§ Order of the day for the Second Reading read.
The LORD CHANCELLOR
, in moving the Second Reading of the Registration of Assurances Bill, said, he was very sensible that he had a difficult task imposed upon him when he was obliged to ask their Lordships to favour him with their indulgence for a short time—and, as far as he could control the discussion, it should be only for a short time—while he called their attention to a measure which was one very much of detail, and of a nature which was not at all attractive. If, however, such an apology were misplaced in any deliberative body, he thought it would be misplaced hero; for, unless he was greatly deceiving himself, important as the question was to all classes of Her Majesty's subjects, there was no class so deeply interested in the success of this measure as those who were mainly interested in the land of the country; because he thought the effect of it necessarily would be, as was stated by very great authorities not less than two centuries ago, to add materially to the transferable value of land, and so to the amount of rent, and to the security of purchasers. Such was the opinion of Sir Matthew Hale, who, having completed the purchase of an estate and got a title which was the best that the conveyancers of the day could secure to 930 him, said he would give one year's purchase more if the seller could only secure him absolutely.
The object with which he (the Lord Chancellor) submitted the present Bill to their Lordships, was to put an end, as far as practicable, and he believed it would almost completely put an end, to insecurity of title. He proposed by this Bill to effect nothing more. He knew it was said that it did not go far enough, and that there ought to be many more improvements with respect to the transfer of landed property. On that point he expressed no opinion. He thought indeed that greater facilities might be given for the transfer of landed property; but he had introduced this measure, not because it effected all that one might wish to have effected with respect to property, but because he believed it would afford the most secure, solid, and safe foundation on which all future improvements could be made to rest. Still less was it in his contemplation to propose that this measure should effect, or to pretend that it would effect, the least change in the mode in which property was enjoyed. Property would after, as before, the passing of this Bill be leased, be mortgaged, he subject to provisions for the younger branches of families; every one would be entitled to deal with it, in short, after as before the passing of this Bill. The sole object, as he stated, was to render it possible to have a perfectly secure title.
Before he proceeded to explain the details of the measure, he begged leave to explain what were the present difficulties of the subject. Land, he need hardly say, was a subject-matter with which they could not deal as they could deal with common chattels. If he wanted to sell his watch or his horse, nobody would ask him what was his title to the possession of them. Possession was held generally to imply title; it was itself such strong if not conclusive evidence that it was taken for granted that the watch or horse which he had in possession was his. But that was not, and could not be, the state of things in regard to land. The possession of land proved very little indeed as to whom it belonged. A party might be in possession of land only because he had hired it for six months, or because he had taken a lease of it, or because he had a mortgage of it, or because he was tenant for life under settlement, or because the estate was what was popularly called an entailed estate. If, therefore, a party desired to sell his land, he must be able to show that 931 he had power to sell it; he must prove to an intending purchaser that he had the power of transferring that land, and of making a good title to the purchaser. What he (the Lord Chancellor) was stating was of course a sort of truism, hut he was stating it to make the object of the Bill clearly understood. The party who sold an estate must show that he had the land, and that he had a title to the land. He must produce deeds conveying the land from somebody else to him, and deeds conveying the land from somebody else to the person from whom he had purchased the land, and so on, till he had carried that proof over a considerable number of years. Until a recent alteration in the law, a person might set up a claim to an estate against a person who had been in possession for 60 years. An adverse title could now be asserted only within 20 years, unless where a further extension is allowed by reason of infancy or other disability. But the question was, what was the title of the person selling? Was he, although in possession of the land, absolute owner, was he owner in fee simple, as it was called, or was he a person who had only a limited interest? In order to show his title the party showed perhaps a conveyance to himself of the land in question. But then it remained to be shown how it came into possession of those from whom he derived his title. This question, however, would, in viewing the case on the surface, be asked, "Well, you have shown me that you purchased this land 20 years ago. Since that time you have married. Did you make a settlement on your marriage?" "No; I made no settlement." "How am I to be assured of that?" "Well, I did not make a settlement." A correspondence took place, perhaps, with the solicitor of the person who desired to sell, and the question was put to him, "Do you know whether a marriage settlement was made?" And the answer might be, "Yes, I know that a marriage settlement was made; but not of this particular property." Then perhaps the purchaser would desire to see the settlement, in order to ascertain that it was not of this particular property; and then, perhaps, a similar question would arise as to bygone transactions with reference to the person who had sold to the vendor. That was hut a case in illustration, and there were 50 others of a similar kind which might be stated. He would not weary their Lordships by going into them; hut the difficulties to which he 932 referred lay on the surface. There were, many cases in which a valid mortgage existed, but in which questions might be raised respecting titles. The purchaser might say, "Well, you are in possession of the land—have you mortgaged it?" "Why here are the title deeds" might be the reply. But lawyers knew that that was not necessarily a proof of ownership, because there were many cases in which, when a mortgage was effected, the title deeds were not given up. The difficulty might be thus stated:—By the present law the necessity of proving a negative was placed on the vendor of the estate. He was asked to prove that he had not done anything to affect that title which was apparent on the face of his instrument. It was not meant to suggest that cases of actual fraud, that cases where the parties actually did lose their estate, were of very frequent occurrence. He should not overstate the case in that House—he did not believe they were of very frequent occurrence. And why? Because, in the progress of a sale, inquiries almost endless were made—not only those which were manifest with respect to the title of the seller, hut with respect to all possible transactions which might he behind and concealed, the disclosure of which afterwards might defeat the title of the purchaser. That, he believed, was the real evil which this Bill was well calculated to meet. He believed that without a measure of this sort perfect security was impossible. Prom the nature of things it could not be otherwise, for it was impossible that one could be sure that he had proved a negative, if there were anything affecting the title, other than the deeds produced, which had not been disclosed. The object of the present measure was to get rid of this difficulty, and convert the negative issue which now lay upon the vendor, to prove that there was no document affecting the title other than what he disclosed, into a positive issue to be cast upon the purchaser, to show that there were documents affecting the title not disclosed by the deeds produced. The outline of the Bill was this:—Suppose a person purchased an estate; "Bellenden-park" had been the name assigned in some of these discussions to the supposed purchase. He would deposit with the registrar the deed whereby the estate was conveyed to him, or a copy of that deed. Suppose that some years afterwards the owner should he under the necessity of borrowing money—say 5,000l., and mortgaged the 933 estate, or part of it; the mortgagee would take care to enter upon the register the mortgage deed, or a copy of if. Suppose the owner afterwards to marry, and settle the estate in the ordinary way, upon himself for life, then on his wife for life (or giving her a jointure), and afterwards on his sons in succession. Then suppose the owner died, and the eldest son and the mother determined to sell the estate. The settlement would for security he upon the register, under the Bill now proposed; and the son and the mother would be able to say, "Assuming that there was a good title in the vendor when the estate came into our family, there can be no question as to anything affecting the estate since then, because by this law nothing whatever can affect the purchaser which is not disclosed upon the face of the register." True, he (the Lord Chancellor) did not pretend to say you would have got rid of the question whether the original vendor had a good title; but that was a difficulty that could not be grappled with; you could not make a good title retrospectively; but time would ripen the title, and he would remark that if a Bill similar to this had passed when the first Report recommended it, above 20 years would now have elapsed, and, though it would not have been perfect, the benefits by this time would have been very great. Suppose the mother and son were contracting to sell under the present law. They would show the mortgage; and the first question of the intending purchaser would be, how much was due upon it, and whether there had been a further advance; and perhaps the mortgagee might not answer the inquiry. But the settlement also would be produced. Perhaps it would be found—it was very ordinarily done—to settle the estate upon such sons as the parent should appoint, and in default of appointment to them in succession; and the eldest son was selling. "Did your father execute any appointment?" "I never heard of such a thing." The family solicitor would be referred to: "Do you know of any appointment to any of the younger children?" "No; there is none that I know of; to be sure, he resided for some time at York; I don't know whether he may have employed anybody there." Nothing more, perhaps, could be learnt upon the subject; you are obliged to say, "The parties are honest; I must take their word." This measure would make it certain, because it. would be immaterial it there was an appointment, unless the deed 934 was put upon the register. Suppose there was no settlement produced, or only one giving a jointure to the mother; then there came the question, whether there was any other settlement, whether this son was the heir-at-law, or whether there was a will; and a prodigious number of other questions arising necessarily upon the transfer. It would be seen, therefore, what a great boon such a measure as this would be. The measure, too, while adapted to the existing mode of dealing with property, would not only not be inconsistent with any improvements that might he made, but would facilitate them in an enormous degree, because there would at least be one of the great difficulties in the way of improving land removed. The evils of the present system had been felt from remote times, and attempts at a remedy by registration had been made from the time of Henry VIII., when there was an Act for the enrolment of bargains and sales. Attempts were made in the time of the Commonwealth, and renewed in the time of Charles II., but dropped again, except in the instance of the Bedford Level; and in the reign of Queen Anne and George I. Acts were passed for local registers in Yorkshire and Middlesex, and the advantage was much prized, though the mode of operation was defective. Still they had been felt to be an improvement. Attempts were again made in the latter part of the eighteenth century; but nothing effectual was done till near the close of the reign of George IV., when the noble and learned Lord (Lord Brougham) made his memorable speech on law reform, and that was followed by the noble and learned Lord who then held the Great Seal issuing a Commission, consisting of the most eminent lawyers, to inquire into the best way of amending the law of real property, but not specifying a register of deeds. He knew it was often said, you could not trust lawyers with reforms of this sort; but he hoped the zeal they had of late manifested for amending the law, root and branch, proved that such suspicions were undeserved. The Commission comprised an eminent Common Law barrister, now the Lord Chief Justice, two eminent Chancery barristers, and five of the most celebrated conveyancers of the day; one of the Chancery barristers, Mr. Tinney, still lived, and one of the conveyancers, Mr. Brodie; the others were all gone—Mr. Duval, Mr. Hodgson, Mr. Sanders, Mr. Tyrrell, and Mr. Duckworth. They made 935 a searching investigation, and presented several reports; the second recommended a register. The report was quite unanimous, and most elaborately got up. They went through the whole question, and they stated—what no man could fail to concur in—that the establishment of a registry was necessarily the foundation of all real practical reform. They pointed out how easily persons might now be defrauded by some interest starting up after the purchase-money had been paid; and they made this remark, which seemed to him extremely good sense:—But a very inadequate estimate will be formed of the evils of the present system from merely considering the cases in which a loss actually does arise to purchasers or mortgagees from titles proving defective in consequence of the suppression of deeds. It is a consideration of the greatest importance, and one which presents the existing evil in the strongest light, that in all transactions respecting sales and mortgages of real property, suppression of title is treated as a risk to be apprehended, and against which it is the duty of the professional agent to guard by every means in his power. In the process of investigation which is instituted as to the title, not only every document the existence of which in any manner appears, and which by any possibility may affect the title, is called for; but various collateral sources of information, existing generally or in particular cases, are resorted to. Inquiries are made from the occupiers of the lands, and from persons who have long dwelt in the neighbourhood; county and local histories are examined; searches are instituted for land-tax assessments, awards under enclosure bills, grants from the Crown, grants of annuities, records of fines and recoveries, enrolments of deeds, judgments entered up in the several courts of record, securities given to the Crown, probates of wills and grants of administration, and various other species of documents. In every case, except where the property is too small to make risk important, as compared with present expense, investigations of this nature, adapted to the circumstances, are prosecuted to a great extent, and they occasion a considerable portion of the delay and expense which are felt to be the great evils now attending the transfer of real property.As the consequence of that Report, a Bill was introduced into the House of Commons, and there was a Committee of the House of Commons upon the subject, and they were unanimous in favour of such a measure. Upon a discussion, however, in the House itself, the Bill before the House was thrown out, there being a great opposition to it, mainly by solicitors; not that he would insinuate that they were actuated by dishonest motives in their opposition; there were bad men among them, no doubt, as well as good—but he (the Lord Chancellor) believed that most of them conscientiously thought that such a measure would aggra- 936 vate the evil, and cause additional risk; and he did not wonder at any one so thinking, who had not fully investigated the subject. Among other objections it was said such a measure would lead to the exposure of family transactions; for if a copy of a deed was placed upon the register, persons having no interest in the matter might apply for an inspection, and thus ascertain whether the land was mortgaged or not. He thought there were two answers to this objection. But, in the first place, it was right that mortgages, for instance, should be known to persons who were dealing with the estate; and next, he never could believe that people would go from mere curiosity and pry into the deeds; people did not go to Doctors' Commons, except they had an interest in the matter. Then it was urged that there would be a risk of loss of documents; but that would be avoided by allowing the owner to register a copy of the deed, and not the original. Several Bills for carrying into effect the recommendations of the Commissioners and establishing a register were from time to time introduced into the House of Commons, but none of them ever passed that House. He now came to a matter to which he thought it necessary to call their Lordships' attention, because, although it was introduced with a different object, the result materially affected the question now under consideration. Their Lordships would probably recollect what passed in 1845 and 1846 with respect to the abolition of the corn laws. It was thought that concurrently with a great alteration on the subject of the corn laws, whereby it was supposed that certain benefits hitherto enjoyed by the landowners would be removed, that some inquiries should be made as to whether means could not be taken to relieve them from a portion at least of their difficulties; and in 1846 a Committee of their Lordships' House was appointed to inquire into the burdens on real property, and the impediments to agricultural transactions caused by the system of excise duties, the poor-laws, and the local taxation; and also to inquire and report on the exemptions and peculiar advantages provided by law in respect to taxation as affecting real property. And who were the individuals to whom was entrusted the task of inquiring what can be fairly done for the landed interest? Were they speculators and theorists? No; the Earl of Ellenborough, Lord Beaumont, Lord Redesdale, Lord Dalhousie, Lord Colchester, the Duke of Richmond, 937 The Duke of Buckingham, the Marquess of Lsnsdowne, the Marquess of Salisbury, Lord Brougham, Lord Stanley (now Earl of Derby), Lord Ashburton, Lord Cottenham, Lord Monteagle, the Earl of Hard-wicke, the Earl of Radnor, the Duke of Buccleuch, the Earl of Haddington, the Earl of Clarendon, the Earl of Malmesbury, Earl Grey, and the Earl of Stradbroke. They examined into the matter; and to what conclusion did these, not theoretical or practical law reformers, but great landed proprietors, arrive? These great landed proprietors reported—That the marketable value of real property was seriously diminished by the tedious and expensive process of the transfer of land, and that a registry of title to all real property was essential to the success of any attempt to simplify the system of conveyancing.A new Commission was then issued, comprising Mr. Bellenden Ker, Mr. Coulson, and Mr. Humphrey, three eminent barristers, well acquainted with the law of real property; and in order that it might not be supposed that other interests were not consulted, Mr. G. Frere and Mr. Broderip, eminent solicitors, were added. They investigated the matter afresh. Did they come to a different conclusion from the Others? Not in the least. They felt that it was demonstrative that there ought to be a register on which you should have every title deed that was to affect the purchaser. Their report was made late in the summer of 1850. In 1851 the noble and learned Chief Justice, with the sanction of the Government [Lord CAMPBELL—as the organ of the Government] introduced a Bill on the subject. That Bill was read a second time and referred to a Select Committee, which was attended by almost all the law Lords, by a number of other noble Lords, assisted by Mr. Coulson. That Committee sifted the matter to the bottom; and the Bill, with some amendments, was reported to the House, and read a third time and passed, with, he believed, their Lordships' unanimous coucurrence, certainly without any division. It was then sent to the other House, but unfortunately at so late a period of the Session that it could not be discussed there; and the measure was dropped. Then came 1852, when there was a change of Government, and it was no matter of blame that the new Government did not take up the subject; indeed, their Lord Chancellor (Lord St. Leonards) was known to be hostile to the measure. As soon as he (the Lord 938 Chancellor) received the Great Seal, he considered it one of his first duties to look to this subject, and, unless he saw some very strong reason against it, to take up the measure which their Lordships had sanctioned. The Bill which was referred by them, as he had said, to a Select Committee, was, when so referred, a Bill carrying into execution the recommendation of the Commissioners in its integrity—namely, that the registry should be framed upon the basis of an universal map to be made of the whole country upon a scale of six inches to a mile. There was a difference of opinion among the Commissioners on that subject, although they all concurred in the importance of establishing a register. Two of the Commissioners thought that the system of maps was not the best that could be adopted. He (the Lord Chancellor) thought, however, that that was the best plan, if it was practicable. The Commissioners went into a great deal of evidence on the subject, and they found that if they were to postpone the measure until they got the maps, the country would think, with reason, that they were making a pretence of introducing a measure which was really to be postponed ad Grœcas calendas; and besides, it was believed that the expense of the maps would amount to two or three millions. Although they could not but feel that the facilities of carrying out the measure would not be so great without a map as with one, yet the Commissioners agreed to alter the Bill, and so to modify it as to get rid of the map. There was, of course, nothing to prevent them engrafting maps upon the measure at any future time, or from admitting maps which might be provided by private individuals as descriptions of their own property. Having thus stated the nature of the Bill, he would now proceed to consider what was the nature of the objections urged against it. He knew that, great and overwhelming as was the weight of authority in favour of the measure, there was one very distinguished authority (Lord St. Leonards) in that House, who was strongly opposed to it; but he thought, although their Lordships would give ready attention to any suggestions from such an authority, that no authority, however high, would induce them to abandon a course which, as he had shown, they had deliberately resolved upon, and which came sanctioned as this measure came, and carrying with it so much to recommend itself.
Now, what were the objections against 939 the Bill? These objections might be classed under different heads. In the first place, it was said by his noble and learned Friend (Lord St. Leonards) that it was in truth impracticable, or nearly so, and that the measure was so immense that they would never be able to control or manage it. It was said, "What an enormous building you must have for these deeds; what an enormous staff of officers you will require; and to what enormous risks you must expose these title deeds, or copies of title deeds." These objections, however, like most others, when fairly grappled with, diminished most sensibly. The ex-tent of the building and the number of officers required would, of course, depend upon the quantity of deeds registered. Now what would be the probable quantity? On this point he thought his noble and learned Friend had made estimates upon data which could not altogether be relied upon. He (the Lord Chancellor) thought—though he did not bind himself to it—that if the number was as great as the noble and learned Lord suggested, there would still he no difficulty. What could be the difficulty of providing a sufficient building in these days, when they had seen the Crystal Palace rise in the course of six or eight months? He believed, however, that his noble and learned Friend had greatly overestimated the quantity of deeds that would have to be registered. The practical difficulties on this point were fully investigated by the different Commissions, especially by those of 1829 and 1830, who endeavoured to ascertain what number of deeds relating to land throughout England would require to be registered. Fortunately, they hit upon an expedient which was, he thought, little liable to deceive. There was a register, an imperfect one indeed, in Yorkshire; and the Commissioners inquired what the area of Yorkshire was as compared with the area of England. The area of Yorkshire was, in round numbers, about 3,800,000 acres; the area of England and Wales was about 37,100,000 acres. The number of deeds registered in Yorkshire in the year 1829 was 6,900. Now, if they made this a rule-of-three sum, and said, "As is the area of Yorkshire to the area of England," so are the 3,800,000 acres of Yorkshire to the 37,000,000 of England," they would arrive at a pretty accurate result, and they would find that the number of deeds likely to be registered in a year in England and Wales was upwards of 67,000—he would say, 70,000. There was, un- 940 doubtedly, a good deal of uncultivated land in the remoter parts of Yorkshire; but the quantity of waste land in Wales was much greater than in Yorkshire. The Commissioner also took the population of Yorkshire as compared with the population of England and Wales. The population of Yorkshire in 1821—the last return the Commissioners had—was 1,200,000, and the population of England and Wales was 12,200,000: by proceeding in the same manner as before, the same result was arrived at, namely, that the number of deeds to be registered would be about 70,000. The last Commissioners came to the conclusion that the number of deeds registered would be about 80,000 a year; but taking into account the additional number of registrations in Middlesex and other exceptional places, he would suppose the registration to reach 100,000. Now, was that a number of instruments capable of being dealt with? Mr. Frere made a very elaborate calculation on this subject, in which he (the Lord Chancellor) could find no defect; and he said that, taking the ordinary sized deeds, which were usually doubled so as to make nine folds, he could put a certain number with case into a box of a certain size; and he calculated that a room about 25 feet by 24 feet would contain about four rows of stands, on which they could place 980 boxes, containing 38,000 deeds. It was calculated that in a house of five stories high, the dimensions of which were mentioned, they would be able to provide for the reception of deeds for five years, reckoning upon the register of 80,000 a year; and that the frontage of three best class three-windowed houses, of the ordinary depth, would afford accommodation for all the deeds likely to be registered for more than 60 years. Now, if this was at all an accurate calculation, he believed that double the number of copies of deeds might be deposited in the same space, because the copies would not occupy half the space of deeds. He thought, therefore, it was clear that no very enormous building would be necessary for the commencement of a system of registration. He did not think the calculations which had been made were at all likely to deceive, and some evidence was given before the Commissioners which tended strongly to prove their accuracy. He alluded to the testimony which was given by Mr. Trevor, the controller of legacy duty. It appeared from that gentleman's evidence that there was in Somerset House a registry of all 941 wills and administrations in the United Kingdom, which was considered essential to the due collection of the duty, the authorities at Somerset House having entered into a treaty with the officers of the Ecclesiastical Courts, under which they were furnished with copies of all wills. For England and Wales about 25,000 wills and administrations were annually registered, and for Scotland and Ireland more than 4,000, making in round numbers about 30,000. Now, this number of wills was received, registered, and elaborately indexed every year at Somerset House, where, according to Mr. Trevor's evidence, they were so arranged that they could be referred to in a moment. What was done at Somerset House was not merely to receive and register the wills, which was all that would have to be done with respect to deeds; but at least 20,000 of them annually were most elaborately abstracted—a work which required great thought and attention. This was done by an establishment, which was certainly large, consisting of about 70 clerks, who had also to write to persons all over the kingdom requiring them to pay legacy duty, and whose labours were much greater than those of the parties who would have to conduct the registration of deeds under this Bill. He must say, then, that with regard to the extent of the building and the registration of the deeds, he could not see any difficulty. He must not be supposed, however, to have passed over what was regarded as a material difficulty—namely, how to make indexes so that persons might search with the greatest facility. The want of such indexes in Ireland had been the bane of their Registration Act. He thought the country might be divided into districts, and that every deed, when received, might be indexed and deposited in boxes, to which reference would be easy, the entries being on the same principle as those in a banker's book. The Bill would give the largest authority to the registrar, under the control of the Lord Chancellor, to adopt any mode which might be more practically easy and useful.
Another objection made to the system of registration was the exposure of titles. Now, he did not consider this to be any objection at all: but in order to meet the views of those who thought this was an objection, a mode was provided in the Bill which enabled persons to keep secret from everybody any settlement they might make, just as they could now keep secret a settlement of stock in the funds. If a 942 man made a settlement of stock in the funds, he transferred it into the name or one, two, or more trustees, who executed a deed binding themselves to the performance of certain trusts or duties with reference to that stock. Of course there was a possibility that the trustees might cheat—that they might sell the property:—but if it was known they were likely to do so, a distringas might be obtained—a writ which prevented the transference of the stock without notice to the parties. What he proposed was this. Under this Bill, if persons wished to give trustees the same power over land which they could give with regard to stock, they were enabled to do so; but it would be stated that the property was transferred to the trustees upon the trusts of a certain deed which the parties did not choose to place upon the register. No doubt the persons who made such a transfer would expose themselves to the possibility of being cheated; but the same provision was introduced into this Bill which existed with reference to stock—namely, that if a party about to be defrauded discovered the intended fraud, he might obtain what was called an inhibition, which would prevent the misappropriation of the property. He had no doubt there would be a great many transactions of this sort. He believed it would be a very common thing for parties who made mortgagees or settlements which they did not wish should be known, and who had perfect confidence in one another, to make these arrangements. If, for instance, a person wanted a loan for a short time, and knew he was dealing with an honourable man, he would say, "I will mortgage this property to you, but I hope you will not Insist upon registering it. I will not deal with it again without communicating with you." The transaction would be perfectly valid as between the borrower and the lender; and the effect of such arrangements Would be very materially to diminish the number of deeds to be registered. A good deal had been said on the subject of the additional expense that would be imposed on purchasers by these provisions. No doubt of it. There would be the expense of a copy of the deed—the expense, perhaps, of two skins of parchment instead of 6ne, and of the law Stationer's charge for the copy—but that would not be much. Then there would be the expense of remitting the copy to the registrar, but that would be a more trifle. The copy might be sent 943 as a parcel through the Post Office, and the charge would probably not be more than 2s. for transmitting it from the remotest part of England. With regard to the expense of the registry, it had been calculated that, including rent, or interest upon purchase-money, for the house that would be required, the cost might be 20,000l. a year at first. If they had to register 100,000 deeds annually, a payment of 4s. a deed would raise 20,000l., and 5s. a deed on an average would yield 25,000l. He did not mean that the expense of a deed to every poor man would be 5s., hut this amount he took as an average. He thought that deeds relating to property under a certain value should not cost more than 6d. or 1s., so that the burden would fall almost insensibly upon the poorer classes of purchasers.
It had been said by the noble Lord (Lord St. Leonards) that "a collection in London of all the title-deeds of all the property in England and Wales would, in times of confusion and revolution, probably invite the first blow. They who approve of Socialist principles would doubtless consider it a considerable step towards an equal division of property that no man could show a separate title to any given portion of it. The risk of fire—bear in mind the fate of our Houses of Parliament; the dangers to be apprehended from the ebullitions of a mob; the dishonesty of inferior officers in purloining the old parchments for sale, and the like, may be added to the catalogue. The plan, moreover, would open a fine harvest to a legitimate Government for taxation, and to an illegitimate Government for confiscation. The State would possess, in one building, all the title-deeds to all the property in England and Wales." Now, with all deference to his noble and learned Friend, he begged to say that if this was all the objection which he and those who opposed the measure could bring against it, he did not think there would he any serious difficulty on the subject. In his opinion, in case of a popular tumult or civil war, there would be more temptation in the 21,000,000 sovereigns in the Bank of England, than in all the papers and parchments which could be found in the Register-office.
§ Moved—That the Bill be now read 2a.
§ LORD ST. LEONARDS
, after presenting a petition from the Managing Committee of the Metropolitan and Provincial Law Association, praying that the Bill might not be allowed to pass into a law, said that 944 he rose with deep regret to oppose the measure, because he should have been very glad if he could have conscientiously supported the first measure of legal reform which his noble and learned Friend had brought before the House. But he thought their Lordships would admit that he had no other alternative when he stated that for twenty-three years he had, both in and out of Parliament, strongly, constantly, and consistently opposed the very measure—with some slight alterations—he might not call them improvements—which was now before their Lordships. But, as both Houses of Parliament had repeatedly heard elaborate reasons in favour of the Bill, while nobody had come forward to state what the objections to the Bill were, their Lordships, he hoped, would not think it unseemly if, in these circumstances, he should now state the grounds upon which, for so long a period, he had objected to the measure.
And here, before proceeding further, he begged to say that he had been surprised to hear his noble and learned Friend speaking of him as a "distinguished authority" on this subject. He assured their Lordships that he had never assumed to speak as an "authority" upon it; and that if he now asked them not to read a Bill a second time, it was only because of the reasons which he should submit to them, and of the weight of which their Lordships themselves were quite competent to judge. He would not even ask his noble Friends on his own side of the House to vote against the Bill unless they should he satisfied with the reasons which he should state why the Bill ought not to pass into a law; and with respect to the noble Lords on the other side of the House, if they should think that his objections had any weight, he confidently relied, notwithstanding what had passed on previous occasions when their Lordships voted in favour of a similar Bill, before they had heard the objections that could be urged against it, that they would now freely give him their support.
He felt that he laboured under some difficulty in stating his objections to the Bill, because his noble and learned Friend on the woolsack, by referring to a publication of his (Lord St. Leonards) on the subject, had anticipated his objections; but as, of course, his noble and learned Friend had stated them in a manner not likely to attract their Lordships' attention, he should feel it to be his duty to state them with a little more particularity; and of course 945 he also felt the difficulty of the position in which he was placed by the circumstance that the same Bill in effect as that now in question had already been approved of by their Lordships. In order, however, to remove some obstacles out of his way, he should first refer to the history of the Bill The Bill, as their Lordships bad already heard, originally emanated from the Real Property Commissioners, at the head of whom was his noble and learned Friend the present Lord Chief Justice (Lord Camp bell). It was recommended by those Commissioners, and was carefully prepared by that able lawyer Mr. Duval, with the best assistance, so that if any Bill could have been expected to come out as a perfect Registry Bill it was the one now on their Lordships' table. It was first brought before Parliament in 1830 by his noble and learned Friend (Lord Campbell), who, was then a Member of the other House, with great support and with every possible reason for passing it if it were a Bill that ought to pass. But it did not pass—it was not proceeded with that Session. It was again introduced by his noble and learned Friend in 1831, and again with drawn—the table of the House of Commons having, in the meantime, been loaded with petitions against it. It was for the third time brought forward in 1832, when it was referred to a Select Committee; but it was ultimately rejected upon the bringing up of the report of the Committee by a Committee of the whole House—rejected, that was, as soon as it was seriously taken up by the House. In 1833 it was again brought forward in the House of Commons, but not by his noble and learned Friend. On this occasion the Bill again went to a division, and was rejected by a majority of 82 to 69. It was brought before the House of Commons for the fifth time in 1834, and was rejected on the second reading by a majority of 151 to 69. Their Lordships would see, therefore, that there was nothing very surprising in finding that he (Lord St. Leonards), who bad always opposed the Bill, should take the present opportunity, which was the first that had presented itself, of stating to their Lordships what the real objections to it, in his apprehension, were.
In 1845 the Bill was introduced into their Lordships' House, but not proceeded with. In 1846 the Committee of their Lordships was appointed to which his noble and learned Friend had referred, for the purpose of inquiring into the Burdens on 946 Land. That Committee came to the concllusion, which he believed to be quite an erroneous one, that the burdens on land would be relieved by a General Registry Bill, and, as its consequence, the simplifying the transfer of property. He believed that, so far from this being the case, the burdens would be greatly increased by such a measure. On the recommendation of that Committee a Bill was introduced into their Lordships' House by his noble and learned Friend (Lord Campbell. That Bill was also dropped, like its predecessors. Then came the recommendation of the measure in the Queen's Speech, after which one would have thought that the noble and learned Lord then on the woolsack (Lord Truro) would have felt it his duty, as the organ of the Government, to introduce a measure on the subject; but the Bill was again introduced by his noble and learned Friend (Lord Campbell), who, though not connected with the Government, undertook to become sponsor for it. After repeated postponements and great consideration, the Bill was referred to a Select Committee, who made a report which, in his opinion, entirely destroyed the effect of the Bill—the Amendments they proposed rendering it quite powerless, leaving all the mischief, and taking away all the benefit. That Bill, also, was ultimately allowed to drop in the other House of Parliament; and now, at the end of twenty-three years, although they had seen that every one of the eight times it had been introduced before, it had broken down, the Bill had been introduced for the ninth time. It was a measure of unspeakable importance, and, if it could be made to work, it ought to succeed; but if it, could not work, it would only be a snare, it would only introduce more fraud, and would delude owners of property instead of benefiting them. This was his fixed opinion; but if his noble and learned Friend could show him that the Bill would answer its purpose, and would at the same time effect the security of property, he would readily vote for it.
There were several things in connexion with this measure which were quite certain. In the first place, the expense was certain. That was not at all problematical. In the next place, it was certain it would benefit no man's title who was now living, but it would shortly occur that every man's present title would be held under two systems: some of his deeds 947 would be in his own possession and not registered, and some would be registered, and either out of his possession, or he must, as he probably would, in every case, incur the expense of two title deeds, for it was scarcely likely that any one would place his deeds out of his own control, and where he could never see them without paying. It was equally certain that this Bill, though it had been recommended as a relief to the land, would not save the landed interest the thousandth part of a shilling. It would only transfer the loss from one individual to another. It was fortunate for the landed interest that this Bill had not passed twenty years ago, for it had been clearly shown by the report of the last Commission, that if it had passed, without an accompanying map, it would have been a snare instead of a security to the landowners. It was a well-known fact, that for the last two centuries the most learned persons in the country had desired to have a general register. But this was an argument that cut two ways:—had it not occurred to the noble and learned Lord to consider why the desire of these learned persons had never up to this moment been carried out? It had never been carried out, simply because it had been found impossible to frame a measure that would work well. It had been tried in Yorkshire, in Middlesex, in Ireland, and, in a different shape, in Scotland; it had been tried also in almost all foreign countries, and the result had been failure in every single instance. Scotland stood, however, on different grounds. The arguments of those who supported the measure were mainly these—that it would give safety to purchasers; that it would shorten the transfers of property; that it would prevent fraud; that it would prevent forgery; and, also, what was called "tacking."
He would proceed at once to inquire, would this Bill, or would it not, do what it purported to do—give safety to purchasers? A general register had previously failed of its purpose. Would, then, this Bill execute that in which other Bills had failed? Mr. Duval had done what had not been attempted in the present instance. He had faced the difficulties in such a manner as to endeavour to obviate them, having inserted in the Bill all the different modes in which it was to work. Mr. Duval, in a letter which he had written to him (Lord St. Leonards) upon this Subject, about the time of the introduction 948 of the original Bill, made these observations:—I send you some notes explanatory of the object and effect of the clauses in the Register Bill relating to the mode of registration. If you will take the trouble of reading them, I think you will at least see that very great pains have been taken to render the details as perfect as possible. I know you well enough to be satisfied that you will not form your opinion on the Bill upon any suggestion which may have been made to you as to its complexity. The fact is, that the system is itself extremely simple, and that the apparent complexity of the provisions arises from an attempt on my part to leave as little as possible for future decision; to anticipate and provide for every case which can arise, and to give to the operation of the system every convenience of which it allows. Whatever may be the fate of the measure, I am anxious to have your favourable opinion, above that of any other man, of what I have done, and I know with what facility you will be able to form a just estimate.The Bills introduced, up to the last one prior to the new Commission being appointed, had all proceeded upon Mr. Duval's plan; and when that Commission was appointed, the learned persons who composed it, after examining with great prudence and intelligence Mr. Duval's plan, made a very elaborate report; and what did their Lordships think, after the lapse of so many years, and the constant repetition of that plan by Mr. Duval, was the conclusion at which the Commissioners arrived? Why, that Mr. Duval's plan had altogether failed, and could not operate for the purpose for which he had intended it. In that report, in point of fact, they condemned by anticipation the very Bill of which his noble and learned Friend upon the woolsack now moved the second reading. They stated, that for a long time the index of names only would be referred to, that there was danger of mistakes or misrepresentations in titles, and that cases of documentary evidence and ignorance of title were not provided for. Over and over again, paying Mr. Duval the highest compliments, which he so richly deserved, still they stated that his plan was open to all those objections. They put also other cases in which, under Mr. Duval's plan, there might be a registry of two distinct and conflicting titles of the same property, so that a man might buy under one registry without having the slightest knowledge brought to him of the other conflicting title. Then, they asked themselves what they were to do? Mr. Duval's plan was good, so far as it went, but it would not work without a map. 949 They said, referring to a particular form of index, that such an index could only be attained through the medium of a map. But, on the other hand, in a supplementary paper, two of the learned Commissioners said—Not only do we consider that the plan of the former Commissioners, with certain modifications, would be far superior, and with the use of private maps, where considered desirable by the parties interested, adequate to all the purposes and requirements of 'an effective system of registration;' but after long and patient investigation, our conviction is that any plan of map indexes, however specious in theory, would, in practice, not only be found wanting in efficiency for many of the important purposes of registration, but in the course of a few years would become productive of serious evils; evils affecting the facility of transfer and the security of titles, and attaching peculiarly to such a plan, and that, instead of diminishing the burdens on land, it would ultimately add materially to them.They stated that it would cost about 2,000,000l. His noble and learned Friend, he believed, estimated it at nearer 3,000,000l. Now, he asked their Lordships to look at the difficulties and expense which would attend this system of mapping. Our neighbours, the French, had in the year 1808, for purposes of a fiscal nature, had a map of the whole country constructed. In 1838 they reported that the state of confusion which had arisen upon that map by a lapse of thirty years was so great that a now one would be necessary. They represented that it would cost 200,000,000 francs, and that it would require thirty years to execute. Certainly England and Wales were not the size of France; hut their Lordships might imagine from that statement, how difficult it was to form such a map. Let them take a ride a few miles round London, and see how every field was altered day by day, and almost hour by hour, by the operation of building societies or other agencies. The moment a house was built, or a small portion cut of so as to alter the previously existing boundary, down must go a surveyor to make a survey of that alteration, and to define the new boundaries. So often as that was done there must be new plans, which must be added to the original plan; and not only must there be an enormous staff of engineers, surveyors, and map makers, with a constant expenditure of many thousands a year, but they would, in the course of time, be so overburdened with these maps that that of itself would destroy nil the benefit to result from them. It became apparent, then, that the map 950 would introduce vast difficulties and expense, and that without the map the register would be of no value at all. Indexes of names were equally a difficulty. In Middlesex, for instance, there were hundreds of the respectable families of Joneses and Smiths constantly migrating, and of whom it would be impossible to keep any accurate account. The result of the inquiry was, that under the Commission, the Bill was brought in with a map. It was sent to a Select Committee of their Lordships' House, and he believed that upon the Motion of his noble and learned Friend then upon the woolsack, maps were rejected in the Committee.
§ LORD ST. LEONARDS
At all events, the Committee, striking out the maps, substituted this measure: that the registrar should have the authority to furnish maps whenever he thought proper. That provision was struck out in the passage of the Bill through the House. What was it then? It was a measure which the Commissioners, on whose report they had been acting, had told them most distinctly was powerless for the purpose for which it was intended. Was that, then, the Bill which their Lordships were now to be asked to support? If it were, at all events they must not be asked to support it upon the authority of the Commissioners.
He denounced this measure, in the face of the people of England, as one which would produce great delusion, and would afford no assistance in the requisite direction. Although it would bring to the solicitors great profits, yet all the solicitors of England were opposed to it. The present Bill did not tell what was to be the number of registrars, what their salaries were to be, the number of their clerks, or the amount of fees. In the first Bill there were schedules in which these items might be filled up; but by the present Bill the whole of the patronage was in the hands of the Crown or the Lord Chancellor. He wished to impress upon the House that this was not a measure which had been recommended by any Commission. On the contrary, it was opposed to every recommendation of every Commission, and he could not understand the arguments which had been adduced against those recommendations. He apprehended, therefore, that this plan would entirely fail.
The next point was with regard to as- 951 sisting the transfer of land. He believed there never had been a greater delusion than had existed on this subject. He would take upon himself to say that it would in no manner assist the transfer of land. There were persons who believed that it would shorten abstracts and conveyances. It would do no such thing. He spoke with experience and knowledge upon this matter, the first part of his life having been passed as a conveyancer in considering the validity of titles and answering cases. He had seen, probably more titles in his day than any man living; therefore, while he spoke with humility, he spoke also with experience, and he asserted that the plan proposed would neither shorten the abstract a single word, nor assist the transfer or conveyance. Were abstracts in the counties of York and Middlesex, both which were register counties, shorter than abstracts of title deeds to estates in other counties? It was well known that they were not.
His noble and learned Friend had quoted the numbers of deeds and instruments registered in Yorkshire, but he had forgotten to enumerate the numbers that were not registered. He (Lord St. Leonards) could again speak from experience. He had seen great numbers of titles to estates in the register counties, the muniments of which had not been registered; and in not one of those had there been any suppression of title. Then their Lordships were told that the Bill would provide a place of safe custody for deeds, and it contained a provision compelling every man to bring up his deeds to town and leave them there, the object of this arrangement being to prevent a suppression of deeds. It was said, "Here will be a safe place for a man's deeds," and therefore they proposed to compel every man to bring his deeds up, whether he would or no, to one great building in town, and to give him—what?—why, to make him pay whenever he desired to look at them. But an Englishman liked to have his own sheepskins in his own box. As to the suppression of deeds, he must again refer to experience, and he told their Lordships that he never recollected a single instance of the suppression of a really important deed. He had tried frequently to recollect if such a case had occurred within his experience; and though attorneys might sometimes suppress a deed which they believed to be of no importance, yet he repeated that he never knew a single instance arising of the suppression of an im- 952 portant deed. The Commissioners of 1832 declared that the suppression of deeds was very rare indeed; and the Incorporated Law Society, in their petition against the Bill of 1851, affirmed that nothing was so rare as the suppression of deeds. It was, in fact, the general opinion of the best-informed persons, that though, no doubt, such suppression might take place, it scarcely ever did. He would put it to their Lordships, then, whether they were prepared to saddle the country with a charge of 1,000,000l. a year, at the very least, even without maps, merely in order to guard against the contingency of an occasional suppression of a deed? If Parliament would let purchasers alone, they would get on very well without its assistance. Once a man had paid his purchase money, had his conveyance executed, and got his title deeds, he (Lord St. Leonards) would, generally speaking, insure him for 5s. against risk of losing his estate by any subsequent Act. But if Parliament passed this Bill, nobody would be secure of his title; and, at the very best, would have to be darting to the registry office on all sorts of occasions to inspect, to enter caveats, to withdraw caveats, and what not; and, after all, with the full protection purported to be given by these caveats, the man of whom you had bought a property might, unless you were very quick indeed, and very fortunate, too, in the registrar and his arrangements, mortgage the very property he had sold to you, and completely oust you. Look at the danger, too, arising from mistakes on the part of the registrars. There was a case in the books of a man named Crompton, who had registered his estate in one of the registered counties; the clerk inadvertently inserted the name as "Compton." Here the mere literal error of a clerk absolutely compromised a man's whole property. How were their Lordships to guard against such errors, such fatal errors? Again, the deeds, when registered, were to be deposited in boxes, accessible to clerks and porters. Now, how many instances had we before us every year, every month, of clerks and porters who had access to valuable deeds and other documents abstracting and selling them for waste paper, to the enormous, to the irreparable, damage of those to whom they belonged? Thus, then, while the Bill purported to guard against evils which might, in point of fact, be said to have no existence; it created dangers of the most serious cha- 953 racter, and struck at the very root of every man's title.
One evil he had referred to, the Bill proposed to remedy in a very curious way. In the first Bill on this subject, introduced elsewhere by his noble and learned Friend opposite, it was provided that the registrar should be personally liable for any damage arising to parties from negligence or error on the part of the registrars or their clerks; but in the present measure there was no such liability cast on these officials—an exemption by no means calculated to sharpen their vigilance. If loss should befall any one by the fault of the registry office, indeed, the Bill said that the injured party should have compensation out of the Consolidated Fund—so that, at first sight, it might appear that no one had occasion to apprehend ultimate loss except the Chancellor of the Exchequer, who might from time to time be called upon to refund 50,000l. or 60,000l. or so, lost to registered persons by the negligence of the registrars. But the Bill, anxious to relieve the mind of the Chancellor of the Exchequer from any such grave fears, conferred on the Registrar General, who was the master of the whole concern, in whom all power was reposed, authority, from time to time, to frame any new regulations and formalities that for any reason might seem to him expedient, and to require from all persons registered strict adherence to those regulations and formalities, in default of which adherence, from whatever cause, parties were to have no claim for compensation for any loss that might befall them from the neglect of the officials. This indirectly took away all chance of compensation.
It was said that the measure was expedient, with a view to the abridging transfers of land; but it was in no degree requisite for that purpose, which might be effectually accomplished without it. He would himself undertake to prepare a conveyance of any noble Lord's whole property within a single sheet of letter paper, as thoroughly effectual to all intents and purposes as though it occupied twenty skins of parchment. But men preferred a settled form, the operation of which was well understood, to any new although a shorter one; and he himself would, if he were to make a purchase, still adopt the common form, although avoiding prolixity. All that was needed, in this respect, was still further to simplify the law of real property. Much had been done in this way within the memory of the present 954 generation, and he did not at all despond as to the effectuation of most of what remained to be done. Suits in equity had been so abridged by the substitution of claims for bills and other provision, that the result, formerly attained only by large outlay, and after long delay, could now be arrived at with little expense, and almost immediately. Legal estates, which could not be got in except at great expense, when outstanding in lunatics, mortgagees, or trustees, would now be readily obtained at little expense. Fines and recoveries had been swept away, and a new scheme substituted, elaborate indeed, but which effectually did away with all the expense of fines and recoveries, and also with all their dangers—dangers which had heretofore involved the utter ruin of scores and scores of important families; the time for barring the title to a property had been limited from sixty to forty years; the barrage of dower on a husband's estate could now, under the new Dower Act, be effected by the mere declaration of the husband, without expense; outstanding terms had been swept away;—and in every direction expenses, difficulties, and delays, had been so obviated, that the outlay of time and money upon conveyances now bore no relation whatever to the former condition of things. Still, more might be accomplished. It was his opinion that the effect of reducing the time for recovering an estate from sixty to forty years was to render it no longer necessary to carry back abstracts of titles for sixty years; but as a tenant for life might live more than forty years, his noble and learned Friend (Lord Lyndhurst) when Chancellor, held that a title must still be made out for sixty years. He hoped still to be able to place this on a better footing. Some desired to have a transfer of land made as simple as a transfer of stock in the funds; but that was impossible:—some expense must be incurred, though the expense need not be so great as was commonly supposed. He could not better illustrate this fact, than with a statement with which he had been favoured by an eminent conveyancer, of the actual expenses recently incurred by a party in the investment of more than 1,000,000l. sterling in, land. The entire amount of the purchase money was 1,068,421l. 19s., which was laid out in the purchase of fifteen estates; and there was beside, included in the bill, the cost of the sale of an estate, for 955 80,000l. How much did their Lordships suppose the hill of the solicitors to have been for the whole of these transactions, including their own payments out of pocket, fees to counsel, payments for stamps—from which, obviously, they derived no advantage, but the precise reverse of advantage—and the charges of other solicitors? Why, the entire bill of the solicitors for this outlay of 1,068,421l. 19s. upon the purchase of fifteen estates, containing in all 26,286 acres, all charges for counsel's fees, for stamps, but not including ad valorem stamps, for payments to other solicitors, and for the sale of an estate for 80,000l., was 3,420l. 8s. 17d., of which 838l. 12s. went in counsel's fees, 183l. 17s. 6d. in stamps, and 261l. 18s. 5d. to other solicitors. Let this expense be compared with the common charge for investment of a like sum in the funds. Above all, let it be compared with the enormous and improper charges on sales to purchasers of railway shares. While upon the topic of the expenses of transfer, he wished to observe that it was not only the interests of large proprietors that were menaced by this Bill; by no means. The interests of the humbler classes—of the smaller tradesmen—of operatives—even of labourers—were at stake. Their Lordships had, probably, no idea of the minute purchases of real property that were being constantly made by these classes. There was, for instance, a large number of building societies now in operation, some with a capital approaching half a million sterling, the collective property of thousands of humble men, whose aim was the purchase of a plot of ground and the erection of a house upon it, and whose natural and proper pride, when they should first tread upon the little freehold their industry and their prudence had achieved for them, would be as glowing as that of any of their Lordships in acceding to the broad acres of his ancestors. Their Lordships would scarcely suppose that on the humble acquisitions of these worthy and industrious persons the proposed measure would impose a serious impediment, and inflict a grave loss; yet such would be the case. He held in his hand a letter he had received from a gentleman with whom he was not personally acquainted, Mr. Green, a solicitor at Bury St. Edmunds, whose object was to get him to oppose this measure, and, among other grounds, to show the extent of the 956 hardships which it would inflict on small purchasers. The Commissioners of 1833 admitted that the Bill was not necessary for the safety of small purchasers, but they contended that its provisions must include all assurances, in order to insure a completeness of system. That gentleman said—The counsel and eminent London solicitors, who alone appear to have been consulted on this subject, have little conception of the number and minuteness of the transactions with which the general practitioner is conversant, and of the effect which would be produced by the additional expense and delay of registration. These would not be proportioned to the amount, but would attach themselves without distinction on every transaction. A difference in the rate of registration fees can be a question of only a few shillings; the real burden lies in those multitudinous details which rest with the solicitor, and which will be exactly as troublesome in the smallest as in the largest transaction. It is important to exhibit the proportion of small and large transactions as ascertained by actual experience. I believe that the business of my firm represents rather a higher proportion than the average business of the kingdom, for, while the great London offices have many larger transactions, the great body of practitioners have fewer transactions above 500l. Yet an examination of upwards of 300 conveyances and 450 mortgages transacted by my firm in the last three years exhibits the following percentage proportion:—
Conveyances. Mortgages. 3,000l., and upwards. 3 30 4 26 From 2,000l. to 3,000l 4 2 From 1,000l.to 2,000l. 9 10 From 500l. to 1,000l. 14. 10 From 400l. to 500l. 9 70 12 74 From 300l. to 400l. 6 12 From 200l. to 300l. 19 11 From 100l. to 200l. 17 13 Under 100l. 19. 26 100 100 It appears, therefore, that of conveyances 70 per cent, and of mortgages 74 per cent, are under 500l. I may add that in 40 per cent of the conveyances, and in 98 per cent of the mortgages, we were concerned for both parties. The prevalence of this practice diminishes so much the expense and delay, that the increase of both, resulting from registration, will be out of all proportion to the present amount. In these cases the cost of the conveyances under 500l. has been from 2l. to 7l., and of mortgages from 1l. to 6l., in proportion to the amount, exclusive of stamps. There is nothing in the proposed system of registration which will subtract 1s. from these minor conveyances and mortgagees, and every proceeding under it will be an addition of labour and expense. I have carefully computed the expenses which must be incurred on every occasion, and cannot make them less than 5l. on every conveyance, and 4l. 10s. on every mortgage, exclusive of registrar's fees, and assuming that printed forms and every facility will be provided. And in the case of a mortgage there will be at least half the same expense incurred in clearing it from the register on its dis- 957 charge; and these processes can never be waved, but must invariably be pursued in every transaction, great and small. But the expense, great as it is, will not be the only or even the principal objection. A considerable and indefinite amount of delay must be occasioned. Delay in mortgage transactions is of great moment. Of the 70 per cent of mortgages under 500l., I venture to say that a half were prepared and executed within a week from the application for the money, and many of them on the same day. Equitable mortgages or memoranda with deposits of title deeds are invariably completed on the same day, and are commonly managed by hankers in the country, without the interposition of a solicitor. This would now be impossible. In the cases of mortgages and conveyances in general, the time occupied in searches and subsequent registration of the deed cannot be much less than fourteen days.That paper showed not only that transfers of small properties were made for very small sums, but that registration would be an additional expense, would give no benefit in return for the injury it would inflict upon these small purchasers, and would create delay, which in most cases would be a serious evil. A system of registration would lead to the necessity of searches, of going to register sales, mortgages, and the subsequent discharge of them, caveats, and inhibitions—all of which would cause expense, and, as they would depend upon the attorney, he must come to town to see after these transactions.
There was a strange anomaly in the proposed measure. His noble and learned Friend had found it necessary to make a provision for putting on the register the title of a person who was a trustee, and allowing a reference to some document without going into the trusts, and then, said his noble and learned Friend, any one might safely buy from that person, although it was known he was a trustee. But was not that trusting to a title that was not on the register? The owner of the property might place confidence in the trustee; but the trustee, by mortgaging or selling the estate, might beggar him and his family, and it would then be said that it was his own fault for trusting the man and not the register. Why should they not guard themselves by the register as to that other document? Were they to have a general register at a cost of 1,000,000l. a year in order to place on the register, not the real title, but the legal transfer, keeping the former off it? The person whose name was on the register might sell the property; but, said his noble and learned Friend, a party interested in the property might prevent a sale by putting on the register an inhibition. In many 958 cases a Chancery suit would, follow: but a simple injunction would not do, and by this Bill he would be deprived of the protection which the law now afforded. A party would say, "I have trusted this man, thinking he was an honest man, and he has sold my estate." The answer would be, "You must have been a blockhead to put your estate in his hands." That showed the weakness of the system.
But he was now approaching a very important part of the subject. His noble and learned Friend proposed that, in order to make this system work, they must do away with notice. Now, the object of a general registration was to communicate knowledge—to give to the party going to advance money on mortgage or to purchase an estate notice of deeds previously executed relating to the same property. A court of equity said, "If you know of a transaction, although the deed is not registered, you shall be bound by it;" but by this Bill, although knowledge of a previous purchase might be brought home to the mortgagee, the purchase deed not being registered, the mortgage could be enforced. Put a common case. A man bought an estate and paid for it—was in possession—his title made out, but his purchase deed was not registered. The seller representing himself as still the owner, although he had sold the estate, sells or mortgages it to another. If the person with whom he was dealing happened to know that he had already sold it, what did the court of equity do? What it was right to do. It said that the party having that notice should be hound by it, although the former deed was not registered; and he could not recover against the purchaser of the property. The highest authorities were in favour of retaining that practice. It was sometimes argued that in the interpretation of constructive notice, equity went too far—and that might be correct. But the moment that equity did that which their Lordships and the House of Commons were now called upon to do, the court would cease to be a court of equity, and would be stamped with iniquity. The same injustice would apply even to persons who had attempted to register. He had known several instances in which clerks who had been sent to register deeds had neglected to do so, and the charges for registration had been made out against the party interested, although his deeds were not registered at all. But, under 959 this Bill, that party would be bound, and might lose his estate, and unless he registered his deeds himself, or saw them registered, he could never be sure that another party could not come behind his back and take away his property. Upon this doctrine of notice it was said the majority of the Commissioners were in favour of doing away with notice. But he held in his hand the heads of a Bill—Mr. Duval's Bill—which was brought into the House of Commons by his noble and learned Friend (Lord Campbell) in 1830, and, in a letter addressed to him by Mr. Duval on the subject of the Bill, Mr. Duval said—I send you a printed copy of the Registration Bill. Upon the clause, p. 31, as to notice, and the proviso, p. 24, which you will find struck out, the Commissioners are equally divided. The consequence is, that as this provision is not authorised by the report, it will not be included in the Bill as brought in by Campbell. Sanders, Tinney, Brodie, and myself are in favour of the clause, and Bell has written a long paper on the same side, which is in the appendix to the Report; and I send you a copy of a letter he wrote to me a day or two ago, which, in substance, proposes what I had inserted in the Bill, and is now struck out. My own impression is, that the provision saving the jurisdiction of equity in cases of actual notice is highly important.The clause to which Mr. Duval referred did away with notice; but then Mr. Duval added this proviso:—Provided always that this present provision shall be without prejudice to the provision hereinafter contained for preserving the jurisdiction of courts of equity in cases of fraud.And by another clause in the Act it was provided—That this Act shall not prejudice the jurisdiction of courts of equity in cases of fraud; and that the provisions hereinbefore contained for giving priority to subsequent assurances registered in the manner required by this Act, notwithstanding notice of a prior assurance, or proceeding, or act, or matter, and for protecting assurances executed during the pendency of suits in equity, shall not be construed to enact or declare or imply that actual notice at the time of making any assurance by this Act authorised to be registered, either to the party to or in whose favour such assurance shall be made, or his attorney or agent, of any such prior assurance, or proceeding, or act, or matter as aforesaid, or of the pendency of any such suit as aforesaid, or of the presenting of any petition of appeal or rehearing in any such suit, shall not be considered or be made use of as evidence of fraud in such party, or his attorney or agent.By that Bill, then, Mr. Duval provided that direct notice should be binding upon a party, and that he should not be allowed, as the Bill now before their Lordships proposed, 960 to defraud the person to whom the property was sold, and who had paid his money. On the 30th of March, 1834, Mr. Duval wrote again to him, saying—There is one point upon which I think I have made some communications to you before. It is my clear opinion that equity must retain its jurisdiction in cases of fraud. The former Bill had such a provision, which I introduced, instead of leaving the party to bring an action, and I never had a doubt of such a clause being ultimately inserted in the Bill.The Commissioners, then, were equally divided upon the point; and up to the last moment Mr. Duval was of opinion, as he (Lord St. Leonards) was, and always should remain, that direct notice should be binding upon a party. The object of registration was to give notice. If a man had notice it would be the most inequitable of all transactions to say it should not be binding.
It was very tedious to go through all the points of the subject, but it was most important that their Lordships should be made acquainted with them. Now, there was a vast number of deeds that were never put upon the register in the register counties. In the first place, there was the expense of the register itself. A statement, which he thought entitled to great attention, was issued against the Bill of 1851 by the Incorporated Law Society, in which that body informed their Lordships and the other House of Parliament that the number of instruments to be registered in a year amounted to not less than 300,000, or about 1,000 a day. His noble and learned Friend seemed to forget that the parties in every case must go into an examination of the deeds—for no man would buy an estate without seeing the deeds; persons would constantly be making searches; a considerable number of attorneys would be continually occupied in examining deeds, or entering caveats, or entering discharges of mortgages: scores of clerks would be running about in every direction;—and taking into account the number of persons who would be engaged in the transaction of the business to be carried on, it would be found that an enormous deal of room would be necessary for the accommodation of the department. He would take off one-third from the estimate of the number of deeds to be annually registered, and assuming the deeds at 200,000 yearly, and the expense upon an aver-age 5l. each (and he was perfectly satisfied that he understated the case), 961 the expense would be not less than 1,000,000l. a year; and if the system were to be set going, 2,000,000l. or 3,000,000l. would be wanted to start with. They were told that the object of the Bill was to relieve the burdens on land; but he contended that the effect of establishing the proposed system of registration would be, without conferring any corresponding benefit on the public, to increase their burdens to an enormous extent; and if the Bill had been entitled "a Bill to increase the Burdens on Land without any corresponding Benefit," it would have been a more accurate description of its practical effect. If there had been complaints the other day against a house tax, how would the people be content with a registry tax that would exceed the house tax in the severity with which it would press on the country? There was no man who would have been subjected to the house tax, who might not come within the incidence of this tax—he could not escape from it. On the ground, then, of the enormous expense which this Bill would involve, he objected to it.
The Bill had been entitled "A Bill for the Registration of Assurances in England and Wales." If he met anything like a mistake he was not in the habit of supposing it a mistake, but he was more in the habit of supposing that he had himself made a mistake—but a provision extending the operation of the Bill to Wales he could not find. Their Lordships had formerly sent down to the other House a Bill for the registration of assurances in England and Wales; but now the noble and learned Lord had cut out Wales. Why should Wales be omitted? [Lord CAMPBELL said, he would show that Wales was comprehended.] The noble and learned Lord was entitled, then, to great credit for the way in which Wales was introduced into the Bill without seeming to intend it. If the Bill was a Bill for England and Wales before, and did apply to Wales, why were words applying it to Wales now cut out? If the system could be shown to work, he should support it with all his heart. A system of registration ought to be domestic and local; it Ought not to be, like that which was now proposed, centralised. The present measure sinned against all sound principle.
There was only one other case to which he would refer for the purpose of illustrating what would be the operation of the Bill, and that was forgery. It was said 962 the object of a general registry was to prevent forgery. So far from preventing forgery, this Bill would assist forgery. Hitherto the form had been one that gave validity to the deed executed. The memorial had been required to be attested by one of the witnesses who had attested the deed itself. In this Bill that requirement was dispensed with; there was no certainty that the deed registered was a real deed; it might be a forged deed, but as a matter of course it was registered, whether forged or not. In those cases in which forgeries had been committed, he regretted to say that they had been committed by the agents and solicitors who had a man's deeds using his deeds without his knowledge, forging his name, and thus executing mortgages on his estate, which remained for years undiscovered; it could never be known from the register, unless there were other transactions. The deeds being on the registry would give no notice to the man whose name was forged, but their being on the registry would give a seeming validity to the transaction, which otherwise it would not have. The Bill, therefore, instead of being a protection against forgery, would greatly add to the facilities for forgery.
There was another point to which he wished to call their Lordships' attention in regard to the bearing of this measure on the transactions of private life. The Bill called on persons to give the date, the names of the parties, and the effect of the conveyance; and if any one required to know the nature of the deed, it must be produced. The Committee of 1832 thought it right that men should be compelled to disclose all the circumstances of their title. Times were very much changed. There was a time when Judges would not allow a man to produce his title. An anecdote was told of Lord Kenyon, that when a man had brought his deeds into court, he was told by that learned Judge to sit on the box which contained them, and to let no man see his title. No man ought to be called upon to disclose the titles to his property, except in case of absolute necessity. This Bill, too, would enable money lenders to discover the interests of improvident young men under family settlements. Many a man had been saved because he could not show, during his father's lifetime, what his interest was in the family property.
963 Without trespassing further on the attention of their Lordships, he should say, in conclusion, that he ought to apologise for having occupied so much of their time; hut the subject was one of great importance, and this was the first opportunity on which the objections he had to the measure could have been stated. He hoped the remarks he had made would be received in the spirit in which they were tendered. The measure had been introduced by one for whose memory he entertained the highest respect, and was advocated by many persons to whose opinions he attached great weight; but after the experience of a great many years in those particular departments to which the Bill had relation, he should say it was because of the responsibility which, under these circumstances, attached to him, that he had felt it his duty to state fully his opinion of the Bill.
§ Amendment moved, "That the Bill be read a Second Time that day Six Months."
said, he rose to address their Lordships under circumstances of great discouragement. His noble and learned Friend had occupied the House so long, that it was now but thinly attended—not from any fault of his noble and learned Friend, but from the nature of the subject. However, he was much comforted by thinking that the Bill was safe. On the side on which his noble and learned Friend sat, only half-a-dozen Peers could be counted. His noble and learned Friend had forgot to make his Motion, that the Bill be read a second time that day six months; but he (Lord Campbell) presumed that their Lordships must hold that Motion as having been made; and he presumed that his noble and learned Friend was prepared to walk out in support of that Motion; but he thought his noble and learned Friend would not have a very numerous following. On the whole, he (Lord Campbell) was sanguine that their Lordships would go into Committee on the Bill, for which the points brought forward by his noble and learned Friend seemed much fitter than for this debate on the principle. He wished to address himself to one or two points on which his noble and learned Friend had touched. He should begin by relieving his noble Friend from anxiety on the subject of Wales. He would assure his noble and learned Friend that he had found a mare's nest; and unless his other arguments against the Bill were sounder than this on 964 which he had placed such reliance, his objections would vanish into thin air. Considering the great learning of his noble and learned Friend, he thought that he must have been aware that Wales, being under obedience to the Crown of England, was by the common law part of England; but, still more, one would have thought his noble and learned Friend must have been aware that to remove all doubt and ambiguity there had been a Declaratory Act, which was the 20th George II., c. 42. [Lord ST. LEONARDS rose, as about to offer an explanation]—"Don't now; it is not proper." He thought his noble and learned Friend would have been obliged to him for the information he had communicated; and when his noble and learned Friend had resumed his seat, as regularity required, he should show that it was enacted—not enacted, but declared—by the first section of the Act already mentioned, that in all cases where the Kingdom of England, or that part of Great Britain called England, had been or should be mentioned in any Act of Parliament, the same had been and should be deemed and taken to comprehend and include the dominion of Wales and the town of Berwick-upon-Tweed—which he hoped accordingly would shortly have the benefit of enjoying this Bill as part of the law of England. Notwithstanding that slip of his noble and learned Friend, he (Lord Campbell) had the greatest respect for him as a lawyer and a Judge. He was a consummate master of his art. If he (Lord Campbell) had a title to an estate to settle, he should with eagerness have sought his noble and learned Friend's opinion; if he had a dispute in a court of equity on the construction of a deed, he should have desired to have his noble and learned Friend for counsel; and when his noble and learned Friend was elevated to the Bench, there was no one before whom, if he (Lord Campbell) had a cause for trial, he should have been been more willing that it should come. But he believed his noble and learned Friend bad a horror of legislation on this subject, which blinded his judgment and made him forget many things he had learned. He said he wished the Bill thrown out on the second reading; but if he consented to its going before a Select Committee, efforts might there be made to amend it, and there was hardly an objection he had made which might not be removed in Committee. But no; he was determined at once that the Bill should be thrown out on the second 965 reading—that very Bill which their Lordships passed in 1851, nemine contradidente; when the Motion was put, "That this Bill do pass," not a single "not content" was pronounced. But his noble and learned Friend relied on the speech he had made that night to change the opinions of all who heard him, and bring about a complete revolution of public sentiment. He was under a misapprehension in supposing that there was any novelty in what their Lordships had heard that night. It was a most able statement, but it was all old. Lord St. Leonards was not a Member of the House of Commons, but Sir Edward Sugden was a Member of the House of Commons. He had various opportunities of opposing the measure when formerly introduced; and he copiously availed himself of those opportunities, or he (Lord Campbell) was mistaken. Again, the noble and learned Lord published a most able pamphlet in 1830 or 1831, which was very generally circulated; but lest it should not have due justice done to it, his noble and learned Friend republished it again, and again, and again. In the Law of Vendors and Purchasers that pamphlet was incorporated, and was always bound up with it, so that all who wished to have the benefit of the Law of Vendors and Purchasers were compelled to have the benefit of the pamphlet against registration. The noble and learned Lord had also more recently republished the same pamphlet under the title of Shall we Register or Not? That pamphlet was circulated among their Lordships, and it was by no means unknown to them when their Lordships unanimously passed the same Bill as that which his noble and learned Friend now so strongly opposed. After their Lordships had been pleased on a former occasion unanimously to pass the Bill, his noble and learned Friend was rather sanguine in his expectation that their Lordships would throw out this Bill on the second reading. There was a considerable number of topics to which his noble and learned Friend had adverted which might have been better reserved for the Committee; but there were some which he (Lord Campbell) felt it to be his duty now to remark on. His noble and learned Friend had declared that he was a friend to registration in the abstract; but if that were so, why did he oppose this Bill, which might be moulded in Committee into any shape he pleased? He (Lord Campbell) was afraid his noble and 966 learned Friend was by no means a warm friend to registration, because, if registration was liable to some of the objections he had taken, they were fundamental and irremediable. The noble and learned Lord had stated, that all systems of registration which had been attempted had been failures. He (Lord Campbell) must take upon himself to give a totally different opinion, for he believed that in every country where registration had been attempted, it had had success, more or less. In Scotland there had been a registry for two centuries; and he believed the Scotch would sooner surrender almost any of their institutions, of which they were so proud. It had been found most useful, too, in Ireland, and in the Colonies, and on the Continent. If it was not found beneficial, would it not have been abolished? But it had never been renounced by any country which had adopted it. Then, as to the expense of the present system, the noble and learned Lord urged that the expense of a conveyance without registration was not so very great, as was supposed, and he brought an instance which he cited in all his pamphlets, whore 1,000,000l. was laid out at an expense of only 3,000l. But was that a fair criterion of the general expense incurred in the transfer of land? His noble and learned Friend knew that it was not. The 1,000,000l. was laid out chiefly in a few large purchases—one of nearly 500,000l. What would have been the expense if there had been some hundreds of purchases? The noble and learned Lord said, that at present there was little concealment of deeds. He (Lord Campbell) believed there was no great insecurity with regard to purchases, just because of the enormous expense incurred in inquiries he-fore completing the purchase. But, with all the expense, he would ask, with regard to mortgages, if there were not many instances under the present system in which mortgagees had been defrauded by deeds being suppressed? Our equity reports swarmed with cases upon that subject; and it was to guard purchasers against the frauds incident to the present system that his noble and learned Friend had published the very profound treatise he had formerly referred to, consisting of three bulky volumes, from which, however, no line could be spared, except perhaps the chapter against a general registration. Considering, then, the insecurity and the great expense of the present system, he 967 would ask if it was not desirable that they should adopt the plan propounded in this Bill, by which they would know at a glance every deed which could possibly affect the land they meant to purchase? His noble and learned Friend, indeed, allowed that such a system would be beneficial in itself; that he was a friend to registration in the abstract, and that it must be an immense advantage to have absolute security; and therefore he would proceed to notice the objections which his noble and learned Friend brought forward to counterbalance the benefit. But before doing so, he must refer to what had been stated respecting maps in the Bill of 1851. He believed that his noble and learned Friend was under a great mistake in stating that the Commission which recommended the measure declared that it could not be carried out without a series of maps, and had denounced Mr. Duval's measure as mischievous and impracticable. On this subject he would refer to his noble Friend on the lower bench (Lord Beaumont), who had been very active in that Commission, and who, he had no doubt, would confirm his statement, that that was not the opinion of the Commissioners; that they were of opinion that maps would be an advantage—and that was his (Lord Campbell's) opinion—but that they were by no means of opinion that maps were indispensable. The best proof of that was, that afterwards, when maps were struck out in Committee, both Lord Langdale and the noble Lord (Lord Beaumont), with the concurrence of all the Commissioners, thought the Bill ought to pass. Not one of the Commissioners expressed his dissent from that; so that this Bill now before the House was substantially the same measure as that which was unanimously recommended by Mr. Duval and the first Commission, and must he considered as having the recommendation of Lord Langdale and all the members of the second Commission. But to proceed with the objections that had been made. His noble and learned Friend dwelt chiefly upon the expense. Now, if the system of registration was so advisable, and was calculated to produce the benefits expected, the expense (even if likely to be much greater) could never be considered a formidable obstacle. But the first Commission took infinite pains upon that subject, and came to the conclusion that for 20,000l. a fire-proof building of brick, mortar, and 968 iron might be constructed that would hold ail the deeds of England and Wales for sixty years to come; and perhaps at the end of a century there might be no objection to a grand auto da fé, and deeds no longer useful might he consigned to a great bonfire. The Commission had also calculated the expense of the establishment, and they found that, for 20,000l. a year, officers of sufficient number and competency might be engaged for the service required. What reason was there to suppose that that would be a burden upon the public which the public could not and would not easily bear? But the truth was, this would he a self-supporting institution, and, with very moderate fees, there would be an ample fund to pay all the expense, and the Chancellor of the Exchequer would be no loser by it. But his noble and learned Friend had over and over again, in his pamphlet, held up the danger of a new tax upon land as the great bugbear. He said it would open to a "legitimate" Government—that was, he supposed, a Protectionist Government—a fine field for taxation; and to an illegitimate Government—that was, he supposed, a Liberal Government—one for confiscation. The present Government was to confiscate where the late Government was to tax. But his noble and learned Friend was not content with that, for he went on to say that the Crown would have easy access to the documents of individuals whose estates it wished to confiscate. So they were to suppose that Her Majesty Queen Victoria would endeavour to lay hold of the estates of Her subjects, making use, he fancied, of the Attorney General or of the Lord Chancellor for that purpose. But his noble and learned Friend had very lately been the Keeper of the Queen's conscience, and he was sure that he would never have advised such a course to be taken; and if not, he might have equal confidence in the noble and learned Lord who sat at present on the woolsack. His noble and learned Friend then said that this Bill would cause a serious expense to small purchasers. He was ready to admit that that was a matter for serious consideration. Upon large purchases there must be a great benefit to purchaser and seller, because as it would supersede the search for deeds, the land would bear a higher price. The noble and learned Lord seemed to think it would not be a gain to the landed interest, but only a transfer 969 of loss from one to another; bat in truth it would prevent loss altogether. At present there was in every transaction a loss on both sides. Though the expenses of the transfer fell upon the purchaser, they were deducted by him from the purchase-money; he gave so much the less for the property. So with regard to mortgages under the present system, the burden upon the landed interest was enormous. If 500l. was required to be raised on land, the whole title deeds of a large estate were required to be ransacked, and in that way the expense of the mortgage bore a large proportion to the sum that was borrowed. A landowner would pay 6 or 7 per cent for money while the market price was only 5 per cent, and a fall in the rate of interest was no relief to him, because if he attempted to borrow the money at the lower rate of interest, or to transfer the mortgage, all the title deeds must be again ransacked by the conveyancer, and there would be all the costs to pay over again. To large estates, therefore, there could be no doubt the proposed system would be a benefit. It was true, however, that in small transactions even 5l. might be a heavy charge; but he (Lord Campbell) was most sanguine in the belief that in Committee a scheme might be devised whereby the expense upon small purchases might be made altogether insensible. His noble and learned Friend relied much on the new risk that would arise from a system of general registration, and he had stated to-night what he stated before in his pamphlet—the case where the word "Compton" was written instead of "Crompton." But in order that this mistake should be productive of mischief, it was necessary that there should be a combination of mistake on the part of the registrar, and of fraud on the part of the vendor with respect to the same land; and it was almost impossible that such a conjunction should occur. At the present moment, all officers in the register counties of England, and in Edinburgh, and in Dublin, were liable to an action if they committed a mistake by which any person suffered; and there was no instance, he believed, of such an action having ever been brought. The remedy given by this Bill against the Consolidated Fund he considered to be merely for tranquillising unnecessary fears; and the Chancellor of the Exchequer need be under no apprehension that his budget would be at all affected by that clause in the Bill, for the 970 probability of such an action being brought—and successfully brought—was infinitesimally small. Besides, there would be a remedy against those whose fault caused the loss; they would give security for the due execution of their duty, and they and their sureties would be liable to be sued for neglect. [Lord ST. LEONARDS: Is that in the Bill?] A clause to that effect would be proposed in Committee. His noble and learned Friend had dwelt at great length upon the inconvenience that would arise from disclosures. Now, he had first to state that disclosures would not necessarily arise under this Bill; and next, that he did not agree with his noble and learned Friend as to the evil that was to be apprehended from disclosures. In the first place, disclosures might, if it was so desired, be prevented. Trusts need not be registered, though the fee simple title was registered. That was the course with regard to stock at the Bank. Or there might be a certificate required to show that the party who wished to inspect had an interest. But he (Lord Campbell) believed that disclosure would prevent fraud and false credit, and would be a benefit. He could appeal to his noble Friend the President of the Council whether, on a subject on which he was well versed—he meant the shipping interest—whether there was not a register of every ship, with its owner, and every mortgage upon it? Was that an evil? No; on the contrary, merchants and bankers had no difficulty in dealing with shipowners, because the disclosures on the register prevented all fraud or false credit. So with regard to wills. It was well known that at Doctors' Commons for the sum of one shilling sterling any one might see the wills of all the eminent men who had died in England, and, till lately, of Napoleon himself; and he had never heard the slightest complaint on the ground of disclosure. There was another objection which had been frequently made; but as his noble and learned Friend did not refer to it he supposed he might now understand that it was no longer persisted in—that it would interfere with equitable mortgages, and affect the facility of raising money on a sudden by deposit of deeds. His noble and learned Friend did not rely upon that, because it was not tenable. The Bill would be found to give much greater facility than ever to equitable mortgages. His noble and learned Friend knew that even the deposit of the deeds in the case of a 971 mortgage was a very slender security, because they could never be sure that they had got the whole of them; there had been instances of fraudulent persons parcelling out their deeds, and so borrowing several sums of money on the same property to thrice its value. Now, by a clause in the present Bill such frauds would be effectually prevented, and any person in possession of property would be able to raise money upon it with much greater facility; the lender would be perfectly secure, and would therefore lend on more moderate terms. But then his noble and learned Friend said that the persons in possession of property would derive no advantage from the registration in point of security. Now, it was true that the registration would not cure a bad title; that was not the object of registration. It was meant as a security against fraud, and at the end of twenty or thirty years the security would be complete, because once a registry was made, no subsequent unregistered instrument could affect the property. His noble and learned Friend had said that they ought to be governed by the opinions of the solicitors. Now, he (Lord Campbell) entirely agreed with his noble and learned Friend that the solicitors were a most respectable body of men; but there existed amongst them a strong esprit de corps. The country solicitors of England were by far the most powerful and influential body in the community, possessing great influence both in the lower House of Parliament and also in their Lordships' House, by means of their advice to those whose affairs they managed. He might mention as an historical fact that he once had the honour of sitting on a Committee on copyhold tenure with the late Sir Robert Peel, where that distinguished man had shown himself a zealous reformer, as he was in every branch of the law. He was anxious for the enfranchisement of copyholds, and the Committee were unanimously of the same opinion with him; but as he (Lord Campbell) was walking away from the Committee with him one day, Sir Robert Peel said to him, "We shall pass this Bill in the Commons, but you will have great difficulty in getting it through the Lords, for the Lords are generally under the dominion of their stewards." He (Lord Campbell) rejoiced that their Lordships were now emancipated. He might remind their Lordships that in the reign of Charles II. there had been a great 972 depression of real property; rents had fallen to a low point, and the depression had been supposed to arise from free trade. A Committee of their Lordships had sat to consider what ought to be done to remedy the evil, and that Committee had proposed two things: the one was a registration of deeds, and the other was a Bill to prohibit the importation of Irish cattle. The latter passed, but the sons of Uriah were too strong against the former; and John Evelyn, a distinguished country gentleman, the author of Sylva, spoke of the lawyers and attorneys who sat in Parliament as locusts, who sought for means by which suits and frauds might prosper, and never would tolerate a general register of deeds. It had been said that the proposed measure would bring all the business to London; and he had no doubt that consideration had operated, along with public spirit, in making country attorneys such enemies of the Bill. It was quite true, as had been stated, that the first act of the reformed Parliament had been to reject a Bill for the registration of deeds. That was a very inauspicious commencement of a career of reform; but he (Lord Campbell) believed that the circumstance was entirely owing to the influence exercised upon the House of Commons by the country solicitors. That influence, however, had declined, was declining, and he hoped might be extinguished, and in that House certainly it had entirely disappeared. With regard to the question of notice, no reliance could be placed upon deeds that were registered if any unregistered deed might be produced, and persons brought forward to swear that, at some previous time, a man's attorney, solicitor, or counsel, had the means of knowing its contents. His noble and learned Friend (Lord St. Leonards) had objected to this Bill, on the ground that it was a centralising measure. Well, let the noble and learned Lord propose in Committee—and he was sure any proposal made by the noble and learned Lord would be received most respectfully—that there should be a registry in every county, or in every electoral division, or in every Poor Law union, or in any other division of the country he chose. He (Lord Campbell) certainly considered that a metropolitan registration would be the most beneficial and the most economical. There would be infinitely less inconvenience in having one metropolitan registry than in 973 having registries in small districts, because now England and Wales might be regarded as one great city, travelling between London and Northumberland or Cornwall being now far more rapid than it formerly was between Bedford or Warwick and the metropolis. It must be remembered that if the registries were multiplied, they would have no uniformity of plan, and the difficulty of carrying out the measure would be very materially increased. Another objection upon which great reliance had been placed was, that although registration might have been an excellent thing some 20 years ago, the time for it had gone by. He thought there never was such nonsense written or spoken. Whatever improvements they might have, none could be regarded as substitutes for registration. In fact, registration, as the Real Property Commissioners bad said, was the foundation and the commencement of all improvement. The object of registration was to pat upon record all the deeds that affected real property, so that they might be seen at a glance. Even if deeds were shortened, so that upon a sheet of paper not larger than the palm of a man's hand a conveyance might be drawn that would pass all the estates of their Lordships who were great landed proprietors, that would not get rid of the necessity of registration; for two of those short deeds might be in existence, and a deed might be suppressed which, on production, being a prior deed, would carry the property. He sincerely wished that his noble and learned Friend (Lord St. Leonards) would address his great abilities to frame a precedent for such short deeds as he had mentioned, so that every conveyance might be ingrossed upon a sheet of note-paper. Although there was the potentality of such a conveyance, he was afraid his noble and learned Friend, when a conveyancer, followed the tautological system; but why should that system be persisted in? If a little bit of paper a few inches square was enough for a conveyance, why should many skins of parchment be consumed? There was no one whose authority on such subject was at all to be compared with that of the noble and learned Lord; and if he were to prepare forms of short conveyances, he (Lord Campbell) was satisfied that, if it were necessary, an Act of Parliament would be passed for enforcing them. He believed there was no department of the law in which his noble and learned Friend 974 might more usefully exert his transcendent talents. Let their Lordships reflect how such a change would facilitate registration. What an easy thing it would be to register these deeds of only four inches square! Why, they would not then want a great building as a registry. Sir Charles Wetherell, who opposed registration, used to talk of the "great mausoleum" in which the deeds were to be buried; but with the newly-invented deeds of his noble and learned Friend—for which, among other things his name would be handed down to a grateful posterity—there would be no occasion for such a structure, for a thousand such deeds might be contained in a tea-chest. He hoped, notwithstanding the Motion with which his noble and learned Friend was supposed to have concluded his speech, that he would not divide the House, for he (Lord Campbell) was most anxious that the Bill should now be read a second time. The measure had been approved, after great deliberation, not only bylaw Lords, but by lay Lords—and it was a matter upon which lay Lords were quite as well qualified to judge as law Lords, because they felt the disadvantages of the present system, and were interested in seeking a remedy. During the sitting of the Committee on this subject in 1851 there was a very numerous attendance of lay Lords, including many eminent Protectionist Peers, and not one single division took place. The only point which was seriously debated was the adoption of maps. That question, he believed, was debated for two days, and the Committee eventually came to the conclusion that, although the map system was desirable, it was at present unattainable, and that the best course would be to proceed at once without maps. He (Lord Campbell) had been very much gratified to hear the compliment which his noble and learned Friend had paid to the Real Property Commissioners for the Bills which they had prepared, and which were brought in by himself (Lord Campbell). The noble and learned Lord now highly eulogised those Bills, and told their Lordships they were hardly aware of the great benefits which such measures conferred upon the country. The time was, however, when the noble and learned Lord looked upon these measures with very considerable alarm, and dreaded the most disastrous effects from them. He (Lord Campbell) could assure the noble and learned Lord that his alarm was equally unfounded if he apprehended any 975 mischief from the Registration Bill. He regarded that noble and learned Lord with the greatest respect, and hoped he (Lord Campbell) might live to see the day when the noble and learned Lord would in his place in that House proclaim the great advantages which had resulted from the adoption of a measure for establishing a general registry of deeds in England and Wales.
§ LORD BEAUMONT
wished to say a few words in explanation of the conduct of the second Commission which sat on this subject, and which had been represented with more ingenuity than correctness by the noble and learned Lord (Lord St. Leonards). The noble and learned Lord had said that the majority of the second Commissioners condemned the scheme suggested by the first Commission. That was not the case. When the subject was referred to the second Commission, they felt it their duty to examine into the matter with the utmost diligence, notwithstanding the previous labours and able report of the former Commission. They consequently went over the whole subject again, and they occupied several years in so doing. They examined various plans of registration which were submitted to them, and after sifting them most carefully they came to the conclusion that Mr. Duval's plan was the best. The Commissioners said, however, that there were defects in the plan, and the noble and learned Lord therefore concluded that the entire scheme had been rejected by them. So far from this being the case, they took Mr. Duval's plan as the groundwork of their proposition, and only sought to correct or remedy those defects which had struck them, and which Mr. Duval himself had pointed out. In fact, the Commission, when examining the plans, found Mr. Duval's to be the best, and they considered that it was perfect in every respect, except with regard to the index. There was no fault to be found with the plan when once the title was on the index, but there was always a difficulty in getting the title upon the index. Mr. Duval was therefore obliged to suggest an index of the names of the grantors. But up to this period they found strong objections to the index of names. The Commissioners therefore thought how they could remedy the evil, and in searching for a remedy they discovered that the difficulty might be got over by using a general map as an index. The majority of the Commissioners immediately adopted that plan, not only because 976 it got over the difficulty which had been suggested to Mr. Duval's plan of an index of names, but because it was in itself the best kind of index, inasmuch as it at once connected the land with the title in the clearest and simplest manner. However, on examining this portion of the subject further, a difference of opinion, as was well known, arose among the Commissioners, two of whom seriously objected to the system of maps, because there were not then in existence any maps sufficient for the purpose. The majority of the Commissioners, however, still adhered to their opinion in favour of the plan of an index by means of a map, and a Bill was accordingly introduced in that form. It was referred to a Select Committee, and in that Committee everybody was agreed that an index by a general map, if it could be obtained, was the best plan that could possibly be adopted; but, unfortunately, there were no maps that would serve the purpose, and in consequence of this difficulty they were again obliged to seek some other device by which the object could be obtained. They came again to the index by names, the objections to which were removed by adopting a suggestion that was made by Mr. Humphreys, and recommended by Mr. Bellenden Ker and other active members of the second Commission, namely, to divide the index of names into a number of small districts, so that it should not be probable that there would be many John Joneses or persons of the same name in any one district. At last the Commissioners arrived at a plan without maps, which overcame every difficulty, or at least which overcame every difficulty which had been suggested to the plan of Mr. Duval. When this last perfectionment of the Bill had taken place, all the members of the second Commission, as well as the members of the Select Committee, were agreed upon it, and the Bill was adopted by them unanimously. After the able speech which had just been delivered by his noble and learned Friend (Lord Campbell), which he maintained had overthrown all the objections of the noble and learned Lord opposite (Lord St. Leonards), he would not presume to detain the House at any length on the general question; but he must be allowed to say that, while he had heard the noble and learned Lord opposite with pain in so far as he had opposed the measure, he had heard him with pleasure, inasmuch as he was now convinced that the noble and learned Lord had said all that 977 could be said against the measure. After hearing so able an opponent of the measure as the noble and learned Lord, he was now persuaded that there was no solid argument and no real objection to the Bill. He begged only to add, that for himself, he was convinced that one register office in London for the whole country would he the best for all parties concerned, both as regarded uniformity and economy; but he knew that immense objections would be raised to that proposal in Yorkshire and elsewhere, and, having weighed the matter seriously, he had arrived at the conclusion that if it came to be a question of having no Bill, or a Bill with England and Wales divided into four or five provinces, with a register in each province, he would waive his opinion in favour of centralisation, and adopt the Bill in the latter form.
§ LORD ST. LEONARDS
said, that in the then thin state of the House, he should not press his Amendment.
begged just to say before the question was put, that he entirely and heartily approved of the present, as he had done of the former, Bills on the same subject. He confessed that, like the Commissioners and like his noble and learned Friend (Lord Campbell), he should have preferred a plan with maps, but in the Committee they were satisfied that that was impossible. He thought himself authorised to add on the part of his noble and learned Friend (Lord Lyndhurst), who had left the House, that he took the same view as he did as to the impossibility of throwing out the Bill on the second reading, and as to the absolute necessity of going into Committee upon it.
§ On Question, Resolved in the Affirmative; Bill read 2a accordingly, and referred to a Select Committee.
§ House adjourned till To-morrow.