‘THE FIVE YEAR EXPERIMENT’: THE INCUMBERED ESTATES COURT, 1849-54. by JACQUELINE ANN CROWLEY THESIS FOR THE DEGREE OF PHD DEPARTMENT OF HISTORY MAYNOOTH UNIVERSITY, NATIONAL UNIVERISTY OF IRELAND, MAYNOOTH HEAD OF DEPARTMENT: DR JACINTA PRUNTY SUPERVISORS OF RESEARCH: PROFESSOR TERENCE DOOLEY PROFESSOR RAYMOND GILLESPIE FEBRUARY 2017. CONTENTS PAGE Acknowledgements i Abbreviations iii List of figures iv Introduction 1 Chapter 1 Legislation and revolution 23 Chapter 2 Law and advances 78 Chapter 3 Business of revolution 105 Chapter 4 Problems of revolution 149 Chapter 5 Unintended revolution 190 Chapter 6 Exporting the revolution 230 Conclusion 269 Appendix 278 Bibliography 296 Acknowledgements This work is the result of the extraordinary support and kindness of a great number of people. Firstly, I would like to thank Dr Jacinta Prunty, head of the Department of History at Maynooth University for her encouragement in the later stages of this study. I would also like to thank Professor Marian Lyons, former head of Department, for her encouragement at the beginning and her continued support throughout. I owe the greatest debt of gratitude to my supervisors, Professor Raymond Gillespie and Professor Terence Dooley. It has been a privilege to have the guidance and critique of two such extraordinary historians. I would like to thank the following people for their assistance and support in writing this thesis: Catherine Bergin, Pamela Coleman, Phil Condron, Fearghal Duffy, Ann Donoghue, Fergal Donoghue, Eugene Dunne, Richard Fitzpatrick, Darren Fox, Colin Harte, Catherine Heslin, Aoife Holohan, Anthony Hughes, Graham Kay, Frank Kenny, Adrian Kirwan, Paula & Ger Lalor, Niall Mulvihille, Catherine Murphy, Julia O’Brien, Larry O’Brien and my colleagues at JPII library. I am grateful for the coffee, laughter, patience and compassion. I wish to thank the staff of the following libraries, archives and institutions: National Archives of Ireland; National Library of Ireland; Public Records Office of Northern Ireland; British Library; National Archives, Kew; Trinity College, Dublin; Royal Irish Academy; Shropshire Archive; Bodleian Libraries, Oxford and John Paul II Library, Maynooth University. i This work would not have been possible without the encouragement of Professor R.V. Comerford, former head of the History Department, who first advised me to pursue postgraduate study and continues to support my work. Particular thanks is due to Dr Ciaran Reilly, my MA supervisor, for encouraging and challenging my research, both of which were integral to this work. To my siblings, Ruth and Michael, thank you for your kindness, tech support, car maintenance, reassurance and dragging me back to reality. I also extend my gratitude to my extended family who inspire me to work hard, try harder and laugh until I cry. Lastly, I wish to thank four extraordinary people. Firstly, to my grandparents, Molly and Pop. I realise now how like you both I have become. You taught me so much about grace, the importance of forgiveness and the true meaning of perseverance, for this I will be forever grateful. My parents, Vincent and Cecilia, without whose unwavering belief and support none of this would be possible. Thank you for being a constant source of love and encouragement. I will forever appreciate the sacrifices you have both made, and continue to make, for me and my siblings. I dedicate this work to the four of you ‘because…’. ii Abbreviations BL - British Library HC – House of Commons HL - House of Lords NAI - National Archives of Ireland NAMA – National Assets Management Agency NLI - National Library of Ireland PRONI - Public Records of Northern Ireland iii List of figures Figure 2.1 Value of absolute credits and cash receipts issued by the 90 Incumbered Estates Court, 31 Aug. 1850-54. Figure 2.2 Location of No. 4 & 14 Henrietta Street, Dublin (1846-7). 93 Figure 2.3 Number of petitions presented to the Incumbered Estates Court 97 per year, 1850-4. Figure 2.4 Income vs. debt analysis for petitions presented to the 102 Incumbered Estates Court, Oct. 1849 – Dec. 1854. Figure 3.1 Estates under the Incumbered Estates Court by month 1850-4. 108 Figure 3.2 Length of proceedings pending under the Court of Chancery, 110 Oct. 1849 – Apr. 1853. Figure 3.3 Rental and particular for the sale of the third division of the 113 Portarlington estate, 20 Feb. 1852. Figure 3.4 Maidenhall House, Kilkenny (c. 2000). 116 Figure 3.5 Duckspool House, Dungarvan, County Waterford (c. 1953). 117 Figure 3.6 Castle Hyde, Fermoy, County Cork (c. 1865-1914). 117 Figure 3.7 Summerhill House, County Meath (c. 1913). 118 Figure 3.8 Rental and particular for the Watkins’ estate, Oldcourt House, 119 Doneraile, 24 June 1853. Figure 3.9 List of titled persons petitioned through the Incumbered Estates 120 Court between Oct. 1849 and Dec. 1854. Figure 3.10 Amount paid by purchasers under the Incumbered Estates 134 Court, 21 Oct. 1849 and 31 Dec. 1854. iv Figure 3.11 Classification of purchasers through the Incumbered Estates 136 Court from outside of Ireland, Jul. 1852 and Mar. 1853. Figure 3.12 Lots subject to re-sale on Kingston estate through the 141 Incumbered Estates Court, June 1852. Figure 3.13 Number of petitions between 1849 and 1855 resulting in sales, 146 divided by sub-group. Figure 4.1 List of the first directors of the Farmers’ Estates Society 155 (Ireland), Aug. 1848. Figure 4.2 Location of purchases made by Patrick Jeffers on behalf of the 161 Farmers’ Estates Society (Ireland), Aug. 1850 – May 1851. Figure 4.3 Directors of the Farmers’ Estates Society (Ireland), March 167 1852. Figure 4.4 Price per acre of waste land in the British Empire, 1851. 170 Figure 4.5 Names of investors in Irish Land Company, June 1852. 172 Figure 4.6 Directors of the Irish Land Company at first general meeting in 173 August 1853. Figure 4.7 Purchases made by Irish Land Company up to August 1853. 173 Figure 4.8 Sales of incumbered, unincumbered and settled estates in 189 Ireland under the Landed Estates Court, 1858-77. Figure 6.1 The number of slaves for whom compensation was paid and the 235 approximate amount in each colony, 1836-51. Figure 6.2 Name and date of colonies placing themselves under the 247 Incumbered Estates (West Indies) Act, 1857-84. Figure 6.3 Statement of estates sold by the Incumbered Estates Court in 250 London up to 1 March 1884. Figure 6.4 Return of name, acres, location, date and purchase price of 253 completed sales between July 1863 and April 1864. v Introduction The Incumbered Estates Act was passed by the House of Commons on 28 July 1849.1 This radical measure had been long in the making. The first Incumbered Estates Bill was brought before the House of Commons in 1846 by two Irish MPs but to no avail. A second bill was brought forward in 1847, and while this measure had enjoyed considerable support in the House it was ultimately unsuccessful. In 1848 a third proposal providing for the sale of incumbered estates was again brought before parliament. This measure was passed into law. However, it quickly became apparent that this measure was inoperable and insufficient. It was replaced by the 1849 Incumbered Estates Act. This legislation became the first tentative step taken by the government at Westminster to resolve the Irish Land Question. The measure was designed to create a landowning middle class in Ireland by facilitating the sale of landed estates crippled by debt as the Great Famine drew to a close. In doing so, it was hoped that the legislative union between England and Ireland which had existed since 1800, could be bolstered by establishing a loyal and wealthy class of landowners whose allegiance was to the crown and whose capital could be applied to the improvement of Irish society. The creation of an independent Court of Record was a significant deviation from the existing policies of the government at the time which had previously operated a system of gradual reform. A Court of Record is one where acts and judicial proceedings are enrolled ‘in parchment for a perpetual memorial and testimony’. These rolls, known as the 1 In the interest of consistency the spelling ‘incumbered’ will be used throughout this study. This spelling is taken from the legislation which established the court. The spelling ‘encumbered’ will be used only in quotations or titles where it originally appears. 1 records of the Court, were held in such high and ‘supereminent’ authority that their truth could not be called into question, and therefore its formal records were deemed infallible.2 While the Irish Courts of Equity- the Courts of Chancery and Exchequer - were deemed Courts of Record, their rulings were considerably undermined by the provisions of the Act of Union. Article eight of the Union directed that ‘all civil and ecclesiastical laws and courts shall remain as now established, subject to future alterations’.3 This meant that any amendments to the powers, processes and authority of the Irish legal Courts could only be made through parliament at Westminster. J.C. Wylie suggested that of all the branches of Irish law retained after the Union, that pertaining to land most stridently resisted the influence of English common law and maintained a distinctly Irish set of characteristics and complexities. He stipulated that a fundamental flaw of the Act of Union was parliament’s failure to recognise that the subsequent social and political history of Ireland had meant that its administration had not developed in line with the British equivalent. As a result it was often the case that the infrastructure required for legislative or administrative reforms passed by Westminster were incompatible with the system which existed in Ireland.4 While the Courts of Chancery and Equity were Courts of Record, the failure of successive reforms had left both bodies unable to progress the business before them in an efficient manner.