§ Order for Second Reading read.
§ SIR ROBERT PEEL moved the second reading of this Bill, which, he said, was identically the same as that introduced last year by the Solicitor General; and that though it had been before the House eighteen months, no representations had been made to the Government against its provisions, except by the Council of the 266 Incorporated Society of Attorneys and Solicitors in Ireland. He had the highest possible respect for that body, but he thought the interests of the large body of persons, who would be chiefly affected by the Bill, ought to be first considered. Even that Society, however, admitted that the confusion now existing in the Registry Office in Dublin rendered some change absolutely necessary. The Law Officers of the Crown in Ireland were decidedly in favour of the measure; and the Judges of the Irish Landed Estates Court, to whom it had been submitted, said they were of opinion that it would be a valuable improvement in the law, and remove a great cause of delay in the transfer of real property. The immense and increasing amount of arrears in the Registry Office, which could not be attributed to the officials, showed that there was something radically wrong in the present system, which was introduced in the sixth year of the reign of Queen Anne, about 150 years ago. From that time until the present reign various amendments had been made in the law on the subject; but they had failed to place it, as he thought this Bill would do, on a proper footing. The object of the registration of assurances was twofold—first, the protection of the interests of the public; and secondly, the security of individual interests. The first clauses of the present Bill repealed the existing Acts, and consolidated the whole law; the 10th clause placed the Registry office under the Landed Estates Court; and the 37th, which was the most important of all, made the Ordnance Survey of Ireland the basis of the registry. This last provision was comprised in the Act of 1850, which had proved inoperative; but though he was aware that it was opposed, he would not admit that any valid objection existed to it. By having recourse to the Ordnance Survey, they got rid of the difficulty which arose from the same lands being called by a number of different names. It was a subject which he admitted would have been dealt with more efficiently by members of the legal profession; but seeing members of that profession present, he was sure that the questions connected with the measure would be satisfactorily discussed. The object of the measure was to deal with the system, and he thought a great advantage would be derived from simplifying the present complex arrangements; and he was confident that his hon. and learned 267 Friend the Solicitor General would be able to answer any objections that might be raised against the principle of the measure. The registration of assurances was a most important question, in which the owners of lands were mainly interested. He believed that the Bill would add greatly to the efficiency of this department in Ireland.
§ Motion made, and Question proposed, "That the Bill be now read a second time."
complained of the late hour at which so important a measure as the present was brought forward, in the absence of so many Irish Members. The Bill was one which would alter the whole law of property in Ireland, and affect most seriously every man of property in that country. The fact was, they had no proper Government in Ireland, and every Bill carried by the right hon. Baronet in regard to that country was opposed by the majority of Irish Members. Every eminent lawyer and man of experience in Ireland was opposed to the principles of this measure. He protested, in the first instance, against conferring upon the Landed Estates Court the registration of deeds, which was, to his mind, a monstrous proposition. The Ordnance Survey had never yet been taken as proof of the boundaries of property in Ireland, and it was most injudicious for the right hon. Gentleman to make it so in his present Bill. Believing that the principle of the measure could not be sufficiently discussed at that hour, and in the absence of so many of the Irish Members, he begged to move the adjournment of the debate.
§ Motion made, and Question proposed, "That the Debate be now adjourned."
§ MR. GEORGE
sympathized with the right hon. Gentleman in the difficulty in which he was placed by the absence from the House of the Irish Law Officers, who would have assisted him in the task of passing the Bill through the House. That was the right hon. Baronet's misfortune, and not his fault. He thought, however, that the matter was being disposed of in a very summary manner by the right hon. Baronet. He protested against the judgment of the Law Officers of the Crown in this country, however eminent, or that of 268 the Judges of the Landed Estates Court in Ireland, being taken as a settlement of so important a question as that involved in the present Bill. This Bill was of the greatest importance, particularly to the landed interest of Ireland. It proposed to transfer the old jurisdiction, established in 1706, to the Judges of the Landed Estates Court. For this no adequate reason had been shown. The present system had worked satisfactorily, and any disarrangement under it had been caused by the pressure of sales under the Landed Estates Court. All the arrears which existed some years ago, and which might have justified interference, had been cleared off, and the present state of the office was most satisfactory. If the Bill had been simply to enable the Treasury to give assistance to the Registrar whenever he needed it, it would have met all the necessities of the case. The Landed Estates Court was established merely to expedite the sale of estates, but it was not a Court for the sale of all estates, and he saw no reason why it should be intrusted with absolute power, control, and authority over the registration of deeds, as was proposed by this Bill. He objected to the adoption of the names of the townlands as on the Ordnance Survey, because they were in many instances inaccurate, and many old names attached to estates which were not the names of the townlands. The Ordnance Survey ought not to be made the basis of registration, and Parliament ought not to alter a system which had been successfully in operation for more than 150 years. The Act of Anne only required a registration of short abstracts of the deeds; but this Bill provided that deeds might be registered as a memorial or at full length, and thus the books would be inconveniently and unnecessarily incumbered. Another glaring defect in the Bill was the requirement to register all secret trusts affecting the property. There was one provision of the Bill to which he objected almost more than to any other; he alluded to that which related to the registration of wills and certificates of intestacy. He certainly thought it was, as a whole, a measure of too much importance to be read a second time without more consideration than could be given to it at a time so nearly approaching midnight.
§ MR. SCULLY
hoped that the proposition for adjournment would at once be acceded to. He protested against this 269 measure being proceeded with in the absence of so many Members from the sister country.
§ SIR HUGH CAIRNS
hoped the Government would not proceed with this Bill in the absence of the hon. and learned Member for Dublin University (Mr. Whiteside), who was so greatly interested in the question, and who was most anxious to have an opportunity of addressing the House on the Motion for the second reading. The owners of landed property in Ireland were unanimous in opposition to the measure, and had presented petitions against it, protesting against the number and character of the changes which it proposed to introduce, and declaring that they should view its progress through the House with alarm and apprehension. He had even heard, on good authority, that the Bench of Dublin entertained strong objections to the passing of this Bill, which the House had been told was almost identical with the objectionable measure of last Session. It had been said that the Judges of the Landed Estates Courts were in favour of the Bill, but it ought to have been added that they thought they should have all the appointments under the measure. But the Bill did not give them these appointments, and therefore he supposed they did not approve it. There were three most objectionable points in the measure:—The adoption of the Ordnance Survey of Ireland, not as ancillary to registration, but as supplanting the ancient names and denomination of estates; the second, the provisions relating to testacy and intestacy of estates; the third, the substitution for registration of memorials of the registration of the deeds themselves. These were points which would require full consideration; and he hoped the debate would be adjourned.
THE SOLICITOR GENERAL
said, that at so late an hour the Government had, of course, no alternative but to agree to adjourn the debate, though he thought no valid objection had been stated to the Bill. He must also observe that no less than three times the Bill had been adjourned to suit the convenience of the hon. and learned Member for Dublin University; but if another adjournment was to take place, he must still answer some of the objections taken by hon. Members who had asked for it. The Bill had not been hastily introduced. It had been, in nearly its present shape, a year before the country, without any serious objection being taken 270 to it. Many of its provisions were adopted from an Act which had already received the sanction of Parliament, as long ago as 1850, but which, from accidental circumstances, had never been brought into operation. The necessity for legislation upon the subject had been originally forced upon the attention of the Government, by a Memorial from the Law Society of Dublin in 1860, and by a Motion made in this House, in the same year, by the hon. Member for Dublin (Sir E. Grogan). The Law Society of Dublin then complained of the delay and expense of searches in the Registry Office, increased as they were by an accumulation of many years' arrears of entries and book-keeping, consequent upon an Act passed in 1832. The Government caused careful inquiries to be made into the subject; they had the benefit of two able Reports upon it—one in I860, from Colonel Leach, of the Ordnance Office; and the other in 1861, from Mr. Lane, an eminent Irish Queen's Counsel, who was specially appointed to investigate the state of the Registry. These Reports clearly proved the existence, not only of very great arrears and disorder in the office, caused less by any fault of the officers than by the minute and cumbrous requirements of the system, but also of great defects in the system itself, as prescribed by the statutes, which legislation only could correct. Although differing on some points, both these authorities agreed in pressing the immediate and urgent necessity for reform, and in indicating the main principles on which that reform ought to proceed. Both of them recommended that registration should always take place with reference to certain specified lands; that the names of the townlands, as given in the Ordnance Survey of Ireland, should be always used for the purpose of identifying the lands to be registered; and that the Ordnance Survey should be used as the basis of the Lands Index. The principal point in which they differed was, that Colonel Leach recommended the adoption of the townland division as the basis of the registration itself in the books of the office: while Mr. Lane proposed to make a new and wholly artificial division, by cutting up the Ordnance map into sheets, of equal size, and using each such sheet as the divisional unit. The subject was again carefully considered, in 1862, by a Committee of the Law Society of Dublin, nominated expressly for that purpose; and 271 their Report, with certain Amendments, was adopted by the Council on the 19th of February. That Report was altogether in favour of Colonel Leach's plan; and upon the plan, so approved by the Council of the Dublin Law Society, the present Bill was founded. The Government had reason to believe that in introducing it they were taking a step which would be acceptable to most of those who, in Ireland, had given serious attention to the subject. The leading features of the Bill were—the confirmation of defective memorials already registered; the abolition of unnecessary formal requirements; the simplification of the entire system of registry; the establishment of a direct connection between the Registry Office and the Landed Estates Court, the great Conveyancing Court of Ireland; and the adoption of the Ordnance Survey and of the townland division, as the basis of the Lands Index. These principles, down to the time when the Bill was introduced, had been advocated with little variation by every authority which could be referred to on the subject. He had already spoken of Colonel Leach's and Mr. Lane's Reports, and the Report of the Council of the Dublin Law Society; he might also refer to a much earlier Report of Colonel Larcom; who, in the year 1851, wrote thus—It is first necessary to consider, in regard to lands, what space or denomination shall be used in the index of names. Clearly, it ought to be the smallest space which pervades the whole country, and has a fixed recognised name or boundary. If farms, or even fields, fulfilled these conditions, they would be the best; but there can be no fixity in the boundary or name either of a farm or field; both are liable to change, and are changing rapidly. The townlands, however, possess all these requisites. Their boundaries can only be altered by Act of Parliament;" (this was not quite accurate, for it might also be done by Order in Council;)" they are recognised and used in all public transactions and assessments for county purposes, and various other public objects; and the Ordnance Survey is the authority on which their boundaries and designations rest. They are of unequal extent; but average only about 330 acres; the larger are most commonly situated in waste and mountain districts, the smaller in the neighbourhood of towns. They are also very commonly conterminous with the boundaries of property, and are very frequently sold entire.In the Reports of the English Commissions to inquire into the Registration of Title, the importance of the Irish Ordnance survey, for the purposes of the registry, was also strongly recognised; and, in the Act of 1850, as well as in the present measure, it was made the basis of the 272 whole system of registration. In 1855, the Commission on the Incumbered Estates Court, of which the hon. and learned Member for Belfast (Sir Hugh Cairns) was himself a Member, and which included the present Lord Chancellor, and Sir John Romilly, and also six of the most eminent Irish lawyers, expressed its strong approval of the principles of the Act of 1850. They said—The system of registration in Ireland affords peculiar facilities for perpetuating and extenting the principle of giving Parliamentary title; which will be greatly increased when the Act 13 & 14 Vict., c. 72, for the better Registration of Assurances, shall have been brought into operation.The principles of the present Bill were the same; and although the objections which had been suggested, no doubt, deserved careful consideration, they all went to matters of detail, which might properly be considered in Committee. Indeed, down to the present moment, no really serious intention to oppose the measure had been publicly expressed in any quarter. The petition, lately presented from the Law Society of Dublin (the same body whose Council last year reported so strongly in favour of the Bill) did not, even now, express any decided or positive objection to it; it merely suggested, that several of the proposed changes were important and required careful consideration, and for that reason asked, not that the Bill should be rejected, but that it should be referred to a Select Committee. Well, those points would, of course, receive that careful consideration which the Law Society desired, and they could be considered quite as advantageously in a Committee of the Whole House, as in a Select Committee. With respect to the principal points which had been made the subject of objection by those who had spoken that evening, and particularly by the hon. Member for Belfast (Sir Hugh Cairns), there was some misapprehension. It seemed to be supposed, that because the property comprised in each assurance was to be identified for the purpose of registration by the Ordnance names of the townlands in which it was situated, therefore titles would be placed in jeopardy, unless the same Ordnance names were used in the deeds themselves. But this was quite a mistake. The validity and operation of the deeds would be the same, by whatever denominations the townlands might be described in them. Nothing would be necessary, except, that 273 when the Ordnance names were not used in the deeds or in the memorial, some person acquainted with the lands should make an affidavit, showing in which of the townlands, as marked and named on the Ordnance map, the lands were situate. It was not too much to expect that the parties interested would be able to identify their own lands upon those maps which were universally known and used for all public and local purposes. Exception had also been taken to the clauses which provided for the registration of wills, and certificates of intestacy. This was represented as something entirely new in principle. The fact, however, was, not only that similar clauses were contained in the Act of 1850, which had already received the sanction of Parliament, and which was only not in force because certain things on which the commencement of its operation depended had never been done by the Treasury, but provisions exactly the same in principle were contained in the English Registry Acts for Middlesex and for the three Ridings of Yorkshire. Under all those Acts, unless a will was registered within six months, if the testator died in England, or within three years, if he died abroad (some further time being allowed in cases of litigation), any registered conveyance of the heir-at law, for valuable consideration, would take precedence of, and prevail against, the title of the devisee. The only novel feature, common to the present Bill and to the Act of 1850, consisted in the certificate of intestacy. But this was a provision merely for the greater safeguard and security of devisees, and not one to their disadvantage; for, while under the English Acts the simple omission to register the will would give priority to all registered titles created for value by the heir-at-law, under these provisions it would not do so, unless some primâ facie evidence of intestacy, resulting from unsuccessful searches for, and inquiries after, testamentary papers could be produced to the court which was to grant the certificate of intestacy; and the certificate itself, after registration, would always be revocable, in the event of any will being subsequently discovered. He would not detain the House by dwelling upon any further matters of detail; he hoped he had said enough to prove that there were good reasons for reading the Bill a second time; and he trusted that in its further progress it would be fairly and 274 candidly considered, with a view to its improvement, if necessary, and that hon. Members from Ireland would not, by their manner of dealing with such a subject as this, lay themselves open to the reproach of offering a blind and indiscriminate opposition to measures which the Government introduced only to meet a general and acknowledged want, repeatedly pressed upon their notice, and with a sincere and simple view to the benefit of the country.
§ SIR ROBERT PEEL
said, with regard to the absence of the hon. and learned Member for the University of Dublin (Mr. Whiteside), it was very hard that this Bill, having been adjourned upon three separate occasions in order to suit the convenience of the hon. and learned Gentleman, the Government should now be blamed for attempting to proceed with it in his absence. He hoped the House would read the Bill a second time.
§ Question put, and agreed to; Debate adjourned till Monday next.