WRIT OF RIGHT BILL

HC Deb 27 March 1827 vol 17 cc89-95

Mr. Shadwell

moved the order of the day for the second reading of this bill.

Mr. D. W. Harvey

said, he earnestly hoped that the hon. and learned member would not press the second reading of this bill; for, though he did not intend to divide the House on it, he felt justified in characterising the proposed measure as the rudest and crudest specimen of modern legislature. The design was good, and that was all. The execution had not the merit of being even harmless, for it could not fail to prejudice the great plan of improvement which was in contemplation, in respect to the entire code of laws touching real estates. The bill before the House proposed to restrict the period in which writs of right could be brought from sixty to thirty years: but it did not say that no title should be required beyond the latter period, which was indispensable, to give efficacy to the plan. Nor would any injury arise from delay; for he did not believe that three actions of this sort were brought it all England in any one year, and in two of those the right occurred within the shorter period. Nor did the bill abolish the absurd errantry of knights clothed in the drapery of feudal times; nor did it cut down the number of jurors from sixteen to twelve—clauses which were as important as the restriction in the time. But there was still greater feebleness in the part relating to fines. The bill proposed, that when an individual purchased a freehold estate, a declaration should be inserted in the conveyance, that the wife was not to be dowerable; while the present plan was to convey the estate to a trustee to effect the same purpose; probably an abbreviation of fifty words, and the same number of pence, might be thus saved. But why, he would ask, did not the learned gentleman go at once boldly and honestly to the source of the evil, and cut off the expensive and dilatory process of fines? Here was a field worthy of his talent and of his standing at the bar; but he presumed the learned gentleman, like the rest of the professional fraternity, was afraid to do too much at once, in the fear that the venerable pile might bury himself and his hopes in the general ruin. But he need not dread any inconvenience from the plan he (Mr. H.) proposed, for it was of immemorial establishment. On the alienation of copyhold property, in which married women were interested, they had only to present themselves before the steward of the manor, who, handing to the lady one end of a rod, or not unfrequently a poker, and retaining hold of the other himself, by this simple symbol divested her of her interest, and thus satisfied all the objects of the law. A custom, not less efficacious, prevailed in the city of London, and in the borough which he had the honour to represent. In both these places, as also in many others, the wife appeared before the mayor, and privately expressing to him her voluntary concurrence, a valid transfer was effected, at a nominal expense, and in a way strikingly simple and complete. Why, he would ask, could not this course be adopted and embodied in the present bill? He was far from thinking unkindly of the learned gentleman; but he really thought he had fallen into the vulgar and prejudicial error, that, to make a perfect statesman, he must give birth to a bill, it mattered not how short or how crude. This prolific and prodigal spirit was the bane of modern legislation, and that man was the greatest friend of his country, and would eventually earn the most solid and lasting praise, who should curtail and prune down our Statute-book, by rendering our laws intelligible and few. For these reasons, and many others that might be urged, he trusted the learned member would leave the subject in the hands of the right hon. Secretary for the Home Department, who had promised, at no distant period, to take all the laws touching real estates under his consideration, and, by subjecting them to the revision of a commission composed of competent persons, increase the enviable load of gratitude which he had, by his amended criminal code, already laid on the country.

Mr. Bernal

said, he should be very sorry if the hon. and learned gentleman abandoned this bill, as he was persuaded that it would be very useful. On the one hand, it went to regulate matters of dower; and, on the other, proceedings in writs of right. In both these cases, its provisions would tend to save much needless expense, especially with respect to the antiquated forms of writ of right, which were so very tedious in their nature, and ought to be abolished. It was little less than ridiculous to see such things existing in the year 1827; and he thought they were such as required the attention of the right hon. Secretary, who had done so much, and so well, in the reform of the other part of our law. As the law at present stood, a man who possessed real property, and was anxious to dispose of it by will, could not do so, unless his will was witnessed by three persons. Such were the restrictions upon the disposition of his freehold property, even though it should be ever so small; while, on the other hand, if the same person was possessed of 10,000l. in the funds, or of 15,000l. in customary or copyhold property, he might dispose of it without having one witness to his will. Why was this difference made? It seemed to him, that no cause could be assigned for it. It was positively disgraceful, that in this country, and at this time, the laws in which all persons had so vital an interest, should be in so confused a state. No man could now transfer his property without encumbering himself with conveyances, and loading himself with stamp duties; nor could he stir a step in altering the nature of his title, without throwing on himself or his purchaser such a great expense, as nearly invalidated all the benefit they might expect to derive from the matter. The alteration of such legal grievances was a subject well worthy of the interference of the right hon. gentleman opposite, and he called on him no longer to defer the measure. Let him not fear any opposition that interest might create. He might, perhaps, think that be could not grapple with such difficulties. without first being assured of the support of the House. Upon that support, in such a cause, he might fairly calculate; since every gentleman was interested in removing these vexatious restrictions upon his control over his own property. However, he was well aware of the difficulties that the proposers of any reforms in this matter would have to encounter; and felt convinced that, whenever they did go into the subject, they must be prepared with arms and weapons, and they must expect a painful warfare of principle against itself; but let the right hon. gentleman attempt it, and the House would carry him through. It was perfectly true, that there were in the legal profession some men as high and honourable in their feelings as any in the country, but there were also men in it who lived on the existence of its abuses, and who would use every effort to maintain them. But the opposition of such men ought not to be feared. It was manifest the abuses did exist, and the sooner they were put down the better. He called upon the right hon. gentleman to say, whether or not it was his intention to bring the matter under the notice of parliament.

Mr. Secretary Peel

admitted, that he had intimated such an intention, and had used, in the discussion on the Chancery bill, some expressions indicative of his opinion as to the necessity of an alteration in the forms restricting the transfer of real property. That opinion he had not abandoned, but at the same time he could not undertake the adjustment of a question of so much importance. Of this he was convinced, that those who were most willing to see a reform of the laws would, of all things, not wish any measure to be prema- turely proposed. Whatever was done, the most cautious, and indeed the most severe, inquiry ought to precede it. However, he must take that opportunity of saying, that he did not agree with the hon. member for Rochester, as to the difficulties that must be expected from the opposition of interested individuals. He feared no such difficulties; and, indeed, he did not expect them. On the contrary, he had received offers of assistance from some of the most eminent men in the profession. He might be permitted to mention the name of Mr. Butler, who had made an offer of that kind. Besides that gentleman, there were others who had made similar offers, and who were now engaged in devising some plan for the reform of our civil laws. He was sorry to say, that from having been recently overwhelmed with business, he had had but little time to consider the matter. Indeed, when the subject should be brought forward, he thought he should best consult the advantage of the public, by proposing to devolve the preliminary inquiries upon a commission, to be specially appointed for that purpose; since he was convinced that the inquiry was of such a nature that it could not safely be intrusted to one individual. He should, therefore, consider it best to refer it to a commission, to be assisted in their inquiries by gentlemen conversant with the subject. Whether those gentlemen gave their services gratuitously or not would be a matter of little importance: though, if they aided the commission by their labours, he thought they ought to be allowed some remuneration. That some such inquiry as to the present modes of transferring real property, should precede any legislative measure on the subject, he had no doubt; and the question was one to which he was disposed to give the fullest consideration.

Dr. Lushington

congratulated the House and the country on the prospect of their obtaining some amelioration is the practice of transferring real property. He thought there was no subject that required a more close or accurate investigation. The proceedings that were at present necessary to create a title in any person, or to transfer that title from himself to another, were productive of infinite expense at the moment, and of infinite litigation afterwards. As a proof of the enormous expense attendant upon the present practice, he might mention, that in one instance an abstract of a title laid before him consisted of no fewer than eight hundred sheets. That circumstance, however, reflected no discredit upon the solicitor from whose office it was issued, and who was one of the most honourable men in the profession. The truth was, that from the very technical manner in which titles were now prepared, that extreme length was rendered unavoidable; for, unless the abstract had been prepared in that manner, no person could have proceeded to sell the estate, nor would any conveyancer have sanctioned the purchase of it. He happened himself to be concerned in the purchase of property sold under an act of parliament; and, the respectable conveyancer employed, felt it his duty to object to the title, under the very act which he had himself framed, and it had cost a hundred guineas to have the doubt as to that title removed. Now, he thought that when such difficulties attended the purchase of property, and the establishments of titles, it was high time for the legislature to interfere. But their first step should be, to ascertain the nature and extent of the evil, and then, in devising a remedy, care should be taken that other evils were not let in, as great as those which it was intended to remove. He was glad that the subject was likely to be placed in such excellent hands; and he believed that the right hon. gentleman would give a greater boon to the landed proprietors in giving them the means of transferring their property with a clear and secure title, and without those expensive processes which were now necessary, than he would do by removing from them the whole amount of the poor-rates. Let him, then, proceed to the task, and so frame the laws relating to the transfer of real property, that there should be no other restrictions than those which were absolutely necessary to make the title of the purchase clear and secure, without embarrassing parties with the present expensive mode of proceeding.

Mr. Ferguson

said, that as this bill involved the vital principles of every species of landed property in the country, the House ought to proceed in it with every degree of caution. If a commission should be appointed to inquire into the state of the laws affecting real property, he trusted that the hon. and learned gentleman who had originated this bill would be appointed a member of it. He thought the country was greatly indebted to Mr. Humphries, for the excellent work which he had written upon the subject, and that several of his suggestions deserved serious consideration. He hoped that the learned member would not press his bill on the House at present, but would leave the matter in the hands of the right hon. Secretary, who had expressed his willingness to have this portion of the law of the country amended.

The Attorney-General

said, he did not object to the abolition of the circuitous forms which at present attended the transfer of real property. He admitted that the existing law might be amended, but he must remind the House, that the greatest caution ought to be observed in any attempts which they might make to amend it. Whilst they were simplifying forms, and putting an end to the unmerciful consumption of parchment which now took place, they must take care that they did not injure the vital rules and principles of law. He was ready and willing to lend his humble assistance towards the improvement of the formal and instrumental modes of conveyancing.

Mr. Peel

repeated, that he did not mean to pledge himself to the appointment of a commission. He wished the inquiry into this branch of the law of England, whenever it took place, to be conducted by persons whose experience would carry with it a warrant to the public, that any measures which they might propose would be judicious. He pledged himself that the subject should shortly be taken into consideration, and that no measure should be taken upon it without its undergoing the minutest inquiry.

Mr. Shadwell

said, he would gladly give his assistance to such a commission as the right hon. Secretary had spoken of; but as some time would necessarily occur before the recommendations of that commission could be carried into execution, he thought that his bill ought to be in operation during the interval. It appeared to him to be the more rational plan to remove, as soon as possible, a portion of an evil, the existence of which was universally acknowledged, than to suffer it to continue with unabated force. He was therefore of opinion, that even supposing that this bill afforded but a partial remedy, more good would be done by permitting it to pass now, than by postponing it to an indefinite period.

The bill was read a second time.