§ Order for Committee read.
§ MR. WHITESIDE moved that Mr. Speaker should leave the Chair, in order that the House might go into Committee on this Bill.
§ Motion made and Question proposed, "That Mr. Speaker do now leave the Chair."
§ MR. J. D. FITZGERALD
, in rising to move that the measure should be referred to a Select Committee, said that so far was he from being hostile to it that if he thought that its reference to a Select Committee would endanger its passing this Session, or would not be the most convenient course, he would withdraw his Motion. The Bill upon which there had as yet been no discussion, was one of a most important character, and it was desirable 1539 that it should be thoroughly and carefully examined in order that it might pass in the best and safest form. As he understood it, it had four principal objects; first, to substitute for the Incumbered Estates Court a permanent tribunal, to be called the Landed Estates Court; secondly, to give to the new tribunal, in addition to the power to sell incumbered estates, jurisdiction to sell those not incumbered; thirdly, to give it power where there was a contract for the sale of lands specifically to carry that contract into execution, and to convey the estate to the vendee; and, fourthly—which was perhaps the most important and most novel provision of all—to give the Court power to examine any title and declare whether it was good or bad, so that if the Bill passed any one might call upon the Court for a declaration, which, if once given, established a title which would thereafter be indefeasible. The first three of these were principles for which he had been contending during the six years that he had occupied a seat in that House; but two of them, if not all three, had been as steadily opposed by the right hon. Gentleman opposite (Mr. Whiteside). Not quite nine years ago, in November, 1849, the Incumbered Estates Court first came into operation, and considering bow much of the progressive prosperity which had since fallen to the lot of Ireland was due to the action of that Court they ought to be very cautious in disturbing it, and to take great care that the substitute proposed was a safe and satisfactory one. The condition of a great many of the estates in Ireland at that time was well illustrated by the remark made by a tenant, when asked by a gentleman who had purchased an estate under the Incumbered Estates Act, why he had not made certain improvements. The tenant's reply was that during eleven years he had had seven different masters, who were all receivers of the Court of Chancery. Since the establishment of the court, a petition, signed by a large number of the most influential landowners in Ireland, had been presented to Parliament, praying that the Act should be extended so as to enable any proprietor who wished to sell his estate, whether incumbered or not, to have his title investigated by a competent legal tribunal. The members of the present Government had claimed the credit of being the first to propose the extension of the existing Act to unincumbered estates, but it was a fact that while in Opposition they steadily resisted the principles em- 1540 bodied in the present Bill. Still he was glad to find that they were now prepared to adopt principles which they so steadily opposed [Lord NAAS made a gesture of dissent]. The noble Lord seemed to doubt what he had said, but in proof of his assertion he might refer to the language of the present Lord Chancellor of Ireland, who called the measure monstrous, unrighteous, and unjust, ruinous to the proprietors, and fatal to the landed interest of the country. The Attorney General for Ireland also had opposed the Bill as an attempt to make permanent what he could never have supported, except on the ground put forward by the late Sir R. Peel, as a desperate remedy for a desperate state of things. A great deal of controversy had arisen as to the original authors of the incumbered estates system, but, as far as he could ascertain, the persons to whom Ireland was indebted for the introduction of that system were the noble Lord the Member for London Lord J. Russell, Sir John Romilly, the late Chancellor for Ireland, and, though last not least, the Right hon. Member for Stroud (Mr. Horsman), who so far back as 1847 advised the establishment of a court for the sale of incumbered estates. He found that up to the month of April last, landed property had been sold by means of the Incumbered Estates Court to the amount of £21,326,000. The number of Chancery suits it had put an end to—some of them of long standing—was 267. The number of Irish purchasers of estates sold by the Court was 7180, and the number of English, Scotch, and foreign purchasers was 309. Of the total amount of sales £18,000,000 were paid by Irish purchasers, and £3,000,000 by other purchasers, so that the operations of the Court had developed a vast amount of local capital, promoting in a surprising degree the social progress of the country. Perhaps the most gratifying fact connected with the working of the Incumbered Estates Act was the large number of purchases made by the actual occupiers of the land offered for sale. He mentioned these facts to show that in dealing with a system which had operated so beneficially, it was the bounden duty of the House to see that any measure to which it might give its assent was perfectly safe. So important did the Aberdeen Government consider the question in 1854 that they issued a Commission on the subject. That Commission, which consisted of Sir John Romilly, the Chancellor for Ireland, 1541 Sir Richard Bethell, Mr. Cairns, the Chief Justice of Common Pleas in Ireland, and others, after a very diligent inquiry, recommended that a Parliamentary title should be given to purchasers under judicial sales, and that the right to give such titles should be extended to all estates, whether incumbered or unincumbered, by whatever tenure they might be held, provided the titles should be submitted to judicial investigation and found to be satisfactory. Another recommendation of the commission was that the proposed jurisdiction should be vested in the Court of Chancery, which it was intended to reconstruct so as to enable it to discharge the new duties to be imposed upon it. The Commissioners were influenced, in making that recommendation, by the fear lest in creating a separate tribunal they would be creating two Courts of Chancery, with co-ordinate jurisdiction. In 1856 it became his duty to introduce a Bill founded upon the recommendations of that Commission; and he might state that on the Motion for the second reading of that measure the present Attorney General for Ireland expressed his decided opinion that it would be highly impolitic to create a jurisdiction for the sale of unincumbered estates. The Bill was ultimately referred to a Select Committee, with power to examine witnesses—a power he did not propose should be given in the present instance—and the result was, that the Committee agreed to drop the Bill and to propose instead, certain Resolutions which might form the basis of future legislation. The effect of those Resolutions was, that the Incumbered Estates Court should be perpetuated, that a Parliamentary title should be extended to all estates sold, whether incumbered or unincumbered, and that a distinct tribunal should exist, having power to give an indefeasible title. When those Resolutions were under discussion, it would be remembered that the right hon. and learned Gentleman opposite met them by a counter Resolution, to the effect that no exceptional tribunal should be permanently established, and therefore he was justified in saying that the right hon. Gentleman was throughout opposed to tins system. He would now examine the provisions of the Bill before the House. He had given notice of his intention to move that the Bill be referred to a Select Committee, because he thought that that would be the most convenient course of proceeding; but he had no objection to 1542 consider the Bill in a Committee of the whole House, if that should be deemed more desirable. He approved of the leading principles of the Bill, but he thought that it had not been prepared in the most workmanlike manner, and that every clause of it would require great consideration. In the first place, it was proposed to abolish the Incumbered Estates Court, and to substitute fur it an independent tribunal, to be called the Landed Estates Court. He had no objection to this arrangement in point of form, provided the system for the sale of estates in a free and open market was preserved unimpaired; but it behoved the House to see that they established those safeguards which would prevent the new tribunal from degenerating into a second Court of Chancery. It was proposed to give the new Court, jurisdiction over the sales of estates whether incumbered or unincumbered, the administration of the proceeds, and the settlement of all questions of equity that might arise on them. Further, by the 44th clause it was to appoint receivers, and to have the like authority over such receivers and the tenants of the lands under their management, and over the funds produced by the rents and profits, &c., as was now exercised by the Court of Chancery. Now, he must declare in the outset his objection to have the court armed with such authority, as this would be the first departure from the simple character of the Incumbered Estates Court. The first thing to be done was to facilitate the sale of the land, and thereby do away with the necessity of receivers altogether. By the next clause the new court was to exercise the jurisdiction of Chancery for the sale of settled estates under the Act of last Session. Now, he was of opinion that the object should be to limit the powers of the new tribunal as far as possible to the sale of land, and not to incumber it with all the inquiries and investigations which would necessarily arise upon the sale of settled estates. He found that by the 46th clause it should be lawful for any vendor or vendee, under any contract for a sale of an estate in land in Ireland, to present a petition to the court, and thereon the Court might make order for the specific performance of such contract, so that this Court was not only to sell the estate, but to exercise the very extensive jurisdiction in all its ramifications of enforcing the specific performance of contracts relating to the sale of land. He 1543 called attention to these points, because he believed that unless great caution were exercised a new Court of Chancery would be established. Another provision gave power to the new Court, in relation to any matter brought before it, of sending the case to a court of law for its opinion, and of directing issues of fact to be tried before juries. Such a power was a very proper power to be given to the original temporary tribunal; but he did not understand why the new court, which was to be a permanent one, should be incumbered by such a regulation, particularly after the Bill of the Solicitor General, which had passed through the House, gave to the Court of Chancery the power of trying all issues of fact raised before it. While every facility ought to be given for the sale of Incumbered Estates by the Court, he thought it desirable to narrow, as far as possible, the power of determining other questions not immediately referring to the sale of land. He wished in the next instance to call the attention of the House to the provisions of the Bill in respect to the present Judges of the Incumbered Estates Court, and in so doing he was anxious to bear his humble testimony to the learning, ability, and administrative talent displayed by Commissioners Longfield and Hargreave, and also by Master Flanagan. The Chief Commissioner, Mr. Martley, although he had not been so long in office, had entirely justified the nomination of his right hon. Friend (Mr. Horsman). Indeed, had not the Act been well administered, it would from the strong feeling at first entertained against it, at once have fallen to the ground. The powers of the Court were to be enlarged under this Act. The Judges were to have a new jurisdiction. They were to examine into titles, to carry out all the sales of the Court of Chancery, of the Court of Bankruptcy, and the Court of Insolvency, and yet the Bill proposed to reduce the staff from three Judges to two. Mr. Martley and Mr. Longfield were to be continued in their offices, but Mr. Hargreave was to be sent back to England in receipt of his full salary of £2,000 a year. If this Commissioner was to be superseded he ought to retire upon his full salary; but he must be permitted to add that it appeared to him most unwise to reduce the number of Judges at the very time when the proposed alterations would obviously have the effect of materially adding to the business of the Court. In the Bill which was brought forward in 1852, and in which it was 1544 merely proposed to give to the Incumbered Estates Court the additional power of dealing with unincumbered estates, the right hon. Gentlemen opposite (Mr. Whiteside) had been the first to exclaim against the impolicy of the then proposed reduction in the number of the Commissioners, on the ground that that change would entail additional work. Now, the best economy would be to make the new Court thoroughly efficient, and he trusted the right hon. Gentleman would recognise the propriety of retaining the three Judges with equal salaries, with the understanding that in the event of a vacancy occurring such vacancy should not be filled up unless the requirements of the public service rendered it necessary. [Mr. WHITESIDE was underderstood to say that Mr. Commissioner Martley and Mr. Commissioner Longfield would receive the same salary.] He was glad to hear it, but he thought it most unwise to supersede one. What he intended to propose to the late Government, if it had remained in office, was to create an independent branch of the Court of Chancery for the sale of estates, to be called the Sales Department of the Court of Chancery, and preserving the procedure and practice of the Incumbered Estates Court. He should have proposed to Lord Cranworth that the three present Commissioners should be the Judges of the court, but that on the first vacancy the business should be carried on by the two remaining Judges. This was a suggestion which he now made entirely on his own responsibility. The 72nd clause of the Bill provided that each Judge might nominate any number of conveyancing counsel, not less than three to be approved by the Lord Chancellor, for the aid and assistance of such Judge in the investigation of titles to estates. It was, however, to be competent for any party to object to any opinion of any such counsel, whereupon the Judge was to dispose of the point in dispute in such form as he should think fit. He objected to such a provision. The safety of the public consisted in leaving the entire responsibility in the matter of title upon the Judges, where it had hitherto been. There was also another point to which he wished to refer. The principle of the 89th clause, which provided that a duty should be levied on every estate sold, conveyed, or partitioned by the Court, met with his entire approbation; but he thought that, instead of charging 10s. on every £100 where the estate was of less value than £10,000, and £1 per 1545 cent. where the estate was of the value of £10,000 and upwards, the smaller percentage should be charged on the higher sums. It would be a very small amount to charge £10 upon an estate realizing £1,000, but £1 per cent. on an estate realizing £450,000 would be a heavy burden, while the expense of investigating the titles would be the same. A large proportion of the suits in the Court of Chancery in Ireland embraced the sale of estates, and if estates could be sold in the new court without the expenses of fees and stamp duties, which met the Chancery suitor at every step, the result would be that the public would have recourse entirely to the cheaper tribunal, The Court of Chancery ought to be put in an equally favourable position as to fees. He believed the framers of the Bill expected to receive a large annual sum from the Bank of Ireland, in consideration of the advantage which the Bank would derive from being made the depository of the money received by the Court; but he confessed that he very much doubted whether that expectation would be realised. He should listen with great pleasure to an explanation of the point, but it ought not to be forgotten that the Bank stood in the same position as the Accountant General of the Court of Chancery. He would next call attention to the most important clause, the 50th, which gave the new jurisdiction to the Court. In reference to this, and almost all the other clauses, he should say that the language was open to the greatest objection, and proved that the Bill had been evidently drawn in a hurry. Under the 50th section, any owner who desired to have his title investigated, and a judicial declaration made that he had a good title, might apply to the Court, whereupon the Court should investigate it, and if the title appeared satisfactory the Judge should make and sign a written declaration to that effect, sealed with the seal of the Court, and should state in a schedule any leases, tenancies, and incumbrances to which the estate was subject, and such declaration shall make it conclusive and indefeasible. The clause made no distinction between the owner of an estate in the land and the owner of the land itself. He knew it might be said that it could be easily amended in Committee, but in dealing with real estates they could not be too precise in the language which they used. An estate in land might be only a short lease of it. The declaration that the title was 1546 good was to be conclusive, and therefore it would be necessary to investigate, not only the title, but the incumbrances, the charges and the tenancies. Yet, while giving that sweeping power to call upon every encumbrancer to establish his rights, the petitioner was not even made punishable by being subjected to costs. It was said that the Bill was founded on the Report of the Committee last year, but it did not carry out one of their recommendations. The right hon. Gentleman the Attorney General for Ireland had not distinguished between a registration of conveyances and a registration of titles, and the Bill would only secure a registration of conveyances. He was so anxious, however, to see the Bill passed that if the Solicitor General and the Attorney General for Ireland continued firm in their opinion that the new power should be vested in the Court he would not object to it; and, further than that, if they should think that to refer the Bill to a Select Committee would imperil it passing this Session, he would not divide the House on the point. The only other point to which he would then allude was, the proposal that the office of Master of the Incumbered Estates Court should be abolished, and that Mr. Flanagan, who had hitherto discharged the duties of that office with great zeal, ability, and success, should go to the Treasury, and obtain from them any compensation to which they might think he was entitled. It seemed to him that such arrangement would be unfair to Mr. Flanagan, who had abandoned, nine years ago, the profession of the bar for the purpose of devoting himself to the business of that court; and he could not help thinking that the proper mode of dealing with that genleman would be to continue to him his full salary of £1,000 a year, until he should be appointed to some equally lucrative post.
To leave out from the word 'That' to the end of the Question, in order to add the words 'the Bill be committed to a Select Committee,' instead thereof.
That the words proposed to be left out stand part of the Question.
THE SOLICITOR GENERAL
said, he was glad to find that they were invited to enter into a discussion on the Bill, because he believed that the more its provisions were considered the more would it become acceptable to the House and the country, and the greater was the probability that it 1547 would be passed in a satisfactory shape. But he could not agree with his right hon. and learned Friend that it would be desirable to refer the measure to a Select Committee. The fact was, that even if that course were adopted, it would be necessary for the House to consider and to decide upon all the certain leading and important features. The questions of detail in the Bill were not new, but simply borrowed from the details of the Act under which the existing Incumbered Estates Court had been constituted, which had stood the test of several years' working, and in reference to this part of the Bill, therefore, there was still less need of reference to a Select Committee. Under these circumstances he trusted his right hon. and learned Friend would not persevere with a Motion which might imperil the passing of the measure during the present Session. According to the right hon. Gentleman there was no clause of the Bill which did not require reconsideration and improvement; but having read through the whole of it carefully, he was bound to say that, whoever might be the draughtsman, it certainly was drawn with considerable care and skill, although like all other Bills it might be susceptible of some Amendment. The discussion raised by the right hon. and learned Gentleman as to whose was the merit of suggesting the Incumbered Estates Court, and the different opinions which had been held by various hon. Members as to it, was a very profitless one, and certainly must have the effect of detracting considerably from the weight of the right hon. Gentleman's argument. No doubt the Incumbered Estates Court was in the beginning one of the strongest measures which had ever been introduced into Parliament, and very sound and reasonable arguments were, on its introduction, urged against it by persons who, since they had seen the effects of its working and had experience of its benefits, had gradually changed their opinions about it. Many persons, owners of land and others, had viewed the formation of that tribunal with considerable apprehension and distrust, but had since been led to regard it as one of the greatest blessings the Legislature had ever conferred upon Ireland. The present Lord Chancellor of Ireland was among the original opponents of the court, but so early as the year 1853 he had so far changed his mind that he introduced a Bill in conjunction with the right hon. and learned Gentleman the At- 1548 torney General for Ireland, giving an indefeasible title in the cases of sales effected under the ordinary process of the Court of Chancery. What then were the leading provisions of the present measure? It would, in the first place, give a power of selling incumbered estates. That was no new provision. But it would also enable proprietors to sell unincumbered estates, and to obtain for them a Parliamentary title. It would go still further, and it would, in the third and last place, enable landowners to obtain a Parliamentary title without going through the formality of a sale. The two last principles were new, but the argument by which they were deduced from the first principle was perfectly logical. Suppose an estate worth £100,000 were incumbered to the extent of £10,000, one-tenth of its value. The proprietor brought it into Court, and for the sake of paying the incumbrance of one-tenth he allowed the Court to dispose of the Membered nine-tenths. Why should it not be just as safe to allow the Court to dispose of an unincumbered whole as of the unincumbered nine-tenths. In point of principle there was no difference between an estate partially incumbered and an estate wholly unincumbered as to the unincumbered part. The mere existence of an incumbrance afforded no additional security to a title. On the contrary, no person had so much interest in concealing any flaw in the title as an incumbrancer. He contended, both in point of principle and of practicability, that when once they arrived at the conclusion that it was desirable to give a Parliamentary title in the case of an incumbered estate, there was no power to stop short and say that it was not desirable to give it also to an unincumbered estate. If they did, it would be giving a premium to those who had acted extravagantly; and in practice the limitation would be ineffectual, as there were many instances in which an incumbrance was created merely to bring an estate under the jurisdiction of the present Court. As to the third point—the acquiring an indefeasible title without going through the formality of a sale—what magic was there in the fact of a sale in giving greater security of title? All that was wanted was security; the desire was to give a good title to his estate to every man; and what security was there in the fact of there being a vendor and purchaser? None at all. Besides the hypothesis being that a purchaser was to get a Parliamentary title when his sale was 1549 complete, if they gave it only in the cases of sales it would be impossible to prevent a person who desired a Parliamentary title to his estate passing through the form and ceremony of a sale, and thereby putting in action the jurisdiction of the Court. In short, fictitious sales would be made as fictitious charges had been. It therefore seemed to him that once they had taken the first step of giving this species of title to incumbered estates, they must go another step and give such titles also—but always, he admitted, with the most careful guards that the ingenuity of man could suggest—to unincumbered estates, and even to estates which did not undergo the process of sale. He trusted that the time might come when, if they succeeded in passing a wise and wholesome measure of this kind with regard to Ireland, they would also be able to extend it with great benefit to the landed property of this country. There were few taxes to which the land of this country was exposed which pressed upon it so heavily as those connected with the dealing of land in the way of sale and transfer. He had the curiosity on one occasion to endeavour to ascertain the amount of saving which resulted from one small measure of reform affecting the transfer of land. The House might remember that a measure was passed some years ago, under the auspices of Lord Brougham, which put an end to a form that was gone through on every sale of an estate—namely, of assigning what, in technical phrase, were called "satisfied terms" attendant on the estate. With the view to ascertain how much was saved by that one Act of Parliament, he consulted a most eminent conveyancer—the most eminent, ho might perhaps say, in his department—who went very carefully into the matter, and the result showed that, upon a moderate calculation, the saving to the landed property of this country by that comparatively unimportant statute could not be less than £300,000 a year. The expense of assigning those "satisfied terms" was a mere fragment in the cost attending the sale and transfer of land, and if they might ever look to the application of a system by which titles to estates could be given in this country as safe as those conferred under the jurisdiction of the Incumbered Estates Court in Ireland, he ventured to think that every landowner in England would increase the fee-simple value of his property by a very considerable sum—probably from 5 to 10 per cent. He would next pass to 1550 the consideration of the objections taken to the measure by his right hon. and learned Friend (Mr. FitzGerald). His right hon. and learned Friend said, he was apprehensive that the court to be created by the Bill would degenerate in process of time into another Court of Chancery. That would be extremely undesirable. He (the Solicitor General) had perhaps some reason to be quite satisfied with the Court of Chancery, but he agreed that this would not be desirable. He did not, however, share in his right hon. and learned Friend's apprehension in this respect, inasmuch as he did not think the Court of Chancery, where the business was purely contentious, was, in its present constitution, well adapted for discharging the functions which would devolve on the court contemplated by the Bill under consideration. His right hon. and learned Friend (Mr. FitzGerald) had told the House that he himself had prepared a Bill which made the Court for the sale of land a branch of the Court of Chancery. Now, under a Bill of that kind there would be much greater reason to apprehend the court degenerating into a tribunal which would follow the system of action known in the Court of Chancery. His right hon. and learned Friend also objected to the Bill on the ground of the power given by it to appoint receivers. He agreed with his right hon. and learned Friend that the employment of permanent receivers was undesirable, but he thought at the same time it was advantageous when exercised within wholesome limits. They could not expect sales of property to be completed in less than from six to twelve months, or perhaps a greater interval; but even in cases of that kind it might be desirable for the new court, which would have to secure the rights of incumbrancers and owners, to have the power to appoint an officer to receive and take care of the rents of an estate under sale during that period. Of course it was desirable to get rid of the system of permanent receiverships, which had been a great curse to Ireland. The right hon. and learned Gentleman made two objections, which appeared to be somewhat contradictory. He observed that there was in the Bill a power given to the Land Court to enforce specific performance, and there was also a provision to enable that Court to send issues to other Courts for trial. The right hon. and learned Gentleman had remarked upon the first provision that it gave the Court power to deal with con- 1551 tentious business, and upon the second that the Land Court would not be performing completely all the business brought before it. Surely, the right hon. and learned Gentleman must elect to which objection he would adhere. If the Court was to administer all the rights of parties applying to it, it was necessary to give it the power to some extent of enforcing specific performance. With respect to sending issues for trial by juries, he (the Solicitor General) was as anxious as any one to make each Court complete in itself, but if questions of fact were to be tried relating to distant counties in Ireland, and the Court itself was not to be peripatetic, it was obvious that the best thing to be done was to send the issue to the judge of assize to be tried. The right hon. and learned Gentleman also complained that the Bill removed the jurisdiction conferred on the Court of Chancery by the Lease and Sale of Settled Estates Act. By that Act the Court of Chancery was empowered to sell, but could not give a Parliamentary title; and unless a change was made these estates would be in a more unfavourable position than any other. It seemed to him absolutely necessary, therefore, that if this Bill was passed, settled estates should have the benefit of its provisions. The next point was as to the Judges of the court, and he agreed with all the right hon. and learned Gentleman had said in praise of Mr. Longfield and Mr. Hargreave, whose administration of their functions had made the court as popular as it was. Whatever they might do in the way of legislation, the goodness or badness of the court must depend in a great degree on those who had to carry it into operation, and the gentlemen whose names he had mentioned, had from the first set themselves to work in such a manner as to gain for their court the highest reputation. With respect to the judicial staff that was necessary, that was a question which was considered by the Commission of 1854 and the Committee of 1855, which came to the conclusion that two Judges would be sufficient. There was another consideration to be borne in mind. It had been urged by some that in making the court permanent it would be necessary to increase the salaries of the Judges, and therefore he hoped the House would be careful in sanctioning any increase in the number of Judges beyond what was absolutely necessary. For his own part, he conceived that two Judges would be amply sufficient for the work that 1552 would be entailed upon them. It must be recollected that while hitherto the two Judges had sat together on certain days, there being thus practically only one judge on those days, each Judge would henceforth dispose of all the business brought before him, and thus there would always be two Judges sitting. He next came to the clause which had excited the criticism of the right hon. Gentleman, respecting the employment of conveyancing counsel. He confessed that when he (the Solicitor General) first read the clause he made very much the same observations as the right hon. and learned Gentleman had done, but the explanation he received was that at present there was an investigation into every abstract of title in the Incumbered Estates Court before the business came before the Judges. When the title was brought into court it was referred to some counsel for examination, the council being selected by the solicitor promoting the proceedings, and the fees for such examination were paid as part of the expenses. The Chief Commissioner had found that those examinations were totally unsatisfactory and useless to the Court, creating needless expense to the suitors; and he thought that if there were to be such investigations care should be taken, by providing a proper staff of conveyancing counsel, that they should be performed in a satisfactory and useful manner. That was the object of the clause, but it still appeared to him (the Solicitor General) that it was a subject worthy of consideration whether that provision was desirable, but that was a matter that could be considered in Committee. The next objection taken by the right hon. and learned Gentleman was that care must be taken, as the Land Court was to have power in any case where there was land to he sold to sell with a Parliamentary title, not to withdraw the business of the Court of Chancery and exhaust the business of that Court. Considering that the right hon. and learned Gentleman began his speech by professing to deprecate the Court of Chancery as a tribunal for the sale of land, it was to be expected that he would view with favour any provision tending to take away from that court the sale of land and transfer it to a court whose especial function it would be to deal with such subjects. It must be recollected, too, that although there were a great number of suits in Chancery relating to the sale of land, yet that in almost all of them there were incumbrances upon the land, which 1553 rendered those cases very proper matters for the Land Court to deal with. There was only one other provision upon which he had to remark, and that was the 50th clause, upon which the right hon. and learned Gentleman had taken objections both as to form and principle. The objections as to form were not, he thought, very conclusive; and with respect to the remarks of the right hon. and learned Gentleman about the proviso for registration, there had been some misapprehension of the point. As the House knew, there was at present in Ireland a Registry Act, under which every deed was registered which represented a transaction for the sale, transfer, or settlement of land; but what the clause provided for, was neither a sale, transfer, not settlement, but was a declaration made by the Court that a man who was not selling or transferring had proved a good title, and that could not be registered under the existing Act. There was no doubt a distinction between registration of assurances and titles, but the Committee which sat and recommended that there should only be a registration of titles, had said that an efficient plan for that purpose would be the first step towards a registration of assurances. He had now answered the objections of the right hon. and learned Gentleman, and he trusted he had shown that they were not sufficient to justify them in hanging up this measure by sending it to a Select Committee. He hoped, therefore, that the House would address itself to the consideration of the Bill on a fitting occasion, and that they might be enabled in the present Session to pass this measure, which, if wisely guarded, would confer a very great boon upon the landed interest of the country.
§ SIR RICHARD BETHELL
said, he was quite willing to admit that the principle of the Bill was a good one, and he thought it was creditable to the Attorney General for Ireland to have adopted the principle laid down by the former Government. He should, therefore, be extremely sorry if any course were adopted by the House which would bring in peril the passing of this Bill during the present Session. Still the subject was unquestionably one of the greatest possible importance; and if the right hon. and learned Gentleman could be satisfied with an assurance by all those whom he might select to sit on the Select Committee that they would give their most earnest attention day by day to the matur- 1554 ing and considering of this Bill, then he, for one, should be exceedingly glad if the propositions of his right hon. and learned Friend (Mr. J. D. FitzGerald) were adopted. The great difficulty he felt on the subject was that of creating a great co-ordinate jurisdiction, which, nevertheless, had not a jurisdiction co-extensive with that of the tribunal from which it would borrow most of its powers, and, therefore, being co-ordinate but not subject, and not having co-extensive jurisdiction, conflicts would undoubtedly arise between the two tribunals. It was in the sincere hope of being enabled to arrange the Bill, so as fully to express the nature of the authority to be exercised under it, that he proposed to send it to a Select Committee, where matters of detail could be discussed with more satisfaction, and with more likelihood of arriving at a just conclusion than in the House, where they must remain subject to all the emergencies of the public business. Three distinct courses might be adopted to effect the objects of the Bill, which were to make the title of land secure and to procure its easy transference. One was to have a department possessing only administrative functions similar to those exercised by the Incumbered Estates Court in Ireland, connecting it for judicial purposes with the great tribunals either of law or equity. Another plan would be to give administrative powers to a tribunal already existing—as, for example, to the Court of Chancery. And a third course would be to create a new tribunal armed with all the powers of the Court of Chancery and of the Incumbered Estates Court combined, delegating to it the special duty both of jurisdiction and of administration. Still, however great the power of the Court might be, it would be limited in its jurisdiction as regarded the subject matter, and cases would often arise in which there were questions affecting partly land and partly personal property, and this new Court would deal with the land question, while the ordinary Court would deal with the question of personalty, and thus they might have a conflicting jurisdiction. This was the mode now proposed; but it was open to great objection, and required the most careful consideration, which could not be so well given in the House as in a Select Committee, of whom eminent lawyers would form a portion. In point of fact, if the matter were discussed in the House, and only those hon. Members took 1555 part in the discussion who were acquainted with the legal points, they would be in reality the Select Committee on the subject. That was not, however, his sole reason for advocating the appointment of a Select Committee. Contemporaneously with the introduction of this measure, Lord Cranworth brought forward in the House of Lords a Bill for facilitating the sale and transfer of Land in England. That Bill having come down to that House, it was his intention to move that it be referred to a Select Committee, and as it proposed to give to the Court of Equity in England precisely the same functions and powers that were delegated by the Bill before the House to a distinct and independent tribunal in Ireland, he thought it desirable that the two Bills should be considered by the same Committee. There was another subject which was undoubtedly of very great importance, and on which a measure had been prepared, which he (Sir R. Bethell) would not introduce during the present Session lest his doing so should have the effect of embarrassing the right hon. Gentleman; he referred to the general registration of titles. That was a subject which had engaged his attention for a considerable period, and his views were embodied in a Bill, which would, he thought, command the attention of those who were most interested in the matter. With respect to the question of registration, if these two Bills passed into law, they did not contain any machinery for registration, and he thought that when a satisfactory mode of settling the title had been arrived at, some machinery ought also to be provided for registration. That, however, was a very large subject, which they could hardly be expected to deal with at this late period of the Session. He agreed in the interpretation of the meaning of the 50th section as laid down by the Solicitor General, but it was important to observe that the Bill gave power to any owner of an estate, however limited his interest in it, to apply to the court. It would be difficult, in the first place, to ascertain the reality of the ownership if the Act recognised a limited ownership. The 38th section gave the Court power to ascertain the rights of all persons in any land in respect of which the application was made, and therefore the owner of any limited interest might bring the estate under the notice of the Court, which was to define and declare the rights of the ownership. But that would tend to much litigation, and to the raising 1556 of questions which could only be properly settled by the established tribunals, both of law and equity. They might create subordinate tribunals, to facilitate the transfer of land, but it would be the height of imprudence to create a tribunal, which, inferior in itself, would have all the responsibility attaching to the highest courts of law or equity in the kingdom. It was on these grounds he should like to see the measure referred to a Select Committee, but he would press nothing that would endanger the passing of the Bill this Session; and if such a reference would threaten the measure with inevitable delay, neither he nor those on his side of the House would press such a course, it being their greatest desire to give every support to the principe of the measure.
THE ATTORNEY GENERAL
had heard with great satisfaction, though not with surprise, his hon. and learned Friend's (Sir R. Bethell) assent to the main principle of this Bill; but he thought the effect of referring it to a Select Committee would be greatly to endanger the passing of it during the present Session. He agreed with the right hon. Gentleman the late Attorney General for Ireland, that it was impossible to be too cautious in dealing with such a subject as this, involving, as it did, the security of the landed property of the kingdom; but when the Bill went into Committee he (the Attorney General) thought it would be made efficient for all purposes, and all safeguards could be then introduced which could be considered essential. It must not, however, be forgotten that they were legislating in this case by the light of experience, and that no evil had hitherto resulted from the working of the Incumbered Estates Court. In considering the question whether they should proceed at once with this Bill, he could not help reflecting on the great and mighty benefits which would accrue to Ireland, and in the end to England, if they could succeed in establishing a court with enlarged jurisdiction and adequate functions, under which the titles to land might be effectually registered, and which might be made the foundation of a general system of transferring land. The benefits which might be expected to arise from that scource were incalculable. His attention had long been directed to that subject, and he also inferred from the signature of the hon. and learned Member for Aylesbury (Sir R. Bethell) to the Report of the Commission on the Registration of Titles that 1557 he would approve the establishment in this country of a system for the complete registration of titles and easy transfer of land. It was quite idle to say that the Court which dealt with an incumbered estate could not also deal with the same estate when unincumbered. So satisfactory was the working of the Incumbered Estates Act that fictitious incumbrances had been made for the purpose of bringing estates within the jurisdiction of the Incumbered Estates Court, and thereby acquiring unimpeachable titles. The Government, therefore, thought it would be well to put an end to such a state of things, by establishing, a court which could deal with unincumbered as well as incumbered estates. And when they were threatened with the danger of conferring so great a jurisdiction on a court to be created, he thought that they had only to consider what might now be done indirectly in the Incumbered Estates Court, and directly, both in England and Ireland, by means of the Court of Chancery; and those dangers and difficulties would entirely disappear. The power of the Court of Chancery in suits for specific performance was analogous as to any difficulty which might be apprehended. To show how great were the inconveniences of the system for which the Bill proposed to find a remedy he might observe that if a gentleman in this country had 1,000 acres of land, upon which he desired ten times in the course of his life to raise money by mortgage, or to otherwise enter into transactions affecting his title, ten times over must he incur the expenses of investigating the entire title of that estate. In many cases where the estate was not large, but the title somewhat ancient or complicated, it might be found that the whole value of the estate in fee simple had been spent during the lifetime of one man, in repeated investigations of the title. So again, if a gentleman desired to sell two acres out of 2,000 he must go through the whole expense of investigating the title, the same as he would incur in selling the fee simple of the entire estate. If a person during a portion of his life should sell on several occasions several portions of his estate, he would incur on those several occasions the complete expense of investigation of the title, and it was impossible to say how much of the fee simple would be wasted in that investigation. Whereas if it were done under this Bill it might be done by a single investigation of the title, on which a 1558 declaration of title would be given by the Court, so that the owner from that date got in effect a new title, and when, from that time forth, he should desire to mortgage, even over and over again, or to part with it by selling it in several small portions, there would be this declaration of title affirmed by the Court, which would enable the owner to deal with the property in every variety of transaction, as long as that declaration should endure. As to the dangers by which it was said the working of the Bill would be beset, he should merely say that the principle which it involved was carried into effect in the Incumbered Estates Court in Ireland, while it was in the power of the Court of Chancery to give as secure a title under a decree in a suit for specific performance. His hon. amid learned Friends opposite had raised several objections to the jurisdiction of the court proposed to be established, but the chief objections he had heard appeared to him, when carefully considered, to answer each other. One objection raised by his right hon. Friend, who proposed a Select Committee (Mr. J. D. FitzGerald) was that this Court would have power of directing issues of fact or a trial by a jury in some distant part of the country, while on the other hand the hon. and learned Member for Aylesbury (Sir R. Bethel]) raised a difficulty that, in order to give a good title, the Court would usurp or invade the functions of the Court of Chancery, and we might have a conflict of jurisdictions. He thought that these objections were more apparent than real. In the Probate Court which was established under the auspices of the hon. and learned Gentleman himself they had as here, a second and distinct court, in which questions of magnitude and importance might arise; and the Divorce Court was another instance, in neither of which had any conflict of jurisdiction arisen. If a question of fact arose in reference to the title of a large landed estate, which might come under investigation in this new court—a question, for instance, as to the competency of a testator to make a will—there was a proviso under which the Judges of the court might direct an issue to be tried by a jury, or an action to be brought in the same way as an action of ejectment brought to recover the land, and disposed of in the same manner. It was said that there would be a conflict of jurisdiction with the Court of Chancery, and a conflict of decisions, but the Bill provided an answer 1559 to that. The Bill said that when any difficult question arose, a case might be stated for a court of law, and gave an appeal against the decision of that court, which appeal at last might be carried to the House of Lords. There was another objection which he confessed he had heard with considerable surprise. It was said that if this court were established, it would have the effect of drawing away from the Court of Chancery a great deal of its business. Such an argument ought rather to be used in support than in condemnation of the measure, as, in his opinion, it would be the greatest praise which could be bestowed on it, to say that all who wanted to investigate title would find it convenient to go to this court instead of to Chancery. If the House would consent to go into Committee he was sure that with the able and sincere assistance which his right hon. and learned Friend (Mr. Whiteside) would derive from hon. and learned Gentlemen opposite, any necessary corrections in the details could be made then, and that there would be no difficulty in providing all necessary safeguards. If his right hon. Friend should be successful in carrying this Bill through Parliament he would confer a great and lasting benefit upon the country.
§ LORD JOHN RUSSELL
said, he rose not to enter into the details of the Bill, but to make a few observations on the mode of proceeding with it, and as to the general principles involved. The hon. and learned Member for Aylesbury (Sir R. Bethel]) had fallen in with the proposal to refer the Bill to a Select Committee. He had listened to him while he gave his reasons, and it appeared to him that as there were some great principles in the Bill which it was necessary that the House should decide, he could not think that it would be satisfactory to the House that this Bill should go to a Select Committee, without reserving the power of deciding on those principles. As to the framing and wording of the Bill he doubted whether in a Select Committee there would be greater agreement between his right hon. and learned Friend the Member for Ennis (Mr. J. D. FitzGerald) and the Attorney General for Ireland than there would be in the House. As regarded the origin of the Incumbered Estates Court he thought that the learned Attorney General for Ireland had hardly done justice to his right hon. Friend, the Master of the Rolls, to whom great gratitude was due in reference 1560 to this subject. Sir Robert Peel had in contemplation a measure of a different character, somewhat similar to the Ulster Settlement; but it did not resemble the measure which was afterwards proposed, and Sir Robert Peel's renown was already so great that it could gain no additional lustre from giving it credit for that to which it was not entitled. The original measure originated with Sir John Romilly, although the question involved was one which had been entertained for a very considerable time, and he remembered that Lord Cottenham could not be persuaded for some time that there would be any progress in reference to incumbered estates, unless the persons who had incumbered estates gave their assent to proceedings. Sir John Romilly, however, proposed a measure which was afterwards carried, with the assent of Lord Cottenham. Consequently the legislation that subsequently followed in this direction was to be traced as the consequence of the Act passed by Sir John Romilly. He (Lord J. Russell) was glad to find that although apprehensions had at first naturally enough been entertained with reference to the success of so novel and sweeping an innovation in the law, that learned Gentlemen, who had seen its effects, and to whom complaints would have come if any real grounds of complaint existed, were so well satisfied with the working of the principle that they were now prepared to give it perpetuity by fresh legislation. When he came into the House that evening he was disposed to think that the learned Attorney General for Ireland had carried the principle of the Bill somewhat too far. In the beginning it was a very strong measure, and though they might take a certain course as to incumbered estates, it was a doubtful matter whether they could carry that principle out in reference to other species of estates. He himself was satisfied that they could carry the principle somewhat further, so as to make it apply to estates for sale; but he thought that the learned Solicitor General had proved very clearly that they could not stop short there either in law or practice, and that other estates, which were neither incumbered or for sale, would be brought by their owners, by some species of evasion, within the compass of this court, and that, therefore, it was better to do directly that which otherwise would be done indirectly. He did not think it followed, however, that when they were very much enlarging the sphere of this court that they should 1561 choose that moment for making the number of judicial officers of the court smaller than it had hitherto been. He thought that the proper course would be to keep up the three Judges which they had hitherto had, and that it should be declared that in case of a vacancy it should not be lawful for the Crown to fill up the vacancy without having recourse to Parliament. He thought it seemed unwise, without discussing the hardship in any particular case, that it did seem unwise that Mr. Hargreave, who had been for many years in the exercise of his judicial functions, and had succeeded in overcoming the prejudice against the Act, and giving great satisfaction, he repeated that it seemed unwise, instead of giving that gentleman a sufficient salary to do the work for which he was competent, to give him a very considerable retiring pension without requiring any services whatever. He hoped that the author of the measure would consider this matter. His right hon. Friend the Member for Ennis (Mr. FitzGerald) had argued that persons would get their estates disposed of at so small a cost in this court that they would no longer go to the Court of Chancery; but it seemed to him that this was not so much a reason against this measure as it was a reason for diminishing the expenses and solemnizing the forms of the Court of Chancery, rather than clipping the wings of this new court. He should readily give his vote for going into Committee on this Bill without having a Select Committee. He trusted that in establishing a court, which he had no doubt would be very useful to Ireland, it might hereafter be useful to England; and he must say he was glad that the Government was giving attention to so very important a measure with the view to carrying it this Session.
§ MR. MALINS
said, he thought that there could be no second opinion as to the merits of the principle of this Bill; and the only question was, whether a measure involving such complicated details should be referred to a Committee of the whole House, or a Select Committee. No doubt a Select Committee would embrace most of the practical men in the House; and if they could insure their attendance constantly, he should feel inclined to concur with the proposition of the right hon. and learned Member for Ennis (Mr. FitzGerald). But although there would be many advantages in the adoption of such a course, the discussion would be one in which lawyers 1562 alone would engage, whereas in a Committee of the whole House it would be joined in both by lawyers and laymen—men of information and sound sense—who would act as assessors, and whose opinion would be of great value. He therefore thought the proper course to adopt would be to discuss the Bill in a Committee of the whole House. As to the general principle, he concurred in the universal opinion that the Incumbered Estates Act had been of great advantage to Ireland, and he thought that the same principle should be extended to unincumbered estates. After all, however, it would be found that unincumbered estates were not very numerous. He did not mean by this to infer that estates were incumbered up to the hilt; but, practically, very few were without an incumbrance of some kind. With regard to the details of the Bill, its effect would no doubt be, looking at the important and extensive jurisdiction to be exercised by this Court, to take away a great part of the business of the Court of Chancery. Now, instead of setting up a new Court, with independent functions, he would suggest that it should be made a branch of that older Court, the jurisdiction of which was exercised so beneficially for the public. He was surprised to find in the 38th section, the power was given to this court which had been taken away from the Court of Chancery. He alluded to the power of sending a special case for the opinion of a court of law. With respect to land generally, there were more mortgages than sales of estates, and therefore ho did not see why the mortgagee should not have a Parliamentary title as well as a purchaser. He believed that a great number of the estates purchased under the court had been mortgaged immediately after. There were other objections which he entertained to the Bill, but these were of such a nature that they could not be discussed in the House, and therefore he would support the Motion for the Speaker leaving the Chair. He was for at once proceeding to a Committee of the whole House, and for rejecting the proposal for sending the Bill to a Select Committee.
said, he had certain objections to the Bill, which he felt could not be properly discussed in the House, and therefore he was in favour of sending it to a Committee up stairs. With all the principles contained in the Bill he fully agreed, and because he agreed with them, he regretted that the right hon. and learned Gentleman had not gone further, and. made 1563 the title to land as easily transferable as title to stock. In ordinary cases there was great difficulty in doing this, but Ireland possessed unusual facilities for the purpose, because in the Ordnance map the smallest plot of land could be identified, while this Bill would give every present proprietor an indefeasible title to his land. All that the right hon, and learned Gentleman would require to do, therefore, was to provide that every proprietor should have his name registered in a book, so that he might be easily identified, and where the sale of his land could be recorded. He, therefore, did not see why the present desirable opportunity should be allowed to pass for making a most important piece of legislation complete. A great defect in the working of the court was the expiration of the Parliamentary title with the first purchaser. When the property was purchased in the court, the title was declared to be indefeasible, but if at the end of ten years the purchaser wished to sell, he was obliged to go through all the expensive searches and delays of the old system. Why not allow this indefeasible Parliamentary title to be transferred with every transfer of the property? He had also complaints to make of the machinery proposed, which, with an increased amount of work, was to be very much diminished in numerical force and efficiency. To give an indefeasible title to parties who chose to submit their title deeds for the inspection of the Court was the most responsible thing in the world. In the cases where a property was to be sold at the instance of an opposing creditor, there was some security for an accurate examination. The Judge had the advantage of hearing parties on both sides, while in a mere declaration of a title the Court might declare against the rightful parties in their absence. Now, what was the machinery to accomplish this? Why, with this additional and most delicate duty added to the other business of the court, it was proposed to reduce the Judges from three to two. He further objected to the proposition of giving this power of examining titles to a Court that had what was called contentious business at all. The practical effect would be, that the more showy business, the litigation, would attract all the energies of the Judge, and that he would carry the abstracts of titles, he was called on to examine, home with him in the evening; where he would go through them with jaded spirits in a careless and perfunctory manner. He also was persuaded that if 1564 they left the Conveyancing Counsels clause to stand, it would end in the authority being practically thrown into the hands of the counsel, instead of, as it ought to be, entirely exercised by the Judges. These were the objections he entertained towards the Bill. As he had said, he thought they would be better discussed up stairs, but, should the House be of a different opinion, he was ready to discuss them at once.
§ MR. ADAMS
said, that as he had heard no objection raised to the principle of the Bill, he would confine himself to the question whether it should be referred to a Select Committee, or should be considered in a Committee of the whole House. He doubted whether it would be desirable to refer it to a Committee to be composed altogether of members of the legal profession, especially as it could not be expected that those hon. Gentlemen whose presence would be most desirable would attend so continuously as to make much progress during the present Session. He feared, too, that each Member would go into the Committee room with the intention of carrying out his own particular views. There were many points in the Bill that did not require the exclusive attention of members of the legal profession. The subject was well understood; it had been much discussed. There had been a Royal Commission on the question, which had published a most valuable Report in 1856, so ably and plainly drawn up as to be intelligible to any one who applied his attention to the subject. An objection had been raised to the reduction of the number of Judges, but it must be remembered that when the Incumbered Estates Court was first established there was an enormous accumulation of business, such as was not likely to occur in future. If the number of Judges now fixed should be found insufficient for the business to be transacted, it would be easy to appoint another; but if a third were originally appointed, it would not be so easy to get rid of him if his services were not required. It had been objected that there would be no saving of money. That was a mistake, for there would be a saving of £1,000 a year in the salary of the Judge, and also the entire expense of a third court. The question, however, was not one of £1,000 a year, but of public efficiency; and by two Judges sitting separately the business would be got through satisfactorily. He should, therefore, approve of the appointment of two Judges in the first instance, reserving 1565 to himself the right of concurring in the appointment of a third Judge the moment it should become necessary. He did not believe that there would be, as had been stated, more difficulty in dealing with un-incumbered estates, than was experienced in dealing with incumbered estates. In fact, even fictitious incumbrances were got up for the purpose of obtaining the Parliamentary title. They were not about to establish a new principle, but merely to extend the application of a principle that had been eminently successful. They had the machinery ready to their hands—a machinery which had been found efficient in carrying out the experiment which had been made. The great difficulty in the way of increasing the number of small independent freeholders in Ireland—a class which formed a most valuable portion of the population of this country—had been the expense of making out the title, especially where incumbrances existed, the cost of which, when the property was divided into small holdings, being sometimes equal to the value of the land. But when once a good Parliamentary title was obtained to an estate small portions of it could be sold without these heavy expenses, by a simple reference to the Parliamentary title. This would have the most favourable result in facilitating the sale and acquisition of small properties. Again, if no difficulty had been experienced in cases where there was likely to be contentions, could they imagine that there would be more or so much difficulty when they had to deal with cases where no contention was likely to arise? A suggestion had been made that the court should form part of the Court of Chancery. He hoped that that would not be so, for the Court of Chancery had not been such a very great favourite in Ireland as to render it desirable to confer all these additional powers upon it. It would be better to have a tribunal with all the powers of the Court of Chancery, and not to adopt a form which would be objectionable to many. He hoped that this measure would be a forerunner of a similar system for England, when the means for adopting it were supplied; and that the Session would not pass without the machinery being supplied for the introduction of a similar system. In conclusion, he hoped that they would go into a Committee of the House on the Bill.
§ SIR ERSKINE PERRY
said, that the hon. Gentleman had referred to the question of the salaries of the Judges as an un- 1566 important matter. It was not so, however. He agreed that the Court of Incumbered Estates had been the most successful experiment in the way of law reform that had been passed in this generation. But what were the grounds on which the Court had become so popular? He attributed its success mainly to two causes,—first, that the learned Commissioners had administered all the work of the Courts themselves, and had referred nothing to clerks, masters, or examiners; and, secondly, that they had adopted most simple, rational, and philosophical rules of procedure—one of which ought to be inscribed in letters of gold over every court, to the effect that no informality should affect the suitor, but that justice should be done in every case to every individual. The Attorney General for Ireland, instead of this satisfactory court, was going to constitute a court of the same magnitude and importance as the other courts of the realm. He was going to raise the salaries of the Judges from £2,000 to £3,500 a year. If they raised the salaries of the Judges beyond what was necessary to secure efficiency, they would run into great danger, and the result would be that the clerks and conveyancing counsel would do the duties which the Judges ought to perform. It was most desirable to have the salaries as low as at present, and in that way they could increase the number of Judges as occasion required. On these grounds he did not think the plan of the right hon. and learned Gentleman a sound one. It would be far more economical to keep the three gentlemen on their present salaries than to pension off one of them on his full salary, and these views he would urge upon the Committee when the Bill reached that stage.
§ MR. MONSELL
said, he should be unjust if he did not express to the Attorney General for Ireland his opinion of the great debt of gratitude which that country owed him for the introduction of this admirable measure, which he trusted would be proceeded with speedily and with as little alteration of its fundamental principles as possible. There was nothing he should deprecate so much as that it should be referred to a Select Committee, particularly one of lawyers. The Bill was too good a one for Ireland to render it desirable that the risk of its reference to a Select Committee should be run. He thought, however, that there should be three Commissioners instead of two; and he objected to the appointment of conveyancing counsel. 1567 But these were points of detail which could be perfectly well discussed in a Committee of the whole House.
§ COLONEL GREVILLE
sad, there could be no doubt that the working of the Incumbered Estates Court had been most beneficial to Ireland, and the time had now come to extend the benefit of an indefeasible Parliamentary title to unincumbered estates. After the experience of the eight years' working of the Incumbered Estates Court, he thought that the House was perfectly able to deal with this Bill without referring it to a Select Committee, He must say that he thought it would be exceedingly injudicious to dispense with the services of Mr. Commissioner Hargreave, who had been engaged in the working of the Incumbered Estates Court since its foundation; had assisted in drawing up its rules; and was one of the ablest of the Judges who had presided in it. His withdrawal, moreover, would lead to a delay in the disposal of the cases which were at present pending before him. He hoped that the right hon. and learned Gentleman, the Attorney General for Ireland, would reconsider this point, and would assent to the retention of the services of Mr. Hargreave in this court. The 15th clause was open to objection, because, the Court being permanent, he did not see what object the proprietor could have in obtaining the Parliamentary title until he wanted to sell his estate. He objected also to the levy of a duty on the sale of Estates, which was contrary to the recommendation of the Commissioners who had inquired into the working of the Incumbered Estates Court. These, however, were all matters of detail which could be settled in Committee.
§ MR. WHITESIDE
said, he had received communications from all parts of Ireland on the subject of this Bill, and in no one case was any opposition expressed to the principle of it. It was true he had at first thought that the Court of Chancery might transact all the business of the proposed Landed Estates Court, but happy was the man who could say that he had never changed his opinions. He had since thought it unadvisable to bring into the Court of Chancery all the arrears of the Incumbered Estates Court; and he had arrived at that conclusion in company with the hon. Members for Carlisle and Oxford University. When the present Government came to consider this question they found ready to their hand, to assist them 1568 in arriving at a conclusion, three Reports of great value—one of a Commission which sat in 1846, another of a Committee of that House at a subsequent period, and the Report of the Commission appointed to inquire into the registration of titles in this country. They had, moreover, the experience of the working of the Incumbered Estates Court for eight or nine years; and the present Bill was to the subject, the result of the best consideration they could give with these aids and appliances at their command. There were, as the right hon. and learned Member for Ennis (Mr. J. D. FitzGerald) observed, several verbal inaccuracies in the Bill, but these it was his intention to have corrected, and the Bill would be reprinted for that purpose. He found that several eminent Chancery lawyers were afraid lest the Bill should create a second Court of Chancery; but were they sincere in their alarm? The principle of the Bill was, that without the intervention of a Chancery suit, a contract for the sale of land should be submitted to this Court, so that what would be done circuitously and badly in the one case, should be done cheaply and expeditiously in the other. Objection had been taken to the clause having reference to receivers. He did not approve receivers, but as such officers might in some cases be deemed necessary, it was thought better to allow the Court to decide when they ought to be appointed. He was not, however, wedded to that clause, and if the House when in Committee, however, was of opinion that it should be omitted, he would be quite willing to do so. An objection had also been taken to the employment of conveyancing counsel. Here, too, if the House was of opinion that this part of the Bill was unadvisable, he would most readily bow to its decision. He had put in the clause relative to conveyancing counsel, not to shift the duties of the Judge over upon them, but because it was thought that it would be advantageous to have the assistance of three eminent men approved by the Lord Chancellor, and who would be prohibited from practising in the Court in the investigation of the abstracts of titles. It had been asked, what provisions there were against fraud. Now, independently of the three Reports upon the table, a series of questions had been drawn up at the instance of the Lord Lieutenant, and submitted to the Chief Commissioner. One of these questions was, whether any additional check would be required in making out a title, or giving an adjudication upon 1569 the title of an owner in fee simple, and the answer was, that there would be no necessity for any extra check. His great object was so to simplify the sale and transfer of land, that when an owner had once obtained a title, he might, whenever he chose, sell or lease small portions of the land, and have the power of doing so without the aid of a conveyancing counsel. The number of Judges in the Court was, no doubt, worthy of serious consideration. When the late Government introduced their Bill, they proposed that two Vice Chancellors of the Court of Chancery should be created, who should perform all the business of the Incumbered Estates Court, who should bring up all arrears, and sit in the Court of Chancery. His proposal was to have two Judges, who should not be called upon to do the business of the Court of Chancery, but who should sit in this particular Court, the petitions for sales in which had been diminishing until in the last three months there were only seventeen petitions per month. The time of at least one Judge had been saved by making the two Judges sit separate and apart, each having supreme jurisdiction in his own Court. An appeal would lie against the decision of each Judge, and they would thus be enabled to get through more business than three Judges on the existing system. By the Bill this country might have the benefit of Mr. Hargreave's services, and it would be provided that he would lose the compensation granted to him when he obtained an office under the Crown of equivalent or superior value. The other officers who might be displaced would also be dealt with by the Treasury in a liberal spirit. He trusted that the Court, under the new Bill, would be self-supporting. In that case the country would be relieved from an annual charge of £18,000, while the titles of property would be simplified, and sales would be facilitated. He believed that the measure had given, and would give, unfeigned satisfaction, and he would now move that the Bill be committed pro formâ.
§ Amendment, by leave, withdrawn.
§ Main Question put, and agreed to.
§ Bill considered in Committee.
§ House resumed; Bill reported; to be printed, as amended [Bill 105]; recommitted for Thursday next.