Lords Sitting of 19 May 1845

MINUTES.
Sat First. The Earl of Hillsborough, after the Death of his Father.
BILLS. Public. — 1a. Railway Clauses Consolidation (Scotland) (No. 2); Administration of Criminal Justice; Civil Actions; Documentary Evidence; Outstanding Terms; Real Property Conveyance; Granting of Leases; Declaratory Suit; Marriage Law Amending; Independence of Parliament.
3a. and passed:—Exchequer Bills.
Private.—1a. Heaviside's Divorce; Hemel Hempstead Small Tenements; Ellison's Estate.
2a. Boddam Harbour; Hungerford and Lambeth Suspension Bridge; Clifton Bridge; Nottingham Inclosure; Winwick Rectory; Rochdale Vicarage (Moleworth's Estate.
Reported.—Birmingham and Staffordshire Gas Light Company; Clerkenwell Improvement.
3a. and passed:—Pudsey Gas; Liverpool Docks; Molyneux's Estate; Birkenhead Company's Docks.
PETITIONS PRESENTED. From Guardians of Athy Union, for Alteration of Poor Law Act (Ireland) respecting the repayment of Money advanced for building Workhouses.—By Bishops of St. David's, and St. Asaph, Earl of Stradbroke, and Marquesses of Ely and Breadalbane, from Ministers and others of Free Church of Auchtergaven, and numerous other places, against Increase of Grant to Maynooth College.—By Lords Portman, and Monteagle, from Taunton, in favour of Increase of Grant to Maynooth College.—By Marquess of Breadalbane, from Kilsbury, for Inquiry into the Course of Instruction adopted at Maynooth.—By Lord Redesdale, from Protestants and Roman Catholics of Lancashire, for Restricting the Influence of Roman Catholic Bishops and Pope's Vicars, &c.—By Lord Campbell, from Cork Branch of Irish Unitarian Christan Society, for Amendment of Criminal Code.—By Lords Stourton, Ashburton, and Cottenham, from Commissioners of Requests for Horncastle, and from Thomas Probert, of Hillingdon, against Insolvent Debtors Act
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Amendment Act.—From Knaresborough, for Repeal of 57th Clause of Insolvent Debtors Act Amendment Act, except as to Debts not exceeding 5l.—From Ramsgate, and several other places, for Alteration of Insolvent Debtors Act Amendment Act, and for the adoption of Measures for the more easy recovery of Small Debts.—From Nottingham, against the Nottingham Inclosure Bill.

LAW REFORM.
Lord Broughamsaid, he rose to call the attention of the House to a subject which had been so often discussed, that their Lordships were almost all agreed upon its general principles, and only differed as to particulars; he meant, the subject of universal and enduring interest, the jurisprudence of the country. Seventeen years had elapsed since he first called the attention of the other House of Parliament, of which he was then a Member, to the subject, and brought before it many of the gross defects in our system of law, and chiefly as regarded our civil jurisprudence. His statement having met with the support of His Majesty's then Government, it led, in the reign before the last, to the appointment of two Commissions; and very great progress was speedily made in preparing and digesting the measures fit to be taken for remedying the then existing very great evils. One of those Commissions applied itself to inquiring into the transactions of the business of the Courts of Law, and made several most important Reports, which had led to the propounding, and the afterwards carrying out, a variety of most valuable measures for the amendment of that portion of the civil law of the country which related to actions affecting personal rights, and which were commonly called, in the Courts of Law, personal and mixed actions. Another Commission, at the head of which was his noble and learned Friend now a Member of that House, but then filling the office of Attorney General, was directed to inquire into the law affecting Real Property, and to suggest such improvements in that most important branch of the law as, on the result of their inquiries, might appear to them to be safe, beneficial, and practicable. It was wholly impossible for him to address their Lordships upon the subject of those two Commissions, and not to state once more, as he had done formerly, the gratitude which he, in common with every member of the community, must ever feel to the able and learned men who composed those Commissions. Many of them were now raised to the highest stations upon the Bench of this

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country. The present Lord Chief Baron of the Exchequer, whom he (Lord Brougham) upon coming into office had added to the first Commission, was long at the head of that Commission; and Mr. Baron Parke, Mr. Baron Alderson, Mr. Justice Wightman, Mr. Starkie, Mr. Evans, and Mr. Sergeant Stephen, were also members of the Common Law Commission. On the Real Property Commission sat most able and learned lawyers and conveyancers, skilled in the law of real property transactions; among whom were Mr. Brodie, Mr. Tyrell, Mr. Duval, Mr. Tinney, Mr. Duckworth (now a Master in Chancery), and others, who brought the assistance of all the light that their learning afforded, and laboured with industry the most exemplary. Among the smallest grounds for the debt of gratitude which he (Lord Brougham) owed, was the fact that his noble and learned Friend at the head of the Commission, who brought to his labours not only his habitual industry, but the great learning and ample experience which he possessed, gave up his time and labour to the duties of the Commission, peremptorily refusing all remuneration; and was only driven, he might say, and compelled to accept it by those who came into office afterwards, and would not allow the public to be served upon those terms. The result of those inquiries had been, a very great change in the law of real property, and the constitution and practice of the courts relative to actions for the recovery and enforcement of rights, and the evidence by which those rights were to be tried before juries; and there never was a greater error committed than he had seen some rash and ill-informed persons commit in public—sometimes in debate, and at other times in print—when they stated, that although there had been a great deal of talk about it, no real progress had been made in the amendment of the law the last twenty years. So different were other equally able men's opinions upon it, that his late noble and learned Friend, Lord Eldon, who was much more prone at all times to commend, rather than amend, the law, had stated that, so greatly was the law changed since the year 1828, when the proposition was brought forward, and his (Lord Brougham's) noble and learned Friend on the Woolsack, his (Lord Eldon's) successor, issued those Commissions, that he might say with Sergeant Maynard, that,
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"in having outlived all the lawyers, he had well-nigh outlived all the law in the country." That was Lord Eldon's view of the subject. And it was no exaggeration to say that, so great had been the changes in the law in consequence of the suggestions that had been made, done maturely and with due deliberation, that if any of the old lawyers—not merely Lord Hale and Lord Holt, but Lord Kenyon and Lord Ellenborough, and Mr. Fearne and Mr. Shadwell, deceased conveyancers, once the ornaments of the Bench and the profession—were to arise from the repose that they were now enjoying, undisturbed by the calls of clients and the misrepresentations of the Reports, of which they complained so much in their day, they would think they had come into a new world, and not recognise that law which some of them were accustomed to expound, and others to administer. He believed that out of the sixty-two heads of defects, and amendments correlative to those defects, which were suggested in his statement of the 7th of February, 1828, fifty-six had been remedied by Statute, and become the law of the land. He ventured to state that as a great encouragement to those who promoted the amendments of the law, and, above all, to the Legislature, without whose assistance and co-operation any amendment of the law was impossible. The law of England, which was once obliged to bear the opprobrium of being the cruelest in existence, falling short only of not allowing torture, and which, in inflicting capital punishments, had been the most wholesale sinner against all the rules of humanity and justice, and against every sound and rational principle of criminal jurisprudence, had now become the most humane; exercising the right, if it could be called a right—which many wise and virtuous men questioned—of putting to death, for even the gravest offences, with the greatest and most temperate abstinence from cruelty, unsurpassed by the law of any other country in this day. This was, no doubt, a great triumph of a sound and humane principle over an ancient, bad, and fatal error. Even the Court of Chancery itself had not escaped the amending hand of the lawgiver; for those delays that seemed to wrap the unhappy victim, the suitor, in their endless folds, and to erect their crest, as it were, against his safety, peace, and comfort, were now reduced to a far

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more narrow compass than they had in the time of Lord Eldon and his successors; so that both regarding the ferocious cruelty of our law, and the folds that used to entangle the unhappy suitors in an interminable mesh of legal pressure, the best and wisest changes had been effected. And, therefore, they might well say that, although much remained to be done, yet much had, in these two great particulars, been effected, and many of the great evils which existed in the law been extirpated.
"At rabidæ tigres absunt, et sæva leonum
Semina; nec miseros fallunt aconita legentes;
Nec rapit immensos orbes per humum, neque tanto
Squameus in spiram tractu se colligit anguis."
Those reflections and those successes ought to encourage lawgivers to proceed. They ought not to make them more rash, nor ought they, as they near the goal, to accelerate their speed. They ought not to make them fond of great haste rather than of good speed; but they ought to encourage them, under temporary disappointment, to proceed, and from their past successes gather fresh hope for their future exertions. Therefore it was that he was encouraged; but at the same time he was not so intoxicated with success as to be led to do anything rash or wholesale, or that was too sweeping and inconsistent, in the reforms he was about to propound. It had, however, led him to look about him and to examine and see, among so much as had been done, what remained undone; and he should state a few cases in which it appeared to him something remained defective in our present system. He should apply himself in the same way as he did upon a former occasion — upon the principle of not pointing out a single defect on mere theoretical views, for which he had not a practical, and, as it appeared to him, a most safe and easy remedy. First, then, he should state that the Courts of Law had, since 1828, been reformed to a very great extent. He recollected complaining of the difference in the amount of business in the different courts; that, while the Court of King's Bench was overloaded with business, and the Court of Common Pleas had plenty to do, the Court of Exchequer, from certain monopolies existing in that court, had little or nothing to do. The monopoly of the officers of that court had since been abolished, and those obstacles cleared
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away which had abstracted the business from the court. Great practical reform had also taken place in it in consequence of his noble and learned Friend on the Woolsack having accepted the office of Lord Chief Baron, and brought the great powers and experience of his mind into the court. Ever since his noble and learned Friend had presided there, the Court of Exchequer had been as well employed as the other Courts of Common Law, the Court of Queen's Bench and Common Pleas. Another reform took place in the year 1832 in the Court of Common Pleas; but it was thrown open under the sign manual of the Crown, and it had been since found that an Act of Parliament was necessary for the purpose in view. One matter which was complained of at the period to which he had referred, and which had since been remedied, was the sitting of a Court of three Judges; a circumstance which gave satisfaction neither to the suitor nor to the public. Much of the evil was owing to the adherence to the favourite number, twelve — keeping to but twelve Judges, as there were twelve jurors; and, among other precedents cited by the old lawyers, the twelve golden candlesticks, and other passages in the Revelations, were relied on; but the noble and learned Lord on the Woolsack was not stunned or "frightened from his propriety" by any such fancy, and there were three additional Judges appointed. And he might inform their Lordships, that in a very few months they would, probably, be informed that even the increased number were found to be inadequate to the wants of a largely increased mercantile community. Another great evil was got rid of when the terms were fixed by the Bill of the late Lord Chief Baron. But last of all, a monster grievance had been abolished when the Welsh judgeships were swept away. Those persons were counsel in Westminster Hall during six months in the year; they were frequently Members of the other House, and were actuated by all the partialities or by the convictions of party; yet during the other six months they were Judges in Wales. In criminal matters their judgment was final; and in all civil cases no appeal was to be had from their decisions, except to the King in Council. All this was abolished when the three new Judges were added; and the Principality now had all the benefits of the judicial system

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established in England. Another ground of complaint had been very much removed, most honourably to the present Government and their predecessors—the baneful influence of party spirit, in restricting the Lord Chancellor in his choice for Judgeships. When he had the honour to hold the Seals, he had departed from the usual practice, and had elevated one who had not usually looked upon political subjects with his eyes; but his noble and learned Friend had gone further, and only lately had made an excellent appointment to the Bench of one of the most learned and honourable men to be found in Westminster Hall, although that learned Gentleman had been distinguished as a political opponent of the Ministry to which his noble Friend belonged. As to the other courts, there was no longer that opprobrium of the law, that the highest Judge of the Civil Law Courts was paid by fees differing in peace and war, and making it the interest of him who had to decide questions that might involve the country in hostilities (and that in the proportion of 10,000 l. a year to 2,500 l. a year) to provoke war, if possible. He would not for a moment insinuate that Sir William Scott, or any of his learned predecessors on that bench, could ever have been influenced for a single instant to yield to such a temptation; but then hostile nations were not aware of the fact, and they would not be induced, because of such knowledge, to put much faith in decisions given under such circumstances. That abuse was now swept away; and the judge who now so worthily presided in that court, his learned and benevolent friend, Dr. Lushington, was in receipt of a fixed salary of 4,000 l., and he was very properly excluded from taking any part in party conflicts or political controversies, by the law prohibiting him, while he held the high office, from a seat in the other House of Parliament. The Court of Delegates, again, which had partaken more of the nature of a farce than of grave judicial proceeding—for it was a court in which the least occupied and least learned civilians sat as a Court of Appeal from the learned Judges in the Consistorial and Admiralty Courts—had all been swept away, and all appeals had been transferred to the Privy Council; while even the constitution of that Court of Appeal had been greatly changed, and in such a manner as to lead every one to
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acknowledge that great improvements had been made. These were great and important changes; but still, that something remained to be done no one could doubt. He had frequently urged upon their Lordships the necessity of placing the Judges of that Court of Appeal upon a more permanent footing; but, as he intended again to call the attention of the House to the subject, he would not then further allude to it. Besides all that, Bills had been passed which had given great encouragement to the practice of deciding suits by arbitration. While upon that topic, he would express his utmost sorrow that, amidst all these changes, nothing had been done towards instituting conciliation courts, or courts of reconcilement, and county courts: the benefits of the establishment of both would be of inestimable value to the country. As to the latter courts, neither his noble Friend on the Woolsack nor he had anything to reproach themselves with; for a Bill was introduced—it was considered, and it received the sanction of that House, but it met with a different fate in another place. With respect to the value of courts of reconcilement, he need only refer to Denmark. In that country, out of 7,000 suits which had been instituted, 5,000 had been sent to those courts, and had been no more heard of. It was very easy to conceive that such a result should follow from the parties who had differed being required to appear before a person who had no interest whatever in their continuing their proceedings, and in the absence of their legal advisers, who were interested. He would not make these courts compulsory: he would merely compel the parties to appear before the court without the presence of their solicitor; but they should not be compelled to follow his advice, or be bound by any proceeding of the court. Courts of Local Jurisdiction too would be of inestimable benefit; and he trusted to see these also established. His noble and learned Friend on the Woolsack had passed a Bill for this purpose through their Lordships' House in 1842; but owing to private pecuniary interest of some parties — he might say of one party—elsewhere, it was stopped in the Commons. The complaints he had in 1828 made of the system of pleading had likewise been met, and those grievances removed, by the new Rules which the Judges had framed under

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the Act passed in 1832. He had now to address himself to the landed interest more especially; and he was glad that he was speaking before so many of those who were so deeply interested in the land, for they were more interested in the amendment of the law of real property than any other class of the community. The first and most important change which look place in consequence of the appointment of the Real Property Commission, was, the total abolition of fines and recoveries, by which property could now be passed without delay and expense. A landed proprietor, being tenant in tail, had now no longer to wait until term time to make himself tenant in fee-simple, and dispose of his estate; nor had he any longer to go through the fictitious suit of a fine or a recovery; he could do it at any time, by a mere deed, and at such a saving of expense that many persons waited a whole year for the Act to come into operation, wishing to sell their estates. There were formerly great absurdities also in the law of inheritance. There was the silly old fantastic notion of inheritances being subject to a principle like gravitation, which was supposed always to act downwards—a total mistake, for gravitation acted towards the body to which the gravitation was, and not downwards. However, so said the old lawyers; and if a man died, leaving no child or brother, or nephew, it was impossible his estate should go upwards to his father; it would rather escheat to the Crown. So again, with respect to the half-blood being allowed to take personal properly, but not to inherit real estate; these defects were removed. The Statute of Limitations was made effectual, which it was not before. The object had always been to make long possession an effectual bar to disturbance, by supplying the defect of title; according to the beautiful simile of Lord Plunkett, that "Time stalked with his scythe, mowing down muniments, the evidences of title; but the wise humanity of the Legislature had put an hourglass in his other hand, by which he measured out those periods of possession that supplied a remedy for the destruction dealt by his scythe." But the Real Property Commission found an obstruction in the hourglass; the scythe was prevailing over the sand. Instances had been known of tenancies in tail successively enduring for 250 years, and afterwards
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the old title revived: though the estate had been subject for two centuries and a half to settlement, to mortgage, to sale, to exchange, and had been dealt with as fee-simple all that time, up started the old reversioner, and, in spite of the long possession, ousted the man who had given value for the land, and who had no means of getting back a shilling of his money, because the seller had given a warranty against his own acts only. A change had now been made; and although in consequence of there being several commissions at work in these amendments, there were some little discrepancies in the Acts passed at their instance, there was only a question whether the time was longer or shorter in certain cases. After forty years' possession no title could be disturbed unless (which must always continue) where the party in possession had a mere life estate. Real actions also, Formedon, and Assize, and the rest, to the number of sixty-three, had been swept away; and, with the exception of Quare Impedit, and Quare Non Admisit, existed no more. The consequence of all this was, that the value of property had been increased; the title to it being clearer, the possession more secure, and the expense of maintaining the right to it lessened materially. Still the transfer of property required to be considered. Nothing could be conceived worse than the principles which regulate the conveyance of real estate in this country, whether in fee-simple or by lease for years; and yet the free commerce of land was of the utmost importance. At present in every conveyance there was such an endless prolixity of statement, in preamble, in recitals, in parcels, in covenants, in warranty, that in the case of a small estate the expense became a bar to the sale. This expense was the same in conveying one acre as one thousand. It was not merely the parchment, and the writing by the engrosser, but the conveyancer also was to be paid. The longer these deeds were, too, the greater was the risk of error—the chance of a flaw. Their Lordships signed deeds, probably without ever reading them, trusting to their solicitor to do it; but how did he do it? By looking at the parchment while his clerk looked at the draught, and not then reading it again, the clerk looking at the parchment while he looked at the draught; and the chance was, therefore, that he made a mistake in reading

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a line of the parchment, and the clerk another in reading a line of the draught. It was the more likely, because both the solicitor and the clerk knew that any error was not likely to be discovered before they were in their graves; and for that reason his friends the conveyancers always seemed to him very much upon velvet. A conveyancer, who died about fifty years ago, was found to have committed errors by the score in his opinions; but none of them were discovered till after his death. Yet a small error might be of the greatest importance. In "Langston v. Langston," the whole case arose from a single line being left out in copying a will relating to very large property in Oxfordshire. The devise to the first son was left out, and the estate was given to the second, third, fourth, and other sons successively in tail male. The question was, what estate the eldest son took? The Court of Queen's Bench were of opinion that he took no estate at all. The Court of Common Pleas, in a Court of Error, were of a different opinion; and he was glad to agree with the Court of Common Pleas that he did take. But it was a very narrow thing, and might have been decided the other way. Possibly, if his noble and learned Friend who followed him on the Woolsack (Lord Cottenham) had then been on the bench instead of at the bar, it would have been the other way. And it was clear that it was the prolixity of the proceedings which exposed the party to risk, as well as litigation. Why not at once, in favour not merely of all landed proprietors but of all commercial men—for if the first borrowed, the others lent, if the first sold, the others were the purchasers—why not do in favour of both what the Legislature was doing in respect to Railway Bills? Why not at once facilitate the sale and transfer of land, and protect property against the possibility of bad titles through flaws, by consolidating the law in one short bill, containing a form of a deed—as his Bill contained—a deed of four lines, which had been drawn up by the most skilful conveyancers in the country, that was, he had had their aid and approval, and they had vouched for its efficacy?—why not bring in such an Act of Parliament, enacting that, whoever used that form, should be held to have done all that was named in the Act, and to have given all the necessary warranties, and that it should be as sufficient to all
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intents as if ten skins of parchment had been used, which was necessary at the present moment, at all the cost, and hazard of mistakes that he had described? He asked their Lordships to apply what they did in Railway Acts to the transfer of estates. The Act would not bind any man to use his formula. If a party had a large estate which he wished to sell, he might use or refuse the present formula. The Legislature told him, "If you choose to take our formula, take it, and we guarantee it; you are secure that the words you use shall have the effect you intend; but you may take the old form, with its prolixity of language and courts of law; whereas, if you take ours, you take a deed that will operate both under the existing law, and under an Act of Parliament." Before leaving the subject of real property, he was about to add a remark upon the state of the law respecting sales or mortgages for terms of years. Nothing more essentially affected the security of landed property, and therefore it was of importance that some remedy should be applied to cure the defects which had grown up in this branch of the law. The term of years was generally a long one—500 or 1,000 years. The object was, that the termor, or mortgagee, should hold the estate till out of the rents and profits money should be raised to fulfil certain purposes. In the course of some years the object had been secured, and properly speaking, therefore, there ought to be a surrender of the term by the mortgagee or the termor; but that did not always take place, and the term was therefore outstanding, or there might be a term surrendered to the mortgagor, the borrower of the money, and the owner of the property, and kept alive purposely by him for some purposes of his own. While the term having now been satisfied became a mere imaginary being—an imaginary spectre if you would, but having the capacity of rising up at any moment—this spectral creature of the legal imagination—this fictitious being, whom we talked of as harmless, existed all the while, and what was the consequence? The borrower went and borrowed more money, and created another term, and did not tell the person from whom he borrowed that there was the other term outstanding. The second termor had only an equity life interest; the other termor got the legal estate. Afterwards

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the borrower went to a third termor,—a man who borrowed once was very apt to borrow again. The third person also knew nothing about it; he did not know he had not got the legal estate as well as the equity; but he found out that there was an intermediate termor, or, not finding it out, he found out the first termor, and went to the first mortgagee and got possession of the first term. He had got the equity by his own loan, and he had got the legal estate by traffic with the first mortgagee, and, therefore, he had a complete title. What happened was that which was called most expressively by the lawyers, "squeezing it out." This was the technical language of the law. He "squeezed out" the middle lender, and the middle lender, who had the older title, lost his money and his security altogether; he was utterly squeezed out. He lost his term as completely as if the blood was squeezed out of his body. All this was owing to requiring the terms to be surrendered when they were satisfied—all this was owing to recognising the existence of the spectre. Qui prior tempore potior est jure was the maxim of the Civil Law, but the maxim of our law seemed to be posterior tempore potior jure. But do not imagine that the third lender was altogether secure in his title. There would be some comfort if a security of that sort could arise, because a bona fide purchaser without notice ought to be tenderly dealt with, and carefully protected by law; but he was exposed to a variety of risks. No man could tell in what cases a court of law would presume a term to be surrendered. Terms might be vested in trustees, and if the trustee had died, it was necessary to go to a Court of Probate to discover his representative. But what Court of Probate? It might be the diocesan court; but if he had 5l. in another diocese, there must be a metropolitan probate. Registration would provide a remedy for this. Mr. Bellenden Ker, an experienced and able conveyancer, had written an important tract on this subject; and he mentioned the case of a purchaser of a very inconsiderable property, who was obliged, for the sake of obtaining a surrender of terms as a security against many incumbrances, to make searches in four different diocesan districts at an expense of 400 l. Registration was a cure for all these difficulties. He thought he need not say any more to show how grievously absurd
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this plan was, and how much it required a real effectual remedy. The Real Property Commissioners, whose Report he was now about to read, had stated most distinctly that these terms had all the bad qualities which he now ascribed to them; that they made an innocent man the victim of another, and not unfrequently exposed both those persons to be the victims of a fraudulent party. Therefore, one of these Bills was to remedy the great scandal of the law as to outstanding terms. No man had a more clear and positive opinion on this subject than he had. He heartily agreed with his noble and learned Friend (Lord Campbell), and his learned coadjutors, in all their Reports on the subject. With regard to the recommendation of the Real Property Commissioners, that a system of general registration should be introduced, the measure would be a most beneficial one. If he was inclined to dispose of his property by will, he should not like to keep the will in his own repositories; it might be lost or burnt. He knew a case in which an estate of 30,000 l. a year had been taken from the heir at law and given to a devisee by a will, which had been found in a writing-desk in an old post-chaise which was being broken up for firewood. The making two copies of a will, and depositing one at a banker's, by way of security, was in reality no security at all. What possible objection could be made to a system of registration it was not easy to divine. It all, however, lay in one word—Yorkshire. He did not mean in the sense of astuteness or cunning; but it meant that, there was a registration in Yorkshire, and a registration clerk, with 4,000 l. a year; and there were attorneys in Yorkshire, who were all set against it for the lucre of gain; which attorneys, as in other shires, though he could not say they had their thumbs upon all the landed interest in the county, had a very great and overweening power over the landed interest, especially those who were in the way of borrowing money, as well as those who lent money on land. He could state it as a literal fact, that when he went into that county some years since, to enjoy a short vacation—about as long as the difference between the old style and the new—if he saw one placard about the Reform Bill, which was then the object of all men's wishes, he saw a dozen others calling on the landed interest to arouse them

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from their slumber, and resist the attack on their sacred rights, namely, the measure for the registration of titles to estates. But it was said, that every man's estate and title, with all the flaws in it, would be open to all the world, and that you might see them for one shilling; whereas it was one provision of the Act that nobody ever could look at any single title of any registry without the authority of the party who had an interest in his looking at it, because he was about to borrow money on the property, or about to sell. If it was asked, why he had not brought in a Bill for this purpose, he replied, that one consideration alone deterred him. If he introduced a measure respecting which no member of the profession had any hesitation, and coupled it with others about which there was much doubt, he might incur the risk of losing all. Let it not be supposed, therefore, that his opinion respecting registration had changed; he was only afraid that, if he put it in the same boat, it might be the feather that would sink it. With respect to the Law of Evidence, which remained still to be dealt with, although a good deal had been already done upon that subject; the principal objection which he had made last year in respect to this point had been removed by a clause introduced into the Bill of the Lord Chief Justice. That great error also had been removed as to not allowing Quakers to affirm in criminal cases. This led him to state what appeared to him to be a great defect in the law respecting interested evidence. No interest, however great, in the event of a suit, was sufficient to exclude a man's relations. A man whose father was, perhaps, ninety-five years, bed-ridden, and unable to make a will, the eldest son who was next in remainder might now be examined. Why should they not examine the party himself? He saw no reason why such a course should not be adopted. They did so in Chancery, why did they not do so in Courts of Common Law under due restrictions? Let one party be examined for himself, and then let another party be examined against him. That was another improvement which he proposed. The only other improvements with which he deemed it necessary to trouble their Lordships were two of a very important character—one relating to the Civil, and the other to the Criminal Jurisprudence. The first related to a declaratory action, which he
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proposed to give, under proper restrictions in respect to costs. The other related to our Criminal Jurisprudence — the infrequency of the Commissions of Oyer and Terminer. Successive Chancellors had often lamented that this form of proceeding, so beneficial in Scotland, was unknown here. Instead of being able to have a judicial decision on titles, and on rights of every kind, while the evidence was all forthcoming, and when it might be of vast importance to relieve anxiety and clear up titles, by settling doubts, we in England must wait till a party brings us into court. With respect to the other point which was connected with the criminal law, lawyers and judges had all felt the hardship of Commissions of Oyer and Terminer and general gaol deliveries not occurring more frequently. The Central Criminal Court for Middlesex, no doubt, made it impossible for imprisonment to be continued above a few weeks; but if crimes were committed outside of that district, the accused parties might be imprisoned for a period of six or seven months before their trial, because no judges were sent down to such districts at shorter intervals to open their Commissions, and because the rule of law said that where the offence was committed the accused should be tried in the same county. His Bill proposed to give power by an Order in Council for the appointment of Commissioners for the more frequent trials of offenders, and to authorize the removal of the accused parties from one county to another; and judges might be sent four times a year to try prisoners in those counties, so as to remedy the evils which were so loudly complained of. He had hitherto been dealing with rights of property, of real estate and personal estate, and in respect to actions and remedies consequent upon such; but he had now to remind their Lordships of a most important subject, not only as affecting property, but as seriously affecting the feelings and the characters of individuals. In some instances no one could say whether certain parties were really married or not, or whether their children were bastards, or had a legal right to succeed to their parents' property. That was the unfortunate position of even some persons of the highest rank in the country. Was not that outrageous, and contrary to all principles of common humanity? They had a conflict between the law of England

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and that of Scotland as respected marriage. Lord Hardwicke's Act, which he considered one of the worst efforts at legislation that appeared on the Statute Book, intended to declare that no persons should be permitted to marry under the age of 21 years without the consent of their parents or guardians; but the Act had really said nothing of the kind. It said that such persons should not marry without a license; but this did not prevent a marriage by banns; but, still, they might go to Birmingham or to Manchester, where, perhaps, 500 banns were published of a morning, and no one would be the wiser of it. The parties might also go to Scotland, at an expense of only about 5l., marry there in a minute, and come back again; thus Lord Hardwicke's Act would be set aside, for that marriage would be as good as any in the world. The law was evaded by the very people to check whom it was passed; it was not made for the poor; it was made to prevent the needy man from entrapping the rich heiress, or the cunning woman from entrapping the rich heir, and by these it could be evaded. Again, if a man went abroad, the judges here say, a divorce abroad cannot dissolve an English marriage; but if the man had married in Scotland, no one could tell whether the marriage was a good one or not—the prevailing opinion was, that it was not worth a farthing, there being a conflict between the English and Scotch Judges, one saying one thing, and one another. He should propose by his Bill, that twelve months' residence in Scotland should be required before a divorce of a marriage celebrated in England should be obtainable there, and that a three weeks' residence in Scotland should be required before what was called a Gretna-green marriage could take place. The real remedy would be, to repeal this part of Lord Hardwicke's Act, and make no marriage valid without the consent of parents. He hoped they would not be long without some general law on the subject, as, in consequence of a recent decision, it was doubtful whether a marriage in Ireland or their Colonies, or in any place where it might be impossible to find an English clergyman, was a marriage or not; and if it had not been a decision of their Lordships, he should have thought it utterly erroneous. They had certainly not been happy in their legislation on this subject.
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During the last Session an Act was brought in to "relieve Her Majesty's subjects from all doubts concerning the validity of certain marriages." The Bill consisted of three lines only, and on them three very great doubts arose. It declared that "all the marriages aforesaid, celebrated abroad by an English chaplain, or by the chaplain of a British embassy, or within the British lines, should be deemed as valid in law as if celebrated within the British dominions." That was the first doubt, because it would apply to the marriage of two French people by the chaplain of a British embassy. It might be said, they were not likely to come to this country. But their issue might do so, and become English subjects. The next doubt was this: the preamble went on to say, "as valid in law as if the same marriages had been solemnized within Her Majesty's dominions." Now, Scotland and Ireland were within Her Majesty's dominions, and so were our Colonies and the East Indies; and with respect to Scotland the law was totally different from that of England, and a marriage that was valid there was not valid here. As to marriages abroad, in consequence of the recent decision of their Lordships, no one could tell what marriage was valid, and what not. The Bill continued, "with the due observance of all the forms required by law." This was the third doubt, for no one could tell what forms the law required. The forms were different in Ireland and Scotland, England, the Colonies, the Cape of Good Hope, the East Indies, and in Guernsey and Jersey—to say nothing of the Isle of Man. He hoped that this Act would not be permitted any longer to disgrace their Statute Book; but that a measure would be immediately prepared that would have the effect of quieting the public mind upon this point. Before he concluded, he must observe there was no one branch of the various defects of the law which had been remedied that was more to the satisfaction of the country than that which respected the Law of Debtor and Creditor. Imprisonment upon mesne process was abolished altogether. He said that there should be no imprisonment at all for debt; but only in case of fraud or contumacy, or the gross making away of property. Great improvements had been already made on this subject; but he colud not dismiss it without saying that

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there was one change still necessary as a consequence of the great alteration they had made in the law by abolishing imprisonment for debt; he thought Members of the two Houses of Parliament ought no longer to consider freedom from legal process with respect to debt as the flower of their prerogative, and essential to the privileges of their station. While arrest for debt was the law of the land, it was very fitting their persons should be secure, because they might be imprisoned for factious purposes, or as an act of oppression from the Crown—not so likely to happen in modern days as in ancient times when the privilege arose; at all events, it was then necessary that their persons should be safe. But even their persons were not safe if they committed a misdemeanor or a fraud. The law laid it down, that the lawmakers should not be lawbreakers; and as it was in law, so it was in common sense. Admitting their persons to be sacred from arrest, still there was now an end of arrest; why, then, should Members of Parliament have a privilege of not paying their debts? Why should a Member of the House of Commons, or of the House of Lords, be the only person in the community exempted from the obligation of paying his debts? That was the question which he wished to enable that House and the other House of Parliament to answer before he was much older. Let them see that by the Bill, in which he proposed to make Members of Parliament, like all the rest of the community, liable to pay their debts out of their property, or to be punished if they fraudulently made away with that property. At all events if they would not pay their debts while they could, or were reduced to such a deplorable state that a man sued them and sued in vain for 20 l. or 30 l., not getting twenty pence in payment, were they fit to represent the Commons in one House of Parliament, or to compose the aristocracy, the hereditary legislators, and judges in the other? How could a noble Lord sit there and condemn persons, or hear them condemned, for having defrauded their creditors by having money and refusing to pay it, when he was doing the same thing, and that every day himself? He might fail in now carrying that measure; their Lordships might have the courage to say that this state of things ought to continue—that it was right it should continue; the Representatives of the people in the other
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House of Parliament, might also have the courage to insist upon the continuance of this system; but that courage would ooze out by degrees; they would find it would not very long survive; and he believed that he should not have to live very long to see this privilege abandoned altogether. By the 52nd of Geo. III., a bankrupt could not sit in the House of Commons; Mr. Smith's Bill excluded a bankrupt from the House; the preamble of the Act stated—
"Whereas it is highly derogatory to the dignity and independence of Parliament that a man who has become a bankrupt should continue to sit in it; be it therefore enacted, if any Member of the House be made a bankrupt, and shall not have paid 12 s. in the pound, and have had his commission superseded, his seat shall be sequestrated for twelve months, and if the amount be not paid at that time a new writ shall issue, that the people may be represented by a solvent person."
The law no doubt showed some favour to a bankrupt, because a bankrupt might be a person that was reduced to such a position in consequence of no fault of his. Bankruptcy might be caused by misfortunes in trade, by the accident of a failure in commerce, or by the accidents of peace or war; and yet, in the case of a bankrupt, there was this law upon the Statute Book which prevented him from sitting in Parliament. But there was no law whatever to prevent an insolvent from sitting in Parliament, and exercising all the rights which such a position gave him. Was such a person fit to make those laws which he could not obey, and which he, perhaps, scandalously contemned? He had no manner of doubt that he should live to see the day when the whole of his measures would be passed. He hoped and trusted he should live to see a Registration Statute passed, and a good criminal code added to the other benefits which this Parliament and this Government had commended to their consideration as a criminal code, to be followed by a digest of the civil law, upon an appropriate scale to that great measure. If he lived to see such benefits conferred upon the country, he should rest in peace and contentment from his labours, fully satisfied in having had a hand, however humble and feeble that might be, in erecting a column to the glory of the British Legislature—a column of a composite order, as originating in the virtue, the experience, and the solid sense of the community — a column adorned

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with all the various virtues of the various branches of the Legislature which composed its constitution, and representing all classes and interests in the community. If he were happy enough to stimulate their Lordships, and the Members of the other House of Parliament, and the Ministers of the Crown, in doing this great and good work, he had no wish whatever that any name but theirs should be inscribed upon that column. The noble and learned Lord concluded by laying the Bills on the Table. The following are their titles:—
A Bill for furthering the Administration of Criminal Justice; a Bill to enable Parties to be examined on the Trial of Civil Actions; a Bill to facilitate the Admission in Evidence of certain official and other Documents; a Bill to render the Assignment of satisfied Terms unnecessary; a Bill to facilitate the Conveyance of Real Property; a Bill to facilitate the granting of Leases; a Bill to give a Remedy by way of Declaratory Suit; a Bill for Amending and Declaring the Law of Marriage; and a Bill for securing the real Independence of Parliament.
Lord Campbellregretted that, notwithstanding the important statement of his noble and learned Friend, this side of the House was entirely deserted [with the solitary exception of Lord Campbell, every Peer on the Opposition Benches had quitted the House], and that the other side was represented only by the noble President of the Council (Lord Wharncliffe). Her Majesty's Ministers were considering the affairs of the nation, or perhaps refreshing themselves after their labours, and the noble and learned Lord on the Woolsack and the noble President of the Council appeared eager to join them. He should, therefore, defer his observations till the nine Bills of his noble Friend came before them. He would merely state that he should particularly support the Bill for simplifying the conveyance of real property; at present the parchments which conveyed a piece of land were sometimes as large as the land itself. He wished an attempt had been made to establish the Registry of Deeds, because that was the foundation of legislation on other points. While he was a Member of the other House he had laboured day by day on this subject; he got a Committee appointed, and though the Members of it were nearly all against the registry when they began,
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at the conclusion of the inquiry they were in favour of it. But the country attorneys his noble and learned Friend had alluded to were too strong for them. So strong an interest were they found, that he might relate now what was matter of history. When he was appointed Solicitor-General to William IV. the only stipulation made with him was that he should not for a time at least bring in any Bill for the appointment of a General Registry. But till such a Registry was established he thought the doing away with the terms of years was rather hazardous. He should hereafter be ready at greater length to discuss the Bills which had been introduced by his noble and learned Friend, and he was sure they would receive the best possible consideration from the House.
Lord Broughamhad twice stated that he thought a Registration the only remedy for some of the evils he had pointed out; but he was afraid to introduce the measure now, lest he should prejudice the prospects of the other Bills. He had a Bill ready on the subject: here it was [holding it up]; it was the same which had, under his direction and authority when in office twelve years ago, been brought into Parliament; but he did not like to have it printed, as there was no chance of carrying it this year.
The Bills were then severally read 1a.
House adjourned.