Lords Sitting of 26 April 1841

MINUTES.
Bills. Read a first time:—Law of Felony, Explanation.—Read a second time:—Metropolis Improvements; Ecclesiastical Commissioners Acts Amendment.
Petitions presented. By the Bishop of London, from his Diocese, against Sunday Trading.—By the Earl of Winchilsea, from places in Kent, Essex, and Suffolk, against any further Grant to Maynooth; and from the ex officio Guardians and others of Unions in Lincolnshire, against the Continuance of the Poor-law Commissioners for five years, and in favour of Out-door Relief.—By the Duke of Argyle, from various places in Scotland, against Non-Intrusion.—By the Earl of Radnor, from Derby, Bilston, Taunton, and other places, for the Repeal of the Corn-laws.—By the Earl of Carlisle, from Morpeth, in favour of the Drainage Bill.—By the Duke of Wellington, from Hastings, in favour of the Jews Declaration Bill; from Bath, against the County Courts Bill.—By the Earl of Falmouth, from Medical Practitioners of Cornwall, against the Union of the three branches of that Profession.—By the Archbishop of Canterbury, from Batheaston, Somersetshire, for the Exclusion of Catholics from Parliament.

THE DUCHY OF CORNWALL.
Viscount Duncannonsaid, that in consequence of the question put to him on Friday evening by the noble Earl opposite, relative to the leases of certain mines in Cornwall, he had made inquiries on the subject, and he found that notice had been given to the lessees of those mines to which submarine workings were attached, that on the expiration of their leases, they would not be renewed on the present terms. The question was, whether the minerals below high water mark were the property of the persons who held the upper soil, without paying any royalty? The opinion of the law officers of the Crown had been taken on the question, and they had decided that the property in the sub-workings was in the Crown, and not in the individuals holding the soil. The consequence was,
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that proceedings would be taken against the person to whom the noble Earl had formerly alluded, and against others, amongst whom was the noble Earl himself.
The Earl of Falmouthsaid, the correspondence which had taken place on this subject, though it did not embrace the whole matter at issue, certainly touched upon the question, whether the property in those mines was to be excluded from the operation of the Limitation Act, which applied in other cases. When he put the question to the noble Viscount, he thought it necessary to explain generally the circumstances that had taken place, in order that no misunderstanding might arise. The circumstances out of which the correspondence with the authorities connected with the duchy of Cornwall arose occurred some years ago. Objections were then advanced against the extravagant claims put forward on the part of the Crown, and the answer to those representations was, that a bill would be brought into Parliament to settle the claims of the parties in possession. No such bill was introduced; but the persons interested were informed by Sir G. Harrison, that he disapproved of the claims asserted by the Crown, and that he repudiated them on the part of the duchy; but, though he was never inclined to urge those claims, still he would do nothing that might be considered as compromising the rights of the Crown. How stood the fact now? Why, on the introduction of the new Lords of the duchy, they found, that certain leases had expired, and they proceeded to lay claim to the submarine workings, which had been recognised time out of mind as the property of the individuals in possession. The property now in question belonged to two ladies, and from it they drew the principal part, if not the whole, of their subsistence. This was the first proceeding that had been taken, after the promises were made which he had stated; this was the first proof given of the benefit to be derived from the boasted infusion of liberalism into the management of the affairs of the duchy. What was now in progress was materially connected with what took place on a former occasion. The question simply was, whether long possession was sufficient to confirm an individual in a right to retain property which he had held unmolested and undisturbed? By the Nullum Tempus Act, the Crown was barred from claiming after a possession of sixty years. If an individual could prove, that he had held the property claimed for more than that duration of

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time, be made a good title against the Crown. It was endeavoured, in the case of Sir John St. Aubin, but unsuccessfully, to overthrow that doctrine. The principle now sought to be established would not be tolerated in the time of James 1st., and he did not think that it would succeed now. According to that principle it was no matter how long property might have been in the possession of a family; even if it could be shown, that undisturbed possession had been preserved for three hundred years, it would avail the possessor nothing. It might be claimed as belonging to the duchy, not withstanding the time that had elapsed; because, forsooth, the property of the duchy could not be alienated. Those who were interested in the question had been promised, that there was no intention to advance such claims, and he could tell the noble Viscount, that if it was attempted to carry out those claims in the manner intended, the attempt would be resisted to the uttermost. He (the Earl of Falmouth) was, it appeared, to be the next victim. It was the first he heard of it, and he should be prepared to oppose, by all proper means, any attempt to take the minerals from his private property. He would say, that if there were any one thing that would be more popular than another in that part of the country in which those mines were situated, it would be the bringing in of a bill to quiet and settle the possession of such property.
Viscount Duncannonsaid, that most of the mines in question had not been worked more than forty years. The noble Earl was not in possession of his mines for more than forty years. As the noble Earl had particularly alluded to the case of two ladies, he had no objection, if the noble Earl pleased, to try the right with him first.
The Earl of Falmouthsaid, that generally speaking, private individuals acquired a legal title to property by possession for twenty years. In some instances, that period was extended to thirty, and in others to fifty years. In the case of the Crown, the term was not so much narrowed. But even there, possession for sixty years was a sufficient bar to a claim on the part of the Crown. He held that the minerals in these submarine workings were indisputably his property, because he who possessed an estate, as Lord of the Manor, or otherwise, held it usque ad cœlum, usque ad imum.
Lord Abingerinquired whether the claim to the submarine workings was made as a common law right, or as a right of the Crown?
Viscount Duncannonanswered, that the claim was made to the submarine workings below high-water mark on the part of die Duchy, as appertaining to the Crown.
Here the conversation ended.

METROPOLIS IMPROVEMENT.
Viscount Duncannon Viscount Duncannon moved the second reading of this Bill.
The Earl of Wicklowsaid, he hoped the report was correct which he had heard, that it was the intention of the Government to throw open to the public the whole of the Regent's Park; and also that they intended to form a Park in the Eastern end of the Metropolis.
Viscount Duncannonsaid, that he had great pleasure in stating, that her Majesty's Government was prepared to open the whole of the grass part of Regent's Park, as far as it could be done with a due regard to the rights of those who had laid out large sums in the purchase of villas in the neighbourhood. The whole of the park would be thrown open to the public, except the private enclosures. Communications would be made to it from Hanover-terrace, from Macclesfield-bridge, and there would be two communications into the broad walk. With regard to the other question, the Government was most anxious to comply with the requests which had been made for a park in the eastern end of the Metropolis. Great difficulties stood in the way of accomplishing that object; such as the difficulty of obtaining in that locality a piece of ground of sufficient size; but he could assure his noble Friend, that every exertion would be made to effect the purpose desired with as little delay as possible.
Lord Ashburton,said, he thought it was a great mistake to suppose, that throwing open every part of the parks was the best way to consult the pleasure of the public, for the preservation of the ornamental gardens was as necessary to their enjoyment as was the access to the open parts surrounding those necessarily enclosed spots. There was another point to which he wished to direct the attention of their Lordships. He alluded to the present state of the churchyards in the Metropolis, which was fatal to the health and comfort

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of the community. This was an evil which demanded an immediate remedy, and he thought that that remedy should be applied by the large mercantile classes who collected together in different spots such immense masses of population. It would not be too much to expect from the large manufacturing towns that they should keep the atmosphere as pure as their employments would allow.
The Bishop of Londonwas desirous of expressing his concurrence with the remarks just made by the noble Lord who had that moment resumed his seat. With regard to the evils arising from the present state of the churchyards in the Metropolis, he had frequent opportunities of witnessing their magnitude. In a small parish at which he had been called upon to officiate yesterday afternoon, he had been informed by the clergyman that, at a recent funeral, thirteen skulls had been turned up, and he could assure their Lordships that the evil would be much less than it at present was, if bones were alone turned up from late interments. Cemeteries had, within the last few years, been formed, which, to a certain extent, diminished this evil, but they brought with them another evil—though an evil, he confessed, of not equal magnitude. He was not one who would stand up for the secular advantages of the clergy, when opposed to the benefit of the community at large, but they were, at the same time, not to be overlooked or disregarded. Now, these cemeteries produced a serious effect on the incomes of many of the clergy, and he believed that one of them in the neighbourhood of the Metropolis—the Kensal-green cemetery—had caused in the income of the rector of a neighbouring parish a diminution of not less than 200 l. a-year. Might not, however, some measure be introduced which would prevent the latter, and, at the same time, effect the former good? Might not some small cemeteries be formed in the neighbourhood of the Metropolis, such cemeteries were in fact formed, though they were not always consecrated, he regretted to say, which the bishop of the diocese should consecrate, where the poor might be interred at a small cost, and a part of the proceeds of which he should receive for the benefit of the clergy whose incomes had been seriously affected? He threw this out as a suggestion which might be attended with advantage to all classes. At any
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rate the evil of the present churchyards was universally admitted, and some remedy ought to be applied. Whilst the attention of their Lordships was directed to the enjoyment of the public, he would take that opportunity of saying a word in favour of the large and miserable classes of the community who inhabited the northern and north-eastern districts of the Metropolis. With them and their wretched condition he felt the strongest sympathy. He took an interest in their condition—he took an interest in their welfare—and consequently he took an interest in their health and in their wholesome amusement. No opportunities were afforded to these poor people of taking a breath of fresh air; and while their Lordships were liberally and properly attending to the amusement of the public, by which was generally meant the upper and the middle classes, he trusted that some parks, public walks, or other means of healthful recreation, would be afforded to the miserable and neglected inhabitants of Bethnal-green, Spitalfields, and that neighbourhood, which was in a state which none of their Lordships could conceive, unless they took the trouble of walking through its streets.
Viscount Duncannonwas most anxious to do the utmost to improve the neglected and unhealthy localities in that part of the metropolis to which the rev. Prelate alluded; and, in fact, in the Metropolis Improvement Bill, and in the Drainage Bill, that object was to some extent provided for. But with respect to the proposed purchase and planting of the Royal Park, he thought it better not to state at present what his intentions were, lest by doing so he should render it impossible to carry them into effect. As to the new road from Pimlico, a question respecting which had been put to him by his noble Friend opposite (Lord Ashburton), he would only at present state that there was no part of the metropolis to which a great thoroughfare was more necessary.
The Marquess of Normanbysaid, that he was desirous of framing such a measure as that to which the right rev. Prelate had alluded for the improvement of interment in the metropolis, and for providing cemeteries. But he had found the subject so beset with difficulties that he had as yet made no progress with it. However, he did not despair, and he would be very happy to assist the right rev. Prelate if

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he would take the question into his own hands.
Bill read a second time.

SUNDAY TRAFFIC ON CANALS.
The Marquess of Normanbyrose to bring forward the motion, of which he had previously given notice, that a select committee should be appointed to consider the present system of trafficking on canals on Sundays. He need only trouble their Lordships with a few words in staling why, in his opinion, an inquiry should be instituted to decide whether the present state of things ought to be allowed to exist. It was the first duly of a moral and religious community—when, at any rate, it could be accomplished without injury to any class, and unless some strong reason were opposed to it—to keep the strict observance of the seventh day. Now, he believed that in the present system of Sunday trafficking on canals little benefit was derived by any one, and certainly that no opposing reason justified the deviation from the principle which he had had down, the soundness of which he felt sure would not be denied in their Lordships' House. Other considerations interfered with regard to personal travelling on Sundays, and though there were some people who conscientiously thought that the strong arm of the law might fairly be exercised to prevent, as they considered it, this breach of moral conduct, yet, for his own part, he thought that such an interference could not be justified. The attention of the committee which he now proposed would not be directed to this point. It would be merely confined to the compulsory labour of a particular class who were thus, contrary to their own wishes, compelled to work during seven instead of for six days. He had seen, since last Session, when this subject had been before their Lordships, several magistrates, chairmen of quarter sessions, and other gentlemen who were practically acquainted with the working of the Sunday trafficking on canals, and from their statements he had not the slightest doubt that the present state of the law subjected not only the boatmen themselves, but the whole population along the shores of the various canals through which they passed, to the greatest inconvenience. He had been informed also, and this information of what actually did take place exactly corresponded with his previous notion of what was
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likely to take place from such a system, that a great part of the smaller crimes—crimes of the nature of pilfering, and of such description—principally arose from these boatmen, who, being as it were perpetually in transitu—having no fixed locality—constantly moving up and down the canals, on which they all but entirely lived, were not easily followed or detected, It was not fair to charge the crimes of individuals on the classes of which they were members, and be would not do so. But an atrocious crime which was committed during the course of last year on one of these canals, and for which two men had been tried at Stafford, proved not only that the unfortunate men engaged in that transaction themselves, but that their fellow-labourers employed in the same occupation—that, in fact, the whole class of these canal boatmen were alike deprived of religious and of secular instruction. This proved that there was an evil in the system, and who could doubt that a remedy would be found in their cessation from Sunday labour, and in the opportunity thus afforded them of frequenting public worship; and of receiving the blessings of moral and religious truth? The labours of the committee would also extend to railways. There was, he confessed, no such thing as urgent necessity in this case as in the other to which he had already directed their attention; but at the same time there could be no reason why an inquiry should not be instituted respecting the expediency of commercial trafficking on railways on Sundays, He thought that there could be no necessity for the transfer of goods on that day in a commercial point of view, and certainly there was an objection to it on several grounds. The subject, at any rate, was worthy of consideration. There were, he knew, in the accomplishment of the object which they all must have in view, some difficulties of detail; but these he believed were not insurmountable, and he relied with confidence on the talents and exertions of the committee. The evil was a crying one. It would be for them to propose a remedy. The noble Marquess concluded by moving for the appointment of a select committee to consider the present system of Sunday trafficking on canals, railways, and navigable rivers.
The Bishop of Lichfieldsaid, that this question had excited the greatest sensation in the diocese over which he presided, and the motion of the noble Marquess,

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productive as it must be of the greatest benefit, would be received by all classes with the liveliest gratitude. Men of all parties, and of various classes, joined in an unanimous wish for the abolition of the law sanctioning Sunday traffic on canals. The desire of the boatmen themselves, opposed though it was to their pecuniary interest, had been proved by the petition presented to the House by the noble Lord (Hatherton). The carriers entertained the same wish, and the merchants and manufacturers were influenced by similar feelings. It was absolutely necessary that Parliament should interfere. An attempt had been made on the Trent and Mersey Canel to put down Sunday traffic, but it had only partially succeeded. Its success, however, was sufficient to prove that no commercial considerations demanded the continuance of this system. The moral evil caused by it was painful to be considered of. Almost outcasts from the very pale of humanity—aliens from the Church of Christ—the boatmen grew up from boyhood to manhood in the grossest ignorance, and hence the atrocious crimes to which the noble Marquess had alluded. He begged to thank the noble Marquess for the motion he had just made, and that motion he felt the greatest pleasure in seconding.
Lord Colchesterinquired whether it was intended to include navigable rivers, and to prevent vessels arriving from abroad from entering?
The Marquess of Normanbysaid, he thought such a measure would be productive of great inconvenience, and he would remind the noble Lord, that they were not now legislating, but merely arranging as to the duties of a Committee of Inquiry.
Lord Hathertonwas glad that navigable canals had been included in the motion of the noble Marquess. All inquiry would be imperfect without it, and on this point the principal difficulty existed. He was sure, from conversation with practical men, that with regard to canals and railways the Sunday traffick could be abolished without injury to any class, and with great benefit to the boatmen, whose interests had been hitherto neglected. His property lay in a county much intersected with canals. Several, indeed, flowed through his own estates, and he had been in the habit of asking the boatmen whether they were desirous of working on a Sunday? From all he bad received the same answer.
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They had all expressed their unanimous desire for the abolition of the system, and they had distinctly told him that they only worked from compulsion. The proprietors also wished for an alteration, but no individual could have afforded to act upon it from the strong competition which prevailed among them, and from the loss which he would necessarily sustain were he alone to cease working on the Sunday. This proved the necessity for legislative interference, and he was glad that the subject had attracted the attention of the noble Marquess.
Motion agreed to, Committee appointed.—Adjourned.