LEASES AND SALES OF SETTLED ESTATES BILL. (Hansard, 10 March 1856)

§ LORD ST. LEONARDS

rose to call the attention of the House to the leading measures which had been proposed by Her Majesty's Government for the improvement of the law in England and Ireland, and their probable effect upon the administration of justice. He hoped to be able to comprise what he had to say within a narrow compass. He believed that he should best make himself understood, if he stated in the first instance the present state of the Court of Chancery in England, and then referred to the Courts of Chancery both in England and Ireland in reference to the proposed measures. The Court of Chancery in England was divided into a Court of original jurisdiction and a Court of appeal. The Court of the Lord Chancellor was a Court of original jurisdiction; but the Court of appeal consisted of the Lord Chancellor and two Lords Justices; the Lord Chancellor having a power to sit alone, and the two Lords Justices having a similar power. There were besides, as Courts of original jurisdiction, the Courts of the three Vice Chancellors, and of the Master of the Rolls, each having a separate independent original jurisdiction, subject to appeal. Since the year 1852 the business of the Court of Chancery had been put upon a new and very different footing from that which prevailed in former times; and it could not be doubted that now, at least, the Court of Chancery was in a very satisfactory state—the advantage had indeed been purchased by the country at a very considerable cost. The grand feature of the recent alteration was the abolition of the Masters' offices; so that there remained only the Judges of each Court—that was, the three Vice Chancellors and the Master of the Rolls—who exercised jurisdiction personally, if he might say so, from the beginning of each cause to its final determination; for, according to the present arrangement, instead of having Masters with an independent jurisdiction, although subject to an appeal, they had Vice Chancellors, each of whom had a chief clerk, with other clerks under him. The chief clerk was in constant communication with his Vice Chancellor, and received from him instructions how to act in every case, but, unlike the Masters, he had no independent part in the administration of justice. The system at present worked admirably, but its success depended upon the Judge of each Court not being overworked. While the Judges kept up a constant com- 2098 munication with their clerks, the business brought before them would be well and satisfactorily done; but the moment one of the Courts became overworked, the Judge could no longer exercise personal superintendence; a new independent jurisdiction would fall into the hands of the chief clerks and the under clerks, and the mischiefs of the Masters' Offices would again come into existence, and the country would lose all the advantages of the new system, which had been introduced at so much expense. Now, he did not hesitate to say, if all the measures which the Government proposed were carried out, that, step by step, the Court of Chancery, both in England and Ireland, would be overpowered, and in both countries would be rendered totally inefficient for the administration of justice. He would remind their Lordships that there were two jurisdictions in Chancery—one the contentious, the other the administrative jurisdiction. Well, such being the case, the Bill now before their Lordships was introduced by his noble and learned Friend on the woolsack, and met with general approbation. Now their Lordships were aware that the law of England was very tender of the rights of property—being remarkable in that particular over the laws of all other nations. An owner of property had entire jurisdiction over it; he was entitled to dispose of his estate, either by settlement or by will, subject to certain limitations, precisely as he desired, and the law ensured the permanency of that property in the hands of his heirs for a sufficiently reasonable time. Consequently, at no period of English law could a settlement, either by deed or will, be broken in upon by a Court of justice, nor had any Court of justice in the realm the power to alter a will or to give any such authority to the person taking under a will. Where, therefore, a will or settlement did not contain leasing powers that were required, or where it did not allow of a sale or exchange under circumstances where such a course was desirable, no relief could be obtained except by legislative interference. The measure giving that leave was introduced into their Lordships' House; but that application always led to a severe scrutiny; and when the Bill authorising such a departure from the original settlement was finally prepared, it was always referred to two of the Judges, who were assisted by counsel and solicitors, who, with the title 2099 deeds before them, went through the Bill, word by word, to see that Parliament did nothing beyond granting the necessary relief. It was objected that this relief could not be obtained without great delay and expense, and all persons who were tenants for life of property, and did not possess all the powers they desired—and nine-tenths of their Lordships were probably in that position—were in favour of a general measure of the nature of the Bill now before the House, which would give the same facilities to tenants for life generally as had heretofore been given by a Bill in each particular case. But if this measure were passed, it would effect a great inroad upon the law of property, because for the first time jurisdiction would be given to the Court of Chancery to empower persons to make leases of settled estates, or to sell them, although no such powers were contained in the settlements under which they held. He would warn their Lordships, that, should the Judges be overworked, the power would be in reality exercised by the chief clerks of the Vice Chancellors and of the Master of the Rolls, whose administration could never be distinguished by the caution or legal knowledge of the heads of the Court, to whom the Bills had been heretofore referred, and without the publicity obtained when Bills had to pass through both Houses of Parliament. These powers would fall, not under the contentious jurisdiction of the Court, but under its administrative jurisdiction, he thought it would be a great mistake to measure the number of applications that would be made to the Court of Chancery by the number of such eases hitherto coming before their Lord I ships, for the delay and expense attaching to the passing of a private Bill interposed to prevent such relief being asked for. On the other hand, the going before the Court of Chancery and asking for the relief in a summary way would be attended with but very little expense, for questions of law would but seldom arise, as there was no adverse party to raise an issue. The effect would be that the labours of the Judges would be greatly augmented. Again, the measure before them was to extend to Ireland as well as to England. Now, he should press his noble Friend to postpone the measure at least until the fate of a certain other measure affecting Ireland, and now before the other House of Parliament, had been determined; and for the following reason. The provisions of the other Bill to which he referred, and which related solely 2100 to Ireland, went infinitely beyond the beneficial operation of the present measure for those who were desirous to sell. That Bill proposed to give to the Court of Chancery in Ireland power not only to sell settled estates, but to confer upon the purchaser a Parliamentary title: the present measure, on the other band, proposed to give to the Court of Chancery only the power to sell settled estates in the usual way. It was, therefore, quite a delusion to suppose that the present Bill would act consistently with the Irish Bill, for it offered to the purchaser no better title than was to be had under any ordinary sale. The Government would, therefore, do well not to press this Bill forward until the Irish measures were disposed of. Independently of these considerations, however, there were other reasons why a measure which would give to the Court of Chancery so much additional business should not be pressed, and why their Lordships should object to any measure increasing the duties of that Court until they were told the exact nature and scope of all the measures which it was intended to introduce into that and the other House of Parliament in relation to the Court of Chancery. There was a Bill transferring ecclesiastical jurisdiction to that Court, and a Bill relating to questions of divorce which would throw additional duties upon the Court. It would be utterly impossible for the Court of Chancery to perform the duties that would devolve upon it, unless Parliament increased its powers and gave it additional facilities. In considering the case of England, it was impossible for their Lordships to lose sight of the effect of the measures proposed by the Government in regard to the Court of Chancery in Ireland. It could not be imagined that anything that was found really advantageous to property in Ireland could be ultimately withheld from the proprietors of the soil in England. But if the additional duties which would be a necessary consequence of the adoption in England of the measures found beneficial in Ireland were thrown upon the Court of Chancery in this I country, let their Lordships see the vast mass of business which it would be called upon to discharge. The Incumbered Estates Court in Ireland was an act of exceptional legislation which inflicted great injury upon certain persons, but the interests of a few were sacrificed to the general good, and, looking to Ireland, no one would deny that the Incumbered 2101 Estates Act had partly worked the salvation of that country. He had on a former occasion compared the operation of the Incumbered Estates Act with the suspension of the Habeas Corpus Act. It was an act of power, contrary to the spirit of the law, introduced to meet an exceptional state of things, and as soon as the necessity for it had ceased the law ought to revert to its ordinary channel. It sometimes seemed to him that there was a want of concert between Her Majesty's Government in that and the other House of Parliament, and between the Irish branch and the English branch of the Administration, which, was much to be regretted, as it might cause dissimilarities in legislation for the two countries that would ultimately lead to the most inconvenient results. It was proposed by a measure, now before the other House, to give to the Irish Court of Chancery the power of selling estates in Ireland with a Parliamentary title. Let them consider for a moment what a Parliamentary title did. A Parliamentary title destroyed every person's interest in the property, no matter what that might be. When estates were sold in the ordinary course, the seller had to make out his title, and the purchaser had a deep interest to examine into the title, and to see that he was not buying adversely to the rights of third parties. But if a Court had the power of selling an estate with a Parliamentary title there would be no security against the interests of absent persons being entirely destroyed. He was told that the Commissioners of the Irish Incumbered Estates Court perused the abstracts of title; but he knew that no man was competent to discharge that duty unless it had been his special occupation; there was no Judge, however high his qualities, who would not find himself at fault at every turn, and miss half-a-dozen points in a title which would be at once detected by those who were accustomed to scrutinise such documents. It was now proposed that every owner of an estate in Ireland should be able to go to the Court of Chancery and desire that Court to sell his estate, whether incumbered or unincumbered, whether settled or unsettled, and upon that sale to give a Parliamentary title. The effect would be, that the moment the Bill passed, the Irish Court of Chancery would be the agent for managing the sales of the estates of every owner in Ireland, No man would be such u block-bead as to buy an estate without a Parlia- 2102 mentary title if he could get one. The intended purchaser of an estate would say to the seller,—"I would rather not look into your title. I might get some knowledge that would vex me. I might find out something which the Judges will not; but if you can get an order of the Court of Chancery for the sale, I will buy the estate." Such duties did not pertain so much to a Court of justice as to a court of auctioneers, surveyors, agents, and others, who were conversant with sales of estates. It was a most dangerous power to give to any Court of Commissioners as regarded the interests of absent parties—it would open the door to great frauds, because the rights of parties not before the Court might be altogether ignored. He was perfectly convinced that if the measure passed for Ireland it must be adopted in England, or otherwise the great boon of a Parliamentary title would give Irish property a greater value, and place English property at a disadvantage. But if these powers were thrown into the Court of Chancery in England, with the addition of they knew not what duties in connection with the Ecclesiastical Courts, that Court as at present constituted would wholly and hopelessly break down, and there would be greater delays in the disposal of suits than before the great changes which were accomplished in 1852. Even since 1852 the Lord Chancellor had been compelled to ask for power to appoint additional clerks, which proved that the business of the Court was more than was estimated in 1852. He hoped that his noble and learned Friend the Lord Chancellor and Her Majesty's Government would think it right not to press this or any other measure until they could tell their Lordships and the country what were all the measures which they proposed, not only with respect to the contentious, but with respect to the administrative jurisdiction of the Court of Chancery. There was a great tendency in the present day on the part of tenants for life and persons having limited interests to throw all expenses of improvements upon the remainder men, and nothing could be more injurious to the objects which it was the end of settlements to accomplish. The result of such a system, if permitted and realised, would be that, an was the case in Ireland, no man would succeed to an unincumbered estate, and then would arise the necessity of selling; settled estates in order to pay oft' the charges upon them, If the Bill 2103 now before the House should pass into law he felt satisfied that very many settled estates would be sold injudiciously and without reference to the expediency of the proceeding—estates which, without the existence of such a law as that now proposed, would pass naturally to the descendants of the settlers in conformity with their intentions. He next wished to call their Lordships' attention to what would be the effect of the measures proposed by the Government upon the Court of Chancery in Ireland. That Court, in point of fact, had been reformed before the Court of Chancery in England, the latter having undergone its so-called reform in 1852, while the Court of Chancery in Ireland was reformed in 1850. At the last-mentioned period there were in Ireland the Lord Chancellor and Master of the Rolls, and also five Masters and the Incumbered Estates Court, composed of three Commissioners. In 1850 an alteration took place whereby one of the Masters continued in his function to consider matters relating to receivers under the Court. The other four Masters, by the Act of 1850, were, in point of fact, converted into Vice Chancellors, with the power of transacting business in chambers. The Lord Chancellor and the Master of the Rolls were to hear the general business of the Court, and ho (Lord St. Leonards) took upon himself to say, from his knowledge of business in the Irish Courts, that those two Judges were fully competent to the discharge of all their duties. They wanted no aid, and had asked for none. However, the four Masters were constituted four independent Judges, and certain administrative jurisdiction was assigned to them, comprising six different subjects—five definite and one indefinite. They had entire jurisdiction over the administration of real and personal estate, over foreclosure and redemption of mortgages, over the appointment of trustees under deeds and wills, over guardians and the maintenance of minors, and over partnerships. Those powers were definite; and there was an additional indefinite jurisdiction conferred by the Act of 1850, by which the Masters were authorised to deal with any matters which the Lord Chancellor or the Master of the Rolls should, by order duly made, transfer to them. If that system was approved of, no new powers were necessary; but if higher powers were to be conferred, then the whole of the Courts must be remodelled, and it was the advantage of any such remodelling that he felt disposed 2104 to question. There were at present three Commissioners of the Incumbered Estates Court. In a comparatively short space of time the powers of that Court would expire, but it appeared to be the intention of the Government to transfer its powers to the Court of Chancery, which was for ever to deal with the landed property of Ireland. There were now three years' arrears of business in the Incumbered Estates Court, and millions of money yet undistributed; fresh business was springing up every day, and yet it was proposed to abolish the three Incumbered Estates Commissioners and the four Masters altogether, to follow the example of this country, appoint two Vice Chancellors, and to allot to each and to the Master of the Rolls two chief clerks to assist them. Never was there a scheme so sure to break down—so unfit for the object sought—so totally uncalled for. If the powers of the Incumbered Estates Court were not to be continued, at least that Court should be allowed to dispose of its arrears, even if all future business were to be transferred to the Court of Chancery. The Master of the Rolls in Ireland, of whom he might say that a more able, painstaking, and diligent Judge had never sat in the Court of Chancery in that country, had declared that this measure would completely paralyse his efforts to execute his duty, by imposing upon him vast additional labour, and he strongly deprecated such a measure being passed into a law. This opinion from a very competent Judge, and from one who had never shown himself disinclined to perform every possible labour which his office required, was deserving of their Lordships' serious attention. If the alteration proposed should be considered one that ought to be adopted, it at least ought to be deferred until the arrears in the Incumbered Estates Court were disposed of. No new business ought to be transferred to the Court of Chancery, consisting of arrears of business in another Court. If any such arrears were to be thrown upon the Court of Chancery, the whole scheme would inevitably fail, and the business of the Court would be more inextricably involved than it was at the present moment. The Report of the Commission, however ably drawn, was, he thought, in many points open to objection. Upon the question of appeal he differed from it altogether. In Ireland there had always been an appeal from the Master of the Rolls to the Lord Chancellor; and during the five years that he had exercised that 2105 jurisdiction he had never heard of any complaint where justice had been administered by the Court of Chancery as a Court of appeal. It was proposed that a common-law Judge should be associated with the Lord Chancellor to assist him in the business that came before him by way of appeal. But in what character was the appointment of that Judge to be made? Was it during good behaviour, or during pleasure? He hoped that no Judge would ever be called upon to sit in a Court of appeal during the pleasure of the Crown. Such a system, if acted upon in this country, would be most objectionable. No common-law Judge could strengthen the Lord Chancellor in his own Court of appeal. It would be most objectionable that a common-law Judge should sit with the Lord Chancellor upon matters of equity in his own Court, and, perhaps, overrule his decisions. There was another point deserving of attention. It was proposed that the fees and duties which had been hitherto paid should be abolished, and that the charge should be imposed on the Consolidated Fund. This was a national question, an Imperial question, and one which regarded the Courts of England as well as the Courts of Ireland. If persons were to obtain the benefit of a Parliamentary title to the estates they purchased by the intervention of the Court of Chancery, it became a question whether they ought not to be subjected to a reasonable charge for the benefit they so obtained. It was a question in what respect they ought to reduce the fees and duties in Courts of justice; and what were the fair and necessary expenses of the administration of justice in the abstract. He admitted that they ought not to tax the administration of justice; but the question of fees and duties to be paid for the administrative jurisdiction exercised for private purposes was a very different matter. He had already adverted to the alteration made in the practice of the Court of Chancery in England in 1852; and it was from an anxious desire that that system, which had hitherto worked so well and so much to the satisfaction of the suitors, might be continued, that he had been induced to make these remarks. He certainly had expected that long before this the Masters of the Court would have been able to close their offices by disposing of the arrears of the business before them. He hoped their Lordships would pardon him for having so long occu- 2106 pied their attention, but, as the matter was one of great and vital importance, he thought it deserved the consideration of the House, and particularly that of Her Majesty's Government.