§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (Lord HALSBURY), in moving that the Bill be now read a second time, said, that it embraced the same objects by the same means as the Bill passed last year through their Lordships' House. The sole difference between the two Bills was, in substance, this—that, whereas in the Bill of last year certain alterations 1753 were made and Amendments added to Lord Cairns' Land Transfer Act of 1875, the Bill now before their Lordships repealed that Act and embraced the whole subject in one code. The object of the measure might be described as fourfold. First, as a further development of Lord Cairns' Act; secondly, as the application of compulsory registration; thirdly, as the clearing of the title within a shorter period—namely, a term of five years; and, fourthly, as the putting of real and personal estate on the same footing. No one could appreciate more than he did the observations of his noble and learned Friend (Lord Herschell) last year in reference to having one Act upon the subject. The effort to produce that result had been a matter of great difficulty, for it was not easy when one put two Acts together to make them harmonious, and it became necessary in some respects to repeal and in some respects to modify Lord Cairns' Act. He, therefore, proposed, if the Bill should be read a second time, to ask their Lordships to refer it to a Select Committee, so that it might have the benefit of the supervision of his noble and learned Friends. As to the question of compulsion, he adhered both to the general principle and to the method which he put before their Lordships last Session. Any one who was willing to act voluntarily would not lose anything by what he proposed, but he was convinced that the existing method of conveyancing and the circumstance that the same operation had to be repeated over and over again at the expense of the owners of land, was one of the peculiar difficulties attaching to its transfer. The great value of such an alteration as he suggested was the cheapening of the process. He insisted the more upon that because he had seen with some surprise the statement that the new system which he recommended would lead to further expense. Once the whole system was in working order no one, he thought, could doubt that all those long bills for examination of title, abstract of title, and going back into the history of titles for 40 years would be swept away, and the sole title a person would require was the entry of the land upon the register. The question of the period within which a good title might be established, considering the present facilities of publication, while preserving 1754 the rights which were necessary, might be a subject of considerable debate. He put the period at five years, though he had been warned that it should be extended to 12 years, while others said it ought to be reduced to two. He adhered to five years, as a period not unreasonable in itself and as one which our law recognized as reasonable. He did not think any injustice would be done to existing rights by fixing on five years. It was the existence of deeds and the necessity of looking after them which entailed all the expense. When once the property was registered owners might put their old deeds behind the fire. As to the assimilation of the law of real and personal estate, he saw that a noble Lord had given Notice that he would move that the Bill be read a second time that day six months on account of the proposed alteration of the law. So far as large estates of inheritance were concerned, except in the cases of lunatics and minors, who were unable to make wills, the Bill would make, he believed, no difference, because owners would make their wills. But in reference to freeholders and small owners of land, the present diposition of property in the event of intestacy was undoubtedly not that which they would make for themselves. No doubt the spread of education and the power of writing was so much extended that there could be no difficulty in making some simple disposition of their property; but if they did not make such a disposition it was only reasonable that the State should make for them such a will as they would, if they did not die intestate, be likely to make for themselves. He believed that it was absolutely essential to the success of the scheme that the rule-making clause should be very wide, and it was the same in this Bill as in the Act of 1875; but this and all the details of the Bill would be better discussed by the Select Committee. He begged to move that the Bill be read a second time.
§ Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
§ LORD ARUNDELL OF WARDOUR, in rising to move that the Bill be read a second time that day six months, said, on the last occasion when he ventured to move the rejection of this Bill, he was afraid that some words of his were misconstrued by the noble and learned 1755 Lord who sat on the Woolsack, in the sense of a personal attack. He wished to assure the noble and learned Lord that it was very far from his intention, and if his words had been reported the impression would have been removed from the noble and learned Lord's mind. He would now deal only with the Bill itself. He thought they had a right to take exception to the Bill on this ground—that whereas the Bill, so far as it caught the public eye, proposed to do one thing, it did in reality something quite different. Ostensibly the Bill was a simple Bill of Land Transfer. What it really would effect would be a radical and revolutionary change in the devolution of landed property, the clauses affecting entail and settlement were the operative clauses. It would abolish entail and primogeniture; but by all accounts it was very doubtful whether it would facilitate land transfer. In the discussion last Session it was pointed out by the noble Earl (the Earl of Feversham), who moved the Amendment to the 39th clause, that there was no demand for the abolition of the custom of primogeniture; that if properly understood by the freeholders they would see their interest in retaining it. But then it was said, though no one explained how or why, that its abolition was necessary to facilitate land transfer. In the absence of any arguments on the other side, he could only remark that if they abolished the custom of primogeniture they would have to give a separate registration for every child in the family, and if there wore 10 children the complications would be tenfold. Whatever else, therefore, the abolition might do, be could not see how it could facilitate land transfer in the direction of simplification and economy. He wished their Lordships gravely to consider what would be the practical effect of their legislation. They must consider what would be likely to happen upon a property falling under the operation of the Bill. He would take a medium property, say of 3,000 acres, and suppose that it had to be divided among three sons, as there was no will. They wore told that a man who did not make a will deserved no consideration; but he must remark that their legislation would take effect equally, whether a man neglected to make a will, or whether he made it and it was lost, or abstracted, or invalidated 1756 on the ground of some technicality. Well, they were supposing that some property, it might be some old historic place, had to be apportioned. The first conjecture was that the trustees would sell, in whole or in part; but purchasers were not so readily forthcoming in these days, and in the end it would depend upon the price. Moreover, he apprehended the mortgagees would have a word in the matter, as they would also have their slice of the property. If there was a sale there would only be the substitution of one family for another, or of a strange family for one who had always lived among the people and in the place. If no sale, perhaps their Lordships believed that the three brothers, with their wives and families, would all agree to live amicably together in the same house. It would be a curious condition of society; but he thought the more probable conjecture would be that as none of the brothers would have any motive for residence more than the others, that they would go their several ways, follow their respective careers, and naturally take all they could out of the land. In what way was the country to be benefited? They would have created three rack-rented properties, three absentee landlords, and left a deserted, tenantless, and desolate mansion as a ghost-like memorial of their legislation. No doubt this would, to a certain extent, be obviated if they wore to exempt the mansion and demesne from the operation of the Bill, upon the precedent of Lord Cairns' Settled Estates Act; but according to the Bill the house as well as the land would have to be equally divided, which would give rise to endless complications. Under the operation of the Bill as it stood, he felt convinced that the families who had hitherto lived in the country, the families who connected them with the past would disappear more rapidly than they supposed, and that the proprietorship of land would pass under mortgage from the county to the town. The noble and learned Lord thought differently. He told them last Session that he expected very little political effect from the Bill; but the political effect which they seemed to deprecate would be exactly to the extent to which the Bill would be operative, and in every instance, and whenever it was operative, 1757 it would be by the ruin and extinction of some family in the manner he had indicated. There was one fact in connection with the question of primogeniture which he wished to keep in recollection—which was mentioned by the late Sir George Bowyer many years ago, in 1869, and it was this. Their Lordships knew that the equal system of division obtained in Kent under the name of Gavel-kind. Bat at the time when Sir George Bowyer wrote, almost all land in Kent had been disgavelled on account of the inconvenience and confusion the system induced. As there was no more connection between the abolition of primogeniture and facility of transfer than between Tenterden Stoeple and the Goodwin Sands, if they, the Conservative Party, decided to sacrifice the old properties and families in England, he could only suppose that they had done it on some other idea and motive, and the only one he could discover was the belief that they would thus increase, and in a manner they would wish, the number of freeholds; but even, if they succeeded in doing so, as he pointed out last year, by abolishing the custom of primogeniture, they would undo with one hand what they were endeavouring to effect by legislation with the other. Under the operation of this Bill these freeholds would lapse, for they would only be preserved by being passed to one of the sons. He sufficiently discussed this point last year. He would only urge again a suggestion he then ventured to make, that if they decided—namely, if a majority of this House at a later stage decided—to abolish the custom of primogeniture, they might at least mitigate the evil of the change and meet some of the objections to it without any inconvenience beyond allowing one line in their register, in which the freeholder whom they compelled to register, might at the same time declare by what rule of devolution he would wish his property to pass in the event of intestacy or the loss or invalidation of his will. This would be only consistent with the liberty of bequest, which they proposed to respect, and might be the salvation of many a freehold. He could not see how the abolition of entail, any more than the abolition of primogeniture, could facilitate the transfer of land, for by the transfer he presumed was meant the transaction of transfer, and not any 1758 accidental political effects that might ensue from it. If the intention of this Bill was to bring land into the market, to redistribute the land, that intention ought to be avowed. The object would be better attained by direct legislation than through the indirect and circuitous medium of a Land Transfer Bill. He would assume, however, that they were discussing a Transfer Bill; and he asked how the abolition of entail was to facilitate transfer? The advocates of the Bill tell us that—To assimilate, so far as they can be assimilated, the laws governing real and personal property would be a distinct gain to every person who buys or sells really." But how? The purchaser was presumably the person who complained. He, at any rate, had a grievance; but his grievance as matters stood, and it was the secret of the expense, was the rule of law which obliged the purchaser to prove the vendor's title; this was his grievance, and not the entail. As regarded the seller, when the limited owner, at any rate under Lord Cairns' Act, sold, he sold absolutely, and the purchaser took the land from the limited owner just as he would from the full owner. He might put it in this way. Did the limited owner, even under this Bill, sell or transfer in a different manner from the full owner? How did the entail come in? How could the devolution of property, or any law affecting it, affect the transfer any more than the knowledge of the nest journey a horse was to take—whether it was to take a 1s. or a 20s. fare to Richmond—would affect the price or the conditions of purchase of the horse? He hoped the noble and learned Lord (Lord Bramwell) would pardon the liberty he was taking with an illustration which was fresh in their recollection. In the case of the sale of a race horse, he granted that the knowledge of what his subsequent career was likely to be was of importance on account of his engagements and liabilities; and so, too, if the limited owner in an entailed estate sold, subject to the entail, or passed on the land subject to the entail, no doubt a change in the law would be a boon to the purchaser, and something of this sort seemed always implied. But he sold absolutely; and, therefore, he concluded that the entail put no obstacle in the way of the transfer. He said more. He said it 1759 was not creditable—he left individuals and parties aside—he said it was not creditable to the legislation of this country that the wise system of entail should be abolished upon this plea and pretext. But if at this moment—that was, whenever there was a sale of land—the State were to step in and compel registration, and give a Parliamentary title, it could do so in a short document which might pass the estate ever afterwards, without any of the expense and unnecessary complications which the compulsory preliminary registrations of this Bill would involve. In both cases, no doubt, there would be compulsion; but human nature very differently resented compulsion when the necessity and utility was immediate and apparent, and when it was only remote and contingent. The first sale, whether under this Bill or any other scheme, must involve investigation and the production of deeds, but the second and subsequent sales might be made upon the Parliamentary title. And he would make this remark, that if the registration was on-forced at the time of the sale it ought not to be accompanied with great additional expense, as it seemed to him that the proof of the vendor's title, which the purchaser had to make, ought to suffice for the enrolment in Court and for the Parliamentary title. The Incorporated Law Society, in giving its opinion on this Bill, said—"That the Council think that the Bill should aim rather at a guaranteed title than at an absolute and indefeasible title." He indicated last year two schemes—one by Mr. Pym Yeatman, the other by Mr. H. Tyrwhitt Frend—which aimed at giving guaranteed titles in a simple and inexpensive way. Mr. Tyrwhitt Frend, who had had large experience as a conveyancer, said, there would be no difficulty in giving Parliamentary titles to all good titles if the law which compelled the purchaser to prove the vendor's title were repealed. He noticed, however, that neither these learned Law Societies nor the noble and learned Lords, in discussing this question, had defined for them the precise difference between an absolute and a guaranteed title. Merely to clear his mind, and on the chance of eliciting information from the noble and learned Lord, he would venture to say that what he understood by a Parliamentary 1760 title was a title guaranteed upon the examination of the document produced, according to present knowledge, and an absolute title, the same guaranteed also as against future contingencies and events, as, for instance, the subsequent production of a deed not known to the parties to the transaction. If this were accepted, to all intents and purposes a Parliamentary title would be virtually an absolute title, for all good titles, all titles that were not disputed and disputable—which were the majority of titles. It would be an absolute title, except upon contingencies not in the least likely to occur, and it was doubtful whether the more solemn adjudication of this Bill would give anything more. Their Lordships were aware that a great deal of land had passed of late years under what were known as "short titles." This showed that the instinct of the public would be satisfied with Parliamentary titles, and this would suffice for all practical purposes. It required their Lordships' serious attention how far these short titles would be imperilled by this Bill. These "short titles" might not have satisfied all the technicalities of the law, although they might have satisfied the parties themselves. But if their administrator was to give an absolute title he must go beyond the document to the deeds behind, and then how many of these transactions would be set aside and these agreements re-opened? It might come about that under the operation of this Bill more land might be locked up in deadlock than under the strictest entails. They would have to consider also how hardly compulsory registration would press on the Building Societies and on the purchasers of small plots of ground. In many instances it was said that it would be prohibitory. He pointed out last year also how hardly compulsory registration would press on the landowners, and at the moment when they were least able to bear it. It was compulsory on a death—that was, on a succession to a property, when, as often as not, the owner had no income during the first year; and at this moment, when he had to incur all sorts of liabilities, without any advantage to himself, they compelled him to go to the expense of registration, and until he did so he would not be able to move hand or foot. Lord Herschell very generously, from his point of view, 1761 acknowledged the injustice of forcing a landowner to prove his possessory title at great expense, and without any corresponding advantage to himself. It was no exaggeration to say that, instead of facilitating transfer and liberating the land, the Bill would paralyze transfer, at any rate during the term of five years' possessory title, and beyond it in the "unproclaimed" districts, where the unfortunate proprietors would not even be privileged to call their property their own. He might quote from a pamphlet of the Law Society of the United Kingdom to that effect; but he understood that a noble Lord (Lord Stanley of Alderley) would deal with this branch of the question. he had only one consideration more to urge, and it was this—that in abolishing the custom of primogeniture they were voting away the principle upon which, their Hereditary Chamber reposed. Of course, if their Lordships were prepared to accept the suggestions for their reform which had been recently made to them—if they intended to reconstitute themselves upon the elective principle to the exclusion of the hereditary—and their vote last night assured him they were not—they wore consistent in passing the Bill. But if they were not prepared be to reconstitute themselves, he trusted their Lordships would realize that as soon as this Bill passed one more argument would be marshalled to the front against the existence of their Hereditary Chamber. It would be said that their House was in opposition to the spirit and sentiment of the law of the land, and they would have sot their sign and seal to that. Every concession in those days was the signal for a now departure on the part of the Radical Party. He had a recollection, he thought, of a warning to this effect in eloquent language by the noble Marquess at the head of Her Majesty's Government—Are you wise, then, in throwing overboard your whole cargo as in this Bill? What! This Bill a simple Bill of Transfer! The Statute of Westminster repealed. Primogeniture, settlement, entail, all thrown overboard in one Bill. There has been nothing like it since the memorable sitting in the French Constituent Assembly, when the Nobles, in an access of enthusiasm or of panic, threw all their privileges to the winds. 1762 He must content himself with having registered his protest.
§ Amendment moved, to leave out ("now") and add at the end of the Motion ("this day six months").—(The Lord Arundell of Wardour.)
§ LORD THRINGsaid, he thought there were some points in the Bill which required further attention before it was read a second time. The Bill would seriously disturb the relations between vendors and purchasers. At present all the expenses of examination of title and conveyance were borne by the purchaser; but this Bill would make the vendor responsible for all the costs of transfer. It was absurd to assert that this Bill was little more than a re-enactment of Lord Cairns's Act. Almost every clause in that Act would be altered by the present Bill. This measure went much too far, for it would compel a man to register his whole estate when he made a settlement on his daughter or granted a small lease. Another of its provisions would prevent a man from enjoying an estate, however small, devolving upon him by deed or will until he should have registered it. He held that if he dealt with his estate by way of settlement the public were no more interested in the transaction than they were in the Moon, and therefore there was no ground in such a case for putting him to the expense of registering, a process which must involve the examination of deeds and the preparation of new maps. Registration would be excessively expensive, and except in cases of sale, and, perhaps, of mortgage, would be useless as far as the public were concerned, and most oppressive to the landowners. It was, in his opinion, a rash thing to tear to pieces the Act of 1875, when it had not been shown that one single clause of that Bill wanted amendment. The Act, he knew, had not succeeded; but the sole cause of its failure was bad administration. The only provision that was now required in connection with the registration of land was a simple clause enacting that in all cases of sale the purchase ought to be registered. The second part of the Bill dealing with the subject of intestacy he heartily approved, and he trusted that the abolition of primogeniture would lead to the abolition of the system of settling small estates. Nothing had 1763 done more to prevent unfortunate country gentlemen from raising their heads above water than that system.
LORD STANLEY OF ALDERLEYsaid, he hoped the Bill would not be read a second time. The compulsory registration of land would inflict an immense expense on landowners, without any benefit to themselves, or, indeed, to the public, in the many cases whore there was no intention or probability of sale Besides this, the Bill would, if carried out, have the effect of bringing to a standstill all dealings with land for an indefinite period. If the Government thought that a general register of land was necessary, it already had the means of framing one without all this expense and vexation. They had all the materials for the register of land with a possessory title in the accounts of the Succession Duty Office, and it was only a matter of compilation. At this office the clerks examined not only wills, but also marriage settlements. As these accounts only dated from 1853, all the landowners who were alive before that date would not yet have deceased, so all the land would not yet have passed through the registers of that office, but a very few more years would bring all the land liable to Succession Duty under the notice of those officials. The method proposed by this Bill of cheapening land transfer was the very worst that could be adopted, since it would, all at once, cast a heavy burden on the whole property of owners who might not wish to sell at all, or only to sell a small part. There was much exaggeration about the cost of land transfer; under Lord Cairns's Act it was very trifling, and people who had the purchase-money ready, and who knew the circumstances of the property they wished to purchase, could do so cheaply under Lord Cairns's Act; but if they had to borrow the money the mortgagees required abstracts of title. According to his own experience last year in the case of the sale of property to the value of £5,800 in 20 holdings, the vendor's costs had been about 2 per cent, or an average of £5 11s. on each conveyance, and of £4 3s. on an average to each purchaser. If the Government wished to cheapen transfer of land in small quantities, let them abolish stamps on small purchases, and the saving to these purchasers would be greater than the 1764 amount of the stamp. It was evident that if this Bill passed and was carried out there would be an impossibility of registering all the land even in one district in any short space of time, and during that time neither sales nor purchases, nor even building leases, could take place, and the only object of this interruption of business and harassing legislation was to please a few doctrinaires who knew little of the subject they wrote about. The Law Society, on the one hand, and the Free Land League, on the other, wore equally opposed to this Bill as involving great expense and hardship.
§ LORD HOBHOUSEsaid, he hoped their Lordships would not be induced to refuse a second reading to the Bill, although it contained some provisions which he could not approve. He was glad it was proposed to refer it to a Select Committee, in order that this complicated question might be dealt with, and result in the most workable measure that could be produced. He had never concealed his opinion that there was extreme difficulty in devising a simple system of transfer while keeping up a very complicated system of law. But a contrary opinion was held by great authorities, and was acted on last Session by this House. The object for them all now to aim at was to give the new system a start under the most favourable conditions. But the Bill was so framed as to cause a great amount of friction and vexation in the process of transition from an old system to a new one. In the 3rd clause it was provided that where a landowner died and his heir succeeded, that heir should have no right in land until registration. Now, a number of things had to be done before registration could be effected, so that for a long time a man would have no right except that of being registered as owner. In the meantime, he could not protect the estate against encroachment, cut timber, arrange with tenants, or do other things necessary in case of a now succession. Registration should not be required on succession. It was true that such an alteration would delay the completion of the register. But it was not the object of Parliament to enact registration from the mere abstract love of it; the object was to provide for greater facility in the transfer of land; facility of transfer implied the 1765 fact of transfer; and there need be no registration until it was necessary to effect transfer. He strongly recommended the reconsideration of the point, and the limitation of the obligatory clauses to those cases in which transfer was proposed. There were a number of charges that were not subject to registration of any kind; and disasters had happened from the occult nature of those charges. He should support the second reading, with the hope that modifications and Amendments would be introduced when it came before the Select Committee.
LORD DENMANsaid, that the Incorporated Law Society, in sending objections to this Bill, had stated that if the House passed the second reading of this Bill, they admitted, in principle, that was incorrect. The noble and learned Lord the late Lord Chelmsford tried to establish this opinion; but every stage of an objectionable Bill was exposed to rejection. Registration was attempted in 1830 by Mr. Campbell, and Mr. Denman voted for it. Succession to real estates of intestates was proposed in 1870 in the House of Commons, and blamed by Lord Redesdale, and never revived till last year. The Settled Land Act was faulty in allowing a tenant for life to sell land against the will of those who were next in the entail relating to it. The late Lord Hindlip had wished him (Lord Denman) to sell land under it; but his brothers objected to the price, and he refused to sell it, and had refused a handsome price from the present Lord Hindlip. He had always guarded against profiting by any large price—securing any surplus beyond the rent to the tenant, who would have derived any benefit from it. He (Lord Denman) hoped that the Lord Chancellor would present three separate Bills, and he would certainly vote against the second reading of this Bill.
§ LORD HERSCHELLsaid, he was glad that the Bill re-enacted the Land Transfer Act of 1875, with the Amendments passed in 1887. But when he came to deal with the substance of the Bill there were certain matters to which he called attention last year, and on which he thought it necessary then to divide their Lordships on more than one occasion, which re-appeared in the measure this year, and to which his objections were as strong, if not stronger, than ever. They had been alluded to by some noble 1766 Lords, and they had an important bearing on the proposal to refer the Bill to a Select Committee. He did not think a Select Committee was the best tribunal for dealing with those matters, which involved questions of principle upon which the House was almost equally divided last year, and which, even if referred, had to be fought out again in a full House. If, on the other hand, the Select Committee was merely to deal with details of drafting, it would, he submitted, be a very unsatisfactory process. He should not so much object to a reference for drafting purposes if it took place after a Committee of the Whole House had settled the important matters to which he referred, and which went far beyond mere questions of drafting. It was important that the Bill should, as far as possible, speak with the same tongue, and that was best brought about by the responsibility resting really with the Minister who introduced the Bill aided by the draftsman who had drawn it. With regard to the provision requiring every owner of land before making a conveyance or settlement of his land to register his land, he thought the owner should not be bound to register more land than that which he proposed to convey or settle. To compel him to do more seemed to be throwing an expense upon the vendor, for which he got no return and which benefited nobody. The only argument he had heard used in favour of it was that, inasmuch as the owner of land would have to register before dealing with any portion of his land, he would reason that as he had to register a portion he might as well register the whole estate, and that such indirect compulsion would be a means of getting the land on to the register more quickly. He did not think that that was a sufficient reason for casting such a burden upon every landowner before he parted with any portion of the land, and it might probably even operate in the reverse direction to that which their Lordships would desire. They were all disposed to advocate an extension of the number of small owners of land, and he could not help seeing that the provision in question might be an actual impediment to the landowner selling small pieces of land here or there if he knew he could only do it, having first registered his title. Since the registration of land was made compulsory it 1767 would stop all current transactions, or ail transactions about to become current until the registration was completed, and how long that would take nobody could tell. Those wore his strong objections to the present provision, and they were not objections of drafting, but of principle. In the ease of devolution by death, he admitted there might be more reason for saying that it was expedient to provide for compulsory registration; but, as he pointed out last year, he could not see what was to be the condition of things during the interval until some person, the successor to the estate, was put on the register. Certain land, he would suppose, devolved upon A B by death. Until he was registered he would have no right over the land except the right of being registered as owner; he could not grant a lease, deal with the property, or bring an action. What was to be the condition of things during that interval he did not know—an interval the duration of which it was impossible to state, because it would depend upon the amount of business in the Land Registry Office. They could only justify the compulsion of registration of that kind if it were rendered so simple and so cheap as not to be a burden. If such a system of registration was for the public benefit, so as to make land easily transferable, it was, he contended, expedient that the public should bear the burden of it, or, at least, that the burden should not rest upon the shoulders of those who, by registering a mere possessory title, really got nothing in respect of it. That depended on two things—on the fees established at the Land Registry Office, and on what was required from the individual who was to register a possessory title. Now that was provided for by rules laid down in Section 4, and it seemed to him that everything would depend on those rules. Unless the requirements were so laid down that a man might register his possessory title without any substantial burden, they would be inflicting upon him a burden for which there was no real justification. He could not help thinking that some of the rules seemed to be so absolutely vital to the measure that they ought to have them before them, because without these rules it was impossible to see how the Bill would work. Again, with regard to the devolution of property in cases of 1768 intestacy, while in some respects the law governing the administration of real estate was made similar to that affecting personal property, the two were not rendered completely similar, as there was the case in which the survivor of husband and wife was to have a life interest in real estate. That was something that did not exist now. He could not see why leaseholds should devolve in one way and freeholds in another. He could not help thinking that it was extremely undesirable, when they wore assimilating the two laws, to create a new anomaly. The Bill would require very serious consideration in Committee.
§ EARL BEAUCHAMPsaid, that the clauses in regard to the devolution of real estate upon minors and lunatics should be looked at very carefully. Again, would a man have no right to make a devise of the estate which had devolved upon him before he was upon the register? If so, that might cause serious inconvenience. It was said that this Bill would compel every man to make his will; but if he must be upon the register first there might be an intestacy, and the property go amongst the next of kin. He, therefore, wished to know whether Clause 3, dealing with the effect of the order for compulsory registration, had not in reality an important bearing on the power of disposing by will owing to the disqualification imposed by the clause? The Bill of last year had escaped criticism on its second reading, and it had not been until the Committee stage that serious attention had been paid to the various provisions of the measure. He hoped that this would not be the case this year. If it was the case that in some important respects they were not assimilating the law of real and personal property, then all reason for this Bill disappeared, and one-half of it would crumble away. They were creating anomalies. They did away with entails, but allowed settlements, which effected the same thing. The Bill affected both large and small estates. In his opinion it would not have much effect upon large estates, which always took care of themselves, and would probably always be the subject of settlements; but as regarded small estates, he thought that the Bill would have a very serious effect. What were the usual reasons for desiring 1769 a change in the law? A law was either changed because it had grown out of consonance with the existing practice, or for the purpose of removing some admitted public inconvenience, or for the purpose of simplifying the machinery by which some process was effected, such as the substitution of a simple form of barring an estate tail by enrolling a deed in Chancery, instead of going through the tedious process of fine and recovery, and such as the institution of socage tenure under Charles II. The Bill sought to introduce an entirely new change into their customs; and what was the evidence of a desire for that change? Was there evidence that owners of property desired to divide it between their children? He did not know whether that was the case; but even if it were so, why should the division be imposed in the case of those who did not wish it? All the Law Courts were accustomed to estates tail, and they had a mass of law on the subject. But if this Bill passed they would have an entirely new set of decisions, and as the uncertainty of the law was proverbial a great deal of confusion would arise. Whom was this Bill intended to satisfy? It would not satisfy the ardent reformer?, the Free Land League, and those who desired to upset the present system of landed estate. He submitted that there was much in the Bill which should be carefully dealt with in Committee.
THE EARL OF KIMBERLEYsaid, Le quite agreed with much that had been said by the noble Earl (Earl Beauchamp). In discussing a Bill of this kind, so full of technicalities, they laboured under a great disadvantage, and yet it was a measure which seriously affected every one of their Lordships and every owner of real property throughout the country. Their Lordships ought, therefore, to make up their minds whether the Bill ought to pass in the interest of the owners of real property. Speaking generally, he was in favour of the principle of the Bill, and most certainly desired to see the second reading. With regard to the change proposed in the law of primogeniture, he was entirely in favour of the Bill. He did not think the change would be made because there was any great demand for it, but because the present system was anomalous and unfair. In case no disposition of real property was made, the whole of it went 1770 to the eldest son, and there was no provision for the younger children. That was not at all in accordance with our ideas of justice. The fair arrangement would be that every man should be at liberty to make such a disposition as he thought fit, even if he desired to leave all his property to his eldest son. But his object in rising was to make an appeal to noble Lords to weigh well what had been said by his noble and learned Friend. Beading the 2nd and 3rd clauses together, he asked their Lordships whether they wished to be placed under this legal harrow? The moment a district was declared to be a registered district, a man who had real estate within it could not do anything with the land. You must describe I the nature of the rights you possess, and every one who had landed estate, especially building land, must know that there were a great variety of points to be determined before you could put it on the register. It must be remembered that unless there was a perfect army of officers different estates must wait their turn, a considerable time must, therefore, elapse before you could register your land, and during all that time you could not grant leases or perform any of the necessary acts which had to be done from day to day. He thought, therefore, they should deal with the land only when it was parted with by transfer. Anyone who succeeded to landed estate in this country would not, if the Bill became law, have any right over it until the laud was registered, and anyone who had over succeeded to a largo estate must know what a length of time it took to ascertain everything which must be done before it could be placed on the register in full form. During the whole of that time a man would have no power of any sort or kind for dealing with the land. The business of the country would be brought to a stop in such a state of things. He was entirely in favour of a cheap, simple, and expeditious transfer, but he urged their Lordships to be careful not to put upon the owners of real property for the purpose of obtaining some ideal system of legislation at a time when they were suffering more acutely than for a generation past what he could not but call the intolerable burden of being compelled at great expense to register their estates. If the clauses were to pass in 1771 the form in which they now stood, he ventured to say there were many of their Lordships who would feel the registration a very considerable addition to the burdens they now had to bear. He made these remarks in no unfriendly feeling towards the Bill; but, after reading the Bill carefully, he believed it would be most unwise to pass it in its present form.
§ LORD CLIFFORD OF CHUDLEIGHsaid, he must complain of the absence from the Bill of any provision fixing the fees to be paid on registration, and other details in connection therewith. They were told that they would be charged fees which were to be fixed afterwards by the Land Transfer Board, and that the registrations must take place according to rules and regulations which the Lord Chancellor might at his pleasure afterwards decide upon. He did not for a moment suppose that those regulations would not be made in a proper and most economical manner, but he thought that the proposal was too indefinite. He also urged that a register of the owners of the land was not the only thing wanted. A register of the land itself was wanted to which intending purchasers might be able to refer, and he hoped that some arrangement would be made for providing an index of the land itself. He strongly objected also to the insurance clauses.
§ THE EARL OF FEVERSHAMsaid, the noble and learned Lord on the Woolsack seemed to assume that the abolition of primogeniture in the devolution of real property would confer some benefit on the small freeholders of the country. He had taken some pains, when the Bill was before the House last Session, to adduce some reasons to show that that was not so, and if this Bill was to be referred to a Select Committee he would like to know whether evidence could not be taken on that subject? Was the Bill to be referred to a Select Committee merely for the purpose of perfecting the drafting of the Bill, or for the purpose of considering its various provisions? He hoped that Committee would be formed of those who held a variety of opinions on the subject, so that the matter might be thoroughly discussed, and he also hoped that some inquiry might be made as to the views held by the proprietors of land in this country upon this important subject. He 1772 would be glad to learn that that would be the case. He hoped that if the Bill went to a Select Committee there would be a most searching and very perfect inquiry with the result that the Bill would meet with substantial amendment.
§ LORD ARUNDELL OF WARDOURobserved that, although no one had said a word in favour of the Bill, he would, after the discussion they had had, with the permission of their Lordships, withdraw the Amendment.
§ Amendment (by leave of the House) withdrawn.
§ LORD HALSBURYsaid, that after the discussion that had taken place he might be allowed to make a few remarks. He admitted that he had assumed, perhaps too rashly, that there was a general assent on the part of the House that this Bill, which was in substance the same Bill as that of last Session, should, at all events, be allowed to pass its second reading. He had certainly not expected at this stage the amount of friendly criticism which had been poured upon it, and he doubted very much if he could conscientiously recommend this Bill to their Lordships if he believed the criticisms that had fallen from the Front Opposition Bench were well founded. There was no part or principle of the Bill that had not been attacked, and, as a noble Lord had observed, not a word had been spoken in its favour. He did not think the noble and learned Lord on the Front Bench (Lord Herschell) was at all justified in assuming that among a Select Committee of lawyers his views would prevail rather than those that he now submitted to their Lordships. On a previous occasion, when this Bill was under consideration, both the noble and learned Lords (Lord Selborne and Lord Bramwell) took the same views as he himself did. It might be that they were wrong, but he hoped that their Lordships would not assume that the opinion of lawyers was necessarily in favour of the noble and learned Lord's views. The noble and learned Lord had made a violent attack upon the Bill, and especially upon the principle of compulsory registration. A Bill dealing with this subject had been before the House on two occasions—in 1859 and in 1874—and on both occasions the Bill 1773 proposed compulsory registration. Lord Cairns, however, who was in charge of the Bill of 1874, dropped the compulsory registration clause, as it would otherwise have affected a class of very small transactions. That was quite intelligible, so long as an examination of title was required, but it was not required by this Bill. Anyone satisfied with a possessory title would, after the stipulated interval of time, obtain an absolute title. All, therefore, that the noble and learned Lord said on this point was quite irrelevant. When once the system was established it would work just as the noble and learned Lord himself suggested it should. But it was necessary to start the system, and that was the difficulty. the Act of 1875 had been a complete failure, and he could not agree that the cause of this was the maladministration of the office, The reason it failed was that the system was most unsatisfactory, and merely assisted people in registering the defects in their title. The consequence was that they did not register at all. He would not re-argue the question whether the vendor or vendee should be called upon first to register. He thought the proper thing would be to call upon the vendor to do so, but this was not a cardinal point of the Bill, though no doubt a very useful and important one, and it could be settled as the House might hereafter decide. It was an entire mistake to suppose that Clause 71 in any way affected the devolution of property. It merely provided for the registration in case of death of the personal representative of the deceased. The noble Earl on the Front Opposition Bench had dwelt upon the appalling state of things that this would lead to. But no such difficulties were experienced in the case of personal property, even when a millionaire or banker died. In such case no one was legally entitled to the personal property until administration orprobate had been granted; but, nevertheless, no practical difficulty or inconvenience was experienced. The world went on notwithstanding, and so it would be with regard to the devolution of real estate. All the objections that had been suggested were objections which would be fatal to any system that could be devised in regard to land trans- 1774 fer. They were all agreed that a great evil existed in the enormous expense incurred in dealing with and transferring property, yet when a proposal was made to sweep this expense away it met with something very like opposition. If this Bill were administered in the spirit in which it was conceived, and people in the case of small parcels of land were satisfied with a temporary possessory title, to be subsequently converted into an absolute title, the expense would be absolutely trifling. In proportion as the parcels of land increased the expense would, no doubt, be greater, and where an absolute title was at once required this would entail the expense of an examination into the title. Where persons were contented with a possessory title the transfer would be affected by the transfer of a piece of paper and the registration. He hoped their Lordships would consent to refer the Bill to a Select Committee. He was surprised at the attitude taken up on this point by the noble and learned Lord (Lord Herschell), for last year when the Bill was before their Lordships he appeared to be all in favour of a Select Committee.
§ LORD HERSCHELLsaid that, while he repeated his general approval of the Bill, he could not quite understand why the noble and learned Lord on the Woolsack should be surprised at the observations he had made on various points dealt with in the Bill, having regard to the fact that he made the same criticisms on the Bill last year, and felt so strongly with respect to some of them that he divided the House on more than one occasion. The reason he objected to the proposal to refer the Bill to a Select Committee was that there were questions of principle and not of more drafting involved, and those were questions which ought to be decided by the House itself. He suggested that the Bill should be dealt with in Committee by their Lordships, in order that all questions of principle might be settled in the House and that the Bill should afterwards be referred to a Select Committee so that the drafting might be revised.
§ THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIES (The Marquess of SALISBURY)did not agree that there were only questions of principle and questions of draft- 1775 ing to be disposed of. There was another matter about -which it was important that the House should have adequate information, and that was as to the exact meaning and effect of the Bill. There was at present considerable dispute as to what its effect would be. The appointment of a Select Committee would bring together the men most able to discuss that question, and by their Report the House would learn pretty well what were the grave questions of policy remaining behind upon which a decision could only be taken in that House. He confessed—of course, supposing he had no previous knowledge or opinion on the subject—after listening to the noble and learned Lord (Lord Herschell) and the noble and learned Lord on the Woolsack, he would be most incompetent to form an opinion, unless he got them into a room and cross-examined them both. The discussion of so complicated a Bill as this by 10 or even 20 rival lawyers in their Lordships' House would not supply a thorough knowledge of the details of so complex a measure. On the other hand, the ordinary practice of putting it through the mill of a Select Committee would probably result in its issuing in such a shape that it would be easy for the House to decide upon points of policy.
§ Motion agreed to; Bill read 2a accordingly.