LANDED SECURITIES—IRELAND. (Hansard, 19 August 1835)

§ Mr. Sergeant Jackson
moved the order of the day for the House going into Committee on the Landed Securities' Bill.

§ Mr. Lynch
said, he had heard no statement made to the House which should induce it to go into Committee on this Bill. The first and second readings having been allowed to pass without any observations whatever, he was, therefore, induced to trouble the House with a short statement of the circumstances under which he brought forward the original Bill, and those under which they were now called on to repeal one of its main provisions. On the fate of that Clause which they were now called on to repeal, the Bill itself depended. It did not appear to him at all unreasonable to allow parties to lay out 707 monies to be invested in real security in England and Wales upon Irish security. He denied that any inconvenience could possibly result from that provision; it had already wrought beneficially for Ireland, and it was an answer to the whole objection to say that the Act was entirely optional, not imperative. It was highly advantageous to bring money under the authority of this Act, and thereby subjecting it to the English courts. But it was said, that there being a registry in Ireland and none in England the law must be administered differently. That argument, however, could not for a moment be listened to by any one who understood the law. With respect to the form of process there could be no difficulty. After a suitor had proceeded to a certain extent in the English courts to obtain principal and interest, he was bound to carry back the decree to Ireland in order to be enrolled, and the Irish courts would then issue process. Then, as to the remedy by foreclosure: There was scarcely a mortgage without a trust for sale, and in that case, undoubtedly, it might be so. With respect to public bodies, they would not have the remedy by foreclosure; they would come within the statute of mortmain. But what was to prevent any party under this Act to stipulate that the remedy should be by sale and not by foreclosure? If a person were obliged to agree to the terms proposed, it was because he could not go elsewhere, and it must be for his advantage to get money under the provisions of this Bill. Why should a landlord involved in great difficulties—perhaps about to be dragged to prison—why should he not be allowed to take advantage of this Act, and borrow money, not at 6l. per cent., as at present, but at 5l. per cent.? Why not give him the power, the option, of coming under this Act? He did not find that any petitions had been presented from the landed proprietors of Ireland against this Bill in its original form, although all the grand juries had their attention specifically called to it. In fact, as two petitions had been presented against it, emanating from certain societies of solicitors in Dublin, who went so far as to take the opinion of counsel against the Bill, it seemed as if they were afraid of losing business by its operation; but, instead of being losers they would, in reality, be gainers by it. In case proceedings should take place, the answer must be prepared in Ireland; and if evidence were necessary, the commission to examine wit- 708 nesses would be executed in Ireland. There was nothing more injurious than the present system of borrowing money on land in Ireland; not only was the landlord harassed, but the tenant also. How was the tenant to determine as to the priority of the custodium creditors? One calls at one, another at two, and another at three o'clock; how was he to ascertain their priorities? He had only one alternative to pursue—either to pay them all, or set the whole at defiance. It was to put an end to this great inconvenience that he brought in the former Bill; it had passed into an Act and had done good already to Ireland, and he was convinced it would, in future, if allowed to remain as it was, operate much more beneficially. He objected, therefore, to this proposed alteration of the Act, not only because it would destroy the main provisions of the Bill, but also because it was a substantial breach of faith towards those who had availed themselves of its enactments. He, therefore, begged leave to move that the Committee be postponed till this day six months.

§ Mr. Sergeant Jackson
confessed he was rather surprised at the course of objection which had been taken by the hon. and learned Gentleman on the present occasion. That hon. and learned Gentleman did not think this particular clause at all necessary when he contrived and brought forward the original Bill. It went through that House without it, and in another place this objectionable clause was inserted. He had, therefore, the authority of the hon. and learned Gentleman himself in favour of the Bill without this clause. He could not think it fair or right to proceed against Irish estates, as if they were situated in England. The hon. and learned Gentleman said it would be a breach of faith towards those who had come under the act to strike out this particular section; but it was expressly provided that its repeal should have no retrospective bearing. Those parties would not in the slightest degree be affected by it, because it was only to have a prospective operation. He considered that a sufficient answer to such an objection. The consequence of being obliged to proceed according to the 9th section, as if the lands were in an English county, would be, that the suit must be conducted agreeably to the law of England; but although, with respect to registry, the English court might proceed in the same manner as the Irish in questions of contract, as to matters that were transitory, he never heard that 709 doctrine applied to fixed property. It was totally impossible to administer Irish laws in a cause instituted in the English courts. He did not hazard this opinion on his own authority alone. The first legal opinions in Ireland had been taken on the subject. The late Attorney-General, and the present Solicitor-General, for Ireland, concurred in the opinion which he then held in his hand, and in which they strongly deprecated the Bill in its present shape, and urged the necessity of its immediate repeal. He trusted he had stated enough to convince the House that the section introduced in another House of Parliament should be repealed.

The Solicitor-General
said, it appeared to him that the attempt made by the hon. and learned Gentleman opposite (Mr. Sergeant Jackson) was an attempt to extend one of the most mischievous Bills, in point of principle, that ever passed that House. What did that Bill provide for? That trustees, who were bound to invest their monies in real security in England and Wales, might be at liberty to lay it out in Ireland. This qualification, however, was imposed—if this money were to be lent on Irish security, it should remain within the jurisdiction of the English courts. That provision undoubtedly took the sting out of it; and if that alone were repealed, the greatest injustice would be done.

Mr. O'Connell
That proposition was not accurately stated. The consequence of the Bill, standing as it at present did, would be, that instead of a bonus it would become the greatest possible mischief to Irish landlords. His hon. and learned Friend (Mr. Lynch) had spoken somewhat disparagingly of the society of solicitors in Dublin, who had petitioned against his Bill. A more intelligent and independent set of men there did not exist. They felt it an incumbent duty, not from regard to their own pecuniary or professional interests, but to their clients, that this law, in its present state, should not be sanctioned; and with respect to the gentlemen of the Irish bar, who had expressed an opinion against the Bill, they did not require any vindication or eulogy from him. The only doubt they had was, whether the Bill should not be entirely repealed. As a practitioner of many years standing in Ireland, he must be allowed, solemnly, to assure the House that a greater mischief to the landed gentry of Ireland could not possibly be devised than this Bill, in its present shape. He took shame to himself for not having looked 710 more narrowly into the original measure when it passed. Had he known that it contained such a provision as that he hoped now to be repealed, he should have betrayed his duty to his constituents, and the people of Ireland, if he had not given it his most decided opposition.

§ Colonel Perceval
looked upon this Bill as one of a very important character, and he could not but think that it very properly gave the English trustee, investing his money in Irish security, the aid and protection of the English courts. He was very much disposed to think it but just to allow English trustees and capitalists the protection, in such cases, of the English law. He was not, of course, professionally acquainted with the law, but he could not but think this would be of great advantage to all parties concerned. If the Irish landlord chose to avail himself of English capital, it was but fair that the English trustees should have the protection of the English courts in case of a failure of the Irish landlord.

§ Mr. Sergeant O'Loghlen
said, if any proposal were made to repeal the whole act, he would most certainly support it; but the proposition now was of a different kind, and went to continue an act to enable English trustees to lend money on land in Ireland, the words of the trust being "to lend on real security in England and Wales." Now, he did not see how they could fairly continue that act without some provision for enforcing the payment of the money in England. He did not object to go into Committee, but it would be much better to propose that the act altogether be repealed, except as to contracts already made.