§ Order of the Day for the Third Reading, read.
§ THE LORD CHANCELLOR
My Lords, in moving the Third Reading of this Bill, I am afraid I must trouble your Lordships with a few observations, as I find that it is encountered by a somewhat unexpected opposition. The question of cheap land transfer is not a new one, either in this House or in the country. This is now the fourth year in which a Bill on this subject has been announced in the gracious Speech from the Throne. On the 21st of January, 1886, it was announced in the Speech from the Throne that a Bill "for removing the difficulties which prevent the easy and cheap transfer of land." would be laid before Parliament, and from that time down to the present Session that assurance has been repeated. The Bill was introduced in 1886, but the change of Government prevented the measure from being proceeded with. On the 31st of March, 1887, a Bill was introduced, which was read a second time without a Division on the following 25th of April. There were Amendments moved and Divisions taken in Committee; but ultimately, on the 12th of July, the Bill was read a third time without a Division. The Bill was re- 647 introduced in 1888, and was read a second time without a Division and referred to a Select Committee. I hope your Lordships will bear in mind the constitution of that Committee. Although it was a matter very deeply affecting the law of real property in this country, it was by no means composed exclusively, or even in the majority, of lawyers. That Committee sat and devoted a great deal of time and attention to the subject, and I think I may appeal to every member of it, whatever their views, whether every question raised was not carefully and deliberately debated, and the objections of every noble Lord, whether layman or lawyer, considered with care and respect. Of course the Bill could not be formally re-introduced last Session; but the course which was taken was this:—The Committe reported the extent of their labours, and in the present Session another Bill was introduced and referred practically to the same Committee. One noble Lord was unable to attend it, but another noble Lord was put in his place, and the Committee proceeded to take up the work that had been performed by the previous Committee at the point where their Report closed. The Committee have now reported, and although there were one or two questions of principle upon which I do not at all deny it is perfectly fair and reasonable for those noble Lords who were overruled by the majority of the Committee to raise the same questions in the House, I must say I am a little surprised at the terms of the circular, which, I see, has been distributed, in which questions not debated, not raised even in that Committee, are made the ground upon which the very noble Lords who attended that Committee ask your Lordships to reject the Bill. Now, my Lords, in the first place I think it is absolutely necessary that your Lordships should determine whether or not there is to be a cheaper transfer of land, and, if so, if any noble Lord will suggest any mode by which that object can be accomplished, which does not in some way or other interfere with vested interests, well and good. I never joined, and I never will join, in the idle cry against solicitors for the charges that they make. They have done their duty extremely well, with great care and with great success; and if you will render 648 it necessary to have an investigation into the history of every piece of land for the last 40 years, which you are conveying to somebody else, and if people are trained to perform, and do perform, that work, you must pay for that work so done. The whole question is whether you cannot get rid of that enormous burden upon the transfer of land by making the transfer of land more simple, and not open to the objections which now exist, and which over and over again this House has affirmed to exist, and has affirmed the absolute necessity of doing something to remove. My Lords, the details of the Bill I will not trouble your Lordships with. They have been through the Select Committee to which I have referred. I will not speak of myself; but when I look at the names included in that Committee, I think I may say that a stronger Committee, more competent to deal with the particular question on which we are now engaged, it would be very difficult to find at any period in the history of this country. That that Bill has passed with the assent of the noble and learned Lords who sat upon that Committee, and that they, by their Report, recommended it for your Lordships' adoption is, I think, no small circumstance in its favour. Of course, it is late in the day to argue the propriety and necessity of some system by which land can be transfered cheaply and easily. It may be that the nature of the subject-matter is such that it would be an exaggeration to say that you could always do that; but, at all events, you could attempt to clear the titles and render the investigation which I have spoken of unnecessary. Now, how is that to be done? The system which has been devised under this Bill is a system which has aroused hostility on the part of some persons who, I cannot help saying, are not unnaturally affected by their own interests; it is no imputation upon them that that should be so; it is what necessarily happens to all men: but they are extremely anxious I see in some papers that the landowners should not be put to unnecessary charges, and that they should be allowed to remain as they at present are in the hands of their solicitors. An article was published in the Economist, not a paper usually devoted to such subjects, in which the writer pointed out that 649The causes of the failure of past attempts to establish a system of registration of title to land in England are not easy to define with certainty; but prominent amongst them must be placed the universal advice of solicitors throughout the country against registration of any kind and the general timidity and conservatism of landowners.Now, of course, if things do not require any alteration, if things ought to remain as they are, there is no necessity for this Bill at all, and the paragraph which I have quoted in the gracious Speech from the Throne ought never to have found its place in the Queen's Speech at all. But I think it is competent for us to ask those noble Lords who are about to move the rejection of the Bill, what kind of cheapening of land transfer do they propose? Wherein lies the difficulty at present? What is it that makes the transfer of land dear? Can they point to any other source than the legal expenses by which that transfer is necessarily accompanied? And, if so, and if cheapness must be in diminishing the solicitors' charges it is not too much to expect from any body of men that they will advise that which necessarily involves a loss to themselves. I have said that I think that this is no imputation upon them; it is but natural; it is idle to suppose that they will not be affected by their own interests. And then I understand the alternative is that it should be left entirely voluntary for people to register or not. Well, there has been a voluntary registration already in existence, and I should observe that each and all of the gentlemen who write on this subject regard it with a degree of satisfaction—which, no doubt, they are entitled to enjoy—that the efforts of the noble and learned Earl near me (Earl Selborne), and the efforts of the late Lord Cairns and the late Lord Hatherley and the late Lord Westbury, have all been in vain. I do not know what the consequence to be derived from that is. Are we to allow the very things which have operated as grievances still to exist? Are we not to apply some form of compulsion in order to induce all the great landowners in the country to join in this great operation? Now, my Lords, I cannot help thinking that one very valuable piece of evidence has been supplied by the document which has been issued by the Law Institution. I am not certain 650 that they intended it in the direction in which I am about to use it; but by way of showing how important it was that registration should be allowed to remain perfectly voluntary they point to the fact that from inquiries they have made throughout the country, if you exempt properties under £300 a year in value it would probably affect half the conveyances of property in the country. I think the effect of that is not quite that which the Law Institution intended to attach to it. Observe how the difficulty of the transfer of land operates in that direction. I doubt whether your Lordships quite appreciate, or are in a position to appreciate, the difficulty which surrounds transfers of a small kind amongst the smaller class of people. There are a great number of noble Lords as to whom I believe it would be perfectly true to say that any purchaser would take any part of their land without any further title than the fact that it was known to form part of their estate, and they can make their own terms and insist upon the purchaser, if he is to be a purchaser, taking such title as they can give. But that is not the case with the great body of persons who want to deal with land; and the result is that you have not any one starting-point from which you can take it that such and such shall be the date after which there shall be no inquiry into title, because all these dealings with land go on perpetuating themselves year by year, and each new purchase involves a fresh investigation, and this may continue for ever. That is the one condition of things which those who desire the state of laud transfer to remain as it is must acquiesce in; because I am not aware of any other mode by which the object can be effected except some such mode as that which is described by this Bill. Now, I do not at all mean to deny that there are two questions in this Bill of a fairly debate able character. I mean the question of the law of inheritance, and the question of the Statute de donis. With reference to the Statute de donis, I can understand and appreciate the value of that Statute as it was observed at first. It may have been right or it may have been wrong; but I can understand and appreciate the policy under which that Statute was observed. But the moment the Courts invented a fiction, as 651 they did in 1834, to defeat that which the Statute de donis prescribed, it appears to me that you have only been creating an artificial proceeding which, by an extensive and circuitous method, may defeat what you have done. I confess myself that I do not see, and I never have been able to see, the value of the Statute de donis when once the Real Property Commission in 1834 prescribed a more certain mode of getting rid of the entail. But, my Lords, I go further. I cannot help thinking that however tenable the arguments by which such a condition was permissible and defensible in times gone by, they are quite fallacious now. You say—"We do not want great estates to be broken up." Why, your tenant for life can sell if he likes in spite of you. Subject to a very questionable exception as to the mansion house, the tenant has a right to sell, and to break up the estate in spite of any settlement, under the Settled Lands Act. It appears to rue that the whole condition of things, therefore, has been changed. With reference to the law of inheritance, I quite admit again that that is a fairly debateable question. The view which has been taken by those who have a strong objection to the alteration of the law is, I believe, not very much different from my own; but it would have very little actual operation except that it would present an example and create a principle which must be followed up. I am not aware that the practical abolition of the right of dower has led to people leaving their wives unprovided for, and I do not suppose it ever will; but that is a change which has been acquiesced in with great philosophy, perhaps, by those who are not at the moment impressed with Women's Rights. But the question which is contended for, and with a great show of plausibility, is that where you are dealing not with great estates, not with persons who are able to have solicitors as advisers, but with persons who may have small quantities of land and nevertheless die intestate, those persons do not have their property distributed in the way that they would have desired to have it if they had been persons in a different position. I have endeavoured to make some inquiry; but I am sorry to say I have failed to find out anything satisfactory as to the number of 652 great estates—of large landed properties—which have ever passed by inheritance upon mere intestacy. I certainly have not been able to find any frequent examples, if an example at all, of any such transaction having taken place. But what is contended for, and what is pointed to as being established, as a matter of fact, by a great number of persons, is that in the case of very small properties the land goes to the eldest son, which was certainly not what the owner of it intended, but which is a result that does happen, by reason of his not having made a will. Now, I believe that some such alteration of the law as I am now contending for is an alteration which will, in truth, secure the right of making wills and settlements, and that one of the most formidable engines against such rights is the separation of the owners of property into two classes—property owners who own personalty and property owners who own realty. I believe the united body would be if very formidable one to attack; and a every person who has Consols has in his mind that when he is trying to limit the right of the landowner to settle land as he pleases he also limits his own right to deal with Consols as be pleases, I believe the attack against the property owners would be much less formidable than it otherwise would be. But be that as it may, I quite admit that that is a fair question for debate; and the ground upon which I believe it is reasonable and proper that your Lordships should make the alteration is that it will preserve the right of disposing of property as one pleases, subject to legal restrictions, and enable people to make their wills, and to some extent force them to make their wills. Now, upon that part of the question I confess I am a little surprised that no. Amendment has been moved by the noble Lord upon the subject of preserving rights which may exist at the time of the passing of the Act in the cases of lunacy and infancy. I remember very well when the first Bill was before your Lordships the noble Lord himself pointed out, with great force and precision, that the provisions of the Bill were imperfect in that respect, and I accepted from him an Amendment which is intended to effect the object which he had in view. Further consideration induced me to suppose that it was both ill- 653 drawn, if I may venture to say so, and that it would not properly effect the object, and I brought up a clause, half 'of which the Committee adopted, and the other half of which I believe would have satisfied the noble Lord, and he professed his intention at the time of moving the other half of that clause in the House. Now, I confess I am a little surprised to find that that course has not been taken. I am not surprised at it as a matter of tactics at all; because I can quite understand that if by withdrawing that Amendment the noble Lord can make the Bill open to greater exception so as to unite a larger number of your Lord-ships against it, it is very good tactics; but I do not think that is a mode in which a member of the Committee at all events should have treated your Lordships. The noble Lord expressed his intention to move that in the House; and although I quite agree that on the Committee stage it was said it would not be convenient to bring it forward at that time, I do not now understand why we have not upon the 'Third Reading any such Amendment, except that the noble Lord thinks that, as a matter of tactics, it is more prudent to make the Bill open to that exception also. Now, I wish to say one word upon the subject of the expenses which I find has caused such a deep feeling of regret in the minds of solicitors. The paper from which I have already quoted has made a calculation. I believe a gentleman in the Land Transfer Office pointed out by an elaborate calculation, which I know is in possession of one of your Lordships, that this notion of an extravagant expense of registering possessory titles is a delusion. According to the Economist,The cost of registering an absolute title is mot easy to gauge with accuracy, but the estimate given by the Land Registry of the cost of registration of a moderate estate, say £100,000 value, is £29 19s., and an estate has recently been registered, running into five sheets of the ordnance map and valued at £30,000, at a total cost of less than £15.I know no reason why we should not take those figures as fair specimens of the cost that would be involved under this Bill; and I do not think it is fair to assume, as the circular does assume, that the cost will be so extraordinary, when all the authorities who know anything about the subject tell an entirely different story. I have thought it right 654 to call your Lordships' attention to this condition of the argument now, because it appears to me something in the nature of a surprise in the fourth year, after the compulsion, which was one of the great objections to the Bill originally, has been in a great measure removed from the Bill, to seek to defeat the Bill which has been read before your Lordships now for four years, which has been on several occasions affirmed without division in your Lordships' House; and I cannot help thinking that such an attempt as this to reject a Bill upon its Third Reading after four years of discussion, and without any real debate upon the principle of the Bill upon the several occasions when it has been presented, will not, if it should prove successful, be altogether to the credit of your Lordships' House. My Lords, I beg to move the Third Reading of the Bill.
§ Moved, "That the Bill be now read 3a."
§ * THE DUKE OF BEAUFORT
My Lords, in rising to move that this Bill be not read until this day three months, I must first of all express my regret at finding myself in the position of opposition to Her Majesty's Government; and, in the second place, that it should have fallen to me and not to some noble Lord more learned in the law to better express what I have to state to your Lordships. The noble and learned Lord on the Woolsack has rather complained that we should now attempt to reject this Bill. My Lords, I think that when such a general feeling of dissatisfaction exists throughout the country at the prospect of this Bill passing, it must not unnaturally have been expected that Her Majesty's Government would have withdrawn it. I can only fancy two reasons why this Bill should pass; one because there might be a general wish throughout the country for the Bill, the other that all the landowners, small and large, throughout the country wish for a Registration Act. I am convinced that no such feeling exists either in the country generally or amongst the landowners. We have already seen the working of the Land Transfer Act of 1875. It was prophesied when the Act was passed that there would be a general rush to register properties; but I am informed by lawyers and people 655 who ought to know that there has been no such rush, but that, on the contrary, the Act has been very nearly a dead letter. I am further informed that the Settled Estates Act of 1882 is working well and satisfactory, and that the lawyers are all getting perfectly accustomed to the working of it, and that it is doing good to the country, and they all unanimously (those that I have seen) tell me that this Bill will only cause great confusion. Now, this has been said to be a Permissive Bill; but upon looking at its clauses, I find that the Privy Council has the power of making it compulsory, and not only making it compulsory, but selecting various parts of the country in which it should be compulsory, and leaving out other parts. I cannot think that that is a satisfactory mode of legislation. I think that one of the most objectionable parts of the Bill is that in which an owner succeeding on the death of his predecessor is precluded from the enjoyment of his property until having paid the succession duty he shall also have paid the registration fees to the Court. There has been a great cry for some years now that it would be of great benefit to the country that all estates should be more divided, and that there should be more small owners of land. That has come about to a great extent, and there are a great many freeholders who own a very few acres of ground. I think it would be very hard upon those people to have to go to the expense of having plans made of their small estates and to have to come to the Registration Courts to register them. It must be remembered that landed property is in a very different state to what it was a few years ago. At that time many a speculator, many a man who, in commerce or trade, had made a fortune, was often found reducing a considerable portion of his income, and found pleasure in so doing, by investing his money in land and becoming the squire of the parish. I am sorry to say those times have passed. Investment in land now means ruinous loss; and if we are to add to that loss the other loss of going into this elaborate system of registration, we shall still further depreciate the value of land, because the whole cost of registration is to fall upon the purchaser. I am told by various 656 lawyers that this registration may be defeated by the old dodge or device of lease and release, and by various modes, which I need not describe to your Lordships, compliance with the Bill when it is compulsory may be defeated. There is one part of this Bill—namely, the fourth part—to which I wish to draw your Lordships' attention. I cannot help thinking that if it is desirable to do away with the Law of Primogeniture it should be done in a straightforward way. The present system, which goes back as far as William the Conqueror, and for anything I know beyond that, has worked well in this country, and it is one of the causes which have made this country flourishing; and I say, if you want to do away with it now, bring a proper measure forward, and let us thrush it out; but to do that by a side-wind—by a clause in a Bill which has nothing to do with the subject—is, to my mind, not worthy-of your Lordships' House. Without detaining your Lordships further I will move the rejection of the Bill.
Amendment moved, to leave out "now" and add at the end of the Motion "this day three months."—(The Duke of Beaufort.)
THE MARQUESS OF BATH
I trust your Lordships will forgive me for interposing at this moment, immediately after the noble Duke has sat down, to answer a few observations made by the noble and learned Lord on the Woolsack. The noble and learned Lord seemed rather to charge those who had been parties to bringing this subject before your Lordships, and asking you to refuse to give the Bill a Third Reading, with unfair conduct towards him in that respect. It will be in the recollection of the House that the Bill was moved last year, and it passed a second Reading without a division (I think even without any discussion, but of that I am not sure) on the understanding that it should be referred to a Select Committtee; and, as your Lordships are aware, when an understanding of that sort is arrived at, it is not usual to raise a strong opposition to the Second Reading of a measurer but the opponents of it are disposed to wait till they see the form in which the Bill comes out of the Select Committee before raising any serious oppo- 657 sition to it. The Bill only partially got through the Select Committee last year. It was moved again this year, and passed a Second Reading. The fact that the opponents of the Bill allowed the Second Reading to pass this year, without a Division and without even a discussion, was simply an ordinary act of courtesy on their part, which is usual on all occasions in this House when a Bill is passing through a Select Committee. After the Bill passed through the Select Committee, a noble Friend of mine spoke to the noble and learned Lord, and pressed him not to take the Third Reading of the Bill before Whitsuntide; and the noble and learned Lord then, as I understand, agreed not to take the Third Reading of the Bill till after Whitsuntide, if the opponents of the Bill raised no opposition to it in Committee; and as we were quite satisfied with the proposal of the noble and learned Lord to raise whatever opposition we should raise to the measure on the Third Reading, we were quite ready to allow it to pass through Committee without any opposition. So far with regard to any complaint of surprise upon the subject. The noble and learned Lord knew perfectly well that the Bill would be opposed upon the Third Reading. Then, the noble and learned Lord complains that we should move the total rejection of the Bill instead of bringing forward Amendments to it. I do not know what line of argument the noble and learned Lord would adopt in this House; but certainly in the Committee, when any serious Amendment was proposed upon any clause of the Bill, we were almost invariably met with the answer that that particular clause was a necessary part of the Bill, and that if it was struck out or amended in the form proposed it would necessitate the re-commitment of the whole Bill. I have no doubt that if an Amendment had been moved at this stage to omit Part 4 we should have been told that Part 4 was a necessary part of the whole measure, and that the throwing out of Part 4, apart from the merits of the question itself, would involve the re-commitment of the whole Bill. My Lords, we are all in favour of making the transfer of land as easy and as cheap as possible. It is to our interest to do so; but the question is, Does this Bill do it? Just let me 658 ask the House to consider that matter. In addition to all the difficulties and all the embarrassments which attend the present mode of transfer of land, you would have the further difficulty and the further embarrassment of appearing in a Government Office to obtain the consent of the Government Office; and both the vendor and purchaser would have to wait the convenience of some Government official before the sale could be completed. At the present moment it is a mere matter between the solicitors, and if anybody is dissatisfied with his solicitor, and with the progress that is being made, he can take the business elsewhere and put it in the hands of another solicitor, who will proceed with the matter more quickly. But if this Bill passes we shall, all of us, in every transaction of the kind be entirely at the mercy of a Government official. Now as to the cost. The noble and learned Lord pointed out that the cost of registration would not be very large. Well, I do not know about that. Just see with what you are going to saddle the country. You are going under this Bill to saddle the country with the cost of an Insurance fund which does not exist at the present moment—a fund to ensure against the blunders caused by the incapacity of the Registrar or the Board of Land Transfer. You are going to saddle the country—perhaps I ought rather to say the land—with an expensive staff who will acquire vested interests, and who will require compensation, whether hereafter this measure proves successful or not. In the initiatory proceeding, that is to say in the first registration of any land, you have to produce maps and descriptions very much the same as you have to produce them in the case of sales by auction. Just consider what the expense of that would be. Then, you will not get rid of your friend the solicitor after all. We should, all of us, like to reduce the solicitors' charges, but you must employ solicitors or agents. And I would call the attention of the House to the fact that the great objection that the solicitors have taken to this measure is not the reduction of charges, but the practice of allowing agents, that is to say persons not professionally qualified, to do solicitors' work. Now it does not signify to us whether we pay 659 an agent or whether we pay a solicitor; it is equally burdensome in either case, and if this Bill passes you still will have to employ a solicitor to make the arrangements between the parties, to make the application to the Registrar, and to investigate the Register to see what charges there may be upon the land, and so forth. Consols are, and always will be, easier and cheaper to transfer than land, yet nobody purchases or sells Consols except through a proper broker; and do not imagine that by this Act you will get rid of your solicitor. The fact is, this Bill will effect very little saving in the disposal of registered land, and it will impose upon the present generation of proprietors an enormous burden in order to register their land in the first instance. What we object to this measure are the compulsory clauses of it. Why should compulsory clauses be introduced? If this land registration scheme is likely to benefit the land, and to facilitate the transfer of land—and there are but few owners who do not wish to see the trans for of land facilitated—if this Bill would effect that, there is no reason to make it compulsory, because every landowner will rush in and take advantage of it. Just look at the compulsory part of the Bill. It is compulsory in all districts which have been proclaimed by the Privy Council. The registration of land is to be compulsory in every case of transfer by sale or by settlement, and in every case of a successor succeeding to a landed estate and r the will of a predecessor it is compulsory upon him to pay the cost soft he registration. Whether he may wish to sell or not, whether he may wish to register or not, he is at any rate to be saddled with the cost of registration. A man comes into an estate, and, in addition to Succession Duty, in addition to all the burdens that he has to bear, and the charges he has to pay at that particular moment (and he is probably fortunate indeed if he can get half a year's income out of the first twelve month's tenure of the estate), he is saddled with the charges of registration, although he may not have any wish to sell any part of the property. Then just see how it will work in the case of small proprietors. As to large proprietors the objections will not be sc great; but to small proprietors the cost 660 will be absolutely prohibitory of sales. It is a mistake to suppose that these sales are very expensive matters now. I have bought land myself, and the whole charge I had to pay (it was a very small property, it is true) was about £2 18s., including my solicitor's fees. Where there is a good title, easily traced, the sales can be effected at a cost, so far as the conveyance is concerned, of about £1, or a very little more. Then, my Lords, if this Bill is of very small advantage to persons desiring to sell, and of very little good in facilitating land transfer, it really will destroy to an enormous extent the present security of landed property. At the present moment the principle practically prevails of caveat emptor, and it is the business of the purchaser to see that he gets a good title to the land he is purchasing; but if this measure passes we shall all be at the mercy of the stupidity and blunders of the Registrar, or of some official at the Land Transfer Office, and there is practically very little appeal. From the decision of the Registrar there is an appeal only to the County Court in some cases, and to a single Judge, who is to be appointed by the Lord Chancellor, in other cases. It is perfectly possible that there may be two applicants to be entered upon the Register. The question may involve the title to a whole estate. It may be a question involving the most difficult and intricate questions of law upon which it would be necessary for the highest and ablest tribunal to pronounce. Yet there is no appeal from the decision of the Registrar except to the County Court, or to a single Judge appointed by the Lord Chancellor, whose decisions are to be final. Then not only is land unsafe by this Bill, but charges on land are also rendered unsafe. You cannot register a trust, and trusts are only protected by cautions and inhibitions. I will not take your Lordships through this part of the Bill in detail; but if you will look at it you will see how illusory even these protections are. For instance, a trustee is bound to enter a caution with regard to his trust. Your Lordships will recollect that only the life owner can be registered. The trustees who represent probably a much larger interest can only be protected by a caution. If the life owner wishes to deal with the estate the cautioner 661 may be called on to give security for any damage that may arise from the delay which his caution or objection may cause. That will be a direct discouragement to trustees doing their duty with regard to their trusts. But the caution itself is absolutely valueless, because notices have to be sent. The cautioner is to give an address within the United Kingdom, and if be does not put in an appearance within the prescribed time his rights and his powers are set aside. Further, there is a provision in the Bill that a purchaser for valuable consideration shall not be responsible for the omission to send any of these notices. My Lords, I have done with that part of the Bill. I now only want to say a few words with regard to the other parts. There is one clause in the Bill to which your Lordships' attention ought particularly to have been directed. The matter was raised in Committee, but with very little effect—I refer to Clause 74. At the present moment any person succeeding to an estate under a will takes possession of the landed estate on the death of the owner, the moment the breath is out of his body. By the Bill, as proposed by the noble and learned Lord, that estate—instead of going immediately to the successor—becomes vested in the executors. Now, so far as that provision affects personalty, there would be nothing to be said against it, because money standing in the funds or in railway shares, and so forth, would be in other people's hands, and practically all the executors would have to do in those cases would be to collect the money. But a landed estate is very different. The unfortunate owner may be kept out of his estate for a year at least, and possibly more. He is unable to occupy the house; he is unable to look after the estate; he is unable to exercise any of the rights or duties of ownership. It is in the hands of executors who possibly may be hostile to him, who certainly will be advised by a solicitor whose duties will be not towards the estate to be administered, but towards seeing that the executors whom he is advising incur no dangerous personal responsibility. On most estates there is always a difficult question with regard to the employment of labour, and most persons know that a certain amount of labour has to be employed on the estate which 662 is not commercially reproductive, but which in the interest of the estate, and everybody connected with it, it is desirable should be employed. But can the executors take that responsibility? Is it fair to let them do it; and is it fair, with respect to the owner, that they should be employing people at his expense practically without his consent, and when it is doubtful whether they have power to do so? Then, suppose that an estate is in the hands of executors for a year, and that in the course of the year one of the leases—perhaps a lease for 21 years—falls through; the owner is not in a position to renew it, and the executors, who have no interest whatever in the property, are the people who will have to decide as to the renewal or otherwise of the lease. Take another case. Suppose a tenant whose term is expiring while the executors are in control gives notice that he will only renew upon a reduction of rent, it would then be for the executors to decide whether it was a case of holding out for the old rent, and even allowing the tenant to leave, or whether a reduction should be made which might be perhaps ruinous in the result to the estate. That is one of the most important parts of this measure, and my Lords, it is one of the most dangerous. With regard to the general question of assimilating the law of succession in cases of intestacy in regard to real and personal property, if we are to have it, let us, as my noble Friend said, have it done openly, and in a proper Bill, and let it be well considered by the House and the country, and let us know what we are doing, instead of its being done by a sort of side wind—by clauses tacked on to a Land Transfer Bill. The noble and learned Lord alluded to the question of small owners. It is a very doubtful question whether the present law of intestacy is so unfair to small owners as the noble and learned Lord seems to think. What I should describe as the small owners may be divided into two classes—the artizans, who have gathered together a little money, and who have been able to purchase or build their own house, with perhaps a garden annexed to it, and the small proprietors, who own between five and 50 acres of land. As to the artizans, they are generally the most intelligent of their class, because the 663 most successful, and they make their wills. The small farmer makes his will much more frequently than perhaps the noble Lord supposes. I think you will find that in the great majority of those cases they do not leave their landed property, whether it is in the shape of a small farm or in the shape of a house, to be broken up and divided amongst the children. The fact is, the artisan who has built a house out of his own savings is perhaps as much attached to it, and as proud of it, as one of your Lordships may be of your own house, and he does not wish to see it sold at his death. They do not do, perhaps, what persons with larger property do: they do not leave everything to the eldest son. It is, perhaps, the youngest son who may get it, or the widow. To suppose that owners of houses of that class wish for a division amongst all the children is not at all correct, as is proved by the wills that the majority of them make. Another great objection to this measure, my Lords, is that you really have not got the whole of the measure before you. You have got the Bill; but there is matter left unsettled in this Bill for another Bill as large again. There are orders and directions which are left to the discretion of the Lord Chancellor, and which may be most important to people concerned in any way in the measure. It is a measure for giving to the noble and learned Lord on the Woolsack a registering power that I doubt whether any Lord Chancellor ever before possessed; and it places in his hands an amount of patronage in this Land Transfer Court that no Lord Chancellor has exercised probably since the original institution of that office.
§ * THE EARL OF SELBORNE
It is true, as the Lord Chancellor has said, that the principle of his Bill has been very frequently affirmed by the House. The subject is a difficult one, and no doubt it is not a bad thing that some time should be taken to endeavour to ensure a good scheme of this kind. But I think it would have been better, considering the nature of many of the objections which have been suggested, that some endeavour, at all events, should have been made to put forward those objections in detail at a time e hen they could conveniently have been dealt with. Now, I do not mean to detain your Lordships long. The Bill may be regarded 664 as consisting of two parts—not parts essentially necessary to each other, but (I think for good reasons) combined in this Bill. The first relates to the register; the second relates to some alterations in the law of property. I have a few words to say upon both. With regard to the register, the only real question is, whether it shall be made compulsory to the extent which is proposed in this Bill? I must say on that subject that I was a little surprised at the sort of objections which fell from the noble Marquess who last addressed the House. They were not what I should have expected from him. I do not think we hoard the greater number of them at all in the Select Committee. And, if I had been asked what my impression was as to what was likely to be the noble Marquess' view, I should have said that the noble Marquess would strongly object to that part of the Bill which relates to alterations in the law of property; but with regard to registration, I was not aware that the noble Marquess entertained those objections of which your Lordships have now heard.
THE MARQUESS OF BATH
The noble Earl will recollect that I was not on the Committee last year when that part of the Bill was under consideration.
§ * THE EARL OF SELBORNE
But in the present year all the clauses were again gone through, and anyone who objected to any of them had full opportunity of bringing forward any objections he might have. What was done last year had of course to be done, in one sense, over again. No doubt it is true that those who had nothing to object to the work of last year did not renew the discussions of the previous Session; but I should have thought that those who had anything to object to would at least have given opportunity in the Committee stage for the consideration of their suggestions. I wish to illustrate the value of a certain class of the objections of the noble Marquess by one or two observations. Amongst other great burdens which were to be put upon the country by this Bill there was the Insurance Fund to be formed. I think that those of your Lordships who heard that objection and have not studied the Bill are probably not aware that the Insurance Fund is to be formed by a charge of one farthing in the £1. That 665 is certainly no very serious burden upon any person who purchases or succeeds to an estate, and in a case where a man succeeds to a large estate, perhaps of the value of many thousands, or even millions, he may very well console himself with the enormous surplus which remains. Then, the noble Lord spoke of the system of caveats and inhibitions as no security against improper transfers on the Register. That is a system which has formed an essential part of all the Registration Acts already passed, and it was never objected to. The answer to that objection is that it is a system which has been for many years in operation, as to the many millions of public funds, which are as constantly made the subject of settlements as is land. You do not upon the register at the Bank of England put trusts or interests of that kind. You keep a simple register showing the legal title to the stock, and anyone taking under a settlement has to enter a caveat to protect himself. No transfer can he made without notice to him, and I suppose it has happened to many of your Lordships that you have received from the Bank that class of notices, and you are told that if you do not object to what is asked you need not take notice of it. If you do, then, you go to the proper Court, and obtain an inhibition. That system has worked inexpensively and well, and has answered every purpose. In regard to the first part of the Bill, it does not seem to me that there is any real substantial question raised except the question of compulsion, and I think that without compulsion, to the extent at least whirl the Bill proposes, we might as well give up the hope of any system of registration which would be useful to the country at large. If we cannot have a system which will by degrees be brought into general operation, and which will eventually result in simplifying titles to land, facilitating its transfer, and diminishing the expenses attending it for the people at large, for the entire country, for the great and small, who want to deal with land, then there will be little value in any other registration system. In every other country, so far as I know, where there is a register of landed estates, registration is compulsory; and beyond all question, if you do not mean it 666 to be compulsory, you must abandon the idea of effecting that simplification which has long been thought to be of importance. There are two things in regard to the transfer of land which give some real foundation for the outcry that we do not make land accessible generally to those who might otherwise be disposed to buy it in small parcels. There is, first, the enormous expense of making out the title, and, next, there is the much less considerable expense of instruments of conveyance. Now, when you get land upon the Register, you affect both, but in different ways. So far as relates to the instruments of conveyance, unless there be a settlement or something behind which will deal with things outside the registry—if you are content simply with the ordinary transfer of land, it cannot be doubted that a transfer upon the Register such as is proposed by this Bill would be the simplest thing in the world, and would cost next to nothing. There can be no doubt that the legislation of recent years has greatly diminished the ordinary expenses of Deeds and Conveyances; but in that respect much more will be done by this Bill. The most important thing of all, however, is the operation of the system in getting rid, in the course of time, of the expense of making out titles. I do not speak of cases of absolute title or qualified title which approach to the absolute, because the Bill is not compulsory in respect to them, and really in that respect makes no alteration in the existing law. But when you register a possessory title, the only thing necessary will be to prove that you are bonâ fide in possession, and to produce the conveyance, will, or settlement, under which you claim. As time rolls on, titles that were originally possessory will, on the register, become practically absolute, and the burden and expense of making out titles in the ordinary way will diminish every year and ultimately cease. But if there is anything in the world that can be demonstrated, it is that without compulsion on the occasion of sales we cannot accomplish that object; and with compulsion I believe it may be accomplished. With respect to the part of the Bill which I strongly suspect is the part to which the noble Marquess really objects, I mean the part which makes certain changes in the law of property. I 667 have never been one of those who hold the very strong opinions which are often expressed as to the evils of the law of settlement; and I confess that I have not always thought that there was any necessity for altering the law of inheritance. On such subjects something is to be said on both sides, and no man need be ashamed if he changes an opinion which he at one time entertained. By the Bill, in the case of intestacy, land is to pass like personalty. With the power of making a will that will hardly affect the larger and more important estates; but it may affect the smaller estates, because they are often held by persons who do not well understand the law as to wills, and who often omit to make wills. There has been a growing feeling in favour of that change. There really is more justice in an equal division on the part of the law—because the owner is left to do what he thinks right by a will—there really is more justice when the law has to regulate the succession to land in making it equal, and in providing for all the children, than in giving the whole estate the eldest son. That is the feeling which has been growing in the country, and I think it would be wise to give effect to it by this Bill. Then as to the clause which relates to executors, the noble Marquess knows that I participate, to some extent, in his objections to it, and that I voted against it more than once in the Committee. But it is considered necessary by many lawyers, both in order to facilitate the payment of debts when recourse must be had to the real estate, and to prevent a suspense of the registered title when there is any question as to the effect of a will. My own objections to it were much mitigated by the introduction of a clause enabling the executors, when they wish to be relieved from the responsibilities connected with sand, to assent to the registration of the beneficial owner at any time, even without being registered at all themselves, and by enabling the beneficial owner to insist upon a transfer to himself in every case at the end of one year, unless good cause can be shown to the contrary. And I do not think that the rights and duties of the beneficial owner would he interrupted in the meantime, in the way that the noble Marquess supposes. The Bill provides expresssly that the personal representatives of the 668 deceased owner, subject to the liabilities of the property, shall hold the real estate as trustees for the persons by law beneficially entitled thereto. They cannot keep the owner out of his house or his property, as the noble Marquess appears to suppose, unless they can show that for some good reason it is necessary to do so. Therefore, although I do not mean to say that I like this clause so well as the rest of the Bill, I should be sorry if your Lordships, after all that has passed, did not now send it to "another place," where, if there are serious objections felt to it, they will no doubt be duly considered. The only other important alteration of the law in that part of the Bill is where estates tail, as we call them, are turned into estates in fee simple. I myself think that the clause will not operate to the disadvantage of the owners of landed property. There will remain all the powers which are now possessed by the owners of personal estate, of leaseholds, money in the funds, and everything else; and experience has shown that those powers are amply sufficient for all the reasonable purposes of settlements. I shall be sorry to sea the power of making reasonable settlements on those occasions on which they are naturally made taken away, as to either land or personalty; but I think it is not necessary for the good of families, or for the public advantage, that land should be tied up longer than personalty can be. There are persons who would go much further than the Bill goes in the direction of interference with the power of settlement, and I am sure that neither landed property nor its owners will gain by the maintenance of unnecessary distinctions between real and personal property. I sincerely hope that your Lordships will pass the Bill
§ * EARL BEAUCHAMP
My Lords, the noble and learned Lord who last spoke altogether failed, in my opinion, to meet the objections raised to this measure by the noble Marquess. Of course, the executors cannot alienate the property or otherwise deal with it; but as a matter of fact, they can keep out of possession for a time the persons entitled to it. The noble and learned Earl gave what I must take leave to describe as a very remarkable examination of the observations of the noble Marquess with regard to expenses. The noble Marquess 669 contended, and I think with justice, that this Bill will entail great expenses upon the landed interest. What was the answer of the noble and learned Lord? He said the Insurance Fund is not to exceed more than a farthing in the £. Yes, but what will be the other fees? Has the noble and learned Lord ventured to from any estimate as to what the other expenses will be? If the provisions of the Bill are looked into, I do not think it will be found that the noble Marquess has taken at all an exaggerated view of the expense. We have heard estimates before now of expenses under various Bills. We were told that the Education Rate would never exceed 3d. in the £, and we know how that prophecy has failed. I decline to accept estimates so indefinite as those to which we have been treated by the noble Lord. What was the other observation that the noble and learned Lord made upon my noble Friend's speech? He told us that the system of caveat was a system in use with regard to the public funds and with regard to moneys passing every day. But your Lordships will remember that there is a very great difference between dealing with funds or railway shares and dealing with land. If you are defrauded of so much money, those who commit the fraud can be made to pay it back again; but if you are defrauded of land, very great injustice is done to you and those coming after you. The nature of land is altogether distinct from the nature of money. But, said the noble and learned Lord, the principle has been over and over again adopted by this House. Is that so? There was an occasion, in 1875, when the noble and learned Lord himself raised the question of compulsion, and your Lordships distinctly rejected it. The question was then precisely on all fours with the question raised in this Bill. Lord Cairns, in the year 1874, brought in a Bill in which he accepted the principle of compulsory registration of title in deference to the noble and learned Earl who had then preceded him; but when Lord Cairns fully examined the question, he found that the reasons against compulsory registration of title far outweighed the advantages to be gained front it, and Lord Cairns, in 1875, deliberately omitted from his Bill the principle of compulsory registration of 670 title to land. The noble and learned Lord opposite (Lord Selborne) raised the question in this House, a distinct issue was taken, and a distinct verdict was arrived at. Therefore, I say, that so far as the verdict of this House has been pronounced, it has been pronounced distinctly and unequivocally against the compulsory registration of title to land. I would venture to say something now in reference to what fell from the noble and learned Lord on the Woolsack with regard to the course of proceeding. I am not open to the charge of not having taken exception to this Bill. Last year, on the occasion of the Second Reading, I ventured to trouble your Lordships at some length with regard to my objections to part 4, and I shall not now repeat them; but at all events, I did raise those objections, and as the noble and learned Lord on the Woolsack says, part of them were raised before the Select Committee, and so far as regards the right of persons taking through lunatics and minors dying intestate, the Committee gave effect to the objection which I raised so far as existing settlements were affected; but when the question was raised with regard to lunatics and minors in the future, the noble Lord who had supported me up to that point informed me that as regarded the future, though he had drawn the clause, he was not himself prepared to support it. Under those circumstances, I did not see my way to pursue the subject further before the Select Committee. But, at the same time, I consider I am quite within my right in raising the question before your Lordships at the present moment. The noble and learned Lord on the Woolsack said he had been taken by surprise. Why, it is nearly a month ago since the first notice was given in this House. The moment the Bill had passed in Committee, notice was given that objection would be taken to the whole Bill on the Third Reading. Therefore, I fail to see how the noble and learned Lord can have been taken by surprise. I will not trouble your Lordships upon part 4, but I should like to say a word or two with regard to this question of compulsory registration. It is perfectly true, I frankly admit, that when the Committee were going through that part of the Bill, I was not so conversant with the matter 671 as I have been compelled by circumstances to become now; and I had then more confidence in the noble and learned Lord on the Woolsack than at the present moment, I am sorry to say, he enjoys. I then did not appreciate all the mischiefs that were lurking behind the question of compulsory registration, and I did not know the great authority which there was against it. The noble and learned Lord may take that admission for what it is worth. We are not all of us trained lawyers. But I wish your Lordships to consider this. The landed interest in this country does not exist for the sole purpose of affording subject-matter for a scientific system of the sale and transfer of land. The sale and transfer of estates forms but a very small part of the laws affecting land. The primary object of the land laws of this country is not that land should be bought and sold, but that a person should enjoy peaceably the land which belongs to him. The sale and transfer of land is a very small percentage of the transactions. There are questions of mortgages, there are settlements, there are charges of all sorts and kinds, and when, after all, you have succeeded in making a theoretically perfect system for the sale and transfer of land, if you attain that theoretically perfect system at the expense of great inconvenience and annoyance and delay and cost attaching to all the ordinary transactions of every-day life, you are buying very dearly, indeed, a theoretical advantage for which you get no adequate compensation. The interests of the land of this country, are of far more importance than satisfying the theories of pedants and fanatics with regard to the transfer of land. I take it that the object of the land laws of this country is the peaceable enjoyment of land, and not merely the facilitating of the transfer of land. I wish to remind your Lordships that in the year 1878.79 a very strong Committee of the House of Commons sat to inquire into the reasons why Lord Cairns' Act of 1875 had not proved popular and effective. That was a very strong Committee, which was composed of persons fully conversant with the matter and conversant with the ordinary transactions of everyday life affecting land, and it made a most valuable and im- 672 portant Report. Various persons gave evidence before that Committee, and amongst them was a noble Lord whom I do not see in his place (Lord Thring). Lord Thring said:—The only question is whether it is the province of the Legislature to compel a man to do with his own estate what he does not wish to do.That was the view that Lord Thring put in his evidence before the Committee with regard to the abstract propriety of the Legislature compelling a person to do with his property that which he does not want to do. Then, again, Mr. Howard Elphinstone gave evidence before that Committee. He said:—I may say as a matter of history that in England, whenever you passed an Act of Parliament to make people do something which they do not like to do they have never done it… If you tried it we should set our wits to work to evade it.I think, my Lords, that is the result of passing laws which are not in consonance with the real wishes of the people—that if you pass them they will evade them. I am rather surprised that after what has been said before we have now heard so little about Australia. The noble and learned Lord said just now, as I understood him, that in all other countries there was a compulsory system of registration, but I cannot endorse that observation. It is perfectly true that in Australia there is a compulsory system of registration; but it is not a compulsory system of registration of title; it is a compulsory system of registration of deeds. I will say something presently about the application of such a system to this country; but so far as Australia is concerned, it is a system which is, in its essence, a voluntary system. It is a system so consonant to the wishes of the people that the compulsion is not brought into use. There is no such thing as a compulsory system of registration of title in Australia; it is only that it has become so convenient to do it that everybody does it. But, my Lord, the circumstances of Australia are not at all to be compared with the circumstances of England. The Committee of the House of Commons to which I have referred with regard to Australia, took the evidence of Sir Robert Torrens, the author of the system, and the evidence of Sir Arthur Blyth, a person 673 most competent to give an opinion upon the subject, and they described the difference which existed between this country and Australia. In Australia you have a system of Crown grants, all of very recent dates; you have young titles; you have habits and customs of the people entirely different from our own. They look upon land as an article of commerce; they have not ancestral traditions or title deeds going back centuries as we have in this country, and yet, notwithstanding the difference between Australia and England, notwithstanding the advantages which the system in Australia gives to the landed interest, there the registration of title is not compulsory. I beg your Lordships to understand that it is the registration of deeds which is compulsory, and that is a most important distinction. The Committee of the House of Commons to which I have referred, which sat during two Sessions—1878 and 1879—made various recommendations for the improvement of Lord Cairns' Act. What do you find in the Report of the Committee? Did they recommend the compulsory registration of titles? No; I do not think any voice was raised in that Committee in support of such a proposal, and certainly it is not recommended in the Report. Nobody pretended that compulsory registration would be a panacea for Lord Cairns' Act. And that, I must remind your Lordships, was after the noble and learned Lord (Lord Selborne), who had always been a strong advocate for compulsion, bad raised the question in this House; and, therefore, it had been fully before this Committee of the House of Commons, and they deliberately refrained from recommending compulsory registration of title. Then, did they recommend so drastic an alteration of the laws of real property as that which is embodied in the Bill before us? No, they did nothing of the kind. There was a gentle hint to the effect that some such a scheme had been proposed, but they carefully refrained from making any such recommendation. Then did they propose any shadowy scheme which would invest the Lord Chancellor for the time being with not only a vast amount of patronage, but a vast amount of legislative power such as is reserved to him in this Bill? No, their recommendations were very different. One of 674 the first things, if not the first thing' that they recommended was the curtailment of conveyances, and that has been done. In the year 1881 Parliament passed an Act, at the instigation of Lord Cairns, which very greatly curtailed the length of conveyances, and simplified enormously the transfer of land. That was the practical recommendation of the House of Commons, and to that Parliament gave effect. They recommended further that there should be a representative of real property in the case of death. That is a matter which I will not pursue further, because it has been already adverted to by the noble and learned Lord, and although it is proposed by this Bill, it is not such a serious matter that I need trouble your Lordships upon it. Another practical recommendation which they made was the acceleration of the completion of the cadastral survey, and that has been done. Then another matter which they recommended was the establishment of district centres for the registration of assurances with proper indexes. Your Lordships will remember that the great cost of conveyancing, and the great bulk of the conveyances, is mainly due to the recitals of deeds; and, therefore, the system which was adopted in 1881, upon the recommendation of Lord Cairns, following out the Report of the Committee of the House of Commons, is one which must, generation after generation, hear increasing and additional fruit, and tend very much to diminish the cost of conveyancing, upon which so much stress has been laid. Those, my Lords, were the practical recommendations of the Committee of the House of Commons in the year 1879. There are 10 recommendations altogether, but I will not weary your Lordships by pursuing them. Yet, my Lords, what we are asked to do now is not merely to confirm and strengthen Lord Cairns' Acts of 1875 and 1881, but you are asked to introduce a system which he deliberately rejected. I think it is a great mistake to be always interfering with our landed system. If a gentleman has a new and ambitious gardener who is always desirous of investigating the growth of the roots which his predecessor planted, and was always digging them up for the purpose of investigation, or for the purpose of establishing some new system, you 675 would not find that his employer gained a very great profit by him, and I think we should do much better to leave the operation of Lord Cairns' Act, as improved and simplified by the Acts of 1831 and 1882, rather than indulge in an ambitious scheme for unsettling what is already done, and making a fresh departure. I should like to say something more with regard to the expenses under this Bill. Lord Cairns gave evidence before that Committee, and he said that he thought, assuming that the principle of compulsory registration were adopted, it would be quite impossible to do with less than 60 registration divisions. Think of that, my Lords—60 Land Courts all over the country That cannot be carried into effect without a staff of Registrars and officers of all kinds all over the country which must involve very considerable expense, and there is this further consideration—we have made great sacrifices to simplify county administration. We were told "Your Poor Law Authorities and your County Administration overlap," and yet now you are going to introduce an entirely new division into the country for the purpose of land transfer, and to add additional complications to those which already exist. I must say that it seems to me, after the legislation of last year with regard to the simplification of County Administration, it is rather strange to find the authors of this Bill introducing an entirely different system for the division of the country for legal purposes, for the registration of land titles, without any indication whatever as to the method of division which they propose to adopt. You may look the Bill through, and you will find no clue whatever to the manner in which the country is to be divided for this purpose. It is entirely to be done by Order in Council; and thus the system is not, in the first instance, to be compulsory. You are to have, by degrees, first one, and then another, district brought within the circle of compulsion. My Lords, I venture to think that the history of land law reform in this country is a very instructive one. Where those reforms have given effect to popular opinions which have been gradually growing, they have been gladly welcomed throughout the country; but I am convinced that if we introduce a new system which is alien to the wishes of 676 the people, you cannot expect that the legislation will bear good fruit. I ask the authors of this Bill, Have you confidence in this system or not? If you have confidence in your system, why is it necessary to compel everybody to come in? You have the example of Australia to show you that if you have a wise and proper system people will gladly come in, and it will in a very short time meet with universal adoption. If, on the other hand, you have not confidence in your system, what right have you to charge the landowners of the present generation with the enormous cost and inconvenience of the system which you propose? If you tell me it is for the good of posterity, then say posterity ought to pay. If it is for the good of the society at large that 30 years' hence titles should be simplified, I do not see why you should put the unfortunate owners of land at the present moment to the great burdens which the Bill would entail. Surely if you are doing it for the benefit of the community at large, the community at large ought to bear the cost. This is not a moment when the landed interest can voluntarily take upon itself a burden so great. I venture to think that if Lord Cairns, with his great sagacity, recoiled from making his system of registration compulsory, we cannot expect success at the hands of those who are now trying to string the bow of Ulysses. When we know that the mature judgment of Lord Cairns was against compulsory registration, I do not think we should be wise in now attempting to establish it. We have been told that this is a Bill coming from the hands of a Conservative Government, and that, therefore, we ought to accept it. My Lords, I think an argument of that kind comes too late. We who are engaged in painfully trying to lick into shape the frankly democratic measure known as the Local Self-Government Bill, and are now only beginning dimly to appreciate the large burden which it imposes upon the land, cannot blindly accept at the hands of Her Majesty's Government any measures they choose to propose without knowing what will be their exact effect. I decline to take this matter upon trust from Her Majesty's Government. I think it is the duty of your Lordships when a measure of this sort is submitted 677 to you to consider it carefully, and to ascertain whether it has been coined at Hatfield or at Brummagem. We are told that if we do not agree to this measure now, worse things are in store for us. I cannot accept that argument. It was used once very successfully by Sir Boyle Roche, when he said that he would sacrifice one-half or even the whole of his liberties in order to preserve the remainder; but I am not prepared to sacrifice the half simply because the loss of the remainder is threatened, and I do not see that it is wise or prudent for us to accept a measure which we believe in our hearts to be mischievous because it is for the convenience of Ministers or because it is feared something worse is coming. I should like to remind your Lordships, in conclusion, of some words used in this House in the year 1871:—After all, if we are only to exercise our authority by sacrificing our opinions, is it quite worth while to possess that authority at all?Those are the words of the Marquess of Salisbury, and I commend them to your Lordships' consideration. I heartily support the Motion of the noble Duke for the rejection of this Bill.
§ * VISCOUNT CRANBROOK
My Lords, I think the allusion which my noble Friend has made to the supposition that this Bill does not represent the opinions of my noble Friend behind me (the Marquess of Salisbury), but is forced upon him, may be passed by without further remark than to say that it is absolutely without foundation. Then my noble Friend says that the Bill would put burdens upon present landowners for some prospective benefit. In the main, the compulsory part of this Bill does not affect the present landowners because the provisions of the Bill as to the registration will only come into operation on a change of owners by succession, purchase, or otherwise; and, therefore, that part of the measure does not necessarily fall on the present generation, and, as a matter of fact, posterity will pay the cost of registration and not existing owners. I am not prepared to accept my noble Friend's definition of the position landed property in this country, or that legislation of this kind for the easy transfer of property is against the inte- 678 rests of the landowners, and that what we ought to be doing is simply to make them comfortable in the position which they hold. It is quite true that many men do wish to retain and enjoy very large quantities of land of their own, and there is no occasion for them to be apprehensive; but there are others who wish to have facilities to part with their property, and they ought to have those facilities.
§ * VISCOUNT CRANBROOK
My noble Friend says that the existing powers are ample, and he actually calls in aid the opinion of my noble Friend Lord Cairns. I should say that the opinion of Lord Cairns was quite the contrary to that which my noble Friend represents, because we must remember that Lord Cairns did introduce a measure for compulsory registration, and, although the current of opinion at that time induced him to withdraw it, we do not absolutely stand still in these matters; and no man who has seen the changes that have taken place with regard to the landed interest under the Settled Estates Act and other Acts can fail to recognize the advance that has been made. Suppose a man has only a possessory title, such a title held for twelve or twenty years practically gives him an absolute title, and one that cannot be interfered with. From that time forward all the conveyancing of that estate will, under this Bill, be settled practically by a mererecord on the register. And how small will be the registration fee in comparison with the advantage gained, and how small the insurance. This is not a question simply for landlords altogether, or for the smaller holders or any one else connected with landed property. It was to put landed property on such a footing that those who have the power and means should be able to buy without plunging into extravagant expenses for researches into title. It is for the interests of the country that the transference of land should be as easy as that of personal property, because it is important there should be a larger number of proprietors of land who should have a deeper interest in the stability and the institutions of the country; and I believe that by accepting this Bill your Lordships will be beginning a system which will go far 679 to accomplish an end so much to be desired.
THE EARL OF MILLTOWN
My Lords, if this Bill had been simply a Land Transfer Bill to facilitate the transfer of land, I certainly should not have opposed it; but, unfortunately, my noble Friend, for some reason or other which I cannot define, has thought proper to enshrine in the Bill a principle which is of the most revolutionary and dangerous character. Probably there is no Member of the Front Bench who was a Member of the House of Commons when Mr. Locke King almost annually brought forward his Bill for assimilating the law of real property to that of personal property in cases of intestacy who has not voted against that, while many must have spoken against it; and I confess it does seem to me a strange thing that, without any pressure from without or demand for it in the country, my noble and learned Friend on the Woolsack should initiate in the House of Lords a revolutionary change to which the House of Commons has never yet assented. The object of those who advocate the assimilation of the law of real property to that of personal property is an obvious one. It has ever been the pet project of the extreme Radical Party, and their object is plain. It must lead to the destruction of the landed gentry and eventually of this House. That proposition has always received the opposition of the greatest and most trustworthy statesmen of all Parties. You are asked to assimilate things which in their essence are totally dissimilar. There is no difficulty whatever in dividing money, but in dividing land you may seriously impair its value. This distinction has always been upheld by the law of England; and I will call your Lordships' attention to what was said upon this subject by Mr. Disraeli, then the Leader of the Conservative Party in the House of Commons. On one occasion, when he, in common with the whole of the great Party of the day, was opposing one of Mr. Locke King's Bills, he said—It might be the opinion of some honourable Gentleman that there ought not to be any difference in the law between real and personal property. But one thing was quite clear, the law of England does acknowledge such a difference. He confessed he had himself a very strong opinion upon it. He thought that there ought to be a difference very much between real and 680 personal property. The whole of our social system was built up upon that difference, and the Constitution of this country mainly depended upon the recognition of that principle.A Division ensued upon the Bill and the result was, for the Motion 82; against, 203; and amongst those who voted against it were found such names as Sir William Molesworth, Lord Palmerston, and Lord John Russell, and also—a name which may perhaps, carry conviction to some noble Lords opposite—Mr. Gladstone. Now, my Lords, the law of this country has settled that in case of intestacy personal property shall be divided in a certain manner. The law has done for a man who dies intestate that which it is supposed a reasonably just and fair man would have done for himself if he had made a will; and, therefore, it has divided the personal property in the manner which is well known. Otherwise with real property, because no just or wise man would order his landed estate to be divided. Yesterday I went into the Library of your Lordships' House and I took up at haphazard two volumes of Hansard. I find that on March 15th, 1855, the then Solicitor General, Sir Richard Bothell, said—One hon. Gentleman said that the greater part of the large estates went by the law of entail; but of the law were altered what became of the principle upon which our settlements were founded and maintained? Would the great settlements of the country be permitted to remain if the law of primogeniture were taken away? The hon. Gentleman who brought forward the measure knew that, should they abolish the law with respect to the succession of the eldest son, the whole principle and form of arranging settlements, and the foundation on which the order of estates was fixed, would fall, and they would have nothing more than estates divided indefinitely, to the great disadvantage of the country, economically, socially, and, he would hold, agriculturally.That is not the only opinion that I found in this debate to the same effect. I read the speech of Sir George Cornwall Lewis, who said:—The effect would be to extinguish the class of persons who were denominated heirs. There would be no such thing as inheritance. No person would hereafter be heir to landed property. That, be apprehended, would clearly be the effect of the Bill. Under the present system the younger children could have no reason for complaining of injustice or partiality on the part of their parents. But if this Bill became law the feeling would be entirely inverted. A person who made a marriage settlement according to 681 the present system of marriage settlements, would be robbing the younger children of the rights which the Common Law would give them.There was a Division on that occasion, and the result was, for the motion, 76; against, 271; majority, 195. Then, my Lords, it will be said this will not matter much, because every man may make a will. I recollect my noble Friend the Prime Minister two years ago said this is really a Bill to compel everybody to make his will. You cannot compel a man to make a will by Act of Parliament, any more than you can make him sober or moral. On this point I would like to read what Sir Frederick Thesiger, afterwards Lord Chelmsford, said in the House of Commons, on the 8th of March, 1854:—He had heard it said, 'There can be no harm in it, because there is nothing to prevent a person from making a will, by which he can obviate the distribution of his property.' Now he did not think it was a good course of legislation to pass laws because they could do no harm. He thought it was very desirable, when a mischief was to be remedied, or an improvement was to be made, that a law for such a purpose should be passed; but he could not agree with such a principle as that which had been alluded to with regard to the law of succession. It was very true persons might obviate the operation of the law by disposing of their property by will; but if they did not, that which he thought an objectionable principle would come into operation, and thus at once an effect produced, which was contrary to the institutions of the country, and contrary to the laws, and had been considered prejudicial in the course of our history.My Lords, I shall oppose this Bill with very great reluctance for many reasons, but without the slightest doubt as to the propriety of my vote. It is our duty to vote without any fear of the consequences. If your Lordships think that the objections which are urged are without foundation, then the Bill should be passed; if, on the other hand, you consider that it will be pledging the House to a mischievous principle, if you consider that it is such a Bill as you would not have looked at if it had come from the opposite side of the House, then your Lordships, in my opinion, have but one duty, and that is to reject it.
§ LORD HERSCHELL
My Lords, I am not going to enter into any elaborate argument as to whether the law of succession ought to remain as at present, or whether the devolution of personalty 682 should be assimilated to the devolution of realty. I do not myself believe that it is a question of such enormous importance as the noble Lord has suggested. Neither do I believe it will revolutionize the dealings in land in this country. The noble Lord has quoted with approval a statement that if the law were altered landowners would cease to leave their estates to their eldest sons, and that they would feel it harsh and monstrous to do so, seeing that the law had provided another distribution in the case of real estate. Now, I believe that there would be ample inducements still to those who could properly do so to leave their estates undivided. The owner of an estate who could make proper provision for the rest of his children would not feel that he would commit any wrong in leaving his estate to his eldest son, and so preserving it intact. Landowners who cannot make proper provision ought not to do so, I admit; but in all cases in which it can be properly done, I cannot conceive that there would be any reason owing to the change of the law why it should not be done. Though the law regulates the distribution of personal property in the case of those dying intestate, it is by no means the universal practice of testators when they deal with their personalty to distribute it precisely as the law would distribute it in case of intestacy; and I cannot suppose that that freedom of disposition which prevails in case of personalty would cease to prevail in cases of realty. I myself believe that there are a great many cases in which the operation of the law as at present existing works injustice. A great number of small owners of land do not make wills—In the case of proprietors of large estates, where there is an object in keeping the estate together, wills are made, or the result is secured by settlement, and therefore I do not believe, in the case of large estates, that the alteration of the law would have any sensible effect; but in the case of small properties it would have an effect, and I think it ought to have an effect. Now, I turn for a moment to another part of the case. If I thought that this Bill would really impose serious burdens on the landowners of the country, I should say that a very strong case indeed had been made out against it. But I have never been able to see how the cost of 683 the serious burdens it would impose is calculated. Two attacks have been made on the Bill from opposite quarters. The landowners are afraid of the operation of the measure because of the great burden it would impose upon them; but I have also read in a legal periodical the most alarmist statements about the effect it was going to produce on country solicitors. According to this periodical a large proportion of country solicitors would be ruined by the Bill. No doubt that would be a very lamentable thing; but if that is going to occur it is difficult to see how it can occur without somebody benefiting. If the country solicitors are to be ruined it must be by the money which is now going into their pockets remaining in the pockets of the landowners. That seems to be the general result. That is my answer to the contention that if the system is so good it might be left voluntary. Again, while not making the slightest imputation on the honour and uprightness of the solicitors, I would suggest that those who, it is alleged, would be likely to suffer by the adoption of the system would not be the most impartial advisers, however impartial they might desire to be, as to whether the law should remain as it is at present. Further, I would say that people are very apt to continue in an old and accustomed course, even if a newer one were more convenient and beneficial; and this is why the system should not be merely voluntary. The noble Earl opposite (Earl Beauchamp) said that in Australia the system is not compulsory; but practically, according to the noble Earl's own statement, it seems to me that this is not the case. There is no compulsory registration of titles; but there is a compulsory registration of deeds, which is so much more objectionable that every one registers the titles. I call that compulsion, and a very inconvenient form of compulsion. Now, one word as to the extent of these burdens. All the Bill requires is the registration of titles, which is a matter that ought not to involve any serious expense. Registration is only compulsory in the case of sale, when the expense falls upon the purchaser, or upon succession; so that existing owners need not register at all. No doubt in the case of succession it does exercise a certain amount of compulsion—that is to say, on the next successor 684 to the estate. But I have been looking at this question of fees, and I find that on an estate of the value of £200,000 the fees payable would be about £50 or £60. It has been urged that the successor might never desire to sell, and so would not derive any advantage from the registration. But such persons often desire to mortgage, and when the land is once on the register mortgage will become a cheaper and cheaper operation. This, I venture to think, is a great benefit, which is worth securing by any landowner believe most strongly that the landowners will find it for their advantage to have their lands on the register; and when once you have the register established and in operation, not only the selling but the whole operation of charging or mortgaging will be simpler and cheaper than it can be now. Nobody can be more conscious of the enormous difficulty of the subject than those who served during 18 months upon the Select Committee to which this Bill was referred. I do not for a moment say that it may not have its blemishes and defects; I think it almost certainly has; but it will go elsewhere and be considered by others, and every flaw in it is likely to be discovered before it finally passes into law. But I should regret that your Lordships should put a summary end to the measure now before you, because I believe that it will be done under a mistaken apprehension, and that those who now oppose it would find that in the end it would be to their own advantage.
§ * THE MARQUESS OF SALISBURY
Before your Lordships go to a division I should wish to say a few words in support of the doctrine laid down by my noble Friend behind me—that your Lordships should not use your authority except in support of your own opinions. My tear is, from the peculiar use which has been made of the forms of the House, that there is a very great danger of your Lordships voting on this Bill for that which will not be your own opinions. I do not know whether your Lordships have noticed that the speeches made against this Bill have boon a succession of speeches in Committee They have been speeches against particular features of this Bill, which could have been struck out of it without affecting its essential principle or the 685 operation of its machinery. My noble Friend behind me devoted the whole of his speech to one clause of the Bill—an important clause, I do not dispute, and one upon which opinions may differ, but one which could have been struck out without seriously impeding the operation of the rest of the Bill. On that ground he proposed to reject the Bill. In the same way, earlier in the debate, the grounds urged against the Bill were not grounds levelled at its principle, were not grounds denying the beneficence of its objects, but grounds of detail, such as objections to expense and machinery, which ought to have been urged and discussed in Committee. In regard to the question of expense, I will not go over the ground so ably traversed by the noble and learned Lords opposite; but I wish to give your Lordships some figures, which have been given to me on very good authority, as to what has been the actual expense of the machinery now existing, which will be the same machinery as that to be employed under the Bill—the machinery of the Act of 1875. My noble Friend (Lord Selborne) stated that the insurance could not be more than one farthing in the £; and, in reply, it was said that besides the insurance there was the question of office expenses, which would be enormous. I have a list here, which has been estimated, and in a great proportion of cases ascertained, of the office expenses of obtaining a possessory title. I entreat your Lordships to remember that this is a Bill for securing that possessory title shall be obtained. Indeed, I almost regret that other titles are mentioned in the Bill, because it gives people the notion that their title deeds will have to be brought under the consideration of the registrar. All that the Bill makes compulsory is that when ownership is changed a possessory title shall be obtained. That means nothing more than the registration of the Ordnance map, showing what land is in each case actually held. Well, this is the expense which it has been ascertained by experiment is imposed upon the landowner who comes into possession by succession or by transfer, and who is compelled to obtain a possessory title. If the value of the property is £2,400, £3 10s. would have to be paid to the office, and 14s. for the map. This is not theory, but practice; 686 it has actually been done. If the estate were valued at £4,000, £4 would be paid to the office, and £2 4s fur the map. If the estate were valued at £27,000, £11 5s. would be paid to the office and £2 4s. for the map. If the estate were valued at £30,000, £12 would be paid to the office, and £1 6s. 6d. for the map. I am entitled, therefore, to say that this idea of vast expenditure involved by the necessity, on the change of ownership, whether by succession or transfer, of registering for the possessory title, is the most baseless legend ever devised. Then, I contend that these things ought to have been brought forward in the Committee. It is a great inconvenience in a debate when you have to turn first to one small detail and then to another, and never deal with the principle of the Bill as a whole. And why have we not had the advantage of discussing these objections where they ought to have been discussed, in Committee on the Bill? It appears that it is on account of the overflowing courtesy of the opponents of the Bill. Their courtesy was so irrepressible that it has burst from the pores of their skin at every step. They have said nothing of their objections to the Bill on the Second Reading through sheer courtesy; and when the Bill came out of the Select Committee through sheer courtesy they stayed their objections on the Report stage of the Bill. But this courtesy vanishes on the Third Reading, when they hope that by combining all these small objections they may gather together a sufficient number of objectors to destroy the principle of the Bill. I think that it is a very great misfortune that the House has not had the opportunity of examining in detail any Amendments which might be suggested, not only in the Select Committee, but by those outside the Select Committee who have studied the Bill And I propose, if the Bill should pass, that we should defer the further proceedings for a week, in order that any Amendments which noble Lords have to any of the parts of the Bill may be put down and discussed in detail. That will enable us to deal with objections to detail where they ought to be dealt with—each on each detail, and not sentence the whole principle of the Bill to extinction because a particular detail is objected to. My Lords, I 687 would earnestly press on the House that it is undertaking a very serious responsibility to negative the whole principle of the Bill. The object of the Bill is to make cheaper the transfer of land, to remove the greatest cause of expense which no w exists in reference to the transfer of land. My noble Friend (Earl Beauchamp) made an observation, if I caught it rightly, that the business of the law is to provide not for the sale of land, but for the enjoyment of land. That is a very pleasant doctrine to those who are enjoying land; but I am not sure that it is equally pleasant for those who wish to enjoy it.
§ * THE MARQUESS OF SALISBURY
"The peaceable enjoyment"—I suppose that is undisturbed by any buyer. I agree that there are large estates that have been held in the same families for a considerable length of time, and which are not likely to be changed. But there is in this country an enormous amount of land which is subject to the ordinary operation of purchase and sale, the value of which is depressed if you load its sale and purchase with undue expenses, and the value of which will be raised if you make that operation cheaper. I am speaking now principally of towns; and when you consider all the advantages to trade, to health, to the happiness of the people, of making all the operations which owners wish to perform with respect to their lands cheap and easy, I am sure your Lordships will not assent to the noble Earl's view that the law has nothing to look to except providing for the peaceable enjoyment of land. If you reject this Bill on account of those accumulated small objections which ought to have been urged in Committee, and which may yet be urged at a future stage of the measure—if you reject the Bill, you say that as far as you are concerned, there shall be no cheapening of the transfer of land. I know that noble Lords say they are enthusiastic about cheapening the transfer of land, and that they would support it; but your action must be judged, not by your words, but by your deeds. In voting against the Bill at this stage you are voting against the essential principle of the Bill. That is undoubtedly the law 688 and practice of Parliament, and no other interpretation whatever can be placed on the action you take. And just consider the grave inconveniences of that result. To us it will be a very great disappointment. We have, from the first period of our political existence, put forward the desire to cheapen the process of transferring land as a matter to which we attached the greatest importance. I remember four years ago urging it very strongly. The Bill of my noble and learned Friend was prepared, and I think it was introduced, though I am not quite certain, four years ago. At all events, it was introduced very shortly afterwards; and, of course, by a decision given against the principle of the Bill on the Third Reading you practically say that this Government shall riot introduce a Land Transfer Bill to the House of Lords again. My noble Friend behind me dwelt much upon the freedom of the House of Lords from any controlling authority, and upon the absence of any necessity on their part to defer to the opinions of any constituency. I quite admit the position of power which that gives you m respect to a Bill of this kind. If we were defeated on a Bill of this kind in the other House there would be a remedy open. There is no remedy if we are defeated here. But with great power comes great responsibility. We are presenting to you a measure which we believe will conduce largely to the happiness of the people of this country, and largely also to the prosperity of the owners of land—which we believe will remove one of the greatest causes of odium from our present landed system, the one that most threatens its existence. We earnestly ask you not to take from us the power of carrying this beneficial reform into law, and not to place on this House the ominous responsibility of standing between the people of England and this great advantage.
§ THE DUKE OF MARLBOROUGH
Although the hour is so late I would ask your Lordships' permission to say a few words not upon the details of the Bill, but merely to register a protest on the part of those who, while approving of the principle of land transfer, absolutely and totally object to having this Bill forced down our throats. The noble Marquess, as I understand him, described the opposition which has been raised to this Bill as a factious opposition.
§ THE DUKE OF MARLBOROUGH
The noble Marquess said that the objections which have been brought forward might have been advanced on the Committee stage, and that it is extremely difficult to answer piecemeal objections on the Third Reading. Well, this measure has been objected to on many grounds by persons who are perfectly prepared to accept Land Transfer on reasonable principles; but we are not prepared to accept this Land Transfer Bill of the Lord Chancellor, which leaves the whole working of the measure and all the patronage under it in his own hands, and which leaves the whole thing in entire and total chaos. I am not going to occupy the time of your Lordships; but I may say that in 1885 I brought in a Bill embodying the whole principle of land transfer, and I took the trouble, so far as my abilities allowed me, to put the matter before your Lordships in very great detail. The noble Marquess also was kind enough to take notice of it, and before we go to a Division, after the impressive words which he has delivered on the grave importance of this House putting aside this measure, I must take leave to read the remarks which the noble Marquess himself made on the subject of land transfer generally. The noble Marquess on that occasion said—It appears that the noble and learned Lord opposite (Lord 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 a 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.Now, as we are going to a Division, I think it is of importance to those who oppose this Bill that we should have the full benefit of the views of the noble Marquess, not only as expressed on the present occasion, but as expressed on the very 690 minor and unimportant occasion when I ventured to lay my Bill on land transfer on the Table of this House.
§ On Question whether the word "now" stand part of the Question, their Lordships divided.
§ Contents, 113; Not Contents 104;
§ Resolved in the affirmative.
§ Bill read 3a accordingly, and to be further proceeded with on Thursday, the 4th of July.
§ House adjourned at ten minutes to Eight o'clock till Thursday, a quarter past Ten o'clock.