ENCUMBERED ESTATES (IRELAND) ACT CONTINUANCE BILL. (Hansard, 27 June 1853)

§ LORD ST. LEONARDS
said, he thought that, as far as regarded the Commissioners of the Encumbered Estates Court themselves, there was no necessity for extending the powers of the Bill. Under the original Act, the Commissioners were empowered to continue their operations until 1854, and to the end of the then next Session of Parliament, and ample opportunity was therefore given them of winding up all matters before them. The late Government had occasion to consider this question in the course of last Session, and they came to the determination to continue the powers of the Court for another year. The Bill for that purpose was a very simple one. It did not enlarge the time as regarded the Commissioners, but it did enlarge the time for one year, in order to enable parties to go into that court and ask for the sale of encumbered estates. The power of persons to demand sales under the authority of the Commissioners would very soon cease—next month he believed. He was not one who found fault with the original Bill—indeed, it might in some respects be attributed to him. The scheme which he drew out when he was applied to from certain quarters was to much the same effect; he would, however, express the opinion which he had always and still entertained, that giving such powers as those in the Act as regarded property, was like the suspension 783 of the Habeas Corpus Act as regarded personal liberty. It was a very strong measure, required to meet an exceptional case, and it ought not to be continued after that exceptional case had ceased to exist—for if ever there was a country in which it was most desirable that the general law of the land should not be under an exceptional rule, it was Ireland. He would add, if they would for every difficulty that occurred in Ireland provide a special remedy, they would perpetuate the evil, for while that remedy existed the evil would exist; but place Ireland as she deserved to stand, as she was capable of standing, and as she ought to stand, on the same system of independence as the rest of the empire, and he would answer for it that they would find she would act as the rest of the empire acted, and would take care of her own interests without any legislation to meet exceptional cases. The Encumbered Estates Court was necessarily a close court; very few counsel practised in it; it was not under the public eye, and it possessed a jurisdiction which no Legislature would venture to give permanently and generally to any court. Observe what they did in enabling this court to give a Parliamentary title, and this, too, at the expense of the individuals who lost their estates. They destroyed that permanence of title which alone rendered the title of land available. A man could never, under the Bill, be sure that he would not, by Borne act behind his back, lose possession of his property. As to the operation of the Bill, he entirely admitted that it had had the effect of relieving encumbered estates, which were the curse of the country at large; but what he objected to was its permanency. The court was at liberty, on the application of the owner, or of any encumbrancer, to sell an estate. A person might, therefore, go into the court and get a title which was good against the whole world. While such a system as that existed, who would lend money on mortgage? Under the ordinary law, a person having a mortgage upon an estate could get possession of it the moment the party failed to complete his contract; but now if you lent money on an estate in Ireland, it might be sold by any other encumbrancer, or by the owner under the Encumbered Estates Court Act. And this also might happen—the sale of the estate might he forced at a time when the market was unfavourable, and the whole of the money advanced upon it would be lost 784 to the party having the mortgage. He did not wish to be understood as finding fault with the Commissioners, or as desirous of making a charge against any one. It was the system he complained of. What he would propose, if the Government felt that a necessity had arisen for continuing the Act, was not to extend the powers of the Commissioners: they had got at least two years before them, and it was not desirable that they should have a longer period, because it would relieve them almost from making that despatch which was necessary in the winding up of their affairs. The whole benefit of the court consisted in this—that the money produced by the sale should be speedily divided among the claimants. If, therefore they postponed the expiration of the powers of the Commissioners for a considerable time, they would take from them the inducement to earnestly address themselves to the division of the funds at their disposal. If he were asked his own individual opinion, he should not say it was not wise or proper to continue their powers for receiving petitions for another year—he might add, even for another day. If his noble Friend on the woolsack, and the Government, thought the powers of the Act should, on their own responsibility, be continued for a short time longer, he would do that which he supposed would have been yielded to the late Government—give his assent to their continuance for six months longer, though he very much objected even to that. He was sorry to say that it appeared to him that the Bill before their Lordships was framed with a view not to wind up the concerns of the court, but to continue indefinitely and to enlarge very greatly the powers of the Commissioners; and it was to be recollected that the Government came forward with the Bill at a time when there was no pressure at all—when there was a vast difference of opinion as to its necessity—when all the authorities on the other side of the Channel, from which he had just come, were against the continuance of the powers—and when it was well known that the late Lord Chancellor of Ireland, the present Lord Chancellor, and the Master of the Rolls in Ireland, were all opposed to the Bill. He had no doubt the Bill emanated from the Commissioners themselves; but they were not the persons to consult as to the continuance of their own powers. Under such circumstances as he had mentioned, there was not only a proposition in the Bill to continue the powers of the Commis- 785 sioners to sell new estates for two years more, but also a proposition for continuing their general powers for four years. Moreover, they were to have the power of selling life estates; and the section of the former Act was repealed which limited the power of the Commissioners to the sale of estates the encumbrances on which amounted to more than half the value. Having stated these points of objection, he trusted their Lordships would agree with him that the Bill could not be passed in its present shape. He had felt it his duty, in the interests of the people of Ireland, and in the interests of the profession to which he had the honour to belong, to call the attention of the noble and learned Lord on the woolsack to these objections. He did not intend to make any Motion upon this measure, but had made these statements in order to call the attention of the Government to the matter; but if the suggestions which he had made were not adopted, he should deem it his duty to repeat them at a future stage.

The LORD CHANCELLOR
said, he was sorry that the noble and learned Lord had been prevented by illness from being present during the discussion of the second reading of this Bill; for if he had been there he would have known that he (the Lord Chancellor) then explained why it was proposed to repeal that section of the existing Act which prevented the operation of the Encumbered Estates Act in cases where the income of the estate was double the amount of the encumbrances. The reason was, that this provision had been found to be nugatory, inasmuch as under the Act there might always be a sale, and the powers of the Commissioners could always be called into operation whenever there was a receiver appointed by the Court of Chancery, and a receiver might be appointed whatever might be the amount of the encumbrances It, therefore, appeared to the Commissioners that the provision only put the parties to the expense of obtaining a receiver, whom they could obtain as a matter of course—and that, being an unmixed evil, it should be repealed. With regard to the general subject of the Act, one rule for encumbered and another for unencumbered estates was obviously an unwholesome state of the law; and, of course, the permanent retention of such a system could not be contemplated. The only question was, when were they to look for the termination of such a state of things? That the measure was a wise one when first in- 786 troduced, he believed the noble and learned Lord would admit; for he believed it was introduced partly at the noble and learned Lord's own suggestion. Well, had they arrived at the period when it should cease? How were they to test that point? He thought the most satisfactory way would be by looking at the quantity of petitions which were from time to time pressed forward in order to have the benefit of the Act. Now, he found that from the 31st of July, 1852, to the 9th of February, 1853, 240 petitions had been presented, or at the rate of about thirty-five per month; and from the 9th of February to the 31st of March—the last day to which the returns were made up—there were sixty more presented, or as nearly as possible the same rate. Therefore, the anxiety of parties to obtain the benefit of the Act had continued with unabated vigour from July to the beginning of April; and from the beginning of April up to the present time he had no reason to think that anxiety bad subsided. He was, therefore, surprised to hear his noble and learned Friend say that the learned functionaries in Ireland were opposed to the continuance of this measure; for he had always understood that it was the opinion of the very highest functionaries in that country that the bringing of the Encumbered Estates Court to an abrupt termination was very undesirable. If, however, they were not of that opinion, he (the Lord Chancellor) could only say he did not concur with them. A state of things which had gone on satisfactorily for four or five years ought to be brought slowly to a conclusion; and the only question was, were they taking the most reasonable and efficient means to wind up the matter? He (the Lord Chancellor) had been in communication with the Lord Chancellor of Ireland on the subject of introducing into the Court of Chancery in Ireland the same, or at least analogous reforms to those effected in the Court of Chancery in England; and at all events until that object was accomplished — as he thought it had been admitted by the late Government themselves—it would be idle to talk of transferring the functions of the Encumbered Estates Court to the Court of Chancery in Ireland. He (the Lord Chancellor) had just received a communication from an eminent officer of the Court of Chancery in Ireland, stating that the offices of the Masters of that Court were so full of business, that, independent of all other matters, they could not under- 787 take this additional work. Then, to attempt to transfer it to the Court of Chancery was entirely out of the question. The only point then for their Lordships to consider was, for what length of time ought the existing Act to be continued? The noble and learned Lord thought it ought to cease now; but said he would not object to an extension of about six months. Now, it had been suggested to the Government that they should have a Continuance Bill for a much longer period than they had originally contemplated; but they did not wish to create the impression that they were enamoured of the present law, or that they wished to give it permanence; and, at the same time, they considered it objectionable to be renewing it, Session by Session; and, therefore, instead of taking a single year, as was done before, they took a period of two years, being in hopes that before the expiration of that time the Court of Chancery in Ireland would be in a fitting state to discharge the permanent duties connected with this establishment. The noble and learned Lord complained of the Encumbered Estates Court, because the estates were sold at a very low price, and that any other estates coming into the market against those having a Parliamentary title could not compete with them. It was utterly incomprehensible to him how the court could be chargeable with this, since the reason why these estates had brought so low a price was because the landed proprietors of Ireland were plunged into such an abyss of distress and difficulty, until at length a crisis came, and enormous masses of property were thrown into the market at once; and that a Parliamentary title was given, instead of being an injury, the greatest advantage was derived by those interested in the property; it, in fact, was the salvation of the property. According to the last account, up to the 31st of March, the amount of property that had been sold realised 8,700,000l., and of that 6,100,000l. had been distributed; the rest still remaining to be distributed. Now, this Bill proposed to extend for two years the powers of petitioning the court, and then to extend to the Commissioners, as the original Bill did, two years additional to bring their functions to a conclusion.

The MARQUESS of CLANRICARBE
said, he apprehended that, although some cases of extreme hardship had occurred under the operation of the Encumbered Estates Act, yet, as far as regarded creditors and debtors, that Act had, on the whole, been 788 of the greatest use and advantage to the country; and he was glad to think that he had had some share in passing it into a law. But if they considered the operation of the Act with respect to all other capital and property in Ireland, except encumbered estates, he was afraid he could not agree in the observation that the continuation of that Act for two years would be wholesome. At this moment the effect of the Act was such as to cause most grievous injury to all species of property except estates in the court it created; and therefore, though he believed that the Act must be continued, he thought the present Bill did not for the interests of Ireland either go far enough, or it went too far. He had no fault to find with the learned Commissioners who administered the Act. They might, perhaps, have made some mistakes; but, on the whole, the court had been administered very satisfactorily. But what he said, was—that at present it was not possible for any man to borrow money or to sell an estate in Ireland, unless he was concerned with the Encumbered Estates Court. Those whose estates did not come under the operation of the Act, could get no offers for them. He objected to extending the functions of the court in the manner proposed by this Bill; but his own idea was—although being unlearned in the law, it was possible he was speaking rashly—but his own idea was, that if there could be established in Ireland a permanent Equity Court, invested with the same powers as the Encumbered Estates Court, its operation would be a real blessing; but as long as this court had a mere temporary existence, it operated as a great hardship on the rest of the real property of Ireland. He hoped the details of the Bill would be carefully considered in Committee.

The EARL of WICKLOW
regretted this Bill being of a temporary nature, not a simple re-enactment of the existing law. All the alterations appeared to him objectionable, and he considered the objections urged by the noble and learned Lord (Lord St. Leonards) as applicable to the original Bill as to the present one. He thought the course taken by the noble and learned Lord on the woolsack, in limiting the measure to two years, was judicious, and he was exceedingly glad that he had brought it forward, and he trusted their Lordships would allow it to pass into a law.
After a few words from Lord ST. LEONARDS and the Earl of DONOUGHHORE,