HC Deb 15 February 1865 vol 177 cc262-77
LORD NAAS

then moved the second reading of "A Bill to enable certain Companies to issue Mortgage Debentures founded on Securities upon, or affecting Land, and to make Provision for the Registration of such Mortgage Debentures and Securities." The history of this measure was somewhat peculiar. Last year a Bill of this nature was introduced into this House as a Private Bill. It obtained the sanction of the House in all its stages as a Private Bill, and was sent up to the House of Lords. In that House the Peer charged with that department came to the conclusion that it was not fitting to deal with its contents as a Private Bill, but that it ought to have been brought under the consideration of Parliament as a Public Bill. It was, therefore, dropped in the House of Lords as a Private Bill, and in that House a Bill similar in its provisions was introduced. After undergoing a very minute scrutiny by their Lordships it was referred to a Select Committee, and thereby still more carefully considered, and he (Lord Naas) invited the attention of the House to the constitution of that Committee to show with what authority this Bill was now brought before the House. The Committee included the Lord Chancellor, Lord Derby, Lord Granville, Lord Stanley of Alderley, Lord Grey, Lord Wensleydale, Lord Overstone, Lord Portman, Lord Donoughmore, Lord Cranworth, Lord Malmesbury, and others. Those names were sufficient to show that the provisions of the Bill were carefully considered; and although they made some alteration in its details, they approved of its principle, and the Bill subsequently passed very much in the state in which it was now submitted to this House. It came back to the House at a period when the Session was greatly advanced — namely, the second week in July; and, although there was no opposition, the Attorney General suggested, very properly, that a Bill of so much importance could not possibly receive the attention it required, and it was withdrawn simply on account of want of time to discuss its provisions. The reason for making this a Public and not a Private Bill was that the advantages which, as a Private Bill, it was proposed to give to certain companies ought to be given to companies in general. The object of the Bill was a very simple one. That object was to inaugurate and promote a gradual extension of land credit throughout the country, and it was proposed to! do that not by the creation of any new system of incumbrancing or mortgaging land, but by, as far as possible, adapting the old system to the new state of things, and by adding to it a new system which would have the effect of remedying many of the evils to which he should presently have to allude, and which had already been recognised by Par- liament. The difficulties attending the negotiation of securities affecting land, and those which had always stood in the way of land credit, had more than once occupied the serious attention of Parliament. So far back as the year 1846 a Committee of the House of Lords which inquired into the burdens on land alluded very pointedly to this subject. Their Report stated that the market value of land was seriously diminished by the tedious and expensive process attending its transfer, and by the expenses which were incident to the raising of money upon landed securities; and Lord Langdale's Registration and Conveyancing Committee, which sat not long afterwards, reported very much to the same effect. Since that time the evils which were then complained of had been greatly aggravated. A great deal had very properly been done by that House to extend the credit of personal property, and to facilitate the sale and transfer of securities affecting personal estate. There had been an enormous extension of trade, and the application of the principle of limited liability to the industrial pursuits of the country had enabled aggregations of small capitalists to engage in operations which could formerly be carried on only by merchants, bankers, and large capitalists. The powers of trustees had been greatly enlarged, so that they might now invest trust funds in railway debentures, Indian loans, and other securities which, fifty years ago, were never to be found within the limits of a deed of trust. The advantageous rates of interest, combined with the security which many such undertakings offered, materially affected the land credit of the country, because persons who had money to dispose of found it advantageous to invest in railway debentures, or to embark in foreign, colonial, or Indian loans. All these circumstances had of late years been constantly at work, and had been yearly, and almost daily, narrowing the circle from which money could be obtained on mortgage of interests on landed estates. He did not mean to deny that it was still easy to obtain a first mortgage within any moderate limit as to amount; but he had it from very high authority that, if there was any prior charge upon the estate, even ordinary small family charges, the difficulty of effecting a mortgage or borrowing money upon the security of the estate was enormous. The fact was that the great bodies who mostly undertook that sort of business had their tables so covered with applications that they picked out the plums and threw the others aside. If nothing was done to remedy these evils they would go on increasing; for, looking at the present state of commercial and monetary affairs in this country, he saw no probability of anything occurring to increase the value or facilitate the operation of land credit. Parliament had from time to time recognised the evils of which he was now complaining. One of the great objects of the Land Transfer Act was to facilitate, not only the sale and transfer of land, but its mortgage, and to extend its credit; and the numerous improvement Acts, the Copyhold Enfranchisement Act, the Exchange of Lands Act, and all those of which the Inclosure Commissioners superintended the registration, showed how Parliament had from time to time endeavoured, to a small extent, to proceed in that direction. Much, however, remained to be done, because many undertakings which were most needed on public grounds, such as those for the improvement of towns, the reclaiming of land from the sea, and similar purposes, could not be carried on, in consequence of the inability of the persons who were concerned in them to obtain, in the present state of the money market, the loans which they needed, and for which they could give ample and complete security. The works, however, would prove unprofitable if executed by means of money borrowed at a high rate of interest. Before referring to the details of the measure, he desired to say that this Bill, differing from that introduced by his hon. Friend the Member for Cork (Mr. Scully), was not founded upon the principle that debentures should be issued upon the security of individual estates. He doubted whether a system of that kind could be made sufficiently safe, but he should be glad to hear what could be said in its favour. He had a strong idea that a debenture for a small amount, issued upon the security of a small estate, would not be of much value in the money market. In the case of larger estates it might do, hut he was certain that with reference to the smaller estates, which required the greatest amount of relief, a system of debentures secured upon individual estates would be practically inoperative. He could not think that even debentures issued upon the security of large estates would ever be found to command the same consideration and confidence in the money market as a debenture which formed one of a series representing mortgages equal or superior in value, issued by a financial company conducted by men of character, experience, and ability, who would offer to the public, beyond the value of the mortgages taken, the guarantee of a large paid up and a still larger subscribed but unpaid capital. He proposed to offer a public register, conducted by a public officer, which should be open to the inspection of the world, and a provision of that sort was, he thought, much calculated to recommend the system to general confidence, and to place it in a very advantageous point of view, when compared with that of his hon. and learned Friend the Member for Cork. He did not think that the operation of his plan would be so large as that of the hon. and learned Member, but he was certain that it would be much more safe. Another recommendation of his plan was that it would not interfere with the value of existing securities. Every one knew the enormous sum of money now invested on loan, and he thought it very undesirable that any decision of the House should suddenly and rudely do anything to reduce the value of those securities, by which the interests of a very large number of persons were affected. That was a consideration of so much importance that he thought it ought to be carefully considered in Committee. The system proposed by the Bill was, in reality, very much the same as had been in operation in Prussia for a great number of years. Under the Prussian system land debentures were generally issued by companies of landowners associated together for this purpose, and the lands belonging to the members were generally pledged as security. The Prussian system had been very well and very concisely described by the hon. Member for Westmeath (Mr. Pollard-Urquhart), who said— The land debentures in Prussia are issued by companies of landowners, which began to be formed in its different provinces in the year 1769 and the following years. In some of the provinces, it is optional with the proprietors to belong to them or not, as they please; in others they are obliged to do so, whether they wish to avail themselves of their advantages or not; or, in other words, all the property of the province goes security for the money borrowed by the companies. Mr. John Stuart Mill had also declared himself decidedly in favour of that system, which tended, in his opinion, to increase the value of estates. He said— In Germany one of the safest and most usual investments for small sums is a kind of land debenture. The mortgages there were divided into shares, and the documents which conferred the right to those shares were very generally in use as investments by all classes, and were found very convenient, and increased very much the facilities of mortgaging land for its value. They also increased the value of land. Herr Bulow Kummerow, a distinguished Prussian authority, speaking of the Prussian Land Credit Association, added— Land debentures effectually establish the credit of every owner of real property, inasmuch as he is enabled by their instrumentality to command a certain sum of ready money in proportion to the value of his estate. And while, on the one hand, the proprietor is free from the annoyance of having any loan on his estate suddenly called in, on the other hand the capitalist need not be paid off against his will. Every owner of property is thereby furnished with means of improving his estate, and paying off, if advisable, any joint partners or coheirs thereof that may exist. Now, if any hon. Member would take the trouble to compare the system, the adoption of which he proposed, with that described by the hon. Member for Westmeath, he would find that there was as great a similarity between them as could, under the circumstances, be expected to exist. The security offered under his Bill was superior to that offered under the Prussian system, because there was not only the security of the mortgages possessed by the Company, but also the security given by a large paid-up capital, besides the further liability of a private capital. The Bill was not in any way an enabling Bill, but it did provide that if persons wished to take the business in hand they might make an appeal to the registrar, in which case they must place themselves under restrictions of a very stringent character. The first provision of the Bill set forth what companies were entitled to avail themselves of the opportunities afforded by the Bill, and respecting each of such companies three rules were laid down—first, its object must be to make advances on the security of real estate; secondly, to borrow money on mortgage debentures; and thirdly, that the capital should not be less than £1,000,000 and the shares not less than £50 each, and that one-tenth, and not more than one-half of the nominal amount of such share issued, should be paid up. He did not think the regulation would be over stringent in that respect. The Bill then proceeded to describe the nature of the securities on which debentures might be issued—those comprising lands, tenements, and hereditaments, and it provided that when the documents were completed they should be produced to the registrar of titles for landed estates, and should be registered in a book kept by him. The clause then went on state that he was not to register any deed or instrument that was not shown to be good security to the company under the Act. Neither was he to register any security unless there had been produced for his inspection a certificate of a surveyor, who should certify that, according to his judgment, the value of the lands in question exceeded the amount to the extent of one-fourth at least of such advance. The company should be thus protected against accepting the security of any property beyond three-fourths the actual value of the same. Then upon the securities being so registered the company might issue mortgage debentures in such a way that the aggregate principal sum secured by all the mortgage debentures should never exceed at any time the amount of the registered securities of the company. That was the cardinal point of the measure—the Bill required that all means should be taken whereby the company would be obliged to carry out to the fullest all the conditions upon which it had been established. The company would be compelled to make quarterly returns to the registrar of all Mortgage Debentures issued, and of all securities accepted by it. He considered that a most important provision of the Bill, as those quarterly returns would necessarily be a bar to the issuing of any greater amount of debentures than that of the securities which the company held. No landholder could take back his deeds unless the instrument was really one to be cancelled, and unless the registrar was satisfied that the objects for which the deed was executed were discharged. Those quarterly returns would have the effect of placing in the hands of the registrar a perfect check over any company who might wish to do anything that was contrary to the provisions of the measure. He need scarcely say that, if any suggestions could be made to make the Bill more stringent in that respect, he should be most happy to adopt them. There would be a register of debentures as well as a register of securities kept. Every debenture when effected must be presented to the proper officer for registration; so that any person going to the office would see in the registry-book the full particulars as to the debentures that were issued. The latter part of the Bill provided for the appointment of a receiver in case the interest had not been paid, or in case of the principal monies secured by mortgage debentures not being forthcom- ing at the proper time. The Court of Chancery would have power to appoint this receiver upon the application of the parties interested. The receiver so appointed would be entitled to recover the whole or a competent part of the money due to the company. It was also provided that if the company should in any way place itself without the provisions of that Act, its operations should virtually cease. That part of the subject was dealt with under penal clauses. Those were the leading features of the Bill. It had been thought that the security proposed to be created here was one of such a nature as to induce the House to consent to giving trustees the power to lend upon other securities than those of mortgage upon real property. That was, no doubt, an important portion of the Bill. It was a proposal that he thought commended itself favourably to the consideration of the House, from a recollection of what had already been done in the same direction. Until lately the range of investment given to trustees was very limited, being restricted to the public funds and Government securities in England and Wales. But so great had been the demands of parties interested in joint-stock companies that the power of trustees had since been much enlarged. He was informed that in Davidson's Precedents on Conveyancing the power given to trustees for investment was extended to the Government Securities in any of our colonies, as well as to those in any parts of the United Kingdom, and likewise to certain corporations of public bodies formed for commercial purposes. According to that authority, trustees were empowered to invest in almost any possible security that could be found, But what the House had done in this respect was remarkable. So far back as 1834, it dealt with the subject. By the well known Act called Lynch's Act, trustees were empowered to invest money upon land in Ireland. Lord St. Leonard's Act declared, that when the trustee was not absolutely forbidden to invest in certain securities, it would be lawful for him to invest in any stock that presented the best returns. The Law of Property Further Amendment Act gave the Lord Chancellor power to order such investments as he deemed best. Other Acts of a similar character were subsequently passed, and it was now a remarkable fact that the Court of Chancery was in the habit of giving its sanction in reference to wards for investment even in rail- way companies which paid a good dividend. Those steps in advance, enlarging the power of trustees as to investment, were a great benefit to all parties concerned, without creating any risk as to the security of the trust funds. Under such circumstances, he thought that the promoters of the Bill had a right to ask the House to allow trust money to be invested in such debentures as this Bill proposed to issue. Some of the proceedings taken under the Land Improvement Act could never have been put in operation unless some such system had been sanctioned by that Act. Rent charges under the Land Improvement Act were effected in the same manner as the present measure proposed. Not less than £2,000,000 had been expended in the drainage of land under the sanction of the Inclosure Act, not one shilling of which would have been expended but for some such Act. He had no doubt that the Bill he had to propose might be considerably improved. He had been in communication with the hon. and learned Attorney General on the subject, who had suggested that this and the other Bills on the same subject should be referred to a Select Committee. He did not object to that course being taken. He believed that if the Committee were impartially constituted the result would probably be favourable to his Bill. At all events, he was sure that it would receive from the Committee that consideration which the importance of the subject deserved.

Moved, That the Bill be now read 2°.— (Lord Naas.)

SIR GEORGE GREY

said, that the noble Lord was correct in his statement as to what had passed last year on the subject; and also when he said that the course which his hon. and learned Friend the Attorney General thought it expedient should be taken with regard to this Bill, and the other Bills on the paper dealing with the same subject, was that they should be referred to a Select Committee. He thought the subject was one of great importance, and required most careful consideration, and, therefore, he proposed that the subject should be thoroughly investigated before a Select Committee. It must be distinctly understood, however, that in agreeing to read the Bill a second time, they were in no way committed to an adoption of the principle of the Bill, and were free to deal with it as they pleased when it emerged from the Committee.

MR. HENLEY

was glad that the Bill was to be referred to a Select Committee. He agreed with the noble Lord that the subject of it was most important. He saw no reason why landowners and mortgagees should not have "jobbers," as in the corn market—he meant by that, persons who came between lenders and borrowers. Everybody knew that there were parties who greatly wanted to borrow money, and that there were others who only wished to lend in driblets, and he, therefore, saw no objection to an intermediate party. Great public advantage would be the result if some such system could be established in the present case. But if, as the noble Lord had correctly stated, the present Bill was not an enabling Bill, why had he come to Parliament on the subject? Was it because it would furnish a kind of quasi security and encourage people to buy the debentures? It was a grave question whether Government officers should be mixed up in the matter at all. The noble Lord had said that they would be merely Ministerial, without any responsibility. But would not the public look upon them as in some degree responsible. He doubted whether all these negotiations would give any security, and whether it would not be a delusion so far as acts were concerned. They all knew that surveyors differed in their valuation of property quite as much as the margin referred to in the Bill, and as much as actuaries. All he asked was that the Government would take care that the security should not be an apparently Government one. They were all aware of what happened in the case of the savings banks, which people were led to place confidence in from the belief that they had Government security for their money; and he therefore trusted the example of the savings banks would be a warning to the Government not to permit this Bill to be made the instrument of a similar delusion upon the public. The case of the Inclosure Commissioners was not a precedent in point, because it was more possible to tell what would be the increased value to the land from drainage. These documents were to be taken bodily to the office, and were to be ticketed and docketed, but still they would not get rid of the difficulty of the investigation of title. In good hands, like those of the noble Lord, the object might be carried out without coming to Parliament at all. The noble Lord had not stated, when he alluded to the difficulty of borrowing money on a person's title, whether he intended that the titles should then be investigated. When that was once done, no doubt great advantage would be the result, as no further investigation would be required. He hoped the Bill would be referred to a Select Committee, and that they would put it into proper shape.

MR. SCULLY

thought the noble Lord had brought his view of the question forward very clearly, and had made no mistakes as to legal details. The subject was one of the deepest interest, especially to the owners of land. He should not oppose the second reading of the noble Lord's Bill, as it, his own Bill, and that of the hon. Member for the Tower Hamlets (Mr. Ayrton) on the same subject were to be referred to a Select Committee. He certainly could not say that he approved the details of this Bill or of its principle. The proper principle of a Bill of this kind was that of enabling landowners to raise money for the benefit of the landed interest, and not for the benefit of money jobbers. It practically gave to large companies a monopoly of the mortgages on land. On the face of the Bill these companies might borrow on any description of securities affecting land, but every one connected with the profession knew that there was only one sort of real security. Then again, he thought it most objectionable that money was to be advanced to the extent of three-fourths of the value on the mere certificate of a surveyor. There was a great similarity between this Bill and the Private Bill of last Session, for which Lord Redesdale had substituted a Public Bill in the House of Lords. It was a Bill that had been brought in for a private company, and he hoped the House would narrowly watch it, for it was not a Bill in the interest of landowners. As he understood the noble Lord's Bill, it contemplated the raising of £2,000,000, of which £100,000 was to be paid up. The remaining £1,900,000 was, under the last provision of the 3rd clause, to constitute the substantial security of the bondholders. The company was empowered to borrow on terminable annuities, which were no securities at all. His attention had been directed to this subject before the establishment of the Incumbered Estates Court; and an opinion of his own, written at the instance of a well known solicitor of those days, Mr. Pierce Mahony, contained a distinct recommendation of a plan for facilitating the transfer of estates, through a system to register titles, and to create land debentures. When the Incumbered Estates Act passed in 1849, there was an absolute race on the part of the solicitors to sell Irish estates; and the proprietors were compelled to look about for some means of creating a fund for the purchase of land, instead of allowing it to be thrown away at ruinous prices. The present Master of the Rolls, Sir John Romilly, introduced what was called the Securities for Advances Bill to facilitate this aim; but the great blot of the measure was that it compelled the landowner, instead of going into the market himself, to apply to some money jobber, who would be willing to advance the sum needed in globo. When this was pointed out, such a feeling was raised upon the subject in Dublin, that in ten days the views of the landowners changed, and they determined to petition against the Bill in the form in which it had been introduced. The principle of the Bill which he (Mr. Scully) proposed, and which had received the sanction of high authority, was, that the landowner, having an indefeasible title, should be allowed to have debentures issued to himself, or those whom he indicated, to the extent of half the value of the land. That would give greater security to the public than the plan proposed by the noble Lord. If an estate was valued at £20,000, he proposed that the owner should have £10,000 of debentures issued to him—namely, one hundred debentures of £100 each. The fact was, that if a debenture Bill were to be passed at all, it must be based upon one or other of two antagonistic principles — either it must have for its object to benefit the large money lender, or else to benefit the landowner. Now the high authority of Judges Longfield and Hargreave, of Master Brooke, and of men unconnected with the law like Sir R. Griffith, Lord Dunalley, and others of similar standing, was altogether in favour of giving power to the landowner, having an indefeasible title to create debentures to the extent of half the value of his land. The noble Lord maintained that such debentures would not circulate unless with the aid of some leviathan company. He believed, on the contrary, that the indefeasible title forming the basis of the security would insure the circulation; but, supposing it were otherwise, what was to hinder any company or joint-stock bank buying up such securities, and giving them the additional guarantee of their own endorsement, quan tum valeat. Was it proposed, he would ask, that the capital and the mortgage debentures of the company, advocated by the noble Lord, should be limited to £100,000, or that they should be indefinitely extended so as eventually to absorb the whole landed securities of Great Britain? The clause in the Bill was capable of either construction. It might be said that men were not bound to take their business to the company's shop; but once let it he established, and the same result would follow that had happened in Ireland, where a proprietor wishing to sell his estate was practically compelled to employ the agency of the Landed Estates Court. He protested against the doctrine that landowners as a class brought difficulties upon themselves by their superior improvidence. The fact was, that these came upon them owing to their want of command of ready money. A country gentleman with a property yielding £10,000 a year never shrank from a contested election, or other large expenses; but when he was called on to pay the bill then he was confronted with the difficulties of his position, and found himself really poorer than a man possessed of £20,000 cash. The principle of land debentures was not a new one, and the Prussian system was not so objectionable as the scheme of the noble Lord; because in Prussia the association was rigidly confined to landowners, who clubbed their properties together, and was altogether distinct from a company whose sole object was to screw the utmost possible amount out of the estates. The Crédit Foncier of France was an institution which issued a description of land debentures. There were also land debentures in the Channel Islands, and even in Ireland. For the Bill which he himself intended to ask the House to read a second time he had not been able to find an exact precedent, the nearest debentures in point of form being those issued in connection with drainage operations in Ireland; but there was no reason why a proposal, otherwise good, should be rejected solely on account of its novelty. In this age of reform and improvement, if any one proposed useful reform, novelty ought not to' be an objection to it. Where an abuse existed he thought the best plan for the reformer was to ask himself what was the best remedy, as if he had before him a tabula rasa; and when he had arrived at a conclusion then to ask himself to what extent that conclusion should he modified by precedents. To illustrate the probable working of his plan, the hon. Member read an extract from All the Year Hound, and went on to contend that there was no advantage claimed for the measure proposed by the noble Lord which was not better attainable under the Bill that he advocated. The present Lord Chancellor (Lord Westbury) was favourable to the scheme, and at the suggestion of that noble and learned Lord he had amended one of the clauses. It was very desirable that as this subject was to be referred to a Select Committee that tribunal should also have before it the three Bills, for which respectively the noble Lord opposite, the hon. Member for the Tower Hamlets, and he himself were responsible. For his own part, he had not much confidence in the ability of a Select Committee to deal with such a question. It could be much better considered by a Commission composed of competent lawyers, landowners, and merchants. Me trusted that the sending of the question before a Select Committee would be followed by a Royal Commission; and although, as one of the necessary preliminaries towards legislation, he now assented to the reference of these Bills to a Select Committee, he should reserve to himself the right hereafter of opposing any of the recommendations made by the Committee, as he believed the subject was of so wide and difficult a character that it could scarcely be dealt with in a satisfactory manner by a Select Committee. His own opinion was that the Crown should appoint a Commission, of distinguished and impartial persons, to institute a full inquiry into the whole question. In that House and upon Committees there were always individual interests leading hon. Members, however able, to approach the consideration of the subject with a foregone conclusion in their minds. The noble Lord, for instance, and the hon. and gallant Member beside him (Colonel Greville) were both connected with the company in whose interest this Bill was promoted, and instinctively they would be the advocates of that company before the Select Committee.

MR. AYRTON

said, everybody must admit that the landed interests had long been suffering from the great inconvenience and extreme difficulty of borrowing money upon land, and from the difficulty, not less great, of transferring loans and securities already effected from one person to another. The value of the security was depreciated in both ways, and the process was equally inconvenient for those who wished to borrow or to lend money upon the security of land. Some Gentlemen; recognising these difficulties, introduced a Bill last Session, and when it found its way into that House, he had called attention to some of its provisions which appeared extremely objectionable. Owing to difficulties of a legal and technical nature, it was impossible to borrow money on the security of land, or to transfer it in the manner proposed, without providing new legal remedies, and the measure was a great enabling Bill, which altered the law on this subject. The question was, however, whether, if there were to be intermediate agents at all, the Legislature should not give them more latitude—whether the nature and extent of the company should not be left to the discretion of those who were to form it and to avail themselves of its provisions. His own opinion was, that the agency should be of the most general character, and that any joint-stock company should be allowed to carry on the business on whatever basis the shareholders might desire. Another question also arose— namely, whether it was absolutely necessary to have any intermediate agency at all, or whether, on the other hand, Parliament ought not to enable the landowner to borrow the money himself by debenture. The most comprehensive Bill on this subject would be, he thought, that which the House would be most disposed to sanction. He, for one, should not give a preference to any measure giving great privileges to one set of persons that were denied to another. Hitherto the difficulty in carrying out a similar measure had been that there had been no land registry office to stand between the borrower and the lender, and to secure to the latter an adequate protection in the way of title. But, by the Lord Chancellor's measure, passed two or three years ago, establishing a land registry, these difficulties were obviated, and the landed interest might have all the facilities it desired for borrowing money. Having had something to do with obstructing the Bill of last Session, he had thought himself called upon to produce a measure of his own; and, as he understood it was the intention of the Attorney General to refer these Bills to a Select Committee, he should be happy to assent to that course. He differed from his hon. Friend (Mr. Scully), who thought that a Select Committee was incompetent to deal with this subject. He believed, on the contrary, that if the Committee pursued its investigations in a reasonable and impartial spirit, the result of the inquiry would be that a measure at once beneficial and satisfactory to the landed interest and the public might be framed and carried.

Motion agreed to.

Bill read 2°, and committed to a Select Committee.