mentioned and provided for) have full discretion as to the giving or withholding costs and expenses, and as to the persons by whom, and the funds out of which the same shall in the first instance, or ultimately be paid, repaid, and borne, and shall and may apportion the same amongst such parties, and in respect of interest or principal, and in respect of rents, or income and corpus, as it shall see fit; and that under every reference to the master under this act, he shall proceed in like manner, and with the like powers and authorities in all respects, and all orders and proceedings of, and before the master shall be enforcible in like manner, as in case of a reference under such decree as aforesaid; and all persons parties to any proceedings under this act, by contracting for the purchase of any land or lease, or by making any application to the court, or by submitting to the jurisdiction of the court, or by attending before the master in the course of such proceedings, or by otherwise concurring in any such proceedings, and the representatives of such persons, and all persons claiming under them, by their act, or by act of law subsequent to their becoming subject, as next herein-after mentioned, shall for the purposes of this act, be subject to the jurisdiction of the court, and to all orders of the court and of the master, in the course of any such proceedings, in like manner, and as fully as parties to a cause pending in the court are subject to the jurisdiction of the court in such cause. 12. That it shall not be necessary for any person thinking himself aggrieved by any report of the master to take exceptions; but it shall be incumbent on all persons parties to proceedings, or coming in before the master, to carry in objections in the usual manner, to the draft of the report; and any such person omitting so to object, shall not afterwards be heard against the report, without special leave of the court; and every proceeding before the court shall be carried on by petition or motion, in a summary way, or as the court may order; and proceedings under this act shall not abate, nor be suspended by any death, transmission or change of interest, except so far as it shall be necessary for the carrying on of any such proceedings, that any person not before the court shall have notice of, or be required to attend such proceedings. 13. That in case of death, or transmission, or change of interest, and wherever, after the presentation of a petition for confirming and carrying into effect a contract for sale, or for a sale, the direction of the court shall be requisite for carrying on the proceedings, or for effecting the objects thereof, it shall be lawful for any person interested in such proceedings, to apply to the court for an order for any such purpose, and the court may thereupon make such order as it shall see fit. 14. That when, upon a petition for confirming and carrying into effect a contract for sale, or applying for a sale, any reference shall have been made to the master, he shall cause an advertisement to be published, at least once in two successive weeks, in the Dublin Gazette, and in such daily, or other journals or newspapers in Ireland or England, or both, as the master shall think fit, stating the name or title of the petitioner; and in case the petitioner shall not be the owner, the name or title of the owner, and the denomination or short description of the land or lease contracted to be sold, and the county wherein the same shall be situate, and any other matters the master may think fit; and fixing a day whereon the master will enter upon the consideration of the matter referred to him, and requiring all persons having incumbrances to come in and prove them. 15. That no error or imperfection in any such advertisement shall vitiate the proceedings under such reference, unless the court, upon application or otherwise, shall determine that it ought to do so. 16. That the master, before proceeding upon any of the inquires directed by such reference, and also from time to time under such reference, or under any further reference in the same matter, as, and when it shall seem to him fitting, shall cause notice to be given in such form as he shall think proper, to all persons who shall appear to him to have any interest in the subjects of such inquiries, and whose attendance shall appear proper, that he is about to proceed or that he is proceeding in the matter of such reference; and all notices under this act may be served out of the jurisdiction of the court, and the court may direct substi tuted service thereof in any case; and in case any incum. brancer or party interested, having been served with any such notice, neglect to appear in the master's office, or to file a charge, the court, on the application of any party, may make an order on motion of course, that such incumbrancer shall be bound by the proceedings as if he had been a party thereto, or such other order as the court shall think fit, and thereupon it shall be lawful to proceed notwithstanding the absence of such party; and if it shall appear to the satisfaction of the master, that any person to whom notice ought to be given, cannot be found, or cannot be served with notice, the master may state in his report the name of such person, and the circumstances under which notice was not or could not be given to him: provided that after such order, it shall be lawful for the master, at any time in his discretion, to admit, and for the court, on such terms as it shall think proper, to order him to admit, any party against whom such order shall have been made, to attend and proceed before him as if no such order had been made: provided, that the parties against whom such order shall have been made, shall not thereby be excluded from sharing in the proceeds of such sale, under the direction of the court, or from any other benefits of this act, consistent with effect of such order, or with such discretions as the court may make. (To be continued.) Just published, 4th Edition, 12s. 6d. cloth boards, THE PRECEDENTS AND GENERAL ORDERS for the MASTRR'S OFFICE of Her Majesty's HIGH COURT of CHANCERY in IRELAND, with the authority of the Masters; with Practical Notes and References. By THOMAS JOHN BEASLEY, A.M. Solicitor. NB-This Edition contains all the Orders of the Court of Chancery up to the day, with the Sections relating to the Master's Office of the Act to Facilitate the Sale of Incumbered Estates in Ireland. Dublin: T. O'GORMAN, Law Bookseller and Publisher, 33, Upper Ormond Quay. London: Stevens and Norton, Bell-Yard, Lincoln's Inn, All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J MILLIKEN, 15, COLLEGE GREEN. Correspondents will please give the Name and Address, as the columns of the paper cannot be occupied with answers to Anonymous Communications-nor will the Editor be accountable for the return of Manuscripts, &c. Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COL LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery in Dublin, or its being forwarded to the Country, by Post, on the day of publication. TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 17s. Quarterly, 9s. Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45, FLEET STREET, in the Parish of St. Andrew, and published at 15, COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County of the City of Dublin. Saturday, February 10, 1819. Erish Jurist No. 16.-VOL. I. FEBRUARY 17, 1849. PRICE Per Annum, £1 10s. [Single Number, 9d. The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows: coun IN discussing the question as to the policy of rendering each estate responsible for the support of the pauperism existing upon it, there are two conflicting interests to be considered-the interest of the owners and the interest of the occupiers. There is also the effect of the system c try generally. In every statement w on this subject, the interest of the prop.... been too exclusively considered. As to them, a large class would, no doubt, be decidedly benefitted-owners who have resources at command, whose properties are unemcumbered and not overpeopled. 810-4 een has There is another, and a still larger class who would be ruined-men who have no resources whose properties are incumbered, and whose estates are over-peopled. The first class of owners would feel but lightly the onus of employing or supporting the poor on their estates-their estates would be benefitted by the employment given, and their people fed. The estates of the second class of owners are generally unequal, at present, to support their population, and even the few which can yet do so, if burthened with individualized responsibility, will rapidly deteriorate. No farmer would cultivate land, the profits being absorbed in poor-rate; thus on these estates no employment would be afforded they would go out of cultivation, and the popu lation starve. A rigid adherence to making each estate responible for the support of its own poor, would soon get rid of the "Irish difficulty" as the population of the distressed districts would rapidly be reduced to what each estate could support; and the expense of supporting an unprofitable population being removed, the estates themselves might be expected to improve. However, we do not anticipate that Exchequer of Pleas, in cluding Manor Court and Registry Appeals. Common Pleas ........... Barristers-at-Law. (CHAS. H. HEMPHILL, Esq., and WILLIAM HICKSON, Esq., Bar it will be deliberately contemplated, when legis. lating on this question, to improve Ireland by consigning a third of her inhabitants to starvation. If the legislature will not permit this result to ensue, provision against it must be made, either by grants from the imperial treasury, or by a rate in aid. The result of grants from the treasury would be, to benefit the estates which could support themselves, by freeing them from contributing, through a rate in aid, towards the support of their poorer neighbours on the distressed estates. If the grant lation of a distressed estate would be kept alive, only supplied what the estate could not, the popubut the estate not benefited. A rate in aid would lead to a tax over the whole surface of the country, and which-if a very moderate limit were not fixed as the maximum of taxation-would, by throwing the distressed districts out of cultivation, have a tendency to increase. This tax would, at the very first, be not very different from a general tax, irrespective of localities. The consequence to the country generally, of invividualising responsibility would necessarily be a law of settlement of the strictest possible character. As to the effect of such a law on the has existed in England for centuries, and every prosperity of a country, it is useless to theorise; it writer of eminence bears testimony to the evils it has wrought upon the prosperity and morals of Sir William Blackstone (vol. 1, p. 361)—no mean authority in the eighteenth century, after stating. that the object of the statute of 43 Eliz. c. 2, was, first, to relieve the impotent poor, and them only; secondly, to find employment for such as are able to work, observes, "the only defect was confining the management of the poor to small parochial districts, which were frequently incapable of fur.. nishing proper work, or providing an able director. However, the laborious poor were then at liberty to seek employment wherever it was to be had," that the labourers of the parishes with which he none being obliged to reside in their places of set- was connected were fully aware that it was not tlement but such as were unable or unwilling to work." And a little farther on-"After the Restoration, a very different plan was adopted, and which has rendered the employment of the poor more difficult, by authorising the sub-division of parishes; has greatly increased their number by confining them all to their respective districts; has given birth to the intricacy of our poor laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive lawsuits between contending neighbourhoods, concerning these settlements and removals." Notwithstanding numerous attempts made from time to time to remedy the defects of the English poor law, the evils of the system reached such a height in 1833, that a commission of inquiry was issued the evidence is condensed in a volume entitled, "Extracts from the Information received by his Majesty's Commissioners as to the Administration and Operation of the Poor Law. Published by authority." The evidence as to the tendency of a strict law of settlement for paupers, is to the following effect-that the general effect of the system is, to stop the circulation of labour (p. 267)that the consequence of a labouring man having been frugal, and having saved money, was, that no one would employ him"-" he must be reduced to a state of beggary before any one would employ him"-" he cannot get work in his own parish, and he will not be allowed to get work in other parishes." The witness says "A labouring man who saves, where such an abominable system prevails, is foolish in doing so"-" as far as the circulation is concerned, the evil can only be put a stop to by utterly abolishing the law of settlement, and establishing an uniform national rate, so as to allow a man to be relieved at the place where he is in want, instead of being pinned to the soil." their interest to advance their condition by the acquisition of property"-that "when the gentle men in the neighbourhood of Henley contem plated the establishment of a savings bank, he thought it his duty to address the young men on the subject, after morning service, and urge upon them the propriety of saving, for their protection against the contingencies of sickness and old age. He was listened to attentively, and asked, whether he honestly thought it would not be for the benefit of the parish, more than of themselves, if they saved? and that, on consideration, he could not state that it would be for their benefit to save." "The decided conviction of the whole body of the labourers was, that any saving would be for the benefit of the parish and the farmers, and not for the benefit of the individual saving." Here is an exhibition, in practice, of the natural result of confining labourers to a small district or parish, and, at the same time, requiring the farmers and owners of property to relieve its pauperism. And is not this what is meant by property support. ing its poverty? The evidence contains the most disgusting instances of immorality, both in the rate-payer and in the pauper, from the endeavour of the first to prevent, and the second to gain, a settlement-for these we must refer our readers to the book itself. The report of the Rev. H. P. Jeston, Rector of the parish of Cholesbury, representing the state of his parish, gives a picture so similar to the present state of many of the distressed localities in Ireland, that we cannot avoid transcribing it: "The present state of the parish [January, 1833] is this, the land almost wholly abandoned (sixteen acres only, including cottage gardens, being now in cultivation)-the poor thrown upon the rates, and set to work upon the roads and gravel pits, at the expense of another parish ;" and he observes, "so long as it continues a parish of its present small extent, with its present number of poor, the property must be an incumbrance to the proprietor; for he can expect no rent, the rates assessed upon the land far exceeding its value." On this communication, the Assistant Poor Law Commissioner made the following observations :-" It is obvious Besides instances of labourers who would have that the instant the poor rate exceeds the nett removed, if they could, before they became pau- surplus produce, the existing cultivation becomes pers, there is evidence, also, of another and more not only unprofitable, but a source of absolute numerous class-where labourers would not re-loss; and that as every diminution of cultivation move, even where advantageous opportunities for has a double effect in increasing the rate on the so doing offered, lest, by so doing, they might lose remaining cultivation-the number of unemployed their settlement. Now, all through this evidence-though many witnesses find fault with the system of confining paupers to parishes-there is not one who views this restriction as encouraging to enterprise; and would not the individualizing of responsibility effect this "pinning to the soil," which in England was complained of so universally? labourers being increased at the same instant that the fund for the payment of rates is diminishedthe abandonment of property, where it has once begun, is likely to proceed in a constantly accele rated ratio."-p. 89. The Rev. R. Bailey, Chaplain to the Tower, and who is stated as having had extensive opportunities of observing the operation of the poor laws in the rural districts, states, that he considers "the present law of settlement renders the peasant, Must we never profit by the experience of to all intents and purposes, a bondman; he is others? Must Ireland go through years of misery, chained to the soil by the operation of the system, as England did, to learn that a stringent law of and it forbids his acquiring property, or enjoying settlement is ruinous to the proprietor and to the it openly or honestly." "There is no doubt that farmer, and demoralizing to the pauper? Ireland if the labourers were freed from their present is not yet entangled within the meshes of this trammels, there would be such a circulation of system-she may yet avoid it—but let her prolabour as would relieve the agricultural districts"-prietors and great ones reflect, that if they once get in, they will find it very difficult to disentangle take care that no additional families shall intrude themselves. -Facilis descensus averni est, Sed revocare gradum, Hoc opus hic labor est. It may be said, that the evils detailed in the evidence alluded to, were removed by a subsequent act, but it must not be forgotten that these evils were the consequence of, and attributed to, a stringent law of settlement, and yet not so stringent as that now demanded by that body of the Irish proprietors who insist that each estate must support its own poor. To remedy those evils, the 4th & 5th Wm. 4, c. 76, was passed. On this occasion, as the Roman senate had recourse to dictators in cases of great emergency and danger, so the legislature had recourse to the Poor Law Commissioners to extricate them from the difficulties in which they found the country involved. However, there is this great difference between the two appointments-the Roman dictator was called into power for a very limited period, to put an end to the difficulties of his country, whilst the Poor Law Commission bids fair to be perpetual; and there is no anticipation of its putting an end to the embarrassments which called it into existence. his Own on him; he will also employ or feed only Who are those who demand this individualizing of responsibility? Surely not the owners of property who have no capital, whose estates are embarrassed and overpeopled. Let the rich owners of unembarrassed property beware, lest, lured by the prospect of a transient advantage, they may place themselves within a system of machinery which will eventually crush them. Individualizing responsibility will ruin many estates, rates in aid will follow "Eheu! Quam temere in nosmet legem sancimus iniquam." will be less slow than English in discovering that, Do they expect that Irish peasants and labourers by improving their circumstances, they are not benefitting themselves, but the proprietor? Do they expect that Irish landowners will be less astute than English in discovering reasons why they should not be burthened with a particular pauper, or less strenuous in asserting their supposed or invented legal rights? Do they imagine they will get Irish paupers to work without an object to gain, and have something to litigate for? Irish landlords to refrain from litigation when they In the act, likewise, the legislature has declared its opinion as to the effect of confining the labouring its opinion as to the effect of confining the labouring poor within very confined districts; far from allowing parishes to be still further subdivided, it enacts in the 26th section, "that it shall be lawful for the Poor Law Commissioners, by order made under their hand and seal, to declare so many parishes as they may think fit, to be united for the administration of the law for the relief of the poor, and such parishes shall thenceforth be deemed a union for such purposes." Again, in the 33d sec. it enacts "that it shall be lawful for the guardians of parishes to agree that, for the purposes of settlement, such parishes may be considered as one parish, and the settlement of a poor person in any one of the parishes of said union shall be consi-feeding one of the parishes of said union shall be considered, as between the parishes, a settlement in such union." A plain intimation that the parliament of England, who were well acquainted with the effect of a stringent law of settlement, thought it would be for the advantage of the country to facilitate the circulation of labour-a salutary maxim in the frame or constitution of society, than "There is not a more necessary or more certain principle, which has obviated many of the evils it that every individual must contribute his share in was introduced to counteract, and which is re-order to the well being of the community, and garded with such apprehension by the majority of Irish proprietors. The framers of the Irish Poor Law might, with following passages from Blackstone:much advantage to the public, have studied the Amongst the many evils incident to the law of settlement, the amount of litigation occasioned by it must not be considered as unworthy of notice. This arose to such a height as in the 11 & 12 Vic. to call forth a special act of parliament to check it. And though, since then, litigation may have been diminished, there is yet quite enough, arising from disputes as to settlement, to occupy the almost exclusive attention of the English Quarter Session Courts. Does any one deny that individualizing responsibility will lead to a law of settlement? If each proprietor be held responsible for the support of the poor on his own estate, he will, doubtless, Elizabeth more humane and beneficial than even "A plan was formed in the reign of Queen feeding and clothing of millions, by affording them the means, with proper industry, to feed and clothe for maintaining the poor have departed from this themselves; and the farther any subsequent plans nicious, their visionary attempts have proved." institution, the more impracticable, and even per surely they must have been deficient in sound policy who suffer one-half a parish to remain idle, dissolute, and unemployed, and are at length amazed to find that the industry of the other half is not able to maintain the whole." A Treatise of the Law of Property, as administered by the House of Lords. By SIR EDWARD SUGDEN. London, Sweet. A MIND SO active as that of the author could not rest happy without occupation, and our Ex-Chancellor has employed the period of his judicial leisure in the production of the work, the subject of our notice. It speaks well for that constitution of mind, which, after a life of no ordinary mental activity, can find itself so braced to labour and intellectual exercise, as still to devote itself to toil, and, without the necessity of exertion, to exert itself. The author brings to his task qualifications peculiarly adapted to its successful accomplishment. His work, above all others, is not "written to-day from the learning of yesterday;" neither is his knowledge gained as he writes-as is the case of many a literary journeyman, who commences his subject trusting to readiness of perception rather than profundity of knowledge, and when it is completed, only then begins thoroughly to understand it; but the criticisms of Sir Edward Sugden are the result of thorough familiarity with the matter criticized a familiarity derived from the study of a long life, quickened by the knowledge acquired as Advocate, sobered by that gained as Judge, and stimulated by a sense of self-love; for no one likes a decision to be reversed by a tribunal which is not acquiesced in as the most competent. The first part of the work is devoted to a brief historical sketch of the history of the jurisdiction of the House of Lords, and a very meagre statement of the various plans proposed for its amendment. The writing is always perspicuous, a characteristic which attaches to all the other works of the author. Without being an original or bold thinker, he is an excellent workman; he arranges his materials skilfully, with great regard to order, method, and arrangement; and his compositions are always well finished. We pass over the well-known historical fact, that the House of Lords had no inherent jurisdiction either to hear causes or appeals, and that the right to the latter, after violent contests with the House of Commons, was at length established in 1675, in Dr.Shirley's case. The bounds of that jurisdiction are now pretty accurately defined; the House possesses no appellate jurisdiction over ecclesiastical, maritime, colonial, bankruptcy, or lunacy cases; but there is an appellate jurisdiction for the United Kingdom, for all cases at law or in equity, as to the latter, even on interlocutory orders, except those cases at law where a statute prescribes a particular mode of adjudication, and does not reserve the right of appeal. It was, indeed, doubted by Lord Eldon and on what subject did he not doubt?-and by Lord Redesdale, that there was jurisdiction over cases disposed of summarily by the Courts below. An Irish case, O'Neill v. Fitzgerald, (3 Bli. N. S. 24,) so late as the year 1829, gave rise to the doubt. A clerk of the Court of Exchequer having forged cheques, transfers were fraudulently made of sums standing to the credit of one cause to the credit of another. The despoiled creditors moved that the Accountant-General should replace the stock; the contest by motion was between him and the Bank of Ireland. The Court decided against the Accountant-General, from which decision there was an appeal. The point of jurisdiction was started by Lord Redesdale, and was subsequently argued with distinguished ability by Mr. Hart, and also by Mr. Shadwell. To our minds, their arguments were convincing; there was, however, no direct adjudication; the case was sent back to the court of Exchequer, who declined to make any other order, and on its coming back to the House, that order was reversed without argument. Such being the limits of the jurisdiction, has it been, or is it satisfactorily exercised? We give the quotations of our author, which prove that in the mean, low, and profligate age in which Charles the Second reigned, it was not. Sir Mathew Hale observes, "Whatever the extraction of men be, yet they were not born with the know. ledge of the municipal laws of a kingdom, nor could be supposed to be inspired with the knowledge of the law by the acquest or descent of a title of honour......... They daily observed that in particular cases when they came before a multitude of judges, especially that were great men, and therefore not easily controllable, persons concerned in suits met with some that were their kindred, friends, favourers, landlords, tenants, or relatives, and it was grown a fashion in the Lords' House, for lords to patronize petitions—a course that, if it were used by the judges in Westminster Hall, would be looked on even by parliament itself, as undecent. Such addresses were undecent, indeed intolerable to be found among judges, who must not know persons in judgment, nor be sweetened by such kind of applications."* And Lord Shaftesbury, in his speech in Dr. Shirley's case, "prayed the lords to forgive him, if, on this occasion, he put them in mind of committee dinners, and the scandal of it, those droves of ladies that attended all causes; it was come to that pass, that men, even hired or borrowed of their friends, handsome sisters or daughters to deliver their petitions. But yet, for all that, he must say, that their judgments had been sacred, unless in one or two causes." We shall probably be excused for our incredu lity, if we doubt the truth of the last sentence, more especially when we quote the further influence brought to bear. Burnet mentions that Charles the Second went commonly to the House of Lords, and "became a common solicitor, not only in public affairs, but even in private matters of justice. He would in a very little time have gone round the house, and have spoken to every man that he thought worth speaking to, and he was apt to do that upon the solicitation of any of the ladies in favour, or of any that had credit with them. He knew well on whom he could prevail; so being once, in a matter of justice, desired to speak to the Earl of Essex, and the Lord Hollis, he said they were stiff and sullen men; but when he was next desired to solicit two others, he undertook to do it, and said They are men of no conscience, so I will take the government of their conscience into my own hands.' Yet when any of the lords told him plainly that they could not vote as he desired, he seemed to take it well from them." Now, however, the case is very different; then the lay lords attended numerously, now they altogether abandon this branch of their duties, and delegate them to the few law lords who have been honoured with a peerage. The instances in which *Hale, as judge on circuit, was by custom entitled to six paying for, because the corporation had a case before him loaves of sugar from a corporation, which he insisted upou for trigl. |
