Lords Sitting of 19 July 1853

MINUTES.
PUBLIC BILLS.—1a Customs Duties; Courts of Common Law (Ireland); Landlord and Tenant (Ireland); Succession Duty.
2a General Board of Health (No. 3); Coinage Offences (Colonies).
Reported.—Bankruptcy (Scotland); Battersea Park; Westminster Bridge.
3a Metropolitan Building Act Further Amendment.

BANKRUPTCY (SCOTLAND) BILL.
Order of the Day for the House to be put into a Committee read.
The LORD CHANCELLOR moved that the House do now resolve itself into a Committee on the Bill. The noble and learned Lord stated that the principle of the Bill was contained entirely in its details, the object of which was to effect a number of small, but important, amendments in the law of bankruptcy as it at present existed in Scotland. The Bill did not propose to do much; what it did, however, was in the right direction, and as such the measure deserved the sanction of their Lordships.
LORD BROUGHAMconsidered that in dealing with so important a subject as that of the bankruptcy law in Scotland, in which many defects were admitted to exist, the proposed Bill did not go far enough, while some of its details would, he thought, be found insufficient for supplying the required remedy. Among those who had brought the subject before their Lordships' notice by petition, were 200 of the largest firms in the city of London, whose united annual trade with Scotland amounted to not less than 5,000,000 l.; and they complained greatly of the delay, uncertainty, and expense connected with the present law. Not only was the constitution of the Scottish Courts extremely defective, but the mode of appointing trustees or assignees was highly objectionable; for a week, or even a fortnight, after the fiat had been issued, the bankrupt was permitted to retain the entire control over his property and account books, by means of which last he was enabled to influence the choice of assignees, and possessed facilities for making away with his property to the detriment of his creditors, which ought not to be allowed to exist. The mode of granting discharges or certificates was also a subject which required radical reform, as well as the manner in which the examinations of the bankrupts were conducted.
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He regretted that these matters were not more fully and effectually provided for in the proposed Bill than they appeared to be. He contended that, where the Bill went in the right direction, it did not go sufficiently far, and that it was a doubtful propriety in others. It left nine parts in ten of the existing evils unredressed, and without even an attempt at redress. He thought, without further detaining their Lordships, that he had said enough to show that this was not the time to carry through a change in the law which was not more urgent now than it had been for the last six or seven years. He had not called on their Lordships to pass his Bill on this subject during the present Session; but he proposed submitting it to the Commission which had been appointed under the Administration of the noble Earl (the Earl of Derby), to inquire into the assimilation of the laws of England and Scotland; and what he wished to know was, why this present Bill, which was so much objected to as not going far enough in any direction, as well as his own, should not be referred to the Commission? This was a subject which excited the greatest interest among a most numerous, a most respectable, and a most important, body of their fellow-subjects; and he thought their Lordships' time would not be ill employed in giving attention to their remonstrances and their suggestions.
The LORD CHANCELLORsaid, the subject on which his noble and learned Friend had addressed their Lordships was one of the deepest interest and importance, and if he could think that the pressing on of the measure now under consideration would in the slightest degree interfere with or damage the ulterior prospect of permanently improving the bankrupt law of Scotland in a different direction from that aimed at by the present Bill, or would at all interfere with the labours of the Commission, he should at once defer to the suggestion of his noble and learned Friend. But he submitted that this Bill did not in the slightest degree interfere with that view, its object being simply to improve the provisions of the existing law of Scotland. That being so, he trusted his noble and learned Friend would not suppose that it was with the slightest inclination not to give the fullest attention to the suggestions he had made for a more extensive improvement of the bankrupt law, or to divert the Commission from a full consideration of the laws of the two countries on this subject, that he (the Lord Chancellor) now pressed

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forward this Bill. His simple and sole object was to concur with the other House of Parliament in amending the existing law in the few particulars to which this Bill related; and he therefore trusted their Lordships would allow this Bill to go into Committee.
LORD BROUGHAMsaid, the apprehension out of doors was that this Bill would stand in the way of more radical amendment of the law. His own opinion was in favour of taking what he could get, looking forward to the prospect of obtaining more at some future time; but undoubtedly, when their Lordships had regard to the great number of petitions which had been presented in favour of his Bill, to the great importance of the stake in question, and to the respectable position of the petitioners, they being the very cream of the mercantile men in the kingdom, he thought they ought to allow that larger Bill which he had the honour of introducing to go to a second reading.
The LORD CHANCELLORsaid, so far as he was concerned, he was anxious that that should be done; but as his noble and learned Friend's Bill contained about 200 clauses, his noble and learned Friend would not suppose that their Lordships would pledge themselves to assent to all the details of the measure. He (the Lord Chancellor) could not even say as yet that he understood the whole of his noble and learned Friend's Bill; but he could assure their Lordships that it was a measure exceedingly well deserving their attention, and one which ought to be referred to the Commission which was now sitting.
On Question, agreed to.
House in Committee accordingly.
LORD BROUGHAMsaid, he had consulted with his noble and learned Friend on the woolsack as to the most convenient time for proposing the Amendments he sought to make in the measure; and the result was, that he (Lord Brougham) thought it prudent to postpone those Amendments until a future stage of the Bill.
Bill reported, without Amendment, and to be read 3a on Thursday next.

THE IRISH LAND QUESTION—LANDLORD AND TENANT (IRELAND) BILL.
The MARQUESS of CLANRICARDEbegged, pursuant to notice, to introduce a Bill in relation to the law of Landlord and Tenant in Ireland. Of course, he was not going to enter upon the subject at
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length, but he would state the circumstances under which he ventured to bring the subject under their Lordships' consideration. The subject, as their Lordships knew, had engrossed a great deal of attention in Ireland for a considerable time and in the year 1851 Lord John Russell and the noble Earl then at the head of the Irish Government, and now the Secretary for Foreign Affairs (the Earl of Clarendon) being determined to take the matter up on sound principles, but as far as possible in a comprehensive manner, the draft of the Bill which he held in his hand was prepared by Sir W. Somerville, assisted by Mr. Tighe Hamilton, a gentleman who brought a great amount of learning and knowledge to the subject. That Bill was prepared in 1851, and was under the consideration of the then Government; but they went out of office in 1852, and it was never brought before Parliament. If their Lordships should look to this Bill when was printed, they would find that it rested upon the soundest principles, and that it violated no rights of property, nor any principle on which legislation ought to be conducted, while it embodied in its details several important amendments of the statute and common law. The Bill was in tended to deal with the whole of the subject, and he thought their Lordships would agree with him in considering that it was of the utmost importance to consolidate and codify the laws, so that they should not only be accessible to legal persons, but also that persons whose property was concerned might be able to ascertain without difficulty what was the law under which they might be called upon to act. It proposed to deal with the whole subject for which a code consisting of four or five Bills had been brought before the other House of Parliament, namely, the Land Improvement Bill, the Leasing Power; Bill, the Tenant-right Bill, as it was called and the Tenants' Compensation Bill. He considered it was of the greatest importance to codify and simplify the law; and their Lordships would at once see the difference of manner in which it was proposed to be done by the Bills to which he had referred, and the Bill which he had the honour to present to their Lordships. There were fewer clauses in it than it the Bill for the regulation of Leasing Powers which was on their Lordships table waiting for a second reading, and which contained fifty clauses. Their Lordships would not fail to observe that there

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was in that Bill a remarkable clause, which distinctly provided that it was not to affect any right or remedy which either the lessor or lessee possess at present. Let their Lordships seriously reflect on the condition to which litigation would arrive if they permitted such a Bill to become law. There had been a controversy out of doors and in Parliament, as to the person with whom this or that principle originated, who was to get the merit of first mooting some particular mode of dealing with the subject; but he held it to be a great merit in the Bill he held in his hand that he did not believe it contained one original view, being founded on provisions which were already embodied in former Acts. It respected the rights which were recognised by the statute and common law, and kept in view the great principle of the rights of property. The great principle which this Bill proposed to establish with reference to the dealings of landlord and tenant was, that the rights of both parties should rest upon contract; that there should be great facilities given for entering into those contracts; and that there should be an invariable and easy remedy given to both parties to enforce them. That was the principle on which legislation on this subject ought to be founded; but of course it was not necessary to go into the details of the provisions of the Bill, as it would be shortly in their Lordships' hands. Resting on the principle to which he had referred, the Bill was divided into five parts. The first part related to leasing powers, which it regulated and in some degree created under sound limitations—and there was a difference in dealing with the subject from the way in which it was dealt with by the Bill on their Lordships' table. The second part referred to the creation of tenancy and the rights of the landlords and tenants. The third part referred to the additions the tenant might make to the tenements held by him. The fourth part related to the compensation for improvements by agreement. The fifth part related to the procedure by which those rights and contracts might be enforced. It was proposed by this Bill to appoint a single tribunal for the decision of all questions, properly so called, arising between landlord and tenant out of those contracts. It was intended that all such cases should come before the assistant barrister, of course not giving him the right to decide upon title. The points of law would be also referred to the Judge of assize, but
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power was given to the assistant barrister to decide upon all those points that usually arise between landlord and tenant. He would lay this Bill on their Lordships' table with the hope that before the Bill now in the House of Commons, and the whole subject, came to be considered by their Lordships, they would refer to this Bill, and compare it with the other measures that were proposed. The subject was one of great magnitude and importance, and they should consider the opinions of all those persons who were qualified to judge of the subject before they proceeded to deal with it, because if they should take a hasty or false step they could not retrieve it. They might, by taking a wrong step, create an impression in the public mind that they had given their sanction to a measure for the violation of the rights of property, and of the common law of the country. What had made this country so great but the respect that was entertained for the common law, and for the rights of property? He desired to excite a similar feeling in Ireland, so that every man should feel that his property was safe, and the law on which it rested was secure and sufficiently simple to understand. He trusted their Lordships would look carefully over this Bill as well as over all the Bills. In the Bills already before Parliament there were enactments that would astonish their Lordships when they came to the consideration of those measures. In the Land Improvement Bill, which had gone through a Select Committee of the House of Commons, there were clauses at that moment which, in specific terms, made the landlord liable for a charge incurred by the tenant. He would engage to point out, in five minutes, to any person learned in the law, that the landlord was specially and nominatum made the person on whom the charge would rest for a loan that was raised by the tenant. In the Leasing Powers Bill there was a multiplicity of clauses, that must be looked to most carefully; and yet although that Bill was a long time before the Committee of the House of Commons, and had been most beneficially altered, it contained one provision by which a tenant for life could totally defeat all the powers of the settlement under which he was bound; and a tenant for life, no matter in what state of health, or at what time of life, might in fact create a tenant right that would entirely prevent any of his successors from having the full value of the property, or one shilling more value out of

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that property; and which laid down as a law, without any limit whatever as to time or the amount, that a man could not reenter into possession after an agreement for improvements was made, no matter whether the party held on lease or occupied from year to year, unless he paid the full value at the time possession was required of any improvements that had been made. See how that would affect building ground. Suppose that was applicable to the neighbourhood of the metropolis, where towns and districts were springing up. The proprietor of one of these districts might take a fine to let the builder into possession of the property at the rate at which he let it for grazing ground, namely, 8l. or 10 l., and the builder might erect houses thereon that would be of the value of 50,000 l. or 60,000 l.; and it would be utterly impossible for any successor to receive one shilling more rent until he had paid the builder back 40,000 l. or 50,000 l.; or he might, if the value of the land should increase, have to pay 100,000 l. before he could receive one shilling more in the shape of rent. He mentioned this circumstance to show their Lordships that, if they did not look closely into the provisions of these Bills, they might pass measures that would be of the greatest injury to the country when they were only desirous to do good. For these reasons he hoped the whole subject would be most carefully considered by their Lordships before they passed these Bills. He did not want to make any complaint with respect to the advanced period of the Session. He was ready to sit on until winter, if necessary, to pass this Bill before they separated; but he asked their Lordships what comparison could be instituted between the possible mischief and dissatisfaction that might be incurred by delaying legislation on this subject for a few months, and the evil that would be caused by passing Bills with such provisions in them as he had named? They should not proceed hastily when these Bills came before them, but should examine them attentively and leisurely; because, in the present state of Ireland, nothing was so desirable as to show the people of that country that they were under the protection of the great common law of England, and that the rights of property in that country should be respected; and he had no doubt that, under such circumstances, the people of Ireland would be as ready as Englishmen to observe the law. The noble Marquess then presented the Bill.
The EARL of DONOUGHMOREsaid, the proper time of discussing the subject to which the Bill of the noble Marquess referred, would be when the Bills now pending in the other House of Parliament were before their Lordships. The question was one of vast importance to the people of Ireland; but he thought that, considering the many questions that were involved in it, the only proper mode of proceeding would be to refer all the Bills to a Select Committee of their Lordships' House, where they could be deliberately considered, and the clauses carefully weighed, and he had no doubt the result of their deliberations would be to confer a real benefit on the people of Ireland.
Bill read 1a.
House adjourned to Thursday next.