§ Order of the Day for the Second Beading, read.103
§ THE DUKE OF MARLBOROUGH
, in moving that the Bill be now read a second time, said, that the important subject dealt with by that Bill could not fail to be of great interest to their Lordships. Indeed, it was impossible to find a body of men in this country who were so largely or so universally interested in that subject. That question had been treated at different times by very eminent Members of that House, among others by Lord Campbell, Lord Brougham, Lord Selborne, and Lord Cairns; and it might be thought from his non-acquaintance with the technicalities of the subject that it was somewhat bold in him to attempt to bring it under the attention of their Lordships. Bills had been passed and inquiries instituted in reference to it, and yet the matter was still involved in very great difficulty and complexity. The present was, he considered, a favourable time for introducing this subject. The measure which he had the honour to bring forward was merely a corollary of Lord Cairns's Act, so much so, indeed, that without the passing of this measure the whole intention of that Act would be defeated. At present there was a deadlock in land, and owing to the steady and persistent fall in prices there was every prospect of these bad times continuing. Taking these matters into consideration, and also the large charges which were laid upon the land in rates and tithes, he could not help thinking that the land was practically verging upon bankruptcy. The measure of 1882 had been the crowning act of Earl Cairns's labours in the direction of freeing the land from the burdens under which it lay, and by it the whole tenure of the land had been altered. Lord Cairns had given to the tenants for life of settled estates power to sell every portion of them except the mansion house, thus defeating the purpose of the entail, which had been to keep the land in one family as long as possibly could be done. He believed that this Act, in conjunction with a further measure upon the subject, might be one of the greatest mainstays of the value of property. At pre-sent the expenses of the transfer of land were enormous, amounting between vendors' and purchasers' expenses to 12 or 15 per cent, besides the great delay which at present took place in the transaction. In 1854 a Royal Commission 104 had inquired into the question of the transfer of land, and also that of the examination of titles; in fact, there had been two Royal Commissions and one Committee who had considered the question. In Lord Westbury's Act of 1862 it had been attempted to make a register of titles, in which the register should be the mirror of the title; but solicitors had been unwilling to advise their clients to lend money upon mortgages of estates thus registered. Lord Westbury's and Lord Cairns's Acts had failed in the object for which they were passed— namely, to encourage owners to register the title of their lands. No title deed was practically indefeasible and absolute, and it was by excluding all other rights that a person proved his own. The only way they could get out of that was by advertising the title. He proposed to give every person the right to enter his land on the register, and to make an affidavit indicating all the charges on the land; accompanying that affidavit would be another from two rate-payers of the county living in the neighbourhood in which the land was situated. At the end of two years' primary registration the title would become absolute, and would exclude all other persons. By these means, he contended, there would be offered inducements to bring land upon the register such as were not given by the Act of 1875. He did not suppose that at that period of the Session such a measure as this could become law. He had introduced this subject only because he believed it to be one of great importance on which legislation was absolutely necessary. Should their Lordships be willing to grant a second reading to the Bill, he would have no objection to its being referred to a Select Committee, which could investigate the whole subject, and a Bill be brought in the next year. This Bill was really an amendment of Lord Cairns's Land Act and a practical attempt to endeavour to meet the difficulties which that Act did not meet—namely, the difficulties put in the way of registration by the Legal Profession. He moved the second reading of the Bill.
§ Moved, "That the Bill be now read 2a."—[The Duke of Marlborough.)
§ THE LORD CHANCELLOR (Lord HALSBURY)
said, he was, unfortunately, not able to advise their Lordships to, 105 yield to the suggestion of the noble Duke (the Duke of Marlborough), and allow this Bill to be read a second time with a view to the subject being investigated. He was not at all insensible to the importance of the question; indeed, it was one which had exercised the minds of the Legal Profession, besides many other persons, for a considerable time. But the only effect now of passing this Bill —one of 117 sections—would be that the House would commit itself without debate to the principle of the measure, upon which undoubtedly neither the Legal Profession nor those who took an interest in the Land Question were agreed. There were two principles upon which registration could take place—one was the registration of title, and the other was the registration of deeds. The noble Duke asked the House to commit itself to one of those principles. For his own part, he wished to be able to consider a question of this sort in its entirety, and, if legislation should be desirable, to be able to form a judgment on the subject without being committed to any particular principle in dealing with it. He could not, therefore, advise their Lordships to pass the second reading of a Bill which affirmed one principle and contradicted another, and thus preclude themselves from considering and coming to a judgment on the whole question. Nor was ho able to concur in the noble Duke's observations that this Bill either followed the lines or was any essential part of the system of Lord Cairns's Act. The noble Duke had done an injustice to his own diligence in striving to minimize the changes which this Bill sought to introduce. Among other things, the Bill provided that Land Commissioners should divide the whole of England into districts, and that titles to land should be registered on the application of the owners. Speaking roughly, the Bill would have the effect of reducing the Statutes of Limitation with respect to the recovery of land to two years. That was a most serious change, and one which the noble Duke proposed, apparently not only without consultation with the real property lawyers, but somewhat in defiance of the principles on which lawyers had been accustomed to act. He did not wish to be understood as being antagonistic to the principle which the noble Duke advanced; but he maintained that 106 at that period of the Session, and under the circumstances, it was in the highest degree undesirable to pledge the House to a Bill the principles of which he had just glanced at without full consideration. The practical ground on which he opposed the Bill was that it was in truth only pledging the House to a kind of abstract principle without sufficient examination into either principles or details.
§ LORD CASTLETOWN
said, that the noble Duke had made no reference in his speech to Ireland and Scotland. In Ireland there was an Act in force almost identical with the noble Duke's Bill; but it had unfortunately proved almost nugatory in consequence of the difficulties interposed by the Legal Profession. The Record of Title Act, as it was termed, was passed in 1865; but the fees which had been fixed by the Judges of the Landed Estates Court were much too high. The main question involved was that of compulsion, without which the trammels of the Legal Profession would never be got rid of. Nor would the question bo satisfactorily disposed of until similar laws were made for the Three Kingdoms He hoped their Lordships would read the Bill a second time, and then refer it to a Select Committee.
said, he thought that a Bill of that kind ought only to be introduced on the responsibility of the Government of the day.
§ THE EARL OF SELBORNE
said, that he had introduced a Bill in 1873 much on the same lines as the noble Duke's, so far as related to the principle of compulsion. But he quite agreed with his noble and learned Friend on the Woolsack that it was impossible for the House to deal with the question at that period of the Session, and that it was undesirable that the House should give a vote which might affect the majority of their Lordships, by committing them to the affirmation of any principle without having had ample time for its consideration. He looked upon the subject as being one of great importance, but encumbered with serious difficulties; but for which the late Government would not have allowed five years to elapse without dealing with it. The difficulties did not all rest with the Legal Profession. In his judgment, to make a successful measure, three, certainly two, 107 things would be necessary. First, the system of registration should be general and compulsory; secondly, the Government must go to the expense of establishing, in as many centres as the convenience of the country might require, the necessary machinery for carrying out the system under the control of competent persons. As such a system could not at first be self-supporting, though in the end it might prove so, the Treasury would have to be consulted, and difficulties might arise in that quarter. Thirdly, he was very much inclined to agree with the noble Duke that it would be necessary in any great reform to clear possessory titles after a comparatively short time, and to bar all contrary claims. That, however, would involve the exclusion of dormant and outstanding claims, in a much more summary way than under the present law; and this some persons would not like, because there might be some questions under settlements arising. All the difficulties which he had mentioned might be overcome; but there were other and great difficulties behind, which certainly did not rest with the Legal Profession. A great deal was heard of the Land Question. What did that mean? He was not sure that all those who most frequently used the phrase would agree as to the answer, or as to what should be done respecting it. Some would propose one thing, and some another. There was a large body of persons, whose opinions were not unlikely in the future to prevail, who objected to the substance of our Law of Real Property, and would object to modifications of the law, which were only in the direction of facilitating transfer, and which did not deal with entails and settlements, either by total abolition, or, at least, by bringing thorn within narrower limits. He regretted this state of things, not because he was opposed to all important changes in the substance of the law, but because he always thought it wise, in dealing with large and complicated questions, to treat the different branches of them separately. Nothing could be done in the matter without the general support, either of lawyers, or of the country at large, and it was for that reason that he had supported the recent measures of his late lamented Friend Earl Cairns; which were most useful, but which, 108 without that general support which they received from the Members of the Legal Profession who had seats in the House of Commons, would never have become law.
THE EARL OF LONGFORD
urged that as there were both purchasers for small parcels of land, and proprietors willing to sell, who were now kept apart by the legal delays and expenses, arrangements were required to facilitate the transfer of small holdings.
§ THE DUKE of MARLBOROUGH
said, the extension of the principle of registration of title was so large under the provisions of this Bill, that he should hardly be warranted in asking their Lordships to assent to the second reading at so late a period of the Session. He would therefore, with the permission of their Lordships, withdraw the Bill. He would, however, bring it forward in another Session unless the Government would themselves deal with the subject.
§ THE MARQUESS OF SALISBURY
Before the discussion closes I wish to make merely one remark. It appears that the noble and learned Earl opposite (the Earl of Selborne), and all who have taken part in this discussion, go upon the theory, which is very common in this country, that there is something in the law in this country, as it is practised, which makes it specially difficult and expensive to transfer small properties from one person to another; and there is a belief that by something we can do in this building we may alter the state of things altogether. Now, I wish to say—and each man must contribute his own experience—that I have very great scepticism on that subject, and I found my scepticism on the fact that I have myself dealt in a small way with small properties in England and in France. In France the almost fixed charge for conveying land is 12 per cent on the purchase money. In this country the charge varies enormously; but, according to my experience, it does not exceed, as a rule, 4 or 5 per cent. In France the shackles supposed to be connected with the feudal system have been long ago got rid of, and yet the cost remains as high as I have stated. No doubt I shall be told—-and I think it right to mention this, because it is an important point— that a very considerable taxation exists in France, as it exists to some extent in this country, and that the 12 per cent 109 includes a sum for that purpose. That taxation represents, in a great degree, the performance of the very services for which a Bill of this kind provides— namely, the cost of registration and so forth, which are no doubt essential to a transfer of small properties, but which, like all services, must be paid for, and which tend to raise the price in the manner I have indicated. Do not let us be misled by the experience of the Colonies. They have no difficulty in providing a cheap mode of land transfer because their land has no legal history. What causes the expense here is the fact that land has gone through a great number of previous transactions, which have to be traced, identified, and dealt with, and any difficulty arising out of them removed. When you deal with land which is in a state of nature, or which has not been many years in the hands of individuals, of course that complicated history does not exist, and the cost arising out of it has not to be paid. It would, therefore, be taking a very optimist view of the subject to think that anything we can do in this House will make the transfer of land as cheap in an old country as it is in a new one. Though I am far from saying that improvements cannot be made, or wishing to throw any discouragement on efforts such as that of the noble Duke, which show great industry and considerable knowledge of the subject, yet I do not think that such an extensive cheapening as generally believed to be possible will arise from any legislation we may adopt.
§ Motion and Bill (by leave of the House) withdrawn.