« PreviousContinue »
making explanations, and he can have no legitimate interest to withhold them. Our practice of taking declarations in private is based on this assumption. One can see a principle for utterly refusing to receive a prisoner’s statement. But having agreed to receive it—and to submit it to a jury —is it, I ask, anything but the merest prejudice which prompts us to offer it to the jury in the form of a weak dilution, instead of presenting them with the unadulterated article as it falls from the lips of the prisoner himself.
The Code prepared by the Criminal Law Commissioners offers what, to my thinking, is an unsatisfactory compromise of the question. The proposal is that the accused person should be entitled to tender himself for examination, and should be subject to cross-examination by the prosecutor, but that the prosecutor should not be entitled to examine the accused in the first instance. This is in effect giving an option to the prisoner—not only as to whether he should answer the questions, but as to whether any questions shall be put to him. I see no reason why the feelings of an accused person should be consulted to this extent. It is matter of notoriety that most persons who enter the dock find their way there from some indiscretion of their own, but even if this was not generally true, why should any defendant, guilty or innocent, object to being asked by the prosecution for an explanation of his conduct. That prisoners on trial cannot by physical force be compelled to answer, I grant. But are we, therefore, to accord them the courtesies of war, and to say, in effect, ‘ Gentlemen of the guard, fire first P ’ There is to my mind something unreal and almost fantastic in the distinction of making a prisoner competent, but not compellable, to submit himself to examination. Such as they are, however, I do not quarrel with these clauses of the Code, because I am convinced that before they have been a year in operation the inutility of the distinction will be apparent to every one, and that the examination of prisoners will be placed by an amending Act on the same footing as the examination of defendants in civil actions. Among the subjects proposed for discussion at the present Congress the council has chosen one which should be especially interesting to Scotch jurists—the establishment of a compulsory system of registrable titles to land. In one sense the subject is of universal interest, because every one who is not already a proprietor of landed estate expects to become a proprietor some day, at least to the extent of owning the house he lives in. This much may safely be said in favour of land registration, that no country which has had experience of the system would desire to renounce it, or to adopt a system u-nder which the validity of a purchaser's title should depend on the same conditions as the occupation of a hostile territory, confidence in the good faith of the grantor coming in aid of an inefiicient espionage into his character and proceedings. In this part of the kingdom we can hardly realise the existence across the border of such a thing as a title to an estate consisting of an unofficial record of the family history and pecuniary transactions of all its owners during a period varying from twelve to thirty years. Our records no doubt furnish the same species of facts, sales, mortgages, succession, depending on wills and contracts, or on deaths, marriages, and births. But these facts are supplied to the other party without application, and in a form which disarms the inquiry into family history of everything that might be deemed offensive and inquisitorial. A title by registration has, moreover, the great advantage of certainty. N0 unregistered and latent deed can prevail against the title of a purchaser or mortgagee. It cannot even be said that claimants under prior titles are injured by this rule, because the existence of the rule compels every grantee or mortgagee to register as a matter of course. One no more expects to hear of an unregistered title to land than of a verbal title to land, and the case of the unregistered owner, which has been supposed to be an obstacle to the introduction of the system, is one which under the Scotch practice really never occurs.
The efficiency of our land registers was, within my recollection, very much impaired by imperfections in the mode of indexing the registers, and the consequent difficulty and cost in obtaining a search or inventory of all the deeds affecting a particular property. These imperfections are now in course of being removed by the introduction of the system in use in the Australian Colonies, by which all deeds relating to the same estate or building are entered consecutively in the Index as they are brought in for registration, with a reference to the volume and page in which the documents may be found recorded at length. Our English friends, if I may venture to say so, have cultivated a respectful and distant regard for our system of registration of land titles, but have stopped short of what has been termed the sincerest fiattery——imitation. Two attempts have been made to introduce registration, both I am sorry to say, vitiated by the taint of the ‘permissive’ element. A law which the state approves, but permits its subjects to disapprove, which is obligatory on the legislature, but which the person affected may treat with contempt, is, I venture to think, worse than useless. It is in many cases a positive hindrance to efficient legislation. It is always and necessarily a failure, viewed as a means to an object, and the worst of it is that the impression of failure is liable to be transferred to the object itself in the estimation of the public, who do not always consider that a measure cannot be said to have failed if it has never been properly tried.
I do not wish to underrate the difficulties incident to the establishment of a general land registration system in England. But I would respectfully suggest that instead of merely maintaining an office open to the whole kingdom, but which no one uses, it might be worth while to introduce compulsory registration over limited areas, and to extend its operation gradually. You have an excellent registration system in operation in Middlesex and Yorkshire. Why not make these the centres, and expanding from these centres, take in a county each year until the entire area of England and Wales is scheduled in the registrar’s books, and the title to an estate or an acre of land is as certain and as easily ascertained as the title to an allotment of stock? The system can only be introduced gradually, because you have not a staff of competent registrars to begin with, and men must be trained by working at the register of one county, and transferred to others after they have learned their business. Such has been the experience of the Scotch department when introducing the new system of indexing to which I have referred. Although this was nothing more than an obvious improvement on an established system, the greatest caution was used in extending it county by county, with the aid of skilled clerks regularly trained to this description of work.
The great obstacle to the introduction of compulsory registration in England is the apprehended immediate addition to costs of title. Solicitors say that their clients would object to the cost of a registration which would not become effective as the foundation of ‘a new title, until it had been followed by twenty years possession, while meanwhile they had to pay the cost of investigation under the old method. If there is any substance in the objection it would, I think, be completly obviated by the state undertaking to register the first deed applicable to any given estate free of charge. The abstract upon‘ which the first registered title was settled would be available to subsequent purchasers and mortgagees and would be complete up to date, and the register being compulsory would come in place of a continuation of the abstract for all transactions
subsequent to the first. The registers, if begun on a moderate scale and extended to realty as I have proposed, would become self-supporting after the lapse of two or three years.
While the subject announced by your Council for special discussion is that of Land Registration, I can hardly doubt that the larger subject of Land Tenure will find a place in the deliberations of this department. I must refrain from entering on questions which to me are of the deepest interest, remembering that the business of an opening address is to indicate principles rather than to discuss problems. I shall confine myself here to the statement of one principle of legislation which ought to govern every measure of land reform, a very obvious one, though frequently forgotten by land‘reformers, which is my excuse for stating it.
My point is this. To prohibit contracts into which parties desire to enter, and which are neither immoral nor hurtful, is not jurisprudence. To compel parties to enter into contracts of one description when they wish to enter into contracts of a different nature, is not jurisprudence. Jurisprudence assumes as its hypothesis a certain relation voluntarily entered into between two or more parties, and undertakes to define the conditions and consequences which flow naturally and equitably from that relation. There are land reformers whose mission it is to abolish ‘ landlordism.' Others aim at the abolition of tenancy, a third set have declared war against mortgagors of their estates ; and mortgagees, if they were not a very useful and influential class, would no doubt also fall under the ban of a sect of economists, if indeed their extinction is not involved in that of the other classes of contracting persons. I am not going to talk politics. My reforming friends may be quite right, and by and bye I suppose we shall come to a state of society in which there are neither landlords nor tenants, debtors nor creditors, and where the land takes care of