HC Deb 09 June 1853 vol 128 cc928-39

Order for Second Reading read.


rose to move the Second Reading of this Bill. Though a short it was a very important measure; and when the House gave him leave to introduce it a few weeks since, he stated that he reserved any statement which he might have felt called upon to make, until hon. Members should have had an opportunity of reading the measure. He had endeavoured to frame the Bill, which was one of a very comprehensive character, in language so simple that any person taking an interest in the subject would be able to understand it, although he might not have had a legal education. With the assistance of gentlemen of great experience, he had, he believed, succeeded in framing a most important measure in the simplest possible language. He found considerable difficulty in approaching the subject on account of its magnitude, and he did not wish to detain the House any longer than was necessary; but he must trespass for a short time on their indulgence, while he explained the object of the Bill. The subject was one which, although until within the last few years comparatively unknown, was every day acquiring more importance. The first time that public attention was called seriously to it was in 1830; and he found that in the second report of the Real Property Commissioners of England, all the evidence which tended towards a simplification of the laws of transfer of property was given by foreign witnesses, for on the Continent there had long existed systems for the transfer of land, up to the present time unknown in this country—at least since the introduction of feudal tenures. He would not detain the House by going into the evidence taken before those Commissioners, but would pass over the intervening period up to the year 1846. It was now generally admitted that all the great interests of the country would be benefited by the introduction of a system which would simplify the transfer of land. The first recommendations on this subject came from a very influential quarter. A Committee of the House of Lords, consisting of noblemen who from practical experience were eminently qualified to offer an opinion on this subject, in their report bearing date the 19th of June, 1846, unanimously agreed that it was their opinion that the marketable value of real property was considerably diminished by the deeds of transfer necessary under the present system, and that if at any time it was necessary to raise a sum of money upon landed security, the law expenses were very heavy, and the transfer to the mortgagee was attended with a very serious expense to the mortgagor. That Committee also endeavoured to impress upon the House the necessity of a complete revision of the existing system of conveyancing. From the publication of that report to the present time, with scarcely any intermission, the attention of practical men and of members of the legal professions had been directed to the subject, with the view of seeing what changes could be beneficially introduced, until at present the matter had assumed a practical and tangible shape, which must soon force itself upon the attention of all classes of the community. He would briefly mention to the House what had occurred from the date of that report towards urging forward the introduction of a system for facilitating the transfer of land. In 1847 a Commission of Inquiry was appointed to examine into the laws affecting landed property, presided over by Lord Langdale. In the same year there was established the first of those land societies which had since spread to so great an extent. The Birmingham Land Society was established in that year, from which some hundreds had since sprung up. The capital of those societies had increased to an enormous extent, and they were mainly called into existence from the want of facility for the transfer of land. In England it was at present practically impossible for any one owning property, even in fee-simple, to dispose of a small portion of it; for the deeds and necessary expenses connected with the sale would almost equal the price of the property; and in Ireland, from local laws, it was even more expensive still. In the year 1848, in consequence of the disastrous condition to which Ireland, by a complication of causes, was reduced, the first Encumbered Estate Act was passed. He would just mention that the measure which he proposed was confined to Ireland; but it was so framed that by the alteration of a very few words, and the introduction of one clause, it could be rendered applicable to England, or, indeed, to any country, and it would be equally advantageous to all parts of the globe It was his opinion—an opinion based upon many years' study of the subject—that a measure of that description was the most beneficial which could be applied to any country. He brought forward this Bill with a deep conviction of its immense importance; and he had at one time stood nearly alone in that conviction. In matters connected with the sale and transfer of land, he had a great deal of personal experience, and he should not have presumed to bring forward the present measure without having studied the subject with considerable care. He might perhaps be excused saying that he occupied some positions which enabled him to view the subject under different aspects. During a long practice in conveyancing, and in the courts of equity, he had had frequent op- portunities of observing the working of the present system; he was also himself an owner and an occupier of land, and was thus able to consider the matter from four points of view. The Encumbered Estates Act, which was passed in the year 1848, was found to be practically inoperative, and became a mere dead letter, from its being too complicated in its provisions, and being burdened with caveats and other matters necessary to be attended to. He remembered, almost immediately after the passing of that Act, expressing an opinion of the advantage a simplified system of transfer, conveying a secure title, would be to the landholders in Ireland. It would be recollected at the passing of that Act what an outcry was raised against that description of legislation; but in the following year, the Act of 1848 having proved inoperative, the present Incumbered Estates Act was brought in and passed. It was, however, an Act of a very different character—it was exceedingly well framed, very simple in its operation, and provided for every possible case which could come within its purview. It also provided very good machinery to carry out its object, which was to establish a temporary court for the speedy sale of incumbered estates, and to bestow upon the purchaser a Parliamentary title. There were precedents in Ireland for the bestowal of Parliamentary titles upon the sale of land in the time of Charles II., and also in 1703, by the sales at Chichester House, under the Forfeited Estates Act; but from the operation of various laws the titles of land had become as complicated as before. He wished to correct a vulgar error which was very prevalent in England, that the encumbered estates in Ireland had been brought into their present state principally through the recklessness of the Irish proprietors. He did not believe that this was true to any greater extent than in England, for in both countries landed proprietors had, no doubt, in some cases ruined themselves by their extravagance. In his opinion, the fact of the landed interest interest in Ireland having come to a dead lock was attributable to three causes. First, came the great distress of the country, which considerably depreciated the value of landed property—distress produced by causes which, happily, no longer existed. The two other causes were connected with the system of titles in Ireland. From various circumstances there was greater difficulty in the transfer of land in Ireland than in this country. One difficulty arose out of the registry system. It was possible in Ireland to make out with sufficient means and time an absolute title, but at a prodigiously increased expenditure; although, indeed, the title so obtained might be more secure than an English title. In England there was a facility of transfer of land from the incumbrancer which did not exist in Ireland; for, in England, if the mortgagee wished to foreclose he had only to file a short bill, and would then be able to foreclose, and acquire title to the property. In Ireland a foreclosure bill was a bill of sale also. The state of the property was examined into, and all the incumbrances discovered—an operation which at times lasted twenty years. At the sale of the property the purchaser acquired no secure title, and all the protection which the Court afforded him was, that those persons who had been before the Court, were bound by the decree; but the purchaser had then to find out if there had been any other incumbrancer before he could feel certain of the security of his title. He was not exaggerating, but stating the ordinary practice in Ireland. The different systems in the two countries would perhaps have brought the landed estates in Ireland to a dead lock sooner than those in England; but the local distress and the consequent depreciation of the value of property had accelerated a crisis which was no longer tolerable, and which nothing but the Incumbered Estates Act could put an end to. Nunberless instances had come under his own observation of the depreciation of the value of land in consequence of the want of facility of tranfer. One case, and he did not believe it to be an extreme, although it was a strong one, had fallen under his observation, in which a lawsuit had been carried on to enable the purchaser of Irish property to obtain a certain title, of which the costs were about 2,000l., to the vendor, and about 1,500l. to the purchaser. The hon. and learned Gentleman related a similar instance illustrating the difficulty of the transfer of a charge upon land. This state of things led to the passing of the Incumbered Estates Act in 1849. The House was perfectly aware how matters had proceeded under that Act. True, some hardships had been suffered during the year or two after it came into operation, because it was not accompanied by measures to mitigate its rigour; but, on the whole, the Incumbered Estates Act had worked well for Ireland. The next step taken in connexion with the question was the introduction of a Bill by the hon. Member for East Surrey; and the speech with which the hon. Member prefaced it showed that his object was the same as that for which he (Mr. Scully) was contending. On the 9th of April, 1850, a Bill called the Security for Advances Bill was introduced, the object of which was to enable purchasers of land to borrow money to the extent of half the value of the property. This was a desirable measure so far as it went; but it was not up to the mark. At the same time the principle of the Bill obtained general assent in Ireland; and a large and influential meeting of persons interested in land was held in Dublin, at which a petition to the House was agreed to in favour of the principle, but praying that it might be extended. In 1851 the House was occupied almost exclusively with the Eccelsiastical Titles Bill, and during that period he devoted himself to the consideration of the land question, and published the result of his reflections. The sum of his desires was this—that there should be free trade in land, and he believed that it would be of more value to the country than free trade in produce. The most conservative Protectionist might support free trade in land, because it was a domestic article. This view had been adopted by an eminent Protectionist writer, Mr. Serjeant Byles, who in the eighth edition of his Sophisms of Free Trade made these observations:—"There must be no obstacle to the sale of land; there must be perfect free trade in land, and the opportunity of diffusing the ownership of land among the nation at large." During 1852 the attention of the country was engrossed with the general election, and this question lay dormant; but at the commencement of the present Session a flood of measures bearing on the land question had been introduced. All these circumstances attested that there was a growing conviction of the necessity not only of legislating on the subject, but of legislating in the way he proposed. Foreign writers had long declared in favour of the principle which he advocated, and in Prussia it was actually in practice to some extent. The Law Amendment Society of London approved of the principle, and the noble Lord the Member for London, in his address to his constituents, expressed himself thus: "The transfer of land is clogged with legal difficulties, expense, and delays, which unfairly diminish the value of that property, and, to a great degree, prevent its becoming an investment for the savings of the industrious classes." These views were ably advanced by the most powerful organ of public opinion in England. On the 3rd of September, 1852, the Times said— Day by day the opinion of mankind is tending more decidedly towards the abolition of the distinction between real and personal property. To* devise means by which land may be more easily transferred and rendered available for the purposes of commerce, is one of the greatest problems which can engage the attention of the statesman or philosopher. Again, on the 11th of February last, the same journal published a leading article which contained these passages:— Probably of all subjects connected with law reform there is none so important in itself and so eagerly desired by the nation as the simplification of the titles, and the facilitation of the transfer of land. It is felt that, by such a measure, the value of real property would be raised, and that not merely litigant parties, but every one possessed of an interest in the soil, would profit largely by the change…ֵThe belief is more and more gaining ground that the principle of our law of real property is radically and essentially faulty. That principle has been to fetter the land by saddling its title with every contract relating to its possession. An eminent writer, Mr. Carlyle, in his work called Hero Worship, had told them that every man originating any new idea must be satisfied to start it in a minority of one; and the same writer had also stated that in order to succeed in any great enterprise, the person embarking on it must have a thorough conviction of the truth of his cause, and of its ultimate success. That conviction he (Mr. Scully) undoubtedly had. He had no doubt of the ultimate success of the principles he now advocated, and that their universal application was merely a question of time. He entertained no doubt whatever that the method he proposed would, in its substance, and, perhaps in its identical words, become both the law of England and Ireland; and, were it not too presumptuous, he would almost say that it was destined to become the law of the world at large. Much discussion had taken place on the succession duty proposed by the Chancellor of the Exchequer, and he would probably have spoken against that measure, had it not been that he believed its imposition would have the effect of urging forward the speedy adoption of a plan for facilitating the transfer of land. The Chancellor of the Exchequer was right when he said the tax on successions was a matter positively trifling compared with the burdens sustained by landowners in the transfer of land; and was he (Mr. Scully) not justified in saying that the imposition of that tax would be the means of paving the way for the measure which he advocated? One of his principal reasons for coming into Parliament was, that he might be in a position to press on the attention of that House the ideas which he had that day endeavoured to express. Among other benefits which would ultimately flow from his measure was this, that it would be a true and lasting solution of the landlord and tenant question in Ireland. The utmost that Parliament could do, through the various modes that had been brought forward for settling that question, was to frame a good and fair partnership deed between landlord and tenant; but what they wanted was, a mode of facilitating the voluntary dissolution of partnership. If there was a cheap and easy transfer of land, an entirely new system would in a few years spring up—a system of selling and purchasing, instead of a system of partnerships. If a good system of transfer were introduced, every man would find it his interest to sell, and not to. let his land. Before the Encumbered Estates Bill came into operation it was extremely difficult to sell small portions of land in Ireland—much more so than in England. Indeed, it was practically impossible to sell a small portion of land without incurring enormous expense, and, therefore, the proprietor was driven to let it. A great expense in conveyancing would produce exactly the same result in any other case. Supposing a man could not sell a horse without taking him to a conveyancer, and having deeds drawn up at great length, stating his genealogy, setting forth by name his father and grandfather, and making out a title just as in the case of land, it was perfectly plain that the horse would not be sold, and that the proprietor would be under the necessity of letting him out by the job, or by the month and year. As a proof of the excellency of an easy mode of transfer, he would refer them to the Channel Islands; there the system was to sell, and not let, the land, and the course taken was precisely that which he proposed. The consequence was, that the value of land in these islands far exceeded that of this country, and he believed that if the system were adopted here, the same results would follow. The people of those islands attributed their prosperity entirely to free trade in land. Indeed, it was almost impossible to exaggerate the good effects of the system there, both as regarded the value of the land, and the increase of the population. He hoped that the present state of the tenure in Ireland would be abolished, and that there would be, in the course of years, no other system than that of vendor and purchaser. In the Channel Islands there was no system of landlord and tenant as in Ireland. If a man wished to dispose of a small portion of land in Guernsey or Jersey, he could easily do so, whereas in Ireland that was impossible. The value in the Channel Islands was almost fabulous. There, upon 30,000 acres, they maintain a population of 90,000. In the rural districts the average value of land exceeded 8l. per Irish acre, or 5l. per British acre. The quality of the soil did not excel that of Ireland or England. The system had prevailed for many centuries. It had been handed down from before the time of the Norman Conquest, and the inhabitants attributed their great prosperity to the freedom allowed in disposing of their land. If the same system were put in operation in Ireland, he believed that not only would it be found that the value of land was greatly increased, but that in time— it might be centuries—the soil of Ireland, like that of the Channel Islands, might be supporting three persons to each statute acre, or 52,000,000 of people. With regard to France, he might state that a similar system there had received the complete assent of the French people. It was because the present system was introduced by the first Napoleon that the people of France entertained the affection which they had manifested for his family. From inquiries he had made, he was satisfied that the great attachment which they showed to the family of Napoleon Bonaparte was more owing to his measures for facilitating the diffusion of land in France, than to his great name as a conqueror. But he did not propose to adopt precisely the French system, which involved a compulsory subdivision of property. He thought a compulsory system of disposing of land was wrong, and not to be imitated. What he proposed was, free trade in land—that every man should have the power to dispose of his land freely and simply, just as he thought proper, during life and at death. The Bill was framed so simply that any one, though not a professional lawyer, might understand it on perusal, and in drawing it he had received valuable as- sistance from two professional friends of great legal experience and knowledge— Mr. Matthew Sausse and Mr. John B. Murphy, to each of whom he desired to express his deep acknowledgments. The first four clauses would hare the effect of creating a Parliamentary title to an estate. By the first clause it was proposed to allow, upon the application of the owner of property to the land tribunal constituted by the Act, that the tribunal might direct a full investigation of the title to be made, and, if found good, might order that the land should be brought under the operation of the Act. The second clause explained the effect of such proceeding to be that no person should be at liberty to embarrass the land with any future settlement or new estate; but if the owner desired to raise money on the land, he could only do so by land debentures, though he might grant leases of the property. By the third section it was enacted that after any land was brought under the operation of the Act, the land tribunal might, after a full investigation of title, make an order declaring all existing estates and interests in the land, and all incumbrances thereon, and cause such order to be entered in the books of the tribunal. Such entry would, as regarded any estate, interest, or incumbrance appearing thereon, be conclusive evidence against all persons whomsoever; and the tribunal might grant to the person so entered as entitled to any such estate, interest, or incumbrance, a certificate of his title thereto. The fourth clause was one of the most important of the Bill. It authorised any person entered as owner of any estate to transfer his estate by simple entry in the books of the tribunal; and that entry should, without any deed or other assurance, suffice to vest in the person named in the transfer all the estate and interest in respect of which the prior owner appeared entered in the books of the tribunal. That was all that appeared to him necessary to facilitate the transfer of any landed estate; but then they had to deal with mortgages and other charges on land, all of which were to be disposed of and converted into one simple charge— namely, the landed debenture, a form of which was given in the schedule annexed to the Bill. The land tribunal would have power to charge an estate with debentures to a limited extent; and in all probability these debentures would bear but a small rate of interest—4 per cent, at the most, or, perhaps, only 3 or 2 per cent—and be looked on as among the best securities. The debentures, in gums it might be of 100l. each, would be registered in the books of the tribunal, and, being subject to a stamp duty, would produce an enormous revenue to the country, and would be negotiable by simple delivery, like a promissory note payable to bearer. He also proposed to transfer to the new land tribunal the entire jurisdiction of the present Incumbered Estates Court. These were the provisions of the Bill most necessary to be explained to the House; and, he would observe to English Members, that there was nothing to prevent the measure from being applied to England, There might be in England one title in ten thousand that turned out to be bad, and if English land were brought under the operation of the Bill instantaneously, some injury might be done; but it was possible to provide against that injury. If the person applying for the benefit of the enactments of the Bill were to pay a small fee, a very large revenue would thus be raised; and out of that it might be politic for the country, considering the immense and incalculable benefit which would be conferred on the whole country by the measure, to guarantee the title in those rare instances to which he had referred. In conclusion, the hon. Member observed, that he could not hope to carry the Bill in the present Session unless the Government took it up. He should, therefore, be content with passing the second reading, and having the Bill referred to the Select Committee on the Registration of Assurances Bill; and, should the measure not be taken up by the Government, he would press the subject again on the consideration of the House, should he be in Parliament, next Session. He moved the second reading of the Bill.

Motion made, and Question proposed, "That the Bill be now read the Second Time."


said, he bad no objection to the second reading of the Bill; on the contrary, he thought the hon. Gentleman (Mr. Scully) was entitled to the thanks of the House for introducing it, and for the time and trouble he had bestowed upon its preparation. The subject was one of the greatest possible importance. It was important to all classes of the community, and he believed its operation would be to increase the value of the land to the seller, and to give security to the purchaser that he would not be disturbed in his pos- session of his property. He believed it would also have the effect of enabling persons to buy small portions of land, and be the means of steadying the minds of the public, and of encouraging them to make investments at home. He would explain the course which Government thought it best to pursue with respect to the present and other Bills of the same nature. It was the intention of the Government to issue a Commission to inquire into the whole subject of the transfer of land in connexion with the Encumbered Estates Court, and it might be desirable to include this measure, as it was the intention of the Government to submit next Session a general plan on the subject, which plan he hoped would be satisfactory to all classes in the country. He did not know whether the hon. Gentleman had communicated with the Solicitor General for England on the subject; but he might say that if the Committee on the Registration of Assurances had time to consider the Bill, he had no objection to its being referred to them. It was the interest and the wish of everybody that the title to land should be simplified as much as possible. This Bill tended to simplify it; and, therefore, he should not object to the second reading.


said, he had mentioned the chief provisions of the Bill to the Solicitor General for England, and although he did not feel at liberty to state the views of that hon. and learned Gentleman, still he could say that he entirely approved of the Bill being referred to the Select Committee on the Registration of Assurances.


said, he would, then, offer no objection. It was his object, as it was that of all parties in this country, to simplify the transfer of land, and to give security of title and facilities for sale; therefore, on the part of the Government, he certainly was not prepared to offer any opposition to the second reading of a Bill based on that principle.


said, he presumed the consent of the Government to the second reading did not pledge them as to their future course in regard to the Bill.


said, he wished to know whether they were to understand that a Commission as to the law of real property was to be issued as to Ireland?



Bill read 2°.