HC Deb 27 July 1866 vol 184 cc1634-43

(Mr. Attorney General for Ireland, Mr. Solicitor General for Ireland, Mr. Chichester Fortescue.)

[BILL 174.] COMMITTEE.

Bill considered in Committee.

(In the Committee.)

Clause 1 agreed to.

Clause 2 (Rules made by the Lord Chancellor and One Judge only to be valid.)

THE ATTORNEY GENERAL

said, that until the death of Judge Hargreave, which everybody, who had either the pleasure of his acquaintance or knowledge of the services performed by him in the Landed Estates Court, must deeply lament, that Court was constituted of three Judges, whose aggregate salaries amounted to £7,500. In the year 1858 a Bill was introduced proposing to reduce the number of Judges to two; but in consideration of the increased work which this change would entail, it was proposed to increase their salaries—in one case to £3,500, and in the other to £3,000 a year. Objection was, however, taken to the reduction of the number of Judges at that time, and in consequence the number was continued at three; the salaries remaining at the lower figure of £2,500 a year, or rather, he should say, at £3,000 a year for the chief Judge of the Court, Mr. Martley, and £2,500 for each of his colleagues and for every succeeding Judge of the Court. The death of Judge Hargreave, reducing the number of the Judges to two, necessarily threw a very considerable increase of duty upon each. Statements had been made as to a supposed reduction in the amount of business in the Court; but, having endeavoured to inform himself upon this point, he found that the business, as far as regarded the number of petitions filed for the last five or six years, had been rather increasing annually than otherwise. Taking simply those years during which the Landed Estates Court had been in existence, in 1859 there were 298 petitions; in 1860, 410; in 1861, 474; in 1862, 579; in 1863, 574; in 1864, 518; and in 1865, 519. For the last five years, therefore, the petitions had always exceeded 500 annually. The amount of purchase money, also, though in each succeeding year there had been a slight decrease, was extremely large. In 1861 it amounted to £1,300,000 and upwards; in 1862 to £1,600,000 and upwards; in 1863 to £1,300,000 and upwards; in 1864 to £1,300,000 and upwards; and in 1865 to £1,000,000 and upwards. Moreover, the Court now transacted a certain amount of business quite unconnected with purchase money—namely, that relating to the declaration of titles; this business was not represented in the returns by any purchase money. In addition to that, the Court had not until recent years the power of dealing with life estates, the investigation of the titles of which occasioned as much trouble as an estate in fee simple, while the amount of purchase money which passed through the Court was very much less. The business of the Court, in fact, did not show any symptom of decline, and the two Judges would have for the future to do almost as much work as had been hitherto done by the three Judges. With regard to the power of the Landed Estates Court, and the importance of the questions which came under their jurisdiction, he believed they were greater than the power and the jurisdiction of the other Courts in Ireland—at all events, its Judges occupied a position equal with that of other Judges. The Bill introduced into the House this year, but now withdrawn, proposing to create a Vice Chancellor in Ireland, named the sum of £4,000 a year as his salary; and he believed the salary of the puisne Judges was about the same amount. Now, the salary of the Judges of the Landed Estates Court was only £2,500 a year. In a comparison of the number of days the Court of Chancery and the Landed Estates Court were occupied it was shown that the latter sat a much greater length of time, though the Judges received a smaller salary. Parliament last year laid upon the Landed Estates Court another very important duty. A system of recording titles having been introduced into Ireland, the office was placed under the management of this Court, rendering necessary a greater or less amount of attention of the Judges during the whole of the year, including the period of vacation. The Court was responsible for the proper conduct of the office, and an appeal might at any time be made on any question that might arise. The Committee appointed to consider this matter were of opinion that the facts he had stated made out a very strong case in favour of the Judges of the Landed Estates Court. It might be said that it was unnecessary to make the alteration now that efficient Judges were doing the work at the present salary. But it was necessary to bear in mind that when it was first proposed to deal with incumbered estates, no Court was established, but Commissioners were appointed. It was a matter for wonder, then, that the services of two gentlemen like Mr. Longfield and Mr. Hargreave were secured; and that they should do what was seldom done before—namely, sacrifice their private practice and enter upon a contract with the State for a period not extending beyond five years, without any security as to pension, at a salary of £2,000 a year. The working of that Commission was a complete success, constituting a precedent, riot merely for Ireland, but also for other countries. At the expiration of the five years, Parliament thought fit to constitute the Commission into a Court, and to increase the salaries of the Judges from £2,000 to £2,500 a year, and the result had proved extremely advantageous to the country. He contended that it would be a very short-sighted policy, seeing that these Judges had devoted almost their lifetime to the working of the Court, contributing in no slight degree to the success which had attended it, to say that although their successors might make a claim for increase of salary they should be debarred from doing so. It had been said by some persons that Judges could always be obtained to do the work for a salary of £2,500 per annum. This might be so;—he believed it would be found that the lower the salary was fixed the greater would be the number of the candidates; but the question was how to get the best men, and especially in the Landed Estates Court. In ordinary Courts, where the case was argued on both sides, before the Judge gave his decision, it was comparatively difficult for him to go wrong; but, when it became necessary to deal with a title to landed property, the result of the investigation of which would be to give somebody an indefeasible title, and that investigation not conducted with argument on both sides, but depending wholly on the skill, care, and attention of the Judge performing the work, a man of greater ability and experience was required than in the judicial Courts, where the business was carried on in open court. There would be more difficulty in properly filling up a vacancy in the Landed Estates Court than was anticipated, and he ventured to say that it was by no means clear that a salary of £2,500a year would command the services of the best men. Whether regard was had to the present Judges and the increased work they were called upon to perform, or to the interests and prospects of the Court in the future, it seemed to him that there was an absolute necessity for raising the salary of the two Judges. The amount the Government proposed was £3,000, in place of the £2,500 they were at present receiving. The total sum which had been paid to the three Judges was £7,500 per annum; but if £3,000 were to be given to each of the two Judges, there would be a saving effected of £1,500. He trusted this would meet with the approval of the Committee; and he now proposed to fill up the blank in the second clause with the sum of £3,000.

MR. PIM

said, he was surprised, after the statement of the hon. and learned Attorney General as to the important nature of the business transacted by the Landed Estates Court, the large amount of work which necessarily came before it, and the additional duties recently imposed upon it, that he should have come to the conclusion that the salaries of the Judges of the Court should be fixed at only £3,000 a year each. The duties of the Judges of the Landed Estates Court were, according to the Attorney General's own statement, quite as onerous as those of the common law Judges, and consequently they ought to receive as high salaries; yet, under the Chancery Bill brought in by the late Government, it had been proposed to fix the salary of the Vice Chancellor at £4,000 a year. He did not see that higher attainments were required for the office of Vice Chancellor. The Judge of the Court of Probate again, whose judicial functions were exercised in dealing with property, whose duties were not more difficult, and did not require higher legal attainments, received a salary of £3,500 a year. In the Vice Chancellors' and other Courts, if a mistake was made, it was open to suitors to have it corrected speedily; but in the Landed Estates Court, if a mistake was committed, it might not be discovered for twenty years. The duties of Judges of the Landed Estates Court were therefore of such a character as to require men of the highest legal attainments and great experience, yet they were to receive salaries less than the Vice Chancellor, and less by £700 a year than the Judges of the Common Law Courts. If £3,000 a year was sufficient for a Judge of the Landed Estates Court, the salaries of the other Judges would be adequate at the same amount. But the only way to obtain good Judges was to pay them properly; and Judge Longfield had very fairly put not his own case, but the case of the Court over which he presided, when he stated that it ought to be placed on a perfect equality with the Superior Courts of com- mon law in Ireland. In that opinion he (Mr. Pim) fully joined, and he believed it was also shared by a large number of persons in Ireland. It was not for himself, but for his judicial successors in his Court, that Judge Longfield sought the increased salary; and in a correspondence with the Lord Lieutenant, who was of opinion that his own salary ought to be increased for the great services he had rendered to the public in his Court, and who suggested that the increase should not be extended to his successors, he declined to accept the increase for himself under such restrictions. That was highly honourable to Mr. Longfield—and his (Mr. Pim's) opinion was, if the country was to have good Judges they must pay them well.

MR. CHILDERS

said, that if he had been inclined to oppose the proposition of the Attorney General he should have run considerable risk of defeat, because one-half of the Members then in the House were Irishmen, and more than one-half of the rest were lawyers. Having listened to the remarks of the hon. and learned Attorney General, and having, while he was at the Treasury, perused the correspondence on the subject, he did not think that £3,000 a year was an excessive salary to propose in this case. The Government ought not to underpay their judicial officers or other Civil servants, but they should be most careful to reduce their number when they were more numerous than the business required; and it was certainly the case that on a comparison between England and Ireland it would be found that the number of Judges in the latter country was greatly disproportionate to the population and the amount of business done. A diminution of the number of Judges in this particular Court was, he believed, a salutary and feasible arrangement; and other redactions of the judicial establishment in Ireland might be carried out with perfect success, without impairing the efficiency of the tribunals, while a saving would be effected in the public expenditure.

MR. HADFIELD

wanted to know whether the Incumbered Estates Court was to be continued for ever, and what was the operation of the law which referred titles of estates to those Judges to be investigated, and which then brought such estates into the market with an indefeasible title; to be acknowledged for ever? Supposing that such a jurisdiction should be done away with, it appeared to him that the other part of the business discharged by those Judges might be turned over to the existing common law Judges in Ireland, and that it would be no longer necessary to have both staffs of Judges.

THE ATTORNEY GENERAL

said, the Court was one of the established and regular Courts of the country, and not a mere temporary tribunal. The hon. Member for Sheffield (Mr. Hadfield) had termed it the Incumbered Estates Court, but its correct name was the Landed Estates Court. The Landed Estates Court was very different from the original Incumbered Estates Court, which was established for one specific purpose—namely, to clear estates from incumbrances and to ascertain what surplus remained after that process had been gone through; whereas the Landed Estates Court did that one species of business, and a great deal more besides. Among other duties it did a great mass of business having reference to declarations of title. It further entertained applications for the purpose of exchange, while it had also to deal with the general record of titles throughout the country. As to the amount of business which was transacted by it, he had to state that, instead of its being of a temporary or evanescent character, it had continued to increase up to 1862, since which year it seemed to have been almost stationary. In 1859 only 298 petitions had been presented to the Court; in 1865 the number was 519, while the sums of money which were annually passed through the Court amounted to between £1,000,000 and £2,000,000. He was sorry that no similar Court had been established in England, where he thought it would confer great advantage. In 1862 Parliament had established the Land Registry Office in England; but that plan had not turned out to be very successful, and he believed that circumstance was to be in a great degree attributed to the fact that it was based on a different principle from the Landed Estates Court in Ireland, which had proved a great success.

Clause, as amended, agreed to.

Clauses 3 to 5 agreed to.

Clause 6 (The recited Acts of last Session to be carried out by Recorder of Titles.)

MR. PIM

wished to know what the clause meant. It was necessary that the person appointed to discharge the duties of "Recording Officer" should be in attendance every day; but it was only natural that Mr. Urlin, the person appointed to the post, should expect some vacation. He wished to know whether that Gentleman would be entitled to take a holiday; and, if so, whether, in the event of his being absent for a month from his duties, the person who under the 10th clause might be appointed his substitute, would be entitled to receive remuneration. He also wished to know whether the Recording Officer would be more independent of the Judges than any other Examiner, and whether the Judges could, without a dereliction of duty, in any degree throw off the responsibility which, under the law as it stood, it was intended they should exercise?

THE ATTORNEY GENERAL

agreed that it was important that they should have a distinct and clear apprehension of the responsibility of the Judges of the Court with reference to the record of titles. It was the very essence of the Act that the Judges of the Court, and they alone, should be responsible for the working of the Act; and he should deprecate any provision of the Bill which would have, in the slightest degree, the appearance of setting up any officer who would detract in any degree from the responsibility of the Judges. Mr. Urlin would be under the control of the Judges, and would be answerable and amenable to them in every way for the discharge of his duties. With regard to the question of salaries, the Treasury would have the power of regulating the salaries of the various officers. It was proposed to give to Mr. Urlin £200 a year in addition to his ordinary salary as Examiner; because, unlike the other Examiners, the duties of his office extended over the whole year, including the vacation. This £200 a year would be, as it were, the income provided for the officer who might perform the duties of Examiner during the vacations, and if Mr. Urlin had a holiday, and a substituted officer performed his duty, some arrangement would be made by which the substitute so provided would be paid out of the additional £200.

MR. MONSELL

said, the Judges of the Landed Estates Court had expressed the opinion that Mr. Urlin was not the fittest man for the post; in that case he thought it rather extraordinary to appoint him by name in the Act.

THE ATTORNEY GENERAL

observed, that the Judges did not say Mr. Urlin was unfit.

MR. MONSELL

read the statement to which he had referred, and which declared that the Judges objected to Mr. Urlin's name appearing in the Bill, as they did not admit that he was the fittest of the officers to deal with the post, and they declined to be responsible for the working of the measure if they were refused the power of naming the officer they thought best fitted to do the work. On that ground he objected to the clause.

THE ATTORNEY GENERAL

said, Mr. Urlin would be employed under and by the Judges of the Court, and would be responsible to them; and if there was any failure in the performance of his duties he would be removable.

MR. BRADY

considered that a clause involving so important a change ought not to be passed while the Law Officers on that (the Opposition) side of the House were not present. He, therefore, moved that Progress be reported.

MR. CHILDERS

regretted that such a paper as that read by the hon. and learned Gentleman (Mr. Monsell) should have been read to the House, and felt bound to say that the arrangement under which Mr. Urlin was appointed was made, after careful consideration by the late Attorney General for Ireland (Mr. Lawson), to supersede impracticable arrangements which had been proposed before, and under which the working of the Act must have broken down. It would have been better if the Committee had refrained from dealing with a personal matter like this, and had trusted to the late and present Attorney Generals, who had well considered the matter.

THE ATTORNEY GENERAL

said, that although he was not responsible for drawing the clause, he supported it, believing that Mr. Urlin was qualified to fill the office.

MR. SYNAN

considered that the appointment should be left to the discretion of the Judge of the Court, and not filled by express enactment.

MR. O'BEIRNE

thought it would be unjust to Mr. Urlin, who had been a public servant for the last eighteen years, if the clause were left out.

Clause, as amended, agreed to.

Remaining clauses agreed to.

MR. O'BEIRNE

proposed, with the view of destroying the existing monopoly by which the purchaser of stock by order of the Court was confined to a limited number of brokers in Dublin, to add after Clause 3 the following:— It shall be lawful for the person or persons having the carriage of any order or direction of the Court for the investment of any money in the purchase of the stocks, funds, or annuities transferable at the Bank of Ireland, or the transfer for sale of any of such stocks, funds, or annuities, to employ any one of the licensed stockbrokers, being a member of the Stock Exchange in Dublin, to make such investment or transfer.

THE ATTORNEY GENERAL

objected to the clause. It was a question of considerable difficulty. Arguments could be used on both sides with considerable weight, and as it would be impossible to accede to the clause without rendering a change necessary in the Irish Court of Chancery, he hoped the clause would not be pressed. It might be proper to make an alteration in the practice of the Courts, but if so it ought to be done after due notice and in a different form.

MR. CHILDERS

thought that if any change was to be made it would be much better to appoint a salaried broker in Ireland as was now the case in England.

MR. O'BEIRNE

said, he had been induced to move the clause at the request of the stockbrokers of Dublin. The English Court of Chancery ought not to be urged as an objection to making this change in Ireland. Since 1858 the business in the Landed Estates Court had been confined to six brokers only, and during that time £7,500,000 worth of stock had been purchased, and £2,500,000 invested by the court. It had given extreme dissatisfaction to a highly respectable body of men.

MR. SYNAN

objected to the sudden manner in which the clause had been brought forward. There ought to have been due notice given of it. It was not fair to deal with this subject in the partial manner proposed. If they agreed to the clause they would have a different practice in the Court of Chancery and the Landed Estates Court. He hoped the Committee would reject the clause.

MR. PIM

hoped the hon. Gentleman would not press his Amendment.

MR. O'BEIRNE

said, he would consent to withdraw it.

Amendment, by leave, withdrawn.

Schedule agreed to.

House resumed.

Bill reported; as amended, to be considered upon Monday nest.