! one would suppose some ancient authority or statute or charter, but—"a copy of the Cornwall Submarine Mines Act, of last Session, which declares. … .Mines below low-water mark belong to Her Majesty, as part of the soil and territorial possessions of the Crown. And to the same effect the Atlantic Telegraph of 1857 is also quoted. He had objected to the former Act when passing through this House on the ground that its provisions, though apparently only applying to Cornwall, would be found to affect similar interests throughout the kingdom, and such prophecy has thus been verified. In a subsequent letter Mr. Gore states that the Crown lands by Act 10 Geo. 4, c. 50, are placed under the management of Commissioners of Woods, thus asserting the identity of the foreshores as part of the same. He further instanced the Durham Palatinate Act, passed two years since, where this description of property in the bed of the sea, and sea-shores, was stated to be part of the Jura Regalia vested in the Bishop, and not as forming a portion of the soil and territorial possessions belonging to the sea, though in the subsequent part of the same Act they were transferred and declared to be in future part of the soil and territorial possessions of the Crown.

Now in this rests the main question as to whether such is their true character and nature, and which, looking to all ancient authority and mode of dealing with this property, he altogether denied. Without going back to what is recorded in Magna Charta, or Bracton, or various ancient statutes, he would draw attention to Cal- lis's work on Sewers in the time of Elizabeth. Here he would remark as to the meaning of that word sewer, which was very different to its more modern use. It really means sea-ware or sea-work, and the Commissions of Sewers were appointed under various Acts of Parliament from a very early period expressly to look to the repair and preservation of the sea-shores, which, had they been considered as part of the Crown Lands, would not have been necessary, as it would have been the duty of the officers having charge of such to have attended to these works. The shores were then also treated as highways. An Act passed in the 27th year of Elizabeth, providing for the repair of the sea-banks in the county of Norfolk, showed beyond all doubt that in those times the seashore was considered in the light of a highway, the repair of which devolved on the same authorities who were charged with the maintenance of the ordinary highways. Again, an Act passed in the 31st of Elizabeth, relating to the building of cottages, and providing that no cottage or house was to be built, unless with four acres of land attached to it, contained the curious exception that the Act was not to extend to any cottage erected within a mile of the sea, and giving power to the Admiralty—not any officers of the Crown Lands—to remove such. He quoted the opinion of Lord Hale, who compared foreshores to the waste of a manor; and he also cited Mr. Chitty's book on the prerogatives of the Crown, published some thirty years ago, and that of Mr. Phear, of recent date, to show that they were at variance with the pretensions of the Woods and Forests on the question under consideration. Certainly, the Crown had no rights which would justify their late endeavours to invite and almost compel persons in some instances to buy up these interests in the shores, as illustrated by the advertisements published for some months in reference to Hull citadel, and the foreshore of twenty-six acres adjoining. What right and object can the Woods Commissioners have to put up for sale property in which the public interests are so largely concerned without their previous concurrence? What, therefore, he wished to learn was, whether these foreshores were part and parcel of the possessions of the Crown; what was the interest of the public in this property; and what rights the Commissioners of Woods and Forests had over it? He hoped he should have these questions fairly answered by the Attorney General, and that he should not be met, as he was on a former occasion, by an attack of a personal character. The learned Attorney General had thought fit on that occasion to allude to him (Mr. A. Smith) as holding some shore right—the facts being these: that whereas now all wrecks were taken possessions of by the officers of Customs, those officers had thought fit to make use of his property for the purpose of depositing wreck thereon, which practice he had complained of. He did not know whether the Attorney General had ever been on the seashore, but if he had, he must surely have known that the foreshore—that portion of the seashore over which the tide ebbs and flows twice in twenty-four hours —was not precisely a spot that would be selected for depositing wreck upon. He begged to thank the House for the patience with which they had listened to so dull a subject.

Motion made, and Question proposed,— That a Select Committee be appointed to inquire into the rights of the Crown as connected with the Foreshores, Tidal Rivers. Estuaries, and Bed of the Sea round the Coasts of the United Kingdom, and the manner in which the Commissioners of Woods and Forests are dealing with the same.

MR. MORRIS,

as representing a part of the county (Carmarthen) where the lands in question had been on several occasions the subject of legal proceedings, begged to second the Motion.

THE ATTORNEY GENERAL

said, he was surprised to hear the hon. Member for Truro accuse the Government of having on a former occasion, when he brought forward this subject, been instrumental in counting out the House. In this the hon. Member was entirely mistaken, and did the Government great injustice, but himself still greater, for he believed the House was counted out solely by the hon. Member's unassisted efforts. The Government regretted that the question was not then disposed of; and he was glad that it had been again brought forward, as heartburnings appeared to have arisen which it would be desirable to have at once removed. The hon. Gentleman had referred to the case of Mr. Rees, who had presented a petition to the House. He (the Attorney General) regretted that such a Petition should have been brought forward while the case was the subject of legal discussion. It had been heard before the Master of the Rolls, and was now awaiting decision. It was an unseemly thing to make the House the arena for the discussion of a case which was at the time sub judice. But there was another and most conclusive answer to the hon. Gentleman. In December, 1837, Mr. Rees, for his own advantage, thought fit to demise to a company the coal mines under his property; and in doing so he included mines belonging to the Crown, and which he knew belonged to the Crown, for in May 1837, he addressed the Commissioners of Woods and Forests, requesting them to grant him a lease of the property he afterwards took upon himself to demise. In that application he stated that he was owner of lands adjoining the seashore; that he was going to work a seam of coals, and that he was desirous of working also the seams under the sand and foreshores. He, therefore, asked whether the Crown had already granted a demise of its mines, and if not, whether the Crown would grant him the right to work the coals under the shores. At that time it was impossible to give Mr. Rees a positive answer, because the extent of the rights of the Crown — in other words, what was the line of high-water mark on this part of the coast—was unknown. In 1845 it was found that his lessees were working the coal in the Crown land; proceedings were then taken against him, but he was informed that the extent of the Crown property had been ascertained, and an offer was made, based on the admission by him of that which the Crown claimed, and which he was then distinctly told comprised so much of the sea beach as lay below the mesne high-water mark. The offer was not accepted, and it was the duty of the Commissioners to vindicate their right. The question was heard at considerable length before the Lord Chancellor, assisted by two of the Judges, and the principle laid down by them was in exact conformity with the rule which the Commissioners had previously adopted, and with the offer made by them. Mr. Rees, therefore, had no one to thank but himself. If he had accepted the offer of the Crown, he might have been in possession of a valuable property. But he had taken upon himself to deal with the question; he had failed; and he might thank his good fortune that the Act of Parliament, enabling the Crown to recover costs, was not retrospective, otherwise, in addition to being compelled to account for the property of the Crown which had been illegally taken by his lessee, he would have had to pay the costs of the suit. The claim, therefore, ought not to have been brought before the House. It was a claim obstinately and ignorantly brought forward, after the Crown had recovered judgment against him.

MR. AUGUSTUS SMITH

In his petition Mr. Rees says, all that he granted was as far as the high-water mark. He did not grant anything below the high-water mark.

THE ATTORNEY GENERAL

The question was, what was the line of high-water mark. The shore in that part of the country was excessively flat, for he the (Attorney General) had been by the sea side; and the shore being exceedingly flat, it was, of course, a question of very great importance, what was the line of high-water mark. Mr. Rees contended that it was to be determined by the neap tide, whereas the Crown contended that the average of the ordinary tides throughout the year, that is, the average between the spring and the neap tides, should be the line. A very considerable extent of land, in some cases running even as far as a mile or a mile and a half, was the difference between the high-water mark claimed by one and the high-water mark claimed by the other side. Mr. Rees took upon himself to say that the line he had laid down was the right line, and he granted a lease accordingly; whereas it turned out that the line of high water was far higher up inland, and that therefore the minerals in the intervening space belonged to the Crown. Another case had just been alluded to, namely, the case of the Submarine Telegraph Company, but the facts had not been stated. In every case where a great public benefit was involved the Commissioners of Woods and Forests acted in a liberal spirit, and made the rights of the Crown, of which they were the trustees for the benefit of the public, subservient to the interests of the public. Accordingly the Submarine Telegraph Company obtained the use of the seashore for laying their wires. The question at issue really was whether a private individual was to take land, the rents and profits of which belong to the Consolidated Fund, and to appropriate it. He trusted that the House would be of opinion that the complaint was not only ill-timed but was utterly and absolutely unfounded. A great principle was involved in the Motion, for the House was asked to grant a Committee to "inquire into the rights of the Crown as connected with the foreshores, tidal rivers, estuaries, and bed of the sea round the coasts of the United Kingdom." Why was the House asked to examine the rights of the Crown? The rights of the Crown were as much a settled thing as the rights of the subject. The House would only inquire into any right of the Crown when there was any doubt or uncertainty about it, or when it intended to modify the enjoyment of that right. Did the hon. Member propose to do anything so unconstitutional as to alter the right of the Crown. That right was the foundation of private right, and the House would not make a private right the subject of inquiry. The other part of the Motion, the manner in which the Woods and Forests had discharged their duty, came, he admitted, within the scope of Parliamentary inquiry. The rights of the Crown had been placed under charge of the Commissioners, for the benefit of the public, during the life of the Sovereign, in consideration of the grant of the Civil List; and if any case were established which would show that they had discharged their trust in an improper manner, it would be the proper subject for a Parliamentary inquiry. But from the Reports before the House it was apparent that the Commissioners had been faithful public servants, and had been eminently successful in the attempts they had made to recover the property of the Crown for the benefit of the public. He held in his hand a Return which extended to the close of the year 1857, from which it appeared that during the twenty-seven years preceding that date, twenty-nine suits had been instituted on the part of the Crown to recover property—partly mineral—which belonged to the Crown. Of those twenty-nine suits twenty-two had terminated successfully or had been settled amicably. Three were now pending, two were discontinued, and in two suits only had there been adverse decisions. The value of the property recovered was about £190,000, and in consequence of their rights being established the Commissioners had been enabled to make other grants of land amounting to about £130,000, so that the public had been directly benefited by these suits to the extent of about £224,000, less £15,000 costs incurred. Some of those suits had been instituted at the instance of individual proprietors of land, who appealed to the Commissioners of Woods and Forests to decide the disputes arising on estates bordering on the seashore. He trusted that the House would be of opinion that the Commissioners had been faithful stewards for the country. In every single case brought before the attention of the Commissioner they had consulted the law officers of the Crown, and had acted under their advice. The hon. Member had embarrassed his mind by the perusal of law books full of technical language, which he did not apparently comprehend, and was entirely mistaken in his view of the right of property in the foreshores, He had entered into a lengthened argument, which, if it led to anything, led to this: that all our great lawyers for the last three centuries were totally ignorant, totally uninformed, as to the title of the Crown to the foreshore and the beds of our navigable rivers and estuaries; and that what they called the property of the Crown was, in point of fact, the property of the landowners. A greater mistake could not be made. The seashore was always held to be vested in the Crown. It was a part of the landed property of the Crown, that had never been granted by the Crown; and whatever property was not granted by the Crown still remained in the Crown. The public at the same time had certain rights; they had a right, for instance, to embark and disembark on the shore, and they had a right to demand that it be left free for the general purposes of navigation; and accordingly it was not competent for the Crown to fence off any portion of the seashore to the general detriment of the public. Whatever was done in that way amounted to a public nuisance, which could be suppressed at once by an indictment or information at the suit of the Attorney General. But whatever might be taken from the seashore, or from underneath the shore, consistently with the full enjoyment on the part of the public of the rights he had described, remained as part of the property of the Crown. When a railway company or any other body of private individuals were desirous of obtaining a portion of the seashore for purposes of private speculation it was the duty of the trustees of the Crown to take care that the rights of the public were not infringed, and that the company paid for as much of the shore as they were allowed to take possession of. But when a portion of the seashore was wanted for any public work, for the general benefit of the country, and not for the profit of private speculators, it was in- cumbent on the Commissioners, and it was their invariable practice to grant the portion of the shore required for that purpose upon liberal terms. Over the seashore the Crown had, through the Admiralty, the rights of jurisdiction, but could only enjoy its right of property therein to an extent that did not interfere with the privileges of the public. From the earliest times that had been the principle of the law, and he did not think the House of Commons would now be disposed to alter it. The hon. Member appeared to retain a somewhat irritating recollection of the view he had expressed as Attorney General last Session. When attacks were made upon the conduct of the Commissioners, and the question was raised whether the property intrusted to their charge could be more usefully vested in any other body of men, it became both proper and desirable to contrast the conduct of the Commissioners with that of private individuals who had obtained leases of the foreshores. And he believed the opinion which the House would most readily express on this matter was that the Commissioners ought to abstain from granting leases of the foreshores to private individuals, who employed the rights of ownership in such a manner that if the Commissioners had done the same they would have been justly exposed to the observations of the hon. Member. It was for the purpose of instituting that contrast, and not of casting any personal reflections on the hon. Gentleman that he adverted to his being in the habit of claiming a right over the foreshores of the Scilly Isles.

MR. AUGUSTUS SMITH

said, he expressly stated that the charges were not made in regard to the foreshore, but in regard to ground far above the high-water mark.

THE ATTORNEY GENERAL

said, he was sorry if he had misrepresented the hon. Gentleman's claim. From his Bill of charges it appeared that if any person happened to drop an umbrella, or any trifling article, upon the sands between high and low-water mark, he would be charged 6d. or 1s. by the agent of the hon. Gentleman for the lodgment of the article. And the hon. Gentleman in his letters to the Board of Trade, when he was remonstrated with, insisted upon his right to do so. It was unfortunate, he thought, that the hon. Gentleman had not, before bringing forward his Motion, been more accurately informed as to the rights of the Crown, and as to the suits which had redounded so greatly to the benefit of the public and the credit of the Commissioners. It was also to be regretted that he had thought fit to bring before the House what formed the subject of a pending suit. He thought the House would agree with him in thinking that the hon. Gentleman had no reason to complain either of the conduct of the Commissioners or of the law under which they acted.

SIR FRANCIS GOLDSMID

said, that, having been counsel in a similar case, he did not think the Attorney General had quite fairly stated the claims of the Crown in the suit with Rees. Instead of claiming from the ordinary high-water mark, the Crown claimed from the ordinary high-water mark at spring tides. As usually happened in doubtful cases, each party claimed rather more than it was able to make good.

Question put.

House divided:—Ayes 117; Noes 134: Majority 17.