§ MR. AUGUSTUS SMITH
, in bringing this subject again before the House said, The should endeavour as much as possible to avoid going over the same ground which he had been obliged to take on a former occasion: this was the less necessary since the discussion that had taken place, both in and out of the House, and more especially the more extended action of the Woods and Forests Commissioners, had made both Members of the House as well as the public at large better acquainted with the merits and subject matter of the question. He must, however, be allowed briefly to recapitulate the main features and points to which he had felt it his duty to draw the attention of the House on his former Motion. First, then, as to the nature of the property in question, which was a claim on the part of the Crown to all the seashores of the United Kingdom between high and low mark, and which are estimated to be above a million of acres; but the claim did not stop here, for it extended to the whole bed of the sea. To be sure in ancient days the Four Seas were always reckoned to be part of the realm; but that they were part of the freehold estate of the Crown, which it may deal with just like any of the other estates and demesnes from which what are called the Land Revenues of the Crown are derived, is quite a new doctrine, and one only that has been attempted to be set up within a very few years. Now let it be first observed, that all ancient authorities and documents are 645 against the claim, and whether we consult Domesday Book, where all the demesne of the Crown are so specially set forth—Magna Charts—the various Commissions of Seven—ancient Acts of Parliament—Inquisitions—the Year Books, or various Law Proceedings, all these, either by their silence or by their provisions repugnant thereto, negative the proposition. In like manner all old legal writers are opposed to the claim. The civil law, every one knows, gives no countenance to it, and that as the ground-work of much of our ancient law accounts for that being equally opposed. If all the old law writers, such as Bracton and Callis, usually quoted on this subject, are adverse, till the treatise ascribed to Lord Hale was written, so also are almost all the best modern authorities who have written on the subject, such as Chitty, Hall, Phear, and others. His former Motion, it will be recollected, was founded on certain Returns which had first been presented to the other House on the Motion of Lord Wynford, and subsequently laid on the table of this House on the Motion of Mr. Cheetham, the late Member for Lancashire. It will be recollected he directed the attention of the House to the various and numerous legal proceedings which had been instituted of late years in relation to this species of property as detailed in those Returns; but one point more especially he had attempted to impress on the attention of the House, that, in the greater number of those suits, and more especially in those of the greatest magnitude and importance, the question raised had not been carried out to its legitimate issue, and its merits, therefore, greatly prejudiced by the compromises in which those suits had terminated. The various arrangements and arbitrations which had been made and submitted to, more especially that arbitration between the Crown and the Duchy of Cornwall—by which all the great and most important evidences on which these claims were based—were kept out of view, and not tested by proceedings taken in open court That the great suit of the City of London was thus allowed to terminate, and not carried from court to court on appeal, must ever be regarded as a most unfortunate occurrence. Since the close of the last Session, another Return has been laid on the table of the House, on continuation of the former Returns, to which he must now be permitted to advert, and request the attention of the Members to the details given therein. If, on the one band, it appears the Woods and Forests Commis- 646 sioners have extended their operation in relation to lettings and sales, another feature is satisfactory as exhibited by these returns, since these suits are much fewer in number. And as respects these suits, there is still a more satisfactory result to be gathered—namely, that wherever the claim has been decidedly and ably dealt with, the Crown has lost. He more particularly called the attention to two suits mentioned, one brought against a Member of this House, Sir John Hanmer, in North Wales, and another against Sir Thomas Phillips in South Wales. Each of these happened to be rich and able men, who spared no pains to defend their rights, and succeeded accordingly in doing so. But they have advantages in this respect which poorer and humbler parties cannot command, and who, consequently, find it better to succumb than resist. But let it he observed how very hard is the position of all these parties. The existence of these claims were totally unknown as existing till very recently. All trace of the documents on which they depend are not easily discovered, and from their non-production he verily believed many parties had been unjustly deprived of their rights. One other point he desired to call attention to in respect of these suits, namely, the very large number which had been entered in reference to properties in the Principality of Wales. Now this is the more remarkable, as, by the ancient law of Wales, the ownership of the seashores was clearly settled, as he would show by an extract from the laws of Howell Dha, and which laws it should he recollected were guaranteed on the conquest of Wales by Edward the First, and he had yet to learn that their force has ever been legally abrogated. The extract is as follows:—Whoever possesses land upon the margin of the shore, owns as much of the beach as the breadth of his land; and he may make a weir or other things thereon, if he will; and if the sea throws anything upon the land, or upon the beach, they belong to the king, for the sea is a pack-horse to the king.He more particularly alluded to these laws, as it is contended by the owners of similar lands in Scotland that such is the law there; and looking to the ancient position of Wales and Scotland as inhabited by people bearing a strong affinity to each other, it is easy to trace an identity of law on this subject from this common origin. And here be begged to thank his hon. Friend, the Member for Ayrshire (Mr. Finlay), for the papers bearing on this subject 647 which he had circulated since the last Session of Parliament; but there is one statement of his which he must beg to point out as erroneous. In reference to this seashore property he states it is now a settled point that such in England forms part of the patrimonial estate of the Crown. He must beg to correct him as to this term "patrimonial estate." There is no such term applicable to such property in England. The estates which are vested in the Crown, and called the Crown lands, are not a patrimonial estate at all as if attached to the person of the Sovereign, but are attached to the office of the Crown; and were so vested, not that the revenues should be merely for the maintenance of the Sovereign, but were intended, and were so always dealt with, for the support and carrying on the whole Civil Government of the country; the actual maintenance of the Sovereign was, no doubt, part of their appropriation, but is always mentioned as quite secondary. The Civil Government of the country, the whole administration of justice, the expense of its diplomatic relations with other countries, and even the defence of the realm, were in former days all equal claimants to be provided for out of these revenues. Now this is very important to be constantly borne in mind—as it is to be apprehended that there is a project afloat to claim these solely for the future maintenance of the Sovereign, and that, therefore, there is every exertion being made to swell and augment their amount. Among others this claim arises to deal with the seashores of the kingdom as if part and parcel of the freehold estates of the Crown with a view of enabling any future Sovereign on his coming to the throne to take these revenues, instead of depending as now for his provision on a civil list granted and settled by Parliament. This unconstitutional project should never be lost sight of. He would advert to the particulars as furnished by these last Returns, and first, as to lettings and sales.
There appear to be of lettings, in England 29. of which 14 are at Little Hampton. Wales, 15–10 of these on the Menai. Isle of Man, 1–45. Of soles, in England there are 31, sold for £19,029; Wales, 15—£12,852; Scotland. 25—£2,921; Ireland, 26—£2,985; Isle of Man, 1—£15. Total—Sales, 98; sold for, £37,802. The whole of which, £.57,802, though including in it the value for rights which the public give up, 648 is added to the capital account of the Woods and Forests, whereas that share which is given in respect of such public rights ought to be paid over to the public account. One feature in respect of these lettings requires observation, namely, that there are several to different public departments for carrying on the public service. He would mention one only in illustration, that at Shoeburyness, where there exists a magnificent extent of dry sands at low water, admirably adapted for artillery practice; but before the War Department is allowed to use these sands for so important a public purpose, down come the Commissioners of Woods and Forests, and claim a rent as for property over which they call themselves owners. To be sure the amount of rent, £10, is not large, but it is the principle which is so objectionable, as it is also entirely novel. Formerly, as a matter of course, all Crown property was considered available for the public service whenever and wherever required, but no compensation for its use was attempted to be exacted. In the same manner Public Companies, whether for carrying out railways, forming harbours, piers, &c., are heavily charged for works intended for the public benefit, and for which the public give up certain rights. But this is not all; even private individuals are not allowed to put up any defences for the security of their own property on the seashore without paying an acknowledgment for the same. The lettings mentioned at Little Hampton are all for this purpose. Now if the Crown is to derive the profit, surely it ought to take upon itself the maintenance and security of what it claims as its property, especially when, by neglect of that duty, it endangers the property of others. But this is the singular part of these claims on the part of the Crown. The Commissioners of Woods and Forests never appear but when there is something to receive, some profit to be made; but whenever there is any call for outlay they not only are not to be found, but, dog-in-the manger-like, what they ought to do of themselves they will not permit other persons to execute without paying for permission. Now, what says Judge Black-stone on this point, who asserted that the shores belong to the king, and, for this reason, following what had been said before by Lord Coke—that the king is bound to protect the country from foreign enemies, so he is also bound to protect the shores 649 from the aggression of the sea. But this is just what the Woods and Forests never think of doing, though the proposition of ownership naturally begets the other, and that if there is a right of exaction, the duty of protection must necessarily follow. This, however, is not all as affecting the position of this property in relation to others. Not only does the Crown claim to be exempt from keeping up the shore as a barrier, but its right advances or eats into the property of others with the encroachments of the ocean—a heavy storm arises, an inroad of the sea takes place, and the shore line between high and low water mark is brought inland some hundred feet or so. It is still claimed as Crown property. and thus what was an individual's freehold estate to-day is claimed as that of the Crown tomorrow. It is quite inconceivable that such an irrational state of things can be defended for one moment, and said to be the law of the land. To proceed, however, with the remarks he was making on the various sales made by the Woods and Forests, and the heavy charges entailed on various useful public works by their demands; those on the works at Birkenhead, it appears, have not yet terminated, though some £60,000 or more has already been exacted on their accounts. Then, again, a sum of £7,000 is levied on the Penarth Harbour Works, near the entrance of the river leading up to Cardiff. This, be it remarked, is not simply for foreshore, but the greater part on account of the bed of the sea, below low-water mark, which is being enclosed for those useful works. This charging for the bed of the sea is quite a novelty, and at Bournemouth, on the coast of Hants, where a pier has been erected going down into deep water, there appears a similar charge. When the chain pier at Brighton was erected, though but a few years back, no such charge was ever thought of; but one would not he surprised to see a claim now made for the space of the bed of the sea which it occupies. It has been contended on former occasions, that it was far better the shores should be vested in the Crown than in private individuals, to prevent exaction, when such useful works were required to be erected for the public interests. But it is quite clear the Commissioners of Woods and Forests have no thought or regard for the public interest, or their protection, but that their whole and sole object is to realize all they can by the sale of these shores, which they are most active in car- 650 rying out, and almost enforcing, in every corner of the kingdom, being well aware that it is a very slippery property, of very doubtful character, and, therefore, to be made the most of while the sun shines. So little regardful, however, are these Commissioners of the public interests, that they do not care to retain under their charge shore property which is most important for the public service. There has especially been a sale on Milford Haven, in which they have grossly abused the trust reposed in them. There they have sold shore ground to the extent of eight acres, close adjoining on to the Royal Dockyard at Pembroke. The agreement for this sale was made as late as in 1854, and for a sum of £1,600. The Admiralty, actually, I am informed, remonstrated against the sale, but it has been carried out notwithstanding; though the late Board of Admiralty, I am told, found it so essential to be added to the yard, that they had a valuation made for its subsequent re-purchase, but which the present Board have not adhered to. Now, be it remarked, this shore, for the last fifty years at least, has always been used by the inhabitants in the neighbourhood for the drawing up and launching of their boats; for their convenience in all kinds of traffic; for the depositing of timber and other materials temporarily. It was to all intents and purposes a public common or waste, and used as such by certain parties. But the party, who has bought up the Crown Rights as they are called, is taking steps to turn it to his private account, and among other acts carried out with this view is the depositing large quantities of rubbish, so as to make that portion above high water of wider extent. The consequence is large quantities of mud in solution is carried down right in front of the dockyard, augmenting thereby the deposit banks in that quarter. Now for the removal of those mud accumulations by dredging, we a few nights since only, voted a sum of, I think, £4,000 in the Navy Estimates. Thus through the negligence of the Commissioners of the Crown Lands, not only is a property sold which it was important to retain for the public service, but a nuisance is created to enhance the charge on the public. This principle of sale of what is to all intents and purposes public property, though called Crown property, as vested in the Crown as trustees for the public, is altogether new, and is nothing more nor less than making the public buy that which 651 already belongs to it. Now in all the sales it should be remembered the public give up certain rights, such as those of navigation and fishing, when the tide is up, of passage as over a highway when the tide is down, of various easements as they are called in law, but the whole profits are pocketed by the Woods and Forests, and the value transferred in perpetue to the Crown lands. The whole amount of property thus sold of late years amounts, it appears by these returns and the accounts of the Woods and Forests, to the large sum of about £224,000. Now, accepting as true the theory of Lord Hale, as propounded in his Treatise, De Jure Maris, that these wastes of shores and water are, as it were, held by the Crown as appertaining thereto, as the wastes of a manor do to the lord there of, it is clear the proportion due to the Crown would be similar to that apportioned to the lord of a manor. Last year a return was laid on the table of this House showing what that generally was, as given by the Enclosure Commissioners, and was found to vary from a fourteenth to an eighteenth. The share, therefore, of the Crown out of the above sum would be about £16,000, and the remaining large sum, exceeding £200.000, ought to have gone direct into the Exchequer. The public are thus just simply defrauded of this large sum. Leaving, then, this part of the subject, it is time the attention of the House should be directed to a consideration of the various rights to which this property is subject, and their relation to each other. There are the rights of the Crown, the rights of the public—if they are not identical—and the rights of individuals, as subject to the two former. The pamphlet he held in his hand was the speech of Mr. Serjeant Merewether, in which he so ably and gallantly fought the battle of the City of London in its contest with the Crown. By the information in that suit the claim of the Crown is thus set forth—By the Royal prerogative the ground and soil of the const and shores of the sea around this Kingdom, and the ground and soil of every port, haven, and arm of the sea, creek, pool, and navigable river thereof into which the sea ebbs and flows, and also the shore lying between high-water and low-water mark, belong to Her Majesty.The learned serjeant thus meets this assertion, and, as he believed, very accurately described the true state of the case—I, of course, am not denying that the Crown has dominion and Government over the soil of the sea- 652 shore—there is no doubt of that—neither am I in any degree denying that the Crown has jurisdiction over the seashore by the Court of Admiralty when it is covered by water, and by the common law when it assumes again the state of dry land. But none of these go in the slightest degree to show—on the other hand there is rather a contrary influence—that the Crown has any private property on the shore. A jus privatum in the shore is that which is set up by the Crown, and that is the only doctrine which I am combating; therefore, admitting the Government—admitting the jurisdiction—admitting the right where there is no special occupant—I am contending that in all other cases the occupation and possession of the shore is so necessary to, and is so generally used and enjoyed by, the owner of the adjoining land, that there is no pretence to any right in the Crown preventing that occupation. The occupation may be slight in point of evidence I admit; perhaps it may be only by the straying of cattle—perhaps it may be only for the purpose of taking advantage of the sea adjoining—embarking and disembarking; and, therefore, the acts of occupation may be few; but there is a case much stronger than that, in which the Crown has not the possession nor the right of the soil, although the soil is called the King's soil. I am alluding to the case of highways. It has been said, indeed, that the seashore is the King's highway—it may be so called, and highways are so called, yet the occupation of the owner of the adjoining land is still held sufficient, by presumption of law, to entitle him to the land of half the highway; so I say in the case of the seashore, where the occupation is more frequent, but, perhaps, difficult of direct proof, the legal inference is the same.In corroboration of these views, the learned serjeant refers to various documents, but he would only mention two Statutes, one of modern and the other of ancient date. The first is the 54 Geo. III., c. 159, which authorizes the Admiralty to do certain acts on the seashore, but has this proviso—Nothing in this Act shall abridge, diminish, or take away any right of property or ownership which any Lord of Manor, or other person, may have on any part, or the banks, shores or sides thereof.In this Act, it is to be observed, there is no reservation of any rights of the Crown; a legislative admission at that period, that the subject was entitled to the shore as belonging to the land, as the usual consequence, or it would have been otherwise provided. The other Statute is the 4 Edw. I. Extenta Maneru. This enumerates every species of property which can possibly belong to a manor, but no mention whatever is made of the seashore as having any peculiar quality, and which would lead to the supposition that at that period of time it could be regarded otherwise than as part of the adjoining land. It is, therefore, pure fiction to describe it, as has been lately attempted, as part of the original estate of the Crown yet ungranted. Had 653 it been so somewhere as still vested in the Crown, it could not fail to have been enumerated. But these shores are never mentioned as part of the possession of the Crown in any inventory or catalogue of such property. There is, further, no instance of any separate grant of the shore; but, if mentioned at all, always as an adjunct or rather boundary of the adjoining estate or manor. Neither is there any instance of such being put in charge for rent. Neither can any acts of ownership on the part of the Crown be instanced over the shores such as now claimed, as if they were part or parcel of the Crown lands and freehold estate. It was still his duty to trespass a short time longer, and be could assure the House it would be but for a brief period, to satisfy them as to the present unsettled state of the law, and how much it needed to be examined into and settled. The numerous suits which had of late been instituted are sufficient proof of that uncertainty; and any one attending to the substance of those suits must be convinced that many points have been mooted which still require to be determined. But referring to a work already mentioned, Hale's Rights of the Crown in the Sea Shores. published about thirty or forty years since, that writer speaks of it as a question even then of importance, how far the present state of the law was susceptible of alteration and amendment, though he very decidedly says, quoting Mr. Justice Bayley in the Brighton case—that if the king were to make the seashores of the realm a source of private sale and profit (just what the Commissioners of Woods and Forests are now doing) he would, according to what is said by the Judges, be acting contrary to the trust for which the ownership of the shore is vested in the Crown by the common law. The king's right is jus publicum. Again, a few years since, Lord Derby, in moving this question in the other House, in presenting some petitions, specially admitted the uncertain and unsatisfactory state of the law, and recommended its being defined and amended. But the language of the learned Attorney General on a former occasion, may be adduced as further proof as admitting this uncertainty. He says, "It was true in a certain sense"—now it was this certain sense he wished to have defined—"that the Crown could appropriate no part to the prejudice of others. This property was vested in the Crown for the good of the public. The Crown could 654 not appropriate any part"(but it is thus hedged by the learned Gentleman)"unless it was done without prejudice to the public and the benefit of the Crown." What could be more unsatisfactory and indefinite than such language? But to the same effect is the language more recently of that learned Gentleman, the Lord Advocate of Scotland, who was examined last year by a Committee of the House of Lords on the subject of the salmon fisheries, when this question of the shore right was incidentally brought up. Question 60—Earl Cawdor asked—Independently of any property which the Crown has between high and low-water mark?" Lord Advocate: "It depends on the supereminent right of the Crown to the lands of the realm. The right of the Crown to the salmon fishery is not merely a trust for the public, but a patrimonial right.It would thus appear that the Lord Advocate considers the shore right merely a public trust; but on a subsequent question he adds,I think the question of the shore a very difficult question. It is quite clear as regards the shore, to a certain extent, the exercise of the right of the Crown is limited, because there are public uses to which that shore may be put.Now, it is just those limits and those public uses which it would be the object of this Committee to ascertain. In a subsequent part of his evidence, the Lord Advocate, while contending for the right of the Crown, still spoke of it as a qualified right—qualification which, for the peace of the subject, ought to be ascertained. Before quitting these Returns, it is necessary to allude to a certain Schedule of Acts of Parliament which the Commissioners have appended of their own accord, as showing an acknowledgment of that right which is now set up. These Acts, be it observed, are all of very modern date—not any of them going further back than twenty years, and the greater part are private Acts. The earliest are those connected with the works at Birkenhead, then those at Grimsby, in Lincolnshire. Later is that respecting the Regalia of the County Palatine of Durham, and one of the latest that misnamed a Submarine Mines Act, which gave over all the seashores and harbours of Cornwall to the Duchy under the authority of an arbitration which was made on the evidence of documents which were never produced before this House, though it was promised by the then Secretary of the Treasury they should be printed in full. The Submarine Telegraph Act is further quoted, to which, on a former occasion, he made 655 allusion at considerable length, as furnishing evidence of the increasing claims set up, and likely to be set up, on this subject, and how the language used in respect of the same crept on, in stronger and stronger terms, in describing the properly.
A paragraph in relation to this same subject is well worth the attention of the House, as it appears in the last Report of the Commissioners of Woods and Forests. They are speaking of a probable increase being necessary in the establishment of the Woods and Forests Office, and among other reasons given for this they say—The proceedings which arise upon the frequent applications in reference to the sale and letting of land subject to the flow of tidal waters, have added very materially to the amount of correspondence passing through the office, and to the number of reports and accounts which have to be prepared and examined. The correspondence in many instances is of a very difficult character. We would specify, for instance, those relating to the Scotch teinds, and to the foreshore rights, and many other rights claimed by or against the Crown. In numerous cases laborious search has to be made through old documents and maps.…. The foreshore sales are likely to become more numerous for some time.… A considerable increase of business will certainly arise with reference to the salmon fishing in Scotland, owing to the recent decision in the House of Lords, in which the rights of the Crown to such fishings were upheld.Here is a fine prospect of active aggression in support of rights never heard of till lately, and to be sure to find all this energy and zeal in any Government officials is something quite unusual, and would be refreshing, were they really in support of the public interests. Could such agents be transferred to the Treasury Department, to replace our Stephensons in looking after the Red Sea Telegraph Contract, Galway Packet Contract, and such improvident engagements, the public interests might he benefited. But, unfortunately, these Commissioners have shown anything but regard as has been already shown, for the protection and care of the interests of the public, whose servants they strictly are, and have had in view but one object only, which is in every way that comes within their power, to seize and get hold of every species of property, so as to augment and enhance the revenues of the Crown lands for the object and purpose which has been already stated, and which has now been in course of development for some years. And this is the true key to these claims in reference to the sea shores; also to such seizures as that of the Hall Citadel, and to the revival of the Crown prerogative, not heard of for 656 centuries, to the salmon fishings of Scotland. It is the same spirit which has led to the claim of the Duchy on the waters of the Hamoaze, which enforced a payment for seventy acres of that estuary of £3,400 in order to form the docks at Keyham, and which, if sound, of course extends their right over the whole bed and surface of that hitherto, as it was considered, public port. It is the same which imposed a charge of £100 on every £1,000 that was proposed to be laid out in the improvement of the port belonging to the borough, which he had the honour to represent, and which claims £1,800, or £18 per acre, for the bed of the tidal waters required to form the new docks at Falmouth. These are heavy charges and exactions on owners of property, which never yielded to the parties one farthing profit, and over which they never excercised any acts of ownership. And these claims are as novel as they are unreasonable. He had now but one more point to press on the notice of the House, and to which, as really having a most important bearing on the right at issue, he requested their particular attention. Little or no reference, except incidentally, had been made to any ancient authorities in support of this Motion, and he had not forgotten what fell from the Attorney General on the last occasion, when with a courtesy peculiar to that learned Gentleman, and with a condescension in imparting instruction to one unlearned in law for which he hoped he was sufficiently grateful, he was told not to read old books and musty parchments. Well, he hoped he had profited by that advice, and accordingly had given his attention to a now course of study, the result of which he proposed to submit to the learned Gentleman. This was based, not on any black-lettered document, but on one derived from Parliamentary authority itself, and he was the more disposed to offer this to the learned Gentleman's attention, as he thought the House could not fail to have observed, as he himself had been able to detect that he was not very strong in constitutional law. Had not his very ears tingled when be had heard the learned Gentleman assert but a few nights since, that it was the prerogative of the Crown to create as many judges as it pleased? Such a doctrine, he would venture to affirm, bad not been propounded from any one holding the office of Attorney General during the period of the last two hundred years. But before he gave him the high authority from 657 the document to which he referred, or the subject matter of this Motion, he must draw the attention of the House to the previous circumstances which had called it forth. In the reign of that unfortunate monarch Charles I., about the year 1635, a Royal Commission was issued, which had for its aim to call in question every subject's title to every species of property throughout the kingdom, with a view of extracting composition in respect of disputed titles, just as the Woods and Forests were now doing. He referred more particularly to this Commission, because some faint rumour had reached his ears that there existed a notice that a Commission might be offered as a substitute for the Committee moved for—a course to which he should most decidedly object, knowing that Royal Commissions were often only used as a means for defeating the real justice of the case. As, however, should such a Commission be determined on, the learned Attorney General might be at a loss for the terms in which such Commission should be couched, he begged to offer tills as an appropriate formula on the occasion. The Commission in question was addressed to the Lord Archbishop of Canterbury, to sundry other servants of the Crown, and, among others, to Sir John Bancks, the then Attorney General. It was styled as issued pro titulis defectivis, for defective titles, and was, as he had already said, intended as an engine for extracting money on the plea of making such titles valid. It ran thus—Rymer's Fæ dera. Vol. ix.—p. 7.1635. Commission.—To Williams' Archiepiscopo Cantuariani et alii pro titulis defectieri.—Among others, Sir John Banck's our att. genl.Whereas our dear and royal Father, King James of blessed memory, lately deceased, for the quiet of his loving subjects, and the settling of their estates, was pleased to give way to an Act of Parliament for confirming of their titles in such their manners, lands, tenements and hereditaments, (….) which they and their ancestors had enjoyed and possessed for the space of three-score years.…Relation being had thereto—the same being a favour that none of his predecessors yielded unto them in former times.And whereas Wee, out of our royal and tender care of the common good of our subjects, and to establish unto them such their estates—as were defective and defeasible.We did grant a Commission upon reasonable fines and sums of money, to be paid by our subjects to our use, to compound with them for such supply of their said deficient estates as aforesaid.And whereas we observed such slackness in our subjects in embracing that grace and bounty offered—it might justly induce and move us 658 …in reducing those lands and possessions to the increase of our revenue—Wee, preferring peace and quiet … and thereby to secure them from being brought to hazard of the loss of their honours, manors, &c. which in truth and right belong to us, as our own proper inheritance.We, therefore, have once more renewed and granted forth this our Commission of grace. We have appointed you … to our use to bargain, sell, conclude, demise, and in our name—any of our landships, manors, lands, tenements, rectories, tithes, portions, oblations, messuages, cottages, gardens, meadows, pastures, closes, marshes, as well fresh as salt, lands deserted, left, or gained by or from the sea—mines, woods.Schedules expressing defective titles …I. ….tenements and marsh grounds, which formerly have been, and now are inned, gained, bank'd, fenced, left bare and dry, by and from the sea or any navigable or royal river, or other fresh waters, and all our ouzy grounds, marshes, and other low grounds surrounded and now subject to the surrounding of the sea. or other fresh or salt waters with all and singular their commodities and appurtenances whatsoever, either in charge or not in charge.Commissioners at a house in Fleet Street, to whom subjects are referred to have their defective titles made good—upon moderate compositions—(which we intend shall be applied to our use.")Now, let us look to the result of this Commission. When a few years after, in the year 1641—just two hundred years previous to the time when this notable scheme was again hatched, as to the property of the seashore, in 1841, under the Chief Commissionership of the then Earl of Lincoln, the present Duke of Newcastle—the various grievances and wrongs of the subject were enumerated, after the most careful consideration, by Parliament, in that celebrated document called the Grand Remonstrance. This particular grievance is not lost sight of, and the clause in which it is specified is well worth the learned attorney's study, as well as those other clauses which refer to judicatories established without due authority of law. The words of the Remonstrance are few but very explicit, and are to be found in the 26th Clause, protesting against the grievance in question in these words: "The taking away of men's right under colour of the King's title to land between high and low-water mark." After such an authoritative declaration, he might feel entitled simply to call on the House to reaffirm such a declaration. He, however, did not intend to do that, but simply to ask the House to inquire into the subject matter which had called it forth in those days. Let it be recollected such a claim had never previously been 659 put forward, not even in the time of Henry VII., when every species of claim was made on behalf of the Crown, with a view to exactions for the increase of the Sovereign's revenues. From that day to this—a period of two hundred years—these claims have equally been in abeyance. On what ground inquiry is to be refused he is utterly unable to understand. That the claims, as now put forward, are novel, no one denies, and if there are any parties who ought to be anxious to establish their validity and justice they are the Commissioners of the Crown Lands themselves; who ought to feel bound to court instead of thwart inquiry. Refusal can only beget suspicion that these claims are not well founded, and they may rest assured till such an inquiry is fully instituted and carried out, these claims will never be patiently submitted to or their justice acknowledged.
Motion made, and Question proposed,
That a Select Committee be appointed, to inquire into the rights of the Crown and Public, as well as of individuals, as connected with the £Foreshores and Tidal Waters of the United Kingdom; the manner in which the Commissioners of Woods and Forests are dealing with the same, and the state of the Law affecting this description of property.
seconded the Motion. Until 1830 no attempt was made on the part of the Crown to lay a claim to the foreshores in order to bring money into the Treasury of the country; and by an Act passed in 1855 even a person who won his case against the Crown had to pay his own costs. This induced compromises to be made, as the costs might be worth more than the article in dispute; and an inquiry ought to be made into such cases, which amounted to nothing more nor less than extortion. He would ask whether these cases were to go on, year after year, till the Board of Woods and Forests had got possession of all the foreshore of the country, which they might sell as fast as they acquired it? If the Board held it as trustees, he denied their right to part with it. At present the town which he had the honour to represent (Harwich) could not carry out a proper system of drainage because the Corporation could not come to terms with the Woods and Forests as to the disposal of the foreshore; and he knew that a similar inconvenience was experienced by other towns on the same coast.
SIR JOHN HANMER
said, he would recommend the House to refuse its assent 660 to this Motion. He had not been present at the debate or at the division, when the matter was formerly brought under the notice of the House, and when allusion was made to a case in which he was personally concerned; but having heard of that circumstance, he now attended, in order to reply to anything which might be said on that subject. He certainly had been surprized to hear from the hon. Gentlemen who had preceded him, that it was a new right that was asserted on the part of the Crown. He would undertake to show that, in every reign from William the Conqueror down to the present time, there was plain proof that the Crown was possessed of this right. In the charter of King William the Conqueror to the monks of Battle, which was in the British Museum, the King's sea rights were expressly mentioned. There was, to use the words of a learned Judge, "no mystery about the seashore," and there was no subject in English law, which had, to use an expressive phrase, been so well thrashed out. If there were a legal right to be tried in the matter, then let it be brought before a court of law and disposed of, and let not complaints be urged with respect to it in the House of Commons. It took him five years and cost him a good deal of money to collect evidence from the public records to show his own right, and if a Commission were to be appointed to go round the kingdom people who had really good rights would be unable to prove them. His own advice to hon. Members who had seashore rights was that they should study the book of Lord Hale, de jure maris, and prepare themselves to maintain those rights in a court of law, rather than submit them to discussion before a Select Committee of the House of Commons.
§ MR. FINLAY
said, very few persons who held property on the sea-coasts would or could follow the example of the hon. Baronet, for few could devote either the time or the money which would be required to combat the claims of the Crown. This question was exciting in Scotland a very great deal of dissatisfaction and especially in the county he had the honour to represent. Argyleshire comprised a greater extent of sea-coast than any other county in Great Britain, exceeding 1,000 miles, and its inhabitants naturally felt very keenly the evils arising from the unjust interference of the Crown. Whatever may be the law of England it cannot be denied that the decisions of the Scotch Courts of Law and the opinion of the best legal authori- 661 ties in Scotland prove that the Crown officers in that part of the United Kingdom are now pushing the claims of the Crown beyond the limits established by law. I shall quote a well-known writer on Scotch law, Professor Bell, who says—The land which lies between high and low water mark is not, as in England, held to be the property rescued to the Sovereign, but presumed to be granted as part and pertinal of the adjacent land under the burden of the Crown's right as trustee for public uses.If the sea or seashore be a boundary of any man's property the grant is construed to include the shore to the ebb mark, and to extend or recede with the waters.Lord President Campbell, in the case of Turner v. Downie, 1807, said—"Property of land adjacent to our heritor's shore is not a regale." In spite of many decisions establishing clearly the rights of adjacent proprietors to the seashore, subject to the lights of the public, the Crown officers aid in pushing their novel and illegal claims in the way which is most likely to establish them without exciting opposition. Clauses having that object in view are inserted into local and private Bills and advantage is taken of the necessities of individuals to induce them to acknowledge the rights of the Crown by small payments of money; but whenever these attempted encroachments have been opposed by legal proceedings they have been allowed to drop. The amount received by the Crown, in this way, is quite insignificant, being under £7,000 during the last thirty years, which is not sufficient to pay law expenses and salaries of agents and others employed. These claims have been detrimental to public as well as to private interests. In some cases when the seashore has been sold to the Crown, the public have been debarred from free access to it for purposes of fishing and navigation to which they are entitled; and private individuals whose properties are bounded by the sea, are prevented by these unjust claims from protecting their own lands and houses from the sea. The Road Trustees in Argyleshire have been obliged to complain of the damage done to the public roads from the same cause—an amount of damage which has caused a heavy expenditure and increased rates to the road payers. Improvements on the seacoast are interfered with and prevented, and a great deal of irritation is created in the minds of all persons concerned. It is neither politic nor seemly that such a state of things should be allowed to continue; and, it is 662 of the greatest importance that the rights of the Crown, if it has any, should be clearly defined, and with that view, he should give his cordial support to the Motion for an inquiry.
THE ATTORNEY GENERAL
said, the hon. Gentlemen the mover and seconder of the Motion had displayed so much legal erudition, and had expressed their opinions—which, at least, had the merit of not being tinctured or clouded with any doubt on the legal points involved in it—with so much confidence, that he was disposed to think the ordinary functions of an Attorney General were entirely superseded. He was bound to acknowledge—and he did so with great sincerity—that the advice which he might take the liberty of tendering to the House ought to be received with some considerable deduction as compared with what the House had already heard. The hon. Member for Truro (Mr. A. Smith) had told them that he had read every authority upon the subject from the period when the Roman law prevailed down to the present time. Nay, the hon. Member was not only conversant with the books that spoke of the subject, but he had even examined those that did not speak of it, so that he was able to instruct the House with equal confidence and satisfaction—satisfaction, that was, to himself—both as to what the books contained, and as to what they omitted. He could not claim, for his own part, to have done any such thing, nor could he even pretend, like the hon. and gallant Member for Harwich, to have convinced himself that one might search in vain for any instance of the exercise of this right by the Crown from the time of the Restoration down to the year 1830. All he could do was to state to the House the views which had prevailed among the best and most erudite authorities during the last twenty or thirty years, and which, probably on account of the profound depth of their ignorance, were still current among the lawyers in Westminster Hall. Before proceeding further, however, he must express, he would not say his satisfaction, but his admiration of the resolution and pertinacity with which the hon. Member for Truro had returned to this subject. There had been three Sessions of annual incubation. Unfortunately, when the eggs were supposed to be ripe for batching the House was counted out, and the hon. Gentleman was left alone with his Motion. But now, with renewed strength and courage, redoubled by defeat, he rises 663 like Antæ us from the earth and proposes to do what he had not before ventured to suggest. On former occasions he had merely modestly suggested that an inquiry should be made into the conduct of the Commissioners, but now he asked the House to inquire into, not only the title of the Crown to this property, but that of the public and even of private individuals. With great humility he ventured to say that no proposition could be more revolutionary or extravagant than that which the hon. Member had submitted to the House. What was the theory of real property in this country as accepted in all the tribunals from every Court in Westminster Hall to the highest Court of all—the House of Lords. That the whole of it was to be considered as held by grant from the Crown. The Crown was the fountain and source from which all title was derived, and to which all landed property reverted on cession of the grant. There was some property which from its very nature was presumed to have been unappropriated by the Crown. Of this character were the foreshores, the ownership of the beds of all navigable rivers, creeks, bays, and harbours. It was perfectly clear this property must be vested somewhere, in order to answer the exigencies of the public, and that there might be some one to protect the rights of the public. The law gave that property to the Crown, which was the representative and protector of the public. The Crown was denominated the trustee of this property, in a metaphorical sense, whenever the interests of the public were concerned. But, consistently with the rights of the public, there were a great number of uses to which the seashore was applicable, which redounded to profit and benefit. These the law gave to the Crown; the profit and benefit might be the subject of grant from the Crown; or the right might be held as part of the revenue of the Crown. The question, therefore had always been in these cases whether the individual who contested the rights of the Crown could show that he was in the position of a beneficial grantee from the Crown. The hereditary property of the Crown were transferred by a species of compact with the Crown to the Commissioners of Woods and Forests, as trustees for the benefit of the public in return for the Civil List settled on the Crown and it was their duty to make the best use of it. In case of encroachment it was the bounden 664 duty of the Commissioners to make inquiry into the subject, and claim the property for the public. How had this duty been performed? What had been the result of the proceedings of the Commissioners? He would inform the House, and be thought that they would be of opinion that the Commissioners had no cause to be ashamed of their conduct. In regard to the foreshores of the whole United Kingdom there had been thirty-two suits in a period of thirty years. Of these twenty-five had ended most successfully for the Crown, rescuing from usurpation considerable valuable property for the public; three suits bad been withdrawn at the instance of the law advisers of the Crown, and two were decided against the Crown. Why did the hon. Gentleman expend all his anger on the Commissioners? The Commissioners took the advice of the law officers; upon that advice they acted, and therefore it was the law officers who were responsible for the Commissioners' proceedings. And they had acted rightly in vindicating the rights of the Crown for the benefit of the country. The hon. Member had referred to cases where acknowledgment of the right of the Crown was required, which he thought was a great grievance. But in requiring that acknowledgment the Commissioners only acted according to their bounden duty, and it was because of the neglect of those precautions in former times that private individuals now laid claim to a large extent of foreshore, to the injury of the public at large. It was quite true that the Commissioners required the War Department to pay £10 a year for using the sands at Shoeburyness, but the owner of an adjoining portion of the foreshore exacted £250 a year as rent. He (the Attorney General) had been at a loss to understand why the hon. Member, himself a grantee from the Crown, should return to this subject, and seek to destroy his own rights. The hon. Gentleman now told them that it had fallen to his lot to detect a fearful conspiracy against the liberties of the country, the Commissioners seeking to render the Crown independent of Parliament and completely self-supporting, the accumulating revenues of the Crown from these foreshores, sufficing to maintain the army and navy without the necessity of appealing to that House. It was scarcely necessary to say there was no foundation for such an idea. It was an extravagant notion—a delusion into which by long medita- 665 tion upon the subject the hon. Member had fallen, and had at last come to regard the creature of his imagination as a real fact. The hon. Member had complained of the Commissioners' proceedings in relation to measures taken to protect land adjoining the shore, but the Commissioners were only doing their duty. One part of their duty had been to prevent the removal from the shore those large boulders from the seaside, which were necessary for the protection of the shore. It was true that they would not allow a private proprietor to put up a groin without acknowledgment, and rightly so, because if such a thing were allowed to be done without acknowledgment, in the course of a few years it would be converted into evidence of a private right. The object of the Committee for which the hon. Member asked, was to discover, if possible, that the rights of the Crown to foreshores were merely fictionary. If such a ridiculous proposition could be supposed for a moment to prevail, the result would be that all corporations and individuals holding grants from the Crown would lose their rights, and even the foreshore of the hon. Members's own estate in the Scilly Islands would fall to the public. It would become merged under the general head of public property. He could only caution the hon. Gentleman that persons who read works of law without, in the first instance, obtaining a clear apprehension of the meaning of the words were apt to be led away by their own; crude conceptions from the true nature of the propositions laid down in such volumes. The proposition that the Crown was owner of this property as a trustee, was true to a certain extent, but to a certain extent only. He trusted the House would not for one moment think of entertaining a notion that went to the extent of utterly shaking the foundation of all property. The Motion laid down the proposition that the House of Commons might at any time inquire into the foundation and settled rule of property; and for what purpose should the House so inquire, except, possibly, to alter it? Were they to entertain the proposition that the House could alter the principle of English law, that all property is held of the Crown? If they were not prepared to affirm that proposition—what remained of the present Motion? Nothing but complaints of the conduct of a public office; but it had only asserted certain rights, and would not have done its duty if it had not asserted them. All that it had done had been under the authority of the 666 law. The estimate of the total value of the property it had recovered was no less than £370,000; the costs incurred were£l6,000, of which the greater part was incurred before the Act of Parliament was passed by which the Crown was placed in the position of an ordinary party with respect to costs. There was nothing to complain of in the conduct of the Commissioners, except from some disappointed persons, who thought they might make great gains from the foreshores if the Crown did not vindicate its rights. He hoped the House would reject an unexampled and mischievous Motion.
§ Question put.
§ The House divided:—Ayes 67; Noes 176: Majority 109.