§ Order of the Day for the Second Reading, read.
LORD CAMPBELLconfessed that he had noticed with some dismay the symptoms that he had observed in more than one quarter of their Lordships' House of strong hostility to this Bill, as he had entertained the hope that the measure would have met with the almost unanimous approbation of their Lordships, as it had in the other House of Parliament. The Bill was one of the very greatest importance. He allowed that it was one of an arbitrary nature, which nothing could justify except the lamentable condition of that unfortunate country to which the measure was intended to apply. The situation of landed property in Ireland was such, that, in his humble opinion, unless such a measure as this met with the approbation of the Legislature, it would go on from bad to worse, until inevitable ruin overtook every class of the community. The object of this Bill was, as the title expressed," to facilitate the sale of Incumbered Estates in Ireland." Unfortunately a great portion of the surface of Ireland came within the description of incumbered estates. Some persons supposed, probably without any foundation, that this state of things arose from the imprudence of those who were in possession of the land in that part of the united kingdom. He believed that it was more probably a defect in the law of real property which had led to these most lamentable results. Their Lordships were aware that in England, when money was raised on the security of an estate, the proceeding was by a mortgage. The owner of an estate proposed to borrow a certain sum of money on the security of his property, and his title being examined and approved of, a specific sum of money was advanced on the security of specific land, which land alone was burdened with the liability, and remained permanently affected until the debt was paid. The owner remained in possession of the property, 1337 with power to let it and manage it as he thought proper, the relations between landlord and tenant remaining as if no debt had been incurred. But in Ireland the mode of proceeding was quite different. There money might be raised by a proprietor of land on a judgment, which offered a great temptation to inconsiderate and reckless persons to get into debt, and to contract liabilities with money-lenders. On confessing the judgment, it was lodged in one of the Courts in Dublin, and the judgment then stood as a security, not on any particular land, but on all the property possessed by the borrower, or that might come into his possession at any future time. By another provision, which it had been thought would prove most beneficial to the landed interests in Ireland, it was arranged that judgment might be assigned to other parties by the holders; and thus, in the course of time, nobody could tell who was the actual owner of any particular judgment, or to whom an application was to be made in case an incumbrance was to be paid off. The result of this state of the law was, that when an estate once became incumbered, it became almost inevitably ruined. In Ireland they had what, he believed, might be made a most admirable institution, and what he hoped before he died to sec established in England, and that was a registry of deeds. He was happy to perceive that there was a growing opinion in favour of a general registry, and he hoped soon to see it the law of England; but it was much better to have no registry at all than a bad registry; and from what he had seen of Irish titles, he could undertake to say that the existing registry had been a curse to Ireland. Instead of a deed being enrolled in the registry, there was merely an intimation that such and such a deed existed between such and such parties, and this was told in such a way that it not merely afforded no valuable information, but absolutely often gave a wrong impression, and opened the means of misrepresentation and fraud. With regard to Scotland, he might say that they had a registry there which stood on a most excellent arrangement, and which had conferred the greatest benefit on that part of the united kingdom. But with regard to Ireland, whatever the cause might be with regard to registration, there could be no doubt but that the number of incumbered estates in that country was most lamentably largo. This evil, indeed, had become so great that the Court of Chancery was quite 1338 unable to cope with it. When his learned and most able friend Sir Edward Sugden first went as Lord Chancellor to Ireland, he found that if there was an incumbered estate brought into the Court of Chancery, it soon melted away in the expenses which were incurred. He remembered a graphic account which Sir Edward Sugden once gave him of a scene which he witnessed when sitting as Chancellor of Ireland. When a case was called in the Court of Chancery respecting an incumbered estate, every judgment creditor who had a supposed lien on the estate, and all his representatives, were entitled to have notice to appear and be a party to the proceeding; and the practice was, that when the case was called, each gentleman at the bar who had a brief rose and said, "I appear for so and so," and threw the brief towards the Chancellor; and Sir Edward Sugden said, that so many briefs were thrown before him that it actually resembled the bombarding of a town. These briefs were all very large, with very large fees marked on the back of them, all of which came out of the estate in the end. That able and enlightened Judge did all in his power to mitigate the evils of the system, and he did mitigate them to a certain degree; but still he was unable to cope with them entirely; and he might mention a fact to demonstrate how rapidly the evil had gone on increasing. By the law in Ireland, as soon as an incumbrancer got a judgment, he might have a receiver—so that almost all Ireland was under receivers, and the only thriving trade was that of a receiver. Well, so rapidly had the evil increased, that although in 1807 the annual amount collected by receivers was only 200,000/., it was now upwards of 2,000,000l. That being so, what was called the Encumbered Estates Bill of last Session was passed into law. That measure was but an experiment, which it was proposed to follow with more stringent measures if necessary. He confessed that he was never very sanguine with regard to the Bill of last Session; and he had been just reminded by a noble Friend near him that the Master of the Rolls, Lord Langdale, had stated it as his opinion at the time, that that Bill would be found insufficient, and that something else should be done, and that a new tribunal, independent of the Court of Chancery, should be formed. That view of the Master of the Rolls had been borne out by the opinions of other competent authorities; and the result was, 1339 that the Bill now before their Lordships was prepared. Of that Bill he was most sanguine, as he anticipated the most beneficial results from it. He did not think that it would, like the last Bill, remain a dead letter; hut he hoped to see it brought promptly into operation, and attended by the most salutary results. The principle of the Bill, about which his noble Friend (Lord Monteagle) expressed such anxiety, was this. It was proposed to appoint commissioners, in whom great confidence would be placed. A most grave responsibility would rest with the Government in the selection which they would make of those commissioners, because on that selection would depend the whole success of the Bill. If the selection were good, he anticipated the best results from the measure; but if the selection were bad—which Heaven forbid!—then he felt that the measure must fail. It was proposed that the commissioners should be three in number. He was not aware that any objection had been expressed in any quarter with regard to that number. There was no qualification set forth as being necessary; and their Lordships would not, he was sure, object to the omission of a provision that they should be barristers of six years' standing. The whole responsibility would fall upon the Government of making a proper selection of persons to be invested with these important powers; for these commissioners were to have all the power of the Court of Chancery with regard to those estates, but without its delays, without its expenses, and without its formalities.
LORD CAMPBELLsaid, that his noble and learned Friend must be fully aware that the principle was not a novel one; as, for instance, in trials for felony, or high treason, no appeal could take place without the consent of the Attorney General. The commissioners would be persons in whom full confidence would be imposed; and there could be no danger of their refusing an appeal in any case where a ground existed for questioning their decision. The commissioners being so appointed, a power was given either to the owner or to the incumbrancer of an incumbered estate to apply for their interfe- 1340 rence. It was very important that this should be given to the owner of property; because, as the law now stood, he could not sell without the consent of the mortgagee, unless, indeed, he paid off the mortgage and the other incumbrances in the first instance. He considered this provision as most important, because, under the present law, all parties suffered. The owner found his estate encumbered by judgments for mortgages raised by himself or his ancestors, and by dowries and settlements. Even before the late calamity in Ireland, he was only nominally the proprietor, but since the Irish famine and the imposition of the poor-law, his situation had become much more deplorable; because he was still obliged to pay the whole of the jointures, the whole of the portions, the whole of the mortgage money, and, in addition, the moiety of the poor-law for the whole of the estate. This all fell entirely on him; and it, therefore, became of the last importance that he should have power of calling for a sale to pay off all these incumbrances. But the mortgagee was also in a deplorable state; because, from the bad management of property, the rents were no longer able to be paid, and his money had consequently been allowed to run into arrear. The tenants were, likewise, in a deplorable position; because the estates being all under the management of receivers, and the receiver not having any power by law to enter into any arrangements for draining, or inclosing, or manuring, or improving the land in any respect, it invariably followed that estates under the management of receivers went from bad to worse. In this country, when a house was dilapidated, persons were in the habit of saying that it was in Chancery; and the same symptoms attended the appearance of estates in a similar predicament. The commissioners would inquire into the right of selling the estate, and into all the co-interests that existed; and having decided on a sale, they were enabled to give a good title, at once, to the purchaser. Their Lordships were aware that the great difficulty now was, not so much to make out a good title, as to put the purchaser in possession. Claims were made by persons having interests, or pretending to have interests, and nobody could tell whether these claims were well founded or not without most tedious proceedings. But the commissioners would have the power to compel those parties to come forward and show what their inter- 1341 ests were; and in the meantime their sale was good, and they would be enabled to give the purchaser a Parliamentary, title, who would then know that he had a fee-simple against all the world. These few lines would give him an irrevocable title; and at the same time a conveyance was handed to the sheriff, who at once put him in possession. The great object was to procure purchasers. Purchasers must be encouraged to come forward, and must know what it was that they would pay down their money for; and the commissioners would give them an estate on which they could at once sit down and lay out their money in improvements. The conveyance would be conclusive evidence that everything had been done that the Act of Parliament required, and no question could ever arise afterwards with regard to the validity of the conveyance. With regard to the appeal to which his noble and learned Friend had referred, the commissioners were to lay down rules, and these rules would have to be approved of by the Privy Council of Ireland, to whom also an appeal would lie in case any ground existed that rendered it necessary. His noble and learned Friend would, however, see that if unlimited power of appeal were given, attorneys might induce their clients, from interested motives, to appeal on frivolous pretexts, and that the Bill would thus be rendered wholly nugatory, and, instead of being useful, would become absolutely mischievous. To meet this, it was provided that the Lord Lieutenant should appoint a judicial Committee of the Council, to hear and report on the appeal, and the order of the Privy Council on the appeal would be final. With regard to the objections that had been raised to the Bill, the first he had heard was, that it superseded the Court of Chancery; but then it did so only for a particular purpose, and in a matter in which that court had been found to be entirely inefficient. He had also authority for saying that the Lord Chancellor of Ireland highly approved of this Bill, and he was not aware that any of the Judges had expressed any disapprobation of it. The Lord Chancellor of Ireland was most desirous that it should become the law of the land; and if he did not believe that it would be beneficial to the country, he would, no doubt, have been the first person to have disapproved of it. The Court of Chancery was a most excellent tribunal for particular purposes, but for the sale of encumbered estates it 1342 had been found most inefficient. In the next place, it was said that the Bill was too extensive, and that it should have been confined in its operation to particular parts of Ireland. But it would be impossible to carry out such a plan. These encumbered estates were scattered over all parts of Ireland; they were perhaps more numerous in the west than elsewhere; but the Bill would be found most beneficial in every part of the country, and it would be impossible to point out what particular part of Ireland should come under its operation, and what should be exempted from it. He had only heard one other objection, and that was the supposed hardship with regard to mortgagers. But he would maintain that the debtors were the persons who derived most benefit from the Bill. The measure would be undoubtedly beneficial to the holders of mortgages, and to the tenants, but it would be, above all, of benefit to the debtors. At present, all parties might be willing to sell, but there were no purchasers. Under this Bill, plenty of purchasers would be forthcoming. He believed that when a satisfactory title could be given at once, that purchasers would be found willing to buy; but he admitted that in this he might be wrong. At present, it could not be expected that purchasers would come forward when they did not know what sort of title they might receive. But he could show their Lordships that the owner would be benefited. This Act gave no new power to the creditors. At present, every Irish mortgage was accompanied by a power of sale; or, if there were no such power, an application to the Court of Chancery would secure it. The mortgagee did not, therefore, require new powers to enable him to sell; but the facilities for sale given by this Bill would be highly advantageous to the owner. He would, in the first place, be certain to secure a much higher price; but he would also avoid the ruinous expenses incurred by a sale in the Court of Chancery, pre-coded by the shower of briefs of which he had before spoken, and the fees on which would be the utter ruin of the unfortunate individual, as all the expenses of the suit would have to he paid by the owner of the property. Under this commission there would be no fees, and when copies of deeds might be applied for, they would be furnished at the mere cost of making the copy. From the first application to the commissioners to the sale of the property, the whole expense would be a mere trifle. 1343 That would be all a saving to the owner of the property, because all expenses at present were borne by him, and by him alone. He would be a gainer therefrom, not only for the increased price obtained for the land, but the decreased expenses of the sale. He hoped, under these circumstances, that their Lordships would agree with the other House of Parliament in thinking that this Bill ought to become the law of the land. He hoped that before long a measure would be introduced by Government to put an end to the assignment of judgments; and he also hoped that another Session would not pass over without having an efficient registry of deeds established in Ireland, with a reform in the law affecting judgments, to which he had just alluded. Without such improvements the whole operation of the Bill now before their Lordships would be neutralised; for, though the purchasers of the present incumbered estates would start afresh, free, and unincumbered, they would soon be reduced to the same position as the old owners were now in. By the passing of this measure, and of the others to which he had alluded, he thought the regeneration of Ireland might be confidently anticipated. Having thus briefly stated the objects of the Bill, he trusted that he had said enough to induce their Lordships to agree with him in thinking that it ought to be road a second time.
LORD BROUGHAMadmitted that his noble and learned Friend had very briefly, very clearly, and very ably stated the objects of this most important Bill. He was not about to offer it an unreflecting or ill-considered opposition, but he wished, before their Lordships gave their high sanction to the principle of the measure, to throw out one or two considerations, which very forcibly impressed themselves upon his mind, with respect to its nature and tendency. First, however, he begged to say, that he entirely approved of what appeared to he the intention of the Government, to apply themselves, without more than necessary delay, to reform the Irish law, with respect to judgments, to the appointment of receivers, and to the registry. He could not help feeling, however, that those measures ought to have preceded the one they were now called upon to discuss, and that they were taking the measures in an undue order, on illogical series. In differing from his noble and learned Friend on this matter, he stood in a peculiar position, for he had the honour 1344 of presiding over the Society for the Amendment of the Law, whose labours had been very much directed to this subject, and whose reports and publications had the merit of suggesting a principle of this nature, and propagating the knowledge of it. He had been referred to their periodical work, the Law Review, as to short conveyances being a boon to purchasers under an order for sale, and to the fact of this principle having been adopted by the commission of his noble Friend opposite (the Earl of Devon), though in that case it was confined to leases. Though approving of that, he did not sec the present subject in the same light as his colleagues, who, he believed, entirely approved of it. Much, however, of what he might have urged in support of his own views, regarding this Bill, had been rendered unnecessary, by the admission of his noble and learned Friend, that this was an arbitrary measure. If it were true that it contained no new powers—that it called into existence no novel force—that nobody would be enabled to sell, by virtue of the Bill, who was not able to sell already, he could not adopt the somewhat dislogistic language of his noble and learned Friend, and call this an arbitrary measure. It could not be said to be arbitrary, if it only gave a more convenient mode of exercising powers already in existence. But he thought it was not correct to affirm that the force existed already, or that no new power was called into being by the Bill. Very extraordinary powers were given by it provisions. Three commissioners were to be appointed by the Crown, who might or might not be lawyers, and they were to have the power, at the desire of the owner of an estate in fee-simple, or an estate tail, or even of a life estate, or at the desire of a mortgagee, or of a judgment creditor, or of any other person having an incumbrance as defined in the interpretation clause, to order such estate to he brought to sale, and to be sold, whatever might be the state of the money market or the land market. This was a very large power to give to those commissioners. And if it were said there was no power given to them which did not exist already, because the Court of Chancery had a power of sale, there was this material difference, that at present you could not sell without paying off every incumbrancer. Was it meant to sell without paying off the mortgagee? [Lord CAMPBELL: No!] Certainly not. If 1345 that was the case, he could understand why Irish Gentlemen elsewhere were so enamoured of this measure—why they wished their estates to be put, not into Chancery, hut under commissioners, who, appointed by the Crown and removable by the Crown, had the power of selling whatever estates they chose, upon the application of the owner. He was afraid, however, these landowners would find themselves mistaken if anybody had practised upon them to the extent of inducing them to believe they would have the power of selling and pocketing the money without paying off judgment creditors and mortgagees. He would now tell the House what might be done under this Bill. Here was an estate, worth, five years ago, twenty or twenty-one years' purchase, mortgaged for 10,000l.; but it would then bear another mortgage for 5,000l. There were thus two incumbrancers, the primary mortgagee and the puisne mortgagee. The estate at that time was able to bear both these burthens. But then came this Bill, with its three commissioners, duly installed with clerks, messengers, mace, and insignia; and they were applied to by the first mortgagee, who cared no more for the second than he cared for any mortgagee in Japan, or in the moon. All he wanted was his 10,000l., and he had no more regard for the puisne, who wanted his 5,000l., than a chief justice had for a puisne judge, whose decision he had overruled. He did not even inform the second mortgagee, but at once he went before the commissioners and said, "May it please your worships, will you allow me to sell this estate?" The commissioners said to him, "Well, what case have you?" Then he made out his case, and they made an order to sell the estate. But, by this time, the estate, instead of being worth twenty or twenty-one years' purchase, was worth only twelve years' purchase; so that the first mortgagee got his 10,000l., and the second not one penny of his 5,000l.
LORD BROUGHAM, in continuation, said, the first mortgagee could not do it at present, unless the second mortgagee had notice.
LORD BROUGHAMBy a power of sale? That was one cause of the peculiar state of Irish property, A judg- 1346 ment creditor having the power of appointing a receiver was not the custom in this country;, it was rare if he even had the power of sale, and it was not acted upon in modern mortgages; but, as he understood, the power of sale given by this Bill enabled the first mortgagee to sell without paying a farthing to the second mortgagee. The owner, he supposed, might in the same way sell to pay off the first mortgagee, without paying off the second. [Lord CAMPBELL: No!] But, according to the Bill, the owner of the estate might apply to the commissioners. Was there any provision requiring the commissioners to see that all the charges upon the estate were paid?
LORD CAMPBELLreplied, that when an estate was sold, the purchase-money would be applied by the commissioners according to priority of charge. The first mortgagee would be paid first; the second, second; and so on.
LORD BROUGHAMsaid, that just answered his description of the Bill. At present, nobody in Ireland could sell an estate, without paying off the second mortgagee; but, according to this Bill, there was a new, an extraordinary, a monstrous power called into existence, enabling the owner to sell without paying off the puisne encumbrancer, by going to the commissioners, and the commissioners empowering him to sell. "Oh," but said his noble and learned Friend, "no harm will be done, because the purchase money is paid into court, and the court will pay off first the 10,000l., then the 5,000l., and hand over the residue to the owner." That might be; but if it so happened that since the second mortgage had been laid on, land had come down from twenty or twenty-one years' purchase to twelve years' purchase, what became of the second mortgage of 5,0001? What if the estate came down to 10,000l.? That, according to his noble and learned Friend, was to be paid into court, and all given to the first mortgagee. The first mortgagee thus got the whole, whilst the second lost both principal and interest. Such was the explanation of this Bill by his noble and learned Friend; and it led him to perceive pretty clearly how some owners came to wish for it. For he could imagine a strong desire on the part of an owner to join the first mortgagee, by way of ousting the puisne mortgagee, to sell the estate; he could also imagine that a friend might be found, very likely a relation of the 1347 owner, or of the first mortgagee, to find money for the present twelve years' purchase. The owner, by means of such a fictitious sale, became possessed of his estate with an encumbrance of 10,000l., and free from the encumbrance of the second mortgage. This would be the inevitable consequence, and, as the Bill stood, he could not see how any commissioners, however well selected, could avoid it.
LORD BROUGHAMhighly approved of the interruptions of his noble and learned Friend, because they enabled him to discover accurately one after another the defects of the measure. His noble and learned Friend, however, had not answered the objection. He assumed there was a fictitious sale and a buying in by a friend or relation of the owner. How were the commissioners to discover whether the buyer was a separate and independent person, or merely the friend and trustee of the owner? Had they any arbitrary means of compelling the purchaser to disclose whether he hold as purchaser for a valuable consideration, on his own behalf, or for behoof of the nominal seller? There was no such power whatever, and the buyer might continue to hold the estate nominally year after year, privately paying over to the owner all the rents and profits. It was quite true the owner was to continue liable. But, then, they must get at his property, his goods, or his estate. How could they, when they were held by a cousin, a brother, or a son, for he could not imagine there would be any provision in the Bill to limit the biddings to strangers in blood; and even if there wore so grotesque a provision, a friend, no relative, might lend his aid. The Bill enabled the commissioners to exercise their powers practically without appeal. "No," said his noble and learned Friend, "these orders may be appealed against. But he (Lord Brougham) found no appeal was given without leave of the commissioners themselves. Now, he could very well conceive commissioners who would make it a rule never to grant an appeal, and who would not wish to have their decisions revised. But these commissioners were to have another and a most extraordinary power; they were to have the high and transcendental power of making rules and regulations for the whole course of their proceedings—not only rules and regulations for the government of their 1348 own proceedings, but for the government of proceedings upon all the subjects and matters coming within their office and jurisdiction—they were to make rules and regulations for the sale and transfer of the rights and equities of parties—they were to make them subject to no appeal except to the Privy Council, which meant the Minister for the time being. This was not the right course to be taken in judicial proceedings. It was neither more nor less than a supersedeas of the functions of the Court of Chancery, which cost the country 40,000l. a year, whilst this commission would cost 10,000l. more, the Court of Chancery continuing just as costly as it now was. But these rules and regulations were to he laid before Parliament. How? Merely to satisfy their Lordships' curiosity, for they were to have no power of checking them whatever. He had seen Acts of Parliament passed, and he had introduced some of them himself, giving the Judges at common law and in equity the power of making rules of practice. But as he felt this was conferring legislative power upon those Judges without the assent of Lords and Commons, he always provided that the rules should be void if either House of Parliament, within six months, passed a resolution against them. No such care had been taken in this Bill; and the commissioners' rules and regulations were at once to have the force of statutes of the realm. Thus, in so many words, it was enacted that three commissioners appointed by the Crown were to have the same powers as the Legislature of making statute law. Well might his noble and learned Friend say that rather arbitrary powers were given by the Bill. "We want," said his noble and learned Friend, "bidders for land in Ireland." No doubt they did—no doubt this was just what owners and mortgagees wanted. "Pass this Bill," added his noble and learned Friend, "and I will answer for it you will have plenty of bidders." But why were there not bidders now? It was vain to say it was the encumbrances upon property; it was vain to say it was the Court of Chancery. Agitation was the reason there were no bidders for Irish estates. A bad poor-law was another reason; but above all, the unpeaceful state of the country was the cause. If the country was as pacified in the south and west as it was in the north, there would be no lack of bidders for Irish property, provided fair terms were offered; and there would 1349 be bidders if this Bill enabled commissioners to sell land at twelve years' purchase, because it would be a good investment; but if they acted more for the benefit of the puisne incumbrancers than that would imply, he was sure they would have none. He would tell the House why. The gist of his noble and learned Friend's case was, "there are no bidders upon account of the delays in the Court of Chancery, the state of the law as to judgment debts, the powers of sale by mortgagees, and the practice of appointing a receiver under every judgment." This was the only reason for the Bill: these wore all the difficulties the Bill professed to alter: this was the gist of the argument of his noble and learned Friend. Now, he met his noble and learned Friend thus. Were there no unincumbered estates in Ireland? There were not so many as he could wish; but would any one say there were none? He was happy to believe there were many. Bring a parcel of incumbered estates into the market, and you would have no bidders. For it was perfectly notorious, and he himself (Lord Brougham) knew the very estates, that for land wholly unincumbered, either with mortgages or infants, no bidders came forward at present. But how could it be said that this Bill would furnish bidders, when after incumbrances had been so got rid of, there would be no bidders where there were no incumbrances? He had thought it but fair and right to state, in the first instance, these difficulties which had occurred to him. Then, as to authority, he was sure it must be a strong case to make his noble and learned Friend the Lord Chancellor agree to this measure; but he was quite certain that his noble and learned Friend who preceded and succeeded him on the woolsack (Lord Lyndhurst), had expressed no opinion in favour of it. He was, however, told that the Irish Chancellor had expressed a very strong opinion in favour of the Bill. When he looked at the great inroad it was to make into the business of the Irish Chancellor, without effecting any diminution in his patronage and emoluments—when he found it would relieve him of the great bulk of his duties for the next three years, he could easily imagine that that learned person would have no great indisposition to listen to such a proposal. He was, however, informed, upon authority which implicitly governed his opinion, that the Irish Lord Chancellor stood pretty much alone in his opinion. His right hon. 1350 Friend the Master of the Rolls in Ireland was coming over, and he (Lord Brougham) should wish for an opportunity of conferring with him upon the subject in a Committee of that House. Another most learned lawyer. Master Brooke, was also on his way here; and their Lordships, he hoped, would have the benefit of his opinion. He (Lord Brougham) knew that some of the chief Judges in Ireland were most hostile to the measure. He had indeed been informed that every one of them, more or less, was opposed to it; but he would not take upon himself to make that statement. At all events he was certain that the bulk of opinion among the Irish Judges at common law was against the measure; and he was equally sure that much more information would be obtained in relation to it if their Lordships heard their opinions. Such were the impressions the Bill had made on his mind. He was not prepared to say he should offer any very serious resistance to its further progress if he found that Irish proprietors, Irish lawyers, and Irish Judges were in favour of it; but he had felt it his duty as an English lawyer, having occupied a high place among English Judges upon questions intimately connected with the subject-matter of this Bill, to state his opinion, however imperfectly it might have been formed. Many of his objections might be removed in Committee. He would mention one. Suppose, instead of giving an unlimited power to an owner or incumbrancer upon an estate having a puisne incumbrance to apply for a sale, the power should be confined to cases where there was a certain proportion between the rent and the incumbrance. If half or two-thirds the clear rent was eaten up by the interest upon the mortgages, let the right to apply be given, that was to say, an estate of 1,000l. a year might be brought to sale by the commissioners or within their jurisdiction, provided that 500l., 600l., or 700l. of the rent were absorbed by the interest. It would be expedient, he thought, to introduce some such limitation. The rules and regulations of the commissioners should be laid before Parliament, with a right to object to them; the power of sale should be limited; and bearing in mind his objection as to collusive sales and purchases, the commissioners should not be empowered to sell under a certain number of years' purchase. But one objection he had, which he believed could neither be met nor received. An Act of Parliament title, as against all 1351 the world, was given to a purchaser; and yet the party selling might have no title whatever to the estate sold. An heir at law knowing there was a devisee alone entitled, might sell, and then the devisee was for ever shut out.
LORD BROUGHAMsaid, other rules might he applied to leaseholds. What he wanted was to curb and check the unlimited and uncontrolled power which seemed to he given to the commissioners. These changes might he made without touching the principle of the Bill; and they would make great difference in his sentiments respecting it. But the objection he had last stated seemed insuperable.
The EARL of GLENGALLwas never more astonished in his life than on seeing a Bill of this kind introduced to the House; and he could not but wonder that any man should have had the hardihood to propose so downright a confiscation of property for their adoption. It was true that very great misfortunes had fallen upon the property of Ireland, but he could not imagine any set of circumstances that would call for such a measure as the present. It involved a principle of communism and socialism of the deepest degree—one that they might have expected to see proposed in the late National Assembly of France, but only in such an assembly as that. It was founded on the principle of those sects to which he had alluded, and if it was to be carried into effect he would recommend Her Majesty's Government to invite Louis Blanc, Considerant, and Proudhon to become the first commissioners. Ireland had not been thrown into its present state by the con-duet of Irish proprietors. Its evils were owing to a system of misgovernment for five hundred years on the part of this country. From the hour Henry II., in the year 1172, set his foot in Ireland, down to the reign of William III., property had been insecure, in consequence of the frequent confiscations which had been made during the interval. Elizabeth, so great in many things, and so great in the esteem of her subjects—Elizabeth was as great a confiscator as any of her predecessors, who interfered with the property of Ireland; for, having determined to provide for the captains of her train-bauds, she proceeded to the removal of the previous owners with that view, and that view alone, for there was no other 1352 reason for the confiscation of those magnificent estates with which she readily dealt. Then came James I., and after him Cromwell, whose commissions were issued endowing the commissioners with the very powers which the Government now proposed conferring by this Act, and against which it was his intention to give his vote. William III., although strictly bound by the treaty of Limerick, proceeded to confiscate the estates of all those who had fought for King James at the Boyne, in direct contravention of the treaties which he had signed. Was it wonderful, then, after this series of confiscation and spoliation of estates for so great a number of years, that a feeling of insecurity should grow up, and men should be unwilling to become purchasers? For his part, it was no wonder to him that men had not laid out their money, as owners did in this country and elsewhere, in the improvement and high cultivation of their estates. There was no degree of security attaching to the possession of landed property in Ireland, at least down to the year 1782. Down to that period, the Legislature of this country was employed in passing every species of laws which had for its object the destruction of all trade, manufactures, and agriculture in Ireland. Such was the object, and such the course which this country persevered in towards Ireland, and it was not till the year 1782—when 80,000 volunteers took their stand upon their country's rights, that this Legislature was induced to review their course and to repeal the Acts the cause of so much mischief to Ireland. Up to that year the Legislature had heard the manufacturers, and farmers, and landlords of this country state, that the trade, and the manufactures, and the agriculture of Ireland, were detrimental to the interests of this country, and they had listened to their petitions. Was it wonderful, he asked, if a country placed in circumstances like these, for a period of five hundred years, did not find herself, in the course of another fifty years, in a state of prosperity, even if the course pursued towards her had been reversed? Another system which had been pertinaciously pursued with regard to that country, were the penal laws which affected the Roman Catholic population. The laws passed in regard to them rendered their property precarious and insecure, giving to the Protestant branch of the family the rights of ownership over the family estate until the 1353 legal heir should recant his religion. Such laws as these, and the laws made against trade, these were the causes—the main causes of the evils which had fallen upon Ireland; and, when such were the laws dealt out to her by the Legislature of this country for many hundreds of years, he said the evils now complained of were to be laid to the fault more of the Legislature than to the landlords or to any other party. During the last few years, they had been active in legislating for Ireland —they had granted her a poor-law; yes, but not for the purpose of benefiting the country. No, it was for the purpose of preventing the Irish poor from coming over to this country to burden its rates. And now, after enacting that law against the opinion of the majority, they were about to give the final blow by the Act which was now under consideration, which was the completion of the whole system. At one time, Government gave themselves no trouble about Ireland. Now, they troubled themselves very much about her, lest more money should be wanted from the treasury for the support of her starving population. In this state of things, they were now attributing the cause to the weakest party—they were about to visit upon the Irish landlords the evils which had been accumulated, and to deal destruction to them, merely because the Government did not choose to advance money from the treasury to save the poor from the ravages of famine, and the effects of the infamous system of legislation, which, for many years, had been persevered in towards the country. He said, he never expected to have heard in their Lordships' House a proposal to supersede the equity courts in Ireland; as if, moreover, the learned Judges who sat in them were incompetent. He hoped there was no man bold enough to say so; and, for his part, he must say, that a more able and learned bench of Judges was not anywhere to be found. But, whatever they might choose to give as a reason for the course they were now to pursue, he would tell them, that it was the legislation which they meted out to Ireland, which had drawn the enormous masses of property in Ireland, bit by bit, into these courts. Formerly, the transfer of property was easy; but then came what was called "Pigot's Act," which had operated most injuriously, and he attributed a greater complication of evils to its operations than had before existed in the country. It 1354 had affected for the worse the system previously existing of judgment debts. Inconsequence of that Act, small claims of 50l. as easily as large claims for 10,000l. could be made, and judgment signed on them against the estate of the debtor; and the 50l. judgment affected not one estate only, but every estate of the possessor—it might run over four or five estates in so many different counties. This was one mischievous effect of the Act, that however small the claim, it went over every portion of the property possessed by the owner, wherever it might be situated, whether in Cork, Mayo, or Dublin, or all of them together. The consequence was, that when these claims came to be reviewed for satisfaction, the complication was frightful, and it was next to impossible to satisfy these petty judgments. The parties who had signed them had perhaps failed, or they were not to be found, or they were dead; and, on the other hand, purchasers in these circumstances, desirous of getting out of the bargain, availed themselves of the state of the law to create difficulties and delays, keeping the bargain open for two or three years, and so they were often able to get out of the purchase. In Ireland it had been very much the practice, unfortunately, for parties when they had paid a petty judgment, not to take any measure to have the judgment formally satisfied. Either owners were not aware of the steps necessary, or they did not take them if known, and the consequence was the greatest difficulty in disposing of their property because of the number of these seemingly unsatisfied judgments which remained. He said some measure ought to be introduced which would limit the time during which a judgment would be of effect, and beyond which it should cease to be of power to create a debt. But Pigot's Act had had a most injurious effect in another point of view, which no noble Lord in his hearing had adverted to. Previous to that Act, when a suit of foreclosure was begun by a mortgagee, the suit was confined to the parties immediately concerned, and the losses too; and when judgment was obtained, the next encumbrancer received notice of the intended sale, and then it was that he came in on the surplus for the payment of his claim. But after the passing of this measure, there was a clause in the Bill which enacted that a mortgagee, when he instituted a foreclosure suit, must make all the encumbrancers parties to the suit. He 1355 was obliged accordingly to bring into court all the judgment creditors, who were obliged to be served with notice of the suit, and the consequence was enormous expenses and a harvest to the lawyers. He knew a case in which there were 140 defendants brought into court, and all of them were obliged to appear by counsel. The law previous to this gave these parties certain rights, and the court having the power to administer the law only was unable to change it. Sir Edward Sugden, seeing the evils which were in existence, endeavoured to save the parties the enormous amount of expenses; but unfortunately the good intention of Sir Edward failed. That was one of many points upon which more sensible legislation would cure many of the evils now pressing upon the property of Ireland, and on which it would be desirable to bring back the law to the state it was in previous to the passing of Pigot's Act. But he wished to draw the attention of their Lordships to another point in the legislation of this country for Ireland—he alluded to the system of receivers. He did not mean to say that receiverships were not of old standing in Ireland; but this he did say, that till a late period very little of the property of the country was under receivers. Until O'Loghlen's Act, but little property was in the hands of receivers; but since the passing of it, the quantity of landed property brought into court was enormous—solvents' estates quite as much as insolvents'. He believed, with the exception, perhaps, of one or two of their Lordships, they were not aware of the nature and effects of that Act. That Act gave power to any judgment creditor, whether for 20l. or for 10,000l., to appoint a receiver over the estate after ten days' notice. Now, how was that power used? When a man was appointed receiver over an estate, he got five per cent upon the rents collected. That was a very good thing for himself. If an estate yielding 15,000l. a year was placed in the hands of the court, it was an excellent thing to be appointed a receiver; and now there were a sot of attorneys in Dublin who made that a distinct trade. Ever since the passing of O'Loghlen's Act, this was a new trade which had been started. It was the easiest thing in the world to get estates put into the hands of a receiver. An attorney, either directly by his own means, or by persuading a friend to put forward his claim against an estate, obtained a judgment against it. 1356 The attorney said to his friend, "You will put in against Johnson, and I will go shares with you; I will be receiver at 1,000l. a year, and I'll give you 300l. a year, you, of course, giving me the receivership." Nothing more, after judgment obtained, than the service of the ten days' notice, and it was only necessary to serve that at the house of the proprietor. It was not necessary to serve it on him personally, but merely at his house, where it might fall into the hands of an ignorant servant girl.
The EARL of GLENGALLWell, at the place of his last abode it might be taken in by a servant girl, who in all likelihood lighted the fire with it; and, in the meantime, the proprietor being quite ignorant of the procedure, the estates had passed into the hands of a receiver, and there was no means of getting out of that. He was only detailing to their Lordships a process which had been done again and again, and he could give them twenty cases in illustration of it. Nay, more, he believed that where the notice had been left at the owner's house, to the chances of reaching his hand, that in nine cases out of every ten that never happened, and the first notice which the proprietor had of the change effected in his position, was probably the letter giving him intimation that an attorney was to enter as receiver. In many cases notice had never been served at all by the attorney, who found it as easy to get men to swear his case, ruffians whom they would not believe at quarter-sessions—such persons were always skulking about, needy and ready to swear the service of a notice which they had never seen. He know one case of a gentleman who for the time was resident in England, in which notice was left in the terms of the Act at the last place of his abode; but in his absence and his ignorance, his property, not large indeed, yielding about 300l or 400l. was taken away from him; he was obliged to sell his commission, and he (the Earl of Glengall) was sorry to say he was now in a workhouse. To the attorney it was the finest thing in the world to be appointed a receiver, because the whole estates were entirely under his management. Probably, on the estate there were many tenants, both great and small, from whom, if they did not pay their rents, he likely took a bill at two months, or issued process of law. In the 1357 case of Ms issuing process, he made upon that 2l. 10s. for expenses, which, though put upon the tenant, passed all into the pocket of the attorney. A short time after this process was issued, the expenses would become 17l. or 20l. He knew a case of some property in the south of Ireland, where seventy-five such processes were served in one day, upon every one of which so served the attorney realised a profit of 17l. or 20l. Why, it was a man's fortune to be appointed a receiver. Considering the terrible destruction to property which was ensuing from this system in Ireland, the Lord Chancellor and the Master of the Rolls determined that attorneys should no longer be capable of being appointed as receivers. But the attorneys, never without a shift, found substitutes who acted nominally as receivers, and under whom they appeared in the courts as attorneys for the cause. But, again, all rents were left in the hands of the receiver, and he was not obliged to account for them till fifteen months after. Not a farthing did he pay away to creditors—no account did he give till fifteen months after the collection of the rents, and until the Master in Chancery adjudicated that such and such sums must be distributed. All these evils of the receiver system had accrued in consequence of Pigot's Act, and he believed they could not do a better thing than repeal that Act, and place parties again in the position which they occupied previous to it with regard to judgments. Let them do those two things, and they would confer great benefit upon Ireland. The Master of the Rolls was aware of the evil to which he had been adverting, but he could do nothing to alleviate it. In a recent judgment pronounced by that learned Judge, he said—
In conformity with the decision of Sir Edward Sugden, he should comply with the prayer of the petition, and grant a receiver over the defendant's property. The Act in question had worked great injustice, but he hoped it would be the last case in which he would be called upon to appoint a receiver.He said it was necessary further, that they should do something in regard to registry searches. No one would believe the amount which was necessary to pay for these expensive requirements. It was necessary, in some cases, to search for negative searches to the time of Edward III. And he knew one man who had enough, as he thought, to pay off the charges upon his estate; but when he had to pay for those searches, 1358 the sum left him was not nearly sufficient. He should suggest, instead of appointing a commission, with astounding powers, the Government should appoint some commissioners for the express purpose of aiding the Master of the Rolls, and the Masters in Chancery, the latter of whom held an office much more administrative now than judicial, in consequence of the immense mass of property, all the accounts of which and details they had to take, and review and regulate; that was now thrown into their office. It would be easy, indeed, with consideration, to effect a change in the present system of things, and then they would have no occasion for those triumvirs for confiscation of property, or for the superseding of the courts of equity. While he suggested, however, the appointment of a commission, he did not wish to see it endowed with the astounding powers which they proposed conferring on those to be appointed under this Bill. But he asked, how were those commissioners to sit—with closed doors? Were the public to be excluded? Was the press not even to be admitted? Was nothing to be heard of their proceedings till the decree was fulminated, and the notice of sale appeared in the Dublin Gazette? Again, as judgments in Ireland were so very different from what they were in this country, he was desirous of knowing whether these triumvirs were to inquire into the validity of the judgment, whether any money passed at all under it. In this country, if no money passed, if it had not been paid in hard cash, the judgment was not worth a farthing; in Ireland, however, it was different. No money whatever was necessary to have passed, or but one-half of the 1,0002. said to be raised under it may have been received. Nothing was more common than such cases, and especially in times like these; when people did not receive their rents, they went and consented to anything helter skelter, and signed judgment to the terms of the lender without objection. He did not hesitate to assert that in the case of half the estates in the country on which judgments had been obtained, not half the money had been received, for unfortunately the state of the law was such that as soon as the borrower had approved of the judgment, he was for ever after deprived of again opening the case. The attorneys, moreover, knew right well how to drive parties into such difficulties as compelled the borrower to submit to any terms which might be im- 1359 posed upon him by the lender. Another effect of O'Loghlen's Act was, that the puisne creditor for perhaps 20l., although twenty other creditors were before him in point of time, and before him in point of importance, if he happened to be the first to apply, took precedence of the first mortgagee, and got his money before him. The Master of the Rolls had commented upon this feature of the Act twenty times, and over and over again had said it was most unjust, but that he must administer the law such as it was. The consequence of the junior creditor having gone into the court with this preference in his favour was, that the mortgagee commenced a suit for the foreclosure of the mortgage, notwithstanding that just before he might have been perfectly satisfied to let it remain; but now that things were altered by the entrance of the junior creditor, he was compelled to commence a suit of foreclosure, and the effect was ruin to the owner. This measure had struck principally against the incumbered estates in the west of Ireland. The state of things there, in consequence of the failure of the potato crop, had introduced evils to an accumulated degree, and parties, he had been told, had induced the Government to bring forward this measure. He understood, but he knew not whether it was true, that a set of speculators in Manchester and Norwich said, "Get their titles at whatever price the market runs; we will purchase them, and we will commence a new state of things." He did not believe that they would realise six or eight years' purchase; and he did not think that those who purchased these estates would be very well pleased with their bargains. Some said that these estates in the west only wanted capital, skill, and labour to cause them to yield remunerative return. He had himself no property in that district, but he knew the state of things there, and he was satisfied that the great bulk of lands in the far west were not fit for cultivation, and that not all the skill, capital, or labour that could be bestowed upon these estates could cause them to produce crops fit for human food. He had seen men of money and enterprise who had purchased estates there ruined by their expenditure upon them. All that could be done with the lands in the far west, was to graze them with small kinds of cattle, as was done by the moors in Scotland. That was the opinion of the late Mr. O'Connell, who understood the subject well. These specu- 1360 lators, who expected large profits, would lose their money; and they deserved it, because they did not come honestly, but designed under the mask of patriotism and philanthropy to do with this waste land what they did with their patriotism and philanthropy—"buy it in the cheapest market, and sell it in the dearest." He hoped the House would not allow this Bill to pass in anything like its present shape. He had his fears upon it; but so surely as they did, there would be an end of the Union. There would be scarcely a man in Ireland who, when the Bill should be understood, would not then throw up his cap for repeal, and cry out for a Parliament in College-green.
LORD BROUGHAMwished to know how the commissioners under the Act were to take testimony—whether by affidavit or viva voce, or whether there was to be any restraint upon them in that respect?
LORD BROUGHAMwished to ask another question. Let him suppose he was a claimant to an estate of which another person was in possession, who, conscious of the infirmity of his title, sold it at once, while he did not come forward with his title. His estate would thus be sold to a purchaser who, under this Bill, could thus show a good title as against him. He saw no rule in the Bill applicable to such a case, or to reserved biddings. If, for instance, the estate was sold for only five years' purchase, he saw no means in the Bill of rescinding that sale. Could there be a reserved bidding, or could the parties buy in? and if they bought in, out of what funds were they enabled to do so?
LORD CAMPBELLsaid, there were no rules in the Bill, but it gave the commissioners power to lay down rules which would be submitted to the Privy Council of Ireland. The commissioners were armed with the most ample powers, and they could refer any question that might arise to a court of law, and direct issues to be tried by a jury.
LORD CAMPBELLsaid, that notice would be given to all the world to come in, and their claims, if they had any, would be heard.
§ LORD MONTEAGLEsaid, that the 1361 noble Earl (the Earl of Glengall) had made an irresistible case; and the replies of the noble and learned Lord to the questions of his noble and learned Friend furnished him (Lord Monteagle) with a reasonable distrust of the Bill. That the object of the Bill was a desirable one, he fully and entirely admitted; and if the Bill would give greater facilities for the transfer of property in Ireland, no one could be more friendly to it than he was. He contended, however, that the remedy it provided for the existing difficulty of transfer would be imperfect. When the Encumbered Estates Bill was under discussion last year, he urged upon his noble and learned Friend the acceptance of a short form of conveyance. And what was the answer he received? Why, his noble and learned Friend said—
No, never go into the question of a Parliamentary form of deed. You once set out a form of recognisance in the case of election inquiries, and a departure from that form was held to be fatal, and the recognisance good for nothing. If you were to set out a Parliamentary form of conveyance, it would be exactly the same.He (Lord Monteagle) bowed to the superior authority of his noble and learned Friend; but he now found that he had, in the Bill before their Lordships, adopted the very suggestion which at that time he rejected. Again, the House must bear in mind that this Bill was not to be taken alone, but must be considered in connexion with another Bill. If they took the Bill as it stood, it would appear that it merely gave a simpler, cheaper, and more expeditious means of attaining the same object as, without such a measure, was now attained only by a more circuitous and expensive process. But it was not so. It did another thing. There were, practically, new principles laid down, deduced from Acts of Parliament, which were passed with another intent, and were never intended or perceived until this year to involve such results as he would explain; which principles engrafted themselves-upon this Bill, and necessarily formed a part of it. The Bill to which he alluded, and in connexion with which the present measure was to be viewed, was the Bill for the amendment of the new poor-law. And he begged to call the especial attention of their Lordships to the few facts upon which he was about to dwell. In Ireland a power existed, at the discretion of the Crown, to appoint vice-guardians for the purpose of administering the poor-law. These vice-guardians were not 1362 necessarily connected with any part of the district over which they were to act: they were not responsible to any ratepayers, and they had an unlimited and uncontrolled discretion to impose on that district any amount of rate they might think fit. By the exercise of that power, they might create any amount of debt upon any estate or upon any district; and by a clause in the Bill to which he referred, power was given to recover the rates by proceedings in the superior courts in Dublin. This clause met with no opposition in their Lordships' House. It was stated in its support, that there were cases in which the decision of a superior court would be required; and he was of opinion that such cases might arise, and that a power of resorting to a superior court was necessary. It was also suggested that there might be cases in which the influence and authority of persons in Ireland would be such as to enable them to exercise a power over the inferior courts that would make those courts liable to be distrusted. But within the last year it had been discovered by an equity lawyer, that, as an incident to the power of going to the superior courts, there was the power of entering a judgment in all those cases; and upon the judgment so entered, it was considered that there was a power given to sell the freehold estate that might be subject to that judgment—a power which had never before been dreamt of in respect to the recovery of such taxation. Now, he put it to his noble Friend who had charge of that Bill in its passage through their Lordships' House, if Her Majesty's Government contemplated at the time of taking this power to recover in the superior court, that there was to be an incident connected with it which would lead to the sale of such freehold estates? They never did. He would answer the question for them. But further propositions are now made, which will accelerate the arrival of the incidental result he had described. For by a Bill now in progress through Parliament, they enabled proceedings to be taken in the inferior courts upon short notice at an expense of 4s. or 5s; they enabled the decree of this inferior court, represented by the assistant barrister, to be certified to the court in Dublin, and to be made a matter of entered judgment in Dublin; and then, under the Bill now before the House, they took a power of selling the estate upon that judgment. His noble Friend had had 1363 the candour to admit that amongst the causes of the present depreciation of the value of land in Ireland, was the existing poor-law. And there were at this moment miles upon miles of country which were utterly uncultivated; not by any fault of the landlord, but solely by the default of the tenants, who did not pay their rates. The first step that was taken was to make the landlord responsible for the whole of the rates, which were a debt not of his own, but solely of another's contracting. Then summary proceedings were taken against him before the local court, whose decree being certified to the superior court in Dublin, judgment would thereupon be entered. Then came the Encumbered Estates Bill, under the operation of which the estate might be sold; and this, not for the debt of the owner, be it remembered, but for the debt of the tenant, who, having first defrauded his landlord of his rent, in the end took as his accomplice the Legislature of the United Kingdom for the purpose of defrauding him of his estates. The noble Lord then suggested that the Bill should be referred to a Select Committee, and recommended the introduction of a clause providing a cheap and expeditious method of dividing lands between persons who might now hold in common. Many estates were at the present moment held by two or three proprietors in common, and very frequently when two out of the three (being men of enterprise and capital) were anxious to improve the land, they were prevented from doing so by the joint title of the third, who was opposed to taking the steps which were necessary for that purpose. It was impossible for any one conversant with the proceedings of the Court of Chancery in Ireland, to doubt the propriety of leaving the landlords as free as possible to do the utmost for the improvement of their estates. By a return in reference to 1841, it appeared there were then certain causes in Chancery, in Ireland, affecting estates which, when the receivers were appointed, owed 39,000l. arrears; and, according to the last account, the arrears had increased to 347,000l. Thus, when they saw ruin and devastation in some parts of Ireland, and the neglect of every duty which landlords ought to perform, and which the Irish landlords were sometimes indiscriminately stigmatised for not performing, those evils might be traced to the superintending authority of the supreme court of equity in that country; and if they 1364 were left unredressed. Parliament would be held responsible for them. With respect to the time chosen for the introduction of this Bill, he thought it was open to objection. There was never a period in the history of that country in which its property was reduced to such a state of wretchedness and misery as at this moment, and more especially the land of the smaller proprietors. A case was mentioned in the last set of papers laid upon their Lordships' table of an unfortunate lady who was in the possession of property which amounted to 400l. or 500l. a year. For several years she had not received a 6d. from the land; the tenants absconded, and at length she was reduced to the necessity of applying to the poor-law officer for relief. The estate of which she was the owner was encumbered with an arrear of poor's-rate (not due from her, but from her tenants), amounting to upwards of 170l.; and what would be the result? Why, that by the Bill now under consideration that poor woman's property would be confiscated. They ought not, he said, to enable their own officers to heap debts upon estates, and then to enter judgment upon the properties of those who had not contracted any debt. These were evils that only required exposure, and he was sure they would not be sanctioned by their Lordships. He called upon them not to pass Bills which would declare legislative war against a class that was now the most suffering in Ireland, and that, too, a class on which the administration of those laws depended. He did not mean to say that a change in some possessors of property in Ireland might not be desirable; for it was impossible that land in Ireland could continue in its present position, for instance, looking to those classes engaged in the actual cultivation of the soil, it was impossible to find farmers to sow, because they did not know that they should reap. But he also said that, in seeking for new purchasers, they might find it difficult to procure them. The ordinary motives of mankind would govern in this as in other cases; and individuals would not be found to invest their capital where it was, from vicious legislation, neither safe nor profitable.
The EARL of WICKLOWbelieved that many of the arguments which had been used in the course of the present debate, might more properly have been used in the Committee on the Bill, when the details came under consideration; for he had not 1365 heard a single argument advanced against the principle of the measure. The present Bill did nothing but establish the machinery for carrying into operation the Act of last year; the only point with respect to which the Bill under consideration went further than the Bill of last year being that which related to the transference of powers from the Court of Chancery to the Commission; and he certainly had a strong impression that the three commissioners, being chosen from among the most able lawyers in the country, would be infinitely more competent to direct their energies to this particular matter than the Court of Chancery, with a vast accumulation of business constantly before it. He found an argument favourable to this provision of the Bill in what had fallen from the noble Lord who had last spoken, in reference to the state of property under the Court of Chancery. He had heard nothing to justify the suggestion that the present Bill should be sent to a Committee upstairs, for he thought it might be just as well considered in a Committee of the whole House; and with reference to the reason urged for a Select Committee, that their Lordships might there have the assistance of Irish lawyers, he must say that, though he had the highest respect for the present Irish Master of the Rolls, and would readily take his opinion on the construction of an Act of Parliament, yet he did not want that learned individual's assistance as a legislator. He believed that their Lordships, and the Members of the House of Commons, were as competent to frame laws as any lawyers, and he regretted that there prevailed too much a practice of leaving to lawyers the consideration of these matters. The noble Lord who spoke last objected to the particular time at which the present measure had been introduced, and had mentioned a certain case in support of his objection. He (the Earl of Wicklow) thought, however, that that case constituted no argument against the time at which the measure had been introduced, because, if many individuals wore in the same unfortunate condition as the lady referred to, it would be an advantage to them to have an easy mode provided by Parliament, enabling them to obtain something, where they had now nothing, by disposing of their property. Having stated thus much, he must admit that he was by no moans sanguine as to the probability of any great effects being produced by the measure. He be- 1366 lieved that such was the state of property in Ireland, and such the existing panic, that no class of purchasers would be found from one end of the country to the other. But it might be said that English capitalists would invest money in the purchase of land in Ireland; still he conceived that such would not be the case; for, in his opinion, nothing more calculated to deter English capitalists from investing money in the purchase of Irish land could have been adopted than the Rate in Aid Bill; consequently, for the first two years after the passing of the present measure, he believed that the commissioners would be sitting at their desks receiving their salaries, and doing nothing else. This was, however, no reason why their Lordships should not amend the law which had been already established; and as au Irish proprietor he expressed his candid opinion in favour of the principle of the Bill.
§ Bill read 2a
LORD CAMPBELLhad no objection to accede to the suggestion if he were assured that the Select Committee was not asked for with a view to create unnecessary delay, or from hostile feelings towards the measure.
LORD BROUGHAMsaid, he should endeavour to amend those parts of the Bill which he considered objectionable; but he assured his noble and learned Friend that he would make no captious objections to the Bill in Committee, the main object of which, he admitted, had been sanctioned by the House.
§ The MARQUESS of LANSDOWNEsaid, what had been just stated by the noble and learned Lord confirmed him in his resolution to encourage his noble and learned Friend (Lord Campbell) to accede to the proposition of appointing a Select Committee. But he wished it to be distinctly understood that, in granting that Committee, the Government did not admit the right of the Committee to alter in any way the principle of the Bill as it had been stated by his noble and learned Friend; that principle being not only to facilitate the transfer of landed property in Ireland, but to do so by moans of commissioners, to whom the powers of the Court of Chancery should be intrusted; for, unless the House were prepared to go that length, it 1367 would be better to stop proceeding with the Bill altogether. It was upon that understanding alone that he gave his assent to the proposition of a Select Committee.
LORD STANLEYassured the noble Marquess, so far as he was concerned, and he believed he might say the same for those who had taken a part in opposing some of the more important details of the Bill that night, that if appointed members of the Committee they would go into it frankly, admitting the principle upon which the noble Marquess had said he would grant the Committee—that was to say, that the proposed Committee should deal with the Bill upon the assumption that now machinery should be formed, to which the power of selling encumbered estates should be transferred, and that the object of going into the Committee was for the purpose of considering in what manner that power might be more beneficially granted, and where it might be advantageously curtailed and guarded from abuse. He hoped too it would not be considered as going beyond the limits of the Committee if they considered in what manner that power might be extended to objects of a similar nature to those contemplated by the Bill. He did not desire, however, to bind himself, and he was not prepared to bind any other noble Lord, with respect to the course which they would pursue on the third reading of the Bill, when the Bill should have come out of the Committee, and when they should be able to consider it as a whole; but he could assure the noble Marquess that there was no desire either to frustrate the Bill by delay or to alter its principle. Their only desire was, that, being a Bill of a most extraordinary and exceptional character, it should not be carried further than the exceptional nature of the case required, and that the arbitrary and despotic powers which it was proposed to place in the hands of the commissioners, should not be more despotic and arbitrary than was absolutely necessary for the purpose of preventing greater evils—that, in short, the Bill should be made to work as effectively as possible, and as little injuriously as possible for the object in view. At the same time, he must say that he thought there were many clauses in the Bill which required the most serious consideration.
§ Bill to be referred to a Select Committee.
§ House adjourned till To-morrow.