WHAT CAN TILE LAW DO FOR IRELAND? LErrsu VII.
TO TRIG EDITOR OF THE SPECTATOR.
Dublin, 26th January 1848.
Stn—It is the common fault of the generality of volunteer doctors of the Irish commonwealth, to place great confidence in one or more favourite nostrums, and to promise large and prompt results from a practical adoption of their respective plans. From falling into any such mistake I am very desirous of guarding my- eelf. I am fully aware that the chronic disorders of a state cannot be safely cured by what physicians call heroic remedies; and that when they are removed by any such methods, all experience shows that a damaged constitution will remain behind. On the other hand, an unsoundness of habit which has endured for generations necessarily requires a considerable lapse of time for its removal under any remedial system. It is not, therefore, as nostrums, that I suggest the pe- riodical residence of the Sovereign in Ireland, the abolition of the 'Viceregal form of government, and a training of the entire population in habits of military obedience. I look upon these proposed changes merely as so many steps in a pro- gress towards the acquisition of a more healthy habit of the social body, under which every law could be thoroughly enforced—the same law for the rich and the poor—and which, at the same time, by the natural induction of the meat sana itS corpore sano, would lead Irishmen to form a more just and manly, and less exagge- rated and servile notion of the true scope, object, and power of the law. I would expect as the necessary complement of those changes, that absenteeism would diminish; that sycophancy and placehunting would become less rife; that order and tranquillity would be encouraged; that the wants of a civilized condition and the desire to obtain the means of supplying them would increase. It might then be hoped that Irishmen of station would feel it to be disgraceful either to fly front their posts at a season of tumult or to clamour for e:.:esordinary legislative pro- tection against a handful of disturbers of the public peace, and on the other hand, that the middle and lower classes would see that it is impos.sible furs government to feed a nation, and that the only useful end of law is the establishment of se- curity for property and industry, and the removal of all obstacles to their free com- bination. With respect to one of my propositions, I cannot avoid observing that existing circumstances seem to render it desirable that its adoption should not take place simultaneously with that of the others. The peculiar personal qualities of the present Lord-Lieutenant have accomplished more for Ireland than any formal legislation could have brought about. It would therefore be bad economy not to keep them available for the public good during the longest possible period. Lotd Clarendon has already done mach to show 'what the law can do": to no other
living statesman would it appear to be so prudent to intrust the completion of that great lesson.
will now endeavour to shadow out my notions of what the law can do, or undo, towards liberating the great staples of Ireland—land and labour—from the fetters with which, ati we have already seen, it has so heavily trammelled them. The objects to be held foremost iii view in the conduct of this process are, as it seems to me, the establishment ter property in land of a market as free as that which exists for property in stocks or railway shares, corn or sugar; and the ac- complishment of this without injuriously trenching upon the just rights of interested parties. In order to attain the former object, it is not necessary to meddle either with the custom of _primogeniture or with the very moderate power otentail sanctioned by the English law; neither the one nor the other of which,
in my opinion i
, mischievously nterferes with the industrial occupation of land, while both are beneficial to the community by the extent to which they conduce to, political stability and the maintenance of a refined civilization. Nay, so chary do I feel of every right of propenty, that I would not propose to confer upon life-tenant, creditor, or encumbrancer, the smallest amount of power which does not now theoretically belong to them: my design would simply be, to secure for those parties permission to act as their own interests, which would generally be coincident with those of the public, would prompt them to do, free from the vexatious and too often ruinous interference of the harpies of the law. To a short consideration of the principles upon which this design might be wrought out in the case of encumbered estates, I will now address myself. In conducting any operation for the disencumbrance of land, the interests of three parties will usually require to be held in views—namely, of the existing pro- prietor: the creditor or encumbrancer; and the heir or remainder-man. The moment the hardens upon an estate arrive at a point of pressure so high as to prevent the return to it, in the shape of outlay, of so much of its produce as is required for its maintenance and improvement, that moment the interests of all those parties are endangered, and those of one or more must necessarily be in- jured. Coincidently with the infliction of such injury on those immediately con- cerned in the ownership, damage will also be done to the occupying tenant in pro- portion to the extent to which the duties of the landlord are neglected, and the public will suffer loss by the consequent diminution of produce that must result. A recourse to the law for relief never fails to aggravate all these evils: by its cost, it increases the biuthens, often to a ruinous extent; by its tedious and vexa- tious character, it prolongs the abeyance of ownership, and renders it more mis- chievous; by many incidental remoroations, it but too frequently demoralizes while it robs all the parties. In the generic examples I have already given of what the law has done for the property of Ireland, there is sufficient proof that this de- scription is far from being too highly coloured. Since they were put into print, the Irish Master of the Rolls has solemnly recorded his conviction that to the mode of dealing of the Court of Chancery with the property intrusted to its care may be traced the origin of the dishonesty, outrage, and even murder, which con- fer so melancholy a distinction upon the agrarian system of Ireland.* It can ob- viously be of no benefit to any class except that of the lawyers that so disgraceful and mischievous a condition of things should be continued. Every one else in the community would be served by its alteration, and by a facilitation of the transfer of land, in order to relieve it of encumbrances, as soon as these are felt hy the parties concerned to be hindrances to its proper management and cultiva- tion. No party would be injured by the change, provided the full value could be obtained for the land; and provided the amount received could be secured for, or paid to, those who have the proper claim to it. To arrange machinery for the carrying out of these provisions, and for facilitating a cheap, prompt, and irre- vocable sale of the entire or portions of encumbered estates, should be the pur- poses of any legislative interference in the matter. It was no doubt with some shadowy perception of the importance of these purposes that the authors of the Encumbered Estates Bill of last session drew up their measure; but it contained no powers suitable for their accomplishment, and would have greatly aggravated theevils it was designed to remedy.. By enabling enounabrancers to force sales, sat by giving them access to the Court of Chancery by the shorter mode of peti- ticn, the bill would have been very efficient both in inducing a large increase of litigation, and, after a time, in glutting the market with land: but while it would thus have tended to lower the value of the property, it would have done nothing to secure its proper distribution; nor to make the sale irrevocable by strengthen- ing the title; nor yet to render it prompt and cheap by simplifying or expediting ite.tcansit through the middle passage of the Master's Office. A general recogni- tion of these shortcomings, and the mixture of contempt and fear of the Equity Courts universally prevalent, caused the failure of themeasiwe after it passed the House of Lords; and the result was in my opinion, (which is so far opposed to that of a recent writer in the Edinburgh Review,) a respite from a grievous na- tilsnal calamity. If, however' it be really intended to legislate for encumbered estates with a broader design than that of benefiting the lawyers, a model is at hand in the Railway Bills, or one still more perfect in the Shannon Improvement Act, (2 and 3 Vic. c. 61,) by a slight modification of which, suitable machinery for working out the desired ends may be obtained.
By the act referred to, certain Commissioners are empowered to make awards
judgments udgments touching the value of lands required for the purposes of the act, and as to the respective intereets of the several owners encumbraneers, and re- mainder-men; and upon such awards and judgments being enrolled in the Rolls Office of the Court of Chancery, conveyances made in accordance with them, of property, the purchase-money whereof shall be paid to the proper parties, or (M case of dispute among those parties) shall be lodged in the Court of Chancery as the matter of future litigation: such conveyances "shall be good and valid and effectual in law to all intents and purposes, and shall operate and be good as a merger of all outstanding terms of years, and be a complete and effectual bar to all estate tail, and other estates, right, title, remainders, reversions, limitations, trusts, charges and encumbrances whatsoever, and shall be conclusive and binding against the Queen's Most Excellent Majesty, her heirs and successors, and against all bodies politic and corporate, trustees, and all other persons whatsoever.' This model might, I think, be adapted to the case of encumbered estates by some such contrivances as the following. Owners of estates the inheritance whereof is encumbered by mortgages,jadgments, or family liens, might, in default of a private agreement with the encumbrancers, be empowered to give notice, by public advertisement, of their intention to apply for a valuation of the entire or a portion of their lands, in order to the completion of a sale of so much as should be necessary to pay off the entire or any. portion of the encumbrances. The valuation might be conducted by the Assistant Barrister of the county aided by a competent jury impannelled for the purpose, or by an official valuator, whose award, certified by the Assistant Barrister, should determine whether the price proposed to be accepted would be sufficient. If the award should be in the affir- mative, the proprietor should be at liberty to complete the sale; and the price sanctioned being obtained, and the proper conduct of the transaction IS to notices and all other steps being certified by the Assistant Barrister, and a record thereof and of the sale being duly made in the office of the Clerk of the Peace for the county, such sale should carry with it a firm and conclusive title to the purchaser. The notices of application in the first instance should contain a requisition to all parties interested, to bring forward their claims; and the ap- plicant proprietor should be required to produce a verified list of all registered liens upon the land, a record of which should be certified by the Assistant Bar- rister and annexed to the record of the valuation. Satisfactory proof of the dis- charge of these liens, made to the same officer, should be a necessary preliminary II' See the Judgment of the Master of the Rolls in the case of Reynolds o. Reynolds, in DsthRoZorsing Mull of Om January VHS., 1 to his confirmation of sales; and it should be made a part of his dray to escert-ain that they were paid off in the order of their priority of obligation, and that no separate sale of any portion of the property should be confirmed until a corre- sponding amount of encumbrance had been discharged. In the case of encnm- brancers being minors or otherwise incapacitated persons, or of their being unable to make out a sufficient title, I would again follow the model set in the 2d and 3d Vic. c. 61, and sanction the payment of the disputed money into the Court of Chancery, there to be fought over by those concerned; but making the fact of such payment a full release of the land and its purchaser from the particular lien. By this means the land would be freed from a cumbrous trammel, without im- posing on the Assistant Barrister the weight of deciding in an intricate equity suit; and at the same time the money would be tabooed as a thing sacred to the plunder of the lawyers and the =profitable contention of the pretenders to its ownership. An obvious mode of dealing with jointures and other like encum- brances would be, the allocation of a portion of the purchase-money to their re- demption at the calculated value or to the purchase for the encumbrancers of an an- nuity of equal amount. It would obviously be a part of this plan, that the sale of any portion of an estate for its awarded value should absolutely free that portion from the general encumbrances, and establish it in fact as a separate fee, the original title to which should for the future be the record of the sale under the Assistant Bar- rister's award, as preserved by the Clerk of the Peace: in this way a new and effective registry of titles would in the course of time be established in each county, to the great damage perhaps of attornies, but to the corresponding ad- vantage of the buyers and sellers of land and of the public. Into a minute filling up of this outline of a plan for a really useful "encum- bered estates bill," it would of course be impracticable to enter within the reason- able limits of a letter; but I submit that the full details could be arranged with- out much difficulty, and that the plan, if not spoiled by the patchwork of legal bill-drawers, would afford as much facility as is necessary for the transfer of land without inflicting injury upon those concerned in its ownership, and that the ciuieting of title and encouragement to the investment of small capitals in fee. simple estates which it would bring about, would very greatly increase the value of landed property, and would also tend to create a yeoman proprietary—a much needed element in Irish society. Such a bill would do much towards a most beneficial liberation of land-, capital, and labour, from the bonds which now heavily impede their combination; but it would still leave a large extent of the soil subject to the blighting influences of the law. " The management of estates in Ireland "--1 use the words of the judgment to which I have already referred—" the management of estates in Ire- land by receivers under the Court of Chancery has become a matter of notoriety "; and when those estates belong to minors, lunatics, and others under the so-called protection of the Court, I confess I can see for them no feasible opening of es- cape except in the lucky accident of falling under the contra of a judge over, whom, as would appear to be the case with the Master of the Rolls, h,onoue and justice exert a stronger influence than the narrow rules of a technical equity. To attempt a purification of the Receivership, or of any other integral portion of the Chancery system, by any direct legislation short of entire reconstruction, woad, in my opinion, be an unprofitable labour. I have mentioned the use ofleases for lives renewable for ever as afertile source of wasteful litigation. The remedy would be simple and easy of attainment: merely the passing of a short act to convert these tenures into perpetuities, upon the terms of the original lease, only converting the fine into a proportional yearly addition to the rent. This measure would stop many a suit, by rendering it an- necessary to have recourse to the rule of "Irish equity," by which the courts are now, in the habit of caring the neglect of tenants and substituting lives for those which have been suffered to fall =renewed. It could do no injury, as practically those leases are perpetuities, only burthened with an unnecessary casual tribute to the law.
Another fetter of the law upon land, requiring legislation for ita removal, has been forged by practice and statute in the matter of judgments; which are in Ireland a common security for loans, and being registered, become liens upon all property, leasehold and freehold, possessed at or acquired subsequent to their date. These judgments being, in the first instance, more manageable than mort- gages, their use encourages the borrowing of money by landowners; but they subsequently form a most troublesome encumbrance upon estates, and so often occasion difficulty in their transfer that the opinion has now become very general that mach advantage would be gained by abolishing the power of all future judgments as liens upon, lands against purchasers, and by limiting the duration of those now in existence to a fixed period of years. An act accomplishing these objects would do much towards the simplification and quieting of titles, and would. thus powerfully tend towards the unshackling of the commerce in land. There are two classes of persons whose countenance to these views of what the law really can do for Irish landed property I indulge no hope of obtaiuing; the lawyers will not support or even believe in the practicability of plans directly, tending to limit the gams of the craft whereby they live: the crowd, who look to change as the means of acquiring the rewards of labour without its toils, will despise the changes I propose, as not worth the trouble of stirring; and still more, I have no doubt, will they scorn the mode of relieving labour from its fetters, which I would suggest as the sufficient and honest substitute for those schemes of appropriation now so much agitated among the two great sects of knaves and fools under the names of "tenant-right" and "fixity of tenure." To all the rest of the world it is plain, that to establish any such practices would be but to forge new fetters upon the commerce in land; and it must be equally obvious, that if the old chains were only removed, every man could secure a free use of that commodity to the utmost extent of his capital under the operation of the ordinary system of bargain and sale. Why a man should enjoy a more potent "tenant-right" in a farm than in a seat at a tavern-fire, I confess I can't conceive: in either case, a well-disposed, peaceable tenant, is usually permitted to have "fixity of tenure" undisturbed as long as he chooses to pay for it; and why it should be enjoyed a moment longer in the one or in the other instance, I have never yet heard. I can, however, perceive that grievous injustice would be wrought if the law were to sanction `mine host" in claiming2 in return for his concession of the right to pay for and drink a pint of beer- by his taproom-hearth, that his guest should quietly yield up the hat and coat which in order to his • greater easement during the process he had deposited upon a cloak-stand. Not less flagrant, in my opinion is the grievance which the law does work by confer- ring upon the owner of talk a right of property in buildings or other permanent improvemeuts added to it by a tenant during his temporary occupation; and I would therefore propose, that the law annexing fixtures to the freehold should at once and simply be abolished. The results would be, I think, on the one hand, greater care in making contracts for the letting of land; and on the other, the establishment of a definite basis whereupon the rights of owner and occupier could be arranged at the close of a tenancy: thus would a heavy trammel be re- moved from capital and labour, and an easy solution furnished for the intricate and statutably impracticable problem of a "tenant's compensation bill." The approaola of the period for the reassembling of Parliament warns me that I must now cease from encroaching upon your space, and bring these letters to a close, although their subject is by no means exhausted. The moral I have en- deavoured to point is twofold,—the imperative obligation upon those in authority to enforce every Law; and the cardinal necessity that all should believe that " the law" can neither feed, nor lodge, nor clothe them; that it can do no more than secure for every citizen the protection of society in the free use of his personal resources for the supply of his personal wants. If I have succeeded in setting these truths in a clear light, their circulation through a medium so influential as the Spectator
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