MR. J. D. FITZGERALD
said, he would now move for leave to introduce a Bill to abolish the Incumbered Estates Court (Ireland); enlarge the jurisdiction of the Court of Chancery (Ireland), increase its power, and reform its procedure. One of the objections made to the Bill by the hon. Member fur Enniskillen was, that it would cost the country about £40,000 per annum more than the measure which that hon. Member had just introduced. He would now proceed to state to the House 185 a result which would relieve them of anxiety upon that point. Having recently had an opportunity of settling all the details of the measure he had in hand, he was prepared to state the substantial result of it in point of expense. He proposed to abolish the Incumbered Estates Court, which at present cost the country £15,529 16s. 10d. per annum, and he proposed also to dispense with four of the Masters in Chancery and other officers of that Court in Ireland, which would result in an abolition of salary to the extent of £14,900 a year. He did not say that this latter sum would be immediately saved to the country, because there would be compensations, the amount of which he was not able to calculate exactly, not knowing how many of the old officers might be appointed to situations under the new Act. On the other side of the account, the officers to be appointed under the Bill would receive in salaries £16,760 a year, and, as nearly as he could estimate, the life compensations would amount to £13,383 a year. The annual expense which would be put an end to, therefore, was £30,429 16s. 10d., while the new situations, together with the life compensations, would only be £30,143 a year. So far, then, from his measure costing the country £40,000 a year more than that proposed by the hon. and learned Member for Enniskillen (Mr. Whiteside), he might confidently state that it would cost the country nothing, and that so soon as the life compensations ceased there would be a permanent saving of nearly £14,000 a year. The Bill now to be introduced was founded on the Report of the Commissioners appointed to inquire into the Incumbered Estates Court, which was laid on the table of the House in June last. He had printed this Bill last Session and circulated it widely, with a view to elicit suggestions for its improvement—and there had been no objections made which he had not attended to. The House must be aware that, in the year 1849, Sir John Romilly introduced the Incumbered Estates Court Bill. It was the law under which the Incumbered Estates Court was founded in Ireland, and he must say of that measure that, it had proved entirely successful, and well calculated to meet the pressing emergencies of the period. It was regarded at the time of its introduction with considerable alarm; and the right hon. and learned Gentleman opposite (Mr. Napier), in a speech which he made upon the oc- 186 casion, objected to its provisions, and shadowed out another course, which he would presently advert to. Now, the very first part of the Bill which he was now asking permission to introduce has for its object the abolition of the Incumbered Estates Court. But, whilst he proposed to abolish a Court which had done more good than any of modern times, he did not intend to destroy its jurisdiction, but transfer it to one of the regular Courts of the country. The Incumbered Estates Court has been in operation six years up to the last day of December, 1855, and the estates sold under its authority amounted in value to £17,331,668 4s. 9d., and of this, the Court had already distributed £14,080,034 4s. 9d., leaving a balance of about £3,000,000 to be distributed. At the present time, the Court has made orders for selling estates, the rentals of which amounted to £400,000 per annum. These figures would show the enormous amount of work which had been done by the Incumbered Estates Court, to the great benefit of the country, although no doubt it bad, in some cases, caused injury to individuals; the injury to individuals, however, had not been to anything like the extent which had been predicted, while its benefits had exceeded the expectations of all. The necessity for the original measure was truly stated by Sir Robert Peel, in 1849, when he said—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 these ordinary courts of justice, and establish some special tribunal unfettered by reference to technical rules for the purpose of solving these difficulties.The tendency of the operations of the Court had been to introduce capital into Ireland. ["No, no !"] He was aware that hut one-sixth of the purchasers had been English or Scotch, but it had developed a great amount of Irish capital —capital which we did not know existed. Purchases in the Court of more than £14,000,000 had been made with Irish capital, which this measure had developed. The Act, which was passed in July, 1849, was to continue in force for five years, and to the end of the next ensuing Session of Parliament, but with powers to receive petitions for sales only for three years. These powers had, however, been renewed by successive Acts, and at present the 187 Court could continue its operations until August, 1857, but its powers of receiving petitions, or of commencing new proceedings, would expire in July next. In 1852, the right hon. and learned Gentleman the Member for the University of Dublin (Mr. Napier), then Attorney General for Ireland, who had originally opposed the Bill, was of opinion that the best course was to renew the Act until the Court of Chancery had been reformed and rendered available for the transfer of the business of the Incumbered Estates Court to its jurisdiction. The Court of Chancery in Ireland had not yet been fully reformed. In 1854 a Commission was issued under Lord Aberdeen's Government, to inquire into and report upon the Incumbered Estates Court. The Commissioners were the Lord Chancellor of Ireland, Sir John Romilly, the Solicitor General for England; the then Attorney General for Ireland, the Chief Justice of the Common Pleas in Ireland, the hon. and learned Member for Belfast (Mr.Cairns), Mr. Commissioner Longfield, and himself (Mr. Fitzgerald). The Commissioners prosecuted their inquiries with great diligence, and in six months presented their report, having cost the country only some £400. They sought for evidence in all quarters, and obtained the views of persons acquainted with the subject, the result of which showed a singular concurrence of opinion as to the course which should be adopted. The Master of the Rolls in Ireland, whose opinion was entitled to great consideration, had certainly raised an objection that, by giving a Parliamentary title to all estates sold by the Court—a title to be good against any former owner of the estate, there was a possibility that the Court might sell in one man's name property which belonged to another. But the answer to that objection was to be found in the operation of the Act itself. During the six years of the existence of the Court, and in sales of estates to the amount of £17,000,000, only one instance of error had been alleged, and in that case the dispute was not one of title but of boundary, and was so insignificant in value, that neither of the parties took the trouble to investigate their rights. The Commissioners fully approved the principle, that the existing power of selling incumbered estates should be continued. Such was considered to be the value of a Parliamentary title, written on a piece of parchment not larger than an ordinary sheet of letter paper, that gentlemen, having 188 estates perfectly unincumbered and wishing to sell them, created incumbrances for the purpose, and then came into Court, and had their estates sold for them. The Commissioners stated that they saw no reason why proprietors of unincumbered estates should be placed in a worse position than these whose estates were incumbered, and they proposed to extend the powers now exercised by the Incumbered Estates Court, so as to allow any one, having an estate to sell, to sell it with a Parliamentary title, and in a summary and inexpensive manner. After examining with great care into the question, to what Court should such extended powers be entrusted, the Commissioners expressed their opinion that the Incumbered Estates Court ought not to be continued, and that its powers should cease upon a certain day, and that its jurisdiction should be transferred to the Court of Chancery in Ireland, together with the causes then undisposed of. It would be advisable to consider for a moment the state of the Court of Chancery in Ireland. Let not the House be carried away with alarm at the name "Chancery," or suppose that the Court of Chancery in Ireland presented the same aspect as the English Court did before its recent reform. In this instance, as in almost every other, they had gone before this country. They had had their County Courts for eighty years. Since the reign of Anne, their conveyances had been registered. They had begun their reforms in their Court of Chancery early, and while Lord St. Leonards was Chancellor of Ireland very great reforms were carried out. In 1850 they took away from their Court of Chancery much of its great expense and so simplified its procedure, that at the present time in the Court of Chancery in Ireland cases are decided as speedily and with less expense than by a court of law. The operation of the Incumbered Estates Court has relieved the Court of Chancery from the pressure which was upon it. From returns which were made in 1853, one result of the operation of the Incumbered Estates Court appeared to be, that about 800 old suits concerning real estates were brought into the Incumbered Estates Court, and ended by a sale. One of these cases had commenced in 1771; in another, which was a somewhat noted one, the final decree was made in 1802 by Lord Redesdale. The suit had been commenced in 1781, and it had gone on to the year 1852, when it was determined by the Incumbered Es- 189 tates Court taking the estates and selling them. But this would not be sufficient to enable them to come to the conclusion, that the jurisdiction might be well exercised by the Court of Chancery as it at present stood; they must inquire whether it would not be advisable to abolish the system of Masters in Chancery. Lord St. Leonards' Act passed in 1852, abolishing Masters in Chancery in England, had worked well, and if such an Act was necessary in England, how much more so in Ireland, if you give the Court of Chancery here the power of selling estates? According to the present system of references from the Chancellor to the Masters, great delay, expense, prolixity and confusion, were the result. The Commissioners examined carefully into this, and came to the determination that it was necessary that the Masters should be abolished, and there being five Masters, it was resolved that four should be relieved from their duties, and that two Vice Chancellors should he appointed, who, with the two other Chancery Judges, the Chancellor and Master of the Rolls, would be sufficient to work out the new system. Now, it would be necessary for each of the new Judges to have some assistance. The Commissioners recommended that each Judge should have two chief clerks and two junior clerks, but that they should not perform the office of Masters of the Court, and that it should be understood that the Judges of the Court should do by themselves all the work that properly appertained to them, or that it should be done immediately under their own eyes. By such means all references, reports, exceptions and other tedious, complicated, and extensive proceedings would be at once swept away. He trusted that in the provisions of the Bill which he should now place before the House, that more stringent means would be adopted for the prevention of abuses, than had previously found their way into any other measure on the subject that was ever laid before the House. The procedure in the Incumbered Estates Court was as simple as could well be conceived, and divested of every technicality. The suitor was called upon to use the plainest and most untechnical language— terms as would be intelligible to the Judge and to his opponent. But above and beyond all, the Incumbered Estates Court was distinguished by economy in its fees and office charges, although it must be admitted that there were sometimes large expenses in valuations, surveying, and si- 190 milar departments. When he spoke of economy, therefore, he wished to be understood to be speaking of the procedure of the Court. The Commissioners recommended that this simplicity of procedure should be continued. The Commissioners then proceeded to deal with the question of an Appellate Court, and recommended that such a Court should be formed. At present, the only appeal against the decisions of the Incumbered Estates Court was to the Judicial Committee of Privy Council. Their decisions were satisfactory, and if the attendance of the members of the Judicial Committee could be more certainly relied on, it could be perhaps a satisfactory tribunal; but it was irresponsible, uncertain in its formation, the members constantly changing, and therefore uneven in its decisions. It was necessary to consider whether some new Appellate Court could not be created. At present there was no appeal from the Court of Chancery in Ireland except to the House of Lords, and in many instances where the property was small, the expenses were so great as to deter parties from an appeal to the House of Lords. The Commissioners had given this subject great consideration, and came to the conclusion that an appellate tribunal ought to be constituted, and that, from every decision of the Master of the Rolls and the Vice Chancellors, the suitor should have the right of appealing to a Court of Appeal, consisting of the Lord Chancellor and one additional Judge. The Commissioners thought that two Judges were a better number for an appellate tribunal than three. They stated—A Court of Appeal, consisting of two Judges, has this advantage—that in every case there will be at least two opinions in support of the decision; if the Court of Appeal be divided in opinion, the order of the Judge below will stand unreversed. We recommend that the second Judge of the Court of Appeal should be nominated by Her Majesty, and should be selected, in the first instance, from the ex-Chancellors of Ireland; or, if there be no ex-Chancellor eligible or willing to accept the office, that such additional Judge should be selected from among the common law Judges for the time being; or, in case it should be considered necessary to have a permanent Judge for this purpose alone, that a Lord Justice be specially appointed by Her Majesty.At present there were three ex-Chancellors of Ireland—Mr. Blackburne, Lord St. Leonards, and Lord Campbell—so that Mr. Blackburne was the only ex-Chancellor available for the Appeal Court which he 191 proposed to establish. It was impossible to make a better selection than Mr. Black-burne, and the Commissioners recommended that, in the first instance, the Judge to sit with the Lord Chancellor in appeal cases should be an ex-Chancellor, if it were possible to secure the services of such a Judge. If not, they recommended that the appellate Judge should be a common law Judge. To gentlemen who were acquainted only with the legal matters of this country that proposition might appear somewhat, startling; but according to the system which prevailed in Ireland the case was entirely different. According to the Irish system, gentlemen at the bar did not confine themselves to one branch; they practised equally at the Equity Courts, and in the Courts of Common Law, and at the present moment some of the men who had most eminently distinguished themselves at the Chancery bar were now common law Judges. He might mention the Chief Justice of the Common Pleas in Ireland, the Chief Baron, Mr. Justice Moore, Mr. Justice Ball, and Baron Greene and others, if it were necessary to do so. It was thought that if a common law Judge could spare time to devote himself to such duties the system would work well, and would be in every respect an economical proceeding. He admitted that in adopting such a course it would be merely as an experiment, for it would be impossible to tell, as yet, what would be the amount of appeal business, and whether a common law Judge would have sufficient time at his command to attend to it in addition to his other duties. If it should prove that the work of the common law courts was too heavy to enable a judge to take upon himself other duties, then the Commissioners recommended that, instead of a common law Judge, a Lord Justice should be appointed to sit with the Chancellor. In England, two Lords Justices sat as a Court of Appeal, and he believed that system had worked well. The Commissioners then recommended that the jurisdiction of the In-cumbered Estates Court should be vested in the Court of Chancery, and that the Court should consist of the Lord Chancellor, the Master of the Rolls, and two Vice Chancellors. They recommended, also, a system of cheapness and simplicity in its procedure, and, in order to work out this, they proposed certain measures, to which he would presently advert. This Report of the Commissioners having been laid upon the table last June, he (Mr. J, D. Fitz- 192 gerald) had taken considerable pains in embodying all its provisions in one Bill, and with a view to simplicity and facility of reference—to enable hon. Members and others interested to put their finger at once upon any point upon which they required specific information—he had adopted an excellent precedent, which he found in the Merchant Shipping Act passed some Sessions ago. Accordingly he had divided his Bill into nine parts, and to secure uniformity of procedure he had, in framing the Bill, adopted, as far as possible, not only the provisions of English Acts of Parliament, but sometimes the very language itself. The Bill proposed to deal, first, with the appointment of Vice Chancellors; secondly, with the abolition of Masters; and, thirdly, with the constitution of the Court of Appeal. It specified that there should be appointed two Vice Chancellors, with a stipend of £3,500 a year each. He might state, in reference to this subject, that the salaries of the puisne Judges in Ireland was £3,600 a year, with some additional allowance for the circuits. He thought the Vice Chancellors should be put upon an equality with the puisne Judges, but not in a superior position. The Vice Chancellors and the Master of the Rolls were to be assisted by officers called chief clerks. There would be six chief clerks, two for each Judge, and each clerk would receive £1,000 a year. There would be an increase under certain circumstances, but it would be provided that the amount would never exceed £1,250 a year. The salary of the chief clerk of a Vice Chancellor in England was £1,200 a year; but the qualifications which suited the office of a Vice Chancellor's clerk in this country would not suit the office of a clerk of a Vice Chancellor in Ireland. Great difficulties would be thrown not only on the Vice Chancellor, but also on the clerk, in carrying on the sales of land, which was a duty not imposed upon the Vice Chancellors, or upon their clerks in England. The salaries of the junior clerks were fixed at £350 a year each, a sum, he conceived, established on a sufficiently low scale. Then, as to the Court of Appeal. It was proposed that the Judge of the Appellate Court should either be an ex-Chancellor or a puisne Judge of the common law courts, and that his salary should not exceed £1,500 a year. But in the ultimate contingency of the Government having to appoint Lords Justices, supposing an ex-Chancellor should refuse to take the office, 193 or it should be found incompatible with the duty of a common law Judge for him to do so, then it was proposed that the salary of a Lord Justice should be £4,000 a year. The stop from the office of Vice Chancellor to that of Lord Justice would not only be an advancement in rank, but also an advancement to a position carrying with it additional duties of a very responsible character. It was, therefore, thought right that, as a superior Judge, his salary ought to be on a higher scale. Having dealt with these matters, he would now direct attention to what was proposed to be the procedure and practice of the Court. In framing his Bill, he had been actuated solely with the view of achieving, as far as possible, simplicity and economy. He did not think it right to provide for procedure by minute legislation, but to make it imperative upon the Courts themselves to form a code of rules by which their proceedings should be regulated. From experience in such matters he knew that great inconvenience sometimes resulted from legislating upon minor details. But, above all, he had been anxious to provide that, from the commencement to the termination of a suit, the same Judge should have charge of it, and that everything should be done under his own eye, so that the public time might not be wasted by the transference of business from one officer of the Court to another. He now came to what he considered the most difficult part of his scheme—one that required a great deal of care and attention—namely, the sale, partition, and exchange of real estates; and with a view to render his Bill as complete as possible, he had provided that in any purchase in the Court of Chancery the conveyance should be perfect and indefeasible. He might say that, although he took the somewhat unusual course of printing his Bill last Session, when there was no design of carrying it out; and although he had had it most extensively circulated in quarters from which useful hints might be expected, he had not received a single suggestion for any alteration or amendment of this portion of the Bill. The next part of the measure which he wished to call attention to was one which had not been recommended by the Committee. It had reference to the sale of settled estates. The House would remember that last Session a Bill, entitled a Bill for the Leasing and Sale of Settled Estates, came down from the House of Lords in reference to the Court of Chancery in England, which 194 was referred to a Select Committee, of which he (Mr. Fitzgerald) was one. The Committee had reported on it, but so late, that it had not passed into law. It was a valuable Bill, but he thought that in many respects it was not applicable to Ireland, and that it would be better to take several of the clauses and so modify them, as to make them accordant with the condition of affairs in that country. He had taken care, too, to give the Court power to make an indefeasible sale, but with such safeguards, as to inflict no injury upon any party, whereas it would prove a great security to purchasers, and a boon to the public generally. In some settled estates, it might be for the advantage of all parties that they should be sold; but at present the difficulties in the way of such a step were insuperable. But under the new law parties might go into the Court of Chancery, and it would behove that Court to see that the proceeds of that estate should be disposed of according to its original design. The Bill then provided for the abolition of the Incumbered Estates Court, and for the transference of the business to the Court of Chancery. The powers of the Court would be enlarged, and its practice simplified. The remaining portion of the Bill referred to the gradual reduction of stamps and fees in the Court of Chancery. Upon inquiry into the existing practice of that Court, it was found that one of the greatest evils that presented itself was, that at every stage of the business the suitor was impeded by fees he had to pay before he could take any fresh step. That was found to be not only grievous, and to be an impediment to the administration of justice, but it interfered with the safety of the public in another way—that of withholding due publicity. At present, a person could not find out whether a suit was pending in the Court of Chancery without paying in the first place a fee for search. If a copy of any document was wanted, considerable fees had to be paid—in fact, every stage of the proceedings was beset with difficulties of that kind. The Commissioners of the Incumbered Estates Court attached the highest possible importance to publicity, and it would be provided by the present Bill, that every man in the community, without paying a shilling to any one, should be enabled to proceed to the offices of the Court and inspect petitions, affidavits, and documents, as he pleased. One result of this would 195 be, that when a man saw an estate for sale on which he supposed he had a claim, he might go and inspect all the documents bearing upon it, and if he found that he had made a mistake there would be an end of the matter. By such means an enormous amount of expenditure and inconvenience would be saved. In order to give the same facilities to the suitor under the new jurisdiction, it was proposed to reduce these fees which impeded the administration of justice, or which interfered with the rights and privileges of the suitor, and to abolish some altogether. To do that without injury to the public revenue appeared at first sight difficult, but it was calculated at present on a low aver-age the money distributed by the sale of estates under this new code would be about £2,000,000 a year—indeed, it appeared that the average sales of the In-cumbered Estates Court had exceeded £4,000,000 annually. The Bill proposed that a very moderate poundage should be deducted out of the purchases of estates sold, and it did not appear unreasonable that if parties came into these Courts, and accepted the benefits of a Parliamentary title, they should consent to be taxed to a small extent in return for so great a boon. It was proposed that the newly-constituted court should be autherised to make a deduction of not more than 2 per cent upon such sales. At the same time he thought that 2 per cent would yield a great deal more than would be sufficient for the purpose. It was contemplated by the Bill that the Court should form a scale of deductions which should apply to all cases that might come before it; for instance, upon an estate producing £50,000 2 per cent would be too much. Probably 2d. or 3d. in the pound would be sufficient. Again, on an estate of £1,000 2 per cent or £20 would not press with undue severity; upon the Court itself, therefore, would be imposed the duty of framing a scale of poundage, but in no case to exceed 2 per cent, and he hoped that in such a way the burden would not be severely felt. In the Court of Chancery in Ireland, suitors were called upon to pay 2½ per cent in the form of "ushers' poundage," for which they demand no benefit, and a great part of which, it was his belief, went into the pocket of a noble Earl. The produce of sales under this Bill would not be subject to ushers' poundage. He had made an inquiry as to how much was produced last year by 196 stamps upon proceedings in the Court of Chancery in Ireland, and he thought the amount was under £18,000, so that if they could make up by the deductions upon purchases he had recommended £20,000 or £25,000 a year, they would soon be in a position to reduce stamps and fees considerably. In addition to these parts of the Bill there were some miscellaneous provisions which he need not trouble the House with at present. He might say with the utmost confidence, that there had not been laid upon the table of that House for many years—a Bill bolder in its character or nature, or one which promised to work reforms more beneficial to the public at large. He hoped that, under the operation of this Bill, the Court of Chancery in Ireland would be a pattern to all others for the facility of its practice and procedure, and it would be the means, through its enlarged powers, of enabling every owner, if he pleased, to sell his estate and give sin indefeasible title. He was perfectly aware that in the earlier stages of its existence the Incumbered Estates Court pressed hardly upon some persons, and especially on the owners of incumbrances; but they were times of peculiar difficulty. These times had passed, circumstances were altered, and he believed that the public would not be satisfied unless the continuance of the powers of that Court, in their main principles, was provided for. He stated further, most confidently, that neither the members of the legal profession nor the public at large would be satisfied unless a larger jurisdiction were granted, which would enable every owner to sell his estate with a Parliamentary title, it being at the same time compulsory upon none. There was a Commission now sitting upon the subject of registration of titles. The difficulties in the way of that Commission were very great, if not insuperable; but if the Commissioners could agree upon a measure accomplishing that object, this Bill would not impede and would greatly facilitate their operations, and a procedure would be in existence ready to carry out the recommendations of that Commission, whatever these recommendations might be. He begged leave to place this Bill upon the table, and he most sincerely hoped that his predictions as to its great benefits would prove to be well founded.
MR. WHITE SIDE
said, he thought that the law of political retribution had been singularly exemplified that night. 197 Three years ago he had asked for leave to introduce a Bill to engraft the principles of the Incumbered Estates Court into the system of the Court of Chancery. When Parliament had adopted that principle, it appeared to him that it could not be good for the Incumbered Estates Court, if it were not also good for the Court of Chancery. He unluckily had not on that occasion asked to create any new court, or for any new salaries; but, although he was right in his views, he was in the minority, and was defeated. All that he had attempted to do by his Bill was, to confer on the Court of Chancery the power to give, in the case of estates sold by it, a Parliamentary title to purchasers. He, at that time, said that the Incumbered Estates Court would be choked up, and he was contradicted. He then predicted that in a year or two they would hear the law officers stating so; and he suggested that it might be as well to sell as many estates as they could in the two Courts. It must appear to the House extraordinary how this Incumbered Estates Court should now be so choked up by business as was described by the Commissioners, after it had been characterised by the rapid sales which it had, in the first instance, made. The cause of the success of that Court at first, and of its subsequent failure, deserved the attention of every hon. Gentleman. The hon. and learned Solicitor General for Ireland had referred to a valuable Return, which stated that cause. At first the Court had to deal with 800 or 900 chancery suits, in which all necessary inquiries had been made, the rights and liabilities of the various parties had been ascertained, and nothing remained but to sell the property and distribute the money. Every one exclaimed, "See how they are knocking down estates;" and so they did knock, them down with the rapidity of lightning, but with very ruinous consequences to the owners and puisne creditors. A large quantity of land had been flung into the market, and estates had been sold for ten years' purchase, which, at the present time, were bringing twenty and twenty-five years' purchase. The general wonder had been how the Incumbered Estates Court proceeded so fast; but the Commissioners had been allowed to make use of decrees and reports of the Court of Chancery—the Court that had ascertained the rights of; the creditors. So long as they had these estates to deal with they got on with great rapidity; but the case was different when 198 the Incumbered Estates Court became a court of law and a court of equity, as well as a court of sale and conveyance. And one of the clauses in the Act, to I which he was astonished that any English Gentleman should ever have consented, provided that there should be no appeal from the Commissioners sitting in a dark house in Henrietta Street, unless they could be convinced at the time they gave a decision that they were mistaken in doing so—unless they could be persuaded that they were wrong at the time they said they were right. The influence of public opinion was at last felt, an appeal was granted, and 40 per cent of the decisions of the Commissioners were then overruled by the Judicial Committee of Privy Council. And such it must ever be. In saying this, however, he did not mean; to imply a reproach on these Gentlemen, for he was only astonished that they had ! done so well. "But," said the Solicitor General for Ireland, "there was great publicity in their proceedings, and the tribunal was a cheap one." Let the House see what the attorneys got by this "cheap tribunal." The Court was supported by means of an annual Vote, consequently there were no fees and no stamps; yet up to the date of the blue-book before him the attorneys got amongst them £254,770 1s. 6d.; the surveyors, £27,534 0s. 3d.; the valuators, £14,026; and the newspapers for advertisements, the trifling sum of £77,598 6s. 10d. And he now distinctly asserted that it was more expensive to sell a small property in that Court than by private contract elsewhere. They had heard much of the economy of the proposed measure; but he would advise that the contemplated reform should be looked sharp after in that respect. It was important for the House to see what they were about. The sixteenth recommendation of the Commissioners was, that the stamps and fees on all proceedings in Chancery should be abolished, and the Solicitor General for Ireland had truly observed that he found it difficult to ascertain what the exact revenues of the Court of Chancery now were; indeed it would be difficult for anybody to discover it, who did not look into the matter very minutely. Within the last few days his (Mr. Whiteside's) noble and learned Friend Lord St. Leonards had informed him that he encountered the same difficulty when he was Lord Chancellor of Ireland; but he went to work, and the paper he ad- 199 dressed to Mr. Goulburn in 1844 set forth the entire income of the Court. Now the moment a reform was attempted, it was invariably the case that a long list of claims for compensation was presented to the reformer. Thus, with regard to the Six Clerks in England, it was a painful fact that the abolition of their office cost the country not less than £60,000 a year. Well, the Six Clerks were abolished in Ireland, but the funds went into the pockets of the solicitors, who got upwards of £14,000 a year out of one of these funds, and in the end, the fund to maintain the Court became, in a measure, bankrupt, and the Consolidated Fund had to make up the balance. The stamps and fees of the Court of Chancery in Ireland amounted to nearly £26,000, and by this measure of the hon. and learned Solicitor General for Ireland they were asked to abolish them. It behoved the House, then, seriously to reflect upon this proposition before they approached the consideration of a measure which affected, as this did, property to the extent of millions in value. The Incumbered Estates' Commissioners recommended in their Report that stamps and fees upon all proceedings in Chancery should be abolished. Now, he subscribed to the fairness of that recommendation in the abstract, but, as a practical man, he wanted to know, if these stamps and fees were abolished in the Irish Court of Chancery, how they could be maintained in England? If they were abolished in the superior Courts, how could they retain them in the inferior Courts? Look at the return from the County Courts in England, and see what had been levied upon the poor persons who resorted to these tribunals, in the shape of fees, and so forth. He had had the curiosity to inquire into the matter, and found that from the year 1847 to 1854 there had been levied in Judges' fees £364,600, and in clerks' fees £357,700. Was the Treasury or the Chancellor of the Exchequer conscious of what would follow from the extension of the principle to these Courts? Follow it out to its legitimate conclusion— let all fees and stamps be abolished—and the Treasury must be prepared to make the trifling advance of something more than £1,000,000 yearly. His (Mr. White-side's) plan was to have a moderate stamp, for the purpose of covering the fair expense of the Court, and he disclaimed now and for ever any idea of asking for Ireland a boon which was not also granted to 200 suitors in England. He believed it to be a thing no longer to be insisted upon, and he was quite ready to abandon it for ever. Therefore, he did not wish to see the principle carried out in reference to the Irish Court of Chancery, unless they were prepared to extend it honestly to all the tribunals of the empire. The right hon. Gentleman was not then present in the House who once pave a hint to his right hon. and learned Friend (Mr. Napier), that whenever a new Bill came from across the water, he always looked into it attentively with the expectation of finding a job. He (Mr. Whiteside) was not trying to discover a job, but wished to direct the attention of the House to a financial consideration of material importance. The Commissioners, at their meeting on the 31st March, passed the following Resolution: —That the transfer of the powers of the In-cumbered Estates Court to the Court of Chancery can only be recommended by the Commissioners on a reasonable expectation that the present officers and staff of the Incumbered Estates Court shall, so far as may be reasonable or necessary, be transferred to the Court of Chancery.The upshot was this. When Parliament established the Incumbered Estates Court, a distinct warning was given to all persons who were employed in it that they would have no claim for compensation, but would be well paid in salaries for their services. From time to time, as the business of the Court grew in amount, the salaries were increased; and the effect of the Resolution passed by the Commissioners went to quarter the whole staff of thirty individuals upon the country for the rest of their natural lives. At the next meeting of the Commissioners, however, the question was raised whether the Resolution should be maintained or not? It was decided in the negative, and thereupon the Resolution was struck out. But, to his utter astonishment, the substance of the same Resolution, in words not quite so strong, was afterwards substituted for it. Now, what was the meaning of this measure? It said as plainly as possible, "Push out the Masters and their staff; and as the officers of the Incumbered Estates Court have no claim for compensation, compensate for life the patent officers of the Court of Chancery, and carry on the work with the Incumbered Estates Court staff"—by men who, in fact, were not acquainted with the practice of the Court of Chancery—" let them oust the old officers of the Court of Chancery, and become them- 201 selves permanent fixtures for their natural lives. "The Solicitor General for Ireland had asked them to create two Vice Chancellors, and four other good fat offices in the shape of clerkships; but he also called upon them to abolish four officers, from one of whom he had received a minute account of the labour these gentlemen had to perform. When the Chancery Regulation Act of Sir John Romilly was passed, these four officers became, under the title of Masters, Vice Chancellors in reality, and did all the work of the Court. Master Litton, one of the gentlemen to whom he referred, stated, in relation to the general scope of his (Mr. Whiteside's) Bills, that he was of opinion that, taking them together, they formed a code of equity jurisdiction and equity practice which, if carried out by competent men, would present a vast improvement on the existing plan; that the giving to one set of men jurisdiction to do all that was necessary to effectuate the rights of suitors from beginning to end, and power to adjudicate on these rights, was a vast improvement on the present divided jurisdiction, which rendered it necessary for different Judges to entertain the same case. That was the principle upon which the Bill he (Mr. White-side) asked permission to introduce was founded. Mr. Litton also stated, that with the staff the Bill provided—two of whom were already in existence, the one thirty-eight and the other forty years of age—all the business could be transacted that would be cast upon them by the Bills; and he added, emphatically, that since the passing of Sir John Romilly's Act, nine-tenths of the equity business of the country had been done by the Masters in Chancery, and that of the whole number of cases he had decided, there was but one upon which an appeal had been made, and that, with reference to that case, the question still remained open who was right. Well, Master Brooke and Master Murphy, being competent Vice Chancellors, without the rank and without the pay, whilst they did the work, his short proposition was, that if they were competent to do the work, and to do it so well, as the Solicitor General for Ireland had himself stated, they should continue to do it still. Moreover, was the House prepared to adopt the proposal of the hon. and learned Gentleman to throw the entire arrear of business existing in the Incumbered Estates Court upon the Court of Chancery? Now what did the House suppose was that arrear? It was posi- 202 tively alarming, for there were not less than 1360 cases altogether untouched ! Now, the papers of the Court of Chancery were kept in as beautiful order as the books in the library of that House; the papers in the Incumbered Estates Court were, on the contrary, a heap of confusion. It was certainly a strange way of facilitating the disposal of these arrears to throw them into the Court of Chancery, which was hard pressed to keep clear with its own proper business. He was informed that it would be impossible for the Court of Chancery to dispose of such an enormous mass of additional business, unless something was done to arrange the records of the In cumbered Estates Court, which were now in such a terrible state of confusion that, as the Solicitor General for Ireland had wisely said, the best thing that could be done with them would be to burn them. The argument of the Commissioners was, that the Masters, whose offices were to be abolished, would be occupied in winding up the Chancery arrears; but they had no arrears. He had been told by one of them that a summons could be issued on Monday for a hearing on Wednesday, so that the effect would be that these Masters would get their retiring pensions after about one week's work. But the business in the In-cumbered Estates Court was so great that three Commissioners, with a staff of thirty clerks, had got matters into such a state that they were completely blocked up, and yet it was now coolly proposed to give this over to two Vice Chancellors, who were expected to dispose of it in addition to the regular business of their own Courts. He earnestly appealed to the House to save the gentlemen of whom they had heard so high a character from this infliction, and to let them do their own proper work. There was one point in relation to which it was necessary that he should correct the hon. and learned Solicitor General for Ireland; it was this—the real author of the Incumbered Estates Court was Lord St. Leonards, who, having been consulted by the late Sir Robert Peel on the matter, suggested the establishment of a tribunal of this nature. He was afterwards asked to preside over it by that great statesman, but this the noble and learned Lord declined to do. What was the recommendation of the great authority to whom he alluded? It was this. There were a number of incumbered estates, and a large body of proprietors who could not pay off the incumbrances; the existing Courts 203 had a right to work off the sale of estates, but they were slow in their operations; all that Parliament did, therefore, in forming the Incumbered Estates Court was to facilitate the sale of incumbered estates, and to give an indefeasible title when sold. But what was it the Solicitor General for Ireland now proposed to do? Why, to turn the Court of Chancery into a great conveyancing engine—in other words, to put all Ireland into Chancery. There was not an acre of ground in any county, nor a house in any city, in Ireland, that might not go into Chancery; and let the House of Commons consider what the consequences of this new provision would be. First of all, he (Mr. Whiteside) should move to extend it to England; for whenever any new principle respecting property in either country was broached hereafter, he should insist upon its being extended to both countries. Why should be do that? There was a rental of £5,000,000 in Ireland belonging to English proprietors, and held under the same title deeds, wills, and settlements, as their rentals in England; yet it was now gravely proposed to sell and dispose of the estates in one fashion in Ireland and in a totally different one in England. He (Mr. Whiteside) strongly objected to that, and in doing so felt that he was proving himself, not only a good Irishman, but a good Englishman also. The two new Vice Chancellors, therefore, were not only to do all the work which five Masters had with difficulty been able to ! get through—to dispose of business which had proved too much for three Commissioners and thirty clerks—but to transact all the private conveyancing of the country into the bargain. He had expected the hon. and learned Gentleman would have produced evidence with regard to what the private conveyancing of Ireland amounted to. Why not, for this purpose, have examined the clerks in the Registry Office and the leading members of the profession in Ireland? He himself, on inquiry at the Registry Office, had learned that the number of conveyances registered last year alone was either 9,000 or 9,200—he believed the latter. But, at the same time, he did not mean to say, that the whole of that number would be brought before the Vice Chancellors. Take half the number only, and then imagine two Vice Chancellors, with all the business of the Court of Chancery, and the arrears of the Incumbered Estates Court, undertaking in addition thereto the private conveyancing of 204 Ireland ! He did not wonder at the hon. and learned Gentleman observing that it was a "bold proposal." For was it not contrary to the very nature and existence of a judicial tribunal, whose duty it was to decide on the rights of property? It must be remembered likewise, that this, too, was to be done at the expense of the State, for there were to be no stamps in the Court. What would the Secretary of the Treasury say to that? If this proposal became law, any man might come into the Court and say to the Vice Chancellor— "I 've got an estate to sell; sell it for me; here are my deeds, convey them for me without any expense to me." Such a state of things, if sanctioned, could not but result in ruin and misery to thousands, The Solicitor General for Ireland had referred to a Bill before the other House of Parliament respecting the leases and sales of settled estates, and also to a measure which it was proposed to introduce for the registration of title in England. That measure might be a very useful one, but he wished to be informed whether it was intended to permanently adopt a principle of law for Ireland directly opposed to that which obtained in England? If such a course were proposed, he could only protest against it as being unwise, inexpedient, and unstatesmanlike. The Master of the Rolls in Ireland had himself expressed the opinion, that to make the Court of Chancery the agent for conducting the conveyancing business of Ireland, would be to make the title of every landholder in that country depend upon the opinion of barristers of about fifteen years' standing. If this principle were recognised at all, why should it not be extended? Why should not a general dealer come to the Court and say, "My affairs are in great disorder and confusion; pray set them right for me"? With regard to the Incumbered Estates Court Commission—and he must say that he was beginning to lose all confidence in Commissions—he felt great doubt as to its authority in laying down a code for the Court of Chancery as regarded this subject, and not only that, but in fixing the salary of the officers, whom it would be necessary to appoint, for these matters formed no part of the inquiry which they were directed to make. It had been stated that persons incumbered their estates for the sole purpose of disposing of them in the Incumbered Estates Court, but he could not find that any case of that kind had been brought before the Commission. 205 One witness, Mr. Smith, a barrister, had stated that such a thing might be done, but was it, he would ask, likely, that any Irish gentleman would mortgage his estate simply for the pleasure of selling it in the Incumbered Estates Court? He (Mr. Whiteside) objected also to the legislative power which the hon. and learned Gentleman proposed to give the Lord Chancellor in Ireland, as fraught with the most serious evils. Whatever the Lord Chancellor, the Solicitor General, and other authorities of the law in England thought proper to propound for this part of the United Kingdom, he would be willing to adopt for Ireland; but he protested against subjecting Ireland to an experiment of this nature, for, as the Master of the Rolls had justly said, there was no reason now for different laws for the two countries. He was glad the measure of the hon. and learned Gentleman recognised the principle of a Court of Appeal, but be thought the Chancellor's decision might be re-heard. He should like to see that Court of Appeal in the Court of Chancery itself, and for this purpose he should constitute ex-Chancellor Blackburne, whose present retiring pension of £4,000 a year should go in part payment of a salary of £5,000 a year, and the Judge of the Prerogative Court, with the same amount of salary as a Court of Appeal. Thus, the cost to the country would be very small, at the same time that the benefits would be great. He was pleased to find that the measure had been introduced so early in the Session. What was good in it ho hoped would be accepted; but he warned the House how they threw the whole of the conveyancing business of the kingdom into the Court of Chancery, and empowered it to regulate the private affairs of the subject.
§ MR. CAIRNS
said, be thought that there had been few questions brought before the House more important than the present one. It was important, not only because it proposed amendments in the Court of Chancery in Ireland analogous to these which had taken place in England, but because it also proposed to deal with the transfer of real property. He did not know if any Member of the House, being largely interested in landed property, had taken the trouble to consider how much its value was deteriorated by the expenses incident to its transfer. Some had suggested that there was no reason why land should not be transferred as simply as stock, as a saving would thereby be made 206 of about 10 per cent. However that might be, he (Mr. Cairns) thought the measure proposed a wise experiment, and would not only benefit Ireland, but tend to the improvement of the law as it regarded real property in this country. He had been asked by persons in Ireland why, if a man had incumbered his estate he could, by placing it in the Incumbered Estates Court, have the benefit of a sale by the Court with a Parliamentary title, while, if he bad not incumbered it, he must go to the expense of having it valued and paying the auctioneer, and putting it up to sale himself, and thus lose, it might be, from £100 to £1,000? He never had been able to answer that question. The Commissioners had considered it, and had seen no reason why the principle which had been adopted with regard to incumbered estates should not be extended to unincumbered ones. The hon. and learned Member for Enniskillen (Mr. Whiteside) had said that the Commission had gone beyond its authority in inquiring into the practice of the Court of Chancery, but the very words of the Commission itself contradicted that assertion. The Commission had said, that unless the Court of Chancery was reformed, it would not recommend the transfer of the jurisdiction of the Incumbered Estates Court to the Court of Chancery; but that, if it were reformed, they would recommend its transfer with extended jurisdiction; and it was therefore necessary to state the reformation which they considered necessary for that purpose. The hon. and learned Gentleman had also said that they were going to transfer the conveyancing of the whole of the landed property in Ireland to the Court of Chancery. But no uuincumbered estate could be brought into Court except by the will of the owner, who would not adopt that mode of selling his estates, unless he felt it to be to his interest to do so. The hon. and learned Member had further stated that inquiries ought also to have been made as to the number of deeds in the Registry Office; but such an inquiry would have been useless, for the number of deeds upon a sale that were registered did not exceed, he believed, a tithe of the whole number of registered deeds. But if the number were even one-half at the present time, that was one of the evils which was sought to be remedied; and he believed that where 4,000 were registered now, if the proposed alterations were carried out, for the future there would 207 be only one-tenth of the number. It was no new principle for the State to take upon itself the management of the transfer of property. It already did it with regard to incumbered estates, and in every foreign country where the civil law prevailed, transfers of property were regulated by judicial proceedings. In the next place the hon. and learned Member said that the Master of the Rolls in Ireland had expressed his opinion that it was not wise nor judicious to introduce such an experiment into the law of Ireland. For the opinion of the Master of Rolls in Ireland no one had a more sincere respect than himself (Mr. Cairns). He had looked at his evidence, and found that he (the Master of the Rolls) said that, according to the 4th section of a particular Bill then before Parliament, the security of every landowner would depend upon the legal knowledge of the barrister, or the integrity of the solicitor who prepared the abstract of title. The Bill, a section of which was so referred to, was one entitled "A Bill for Securing the Titles of Purchasers of Estates sold under the Court of Chancery in Ireland," which was introduced into that House during the last Session of Parliament by his hon. and learned Friend (Mr. Whiteside). The opinion of the Master of the Rolls was, therefore, as much opposed to the Bill of his hon. and learned Friend as to the Report of the Commissioners, and had therefore, he thought, better not be quoted. His hon. and learned Friend said we ought not to legislate for Ireland other than we should be prepared to legislate for England, and in that he entirely concurred with his hon. and learned Friend. But when his hon. and learned Friend said there ought to be no exceptional legislation for Ireland, and condemned this measure on that ground, he went a little too far, for his hon. and learned Friend had himself, during the present Session, short as it was, brought in a Bill for securing the titles to purchasers of estates sold under the Court of Chancery in Ireland, knowing well that no such Bill would be brought in for England, or was needed, and therefore it was so far exceptional, and must be so. He believed this experiment of the Solicitor General for Ireland would succeed, and he hoped to see it applied to England. Upon the question of fees he owned he differed from the Government in the plan which his hon. and learned Friend had sketched. It was proposed to levy a poundage, not exceed- 208 ing 2 per cent, in order to pay the expenditure of the establishment. Great injustice would be done in many cases if this scheme were adhered to. As for instance, where a trustee had erroneously or wrongfully dealt with an estate, was the owner of the estate to be mulcted by a poundage of 2 per cent out of his own property? There were two principles as to fees upon which they might proceed—either to make the unsuccessful party pay, or to make the State pay. One-half of the cases which came before the Court of Chancery did not end in a sale. For instance, cases regarding the construction of wills, and many other cases to which it would be most unjust to apply the provisions of this measure. He hoped that the House would be slow to adopt any such system, and that when they went into Committee on the Bill his hon. and learned Friend the Solicitor General for Ireland would submit some more satisfactory scheme for providing for the expenses. As to Masters in Chancery, he must say he thought it desirable entirely to abolish the office of Masters in Ireland, as they had been abolished in England; and, unless they had been abolished in the latter country, the present law would never have worked. The same rule, according to his hon. and learned Friend's own showing, ought to be applied to Ireland. But, said his hon. and learned Friend the Member for Ennis-killen, the arrears in the Incumbered Estates Court under the present system are frightful, and the Court of Chancery, if they are sent there, will be unable to get through them. Now, this question had been fully considered by the Commission, and Dr. Longfield and Mr. Brewster had given their opinions that two Vice Chancellors and the Master of the Rolls, with their staff, would he quite competent to clear away all the arrears of the Incumbered Estates Court. Before sitting down, he would beg to point out a mistake which had been committed by the hon. and learned Gentleman the Member for Ennis-killen as to the English Master of the Rolls not having given more than one day's attendance upon the Commission. On the contrary, he asserted that Sir John Romilly had given the whole subject his best attention, and carefully weighed every sentence in the Report, devoting many laborious hours of his vacation to the work of the Commission.
§ MR. MALINS
said, he regretted that he could not share the agreeable antici- 209 pations of the hon. and learned Gentleman the Solicitor General for Ireland with respect to the probable effects of his measure. He (Mr. Malins) had had a great deal to do with titles, and was certainly struck with the boldness of the proposition then before the House—that the Court of Chancery should become a vast conveyancing machine for all Ireland and for England also; for he agreed, that if adopted in one part of the kingdom, it must be extended to the other. He was anxious to simplify titles, but could not believe that that desirable object was to be attained by converting, as this Bill would not fail to do, the Court of Chancery, both in this country and in Ireland, into one vast conveyancing office. The Bill, so far as it related to this subject, he considered was unnecessary, and he had not the least doubt that it would prove impracticable and end in complete disappointment. It was a mistake to suppose that it was identical in principle with the Bills which the hon. and learned Member for Enniskillen (Mr. Whiteside) laid upon the table last Session; for these measures were designed to apply exclusively to in-cumbered estates, the management of which it was their object to transfer from the Incumbered Estates Court to the Court of Chancery. It was not to be denied that in the former Court there were abuses which urgently demanded reform. Its proceedings were circuitous and dilatory to a degree unknown to Chancery, and he was informed that it was no uncommon thing for several months to elapse before the simplest order relating to purchase money was carried into effect. Say what they might, this contrasted very unfavourably with modern Chancery practice in England, where it was well known that orders were now expeditiously enforced, and where an application to the chief clerks of the Judges for an appointment would be sure to be acted on in a few days. Now, selling estates was only a small part of the business of the Court of Chancery—though, of course, where there was an administration trust, and the Court had to distribute the produce of real; estate, it was of course necessary to sell it; and so also under the improved practice introduced by the Acts of 1852, it was now, ! with great advantage to the public, enabled to sell an estate at the suit of mortgage. In this respect much benefit had resulted from the alteration of the practice in 1852. The difficulties of titles, of which so much 210 had been heard, was greatly exaggerated. Anybody would imagine, to hear all that was said upon the subject, that there never was a clear title to land in England, whereas in the great majority of cases, either under a decree of the Court, or a sale by private contract, the sale could be completed in a few months. It had been suggested that the title of land should be as simple as the title to stock, hut hon. Gentlemen did not reflect that the peculiarity in connection with stock was, that the Bank of England were not bound to take notice of trusts. Land, however, was very different, and unless wives, children, younger brothers, and so on, upon whom land might have been settled, were to be defrauded in all directions, the transfer could not be made so easy as the transfer of stock. But, suppose there were a sale, the proceeds had to be retained until all questions in dispute had been settled, and it was not that which was now proposed to be remedied. Of a list of 501 causes set down for hearing in the Court of Chancery in England for the sittings commencing next Thursday, there was hardly a cause in any of the four Chancery Courts, except, perhaps, that of Vice Chancellor Wood, where the pressure of business had been extreme, that had been in the list more than two or throe months. He had heard with surprise, that it was the intention of the Government to clog the two Vice Chancellors who are to be appointed under this Bill with the arrears of business of the Incumbered Estates Court. The hon. and learned Member for Belfast (Mr. Cairns) appeared to suppose that the hon. and learned Member for Enniskillen by his Bill proposed to retain the Masters in the Irish Court, but he (Mr. Malins) did not so understand it. With regard to the abolition of the Masters of the English Court of Chancery, without meaning anything disrespectful towards the individuals, he considered that by their abolition the Court of Chancery in England had been saved, the system having been worn out. This was certainly a very essential part of the hon. and learned Gentleman's Bill, but while he suggested the abolition of their offices, he at the same time proposed, although it appeared the present Masters were men of ability and in the prime of life, that instead of being promoted to be Vice Chancellors, for which it is stated they are fully competent, they should be pensioned off on full pay. He did not pretend to give an opinion as to their competency or incompetency to under- 211 take and satisfactorily perform the duties of Vice Chancellors, but the general opinion was in their favour, and if they were competent to discharge the duties, he considered it was a sound principle to act on, that of promoting men in the prime of life to perform certain duties, rather than pension them off and engage and pay others to discharge these duties. Allusion had been made to the abolition of the Six Clerks of the English Court of Chancery, but he thought that what the Legislature did in respect to that was anything but a creditable proceeding. By that proceeding the Six Clerks retired with pensions of from £6,000 to £7,000 each per annum, with a reversionary pension to their widows, whilst the Vice Chancellors, who really did the business of the Court of Chancery, had only £5,000 a year each. By a recent alteration relative to the Masters, the country was called on to pay £30,000 per annum, whilst other persons had been appointed to discharge duties which they were fully competent to perform. It therefore made it imperative on hon. Members to watch well the proceedings of the Government, and prevent such things from being repeated. Whatever they did with reference to these Courts, he begged to remind the House that the officers of the Incumbered Estates Court accepted office with the distinct understanding that they would not be paid compensation. He was one of these who was at all times willing to pay every man liberally, who proved himself capable of satisfactorily discharging his duties, and was averse to casting him off unprovided for, therefore he would say, that in establishing new Courts in Ireland —and he concurred in the appointment of two Vice Chancellors for Ireland—retain all the officers of the Courts whom they found capable of performing their duties, and at the same time reasonably compensate these whom they thought it prudent to dispense with; above all things avoid pensioning off men in the prime of life upon their full salaries, for the time had arrived when it was the duty of that House to take care that better bargains than that should be made with parties whose offices were to be abolished. He would give this Bill his best attention, and when the proper time arrived would, in concurrence with his hon. and learned Friend the Member for Enniskillen, enter fully into its details. He urged the Government, in the event of their creating two Vice Chancellors, to avoid clogging them with arrears of busi- 212 ness. If they established new Courts, let them begin clear; but if they clogged them with the arrears of the Incumbered Estates Court, they would have a repetition of these evils that had already arisen in the Irish Court of Chancery; and instead of being a blessing to Ireland, they would inflict the greatest amount of injustice and injury to that country in attempting that which was impracticable.
§ MR. GEORGE
said, he felt bound to defend the Master of the Rolls in Ireland with reference to the evidence given by that learned Gentleman on the necessity of an Incumbered Estates Bill for that country, which he considered called for by the exceptionable state of the country, but which should, as soon as possible, within a limited period, be abolished. He objected to the extraordinary powers proposed to be given by this Bill to the Lord Chancellor of Ireland, to dispense with the Masters of these Courts, and allow them in the prime of life to retire on their full salaries, whilst the clerks and examiners were left at the mercy of the Treasury. He considered the system of allowing men, who were both young and capable of discharging the duties of their office, to be compensated for the remainder of their lives for doing nothing, had gone too far both in England and Ireland, and that it was high time a stop should be put to it. At the present time numbers of gentlemen, in the full vigour of life, and possessing abilities to discharge their duties, wore to be seen walking the streets of Dublin with nothing to do, and the country saddled with their retiring allowances, and also these of the new appointments. The In-cumbered Estates Court was one suitable to an extraordinary state of things and time, and it was announced at the period of its creation that the staff appointments would only be temporary, but it appeared they were looked upon, like these of the Court of Chancery, as freeholds for life, or during good behaviour. He thought it a monstrous system of legislation that allowed any Government or judicial authority to say to an official, without good cause being first shown to the contrary, "Go about your business—your services are not suited to our purposes, but the country shall still pay you your salary;" and to others, not competent, "We appoint you to a new office, and the country must pay you." He trusted that when the Bill came before the House these clauses would be carefully examined, and no such 213 wrong as that complained of be permitted cither to the present holders of offices or the country. It was the duty of those who had to look after the finances of the country to see that the expenses of the establishments of the country be not doubled in this manner, but that men capable and willing to continue in the discharge of their duties should be allowed to do so.
§ MR. V. SCULLY
said, that the opinions of the Master of the Rolls in Ireland upon the subject of the easy sale and transfer of land were, in point of liberality, in advance of the recommendation of the Royal Commissioners, and that that learned Judge thought that there ought to be no more difficulty about the sale of an estate, whether incumbered or unincumbered, than about the sale of Government stock. The Commissioners had, however, fallen in with the view of a distinguished member of the Commission, the Right Hon. Francis Blackburne; for it was well known that that right hon. and learned gentleman had, when Lord Chancellor of Ireland, prepared a Bill to transfer the business of the Incumbered Estates Court to the Court of Chancery, and he (Mr. Scully) was not sure that the Bill that night introduced by the hon. and learned Gentleman the Member for Ennis (Mr. J. D. Fitz-Gerald) was not the identical one prepared by Lord Chancellor Blackburne. That hon. and learned Gentleman had insisted on the necessity of identity of legislation for the two countries; but no man in that House had ever gone so far as he (Mr. Scully) had gone in insisting on that point, for he recollected that he had, on one occasion, said that he preferred that Ireland should share in bad legislation with England rather than have the exclusiveness of good legislation—and for this reason: he knew that if Ireland was to-day in the enjoyment of good laws she had no security that they would not be repealed to-morrow. And that if, on the other hand, she suffered under bad legislation in common with England, there was every security that it would be very soon remedied. It was now well known that the Incumbered Estates Court had been established on the plan laid down by Lord St. Leonards, although such had not been the case when it was first introduced into the House, and when it was so fiercely assailed by Vice Chancellor Stuart and the other friends and adherents of his Lordship. The proposition before them was, he thought, a 214 step in advance of the original measure, as it would give to the proprietor of an incumbered estate the same advantages which the proprietor of an incumbered property at present enjoyed. He did not concur in that part of the Bill which allowed the Jurisdiction with regard to land to be mixed up with the jurisdiction of the Court of Chancery. He had always advocated a separate tribunal for dealing with land, and he did not see why such a tribunal could not be made a branch of the Court of Chancery under this Bill. The benefits, however, which would be conferred by the Bill were much superior to any injury that would be occasioned by the arrangement to which he objected, and he therefore would cordially give his assent to the introduction of the measure.
Leave given. Bill ordered to be brought in by Mr. SOLICITOR GENERAL for Ireland, Mr. ATTORNEY GENERAL for Ireland, and Mr. HORSMAN.
§ Bill read 1°.