HC Deb 20 April 1863 vol 170 cc448-62

Order read, for resuming Adjourned Debate on Question [16th April], "That the Bill be now read a second lime."

Question again proposed.

Debate resumed.


said, he rose to resume the debate on this Bill, which related; to a subject of great gravity. The size of the Bill alone was sufficient to give it importance. It affected the whole kingdom of Ireland, and all charges on land in that country, and must necessarily be a measure of great difficulty and complexity. It interfered with the provisions of a law which had been passed in the reign of Queen Anne, and his complaint against the Bill was that it revolutionized everything which had existed in Ireland, in, reference to the registration of deeds, for the last century and a half. Great men had lived before Agamemnon, and wise men had lived before Solomon; but he thought their forefathers showed much discretion when they passed the law which they were now called upon to subvert. In, the reign of Queen Anne there were clever men, successful statesmen, elegant writers, and generals who could fight and conquer, and he believed the men of that generation knew what they were about when they passed a measure for the general registration of assurances in Ireland. The object of the statute of Anne was, first to protect the community against forgeries; and secondly, to secure purchasers and others against frauds, by giving priority to a registered conveyance over an unregistered conveyance, whether it affected a contract, an equity, or a legal title. That law was passed by the Irish Parliament in the sixth year of Queen Anne, and in so doing that Parliament, he thought, had acted with great good sense. The Act provided, first, that the deed should be registered; and secondly, it fixed the mode of registration. The mode of registering was by a memorial of the deed, setting forth, in a concise form, the names of the parties to it, and the laud to which it related. The statute likewise provided that one of the witnesses to the deed should be a witness to the memorial, and that he should make an affidavit of having seen the original deed executed by one of the parties, as well as of his knowledge of the correctness of the memorial. As a further safeguard, it provided that the registrar should enter into heavy recognisances —to the amount of some £20,000—so that if any loss should accrue to a purchaser, by his neglect or oversight during a search, the registrar might be called upon to make it good. The statute of Anne rested the responsibility upon the registrar, and sought to effect the object in the shortest, cheapest, and most effectual manner. He had not been able to find out the reasons on the part of the Government for repealing that measure, and he waited anxiously to hear them. That Act was somewhat altered — he would not say amended—by the 8 Anne, c. 10, and by the 8 Geo I., which merely provided that the registrar might give a certificate to a pin-chaser that no other deed affecting the premises or property, except such as were mentioned, had been registered. The last Act passed by the Irish Parliament was in the 25 Geo. III., c. 47; and far from impairing the Act of Queen Anne, it carried out the law more cheaply and efficiently by enabling the negative certificates to be limited to particular lands, periods, and persons, if desired. By each of those Acts the responsibility of the registrar was preserved, but no reason had been given for repealing the wise legislation of the Irish Parliament; and he should have to ask the hon. and learned Solicitor General to explain why it was to be overthrown, and why the responsibility of the registrar was to be taken away. Up to the Union the law had worked well for the purposes for which it was framed, and no Act was passed in the English Parliament until 1823—the 9 Geo. IV., c. 57. He begged to call attention to that Act, because it touched the subject of patronage, which, he believed, was the real object of this measure. When he first entered Parliament, his right hon. Friend, afterwards Chancellor Napier, told him that he happened to be in conversation with the late Sir James Graham upon Irish Bills, and Sir James Graham said, in very emphatic terms, whenever you see a Bill of an apparently complex character brought in by the Government, look carefully for the patronage clause, and in that clause you will find the key to the measure. He found such a key to this Bill. There were at present nearly sixty permanent places, and from thirty to forty temporary places, connected with the Registry Office in Ireland. Although he did not complain of the Government wishing to distribute a hundred places among such discerning men as would give them their support, he did complain of any attempt to hoodwink the House of Commons by blinding them to the real object of the Bill. The Act of George IV., to which he had referred, provided that it should be lawful for the Treasury to appoint the registrar, assistant registrar, clerks, and subordinate offi- cers necessary to discharge the duties, and that the registrar should enter into recognisances in a less sum than under the statute of Anne—he believed £10,000— for the due performance of those duties. It provided, that on complaint on oath before one of Her Majesty's superior courts in Dublin of any default or misconduct by the registrar, sub-registrar, or clerks, the court should hear and determine the complaint: and if the court were of opinion that the charge had been made out, then the senior judge was forthwith to communicate a copy of the judgment to the Lord Lieutenant, who thereupon might remove the person complained of. Another important section of the Act also provided, that no person not being employed in the office should be allowed to inspect any memorial except in presence of some officer acting in the execution of his duty. Then it was directed that abstract books of memorials should be kept, and an index of the lands in each barony, with the name of the owner; but that no information should be given with respect to the memorial or register of any deed otherwise than upon application duly made to the proper officer, and that there should be a certificate in each case by the proper officer. The object of that provision was to prevent the publication of a black list with reference to gentlemen who might feel it necessary, as Irish landowners had been known sometimes to do, to borrow a little money upon mortgage. It was hardly necessary to say that the present Bill was framed, as a matter of course, on exactly the opposite principle. The other sections of 9 Geo. IV., were all to the same effect, regulating the office, but never, in the slightest degree, changing the language of the ancient fundamental statute of Queen Anne. Another Act—the 2 & 3 Will. IV.— was passed in 1832. Before being read a third time it was considered by a Select Committee which contained some distinguished names. They were Mr. Hume, Mr. Spring Rice, Sir F. Baring, Lord Granville Somerset, Sir R. H. Inglis, Mr. Shiel, Lord Stanley, Mr. Goulburn, and the Chief Justice Lefroy. The Committee called evidence to ascertain whether they should preserve the responsibility of the registrar, and after examining Sir Mathew Barrington, Mr. Pierce Mahoney, and other competent witnesses, they decided that question in the affirmative. They raised the question whether it would be better to inflict a penalty upon, rather than give the right of action against, the registrar, if he omitted any deed; and they were told that the penalty would be of no use, and that no remedy would be so efficient as that by action. As finally passed, the Act provided over again that the Treasury should regulate the Registry Office in the manner that might be considered most calculated to promote the public convenience—a very wide discretion; and the Treasury was also empowered to lay out the surplus fees in such a way as might render the office most useful and convenient to the public. Some provisions of the next Act referred to be liked, and some he disliked. He approved its preserving the responsibility of the registrar, and the right of appointment in the Treasury to all the offices in the department of the registry, and its maintaining the statute of Queen Anne; but he regretted the departure from the old law and practice known in Ireland for so many years. Under the old practice a book was kept, in which every transaction with land appeared under any particular person's name, and the whole could be seen at a glance. The Act of 2 & 3 Will. IV., however, introduced a system of sectional indexes, which showed how a would-be reformer might meddle, only to spoil. Under the old law, as it had existed for ten years, everything done under any name, in a given county and barony, could be found under the name; but the Legislature of 1832 decided that it would be better that the registry and the search should be made, not in the name, but in the first two letters of it. Thus "Fortescue" would be looked for under the letters "Fo," which involved confusions with "Fox" and "Ford." Under that arrangement three hours were required in looking for information, which under the old system could be obtained in ten minutes. That was the species of improvement which was to be followed as a precedent on this occasion. The officers of the Registry Office did not adhere to so cumbrous a plan, but reverted, when they came to make the decennial index, as there was nothing in the statute absolutely to prevent them from doing, to the old and simpler system. Nothing further was done in the office till an Act of the 11th of Vict., was passed, requiring copies of negative searches in the Register to be preserved in order to cheapen and simplify subsequent searches. But persons dealing in land were found to prefer hav- ing the whole thing done over again from the beginning, and to pay for it down on the nail, rather than trust to the accuracy of these copies. Thus the Act of the 11th of Vict. proved futile. A system of jurisprudence had been built up on the registration law of Ireland, which had existed for upwards of a century, and with which the legal men in Ireland were all familiar. Every word of the statute of Queen Anne had been expounded by the ablest Judges of the land, and his great objection to the Bill before them was, that where they had a law long known, settled, and judicially interpreted by the very highest authorities, it was most impolitic and unwise to change it, except under some overpowering necessity. When the Incumbered Estates Court was established, it was found that that tribunal could do nothing without the assistance of the registration officer, because every registered deed had priority over every deed that was not registered. It was then deemed necessary to improve the Registry Office, and, accordingly, Sir John Romilly's Act, the 13 & 14 Vict. was passed—a measure than which nothing more extraordinary had been seen, always excepting the Bill before them, some of the provisions of which had, indeed, been unwisely imported from it. That Act was announced as a very good law which ought to be the basis of registration; it was provided by one clause that it was not to come into operation until the Treasury proclaimed by order that it should; but as a warning to all theorists, although it had been drawn up with the most perplexing ingenuity, the Treasury were told, that if put in force, it would neutralize the effect of the Incumbered Estates Act, and create endless embarrassment and litigation. The Lords of the Treasury were at that time men of good sense, and from that hour to the present the Bill never had been put in force. How, then, could this measure, which was in the main a transcript of that Act, ever be enforced? The next question was, how had the Office for the Registration of Deeds worked to the present moment? The right hon. Baronet had been persuaded to say that this office was in a state of confusion; that there was a great arrear of business, and that many complaints were made of it. But when the law passed to improve the administration of the Incumbered Estates Act, how did the Registration Office transact its business? He was lost in astonishment at the hardihood of the assertion that the men in office were incompetent, and that the office had failed in the performance of its duties; for, unaided and unassisted, the office had contrived to transfer the greater portion of the soil of the kingdom. What office in the British Empire had done its work so well? The War Office broke down under a strain; the Commissariat Department also broke down; and what quantity of land had the office in the English Court of Chancery transferred? He challenged the right hon. Baronet or the Solicitor General to instance one single well-authenticated case in which the Irish Registration Office had failed in its duty in the transfer of many millions' worth of property. He admitted that searches of a difficult character might be held back for three months or so, but there was no instance in which a search had been imperfectly or irregularly made, or in which the office had failed to do its duty. But now, instead of receiving the thanks which they deserved, they were told by the right hon. Baronet that they were incompetent to perform the functions which the Legislature had imposed upon them. Was the House prepared to accept the speculations and theories of those who had invented certain clauses of this Bill, and to set at nought the practical results obtained through the working; of the present law? It was true there had been a delay in the keeping up of certain transcript books, but that had arisen from an endeavour to assist those who desired to make searches, and this was the consequence of efforts to facilitate the working of the Incumbered Estates Court. Instead, however, of the office being in a state of confusion, he could testify that it was one of the most orderly and well-managed departments he had ever known. The mode in which the business was done was this:—The solicitor brought in the deed and the memorial; the deed was first examined to see that the proper stamp was upon it. That was a matter between the office and the Treasury. The guard against forgery under the old statute of Queen Anne consisted in this, that the deed and memorial were both deposited in the office for three or four days for examination, and he knew and had heard of no case of forgery but one in the last three-quarters of a century, for no one would like to risk leaving a deed containing a forgery for three or four days. The memorial was handed over to the abstract clerk, who abstracted everything from it of importance, and the abstract was given to a clerk in the office, who copied it into the abstract book, and those who came to search seldom looked at the memorial. This abstract was the basis of the land index, as the day book, containing the names of the persons conveying land, was the basis of the book of names. In a few days the deed was handed back, and he could assure the House that at present about a million of memorials were arranged in the fire-proof safe with such precision that a stranger could find any one of them in a space of time that would astonish his right hon. Friend. If time permitted, the memorial was sent into the transcribing office, and transcribed to be bound in a book. This transcribing the memorials was in arrear; and he asked what the right hon. Gentleman was instructed to say was the extent of that arrear. He was told the whole of it would be cleared off in three weeks, and that was ten days ago. The comparison of the abstract book was complete up to the latest possible period — that was to say, that the material for the land index was complete to within three weeks, and the day book and the names index depending thereon was made up to within three days. He believed he need not state what was the requisition for a search, or how it was made, but he might say it was made by a man perfectly competent; when they had fished out the names, and analyzed the requisition, they made the search with comparative speed. As to the books in the office, he had seen them. The books to 1785 were in dictionary order. Of these books there was a perfect transcript, which had not been compared for want of hands, from 1708 to 1785. There was a complete corrected register from 1785 to 1832; the books were in dictionary order, and all that was required there was to copy them into the parchment books to provide against accident by fire. From that time began the books under 2 Will. IV., commencing perversely with the two letters, and which he should recommend to be discontinued. They were kept to make the quinquennial book. That brought him to the great land sales from 1841 to the present day; and this brought them to the main question. These gentlemen had done their work successfully and well, and without any mistake, and the books were now in dictionary order. The fees of the office had been more than £30,000 above the expenses. The Treasury had given them an additional supply of thirty clerks, so that the work in arrear might be completed; and the dictionary from 1850 to 1859 contained 200,000 entries requiring to be consolidated and examined. That work had been done completely and perfectly. Indeed, the operations of the office were performed with mathematical accuracy, in his opinion, never equalled; and he was at a loss to conceive—having regard to the period of time, and the sales of such immense amount during the last twenty years—how it could be possible to construct an office upon any scale, contrivance, or speculation, that would do the work more safely, securely, and perfectly, than these two books proved it to have been done. And if that practical result had been obtained, he required to be informed, in a practical assembly, why that office was to be change, to be revolutionized, and what practical object was to be gained? One of the schemes propounded was printing on parchment. If several hundred copies were required it might be desirable to have the records printed instead of transcribed; but where only one or two copies were wanted it would be very costly to call in the aid of the compositor. He had seen a specimen of printing on parchment by Thom, of Dublin, one of the best printers in the Kingdom, but the impression was pale and illegible compared with the manuscript of the engrossing clerks. He did not say that they could not have matter printed on parchment as dark and as large as they pleased; but he contended that they ought to have a specimen of engrossing and printing laid before them, and an estimate of the expense of both, before they cast aside the old practice and adopted the novelty. Another obstacle to printing was the prohibition against carrying any of the records out of the sight of the officers in charge of them. This order was essential, in consequence of the abstraction of a page of a will, and the substitution of a forged leaf, on the occasion of an important law suit. Although the fraud was, in the first instance successful, suspicions were aroused, and on inquiry it was detected. If, then, the documents were to be printed, were the records to be sent to the printing offices? He apprehended that no Parliament would assent to that project. Then were they to build a printing office in connection with the establish- ment? Where was the ground for it? The idea of printing the documents in daily use was altogether visionary. Having, then, explained the condition of the office, he would call attention to the clauses of the Bill. He objected to the provision in the Bill that the direction, management, and superintendence of all the departments of the Registry Office should devolve on the Judges of the Landed Instates Court. There was no similarity or connection between the duties which those gentlemen had discharged and those which would he imposed on them by the Bill. It might be very well to grant an appeal to them on points of law, or in regard to misconduct, but it would not do to burden them with the entire management of the office. The next clause, 11, revolutionized the entire establishment of the office. It enacted that the Register Office should consist of a registrar, two assistant registrars, and so many clerks and officers as the Lord Lieutenant of Ireland, with the sanction of the Commissioners of Her Majesty's Treasury, should, from time to time, think fit. He had already shown that the appointment to all these offices was fixed in the Treasury according to the Civil Service regulations; and were it not that the Bill emanated from his right hon. Friend opposite, he should have said that a ranker job could not have been suggested than to transfer the appointment to the Castle at Dublin. Another part of the Bill to which he objected, had reference to certain temporary officers. He had already stated that the Treasury had at present under their control some thirty or forty clerks, who were appointed merely for temporary purposes, and who, at the present moment, were on the point of dismissal. That branch of the service was to be given over to the Landed Estates, Court, and to that proposition he objected. He did not object to see Judges appoint their sons and relations to places in the courts over which they presided, because he thought that the parties then worked; harmoniously together; but he objected to those particular appointments being taken from the Treasury and given to Judges to whose court the appointments did not belong. It might, be recollected that an Irish registrar general was once a Member of that House, and yet he maintained that the 80th clause dealt with officers of the highest class—such as the registrar and assistant registiars—as a police magistrate might deal with a drunken constable, enabling a Judge of the Landed Estates Court to stop their salary and dismiss them without appeal. That was a clause he would never agree to. Clause 32, which was an important part of the Bill, implied that registration might be effected either by memorial, or by copy, or by counterpart. Now, the first plan was the present practice in Ireland, and was short and cheap; but he believed that the gentlemen of the Landed Estates Court had come to the conclusion that the whole of the past law was wrong, and that the entire deeds of every gentlemen in Ireland should be put on the register. If the Bill passed, there would, no doubt, be a black list of every gentleman who had a mortgage on his estate placarded to the world, and those gentlemen would deserve it for allowing such a law to be put on the statute book. Then again there was an alteration, of the existing rule, according to which, where a deed was executed by one of the grantors or grantees, it can be registered as against all parties. But this existing state of the law was to be abolished. The very form of making the affidavits by the witness who were to attest the execution of the deed and of the memorial was altered, unnecessarily and with considerable risk. Then he came to the question of making the Ordnance survey the basis of the registration. On this point one would have expected that the Bill would have been in accordance with the recommendations of the gentleman whom the Government had appointed to inquire and report on the subject, but it was not. They had appointed a gentleman of eminence at the Bar to make a report, and after a full consideration of the matter he abandoned the town land basis as impracticable, there being no less than 63,000 town lands in Ireland, it was said, of an average of 300 acres each, but some not containing ten acres. More than that, Mr. Lane, the gentleman to whom he referred, had prepared a sketch of a Bill; but the Government had never asked him for it, and he felt that in honour he could not communicate it to any one else in the present state of the question. That was Mr. Lane's reply when he asked him what his plan was. But if there were more town lands than one in the same barony bearing the same name, how was the consulter of the Ordnance survey to decide as to which of them the registration was against? In Westmeath there were two town lands of the same name; in Fermanagh three of the same name; in other counties there were ten and twelve of the same name. He wished to know how these were to be distinguished from one another by the registration proposed in the Bill? How was it possible to avoid confusion and error under such circumstances? The principle of compulsory registration, founded on the basis of the Ordnance survey, was opposed to the report of Mr. Lane, and of the Irish; Courts. The Scotch Commissioners, also, after fully considering the subject, had reported against a similar change in the system of registration. The Bill further contained a most offensive clause against the respectable body of the solicitors of the country, for it provided that, instead of the pecuniary compensation from the registrar, any solicitor who wrongfully registered a deed should be tried at the Old Bailey for a misdemeanor. Why, how could such a provision be carried out, seeing that no means were provided for identifying with the names in the Ordnance map the names; of the denominations in the title deeds, especially as the localities and boundaries were changing every day? Then under the Bill, what remedy was there for man who might lose his land under a false or mistaken registry of it deed? Why, none whatever, because it would be no remedy to prosecute for misdemeanor a fraudulent solicitor. A capitalist might lend,£30,000 on an estate, but his solicitor might not possess a penny Suppose that solicitor wilfully and improperly registered the deed against the wrong townland; why, then, under the Bill, the capitalist must lose his £30,000. He would further ask the Government to strike out of the Bill all the clauses relating to the registration of judgments. There was at present a Bill on the table to abolish the existing law upon that subject; and the clause in the proposed measure would act as a positive embarrassment in the way of the transfer of land. Then it was highly objectionable that the registrar should be changed from a Ministerial into a judicial officer, as was proposed by the Bill, and that a man might be declared to have died intestate as to his real estate with such facility. If a man died this week, and his son, being a scamp, persuaded the Judge of the Probate Court that his father had died intestate, he might, by help of a certificate of intestacy, immediately sell the estate, and go to another country with his plunder; he then became a trustee for the family he had lobbed, and the Bill, while enabling the Judge to recall the probate, declared the sale of the estate by the fraudulent heir good. He was willing to take for Ireland any law that might be passed for this country, no matter what that law was; but let not the House be so unwise or so impolitic as to pass a law for Ireland which they would not dare to pass for England, a crotchet of somebody's, but which nobody understood. The 76th clause enabled a single Judge to dispose of all priorities, to set aside deeds, to register deeds at his will and discretion, and to do as he might think particular documents conformed to the spirit, and not the letter, of the Act of Parliament. That astounding suction rendered every other clause in the Bill unnecessary. The Bill, in short, introduced novelties of such a kind, and introduced such difficulties, that lie did not believe it would ever become the law of the land. It was remarkable that a Bill so vast, and that concerned the land, the law, and the property of Ireland, should be represented on the Treasury bench by the right hon. Gentleman the Member for Tamworth solus. If he should carry it, he would be the political Coriolanus of the age, for he would be able to say, "Alone I did it." A vacancy in the metropolitan county of Ireland had now occurred, and there was an opportunity of enabling the right hon. Gentleman's law advisers, if they thought fit, to give him the assistance he required. The Irish Members did not desire to give the right hon. Gentleman more trouble than they could help, during the existence of his provisional administration; they did not wish to lay themselves open to the unnecessary censure of the Solicitor General, and to be accused of giving a "blind and indiscriminate opposition" to this Bill.

Question put.

The House divided: — Ayes 56; Noes 41: Majority 15.

Bill read 2°

On Question that the Bill be committed for Monday,


said, he wished to give notice of his intention to move that the Bill be referred to a Select Committee.


said, he wished to ask the House whether they had ever witnessed such a scene as that which had just taken place. Upon the second reading of a, Bill of the utmost importance to Ireland a right hon. and learned Gentleman had felt it necessary, in a most able and argumentative speech, occupying some hours, to show how objectionable the measure would prove to the sister country, and not one occupant of the Ministerial Bench had thought it becoming him to reply to it. He considered such conduct upon the part of the Government as an insult to Ireland. The division list on the following day would show, as usual in reference to the Bills of the right hon. Baronet the Secretary for Ireland, that the vast majority of the Irish Members had voted in the minority; but they were swamped by the votes of the English Members, who knew nothing, and cared less, about the interests of Ireland.


said, the Government had introduced the measure believing it to be one of a very useful character and to be called for by the people of Ireland generally. The progress of the Bill had been several times postponed to meet the convenience of the right hon. and learned Gentleman the Member for the University of Dublin. His right hon. Friend in introducing the Bill having stated very ample reasons for recommending it to the House, could not again be heard in the same debate, and he himself on the occasion when the Bill was last under consideration dealt with the principal objections then brought against it. His right hon. and learned Friend the Member for the University of Dublin, with his usual ability, had made a speech occupying no less than three hours, but he had not touched in the least on the general principle of the Bill. His objections, however important, were wholly to the details of clauses, and some of them had been answered by anticipation. As the speech of the right hon. and learned Gentleman only closed at twelve o'clock, if he had attempted to answer it, the House might have been compelled to sit till three o'clock in the morning, which would have been unreasonable. Besides, the only result would have been to play into the hands of any hon. Members who might wish to defeat the Bill by delay, a course which the Government had no intention of adopting.


said, the House had a right to hear from a Gentleman of the ability of the Solicitor General reasons for any measure he advocated, otherwise they must believe he had no reasons to give. The objections which he had just urged, so far from being points of detail, were regarded by many of the heads of the profession in Ireland as involving matters of the highest principle. It did not follow, because a Gentleman thoroughly unconnected with Ireland chose to say, "Here is a Bill; take it, and do not argue it; or if you do, you shall not be answered," that such a system of carrying on the business of the country could be tolerated.


said, it seemed to have escaped the right hon. and learned Gentleman that the Bill had been debated for several hours on a previous evening, and that his hon. and learned Friend the Solicitor General made a speech on that occasion marked by all his usual ability. He would have learned this fact had he read the newspapers.


said, he thought the opinion they had heard that night from the right hon. and learned Member for Dublin University (Mr. Whiteside) was well worth waiting for. He would not be deterred by threats from offering opposition to every stage of an unjust and unnecessary enactment.


said, the measure being one that would have the effect of almost confiscating the properties of Irish Members, they were determined to give it every opposition in their power. It was too bad that the Irish Members, who naturally felt deeply interested in the Bill, should find themselves outvoted by a number of English Members who cared not a farthing what injury the measure did to the sister country. The fact was, the people of Ireland were becoming everyday more and more disaffected towards this country, and were looking with much hope and expectation to the United States of America for a redress of their grievances.


said, he rose to order, and to ask what was the question before the House.


said, that the question was, that the Bill be committed on Monday


said, that if hon. Gentlemen were anxious to play the strict game, he might call them to order almost every second sentence. On a future occasion he would enter fully into the subject.

Bill committed for Monday next.