Lords Sitting of 9 February 1875

MINUTES.
Sat First in Parliament—The Lord Sondes, after the death of his Father. The Lord Rossmore, after the death of his Father.
PUBLIC BILLS—First Reading—Supreme Court of Judicature Act (1873) Amendment (10); Land Titles and Transfer (11); Church Patronage * (12).

SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT BILL—(No. 10.)
(The Lord Chancellor.)

PRESENTED. FIRST READING.
THE LORD CHANCELLOR: My Lords, I have to ask your Lordships to give a first reading to a Bill to Amend the Judicature Act of 1873. The Bill which I am now about to lay on your Lordships' Table is so completely identical in its general proposals with the Bill I introduced last year, and which your Lordships passed through this House, that I shall not think it necessary to detain you by any general explanation of the features of a measure with which your Lordships are already well acquainted. I shall mention only this—that as the time drew near for bringing into operation the Act of 1873 some matters of detail were discovered with regard to that Act which required correction, and which it is proposed to amend by this Bill. These your Lord-ships will easily observe when the Bill
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is in your hands, and it will be more convenient to defer the explanation of them until that time. But there is one change which I ought to mention, and it is this:—Those of your Lordships who attended to the framing of the Act of 1873 will probably remember that there was a Schedule to the Act containing some 60 Rules of Procedure, which were declared by the Act not to have the force of an Act of Parliament, but were to be Rules of Court, open to alteration or repeal, without the sanction of the Legislature, by the same authority which has the power to make Rules of Court now—namely, the Judges of the Court. And your Lordships will probably re-collect that, in addition to those Rules, there was special power given in the body of the Act to Her Majesty in Council to make further Rules in regard to practice and procedure, before the statute came into operation. Those further Rules were to be made by the Sovereign in Council on the advice and responsibility of the Judges of the Court. In the course of last year this power of making Rules was acted on to this extent—that a body of Rules was drawn up with great care and attention under the direction of the Judges, and received their unanimous approbation. They were ready to be submitted to the Queen last year; but, in point of fact, they have not yet been submitted to Her Majesty. My Lords, it appears to me that it would be highly inconvenient if we had, in regard to procedure, one body of Rules on the Schedule of the Act of 1873 and another body of Rules not contained in that Act or in the Schedule of the Act, but outside the Act, in a code approved by the Judges and sanctioned by Her Majesty in Council. Obviously it would be more convenient, whatever the Rules may be, to have them all in one code, and not be under the necessity of passing for them at one time to the Act of Parliament, and at another to a collection outside the Act. I am bound to say that at the time of the passing of the Act of 1873 it would have been impossible to avoid this, because the Rules in the Schedule were the only ones then ready to be laid before Parliament. The other Rules did not come into existence till the autumn of last year. The course I propose to take is this—I propose in the Bill which I am now about to lay on the Table that the Rules to regulate procedure and

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practice under the Act of 1873 shall all be contained in one code, and that this code shall derive its force from an Order in Council. This was what was contemplated in respect of the second set of Rules; but if your Lordships should pass this Bill the whole of the Rules will derive their authority in that way. They will all be in one instrument, and will all be subject, after the passing of the Act of Parliament, to alteration by the Judges like any other Rules of Court. I do not think it necessary, my Lords, to make any further explanation with regard to this Bill, and I shall, there-fore, move now that it be read the first time.
Bill to amend and extend the Supreme Court of Judicature Act, 1873, presented by The Lord Chancellor.
LORD REDESDALEsaid, he took this occasion to express again a hope that their Lordships would not part with the Appellate Jurisdiction of their Lord-ships' House without taking the opinion of the Legal Profession in England. From what he had heard he believed firmly that the opinion of that Profession was in favour of the retention of the Appellate Jurisdiction of that House. The proposal for the transfer had come before their Lordships under very peculiar circumstances. It was introduced by the late and the present Lord Chancellor in turn, and those two noble Lords being joined in support of it commanded party and official votes on both sides of the House, and it was therefore supposed to have a more general approval in their Lordships' House than it really had. The impression also that the proposal commanded general support outside the House had for some time prevailed almost universally; but since last Session there had been a movement on the subject. There had been a movement among the English Bar, and a Committee, which included some very eminent members of the Profession, had been formed for the purpose of preserving the Appellate Jurisdiction of their Lordships' House. On that Committee he found the names of Mr. Watkin Williams and Mr. Waddy, both Queen's Counsel and Members of Parliament, and both advanced Liberals. He found on it the name of another Queen's Counsel, also a gentleman who formerly had a large practice in the Southern
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States of America, and was now eminent at the English Bar. The transfer of the Appellate Jurisdiction from their Lordships' House had not been called for by any section of the public, and no Commission or Committee had reported in favour of such a measure. The opinion of the Profession in Ireland and Scotland had been expressed, and in both countries that opinion was against the transfer. Reasons which their Lordships could well understand might have prevented the Profession in England from giving an earlier expression of its opinion; but ought their Lordships' House to make so great a constitutional change, and one so much affecting the character of that House, without knowing what the feeling of the Profession in this country was? There was no reason why their Lordships should not have the opinion of the Judges on the subject. No great delay would be caused by obtaining the opinion of those best able to form an opinion on the question—namely, the Legal Profession, including the Judges.
LORD SELBORNE: My Lords, it was with great satisfaction I heard from my noble and learned Friend on the Woolsack, that the Bill which he has laid on your Lordships' Table is substantially the same Bill as passed through your Lordships' House last Session. The change regarding the Schedules of Rules I regard as merely formal; because I understand that the Rules in the Act of 1873 will remain substantially the same. I have no reason to complain, and I do not complain, that my noble Friend the Chairman of Committees should take on this occasion, as he did on that of every stage of the Act of 1873, and every stage of the Bill of last year, and on all other possible occasions, an opportunity of protesting against the transfer of the Appellate Jurisdiction of your Lordships' House; but I hope my noble Friend will excuse me if I do not follow him into the general question. I decline to do so—first, because the Bill for that transfer received your Lordships' sanction after many attempts—all ending in failure—to amend the Appellate Jurisdiction of this House, and render it efficient for the purposes of a tribunal of ultimate appeal. Difficulties had from time to time arisen, which demonstrated the impossibility of making such Amendments.

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This was shown to your Lordships by the results of experience extending over more than half a century. These results were brought before your Lord-ships in detail, and those who may not wish to hear the details repeated, will find them among the pages in which what takes place in this House is permanently recorded. My second reason for not following my noble Friend in the general question is, that should it be necessary to do so before the passing of the Bill now before your Lordships, my noble Friend, no doubt, will afford me another opportunity. But coming to the particular suggestions of my noble Friend, I would ask, What are the Judges to be consulted about? Is it about amending an Act of Parliament passed two years ago, which, though its operation is in abeyance, is the law of the land, and by which you have agreed that in substitution for your Appellate Jurisdiction there shall be one Final Court of Appeal, which is to collect within itself all final Appellate Jurisdiction so far as England is concerned? Are the Judges to be consulted as to whether that Act is to be repealed—whether the new Court of Appeal is to be made nugatory for the purpose for which it was constituted?—whether by Act of Parliament your Lordships should cling to a jurisdiction which you do not now possess, or which you are in possession of only for a period of time which will elapse before the Act of 1873 comes into force? I venture to say that such a course would be one wholly without precedent in either ancient or modern times. If my noble Friend does not moan that, does he mean that the English Judges ought to be consulted as to whether the Act should be extended to the Scotch and Irish Appeals? If Judges are to be consulted on that point, they ought to be the Scotch and Irish Judges; but it appears to me that no precedent could be found for that course either, and I cannot but express my surprise that so staunch an advocate of the privileges of this House as my noble Friend should propose that this House, in dealing with its own jurisdiction, should go outside itself and ask the opinion of another body. I hope your Lordships' House will take no such course. I do not think you will, but it may be some comfort to your Lordships to be reminded of facts
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to show how unnecessary and unprofitable such a course as my noble Friend proposes would be in this instance, even if it were otherwise an unobjectionable one. Two years before the Judicature Act of 1873 was laid on the Table of the House, the most eminent—if one may make a distinction between such eminent persons—certainly the most eminent in station of the Judges of England, stated as the result of his careful consideration of the subject, and of his criticism of proposals at that time before the House, that the time had come when your Lordships would best consult your own dignity by surrendering your shadowy jurisdiction as a Court of Final Appeal, which stood in the way of putting the Appellate Jurisdiction of the country on a stronger and more satisfactory footing. That was the opinion of the Lord Chief Justice of England; but the case did not rest on the opinion of even that most eminent person. The question had been before the Judges, the Legal Profession, and the country at large for two years; but at the same time that I placed it on the Table of your Lordships' House, I thought it my duty to communicate it to every Judge sitting on the Bench in this country, and not from one of them did I hear any disapproval of the proposal for the transfer of the jurisdiction of your Lordships' House. When I say not from one of them, I believe that to be the literal truth; but certainly it is the substantial truth that not one of them expressed disapproval of that proposition, while by some of them, at least, concurrence was expressed in the opinion stated by the Lord Chief Justice. With regard to the Bar of England, your Lordships' memories cannot be so short as that you can suppose the Bill passed without its having been considered by the Bar of England. Circumstances obliged me to delay some of the stages in the Bill to a length that brought some censure on Her Majesty's Government—because it was supposed that the Bill was being endangered by the delay—and therefore a full opportunity was given to the Profession for a careful consideration of all its provisions. Now, among other difficulties which I had to encounter—and no one can deal with such subjects with-out encountering great difficulties—was one arising from objections on the part

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of members of the Profession for whom I have a great respect to the fusion of Law and Equity; but not from any one of them did I receive any complaint as to the proposed transfer of the Appellate Jurisdiction of your Lordships' House. Your Lordships assented to that proposal not only after full opportunity of knowing the opinion of the Judges and the Profession, but after all possible opinions had been taken. Are your Lordships now to be told that you ought to pause and take the opinion of the Judges and the opinion of the Profession before you pass a measure which is merely complementary of the Act to which you have given your assent?
LORD REDESDALE: It is quite a different thing.
LORD SELBORNE: The Bill now before your Lordships contains no provision to alter substantially the Act of 1873.
LORD REDESDALE: Hear, hear!
LORD SELBORNE: My noble Friend agrees with me.
LORD REDESDALE: No, no!
LORD SELBORNE: Well, I think my noble and learned Friend on the Woolsack will agree with me that this Bill only makes an amendment which is complementary of the Act. But you are to pause because there is a movement going on, and because a committee has been formed having as two of its members two eminent and able Members of the Profession and of the other House of Parliament, Mr. Watkin Williams and Mr. Waddy, and as another of its members another learned gentleman, Mr. Benjamin, who occupied a high official position under Mr. Jefferson Davis, and now occupies a high position at the English Bar? Is that a reason why this House should go outside its own walls for light to govern its own wisdom? Such a proposition is not one that I should have expected to hear from my noble Friend.
LORD REDESDALE: There is a difference as to appeals. This Bill gives a second appeal.
LORD SELBORNE: My noble Friend denies that the Bill is merely complementary of the Act of 1873 because the Bill gives a second appeal; but the Act of 1873 gives a second hearing. The difference between its provisions relating to a second hearing and those in this Bill regards the composition of the
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Court and a definition of the cases in which there is to be a second hearing. However, that is not the question now. If it should be gravely argued that this is not a complementary Bill, but one substantially different from the Act of 1873, I am perfectly willing to deal with that argument; but for the present I hope your Lordships will refuse to listen to the proposal of my noble Friend the Chairman of Committees.
LORD HATHERLEY: My Lords, this is not the moment to discuss the repeal of a most important clause in a most important Act of Parliament; but as to the suggestion made by the noble Lord the Chairman of Committees that we should consult the Judges, I would remind your Lordships that when, three years ago, my noble Friend was taking a part—a very useful part—in a Committee which was considering the question of the Court of Ultimate Appeal, he had an opportunity of bringing for-ward his proposal to consult the Judges. He did not do so. But if your Lordshps had consulted them at that epoch, they would have been found to be in favour of the transfer, whatever may be their views now—and I am not acquainted with them. It is quite true that the Committee finally made a recommendation of a different kind from that embodied in the Act of 1873, and, under the guidance of my noble and learned Friend on the Woolsack, proposed an arrangement similar to that of the Judicial Committee of the Privy Council. But after all that, with the advantage of a full inquiry by the Select Committee, and with the recommendation of that Committee before you, your Lordships deliberately sanctioned a Bill for the transfer of your Appellate Jurisdiction, which received the approval of the other House in the presence of numerous lawyers, including Mr. Watkin Williams, who had a seat in the House of Commons at that time, though I do not know that Mr. Waddy had. As regards the Bill before your Lordships, I entirely concur in the proposal as to the Schedule. When I brought in my Bill as Lord Chancellor, I was of opinion that such an arrangement would be the better one; but a contrary view then prevailed. I cannot but be glad at the change.
Bill read 1a; to be printed; and to be read 2a on Tuesday, the 23 rd instant,

LAND TITLES AND TRANSFER BILL.
(The Lord Chancellor.)

PRESENTED. FIRST READING.
THE LORD CHANCELLOR: My Lords, I have now to ask your Lordships to give a first reading to another Bill which also, to a great extent, is one proceeding on the same principle as a Bill of last year passed by your Lordships' House, but stopped in its progress through the House of Commons—a Bill to simplify titles and facilitate the Transfer of Land in England. I say it is, to a great extent, the same; because when your Lordships have the Bill in your hands, you will find that the arrangements of the Bill of last year have been considerably altered; and that as regards the drawing, that Bill has been abbreviated and its enactments have been greatly simplified. But there is one point of difference between this Bill and that of last year, which I think I ought to at once notice and explain. The first Bill by which it was proposed to register title to land, which I had the honour to introduce in the other House of Parliament in 1859, did not propose to make registration compulsory in every case. It was voluntary, and left to the option of those who might think their title would be improved if registered. The Bill introduced two years ago by my noble and learned Friend who preceded me on the Woolsack (Lord Selborne) proceeded on a different footing as regards compulsion. It did not make registration compulsory in the case of an estate not changing hands, but provided that wherever, after the lapse of a certain time—I think two years—the estate was bought and sold, the title must be placed on the register. It further provided that if it were not so placed, the buying and selling would only be regarded in the light of a contract to buy and sell, but would not pass what lawyers call "the legal estate "of the land. When I introduced the Bill of last Session I followed the course marked out by my noble and learned Friend, but I extended the term within which the obligation was not to come in force from two years to three. As the Bill was in its progress through Parliament last year I had communications on the subject from all parts of the country; and on going into details I acquired a great
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deal of information of which I confess I had not been previously in possession. I will tell your Lordships what surprised me very much. In one particular neighbourhood—that of Birmingham, I think—there are in the course of the year a great many hundreds—I think I may say thousands—of cases of buying and selling pieces—or rather "parcels"—of land. Your Lordships would be astonished to hear how small are some of those transactions—how minute the portion of property, and how comparatively inconsiderable the amount of purchase-money. There are parts of England in which a great deal is done in buying pieces of land just largo enough to build a cottage on. It was made clear to me that these sales are not conducted in the way in which people make out a title to land—no title is attempted to be made out—they are transacted entirely on the faith of the solicitor, who has been conducting business in the particular neighbourhood for a long time, and is supposed to know it thoroughly. He draws up the deed on perhaps a sheet of paper, and besides the stamp, the purchaser has to pay but a very small sum in the way of law costs. I have heard of cases in which these latter charges are so small as 20 s. or 30 s. Now, it is clear that it matters not how cheap we make the cost of registration—if a title is to be put on the register, there must be some investigation of title, however small; and it would be impossible in a system of registry to compete with the small expense on which these minute transactions are now conducted. Therefore, before the Bill of last year left your Lordships' House, I proposed to exempt from the operation of the compulsory clause all cases in which the purchase-money did not reach a certain amount. I think £300 was the sum I named—but I was obliged to arrive at any conclusions in a rough form. Since last year I have given the subject much consideration, and I have arrived at the conclusion that it must appear somewhat anomalous to introduce a compulsory registry and then draw a line between a purchase of greater and one of lesser magnitude. It is extremely difficult to fix the point at which the line should be drawn. And there are some further considerations which have to be borne in view. I thought it ne-necessary to ask the question—What,

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after all, is gained by a compulsory registration of this kind? Your Lordships will observe that the compulsory registration proposed was not one of all estates, but merely of those which were the subject of bargain and sale. This would at once except from this clause of compulsion the great bulk of the landed property of this country; because we knew that the great proportion of the land never changes hands at all, and never becomes the subject of bargain and sale. Therefore, the course proposed would not effect the object we have mainly in view, which is, to have all the land of the country on the register. Then, again, even when dealing with those portions of the land which are the subject of bargain and sale, there must be exceptions, whether you fix the minimum at £300, £200, or £100. But there would remain still these sales of a class over those small limits; and in these, however stringent you might make your compulsory clause, the ingenuity of conveyancers would be able to defeat it. It is impossible—if persons are unwilling to register—to compel them to do so. Already, means have been suggested by which anyone who did not wish to come under the compulsory clause might escape it. It is necessary, therefore, to go somewhat further. Moreover, my Lords, there appears to me to be a further difficulty in making a measure of this kind compulsory at the outset. If you do so, it appears to me you cannot stop short of establishing all over the country district registries; because, obviously, it would be a great hardship for persons living in remote parts of the country, and who were anxious and willing to conduct a sale without coming to London, to have to come to London for the purpose of placing on the register the title of the land which is proposed to be sold. Of course, that difficulty could be obviated by establishing district registries; but then to establish registries all over the country would be a measure of fresh expense, and one in which we should hardly be justified without experience as to the desire of buyers to avail themselves of the register. These considerations, my Lords, have led me to think that the proper way is to proceed in the hope that the registration will commend itself to the owners of land as making the land more negotiable, and therefore
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more valuable. If that commends itself to the extent of making owners go to the register in that way, just as it is acted upon throughout the country, we shall be able to decide as to the places in which it will be necessary to establish district registries; and we need not incur expense in this way until it is required. For these reasons, my Lords, there is not in this Bill the clause of the Bill of last year which made registration compulsory. There will be no obligation on those who are buying and selling to register the land, the subject of the bargain and sale. With these observations, I beg to move the first reading.
Bill to simplify Titles and to facilitate the Transfer of Land presented by The Lord Chancellor; read 1a; to be printed; and to be read 2a on Thursday the 23rd instant,

CHURCH PATRONAGE BILL [H.L.]
A Bill to amend the Laws relating to Patronage, Simony, and Exchange of Benefices in the Church of England—Was presented by The Lord Bishop of PETERBOROUGH; read 1a. (No. 12.)
House adjourned at a quarter past Six o'clock, to Thursday next, half past Ten o'clock