LEICESTER SQUARE.
LONDONERS will naturally be dissatisfied with the law which allows Leicester Square to remain in its present state, an eyesore to all who pass it, a disgrace to the neigh- bourhood. The Metropolitan Board of Works was naturally desirous of taking away this reproach, and of converting a public nuisance into a public garden. Unfortunately the law which forbade so good a work is the law under which all the property in the kingdom is held and is kept sacred, and the Metro- politan Board, instead of buying Leicester Square, endeavoured to suspend this law for Leicester Square alone, and to force one man to surrender his property for the good of the com- munity. We are not extravagant believers in the sanctity of property. We have more than once uttered sentiments which seem to iarike at the roots of the existing English theories. But we never counselled one law for the many and another for the few, or said that it would be robbery to deprive share- holders of a monopoly of 10 per cent., while it is "a principle of somewhat perilous latitude" that a freeholder should have the possession of his own freehold. If one piece of land is to be taken without compensation for the benefit of the public, let all lands be equally liable. If it is to be the duty of one land- owner to keep his land in a certain state for the benefit of the public, let all landowners be placed under the same obligation. We should not be the first to object to such a measure. But we do not think it would be accepted by some noble Lords who promoted the "Gardens in Towns' Protection Act," or by the paper which declares that the proprietary rights of the owner of Leicester Square are difficulties of a technical nature.
The history of the case which was decided last week is rather complicated, but there is no need to add misrepresen- tation to the existing difficulties. It seems that before the
seventeenth century the piece of ground now -called Leicester Square was an open field, known as the Lammas Land of the parish of St. Martin's, that is, land on which the inhabitants of the parish had a right to turn their cattle at Lammastime, after the crops were removed. Before 1677 the Earls of Leicester paid a yearly sum to the parish for the use of this land. But when we next hear of the space which is now occupied by the Square, that is in 1788, it is "enclosed with iron railings, and kept and used as a garden or pleasure- ground." By that time it and the houses round it had come into the possession of two coparceners. The Earldom of Leicester became extinct about the middle of the eighteenth century, and the estate descended to two daughters of a younger branch of the House, whose married names were respectively Sherard and Perry. The Sherard half of the estate passed to the Tulks, and on the death of Mrs. Perry a compulsory partition was made by the Court of Chancery. This partition was commenced in the year 1786, and was completed in 1791. Under it the representatives of Mrs. Perry received six houses on the north side of the Square, and a sum of 300/. for equality of partition. The Tulks had the houses on the other sides and the Square itself, which, accord- ing to the decree of the Court of Chancery, they were "for ever afterwards at their own sole and proper costs and charges to keep and maintain in sufficient and proper repair as a square, garden, or pleasure-ground, in like manner as the same then was." No such covenant, however, on the part of the Talks was contained in the mutual conveyances executed by the parties under the direction of the Court, and even if there had been such a covenant, it is needless to say that the Perrys might have released the Tulks, and would now be presumed by law to have released the Tulks, from its obligation. The only covenants made before the date of the partition which could in equity bind the Tulks to keep up the Square for the benefit of any of the inhabitants, were those contained in leases granted by the original coparceners. But the last of these leases expired in 1847, and while they pledged the lessees to pay small yearly rents "towards the expense of keeping up the garden in the middle of the Square, and of lighting and water- ing the streets lying in the neighbourhood," the lessors were merely pledged to apply the rents thus received to those pur- poses. None of the leases gave the inhabitants the right of using the garden. They were to pay towards keeping it up, and the money was to be spent on the object for which they paid it. It is thus wholly untrue to say that the lessees of the surrounding houses were to pay "certain sums by way of rent for the enjoyment" of the Square. It is equally untrue that in 1848, when an injunction was obtained against building on Leicester Square, the garden "was directed to be maintained as an ornamental ground for the benefit of persons occupying the surrounding houses." We must, however, resume the history of the Square.
The first Tulk had devised his half of the Leicester Estate to his sons in tail male, and as the eldest son died without issue the second succeeded. This second son was the father of the present plaintiff. He resettled the estate in 1807, when his eldest son took the Square, and covenanted with his father (his heirs, executors, administrators, and assigns) that he would keep it as a garden. The father dying, left all his other estates to his second wife. The second wife left them to her children, of whom the present plaintiff is the eldest, and is therefore covenantee of that covenant of which the eldest son by the first marriage was the covenantor. From him the square passed through several hands, a like covenant being enforced in each case, either by the seller or the Court of Chancery, at the instance of the original covenantor. The last purchaser was Wyld, of the Great Globe, and Wyld, on con- dition of not being disturbed for ten years, agreed to sell at the end of that time half the Square to the children of the first marriage, and half to those of the second marriage. Thus the Square is at present held by two tenants in common, each of them reciprocally covenantor and covenantee under the second partition. By this covenant it is stipulated that the inhabitants of Leicester Square who are tenants of the Talks may have, "on payment of a reasonable rent for the same, keys (at their own expense) and the privilege of admission therewith annually, at any time or times, into the Square, garden, or pleasure-ground." And such of the inhabitants as chose to apply for keys and to pay a rent for them had the use of the garden. But whether they could insist on having keys and using the garden, or the privilege of annual admis- sion could be revoked at the end of any year, is a very dif- ferent question. It is true that the covenantee and his heirs could enforce the covenant against the covenantor and his heirs. But they could also waive it, they could release it, and it would merge by the same person becoming covenantor and covenantee. There is a legal difference between the same person and two tenants in common, but under such circum- stances it is not a practical difference. It affords a noble field for equitable discussions, and the citation of leading cases. There may be some chance of bringing a case within an unintelligible Act if the ease itself can be made equally unintelligible. But it is clear that no one has agreed in any way with the inhabitants of Leicester Square that the Square shall be kept as a garden, and without some implied agree- ment of the kind, neither law nor equity can interfere for the good of the inhabitants.
Hitherto law has been invoked in vain. Although a special Act of Parliament was passed to obtain possession of Leicester Square—as was admitted in open Court by the counsel for the Metropolitan Board—the Court of Queen's Bench decided that the Act was inapplicable. We must do the Metropolitan Board the justice to allow that it did not promote the Act, but it has adopted it, and has threatened by the mouth of Mr. Tite, that if it is beaten in the present case it will bring in a Bill which shall be more effectual. Mr. Tite complained that the Gardens in Towns' Act was encu;abered with such a mass of restrictive clauses and provisos as greatly to impair its usefulness. This means that an Act which was aimed against one man was not allowed to deprive that man by a side wind of the benefit of the laws of England. No wonder the Act was entangled. If it had been put in simple language, it would have startled the whole nation. The interpretation which the Metropolitan Board attempts to put on it is that if in any city an owner has once allowed persons to walk in his grounds on payment of a fee for admission, the public may either insist on his keeping up those grounds in the state they desire, or may turn him out and take possession. Mr. Mellish argued that when the Legislature talked of land being set apart for the public, it must have known that land could not be set apart for the public, and therefore no Act of dedication need be proved before the Act could be put in operation. It is true that there is only one means of setting land apart for any given use, and that consists in vesting it in trustees, commissioners, or some other body. It is also true that the Act includes those cases where land has not been vested in trustees, commissioners, or any other body. But to say, "Where land has been set apart or has not been set apart, the Board of Works may take charge of it," is either nonsense, or gives the Board a right to possess itself of land generally. The latter alternative is re- pugnant to the whole body of English law. The former is neither improbable nor unusual. We do not wonder at the Queen's Bench having taken refuge in so simple a solution. Yet it is clear that the intention of the Act was very different. We have seen that the setting apart is to mean nothing. The clause goes on to say that if the owner of an enclosed garden holds it subject to any condition or reservation for keeping the same as and for a garden or pleasure-ground, or that the same shall not be built on, the Board may vest the same in a committee of the inhabitants. This would equally give the Board a control over any private piece of ground which happened to be a garden, and which the owner had agreed not to build upon. He might have made such an agreement with his next-door neighbour. The neighbour has good reasons for not releasing him, in order that his own view may not be spoilt or his light obstructed. But if the Board of Works is to say, "This ground belongs to the inhabitants because it is an enclosed garden in a public place, and you have agreed not to build on it," there is no limit to the power which can be set in motion by Ahalas in private life.
And what, after all, is the need of entrusting such power to the Metropolitan Board ? Any persons who had a right to the enjoyment of Leicester Square could have enforced it before the Act passed, in the way that Charles Augustus Tulk en- forced his right against one of the subsequent purchasers, or in the way that all the Tulks together enforced their rights against Wyld. If the inhabitants of the Square had a right in equity, the Court of Chancery would have given them relief. If they had no right either at law or in equity before the Act, it is difficult to see how any Act could help them. The Times talks of a century's unbroken usage, and of the proprietor of Leicester Square neglecting his duty. We should be glad to know how a usage which is renewed yearly, and is based on express licence, can be unbroken. We should be glad to know how a man can be said to neglect a duty which is not imposed upon him. There is a plain and easy method of putting an end to the nuisance and scandal of a grass-grown wilderness in the heart of London, and of setting Leicester Square apart for the public. Pro- bably it has never occurred to the Board of Works that it has the power of taking lands by compulsory purchase, and referring the price to arbitration. It is, of coarse, inglorious to have to pay for anything which you would like, and have tried to get for nothing. But so long as property has its rights we fear that we may covet our neighbour's house in vain, and perhaps if there were no laws, and we were strong -enough to take it, there might be others who would prove still stronger.
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