THE DUKE OF ARGYLLsaid, he desired to direct their Lordships' attention to a Memorandum of the Board of Trade lately presented to both Houses of Parliament as to the dealings of that Board with the Foreshore and Bed of the Sea. He was happy to say that the remarks he was about to make were in no way of a party character, and he was anxious to state in the outset that he had no complaint whatever to make against his noble Friend who now presided over the Board of Trade (the Duke of Richmond). On the contrary, in a case which had occurred to himself in reference to this subject he had been treated by his noble Friend with the utmost courtesy, and he believed it was his noble Friend's desire to modify what was, in his opinion, a very erroneous system of management. Before endeavouring to explain to the House what there was worthy of public attention in this particular document, it was absolutely necessary to say a few words on the position of the contest between the Crown as regards its claim to foreshore and the bed of the sea and the private individuals who had claims over the same portion of the soil. Not being a lawyer, he should not venture upon an exposition of the state of the law on the subject; and, indeed, he believed it would not be an easy task for even the best lawyers in their Lordships" 1815 House to give a clear account of that law, which was, to a great extent, unsettled. That, however, did not interfere with what I he might term the outside boundaries of the question. He apprehended it would not be questioned by anyone that the Crown had certain claims and rights over the bed of the sea and foreshore; and, on the other hand, he believed no one had I ever questioned, on the part of the Crown, that the claims of the Crown, whether claims of ownership, or as trustee for the public, were subject to certain rights on the part of the public, and on the part also of private individuals. Those rights mainly depended—first, upon Common Law; secondly, upon charters; thirdly, they were incidental to the tenure of property which abutted on the foreshore, and were necessary to the enjoyment of the land; lastly, there were rights acquired by individuals or public bodies in consequence of use and prescription, which was the foundation of a very great deal of the property held by Members of that House as well as by the public at large. Some years ago, his attention had been directed to this subject! by a very great change which occurred in j the spirit of the administration of the Crown rights in Scotland. A case arose in reference to his own property on the Firth of Clyde, and led in 1855 or 1856 to a correspondence with the Treasury, which had since become a Parliamentary Paper. He would state the general result of that correspondence, and the impression it left on his mind—which impression, he believed, would be produced on the minds of all who perused it—at all events, the impression it left on his mind was that a systematic attempt was being made in Scotland, and he thought in England also, to convert the limited ownership of the Crown into a claim of absolute and unrestricted ownership over the bed of the sea and the foreshore; and that, in the second place, it was intended that this alleged absolute property of the Crown should be made a source of revenue. Now, he was bound to say that that correspondence and the circumstances which arose in connection with it left an impression on his mind that the public Department which professed to represent the Crown—the Office of Woods—was proceeeding to enforce its claims in a very oppressive spirit, and, he might add, in a very insidious and oppressive manner as regarded the interests and rights of private individuals. He ventured to call attention to that corre- 1816 spondence in justification of the somewhat severe remarks he had now made. Now, immediately after that correspondence, and, as he had reason to believe, in consequence of the facts then brought under the notice of the Government of which he was then a Member, a Bill was introduced to transfer the management of the claims of the Crown from the Woods and Forests to the Board of Trade. This, it must be admitted, was a most desirable change. In the first place, the Board of Trade had no pretension and no ambition to be a Revenue Department. Now, the Woods and Forests was a Revenue Department; and he did not at all dispute that it might have been the duty of those who presided over that Department to make the most of what they considered the rights of the Crown; but the Board of Trade not being a Revenue Department was better qualified to act in the spirit of public policy and with a view to the protection of public interests. The importance of the document to which he wished to direct attention arose from the circumstance that it was the first document, issued since the transfer of these claims to the Board of Trade, which professed to give an account of the principles upon which those claims were in future to be administered. It was therefore a document of very considerable public interest, as it affected not only individuals, but also an important public Department. He would now say a few words respecting the form in which the documents appeared. In the course of his correspondence with the Woods and Forests he found that he was placed under a very great disadvantage, in consequence of a change which had occurred some years previously in regard to the Parliamentary position of that Department. Some fifteen or twenty years ago the Department of Woods and Forests was presided over by a responsible Minister of the Crown, who was usually a Member of the Cabinet, and always a Member of the Government. About that period, however, the administration, of the Woods and Forests was, for an object and under circumstances of which he was unaware, separated altogether from the control of a responsible Minister of the Government. The administration of that Department was then intrusted to a subordinate and permanent Officer of the Crown; and while his correspondence was going on he found that there was no Parliamentary or Ministerial chief to whom he could refer. He, therefore, appealed to his right hon. Friend, 1817 who was then at the head of the Treasury, and asked to whom he ought to address his complaints. He was told that there was no public authority to which he could address them, except the Lords Commissioners of Her Majesty's Treasury. Now, in his experience of the Lords of the Treasury, he had always found it extremely difficult to convince them that any net which gave them an increase of revenue was unjust to individuals, who were consequently placed at a considerable disadvantage when the had to complain on such a matter to such an authority. However, as there was no other authority to appeal to, he directed his appeal to the Treasury. Here again the transference to the Board of Trade promised a remedy for this evil—since that Board had a Parliamentary responsible head. But this document came directly from a subordinate officer. It was a Memorandum from the Board of Trade, professing to give an account of the policy to be hereafter pursued, and yet it was not signed by a responsible Minister—it was signed by Mr. Farrer, a gentleman of great respectability, who presided over a particular Department in the Board of Trade; but surely so important a document ought not to be signed solely by one of the permanent Civil Officers of the Crown! The policy it enunciated was a matter of great importance to a large section of the public, and the Board of Trade ought to be responsible for that policy through their Parliamentary head. In looking over the document the first thing which struck him was the animus which pervaded it as regards the rights of private individuals. He need hardly remind their Lordships that the rights of individuals and of public bodies over foreshores depended to a great extent on user and wont. On the first page the following passage occurred in reference to the resistance offered to the claims of the Crown by private individuals:—
In many places acts of ownership, or apparent ownership, are going on, and we either do not know of them, or cannot prevent them, The law seems to have decided, absurdly enough, that while the statutory period in case of actual and complete adverse possession sufficient to give a title as against the Crown is sixty years, yet that enjoyment for a much shorter period and of a much more limited kind may be enough to justify a jury in finding that an original grant from the Crown is to be presumed.Now, he ventured to appeal to the House, and to the noble and learned Lord on the Woolsack, whether this was the kind of language which ought to be used by a per- 1818 manent Civil Officer of the Crown when speaking of the rights of property as defined and secured by the Courts of law. Mr. Farrer said the Courts of law had decided "absurdly enough;" but he (the Duke of Argyll), on the other hand, maintained that the legal decisions were strictly in accordance with the justice of the case. The following passage also occurred in regard to the claims of the Crown:—Its title is ousted by adverse possession of sixty years, instead of twenty-one. On the other hand, it has no one to look after its rights; and the lawyers have practically altered the Statutes of Limitation applicable to the Crown, by the fiction of allowing a jury to presume a grant.Such was the way in which this permanent Civil Officer spoke of the Judges of the land, and of the decisions arrived at in the Courts of law. He would now read another passage which exhibited the same animus, and showed that the Board of Trade, as far as Mr. Farrer could be taken to represent it, was pursuing the same tactics as the Woods and Forests formerly pursued, against the rights of individuals—This"—[the assertion of the rights of the Crown]—"which logically ought to be the first thing done, it will probably be prudent to postpone.The Memorandum went on to state—I have no doubt that in the end we shall have done something to ascertain or determine these rights; but with the present prejudice against the Crown it would be unwise to stir the question now.In consequence of what the Memorandum described as "the present prejudice against the Crown," but which, in reality, was a prejudice for right and justice, it was considered unwise to stir in a general manner. It was thought more prudent to proceed step by step—to get individuals to acknowledge the rights claimed for the Crown. In page 3 of the Memorandum he found this statement—We shall have no public support in protecting a mere title which does not appear to be of any immediate public advantage. And we shall be not unnaturally found fault with if we interpose obstacles to the execution of a really useful work. In such cases we must endeavour, as well as we can, to encourage the work, and at the same time get the parties to make some acknowledgment j which may reserve the Crown's rights.That was the principle on which the Department appeared to have proceeded—I to "get" individuals to acknowledge ' rights of the Crown over those foreshores by the payment of a small sum. He then came to a passage in the Memorandum 1819 which had been incidentally referred to the other day. In the last paragraph of page No. 3, there was this passage—Lastly, in cases where the Crown's title is doubtful we must act in the same way as if it were good, except that we must do so with greater caution, and be more ready to compromise the question on the principle of reserving to the public their rights and easements over the soil.Now, these were the precise tactics that had been previously adopted by the Office of Woods and Works. He wished this to be distinctly understood, and to go forth to the people of England and Scotland, that when the Board of Trade claimed for the Crown rights over foreshores, such a claim did not afford the slightest presumption that the Crown really possessed any such rights. If any persons had such rights, they would do well to follow the example set them in Scotland. There an association was formed for the defence of the rights of individuals, and he was happy to say that in nearly every case of legal proceedings they had been successful. He presumed that to this fact might be attributed the tone of complaint adopted by Mr. Farrer of the Board of Trade. The Memorandum was very useful, as showing the way in which affairs were managed by permanent Civil Servants not subject to the control of Parliament. That observation might appear to be in contradiction to his statement that he had no feeling against the Board of Trade; but the sequel would show that he was not making any charge against his noble Friend the President of that Department. He would give an example of the way in which these matters were administered in Scotland. On a property of his own on the Firth of Clyde, a person who held a feu from him had commenced to take sand and gravel from the foreshore to make an embankment on his own feu. There was a long coast with an advancing tide in that neighbourhood; the roads were very close to the sea shore, and the proprietors had been put to great expense in preventing injury to the land by the encroaching tides. It was, therefore, a matter of great importance that the foreshores there should be preserved. Their Lordships would observe that, as the proprietors were road trustees as well as owners of the land, it was not likely that they would remove gravel or other materials to an extent which would do injury to the seawall that had to be kept up; but it was quite another thing when a public Office stepped 1820 in and granted licences to third parties to take gravel and sand merely with the view of setting up rights of the Crown. In the case to which he now referred, the tenant was taking gravel and sand from before his (the Duke of Argyll's) property. Acting on advice, he interdicted him before the Sheriff of the county. The case first came before the Sheriff Substitute, who decided that the holder of the feu had no right to take away the gravel and sand; but there was an appeal to the Sheriff Depute, and what was the astonishment of his (the Duke of Argyll's) agents when they were confronted by an Order or Licence from the Board of Trade, authorizing the tenant to do what the Sheriff Substitute had decided he had no right to do ! That order or license had actually been issued pedente lite, after the Sheriff Substitute had interdicted the person to whom it was granted. When he (the Duke of Argyll) was made acquainted with the fact, he applied to his noble Friend the President of the Board of Trade, who, on inquiry, found that the issuing of the licence was only part of the system adopted in these cases by the Board of Trade. His noble Friend, however, after making inquiries, revoked the licence, and returned the 2s. 6d. which had been paid for it. Now, he objected to this system of getting individuals to acknowledge rights claimed for the Crown, with no inquiry as to the effects which might arise to other parties interested in the shores, and he must express his opinion that in ninety-nine cases out of 100 the removal of sand and gravel from foreshores in Scotland was injurious to the adjoining property. He believed, too, that the granting of licences to remove gravel and sand in the way they had been granted in the case to which he had referred was most illegal; and he ventured to suggest that no such licences should be issued in future without full notice to all parties locally interested. In addition to the Memorandum, which was not signed by a a responsible Minister, but by Mr. Farrer, there was a document in the Appendix to which he wished to call the attention of their Lordships. It contained the opinion of a Mr. Reilly. Two years ago, under the Government of Lord Palmerston, a Bill was introduced to transfer to the Board of Trade the powers then exercised by the Woods and Forests in respect of the foreshores. As a Minister of the Crown, he (the Duke of Argyll) did not 1821 take any part in reference to the introduction of the Bill; he did, however, express to his Colleagues his opinion that in any measure of transfer from the one Department to the other, care should be taken that it should be nothing more than a transfer, and that no provisions should be introduced involving directly or in directly any increase in the power of the Crown. Lord Palmerston, the Prime Minister, the then President of the Board of Trade, and Mr. Gladstone thought that he was right in that view; but when the Bill, as framed by the Department, came to be discussed in their Lordships' House, there were some noble Lords who thought that it contained material additions and material alterations—that not only was there a transfer, but that there were provisions giving the Board of Trade power greater than that possessed by the Woods and Forests. He rather thought that was the view taken by his noble and learned Friend on the other side (Lord Chelmsford). Well, in consequence of the objections taken by his noble and learned Friend and other Members of their Lordships' House, the Bill was altered with a I view of securing that no power should be exercised by the Board of Trade which had not previously been exercised by the Woods and Forests. Now, what was the observation made on that circumstance by Mr. Reilly, whom he supposed to be the legal authority under whom the Bill had been drawn up—I have considered 'the Crown Lauds Act, 1866,' with reference to Mr. Farrer's note of the 10th instant, and its inclosure, and his note of the 11th instant. I concur generally in Mr. Farrer's view of the effect of the Act It is not necessary to go into details for the present purpose. It is plain that the Board of Trade will find itself seriously fettered in the administration of the foreshore by the terms of the Act as it passed. When the Bill was undertaken and introduced it was not contemplated that the transfer of the foreshore to the Board of Trade from the Woods and Forests should be clogged with the provisions introduced into the Bill in its passage through the House of Lords.The opinion of Mr. Reilly was entirely at variance with the understanding which he had had with his Colleagues in Lord Palmerston's Government; and certainly it was an illustration of the esprit de corps existing between the permanent Civil Servants in reference to matters of this kind. There was another passage in this Memorandum which he must read to their Lordships— 1822When the Bill went up to the House of Lords objections were raised to it on the part of some proprietors of land in Scotland—the Duke of Argyll, the Duke of Buccleuch, the Duke of Sutherland, and others—who alleged, among j other things, that the Crown's rights to the foreshore are not, by law, of the same nature or extent in Scotland as in England. The result was, that in order to save the Bill it became necessary to put it into the form in which it receive d the Royal Assent.Here again were observations which ought never to have been submitted to Parliament in such a shape. When a Bill left their Lordships' House, and was assented to by the other House of Parliament, it became an Act of Parliament. It was not the deed of individuals either in one House or the other; and it was, to say the least, unusual and irregular that a gentleman in the position of the writer of this Memorandum should designate certain individual Members of their Lordships' House, who were represented as taking in their own interest a course contrary to the law and to the declared opinion of Parliament. He must say that, taking the document from beginning to end—the absence of the signature of any responsible Minister—the language which it held with regard to the rights both of individuals and of the public, and the references which it contained to individual members of their Lordships' House, it was a most improper document to proceed from any Public Department, and it ought at once to be withdrawn. The future policy of the Government, moreover, upon matters of this kind ought to be decided by a Minister responsible to the Government and to the country, and not by permanent Civil Servants of the Crown, who, however honourable and upright in their conduct—and he should be the last to deny or doubt the immense value of the permanent Civil Service to the administration of public affairs—were apt to take a very limited, and almost a selfish view in the interest of their own Department, without regard to the general policy of the country. He hoped that his noble Friend who now presided over the Department would take effectual steps to lay it down, both as an official rule and ns a matter of honour that, in future, whenever measures affecting, or that might affect, the rights of individuals in foreshores were about to be submitted to Parliament ample notice would be given to sill parties affected by such proposals. A Bill had been brought in some time since with regard to fisheries which, if it had passed without alteration, would, in the 1823 opinion of some of the most eminent legal Members of that House, have materially increased the power of the Crown over foreshores, to the detriment of individuals, and he fully believed of the public also. It was perfectly natural that permanent Civil Servants of the Crown, who administered the business of the several Departments irrespective of the change of parties, should argue themselves into the belief that all the powers which they possessed or claimed were powers to be exercised in the service and for the benefit of the public. But he entirely denied that the control claimed for the Crown had been exercised formerly by the Office of Woods and Forests, and recently by the Board of Trade, in the manner most conducive to the public interest. It was idle to talk of foreshores, and of any rights of the Crown in them, as a source of important permanent revenue. He believed that rights to the foreshores formed as much the subject of private property as rights to the land, and ought to be enjoyed as such, subject, of course, to public use when necessary, and to such control by the Board of Admiralty as might be necessary to secure the interests of navigation. But, subject to these necessary conditions, the interference of officials ought to be restrained; for he had begun at last to fear that proprietors would be unable to embark or disembark their own timber from their own estates without the leave of some official in a public Department in London previously obtained. The course taken by the Woods and Forests for many years past, and now taken by the Board of Trade, was adverse, he maintained, to public rights and to the public interest. And the action taken by the association in Scotland was not more necessary to assert the rights and defend the interests of individuals, than it was to protect the public from this strained assertion of the rights of the Crown.
§ THE DUKE OF RICHMONDsaid, that before entering upon the details of the matter brought by the noble Duke under the notice of their Lordships, he begged to express his acknowledgments for the manner in which his personal share in the conduct of the Department had been alluded to. But the noble Duke, if he had been lavish of his praise as far as he (the Duke of Richmond) was concerned, had been equally lavish of his abuse upon one of the permanent Civil Servants of the Crown, the permanent Secretary to the Board of Trade—than whom, as far as his 1824 short official experience enabled him to pronounce an opinion, he knew no better public servant in any of the Government Departments. The noble Duke had alluded to some clauses formerly contained in the Sea Fisheries Bill, under which the rights of individuals to the foreshore might have been seriously affected. But what had occurred with regard to that Bill? At the instance of his noble and learned Friend Lord Chelmsford, Clauses 46 and 49 were withdrawn and another clause substituted, to meet the injustice of a case which his noble and learned Friend had properly pointed out; and it was with great satisfaction he found that the course so taken received the entire concurrence of their Lordships. But as soon as the Bill reached "another place" one of the noble Duke's former Colleagues (Mr. Milner Gibson) gave notice of a Motion to re-insert the very clauses which the noble Duke in his speech that evening had condemned, and which had been unanimously rejected by their Lordships.
§ THE DUKE OF RICHMONDperceived that complete unanimity did not exist among the Members of the late Administration. To explain the nature of the remarks contained in the Memorandum, it was necessary to mention how that document originated. Down to the year 1866, the power over the foreshore was in the hands of the Commissioners of Woods and Forests. In that year—not for the reasons which the noble Duke had suggested, but in consequence of an official correspondence in which it was pointed out that there was great inconvenience in two Departments having to deal with matters very much of a cognate character—an Act was passed transferring the control of the foreshores from the Woods and Forests to the Board of Trade. The Board of Trade till then never having been called upon to deal with this subject, it was thought advisable that a Memorandum should be drawn up for the information of the Department, lie was not at that time a Member of the Government, but he did not on that account seek to evade responsibility for the Memorandum; and their Lordships would not fail to perceive that upon the assumption of entirely new duties by a Department it was most desirable to establish some system and to provide for unity of action in all cases, so that conflicting de- 1825 cisions might be avoided. The noble Duke complained that this Paper was not signed by a responsible Minister. True, it was not signed by a Member of the Government; but for every Paper emanating from the Board of Trade he (the Duke of Richmond) felt himself responsible, although it might not actually bear his signature; and he believed the practice in very many of the Departments was for the documents to be signed by the Secretary of that Department. What might have been the practice in the Departments with which the noble Duke had been connected he was not, of course, prepared to say; but certainly, in the Department of Foreign Affairs, and, he believed, in the Departments of the different Secretaries of State, though the practice was not to require the signature of the Minister himself, in each case the Minister was just as responsible as if he had signed the Paper with his own hand. This document, as he had stated, was drawn up as a guide to the Department in the conduct of the additional business with which it had been charged. At the time there was not the smallest intention of letting the Memorandum go outside the Department; it was a mere code of rules to be acted upon by the Department, showing the principles by which it should be guided in dealing with the foreshores. The document came before the public at the instance of a private Member of the House of Commons, who asked the Vice President to the Board of Trade whether there was any objection to lay upon the table the Memorandum of Instructions under which the Department was acting. The Vice President, not thinking there could be any objection to such a course, said he should be very happy to lay the Instructions upon the table, and did so without further consideration. Had it been intended at the time the Memorandum was framed to make it a public document, though the same facts would have been embodied, it would have been much more carefully worded, and some of the passages referred to by the noble Duke would not have been included. In substance the Instructions would have been the same, but the wording would have been more respectful and the details not so fully given. He might, perhaps, remind the noble Duke that this matter rested in England and Scotland on a somewhat different footing. Without professing to be a lawyer they might, in his opinion, take it that primâ facie the 1826 foreshore vested in the Crown, and that when individuals had a right to foreshore that right arose—in England at all events—from the fact that they had received that right by express grant from the Crown, or that it was the result of prescription or immemorial usage, in which case an original grant from the Crown is assumed. With regard to the Scotch question, he believed the position was somewhat different; and when he became the President of the Board of Trade he found himself in a somewhat invidious position, because, as a Scotch proprietor, he had subscribed to an association the views of which, to say the least, did not exactly coincide with those of the Department. Under those circumstances he had thought it highly desirable that this question should be set at rest, and a case was drawn up for the purpose of taking legal opinion. As, however, a great number of intricate questions were involved that opinion would take some time in preparing. He had not yet received it; but he was told that it would shortly be ready. Before be went into the English part of the question he would quote a passage from the case to show the animus which influenced the Department in this matter—
It further appears that the pecuniary interest of the public in the foreshore in question is a secondary one, and that the primary object of a Government Department charged -with the functions now committed to the Board of Trade should be to protect the public in the due enjoyment of the rights of navigation, fishing, boating, bathing, walking, &c. But in the present state of the law the Board of Trade are bound to deal with the foreshore, if belonging to the Crown as property, while the rights of the public over it, as well as the title to it, are constantly matters of dispute. The first step towards a settlement appears to be to ascertain what is the actual position of the Crown in Scotland as regards ownership of the foreshore. And it is with a view to determine the question that the present case has been prepared.The case was a very long one; but from this passage it was evident that the objects of the Board of Trade were to protect the rights of the public and distinctly define the rights of the proprietors. The noble Duke had, with great skill, selected passages from the Memorandum here and there, first from one part and then from another, with a view to show that the object was to drive the proprietors into a corner and make them submit to a compromise. Now, the noble Duke had referred to the following passage:—Lastly, in cases where the Crown's title is doubtful, we must act in the same way as if it 1827 were good, except that we must do so with greater caution, and be more ready to compromise the question on the principle of reserving to the public their rights and easements over the soil.He was prepared to say that that was a very proper paragraph, and one every word of which he was prepared to endorse. But if the noble Duke had looked at the former paragraphs he would have found these passages—The course to be adopted on receiving notice of such encroachment must differ according to the circumstances. The Act may not be injurious to the rights hitherto enjoyed by the public, and may only be objectionable on the ground that it tends to establish a title adverse to that of the Crown, and may thus help to prevent the Board of Trade from asserting that title in subsequent instances. In such cases we may be placed in great difficulty, especially if the Act itself is useful, and if the title of the Crown is doubtful.In another class of cases we shall see at once that the Act is immediately injurious to the public, and that there is reason to interfere, not only on the ground of its affecting title, but because it tends more or less directly to deprive the public of some existing right or enjoyment.The whole tenour of this Memorandum went on to show that the object of the Board of Trade was to protect the rights of the public, as was fully proved by the following extracts:—These clauses will probably give us ample power to make provision when the working plans are submitted to the Board of Trade both for the protection of public rights, of navigation, &c, and of the Crown's title; and we have only to see that the clauses in question are properly incorporated and not impaired by other provisions.Supposing it proves that what is proposed can be done (with or without modification) so as not to prejudice public rights or enjoyments, we may enter on the question of terms of purchase.The above suggestions have reference to the protection of the public, and though their tendency will be to diminish the value of the soil and the purchase-money of what we sell, we must be most careful to put them prominently forward.Their Lordships must bear in mind that this was a Memorandum drawn up for the purpose of guiding the Department in their conduct with reference to the foreshores. The Memorandum went on to say—There is one other point on which we should be careful. The frontager, though he may have no legal title, has certainly a considerable interest in the foreshore, and we must take care that he is heard, and that we do not hastily or wantonly authorize works on the foreshore which will be detrimental to him. For this purpose it will be right to require every intending purchaser and lessee to give notice to the frontager. And it may often, if not generally, be found both just and expedient to give him the right of pre-emption.He would not trouble their Lordships with 1828 the many extracts which he had marked, all of which would show that the object was to protect the public, and in no instance designed to injure the individual. Now with regard to the question of leases, the noble Duke (the Duke of Argyll) expressed a hope that an opportunity would be afforded for everyone being heard. He would, with their Lordships' permission, read the directions which were issued with reference to any application to the Inspecting Commanders of the Coastguard—I am to request that you will ascertain and report for the information of this Board—I, What use is at present, or has hitherto been, made of the shore in question, either by fishermen, boatmen, or the public generally; and whether the shore is now, or has been hitherto, used by the public for walking, bathing, boating, landing, fishing, gathering seaweed, &c, or for any other purpose? 2, Whether the lease or sale of the foreshore in question will in your opinion interfere with or abridge the exercise of any rights or privileges now or hitherto enjoyed by the public thereon, or with any use thereof which is now or has hitherto been made by anyone for any of the purposes before mentioned? The Board desire also to be informed, in the event of their proceeding with this application, what are the most advantageous places at which, and what are the best means by which, public notice of their intention should be given, in order that the population of the neighbourhood, and particularly those persons who have hitherto been accustomed to make any use of the shore, may not, without their knowledge be deprived of any rights to which they are properly entitled.Thus the necessity of giving due notice was enforced in language as strong as could, in his opinion, possibly be employed. He must apologize to their Lordships for having referred so much to these Papers, but he had felt bound to enter into this matter in detail after the remarks made by the noble Duke. With regard to the case referred to by the noble Duke, in which a licence had been inadvertently granted for the removal of gravel, the following was the official answer of the Board of Trade to the noble Duke's complaint—Your Grace is perfectly right in supposing that this Board had no knowledge of the facts mentioned in your Grace's letter when the licence in question was granted. Had these facts then been known, no such licence would have been granted. And now that your Grace has brought them to notice the licence has been withdrawn. In order that your Grace may fully understand the circumstances under which the licence was granted, a copy of the correspondence with Mr. Campbell is enclosed. As regards the principles upon which this Board is in the habit of dealing with cases of this description, I am to enclose, for your Grace's information, a copy of a memorandum which has been placed before Parliament, and which contains in general terms a statement of those principles.1829 The right to take gravel from the foreshore must have been obtained from the Crown. He said that, however, subject to the correction of the noble and learned Lord on the Woolsack. The foreshore in England must at some time or other have belonged to the Crown, and no individual owner of a foreshore had a right to remove gravel unless he had acquired that right from the Crown. If there were minerals on the foreshore the Crown would have an undoubted right to work them, as well as to give third parties a right to remove boulders and gravel. In speaking thus he referred to England only—he could not say what might be the case as regards Scotland. Although he had almost exhausted what he wished to say upon the subject, he must be permitted to say that he disputed some of the assertions of the noble Duke with regard to the Department over -which he had the honour to be placed. He could assure the noble Duke that Department was actuated by no ill-feeling towards individuals, and that it had never attempted by means of threats of legal proceedings to compel proprietors to lease the foreshores. The only object of the Department was to preserve the rights of the public without injuring the rights of individuals. He hoped the noble Duke would allow him to condole with him upon the manner in which he had been treated by his Colleagues when they were in Office. It appeared that the other day, when a private gentleman had paid 2s. 6d. for a licence to remove gravel, complaint -was made, and within twenty-four hours the licence was revoked, and the half-crown was returned. Contrast with that conduct of the present Board of Trade the conduct of the Board of Works appointed by the Government of which the noble Duke was a member, which had kept a threat of legal proceedings hanging over the noble Duke's head for four years, although the opinion of the Law Officers of the Crown was that the case against him would not hold water for a moment. He thought it unnecessary to go further into the Correspondence, as by the extracts he had read to the House he had succeeded in showing that the conduct of the present Board of Trade was not so bad as that of the former Board of Works had been.
§ LORD ROMILLYsaid, he would lay before the House a circumstance bearing upon the subject under discussion, which had recently come to his knowledge. Within the last fortnight a gentleman who 1830 was the proprietor of land adjoining the sea shore of South Wales, and who derived a very beneficial income from the sale of the limestones on the beach which were washed down from the cliffs, received a letter from the Board of Trade, stating that an application had been made to them to grant a licence to take the limestones, and asking if he had any objection to their granting such a licence. The gentleman replied that he had just as much objection to their dealing with the limestones as he had to their interfering with any other part of his property, and stated that the right to deal with the limestones had been enjoyed by himself and his ancestors from the time of Charles I. What the result of his communication was he had not heard. He was not going to dispute the doctrine stated by the noble Duke opposite (the Duke of Richmond) that the ownership of the foreshores lay originally in the Crown; but the same might be said of every acre of land in the country. The attempt on the part of the Board of Works to set up a claim to the foreshores on the part of the Crown was a most insidious one, and would be injurious instead of beneficial to the public interest, which required above all things that the rights of property should not be rendered insecure for the mere purpose of creating an income for the Government. He did not think that the document which had been so much referred to was ever intended to be made public, as it was presented to Parliament by accident, and was therefore infinitely more dangerous than if it had been drawn up for publication; especially as the principles it laid down were calculated greatly to render insecure the rights of property. Could any greater injury be done a man than for the Crown to pick out a portion of his property, and say, "This is Crown property; unless you can show your title to it you shall not continue in possession?" It was very difficult for individuals to resist pressure from the Crown for so small a payment as 2s. 6d. or 5s., and yet the payment of such sums would take the right from the proprietor and vest it in the Crown, lie trusted that Parliament would not sanction such an attempt to steal persons' property from them.
§ THE DUKE OF RICHMONDsaid, it was only just that he should state that in tie case referred to by the noble and learned Lord, the Board of Trade had communicated with the gentleman who owned the 1831 foreshore, and had informed him that after the title he had shown no further proceeding would be taken against him.
§ LORD STANLEY OF ALDERLEYthought the mode frequently resorted to for establishing the rights of the Crown by obtaining some acknowledgment from private proprietors, by the payment of some small sum, 2s. 6d. or 5s., was highly objectionable. This was a mode of proceeding very often adopted in Wales, where the officers of the Woods and Forests were continually making claims on the part of the Crown. Very extraordinary proceedings had, to his own knowledge, happened in the case of the trustees of the river Weaver. This was a matter which required the attention of the noble Duke (the Duke of Richmond) and the Board of Trade. He hoped a more liberal spirit would in all these cases be adopted with reference to the rights of private proprietors.
§ EARL GRANVILLEsaid, it was quite clear that the Board of Trade had duties to perform in protecting the rights of the Crown; but those duties ought to be performed in the largest spirit, and in the manner least annoying to individuals. He hoped the result of this debate would not be to induce the noble Duke (the Duke of Richmond) to abandon the protection of the rights of the Crown, although he confessed he was a little shaken in his conviction by something that had occurred to-night. He admired the submission of his noble Friend (the Duke of Argyll), to his Colleagues during the years he fought with such energy and ability in vindication of his rights; but no sooner had the present Government come into Office than he obtained his request and the half-crown was returned to Mr. Campbell. There was another point worthy consideration. The public had certainly a right to know the general principles on which the Board of Trade proceeded in these matters; but because a Member of either House called for that information, it seemed astounding that a confidential Paper, evidently drawn up for use within the Office, should be immediately produced, accompanied by an Appendix containing the opinion of the Legal Advisers of the Crown. With such documents made public, the Department would find it impossible to defend themselves against the eager litigants.
§ LORD DELAMEREsaid a few words which were not heard.
THE LORD CHANCELLORsaid, it 1832 was extremely inconvenient in discussions of this kind to refer to particular cases or to canvass their merits, either as to the title of the Crown or of private persons in opposition to the Crown; but he must beg their Lordships to bear in mind what had been said by the noble Earl who spoke last but one, in whose opinion he entirely concurred. From long experience and knowledge of what foreshore cases were he had very great sympathy with anyone who had the misfortune to be engaged in such litigation, especially with the Crown, an opponent who had a very long purse. But they must remember what was the position of the Crown and the public Department in regard to the foreshores. There were two rights over the foreshores of this country—one, the right of the Crown, as protector of navigation, to see that nothing interfered with the right of the public as to navigation; the other was the right of the Crown with regard to the soil of the foreshore and the bed of the sea. There were two things as to that right perfectly distinct—the one was the duty or the power of the public Department to maintain the Crown's right to the soil as a source of revenue; the other was the right or duty of the public Department to keep what the Crown had—namely, the title, where the Crown had got it. The right to the soil, viewed as a source of revenue, was a matter entirely within the discretion of Parliament. It was a question of policy to be discussed, on which Parliament might express its opinion—for this reason, that if revenue were lost in that direction Parliament would have to make it good in some other way. But as to keeping the navigation, whatever right the Crown had in the foreshore, the Department—the public officer, whether the Parliamentary head of the branch or the permanent officials of the Department—were appointed by Parliament, and the duty was confided to them, until altered by the Legislature, to protect the Crown in those rights which the law assigns to the Crown. It might be a very bad law or a very good law; but beyond all doubt it was the law in this country that the whole foreshore of the kingdom primâ facie belonged to the Crown; and the Crown had the right to say "The foreshores of the kingdom belong to us, unless you show either a grant or prescriptive right taking away that which otherwise belonged to the Crown." The case differed essentially from the case which 1833 had been put of a stranger or a neighbouring owner saying to some possessor of property inside the country, "I assume you have a bad title; I call on you lo prove your title, or I will take possession of your land." That was not the law; but the law was that the Crown had a primâ facie right to the foreshore of the kingdom. Day by day acts might be done on the foreshores which would lead a jury to presume that the rights of the Crown had ceased; and it would, therefore, be perfectly idle to have a public officer to attend to the rights of the Crown, unless he asserted the law as it stood and took care that no encroachments wore made injurious to those rights. If Parliament should please to say that such should no longer be the duty of the public officer, his functions would, no doubt, be lightened; but until he had instructions from Parliament to that effect he would be guilty of a dereliction of duty if he did not take care that encroachments were not made on the rights of the Crown, The Memorandum to which the noble Duke alluded appeared to be a kind of soliloquy in writing, proceeding from the rooms of the Board of Trade, and contained a very good statement of what the duties of the Board of Trade were with respect to the foreshores and the bed of the sea. One passage in the Memorandum was in the following terms:—
''In cases where the Crown's title is doubtful, we must act in the same way as if it were good, except that we must do so with greater caution, and be more ready to compromise the question on the principle of reserving to the public their rights and easements over the soil.That passage, though a little amusing when read without comment, exactly described the duty which the head of the Department was charged with; for he could not tell what acts of ownership might have been committed by persons in the course of thirty or forty years until he called on them to make good their title. The opinion of Mr. Reilly had been commented upon by the noble Duke. Now, Mr. Reilly was one of the most accomplished men at the English bar, and was favourably known to many of their Lordships as an experienced Parliamentary draughtsman. That gentleman, in his opinion, referred to the Bill of 1866, which on its first introduction, when the noble Duke was a Member of the then Government, undoubtedly contained the clauses to which the noble Duke now 1834 objected. Mr. Reilly alluded to proceedings in their Lordships' House, but it could not be deemed that there was anything disrespectful in his giving an explanation of the way in which those clauses were lost. The concluding sentence of Mr. Reilly's opinion contained a suggestion than which nothing could be fairer. It was in the following words:—The only difficulty would be with regard to Scotland. It would be necessary for the Board of Trade either to come to terms with the Scotch proprietors or ascertain by legal proceedings the exact nature and extent of the Crown's right to the foreshore in Scotland, and then propose legislation on that basis,For his part he was only anxious that nothing should fall from their Lordships to lead the public Department, which was intrusted with the care of this public property, to suppose that it would be acting rightly in neglecting the duty confided to it, or to cause any persons out-of-doors to fancy that Members of their Lordships' House, whose private interests ought most properly to be protected, were desirous to place those private interests in opposition to the just rights of the public.
§ THE DUKE OF SOMERSETwas understood to say that the duties of the Board of Trade in regard to this matter were two-fold—they had to watch over the rights and interests of the Crown and those of the public. He thought that in all grants or licences which in any way affected the rights of proprietors adjoining the shore, they ought to receive due notice.
THE DUKE OF ARGYLLsaid, he had never intended to convey to the House that he entertained the smallest doubt that it was the duty of the Board of Trade, as it was formerly of the Department of Woods and Forests, to defend the rights of the Crown. Among the objections which he had urged against the Memorandum was that it throughout evinced the greatest antipathy to those rights of usage and prescription on which a large portion of the rights of property in this country depended.