The LORD CHANCELLORsaid, that before moving that the Commons' Amendments to this Bill he considered, he wished to state generally what the nature of these Amendments was. Their Lordships were aware that the Bill, as it left their House, merely provided for the sale of encumbered estates by application to the Court of Chancery in Ireland, either on the part of the owner, or of the encumbrancer. But it had been suggested that the expense and delay of an application to the Court of Chancery might be very great, and might in some cases be avoided with advantage to all parties. He had been himself familiar with the practice of the Court of Chancery for many years past, and he well knew the great benefits which it conferred upon the public; but at the same time he should own that he would not willingly enter that court as a suitor, nor would he 1020 advise any friends of his to do so, if they could with propriety keep out of it; and the therefore felt that the attempt of enabling parties to attain their object without undergoing the expense and delay necessarily consequent on an application to that court, was a most desirable one to make. He thought, therefore, that the only difficulty which their Lordships would have to provide against was, to take care that the object sought to be attained by these Amendments could be arrived at with perfect safety by the scheme proposed. The noble and learned Lord then proceeded to detail the nature of the Amendments made by the House of Commons in the Bill, and concluded by moving that their Lordships should agree to their adoption.
LORD STANLEYcould not avoid making a few observations on the Motion, although he had no intention of following the Lord Chancellor through his observations upon the Bill and the Amendments. At an early period of the Session, his noble and learned Friend (the Lord Chancellor), after a full discussion and consultation with the other Members of Her Majesty's Government, had brought forward upon their part a measure of a very critical and complicated character—a measure framed for the purpose of dealing with certain interests in Ireland in a manner in which their Lordships would certainly not deal with similar interests in England or Scotland. One of the principles of it was, that under the provisions of the Bill no estate could be sold for a less sum than would be sufficient to cover the amount of the encumbrances, and to cover also the interests of the remainder-man and of minors who were under the care of the Court of Chancery. And he (Lord Stanley) well recollected an expression of the Lord Chancellor, "that those powers asked by the Bill were great and extraordinary powers; and he would not ask for them if they were not to be directed and controlled by the Court of Chancery." He (Lord Stanley) believed there was every wish on the part of their Lordships to facilitate the measure, and to sanction and agree to the principle of it, and to bring it into practical effect as soon as possible, by enabling parties having an interest in encumbered estates, the nominal owners of which were incapable of discharging the duties of a proprietor by reason of their encumbrances, to dispose of their estates, and introduce a class of owners who should be competent to discharge the duties which appertained 1021 to the possession of property. No opposition was made to the proposition of the Government. Objections made out of doors and in private were taken into consideration; and after two or three recommitments for the purpose of effecting improvements, the Bill was passed, and sent down to the House of Commons. Her Majesty's Government subsequently became satisfied that they were wrong in their' original proposition; and they were unable to carry their object into effect. And unless he (Lord Stanley) was much misinformed, the Bill which had been introduced by the Lord Chancellor as a Government measure, which had been considered and reconsidered by the Government whilst in their Lordships' House, had been, he would not say amended—but altered, in the other House, so as to be now practically a new Bill. Clauses had been introduced to set aside and supersede the very principle; proposed by the Lord Chancellor in that House; and they were moved by no adverse party, but by Her Majesty's Solicitor General himself. So that the Bill now before their Lordships was one introduced by the Solicitor General, super-seding the Lord Chancellor's, and setting aside those safeguards and defences which the Lord Chancellor had in their House declared to be indispensable. That was a most unsatisfactory mode of legislation to be carried on between the two Houses; because, when the Lord Chancellor introduced a Rill in the early part of the Session in the name of the Government, and when, in the face of that declaration upon the part of the Government, that House passed the measure, it was rather an extraordinary and, he thought, rather an inconvenient course that they should receive the Bill back from the other House wholly altered in its character, and that the noble and learned Lord who had introduced it should himself be the person to propose their Lordships' agreement with those. alterations which made it a virtual substitution for the Bill originally proposed by him, and agreed to by their Lordships. The Bill, as originally framed, had been passed in the presence of almost every Irish Peer. Those Irish Peers were now requested to attend elsewhere. He was not using too strong an expression when he said that a rebellion had broken out in Ireland; and it was when nearly every Irish Peer had gone to attend the more pressing duties which awaited them in Ireland—in the absence of these Peers—when 1022 there were not more than five or six Irish Peers present—the Bill was sent up to their Lordships. It was brought up on Friday, printed, and delivered to the Members of that House; and on Monday they were called upon to discuss and dispose of at one sitting that which, if it were a new Bill, including as it did no less than twenty-three new clauses, they would have had, at all events, the security of a first reading, a second reading, a Committee, a report, and a third reading—a stage on which to discuss not only the principles but the details of the clauses, and the powers which were proposed to be given by it—changes which involved a new principle; and that, without affording the persons whose estates they might be about to play away an opportunity of remonstrating, or at all events of knowing what was the nature of the alterations. Their Lordships were now called upon to pass a measure fundamentally opposite to that which had been adopted by their Lordships and sent to the Commons, and to pass it with a single vote, and without having an opportunity to communicate with legal persons as regarded the legal effect of technical enactments. Again he said it was a most in-convenient mode of legislation. He did not say that those changes could have been avoided, or that the Solicitor General could or could not have thrown that light upon the subject at first which he had subsequently; but this he would say', that there was not a single Member of either House of Parliament, there was not one lawyer in either House, there was neither a Peer nor a Commoner who could be found to agree to that Bill being carried either for England or Scotland. And yet the English and Scotch Peers, in the absence of the Irish Peers, were about to legislate for them in a manner and upon a principle which confessedly they admitted they would not apply to themselves. He Repeated, the Bill was a new one. It contained twenty-three new clauses, and not more than twenty-four of those which had passed their Lordships' House remained unaltered. Under those circumstances he (Lord Stanley) thought it would not be an unreasonable proposition that the Amendments of the Commons should be submitted to a Select Committee to report to their Lordships what were the technical as well as the practical effects of the Amendments made by the House of Commons. There was one portion of the Bill to which he should make a brief; it was that which 1023 involved the risk of collusive sales of property. An incumbrancer having an incumbrance of only 200l upon a considerable property, might apply for a sale of it; or a man might buy up a number of small incumbrances on several estates, and so bring a large number of estates at one time into the market, thereby reducing the market price, and so effect collusive sales at the then nominal marketable value. For the value was to be checked by nothing more than the provision that a Government officer should certify that the price paid was the full value of the estate. But how was the value to be ascertained? Why, the real value of an estate in the county Tipperary at the present time would be a difficult matter to judge of. He did not know whether it would be estimated at five years' or at ten years' purchase. He himself had the misfortune to have property there; fortunately it was not encumbered, and therefore it would not be affected by the operation of the Bill. But he should be very sorry to part with it for what a Government officer would certify to be the fair marketable value at the present time. As to the Amendments made by the House of Commons, although he would not then make any distinct Motion, if he saw any wish or disposition on the part of their Lordships to think favourably of that to which he had alluded, he should be ready to move that the Amendments be referred to the consideration of a Select Committee. He considered the original object of the Bill a wise and a judicious one; but for the reasons he had stated he thought that the alterations subsequently made in it required full and mature consideration. The noble Lord moved an Amendment—
That the said Bill be now referred to a Select Committee to consider of the said Amendments, and to report to the House.
The EARL of WICKLOWfelt surprised at the nature of the Amendment proposed by the noble Lord after the statement which he had made. The noble and learned Lord had gone into the history of the measure, and had clearly shown that the Amendments made by the Commons were in conformity with the principle of the Bill as originally introduced. All that was left for them, then, was to say whether or not they would reject this Bill, the principle of which had already received the almost unanimous assent of the House. The Bill certainly had come back from the other House with Amendments; but these had received the sanction of the noble and 1024 learned Lord on the woolsack, who had introduced the measure. Therefore, it was clear that he, as well as the Government, entertained the opinion that the Bill had not undergone such a change as essentially to affect it. He believed that any one who would take the trouble to consider the Amendments which had been introduced into the other House would readily be able to understand them without legal assistance. As far as his own opinion was involved, he regarded them as improvements in the Bill. Under these circumstances he did not think that there was any necessity to wait for the attendance of other Irish Peers, for they had already adopted the chief objects of the Bill. If they adopted the suggestion of the noble Lord, it would be equivalent to waiting till the next Session. This, he conceived, would be objectionable, as he believed that this would tend more than any other measure to ameliorate the condition of the country.
§ LORD MONTEAGLEfelt so strongly the necessity of some such remedy as that intended by his noble and learned Friend the Lord Chancellor, that he should be most adverse to resort to any course which would retard it; but the real matter before them was to consider these Amendments, which made this Bill so entirely and essentially different from that which had been sent down from that House, that the noble Lord opposite in describing the change had rather understated his case than otherwise. It should be remembered that it was proposed in the Session before that, that some measure of the kind should be introduced; the Government, therefore, had had the remainder of that year, and the whole of last year, and several months of the present Session, to consider the subject before they brought in the measure; and when it was introduced it was duly considered, and had been sent to the other House with almost the unanimous assent of their Lordships. How, then, was it that these Amendments were not proposed by the Government till the Bill had gone to the other House of Parliament? He asked why they were not admitted before by the Government, for in point of fact some of them were proposed in that House, not to be sure, in their present shape, but in a mitigated form? One, in particular, was proposed by himself, relative to the part which the Court of Chancery was to take in the working of the measure; but his proposal was rejected with all the authority which the noble and learned Lord on the woolsack 1025 could exert. He never recollected a Bill which had returned from the other House so essentially changed as the present; and it should be remembered that this Bill involved the Interests of a numerous class, as well as an immense amount of property. The proper course would have been, when such extensive changes were resolved upon, to withdraw the present measure, and bring in another, which would then, by the forms of Parliament, have been subjected to the cool and deliberate consideration of their Lordships, instead of the single vote which they were now called upon to give. He objected to their passing the Bill in its present shape without having an opportunity of consulting those most interested in its provisions; and he was favourable to the proposal of the noble Lord for sending it to a Select Committee, because it would afford full time for consideration. Was it just, he would ask, that they should be called upon to pass a Bill such as the present, without having had any opportunity of consulting those persons in Ireland the best able to give a sound opinion on the subject? Under the enactments of this Bill, the property of an Irish landlord might be sold without his consent at the present time, when it could not possibly realise anything like its value, from the state of excitement which existed in that country. With respect to the proposition made by his noble Friend, he would only observe, that all that his noble Friend required was an opportunity of duly considering the Amendments introduced elsewhere, and this was in perfect conformity with good faith, as there was no intention of going beyond the object stated. He confessed that he should like the question postponed until they had had an opportunity of getting the opinion of lawyers and others in Ireland, well able to give opinions on the subject from practical experience. If he believed that his noble Friend opposite by his Amendment meant to reject the Bill, he should not support the proposition; but he felt convinced that such was not the intention of his noble Friend.
§ The EARL of DEVONsaid, that he found in the Bill then before the House the most essential clauses, as well as the preamble, of the measure introduced into that House; but alterations and additions of detail had been introduced which they were now called upon to consider. The Bill as it passed that House was described as a measure for facilitating the sale of Encumbered 1026 Estates. The same subject which that House had in view was that adopted by the House of Commons; and he thought that they proposed to effect it in a way much less expensive than by resorting to the Court of Chancery, and still in a manner affording equal security as if they resorted to that court. The question then was, as to whether these Amendments were of such a nature as to deserve the animadversions of that House? He thought that they did not. Noble Lords had complained of the number of new clauses introduced; but in cases in which it was not deemed expedient to apply to the Court of Chancery, it was necessary that a great number of provisions should he introduced with reference to the notices which it would he necessary to give, and thus the number of clauses was necessarily increased. It could not, however, be seriously contended that the clauses were of a nature not to be easily comprehended.
§ The EARL of ELLENBOROUGHfelt it to be impossible at that period of the Session, and in the absence of so many Irish Peers, to agree to the proposition now made by the Government. He felt that it was impossible that they could go into these new questions with so little notice, involving as they did so many complicated subjects, in the absence of nearly all of those most deeply interested in the subject, and who were best acquainted with the matter. He believed that the Bill, as sent down to the other House, had been almost unanimously agreed to, with some slight exceptions as introduced by the noble and learned Lord on the woolsack. It was clear, then, that the House was prepared to give every reasonable facility to the sale of encumbered estates in Ireland; but by the Amendments as introduced into the Bill, they were called upon to give every unreasonable facility to the sale of Irish estates. A desire evidently existed to get rid of the present race of Irish landholders. He knew of no body of men who had been subject to greater abuse; they were suffering under the errors of those who preceded them, and notwithstanding the difficulties in which they were placed, and indeed, on the whole, considering existing circumstances, he felt that they had conducted themselves a great deal bettor than most English landlords would probably have done. He would ask whether there was equal security in the sale of estates without going to Chancery as in doing so? He felt 1027 that the new clauses in this Bill did not afford that security which was requisite, and he also felt that at that period of the Session they could not fully examine the changes which it was proposed to make; and yet they were asked to agree to those Amendments without having time to consider whether the securities under which estates were to he sold in terms of those Amendments were as valuable as those which the Bill originally gave. The House of Commons made another most important alteration in the Bill. He alluded to that important omission which had been made, which was a great security in the measure, and which was mainly relied on in that House—the provision by which it was enacted, that an estate must he sold for a sufficient amount to discharge the incumbrance on it. This provision had been removed from the latter part of the Bill, and estates might he sold at the amount of the declared value of the surveyor appointed by the Court of Chancery. In most cases the owners, and in some the incumbrancers, would, under this Bill, be defrauded. The noble Earl who had spoken last had referred to the notices. Of what use were notices? They would not give the person who received them any means of stopping the sale, unless, indeed, he were able to allege something which was obviously fraudulent. The mere circumstance that an estate was likely to be sold at too low a price, because so many other estates were being brought into the market, would not induce the Lord Chancellor to prevent the sale. The policy of the Act was to encourage sales; and, in accordance with that policy, the Lord Chancellor, unless there were collusion and fraud, must acquiesce in the sale, in spite of objections on the part of the owners. In point of fact, any one having a mortgage of 200l. on an estate might put the Bill in motion; 1000l. would suffice to put it in motion as regarded five estates, and 10,000l as regarded fifty estates. Thus their Lordships would perceive how a small company might, by means of the simultaneous disposal of a number of estates, inflict injury not only on the owners, but even on the bonâ fide encumbrancers of an estate. There were undoubtedly many cases in which the circumstance of an English gentleman with a large capital, becoming the purchaser of property in Ireland, would lead to the improvement both of the property and of the neighbourhood; but he did not believe that purchases thus effected 1028 would tend to improvement. Generally speaking, the old proprietor of the soil was infinitely preferable as a proprietor to a new comer. It would be found that of the two the former paid the greatest regard to the interest of the tenant; and he would rather see the land remain where it was, than see it transferred to Englishmen, who were much more ignorant of the habits and feelings of the people than even the existing proprietors. He would suggest that words should be inserted in the Bill requiring that land should not be sold under its operation for less than twenty years' purchase, calculated upon the net rental of the property, exclusive of all outgoings and charges. By adopting that Amendment, their Lordships would afford some security to the owner. If they did not afford a real security against fraud, a real protection of the landlord and the incumbrancer, in the price for which landed property was sold, their Lordships would do a great wrong to parties who were entitled to consideration.
The EARL of GLENGALLsaid, that the alterations made in this Bill in the House of Commons were so great that he did not recollect one example of the same kind. The whole matter was one which required to be gravely considered; for it was totally impossible in a Committee of that House, and as the Bill then stood, to enter into the voluminous technical details with which the Bill had been hampered. Since the previous Friday he had done his best to understand the details of the clauses added by the House of Commons; but it was impossible for any man who was not a lawyer to master them within so short a period. He had a great number of amendments to propose, which had been prepared within a brief space of time. He should do his best to perform his duty to his country. He did not care whether he was considered factious or not; he regarded the Bill as a Bill of robbery, and faction was as good against robbery as anything else. It was a downright cruelty, an outrage, and an injustice to the Irish landlord, to bring forward this new Bill, the object of which was to drive estates into the market when it was perfectly impracticable to obtain a proper price for them. Only a few days ago an estate was sold in Tipperary, which a year ago was offered for 25,000l., and was notoriously worth 35,000l.; it was actually sold for 16,000l. He knew another estate in the county of Waterford, which had been worth 40,000l., for which 15,000l. had recently been offered: if the 1029 estate had been sold for that sum, all the creditors except the first incumbrancer would have got nothing. If this Bill passed, nine-tenths of those who now stood by the British connexion, who were now loyal and well affected, might change their opinions, when they saw that the Legislature had driven their estates into the market, and that they were about to be plundered of the fair value of their property. This Bill had, he believed, in its present form, been partly got up at the solicitation of a body of persons, consisting in part of Quakers, who had concocted a scheme for purchasing estates in Ireland when they were to be had at the lowest possible price. There were six principals in concoction with the plan; and these persons had circulated amongst their Lordships a paper of a most suspicious character, entreating their Lordships to pass the Bill as amended. What business was it to those English Quakers, whether their Lordships passed the Bill or not? They had no property whatever in Ireland; but their plan was to drive great quantities of Irish land into the market, in order that they might purchase it at a very inadequate price. Did these Quakers, having handsome residences and considerable property, both in the funds and in land in this country, did they want to reside in Ireland? This question was an important one; for their Lordships had been told, that if they consented to pass this Bill, the property sold would be purchased by persons who would probably reside upon it; and no man would persuade him (the Earl of Glengall) that Norwich (Quakers would go and reside in Waterford, Kilkenny, or Tipperary. He believed that the object of these persons was to form themselves into a company for the purchase of estates, in order that after they had made purchases they might be able to sell land at a considerable profit. That was the game which these parties were playing; and it was perfectly well known among persons connected with the great offices at the cast end of the town that such was the intention. A most insulting paper had been published by this section of the society of Quakers. He did not accuse the great body of Quakers of entering into the scheme; but the half-dozen to whom he alluded were, under the cover of the benevolence of their brethren, endeavouring to obtain possession of Irish estates, in order that they might use them for their own benefit. He considered this Bill nothing more nor less than confiscation; and, by 1030 carrying it into operation as it then stood, their Lordships would do that which Mr. O'Connell was, during nearly the whole of his life, attempting to do, namely, effect the repeal of the Union, and confiscate the property of the Protestant landlords of Ireland. That having been done, our Protestant Church would not stand very long. It was not thus they had dealt with Scotland, when she was placed in a somewhat similar position: that country was allowed time to recover from her misfortunes, and to place herself among more prosperous nations. Ireland was now plunged in every kind of distress. The poor-rates in the poorest parts of Ireland were enormous. In four unions the land was at that moment paying from 12s. to 17s. 9d. in the pound. Was that a proper moment for throwing the land of those unions into the market? No one would scarcely give a shilling for land placed in such a position; and, indeed, the only safeguard against confiscation was, that no purchasers would be found. One of the highest legal authorities in Ireland—the Master of the Rolls—had given it as his opinion that this was a Bill which ought not to pass in anything resembling its present shape; and no man had taken greater pains, or enjoyed more opportunities of making himself familiar with the subject. He trusted that their Lordships would at least allow the Bill to be referred to a Select Committee. The Bill contained a great number of clauses which were of a most technical nature; and he hoped he should not have to say when he went back to Ireland, that in a House of Peers not composed of persons enough to form a House of Commons, a Bill was passed for the confiscation of Irish estates.
§ The MARQUESS of LANSDOWNEsaid, that the noble Earl who had last spoken had implied what he believed was the very reverse of the fact, that the Government, in introducing the Bill, and noble Lords in supporting it, were actuated by a desire to get rid of the landed proprietors of Ireland. So far from there being any foundation for such an assertion, as far as he was concerned, it was because he thought the Bill would prove advantageous, not only to the property of Ireland, but to the actual proprietors, that he was anxious to see it passed into a law. Let their Lordships consider who were the proprietors, and what was the claim which they had on that House. The state of landed property in Ireland was no new discovery. It had been stated again and again, and was admitted 1031 two years ago in the other House, that a very large proportion of the land of Ireland was placed in such a situation that none of the duties of property could be performed, while all the evils incident to such a state of things were endured. Under such circumstances the rents were received by persons who were unable to manage the property advantageously, and who, by their position, were tempted to retard that prosperity which it was the object of the Bill to promote. It was to reform that position of affairs, to place property in a condition to enable those who held it to discharge the duties of property; to pro-Tide for a state of things in which, when rents were received, no portion of them was applied to the improvement of the land, while the land was occupied by persons who did not promote the improvement of the land in any way, but whose condition retarded the prosperity of the country—that the measure had been introduced. The noble Earl opposite (the Earl of Ellen-borough) doubted whether the provisions of the Bill were wisely framed with a view to their object. The noble Earl, however, had thrown out only two suggestions for the improvement of the Bill; and those suggestions, if acted upon and introduced into the Bill as amendments, would, he conceived, be injurious to the proprietor, and transfer the means which he would have of disposing of his estate advantageously. What were the two propositions made by the noble Earl? First, Le proposed that a proprietor should not be allowed, by means of the sale under this Bill of a part of his property, to pay off a particular encumbrance, but that he should be compelled to sell enough to pay off at once the whole of his encumbrances. Did not that impose on the proprietor a limit which might be exceedingly injurious to him? By parting with a portion of his estate, a proprietor might be enabled to secure increased cultivation, and to effect great improvements on his property; and to say that he should sell the whole estate, and not an outlying portion of it, which might suffice for the purpose of improvement, appeared to him (the Marquess of Lansdowne) extremely undesirable. Then, again, the noble Earl suggested that parties should not be allowed to sell an estate under twenty years' purchase. Why deprive a proprietor of the benefit of a sale which could not be effected under twenty years' purchase? You could not place a landowner in a more disadvantageous position than by taking 1032 away his choice on the one hand, preventing him from selling, except for a certain number of years' purchase; and, on the other hand, not permitting him to sell that portion of his estate which was adapted to improvement. He thought, therefore, that these two suggestions might be dismissed at once, instead of being referred to a Select Committee. With regard to the provisions of the Bill generally, he did not pretend to understand any better than the noble Earl who spoke last, the technical arrangements provided by the Bill, or to explain how they were adapted to the object. And as the noble Lord had stated that he had not had time to read, and therefore had not been able to master the Amendments, he would fairly state that, having had the necessary time, he (the Marquess of Lansdowne) did not feel competent to offer an opinion with regard to the technical bearing of the clauses, which had received the attention and approbation of those who were infinitely better able to judge on such a subject than himself. When noble Lords said that they had not had time to consider the Amendments, and spoke of them as if they had come upon them like a thunderbolt, he must remind them that the Bill was brought up not two but six days since; and, moreover, he would ask, whether they were to be so completely the victims of forms and rules that they must remain in perfect ignorance of what was passing in the House of Commons? When the Votes and Proceedings of the House of Commons were sent to them daily, how could their Lordships remain blind to what was passing in that House? If at the end of the Session noble Lords wilfully shut their eyes to the information which poured in upon them, though it was not technically on the table, they were not entitled to ask for the delay of a measure which had for the last two years been admitted to be one of urgent importance as regarded the interests of Ireland. He had never seen a measure brought before that House with such a weight of that peculiar authority which was required to give it force, and to inspire their Lordships with confidence in the justice, skill, and propriety with which it was framed. There were in that House law Lords, who had filled the highest judicial offices—who had been members of one Government, or of another Government, or of no Government at all; but who resembled each other in this, that they were led by the particular habit and frame of their minds, and by the judicial functions which 1033 they exercised, to watch with suspicious vigilance everything which bore the character of an invasion of property, direct or indirect; and every one of these learned Lords was either in favour of the Bill, or else considered the objections to it so utterly trifling and insignificant that they had not thought it worth their while to stay for the purpose of urging them. He might there-fore say that every legal authority—past, present, and future—was in favour of the provisions of the Bill. He apprehended that so long as a Bill was going through either House of Parliament it was the duty of all of them, if they saw any means of advancing its objects, or of removing any obstacles that might obstruct its operation, to do so. That, he conceived, was all that had been done on the present occasion; and he was only repeating what had been already so well stated by the noble Earl below him, when he declared that no new principle whatever was introduced by those Amendments. On the contrary, they were only calculated to carry out effectually the principle of the Bill, us the Bill already stood—that principle being to facilitate the sale of property when that property was so encumbered as to prevent the proprietor from exercising his rights over it. He would next refer to an objection that had been raised with respect to the influence which might be exercised over an encumbered property by a mortgagee to the extent of 200l. He would remind their Lordships that if those powers were put into action for any improper purpose, the landlord had at all times an opportunity of correcting the evil, for it was provided that even with respect to the proceedings of a mortgagee for 200l., the landlord should receive six months' notice; and during those six months, if all the rest of the property were put in jeopardy to pay off this small amount, the other mortgagees could assist him in paying it. Reference had been made by the noble Karl opposite (the Earl of Glengall) to the parties who might become purchasers of the encumbered estates; but whether those individuals were Irishmen or Englishmen, or even suppose they were all Quakers, as had been suggested by the noble Earl, could he object, by their buying property in Ireland, to make purchases—profitable to themselves if he would, but which would be also profitable to the country by the investment of capital in its soil? He trusted that this measure would produce that effect when 1034 brought into operation, and hoped that their Lordships would as speedily as possible adopt the Amendments.
LORD STANLEYremarked, that the noble Marquess had referred, in support of his views, to the high authority of certain noble and learned Lords in that House; and he (Lord Stanley) would speak with the utmost respect of their high legal character; but the noble Marquess did not explain why two of those noble Lords, at half-past seven o'clock on that evening, had thought it more agreeable to be elsewhere than attending their duty in that House. With regard to the noble Lord on the woolsack, as well as with respect to the noble Lord who had been Chancellor of Ireland (Lord Campbell), he entertained the most sincere and unfeigned respect for their opinion; and he had the satisfaction on this occasion of citing their own authority against their own authority, and of reminding them that the very Amendments they now agreed to adopt were the Amendments suggested to their consideration on the debate on the Bill in that House, and by them rejected. he would be willing to sin-render up any objection he might entertain regarding this Bill, if any of those noble and learned Lords would get up in his place and say he thought it would be just or expedient to apply to England or to Scotland the measure which was now proposed to be applied to Ireland. The noble Marquess said they had had sufficient time to consider those Amendments since the time they were printed for the consideration of the other House of Parliament; but he (Lord Stanley) begged to protest against the doctrine that it was part of their Lordships' duty to examine, day by day, all the Amendments made either by Government or any other persons in the House of Commons. It was, he submitted, no part of their Lordships' duty to examine into such matters, or to consider any measure until it was duly before the House. They were not to consider a Bill at a time when no petition could be presented against it, and when it could not be discussed; on the contrary, they should have full time for deliberation after a measure was formally brought under the consideration of their Lordships' House. He did not wish to delay this Bill; but he respected so much the opinions of the noble and learned Lords to whom reference had been made, that he should wish to hear more in detail an explanation of the views 1035 they now entertained with respect to the Amendments introduced into this Bill. If a Committee were granted, they could hear their opinion as to the working of the details of those Amendments, which now, on a short notice, were proposed for their consideration. Feeling that this measure had not received a fair discussion, and that unless it was referred to a Select Committee, it could not he fairly discussed, he should not discharge his duty if he did not take the sense of their Lordships' House on the question, that a Select Committee he appointed to take into consideration the Amendments introduced in the House of Commons.
The LORD CHANCELLORbegged to refer to the assertion made by the noble Lord who had just sat down, with respect to what had taken place on the discussion of the Bill in that House. He said it had been suggested that Amendments corresponding with the Amendments introduced in the House of Commons should be adopted, and that the proposition was rejected. He would leave it to those noble Lords who were present at that discussion to say if they had heard such a proposition. He certainly never did, nor did he conceive any Member of their Lordships' House. If the noble Lord had had a private conversation with him on the subject, he must have misapprehended what he had said; and in the course of his speech he showed that he must have misunderstood it. What had been suggested was this, that instead of sending the cases that might arise to the Court of Chancery in Ireland, it would be convenient to establish another jurisdiction to do the duty. Feeling that the Court of Chancery in Ireland had time to perform the duty, and feeling also that great expense would be incurred by keeping up a separate jurisdiction, he (the Lord Chancellor) did not feel disposed to burden the public at large or the proprietors of the estates in question by establishing a new jurisdiction. It was said that this was now a new Bill; but the fact was, that the old Bill remained (with one or two alterations) precisely as it left that House. It was true the House of Commons added to it another provision; but the Bill, as it left their Lordships' House, remained almost untouched. There was no alteration in the opinions of those who advocated the Bill in that House; for by the Amendments it was merely proposed that the reference to the Court of Chancery should only be 1036 resorted to if the parties did not settle the matter amongst themselves, and therefore the intervention of the Court of Chancery was not absolutely necessary.
After a few words from Lord MONTEAGLE,
§ LORD LANGDALEMy Lords, in considering these Amendments, it is important to distinguish between the principle of the Bill, and the means which are proposed to give practical effect to that principle. It appears by the title, by the recital, and by the nature of the proposed enactment, that the object of the Bill is "to facilitate the sale of encumbered estates in Ireland." But this expression, which correctly states the immediate object of the Bill, cannot be said to characterise its principle, unless it be added that the encumbered estates of which the Bill is intended to facilitate the sale, need not be subject to any contract for sale. The Bill proposes to facilitate the sale of encumbered estates, in cases where no contract for sale exists between the owner of the estate and the encumbrancer upon it. In this respect it may, as it seems to me, be not improperly designated as an arbitrary measure—a measure proposed to be adopted, not because the persons entitled to the estates and the encumbrances upon them have entered into contracts of which they wish to facilitate the execution, but because the payment of debts charged on estates in Ireland can scarcely be enforced; and on the ground, as the noble Marquess has stated, that in Ireland encumbered estates are so situated, and the rights to them so complicated, that the duties, the performance of which is justly expected from the owners of property, cannot be performed by those among whom the rights are divided. With a view, therefore, to secure the payment of debts which cannot otherwise be obtained, and to facilitate the means of acquiring unencumbered estates, in the owners of which the rights and the duties of property, as they have been called, may be united, it has been thought desirable to provide for the conversion of encumbered estates into money, giving to the purchasers unemcumbered titles, and throwing the encumbrances and charges, as far as can be, exclusively upon the money produced by the sales. And this object has been thought so important as to make it desirable to carry it into effect even in cases where the parties have not contracted to sell; and for this purpose 1037 to enable some persons interested to enforce sales against the will of other persons interested, who are not by contract, or in the present state of the law, under any obligation to sell or submit to a sale. It is in this view, and, as I conceive, in this view only, that the present measure can be called arbitrary—in this view only, that the measure can be open to most of the observations of the noble Earl (Earl of Glengall), who, in the warmth of his feelings has spoken in the way he has, of robbery and confiscation. How the application of the debtor's estate in payment of creditors who have lawful charges upon it, can be called robbery and confiscation, it is for him, if he so defines it, to explain; but I can understand his complaint if he founds it on the interference of the Legislature with the property of private individuals against their consent and will, and in the absence of contract. I cannot say that I am friendly to this sort of interference with private rights and contracts by legislative and sovereign power—no one has been more jealous than I have been of the powers conferred for the purpose of enforcing such interference. But it should be observed that the interference in such a case as the present, is of the same sort and character as all other legislative interference with private property for public purposes; and because this interference is intended to secure the payment of debts, or the performance of private obligation, which would not otherwise be performed, it is not more, but somewhat less, objectionable than the interference with private property and contract which is authorised by Acts for railways, docks, or other public works—Acts which enable the persons who execute such works to seize and appropriate any man's private property on the ground that it is required for the purpose of a work sanctioned by the authority of Parliament, in its view of some real or supposed benefit to the public. The present Bill no more deserves the epithets of robbery and confiscation, than any railway or dock Bill, or other Bill of the like kind. The denunciations of the noble Earl would be equally applicable to all such cases; but in truth, the subject in this point of view—the question whether the principle of the Bill ought or ought not to be adopted—is not now properly under our consideration. The principle of interference with the property of individuals in the absence of contract, was adopted by this House before it sent the Bill to the Commons; it 1038 was approved by the Commons before they prepared their Amendments, and sent them up to your Lordships; and in considering those Amendments, I apprehend that we ought to proceed on the ground that the principle has been approved and agreed upon by both Houses, and is not now the proper subject of argument and discussion. What then are the proposed means of giving practical effect to the admitted principle? In this House as the Bill passed, orders in Chancery, to be obtained in the manner pointed out, were the means proposed to carry the principle into operation. The Commons not interfering with the principle of the Bill, have considered that the sale of encumbered estates in Ireland may be facilitated by other means as well as by orders in Chancery; and they propose by their Amendments to provide for such sales, without such orders, by a system of notices, accompanied with various cautions and provisions intended to prevent the sales of the estates being effected for less than the real value in money. The noble Earl opposite (the Earl of Ellenborough) who has addressed himself to the proper subject of the debate, has considered that these cautions and provisions are not sufficient to answer the intended purpose; and though I cannot concur in his arguments, I willingly acknowledge their relevancy. He at least has not attempted any evasion, by suggesting that a new Bill was submitted to the consideration of the House. I confess that to me it is a little strange that any noble Lord should suppose that Amendments admitting the principle of the Bill, and not rejecting the particular means proposed by your Lordships for effecting the object of the Bill, but proposing additional means for effecting the same object, should be considered as a new Bill. They do not constitute a new Bill, or any thing like a new Bill. What is proposed, is in perfect accordance with the principle of the Bill as it was framed when it left this House; and it is proposed to adopt not a new and substituted process for that which was adopted by this House, but an additional process for securing the same object, namely, facilitating the sale of encumbered estates not contracted to be sold, for the best price which can be obtained. The real question, therefore, to be considered is, whether the provisions contained in the Amendments are calculated to secure that object. The nature of those provisions has been sufficiently explained by my noble and learned Friend on the woolsack. It is quite un-necessary 1039 for me to detail them further; and without troubling your Lordships with any argument, I shall merely state as the result of my own consideration of the Amendments, that I entertain considerable doubt whether the cautious provisions provided by the Commons to prevent sales for less than the value, are not only more than are necessary to effect the object, but so stringent as to impair the efficacy of the additional process which the Amendments are intended to provide. Considering the caveats, the notices (sometimes difficult, if not impossible, to serve), the valuations, the five years to elapse before a perfect and unimpeachable title can he obtained, the liabilities as for breaches of trust, and the powers given to redeem—it is manifest that the obstacles to sales under these provisions are very great—perhaps they may in their application be found so great, in many cases where there is considerable complication, as to make the proposed additional process impracticable, and to leave to those who desire to have the benefit of the Act, that particular mode only of obtaining it which was at first provided by your Lordships. A noble Lord has asked, would any one propose such a measure as this for England? It may be a sufficient answer to that question to say, that those who think this measure right for Ireland, might reasonably propose it for England, if England were in the situation and circumstances of Ireland—if in England the titles to land and to the encumbrances and charges on land, were in such a state of intricacy and complication, that (to the extent which now unhappily exists in Ireland) payment of the charges could not be obtained, and the duties attached to property could not be performed. In England, contracts providing for the sale of encumbered lands are frequent, perhaps so frequent as to make such a measure as this unnecessary; and upon such a proposal with respect to England as is suggested, the difficulty would be to feel convinced that the circumstances of the case were such as to make the application of the principle of this Bill proper and expedient. If it were demonstrated that such a Bill was expedient for England, I do not say that I should venture to propose a Bill in the exact terms of this Bill; but I think that I should venture to propose enactments still more directly and avowedly founded upon the principle of this Bill, and, taking all just care to secure sales at proper value, proceed to sell the estates with 1040 less complicated and obstructive means of precaution than are here provided. My Lords, I fear that the precautionary provisions contained in the Amendments are so stringent that they derogate unnecessarily from the intended efficacy of the mode of proceeding they authorise. I am satisfied that the measure, accompanied by such precautions, affords no ground whatever for the alarms expressed by the noble Lords opposite.
After a few words from the Earl of GLENGALL,
The LORD CHANCELLORput the question, whether the words proposed to be left out shall stand part of the Motion? House divided:—Contents 28; Not Contents 10: Majority 18.
| List of the CONTENTS. | |
| DUKE. | Minto |
| Norfolk. | Shaftesbury |
| MARQUESSES. | Waldegrave. |
| Lansdowne | BARONS. |
| Headfort | Byron |
| Clanricarde. | Beaumont |
| EARLS. | Saye and Sele |
| Auckland | Campbell |
| Granville | Camoys |
| Grey | Cottenham |
| Wicklow | Foley |
| Strafford | Elphinstone |
| Devon | Langdale |
| Morley | Sudeley |
| Spencer | Wrottesley |
| Fortescue | Eddisbury. |
| List of the NOT-CONTENTS. | |
| EARLS. | VISCOUNT. |
| Warwick | Hawarden. |
| Malmesbury | |
| Ellenborough | BARONS. |
| Eglinton | Stanley |
| Mountcashell | Redesdale |
| Glengall. | Monteagle. |
| Paired off. | |
| FOR. | AGAINST. |
| Earl of Camperdown | Earl of Orkney |
| Earl of Sefton | Lord Feversham |
| Lord Poltimore | Lord Bolton |
| Earl of Zetland | Duke of Richmond |
| Lord Cremorne | Lord De Ros |
| Earl of Scarborough | Lord De Freyne |
| Earl Fitzhardinge | Earl of Munster |
| Earl of Effingham | Earl of Cardigan |
| Lord Lilford | Lord Wynford |
| Lord Bateman | Earl Poulet |
| Viscount Clifden | Lord Forester |
| Earl of Claremont | Viscount Canterbury |
| Lord Stafford | Marquess of Ely |
| Bishop of Norwich | Earl Digby |
| Earl Verulam | Earl of Harrowby |
| Earl Radnor | Lord Downes |
| Lord Hatherton | Lord Templemore |
| Bishop of Manchester | Lord Colchester |
| Bishop of Hereford | Lord Sondes |
| Bishop of Durham | Lord Doneraile |
| Lord Colborne | Marquess of Salisbury |
| Lord Milford | Duke of Cleveland |
§ Then the House proceeded to take the said Amendments into consideration. Some Amendments to the Commons' Amendments moved, and disagreed to. Commons' Amendments agreed to. A message sent to the Commons to acquaint them therewith.
§ House adjourned.