§ Order of the Day for the Second Reading read.
§ LORD CHELMSFORD, in moving the second reading of this Bill, said, it was intended to meet a case of great injustice which had been inflicted for many years upon the property and interests of an individual. The only person who was affected by the clause in the Act which he proposed to amend was Sir Thomas Maryon Wilson. Sir Thomas Wilson, under his father's will, was tenant for life of very considerable estates, and was also lord of the manor of Hampstead, the Heath, which formed part of the wastes of the manor. Many years ago the Finchley Road was made through the property, which made a considerable portion of it eligible for building purposes, and particularly that part of the estate consisting of sixty or seventy acres at the south-eastern corner of Hampstead Heath. Sir Thomas Wilson accordingly proposed to convert this portion of his estate to building purposes, and had laid out many thousands of pounds upon it. He proposed a plan by which detached villas should be erected of an extremely ornamental character, and they would have been a great improvement to the locality. But as he was only tenant for life, with powers under his father's will of granting leases for twenty-one years only, it was quite clear that he could not carry out his object without the assistance of Parliament. It was necessary for him, therefore, to apply for a private Act to give him extended powers of granting building leases in order to carry his scheme into effect. Considerable alarm was at that time entertained that it was the intention of Sir Thomas Wilson to interfere with Hampstead Heath. He (Lord Chelmsford) begged to state that from the beginning to the end of the opposition he had met with he had never entertained such an idea. That feeling of apprehension, however, induced a very serious opposition to the scheme. From the year 1829 down to the year 1854, various Bills—he believed six Bills—were 6 from time to time introduced by Sir Thomas Wilson to enable him to carry out his object. As they were estate Bills, they were, according to the old practice, referred to the Judges for their opinion. The fate of these Bills had been rather extraordinary. Out of the six Bills, the Judges reported in favour of four. Their Lordships' House passed two of the Bills under rather extraordinary circumstances—they passed one of the Bills when the Judges had reported against it, and they refused to pass the other Bill when the Judges had reported in its favour. The last Bill that was before that House was in 1854, when the Judges reported against it. Their Lordships passed the Bill; it was sent down to the House of Commons, and the House of Commons rejected it. So the matter remained until 1856, when the Bill was introduced for facilitating the sales and leases of settled estates. One of the objects of that Bill was to prevent the necessity of persons having limited estates, and in consequence the limited powers of leasing, being compelled to apply to Parliament for a private Act. There was a clause which authorized persons—amongst others, tenants for life—to apply to the Court of Chancery for authority to grant building leases for ninety-nine years. But there was a clause in the Act that the Court of Chancery should not entertain the application supposing that it appeared by the Bill or settlement, either by express declaration or manifest intention, that the person having the limited estate should not have this power. The Bill passed their Lordships' House with that clause in it which his Bill now proposed to amend; but when in the other House the same active and vigilant opposition which had been offered for so many years to the proceedings of Sir Thomas Wilson was renewed; the opponents of the Bill succeeded in introducing the 21st clause of this Bill—a clause framed to meet the individual case of Sir Thomas Wilson. It provided that the Court of Chancery should not entertain an application to grant these Powers from any applicant who had already applied to Parliament for a similar object, and when the Bill had been rejected on its merits or had been reported against by the judges. Now, he believed that there was no individual in the kingdom to whom that 21st clause could possibly apply but Sir Thomas Wilson, who was thereby prevented from exercising those powers which every other 7 tenant for life in the kingdom possessed. The patient forbearance of Sir Thomas Wilson during all these years had been very great. Year after year from 1857 to 1860 he tried to prevail on the House of Commons to obviate the injustice, by introducing Bills to repeal or amend this clause, so as to give him the same advantage which was possessed by every other man in the kingdom. But these Bills were invariably rejected by the Commons. Well, if the House of Commons had shown itself so hostile on every occasion to the proposal of Sir Thomas Wilson to get rid of this clause, how, it might be asked, could he (Lord Chelmsford) anticipate a more favourable reception for this Bill? He believed that a great change had come over the minds of the Commons on this subject. Formerly they had always been apprehensive that Sir Thomas Wilson's object was to enclose Hampstead Heath. As he had already stated to their Lordships, Sir Thomas never had any such intention. But they were aware of this—that Sir Thomas possessed the power, as lord of the manor of Hampstead, with the consent of the homage, and without any application to Parliament, to grant portions of the waste; and when his interest was ended, his successor, under the will of his father, would be absolute owner of the estate, and might exercise over it any power he pleased. Those persons who had been opposing Sir Thomas Wilson so many years now, therefore, thought that the best mode of securing their object would be to enable Sir Thomas Wilson to carry out that part of the scheme which consisted of laying out that particular portion of the property which he had described to their Lordships in detached and ornamental villas; because, being near the Heath, it would be a great addition to the value of those buildings if the Heath were left open and unenclosed; and they believed that if they did not oppose Sir Thomas Wilson's desire to obtain this power by the amendment of the clause, they would accomplish their object and protect themselves against the consequences, the apprehension of which had occasioned their opposition so many years. He asked their Lordships, then, whether they would hesitate to give a second reading of the Bill, which was intended to obviate as great an injustice as had ever been committed, and the most vexatious opposition to the improvement of a gentleman's property that had ever taken place in this country. He trusted that 8 their Lordships would have no hesitation to give the Bill a second reading, and he confidently anticipated that it would receive the sanction of the House of Commons.
§ Moved, that the Bill be now read 2a
§ LORD CRANWORTHsaid, he entirely concurred with every word which had fallen from his noble and learned Friend as to the obnoxious nature of this enactment. The clause was obviously directed against one particular case, and was intended to debar one particular individual from making an application to the Court of Chancery, which every other subject in the Kingdom was entitled to make. Now, he (Lord Cranworth) was the very last person to desire to withdraw any protection which could properly be given against the enclosure of Hampstead Heath, or any other of the open heaths or commons in the neighbourhood of the Metropolis, for he believed them to be essential to the health and well-being of its inhabitants. But, then, if Sir Thomas Wilson's successor was to be the absolute owner, the only legitimate way to preserve the Heath to the public would be to say, "Let the public purchase it." It was fit also that it should be known that, as far as he (Lord Cranworth) could see, the land of which Sir Thomas Wilson proposed to grant building leases had not the remotest connection with Hampstead Heath. According to the plan which was exhibited when the matter was last before the House, the nearest point of the land was either just over or under a mile from the nearest point of the Heath, being somewhere near what was called the Swiss Cottage. He should be glad even if that land could be laid out in rising walks for the benefit of the public, but that was impossible; and why Sir Thomas Wilson should not have the same privilege of dealing with this portion of his property as other people with theirs, he could not conceive. At the same time, he thought one or two other Amendments of the Act might usefully be included in this measure. A noble Earl had pointed out to him the objection, that whereas the Act authorized the Court of Chancery to give powers to trustees to make building leases, the trustees, although thus authorized, could not make a binding lease without the consent of the Court of Chancery in each particular case. This provision had a most deterring effect with those persons who had to go to the Court of Chancery; for though the expense might not be more than £1 or 9 £2, and the time occupied not more than a fortnight or three weeks, yet the notion of having to go to the Court of Chancery frightened purchasers, and put the owners of such property under great disadvantages. He further thought that the clause, which, speaking from recollection, he believed had been introduced into the Act, requiring notices to be given to the district, was wholly unnecessary and ridiculous, for these matters had nothing whatever to do with the public, but only interested the parties individually concerned.
§ THE EARL OF MALMESBURYsupported the second reading of the Bill. He was of opinion that the interpretation which had been put upon the Act had defeated the intention of its framers. He did not quite agree with the noble and learned Lord who had last spoken. The expense of the application to the Court of Chancery was rather more than the noble and learned Lord had stated it. Still it was not great. But, as the noble and learned Lord had stated, it was an unnecessary hardship to compel parties, after they had once obtained the general powers, to go to the Court of Chancery for the approval of each individual lease; and there was no doubt an indisposition on the part of the intending lessee to go to the Court of Chancery, and also the trustees. It made a long business of it. In his own case, he obtained the sanction of the Court to an intended lease ten months ago, the lease nevertheless remained unexecuted.
§ LORD REDESDALEremarked, that although the clause in the Act was intended to affect only one case, it had unfortunately been held to have a more general application. Where Parliament had granted leasing powers over only a portion of an estate, the Court had held years afterwards, on application for leasing powers over another portion, that further Parliamentary powers must be obtained. As the clause had been introduced into the Bill solely to apply to one particular case, if their Lordships should be of that opinion, it might be better to repeal the clause altogether.
§ LORD EBURYsaid, he was quite aware in how invidious a position a Member of that House place himself who should venture to oppose such a measure as this; but before their Lordships decided they ought to know what the facts really were. He did not for a moment impute any wilful misrepresentation to the noble and learned Lord (Lord Chelmsford), but in 10 his ex parte statement there were one or two errors. It was incorrect to suppose that Sir Thomas Wilson had never contemplated the enclosure of Hampstead Heath, because in the first Bill which was introduced a clause was to be found extinguishing all manorial and common rights over the Heath. It was also a mistake to suppose that the Judges had reported four times in favour of his Bills. They had never reported once in favour of any of the Bills, although it was true that on one occasion they made a report upon the will which might bear that interpretation.
§ LORD CHELMSFORDsaid, the noble Lord was in error. The Judges had reported four times in favour of the Bills, and twice against them.
§ LORD EBURYsaid, he had not searched the records of the House; but, after he had made, he almost thought, 150 speeches on the subject, containing these statements, which had never been controverted, he made them quite as confidently as the noble and learned Lord. Those statements were that the Judges had never once reported in favour of the Bill, and that Sir Thomas Wilson contemplated the enclosure of a part of Hampstead Heath. It was quite true that the property lay in two different directions, one of which was towards the Heath; and a compromise was offered to Sir Thomas Wilson not to oppose his building upon the other part, if he would pledge himself to leave the Heath portion unenclosed. Sir Thomas Wilson refused, and he believed there never was a man who had thrown away more time and money than Sir Thomas Wilson. With regard to the argument that the clause was unjust because it affected only one individual, he was appointed to assign Reasons which were drawn up by the noble and learned Lord on the Woolsack, and one of those Reasons was, because it was a universal principle that no judicial authority created by Parliament ought to have the power of reversing the decisions of Parliament in matters of private rights, which must be guided and governed by the opinions of the Judges of the land. The other Reason for retaining the clause was that the previous decisions of Parliament in rejecting the Bills had justified other persons in making arrangements, founded upon the supposition that the powers sought by a tenant for life, and refused, would never be granted indirectly by means of an application to the Court of Chancery.
THE LORD CHANCELLORbegged the noble Lord's pardon. He did not remember drawing up any such Reasons.
§ LORD EBURYsaid, that on that point there could be no doubt. The noble and learned Lord drew them up in his presence, and handed them to him without the intervention of any other person. The will under which Sir Thomas Wilson succeeded to this property was not made a long time ago, when a totally different state of things existed. The will and codicils were dated in 1821, after the Regent's Park had been made, and after it was obvious that this property would become very valuable for residences; yet the late Sir Thomas Wilson, while he gave the present Sir Thomas power of granting building leases on the property at Charlton and Greenwich, did not give leave to build on the Hampstead portion of his estates. The clear inference, therefore, was that he did not intend him to have the power. Sir Thomas Wilson was not prevented coming to Parliament. He could just as well come to Parliament by the able mouth of his noble and learned Friend as endeavour to attain his object by an application to Chancery. It was not, therefore, a denial of justice. He had now informed their Lordships what the real facts were, with which he was perfectly conversant, and he left them to deal with the Bill as they thought proper.
THE LORD CHANCELLORsaid, the noble Lord seemed to have a very vivid recollection of what had passed; and he was not surprised that the noble Lord should feel an interest in this subject. The noble Lord had been Member for Middlesex, and headed the opposition to the Leases and Sales of Settled Estates Bill, of which he (the Lord Chancellor) had charge in the House of Commons; and so vigorous were the efforts of the noble Lord and his friends that it became necessary to yield to their demands, and to allow the clause to be introduced which it was now sought to modify or to repeal. The noble Lord might, as he had said, have made 150 speeches upon the subject, but of those, no doubt, at least 140 were addressed to his constituents. But did the noble Lord remember that there was an understanding when that clause was accepted, that the metropolitan Members would unite in an endeavour to obtain from their constituents a sum of money to compensate Sir Thomas Wilson for the wrong which had been done him by the introduc- 12 tion of the clause? He had waited in vain for the fulfilment of that promise. The clause was introduced under the specious argument that it was not right to make the Court of Chancery an appellate tribunal from the decision of either House of Parliament, and that therefore, in cases where either House had rejected an application, it should not be renewed in the Court of Chancery. So well were the objects sought disguised by that specious argument, that, notwithstanding all his efforts, he was obliged to yield, and the clause was introduced into the Bill. He had from the beginning regarded the clause as most unjust, depriving an individual of a particular right for the public benefit. He thought, that if that were done, the ordinary course ought to be pursued, and full compensation given to the person whose rights were affected. After the Leases and Sales of Settled Estates Bill had passed, the right hon. Gentleman the Member for Dublin University (Mr. Whiteside) introduced a Bill into the other House to cure the injustice; but the opposition was too strong, and the Bill did not pass, although he (the Lord Chancellor) had given it his best support, for which he received a letter of thanks from Sir Thomas Wilson. He trusted that their Lordships would receive the Bill with favour, as a means of remedying a grave injustice; but he concurred in the recommendation of the noble Lord the Chairman of Committees, that the form of the Bill should be altered, and the clause in question he completely repealed. He thought also that the Bill should not be limited to that particular provision, but should introduce general amendments which had been found to be necessary. That would have the advantage of giving the Bill a less individual character, which might operate favourably in another place.
THE MARQUESS OF CLANRICARDEexpressed his gratification at the introduction of a Bill, the object of which was to redress as gross a piece of confiscation as had been perpetrated by any despot in Europe. The noble Lord said that the House ought to hear the other parties interested; but he should like to know who had any concern in the matter except Sir Thomas Wilson?
§ LORD CHELMSFORDsaid, he wished to state to their Lordships that he had no personal acquaintance with Sir Thomas Wilson. The case was brought under his notice some years ago, when, being con- 13 vinced that great injustice was being done, he felt it his duty to take up the matter. The noble Lord said that Sir Thomas Wilson did not desire to build upon the Heath, but upon land adjoining, which would materially interfere with the amenities of the Heath. But was that any reason for depriving him of his legal rights? He must remind their Lordships, that if the case was as the noble Lord represented, and that if the terms of the will under which Sir Thomas Wilson held the property directly or impliedly excluded him from the exercise of the power of granting building leases, the Court of Chancery would deal with that question and would refuse the relief sought; but it was unjust for Parliament to make a particular exception to a general law. He was disposed to think the suggestion of the noble Chairman of Committees for repealing the 21st clause altogether was a sound one, and therefore was prepared to adopt it, and also the suggestions of the noble and learned Lord (Lord Cranworth).
§ Motion agreed to.
§ Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.