[DIVISIONAL COURT]

DE MORGAN, APPELLANT; THE METROPOLITAN BOARD OF WORKS, RESPONDENTS.

Bye-law - Validity - Regulation for the preservation of Order on a Metropolitan Common - Public Meetings, Restriction on - Metropolitan Commons Act, 1866 (29 & 30 Vict. c. 122), s. 6.

By a scheme made under the Metropolitan Commons Act, 1866, and confirmed by the Metropolitan Commons Supplemental Act, 1877, it was provided that a common should be dedicated to the use and recreation of the public as an open and uninclosed space for ever, and the Metropolitan Board of Works were empowered to frame by-laws and regulations for the prevention of nuisances and the preservation of order on the common. The Metropolitan Board of Works made a bye-law prohibiting the delivery of any public speech, lecture, sermon, or address of any kind, except with the written permission of the board first obtained, and upon such portions of the common and at such tines as might be by such written permission directed and sanctioned by the board:-

Held, that such bye-law was valid.

No right on the part of the general public to hold meetings on a common is known to the law.

CASE stated by a metropolitan police magistrate, under 20 & 21 Vict. c. 43.

The facts and arguments sufficiently appear from the judgment.

Feb. 25. The appellant appeared in person.

Biron, for the respondents.

Feb. 28. The judgment of the Court (Lush and Manisty, JJ.) was delivered by

LUSH, J. This is a case stated by way of appeal against a conviction by a metropolitan police magistrate, whereby Mr. De Morgan was convicted in the penalty of 20s. and 3l. 3s. for costs, for infringing a bye-law of the Metropolitan Board, made under the Metropolitan Commons Supplemental Act, 1877.

The bye-law in question is one of a series of bye-laws for the regulation and management of Clapham Common. It prohibits the "delivery of any public speech, lecture, sermon, or address of any kind or description whatever, except with the written permission of the board first obtained, and upon such portions of the common and at such times as may by such written permission be directed and sanctioned by the board."

The appellant admitted that he had delivered a sermon on the common without having obtained the permission of the board, but contended that the bye-law was ultra vires and void, and this is the question which is submitted for our decision.

As the common was purchased under the authority of Acts of Parliament, which we had not the opportunity during the argument to examine, we took time to consider our judgment.

The appropriation to public use of this and other commons within the metropolitan district was made under the authority of the Metropolitan Commons Act, 1866. By this Act the Inclosure Commissioners were prohibited from entertaining an application for the inclosure of a metropolitan common, and were authorized, on a memorial by the lord of the manor, or by the commoners, or the local authority, to prepare a scheme for the establishment of local management with a view to the expenditure of money on the drainage, levelling, and improvement of a metropolitan common, and to the making of bye-laws and regulations for the prevention of nuisances and the preservation of order thereon. The scheme was to be laid before Parliament, and to have no operation until confirmed by Act of Parliament.

The scheme for Clapham Common, which was confirmed by the 40 & 41 Vict. c. cci. (Metropolitan Commons Supplemental Act, 1877), recommended the Metropolitan Board to carry into effect certain preliminary agreements, whereby the lords of the manor agreed to sell the fee simple of the common to the board, subject to all such rights of common, commonable rights, rights of way and water, as any person other than the conveying parties may have therein, and provided that after the completion of the purchase the common should be dedicated to and for the use and recreation of the public as an open and uninclosed space for ever, and should be regulated and managed by the board. The board were empowered to drain, plant, ornament, and improve the common as might be necessary, but no houses were to be erected thereon, except such lodge or other buildings as might be necessary for the maintenance or management of the common.

The power to make bye-laws is in these terms: "The board shall frame bye-laws and regulations for the prevention of nuisances, and the preservation of order on the common, and particularly

for preventing the deposit of rubbish on, and the illegal taking, cutting, felling, and sale of turf sods, bog-earth, gravel, sand, loam, clay, gorse, furze, fern, brushwood, trees, and the like from the common, and regulating the user of the common, or any part thereof, for the exercise of horses thereon, or for riding purposes, also for the regulation of bathing in the several ponds on the common." There is the usual proviso that "no bye-laws shall be repugnant to the laws of England, or the provisions of the scheme; and further that no bye-laws shall, as against any person entitled to any estate, interest, or right of a profitable or beneficial nature, in, over, or affecting the common, which shall not be purchased or acquired by the board, operate or be construed so as to take away or injuriously affect such estate, interest, or right."

In pursuance of the power thus conferred, the board framed and published a code of bye-laws which were duly confirmed by her Majesty's First Commissioner of Works, one of which bye-laws is the one in question.

The appellant who argued the case before us in person impeached the validity of the bye-law on two grounds: First, he contended that the public had acquired a right to hold meetings on the common prior to the passing of the Act, and that it was therefore repugnant to the scheme to put any restriction upon the exercise of that right.

The magistrate reports to us that some evidence was given of public meetings being held without remonstrance on the part of the commoners, or of the lords of the manor, though scarcely going back so long as twenty years; but finds that such user did not constitute a right or prove anything more than an excused or licensed trespass. In this opinion we entirely concur. The common was the soil of the lord of the manor, and the only rights over it were rights of pasture and other commonable rights of the commoners, and perhaps private rights of way. These are the rights which, not having been purchased by the board, are preserved. No such right as that claimed by the appellant on behalf of the public is known to the law. This ground of objection, therefore, entirely fails.

Secondly, he contended that the common having been "dedicated to and for the use and recreation of the public as an open and

uninclosed space for ever," the board could not prevent the public from assembling there whenever they pleased for the purpose of hearing sermons, or lectures, or addresses, on any subject, religious, political, or otherwise. If this argument were sound it would follow that any number of public meetings might be held at the same time in various parts of the common, even to the extent of monopolising the whole area, to the disturbance of the neighbourhood and the exclusion of that portion of the public who desired to use it for the purpose of recreation. We are satisfied that such was not the intention of the scheme which Parliament has sanctioned. Its object was to secure in perpetuity the common as a place which the public might use as of right for the purpose of recreation, and in order that all classes may at all times share in its enjoyment, the user of the common is necessarily placed under regulations. Bye-laws are a code of restrictions. Modes of user which, if enjoyed without limitation as to time or place, would unduly interfere with the comfort and enjoyment of others, such as riding, boating, cricketing, bathing, and the like, are put under reasonable restrictions. It is equally necessary that the holding of public meetings on the common should be also put under regulation. And what can be a more reasonable mode of regulating such meetings, than to require information beforehand what the object and character of the meeting are, in order that the board may be able to judge whether it is such as ought to be allowed on the common, and if so to prescribe reasonable limits as to time and place? Mr. De Morgan contends that order may be sufficiently preserved by the arrest and punishment of persons who by becoming riotous, or committing a breach of the peace violate the law. These, however, are retributive measures which operate only indirectly; whereas the Act contemplates and requires precautionary and preventive measures, tending directly to secure the comfortable enjoyment of the common by all classes.

We are therefore of opinion that the bye-law is valid, and consequently the conviction must be affirmed with costs.

Solicitors for respondents: Solicitors to the Metropolitan Board of Works.