WHAT HAS THE LAW DONE FOR IRELAND? LErrEn IV.
TO THE EDITOR OF THE SPECTATOR.
1st January 1848.
Sia—We have now glanced at some of the doings of the law in its criminal department; and have seen, among them, the establishment of a distrust of con-
stituted authority, the encouragement of a spirit of pettifogging and vexatious
litigation, and the development of a disposition to seek for redress of injuries (real or supposed) elsewhere than in the ordinary tribunals of the country. These are grave evils, dependent upon the administration rather than upon the letter of the law, and are in fact the result of a lengthened course of executive misgovern- ment. I will now endeavour to examine, in a few particulars, what the law has
done for Ireland in its civil branch: and here, I thinlc, the mischief will be found to lie chiefly in the nature of the legal system, which is essentially unfit for the present state of society, and peculiarly ill adapted to the condition of Ireland; the evil in this case lying at the door of the Legislature rather than at that of either the administration or the judicature. The rough material upon which the law of property has to work in Ireland consists of nearly twenty-one millions of acres of land of all kinds, and a popula- tion of shoat eight millions of souls, who, it may be said generally, are exclusively dependent upon the land for their support. At present the resources of this multitude are derived from the cultivation of about fourteen millions of acres; and thereupon two or three millions of persons are bound down by various fetters of law, and constantly kept in a condition of chronic starvation, while lying about them in all directions are spread nearly fear millions of acres of improveable wastes guarded from plough and spade by parchment ramparts contrived for the purpose with singular ingenuity. Nor does the law merely prevent the extension of improvement into new fields of enterprise: the austerity of her rule over landed property is so stringent, as in many cases to force the possessors to content them- selves, like the unprofitable servant of Scripture, with endeavouring to preserve the talent intrusted to them, undiminished, rather than to labour to render its multiplied finite to the public stock. As before, I will endeavour to explain my positions by real illustrations. A friend of mine is the owner of a heavily burthened estate in a Western county, in which there are some thousands of acres of improveable wastes. This gentleman is a man of prudence and right feeling; and, being sensible of the false position in which he is placed as the nominal owner of property, the duties of which he has not the means of discharging, he made up his mind, some two or three years since, to clear off his encumbrances by a sale of a portion of his lands. A person willing to purchase was shortly found, and the terms agreed upon; but upon consulting a solicitor, it was ascertained that the legal costs of effecting a sale would be so great as to render it unadvisable for my friend to carry out his intention. The events of the last two years have rendered that which was then inexpedient now impossible without certain ruin. In this case there are several features worthy of attentive consideration: the law, by imposing obstacles in the way of a sale of the land, has kept it perforce in the hands of a nominal owner, whose poverty and uncertainty of position prevent him from performing the duties of a landlord; the law has diminished the encumbrancer's security by obstructing its conversion into money at a favourable period; the law, by preventing the clis- encumbrance of portions of estates, has in this particular case locked up capital in the hands of several farmers who were most urgent to be permitted to buy the fee of their holdings; the law, operating in the same way, has interrupted the public good by estopping the reclamation of many acres of wastes, which, though now utterly valueless, would if improved be liable to the liens which the original better condition of portionir 6f the estate have enabled its owners to-licenmulate; the law, lastly, has prevented this landlord, much against his inclination, from rising out of a condition of oppressive poverty into one of comparative wealth, and of positive comfort, respectability, and usefulness. All this mischief has had its common origin in the imposition of legal though most unnecessary and im- politic restrictions upon trade in land, which is the staple of the industry, wealth, and even support, of the Irish people. Had it been in the power of the individual to whom I allude to disencumber portions of his property from the obligation of his debts, in the order of their priority and in accordance with the value of the portions of land, he might have relieved himself from embarrass- ments, paid some of his creditors and better secured the rest, contributed some- what towards the establishment of the much-needed class of yeomen-proprietors, and increased the public stock of food by affording an opportunity for bringing a number of waste acres into profitable cultivation. Had this man's assets been vested in Government stock, or shares, or woollen cloths, or sugars, he would, under the circumstances, have discharged his liabilities in a few hours, have liberated so much capital at the same time, and after all have had a handsome provision to enable him to make a fresh start in the world. The different result was oc- casioned by the free trade permitted in the commerce of chattel goods being withheld in the commerce of land.
I will mention other instances of the manner of this evil, which have come within my own cognizance. A gentleman dying, in 1828, by his will directed an estate to be sold to make provision for his children by a first marriage. In or- der to comply with his directions, it was necessary to file a bill in Chancery; which was done in 1828, and the estate was sold in 1842. The fund was not allocated until 1844; so that a receiver remained over the estate for sixteen years. During that time, neither owners nor creditors could interfere, and nothing could be done for the improvement of the land or of the condition of the tenants without a costly reference to the Court. The result was, that when the sale was actually com- pleted, the proceeds were not sufficient to pay the debts and law coats, and the children for whose provision it was designed are now paupers. Had the testa- mentary directions of the owner of this estate been capable of being complied with within a year after his death, ten or fifteen thousand pounds would, as he anticipated, have been realized for his heirs. In this case, the law robbed the or- phan, defrauded the creditor, deteriorated the condition of the tenant, and di- minished the public stock of agricultural produce, by the fetters it has imposed upon trade in land.
Here again is another instance in point. An agreement was made in the year 1841 for the sale of an estate by private contract. On examination, it was found that the debts exceeded the purchase-money in amount; and, as the only open mode of relieving the property from their encumbrance, and so making a good title for the purchaser, a bill was filed to effect a sale under the Court of Chancery. At the end of five years no decree had been obtained, and con- sequently no sale accomplished. What proportion of the entire value of the es- tate was eaten up by law-costs in these five years I cannot state; but I have no doubt of its being a very large one; and, large or small, there was no fund from which it could be defrayed except that property belonging to the already victimized creditors. In addition to the loss thus imposed upon individuals by the operation of the law in this case, a grievous injury was also inflicted upon thepublic by keep- in the land unowned (for such it practically was) and neglected for five years. These examples will be sufficient to indicate the mischief done by the law in preventing a free transfer from hand to hand of that form of raw material upon which the whole fabric of Irish industry and wealth must be based. There is, I firmly believe, in Ireland, no secure foundation upon which it can be rationally hoped to build a superstructure of prosperity except the land; and yet in none of the various mischievous occupations of their ingenuity have lawyers been so ac- tive and successful as in their ancient and continued endeavours to restrict the free use of this most important material of industry. They have contrived the heavy fetters of the conveyancing system to bind it to the neck of an unwilling owner and sink him by its weight into hopeless poverty; they have kept it alike from the grasp of the honest creditor and from the usufruct of the public by the fen-
ces of costly forms of litigation; they have burthened the simplest act of transfer of its smallest portion from one man to another with an onerous tribute to their class chest. In Ireland, where it is a matter of life and death that land and in- dustry should enjoy perfect freedom—should be permitted to combine in all pro- portions and under all circumstances—the hand of the law has been even peculiarly heavy. As if the fetters of the mortgage and the settlement were not sufficiently stringent, and did not afford sufficient opportunity for the extraction of coats, and sufficient occasion for the wasting of time in the Equity courts, additional means for the attainment of their ends have been devised in Ireland by the extraordinary legal and customary force given to judgment debts in the encumbrancing of land, and by the extensive field for litigation laid open by the use of leases of lives re newable for ever, and by the custom of " Irish Equity " introduced as a pendant to that most objectionable tenure. In short, by the free use of these devices, as a complement to the general impracticability of the English law of real property, the law has succeeded in binding up in her most rigid chains pretty nearly all the soil of Ireland; and, lest industry should approach It even in that helpless con- dition, the same hard mistress has not failed to lay a heavy hand upon that second cardinal element of national welfare.
Upon this subject I shall, with your kind permission, offer a few remarks in a
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