HL Deb 22 June 1854 vol 134 cc488-501

Order of the Day for the Second Reading read,

THE DUKE OF NEWCASTLE

My Lords, in moving your Lordships to give a second reading to this Bill for facilitating the sale and transfer of Incumbered Estates in the West Indies, it is hardly necessary for me to call your attention to the fact that no new principle of legislation is involved the measure; but that, on the contrary, in proposing it, the Government are now only following out a measure which has been passed for some years, and has been extensively applied in another portion of the empire, and which I think your Lordships will agree with me has been attended with very considerable success. Soon after the seals of the Colonial Office were placed in my hands, my attention, as undoubtedly had been that of my predecessors, was directed to the misfortunes of many of the West Indian Colonies, to the causes of those misfortunes, and to such remedies as it might be in the power of Parliament to apply to them. In the course of the last Session of Parliament I had the honour of laying before your Lordships a statement with reference to the island of Jamaica and the measures which I thought it my duty to submit to the Legislature of that island with a view of effecting such a reform in their constitution and in their mode of legislation, as I believed to be an essential preliminary to any other remedies which Parliament could devise for the evils under which that important Colony laboured. I am happy to state to your Lordships that before I left the Colonial Office I received from the Governor of Jamaica a despatch, sending home ordinances for confirmation by Her Majesty, which carry out, to a very great extent, that reform of the constitution which I had sugested—ordinances which, if they do not effect everything that could be desired, at least make such prudent alterations, and introduce so, novel and so amended a form of legislation, as lead me to hope that in subsequent years the Legislature of the island will be willing to co-operate with Her Majesty's Government and with the Imperial Parliament in passing those further measures which may be considered desirable. I stated at that time to your Lordships that it would be necessary at a future time to introduce other measures bearing upon the condition, of this island, and though I did not, I believe, mention the name of the Bill which is now before your Lordships, I certainly referred to it as a measure which I conceived to be essential to the prosperity of the West India Colonies. Before the date of the abolition of slavery, the immense value of West India property, the large production of sugar, and the general thriving state of most of the proprietors in those Colonies, had induced a state of things which has existed in other countries similarly situated—namely, heavy encumbrances elected by means of wills and marriage settlements, to say nothing of the encumbrances in the shape of mortgages, which were effected in spite of the large returns from the properties and the general prosperity that prevailed. Causes which have operated since the period of emancipation have, I am afraid, considerably increased the encumbrances—at any rate that class of them to which I have referred under the head of mortgages. Large advances have been made for carrying on the business of those Colonies by merchants and others, and the result is that many of the estates are heavily, and some of them, I fear, inextricably encumbered. I have been told that in the island of Jamaica alone nearly nine-tenths of the estates in the island are under heavy encumbrances; and it is hardly necessary to point out to your Lordships the withering influence upon the industry and prosperity of the island which such a state of things must necessarily entail, more especially when we bear in mind the additional fact, that a large proportion of those encumbrances are for sums even in excess of the value of the estates. Under such circumstances, whatever may be the position of the proprietors of those estates, it is utterly impossible either for the purpose of the introduction of labour, for the purpose of drainage, or for any other object of improvement, to obtain further advances. Sales are obviously the only remedy for such a state of things; but these unfortunate proprietors are in many instances utterly unable to effect sales. In consequence of the extreme intricacy of the mortgages it is impossible to cake out an indisputable title, and unless some cheap and prompt mode of transfer can be devised, the remedy of sale cannot be carried into effect. Your Lordships might perhaps expect that I should not bring forward on the part of Her Majesty's Government any measure of this description without being strengthened by the opinions of those who, from their local experience, would necessarily be better able to form an opinion as to the propriety of such a measure than any Minister or any Government could possibly be. I believe I might, if I were inclined to weary your Lordships, quote plenty of authorities and opinions to strengthen my case. I will name only a few as a sample of the whole. Sir Charles Metcalfe, undoubtedly one of the highest authorities in all matters relating to the island of Jamaica, expressed, as long ago as 1841, his earnest desire that sonic, measure should be introduced to carry into effect these objects to which I have referred, and stated it as his opinion that no wiser or more important measure of legislation could be devised for imploring the condition of the West India Islands. I have been in communication also with the West India Association upon this subject; and I believe I am entitled to say that that body, comprising the principal proprietors and merchants connected with the West India Colonies, are most anxious that a measure of this kind—indeed, I may go the length of saving this Bill itself—should be passed by your Lordships and the other House of Parliament. Moreover, before finally deciding upon introducing this measure, I communicated with such officers of the Colonial Governments as I thought were competent to advise me. I had a letter from Sir Henry Barkly, the Governor of Jamaica, strongly urging a measure this description, and similar communications have reached me from Mr. Stevenson, an eminent lawyer, for many years a Judge in Jamaica, and now President of Honduras; from Chief Justice Sharp, of the island of St. Vincent; from the Attorney General of Trinidad, and from the Governor of Tobago, all assuring me that Her Majesty's Government could not do anything more calculated to resuscitate many of the West India Islands, more especially Jamaica, than the introduction of a Bill similar to that which I have already stated has been so successful in Ireland. The objects of this Bill are, of course, sufficiently well known to your Lordships from the almost identical provisions of the Irish Incumbered Estates Bill. In the first place, this Bill may be compared, in many respects, to the existing law with respect to bankruptcy. It will undoubtedly operate, with regard to the land in the West Indies, in the same way as the bankruptcy laws affect the personal property of individuals. Another object of opal importance is to effect direct sales, and to distribute the proceeds among the parties entitled to receive them, in the simplest form, and at the cheapest possible rate. The third is a no less important object, and is one without which such a measure would be comparatively valueless—to confer an absolute and indisputable title; in as much as the intricacy of existing titles, in consequence of the circumstances to which I have referred, in many cases render the property entirely unavailable. This Bill has been founded upon the forms and precedent of two former Bills—first, and chiefly, the Irish Incumbered Estates Bill; and secondly, more particularly as regards the formation of the Commission, on the Slave Compensation Act introduced by the noble Earl opposite (the Earl of Derby) into the other House of Parliament. I do not mean, of course, that this Bill follows the precedent of the Irish measure in all its details, but its principal provisions are the same, and the alterations which have been introduced are only such as were absolutely necessary in consequence of the difference in the tenure of property in that country and in the Colonies; and also because, though, undoubtedly, we have reason to regret absenteeism in Ireland, yet, as a general rule, we may say that the proprietors of Ireland are, as a class, residents in the country; whereas the proprietors of land in the West Indies, and not the proprietors only, but the encumbrancers also, are resident in England. Noble Lords will at once perceive how different the legislation is which is required for such a case, as compared with Ireland. It is necessary that, instead of having, as in Ireland, a court established in the Country itself for the adjudication of these cases, you should have a Commission instituted, not merely in the Colonies, but in England also, in order to give an alternative to parties to proceed either there or here, and also to make the proceedings transferable from the one to the other. I have already stated that the form of this Commission is intended to be in many respects like that instituted by the Slave Compensation Act. It is proposed that it should consist of one Chief Commissioner and two Assistant Commissioners; the Chief Commissioner to be, under all circumstances, resident in England, and the two Assistant Commissioners either to act with him in England and to form a court, as provided by some of the clauses of this Bill, or to act under him in the Colonies, either alone, or, if necessary, with local Commissioners, whom it is proposed also to appoint in convenient localities. I hope and believe, however, that it will not be necessary to appoint local Commissioners, but that the Assistant Commissioners will be found sufficient to carry out the provisions of the Act. Another difficulty will at once strike your Lordships when it is mentioned, and that is, that the laws existing in the West India Colonies are not only not similar, but are frequently at variance with each other. As regards the most important of those Colonies, the island of Jamaica, the laws are in most respects assimilated to those of England; but other Colonies, in Guiana, Trinidad, Martinique, and St. Lucia, for example, the laws, so far from being similar to those of England, more resemble those of Holland, France, and Spain, respectively. It is, therefore, absolutely impossible, as your Lordships will perceive, that in a Bill of this kind distinct regulations could be laid down with reference to the proceedings of this Commission, which should be equally applicable to the varied circumstances of all these different islands. It thus became absolutely necessary to devise some plan by which, without any great violation of principle, due flexibility may be given to the Commission, so that the Commissioners may be enabled to adapt their mode of proceeding to the different laws of each colony. Therefore the 67th clause—a clause which is peculiar to this Bill, and which is one of the few for which there is no precedent in the measures to which I have referred—provides that in any colony where the laws and customs are different from those of England, the Commissioners shall be entitled to substitute for the provisions of this Act other provisions accommodated to the laws and customs of such colony. I need hardly inform your Lordships that a proviso is inserted that none of those substitutions or alterations shall be contrary either to the general law of England or to the spirit and intention of this particular Act. I am ready to admit that a sufficient safeguard is obviously necessary over a power of this description; but inasmuch as there are but two parties to be affected by the exercise of this power, I hope your Lordships will agree with me that sufficient protection has been afforded by the provision that, as regards the interests of the colonists themselves, any rule or regulation of this description shall be laid before the Legislature of the Colony thirty days before it can be confirmed, and that, as regards the interests of the English proprietors, an Order in Council shall be necessary to confirm such rule or regulation before it has legal validity. Now, I felt that, in introducing a measure of this kind for the Colonies, there was a great principle to be observed, upon which I dwelt in moving your Lordships to give a second reading to a measure relating to the Legislative Council of Canada; and that is, that we ought not, however we may be convinced of the propriety or advantage of any particular pleasure affecting the interests of distant colonies, to force upon them legislation which for many reasons may be at the time unpalatable to them. I am quite aware that if we, the Members of the Imperial Parliament, were to pass a measure of this description, without giving the parties whose interests are affected a voice in the matter, umbrage would necessarily be given to the Colonies, and we should receive remonstrance after remonstrance in consequence of that violation of a sound principle, to which I for one will never be a party. But if your Lordships will look to the first and last clauses of this Bill, you will perceive that by the joint operation of those two clauses the Bill is carried into execution without any violation of the rights of the colonists themselves, while at the same time we preserve that unity of action which is absolutely necessary, and which could not be attained if you left to each individual colony the duty of passing a measure of this description for itself without regard to the different interests which might be affected by it. An Order in Council is necessary to bring this Bill into operation in any colony to which it may be intended to apply it; but that Order in Council cannot be obtained unless by an address passed by the Legislature of that colony, and until provision has been made by the Colonial Legislature for the whole expenses to be incurred in carrying the measure into effect. I have already stated that power is taken to appoint local Commissioners under the Act. I believe that they will probably not be required, except perhaps in the more important of the colonies; but the precedent of the Slave Compensation Act having been followed in this respect, I have every reason to anticipate the well working of such a Commission, as I believe no complaint was made with respect to the local Commissioners appointed under the Slave Compensation Act. A power is given in this Bill, similar to the power in the Irish Act, to the Commissioners to frame a code of procedure, to appoint persons to examine witnesses at a distance if necessary, and to prepare other provisions of a comparatively unimportant character, with which it is not necessary to trouble your Lordships, as they are all more or less familiar to you in connection with the practical working of the Irish Act. Those rules of procedure and other provisions of the Commissioners will have, under the 20th clause of the Bill, to be laid before the Queen in Council, who will have the power of refusing to confirm them if any reason adverse to them should exist. I will therefore pass over many of these provisions, which, if not re-enactments, are at any rate applications of existing enactments, believing that it is unnecessary, for instance, to go into any statement with respect to the provisions relative to partitions, changes, divisions, and charges. But I think it is right, more especially as a statement has been made to me upon the subject since I came down to the House by a former Colonial Secretary, that I should call your Lordships' attention to that part of the Bill which provides that neither the encumbrancer nor the proprietor can force a sale against the will of the Commissioners, who have power given to them to bring the property to sale only if they shall see fit. An appeal is given from the proceedings of the Commis- sioners to the Queen in Council. which, as your Lordships know, is in reality an appeal to the Judicial Committee of the Privy Council, the best security that can be given against any injustice on the part of the Commissioners, at the same time operating as a check upon needless litigation and groundless appeals. The effect of this Bill, if it should become law, I hope will be that litigation will be to a great extent prevented; that as in Ireland so in these Colonies, fresh capital will be introduced by means of the good and indisputable title which will be conferred; that an increase will take place in the number of residents in the different islands—an advantage of no slight importance; and that there will be a corresponding diminution in the number of middlemen agents, attorneys, and others of that class, who at present consume a large proportion of the wealth of the Colonies. Another important effect of this Bill will, I hope, be the subdivision of those large and accumulated estates which, in some of the smaller islands as well as in Jamaica, have been considered by those competent to express an opinion as a very great evil, and one of the main causes of the present degraded state of the population. I hope the subdivision of these large estates will be accompanied by another subdivision, namely, that of the agricultural and manufacturing processes which are carried on at present by some parties on the same estate—a system which I am sure your Lordships will at once perceive is at variance with the best principles of political economy, and likely to end in loss and disappointment. I have no doubt that another result of this will be, that by the sale of these large properties, proprietors of small plots will spring up, and that the emancipated negroes and others, instead of continuing to locate themselves in the mountains, will be more likely to come down to the plains, where their labour will be more valuable, and where I believe there will spring up a class of small proprietors, such as have not yet been seen in any of the West Indian Colonies. I do not, of course, mean to say that this is likely to be an immediate result, or one carried to a very great extent, but I undoubtedly look to it as one of the elements of success in this measure. But this Bill will have another, though perhaps a not very immediate, effect. I stated last Session, in referring to the condition of Jamaica, that out of a population of nearly 400,000 persons, there were but 3,000 electors in the whole of the island. If the result to which I have referred occurs—namely, the creation of small plots of land—there will be this advantageous circumstance connected with it, that a body of electors will be produced of the best possible persons, those who, having a stake in the soil, must feel a deep interest in the welfare and prosperity of the island. With respect to the opposition with which I have been told the Bill is likely to be met by the legal gentlemen of the Colony, I am aware that due allowance must be made for their feelings in this respect; but I hope that those gentlemen will feel that in the prosperity of the island they are more likely to reap greater benefits than from the exclusive advantages which they have here-tofore possessed in the depressed and impoverished condition of the Colony. It may also he objected that, in the present depressed state of many of the West India Islands, the local expenses connected with carrying out the measure are such as ought not to be imposed on the Colony. I believe, however, that in some of the islands the expenses in this respect will be very small. Whatever may be the views entertained by your Lordships with respect to this proposal, it is absolutely necessary that the landed property of the West India Islands should be placed on a sounder and more unencumbered position than that on which it now stands. I do not know whether the House of Commons will consent to any extension of the system of "improvement loans;" but of this I am quite certain, that if these loans are to be rendered effective, they must be granted to individuals who will at least be in a position to pay the interest upon them. A measure such as this is essentially necessary before either any assistance can be given by the Government of this country, or before even any exertions of the occupiers of land in the Colony can be rendered useful and effective. It will be to me a source of great satisfaction in future years to see my anticipations realised, and to know that, before I gave up the seals of the Colonial Office, I was instrumental in launching a measure which I firmly believe will be attended with many of those beneficial results which have already tended so greatly to advance the interests and prosperity of another portion of the empire.

Moved, That the Bill be now read 2a.

THE EARL OF DERBY

said, that he did not wish to oppose the second reading of the Bill, as he believed some measure of this kind to be absolutely necessary to the relief of the West India proprietors from their present state of depression. He thought, therefore, that no person could object to the principle of the Bill. He understood the noble Duke to say that in framing the Bill the Government had followed as closely as circumstances would permit the provisions of the Irish Incumbered Estates Bill. That measure was an exceptional piece of legislation, and, though its working had undoubtedly been attended with great benefit to the country, that good had not been accomplished, but at the expense of some hardship to individuals, especially in the earlier part of its operations. Some of the clauses of the Bill did not, however, appear to have followed the precedent set by the Incumbered Estates Act. As the Bill at present stood, their Lordships were legislating in the dark as regarded the localities to which it was to be applied; for while reference was made to a schedule in which the places were specified, no schedule was actually attached to the Bill.

THE DUKE OF NEWCASTLE

stated, that it was owing to a mistake on the part of the printer that the schedule was not annexed to the Bill.

THE EARL OF DERBY,

in reference to the last clause of the Bill, which rendered necessary the assent of the Colony before the Bill could take effect, said, he considered that this provision would amply secure the interests, and independence, and rights of the Colony. He did not agree in the opinion of the noble Duke that the local expenses of carrying out the provisions of the Bill would be small; on the contrary, he thought they would entail a considerable burden on the Colonies. In the 23rd clause there was a most remarkable provision, which certainly did not appear to have been founded upon any existing legislation whatever; it provided that tee Commissioners should have the power of sending questions of law to the courts of common law or equity to be tried in this country, but it also provided that the Commissioners should not be bound to act upon such decisions. This was vesting in a body of Commissioners a power for which he could hardly conceive any legislative precedent existed, nor could he conceive what necessity there existed for giving power to apply to a court of law or equity for a decision upon a point of law, if that decision was not to be binding, and the Commissioners were to be at liberty to set it aside, refer the matter to another court, or disregard it altogether. He was also afraid that, under the operation of the Bill, the proceeds of the sales would be materially affected by the circumstances attending their sale. In Ireland, in many cases, an estate might be brought into the market and sold in one lot, or advantageously subdivided. But in the West Indies, where there was an enormous amount of waste land, the value of the estate did not depend entirely upon that of the land, but upon the necessary works which existed for carrying on the cultivation of the estate. To separate, therefore, a large estate into a number of small fractions, would be to destroy completely the value of the estate. He doubted, therefore, whether the operation of the Bill would be to produce that influx of small proprietors which the noble Duke appeared to anticipate. The effect, indeed, of the subdivisions would be to leave very little of the proceeds of the sale either for the nominal owner or the incumbrancer. As he had already stated he did not object to the principle of the Bill, and trusted that its provisions, carefully considered, would tend to mitigate, to some extent, many of those evils under which the West India Colonies were now suffering.

LORD ST. LEONARDS

said, he could not be supposed to object to the principle of an Incumbered Estates Act, but it was very important to consider in what manner it could best be applied to the Colonies of the West Indies. With respect to the objections anticipated by the noble Duke to arise from the legal profession of the Colonies, he thought that, however liberal the local bar alight be, they could hardly be supposed as willing to surrender ail their private interests without receiving some counter balancing advantage. Probably there was not a single plantation on some of the islands which was not deeply incumbered. Would the parties resident in the Colony submit to the administration and sale of their property in this country? and might they not fear that their interests would he sacrificed while absent in favour of those present? He feared that such would be the operation of the measure; and it so, it would tend greatly to retard its efficient action. He thought, in the case of Colonies governed by different laws—Dutch, Spanish, French, and others—that the better course would have been, to have prepared a separate measure adapted to the peculiar circumstances of each, leaving it to the local Legislatures to give effect to such measures. The legislation proposed by this Bill was in effect something like firing a random shot at a hedge without knowing what you might hit. Much as had been the mischief caused at first by the operation of the Incumbered Estates Act in Ireland, still great good had undoubtedly resulted from the measure. At first estates were sacrificed for a very small sum; but soon larger prices were obtained, and upon the whole the Act had certainly worked well for the country. But was there in the West Indies any demand for property, such as that which existed in Ireland, and such as would ensure the sale of the property for anything like an adequate amount? He did not profess to know much of the condition of the West India Colonies, but what he did know had produced a strong conviction in his mind that purchasers could not be found for these estates except at prices utterly ruinous to the owner. He believed that many instances had occurred where estates were sold at a price utterly ruinous to the seller, and at the same time he believed ruinous also to the purchaser. He should certainly not oppose the second reading of the Bill, but he trusted that the details would be carefully considered in Committee.

THE EARL OF POWIS

was understood to say that he thought considerable expense and delay would result in the carrying out of the Bill from a constant reference to and from the West Indies and this country. He complained also of the proposal in the Bill that the Chief Commissioner should have power to delegate to one Commissioner alone the power to proceed in any colony with the sale of an estate. He thought this was a power too great to be confided to any one person, whether acting in the colony or in England. He objected, especially to the power given to one Commissioner of summoning persons before him, and compelling them to produce their title deeds and other muniments in writing; such a power ought, he thought, only to be confided to a judicial tribunal. In Ireland, under the Incumbered Estates Act, the acts of two Commissioners were considered necessary, and in the Slave Compensation Act three Commissioners were required to make a quorum. Several other matters of detail would also require grave consideration before they were permitted to pass into law.

LORD BROUGHAM

said, that, having taken part in the opposition to the passing of the Incumbered Estates Act, he felt bound, in fairness and candour to the authors and framers of the measure, to admit that, though many of the difficulties he apprehended had attended the execution of the measure, it had been productive of great good to Ireland, and he entertained great hopes that the judicious extension of the principle to the West Indies would be attended with an equal measure of success. He confessed that he had not yet examined the provisions of the Bill, and his apology for not having done so was to be found in the excessive labour which he had undergone in connection with the morning sittings of their Lordships' House, and that was the sixtieth day in the present Session that he had attended the early sittings on appeals and writs of error. With respect to the objections to be anticipated from the local bar, he thought the objection might be removed if the colonial members of the bar were allowed to practise before the Commissioners in this country, though not of course in the courts to which appeals might be brought. He trusted that the operation of the Bill would tend in some degree to relieve the depression which existed in the West India Islands. With regard to the principle involved in the Bill, he highly approved of it; and although he did not think the circumstances of this country either called for or would admit of the adoption of such a measure, yet he hoped that some means would be taken, even in England, for improving and facilitating the sale and conveyance of land. He indulged the hope that, without applying the principle of the Incumbered Estates Act to this country, some great improvements would be made in the conveyancing and sale of landed property in this country.

THE LORD CHANCELLOR

said, in explanation, that after mature consideration it was thought best that the seat of the Commissioners should be in this country, and not in the Colonies, as had been suggested. There was certainly something very captivating in another proposition that had been made—namely, that each Colonial Legislature should be recommended to pass an Act of its own to effect the objects of the present measure. He considered it would be absolutely ruinous to the Colonies for them to take such a step, and for this reason—that, although the land was in the Colonies, the proprietors were in England, and the mortgagees were here, and those who would in all probability become the purchasers were here. It was, therefore, preposterous to say that the property should be sold in Jamaica, for instance, when they knew that all the transactions connected with the estates in that island took place in this country.

VISCOUNT ST. VINCENT

(who was scarcely audible in the gallery) was understood to say substantially that he had no objection to take either to the principle or to the details of the measure, but he wished to remark that the proprietors in some of the West India Islands were so depressed that they were not able properly to cultivate the soil, and that they could not obtain the money from the mother-country or elsewhere to enable them to do so more efficiently on the security which the property in its present condition afforded.

On Question, Resolved in the Affirmative.

Bill read 2a accordingly.