HC Deb 26 April 1849 vol 104 cc892-920

said, that it was not his intention to make any preliminary statement which might interfere in any respect with the explanation which it was his duty to lay before the House. But it was necessary, in order to make that explanation intelligible, to recall to the recollection of the House what had been done by the Incumbered Estates Bill last Session, and to recount the difficulties which had been experienced in carrying that Bill into operation. By that measure it had been proposed to effect the sale of incumbered estates by two different plans united in the same Bill. One of these plans was, to effect a sale under the authority of the Court of Chancery; and the other was to dispose of an estate not under the authority of the Court of Chancery, but by a sale in which the purchase money should be paid into that court, and be by it distributed amongst those interested after the estate had been disposed of. Both of these plans had, however, up to the present time, been wholly ineffectual. Now, he must avow his belief that, totally independent of the measure itself, there had boon peculiar circumstances connected with Ire-land which would have made it very difficult for any measure to succeed. The House would bear in mind that it was essential to the success of a plan of this kind that a class of purchasers should exist; and to find individuals of that class was the great difficulty of those who wished to dispose of land. He did not therefore attribute the failure of this Bill hitherto to the difficulties of the Bill itself, although undoubtedly there were considerable difficulties imposed by its provisions. In the first place, it was found that very considerable delays must take place before a purchaser under the Act could be put in possession of an absolute title. These delays would sometimes extend to a period of five years; and there was a complicated system of registers necessary, involving applications to the Court of Chancery. In addition to this, it was also necessary to show that an estate was to be sold for its full value. The money was then to be paid in, and afterwards distributed amongst the persons having beneficial interest. Now, it was manifest that these delays and conditions were serious impediments to the working of the Bill. The object at present was, therefore, to get over them. There had been difficulties, too, attending the other mode of sale. There were great delays occasioned by the necessity of the preliminary investigation, after which only the court was enabled to give a proper title to the purchaser; and further delays consequent upon the necessity of ascertaining who were the proper receivers of the purchase-money; any person about whose mortgage or debt the least doubt existed being compelled to prove his claim, so that no money could be paid until after a series of complicated questions of law and questions of fact had been raised and set at rest. Of course all these forms and proceedings had been productive of great expense. He bad now endeavoured to obviate the objections which he had stated, by resorting to a course which was not new, and which had been under the consideration of the Government for some time. They had decided that it would be best to create a commission to perform, in respect to incumbered estates, the functions now discharged by the Court of Chancery—a commission which would, however, perform these functions unfettered by the rules and clogs which at present existed, and which would be able to execute its duty without the expense arising from fees and the antiquated system which could not be removed from the Court of Chancery. Now, in the adoption of this course, they were not without a precedent, and a precedent, too, from which cheering omens of success might be drawn. He alluded to the West India Commission. That commission was entrusted with the payment of 20,000,000l., and with the performance of duties analogous to those contemplated now. It had to inquire into the ownership of estates, and into the claims of incumbrancers according to priority; and that commission had performed its functions not only without blame, but with great rapidity, little expense, few appeals, and general satisfaction, both on the part of the persons on whose rights it had adjudicated, and on the part of the public at large. The Government now proposed to appoint a commission, to consist of three paid commissioners and a secretary. It proposed that they should follow the course adopted by the West India Commissioners—that they should themselves frame a set of rules for their own guidance—that these rules should be submitted to the Privy Council in Ireland, and having been sanctioned by that body, and also laid on the table of the House, that they should have the same force as if they were parts of the Bill enacting the commission. It was further proposed to give the commission power to alter and reform these rules as circumstances should seem to require. When the commissioners were thus established, it would become their duty immediately to proceed with the discharge of the functions entrusted to them. He ought to mention that, in allowing the commission to frame rules, it was proposed not to allow them to frame any rules which might have the effect of levying fees from suitors. Considdering the importance, too, of the commission, it was not thought desirable that it should have any other than a period of temporary duration. It would be very desirable to ascertain how it performed its functions previously to anything like a permanent enactment being brought in. They proposed, therefore, that the commission should deal with matters in which application should be made within the space of three years from the constitution of the commission. It was necessary that the commission should last some time more than three years, because it might have many duties to perform on an application being made. It was proposed, then, that the commission should endure for two years after the final period for application being made to it. Furthermore, the Government proposed to invest this commission with all the powers possessed by the Court of Chancery, for the production of title-deeds and evidences of title. It was not proposed that the commission should have any functions or duties to perform, except in cases in which application had been made to it; but when such application had been made by any owner or incumbrancer of any estate, then it would be the duty of the commission, having made such deliberate inquiry into the case as they thought proper, to proceed to the sale, and conclude it in such a manner and in such portions as they should consider most advantageous for the parties interested. It was proposed that the conveyance should be in the form specified in the schedule of the Act—a form with which legal Members of the House would be familiar, as it was similar to that used in the transfer of Crown lands. On the sale being effected, the commissioners would issue a certificate to the purchaser of the property, who, upon obtaining it, would possess a title beyond which it would not be necessary to go. The title would be considered perfect and complete from that period. It was also proposed, as considerable difficulties might arise in various instances, that the commissioners should have the same power of putting the purchaser into possession of the land as a sheriff would have in the execution of a writ of possession. It would, therefore, not be necessary for the purchaser to bring an action of ejectment to obtain possession of the property. The purchaser would be thus put as early as possible, and by as simple a process as possible, in possession of the land, and no person would be permitted to interfere with that land by reason of anything anterior to the specified period. It was proposed that the money should be paid into the Bank of Ireland, in the name of the commissioners, and that, upon its lodgment, it should be divided amongst the various parties entitled to it, without delay. It had been felt that it would be introducing a new element between the relations of mortgagor and mortgagee to allow the money to remain in court for any length of time, and that injustice would be done if the distribution of the money did not immediately take effect. Of course, in several cases doubts would arise as to who were the persons entitled to property, and in such cases the commissioners would have to decide. With respect to those properties the titles to which were not in dispute, the purchase-money would be received at once. Questions with respect to the rightful possession of incumbrancers, might also arise. It might happen that possibly a property might be disposed of which ought not to have been touched, but in the present emergency Her Majesty's Government had not thought it necessary to retain any fund as a security against such possible contingencies. In Ireland, although estates might not have good marketable titles, it might not be so difficult to ascertain the incumbrances upon a property. It would be the duty of the commissioners to ascertain that point, and adjudicate accordingly. To show that the commissioners could beneficially exercise this power, he would cite the case of the West Indian Commission—a commission analogous to that now proposed. In not a single instance of the disposal of estates under the West Indian Commission, although claims were examined into and adjudicated upon to the extent of many thousands of pounds, was complaint made of an improper distribution of the money. If such cases should occur, he thought Parliament might deal with them. At all events, he did not think this was an objection of sufficient weight to warrant the House in fettering the progress of a Bill which he believed to be essential to the regeneration of Ireland. It would be necessary, for the purpose of adjudication, that the commissioners should have power to send cases and issues to be tried at law. The expense of such proceedings would be confined to the parties immediately concerned, and the property of the other parties would not in the mean time be locked up an evil which at present existed under the system of the Court of Chancery. The commissioners would also have this advantage. The Court of Chancery had, in a number of cases examined into matters of this description. In all cases, therefore, where the Court of Chancery had instituted an inquiry into property, and had issued a decree, the commissioners would be bound by that decree, and the commissioners would have the power of adopting any preliminary inquiries not finally concluded by the Court of Chancery. It was obvious that there must be a species of concurrent jurisdiction between the commissioners and the Court of Chancery, and it had become absolutely necessary to determine to which tribunal priority should be given in these matters. Now, it had been considered, that as a special tribunal was being created for those purposes, which was to be invested with high and important functions, it was expedient to invest it with full powers. Accordingly, in all cases where a decree for sale by the Court of Chancery had not been carried into effect, it should be carried out by the commissioners; and in all cases where proceedings for sale by the Court of Chancery were pending, and on application being made to the commissioners, the commissioners should effectuate the sale; and on that being done the Court of Chancery should cease to take any further measures with respect to the sale. With respect to all other matters in the suit, it would be in the discretion of the Court of Chancery to proceed with or suspend proceedings until after the commissioners should have sold the property. The commissioners, the House should bear in mind, would act only upon application being made to them. Upon application being made, the jurisdiction of the commissioners with respect to the perfecting of sales would be paramount. It had also been thought advisable, in establishing an appellate jurisdiction to which any appeals against the decisions of the commissioners should be preferred, to follow the precedent adopted with respect to the commission to which he had referred. The tribunal in question he proposed should consist of such Members of the Privy Council in Ireland as the Lord Lieutenant should select as a court of appeal. But it was proposed to reserve to the commissioners a power of determining whether a case was properly the subject of appeal or not. That that power would be fairly exercised, he thought probable; for our experience of courts of justice told us that no one was more desirous that appeal should be resorted to than the judge who tried the case. This power was conceded to the commissioners, to secure them against frivolous objections, and in cases got up for the mere purpose of delay. These, therefore, were the general functions which the commissioners would have to perform. He did not think it necessary for him to go into greater detail as to the functions and duties of the commissioners, as they would be found in the Bill, which, with a few alterations, would be in the hands of Members in the course of a few days. Now, if the alterations with respect to property in Ireland would be considerable under the operation of this Bill, it should be remembered that the benefits to he derived would be of a permanent character—that every acre of land disposed of under the Act would, as to title, be beyond question, from the date of the commissioners' certificate. It was desirable that titles hereafter in Ireland should be put on such a footing as to prevent them from getting into the same state of complication as now existed. To make provision for that purpose, formed no part of the object of the present Bill, which, though temporary in its operation, would yet have generally a beneficial effect. Every acre of land sold under this commission would be held by a title which could not be questioned. It would, indeed, be a great misfortune if, after the lapse of some thirty or forty years, estates should fall again into the same state of confusion as now existed, with only this difference, that the incumbrances might be of thirty or forty years instead of sixty. It was the wish of the Government to make a change in the system of judgments so as to prevent them from becoming a permanent charge on the land. At present, when money was raised upon property in Ireland, the judgments were registered, and created a general incumbrance on the estate. That evil would be remedied by an enactment which, however, would not have a retrospective effect. The Government had also considered whether it would not be possible to introduce an improved system of registration in Ireland. That question was still under consideration, but the measure relating to it was not sufficiently matured to allow of its introduction into the House in the course of the present Session; besides, as the Commission on Registration was about to make its report, it might be desirable to wait until that document should be before the House. The feeling of Government, however, was, that it was not enough to liberate the land of Ireland from incumbrances, but that it was necessary, also, to take advantage of its freed state to prevent its being again reduced to its former condition. The Bill, he trusted, would directly effect that object, which he believed Her Majesty's Government desired to see attained, and which the right hon. Baronet the Member for Tarn worth had in view when he suggested some measure of this description. It would, he believed, afford persons of capital in Ireland an opportunity of purchasing land free from incumbrances, and would pave the way for that employment of labour on the land which was now wanting in that country. But he believed the Bill would have a beneficial effect in other respects; that it would create through this commission that improvement upon the present system of procedure in the Court of Chancery, which that tribunal, owing to the ancient prejudices against which it had to contend, could not itself introduce. A largo discretion must be given to this commission. It would not be imperative on them to sell in every case. A family property might be slightly incumbered; and if a reasonably short time were allowed, the incumbrance might be paid off. In such a case as that, there would not be sufficient ground for depriving the family of the property, and the commissioners would have the discretionary power of refusing a sale. But, in the execution of their functions, they must not suppose that the interests of the parties to the estate were the only, though he admitted, the principal, interests to be considered. He could conceive a case in which the incumbrancers might apply for a sale of the property, and, upon investigation, it was found to be so hopelessly incumbered that no one connected with it could perform the duties belonging to property. In such a case he thought the commissioner should have a discretionary power to sell or not sell. He was not at all certain that the success of the measure was beyond all question or doubt, because its success so completely depended on a good class of purchasers being found willing to invest their capital in Ireland. It might be said of this Bill, as was said of last year's Bill, by one class of persons, that there would be no sales under it; and by another, that it would have the effect of deluging the market with property at a low rate, to the great injury of all other persons holding-land. The latter evil, he thought, might be prevented by the adoption of precautionary steps and guards on the part of the commissioners. It was desirable to afford the greatest security and relief to all incumbrancers, not making them liable to refund or repay that which they were paid under the commission; and, trusting to the commission to dispose of the properties justly, he hoped and believed they might reasonably expect that the result of the measure would be the effectual sale of incumbered estates, the bringing into market a large quantity of land, and the sale of that land beneficially, whether for the real or nominal owners. He anticipated that it would be said that this measure went a great deal too far; that it superseded the jurisdiction of the Court of Chancery, and disposed in somewhat an arbitrary manner of the property of one class of persons, to divide the proceeds among another class. His answer was, that the emergency and circumstances of the case justified the expedient. The House would have to judge by the rules of the commissioners how far the functions to be performed by them were likely to be beneficial. An hon. Member, in the course of a previous debate, had stated that if the people were employed, there would be no need of a poor-law. Now he (the Solicitor General) believed, that the only mode by which employment could be given to the people, was the getting the land into the hands of the monied classes; and the present measure, he thought, would supply that mode. He had now stated the general heads of the measure which he was about to ask the permission of the House to introduce. There was another short measure, however, to which he should ask the sanction of the House, subsidiary to that of which he had stated the provisions, and to the efficacy of which he trusted it would add. The hon. and learned Gentleman concluded by moving for leave to bring in a Bill further to facilitate the sale of Incumbered Estates in Ireland.


said, that the experience of last Session was sufficient to satisfy the House that the task undertaken by his hon. and learned Friend the Solicitor General, and described in so clear and able a manner, was one of no ordinary difficulty. They all concurred in the propriety of affording facilities for the sale of estates in Ireland, which could no longer continue in their present condition with advantage to the proprietors; but they could proceed very little way in that attempt, without finding that they had embarked in an undertaking of extraordinary difficulty. The measure of last Session had turned out a total failure; and that failure was to be accounted for, not by any of the little circumstances to which his hon. and learned Friend had alluded, but to this—that it was a mass of complicated enactments on a difficult subject, which were not thoroughly understood by one out of ten of the Irish Members who had so eagerly called for it. Indeed, so unwilling had they been even to hear his objections to it, that at last he thought the most appropriate punishment was to let them have it. He should have wished to hear from his hon. and learned Friend a statement of the difficulties with which they had to deal, before they were called upon to consider the remedy; but he did not complain of that, for his hon. and learned Friend bad certainly done a good deal in explaining a measure so very complicated as the present. But what was the difficulty in the sale of incumbered estates in Ireland? It was this. That there were a great number of individuals, having interests in an estate, which they were willing to part with; and that no step could be taken towards forcing a sale without doing violence to the rights of these individuals. It was very easy to talk of following the precedent of the sale of crown lands, in which only the Crown and the public were interested; but who were the parties interested in these Irish estates? First, there were the mortgagees. The hon. Member for Car-low had mentioned a bill filed in the Court of Chancery, in which it was necessary to have 43 defendants: they were all interested in the estate; and there was the difficulty of compulsory sales in Ireland. It was not a light thing to tell a mortgagee, who was the 8th or 10th on the list, and who got some interest every year with more or less difficulty, that the estate would be put up to sale whether he would or no: what, he would ask, would be the position of the mortgagee between the application for the sale and the granting of the certificate? Still more, what would it be after the certificate had been granted? It was supposed that the Bill of last year would got over these difficulties; but that had, as was predicted by the hon. Member for Oxfordshire, altogether failed; and now it was said that there was a precedent in the commission for distributing the compensation money amongst the owners of slaves in the West Indies; but that that commission should be quoted as a precedent for the commission now proposed, must excite unqualified surprise. He supposed and hoped that the commissioners would be laymen and not lawyers: lawyers were by habit accustomed to respect most scrupulously the rights of property, and therefore he thought that laymen rather than lawyers would be better instruments for carrying into effect this measure of confiscation. The duty of the commissioners for distributing the slave compensation money was entirely different; the present commission was to settle questions as to disputed rights, and as to the compulsory conversion of land into money. The slave compensation commission established, as one of its rules, that if even a question of that kind occurred, they would not settle it, but that the money should at once be paid into Chancery. Let the House look at the case of the children and grandchildren of an Irish proprietor, whose whole fortune consisted of their portions on an incumbered estate; he wished to know how they were to be supported during the operation of this commission? These appeared to him to be enormous difficulties; the more so because they affected the rights of people in a helpless condition, whom the Legislature was bound to guard and protect with anxious care; and he felt now that the paternity of this measure did not belong to his hon. and learned Friend. He begged to apologise to the House for venturing to say anything upon a plan which required the greatest consideration; he did not pretend now to understand the details; but he thought that already he saw great difficulties in the way. It had been thrown out last year by himself and other hon. Members, that when a proper case occurred, they might give the purchaser an absolute title, similar to that which the railway companies got; but it was quite another thing how they were to deal with the many complicated interests of these defenceless persons, whom they were bound to protect. It was certainly very difficult to legislate upon the subject without doing violence to rights of property, which this measure dealt with, as it seemed to him, in a manner that amounted to confiscation.


was desirous of taking the earliest opportunity of acknowledging that he thought the Government had taken a step in the right direction, by the introduction of the present measure. The Bill was calculated to relieve Ireland from one of the greatest inflictions which could oppress a country. It proposed to put an end to the present system of expensive and interminable litigation now going on in the Irish Court of Chancery. He remembered to have heard it said that the Irish Members would oppose the Bill of last Session, because it would deal with those abuses; but from conversations he had had with persons of eminence in the law in Ireland, he was satisfied that the Bill would meet with no opposition at their hands. The hon. and learned Member for Newark had said, it was the number of incumbrances upon the estates that prevented the sale of estates in Ireland; but he (Mr. Keogh) thought that the sales were prevented, not by the number of incumbrances, but by the complicated, expensive, and dilatory tribunal to which the investigation of them was submitted; and therefore he believed the plan of the measure before the House would go at once to the root of the evil, because it proposed at once to liberate the land, and it was to the land they must look to provide for the employment of the labourers. It was tied up at the present moment; and it was to emancipate it from the trammels under which it was now suffering that this Bill was directed. It was the land that must be the great absorbent of labour; and, argue as much as they would, and delay as long as they liked, this fact should be ever remembered by the House, that to Ireland in her present position delay amounted to death. The Bill proposing, then, to liberate land, sought also to effect its object in the speediest way. It was not intended to bring it to a hasty sale, irrespective of the rights of the parties having interests in the property, because the hon. and learned Gentleman the Solicitor General stated that the important and momentous trust of disposing of the lands was to be placed in the hands of the commissioners, who, no doubt, would be persons selected for their great learning, prudence, and well-established integrity, and taken from the highest ranks wherever they were to be found. And even then they were not to proceed at once to sell the estate without consideration. He understood they would have to make a preliminary inquiry to know whether it was a proper case for disposing of the estate. Now, this was the very principle recognised by the Act of last Session, which required a preliminary inquiry to be made either in or out of court in the first instance; and the present proposal only carried that principle out still further, by saying, that the process should be a simple and speedy one, and that the land should be really and not merely nominally emancipated. The hon. and learned Gentleman the Member for Newark asked, "How can you deal with this vast amount of property without inflicting an injury upon somebody?" But how could any great improvement, social or political, be carried into effect without injury to some one? The House would not deliberately inflict an injustice upon anybody, if it could avoid it; but the Legislature had a great public duty to discharge; they had to deal with a country labouring under a monstrous gangrene; and they must deal boldly and fearlessly with that fearful disease; quack medicines would no longer avail—the malady was too powerful, and the knife must be resolutely and fearlessly applied if they would really effect anything like a cure. If they did not act thus with the west of Ireland, they would find this gangrene extending until it devoured the very heart's blood of the country. With regard to the disposal of the money obtained on the proceeds of the sales, he thought the commission would be unnecessarily embarrassed in the discharge of their duties, if their attention were diverted from the great and important trust of liberating the land, to consider the claims of the different parties to the purchase money of the property. The great object to be considered in Ireland was to release the land for the employment of the people. The hands of the commissioners would be embarrassed if they had imposed upon them additional duties; and the parties afterwards, if they were so wedded to the cumbrous procedure of the Court of Chancery, might be left to deal with the produce of the estates when the money was realised. There was another part of the hon. and learned Gentleman the Solicitor General's proposition which he could not altogether approve of. He spoke of a concurrent jurisdiction existing in this commission and in the Court of Chancery. Now, he (Mr. Keogh) thought that would be one of the greatest evils that could possibly be inflicted now upon that country.


said, the hon. Gentleman had misunderstood him. He had said, there would be a concurrent jurisdiction if measures had not been taken to prevent it; and he therefore proposed to give a paramount jurisdiction to the commission to stay the proceedings of the Court of Chancery.


was glad to learn that his first impression was erroneous. As to the feelings of the bar, with which he had the honour to be connected, he could assure the House that every member of it was quite willing to abandon every advantage which might be supposed to arise out of the present order of things, provided a benefit was conferred upon their country. Having thus spoken a word for the bar of Ireland, he intended also to have said something in reply to the aspersions which had been thrown out against the Irish Members by the hon. Member for Manchester; but that hon. Member had been so ably handled by the hon. Baronet the Member for Waterford, that it was unnecessary for him to say more than this, that such insinuations as had been indulged in could only have originated in a desire to gratify self-conceit. He (Mr. Keogh) begged to assure the hon. Member for Manchester, that if the Irish Members wished to profit by the example and precept of others, they would not become the pupils of the Manchester school.


wished to say a few words on this measure, with reference to what had fallen from his hon. and learned Friend the Member for Newark, as to the measure of last Session, and the inference he had drawn from that with regard to the probable success of the present measure. It was not fair altogether to impute to the Act of last Session the failure of any favourable results from it, because unquestionably it was not to be expected—and indeed the hon. and learned Solicitor General seemed to have similar apprehensions with respect to this Bill also, owing to the same cause—that any complete results would have followed the previous measure, considering the existing circumstances of Ireland. These circumstances had greatly impeded its working; for it could not be expected, even with the best possible state of the times, that they would find persons anxious to invest their capital, whilst a general alarm prevailed as to the social condition of the country, though happily only for a short period; and whilst more than 30,000 troops were necessary to preserve the peace of the country; and when, also, the estates were so overloaded with the pauper tenantry, that the poor-rates were eating up the whole of the landed property of the country. Under these circumstances, although they could have secured an entirely perfect title to the purchaser, it was not likely that any great amount of capital would flow into Ireland. Now he had similar fears of the present measure, though not wholly from the same causes. He thought there might be difficulty, on the one hand, in finding purchasers, and, upon the other, in finding sellers; for he observed that this Bill—and he was not now finding fault with it—proposed that no operations of the commissioners should have effect until after application to the parties interested in the estate. This was one cause of the failure of the other measure. They would have first to consult the heavily mortgaged owner, who was unwilling to part with that species of territorial power which he still wished to retain, although it was merely a shadow; then there was the first incumbrancer, receiving his six per cent, and, of course, not anxious to sell; and, next, the second incumbrancer, who might be receiving something, but what amount was by no means clear; and he would be afraid that, if a sale took place, especially under circumstances like those that prevailed last year, the land would be sold greatly under value, and thus a portion of his property be sacrificed; and, therefore, he would wish to wait till a more favourable opportunity for a sale. He (Mr. Wood) thought it extremely probable that we should not have a large number of applications when we might wish to have estates sold. It would be better, however, to establish a machinery by which we could effect the disposal of the land and confirm the title, without the enormous expenses of the Court of Chancery; and if it were found that the result would not be so effective as was necessary to moot the social evils of Ireland, so far from the provisions of this Bill being of too bold a character, he believed the House would be prepared to give far higher powers than were now proposed. Two strong circumstances bad greatly impressed his mind during the recent debates upon Ireland, in connexion with the scheme of the right hon. Member for Tamworth. One was, the statement of a gentleman who for a short time represented Kinsale, with regard to the operation of receivers in Ireland, and the fearful condition of estates exposed to their management. The other was the existence of cases like that of the Ballina union, where Captain Hamilton reported 27,000 were likely to fall upon the poor-rate, of whom 4,000 were ablebodied persons, who, together with the relatives dependent upon them, numbered a total of 18,000 to he relieved within the union. And still, notwithstanding this frightful state of things, Captain Hamilton reported that they would have ample employment for the whole of the labourers if the landlords had capital enough to improve their estates, and there would be no necessity for any additional assistance under the poor-law to support them. This circumstance was surely sufficient to prove the necessity of something being immediately done, and as rapidly as possible, to liberate the land and place it in the hands of persons of capital, and capable of working it. His hon. and learned Friend the Member for Newark thought that the getting rid of the cumbrous machinery of the Court of Chancery would risk the interests of those whom it was the especial duty of the House to protect. He said there might be an eighth or ninth, or a tenth incumbrancer, and bow were their rights to be protected? Why, under this Bill they would not he any less protected than they were now. At present any incumbrancer might enforce a sale as against all those under him, but he could not, of course, do so against those above him. There were hero two difficulties to he considered. The first arose from the rights of the parties, and the other from the mode of enforcing those rights. Now these rights would be left wholly unaffected by this Bill; but, in the case referred to by his hon. and learned Friend, to make forty-three parties all defendants in the Court of Chancery, amounted to a practical denial of justice; and therefore it was proper to improve the mode of enforcing rights. The commissioners would not be embarrassed by those technical difficulties respecting the parties, such as bills of supplement, and all the other formalities which had grown up in Chancery proceedings, but which he hoped to see speedily reformed in both countries. It was on account of these defects, and not on account of the rights of the parties, that they could not enforce the Act. This new Bill did not propose to deal with existing rights farther than that it intended to authorise the commissioners to sell, whether the first or second incumbrancer wished it or not. If this measure were open to some of the objections of the hon. and learned Member for Newark, he did not believe them to be of sufficient weight to authorise the House in refusing to receive the Bill, which he regarded as a real boon and benefit to Ireland—he did not see why the House should oppose the trial of the experiment now sought to be made. With regard to the West Indian compensation, that was a very good precedent for what was now proposed. The enfranchisement of the slaves was enforced;—a compulsory sale of them took place—and Parliament did what it thought necessary to compensate the planters. Surely that was dealing with vested rights and interests, and upon a large scale, as much as was proposed to he done by this measure. Again—roads, canals, railways, and other public works, did most serious injury to private individuals, where no amount of money would compensate their loss. There were innumerable instances of that kind, and yet, because it was wished to make a road or a canal, that was considered sufficient to justify the proceedings. But hero they were about to regenerate a whole country, and to remove a millstone from their necks, which would drain England down to the same abyss of ruin and misery, if Parliament did not take steps seriously, sedulously, and energetically, to raise the sister country from her present hopeless and prostrate position. No petty difficulties or little trifling objections ought to prevent them from doing Ireland the justice she required at their hands; and he rejoiced that this was not to be the only measure of the Government for remedying her social evils. He was glad that, although not during the present Session, they were to have a measure brought forward for the registration of titles. Too great stress had been laid upon the badness of the machinery of the Court of Chancery, as causing much of the evil under which Ireland laboured; but it should be remembered that the defective state of the law as to the tenure of land permitted all these perplexing little interests to be created, and the want of a general register for complete title; and there not being an easy mode of transfer, created the necessity for all the notices and other difficulties connected with the Court of Chancery. If they allowed such subdivision of rights to grow up and continue, the courts had no other alternative but to take cognisance of them; and it, therefore, became, in some degree, necessary to have all those forty-three defendants that had been alluded to. Much of the evil was owing to their imperfect legislation as regards the rights to estates, and the manner in which they were allowed to be so minutely subdivided, and too much of the blame had been ascribed to the machinery of the Court of Chancery. He was glad, therefore, that this was not the only measure they were to have, and that it was to be followed up, if not this Session, at least in the next, by a measure for the registration of titles. He hoped that such a measure would be introduced, not for Ireland only, but also for England. Such measures would do away with the necessity of having recourse to all those notices which the Court of Chancery required for the protection of numerous rights which the Legislature created, and which occasioned so large a portion of the evil which was complained of. He believed the time was come when they would find it desirable to deal with the ownership of land in respect to those who might have the power of giving absolute titles, in the same way as they now dealt with stock, leaving all minor divisions of interest to be dealt with by means of caveats, as was the case with hundreds of thousands of pounds of stock, which by a system of distringas could be prevented from being unduly transferred. He would not, however, pursue this subject on the present occasion, but would content himself with making a suggestion which might be worth the attention of Her Majesty's Government—namely, whether it would not he wise to give the commissioners power of inquiring into the management of estates under the receivers of the Court of Chancery, not for the purpose of sale, but with a view of directing improvements in their management, without going through the process of applying to all the different parties concerned. He would only say further, that he believed that those who had anything to do with the administration of the law, were most anxious to see this and similar measures carried. He believed that in this country they were desirous of seeing every useful reform carried into effect. He therefore begged to protest against the imputations thrown on the profession to which be belonged, that they were not anxious to second and adopt improvements of this kind. He believed that from the first moment that the Judges invented the system of fines and recoveries in order to prevent property from being tied up, down to the present time, they were anxious to see every useful amelioration effected; and, in fact, it was by professional men that the amendment of the criminal law, with which the name of the hon. and learned Solicitor General was so honourably connected, and all other law reforms, were first pressed upon the attention of the Legislature.


Sir, I should be most unjust and most ungrateful towards the legal profession, if I were to throw any reflections on them, or their sincerity and willingness to co-operate in any reform for Ireland. I have, myself, been concerned in attempts to improve the law—the criminal law of this country, by measures which I thought it my duty when in office to bring forward; and I am bound to say that I found generally, on the part of the profession, speaking of the present body, a most zealous desire, at whatever pecuniary cost it might be to themselves, to cooperate in improvement. Now, without relinquishing any of the opinions which I have expressed on two former occasions—wishing of course to reserve to myself the opportunity which the House will have when this measure of the hon. and learned Solicitor General is before them—I cannot, however, avoid on this occasion expressing my cordial satisfaction at the course the Solicitor General has taken, and at the general propriety and principle of the measure which he has introduced. Sir, I believe, although the ordinary courts of law are admirably suited for the conduct of ordinary proceedings, and for the administration of justice between man and man, without extraordinary courts, yet I must say, when great social difficulties have to be contended with, my belief is, that you should step beyond the limits of those ordinary courts of justice, and establish some special tribunal, unfettered by reference to technical rules, for the purpose of solving those difficulties. I apprehend that is the course you have pursued on more than one recent occasion. Three or four years since we found all the southern counties of Wales in a state of insurrection on account of the turnpike tolls within those districts. The Rebecca riots must be familiar to many of those whom I address. The Queen's troops were resisted: it became necessary to apply a remedy. We proposed to Parliament to send down a commission to inquire into these tolls; we found the necessity of extinguishing them, and placing them on an entirely new footing. We appointed a new tribunal, with new powers of adjudication, and with a simple form of appeal. We offered to the parties that simple arbitration, leaving them to go to law if they pleased. There was a general disposition to acquiesce in our proposal, on account of the saving of expense; the turnpike tolls have been abolished in Wales; peace has been restored; in some cases the sums due upon debentures were nominally 100l., but they were reduced by the award of the commissioners to 70l., 60l., and in one case even to 10l.; in those awards the parties acquiesced; and I believe there were only two cases of appeal from the decision of the special tribunal. A few years since you found it necessary to have a compulsory commutation of tithe. You found voluntary commutation did not succeed. The noble Lord the First Minister of the Crown brought in a Bill, the object of which was to inform all parties, that if, before the 1st of October, 1838, they could make a voluntary agreement as to tithe, they were at liberty to do so; but if they failed to make voluntary agreements, provision was made for a compulsory commutation. It was necessary in that case to decide upon the most complicated questions which had been agitating the Court of Exchequer for centuries, as to moduses and compositions. The compulsory commutation has proceeded, with a general admission of the benefit conferred upon all parties. Then a special tribunal was appointed, and there again, I believe, it has given entire satisfaction. You had a still more difficult question to deal with about fourteen or fifteen years since. You determined upon the abolition of slavery in the West Indies; you resolved to compensate every holder of slaves for the slaves of whom he was possessed, and you awarded 20,000,000l. for that purpose. There were nineteen colonies, with different usages in each colony. You resolved to meet that difficulty, but you found it absolutely necessary to depart from the ordinary course of proceeding. [An Hon. MEMBER: That is not a case in point.] An hon. and learned Member says, this is not a case in point. Upon a question of law I have the greatest hesitation in differing from the hon. Gentleman, especially as he is conversant with the Act of Parliament, and has been engaged in practice under its provisions. It has been said that this is not a case in point, because all you had to do then was to award the 20,000,000l. among the holders of slaves, and that nothing could be more easy than for a special tribunal to allot to each party the sum of money due to him—to determine the value of a slave in Jamaica, and of another in Trinidad, and to apportion the amount. But I beg to remind hon. Gentlemen that these were not the only duties of the commissioners—that they had most complicated duties to perform independently of the awards. Besides dealing with the owners of slaves, they had to determine the interest of married women, of infants, of lunatics, or of persons of insane or unsound mind, of persons beyond the seas, and of persons labouring under any other legal or natural disability or incapacity. With all these cases the commissioners had to deal, and they were empowered to lay down rules which were to be submitted to the Privy Council, and being approved of by them, were to have the force of law, But, besides that, the slave partook of the nature of the real property to which he was attached. Whoever had a mortgage upon the real property, had a mortgage upon the slave. How, then, did that case differ from the case before us? But, besides the interests of married women, of infants, and of lunatics, which, as I have said, the commissioners had to protect, any person having, or claiming to have, any right, title, or interest in or to any mortgage, judgment, charge, incumbrance, or other lien, upon any slave or slaves to be manumitted, was authorised to prefer his claim before such commissioner, who were to frame rules and act accordingly. These commissioners had, therefore—if I do not misquote the Act—to determine claims precisely of the same nature with those we are now considering—namely, the claims of all encumbrancers and mortgagees, who had the same lien upon the slave that they had upon the landed property. So, in dealing with this complicated question of landed property in Ireland, I believe that by appointing some special tribunal to direct its attention to this particular subject—observing, of course, all the great principles of law, and avoiding doing injustice to any man—you will best remedy the social difficulties with which you have to deal. I think the great object to be gained is to give a clear, simple, Parliamentary title. To find, when you have purchased an estate, that you have bought with it a lawsuit, and, for any thing you know, in some cases, a duel besides, is certainly not a pleasant thing. What man would invest his capital under such circumstances? Give, therefore, a clear, simple title, which will he safe against the whole world—that is the chief thing. Give to the purchaser an assurance against indefinite charges for poor-rate, as you are about to do; give assistance by advances, also—not to the incumbered proprietor, who really has nothing beyond a nominal interest in the property—but to the new purchaser, who proves to you that he has capital, that he can repay you 4 per cent interest upon any advance for the improvement of the land, and 2 per cent as a sinking fund; and take care that there shall be no repudiation—that, if the advances are not repaid, the land is seized. If you give the purchaser these three inducements—simple title, guarantee against indefinite poor-rate, and possibly his share in the advances for the permanent improvement of the land, it is my belief that you will afford the greatest encouragement to persons to invest their capital in Ireland. The hon. and learned Solicitor General has said that many persons will be shocked at this invasion upon the old system. Now, one example is worth a hundred arguments; and in order to alleviate the apprehensions of those who are shocked at the thought of parting with the old remnant of Chancery administration in Ireland in respect of estates, I would just ask the Solicitor General and the House to accompany me in a little excursion into the courts of equity in Ireland. I will call your attention to what is termed a sale, and I would ask if there is a probability, while the present law remains in force, that any one will purchase an Irish estate? If the hon. and learned Member for Newark has any reluctance to accompany me, perhaps, when I tell him that the purchaser's name is John Stuart, he may find some relationship which may induce him to listen with more care than he would otherwise do to my statement. I am perfectly ready to place in the hands of any Gentleman the original letter, giving account of this transaction. The gentleman who sends it says— I know how apt the House sometimes is to have erroneous statements made. I do not, therefore, send this to you without having first submitted it to my solicitor, and asking him whether the account is true in every point. This is an account of what is called a sale under the Court of Chancery in Ireland:— A receiver was appointed over the estate in 1813. The estate was sold, under a decree of the court, in 1838. After most tedious proceedings and great costs, it was discovered that there was a technical defect in the title, and the purchaser was freed from the purchase. The estate was resold in 1843, under an amended decree. The present purchaser (his informant) thought that, after the previous investigation, purchasing under the amended decree, he should be safe. He paid his purchase money into court. In June next, six years would have elapsed since he paid the money. He was not in possession, and would not be for two years more. It was discovered, on examination, that the estate was less by 1,200 acres than the quantity stated in the rental; that parts of the property stated to he fee-simple were leasehold, with a power of reentry and reservation of the royalties. That leases stated to have been made without powers were made with full powers, and were binding and valid. In 1848, it was discovered that several reversionary leases, not set out in the rental, were in existence and also valid. On these objections the remembrancer decided in favour of the purchaser—that is, that the rule was invalid, and the purchaser thought he was released—and reported to the purchaser that he should be released from his purchase. The vendors objected to the release. The barons decided in their favour, and reversed the decision of the remembrancer. The result had been that the purchaser had neither received the interest of the purchase-money nor the rents of the estate. So far as to individual wrong. Now look at the social evils. All the evicted paupers of adjoining estates had crowded into it. In the course of the proceedings the widow of the vendor became the inheritor of the estate on the death or her youngest son. She died lately of a broken heart, without the common necessaries of life. On her death, fresh proceedings had to be taken, new bills filed, new decrees pronounced, and now we have to discover her heir in America. That such a system must prove ruinous to all parties, the vendors, the purchasers, the mortgagees, and the tenants, is evident. The capital I had intended to expend in the improvement of the property will all be spent in law costs, in a fruitless attempt to obtain that which was professed to be sold to me. This is not an uncommon case. Two friends of my own purchased two estates the same day I did, under the courts. Mr.——at the end of four years, was forced to take what his counsel pronounced was not the title under which he bought; Mr.——at the end, I believe, of six years, has been freed from his after most expensive proceedings, during which, I believe, the tenants have paid no rents, and have, by their lawless proceedings, endangered the peace of the neighbourhood, This is an extract from the statement made to me by a gentleman of the highest respectability; and I shall be prepared to place the original in the hands of any Gentleman who wishes for more details on the subject. Now, I put it to any one who may have heard, with some surprise, the proposal of the hon. and learned Solicitor General, whether it is possible to permit such a state of things as is here described to continue without immediately attempting to apply a remedy? Sir, I believe it will be possible to apply that remedy without injustice to those who are either the nominal proprietors, the actual proprietors, or incumbrancers upon the estate. I believe the saving to them of legal expense, of costs in the courts of law, and of the anxiety consequent upon such proceedings, will be a compensation for any conditions you may impose upon them. As I stated the other night, you are now in a new position with respect to this insolvent property. Unless you take some remedy with regard to it, the whole of the solvent property in Ireland will be affected. I ask hon. Members, before they decide upon this question, to read the evidence given before the House of Lords by two Irish gentlemen, Colonel Gore, of Mayo, and Mr. Martin, of Gal-way, which shows that they are well acquainted with the condition of Irish property, and that they have been actively exerting themselves for the mitigation of the evils existing with reference to that property. I think that evidence deserves the most serious consideration. It shows the injustice you would do to the owners of solvent property in Ireland, if you made them responsible for the default of the insolvent proprietors. I may add, that the course which the hon. and learned Solicitor General has pursued during his Parliamentary career, the principles he has evolved, the temperate, well-considered attempts he has made to reform the law, are, I think, worthy of the great name he bears. He proves himself to be one of those lawyers who, having the key of knowledge, are not desirous of using it for the purpose of excluding their fellow-countrymen from possessing the benefits of sound legislation.


could not allow this discussion to close without expressing his opinion on its subject. He had never listened to the deliberations in that House upon any question connected with Ireland with half the delight which that evening's debate had given him. A more beautiful explanation of a measure than that given by the hon. and learned Solicitor General of his most excellent Bill, he had never heard in that House or elsewhere. He could not find the slightest fault with the proposition, either that it went too far, or that it did not go far enough. There were, as the hon. and learned Gentleman admitted, other things to be done; but certainly the measure here submitted to the House was one which had begun at the right point, and was proceeding—at all events, to a considerable extent—in the right direction; and he was satisfied, further, that though some learned Gentlemen opposite, and some other persons connected with the land in Ireland, might regard it as a dangerous measure, there was no class in Ireland whose real safety was more consulted by the Bill than the class of landed proprietors. For himself, he would say, that, did he not conceive it would conduce as much to their safety, and to the maintenance of their property, as to the safety and to the maintenance of the property of any other class, it would not have the warm support he was disposed to give it. He was of opinion that nothing could be more fatal than an attempt to maintain the property of any one class as against any other class; while measures based on sound principles, calculated to meet great emergencies, must be, as this measure eminently was, certain to be advantageous to all classes in the country to which it referred. He had that night fallen under the displeasure of two hon. Gentlemen, representatives from Ireland: he was not about to say that he had not laid himself open to some of the observations which had been made; but hon. Gentlemen from Ireland would do him generally this justice, that, on all occasions since he had sat in that House, he had almost always spoken—always voted, in favour of those measures which had met the approbation of the Members for Ireland—at all events, sitting on that side of the House; while with respect to this especial measure. Gentlemen from Ireland might, perhaps, recollect that at the close of the last Session of Parliament he had made the precise proposition now submitted to the House by the hon. and learned Solicitor General. He had stated on that occasion, that before anything else was done with this question of land in Ireland, a special tribunal ought to be appointed, to which the adjudication of all questions connected with this subject should be referred, since, from what he had heard of the condition of the Court of Chancery in Ireland, he was satisfied that nothing effective could be done without the establishment of such a tribunal. He would appeal unhesitatingly to the whole of his conduct, in and out of Parliament, to show that he had never exhibited hostility to the people of Ireland, or those who represented them in that House. He heartily thanked the Government for this measure, and hoped they would exhibit as much determination in pressing it through the House, as they had exhibited wisdom in conceiving it and laying it before Parliament.


observed, that the right hon. Baronet the Member for Tam-worth had given a striking instance of the abuses of the Court of Chancery In Ireland, and there could be no doubt of its being desirable to abridge the technical forms. But the provisions of the proposed measure extended to constitute a new tribunal. He warned hon. Members against supposing that the whole of the evils and difficulties in the case of Ireland arose from this particular condition of encumbrances upon property. He felt certain that no encouragement would be found for the investment of capital in any such union as, for example, that of Ballina.


reserved his opinions until he had seen the Bill. It must be remembered, however, that such a measure as this alone could not effect all the necessary ameliorations; and he trusted the House would yet see the necessity of introducing other measures, conceived in as large a spirit as this appeared to have been.


was anxious, in common with other speakers, to express his sense of the manner in which the hon. and learned Solicitor General had introduced this measure. One point ought, however, to be attended to in legislating upon this matter. While care should be taken that every measure should be based upon sound principles, it should be remembered that the evils of Ireland were many, and were in combination, and were only to be met by a combination of measures. No isolated measure could effect everything. If he had any doubt as to the operation of the present measure, it would arise, not from any fault in the Bill itself, but from the fact of its not forming a part of a general plan or design, which circumstance, he thought, was essential to the success of any particular measure. He had not heard that the Bill contained any provision for limiting the liabilities of an incoming purchaser of property; and if that were so, there ought to be another Bill, with such an object, to sustain and support the present. At the same time, he agreed with those who thought that this was a step in the right direction; and he gave great credit to the Government for the animus in which they had proposed it, and for the attempt to relieve property from the trammels of Chancery technicalities. He thought there were some omissions in the Bill, but would reserve them for future consideration.


said, that the right hon. Baronet the Member for Tamworth had made a salient and pointed attack upon the Court of Chancery in Ireland, and had illustrated it by a very touching anecdote. But the right hon. Gentleman had made a somewhat extraordinary statement, in saying that the first sale of the property in question had gone off upon a technical imperfection; while it appeared, when the circumstances were investigated, that the estate was 1,200 acres less than had been represented, that a portion of it was leasehold instead of freehold, and that there were certain leases under very awkward conditions which had not been at first disclosed. Now, these might be called technical objections in Ireland; but they certainly would not be so considered on this side of the water. With respect to the West Indian Commission—that might be said to be a precedent for the duties of the proposed commissioners in respect to the mere distribution of the funds after the sale of estates; but it was not a precedent for the duty of judging whether or not estates should be sold, and it was to this latter point that his hon. and learned Friend the Member for Newark had adverted.


explained: So far from his informant regarding those objections as technical, he found them valid and real. He said that he had bought a property of 10,000 or 12,000 acres, and afterwards found it 1,200 acres less; that a part had been sold as freehold which was really leasehold; and that there were reversionary leases on the property which he had not been informed of. He wanted to be relieved from his purchase, but was not allowed—but was forced to take the estate less the 1,200 acres. So far from viewing these as technical, he (Sir R. Peel) had urged them as strong and real objections. It was on the first sale that the technical objection arose; and it was the second purchaser, who bought thinking himself safe under the amended decree, upon whom these real difficulties accumulated.


wished to state his cordial approbation of the measure which had been introduced by the hon. and learned Solicitor General. It would abridge the time required for the sale of estates, and also diminish the costs of the sale, which he considered to he two of the principal objects which called for legislation. The strongest objection in the way of the well working of the measure, was that which had been stated by the hon. Member for Cockermouth—namely, that the great difficulty would be to find purchasers of land in Ireland. This Bill was to be accompanied by another measure, which had been that night explained to the House, and which would greatly enhance the difficulties of working it. He had heard the speech of the noble Lord at the head of the Government with great disappointment, because he feared that the Bill which he had obtained leave to introduce would, if it became law, greatly increase the evils of the poor-law in Ireland.


observed that the hon. Member for Manchester, with the modesty which always characterised him, had avowed that he was really the author of this scheme, which he had propounded to the House at the end of last Session. Two hundred years ago, however, a statesman who ran a brilliant career, though its termination was not fortunate—the Earl of Strafford—proposed a measure very similar to the present, namely, to suppress all the courts of equity in Ireland, and to establish a court of commission, for which proposition he was impeached and lost his life on the scaffold. If a similar fate should ever threaten the hon. Member for Manchester, on account of his being supposed to be the author of such a proposition, he (Mr. Bankes) would not give his voice for his impeachment, because he knew that the hon. Member was innocent of its authorship. From all he had heard that evening, he feared that the measure would not be so effectual as had been hoped; but the Government certainly deserved the support of the House in the attempt which they were making.


said, the commission about to be appointed under this Bill would have a superior jurisdiction to the Court of Chancery, if proceedings were commenced in that court for the sale of an estate. He wanted to know whether the Bill would give a similar power in the case of proceedings commenced in the Court of Exchequer?


replied that the equity side of the Court of Exchequer would be in the same situation as the Court of Chancery.

Leave given.

Bill ordered to be brought in by Mr. Solicitor General, Lord John Russell, and Sir William Somerville.