The LORD CHANCELLOR
My Lords, I rise, pursuant to the notice which I gave on the first day of the reassembling of Parliament, to state to your Lordships, and through your Lordships to the country, the intentions of Her Majesty's Government on the subject of legal reform. When I first became connected with the profession of the law, my Lords, now more than thirty-five years ago, that subject was one which certainly without the walls of Parliament, and to a great extent I may also say within those walls, received little attention, and scarcely excited any public interest. Mr. Jeremy Bentham, indeed, in his amusing, epigrammatic, and often very well-reasoned writings, strove to awaken public attention to the importance of the question. In the other House of Parliament, also, an individual whose name, long connected with this subject, can never be mentioned but with respect, I 42 mean Sir Samuel Romilly, along with my noble and learned Friend who formerly filled the woolsack, but who is not now present—Lord Brougham—from time to time brought this important subject under consideration. After the death of Sir Samuel Romilly, Lord Brougham still continued to keep the subject alive, but its importance was hardly adequately appreciated by the public. I need not say, my Lords, how different is the state of things at the present day. This subject now, so far from failing to arrest public attention, may fairly be said to be one which—putting more exciting topics aside—engrosses more than any other the thoughts and attention of a large mass of the community. All people desire, and most reasonably desire, to have the laws put upon such a footing that our rights shall be clearly and well defined, and that the mode of enforcing them shall be rendered as simple, as cheap, and as expeditious as the ingenuity of those who direct their attention to the subject can make them. My Lords, turning back my recollection again to the period when I first became at all acquainted with the law, I think I may say that the distinguished lawyer who then filled the woolsack, Lord Eldon, as well as the distinguished men who preceded him, scarcely seemed to have considered that the introducing and maturing measures of legal reform constituted any very distinct or essential branch of the duties which devolved upon them. Practically, at least, they so conducted themselves as if they had no such duties. Very few measures on the subject originated with them, and it was rather thought to be their duty to watch against the introduction of hasty and ill-considered measures by others than to introduce any on the part of the servants of the Crown. The state of things, however, has been very materially altered in modern times, and no one filling the office I have now the honour of occupying, can fail to feel that to him the country looks, if not for the introduction of measures of reform, at least for a general supervision of the whole legal system, to introduce measures where new measures may be necessary, to resist proposals which the Government may think ill-conceived; in short, to exercise a general control over the legal condition of the country, in order to keep it in the most satisfactory state which the nature of things will permit. My Lords, with these feelings, immediately after I had the honour of receiving the 43 Great Seal from Her Majesty, I thought it my duty, without hesitation and without delay, to direct my attention to the existing state of the legal courts—the great courts—of this country. I considered it my duty to direct my attention, in the first place, to those courts, to see whether they were or were not in a satisfactory state—whether there were any measures which I could usefully introduce, or whether it was fitting that I should pause before taking any step on the subject. I felt, my Lords, that there might possibly now be a danger the opposite of that into which I think those who held the Great Seal half a century ago had been too apt to fall—that there might now be a danger lest, from the strong and prevalent feeling of the country that the law requires reform, and that reforms ought to be considered, those who have the supervision of such matters might—in order to seem at least to be doing what the public requires of them—be led to bring forward measures for the mere sake of introducing them, without being perfectly satisfied that such a course would be in the end beneficial. There might be, in short, a little danger lest the holder of the Great Seal should fall into a course something like that occasionally pursued by inferior medical practitioners, who, in order to appear to have earned their fee, prescribe for their patients doses of physic, when the best thing would have been probably to let them alone. With these views, I directed my attention to the state of the great tribunals of the country; and first, my Lords, to those courts which, after all, are the most important—the great courts of common law, in which the ordinary rights of mankind are enforced and protected. I wished to consider in what position those courts stood, and whether I ought in any way to interfere with them by attempted legislation. On this subject—not to attempt to weary or trouble your Lordships by going back into what the state of these courts was in bygone times—I need not remind you that a very general feeling existed a few years since, that the mode of administering justice in the common law courts of the country was attended with unnecessary technicality, with fictions, and with other impediments to the simple administration of the law. With the view of remedying these evils, Lord Cotton ham, only a few weeks before he resigned the Great Seal, issued a Commission to inquire into the process, practice, and pleadings in the superior 44 courts of common law, the manner of conducting suits and other proceedings in such courts, and the costs and charges incident thereto; the practice in Judges' chambers, and the salaries, fees, and emoluments of the clerks and other persons connected with the courts. That Commission included many eminent lawyers, among whom were Mr. Baron Martin, then at the bar, and the then Attorney General, and they were assisted by several other distinguished lawyers. It is, indeed, impossible to do justice to the labours which those gentlemen undertook and executed. They looked through the whole course of proceeding in the ordinary courts of law, beginning at the commencement of a suit, and tracing it from the first step the party aggrieved, or supposing himself aggrieved, is obliged to take, to its final termination, when the plaintiff, if successful, obtains redress by execution against the party who has aggrieved him. The Commissioners made their report on the 30th of June, 1851, and it was received by my noble Friend then on the woolsack. The end of the Session was nearly approaching, and of course nothing could be done in that Session of Parliament; but my noble Friend, with the persevering zeal which all who know him are well aware that he possesses, devoted himself during the long vacation to the framing of a Bill, which was pre-pared under his superintendence, for carrying into execution the recommendations of the Commissioners, and which was laid on the table on the second day of the Session of 1852. Soon afterwards, my Lords, a change of Government occurred, but this change had no effect with reference to the Bill to which I am alluding. The Bill was referred to a Select Committee, and as it was there thought the best mode of dealing with the subject was, that certain persons who took an interest in the question should consider it out of the walls of this House, my noble Friend Lord Lyndhurst, the Lord Chief Justice of the Queen's Bench, Mr. Baron Parke, and several others, with myself, took the Bill, and went through it clause by clause, in order to render it as efficient as we could. We did so; the Bill came back; it passed your Lordships' House; it went clown to the other House of Parliament, where it was also passed, and received the Royal assent on the 30th of June last year, singularly enough, exactly twelve months from the day on which the Commissioners made their report. That, therefore, my Lords, 45 is the state in which I found the courts of common law. A Bill introduced in the mode and under the circumstances I have mentioned, received the Royal assent, and became the governing principle of those courts on the first day of last Michaelmas term. It has been often supposed that practitioners of the law and the Judges have a prejudice against anything like change and innovation. I will not stop to inquire how far that notion is or is not well founded; but, if it be well founded, I must say that those persons have borne most ample testimony to the merits of this measure; for, having conversed with many of the Judges of the courts, and with a great many practitioners, I have found one universal expression of their satisfaction at the change which has taken place, and a conviction, on the part of all concerned, that it has been eminently beneficial. My Lords, this being the state of things, I felt satisfied that it would be quite improper for me to attempt to do anything in that direction in the shape of reform. But, in order that your Lordships may see the grounds of the opinion I have formed, I; may state the result of inquiries which have been made with regard to the working of the present law, as contrasted with that which preceded it. I need hardly state that the great object of the new Act was to got rid of those unnecessary forms, which made proceedings unintelligible, and, of course, expensive. Among other forms which existed was this, that almost every step that was taken (or, at least, a great many steps) in the proceedings of courts of common law, was preceded by getting what was called a rule of the court, an order of the court. The expense of a rule in the shape of a fee, was extremely small; but, as far as it went, the Commissioners were of opinion that it was quite an unnecessary expense. A great number of the rules were consequently abolished. Indeed, I have a return which shows that rules which, in 1851, amounted in the three courts to no less than 34,900, have been abolished. The cost of these rules, with regard to fees, was, as I have said, very small, not averaging more than 3s. each; and the whole cost of the fees upon the rules I have mentioned was only between 3,000l. and 4,000l. But I need not tell your Lordships that the cost of the fee forms a very small portion of the expense of any proceedings to a suitor. The suitor conducts his case by his attorney, and the obtaining of the rule, the serving of the 46 rule, and the proceedings upon it, lead to an expense which makes the fee sink into entire insignificance. I obtained, however, from Mr. Walton, who has done himself infinite credit in the course of the inquiry of the Commissioners, another return, to which I will call your Lordships' attention. I said to that gentleman, "Do not merely confine yourselves to the fees abolished. Show me upon some one proceeding what is the cost of the whole proceedings under the old system, and what is the cost now." Mr. Walton instanced the case of a party proceeding to recover a debt where the person proceeded against does not mean to offer any defence, but says, in vulgar language, "Do your best and your worst," and leaves his creditor to obtain judgment and get his money as he can. In 1851 there were 1,998 of such proceedings, and I got Mr. Walton to ascertain what was the cost of the proceedings in each case wider the present and under the old system. He tells me that under the present system it is impossible to state the costs quite accurately, because they vary to some extent, according to the amount sued for, but that upon the highest average it would be 4l. I then asked Mr. Walton to take at hazard ten bills of costs for similar proceedings under the old system, and the costs upon those ten cases were 154l., being an average of 15l. in each case. It appears, therefore, that the new system effects a saving of 11l. out of 15l. in proceedings of this nature, and I cannot conceive anything more satisfactory as indicating the great advantages gained by bringing the Act into operation. Mr. Walton, however, made further inquiries as to another ordinary proceeding—a distringas, a most cumbrous and clumsy means of forcing into court a party who will not attend to notices served upon him, and it appears that in this instance also the advantages of the new system are most apparent. This, however, is not all. Under the old law if a debtor was abroad there were very great difficulties in proceeding against him, which could only be done by the process called outlawry. The new Act, however, remedied the defects of the old law, and that it has worked beneficially is shown, I think, by the fact that since the measure has been in operation-—from the commencement of November last to within a fortnight—114 writs have been issued against parties abroad, whose creditors may be enabled to recover what is their due. There is, however, another mode in which we may 47 see that the new system works very satisfactorily. The number of suits, litigated and not litigated, is between 60,000 and 80,000 in the course of a year, and therefore questions must arise from time to time as to the working of any code of practice, however well matured; but it is a matter of astonishment to me to hear that there have been only twelve motions in all the three courts with reference to proceedings under the recent Act, and, out of those twelve, I believe that ten were not upon proceedings that have originated under the Act, but upon the dovetailing of the new proceedings upon those that had taken place before. Nothing could be, I think, a more satisfactory proof of the admirable way in which the course of practice originated by the Act has been carried into effect. There is yet another mode of ascertaining whether a measure of this nature has been satisfactory to the public or not, against which I think no objection can be made. I desired to know what has been the comparative amount of litigation in the superior courts in the corresponding quarters of this year and the preceding. I find that the number of writs issued from the 25th of October, 1851, to the 25th of January, 1852, was 19,000; while from the 25th of October, 1852, to the 25th of January, 1853, the number issued was more than 23,000. That fact is, I conceive, sufficient to show that the public are satisfied with the change. This, then, is the state in which I find the superior courts of common law, and if there were nothing else to deter me from attempting anything like legislation on the subject, I think I have shown a case that would perfectly justify me in not attempting to introduce any measure: but I am still more fortified in the view I take by considering that the Commissioners are yet proceeding to make further suggestions, and to recommend further most important changes. I was informed that their report would have been ready to be submitted to the Crown before this time. That, unfortunately, has not been the case, but we may expect almost daily the report in which recommendations with regard to these important questions will be submitted to the Legislature, who will adopt them or not, as they may think fit. I have heard a great deal of what has been called the fusion of law and equity—that is, making no distinction between the one and the other. When the proper time arrives I shall be prepared to express my opinion on that subject; but, 48 whether that fusion is to be effected in its integrity or not, every one must feel that when a suit has been commenced in any court, it is to the last degree expedient that such court should be enabled to give all the relief which the nature of the case permits—that the parties should not be handed over from court to court when it can be avoided; and with the view of introducing amendments of that kind, I understand that recommendations will come from the Commissioners that in cases relating to the specific performance of contracts, a concurrent jurisdiction shall be given to the courts of common law with the courts of equity. Now, where a party proceeds in defiance of right to do that in respect of which damages may be recovered from him, the only mode of stopping him from doing it is by applying to the Court of Chancery for an injunction. By an Act passed, I think, in the last Session—[Lord CAMPBELL: No; in 1851.]—I allude to the Patent Law Amendment Act, power is given to the courts of common law to interfere in this manner in certain cases, and the Commissioners have been considering whether that principle may not be safely and usefully extended to a variety of other cases. There are many other subjects which I know have engaged the attention of these learned persons, and one among others, with respect to which, although I must own that much may be said in favour of a change, I think we ought to pause before we arrive at a decision. It is said that the trial by Judge, instead of by jury, has been eminently successful in the County Courts. Undoubtedly that has been the case; and it has been a matter of inquiry before the Commissioners whether the same principle may not be usefully extended to the cases tried in other Courts—whether you may not give up the machinery of a jury, and leave it to the Judge to decide the question in dispute. I think, in considering such matter, we ought not to lose sight of this fact: that, in sanctioning an arrangement of this sort, we should be taking a step towards unfitting for their duties those who are to send representatives to the other House of Parliament, who are to perform municipal functions in towns, and who are to exercise a variety of those local jurisdictions which constitute in some sort in this country a system of self-government. It may be very dangerous to withdraw from them that duty of assisting in the administration of justice. I do not say that I 49 have conclusively made up ray mind on the subject; but I must say it is a subject to be approached with very great delicacy and caution. My noble and learned Friend the Lord Chief Justice of the Queen's Bench, who has had the advantage, both as a Judge and as an advocate, of attending in assize towns, and of seeing the proceedings in the Courts, cannot, I am sure, have failed to observe, that at the end of the assizes those who have been summoned as jurors quit the assize hall a much more intelligent set of men than they entered it; and, if that be the case, it ought not to be a very trifling advantage that should lead us to abandon such a system. Mechanics' schools may afford valuable instruction, but I doubt if there is any school that reads such practical lessons of wisdom, and tends so much to strengthen the mind, as assisting as jurymen in the administration of justice. I think, therefore, that this is a subject which deserves very serious attention. I have now stated to your Lordships the view that I took in considering whether anything ought to be done with reference to the Common Law Courts, and I come to the conclusion that it would be most unjustifiable if I were to attempt any legislation on the subject. I pursued, also, a similar course of inquiry with reference to the Court of Chancery. I need not remind your Lordships of the Commission issued by my noble and learned Friend then on the woolsack, on the 11th of December, 1850, to inquire, in the same way as the Common Law Commission, into the system of proceedings in the Court of Chancery, the duties and fees of the officers, and various other particulars. In the course of the Session of 1851, after the Commission was appointed, two Members of the other House of Parliament, unconnected with the profession of the law, were added to it, in order that we might not have a merely professional report. The Commissioners reported, on the 27th of January, last year, about a week before the meeting of Parliament. Now, what was done upon that? Why, a Bill was introduced into the House of Commons by the then Solicitor General to carry into execution a portion of the recommendations of the Commissioners, and, a change of Government having taken place within two or three weeks after the meeting of Parliament, my predecessor embodied the rest of the report in two Bills—one the Masters Abolition Bill, and the other the Improvement of the Jurisdiction in Equity 50 Bill. Now, I cannot but feel that the origin of those advantages is attributable to my noble and learned Friend opposite (Lord Truro). It was he who instituted the Commission—the report of the Commission was received by him—and one Bill was introduced by him immediately after the receipt of the report. My noble and learned Friend who immediately preceded me (Lord St. Leonards) took up the report, and unquestionably with a zeal and vigour which, although he is present, I will take leave to say, no other individual could have exceeded. He embodied the recommendations of the Commission in the form of two Bills at once. He was not, indeed, able to give the Bills the same amount of consideration—that could not be—as had been given to the framing of the clauses of the Bills on common law reform. They were necessarily framed with more hurry; but I am not aware that any material errors have been found in them. With respect to the working of the measures, it cannot be expected that their effects should be so speedily apparent as in the case of the common law courts, because in the courts of common law many of the proceedings are much more rapid in their nature than in the Court of Chancery. A case in the courts of common law may be begun, continued, and ended in two or three months; but with proceedings in equity the ease is different. Some time must elapse, then, before the full benefits of the measures can be ascertained; but, so far as I can speak from my own observation, and so far as I can collect the opinions of others, the changes are working admirably well. I stated to your Lordships the difference in the cost of proceedings in the common law courts under the old system as compared with the cost under the modern system, with the view of enabling your Lordships to judge of the improvement which had been effected. I shall now do the same with regard to the Court of Chancery. I have before me, not mere speculation on the subject, but actual facts; and the best way of letting your Lordships know what is the actual state of the case will be to refer to the document before me. I shall take intentionally an uncontested case. It is a case where a person having died, the legatee wants payment of the legacy. The executors say, "We are quite ready to do so, provided we can do so without injury to the creditors." In this case all that has to be done is this: An application is made 51 for an order to have the property distributed. All the parties are then required to attend before the Master of the Rolls, to show cause, if any, why an order should not be made. No objection being offered, an order is accordingly made, almost in as many words as I have used in stating the case. An account is ordered to be taken of the amount of property left, an advertisement is ordered to be inserted in the newspapers, and then, after payment of the creditors, the remainder of the property is handed over to the legatee. Under the old system, by bill and answer this proceeding would have cost 58l. The expense was materially reduced by an alteration in practice which was introduced by Lord Cottenham, by substituting a claim for a bill. Under that system the expense would have been 22l.; it is now reduced to 13l. This is, however, by no means a favourable specimen of the reduction of expense effected by the new system, because this is a proceeding which originates in chambers, before a Master; whereas, under the new practice, the bulk of the orders are orders which originated in the progress of cases depending before the court. Such, then, being the state of things, and knowing that the Commissioners are proceeding rapidly to make a further report, I think it would be unpardonable in me to propose legislation on the subject at present. I have no hesitation in saying, further, that even if I had come to the conclusion that legislation was desirable at present, I am not so insincere as to pretend to your Lordships that I could have come down to the House with a matured measure on the subject. I have been in possession of the Great Seal for about seven weeks only, and during that time I have been sitting almost every day in court until nearly five o'clock. To suppose, then, that under these circumstances I could have come prepared with an important measure for the further reform of the Court of Chancery is, of course, out of the question; but I have satisfied myself that, even if it could have been done, it is at present inexpedient. With respect to the state of business before the court, I have to say that my noble and learned Friend (Lord Truro) having introduced a measure constituting a court of appeal by Lords Justices, the result has been, that for some time there has been no large arrears before the appellate branch of the court, and that in the other branch of the court the business generally is in a satisfactory state. And therefore I have 52 come to the conclusion that, whatever course I ought to take, it ought not to be any attempt at legislating either on the subject of the Courts of Common Law or the Court of Chancery. Since I came into office, innumerable letters have been sent me urging me to throw overboard all that has been done, and introduce a comprehensive measure for the fusion of law and equity. But my opinion is, that this is a sort of measure which, if it be ever introduced, should be introduced by one who has held the Great Seal more than six or seven weeks, and who has had more opportunity than I have had of considering how it could be best accomplished. In their report, the Chancery Commissioners allude to a state of things which I confess appears to me discreditable to the country, and in this opinion I am happy to think I have the concurrence of my noble and learned predecessor—I allude to the state of the testamentary jurisdiction of this country. In their report the Commissioners make no suggestion on the subject, but they state that they do not differ from the views contained in the report of the Ecclesiastical Commissioners in 1832. That was a Commission issued by Lord Lyndhurst, and directed to very high functionaries, and those learned persons—among the most learned in the country—came to the conclusion which I shall take the liberty of reading to you. In the meantime I may mention, in passing, that the Commission consisted of Archbishop Howley, the present Bishops of London and Lincoln, the then Bishop of Durham, and three other bishops, Lord Tenterden, Sir Christopher Robinson, Sir H. Jenner Fust, Sir J. Nicholl, Dr. Lushington, &c. So far as names can carry weight, therefore, the report of these persons is entitled to great consideration. And what conclusion did they arrive at?The alterations which we humbly suggest to Tour Majesty are—that the same, solemnities should be required to render valid every testamentary disposition of every description of property, without any distinction, so that the same formalities of execution and attestation shall be necessary, whether the testamentary instrument disposes of real or personal estate.This has been done.And further, that under the limitations hereinafter detailed, the validity of wills disposing of real and personal estate, or either, shall be determined by trial in one of the same courts, and the probate made final and conclusive evidence of title to real and personal estate. We humbly think that by thus rendering the judgment of a competent court unappealed from, or the judgment of a 53 court of appeal on the merits, after proper warning given to all who have an immediate interest, final and conclusive evidence, in all courts, of the rights to real estate, additional security will be afforded to titles to real property, and some delay, doubt, litigation, and expense avoided. In order to render these changes practicable, we think it necessary, under certain restrictions, to introduce into the Ecclesiastical Court proof by vivâ voce evidence. Our most careful attention has been bestowed on this subject; but we do not conceive it requisite to enter into any elaborate comparison of the advantages or disadvantages attendant on evidence by written depositions or delivered vivâ voce. If the same court is to decide on the validity of wills of real and personal estate, there must be the same mode of trial; and, without reference to the superiority of the one description of testimony or the other, the decision by a jury upon vivâ voce evidence as to the validity of a will of real estate is so firmly established as the law of the land, and so consonant to the feeling's of the community, that no one would venture to suggest an alteration in that respect. From the adoption, therefore, of one trial for wills, both of real and personal estate, it follows that wills of personalty must be hereafter adjudicated by the same form of trial and description of evidence as now apply to devises of real property. We propose that in all cases the validity of a will shall be tried by viva voce evidence, and a jury, where any party interested may desire it, or the judge, without such application, shall think fit to direct it; and that such trial shall take place before the judge of the Ecclesiastical Court, or, if such judge shall think fit, or the parties shall require it, before a judge of one of the courts of common law; with such power of granting new trials by the ecclesiastical judge as is now exercised by the latter courts; and that the refusal to direct an issue with respect to any will, or the granting or refusal of a now trial, may be made a ground of appeal.With these recommendations I entirely agree; and, although I am not at present prepared with a measure to carry them into execution, yet I beg to assure your Lordships, that my attention has been directed to the best mode of accomplishing the object. I do not, however, pledge myself at once, and without mature deliberation, to introduce a measure on the subject, because I cannot but feel that in introducing a measure of this kind there is a risk of shocking a great many interests, which we ought not to do unless we have strong grounds for it; and also of imposing hardships upon many innocent and meritorious persons, which I am unwilling to do; but, having the advantage of being nearly related to the Judge of the Admiralty Court, Dr. Lushington, whose experience on this subject is perhaps greater than that of any other living man, I have put myself in communication with him, and have endeavoured to get suggestions from him as to how any such change can be effected in 54 the mode least likely to cause injury to large classes of innocent persons. But there is another reason which even if I were prepared with a measure, would stop me from introducing it now. In November last my noble and learned Friend (Lord St. Leonards) directed the Chancery Commissioners, in addition to other matters, to inquire into this very subject, and while that inquiry is still pending it would hardly be fit that I should at once come forward with a measure on the subject. My noble and learned Friend, however, will pardon me for saying, that I regret the terms in which he issued the Commission, and that I am not prepared to say that if the Commissioners shall come to a different conclusion from the Commissioners of 1832, I shall prefer acting upon their representations instead of upon those of their predecessors. There is one other matter connected with these courts to which, so far as I have had time, I have attempted to direct my attention. Three or four years ago a commission was issued to inquire into the law of marriage. In the year before last another commission was issued to inquire into the law of divorce—both subjects having been dealt with in the ecclesiastical report to which I have referred. Upon the subject of divorce I must confess I have an opinion so distinctly formed that I believe nothing will shake me out of it. Your Lordships will observe that every divorce à vinculo matrimonii, according to the present practice of the country, is a privilegium or private law; and yet once establish the existence of certain facts, the party seeking the divorce is entitled to it, almost of absolute right, without any previous judicial inquiry; whereas I hold that the inquiry ought to be one solely of a judicial nature, and that the result should depend upon the decision of the Judge, ay or no. There, again, there is an inquiry pending, and it would consequently be impolitic that I should propose anything until it is concluded. Having now stated what I am not going to do, I shall proceed to state what measures I am actually prepared to bring forward. And here I beg to remark, that I should not have flinched from stating that I was unprepared to bring forward any measure at all, if, upon looking into matters as closely as my time permitted, I had not seen my way. I should have incurred the risk of hostile observation rather than have come down and proposed measures which, in my conscience, I did not think I could safely and honestly 55 propose as likely to be useful. But I find what I think is a most beneficial measure almost ready to my hand. Of all the subjects, next to the reform of the superior courts, on which I have had communications addressed to me since I have had the honour of being intrusted with the Great Seal, there is none on which so much has been said as on the subject of the transfer of land, and I have directed my attention to the consideration of the question of what could be done, if anything, to carry into execution the views of the parties making the suggestions. I soon came to the conclusion that most of the suggestions I received were founded upon an entire misconception and a misunderstanding of the subject. To suppose that we can ever arrive at such a state of things as that the land of the kingdom can be transferred as easily as Bank stock, is to suppose an utter impossibility. Why, the objections to this lie on the very surface. It is obvious that one 1,000l. of stock is precisely the same as every other 1,000l of stock, while every man's acre is different from his neighbour's acre. It is therefore necessary that we should be able to identify every particle of land that is subject to transfer. That is one difficulty. But the real difficulty in what is called the transfer of land does not arise from the state of the law relative to its transfer, but from the law as it exists under the social and political institutions of the country. I find that what many persons mean by facility of transfer of land, when pressed on the subject, is, that there should be no ownership except that of ownership in fee simple, or ownership for life with remainder to another in fee simple, as it exists in the State of New York at this moment. I believe that there no lease is allowed of more than twelve years' duration. If there were no ownership but that of fee simple there would be very little difficulty indeed in the transfer of it; but once admit the complication of interests arising from mortgages, settlements, jointures, entails, and what are called shifting estates, the difficulties are very considerable; because, when a party sells he must prove that none of these circumstances affect his title. I believe that this is at the root of the difficulty and expense in the transfer of land in this country, and not in the system of conveyance; and as I do not think it my duty, even if I thought it beneficial, to propose any alteration of the existing system of entail, settlements, & c, in this 56 country, I must deal with the question ass I find it, and proceed upon the assumption that such is still to be the state of the law, and that parties are to continue in the possession of the rights they now enjoy with regard to the settlement and disposition of their property. That being so, there are two modes by which the transfer of land is made expensive at present—one arising from the length and complication of conveyances; and the other, and the really important one, from the investigation of titles. As to the length and complication of conveyances, there is no necessity for legislation on the subject, inasmuch as that length and complication does not arise from the state of the law, but from the desire of the person purchasing to have the fullest details on the subject stated in the conveyance. If that be so, then I proceed to inquire whether we can devise any mode by which the investigation of titles can be made less difficult and occasion less expense than now. I will not attempt to misrepresent to your Lordships or the country what I conceive to be the advantages of registration; but it is obvious that it can be of little or no immediate advantage. I have seen a plan proposed by Mr. Wilson, by which it is supposed the object in view could be easily effected. Mr. Wilson proposes a sort of book-keeping of titles and the giving of certificates. Now, I give this gentleman full credit for his ingenuity; but there is one little point that is essential to his system, which, if he gives to mo, I will undertake to make my registration as simple as his; and that is this:—A party is to put his name on the register as the owner of a given estate, and then, if by a given time—say ten years, or, as Mr. Wilson thinks would be better, a shorter period—every person does not come in and enter his claim to the land, the register is to be taken as a conclusive proof of undisputed title. Give me that, and at the end of ten years I will make the transfer of land extremely simple. Nothing can be more easy, when once you have got a constat, as it were, of the absolute ownership of any individual. Then this gentleman proposes, when once you have got a perfect title to the land, that the owner shall have a certificate that he is the absolute owner in fee simple. Having that certificate, if he wants to transfer the land by way of mortgage, for instance, he goes to the Registry Office, the certificate of absolute ownership is cancelled, and he is provided with another 57 certificate, which states that he is the absolute owner, subject to a certain mortgage. And then, again, when the mortgage is given up, a new clear certificate is supplied to him, stating that he is the absolute owner in fee simple. But, when you once establish a clear title, there is no difficulty in the matter. Upon this scheme, or something like it, all the plans that I have seen have been founded; but I do not think that they could be at all operative, except with an entire alteration of all the law, not indeed relating to the transfer of land, hut to the title to land. I have paid great and respectful attention to the observations which have proceeded from my noble and learned Friend behind me, and if I can engage his support to the proposition which I have to submit, it will give me extreme delight. My proposition then—I call it mine in now submitting it to your Lordships—is similar to that which was embodied in the Bill of my noble and learned Friend (the Lord Chief Justice) of 1851. I propose, when anybody purchases an estate, that he is to go to the registrar and put it upon the register. When time passes, and I want to sell, it will be seen that I have that register, and my deeds will show what my title "was," because I do not propose to affect bygone titles; and then I propose that nothing shall affect the title to that land beyond what is seen upon the register in conjunction with my own original deeds. I can have no interference with the registry. It is possible, indeed, that there might be cases of gross fraud, but they can be dealt with as they arise. We are not to pause in a great good because there are difficulties in the way, and I think that very considerable good is to be effected in this direction. It will make the mode of transferring land safe, simple, and cheap. I do not propose, in moving the introduction of this measure, to enter into any discussion upon the details of the subject, except with a view to the suggestions which have been made to me as to the working of the Bill, that it will not effect a great many objects which I, in truth, am persuaded it will effect. It is said that there are difficulties in the way of settlements. The way in which I propose to deal with that question is this:—A party registers his title. If he wishes to make a settlement he may make it and put it upon the register. Then anybody who purchases the land may see what that settlement is. But if he wants to retain the power of selling 58 the land, notwithstanding the settlement, I propose that he shall have the power, if he desire it, of stipulating that the settlement shall not appear upon the register. It is argued that that affords an opportunity of defeating the settlement. Undoubtedly, I admit that it does; but if you wish to make the settlement binding, you must put it on the register, and then it cannot be defeated. At the same time, provisions are made that any persons entitled under a settlement which is not on the register, may obtain an inhibition upon the land being sold, and may prevent injustice being done. By this measure, then, means are taken for always keeping upon the register an absolute owner. I shall not, upon the present occasion, dwell at greater length upon this matter, because it is one of that intricate character which can only be dealt with when it shall come before your Lordships in all its details. In the mean time I will promise to name an early day for the second reading. One other subject has come under my consideration, which I shall only glance at, because I confess it is not in such a state that I could satisfactorily to myself give any detail of its precise provisions—I mean the Bill for the better regulation of Charities. A Bill with that object was introduced by my noble and learned Friend (Lord Truro) in 1851; but it cannot be adopted in the form in which it was introduced by him, because the machinery for carrying it out—that of the Masters in Chancery—is at an end. I have had under consideration several schemes upon this subject, and several communications with my noble Friend the Secretary of State for Foreign Affairs, and I may state that a Bill is in progress which I hope, at an early day, to be able to lay upon the table of the House. The Bill to which I refer will be introduced with the view of carrying into effect the objects of my noble and learned Friend, subject to several modifications, and particularly to that of the abolition of the office of Masters in Chancery. I have now told your Lordships why I have not attempted to legislate upon the courts of the country, and why I do propose to introduce this Bill, and why I introduce it nearly in the form in which it passed your Lordships' House in 1851. I have also explained, I hope satisfactorily, why I cannot at the present moment be prepared with any more mature measures upon these subjects. But, though I am not prepared with any mea- 59 sure, properly speaking, of legislation to submit to your Lordships, I now proceed to state that I have, though in a slight degree, commenced, and that I intend, so far as in me lies, to proceed in the work which I believe is as much called for, and will prove as beneficial to the whole community of this country, as any measure which the ablest Legislature ever passed. My Lords, have any of your Lordships, looking into the library of your House, ever beheld upon its shelves forty closely-printed quarto volumes, lettered on the outside, "Statutes at large?" In those forty volumes is contained that which is to regulate the Judges in expounding the law and the whole community in the performance of their duties. There are many statutes which are not to be found in those collections; but, for practical purposes, we may take it that the statutes are contained in those forty closely-printed quarto volumes. I think it may safely be said that it is not creditable to any country that its statute law should he in such a condition. I will endeavour to give your Lordships some idea of the enormous mass of statutes now existing. I have ascertained that from the first year of Edward III. to the end of Queen Anne, there were passed 3,256 statutes; from the end of Queen Anne to the Irish Union, there passed 5,952; and from the 1st of George III. to the end of 1844, there was about 5,200 more, making an aggregate of statutes, from the 1st of Edward III. to the end of 1844, of 14,408. That is exclusive of the Irish and Scotch statutes. To what they amount I am not able to say, but altogether they must increase the aggregate to something like 20,000 statutes. The great number is of itself a circumstance that affords an irresistible argument for the necessity of doing something; but, independently of their enormous quantity, there are other reasons which suggest themselves, They are all in a most repulsive form—there is no classification—but they are huddled together in the most complex fashion. It is part of the law of the land that there cannot be a single stop in a statute, or, at all events, it is to be read as if there was none; and, though you see them printed with stops, I have heard it argued that if the stops were in different places a different meaning would attach, and that the stops must he disregarded altogether. This, surely, is hardly a creditable state for our statutes to be in. Then, again, the style in which they are couched is most per- 60 plexed. You will see enormous sentences occupying a whole quarto sheet, unbroken by a single paragraph or division. The result is really deplorable. By one of the fictions of law the Judges are supposed to be acquainted with all the law, both written and unwritten. To suppose that they really do know anything like all these statutes, is absurd. No human mind could master them. What has been the consequence? Knowledge is impossible, and therefore ignorance has ceased to be a disgrace. Proposals for digesting the statutes have been made from the very earliest times. I do not mean to weary your Lordships by going into the question of what was attempted and left unaccomplished by Sir N. Bacon, Lord Bacon, Whitelock, and others. But I will pass entirely to more modern times. In 1806 the Commissioners on Public Records came to a resolution—That Francis Hargrave, Esq., should be re-requested to consider and report to the board as to the best method of reducing the statute law into a smaller compass and more systematic form, and of revising and amending the same, in the whole or in part; repealing what is obsolete, and consolidating what consists of needless repetition; specifying the general heads of the statute law most necessary to be dealt with in either way; the best method of rendering the style of our future statutes more correct, concise, and uniform in their forms of expression, and at the same time more perspicuous in the arrangement of their enactments and provisions: with a statement of such practical rules as appear to be most effectual for this purpose.Ten years afterwards, in 1816, your Lordships framed two resolutions declaring the expediency, in your opinion, of arranging the enactments in the Statute-book under separate and distinct heads, and that a person learned in the law should be appointed for this purpose, with a number of clerks under him not exceeding twenty, which being communicated to the House of Commons, the following Resolution was adopted by that House:—That this House doth agree with the Lords in the said resolution so amended; that from the present state of the statute law of this realm it is highly expedient that effectual measures should be taken to arrange the matters contained in the statutes of the United Kingdom of Great Britain and Ireland, and in the statutes passed in the separate Parliaments of England, Scotland, and Ire-kind respectively, under distinct and proper heads.Upon that an address was made to the Crown, and the answer of the Prince Regent was that he would give directions accordingly. Still, nothing came of all these proceedings except a partial consolidation from time to time upon certain sub- 61 jects. There was a consolidation of the slave trade, of the Excise, the Customs, and some of the criminal law statutes. But all these were very imperfect remedies. On the 23rd of July, 1833, my noble and learned Friend Lord Brougham, who was then Lord Chancellor, issued a Commission (which has now resulted in the criminal law reports) to digest the statutes relative to crimes, and to inquire how far it might be expedient to consolidate other branches of existing statute law. They proceeded in their investigation of the criminal part of the subject entrusted to them, and in July, 1835, they made a report upon the subject of the consolidation of the statute law. They made many useful suggestions, and they said that three things might be done. The first and most limited application of these remedies would consist in a mere reduction of the existing statutes by expurgation; a second and more extensive application of them would consist in a similar reduction, with a classification and consolidation of the remaining enactments; and a third and still more extensive application of them would consist in a similar reduction, classification, and consolidation, with such alterations in the remaining enactments as would make their apparent import correspond with their legal effect. Nothing was done upon that report. In the year 1845 an index of the statutes from 1801 to the end of 1844 was made under the direction of a Select Committee of your Lordships' House. Here I propose to take up the subject, and to begin at least the work so often contemplated. That the present is a state of things in which it is eminently desirable to make a change, no one will dispute; but the real question is how far it is within the range of possibility? I confess, my Lords, that I at one time thought it was an impossibility, and that we must continue to labour on as we had been doing, and to make the best of it. Two or three days after I received the Great Seal, while conversing upon the subject of law reform with my hon. and learned Friend the Solicitor General, he suggested to me this digest of the statute law as a most useful work, and that it was not quite so impossible as at the first blush it might appear; and, after a little conversation on the subject, he pointed out this fact to me—that there is now published by Mr. Chitty a work, containing all the more useful statutes, which are bound in four moderately-sized octavo volumes. That is a work 62 which the Judges take with them always upon the circuit; and they find that, for all ordinary purposes, in nineteen cases out of twenty, it contains all that is necessary for them to use; and it is a selection, remember, which is not made to help the Judges on the circuit, but to help people generally upon the subject of the law. That led me to reflect more upon the matter, and I brought myself, perhaps with too much zeal, to the conviction that it was not only not impossible, but that the difficulties in the way were infinitely less than at the first blush they seemed to be. But your Lordships will naturally inquire what is the foundation for supposing that the difficulties will not be so great as one would imagine at the outset. I will, then, briefly state the reason. I have told you that from the first of Edward III. to the end of Queen Anne, there were 3,256 statutes passed. That fact I obtained from the appendix to the report made in 1835 upon the subject of a consolidation of the statute law. Well, but how many of those statutes now remain, because those only are the statutes with which we have practically to deal in consolidating the law? Upon this subject the report is also very explicit. Of these, 1,814 were repealed or had expired, and 524 were local, personal, and private Bills; only 918 then were left, of which 260 were partially repealed. If we state these 260 partially repealed as representing 130 complete Bills, we shall then have to deal with not quite 800 statutes up to that period. Were we to assume that all the remaining statutes stood upon the same footing that I have thus described with regard to those up to the end of Queen Anne, this assumption would reduce the number of statutes at once from 20,000 to 5,000; but I thought it would not be the fair or honest way of looking at the subject to assume that there are in the modern statutes the same number to be dealt with as there are in the more ancient statutes. With a view to learn how far we might apply this principle to the more modern statutes, I took, at random, three years of later legislation—the 33rd George III., the 41st George III., and the 56th George III. I went through these, one by one, to ascertain how far the statutes in each year were statutes which a person proceeding to the work of consolidation would have to deal with. I will tell your Lordships what the result was, not asking your Lordships to follow me precisely in exact figures, but, taking 63 the general conclusions. I placed the statutes under three different classes—1st, statutes that have been absolutely repealed; 2nd, statutes, of which there are an immense number, that would not form any portion of a consolidated statute law-book; for example, a statute enabling Her Majesty to raise 2,000,000l. by way of Exchequer bills has done its work, and is at an end with the end of the Session in which it was passed, and would not, of course, be incorporated in any permanent statute-book upon the principle I contemplate. So, Acts continued on from Session to Session, the Indemnity Bill, the Mutiny Bill, Acts to authorise proceedings taken once for all, such as Acts authorising the building of a street, and so on—none of these come within the category of statutes to be consolidated. Proceeding in my analysis of the Sessions I mentioned, upon this principle I found that, there having been 109 Acts passed in the Session 41st George III., 20 of these had been repealed, 57 were extinct, or had become inoperative, 12 of them were revenue laws—and, as to these, I don't know whether they are in force or not:—so that altogether, out of the 109, 89 were gone, and but 20 remained to be dealt with in consolidation. I thought that perhaps the 41st George III. might be a year showing a different result from the general average. I took the 33rd George III. In that Session 127 Acts were passed; of these 13 had been repealed, 21 were of an entirely temporary nature, and 65 were local, personal, or private Acts, and 14 were Revenue Acts—so that only 14 remained to be dealt with out of the 127. Applying the same inquiry to the statutes of 56th George III., the result was that out of 142 Acts, 34 only remained to be dealt with. The general result, then, is, that of the measures passed in these three years, only about one-fifth remained to be disposed of in the process of consolidation. Upon the whole, my Lords, I cannot but believe that when I say that of the entire body of our statutes one-fourth only remain to be dealt with in consolidation, I am rather overstating than understating the case. I submit, then, that we have before us herein no difficulties which we at all need to consider insuperable. Difficultatis patrocinia prœteximus segnitiœ but if we now apply our industry to the subject, I believe the work can be done. Your Lordships have a right to ask me how. I will state what my view of the subject is. Hitherto there has been nothing done 64 in this way beyond reference for inquiry to learned Commissions or learned individuals, who have gone no further than that inquiry. What I propose is to take a very simple course, and it is this:—I think I may be able to secure the services of Mr. Bellenden Kerr, one of the former Commissioners, to act under my own superintendence, assisted by the Attorney and Solicitor General, having further the co-operation of two or three gentlemen, whom I shall, as it were, retain in the case, to give their whole time to it. I do not propose for them to inquire how the thing is best to be done; but the course I contemplate is to say to them, "Gentlemen, first of all complete that which has been already done up to the reign of Queen Anne, and mark every statute that is now in force, so that we may know precisely of what the statute law at this moment consists; and then distinguish what of these statutes is of a local or temporary character." I next propose to direct them to reduce the statutes upon a particular subject into one statute, and, in so doing, not necessarily to adopt the order which they may find in the Statute-book, or the language of the Statute-book; only where any particularity of language has led to any particularity of construction, I shall instruct them to report the special case to me, and I will endeavour to have the language to be adopted, upon mature consideration of such construction, rendered clear and intelligible for future reference. As I watch the progress of the work itself, ideas will doubtless suggest themselves from the work itself, which will enable me to carry the undertaking to a successful and satisfactory issue much more effectually than any abstract references or inquiries addressed to commissions or to learned individuals. That which I desire has been done in the State of New York, where all the statutes of the Legislature are placed before the community in a compact and practicable form, and in language perfectly intelligible to the whole community. The consolidation of past statutes is not the only benefit we shall derive from the proposed attempt; it will be a result of incalculable advantage if we are enabled to classify future statutes, so that when an Act is passed, it shall not be huddled and hidden among the mass of legislation of a particular Session, as merely chapter so and so of Session so and so; but shall be at once classed under its particular head an Act on the subject of marine insurance 65 for example, being classed under the category to which it naturally belongs, and in which it would be naturally sought. The course I propose is not without precedent in our own legislation, for, about fifty or sixty years ago, local and personal Acts were ordered by Parliament to be ranged in a special class. I do not see why this principle should not be extended to the rest of our legislation, considering, as I do, that the extension of the principle would be of the greatest benefit to the community. There is an incidental advantage which I cannot but think will accrue from the course I propose. I cannot but think that, keeping my mind steadily in tent on the progress of these gentlemen's works—and from time to time, in order to show that I am in earnest, I shall lay a report before your Lordships of what is doing—I cannot hut think that suggestions will present themselves, which will enable Parliament to revise its mode of legislating, and place its labours before the public in a more intelligible form than at present. This is what I have to state to your Lordships, and through your Lordships to the country, as to the course I propose to myself with reference to legal reform. If it be thought that heroin are any shortcomings, or that I have not been so vigilant or active as I ought to have been, I can only say that I have done my best. I should deem it a very scandalous thing on my part, had I been tempted by the splendour of the position to accept the Great Seal, if I had thought myself not competent for its duties. I have the greatest regard for my noble and learned predecessor, who has been a friend of mine for thirty years; and of the mode in which he fulfilled the duties of the office that has just devolved upon me, there is no man more ready than I to express admiration. Having said that, your Lordships, I am sure, will feel I can do no more than devote myself with all my energies to prove myself not wholly unworthy of the office I have the honour to hold; and I do believe that the work to which I pledge myself engaged will be a work of which I shall never have reason to be ashamed. I may, perhaps, anticipate results from what I have undertaken larger than may ensue. No great object has ever been accomplished which has not been surrounded in the mind of him who undertook it with more or less of romance—of exaltation of the imagination; but, assuredly, admitting every reasonable allowance of that sort, I am con- 66 vinced that what I have proposed, if carried into Effect, will produce the largest and most important benefits to the country. It is a sufficient encouragement to me in my determination to carry on this work, that at all events we cannot advance a single step without doing some good. The mere enumeration of the statutes that have been repealed would be something; the consolidation of some of the statutes more easy to be dealt with would be something. To simplify our statutes and improve their style would be something—would be a great deal. But I look further. I conceive there is no reason why this proposed step should not, at some future time—some years hence—constitute the foundation of that which I have always looked forward to as most desirable—though heretofore I have feared it to be unattainable—a Code Victoria, that shall put us on the same footing that a neighbouring nation has attained by that code which will immortalise its author long after his triumphs and his failures—his victories and his defeats—have passed into oblivion. The measures, then, which I propose are sure to be attended with benefit at every step of their progress. It may be that all I anticipate from them may not be realised, yet I trust, and I believe, that sooner or later, that full and complete results will be accomplished. In this hope, and this confidence, I advance; I hope that all may eventually be accomplished.Quod si non contingat, altius tamen ibunt, qui ad summa nitentur, quam qui, presumpta desperatione quo velint evadendi, protinus circa ima substiterint.The noble and learned Lord then presented a Bill for the Registration of Assurances in England, and moved that it be read a first time.
§ LORD ST. LEONARDS
said, his noble and learned Friend need offer no apology for any want of zeal or activity in the cause of law reform, for he was certainly open to no such imputation—and certainly the short time during which he had held the Great Seal had afforded no time to prepare any further measures of legal reform. His noble and learned Friend had stated the reasons why he had not thought necessary to propose any further reforms in the courts of Common Law or Chancery. He took it for granted he would come to that conclusion, because it was obviously altogether unwise to attempt to touch those Courts until they saw what had been and would be the operation of the great and 67 extensive measures of reform which so recently passed through Parliament. It was unnecessary and disadvantageous to go into those questions to which his noble and learned Friend had referred, which were still under the consideration of the Commissioners, and more especially so, since the expression of any opinion in Parliament on any questions not yet determined, might insensibly influence the Commissioners in the reports they had yet to make. In relation to one question before the Commission, with regard to the fusion of law and equity—which he (Lord St. Leonards), adverting to the manner in which it was treated by some persons, would rather call the confusion of law and equity—his noble and learned Friend seemed to have misconceived the difference of proceedings upon contracts in Courts of Law and Courts of Equity. A Common Law Court had no jurisdiction in what was called specific performance. The matter lay in a small compass. In law, if you entered into a contract—it mattered not whether for goods or real estate—you were bound to perform it; and if you did not, an action might be maintained against you, and damages would be given according to the extent of the loss incurred by the nonperformance of the contract. The law gave in cases of real and personal estate precisely the same relief. The contract was treated in a Court of Common Law as broken, if refusal or neglect to perform it was proved, and damages were awarded in proportion to the injury sustained. Now, Courts of Equity proceeded upon a totally opposite rule. In a Court of Equity the contract was treated as subsisting. The Court regarded the person contracting to purchase an estate as the actual owner from the moment of the bargain; and the seller as the owner of the purchase-money; and there were many reasons why a Court of Common Law could not exercise jurisdiction, and many circumstances with which such a Court could not grapple. In a Court of Equity the answer of the purchaser might be that the seller could not make a good title—in which case the Court would give time for that purpose, but would enforce the specific performance of the contract; but in a Court of Law time was an essence of the contract; hence the difference of the two remedies upon any contract, for the sale of land. It would be necessary, for this purpose, to give the Court of Law the same machinery and the same officers as the Court of Chancery; 68 whereas the Court of Chancery had the machinery and the officers already—so that to multiply them would produce no other result than a clashing and imperfect jurisdiction. In the Bill he had himself lately introduced with reference to the Court of Chancery, he attempted to introduce a clause to enable Courts of Law, in cases where a man was entitled to the equitable estate, but not to the legal estate, to prevent the necessity of nonsuiting, or giving a verdict against him, merely because he happened not to have the legal estate, by enabling the Courts of Law to send a case to a Court of Equity, to ascertain whether the party was really entitled to the beneficial interest. But, so far from this being adopted as a first step towards improvement, it was struck out of the Bill altogether. It did not seem, therefore, as if there was any great disposition on the part of the Legislature to adopt what was popularly called the fusion of law and equity—a fusion which he was perfectly satisfied could never be accomplished. With regard to the subject of divorce, he was glad that this important question had been brought under the consideration of Parliament; but as no measure on that subject was announced, he need not trouble their Lordships with his opinion—no benefit could result from discussing it—until it was brought before Parliament by the Report of the Commission which had been lately appointed to investigate the subject. His noble and learned Friend did not seem to be aware that that Commission were about to issue their report. The next subject to which he should refer related to the question of testamentary dispositions. The late Government had had this subject under their consideration; they had issued a renewed Commission, under which they added other learned persons to those who were already directing their attention to this question, and he regretted to hear that his noble and learned Friend found fault with the terms of the reference. He himself thought the terms fully sufficient to enable and to authorise the Commissioners to state not merely the mischiefs which they found to exist, but to suggest the remedies for them; however, if his noble and learned Friend meant to say that there was the slightest difficulty in the Commissioners arriving at a proper conclusion on these points, or any of them, he had only to give them further instructions. There could be no doubt that the inevitable result of legislating upon this subject 69 must bring under full consideration the question of the Ecclesiastical Courts. But he quite concurred with his noble and learned Friend that whilst sweeping away institutions which had so long existed, regard should be had to the interests of the many meritorious persons whose long-enjoyed interests would be compromised by these reforms. As far as he understood his noble and learned Friend's "bill of fare," if he might be permitted to use such a phrase without offence, the practical result of his statement was, that there were to be a Registration of Deeds Bill, a revised Charitable Trusts Bill, and the Consolidation of the Statute Law. Now, he did not wish it to be supposed that he was at all opposed to registration as such; on the contrary, he might refer to a measure he had himself been the means of proposing—the Registration Bill of 1838—to show that he was a friend to registration, so far as it could be properly resorted to. That measure, which gave greater effect to registration in regard to judgments than any other—saved enormous expense, and limited the necessity of searches to every five years, compelled the registration of Crown debts, lis pendens, and other matters had him for its author, and therefore he was entitled to say he was a friend to registration as far as it was practicable. Now, the great object which those who desired registration of assurances generally had in view, was one which his noble and learned Friend had justly expressed his opinion of as being incapable to be carried into execution—they wanted to make land transferable precisely in the same manner as at that moment railway shares or stock might be transferred. But that, of course, meant to strike at the whole law of property as it now existed. It was the law of England at present that there could be no property, small or great, which could be put extra-commercium, so to speak. Every man possessed of real estate might dispose of it, and there never was a time when a man might not go into the market and buy land in this country; there was no want of land in the market; no small or large purchaser was prevented from satisfying his wants. Such was the case at this moment. But what many persons desired was this—not simply to reduce the transfer of land by the easiest of all plans—they wanted to stop all dispositions of land for the purpose of family enjoyment and of supporting the dignities their Lordships possessed. It was obvious that this at once introduced 70 into the discussion a most important social and constitutional question—for it was ridiculous to speak of this subject as relating only to the transfer of land, involving as it did other questions upon which the happiness and the prosperity of so many persons in this country depended. These were not questions to be dealt with lightly; and he was sure his noble and learned Friend would see that they were entitled to the deepest consideration. On the general question he would at once assert that no man could prove to their Lordships that a general registry would cither shorten conveyances by a single line, or add to the relief of the land. They might register a deed, but it would not give to it greater effect than it had before. Suppose, for example, they had a deed on the table of the House, and they were about to sell the property comprised in it—it would look just as well on the table as in the Registration Office. Registration would give no strength to the title, except by excluding other persons. Suppose the deeds were registered—a man must still have an abstract of his title and submit it to counsel, precisely as he did at that moment; no one could make up his mind about the title simply with the deeds themselves before him; there was not one man in a thousand who could safely give an opinion upon it without an abstract of the deeds. His noble and learned Friend had referred to the doctrine of notice. Now, that embodied the whole doctrine of the Court of Equity. Under the supposed scheme, if a man mortgaged an estate which he had just before sold, but the mortgagee put his deed on the register before the purchaser's deed was registered, the mortgagee would take the estate from the man who had just bought it; but, then, if the mortgagee knew that it had been already sold, Courts of Equity stepped in and gave the estate to the purchaser. It was now proposed to do away with the effect of notice. This would lead to revolting frauds, and a court administering such a law should be called a Court of Iniquity, instead of a Court of Equity. Again, as he had understood his noble and learned Friend, there was to be on the register the title of the owner in fee simple, and then if a man wished to make a settlement of his estate he might do so, with a condition that the settlement should or should not be put on the register; so that he would, in fact, appear on the register as the owner of the estate in fee simple, although he might have settled 71 the estate by an unregistered deed. If they desired to introduce confusion and misery into the law of England and into families by means of settlements, let them adopt that course. But his noble and learned Friend said, that if a man, claiming under a settlement not registered, found his estate was going to be sold, he could go to a Court of Equity to get an injunction. He (Lord St. Leonards) could not recommend that course of proceeding. If a man could be enjoined from selling an estate, why should not the settlement be put upon the register, whereby such a sale would be prevented? These were difficulties not lightly to be dealt with, but it would take too much time to discuss them then. Knowing that such a measure would be opposed in many quarters, he could not but regret that this should have been the first measure brought forward by the Government. Then there would be the enormous expense. Let their Lordships recollect that registration would give no man a title, and at the proper time he would show that the damage would be greater than the benefits that could accrue from it. Let them, too, observe the time chosen for the introduction of this measure. The landed gentlemen of England, smarting under the removal of protection, had been asking for some relief. What did they give them? A Registration Bill. The expense of registration would be certain; and could they believe that the landed gentry were so exceedingly easy to be worked upon, that they would adopt this Bill, with its vast expense, for a problematical benefit? They told them they were suffering from the present state of things—although they would say nothing about protection now—but they were to have this Bill, all taxes being left just as they were. He thought they would be very reluctant to impose this new burden on themselves. With regard to the subject of charities, to which his noble and learned Friend had next made reference, he had nothing to say; but he did not exactly understand in what manner the noble and learned Lord considered it expedient to deal with the question of charities. The late Government had looked into the measure proposed by their predecessors to the late House of Commons, and had determined not to proceed with it; he would therefore postpone making any remarks, until he knew how it was proposed to deal with the question. The last matter to which reference had been made 72 was the subject of the statute law. At the present moment their Lordships were engaged on the experiment of digesting a portion of the law—namely, the criminal law. That limited portion of the law had been referred to very learned Commissioners, who had made many reports. Thirteen blue books had been the result of their labours—more probably than would ever be read by the Members of the Legislature or of the profession—when, at the suggestion of a noble and learned Friend of his not now present (Lord Brougham), the late Government consented again to take up the subject. The examination of the criminal law alone, before the late Government took it up, had cost the country upwards of 40,000l., and there had been some additional expense since. His own attention had been very much directed to the subject, and he could assure their Lordships that the difficulty attending a digest of that kind was greater than could well be conceived. His noble and learned Friend had spoken of the style of our Acts of Parliament. If he understood him rightly, his noble and learned Friend proposed to simplify the style and to correct the language of the statute law, so as to make it so plain that "he who runs may read." His noble and learned Friend was embarking upon a measure which alone was sufficient to occupy a long life; and if he was proposing to himself the completion of the work, he (Lord St. Leonards) hoped most sincerely that nothing might occur to interrupt his labours. The difficulty of the work might be estimated by taking some particular statute. The language of it might be tautological, and it might not be grammatical; but it might have received a particular construction from having been the subject of discussion in courts of law, though there might have been no actual decision upon its actual moaning. The moment you attempted to simplify the style and correct the language, you opened the door to litigation, in order to ascertain what meaning the new phraseology was to have. Therefore let their Lordships look very cautiously at a proposal to codify the whole statute law. It was not at all like the proposition to deal in that way with the criminal law. The one was possible, and unattended with danger, the other most dangerous; and he did not hesitate to say that there was no living man—that there never had been a man—competent to digest the statute law of this coun- 73 try in the way proposed. There were repealed Acts and temporary measures; why disturb them?—they were dead. Let them alone and they would not trouble anybody. The present method of legislation gave a practical consolidation. When a Bill was brought in, dealing with any particular subject, all the preceding Acts referring to that subject were quoted, and those Acts were all repealed, and, except so far as they were altered, were re-enacted in a consolidated form. This was a beneficial practice, which ought to be continued; and they thus practically arrived at what his noble and learned Friend now asked should be done by way of digest; but he thought that all that could be done by way of digest was what was best done by consolidation, for from the moment you altered a statute you made a new law with all its contingencies. Surely, too, in a consideration of this matter, they were not to forget the expense? What had on a limited scale been attempted had cost upwards of 40,000l. What, then, would be the expense of a general digest of the statute law? The noble and learned Lord said it was not a new project—that this digest had been long demanded. No doubt: and why had the demand never been complied with? Simply because every one had believed that the difficulties in the way were insurmountable. It was known that he (Lord St. Leonards) had always been strongly opposed to the theory of codification; but he had given way in regard to the criminal law, because, if any branch of the law did admit of codification, that was the branch; and he was content that there should be an experiment, of the results of which he could not be confident, although he did not doubt that his noble and learned Friend would carry on with great vigour the digest of the succeeding part of the criminal law. At any rate, they ought to see how the smaller experiment worked before they entered on the wider field. In conclusion, he asked their Lordships to remember that he was taken by surprise, as his noble and learned Friend had given no intimation of what he intended to propose: he had only been throwing out suggestions, and he begged the House to believe that he was far from desirous to offer any opposition which was not absolutely called for.
had listened with great satisfaction to the able and lucid statement of his noble and learned Friend upon the woolsack; and he must say that 74 he highly approved of the course he had taken, both as to what he had abstained from attempting to do, and as to what he was prepared to accomplish. He thought his noble and learned Friend acted judiciously in not yielding to what was called the "fusion of law and equity"—to the desire that there should be universal jurisdiction over all causes, enjoyed by all Courts, and by every Judge in every Court. Such a course could only lead to confusion and mischief. If this were a small State, where one Court could administer justice to all the subjects or citizens in the State, it might be proper that that Court should have universal jurisdiction; but in any State where two Courts were required, the subdivision of labour ought to prevail. In ancient times, when this country was under the Norman-line of sovereigns, we had the Aula Regis, which had universal jurisdiction. But the inconvenience of the system was felt, and its jurisdiction had been subdivided between the Court of Chancery, the Court of Queen's Bench, the Court of Exchequer, and the Court of Common Pleas. Yet now it was proposed that we should return to the system which prevailed in the barbarous times of William Rufus and King Stephen. He hoped this would never be the case. Nevertheless, he felt most strongly the importance of the principle laid down by his noble and learned Friend upon the woolsack, that one Court ought finally to decide every cause brought before it. For this purpose, and for this purpose only, there ought to be what was called a fusion of law and equity, and each tribunal ought to be invested with powers to decide finally every controversy which came before it; for to drive suitors first to a court of equity and then to a court of law, could only lead to delay and to ruinous expense. The Common Law Judges, he thought, having the great benefit of the most learned works which his noble and learned Friend opposite (Lord St. Leonards) had given to the world, and his valuable decisions before them, could perfectly well decide the question which he had suggested, whether there should be a specific performance of an agreement to purchase land. He did not see why an action should not be brought in a superior Court of Common Law or Equity, to compel specific performance, and if that were not sufficient, why the complainant should not have damages for breach of contract. At present a party went into the equity courts, and it 75 might be he could not have specific performance because there was some technical difficulty; after infinite delay, an action was brought in the Court of Queen's Bench, and he there tried to recover damages. But one investigation ought to have settled the whole question. With regard to injunctions, why should not the Courts of Common Law have the same powers as the Equity Courts? Why not with respect to copyright? Why not as to nuisances? In all such cases he thought the equitable jurisdiction, as it was called, of the Courts of Common Law would be useful. Not long ago an action had been brought in a Court of Common Law in reference to a nuisance caused by the ringing of bells, and the plaintiff succeeded; but it was afterwards necessary to go into a Court of Equity to obtain an injunction which it ought to have been in the power of the Court of Common Law to grant. Formerly these Courts of Law and Equity were entirely distinct, because the Court of Chancery assumed the power, not only of dispensing law, but of making law; and therefore the people, with the view of getting the hardship of a law corrected, went then to the Lord Chancellor, who decided what he conceived to be just and equitable against the law. But those times were past, and now the Courts of Equity were governed by fixed rules, just as were the Courts of Common Law, and what those rules were could be ascertained with little trouble. Here then was another reason why the Courts of Common Law should have the same powers as the Courts of Equity in all the cases which were brought before them. His noble and learned Friend had spoken about the trial by jury. He hoped his noble and learned Friend would look with great caution upon any proposal for tampering with that institution. Undoubtedly there were many cases brought before the Common Law Courts which juries were not fitted to decide—such as complicated matters of account; and he trusted before long some process would be invented whereby such cases might be at once referred to some legal functionary, who would summarily and economically decide upon them. But there were other cases, such, for instance, as actions for libel, or defamation by words, or for personal wrongs, involving facts as well as law, for which trial by jury was the best tribunal that had ever been invented. For his own part, speaking from his experience as a Judge, he thought juries were much more likely to arrive at 76 a just conclusion upon conflicting evidence than all the fifteen Judges; and he should lament the day when the Judges were deprived of such assistance. The jury assisted the Judge; and a Judge without the assistance of a jury would in a very unsatisfactory manner dispose of mixed questions of fact and law. As to the law of divorce, he thought his noble and learned Friend had acted wisely in abstaining from touching that subject at present. He need not remind their Lordships that a Commission had been appointed some time ago, of which he had had the honour to be placed at the head. The Commissioners had been labouring most assiduously, and they soon came to a conclusion that the present mode of legislating in each particular case was one very much to be regretted, and ought to be abandoned as soon as possible. The judicial tribunal to be substituted for Parliament was a matter of much more difficulty. He trusted that on this point they had at last come to an unanimous conclusion. Their labours had, to a certain extent, been interrupted by the Administration of the noble Earl opposite (the Earl of Derby) because he had taken from the Commission one of its most efficient members—he meant the late Home Secretary (Mr. Walpole), who was a most admirable lawyer. That right hon. Gentleman had been of great assistance in the early part of the labours of the Commission. The course of events having restored him to the Commission, he had attended its meetings, and the Commissioners had greatly benefited by his assistance, and the Report would very shortly be in the hands of their Lordships. In respect of the subject of the Registration of Deeds, he regretted that it met with the opposition of the noble and learned Lord opposite (Lord St. Leonards), for whose abilities as a lawyer he had a most sincere respect, and whose opinion was entitled to the greatest weight; but nevertheless it must be borne in mind that Lord Bacon, Lord Hale, and other most illustrious jurists, were in favour of registration. His noble Friend had correctly stated that when he (Lord Campbell) had the honour to be made Solicitor General by Lord Grey, it was made a condition that he should not introduce, as it would be inexpedient to do so in the then state of the public mind, any Bill for a general registration. But why? Because at that period the question had only recently been brought before the public, and Earl Grey thought, and thought wise- 77 ly, that until public opinion took a different direction from that it then held on the subject, there would be nothing but difficulty in proposing any measure in reference to it. But public opinion had now taken a different direction, and the noble and learned Lord opposite was in that House almost the solitary opponent of a measure for registration. When the subject was brought forward by the Real Property Commissioners in 1830, it met with very general opposition, and a large majority of the Select Committee appointed to consider the question were decidedly opposed to it; but, after having sat for about six weeks, an almost perfect unanimity prevailed with reference to the desirableness of such a measure. He believed, also, with the solitary exception of country solicitors, the whole country was favourable to the plan of registration. The noble and learned Lord had referred to the opinions of the landed interest on the subject. That interest, he presumed, was well represented in their Lordships' House, and a majority of those who constituted the Select Committee on Burdens on Land were even Protectionists. That Committee, however, which was called upon to enter into the whole question of the burdens on land, reported that it found the most intolerable burden to be that of the expense of the transfer of real property; and the Commit tee wisely thought that one mode of removing this burden would be by a system of registration. The noble and learned Lord was quite correct in saying that registration would not in the first instance lessen the expense of the transfer of landed property. At present, however, every one knew that the greatest expense connected with the transfer of land arose from the necessity of ascertaining whether the vendor really possessed the interest in the estate which he professed to sell. After a plan of registration had been in operation for a few years. there would be an end to this uncertainty and consequent expense. Registration of deeds was not to be considered as a final measure; it was, in fact, only the beginning of a new and improved system. He trusted that his noble and learned Friend would devote his great learning, experience, and talent while he had leisure—he could not tell how long that opportunity might be afforded him—among other matters, to shortening the length of deeds, simplifying the forms of conveyancing, and instead of feoffment and livery of seisin, bargain and sale inrolled, 78 lease and re-lease, and covenants to stand seized to uses, to invent one short and simple mode, by which land could be transferred. By so doing he would confer additional lustre on his name. With respect to registration, he might say that it had been found to work well in Scotland; it was employed in all our colonies, and there certainly appeared no reason for supposing that it would not be found to work equally well in England. With reference to the proposed digest of the Statute law, the noble and learned Lord on the woolsack had certainly an arduous task before him. No possible objection could be made to such a work; until, however, the whole was completed, no part should be allowed to come into operation; and when it was entirely completed and laid before the House, it would undoubtedly be a noble achievement. There were great difficulties in the way of carrying out the digest; he might allude, for instance, to the law of treason, from the 25 Edw. III. down to the late Treason Felony Act. Again, any attempt to digest the laws relating to the election and confirmation of bishops would probably set the whole country in a blaze. He concluded by wishing his noble and learned Friend ample success in the noble career which he had marked out for himself.
§ Bill read 1a.