§ * THE EARL OF WEMYSS
My Lords, I regret very much that I should have to trouble your Lordships for a few moments in reference to this Bill, at this stage. I regret that your Lordships did not follow the lead of my noble and learned Friend (Lord Bramwell), and reject this Bill at the Second, and if not at the Second, at the Third Reading. Because, my Lords, I think it would be a good thing to have rejected this Bill, coming as it did from this newly created London County Council without any Compensation Clause, whilst it takes away property rights which had been previously acknowledged. The County Council are very ambitious. They were, in the main, created to keep our sewers in proper order, and our streets well cleaned and lighted, but, in their ambition, they go in more for what is called haute politique, and they endeavour to bring in new principles of legislation, such as "betterment," besides endeavouring to take possession of the Corporate property of the London City Companies. And here, in a Bill which they bring in to clear away obstructions in the streets, they, as I have said, for the first time introduce a new principle, and bring in a Bill taking property without compensation. Well, my Lords, I think it would be useful, under those circumstances, if the Bill had been rejected either on the Second or on the Third Reading, but it appeared otherwise to your Lordships. The Prime Minister while favouring compensation thought the Bill should be read a second and a third time; so did the Opposition Bench, and the Chairman of Committees also was in favour of the Third Reading of the Bill, although he expressed an opinion in favour of considering a compensation clause. Nevertheless, notwithstanding all the arguments in favour of the Bill, the Third Reading was only carried by a majority of nine, and if we analyse the Division List we shall find it was practically mainly carried by the official 1847 supporters of the present Government. It was under those circumstances that I ventured to ask your Lordships to take advantage of what I cannot but consider a very wise provision in your Lordships' Rules of Procedure, and take time to consider whether, there having been this strong feeling expressed with reference to compensation, you should not delay the further progress of the Bill, and introduce a Compensation Clause into it. It is acting upon what I believe to have been the feeling predominant, at any rate, in the House on that occasion, that this clause is now proposed. Well, I venture accordingly, merely as a mouthpiece of others, to propose that this clause should be introduced into the Bill. I doubt very much whether any clause ever came before your Lordships drawn and backed with the authority which attaches to this clause. I myself, I need not say, have had no hand in it. It is a clause which is accepted by those who are interested in the Bedford estates, and it was sent to me voluntarily, without any communication on my part, on Saturday last, by Lord Selborne. It is drawn by him, or drafted by him. It has, I think I may venture to say, the approval of the Lord Chancellor, and, after what the Prime Minister said after the Debate on the Third Reading the other night, I venture to think it meets also with the approval of the Prime Minister. Few clauses have ever come before your Lordships' House so drawn and so endorsed, and I think I may venture to submit it to your Lordships' favourable consideration. Here, my Lords, I should at once sit down, and simply move the clause, were it not that I would, with your Lordships' permission, say a very few words with reference to the position which this House occupies with regard to this great question of property rights. A short time ago I attended a public dinner, at which two very distinguished Americans were present—Mr. Hurlbert and Mr. Dudley Field. I may say that Mr. Dudley Field is certainly the finest specimens of humanity at 85 I have ever seen, and he is also the finest orator I ever heard—I except none. Those two gentleman spoke on that occasion, and I venture to bring before your Lordships what they said, as having a direct bearing upon this question, and 1848 upon all questions affecting property and liberty rights. Perhaps your Lordships, therefore, will allow me to quote what they said, and I hope that their language will not only have influence with your Lordships, but that it will be taken to heart by the nation, and also, perhaps, have influence in another place. Mr. Hurlbert said this:—The American Union is simply a union for the defence of liberty and property. I read with surprise in an address of Sir Frederick Bramwell that your British Parliament to-day is in the habit of enacting laws which wind up with this declaration—' Any contract to the contrary notwithstanding.' I can imagine nothing more amazing to Americans than that. One of the fundamental principles of the American Constitution is this: No State shall pass a law impairing the validity of contract.Mr. Dudley Field followed, and said—Mr. Herbert has told you, and told you truly, that the foundation of American life and American Government is the sanctity of the home and the sanctity of contract. The State of New York, to which I belong, the proudest and most powerful of all the States in the Union, could not enact a law by which one dollar of rent could be taken from a landlord and given to any human being. We believe, and the majority of my countrymen believe, that Government was made, not to give property to anybody, but to protect everybody. To protect then and keep the peace is the duty of Governments. We call the other theory the "meddlesome theory." What right have you to interfere in my domestic concerns? You protect me, and I carve my own career for myself. It is that which we Americans consider our birthright. We hold these truths to be our birthright— that men are born equal, and that each man shall be left to judge for himself what is best in the pursuit of happiness for him.Such a Bill then as this, taking away rights of property, could not, by any possibility, have passed through the American Legislature and become law, because you have the security in America of what is called the Supreme Court, and a written Constitution, in which the sanctity of contract is recognised as one of the main elements of freedom and liberty. If, then, the American Senate or Legislative Assembly, departing from the written letter of the Constitution in this respect, were to pass a law taking a dollar out of one man's pocket to put it into the pocket of another, the Supreme Court steps in, squashes, and sets aside any such measure. Contrast with that what has been going on in this country for the last 20 years. Why, there is 1849 hardly a day on which the State does not interfere with somebody or other, either making, or breaking, or barring contracts, and you have, unfortunately, no such security as they have in the Supreme Court in America. There was a time when we resisted the extension of the Franchise, and what is called the Democraticising and Americanising of our institutions; but I now wish to Heaven our institutions wore Americanised in the sense in which I have mentioned, which renders it impossible, owing to the existence of the Supreme Court, for such legislation as has been in fashion in this country for many years to be passed. There is hardly a newspaper in which you do not read, for instance, of the Crofters Commission meeting somewhere up in the north, in some out of the way place, that they reduced rents, say 30 per cent., and striking off, perhaps, 60 per cent. of arrears. But although we have no Supreme Court in this country, we have your Lordships' House. Practically, your Lordships' House is the only check at the present moment upon wild legislation, and against doing away with the rights of property. For, mind you, it is not merely a question of the Duke of Bedford, but the principle affects the small freeholder as well; it is a question affecting property of every sort or kind which anyone may have inherited or earned. Therefore it is that I hope your Lordships will take this strong position, and maintain it through thick and thin, that any Bill which comes to your Lordships, be it from what quarter it may, for the purpose of taking forcible possession of property, without compensation, will be rejected by your Lordships, or will be amended by your Lordships, putting into it a compensation clause. That is all that I invite your Lordships now to do. It is not to a very high level of ambition that I would wish your Lordships to rise. I would simply point out this, that although the County Council of London, as I have said, and I repeat it, have ignored the action of their predecessors, their predecessors, who, acting upon a dictum of the then Home Secretary as to compensation in this very case being needed, put into their Bill, introduced only five years ago, a Compensation Clause. All, then, that I am inviting your Lordships to do is to rise, 1850 as regards the defence of property rights, from the level of the London County Council to that of the late Metropolitan Board. I, therefore, beg to move the Clause which stands in my name; but there is just one very small omission in it to which I must call attention. That is, where the word "land" stands, "lands" ought to be read. It occurs in the first and last lines of the clause.
Moved, to insert at the end of Clause 4—
Provided that if any lands shall be taken or injuriously affected by anything to be done under or by virtue of this Act, without the consent of the owner thereof, compensation shall be made for the same by the Council in the manner provided by the Lands Clauses Consolidation Act, 1845, and the cots amending the same, the provisions of which Acts, so far as relates to lands taken otherwise than by agreement and to compensation for lands injuriously affected, shall be deemed for that purpose to be incorporated with this Act."— (The Earl of Wemyss.)
My Lords, I do not propose to follow the noble Earl on the Cross Benches into his disquisition of the rights of property. It would appear that the noble Earl has little confidence either in the tribune of this House or in that of the House of Commons, for he comes and tells us here that the unanimous opinion of the Committee was that property shall be taken away without compensation according to law, and that a majority of this House agreed with the Committees of the House of Commons and of your Lordships' House. Neither shall I follow the noble Earl into the disquisition on the sacred rights of contract, because, after all the legislation that has taken place I think the noble Earl lets light in upon the question in putting his views forward; and besides, that does not seem to me to be the question which is at present before the House. This is really a very serious matter, but it is, perhaps, more serious even than my noble Friend seems to imagine; for this proposal is made, as the noble Earl the Chairman of Committes stated, after the Bill has been read a third time, and after a decision has been arrived at upon the measure in the Committees of the House of Commons and of this House, although no new evidence has been adduced. That, as the noble Earl has stated, is a very unusual course, and there must be very 1851 strong reasons indeed shown for taking' such a course. But there is a great deal more than that. Let me ask your Lordships to consider what would be the effect of the reversal of these decisions of the Committees of both Houses. The effect would be this: It would be said that, by the action of your Lordships House, you would be imposing a burden upon the ratepayers of London, and a burden, mind you, for the benefit, if anybody is to be benefited, of the noble Duke who is a Member of this House; and it would be said you propose to do that by a Party majority in this House. Now, I should like this matter to be cleared up a little. What is the position as between the noble Duke and the leaseholders? The position taken up by the leaseholders before the Committee of your Lordships' House was this, that they are the only persons who in reality are damnified if anybody suffers damage, and that the Duke himself is benefited and not damnified by the removal of these bars if they are removed by the Legislature. Mr. Balfour Browne, who represented the leaseholders in this House, used these words:—The attitude of the Duke in the House of Commons was this—For myself I do not care; I am simply here to support my tenants; I do not suppose that the alteration in the character of this district would really materially affect the district supposing it was all turned into shops and if thoroughfares were made through it, for dare say the Duke's rent at the end of he present tenancies would he higher than they are to-day.Under those circumstances it is, at least, doubtful whether the Duke desires the passing of this clause as proposed; but I should like to get a distinct answer from the noble and learned Lord (Lord Bram-well) and also from the noble and learned Lord by his side, as to whether or not they consider the leaseholders would have any chance of obtaining compensation. I understand the view of the noble and learned Lord is that they would not; I do not know whether the noble and learned Lord agrees with him. If the noble and learned Lord and the noble and learned Earl both agree that it is only the Duke that can get compensation, and not the leaseholders, I think they will find it exceedingly difficult to persuade the people of London that it is a just thing that the Duke of Bedford, who is not damnified at all, and certainly- 1852 much less than his tenants, if there is any damage done, should get compensation, and that those tenants should not get a penny of compensation. You are asking compensation, then, only for the noble Duke the Duke of Bedford. Very well, but the Duke of Bedford himself asked for no compensation before the Committee of your Lordships' House; he was content with the decision of the House of Commons, and I think the Duke of Bedford was exceedingly well advised to be content with that decision. I do not know whether your Lordships quite understand the feeling of the ratepayers of London in this matter. I belong to that much-abused body which the noble Earl has talked about, the London County Council. I represent on the Council a certain body of ratepayers, and I am in the habit of coming into contact with other members of that body who represent other ratepayers of London; and I can say that, Whether rightly or wrongly, the opinion in the mind of the average ratepayer is this—that the Duke of Bedford and other ground landlords have been obtaining, for many years, a very unjust and inequitable advantage out of the rates. It is said by the ratepayers of the County of London that the Duke of Bedford and other large landlords have had their property very largely increased in value, not owing to any money they have themselves expended upon the property, or not entirely owing to expenditure of their own upon it, but really owing to the money which has been subscribed by the ratepayers in furtherance of Metropolitan improvements. It does seem to me that the Duke of Bedford does not care to come to your Lordships' House to ask for compensation. It is the most extraordinary thing in the world that your Lordships should be asked to set aside the decisions of both Committees in favour of this noble Duke, who says himself he does not want compensation, and who, very likely, will not obtain compensation even if this clause is carried. There is just one observation which I should like to add in the name of the County Council. The noble Lord on the Cross Benches has said something about the action of the County Council, and I should like to say one word to the noble Lord in regard to the action of the Liberty 1853 and Property Defence League, of which he is such a pillar. It seems to me that, by pressing the rights of property far beyond anything which public opinion is likely to endorse, they are paving the way for radical reforms in the future which they would consider of a confiscatory nature. I can only once more entreat your Lordships not, at this stage of the Bill, to put in a Compensation Clause, giving compensation to the noble Duke for which he has not himself asked.
§ * THE MARQUESS OF SALISBURY
My Lords, I do not understand that this clause gives any right to compensation to anybody, but only a right to go before a jury and ask whether there is to be compensation paid or not, and if the jury says they think the parties have a right to compensation they will fix the amount. I do not see that the right to compensation becomes less clear because the party who goes to the jury happens to be the Duke of Bedford, and possesses a great deal of other property, or that it will then be affected because he happens not to have pressed his claims before this House. But, in truth, I think this clause will have very little practical effect; but I can quite understand the force of the observation which was made by my noble Friend the other night, that it is undesirable to sanction the principle, even in a small matter, that property may be taken away without giving the ordinary right to obtain compensation, which is given in every other case. The amount of laud to be taken will be extremely small, probably only that which is under the gates; but you do take the land, and whenever you do take land compulsorily it is your habit to incorporate the Lands Clauses Act of 1845 in the Bill which takes it. The Land Clauses Act gives no right to compensation, it simply gives a right to the parties to go before the ordinary tribunals of the land to inquire whether compensation should be paid. Therefore, merely as a matter of principle it seems to me that the case for inserting the clause is complete. I confess that my feeling in favour of the clause is rather strengthened by the speech to which we have just listened. I cannot help feeling that if a Representative of the County Council in this House shows such warmth in resisting in a Bill of this 1854 description a provision which is merely one of principle, and which will practically leave no burden whatever on the rates, there must be some design which we do not see in the particular mode in which this Bill has been introduced into Parliament. I cannot help thinking that there are members of the County Council who hope that if we do pass a Bill, without taking the ordinary precaution to insert a clause with regard to compensation, in this small matter, in cases where larger sums are concerned the precedent will work against the owners of property. That, I confess, makes me think that, on the whole, it would be batter that we should adhere to the ordinary Parliamentary practice in this case; that it does not matter two straws whether the Duke of Bedford has asked for it, or not; that what we have to do with in this matter is the Parliamentary practice; and that Parliamentary practice demands that we should follow the usual course, and insert this clause.
§ LORD HERSCHELL
My Lords, I cannot agree with the view which the noble Marquess has suggested to your Lordships. If we were proposing now to deal with a Bill which was under consideration for the first time in your Lordships' House, which had not been considered by a Committee of this House, and by a Committee of the other House, and passed by the other House, the case might be different; but I would ask your Lordships to consider the aspect which this case will wear if the course proposed by the noble Earl is followed. It will appear that—after a case has been considered in the other House by a Committee who unanimously came to the conclusion that it was not necessary to insert a Compensation Clause, the noble Duke, who is said to be the only person interested, having been represented before them, when the Committee of your Lordships' House by whom it was considered came to the conclusion that there should be no Compensation Clause—by doing what has never, so far as I know, been done before between the Third Reading and the passing of the Bill, your Lordships are willing to insert such a clause in favour of a Member of this House. By doing such a thing as this, it would seem that, on behalf of a Member of your Lordships' House, and for his benefit, you 1855 are taking a course which is absolutely unprecedented, and altering this Bill in a manner which will make it inconsistent with the views which have been taken by the other House, and by a Committee of your Lordships' House. I cannot think that such a course is likely to raise either the credit or character of your Lordships' House. I do not say that the imputations which are likely to be cast upon it will necessarily be just; but I am quite certain that if your Lordships take this course it will give rise to observations with regard to the action of your Lordships' House which those who are concerned for its credit and character and reputation would much rather not hear, because they would be unable to avoid the feeling that there is, at all events, some foundation for it. Now, I agree that this question may be said, as it has been put by the noble Marquess opposite, to be a question of principle; but is there any question of principle necessarily involved here? Are you wronging anybody when, there being only one person to whom this clause will apply, that person, having presented his case in the House of Commons, has been content not to petition your Lordships' House, or to suggest here that he has any claim to compensation? Where is the serious interference with the rights of property that is complained of, because you do not put in a special clause for compensating a person who has not suggested that he is entitled to such compensation, or that he has any desire for the insertion of such a clause? I confess I am at a loss to see how the non-insertion of such a clause in this extraordinary and unusual way would be a serious interference with the rights of property. I am certain that, such a clause not being there, if the persons concerned desired that it should be inserted they would bring the matter before your Lordships' House, and suggest that such a clause should be inserted. Where they do not take that course, then surely it is wantonly and unnecessarily putting this House in conflict with the action of the other House to take the course proposed at this late and unprecedented stage. On the other hand, I certainly fail to see how your Lordships not taking that course, is likely to inflict harm upon anyone, either at the present time or in the future.
§ * THE LORD CHANCELLOR
As far as the question of precedent is concerned I can remind my noble and learned Friend of one instance in which I had a personally painful experience of a similar course being pursued after the Third Reading of the Land Transfer Bill, when, upon the Motion that the Bill do now pass, the House was adjourned for the purpose of inserting an Amendment.
§ LORD HERSCHELL
I did not mean putting in any Amendment. I meant putting in a Compensation Clause of this kind in a private Bill.
§ * THE LORD CHANCELLOR
I thought my noble and learned Friend said there was no instance of such a course having been taken as far as the practice of the House goes. I misunderstood him; but that that did occur your Lordships will remember, and a new clause was ultimately put in upon the Motion that the Bill do now pass. I only rise for the purpose of setting right what I think is a misapprehension on that point, As I am addressing your Lordships I cannot help noticing the disguised menace, which is really the only argument brought forward by both the noble Lords who have addressed the House. What is the meaning of their continually saying, "This is a very awkward thing; this will expose you to a conflict with the other House and with the ratepayers," and so forth? If the thing is right, I trust your Lordships will have the courage to do it. If it be wrong let it be shown to be wrong, but I trust your Lordships will not yield to that sort of indirect menace that you must not do it because the ratepayers will be angry.
§ * THE EARL OF SELBORNE
My Lords, the noble Lord who moved this Amendment mentioned truly that, as far as the form goes, I am responsible for that form. I am willing also to be responsible for the substance, for it does appear to me that the principles which have been appealed to in this discussion are of much greater importance than the immediate question involved. What does the Amendment propose? Merely that that rule, and exactly that rule, shall be applied to this case which, as far as I know, has always been applied to every other case of the same kind. If land belonging to a private 1857 person is taken and injuriously affected, and those words have been construed by innumerable decisions under powers of this kind, for the public benefit, that land has to be paid for if the owner does not consent. That there is any reason why a difference should be made in favour of a permanent Public Body of the character of the London County Council is not to me obvious. On the contrary, I think that the power and permanence and great respectability of that body appear to mo to constitute additional reasons why no new precedent infringing on the right of individuals to be compensated for property taken compulsorily from them should be made in its favour. It has been said by my noble and learned Friend on the Front Bench that such a clause as that now moved has not before been put in at this stage of a Bill which has passed without it in the other House, and through a Committee of this House. The answer is, that there has never before been occasion to do so. I quite agree that before putting in such a clause we should seriously and carefully consider whether the principles of justice require it. But I am perfectly certain that no such Bill as this, taking away private property for a public purpose, private property which upon the hypothesis is taken or injuriously affected within the meaning of the Land Clauses Act, has ever been passed before, and the fact of this Bill having passed the House of Commons would, in my opinion, go no further than to make it probable that the Committee of the House of Commons may not have thoroughly appreciated the step which it was proposed to take. And I can well understand that that might have happened there, as I have no doubt it happened in the Committee of your Lordships' House, from the position which the freeholder, in my view the only person who would come within those words, appears to have taken there. The freeholder appeared to oppose in the House of Commons; he did not appear to oppose here. But opposing the passing of the Bill is one thing, and waiving, or relinquishing, or consenting to give up a right to compensation, to which he would otherwise have been entitled, is another 1858 thing. I quite agree that, in these circumstances, and parties whom I assume not to be entitled to compensation having appeared to oppose before the Committees of both Houses, the attention of the Committee was rather directed to the position of these parties than to the principle involved as to the freeholder, who may possibly have thought he had a right to rely upon the ordinary course being taken, and that it would be taken. On the other hand, in favour of the Committees, I am quite disposed to admit this, that they may have misunderstood the position of the freeholder, and have supposed him to waive what, as far as I can see, there is no evidence whatever of his waiving, that is to say, his right to compensation. I cast no blame upon the Committee, if that was the view which they took; on the contrary, I have myself found in this state of circumstances a sufficient reason for not rejecting the Bill on the Third Reading. But upon the present Motion the question is different; and I do think that in such a case nothing less than the consent of the party interested ought to preclude him from claiming compensation, and it has not been made out to my satisfaction that there has been a deliberate relinquishment of the claim. If there was, and if that can be shown, no doubt, no claim will be made under this clause; but as far as the principle is concerned, it does seem to me that without proof of consent, without some less equivocal proof of waiver, it would be a very dangerous and a very unsafe thing not to introduce a clause which would enable a person whose land may be taken, or injuriously affected, if he has not consented, and if he does not consent, to claim in the ordinary way in which, as far as I know, every such person has always been held to be entitled to claim under every Bill giving compulsory powers which has hitherto passed. And, my Lords, I must also say that neither the humble estate nor the high estate, neither the poverty nor the wealth of the private person affected, ought, in my judgment, to induce your Lordships to depart from whatever may be the proper principle and proper method of dealing with this question.
§ LORD HERSCHELL
I do not know whether I may do so now, but I propose 1859 to add some words to this Amendment. The words which I propose to add will have the effect of providing that the words "injuriously affected" shall have the same meaning in this Bill as they have in the Lands Clauses Act.
§ * THE EARL OF SELBORNE
I cannot imagine how any doubt could possibly be entertained on the subject, but as far as I am concerned by all means let those words be added; I have no objection.
It has been suggested that some doubt might arise owing to the manner of assessing the compensation.
§ Moved to add at the end of the proposed Amendment the words: "that the words 'injuriously affected shall have the same meaning as in the said Act."
§ On Question, "That those words be added to the proposed Amendment," agreed to.
§ On Question, "Whether to agree to the said Amendment as amended," their Lordships divided:—Contents 56; Non-contents 18.
§ Resolved in the affirmative; Bill passed, and returned to the Commons.