HC Deb 04 July 1848 vol 100 cc87-109

On the Motion for reading the Order of the Day for the Committal of this Bill,


objected to the House proceeding with a Bill of that importance, while so many were absent attending Committees who were anxious to take part in the proceeding.

On the Order of the Day for the House to go into Committee,


trusted to the indulgence of the House while he made the Motion of which he had given notice, namely, that it he an instruction to that Committee to extend the operation of this Bill to England and Scotland; and he trusted that he should be enabled to induce the House to sanction his Motion. Before he proceeded, he could not help expressing his feelings of satisfaction at the conduct of the Lord Lieutenant of Ireland, during the season of distress, for it had been such as to command the respect of all classes; he therefore regretted that he felt it to be his duty to differ from that noble Earl and the Government, with respect to this measure. The proposition which he was about to offer to the House appeared to him to be so clear, that he felt it would be only justice if the House sanctioned it. It was constantly stated in that House, and a similar observation was made in nearly all the answers of the Lord Lieutenant to addresses, that Ireland must be considered and treated as an integral part of the empire, and that there should be a perfect identity between the laws and institutions of the two countries. It was well known that Irish lawyers had to come to this country to receive a certain portion of their professional education; and they had more than once been told that an Irish Chancellor might be called upon to give judgment in the House of Lords. Therefore, it was most desirable to make the laws of the two countries analogous. If, however, they proceeded to examine that Bill, they would find that this principle had been departed from. This Bill was laid before the House of Lords at the commencement of the Session, and after considerable delay it passed through that House; it, therefore, was but reasonable to suppose that the Bill before the House came from the House of Lords, which had had it under consideration for several months, in almost a state of perfection. But what were the facts of the case? At a late hour one night the hon. and learned Solicitor General, without any explanation, asked the House to allow the Bill to be committed for the purpose of making certain alterations, and of introducing certain clauses into it: the House assented, and the result was, an entirely new Bill fixed on the old one. Some legal gentlemen, who had seen the alterations, told him that they were utterly astonished, and they complained that the alterations were at direct variance with the chief principles of the former Bill. He, therefore, must complain of the conduct of Her Majesty's Go- vernment in this respect, and also that they had brought it forward for discussion in that House at a moment when a great part of the Irish Members were in their respective counties attending to important duties. Her Majesty's Ministers now urged the House to pass this Bill immediately, which, he contended, would alter the whole law of property in Ireland. He denied, however, that there was anything in the peculiar situation of that country to justify such a change; and it would be part of his argument to show that the financial condition of that country was not so different from that of England or Scotland as to call for a Bill of this kind. A number of deputations, composed of Irish Members, had waited on the Government with respect to this and other measures; and nothing had been left unsaid to show Her Majesty's Ministers the evils which would result from them. Such deputations had not gone unauthorised to the Government, for the greatest alarm prevailed in many parts of the country at the manner in which this Bill had been proceeded with. He would first refer to the county Clare, and read a few figures, with the view of showing what was its condition. It appeared that formerly the ordinary presentments at the assizes for that county were 15,000l., but this year they amounted to 56,000l. The grand jury thus saw the charges more than trebled, within a very short period. Indeed, the sum of 45,000l. was required for new presentments, making a large deduction from the property of Irish landowners. Upon his own estate the rent paid was about 10s. an acre. The rates in former years might be taken at 7s., but the charge for rates now amounted to 14s. This was a fair indication of what prevailed there. He was on the Continent at the commencement of the famine, but he immediately returned, and took an active part in the relief committees. He made it a rule to attend every meeting of magistrates, and day after day he went to the different sessions, and he had exerted himself to keep down extravagance in the expenditure of the relief and labour funds; but the effort of an individual was perfectly powerless. Seven or eight other magistrates exerted themselves to the utmost for the same purpose. No one who had not been in the midst of famine could judge of the excitement and fears constantly engendered. It was very easy to reason upon such a subject in a chamber; but the question of practically dealing with it was a most difficult problem to solve. It was not the fault of the Government alone that there was so much confusion and extravagance, for he gave Her Majesty's Ministers every credit for the exertions they made in endeavouring to meet the famine. The fact, however, was, the Acts of Parliament passed for the relief of the famine were so much hurried through the Legislature as to be full of errors. The Labour-rate Bill was false in principle, and had been productive of much mischief. He believed, after the experience they had had of the operation of that measure, no Government would ever venture to propose again a Labour-rate Act. He contended, that every farthing advanced by the Government under that Act ought to be cancelled, and more especially as to the western counties in Ireland. The whole of the labour-rate was administered, under a state of famine, in a most objectionable way. If, however, that measure, or some other, had not passed at the period at which it did, thousands upon thousands more of the peasantry would have perished beyond the number which actually did perish. The advances made under that Act were to be repaid in two instalments; and although the Government and the Parliament had very liberally cancelled one-half of the sum granted, still the effect of these charges had been such as to double the rates. He would refer the House to the charges under the Labour-rate Act in the counties of Clare, Cork, Galway, and Limerick, where the rates had increased to a very alarming degree. In Clare, the charge for repayment made at each assizes was 14,000l., in Cork, 16,000l., in Galway, 11,000l., and in Limerick, 11,500l. Then, again, with regard to outdoor relief, which under the pressure of famine they were obliged to adopt, the effect had been such as to render the condition of the county of Clare most disastrous. In that county they were spending 11,000l. a month, or 132,000l. on the poor-rates alone. If the House considered the pressure which these rates must occasion on the population, they could conceive what difficulties the landed proprietary had to contend with. It must be recollected, that the payment of the poor-rates was imperative, and that the payment under the labour-rate was also imperative. The state of distress, and the privations the people had been exposed to, had been productive of most disastrous effects to the population of the country; and above all, to the younger part of it, for children four or five years old were so shrivelled up that they did not appear to be more than one or two years old. With respect to the Bill before the House, if this measure was good for the Irish landlords for the purpose of relieving them, it was equally so for the English landlords. If the measure was good, let them have it on both sides of the Channel; but if it was a bad one, why force it forward? He was convinced the measure would be productive of much mischief. If they passed a measure to compel the landholders of Ireland to deal with their estates under such an Act, they would inflict a great injustice. He recommended the right hon. Gentleman to withdraw this Bill for the present year, or so to modify it as to make it a boon to Ireland. He was sure it was not the wish of the Government to oppress the landlords; but they were now endeavouring to force a Bill through Parliament which would shake the foundation of property, and expose Irish landlords to every annoyance to which creditors could expose them. It might be said that this measure should pass in justice to creditors. He denied it, for the mortgagees of estates in Ireland had been for years receiving a much higher rate of interest than the same class of persons received in this country. He did not think, also, that this class of creditors, who had money invested on the security of Irish property, were in such a condition as to call for such a measure. There might be individual cases of hardship on creditors; but even if there were such cases, remedies existed under the present law, by which the property of the creditors would be effectively protected. Some of the clauses in this Bill involved most important constitutional principles. Under some of its provisions they proceeded to restate the law of entail. He did not say, whether the law of entail was right or wrong; but still it was the law of the land, and under it the landed gentry were enabled to keep up their station, and upon them the monarchy itself rested. The House, then, was asked to do away with this law without regard to the past, or without notice of the constitutional matter involved. Under the 30th Clause of this Bill, a tenant for life might sell the whole of an ancient family domain without consulting the person who was to succeed him in the possession of the property. The clause gave such a person the power of placing the money derived from such sale in the Bank of Ireland, and he might draw as much as he pleased from it. Suppose, for instance, the case of an estate worth 200,000l. in the possession of a tenant for life who owed 5,000l. or even 1,000l.—he might sell this estate under the provisions of this Bill. Thus an ancient family mansion, which might have cost 50,000l. in its erection, might be sold for 2,000l. or 3,000l. This person's successor might find a certain sum of money lodged for him in the Bank of Ireland, instead of succeeding to an estate of which he was the heir. Under such circumstances, he most strongly objected to give such power to any person. Again, under the third clause, any person having an encumbrance on an estate might force it into the market, and sell it at a most ruinous loss to the owner. Many of these estates were in the character of royalties, and it was most objectionable to get rid of them in such a way. He therefore called upon Her Majesty's Government to pause before it proceeded further in thus dealing with such a large amount of property. If the measure was for ill or good, surely it was only fair and just that it should be equally applied to all parts of the United Kingdom, instead of its operation being confined to Ireland. As the Bill stood, a property might be sold, however much below its value the amount offered might be. He had heard many observations since he had been a Member of that House about the landlords of Ireland, which he could only regard as gross calumnies on that much-abused class. A more kind or able body of men did not exist; and no men could be better adapted for public or private business, or for the management of their own affairs. Much had been said in that House of acts of oppression perpetrated by landlords. As an answer to this he would mention the subject of a recent conversation which he had had with the assistant barrister of the county in which he resided. When he asked that learned gentleman whether he had frequent instances of oppression on the part of landlords brought before him; the reply was, that although he had resided twenty years in the county, he did not at that time recollect more than one case of the kind. With respect to cases of ejectment, he must plainly state, that the legislation of that House for some years past had tended to force landlords to eject the smaller tenants for non-payment of rent. For some years past that legislation had had a tendency to oblige the landlords of Ireland to force their ten- ants out of their possessions. The operation of the Quarter-Acre Clause had forced a great number of landlords, in self-defence, to get quit of their tenants. He had himself pay 100l for tenants who had not paid him a farthing of rent. He spoke from practical knowledge. Then, if landlords were compelled to eject their tenants, they must immediately pull down the house which the tenant had occupied when they had got the tenant out of it; for if the tenant so ejected went and took possession of the house again, the landlord, unless he used violence, must obtain a fresh ejectment. There was no other remedy than to pull down the house. That was the fault of the legislation which had been going on for years. If Parliament wished to prevent the landlords from doing these harsh things, and to save the tenants from being subjected to such proceedings, the course of legislation must be changed, and the law simplified. He might state another difficulty which existed in dealing with small tenants in Ireland. If he built a house in a village, and put a man into it to live there comfortably, it might be two or three years before he got that house again into his possession, though the tenant would pay no rent. Three or four years would elapse before one could get quit of the pauper; instead of a nice comfortable cottage such as it was at first, the cottage came back in a very different condition; and, were such a case to occur on his property, in this House he should have his fair name tarnished. Until adequate power were given to the landlords in such cases, the country would continue to present such barbarous scenes as it now exhibited. He begged to move— That it be an instruction to the Committee on the Encumbered Estates (Ireland) Bill to extend its operation to England and Scotland.


was anxious to explain what were the real objects of the Bill before the House, which it was clear were not understood by the hon. Baronet, nor were its provisions duly appreciated by him. In the first place, he wished for one moment to make allusion to the complaint of the hon. Baronet as to the introduction of certain clauses in the Bill at a former stage of its progress, without explanation. He was sure, when the circumstances were explained, no censure could be passed on the Government for having introduced these clauses into the Bill. When this was done at a very late hour of the night, he was anxious to enter into some explanation, but he was prevented from doing so; he therefore proposed that the House should go into Committee pro formâ, so as to enable him to introduce a number of new clauses; and the reason why he did so was, that he was anxious that the House should have the Bill before them in as perfect a state as possible previous to the discussion. The object of the Bill—which must be admitted was of very great importance—was to make land in Ireland a marketable commodity, which it was not now, or only to a very small extent. From the peculiar situation of that country, as it appeared from returns laid before the House during the time of the greatest distress in Ireland, capital was constantly coming from thence to be invested in landed property in this country. It was admitted, also, by all the witnesses examined before several Commissions, as well as Committees of that and the other House, that if land in Ireland could be sold in reasonable or small pieces, abundance of capital would be expended in the purchase of it, and that such a circumstance must be attended with the most beneficial results. To effect that was the object of the Bill; and he had not heard any person say that it was not most desirable. The House should recollect how different the tenure of property was in Ireland from what it was in this country. There were two systems of registration of landed property and of deeds connected with it in Ireland. The one was under an Act of Parliament, by which it was enacted that all incumbrances on land should be registered. That description of registration was most effective, and was similar to a system which prevailed in parts of England, by which parties could learn the nature of such incumbrances. The former was simply giving the name of the parties owning the land, and stating that on such or such a day certain persons made advances of a certain amount on the security of the land. Now, there was a peculiarity in Ireland which did not exist in England. In the former country, there were two simultaneous rolls; and one of these must be examined in order to discover all the various incumbrances which affected the land in the registry of deeds, and the other in order to ascertain all those which affected it in the shape of judgment and Crown debts. In all cases, priority was regulated by dates. The effect of this was, that the possession of title-deeds, and of what was called the legal estate, was a matter of very little importance in Ireland, because an incumbrance had priority over everything subsequent to it in point of date. In this country, a very different law prevailed. When a man had advanced his money bonâ fide, without any knowledge of a previous advance, by getting what was technically called the legal estate, he might gain priority over all persons who had advanced money previously, and thereupon he became the first incumbrancer. No person, in fact, would advance any considerable sum of money without having the legal estate conveyed to him; and the effect of the system was, that whenever sums of money considerable in amount were advanced in England, the first incumbrancer who had got the legal estate was paid off, in order to obtain the conveyance. This prevented the accumulation of old incumbrances. The operation of the system in Ireland was exactly the opposite of what he had just described. It was not an uncommon thing for English lawyers familiar with conveyancing to see, in the case of Irish titles, an incumbrance one hundred years old; and not only so, but the incumbrance had often been the subject of family settlement for almost the same period. I There was, in consequence, one estate settled within another, very often including three or four separate incumbrances one after another, all involved in the same estate. Here was a piece of land with three or four different sets of incumbrances going on simultaneously, settled for the benefit of different families, while the original estate was settled in another way for the benefit of the owner—a thing that was never seen in this country. It was unnecessary for him to do more than explain the peculiar, and at present unavoidable, complication which existed in the case of Irish titles. The same thing, in effect, occurred in the case of judgments as in that of incumbrances. The usual mode of giving an abstract of title was, in the first instance, by reciting the title of the person originally seised in fee, and then of all subsequent incumbrances. Even if an incumbrance had been paid off, that did not create an exception; in that case, it was equally necessary to show what had become of the incumbrance. From this cause arose a most singular complication in every attempt to make a sale of land in Ireland, because as soon as you attempted to make a sale of any property, you must show either that the incumbrances were satisfied, or that the persons in whom they were vested were prepared to convey their interest to you. Hence sales of land in Ireland were most embarrassing, and the expenses attending them very great. The operation of tracing out all the incumbrances was a very difficult one; and proportionably great was the expense of getting so many incumbrancers to convey their interest. Now, it naturally occurred to the persons to whom the Government entrusted the duty of preparing these Bills, that the best mode of dealing with the matter would be, as far as possible, to enable parties to sell the land, and to substitute money for it, giving to the money all the incidents of the land, and subjecting it to all the incumbrances by which the land was affected. Hon. Gentlemen were aware that there was a peculiar doctrine of the Court of Chancery, by which in various cases money was treated like land. The effect of fixing the money thus raised with the incumbrances, would be to set the land perfectly free for the purposes of commerce; and if the proper price were obtained for it, both the incumbrancer and the owner would be in exactly the same relative position as they were before. The nominal owner of land was the person on whom was really thrown, at present, the burden of every species of improvement, and who was considered bound to protect his tenant; but, in point of fact, the existence of incumbrances opposed a barrier to the attainment of that object. If this could be really attained, it would lead to the most beneficial results; but of course its attainment should be sought consistently with the due preservation of the rights of all parties concerned. Now, it had occurred to the framers of the Bill that it might be done in two ways. In the first case, there might be a compulsory sale. A person might present a petition to the Court of Chancery, saying, "I require this land to be sold," and the court might then determine whether it should be sold or not. Accordingly, in the first part of this Bill there were a great many provisions inserted, with a view to the effecting a compulsory sale of land, under the authority of the Court of Chancery. The mode in which it was proposed to secure that object was this. Having got rid of the expensive forms of bills and answers, and having enabled the Court of Chancery to deal with the matter on summary application, the Bill then proceeded to provide for a reference to the master to ascertain what really were the incumbrances on the land, and what were the rights and interests of the several parties affected; and the incumbrances having been ascertained, together with their priority, the sale was to take place, and the money to he subsequently divided amongst the persons who were entitled to it. It was proposed to give what was commonly called a Parliamentary title to the party who had bought—that is to say, the person who purchased under the authority of the Court of Chancery, which had to investigate the rights of the various parties interested, was to receive an indefeasible title as against the whole world, That was an advantage of the most important description. All the difficulties connected with the two registries of deeds and judgments would thus he swept away. He had omitted to mention one great source of complication and difficulty as regarded titles in Ireland. There was an Act in operation in that country the effect of which was, that the whole of these registry judgments and deeds were assignable at law, and a party buying up a judgment was in the same position as a party who had a mortgage on the land. He would now shortly explain the difference between the Bill as it was prepared last year, and the Bill as it had come down from the House of Lords in the present year. It was felt by a great many persons who took an interest in the matter—and the Government shared in the feeling—that a great impediment would arise from the Bill, on account of the necessity of engaging in what might prove very long and complicated Chancery suits. It was true that the Bill provided that there should not be bills and answers, and the ordinary pleadings; but every person who was conversant with proceedings in equity, must be well aware that no practical suits in the Court of Chancery were more expensive or more dilatory than those instituted to ascertain the rights of incumbrancers, and the amounts and priority of incumbrances. The great expense of such suits arose from the proceedings in the master's office. As the Bill stood originally, therefore, great numbers of persons would, it was feared, have been prevented, under its operation, from going to the Court of Chancery, by the apprehension that the produce of the sale of the estate would be so diminished by the costs of the application, that in the result the boon would prove to have been hardly worth accepting. It occurred, however, to Her Majesty's Government, that this principle might be carried a step further—that a course might be adopted similar to that which had been followed under several Acts in this country—that property might be sold by consent, and that consent might be assumed in all cases where persons, after receiving proper notice of the intention to sell, did not interfere to prevent the sale. Therefore the subsequent clauses of the Bill were framed with this view—that, in cases in which all the persons interested in an estate were of opinion that it was for their advantage that that estate should be sold, thereupon the estate should be sold, without the authority of the Court of Chancery; but it was provided that all persons who had any interest should have that interest secured by the adoption of the same course with respect to this last mode of proceeding as was to be pursued with respect to the former—that is to say, the money was to be brought into the Court of Chancery to represent the land, although the sale had taken place independently of that court, and the court would have to deal with the money afterwards. With respect to this last part of the Government plan, there were undoubtedly a great number of contingencies to be provided for, and of difficulties to be met. In the first place, it was necessary that all persons interested should have proper notice. In the next place, it was of course desirable to provide against fraudulent sales. The House would understand that the tenant for life could not sell the property away from the person who was entitled to the reversion, unless there was an incumbrance affecting the whole estate. Of comes it was desirable that the tenant for life should not be allowed to create an incumbrance and then sell the whole estate; and the House would find that case provided for by the third section. With respect to the sale, the next point was to give the owner the power of selling in cases where there were incumbrances, for the purpose of discharging them. Before noticing the objections to this part of the Bill, he would observe, with respect to incumbrances, that it was provided that if the owner would not sell, the incumbrancer, after giving him notice, might do so; and that if the second incumbrancer would not sell, the third might; and so on through the whole set of incumbrances. Now, having heard several objections urged against this part of the Bill, he asked the House to bear in mind that at present any incumbrancer could sell an estate in Ireland by means of a suit in the Court of Chancery. He knew, indeed, that on that subject a question had been raised under the Bill for the abolition of mesne process, upon which a different construction had been put in Ireland from that which prevailed in England. But he would assume that every person could by means of a suit sell an estate if he liked. Undoubtedly, the sale might take place in the majority of cases, and he believed it might in every case. It had been objected that under the Bill there would at least be great delay, and that it might be two years before a party could compel a sale. It must, however, be borne in mind that the whole costs of the suit would fall on the estate; and it could not be thought desirable to force parties into an expensive litigation when there was no doubt as to their legal rights. Now, on the subject of notices he would observe, that in this country it wag almost the invariable rule o give the mortgagee a power of sale without applying to the Court of Chancery, or giving notice to any one. By the Bill it was proposed that the fullest notice should be given to all the parties interested, in order to prevent anything like a fraudulent sale. In the first place, the register might be searched. There was in Ireland what was called the negative certificate, which was a certificate from the registrar that he had searched the registry, and that the list of incumbrances given included all that were contained in it. This, however, was a very expensive process, the registrar being entitled to certain heavy fees for every document which he specified in his list. Solicitors were to be empowered to make the search, and the expense would be greatly diminished. The notices were to be published on the church, the chapel, and the workhouse. It had also been suggested, that in addition to that, all persons should be enabled to enter a caveat in the Court of Chancery, specifying the place where they wished to be served. A discretion was given to the Lord Chancellor in certain cases. He thought it would be found that ample provision had been made against any improper or fraudulent sale. It was further proposed to provide against the possibility of fraudulent sales, by not allowing the Parliamentary title to he complete until five years had elapsed from the period of the sale. The operation of the conveyance after the sale would be the same as if the various persons who had the incumbrances had joined in the transfer. He thought the Bill provided great checks against every species of fraud. What was there, then, to prevent any person in Ireland, who happened to be in possession of an estate of which he was not the real owner, from selling that estate? He had only to make out his title, and if he did that to the satisfaction of the Court of Chancery, the purchaser was hound to accept it. It was a fact, however, that a man scarcely ever sold landed property which did not properly belong to him, except when he was not aware of the flaw in his title; and it was also true that the Court of Chancery might compel a party to take a title which, in point of fact, was not a good one, if, upon all the information which the court possessed, it appeared to be good. Any person not specified in the notice might, within five years, take proceedings to set aside the sale, for it was not till the expiration of that period that the Parliamentary title could be complete. Another great security against fraud was this. It was difficult to understand under what circumstances it could be any person's interest to commit a fraud. In the first place, there were clauses in the Bill having reference to errors and irregularities in the service of the notices, which would he best dealt with in Committee. But the House was well aware that, if there were a fraudulent or collusive sale, it would vitiate the whole proceeding—that the whole thing would be void as against any party concerned. A collusive sale, for example, would be altogether bad, and might be set aside. The provision with respect to the Parliamentary title appeared to him very advantageous: it wiped off all the difficulties with respect to prior registry, and at the expiration of five years the purchaser had a good title. There was an analogy to it in the English law, by which titles were acquired through the mere lapse of time, and that provision of the law was justified on public grounds. The provisions for sale by the owner appeared to him the most important part of the Bill. If the first incumbrancer sold, his object might be to sell only so much of the estate as would be beneficial to himself; but the first right of selling was given to the owner, and he thought that in every case in which a sale was made, it would be the owner who would exercise the power. Knowing that if he himself did not sell, the incumbrancer would insist upon doing so, the owner would say, "I will manage the sale myself." No person had a clearer or more direct interest than the owner in obtaining the largest possible price. He could not conceive a case of fraudulent collusive sale, or one in which it would not he the owner's interest to get the largest amount, and to make the estate as available as possible. Of this he felt certain, that one effect of the Bill would he to enable the owner to sell his property for a much higher price than he could have done independently of its provisions, and that the Bill would be a very great boon to the landowners of Ireland in that respect. Now, it had been suggested that a person out of spite might sell an old family estate for the mere purpose of injuring the party who was to come after him. Such a case was undoubtedly possible, but he did not think it was probable; and if it arose, an application might he made to the Court of Chancery to stop the sale, on the ground that it was not necessary. [An Hon. MEMBER: There is the case of a minor.] He admitted that that case required consideration. Any person might apply to the Court of Chancery on behalf of a minor, either in England or in Ireland, and the sale might be stopped if likely to be injurious. He did not think it probable that any person would desire to sell for the purpose of injuring his own child; but even if that case arose, any person might apply, and notice might be served. The case of persons who were abroad appeared to him one of greater importance, and on that account he would suggest that a clause should he added in Committee, giving liberty to enter a caveat, in order that the party interested might receive notice of an intention to sell, and have it in his power to take the necessary steps for preventing a sale. He must also confess that he did not understand the possibility of committing fraud in cases in which nobody could get the purchase money except under the order of the court. He could easily understand that two persons might commit a fraud when they were to have control over a certain sum of money, but not when that sum could only be obtained by application to the court. It might be said that two attorneys would join in a false affidavit; but, in point of fact, such cases hardly ever occurred. In this case there was, in fact, much greater security against fraud than existed in this country, where two trustees had the option of selling whenever they pleased. There had been a variety of other objections urged, but he had not heard any one offer this objection, that the Bill would not effect the object of making land marketable in Ireland. On the contrary, the great objection constantly raised was, that the Bill would be too operative, that it would throw a great amount of land into the market at once, and that great evils would arise from that source. He thought that was a case which might be left to itself. It was ordinarily found that where there was a great supply of any one commodity, persons who dealt in it held back until a more convenient time arrived for selling. The quantity of land which could be sold under the Bill was, of course, limited; and even if the Bill were as operative as he believed it would be, it would be some years before the whole of the land to which it applied would be sold. He did not recollect any more material objections to which it was necessary for him to refer on that occasion. He was satisfied that the Bill would not bring forward sellers who had defective titles. Persons who had defective titles usually remained as quiet as possible, knowing that time alone could give them a good title. Now, he expected considerable opposition from a body of gentlemen to whom he owed the greatest possible respect, namely, the members of his own profession. This was a Bill which would necessarily shock the legal profession, taking the matter, as it did, entirely out of their hands. No one would understand him as making the slightest charge of any description against that profession; for, if he did so, he should, in degree, be preferring a charge against himself; he referred only to the feelings which necessarily belonged to persons who had long been engaged in any particular profession. It was hardly possible to find a lawyer who did not feel that he had a sort of vested interest in every man's estate. He believed that one effect of the Bill would be to diminish the expenses and evils arising from Chancery suits, and the appointment of receivers under whom, with a property the rental of which was 750,000l. per annum, arrears amounting to 30,000l. or 40,000l., had increased from 300,000l. to 400,000l; and while 20,000l. had been expended in costs, only 2,000l. bad been employed in improvements. This Bill would tend to put an end to the system of receivers in Ireland; and the estate when sold would give a fresh and a free title. One of the strongest feelings which pervaded the minds of men almost throughout the world was the desire of possessing land; and it was curious to observe the relative effect of the present system in Ireland as regarded ownership. The owners of land in Ireland were not estimated at more than 8,000, whereas in this country the number exceeded 200,000. As regarded opposition, he had felt that whatever Bill might be introduced, the Government would necessarily be placed in this dilemma—either it would be said that this Bill did nothing, or else it would be urged that it opened the door to fraud, and enabled parties who were so disposed to sell another man's estate. He had, however, endeavoured to meet both those objections. They might rely upon it that if the man sold whose interest it was to sell, the best price would be obtained, and the best results would follow. Of course this Bill did not interfere with the various other measures for the relief of Ireland. It had been thought desirable to confine it to its proper subject, and not to incorporate with it anything affecting the relations of landlord and tenant. There was, he believed, a very largo amount of capital throughout these islands which was seeking investment; and he hoped the effect of the Bill would be to cause a great influx of capital into Ireland. That alone would be a great means of securing employment for the population of that country, and improving their general condition. As regarded the parties more immediately interested, the money would represent the land, and it would be there for all persons who could make out a claim. The question had been raised whether it would not be well to prevent the money from going out of the Court of Chancery for thirty years, except with the consent of the purchaser. The great evil of having such a provision would be that then the purchaser would never look into the title, and thus the proposed investigation would be prevented, and other disadvantages would be incurred. Such were the principles and the objects of the Bill. He felt quite sure that the desire of the House was to render the Bill as efficient as possible for its object, and the Government would be most happy to receive any suggestions and hints for its improvement. The great object of the Bill was to render incumbered land marketable; and he hoped that, in arriving at the attainment of that object, it would be found that objections on account of possible fraud, and on other grounds, had been carefully guarded against.


would not attempt to reply on behalf of the legal profession; but as a Member of that House he hoped that due respect would be paid to the rights of property. Since the Bill left the House of Lords, where it received the sanction of the Lord Chancellor and various learned personages, it had acquired an entirely new character, and it was on that new character the House was asked to pronounce an opinion. Ample protection was given by the Bill to the incumbrancer; but what protection, he would ask, was given to persons claiming in remainder under a family settlement? The condition of Ireland could, in fact, only be improved by a gradual process. It was a great error to imagine that they could correct by the legislation of a Session evils which had been growing for a century. If this Bill passed, when the provisions under family settlements relating to the remainderman came into force, it would be found that the property had been sold at a depreciated value; and, if there had been fraud, the only remedy would be a suit in equity. With respect to the new clauses, he must say that a more ruinous piece of legislation he could not imagine. It was said of the learned Solicitor General that an entirely new principle was engrafted in that Bill since it was sent down from the other House, and that that principle was a boon to the landlords of Ireland. What was that boon? In the first place, the owner had the option of selling, but he might sell without the order of the court; and afterwards any incumbrancer, if not paid after notice, might sell, unless there was a foreclosure suit pending. But when they spoke of a Parliamentary title, could any thing be more monstrous, unrighteous, or unjust, than to give a title under this Act? The sale might not be under the control of the court; it was to take place after a notice in the Dublin Gazette, which nobody read, and the party entitled to the property might be an absentee, an infant, or even an unborn child; whilst upon lodging the purchase-money in the Court of Chancery the conveyance might be executed, and by that conveyance every person claiming in remainder would be bound. By the Bill as it now stood, every judgment creditor would have the power of selling the land, and the consequences would be ruinous to the landed interest of Ireland. This was a dangerous interference with the rights of property, which could only be justified by a case of great public necessity; and even then it ought to be made only with the greatest caution and circumspection. The 50th Clause, which provided for the repayment of purchase money to parties proving to the satisfaction of the court that they had a better title to the estate sold, showed that frauds and irregularities were anticipated. Before the House set the seal of its sanction and approval to the Act, if it were not extensively altered and modified, he said advisedly that it would prove ruinous to the landed interests of Ireland, and fatal to the prosperity of that country. And when it was said that the power of proceeding by petition was a great boon to the landlords, because it would be so cheap, convenient, and prompt a mode, he had the highest authority for stating that, however great the expense and vexatious the delay in this respect might be in England, yet that the rules of the Court of Chancery had been so improved in Ireland as to render proceedings by bill cheaper and more convenient than by petition under this Act. Proceeding by petition might put fees into the pockets of certain bodies; but it would assuredly be of no benefit to the landlords of Ireland. He granted that the rights of incumbrancers would be protected by this measure; and he did not object to that in one sense, because when they had to deal with private rights, it was their duty to do the utmost to secure all parties. The Bill took care that the interests of the monied incumbrancer should be protected, as also those of the tenant for life; but it allowed the rights of persons claiming under the limitation of a sacred family settlement to be destroyed or extinguished. The rights of persons claiming on remainder, who might he absent from the country, or be of very tender years, would be overlooked and sacrificed by the measure. And yet this was said to be a boon to the landlords of Ireland! Certainly, if they accepted such a boon, they would richly deserve any fate that might hereafter befall them.


said, that, as the morning sitting had very nearly come to a conclusion, he would not trespass long upon the patience of the House; but he must observe that he thought it would be exceedingly unfortunate if it should go forth to the country that any considerable number of the Irish Members coincided with the views of the hon. Baronet the Member for Clare (Sir L. O'Brien), and of the hon. and learned Member for the University of Dublin (Mr. Napier), for whose opinions he (Mr. Monsoll) generally entertained the highest respect, but with which, so far as the subject now before the House was concerned, he was compelled completely to differ. The simple question which the House had to consider was, were they prepared to say that, in order to prevent the fraud which the hon. and learned Gentleman the Solicitor General had shown would, under the operation of this measure, be almost impossible to be perpetrated, they would doom the landlords of Ireland and tenants for life, who, as his (Mr. Monsell's) hon. and learned Friend (Mr. Napier) had said, had only moral duties to perform, to a position in which it was utterly impossible for them ever to discharge those duties? Would they doom 2,000 occupants of estates in Ireland, which were either in the Court of Chancery or were deeply encumbered, to remain in the miserable and hopeless condition in which they were now placed? There was no condition so wretched or miserable as that of those tenants in Ireland who occupied heavily-encumbered estates; and he really thought, when hon. Gentlemen reflected upon what the state of those tenants actually was, they would pause before they listened to any suggestions to throw out a Bill which offered the only hope of relief that could be held out to such tenants. He thought that every reasonable man who looked at the social condition of Ireland, must be fully convinced of this, that though the onus probandi might be fairly imposed upon those who sought for a change with regard to any other country, yet, in the case of Ireland, owing to the peculiar circumstances in which she was placed, that onus must rest upon those who wished to preserve there a system which had led to so much misery, and which must, he believed, unless it were changed fundamentally, lead to a not bloodless revolution. The hon. and learned Solicitor General had, be thought, stated that somewhere about three quarters of a million of rental in Ireland was placed in the hands of the courts; and he (Mr. Monsell) might read to the House the testimony of an impartial, witness as to the state of the occupiers of property situated under the Court of Chancery. Mr. Rooth, a gentleman of great experience in such matters, and whose opinion deserved to have much weight attached to it, stated that in very many cases where encumbered estates had fallen under the management of the law courts, the district usually rather resembled one that had been plundered by an enemy, than a locality under an enlightened Government, and in a country that had long been exempt from the calamities of war. The obstruction offered from these causes to the development of the natural capabilities of the country, was so general in Ireland, that the beholder might imagine they were created by the perverse ingenuity of parties who had obtained the legal control of the real property, for the express purpose of devising such difficulties and entanglements as would effectually prevent the general prosperity of the country. Now, if the position of the occupiers of the soil on property actually under the courts was so bad as he had described, what, he would beg the House to reflect, must be the condition of the occupiers on estates which were now trembling on the very verge of the courts? In view of these things, was it not manifestly for the interest of the country at large—of every class of tenants and landlords—that the Legislature should interpose to deliver their fellow-countrymen from so miserable a condition? His hon. and learned Friend (Mr. Napier) had said that nothing could justify a Bill of this sort except an overwhelming necessity. Now, he wished to know what his hon. and learned Friend would call an overwhelming necessity? Where was there a case of overwhelming necessity in the world, if the deplorable state of things to which he (Mr. Monsell) had adverted did not constitute one? Misery and ruin had been inflicted upon vast multitudes by the present vicious state of the law. Of course it was absolutely necessary that the rights of property should be conserved, and also that the rights of remainder-men should be looked into; but if he asked the House the question whether it were prepared to sacrifice the interests of the living to the wishes of the dead, or even to the interests of posterity, he felt sure that it would hardly give an answer that would tell against this Bill. And now, what were the rights—the reasonable rights—of property which would be unduly interfered with or injured by this Bill? One great objection taken to it was, that it would enable the owner to sell an estate to the prejudice of the remainderman. Now he (Mr. Monsell) wished to know what interest he could serve in doing this? What could the owner do with the money gained by the sale? Would he get the money into his own hands? Not at all. It must be placed in the Court of Chancery, or the Bank of Ireland, or some other place where he would get only a small rate of interest, and be thereby the loser. He would not be able to touch a single penny of the money. He (Mr. Monsell) would defy all the ingenuity of his hon. and learned Friend (Mr. Napier) to show how the owner could possibly derive any advantage by selling, to the detriment of the remainder-man Another objection to the Bill was, that it would allow any incumbrancer to sell the estate. Now he was ignorant of law, but he believed that every incumbrancer at the present moment had the right to sell the estate. He (Mr. Monsell) certainly believed (and the hon. and learned Solicitor General bore out the assumption) that every incumbrancer possessed such a right; and all that that Bill proposed was, to enable him to exercise that right in an expeditious and inexpensive manner, which must otherwise be a very expensive and dilatory process. He, therefore, did not think this was a valid objection to the measure. But there was, he confessed, one objection which had been offered, that he regarded as not unfounded. It did not appear to him that the Bill took sufficient care that all the sales under this Bill should be bonâ fide, or that the largest amount should be obtained for the purchase that the property would possibly fetch in the market. These were points which he thought well worthy the consideration of the hon. and learned Solicitor General, and he trusted he would direct his attention to them. There was another hint which he would throw out, but with the greatest diffidence, as it concerned a purely legal question. He did not think that the Bill went so far as it might have gone, in splitting estates into small portions. The House was perfectly well aware how desirable it was that there should be the greatest possible amount of competition, and the greatest number of purchasers, in the market; and he certainly did not consider the measure would effect these objects so effectually as it might. He could not conclude without entreating the House to hesitate before it rejected or interfered with the stringency of a Bill so absolutely essential to the well-being of Ireland—so absolutely essential to bring about that amelioration of the social condition of that country which could only result from the nominal proprietors of the land becoming its real proprietors. He asked them to consider the axiom recognised by almost every philosopher of celebrity who had written upon such subjects, that crime was always caused, in a great degree, by the particular circumstances under which the persons committing it were placed; and he thought it had been observed by an eminent man, that the budget of crime came as regularly round as the budget of the Chancellor of the Exchequer; and more so, perhaps, so far as this year was concerned. He urged upon the House to determine to carry this Bill with all convenient speed, not to refuse to listen to all reasonable suggestions recommending additional securities where these were necessary, but rigidly to withhold its assent from any proposals for impairing its stringency or efficiency.

Debate adjourned.

Back to