§ MR. WHITESIDE
Sir, I rise to move for leave to bring in a Bill to facilitate the sale and transfer of land in Ireland. The importance of the subject to which I beg leave to direct the attention of the House is admitted by all men, and it has of late become a matter of increasing interest. We have now "handy books" written to make the law of real property familiar to the public, and we have letters addressed by ingenious counsel to John Bull for the purpose of persuading him that he ought to simplify the title to real property in this country. But, while theories have been started in England, the interest felt in this subject in Ireland has assumed a practical character in consequence of circumstances in the history of that country, of painful reminiscence. The incumbranecs on property in Ireland, and the confusion in the titles of that property, with the consequent embarrassment of owners, threw on the Court of Chancery in that country an enormous amount of business which it was impossible for that Court to discharge. From a 25 return laid before Parliament, it appears that at the time the Incumbered Estates Court was established, there were nearly 1,000 Chancery suits, in the greater portion of which the rights of the parties had been ascertained and declared, but in which it was impossible to realize the fruits of the decree; for, in fact, the difficulties only commenced after the decrees had been pronounced. It is stated in one of those little books to which I have referred—in the book written by Mr. Williams, that the idea of establishing the Incumbered Estates Court was suggested by Mr. Christie, an eminent conveyancer in this country; but I have heard it was suggested to Sir Robert Peel by the present Lord St. Leonards. At all events, whoever was the person by whom it was suggested, we have now to deal with the existence of that Court, and with the practical effect it has produced in Ireland. We find that the Court was from the commencement limited in its functions in conformity with its title, which gave to it jurisdiction in the case of incumbered estates only. We know that it did not embrace within its operation what are called "partial interests;" or leases for a term under fifty years. It entertained applications on leases in perpetuity, leases above fifty years, college and trust leases, and leases upon which fines had been paid. It soon happened, however, that the Incumbered Estates Court swallowed up a large portion of the business of the Court of Chancery; and then it was threatened with being brought itself into the same condition in which the Court of Chancery had been placed. A Commission was consequently issued in the year 1855, to inquire into the practical operation of the Incumbered Estates Court in Ireland. That Commission sat in Dublin, and produced a Report which was laid on the table of this House; but many persons did not deem that Report satisfactory, and accordingly it was itself referred to a Committee of this House, composed of many distinguished Members. That Committee delivered their Report in the month of June, 1856. At length the subject began to attract attention in this country, and a Commission was issued to inquire into the registration of titles in England. That Commission drew up what I believe I may characterize as a masterly Report. Among the Members of this House on that Commission were my right hon. Friend the Secretary of the Home Office; the right hon. Gentleman the Member for Kidderminster (Mr. Lowe); and the late Attorney 26 General for England. The jurisdiction of the Incumbered Estates Court in Ireland has been renewed from year to year by continuance Bills, and the last of these continuance Bills will expire in two or three months from this period. The great question which this House has now to consider is, what is to be done with the Irish Incumbered Estates Court, and what is to be done with the jurisdiction which it exercises? I have heard it said that the late Government contemplated the introduction of a measure upon the subject; but after a diligent research we have not been able to find any trace of such a men sure. And, therefore, whatever may be the defects of the scheme now to be laid before the House, we are entirely answerable for them; and if, on the other hand, there should be any merit in the plan, that merit will be ours. The first question that suggested itself for our consideration was, whether we should now bring forward a mere continuance Bill, as had been done on former occasions, or whether, with the ample materials before us, we should endeavour to deal with the whole subject, and submit a plan to Parliament complete and comprehensive in its nature. The latter course is the one which Her Majesty's Government deemed as more respectful to the House to pursue. Now, the principle established by the Incumbered Estates Court is, that there should be an indefeasible Parliamentary title given to the purchaser of the land sold under the orders of the Court, it was not the object of the Court to effect simplification of that title. But we find that the Commissioners, to whom it had been deputed to inquire into the operation of the law under which that tribunal was founded, recommended that its principle should be extended—that the jurisdiction of the Court should be made perpetual, and that its jurisdiction should be made applicable to other than incumbered estates. In some respects the Committee of that House which sat upon the same subject, differed from the recommendations of the Commissioners; but they agreed that the principle of the law which now applied to incumbered estates should be extended to unincumbered estates, and that certain reforms in the Court of Chancery in dealing with questions of real property, should be carried out. That was the position in which the present Government found the question, and we have to consider what should be done first, with regard to the extension of the principle of the Act; and, secondly, what should 27 be done with the Court itself. Whilst submitting this question to the House, I beg to call its attention to the fact, that during latter years the sales in that Court have remarkably diminished. I shall venture to lay before the House the number of petitions that have been presented to that Court. In the first year of its existence as a Court—in 1850, the number of petitions was 1,085; in 1851, 801; in 1852, 503; in 1853, 488; in 1854, 414; in 1855, 362; in 1850, 273; in 1857, 226; and from August, 1857, to the 12th of March, 1858, 145. It is also interesting to observe what is the case in reference to the presentation of petitions during the last three months, It appears that in February the number was 17; in March, 18; and in the month just concluded about 19 or 20. Such is the state of this Court as far as the influx of new business is concerned. The next question to ask is, what is the staff of that Court? There was an apprehension at one time that the Court for the sale of incumbered estates would become worse in this respect than the Court of Chancery. To the two Judges originally appointed to the Court it was subsequently deemed advisable to add a third. One of those Judges was a very learned person, a Baron of the Court of Exchequer. After he had been acting some years with much efficiency in the Incumbered Estates Court, it was considered by the Committee appointed to inquire into the subject, that this learned gentleman could not properly discharge the two distinct duties of Commissioner and of Judge. In accordance with a pledge given by the noble Viscount (Viscount Palmerston), Baron Richards retired to his seat in the Court of Exchequer; and, owing to the recommendation of the right hon. Gentleman the Member for Stroud (Mr. Horsman), then Chief Secretary of the Lord Lieutenant of Ireland, a learned Gentleman, though opposed to my right hon. Friend in polities, was appointed Chief Commissioner of the Court, who was eminently qualified to discharge the duties of the office with honour to himself and the greatest benefit to the public generally. In the correspondence that took place between Baron Richards and the Lord Chancellor of Ireland, as it appears in a Return moved for by the hon. Member for Limerick, the arrears of business then in the Incumbered Estates Court were not precisely such as they were represented to be. I am, however, in a condition to state, whether those arrears in the Chamber of 28 Baron Richards were great or small, that they were all soon disposed of by the appointment of the learned gentleman to whom I am referring, who has been enabled, by his diligence and ability, to clear them away altogether. We are, therefore, now fully competent to deal with the Court, the staff of which is three Commissioners and a Master, who may be considered a fourth Commissioner in disguise. Here, then, we have four Judges of eminent ability presiding in a Court in which there have been only eighteen petitions for the last month, which, if divided amongst them, would be precisely four petitions and a half to each Judge. It may now be asked what we purpose to do with the question of the sale and transfer of land? I answer, that as a Parliamentary title is fully established by an experience of nine years, and has proved highly satisfactory to the people, I am now prepared to give the same advantage to the proprietors of unincumbered estates. It is a fallacy to suppose that any danger can result from the extension of this principle in Ireland, inasmuch as the old Registry Act, in operation since the reign of Queen Anne, confers upon the purchaser of an estate under a registered conveyance, a complete protection against any title or legal instrument executed by the person from whom he buys, prior to his purchase of the property, which he does not find upon the register itself. Therefore the principle has been long since established of giving a statutable priority to a purchaser under a registered deed over the claims of any other party deriving under an unregistered deed of which the purchaser had not received notice. It is a well-authenticated fact, that many owners of unincumbered property in Ireland have created incumbrances upon their property with the view of bringing it within the practical operation of the Incumbered Estates Court, and thereby of obtaining a Parliamentary title for the purpose of giving it an increased value in the market. If those facts are true, and if it is clear that no greater risk will be run from extending the principle of a Parliamentary indefeasible title to unincumbered property than to incumbered property, it is obvious that a principle which applies to the one case ought to be applied to the other; and, accordingly, it is one of the provisions of this Bill to extend the principle to unincumbered estates. It is, however, obvious that there are many other cases to be provided for, and that if we deal with the subject at all, it should be 29 undertaken in a comprehensive spirit. I propose, then, that all judicial sales in Chancery should be made to fall within the like principle—that is to say, when a Court of Equity decrees a sale, I propose that the parties interested should have the opportunity of a complete investigation of title, and that a certificate of the Landed Estates Court shall declare such title to be indisputable when it is fairly proved. Many of the suggestions of the hon. and learned Member for Devonport (Sir E. Perry), who took a great interest in this matter when a Member of the Committee, I think deserving of our attention. I admit that I have acted upon some of that hon. and learned Gentleman's propositions, although they were rejected by the Committee. That hon. and learned Gentleman first asserted the principle that the Court should be permanent; second, that it should have jurisdiction over unincumbered estates; third, that the investigation of title should be made by persons only who were fully qualified by their general professional experience to deal with the difficulties of such matters. Now, it should be recollected that sales of property take place often by order of the Bankruptcy and Insolvency Courts. The Judges, however, of these Courts, when asked by the Commission which sat at Dublin whether they could undertake the investigation necessary to confer a Parliamentary title to purchasers in their Court, replied, of course, that they could not, but they admitted the necessity of such power being conferred. Now, I contend that if we extend this principle to the sales of property in the Courts of Bankruptcy and Insolvency, that sales in those Courts will no longer be the juggle that they are now; sales that produce little or nothing to the creditors, the property being generally bought up by the friends of the bankrupt or insolvent at a nominal price. It is, therefore, proposed also to include in the one principle all sales of property in the Bankruptcy and Insolvency Court. I propose to give the Court jurisdiction over all cases; even when there is a title to a partial interest in the property, that that title shall be proved as well as that to the ordeal to the whole of the property. In the case of a bonâ fide contract to sell, this Bill will enable the parties interested to effect that object without the intervention of a Chancery suit. They can come before this Lands Estate Court, as it is proposed to call this tribunal, and having made out their title, may have the property in ques- 30 tion sold. This Court will therefore have the power in the case of a contract of sale between A, B, and C, D, to make out a tide which will be an indefeasible Parliamentary title. We have now only dealt with the sale and transfer of land. The question next arises, what is to be done with the owners of property in fee simple who do not wish to sell such property, but whose titles being in confusion and embarrassment, they are desirous of having such titles investigated in order to increase the value of the property in the market, so that the owner may have it in his power of selling it when he pleases? This is a large step in advance, and I frankly admit that the recognition of such cases in this measure is not absolutely essential to its main principle or to its purpose. But just as it has been shown in the case of the Incumbered Estates Court that persons enter into incumbrances in order to bring their property within the jurisdiction of that Court; so it is obvious that if this Bill does not provide for the case of owners of estates who do not wish at the moment to sell, they will enter into contracts with the sole view of enabling them to take advantage of the machinery of the Court which it establishes. The question involved in this class of cases has been already investigated by my right hon. Friend the Chief Secretary for the Home Department in the Report which he assisted to draw up upon the subject. My right hon. Friend, in conjuction with the able persons with whom he was associated in his inquiry into this subject, endeavoured to discover a plan to facilitate the transfer of land generally. That is a great problem, the solution of which he has endeavoured to work out; and I believe, if the measure to which he has devoted so much time and attention be completed, it will be the greatest and most beneficial Amendment in the law of real property ever effected by any Member of Parliament or any lawyer outside of this House. I shall take leave to read to the House a passage from the Report in question which relates to the case of property the owner of which does not wish to sell, but to have it submitted to the ordeal of a properly constituted tribunal, with the view of proving his title, and that on his title being so proved, he shall obtain a certificate testifying to the fact, and that he had proved his title to an cstate in fee simple:—Before concluding this Report, we think it right to observe that the circumstances of landed 31 property in Ireland at the present time afford peculiar facilities for the introduction of an improved system of registration into that part of the United Kingdom. The long established register of deeds, the Ordnance Survey, and the Incumbered Estates Court, in that country, furnish materials and machinery for effecting the transition from the existing system to the new one much more readily and speedily than can be anticipated in England. We are informed by competent witnesses that the Ordnance Survey is considered one of the most valuable acts of practical government that has ever been carried out in Ireland. The maps are in almost universal use in the management of estates, in the sale of land, and in the valuation of land for public and private purposes. The boundaries of the old divisions of the country, such as counties, baronies, parishes, and townlands, are set out on the maps. The poor law unions and electoral divisions are aggregations of townlands, and can therefore be at once ascertained. In the southern counties the maps show the divisions of fields and tenements; and this system is being extended to the northern counties. These maps afford, it is said, the requisite materials to construct a public map as a basis of registration. The scale of the Ordnance Survey is, for the entire country, six inches to the mile, and the separate maps of towns are on a scale of sixty inches to the mile. The existing and long-established registry of deeds in Ireland appears to afford additional facilities for ascertaining satisfactorily the existing titles to and interests in land in that country. These facilities might, of course, be increased by the application for that purpose of the machinery of the Incumbered Estate Acts. Great as are the benefits, however, which the Incumbered Estates Court has conferred upon titles in Ireland, it is a remarkable circumstance that there is no provision for perpetuating and continuing, as to future transactions, the Parliamentary title obtained upon a purchase from that Court. The title is unimpeachable as to all transactions prior to the time of the purchase; but immediately after the purchase the transfer of the land becomes subject to the general law, and as to all transactions taking place after the purchase, the title is liable to become again involved in complications and embarrassments similar to those from which it was relieved by the sale under the Incumbered Estates Act. Permanent simplification of title and simplicity of transfer are not attained by the Act, and retrospective investigation of the title becomes again necessary, though at present not to the same extent as formerly. The system, therefore, which we have recommended is required not less for Ireland than for this portion of the United Kingdom, while, at the same time, as we have already observed, the facilities for its introduction there are much greater than in this country.The principle asserted in this passage establishes, conclusively to my mind, that with a proper registration of deeds in Ireland, with the Ordnance maps, the general valuation of property, and the Incumbered Estates Court, we may safely extend this principle to the case of a proprietor who does not wish to sell, but who desires to have his title investigated, in order that he may be able at some future time, when 32 it suits his purpose, to sell it as advantageously as any other kind of landed property. As the great object we have in view is the simplification of title, I propose the extension of the general principle to the case I have just referred to. The next proposition with which I have to deal is, to consider what is to be done with the tribunal itself. The Court must now be permanently established. We must, therefore, first consider its staff. The practice hitherto followed of three Commissioners sitting together in the Court for two days in the week is, I consider, a mistaken arrangement, and that it would be much better to have one man presiding every day in a separate Court, acting on his individual responsibility. From the diminution of the number of petitions to the Incumbered Estates Court, which goes in some way to show that nearly all the sales of bankrupt property have been disposed of, it follows that, in the establishment of this Court, we may safely reduce the number of Judges from three to two. It occurs, then, to us that two Judges will be amply sufficient, each sitting alone every day of the week, and that they will be able to dispose of a much larger amount of business than the three Judges have been able to do under a less advantageous system. By this system there will be no appeal from one Commissioner to the other. The appeal from the decision of a Judge will lie directly to the regular Court of Appeal, consisting of the Lord Chancellor and other Equity Judges. I have spoken of Mr. Hargreave, who has been acting in the Incumbered Estates Court in conjunction with Mr. Martley and Dr. Longfield, the two Commissioners. There is a difference between the salary given to the Chief and the salaries of the two other Commissioners, but they are all equal in rank. Well, then, as regards Mr. Hargreave, what was to be done with that excellent and admirable public officer? He was brought over from this country to Ireland, and I am bound to say that, as an English barrister, discharging important duties in an Irish court, I have no complaint whatever to make against him. He has been always most impartial, punctual, laborious, and eminently courteous, and as a conveyancer, I believe profoundly learned in that department of his profession. All I can say is this, that if my right hon. Friend the Secretary of State for the Home Department carries out his great scheme for the transfer of land in this country, he 33 will find that no gentleman can be more useful to him than Mr. Hargrave, who, I am sorry to say has, I believe, impaired his health by his close attention to his duties as Commissioner. Until, however, this gentleman be appointed to some other situation suitable to him and his profession, I propose that he shall receive the full salary which the State has been giving him. Now the office of Master was in itself created under a mistake; it was bestowed upon Mr. Flanagan with a salary of £1,000 year. This gentleman has discharged his duties in a manner most creditable to himself, and has gained for himself the approbation of the Commissioners and all those With whom he has come in contact. The propriety, however, of the appointment of such an officer at all was considered by the Committee of this House that had sat upon the subject generally, and it was suggested as an act of great inconsistency, that when they had abolished the Masters in Chancery in England, they should have revived the mischief by the appointment of a Master in the Incumbered Estates Court in Ireland. While abolishing one Commissioner and judge of the Court, we also propose to abolish this office of Master, which cannot well be defended. The gentleman at present filling the office is, however, by a clause, recommended to the liberal consideration of the Treasury; and to whatever the Treasury may think the officers entitled—such of them, at least, as will not be required for the present plan—I for one shall not object. I have now to deal with the financial part of this plan. We have received a general hint from the Chancellor of the Exchequer that we ought to economise in Ireland wherever we can. That is, no doubt, very good advice, if we can carry it out. I may as well inform the House what the State has paid for this Court. By the last statistical return the exact amount expended for the maintenance of this Court amounts to £133,000, to which I must add £10,000 more, voted for the erection of the new building in which the Court is now sitting. The Court began with £4,000, and, like almost every estimate for the Civil Service, the estimate for this Court annually laid upon this table since the establishment of this Court has been an increase on the previous year. But in the Estimates the Government will have to lay before the House for the present year there will be some slight reduction, in consequence of the Judges having been good enough to 34 dispense with the services of two or three officers. In 1849–50 the charge for this Court was £4,702; in 1850–51, it was £8,850; in 1851–2, £11,500; in 1852–3,£13,887; in 1853–4 it was £12,930; in 1854–5 it was –13,930; in 1855–6 it was £15,480; in 1856–7 it was £15,529; in 1857–8 it was £18,730; and in the present year the estimate is reduced to £17,830; making together a total of £132,168, voted making the House of Commons for carrying on the business of this Incumbered Estates Court from the commencement to the present hour. The proposition which I have now to submit to the House, if agreed to, will we hope have the effect of removing this large vote from the Estimates of the year. The circumstances of Ireland are considerably altered of late years. She is a great country—her resources are not yet fully developed, although they are no doubt being rapidly developed under the present improved aspects of the country. That a Court of this nature should be permanently established in Ireland under such circumstances, at the expense of the Consolidated Fund, is a proposition which I confess I have not the courage to make. It must not be forgotten that the operation of this Act will largely increase the value of land throughout Ireland, by giving to it a permanent and unquestionable, title, and by facilitating its transfer; surely, then, there ought to be no difficulty in raising in a simple manner a fund that would be sufficient to recoup the Consolidated Fund the expenses of carrying out such a measure. I believe I may put down the permanent expense of this Court at £15,000 or £16,000 a year—in addition to the charge for compensation. Unfortunately, whenever officers are appointed—though it may be distinctly—stated at the time of the appointment that it is but for three or four years, and though an ample salary is paid for the services rendered—yet, when those services are no longer required, a claim for compensation is sure to arise, and a permanent income—sometimes equal in amount to the salary—is required for doing nothing. This probably is an evil incidental to Parliamentary Government. But, in reference to this matter of providing for the charge, I will beg to draw attention to an account of the sales that have been effected through the Incumbered Estates Court during the last three years. In 1856, the number of purchasers of estates under £5,000 in value 35 was 1,098; over £5,000, and not exceeding £10,000, 265; over £10,000, 23:— the number of purchasers, 1,586; and the gross sum paid for the whole of these sales, £2,580,470. In 1857, the number of estates so purchased, under £5,000 each in value, was 1,171; over £5,000, and under £10,000, it was 238; £10,000 and upwards, 16:—the number of purchasers being 1,425; and the gross sum paid, £2,140,810. In 1858, the number of estates sold, under £5,000 each in value, was 1,402; over £5,000, and under £10,000 in value, 182; £10,000 and upwards in value, 26:—the number of purchasers, 1,610; and the total purchase money, £2,135,650. Upon the best information I have been able to obtain, I have reason to believe that for many years to come the average sales will not be less—there being at the present moment for sale in Ireland properties, the gross rental of which amounts to £200,000 a year. But, while the number of sales has gone on in this proportion, the purchase money obtained for the property has varied considerably. The Thomond estate (many of the purchasers of which were frieze-coated farmers) has produced, on the average, nearly thirty years' purchase, and a small property lately sold in Fermanagh has produced thirty-four years' purchase. I believe it is not going too far to say that property sold at present under the Court, and with the advantage of a Parliamentary title, produces 50 per cent, more than that property would have brought when the Incumbered Estates Act first passed. The proprietor who obtained a Parliamentary title would be master of the estate; he may sell without the aid of lawyer or attorney. With regard to the expenses of the Court, it is proposed that the officers shall be paid by means of a poundage levied on the sale of such estate. It is not to be endured that the State should undertake such an object as the simplifying titles to estates at the expense of the State. The purchaser will have nothing to do but to pay his money and take his deed; but when the money is lodged in Court, we propose that a moderate poundage shall be levied on the sale of all estates, of ½ per cent. when the value of the estate was £10,000, and in all cases above that of 1 per cent. This, in all probability, will give a sum of £16,000 a year; but this is not all that I hope to get. I mean to get something, if I can, out of the Bank of Ireland; and 36 if that cannot be got, it will be competent to change the account of the Court to another bank. The Bill gives jurisdiction to the Court to act as between it and the Bank of Ireland, which has profited largely by the cash balances of the Incumbered Estates Court being deposited there; the average balances being, in 1852, £807,390; in 1853, £110,350; in 1854, £1,146,318; in 1855, £1,520,000; in 1856, when the Court had invested more than usual, it still left so large a cash balance in the bank as £759,429; and last year it was £608,221. The gains of the bank are estimated at £40,000 a year; and I believe the Court could easily obtain £6,000 or £7,000 a year from the bank on the ground of these cash balances. If a gentle hint were given to the bank, that unless a moderate percentage is allowed on the deposits they would not have them, the directors, with the good sense which they possessed, would come to terms, and give what was asked. The expenses will thus be met in two ways—partly by a moderate deduction from the amount of purchase money, and partly by interest allowed for the use of the cash balances. The whole burden of the reconstructed Incumbered Estates Court will be thrown on the Consolidated Fund, and the funds provided by the two modes I have mentioned will be paid into the Consolidated Fund. I propose that course in consequence of the experience derived from the Suitors' Fee Fund. The Suitors' Fee Fund was formed by appropriating £200,000 belonging to suitors in the Court of Chancery who had not claimed the money, and the interest was to be applied to cover the expenses of the Court. But whenever a new place was made, or an old servant superannuated, the cost was thrown upon the fund, with a proviso that, in the event of the Suitors' Fee Fund not producing a sufficient amount, it was to be paid out of the Consolidated Fund, which never failed. The consequence was, that under the outward appearance of charges on the Suitors' Fee Fund, the Consolidated Fund had to bear upwards of £16,000 a year more than the former produced. It led to a complication of accounts, and therefore my proposal is to pay everything out of and into the Consolidated Fund, and to keep an account of what is paid in, that any balances over the expenses of the Court may be known, and made applicable to paying any new officer, or to pensioning officers 37 who had efficiently served in the Court. I do not think that the small poundage I propose can be felt as a grievance by any landed proprietor in Ireland, and I further hope, to give them a great boon. At present the amount paid on an Irish estate in the Incumbered Estates Court for surveys and maps is enormous, but an arrangement has been made by which, under this Bill, that expense will be greatly reduced—probably to the extent of 50 per cent, while at the same time the owner will receive the inestimable benefit of a Parliamentary title, it being borne in mind that the expenses of the Court will be so light as to make the burden easy to be borne. I propose that instead of Commissioners, those who preside over this Court shall be elevated to the rank of Judges, which will make the Court as respectable and dignified as I trust it will be influential and important. Power will be given to each of the Judges to appoint conveyancing counsel, with the assent of the Lord Chancellor, and with a view to secure the independence of the bar and the Court I have thought fit to insert a clause in the measure which provides that such conveyancing counsel are not to be permitted to practise in the Court. It is also provided that a set of distinct and intelligible rules shall be drawn up by the Judges, and if they fail to do so by the 1st of October, the Lord Justice of Appeal and the Lord Chancellor shall do so. If this Bill should be approved of, the Court which is now proposed to be reconstructed will be a Court not exclusively for the sale and transfer of land with respect to incumbered estates, but a Court which will take cognizance of all questions which are connected with the settlement of the title of land. It will be a self-sustaining institution, and not, like the present, a burden upon the funds of the country; while, at the same time, the burden upon the owners of estates will be but lightly felt, and will not be felt at all by the person who acquired the property and title from the conveyance. Should I be fortunate enough to obtain leave to introduce this measure, it will, of course, be cur duty to see that the machinery with which it is to be worked will be ample, and that the Court may be safely entrusted with the power which I propose shall be conferred upon it, although such powers have never yet been conferred upon any tribunal. I must confess that it is a source of extreme gratification to me to receive the 38 support of the right hon. Gentleman the Home Secretary in this matter, and also of the hon. and learned Gentleman the Solicitor General, who express their desire to see similar principles extended to this country. In the meantime it is my confident hope and belief that, in submitting this measure to the House of Commons I am submitting a measure which is calculated to promote the industry of the people of Ireland, and induce them to pursue that course which happily has been pursued by them of late years, as contra-distinguished from the silly agitation of former times, a course which, if persevered in, would tend to make them a wise, a prosperous, and a happy people. The right hon. Gentleman concluded by moving for leave to bring in the Bill.
§ MR. J. D. FITZGERALD
urged that it was contrary to precedent for the Government to introduce a measure of this kind on an evening devoted to Motions of private Members, and to preface it with a statement of such length. The right hon. Gentleman had endeavoured to give the credit of suggesting the measure which established the Incumbered Estates Court to Lord St. Leonards; but he (Mr. FitzGerald) believed that that noble and learned Lord had no claim to the honour. Whoever was the author of the idea, the measure itself was introduced into Parliament and carried by Sir John Romilly, and to him the main credit connected with it was due. Since he (Mr. FitzGerald) had been a Member of that House, he had always been a supporter of the system for the sale of incumbered estates, and he had frequently been opposed by the right hon. Gentleman in his endeavours to procure the perpetuation and extension of that system. He had therefore listened with surprised pleasure to the statement of the right hon. Gentleman, for it proved that he had become a convert from his former opinions; and he (Mr. FitzGerald) could not forget that in 1853, and in 1854, and in 1855, and 1856, the right hon. Gentleman, in conjunction with the present Lord Chancellor of Ireland, opposed the continuance of the Incumbered Estates Court. He (Mr. FitzGerald) had, in 1856, brought in a Bill to carry out the recommendations of the Committee which sat in 1854, to carry out the system of the Incumbered Estates Court, and to extend its principle to unincumbered estates, and he could not but remember that in that Committee one of his greatest opponents, in endeavouring to enforce those recommendations, was the 39 right hon. Gentleman. He rejoiced to find that the right hon. Gentleman had altered his mind, and now advocated the same kind of measure as he (Mr. FitzGerald) had introduced. In the third portion of his measure, the right hon. Gentleman seemed to have confused two things, namely, the registration of assurances, and registration of titles. He had spoken of the Registration Act as applying to titles whereas it was a registration of conveyances only. The registration of titles was a measure of much greater magnitude, with which the Bill of the right hon. Gentleman did not deal. He did not mean to offer any obstruction to the measure, approving as he did of the principle on which it was founded, and he would give his utmost assistance, not only to carry it through the House, but to amend it where it seemed necessary. But he had much doubt whether considering the magnitude of the interests involved and the extensive character of the measure itself it could pass this Session, so that in all probability they would be driven to renew the Incumbered Estates Court Act. With regard to the financial part of the measure, one of its projects was the payment of the expenses of the Court by the deduction of a poundage on the proceeds of all estates brought in for sale. That was one of his (Mr. FitzGerald's) projects in his Bill of 1856, and which the right hon. Gentleman treated with scorn, but which he had now adopted. With regard to the other branch of the plan for dealing with the balances of the money in Court placed in the Bank of Ireland, he understood that a screw was to be put on the bank to induce it to pay £7,000 a year on the deposit of balances, otherwise that the amount would be taken out of its hands. Was it proper thus to interfere with the rights of the owners of estates, to have the balances invested as they chose? The right hon. Gentleman had spoken of Mr. Commissioner Hargreave, and although he (Mr. FitzGerald) admitted that the original appointment of that gentleman was considered a dangerous step, yet it had been entirely successful, and every one was ready to admit the high character, attainments, and ability of that gentleman; but it struck hint (Mr. FitzGerald) as a somewhat doubtful proceeding that when you were creating a Court like this, a large part of the business of which would be the investigation of titles, to allow Mr. Hargreave to retire. With regard to the Master, Mr. Flana- 40 gan, he had for some years been debarred from his practice, and by his exertions had mainly contributed to the efficiency of the Court, and, therefore, it would be unjust to turn him adrift. The Incumbered Estates Court still had property to the amount of a million and a half of money undisposed of, and though the number of petitions was not now so great as it was, yet there was still a great deal of business which the Court would have to perform. He could give no opinion on the details of the Bill, but, concurring as he did in the principle, he would examine it with the utmost candour, and he hoped to be able to give to it his support.
§ SIR ERSKINE PERRY
said, he must beg to congratulate the right hon. and learned Gentleman opposite on having arrived at length at a decision on an issue which had been pending for some years in Ireland. The lawyers as a body were most desirous, if the existing system was to be perpetuated, that it should be committed to the Court of Chancery; but, on the other hand, the laity of Ireland, who had witnessed the benefits of the existing Court, were strenuous for its continuance under the machinery and supervision of a separate Court. The right hon. and learned Gentleman who had just spoken said the Attorney General for Ireland, as well as the present Lord Chancellor for Ireland, was opposed to the continuance of the system for the sale of incumbered estates. This, however, was hardly doing justice to the right hon. Gentleman for having sat on the Committee, of which those two right hon. Gentlemen were members, to the best of his (Sir E. Perry's) recollection they were strenuous advocates of the system. No doubt like all the rest of the lawyers in Ireland, they both wished to transfer the powers possessed by the present Commissioners to the Court of Chancery, and he (Sir E. Perry) believed he was the only lawyer on the Committee who espoused the cause of the laity of Ireland, and stood up for the maintenance of the Incumbered Estates Court. With regard to the principles enunciated by the right hon. and learned Gentleman, they seemed to him to be sound, and he trusted they would be practicable. There were only two parts of the scheme at which he felt inclined to demur—the proposal to grant an indefeasible title to parties holding incumbered estates, but having no desire to sell them. Now, the Committee of which he was a member had heard wit- 41 nesses of the highest ability who thought such an extension would open a wide door to fraud, and he thought the owners of such property might justly be called upon to wait until they wanted to sell before they got their title. Another feature of the plan was to enable the new Judges of this Court to appoint conveyancing counsel to discharge a portion of the duties which, the Commissioners of the Incumbered Estes Court up to the present time had performed so well. Now, the main value of the Incumbered Estates Court consisted in this—that the Judges did their own work by themselves, that they referred nothing, and if any inroad were made upon that system it would lead to all the delays and disadvantages which distinguished our Court of Chancery. With these reservations he should cordially support the measure.
MR. SERJEANT DEASY
said, he would not pledge himself to the adoption of the measure, but he thought it calculated to make a great improvement in the law of Ireland, and he hoped to be able to give it his cordial support. He believed it might be made a great benefit to Ireland, and if it passed into a law it would entitle the right hon. Gentleman to the gratitude of the country. He had some doubt with regard to the provision granting a prospective Parliamentary title; but that did not affect the general principle. It was a matter of detail that might be left for future consideration. He fully concurred in what had been stated with regard to Mr. Hargreave, and the admirable manner in which that gentleman had performed his duties; and the same observation applied to Dr. Longfield and Mr. Martley whose services had been very great, and he trusted that due regard would be pail to them. He saw no impropriety in one of them, if his services were not required, retiring on his full salary; but as there had been some little jealousy in the appointment to the post of Chief Commissioner of a gentleman direct from the ranks of the profession over the heads of the other two Commissioners who had served and done the heavy part of the work for seven years, he trusted that care would be taken to place the latter on an equal footing with their brother Commissioner. It was not correct to say that the Mastership of the court had been created for Mr. Flanagan. The fact was that Mr. Flanagan was a poor-law inspector, and he gave up that place to accept the office of secretary to the Incumbered Es- 42 tales Court with a salary of £1,000 a year. In consequence of the enormous pressure on the Commissioners, who, working as they did as hard as possible, found it physically impossible to get through the business, Mr. Flanagan was induced to accept the office of Master, with no increase of salary, but with a great increase of labour, and his services had greatly contributed to the success of the experiment of the Incumbered Estates Court. He was, in fact, the fourth Commissioner, and ought to be treated as such, and not in a different manner to Mr. Hargreave.
§ MR. DOBBS
said, he hoped the Registry Act of Ireland, which had been of such service, both in real property transfers and in assisting the Incumbered Estates Commissioners, would be improved, as a good opportunity now occurred of doing so. The Act would then be ancillary to the measure on the table. In Ireland a lawyer could at once put his finger upon a title and say it was a good title, but in this country it could not be done for want of a register of conveyances. He would venture to suggest to the right hon. and learned Attorney General that one way of making the Registry Act more perfect would be to require that deeds should be wholly registered. If that were done, the sale and purchase of lands in Ireland would be almost perfect.
§ MR. HORSMAN
said, he had heard with great pleasure that it was the intention of the Government to make the operation of the Incumbered Estates Court in Ireland permanent, as he had always looked upon the Incumbered Estates Court as one of the greatest benefits conferred upon Ireland. He wished to remind the right hon. and learned Gentleman that when an appeal court was conferred upon Ireland it was believed it would obviate the necessity of appeals to England. He hoped, therefore, in improving the Incumbered Estates Court, the right hon. and learned Gentleman would render it possible that appeals to this country should not be necessary.
§ MR. MALINS
said, the right hon. and learned Gentleman had gone through a wide field with regard to the principles which regulated the law of property, and the Bill would require the greatest consideration on the part of the House. He did not oppose the Bill, but merely wished to call attention to one point in the proposed scheme which it was extremely desirable the House should weigh well before it gave to it its assent—he alluded to the 43 extension of the principle in operation in relation to incumbered and unincumbered estates in Ireland. He also thought it was going rather too far when it was proposed to grant a declaration of title when a sale was not in contemplation. In such a case the declaration must be entirely ex prate, and it might happen, for instance, that a person whose title had been declared good in accordance with the proposal of his right hon. and learned Friend, had in reality no such title, and yet if the true owner came forward to claim his estate he could not proceed against the purchaser because he possessed a Parliamentary title. He had called the attention of the House to that point that it might not be supposed he gave an unqualified approval to all the provisions of the proposed Bill.
§ MR. WALPOLE
said, that with reference to the observations of the right hon. and learned Gentleman the Member for Ennis (Mr. J. D. FitzGerald) to the effect that the proposal under the notice of the House had been brought forward on a day which ought to be appropriated to the Motions of private Members, his right hon. and learned Friend (Mr. Whiteside) had not balloted for the day at all, but had, upon the contrary, waited until the ballot was over, and had not set down his notice of Motion until every hon. Member had had an opportunity of placing his own upon the paper. He felt assured that the manner in which the proposal had been received upon all sides of the House must convince the right hon. and learned Gentleman that the Government had been afforded every encouragement to induce them to proceed to carry it into execution. With regard to the objections of his hon. and learned Friend behind him (Mr. Malins), whose opinion he highly valued, he thought that if he had been present on the Committee of 1856 they would have been dispelled, for he (Mr. Walpole) was quite satisfied that a Parliamentary title could be given if provisions could be drawn for the purpose, for, from his own experience as a member of the Commission, he felt satisfied that a Parliamentary title to land might be granted, and he could conceive no greater boon to the landed interest than the granting of such a title would involve.
§ MR. DE VERE
said, he was glad that the Incumbered Estates Court would be perpetuated, and that it would be extended to cases where it was not intended to sell the estate, He merely wished to point out, as to the financial part of the scheme, 44 that it was proposed the Court should be self-supporting, and the principal support was to be derived from a per centage on the sales made under the Court. One part of the Bill, however, proposed to ascertain the soundness of titles of estates which were not to be brought into the market; and thus it appeared that all the expenses of the Court would have to be paid out of estates brought into the market.
§ MR. WHITESIDE
observed, that he might say in reply to the observations of the hon. and learned Member for Cork (Serjeant Deasy), he should be happy to consider the suggestion to deal with Mr. Flanagan upon the same principle as the other Commissioners, believing him to be a very able and competent man. The right hon. and learned Gentleman opposite (Mr. FitzGerald) seemed to think that the proposal which he (Mr. Whiteside) had just submitted to the House was his thunder; but he might inform him that in 1852, when Mr. Blackburne was Lord Chancellor of Ireland, he had asked him to draw a Bill giving the power of granting Parliamentary titles to the Court of Chancery, concurrently with the Incumbered Estates Court, inasmuch as it was thought that the latter court would be choked up. He did draw such a Bill, and it was introduced in that year to Parliament.
Bill to facilitate the Sale and Transfer of Land in Ireland ordered to be brought in by Mr. ATTORNEY GENERAL FOR IRELAND, Mr. SECRETARY WALPOLE, Lord NAAS, and Mr. SOLICITOR GENERAL.
§ Bill presented and read 1°.