HC Deb 02 June 1862 vol 167 cc238-61

Order for Second Reading read.


said, he had to present a petition from attorneys, solicitors, and proctors, praying that it might not be passed in its present shape, but that it be amended, so as to give effect to the recommendations of the Registration Commissioners of 1854 for establishing a system of registration of titles to land.


said, that the importance of the subject to which the Bill referred was universally admitted, and it was no longer incumbent upon him to demonstrate the utility of a measure which would give certainty and security of title, which would aim at perpetuating those advantages, and which would simplify and facilitate the transfer of real property. The House and the country were fully impressed with the magnitude of the evils which undoubtedly existed under the present system. Those evils might be stated in a few words. Under a complicated system of real property law which had grown up in this country, every vendor was under the necessity of deducing from a great variety of instruments a title which to be safe could not be for less than sixty years. The deeds were first examined by his solicitor, and the title perfected. An abstract was then delivered to the purchaser, and some practised conveyancer, was employed to see what possible holes and flaws could be found. The same process was gone through every time any fragment of the property was sold, and the House could easily understand that the expense entailed was considerable. It was true that a purchaser might now and then, be found who would dispense with the investigation, but it was a common saying in the Court of Chancery that a "willing purchaser" meant an unlimited amount of litigation. The great points which in all the Bills which had come before the House had been aimed at as remedying these evils were two—first, to find some means by which a title once established should be deemed good for ever; second, to make such a record of the title, first ascertained and granted either absolutely or subject to certain qualifications, as should for the future facilitate its transfer, give certainty to dealings with it, and preserve it in a position of safety, certainty, and security. It was not difficult to judge of the practi- cability of the first of the two measures, because they had some experience to guide them. In Ireland the experiment of giving Parliamentary titles, after due investigation, through the medium of a court of law, had been tried on a large scale, and with signal success. Among the great obligations which the country owed to the name of Romilly, not the least was the introduction by the Master of the Rolls of a measure which had been attended with such important beneficial consequences as the Encumbered Estates Act. The application of that Act was originally limited to estates subject to encumbrances, but it had since been extended to cases where no sale was necessary, and where no encumbrances existed. That was done by the Act of 1858, which established the Landed Estates Court; which was intended to be a permanent institution, and was empowered to give a Parliamentary title in respect of the properties passing through it. He believed Parliament and the country had every reason to be well satisfied with that course of legislation, and, as far as the present Bill went in the same direction, he presumed the House would be prepared to accept it. A noble Lord (Lord Cranworth) had introduced in another place the Bill which stood next on the paper. The provisions of that Bill were so entirely satisfactory that the Government was ready to adopt them, either as a separate measure or by incorporating them with the present Bill, according to the wish of the House. The Commissioners of 1854 recommended that titles granted under their plan should be guaranteed by Parliament, and that a fee fund should he formed as a source of compensation to persons who might be unjustly deprived of their estates. No provision for compensation was contained in the present Bill; but it was for the House to consider whether it should or should not be inserted. It was for the Lower House to initiate a proposal of that kind, which could not have been made by the Lords with much chance of acceptance by hon. Members. There was no reason, as far as he could judge, to apprehend that any serious pecuniary liability would be fastened on the country by a provision for compensation, so that a very small percentage on the value of estates which receive the benefit of the Act would be sufficient to meet all claims which were likely to arise on that score. Under the clauses of a similar kind in the Railway Acts, the companies had not been called upon to pay any serious sums; and under the Irish Encumbered Estates Act, although about a third of the land of Ireland had passed through the Court, compensation had been claimed only in two cases: in one case to the amount of about £3,000; and in the other by a person who was the owner of a fee-simple estate, upon which there was a lease of 400 or 500 years to run. That claim was compromised for £20. The next point was the record of the title. It had been constantly asserted that there was no reason why the transfer of land should not be made as simple and easy as the transfer of stocks, shares, or ships. There was, however, a substantial difference between land and other kinds of property, which would always prevent the former from being transferred so readily and simply as other investments. Stocks and shares had no special identity of their own, but were, to a certain extent, abstractions. They represented a fixed unity, consisting of an aliquot share of a sum which was susceptible of arithmetical measurement. One sum of £100, or one share, was just as good as another £100, or another share in the same stock or company. But land was a reality, and not an abstraction—it was valuable for itself, as well as for the property it represented. The case of ships might at first sight seem more analogous; but in reality it also was different. The law divided the value of each ship into sixty-four parts, any one of which might be transferred upon the registry. And then, although there was this or that ship in question, each proprietor held only a certain share of the entire value, and could not assume physical possession of any particular part of the vessel. In endeavouring to facilitate the transfer of land, it was not intended to diminish the value of the ownership to the owners, or to prevent them from having the same means of making provision for their families, of settling their estates, or dealing with them according to their will and pleasure, which they now by law enjoyed. Bearing that principle in mind, he would remind the House of what had already taken place to clear the way for a measure on the subject. In the year 1853 certain Bills were received from the House of Lords providing for a system of registration of assurances. Those Bills were referred to a Select Committee, which recommended that they should not be proceeded with, but that a Royal Com- mission should be issued to inquire into the subject. Before that Committee an eminent and able solicitor, Mr. Cookson, developed a scheme which was in substance afterwards approved by the Royal Commission, and in principle adopted by the hon. and learned Member for Belfast (Sir Hugh Cairns) in the Bill which he introduced into Parliament in the year 1859. Mr. Cookson's idea was to distinguish between land as an article of sale and as the subject of beneficial ownership; and he thought that in registering or recording the title it was inexpedient to look beyond the aspect of the land regarded simply as a commodity or article of sale. In accordance with that idea, he proposed that the register should be only of fee-simple interests, or of interests equivalent to the fee-simple, which would enable the land to be brought into the market. That view appeared to him (the Solicitor General) to be rather arbitrary. Mortgages, for example, whilst they were an accessory to the ownership of land, entered also into its quality considered as a subject of sale and purchase. At the same time, Mr. Cookson thought there might also be a subsidiary register of encumbrances and leases. He was asked whether he would include leases for lives as well as for years? Of course he would. Then what did he say to a common estate for life? Was that to be registered? That question seemed to puzzle him at first, and then he said he regarded that as a lease for life. But it subsequently appeared that that was not his view, and he recommended the register of a fictitious ownership to be created in cases where there was not really a fee-simple in possession—that the fictitious owner should be registered, and that other interests should be secured by cautions and caveats, and notices of that kind. That scheme was adopted by the Commission, of which he would remark, that the right hon. and learned Member for the University of Cambridge was a distinguished member. The present Bill did not in all respects adhere to the recommendations of that Commission, but, in his opinion, proposed a great advance upon the plan sanctioned by it. The Commission, having considered and rejected the proposal for the establishment of a register of assurances—that was, of deeds or instruments as distinguished from the result of those instruments, constituting the title—recommended in substance the adoption of Mr. Cookson's plan, according to which, where there was not an estate equivalent to a fee-simple, persons were to be appointed either by a court, under settlement, or in some other way, who would appear upon the register as the formal owners, having the actual right to transfer, but having in many, perhaps in most cases, no real or beneficial interest whatever in the land. To that plan there were many objections. The principle one was that it would not attain that which ought to be the real object of legislation of this kind. It would not give to those who were truly and really the owners of landed property a simple and effectual means of ascertaining and securing upon the register their titles, so that in all their dealings with purchasers they might be able to refer to that register as superseding the parchment title, as rendering unnecessary the making out of abstracts in the old way, and as containing the authentic record of the title as it actually existed. In the Bill of which he was proposing the second reading that defect had been remedied; its object was to represent the true title, and to make all the real estates and interests in land, and no fictions, the subjects of the record—of the registry, not of assurances, but of the titles which they gave. But, according to the plan recommended by the Commissioners, if any considerable lapse of time took place between one settlement and another, there would be a series of ownerships off the register, not ascertained or authenticated at all, and, in fact, no security or information about any one of them could be given by the register. He remembered a case which came on in the House of Lords, in which a gentleman bought an estate, the title deeds were handed to him, and he was in possession of it for a considerable length of time; but it afterwards appeared that another person had got a mortgage upon it, and that would be the case if the register did not disclose the real state of the title. But that was not all. The enormous dangers to landed property, if that plan were introduced without the most cogent and effectual safeguards, made it necessary for the Commissioners to recommend that there should be a vast system of checks, caveats, and cautions, by which any person having a beneficial interest might, without disclosing that interest or giving any security, but merely by entering his name, prevent any dealings by the legal owners without notice to him. The result was, that when they had got an estate, they with one hand put on the register an apparent title, and with the other hand closed up the register with an infinite number of inhibitions, caveats, and cautions, which must be got rid of before any dealings with it could take place. In order to avoid that difficulty, to record every one's interest was, he ventured to say, the only practicable system. Indeed, the Commissioners themselves felt the difficulty which their proposal involved, because they said that beneficial interests in land not amounting to the fee might he usefully registered, but that such a registry ought not to he mixed up with and form part of the principal register of titles. They said there should be what they called a "subsidiary" registry of other interests in land. When the Commissioners were asked whether a registry of assurances was desirable, they justly pointed out the defects and inconveniences of the system. But a registry of title presenting all the parts of that title, had, as far as he could see, nothing in common with a registry of assurances, which alone was considered objectionable. Though gratefully availing themselves, therefore, of the labours of the Commissioners, the supporters of the present measure did not think it inconsistent not to adopt their proposals in their entirety. "They proposed to make the scheme still more perfect, and to attempt to remove some of the difficulties which stood in their way. It was intended that purchasers might safely trust whatever appeared on the register under the Bill. When an indefeasible title was to be obtained, a very strict inquiry was to be made; and an opportunity would he given, in the various stages of that inquiry, for all parties interested in the estate to come forward. Due notice would be given to them. The statement of title was to be drawn up as shortly and concisely as possible. The effect of registration would then be to give, in favour of any subsequent purchaser for valuable consideration, an indefeasible title, subject only to the reservations and conditions which might be mentioned on the register. Nothing could be more simple and sure than a transfer under the system. A certificate was to be given of the title on the register. That certificate could be brought into the market, and it would be conclusive evidence to every one that the party to whom it had been granted was entitled to the estate and interest in the property therein described, subject only to such dealings as might have taken place after the date to which that certificate referred. It would be in the power of the owner of property to send the certificate up to town and have an entry made on it of any dealings subsequent to its date. Deaths, births, marriage settlements, and other such dealings with the estate would be entered. The Bill provided for a short and simple form of transfer. In ordinary cases its effect would be to do away with the entire of the complicated machinery then necessary, while, in cases which were not altogether simple, it would do away with much of that machinery. He believed, that if the measure were adopted, it would be attended with all the advantages that had been previously proposed, and with some peculiarly its own, amongst which was this, that it stated the title according to its real truth, and entirely avoided fictions. It had been supposed that there were provisions in the Bill which introduced that kind of registry of assurances to which objection had been made. That argument was, however, founded on a misconception. He trusted that the House would see that the opportunity so long desired then presented itself of simplifying the title to real estates, and of relieving landed proprietors from that great and constant source of expense to which its transfer was subject. In the evidence taken by the Encumbered Estates Commissioners, a unanimous opinion was expressed that the operation of the Encumbered Estates Act in Ireland had been attended by a vast augmentation in the value of property, and that it was desirable to extend many of the same facilities to this country. If the House should think fit to pass this Bill, it would be a great satisfaction to those who had introduced it. There had been many labourers in that field of reform, so that no party could exclusively lay claim to the laurels of passing the Bill. Many eminent and learned men, both in and out of Parliament, had contributed to add to a due knowledge of the subject. Several ingenious plans had been propounded before the Royal Commission of 1854, and the Commissioners themselves had given most valuable assistance to the improvement of the law. His hon. and learned Friend opposite (Sir H. Cairns) had largely contributed to the same end. None of these authorities had, however, claimed to have arrived at the best solution of the difficulty, and he could not but think, that if they could disengage their minds from their natural bias in favour of their own plans, they would perceive that the present measure was preferable to any that had been yet proposed. At all events, the Bill, having been proposed by the Lord Chancellor in the other House, had undergone full inquiry before a Select Committee, composed of landowners, who understood what was wanted as well as any lawyers, and some of the most eminent legal Members of the House of Peers. A majority of that Committee were of opinion that the plan now proposed promised better than that recommended by the Commissioners. It was not alone the landed interest that would be benefited by the passing of this measure, because whatever simplified the commerce in land, and gave additional safety and security to the possessors of landed property, must tend to the stability of all property, and every interest in the country. He would only say, in conclusion, that it would he a great satisfaction to the Government if they were enabled to settle this important question during the present Session.

Moved, "That the Bill be now read the second time."


said, he was so anxious to see the first step taken for the amendment of the law of real property, and he entertained so lively a recollection of the candid assistance which he received from the noble and learned Lord now on the Woolsack when he, as Solicitor General, introduced a measure on the subject, that he should be willing to place in abeyance his own judgment in regard to the details of the present measure. In making, therefore, a few observations, he trusted his hon. and learned Friend would accept them in the spirit in which they were offered, because, although he differed in regard to one or two of the principles on which the Bill was framed, he should be sorry to give any opposition to the second reading, or to offer any delay or obstruction to the progress of the Bill. he would then submit to the House and the Government the two principal objections he had to urge to the measure. Upon one point he had already been anticipated by the hon. and learned Solicitor General, who felt he had to deal with the difficulty that the Bill was in one respect in direct antagonism to the Royal Commission, of which the right, hon. Gentleman in the chair was one of the most prominent members. That Commission, which reported in 1854, considered the question of a registry of assurances, which was sometimes called a registry of deeds. They pointed out that great and insurmountable objections were felt to any system for the registration of deeds. His hon. and learned Friend was so conscious that public opinion was opposed to such a plan, that he had endeavoured to show that the Bill did not contain a system of registration of deeds. He would, however, defy any one, possessing even a hundred-fold the ingenuity of his hon. and learned Friend, to satisfy any man of plain understanding that there was no registration of deeds in the Bill. He agreed with the principle of the Bill up to the first registration of indefeasible titles. The model of the Irish Act had been followed up to that point, and no better plan could be devised. But what was to happen afterwards? Everything affecting the land—wills, mortgages, settlements, sales, and deposits—was to be put on the register; but what was to be done with all the instruments by which the property was thus affected? They were all to be sent to the registrar, cither put into a printed form by the parties, or, if not, by order of the registrar at their expense, and the registrar was to keep them. Thus they got publicity; everybody, as far as the registration went, was obliged to make the dealings with the land public. That was his first objection to the plan, and it was a serious objection. The second point was even more serious. What was the registrar to do with the deeds when he got them? The hon. and learned Gentleman had spoken with some complacency of the certificate of the title. That certificate was to be a synopsis of the title, but bow was the synopsis to be prepared? The registrar himself was to prepare the précis, or summary of the title, and put it on the register. The question then naturally arose whether what the registrar was empowered and directed to do was to be conclusive as to the effect of the deed on the title or not? He did not know to which alternative he looked with most alarm. If it was conclusive, it must regulate to all time the rights of parties who had not been before him, and had had no opportunity of being heard. If it was not conclusive, which he understood was the alternative they were to regard as practically the effect of the measure, they had gained nothing whatever. They had gained simply a certificate of title, which would still impose on every one who accepted it the duty of consulting the original deeds to get at the first title. And that was not all. The Bill declared that sill deeds should be registered. He looked with some curiosity and anxiety to know what would be the consequence of that injunction not being obeyed. The House would be surprised to learn, that, as he read the Bill, there was no provision whatever as to what the consequences were to be, one way or other, of the non-registration of the deeds.


said, that in the case of a purchaser such a deed would be as if it had not been executed, but it would be binding as between the parties if the lands were not sold.


said, that if so, it ought to be made to appear by the Bill that an unregistered deed was to be operative against those who had notice of it, and inoperative against those who had no notice of it. In every system of registration of deeds all these matters were to be provided for; and till they were it was impossible to understand the hearing or effect of any system. He would say no more on that point than that all the provisions of the Bill were in direct antagonism to the Report of the Commission. It would require very much more argument and consideration than the subject had yet received to convince the House that the Report of a Commission on which they had once acted was entirely misconceived, and that in place of that which it recommended they were to have, not only a registration, but a most imperfect registration of deeds. His objections were not made to oppose the second reading of the Bill; but he hoped the Government would consent to large amendments on the next stage. It was a trite observation that a bad system well administered might be preferable to a good system badly administered. And his next objection was, that whether the proposed system proved bad or good depended entirely on the officers by whom it was administered. What did the Bill say on that point? It proposed to appoint a registrar, who was to be a barrister of a certain number of years' standing. He would have brought before him questions of the greatest difficulty, involving the nicest points of equity that could ever be presented to a Court to decide. Yet, on looking at the clauses, he found that the registrar himself was to be the sole judge, decider, and arbiter as to whether he was to adjudicate on anything or not. He might say he would decide all the questions before him, or he might resolve to decide nothing, and refer all to the Court of Chancery. There was nothing in the Bill defining what matters he should decide. Whoever the holder of the office might be, it was probable he would take good care not to decide anything for himself. He might, certainly, be some sanguine young man who would "rush in" where others would scarce venture "to tread." But the House ought to ask this question,—If the registrar was competent to decide those intricate questions at all, why should it not be made his absolute duty to decide them? If he was not competent to decide any of them, why was he allowed to decide one. On the other hand, as he was to have the option of referring any case to another Court, they might assume he might not be competent to decide them himself. Then why should he be trusted to decide any case at all? That was a point on which the House would require to be satisfied, because it went to the working of the Bill. Nothing could bring greater discredit on an amendment of the law than that they should rashly and inconsiderately appoint an officer of that kind kind, who would not be a judge, with all the responsibility, experience, learning, and weight of authority a judge ought to have. He wished to go one step further, and to ask the House to consider this point also. Suppose the registrar said, as he ventured to think he would say in a majority of cases, "I will not decide this difficult question myself. I will send it to the Court of Chancery, and leave the Court of Chancery to decide." Was that a species of business which could be transacted by the Court of Chancery? The Equity Judges had their hands perfectly full of business. They certainly had no leisure time to sit down and peruse abstracts of title; and their business as Judges was very different in its character and details from the business of one who, without any assistance, sat down to investigate a title and to pronounce upon it. He therefore ventured to think there would be a difficulty in want of time, and a difficulty in throwing upon the Equity Judges business which was foreign to their habits and training. But then he observed a clause under which an indefinite number of chief clerks might be appointed, and he suspected that subordinate officers would be appointed to work out the business created by the Bill. If anything worse could be de- vised than giving the registrar the absolute right to decide important questions, it was accompanying it with a power for the registrar to hand over those cases to the Court of Chancery, there to be disposed of by the chief clerks or other subordinate officers. The only chance of presenting a measure which would work well, and induce owners of land to bring in their titles to he examined, was to appoint some person who would command respect and confidence, and he did not believe that the object could be attained by the appointment of any one of less weight, experience, and authority than a judge of the land. Ireland was taken as an exemplar, and in the case of the Landed Estates Court the House had most wisely come to the conclusion to appoint persons with the rank and responsibility of judges. He thought it would be very false economy to appoint a person registrar at a salary of £2,500 a year who would not command the power and authority which attached to the holders of judicial office. The multiplication of judges was said to be an evil, but a far greater evil was the multiplication of a species of officer, of whom there were too many already, sometimes called registrars and sometimes called commissioners, with powers which very closely resembled the powers of judges, without their weight and responsibility. He would not say a word upon the details of the Bill, but he trusted the Government would consider the points to which he had referred more fully than they had yet done. It was evident that there were matters in the Bill which could not be satisfactorily discussed in Committee of the Whole House, and he trusted the Government would consent, therefore, to refer the Bill to a Select Committee. He should be glad to see that course taken, not from any hostility to the Bill, or from any wish to delay it, but from an honest and anxious desire, if time would permit, to pass it into law in the present Session, after it had received the Amendments and alterations which it would receive in Select Committee. He was not deterred from advocating that course by the statement that the Bill had already been before a Select Committee of the other House, because he believed attention had there been principally bestowed upon abstract principles, and not upon the details of the measure. But whether that were so or not, the House of Commons had its own duty to perform, and he thought they would be careful to perform it; more especially when they found that a portion of the Bill was in opposition to the Report of the Commissioners, and to what only a few years ago that House thought fit to approve.


said, he was perfectly prepared to consider the Bill either in a Select Committee, or in Committee of the Whole House, and he retained the opinion which he expressed some years ago, that the greatest of all misfortunes would be to pass a bad measure, because a bad measure, by its certain failure, would do more harm than good. They also had the authority of Lord West-bury, that an imperfect measure would be more mischievous than useful, and that by a combination of skill and courage they should deal with an intolerable evil undeterred by any superstitious terror of the alterations which might be required. In the words of Pope— Thus Bethel spoke, who always speaks his thought, And always thinks the very thing he ought. He had been a member of the Committee, and also the Commission referred to, and he could assure the House that the subject had been fully considered in all its bearings. As a landlord and a Chancery lawyer, he had had occasion to consider the subject before he was on the Commission, and therefore it was no new subject to him. Although he signed the Report, agreeing as he did with most of the recommendations, he differed from the Commissioners on four matters, in reference to three of which he ventured to sign a postscript to the Report, and those three matters had been under discussion this evening. In that postscript he stated that in his opinion there should be a land tribunal of high judicial authority, and not a mere registry office. The hon. and learned Gentleman who had just sat down (Sir Hugh Cairns), in his Bill of 1859, did provide a laud tribunal, but he also proposed a registry office, and in that he differed from him. The next point on which he differed from the Commissioners was in reference to land debentures, such as the right hon. and learned Member for Dublin University had since proposed, and which he trusted he should yet see established. The third matter on which he differed from the Commissioners was really important. It was with regard to caveats and subordinate registries. The Commissioners wished to impart to the land the utmost amount of transferability that was consistent with registered interests, and they also wished to give protection to un-; registered interests. It was exceedingly difficult to reconcile those objects with each other. Mr. Cookson, who was examined before the Commission, and who was afterwards a member of the Commission, proposed a system of caveats which was adopted by the Commission. He (Mr. V. Scully) did not approve of that part of the scheme. He thought, however, that official trustees might be appointed with advantage. Thus it might easily be provided, that the court should have power to enter, along with the registered owner, the name of one of its officers, as a precaution against undue transfer; or the court might have power to enter a special caveat, to be limited to particular facts, on their being proved. The registering of several persons as official trustees would be an almost perfect protection in the majority of cases. He thought it possible to devise a Bill which would give immediate and safe transferability, without at all contravening the Report of August, 1853, or adopting any system for the registration of assurances. He wished to see a state of law by which the owner in fee should be able to transfer his title without more delay than was now experienced in transferring stock, and with no more proportionate expense. He hoped that whatever alterations in the details might be found necessary, the principle of this Bill would be adopted by the House, and when adopted its benefits would be extended to Ireland as well as to England.


said, he was far from intending to oppose the Second Reading of the Bill, which related to matters of deep interest to all who were concerned in land. The subject was also one which had long been an object of attention to lawyers and others who took an interest in the law of landed property, and he rejoiced to see—if, indeed, they might be permitted to say they could see—a hope that through the introduction of this Bill, at least a step might be taken towards attaining the object in view. But there were so many objections to the Bill, that until it had undergone the revision of a Select Committee, or at least until it had been considered and thoroughly investigated in all its parts by a Committee of the Whole House, it would be impossible he could assent even to the substance of the measure. In order to appreciate the provisions of this Bill, or, indeed, accurately to understand them, it was necessary to consider what was the great object they had in view in a measure of this kind; and that object, shortly and simply stated, he took to be this: —To enable any one possessed of land in fee simple or by any other freehold tenure, when once he had established his title to that land, to obtain a certificate from some competent authority which should give to him an indefeasible title to that land, and which should record that title, so that it might protect and secure the conveyance of that land in all time to come. As far as the provisions of the Bill were at all calculated to effect that object he entirely approved them; but, at the same time, he found in it much which raised in his mind considerable doubts as to the efficiency of the measure. In order to secure an indefeasible title to land, that title must, in the first instance, be submitted to some tribunal of undoubted competence; some authority whose certificate would give confidence not only to the owners but to all who might have occasion to deal with the land. But, instead of the title being referred to such an authority, it was to be referred to a registrar, an officer to be created under the Bill, and with regard to whom it would be impossible to say whether his certificate was to be considered final or of no effect whatever. But if in the first instance the title were to be submitted to a competent tribunal—whether that tribunal should be established under the Bill, or whether it was to be the Court of Chancery—and no Bill ought to pass that House which would not provide such a tribunal—then, upon the tribunal being satisfied that the title was such as the Court of Chancery would compel an unwilling purchaser to adopt, that title might safely be pronounced indefeasible, and a certificate might be granted which would attach to the land, and constitute, as long as the land remained, a simple and indefeasible security All the owner would have to do in any dealings with the land would be to produce that certificate, identify it with the land, and then the land might be transferred as simply as stock. Looking to the machinery of the Bill, it appeared to him radically (but he hoped not incurably) defective, inasmuch as it totally rejected the system of caveats. Without the introduction of a system of caveats—without providing that any person who had an interest in the land, or a charge upon it, should have power to enter a caveat, and when the title to the land should have been established, should be bound to enter a caveat, if a charge existed, to protect that charge—the Bill would not work. Under such a system the land could not be conveyed away without the concurrence of those who had entered caveats; but if once that concurrence was obtained, the transfer would be complete. If the Bill, as far as it related to title to land in fee simple, could be so amended in Committee as to carry into effect the objects which he had explained, it would, if it went no further, confer a great benefit on the country. It was in the hope that the Bill would be so amended that he consented to the second reading. But when he came to the second part of the Bill he confessed to a feeling of great disappointment. It was perfectly impossible not to see that the provisions for the registration of conveyances clogged and encumbered what would be otherwise salutary and beneficial regulations. Every one who had a charge or encumbrance on the land was bound to register it. But if all the deeds that affected the title were to be registered, of what avail was the Bill in conferring a title. For this difficulty arose — either that the registration was perfectly useless, and that every one who had dealings with the land must satisfy himself that all the deeds taken together constituted a sufficient title, or he must rely upon the certificate of the registrar, and then advance his money. But the Bill did not provide, or pretend to provide, that the certificate of that officer should be conclusive. [The SOLICITOR GENERAL: Yes it does, distinctly.] Then it was intended to confer upon that officer a power so extraordinary that the House of Commons could never consent to accept the Bill. Was it to be pretended that a number of deeds, constituting a title which might perplex even the most able lawyer— which, when before a court of law, the judges themselves might differ about—was it to be supposed that questions of such a nature should be left to the absolute decision of a registrar appointed at a salary of £2,000 or £2,500 a year? He trusted that when they went into Committee, his hon. and learned Friend would so amend the Bill as to present the question simply and distinctly how the owners of an estate in fee might establish a title, and obtain a certificate that would stamp indefeasibility upon the property. If the Bill went no further, its effect upon the landed property of the country would be to add considerably to its pecuniary value. Of all the schemes and plans bearing on the question which had been submitted to either House of Parliament during the last twenty or thirty years, and had undergone the consideration of Committees or Commissions, he must say that he had never seen any so complicated and yet so unsatisfactory and inefficient in all its material features as the Bill his hon. and learned Friend had laid upon the table. But, if it was possible to introduce clauses making the measure subsidiary to the great object of establishing and conferring an indefeasible title to land, to the Bill in that shape he would give his support.


said, he had always been a strenuous advocate for facilitating the transfer of land, and any practical measure introduced with that object would command his support. But he by no means agreed in opinion with his noble and learned Friend the Lord Chancellor, who believed that land could be made as easily transferable as stock, ships, or shares in public companies. If the Bill were not to become a dead letter, its operation must be compulsory; for it seemed to him irrational that patches here and there should be registered, while the great bulk of the land remained in its present condition. The Bill provided for the appointment of a single registrar, and an indefinite number of assistant registrars or clerks. But what were all the actions or Chancery suits in England compared to the number of titles which would have to be registered? Let any one take a walk from Oxford Street to Whitechapel, and see how many titles he would pass on the way. The great bulk of the landed property was either settled or else encumbered. In neither case could there well be a register of plain fee-simple titles. It was said that a man ought never to prophesy upon a subject with which he was not well acquainted, hut four years ago he ventured to prophesy, with regard to the Irish Landed Estates Court, that if its powers to grant declarations of title were not compulsory, they would be practically useless. He had received a letter from a gentleman, stating that since November,] 858, but nineteen declarations of title were made by that Court, and one refused. Though the Bill would entail considerable expense in its working, he would not oppose its further progress, but he felt the same objection to it that he had done to the Bill proposed in 1859 by his hon. and learned Friend the Member for Belfast. Society was divided into two classes— those who had good titles, and those who had not. Any man with a good title would scarcely incur the trouble and expense of submitting it to a registrar, with the chance of having a slur cast upon it in the course of the investigation. Any one, on the other hand, conscious of not having a good title, would hardly submit his deeds to inspection. Under a voluntary system, therefore, what titles remained to be registered? The Bill was based upon a theory which, he believed, could not be carried into practical effect, and he doubted whether it was worth while to incur the expense necessarily involved in so unpromising an experiment. There were, undoubtedly, evils connected with the transfer of land which ought to be remedied, but those evils could not be satisfactorily dealt with otherwise than by a general measure embracing all the land of the country. It was true that in some of the colonies a simple system was in force; but it must be remembered that the colonies began with new titles, while the land in this country was complicated with many and various charges and trusts. At the same time, although he could not think that this Bill would meet the difficulties which did exist, if the majority of the House should think it was worth while to make the experiment, he should offer no opposition. He could not see how, under this Bill, the particular parcels of land that were dealt with could be identified; and unless registration were compulsory, the system could not work. Land could not be dealt with in the same way as stock or shares, so long as there was equitable as well as legal ownership. The elements of real and personal property were essentially different; and in his opinion the alienation of land must always remain in England a matter of difficulty, unless the circumstances of the country greatly altered. There was a great disposition, especially in the higher branches of the profession, to simplify the law; and to a great extent the transfer of the laud had been simplified. Evils attending the transfer of land no doubt existed; but they had in fact been greatly exaggerated. He (Mr. Malins) did not believe in the representations which were made about the repeated investigations of title. Such as the evils were, however, he should be glad to see them remedied; but he believed they would be just as great after the Bill had passed as before. He did not think the Bill was worthy of any support; but if his hon. and learned Friend (the Solicitor General), to whose opinion in the matter he would defer as readily as to that of any man, had really satisfied himself that the Bill would be a practical working measure, he would rather see the expense which the measure would occasion incurred than that the experiment should not be tried; and when its failure was demonstrated, it would be withdrawn. He would go further, and say that there was even some hope that the Bill might be the beginning of something which might result in a better measure. Still he agreed with the hon. and learned Member for Belfast, that the subject was not one that could be satisfactorily dealt with, by a Committee of the Whole House. Looking at the period of the Session, it would perhaps be impossible to get Members upon a Select Committee who could devote their attention to the subject at this time; but he thought that even at the expense of postponing any legislation for another year, it would be desirable to refer the subject to a Select Committee. However, he repeated that he had no intention of opposing the Bill if the House should think fit to pass it at once.


said, that the views of his hon. and learned Friend who had just sat down were, to say the least, rather singular. At the same time, there was no Member of the House whose opinion was better entitled to attention than that of his hon. and learned Friend on such a subject. He (the Attorney General) congratulated himself that in differing from his hon. and learned Friend he was in agreement with preceding speakers. Little or no reference had been made, before the last speech, to the evils which it was proposed by the Bill to remedy. His hon. and learned Friend had spoken lightly of those evils; but in that view the community at large did not agree. Although the details of the measure necessarily involved a considerable degree of technicality, the people of this country, likely to be affected by it as owners or lessees of land, had long been of opinion that the expense, the delay, the uncertainty attending the dealings with land, amounted to a great practical evil, which required removal, Then, was the plan propounded likely to effect a remedy for the evil, either complete, or as nearly complete as the nature of things permitted? He did not say that the measure was perfect, but he believed it was as well devised as persons of competent skill and judgment had been able to frame it under the circumstances. The hon. and learned Member for Wallingford, differing from the hon. Members who had preceded him, had expressed an opinion adverse to any measure of the kind which was optional and not compulsory. Not denying the existence of these evils, he thought, that not being made compulsory, the measure would be little resorted to, and that the expense of the machinery which it would set in motion would be thrown away. If that should prove to be the case, why, no very great amount of expense would be cast upon the country, because the staff, to commence with, would be neither numerous nor costly. If his view should turn out to be correct, and the measure should not prove acceptable to landowners, and the officers should be unemployed, people would soon say, "The scheme has failed, and the sooner we put an end to the expense the better." One branch of the hon. and learned Member's prophecy was fatal to the other. He thought the court would not be used, and he thought it would be a very great expense to the country. But if it were not used, it could not be a very great expense. But he (the Attorney General) dissented from the opinion, that, because not compulsory, the court would not be resorted to. There had long been growing up a preference for registered titles. The Encumbered Estates Act for Ireland, the principle of which had lately been extended to unencumbered estates in that country, although voluntary in its operation, had been very largely used. Among those who went into the market to purchase land, it would be found by experience that a preference for registered titles gradually arose; and as lands with such titles fetched a higher price, or admitted, at least, of easier transfer, even those who were at first adverse to registration came at length to avail themselves of it. The Bill introduced by the hon. and learned Member for Belfast in 1859 was voluntary, like the present measure. He had made no estimate of the cost of working this measure; but it would only require, at the outset at least, one registrar and one or two clerks to be appointed, and would be far more economical than the scheme of 1859. The measure had been subjected to much criti- cism, and it was only fair that its advantages should be properly made known. All who had spoken on the subject, with the exception of the hon. and learned Member for Wallingford (Mr. Malins), agreed that it was desirable to have a Parliamentary or an assured title, which should be unimpeachable from a certain day. The cardinal difference between this Bill, and that of his hon. and learned Friend the Member for Belfast (Sir Hugh Cairns) in 1859, was, that the former proposed that the register should show the true title, while the latter only provided for the registration of a mere formal and dry title. At the same time, exception was taken to the measure, that it would be a registration of assurances, and that that would not be submitted to by the landowners of England. But many of them had already submitted to it, the Bill having originated in the other House of Parliament, and having been considered and approved, not only by the Law Lords, but by other Peers, who, from their wealth and position, were eminently entitled to speak for the landed interest. Objection was also made to that portion of the Bill which required that all instruments executed at the time of register should be produced, and copies lodged with the registrar. In his (the Attorney General's) view, the leaving of authentic evidence with the registrar of the execution of deeds was essential. It was not sufficient to register the mere description of the deeds, but it would be most important that the title should be put beyond dispute by the deposit of verified copies of the deeds themselves. It might, in some cases, become the duty of the registrar to make reference to the deed itself, instead of to a mere description. Moreover, by such a deposit of copies they guarded against the inconveniences resulting from a loss of the originals. It frequently happened, that when persons were collaterally interested in property, and litigation was in progress, it was most difficult for certain parties to the litigation to obtain a copy of some fundamental deed. That inconvenience would undoubtedly be obviated by the lodging of an official copy with the registrar. An objection had also been made to the officer by whom the investigation of the title was to be made before it was put upon the register. On that point a considerable difference existed between the present Bill and that of 1859. The latter proposed to constitute a court, presided over by two Com- missioners, together with assistants; but the present Bill contained the simpler and far less costly arrangement of appointing a single registrar. The House would find that the title was, in the first instance, to be examined by the registrar; and if any question of doubt or debate arose, the matter might be referred to any judge of the Court of Chancery whom the Lord Chancellor might appoint. Except, therefore, that the officer was to be called a registrar, and that he was not to have so large a salary as a judge, he saw no practical difference between him and a judge, nor any reason to doubt that, subject to the appeal from his decision, a competent person might be very well obtained to fill this office. The objections made by the hon. and learned Member for Suffolk did not go to the entire rejection of the measure; but his hon. and learned Friend was somewhat severe in his objections, and hardly consistent. His hon. and learned Friend acknowledged that it would be desirable to obtain a Parliamentary title, but contended that this Bill contained no provision for the title obtained under this Bill being an indefeasible or assured title. A reference to the Bill itself would, he thought, dispose of that objection. But then, his hon. and learned Friend, changing his ground, complained that an instrument of such binding and conclusive efficacy should be allowed to proceed from the hand of the registrar. The one objection seemed to him a little inconsistent with the other. He could not but join in the hope that the Bill, having already received the able and careful consideration of a Select Committee of the other House, might be discussed, and he would even say critically examined, by hon. Members in Committee of the whole House; but that its passing during the present Session might not be imperilled by referring the measure to another Select Committee.


said, he did not rise to oppose the second reading of the Bill, but he was anxious to add his voice to that of his hon. and learned Friend in favour of referring it to a Select Committee. It was impossible to offer an objection to the second reading of a Bill brought in by the Government, the principle of which had been recommended by a Royal Commission appointed on the suggestion of a Committee of the House of Commons.

An hon. MEMBER here moved that the House be counted; but notice being taken that 40 hon. Members were present—


said, that the thinness of the attendance was a proof that the measure was not receiving the attention that its importance deserved. In consenting to the second reading, he desired to affirm no more than the desirableness of establishing a registry of titles. He was, however, anxious that the Government should refer the Bill to a Select Committee, because the form, manner, and details of the Bill could not be properly discussed in Committee of the Whole House, and because, even if they could, the discussion, to be effectual, would occupy a much longer time than before a Select Committee. A sufficient reason for referring the Bill to a Select Committee was, that its provisions widely differed from the recommendations of the Royal Commission. His hon. and learned Friend the Solicitor General could not but feel, that in defending the measure he had been arguing against the Report of the Royal Commission, which had the advantage of the assistance of the Speaker and two or three members of the present Government or individuals connected with it. Except in regard to the Lord Chancellor, he had not yet heard from any of the Commissioners that they had altered the opinion they expressed in their Report. The Commissioners had, in substance, pronounced a registry of assurances to be impracticable; and one of the main differences between the Bill and the Report of the Commissioners was, that the measure was, in effect, a registry of assurances. The Solicitor General had argued that it was not, but the Attorney General had justified it because it was.


denied that he admitted it to be a registry of assurances.


said, however that might be, the Bill was, nevertheless, both a registry of titles and a registry of assurances. That it was the latter was evident from the 79th clause, though nobody seriously insisted on establishing a registry of assurances, which was condemned by the Committee which sat in 1853, as well as by the Report of the Commission. He earnestly trusted that the Bill would be sent to a Select Committee. The more it approximated to the Report of the Commissioners, the greater probability there would be of its being acted on and becoming a practical and useful measure.


said, there were two points in the Bill that would require very serious consideration. The one was with reference to the way in which an indefeasible title might be obtained. Certain notices and advertisements were to be given to the occupier of the land, but none to the owner of the adjoining land. Unless that were provided for, when an estate was sold a slice might be taken off the adjoining estate without the owner thereof knowing anything about it. The other point was that nowhere in the Bill was it stated what was to be the effect of a non-registration of deeds. These were two points that would require to be fully considered in Committee.


said, that in Scotland, where a system of registration had existed for 200 years, and where great value was attached to the additional security it gave, much surprise was felt at the difficulty which was experienced in introducing that system into England. He believed that the advantages of the present Bill would be so great that in a short time all the prejudice against it would be removed.

Bill read 2°, and committed for Monday, 16th June.