Lords Sitting of 6 June 1844

MINUTES.
BILLS. Public—1a. Copyhold, Enfranchisement Amendment.
Reported.—Gold and Silver Wares; Assaults (Ireland).
Received the Royal Assent.—Customs; Stamp Duties; Factories; Bailiffs of Inferior Courts; Edinburgh Agreement; West India Relief; Courts Martial (East Indies).
Private.—1a. Croydon and Epsom Railway: Birkenhead Docks; Preston and Wyre Docks; Taff Vale Railway; Lakenheath Drainage.
2a. Willenhall Chapel Estate (Fisher's).
Repotted.—South Devon Railway; Bleddfa and Llangunllo Inclosure; South Eastern Railway; European Life Insurance Company; Hythe Landing Place (Hants); Whitehaven and Maryport Railway; Salisbury Branch Railway; Cwm Celyn and Blaina Iron Company; Sheffield United Gas; Manchester Royal Infirmary.
3a. and passed:—Irvine's Estate.
Received the Royal Assent.—Lancaster and Carlisle Railway; Blackburn and Preston Railway; Maryport and Carlisle Railway; Northern and Eastern Railway (Newport Deviations); Salford Improvement; Birkenhead Improvement; Leeds New Gas; Globe Insurance Company; Haltwhistle Inclosure; Farrington and Cwmgilla Inclosure; Rodbard's Name.
PETITIONS PRESENTED. By Bishop of Winchester from Rochester, and 5 other places, against the Union of St. Asaph and Bangor.—By Lord Campbell, from Cavan and 3 other places, for Legalising Marriages Solemnized by Presbyterian and Dissenting Ministers in Ireland. —By Earl Fortescue, from Moreton Hampstead, and Honiton, in favour of the Dissenters Chapels Bill.

SIR T. M. WILSON'S ESTATE BILL—HAMPSTEAD HEATH.
The Earl of Egmontmoved the second reading of Sir T. M. Wilson's Estate Bill, and he regretted to learn that the Bill was likely to meet with considerable opposition. The object of the Bill was to enable Sir T. M. Wilson to dispose of certain parts of an estate which he had inherited under the will of his father at Hampstead, for the purpose of investing the purchase money in landed property elsewhere. It was said, that the Bill would interfere with certain provisions of the will of Sir T. Wilson's late father, but he could not conceive on what grounds such opposition could be raised, as the parties interested under the will were anxious to have the measure passed. On inquiry at the Private Bill Office, he learned that thirty Bills of a similar nature had passed that House and received the sanction of the Legislature, within the last ten years. None of the objections which he had heard alleged against the Bill ought, in his opinion, to prevent it from passing.
Lord Denmansaid, it gave him great pain to be obliged to oppose any Bill brought forward by a Gentleman with reference to the disposal or appropriation of his own property. This, however, was a very peculiar case, and he thought it quite impossible for their Lordships to agree to this measure on any of the reasons advanced in support of it. For all that appeared before their Lordships, this Bill was a material interference with the provisions of a will which conferred these estates on Sir T. M. Wilson under certain restrictions; he had taken the property under that will; and, whatever that will required—whatever burthen it imposed—it was right that it should be borne by the party who held under it. When, formerly, in another shape, that Bill was brought a second time before their Lordships' House, a noble and learned Lord emphatically said, "If we pass it, it is making, in Parliament, a will for a man after his death." It was not making a will for a man who had made no will himself—for Sir Thomas Wilson did make a will; but it was a direct overruling and altering of the intentions of the testator in making this will, and giving that estate to its present possessor, under certain restrictions. Sir Thomas Wilson, in his will, dated the 3rd of September, 1806, directed that no person who came into possession of the Hampstead estate should be able to lease it for a longer term than twenty-one years. This might be inconvenient to the new possessor, but the late Sir Thomas Wilson came deliberately to that conclusion, and it was proper that his direction should not be contravened. That he came deliberately to that conclusion was proved by the 9th codicil to his will, by which it was provided that his heir should be empowered to grant leases of the Charlton property in the county of Kent for sixty-one years. In the one case he clearly intended that no building leases should be granted; but in the other he gave the power of granting such leases to his son. It was said, that it was not meant, by the instrumentality of this Bill, to inclose Hampstead-heath; and he agreed that such was the fact, looking to the common meaning of the word "inclosure." The heath would not be divided into small and minute portions, it was true; but the Bill would give the power of granting to any builder, for building
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purposes, 400 acres of land—of that land, be it remembered, which now made Hampstead such a healthy and happy place—where thousands of persons from the metropolis daily enjoyed themselves during the fine period of the year, in a manner which they could not do elsewhere. Surely that consideration ought greatly to outweigh any small advance in value—any small improvement, in a pecuniary point of view—that might be effected by devoting the ground to building purposes. The copyholders, too, would be greatly annoyed by the proposed disposition of the properly. At present they enjoyed a most beautiful view, open to Harrow, open to the west. But, if this Bill were passed, they would soon have a row of houses bounding their view, and surrounding these 400 acres. They would also have the various annoyances arising from gas-pipes, water-pipes, and various other obstructions. In the course of a very few months after the passing of this Bill such would inevitably be the case. It might be alleged, that the restrictive clause in the will was unjust and unreasonable. For his part, he considered that it was most just and reasonable; and he hoped that Parliament would not come in, and with a high hand set it aside. In his opinion, they would be weakening the security of their own property, if they interfered with that will. The restrictions in this case, formed a positive condition, under which the present Baronet held this estate; and to interfere with it would be to plant the root of a great evil to the enjoyment of property in this country. This proceeding had created much anxiety in the minds of a vast number of persons in the metropolis; for who was there amongst them that had not, atone time or another, enjoyed himself in that beautiful locality? If this Bill were carried, the copyholders would have just right to complain, that by an ex post facto law, they were deprived of certain benefits for which they had fairly bargained. He hoped their Lordships would view this Bill in the same light in which it had been viewed by his (Lord Denman's) noble and learned predecessor (Lord Tenterden) and by Sir N. Tindal, the present Lord Chief Justice of the Court of Common Pleas, and refuse to sanction it. Under all these circumstances, he felt it to be his bounden duty, though with great reluctance, to move, as an Amendment, "That

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the Bill be read a second time that day six months."
Lord Colchestersaid, he should support the second reading of the Bill; but he did not mean to argue the legal points connected with it. The noble and learned Lord opposite had rested his opposition on three grounds—1, that the Bill interfered with the will of the late Sir T. Wilson;—2, that it was unjust towards the copyholders;—and 3, that it deprived the public of certain rights. These, he conceived, were proper points to be considered in Committee. He only asked their Lordships that they would allow this Bill, as they would allow any other such Bill to go before a Committee—that impartial tribunal where its merits might be fairly judged of.
Lord Campbellsaid, he was wholly unacquainted with any of the parties concerned, either for or against this Bill, and he could therefore have no bias in the matter: but looking at it calmly and dispassionately, he must express it as his humble opinion that the Bill ought not to pass. By adopting such a course, and throwing out the Bill, he could not see that any hardship was inflicted upon Sir T. Wilson, who at present clearly enjoyed all the benefit that his ancestor ever intended him to enjoy. Whatever the law gave him he had, and he now called for the special interference of the Legislature to give him powers which by the law, and of right, did not belong to him. Whilst, however, the rights of Sir T. Wilson would not be interfered with by refusing this Bill, the passing of it would very materially interfere with the rights of the copyholders, whose property it would depreciate some 30 or 40 per cent.—the effect of the Bill in reality would be merely to add to the property of one man, and to diminsh the value of the property of others. The noble Lord last Session introduced a Bill of precisely the same nature as the present, the only difference being that that Bill proposed to do directly what this Bill proposed to do indirectly. The Bill of last Session was at the time fully discussed, and subsequently withdrawn voluntarily by the noble Lord who introduced it. Yet this Bill was the same Bill under another shape. He thought it would be an extremely dangerous precedent if they allowed this Bill to go into Committee; and he therefore called upon their Lordships not to allow it to be read a second time.
The Earl of Wicklowcould see no reason whatever why Sir T. Wilson should be treated in a different manner from any other claimant suing to that House. The noble Lord who introduced the Bill had stated, that within the last ten years not less than thirty similar Bills had received the sanction of their Lordships; and why, then, should not this Bill be treated in a similar way? He did not at all agree with the argument that they should deprive one individual of privileges enjoyed by others, because by adopting a different course they might somewhat trench upon some supposed advantages to be derived by the public. He thought, at any rate, that the Bill should be allowed to go into Committee, where its merits could be fully discussed, and much more advantageously than they could be upon the second reading.
The Earl of Mansfieldsaid, this was the fourth time that this Bill had come before the House. In 1826, the Bill was rejected by a considerable majority; the same arguments were used then as were used now, and he certainly could see no ground for reversing the decision then come to. It was very well, if they objected to the details of a Bill, to alter those details in Committee; but when they objected altogether to its principles, it should not be allowed to enter into Committee. He (the Earl of Mansfield) was possessed of property in the neighbourhood of Hampstead Heath, part of which was copyhold, and he confessed that he looked upon this Bill with considerable interest. It was, however, interesting not to him only, but to a hundred other copyholders in the parish of Hampstead, whose property, he believed, it would depreciate in various degrees, from 30 to 50 per cent., and who, he believed, were unanimous in their opposition to this Bill.
Lord Cottenhamcertainly should not like to see Hampstead-heath covered with houses, neither did he think that such a result was to be apprehended from the passing of this Bill. He would caution their Lordships, that if they capriciously refused to one individual what they granted to others, they might lose that character for impartiality, and of dealing out equal justice to all, which it was so essentially necessary for the Legislature to maintain. The fact of the testator having in certain codicils attached to his

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will declared that upon some of his property building leases might be granted, and not having made that provision with regard to other portions of his property, did not afford any argument that it was the testator's desire that on those other portions building leases should not be granted. A portion of the argument against the present Bill had been founded on the assumption that Parliament had no right— that was to say, it would be inexpedient and unjust for Parliament—to grant to any person the power of building on his own land, if such building shut out the prospects or interfered with the pleasures theretofore possessed by the owners of the adjoining lands. Their Lordships well knew that doctrine such as that would not stand for a moment in any Court of Justice. He presumed there was no noble Lord then present who was not conversant with the practice of enabling ecclesiastical persons to grant leases quite irrespective of the probable effects of such powers upon the amusements or gratification of those who possessed adjoining lands.
Lord Broughamsaid, that his noble and learned Friend (Lord Cottenham) argued the case as if his noble Friend (the Lord Chief Justice) had brought in a Bill to restrain a legal right—to sell or lease an estate of which Sir T. M. Wilson was tenant for life, whereas the very fact of being tenant for life prevented the possibility of any sale or exchange. The inference in this case was, that as the testator gave a power of leasing estates in Kent, that he did not wish that power to extend to the Hampstead estate. He was surprised that his noble and learned Friend did not feel the objection of enabling Sir T. Wilson to do that by Statute which he could not under the will of his father, and what was manifestly to the injury of third parties. The rights of the tenant in tail were also involved, and a wrong might be done to him, inasmuch as he might, if he ever were in esse (there being no tenant in tail at present), prefer the preservation entire of the estate of his ancestors. He should vote for the Motion, as he saw no use in the Bill going before a Committee. It was clear that its object was now to obtain indirectly what former Bills sought directly.
Lord Cottenhamadded, in explanation, that if the tenant for life had not the powers which were necessary for enabling him to turn his property to the best ac-
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count, and that he came to Parliament and asked for those powers, they ought to be given to him. Such powers could not with any show of justice be refused to Sir Thomas Wilson, when they had been freely granted to so many others. They surely could not be refused on account of any supposed interests of third parties.
Lord Denmansaid, that the mere granting of an estate for life carried with it a prohibition of the exercise of any further powers. They were surely not to pass this Bill because the testator had omitted, and very properly omitted, to insert in his will any prohibition.
The Earl of Egmontsaid a few words in reply.
Their Lordships divided:—Content 20, Not-content 31: Majority for the Amendment 11.
The Bill is consequently lost.
House adjourned.