HC Deb 21 February 1865 vol 177 cc502-15

in rising to move for a Select Committee to inquire into the best means of preserving for the public use the Forests, Commons, and Open Spaces in and around the metropolis, said, that the question of preserving for public use our forests and common lands around the metropolis had been so often under the consideration of the House that it would not be necessary for him to occupy more than a few minutes in asking for a Select Committee. The House had already upon more than one occasion given a very decided opinion upon this question. In 1863, upon the Motion of the hon. Member for Maldon (Mr. Peacocke), the House passed a Resolution for an Address to Her Majesty calling upon her to exercise the rights which she still possessed with regard to Epping Forest. At the close of the last Session the House, by a decided majority, expressed its opinion that it was the duty of the Government or of some other body to provide for the preservation of the commons or open spaces around the metropolis. There was this one very remarkable fact in connection with these debates, that though there was naturally a considerable divergence of opinion as to the policy of the course then suggested, there seemed to be but one opinion as to the urgent necessity of a Parliamentary inquiry into the whole question. Indeed, it seemed to be one of those questions which did not admit of delay, and the difficulties of which grew in proportion as Parliament refrained from a full investigation:—indeed, if they might judge the future from the past, there seemed to be little doubt that unless Parliament adopted some course calculated to lead to a practical solution of the question, the question would settle itself, or rather there would be few commons and open spaces near the metropolis which would not be disposed of for purposes other than those which Parliament believed to be their legitimate use. If any hon. Member doubted the necessity of inquiry, he would remind him that there had been introduced this Session a Bill which proposed to deal with one of the most important and valuable of the commons around the metropolis—he alluded to Wimbledon Common. He wished to express no opinion upon that Bill, but merely to say that it furnished a strong reason for inquiry. In proposing the appointment of this Committee he was but following out the opinions and wishes the House had already expressed. In order to prevent misapprehension, he would say that it was not his desire for one moment to propose this inquiry with a view to enclosing these open spaces and commons and keeping them as neat and trimly laid out parks. His desire was rather this—that the commons should be preserved in their present wild state, which he believed to be their greatest charm, and that those by whom these commons had been specially used should still have them for that free, uncontrolled, and, he might say, boisterous enjoyment which it was impossible for them to have in parks under restrictions. The metropolis was well provided with parks. Besides the older parks, there were now Battersea and Victoria Parks, a park was now in the course of formation in Finsbury, and in a few weeks a new park would be commenced at Bermondsey. What was wanted was to preserve the commons around the metropolis with all their present irregularities. There was one point in connection with this subject to which he was anxious to call attention, and it was this—that the expense of the maintenance of the enclosed parks involved a prodigious annual outlay of public money. Last year a sum exceeding £6,000 was voted for the maintenance of Battersea Park, which was only 200 acres in extent, and £6,000 was also voted for Victoria Park, which was only 300 acres. Hon. Gentlemen would see that, while the expense for maintaining the open spaces, which gave the greatest enjoyment, might be reckoned by hundreds, that for preserving the parks must be reckoned by thousands. It had been said that those who sought to preserve these open spaces wished to obtain great public advantages by the confiscation of private rights. But no such wish was entertained, and at all events the House of Commons would be the last to favour a design of this sort. He wished to say in the strongest manner that it was his desire to respect and not to invade the rights of property, and to give full value for any interests which were trenched upon. But other than private rights were concerned in this question, public rights made sacred by the usage of centuries were involved; and he hoped the result of the Committee would be some suggestion or measure which would on the one hand preserve for the public the enjoyment of those open spaces, and on the other to reserve without encroachment all private rights. The hon. Member then moved that a Select Committee be appointed.


said, he rose to second the Motion. The question was one connected with a movement now going on the importance of which was scarcely recognized by the public at large or the House. It was intended to postpone the Bill for the enclosure of Wimbledon Common for a month to await the result of this Committee, and if the Committee were appointed he hoped they would get such information as would prevent so great a public outrage as the enclosure of that common being perpetrated. It was said that the noble Lord who was interested in the Bill (Earl Spencer), was only influenced by a desire to do a public benefit; but Members of the House had an opportunity of judging for themselves of the public spirit of the operation. If they would take a ride from Battersea Park to Wands worth Common they would see how the latter place was being appropriated by the noble Lord. He did not hesitate to say that in the appropriation of Wands worth Common there was not a public right which had not been sacrificed, and contrary as he thought, to law. The only roadway from north to south was so narrow that foot-passengers were in danger of being run over; a workhouse and a burial ground had been planted on the common, and a large space of ground was occupied by a railway company, and apparently for no earthly purpose. In addition, all kinds of incongruous buildings—four-roomed, six-roomed, or indeed any kind were springing up; and all this upon land which a few years ago was public property. This was how the noble Lord showed his public spirit; and what was done on Wands worth Common he now wished to extend to Wimbledon. He wished that before the Bill was passed for this enclosure, the Committee now proposed would have reported on the whole subject.

Moved, That a Select Committee be appointed "to inquire into the best means of preserving for the public use the Forests, Commons, and Open Spaces in and around the Metropolis."—(Mr. Doulton.)


said, that being one of the Members who had charge of the Bill which had been stigmatized by the last speaker as a public outrage, he could not remain silent. He desired to say that whatever might be thought of the enclosure of Wimbledon Common it was certain that Earl Spencer proposed to dedicate to the public, rights which were believed by his legal adviser to he of very considerable extent; and the noble Lord was surely perpetrating no public outrage when he took the only constitutional way of bringing the subject of that gift before the public. Lord Spencer's legal position was such that he need not have applied to this House for power to do that which the Enclosure Bill proposed to do. However that might be, and whatever his rights might be, his Lordship was quite willing—nay, desired—that the whole question should be referred to the Committee which had just been moved for, so that it might there be discussed. Lord Spencer did not shrink from inquiry—he courted it; and if upon consideration the Committee objected to the enclosure the noble Lord would no doubt be prepared to consider whether he should not give up the power of enclosure. At any rate, this and other questions were to be referred to the Committee and to be discussed by them, and meanwhile he protested against the language of the hon. Gentleman, as to whom the Mover of this Resolution might well say, "Save me from my friends!" Having postponed the Wimbledon Common Bill in order that the Committee might decide upon it, he could only express his hope that the House would accede to the Motion.


said, he did not know anything about Wands worth Common, but could not for a moment agree to what had been said by the hon. Member for Southampton (Mr. Alderman Rose) as to Wimbledon. It was hardly necessary to defend Earl Spencer's character, for everyone who knew him would feel that what had been said of him by the hon. Member was perfectly unjust. He had himself property at Putney, and with other owners of property was opposed to the enclosure of Wimbledon Common; but, however they might differ from Lord Spencer as to the mode of carrying out his views, no one could have acted more candidly, fairly, and liberally. He (Colonel North) was against the enclosure of the common, but then that was only his individual opinion. The public had for years enjoyed Wimbledon Common in all its natural wildness, and he thought it should be continued in that state rather than be converted into an ornamental park. Earl Spencer said, that if when the subject came before the Committee the feeling there was adverse to enclosure he would reconsider the subject; and he was sure his Lordship would carry out this promise.


said, that if he had expressed his opinions in other than the ordinary terms allowed in debate he would readily apoligize. He felt strongly on the subject, and if he had used unparliamentary terms he would willingly withdraw them.


said, that before the Committee was appointed the House ought clearly to understand whether this was only the beginning of a further charge upon the Consolidated Fund. They all remembered how that Fund had become chargeable in connection with matters of science and art. No less a sum than £60,000 had been spent out of the Imperial exchequer for Battersea Park; and though it was said that the park would pay itself by the sale of surplus property, he hoped the House would never sanction the Government becoming speculators in building land. He trusted it would be clearly understood that whatever was done by the Committee or upon their Report, there would be no demand for money from the Consolidated Fund.


said, he would support this Motion as he had supported a similar one last year, which was carried by a large majority, but it being late in the Session there was no time to appoint a Committee. The duties of the Committee now to be appointed would therefore be simplified inasmuch as they would not have to inquire whether these spaces should be kept open, but where the money for keeping them open was to come from. His hon. Friend was correct in assuming this, and deprecated any grant from the public purse for the purpose. Now, he did not agree with this view, and was sorry that his hon. Friend did not feel more for the capital of his country. Hon. Members came up to town from their constituencies and performed their duties here in the most exemplary manner; but when they went down to their constituents they often forgot the enlarged views which they had imbibed here, and adopted the contracted views which were enjoyed by some persons in the country. So it was with his hon. Friend. His hon. Friend represented a constituency far away from the metropolis. No man was more constant in gracing the House with his presence, and when in London no one was more generous or more delighted to enjoy the parks which were the ornaments of the metropolis; but when in the country he forgot his duty to the capital of his country, and he adopted the views of the hon. Member for West Norfolk (Mr. Bentinck), and objected to a single shilling of Imperial money being laid out on London. Nevertheless, it was necessary to do something more for the metropolis, to which everybody came, than for every small town out of London. What had been done with respect to Battersea Park? It certainly was beautifully laid out, but a toll was put on Chelsea Bridge, and the consequence was that the land which surrounded the park, and which otherwise might be let to advantage, could not be let at all now. No persons would take houses situated in such a place that they could not go from it into the land of the living on the northern bank of the river without paying toll, except on a Sunday, Christmas Day, and Good Friday. The hon. Member for West Norfolk was very effective on a former occasion in objecting to the toll being taken off Chelsea Bridge, on the principle that the House had no right to spend anything upon the metropolis; but there would have been no necessity to spend public money on Battersea Park if the toll had been taken off Chelsea Bridge, for the land in the neighbourhood, belonging to Government, would then have become so valuable that the proceeds would have defrayed all the expense. He would not now go into the question of Wimbledon Common further than to say that he confessed to having a strong feeling against any fence tending to restrict the enjoyment of the people being set up in open spaces; but, as far as he could collect, he understood that the noble Lord who proposed to lay out Wimbledon Common would be ready to be guided by the decision of the Committee now moved for, whatever that decision might be. He trusted that Clapham Common would always be preserved in its present state. Wands worth Common, unfortunately, had been converted into a most detestable place, but not entirely by the noble Lord. A railway went through it, and he never understood that a railway cutting could possibly improve any spot. A large school and prison were also there; but those were more public establishments than anything else, and he did not think that the noble Lord could be taken to task entirely for them, though, no doubt, he gave his consent to their construction. The Committee now moved for was proposed with the view of protecting the rights of the public against invasion, and if it should be able to lay down any clear and just principles with regard to these common lands to be embodied in a Bill, then, so far from the time of the Gentlemen serving on it being thrown away, a great advantage would be conferred upon the public.


said, he did not object to any amount of money being spent on the decoration of the metropolis, but he contended that it ought not to come out of the Imperial purse. He was at a loss to conceive on what possible ground of fairness and equity a claim could be made by the metropolis upon the public purse for its improvement and adornment, when if any other city in the country made a similar claim it would be hooted and scorned. He hoped that as long as the House of Commons exercised a control over that purse it would oppose itself to these rapacious proceedings.


inquired to what distance from the metropolis would the proposed inquiry apply.


Fifteen miles.


said, that last year, when the hon. Member for Lambeth (Mr. Doulton) brought this subject before the House, he suggested that he should move for a Select Committee, and he was glad he had acted upon that suggestion. The subject was one of great interest and importance to all residing in London, but a great deal of information respecting it was required before it could be ripe for legislation, and he believed that the details which the Committee would receive would be valuable. At present London was peculiarly fortunate, both as to the parks which were chiefly in the centre of it, and as to the large open spaces which surrounded it on all sides. There were within the limits of the metropolis no less than twenty-eight commons and greens open freely to the public. These were becoming every day of greater importance to the people, because the railways enabled great numbers of the poorest as well as the richer classes to enjoy them; while, on the other hand, the rapid and enormous growth of the City had a constant tendency to destroy them. Saffron Hill, Rosemary Lane, Mayfair, and other places whose pleasant names recalled the memory of agreeable walks, had long since been engulphed, and the progress of building naturally presented a temptation to convert the rights in commons into money. He thought that the private rights over such places were worth being bought by a wealthy city like this, and preserved to the people. He agreed that what were wanted in the suburbs of London were not so much ornamental parks as open spaces in their natural beauty and native wildness; but he must turn a deaf ear to the persuasions of the hon. and learned Member for Southwark (Mr. Locke), who seemed to think that the expenditure required for preserving and maintaining those places should come out of the national purse. It seemed to him that the expenditure required for the preservation of these suburban places of recreation, was peculiarly local and municipal, and had nothing Imperial in its character—they were for the advantage of the residents of the metropolis; and it was the opinion of the Government that if this Committee were granted, and they wished it to be so understood, it would be a waste of time for them to turn their attention to the question of meeting the expenditure out of Imperial funds. He knew it was the custom to say that the ratepayers of the metropolis were already too heavily burdened, but there were resources still undeveloped; for instance, one large class of property did not contribute directly to permanent improvements of the metropolis—the owners of the fee simple of land did not pay in that capacity, all the expenditure being drawn from the occupiers. He thought his hon. Friend had made out good ground for his Motion. The preservation of these open spaces was important to the health and enjoyment of those who lived in the metropolis; and he thought that consideration might be usefully given by the Committee to questions of fact and law, and application of metropolitan funds, which might prepare the way for future action.


said, that where the lord of the manor and the homage could come to terms together, it was unnecessary to apply to Parliament for any further powers with respect to enclosure; but if they were unable to come to terms, then an application to Parliament for such powers was requisite. The whole question as to Wimbledon Common turned upon whether Lord Spencer had the right to enclose in conjunction with the homage. If he had the right to do so, with the consent of the homage, there was no necessity for coming to that House. If, on the other hand, the right was disputed, it was only natural that he should endeavour to obtain the sanction of the Legislature for his proposal. If he was giving up any of his rights to the public, it was, of course, very disinterested in him. Some persons who dwelt in the neighbourhood said he had not these legal rights. It was proposed to refer it to a Select Committee to inquire into the subject, and ascertain, at all events, what primâ facie case could be made out; and then, with the Committee's Report before it, the House would be able to see what was to be done. If Lord Spencer had illegally dealt with Wandsworth Common, why did not the gentlemen living in the neighbourhood form themselves into a committee and club together for the protection of their rights?


said, that no doubt the last speaker was right in saying that if the public had no legal right to be upon, or to use the commons, the lord of the manor could at any time, with the consent of the commoners, enclose a common. But if, on the contrary, the public had any rights over the common, the lord could not enclose without an Act of Parliament. The question of Wimbledon Common was one of detail, and it would, no doubt, be brought before the Committee. After reading the correspondence, he was satisfied that Lord Spencer had intended to act in an extremely generous spirit towards the public. It was a question how far the noble Lord's views might meet the wishes of the people of Wimbledon; and if he was dissatisfied with the reception it had met with, he might console himself with the reflection that persons who did generous things of that kind did not always get the credit they deserved, because, while he was giving up what might be of great prospective value to him, they were only receiving that which they had always enjoyed. But, he would address himself to the case of commons, where, perhaps, they could not expect the lords of the manor to be so generous, such as those of Blackheath, Hampstead, Clapham, and many others, and he believed there were about seventy commons and greens of various sizes within fifteen miles of London, which were all in jeopardy under the present state of things. The state of the law as regarded public rights was very embarrassing and unsatisfactory, and certainly not such as those who advocated the cause of the public could desire. Through the later decisions of the Courts of Law, what were recognized at one time as the rights and customs of the public in respect to recreation had been almost refined away to nothing It was very unfortunate that that should be so; and it would, he thought, be one of the most important duties of the Committee to investigate what the rights of the public really were, and see whether rights which had in fact been enjoyed for many centuries could not be restored to the people. He would, first of all, call the attention of the House to one of the first cases in which public rights in this matter were acknowledged in a court of law. It occurred in the days of Charles I., when public amusements revived after the duller times of the Puritans. The inhabitants of a town claimed the right of dancing on a common in their immediate vicinity, and Sir Matthew Hale decided that it was a good custom, and that it was necessary for the inhabitants to have their recreation.—(Abbott v. Weekly, I Levinz's Reports, 176.) That was always regarded as a leading case in which the rights of the public had been properly determined.-But there always appeared to be a kind of dualism at work in our courts of law—a contest between the opposite principles of good and evil—and whenever a good principle was laid down by one Judge, another Judge came afterwards and, while acknowledging the previous decision, showed how it could be refined away until nothing of it was left. He would point out how the grand principle of Sir Matthew Hale came to be frittered away. Soon after the case that he had mentioned had been decided, another came before one of our courts, in which the inhabitants of a parish claimed by custom from time immemorial to enjoy the liberty of playing at all kinds of lawful games, sports, and pastimes, at all seasonable times of the year, at their free will and pleasure. They also put their claim in another form, pleading the same custom for all persons at the time being in the said parish. The court acknowledged the validity of the decision which he had already quoted, but said— It has been objected that it it is not alleged that the pastimes were allowed for the necessary recreation of the inhabitants; but the case in I Levinz decides that it is necessary for the inhabitants to have such recreation; if so, it is matter of law. But the custom unfolded in the second plea is as untenable as the first is tenable; because what is there stated may be claimed by all the inhabitants of England. Customs must be in their nature confined to individuals within a certain district."—(Fitch v. Rawlings, 2 H. Bl. 393. That was the first entrance of the evil spirit which got rid of the rights of the people, declaring that although when confined to the inhabitants of a particular place the right was good, yet it was bad if it could be claimed by the whole public. Again, in a recent case, arising out of the disputes of the turf, the trustees of the Jockey Club, who were lords of the manor of Newmarket Heath had warned off the race-course a gentleman who had made some very ugly animadversions upon them. The gentleman refused to go; they turned him off; and the case was brought before a court of law. He pleaded an immemorial custom on the part of the public to go and see the races held at Newmarket. The court, in accordance with the decision he had just cited, decided that the custom having been laid in all the Queen's subjects was bad; that the public had no right to be there; but it intimated that if the defendant could have claimed as an inhabitant of Newmarket, he might possibly have maintained the custom. Another case occurred in respect to Epping Forest, and he would venture to read to the House what took place in that case, because it was very material, as showing to what the rights of the public, acknowledged in the previous cases, had been at last reduced in this matter. In that case the manor enclosed was a portion of Epping Forest, and formed a kind of public green in the hamlet of Woodford. The people had been in the habit of going there from time immemorial, and making use of it for purposes of recreation. It was enclosed by the lord of the manor, and the inhabitants objected to the enclosure. They laid their claim as being in the inhabitants of the particular village. They first said there was a right of way, and then that the inhabitants were in the habit of playing at all lawful games on the round. In summing up to the jury Mr. justice Wightman said— The question is, whether there was a way over the spot where the hurdles were put up. In one sense there was a way there and everywhere, for it appears that the green was part of the ancient forest, and the effect of the evidence is that people went wherever they liked; and so, in that sense, the whole forest was one great way…But there was no distinct evidence of any definite way in any particular direction; and though there were tracks from time to time which might last for a few weeks or months, there was no beaten or enduring track in any one direction which had lasted for years…Then as to the alleged custom, it is laid in the inhabitants, but the proof is wider than the plea, for it appears that all the world went wherever they pleased. It may be a question whether that would be a good custom in law, and of course if, in point of fact, it is proved as to all the world, it is proved as to the inhabitants. On the other hand, if the plea be taken to mean that the subject is only in the inhabitants, it is disproved, for the proof shows it to be, if it exists at all, in all the world."—(See Schwinge v. Dowell, 2 Foster and Finlason's Report, p. 845.) The meaning of this was that although the custom lay in the inhabitants it would not lie in all the world, and then that if it could be proved to lie in all the world the custom was bad. It amounted to this, that the custom of a village like Woodford to play on a green, when engulfed by a great town like London, became bad, because it was enjoyed by all the public, Now that was, in his opinion, a most monstrous conclusion. It might be law, but certainly was opposed to common sense and to practice. This doctrine of general custom appeared to have been derived from some black-letter lawyer. In Viner's Abridgment it was stated— A custom which may be general, and extend to all the subjects in England, and is not warranted by, but contrary to the common law, is void. He then went on to describe what a good custom was, giving the following as a specimen of a good custom:— In the Isle of Man is a custom that if one steals a horse he shall not be hanged, but shall be fined and go quit, because the owner may have his horse again, and it cannot be eaten; but if one steals a hen or a capon, he shall be hanged, for it shall be intended that it was taken to be eaten, and so the owner could never have it again. This is a good custom. Such according to this authority was a good custom; but where it had been the custom for a whole people to play on a open common, like Clapham or Blackheath, it was a bad custom. He thought the House must feel where such ridiculous doctrines prevailed the proper way was to alter the law and say that a custom should not be bad because it was a general custom. It might perhaps be said, why not buy up the interests of the lords of the manor? That only raised the same question in another form, because, if the public had no rights whatever over the commons, then the compensation would have to be given for all these commons assessed as building land, worth from £400 to £600 an acre; and it would be impossible to find the money for it. But if, on the other hand, the public had rights of recreation, then a comparatively very small sum would purchase the manorial rights of pasturage, and digging sand and gravel. At any rate, he hoped that the rights of the public would be fully discussed in the Committee, and that if necessary the law would be altered in the sense he had referred to.


hoped the object contemplated by the appointment of this Committee would be attained, but that not a single shilling of public money would be expended upon it. He altogether objected to the expenditure of public money for the exclusive benefit of the metropolis. It was said the metropolis was highly taxed; but his constituents were taxed quite as heavily as the inhabitants of the metropolis, and he thought it would be very unfair that they should be further taxed for the embellishment or recreation of the Londoners.


said, that in 1862 the lords of the manor of Chigwell, Essex, had come to Parliament to obtain permission to enclose the portion of Epping Forest lying in that manor, but on his (Mr. Cox's) Motion the Bill was referred to a Select Committee, when so good a case did the public make that the Bill came back with the recommendation that fifty acres of ground should be left free for the use of the inhabitants of the metropolis. That recommendation was adopted by the House; but the allotment had not yet been made. Now, he should like to hear from the Secretary of the Treasury why the Inclosure Commissioners had not yet made that allotment. It was of considerable importance that the inhabitants of the metropolis should know where those fifty acres were to be allotted. An impression prevailed that the ground allotted would be to all intents and purposes useless, consisting of gravel pits in one portion and a swamp in another. The right hon. Gentleman (Mr. Peel), however, had assured him that such would not be the case; but, up to the present time, no precise information had been given on the subject. He would suggest to his hon. Friend the Member for Lambeth not now to fix any limit beyond which the Committee should not direct their attention. As he (Mr. Cox) conceived that point would be the first to be considered and settled by the Committee with regard to portions of Epping Forest which could not be enclosed without the consent of the Crown, he admitted that considerable hardship existed; but there was no desire to deprive any lord of the manor or any commoner of any right they possessed. They might have the whole lands not heretofore used by the public for recreation, provided only the 200 or 300 acres which had been so used were left in different parts of the Forest. This would not entail on them one sixpence of expense. No enclosure was necessary, no trees need be cut down, no gravel walks made; the ground might be given in the same wild state in which it now was.


observed, that the limit he should propose would be fifteen or twenty miles around the metropolis.

Motion agreed to;—Select Committee appointed.

And, on March 3, Select Committee nominated as follows:—

Mr. DOULTON, Mr. COWPER, Viscount BURT, Sir HENRY WILLOUGHBY, Mr. LOCKE KING, Mr. DR CANE, Mr. HENRY BAILLIE, Sir JOHN SHELLEY, Mr. JOHN TOLLEMACHE, Mr. KINNAIRD, Mr. BEN-TINCK, Mr. PEACOCKE, Mr. HANBURY, Mr. VANCE, Mr. LOCKE, Mr. LYALL, Mr. BUXTON, Mr. TOREENS, Mr. SHAW LEFEVRE, Mr. Alderman ROSE, and Mr. Cox:—Power to send for persons, papers, and records; Five to be the quorum.