SECOND READING. (Hansard, 30 May 1864)

THE LORD ADVOCATE
, in moving the second reading of the Bill, said, he had been requested to make a statement more in detail of the origin and nature of the Bill than he had done in the few words in which he had moved for leave to introduce the measure. The Bill had its origin in the Report of a Royal Commission, appointed in 1861, which was laid on the table of the House at the commencement of last Session; and its object was to reform the system of registration of land titles in Scotland. At present there were local registers in the counties, and a general register in Edinburgh: it was pro- 870 posed by the Bill to remove the local registers to Edinburgh, and to keep the register in Edinburgh in the form of a county register. The results would be to remove the necessity of a double search, to ensure economy by the abolition of the separate staffs, and lastly, to keep the index so close up as greatly to facilitate the search and lessen the expense. It would readily be supposed that a subject which had been the object of a Royal Commission was neither new nor unimportant. It certainly was not new, although it had been represented in some of the local newspapers as having come upon the country by surprise. On the contrary, the objects which the Bill proposed to carry out have been canvassed in Scotland for years before the Commission was appointed —so much so that the officers who had been appointed to be Registrars of Sasines in Scotland since 1858 had held their offices under the condition that, in the event of the registers being removed to Edinburgh, they should not be entitled to compensation. It was, therefore, unfair to represent this Bill as a sudden thought, or an ill-digested and ill-considered scheme, proposed for the first time in the present Session of Parliament, whereas it was the result of long consideration and discussion; and was based on the opinion of the soundest and most eminent lawyers in Scotland. He was not disposed to deny that the measure is one of great importance. To show what was its importance, he would briefly describe the existing state of things. The system of land registry was introduced into Scotland in 1617. In that year an Act was passed which established a complete register of all rights affecting land, whether conveyances, or burdens, or legal process, The nature of the system introduced by the Act of 1617 was this—A general register was established at Edinburgh, and in that general register all rights affecting land were registered and divided into different departments, according to the nature of the rights registered. But, as the Act expresses it, "for the greater relief of the lieges," certain districts were appointed throughout Scotland in which offices of registry were kept in order to prevent the necessity of the deeds being sent up to be recorded in Edinburgh. These districts were not counties, but districts embracing sometimes more than one county, and sometimes parts of counties. As they were appointed in 1617, so they remained to the present day. The result 871 of the Act of 1617 had been most beneficial to Scotland. It had built up a system of registration of land titles which was nearly perfect. It had been perfect in giving a great security to land tenures in Scotland, enabling purchasers and lenders of money to ascertain, if not with perfect accuracy, at least with an approximation to accuracy, the burdens which existed on land. There was only one defect—at least only one important defect—and that was the expense. The expense was very great comparatively, and one object of the present measure was to reduce it. Should it prove successful, a great and immediate economy would be effected; and it might prove the foundation of further reforms for cheapening the conveyance of land in Scotland to an extent unequalled in any other part of the kingdom. At present, if a man wished to purchase or to lend money on security of land, he was obliged to search for forty years; because, as forty years was the prescriptive period, he must see that the laud he was going to buy or to lend money upon was free so far as that period. In order to do this, the first step he had to take, if he lived in the country, was to examine the local register—the register of sasines in the country. But that register only extended over a limited period; for all the local registrars entered the deeds as they came in in a book sent by the Registrar General, to whom, when it is full, it is re-transmitted. Sometimes, in large counties, these books were filled in a few days; sometimes in counties and districts where the transactions were few, they were not filled for three or four years. The first thing to be done was to ascertain whether there were any burdens on the land; then a further search must be made in Edinburgh, and it must be made in a double register, first in the general register which was kept there; and secondly, in the particular register which had been transmitted from the counties. In that way, double trouble was occasioned, double fees were charged, and double expenses were incurred. Now the proposal made in the present Bill was this. It would no longer be necessary to have these registers kept in the counties for the purpose of recording; and for the purpose of searching they were useless. It was, therefore, proposed to bring up the registers from the counties to Edinburgh, to keep them in the Register Office, to abolish the general register, and to keep for the future the whole of the county registers in Edinburgh. The result would 872 be that there would be only one register to examine instead of three, and a considerable economy would be effected. In the next place, there would be a saving of the whole expense of the local registers. The fees received by the local registrars amounted to £12,000 a year, and if the registers were brought up to Edinburgh and kept there by one staff, there would be a saving of about £7,000 or £8,000 a year on the total cost of the registers, which in the end would accrue to those who used the register— in other words, of those who were interested in the conveyance of land. But the greatest and most important advantage would be, that the registers being all in one place the officials would be able to keep up the "Index" to the current year. He would not enter into the details as they were fully explained by the Commissioners in their Report. In order to secure a simple and easy search, it was necessary that there should be a complete index of the whole of the registers. That was impossible as long as there was a double register—one kept at Edinburgh and the other in the counties; and it was impossible that in Edinburgh the officials could complete it, because the county registers came up at intervals, sometimes at intervals of three or four weeks, and sometimes as long as three or four years; and in that way the process of completing the index could only be done in cycles of five years. These were substantially the leading features of the Bill. There had been a good deal of criticism expended upon it, and some had so far misconceived the measure as to imagine that it would be practically very expensive and inconvenient. In what way expense and inconvenience could arise he could not imagine. It could not arise in the mode of searching, for the mode of searching would be simplified and shortened; it could not arise in the registration, for whereas in former times it was necessary to have these local registrations, because the registration could only take place at particular places, since the introduction of the penny postage a very ordinary mode of registering the deed had been by transmitting it by post to the registrar, whether in Edinburgh or in the counties. There was a passage in the Report of the Commissioners which was clear and distinct upon this point. The Commissioners said— We have to add, on the head of transmission by post, that, notwithstanding the great inconveniences arising from the double set of registers, 873 we should scarcely have been prepared to recommend the abolition of one of them—whether it resulted in the keeping of a single register for each county in Edinburgh, or for each county within itself—unless improved means had been provided for the conveyance of deeds by the establishment of cheap postage, and unless we had been certiorated by experience of the perfect safety of their transmission by post. On this last point we have been fully satisfied by the returns we have received from the keepers of all the registers. It appears from these returns that while nearly a fifth part of the whole writs recorded in the General Register House is now transmitted by post, the proportion transmitted to some of the district registers is much greater, In Ayrshire and Fifeshire, four-fifths are sent by post to the district registers; and the proportion in several other districts varies from four-fifths to a half. This proves that the post is already universally accepted as a cheap and convenient auxiliary to registration. The same Returns inform us that though transmission by post has been so extensive for a number of years, not a single instance has occurred, throughout Scotland, of a deed intrusted to the Post Office for the purpose of transmission to the register having been lost, or even delayed for an hour. This is the result, although scarcely any of them have been registered at the Post Office, and although the great majority has been sent in book-post packets. There was, therefore, good reason to believe that any process of registering deeds could be quite as efficiently performed by persons residing at a distance sending them through the post, as by sending them through the local register. As regarded expense and economy, there could be no doubt as to the difference between the present system and that now proposed. It had been suggested—he need hardly say without a shadow of foundation—that this proposition was really made in the interest of professional bodies in Edinburgh. It was difficult to meet a suggestion of this kind, but fortunately in this case he had the means of proving that it was entirely unfounded. The proposal did not originate in Edinburgh. It originated with the Procurators of Glasgow—a body of legal practitioners than whom none stood higher in Scotland; and to them the public would really be indebted in a great measure for this important improvement. In the year 1856, the Procurators of Glasgow took up the question of the state of the Register of Land Titles. They resolved upon a Report which he now held in his hand. In that Report they recommended the proposal for reform which was embodied in the present Bill. They considered the question whether the register should continue to be kept in Edinburgh or not, and they gave a very clear deliverance upon the subject. They said that the General and Particular 874 Registers as at present kept should be discontinued, and separate registers kept in Edinburgh for each county. They then went on to say— There appear many strong reasons for keeping all the county registers in Edinburgh. First, the principal part of the present registers are at present kept altogether in Edinburgh; second, all the register-books are at present sent in blank from Edinburgh, and when filled up are sent to Edinburgh, and these transmissions are attended with considerable official troubles and expense to the public; third, the keeping of all the registers at one place would tend to form and maintain a methodical and accurate general system of recording; fourth, there is a General Register House especially built for safety of records; and fifth, by the above arrangements, and those after proposed, all searches could be made at once, and in the same place, thereby saving much time and expense, This was the Report of the Committee of the Faculty of Procurators of Glasgow, signed by twenty-three of the most eminent of that body—gentlemen not inferior to any body of professional men in Scotland, either with regard to the extent of their business, or to the extent of their knowledge. The general body of the Procurators, not content with adopting the Report unanimously, resolved that it should be printed, and copies of it transmitted to the Lord Advocate, to the different legal bodies, to the Members of Parliament for Scotland, and to other persons interested in the land registers of that country. He (the Lord Advocate) thought, therefore, that the suggestion that this was a novel and ill-considered project could scarcely be maintained. The result of this Report was that the project was taken up by the Lord Justice Clerk, who was at that time Dean of the Faculty of Advocates. That body appointed a Committee to consider the subject, and they reported clearly and strongly in favour of the proposal; and not only so, but the present Lord Justice Clerk, when he was Lord Advocate in 1858, introduced for the first time, into the commissions of those officials appointed, during his tenure of office, a clause to the effect that if those registers should be removed to Edinburgh, there would be no claim to compensation on the part of the holders of offices. No stronger testimony can be given to the views which the Lord Justice Clerk entertained on the subject. The Writers to the Signet did the same thing. Mr. Montgomery Bell, the Professor of Conveyancing in the University of Edinburgh, read a paper at the Social Science Congress at Glasgow in 1860, in 875 which he gave the clearest and strongest opinion upon the same matter. The hon. and learned Member for Greenock (Mr. Dunlop) on more than one occasion in 1860 and 1861, asked whether he (the Lord Advocate) intended to legislate upon this matter of records. Although impressed with the desirableness of a change, at the same time he felt that it was a very important matter, which was, to some extent, a matter of practical detail. He did not think it would be safe to act in regard to a matter affecting interests so large and momentous without further inquiry; and therefore he suggested to the Government the appointment of a Royal Commission to inquire into the whole matter, to examine the whole of the county registers, and to report their opinion upon the subject. Accordingly, two gentlemen of the greatest weight and distinction in the profession—Mr. Charles Morton, Writer to the Signet, and Mr. Andrew Bannatyne, now the head of the Faculty of Procurators in Glasgow—were appointed for that purpose, and they made a full and elaborate Report, in which they entirely and fully confirm in every particular the views expressed by the Procurators of Glasgow in 1856, followed, as they were, both by the Faculty of Advocates and by the Society of Writers to the Signet, and the Society of Solicitors before the Supreme Courts. In short, nothing could have been more fully or better considered than this proposal. It might be good, or it might be bad, but there was no ground for saying that it had been rashly or lightly submitted to the House. The Faculty of Procurators in Glasgow, although they commenced this important work, did not, however, appear to be inclined to finish it in the same spirit. They took up the Report of these Commissioners, who exactly confirmed the views which they held in 1856, and they reported again that they were quite clear that, in their opinion, the local registers should be brought to Edinburgh, but that one exception should be made, and that registers ought to be kept at Glasgow. That was a strong testimony to the general principle. As to the exception, it rested, in his opinion, on very slender ground. He would not detain the House by going into the matter, but he wished to suggest to those who take an interest in the subject, that in the Appendix to the Report of the Committee of Procurators they will find protests signed by a minority of the Committee—composed 876 of names which with all acquainted with the profession in Glasgow would carry great weight, in which the proposal to make an exception of Glasgow was thoroughly and clearly answered. It was quite true that, since the Bill had been introduced, a petition had been presented to this House by the Procurators of Glasgow, in which they stated that they think the measure is objectionable, on the ground that it proposed to bring up the local registers to Edinburgh. The Procurators of Glasgow are a body of whom he wished to speak with the highest respect—indeed, he knew of no body of professional individuals more entitled to respect; but having proposed in 1856 this important measure, they had, on grounds which he (the Lord Advocate) could not appreciate, come to change their views in regard to the particular proposal which he now submitted to the House. To what extent that opinion prevailed he did not know, but he thought that the clear and dispassionate opinion of 1856, which was again repeated at the end of 1863, was the wisest and soundest opinion. He was not disposed to change his opinion in consequence of the petition which had been presented by the Procurators of Glasgow. He would make but two further observations. In the first place, it was said that it was not proposed to bring up the burgh registers. In the first place the burgh registers are not comprised in the Act of 1617. They were not brought up to Edinburgh. They stood upon an entirely different ground, and they could well and properly be dealt with separately, as was recommended by Professor Montgomery Bell and also by the Report of the Commissioners. There were matters in regard to the burgh records which might require attention; but it was desirable that they should be dealt with in a separate measure, and not mixed up with the county register. The second matter to which he wished to allude, was compensation to the holders of office. Without now expressing a general opinion on the subject, he might say that those who hold their offices without any clause to the effect that they were not entitled to compensation, might reasonably be compensated. His opinion was, that they ought to be compensated out of the fees that would be drawn under the new system. It would not be necessary to put hands into the pockets of the Treasury, who, indeed, drew £5,000 from the registers in Scotland. The matter may be fairly consi- 877 dered, and there would be plenty of money to defray any charges of the kind. It was not a money question. The object of the Bill was, that dealers in land, whether buyers or lenders, should have a good clear title at the least possible expense, There could be no other object. The object he was most anxious to accomplish he was satisfied never could be accomplished till there was this right registration, and he was certain that when that was done it would produce great economy, and that upon this still larger and more important reforms would be based.

MAJOR HAMILTON
The right hon. Gentleman has told us to-night that this Bill had been discussed at a meeting by most of the Members for Scotland. He ought also to have told them that that meeting was somewhat against the Bill, The fact, however, was, that the principal feeling of enmity to the Bill was that it had not been fairly discussed either in the House or in the public papers in Scotland. It had been desired that a Bill of this kind should have been brought forward before the county meetings of the 10th April, and it was therefore suggested to the right hon. Gentleman that he should postpone his Bill until they had had an opportunity of discussing it at their meetings. The right hon. Gentleman was not inclined to do so, but fairly stated that on moving the second reading of the Bill he would make a statement that might appear in the public papers, and be read all over Scotland. That statement he had now made, and he (Major Hamilton) begged to thank him for the pains he had taken. He was not himself in favour of the Bill, nor did he think that his constituents were; but as his hon, and gallant Friend the Member for Ayrshire (Sir James Fergusson) had put an Amendment on the paper, and it was desirable that the Scotch Members should have a full opportunity of discussing the measure which could not be done at that hour of the night, he would beg to move that the debate be now adjourned.

§ MR. SMOLLETT
Sir, it is not my intention to make a long statement to the House. The Bill contains a great deal that is valuable, and I do not think that there is any great objection to it because it is unpalatable to certain local legal practitioners in Scotland. But my intention, in rising, is to say a few words upon the manner in which Scotch business is transacted in this House. When I first became a Member of the House I was told that the 878 Scotch business was conducted in a most admirable manner. It was said that Scotch business was dealt with in a manner that contrasted most favourably with the way in which Irish business was conducted, and with the rows that were constantly got up when any Irish business was before the House. Now, I think if Scotch Members allow themselves to be flattered by observations like these they will greatly deceive themselves. I think the way in which Scotch business is transacted is the most slovenly possible. In point of fact, the only person charged with the conduct of Scotch business in the House is the Lord Advocate of Scotland, and that learned Gentleman is, as his name imports, a practising barrister—often in very large practice; and I believe the present Lord Advocate is the leader of the Scottish bar. We never see the right hon. Gentleman in his place in the House till after Easter, or at least very seldom, unless he wishes to be present in some Ministerial party division. The consequence is, that no business of any importance is brought forward in the early part of the Session; and if any important business connected with Scotland is introduced at the latter part of the year, it is slurred over in a very unsatisfactory manner, as is shown by the debate going on this morning at half past one o'clock— the only debate, too, that has taken place on Scotch business in the present Session of Parliament. Now, in my opinion, there is no part of Her Majesty's dominions that requires more reform than the ancient and loyal kingdom of Scotland. We have courts of law in Scotland called Courts of Session, but they are so strangely constituted, their proceedings are carried on in such unintelligible jargon, and the Courts themselves are fenced about with forms so obsolete, expensive, and dilatory, that they are obstructions to, and not courts of, justice. Scotland is full of legal sinecures. We have some local Courts in Scotland. They are called Sheriffs' Courts; and of these we are somewhat proud, but we feel that they are incumbered with a double set of Judges. The Sheriff's Substitute performs all the duties, and he sits throughout the year hearing and deciding cases; the Sheriff Depute, often the less competent Judge of the two, revising and reversing the judgments in appeal. Then we want a sweeping reform of the Scotch law of marriage, of the law of domicile, of the law of inheritance. Last year we had a Bill in this House to correct the pro- 879 cedure of the Courts of Session, but the Bill wag not pressed forward with zeal— it was withdrawn, and, I believe, was not introduced again this Session. If it be introduced, I am quite sure it will be emasculated, and will be found utterly worthless, because the Minister for Scotland is the Lord Advocate. He is a legal practitioner, and if he brought in any Bill that would really do away with all the sinecure offices in Scotland, and put the Courts on a good footing, it would be torn into pieces by the practitioners who benefit by the present system. We have these measures discussed at the meetings of the Social Science Association in Edinburgh, and I believe the Lord Advocate takes a great part in these meetings, but they are never discussed in this House. In lieu of such proposals, we have a Fish Teinds Bill, we are threatened with a discussion upon the Law of Hypothec, we have a Rivers Pollution Bill, and such small matters as might, in my belief, be just as well deferred to the Greek Kalends. What ought to be done to remedy this state of things? We ought to have a Minister for Scotland who is not a practising barrister. And unless we have some remedy of this nature, we never shall have any of those great measures of practical reform which Scotland requires, and which her Members ask and imperatively demand. I beg to second the Motion for the adjournment of the debate.

THE LORD ADVOCATE
I think I am entitled on the Motion which the hon. Gentleman has made to say a few words in reply to, perhaps, the not very relevant, but not the less important speech of the hon. Member for Dumbarton. I quite admit that our plan of conducting business in this House is very different from that he would have us adopt, and the hon. Gentleman has set the good example of the new mode of procedure which he would recommend. On this, which is a very important Bill, relating to a very important subject—a subject that is as important as any of those law reforms which he wishes to see undertaken—the hon. Gentleman has chosen to introduce every topic which has nothing to do with it—everything which is not concerning the matter before the House; and I suppose that his method of conducting Scotch busi- 880 ness in this House is to have important debates conducted in such manner as is suggested by his speech. He seems to be under the delusion that he is speaking on Friday night and not on Monday night, and that the Motion which stands in the name of the hon. and gallant Member for Ayrshire (Sir James Fergusson), for Friday, is the Motion now before the House. He will have an opportunity, when that Motion comes on, of expressing his opinion upon these matters. But let me put the hon. Gentleman right. He says, that since he came into Parliament, I have never been in my place till after Easter. In that he is entirely under a mistake and a delusion. There has not been a single Session of Parliament in which I have not attended in my place before Easter—there has hardly been a single Session in which I have not been here in the second week of the Session and remained until Easter. If there have been occasions when that has not been the case, they have only been when there was little public business to do, and I have thought that I might, without impropriety, remain in Scotland. In regard to the general mode in which Scotch business has been conducted, I venture to say that during the last ten years the measures that have been passed for Scotland have been as important, well considered, and successful as any of those for any other part of the United Kingdom. I am not going now to enter into them. If the hon. Gentleman had wished, he could have informed himself of the facts. What does he want us to do? I am happy to say that the censure he has bestowed upon me he has broadly and impartially scattered. There is not an institution, scarcely an officer, of Scotland that has not fallen under the lash of the hon. Member. The Court of Session, he says, is useless; the Sheriff's Court is bad; the law of marriage ought to be reformed. I would suggest to the hon. Gentleman, since he holds these strong opinions, he, as an independent Member of Parliament, perhaps might lay upon the table Bills upon the miscellaneous subjects which might carry out the views he has expressed.