SALE OF ENCUMBERED ESTATES.
Lincoln's Inn, 18th April 1849. Sur—If the waste districts of Ireland are to be fertilized by means of a sale of encumbered estates, two subjects will require the attention ot the statesman who undertakes the measure. The terms on which the present proprietors are to be settled with—in fact, the means by which the futurity of the lands in question is to be severed from the gloomy past—will first occupy his attention. The me- thod of dealing with the lands when the present owners are got rid of, is a sepa- rate question. Government may take and keep the lands for a time, paying from the public purse, and making improvements at. the public expense, and then sell- ing the lands in parcels to individual proprietors; or may sell the lands to a joint- stock or chartered body, with powers and obligations such as the accomplishment of the public objects may require. The ultimate object, it may be assumed, in any case would be, as it ought to be, the redistribution of the lands among private proprietors; for a permanent holding of lands either by Government or by a joint- stock or corporate body could never produce a state of wholesome prosperity. But I do not on the present occasion mean to advert to the maturity of these lands; the object of the present letter is to suggest matters which ought to be adverted to in settling with the present proprietors, lest the anxiety to attain the uhi- mate object lad to a disregard of important principles, and establish a precedent fraught with future evil.
The right of private property has never been put on such high ground as to ex- clude the paramount right of the community, when the right of the individual and the good of the community clash. There has been no difficulty about taking the lands or houses of individuals when wanted for roads, canals, approaches to bridges, docks, or any other public purpose. In all such cases, the quantity of land to be taken from each. proprietor is presumably small ; a point of some practical importance, though not varying the principle. But the point which does involve a principle, is that the laud is taken simply because wanted for the public purpose, and wholly irrespective of any shortcoming by the private owner m using it in the manner most beneficial to the public. The most substantial homage is paid to the right of private property, in the care which is taken to pay to the private owner the money value of his property. In such cases, there is little difficulty in fiaing the money value; or the difficulty, if any, will be found to tell against the purchaser. In fact, as to the rights of private property, all that is violated in such cases is a possible sentiment of affection for the specific thing; a feeling which cannot be valued in money, and the disregard of which must, rightly or wrongly, be sanctioned in all such measures.
Another case of interference with the right of private property, is where several persons have a common interest or different interests in the same subject, in such manner as to be incompatible with the exclusive right of any one in any part. In such cases, the Legislature, on the application of a competent number of the par- ties concerned, compels the division of the common property and the allotment
of a part to each. Enclosure acts are a familiar example of this. The community at large has a remote interest, as presumably the lands will produce more when enclosed and divided; bat application is not made to Parliament by or on behalf of the public at large, but by and on behalf of some members of the petty community who among them are entitled to the land to be divided; and the effect of enclo- sure acts is only to coerce all the members of the lesser community to acquiesce in a new and more convenient enjoyment of the common property.
The slave-compensation measure stood on a different ground. There, the pub- lic became convinced that the system of slavery was wrong, but justly considered, that as the system had been sanctioned by law, the vindication of the religious and moral principle by the emancipation ot the slaves ought not to be effected at the expense of the slave-owner. The public therefore emancipated the slaves and paid the owner: the public did not want the slaves, nor were they a property which the owners required to have placed on a new footing. Holding them to be property at all was a vicious fiction, which, however, had been sanctioned by law; and it was ultimately got rid of in the least objectionable manner which circum- stances allowed.
The Encumbered Estates Act of last session sanctions the principle of the sale of land upon the application of an owner with only a limited interest There is great novelty in this. It is a strong measure. Still, the land is sold on the ap- plication of a party having some property in the land. A sale by the public and for the public benefit—a sale of lands, or, which is the same thing, a taking of lands at a price, because the present owner refuses or omits to use them in a manner sufficiently beneficial for the public—is a measure strong beyond example in a country the civil polity of which is so orderly as in the British dominions. It is easy to see the reason of the rarity—or rather, absence of precedents, for in all ordinary circumstances the interests of the individual proprietor and of the public are identical as to the manner in which the former uses his land.
And the cases must be exceptional and anomalous when this identity of interest will not in a general way be sufficient to enable the community at large to abstain from calling into action that paramount right which precedes and overrides the right of private property. I omit altogether the case of default in payment of public burdens. Such default gives the public ultimately a clear right to sell the lands: but where the fiscal demands of the state are paid, it is an act of extraor- dinary vigour to sell the land merely because it is not managed in a manner as advantageous for the community as it ought to be managed. I am far, however, from thinking that such a measure may not be folly justified.
In the first place, land is different from all other property; it is indispensable to the existence of society, and it is limited in extent. If a portion of this limited and indispensable commodity be condemned to sterility, while the population is increasing, it is clear that a growing evil, which after a course of suffering will become intolerable, is maintained. The existence of this evil to a considerable extent shows that the operation of the ordinary motives of self-interest have be- came insufficient to secure the public good. The anomalous case has arisen which calls for and justifies the interference of the public. What should be the manner of that intervention? Not confiscation: no man speaks of punishing the neglect- ful or powerless owner by that course. The course proposed is to compensate such owner in money, (a commodity which he may save or waste without injury to the community,) and to transfer the lands to parties who will improve them and make them yield their due contribution to the public good. But how is this to be done ?—That question must be answered warily, or great wrong will now be done, and a precedent of great evil hereafter be established. The answer is not easy. The owner is to be compensated—that is, receive in money the value of the land : but how is that value to be ascertained ? Sale by auction is not applicable to a case where the quantity to be sold would glut the market: besides, there must probably be some selection of purchasers—some security for their turning the land to account? not easily compatible, though not absolutely incompatible with a sale to the highest bidder. It seems, therefore, that the delicate task of affixing a price must be undertaken by a Government valuer. It is needless to suggest the numerous difficulties to be surmounted or disregarded in executing this task if justice be done. The price, however fixed, is to be paid to the owner; but who is the owner? his name is legion. There is the first mortgagee, with the next and subsequent mortgagees; there:are the judg- ment creditors, the annuitants who have purchased their annuities ; two join- tresses; three generations of portioners—each generation numerous, and many have sold, settled, or otherwise dealt with their charges. There are besides legatees and other parties, all having charges on the land, and a corresponding claim on the purchase-money; and ultimately, as the claimant of the surplus, comes the party who has been iled the owner; and it is highly probable that this residuary claimant is not entitled to receive the surplus, but is only tenant for life, or has some other partial interest with limitations over in favour of in- fants or unborn persons. Even this does not represent the whole ex- tent of the complexity of the ownership; for some of the charges wid be found to affect part only of the property; and other intricate inter- weavings of security and of priority and posteriority of claim will be found to exist, the whole of which will have to be dealt with. Now this ques- tion of ownership—that ill, the disposal of the purchase-money—is strictly a Court of Chancery matter; and though it may be a more popular and probably a wiser course that this task should be performed by a special judicature appointed for the purpose, the fact cannot be concealed that the purchase-money can only be paid according to the rules of Equity law, that is, Commissioners must be guided by the same principles as would have guided a judge in the Court of Chan- cery, nothing being omitted but the technical rules of practice. As such Commissioners will be required to proceed with a more rapid pace than an ordi- nary Equity judge, errors will occur: it will be found that the purchase-money has been paid away leaving some undeniable claim unpaid. I think that the pub- lic ought to pay such claim, and may be indemnified out of a fund created by a very small percentage C.11 all purchases. I may notice, that all claimants on all purchase-monies to whom direct and immediate payment cannot be made, must be bound to accept that amount of Three per Cent Consols which their share purchased. The above opens to some extent the difficulties involved in the distribution of the purchase-money; but it is agreed on all hands that the purchaser is to be re- lieved from all questions on this head. The principle recognized in the Encumbered Estates Act of last session, (though not entirely carried out,) is of vast importance,—namely, the absolute severance of the land from all anterior title, and the tranfer of that title to the money. It may be observed by the way, that the English system of Equity and the Public Funds furnish the means of making this transfer of title with a degree of exactness, and little disturbance of the substantial rights of parties, which could hardly have been attained under other circumstances. The entire relief of the land in the hands of the new purchaser from the anterior title, will not be efihcted unless the sale be authorized to be made wholly irrespective of former ownership, and the payment of the purchase-money to or by the direc- tion of a public functionary as the price of the particular lands as shown by a plan, be made conclusive as to all prescribed formalities having been observed. When all anterior title is spoken of, it must in the proposed scheme include the interests of all persons claiming under leases and sub leases, except only the in- terest of the actual occupying tenant; which last mentioned interest must, I con- ceive, be a subject for separate consideration. The actual interest of such a tenant will form an element in fixing the price of the land as between the owner and the public; but the interest of the occupying tenant ought to be valued suid compensated separately. The necessity in most cases for a change of occupying tenant will be at least as urgent as the necessity for a change css. landlords.
M. N.
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