THE MARQUESS OF CLANRICARDE
moved the second reading of the Finchley Road Estate Bill. He entreated their Lordships to consider the case individually—each one for himself—and to come to a conclusion upon it according to its merits. He asked for justice only. If the Bill were in its nature anything extraordinary—if it did wrong to any man—if it infringed upon any man's rights or the disposition of any departed man's property—or if it violated, in any degree, the practice of their Lordships' House—by all means let it be thrown out; but if, on the other hand, it was entirely consistent with that practice—if it were framed in accordance with rules which had been so constantly and regularly followed that they formed part of the judicial system of this country—he called upon their Lordships, in the name of justice, and with a due regard to the character of their Lordships' House, not to reject it upon local, personal, or party grounds. It was his duty to meet the objections which had been urged upon former occasions against Bills relating to this estate, and which he understood would be urged against this. It had been called a Bill for the Inclosure of Hampstead Heath. Now, he firmly believed that it was never in the contemplation of any man, and, if he were rightly informed, it was certainly never in the contemplation of Sir Thomas Wilson, to attempt anything like an inclosure of Hampstead Heath. In point of fact, the inclosure of Hampstead Heath would be an injury to him. The Bill applied to the land along the new Finchley Road, which was separate and away from Hampstead Heath, and he believed was not visible from it. It had nothing more to do with the heath than it had with Regent's Park; and even if houses were built upon the land to which the Bill related, not one of them would be visible from the heath. If there was any object on the part of Sir Thomas Wilson of preventing the public from frequenting the heath, it would be very easy for him, by agreement with the copyholders, who were very few in number, to prevent the public from trespassing upon any part of the heath. But Sir Thomas was actuated by no such desire. If there was any reason why the land mentioned in this, the Finchley Road 734 Estate Bill, should not be built upon, let this be avowed and declared; but he did not envy the sense of justice or the argument of any man who should stand up in their Lordships' House, and say that, because it was convenient to a particular locality that certain rights of property should never be exercised, a man was, therefore, to be spoliated of the rights belonging to his property, and prevented from exercising them for ever. There was, however, an objection to the Bill which, primâ facie, appeared to be more formidable—the objection arising from what it had been said were the intentions of the testator. It was usual in cases like the present to refer the Bill to two of the Judges, not for the purpose of advising their Lordships on the preamble, but for the purpose of reporting whether, in the event of the preamble being proved, the Bill was a fit and proper Bill to pass. The meaning of that was, that they should see whether the interests of mortgagees and of remaindermen were properly protected, and whether the Bill contained any provisions which would be a violation of the common law or of the general law of the country. If the Judges were right in the course which they had taken in this case, they had neglected their duty in the case of every similar Bill which had been referred to them; because the object of every such Bill was to obtain relief from the consequences of the settlement or of the will which bound up the property, and prevented the party in possession from deriving the full benefit of it; and it might be suggested in every similar case—as the Judges had suggested in this—that it was a question whether, if the testator could have known all the circumstances which had happened subsequently to the making of his will, he would still have bound up the property as he had done in the absence of such knowledge. The course which their Lordships had always taken had been to inquire into all the circumstances—to look at what really had been the intention and will of the testator—but at the same time to grant relief where it had been clearly shown that the party coming for that relief was fairly entitled to it. If they took a different course in this case, they would inflict a flagrant injustice. Let them see, however, whether the testator could by possibility have anticipated or had in his mind such a state of things as now existed. The will was made in 1805, and by the codicils in 1816 and 1821 respectively 735 power was given to grant building leases where the testator saw that power could be exercised with advantage—on his Woolwich estate and elsewhere. In 1821 Sir Thomas Wilson died; and as at that time there was no direct road communication between London and the Finchley estate, it could not be foreseen that building leases would be desirable. Reasoning by analogy, it was only fair to suppose the testator, could he have anticipated the making of the Finchley Road, would have given the same power for the improvement of Finchley as he gave for the improvement of other parts of his property. A number of Acts precisely similar to this had been passed, and many more were before Parliament in the present Session. Parliament sanctioned, and he thought wisely, analogous powers upon the Paddington estate, by which the income of the see of London had been enormously increased, and he thought it rather hard to turn round on Sir Thomas Wilson, in the adjoining parish of Hampstead, and refuse this Bill. To do so was to commit a gross injustice, which affected the whole character of their proceedings, and to establish a precedent in opposition to the course which had hitherto been pursued. Only the other day their Lordships passed the Leasing Powers in Ireland Bill, which would break through all the wills and settlements in Ireland, without regard to the sentiments of private individuals, but because the improvement of the country made it necessary. The improvement of this estate required these powers just as much as the improvement of any estate in Ireland required the powers of the Leasing Bill. It ought not to be forgotten that had this gentleman married and had an heir, this Bill would be wholly unnecessary. He had not married, and now was at a time of life when these powers were necessary to free him from the extraordinary position in which he alone was placed — for his brother and nephew would be in a position to do what they liked with the estate. But did these remaindermen object to the present Bill? No, for they joined with Sir Thomas Wilson in praying Parliament to grant those powers deemed necessary for the improvement of the estate. If ever there was a case founded on justice, law, and reason, it was the present, and he implored their Lordships to look into it. In the event of the present Bill not passing, there was a petition from Sir T. Wilson and his heirs, by which Sir Thomas sought to appear be- 736 fore their Lordships by counsel, and he (the Marquess of Clanricarde) trusted that their Lordships would in justice listen to the petitioner.
Moved, That the Bill be now read 2a.
said, that the statement with which the noble Marquess had commenced and concluded his defence of a desperate cause was entirely unnecessary. This was not a question of taking a man's property from him, or of infringing his rights. If spoliation were the object of the opposition, he should be the last to oppose this Bill; but the fact was they were going to oppose, for the sixth time, an attempt of this gentleman to take away property which was not his own—to encroach upon the rights of other parties—and to defeat the will under which he held these estates. He came to Parliament and said, "I hold certain property under a certain will, and I am not satisfied with the rights that will gives me; please to let me have those rights extended and that will set aside." He denied that the Judges to whom the Bill had been referred had answered questions that had not been put to them; for what they were asked was, whether, taking it for granted that every tittle of the preamble had been proved, it was reasonable that the Bill should be passed into a law, and they answered that, assuming all the facts to be proved, they could not advise their Lordships that it was reasonable that the Bill should pass into law. Lord Tenterden, Lord Denman, and his noble and learned Friend the present Lord Chief Justice had expressed similar opinions; and, believing that it was not desirable to set aside a will on a speculation that some possible change in the intention of the testator might have occurred had he lived to see the changes which had taken place in the property, he should conclude with the same Motion Lords Denman and Tenterden had concluded on former occasions, that the Bill be read a second time this day six months.
Amendment moved, to leave out "now," and insert "this day six months."
§ EARL MANVERS
supported the Amendment, being decidedly of opinion that au act of great injustice would be effected by this Bill.
§ LORD COLCHESTER
said, that when the testator had made the will in question there were several estates between Hampstead and London, and this land was not available for building purposes; but in 1828 a new approach to London by the 737 Finchley Road had been made, and, the land then becoming valuable as building ground, the possessor of the estate had from that time endeavoured to induce their Lordships to extend to him powers which were not unreasonable, and which had been granted in similar cases. It had been stated in an article in a leading London newspaper that this Bill would leading the effect of depriving the people of London of the advantages of Hampstead Heath; but it might as well be said that it would interfere with Hyde Park, as the land did not even abut on the heath. He should, therefore, support the second reading.
said, that his opinion with regard to the Bill remained unaltered, and it was the same as that which had been expressed by Lord Tenterden and Lord Denman—namely, that it was contrary to the principles of our jurisprudence that such a Bill as this should pass. The noble Marquess said that the law was all upon his side; but, if so, why come to this House? Why did not the petitioner go to the tribunal where he had the honour to preside, or any other court in Westminster Hall? But the law was, in fact, all against him, and he was, therefore, obliged to ask this House to set aside the will of the testator, and to give him rights to which he was not entitled. "Spoliation," said the noble Marquess; but who wished to spoliate? Sir Thomas Wilson, according to the recital of the Bill, was a tenant for life, and no more. Let him enjoy the rights and immunities belonging to a tenant for life, but not give leases for ninety-nine years as against the person in remainder. He could not say that his father's will had been obtained by undue influence, or that it was contrary to law, but he asked their Lordships to set it aside because it was distasteful to him—because lie wanted to hare more powers than it gave him. If they thought that Sir Thomas Wilson, if he still lived, would be willing to alter his will and give greater powers to the tenant for life, that would be a ground for their interference; but Sir Thomas Wilson had given his son powers to grant long leases as to certain portions of his estates, but had cautiously, and, as Le believed, from motives of patriotism and benevolence, withheld those powers with regard to this estate in Middlesex. If they granted this application, there was no reason why the same principle should not apply to the whole of Hampstead Heath, 738 and it should not be altogether inclosed. When the former Bill was laid before the Judges, their attention was not drawn to the codicils of the will; but in the present Bill those codicils were recited, and it had been brought to the notice of the Judges that the testator gave these leasing powers as regarded some of his estates, but entirely withheld them as regarded the manor of Hampstead; and they had, after looking at those codicils, reported against the Bill. He should for these reasons support the Amendment.
§ LORD ST. LEONARDS
said, that the arguments on both sides had satisfied him that the Bill ought to pass, and he should, therefore, vote for the second reading. The arguments of his noble and learned Friend the Lord Chief Justice had astonished him. The noble and learned Lord had stated, in the first place, that this Bill was contrary to the principles of the jurisprudence of the country. Their Lordships knew that that was not correct. The jurisprudence of this country allowed every man who was a tenant for life to apply to Parliament for leave to do certain things which he had not the power to do by the will of his predecessor. Again, his noble and learned Friend objected to Sir Thomas Wilson that he was only a tenant for life. Why, it was because he was a tenant for life, without the power sought for, that he came to their Lordships to ask it. It was an every-day occurrence for a tenant for life to come to Parliament under such circumstances. There was no person claiming under the settlement that objected to the power being granted; and in truth, the whole opposition to this Bill was not with reference to the estate or to the intention of the testator, but was simply because they would not have Hampstead Heath inclosed. It was quite in the ordinary course of legislation for Parliament, by means of private Bills, to grant tenants for life powers of leasing such as those now sought for at their hands. The Lord Chief Justice admitted that there might very well be a general Act for everybody, but said that they ought not to pass particular Acts for individuals. Their Lordships would no doubt hold exactly the other view. What had the Legislature done with respect to Ireland? In Ireland every man who had only three days to come on a lease originally granted for sixty years had the power to grant building leases for ninety-nine years and improving leases for thirty-one years; so that Parliament had given powers ten times more extensive 739 than those now sought for to an entire nation, and was now asked to deny them to a private individual. Had the opposition to this Bill reference to the intention of the testator? Why, all the evidence went to show that the intention of the testator was in favour of the object of this Bill. The testator in his will gave such powers as seemed then to be necessary for other portions of the property, and in a codicil he gave powers to meet the altered circumstances of Woolwich. But the Lord Chief Justice asked, what would the testator do if he were now living? No reasonable man could doubt for a moment, after looking at the map upon the table, what the testator would do if he were now alive, or what he would have done if the altered circumstances had occurred in his lifetime. A railway now ran through the middle of the property, and the whole of the estate was surrounded by ground either now built upon, or to be leased for building purposes. He had not the slightest doubt, for his own part, that if the testator were now living, he would give a power similar to that which was asked for in this Bill. He would vote for the second reading of the Bill.
THE BISHOP OF OXFORD
said, that, without entering into the legal argument, he would give his vote in favour of the Amendment, and against the granting of this privilegium, upon a plain and simple view of the question. No injustice could be done by refusing a privilegium, which was of the nature of a favour; and he thought that any one coming to Parliament for such a privilegium should be required to show that it would not, either by itself or by its almost necessary consequences, inflict an injury upon the public at large. Now, they could not forget that the promoter of this Bill had in former Sessions asked for far more extensive powers than those which he was now endeavouring to obtain. That showed the animus of Sir Thomas Wilson; and in a letter which he had received from a highly respectable gentleman, living on the spot, the writer stated that before the people in that locality commenced their opposition to the present Bill, they inquired of the agents for the promoter whether, if Sir Thomas should obtain the authority which he was now asking, he would be satisfied with that, and pledge himself to seek no more. In reply, the agents stated that their client considered this Bill as only the first instalment of what rightfully belonged to him, and that he was determined to have the whole 740 of Hampstead Heath as soon as he could get it. Now, he thought a person coming to Parliament with such intentions and with such an animus ought to be watched carefully, and that their Lordships ought to exercise great discretion before they granted the indulgence which was now asked for. He begged them to remember that he was now pleading the cause, not of those in a high rank of life, who could enjoy the pure air of heaven in the country whenever they pleased, but of the poor inhabitants of London, whose interests were at stake, and who could reach only these suburban liberties, which he held they were not, for the advantage of an individual, to run the risk of limiting.
§ THE EARL OF SHAFTESBURY
opposed the Bill on the ground that it appeared to him that the testator intended that this ground should not be built upon.
§ THE EARL OF DERBY
said, he was anxious upon this occasion, as on every other, to come to a decision in accordance with that which he thought justice required. The right rev. Prelate had said that they were bound to look to the interests of the poor, and had read an anonymous letter which stated that Sir Thomas Wilson had declined to pledge himself not to bring forward, at some future period, another Bill for the inclosure of Hampstead Heath. Now, it was important to remark, with regard to Hampstead Heath itself, that Sir Thomas Wilson had never proposed to interfere with it. He had sought, and had been refused, power to build upon land belonging to himself in the immediate neighbourhood of Hampstead Heath; but with regard to the heath itself, he had never at any time asked for such powers. The present Bill did not at all affect Hampstead Heath. It referred to a part of the estate which was at a considerable distance from Hampstead Heath, and separated from it by a main road; nor did it interfere in the slightest degree with the public enjoyment. Therefore all the anxiety of the right rev. Prelate for the poorer classes was an anxiety, not for the consequences of this Bill, but for those of a Bill which, if the present one passed, he supposed Parliament would be called upon to consider in some future Session. Now really that was carrying their anticipations somewhat too far. If it was wrong upon public grounds to pass the present Bill, let it be opposed, and let the grounds of opposition be stated to the House; but if no public injury was to be apprehended from 741 it—if it only enabled the tenant for life to do that which it was exceedingly probable his predecessor, could he have foreseen the altered circumstances of the estate, would have given him power to do—he thought it would be wrong to refuse to pass it morely because its promoter might perhaps, at some future period, bring forward a Bill with reference to an entirely different part of the estate.
THE MARQUESS OF CLANRICARDE
On Question that "now" stand part of the Motion, Resolved in the Affirmative; Bill read 2a accordingly, and committed.
§ their Lordships divided:—Content 34; Not Content 11: Majority 23.