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is inexpensive; and if solicitors' fees, under the new system, are to be calculated upon an ad valoren principle, the saving on this head would be inappreciable.
Mr. Hawkins objects altogether to any system of registration, but suggests certain reforms in the law of real property, which would doubtless tend to simplify titles. He proposes, for instance, that mortgages should be mere charges, 'not to be heard of after they have been paid off; that a testator should be empowered to appoint a real representative, in whom all his real estate should vest absolutely virtute officii, and a conveyance from whom should confer as good a title as a conveyance of personal estate from the executor does now; that a general power in trustees to give receipts should be implied; that the law which makes judgment debts binding on land in the hands of a purchaser should be modified, &c. We should be glad to see most of these reforms carried out; but we cannot
with Mr. Hawkins as to the utter uselessness of a good system of registration. We think that the plan proposed by the Registration Commissioners was good in the main ; namely, that “a registration founded on ostensible or possessory ownership, should be permitted in the first instance, and that on such a registration the antecedent title might be left to be the subject of investigation, until, by lapse of time or otherwise, that investigation should become unnecessary”—(Rep., p. 28). A welldrawn act, based on this principle, would undoubtedly in the end obviate the evil of our present system of conveyancing with respect to the re-investigation, upon every dealing with land, of the back title; and, moreover, if fraud and forgery could be sufficiently guarded against, would ultimately secure the landowner from the danger to which he is now liable of deeds being lost or mialaid. An argument used by some who are opposed to any system of registration is, that it would be a very terrible thing to collect in one place the documents of title relating to all the land in the kingdom. Suppose, say they, the registry office and all its books, papers, and deeds should be destroyed, what a misfortune that would be! Would landowners feel safe
with such a sword hanging over their heads ?
To this we answer, that we firmly believe landowners would be safer if their deeds were deposited in some secure government building than they now are. Does any holder of English securities think himself in a particularly unsafe position, because the books which contain the only evidence of his being entitled to the property in question are kept at the Bank of England ? The title-deeds to eight hundred millions are kept there, and we cannot see why the title-deeds to the landed property of the country could not be equally well and securely kept in another building of a similar kind.
But to establish a registry such as Sir Hugh M‘Calmont Cairns proposes would be worse than useless. The remarks of the Commissioners quoted above from that report, which made 80 “profound an impression” on Sir Hugh's mind, that upon the opportunity offering he prepared measures in direct opposition to its import, are in every respect applicable to Sir Hugh's plan. And when to the objections foreseen by the commissioners are added those to which the details of the second bill are open—such, for instance, as the necessity for an application to a Court of Chancery, under the name of a Landed Estates Court, upon the death of a proprietor or of a trustee, or upon the sale of a portion of a registered estate, or the entering up of a notice of a lease, or upon other like occasions; the necessity of obtaining a certificate that no succession duty is payable before any dealing with land by way of transfer or mortgage can be had, and the many other difficulties and obstructions put in the way of the registered proprietor and those claiming through him, or for whoin he may be a trustee—when, we say, all these objections are added, it is to us a matter of profound regret, and must be so to every true law reformer, that Sir Hugh M‘Calmont Cairns should have thought fit, upon his own responsibility, and without giving any sufficient reason, to bring forward measures embodying a principle against which a great part of the report of the commissioners is directed. Sir Hugh cannot lay claim to greater experience or a wider knowledge of the subject treated
than is possessed by some of those gentlemen.; and as it is notorious that not a single real property lawyer of note, or conveyancer in large practice, was consulted as to either the principle or details of these measures, we cannot but think that, should they ever become law, they will either completely fail, and remain quietly in the statute book unnoticed, which would be a fatal blow to law reform; or they will lead to litigation, trouble, expense, injustice, and fraud, and, instead of proving a benefit to the country, will be the cause of ruin and misery to many.
Our remarks have already run to so considerable a length, that we can now do no more than commend to the perusal of those who are interested in the subject of registration, the Act (inentioned at the head of this article) which has established a land registry for the whole of the province of South Australia. Titles to land in Australia are far more simple than titles to land in this country; complicated settlements are unusual in the colony, and all titles can be traced back to grants from the Crown. The task, therefore, which the framers of the Act had to undertake, was not of that almost overwhelming difficulty which is found to attend the preparation of similar measures here; but the Act, though not perfect, is immeasurably superior as a specimen of careful legislation to the bills introduced into the parliament of the mother country.
In the Report of the Sub-Committee of the Manchester Law Association, we find the following remark :-“There is no need to discuss the bills in reference to any merely professional considerations. The bills will not reduce the business of the solicitor.” It proceeds to say, the interest of the public only is professed by the Association to be their object. Now, we would suggest one word
upon these remarks. The effect of the provisions in these bills upon the profits of the solicitor, or on the income
1 A paper relative to the working of the Act has been laid before the Law Amendment Society by Mr. Torrens, the Registrar-General for South Australia. We shall recur to this paper and to the Act in a future number of this Magazine.
VOL. VII. NO, XIII.
of counsel, it is obvious, ought not to be dragged into the question at all ; but, nevertheless, we regret to say we have lately seen elsewhere appeals made to professional men, with relation to the subject of the bills, based entirely upon what we may (following the felicitous and variously interpreted language lately employed in the House of Commons) designate as “the professional aggrandizement and private advantage” of attorneys. To take, first, the lowest ground of protest against such an unfortunate line of opposition, we would say, it is inexpedient for any body of men thus to put forth selfish, personal, and pecuniary motives as those actuating them in a matter affecting the common weal. Is it likely to attract or disgust the client public to see the legal body complaining of a particular measure, because it will prevent them from deriving large emoluments from the pockets of those who employ them? The lawyers in both branches have great political influence in parliament; but if a barefaced and self-interested position like this were confessed or even suspected, it would infallibly lead in the Commons to consequences the very opposite to those desired by the persons who professed sentiments so foolish and mischievous. If the public could do without paying attorneys and barristers a per centage on their property for maintaining their legal rights and preserving for them in civil affairs what is equitable, it would be perfectly justifiable to set about abolishing courts of law, shutting up attorneys' offices, and turning Lincoln's Inn into a “ public recreation ground,” the Temple into a “penitentiary and reformatory” for either sex, and Gray's Inn into “ baths and washhouses."
The impolicy, then, of such a trades’-union complaint, resembling more the machine-breaking intelligence of the operative of a quarter of a century since is obvious; but taking the higher ground—that of social morality-it is clear that, for one division of society to claim a right to aggravate the misfortunes of the rest, that they may make larger profits out of them, and levy legal taxes and permitted imposts out of their hard-earned gains, is as barbarous and atrocious as the system of plunder of the old
robber knights on Father Rhine. If the medical profession were to insist upon disease being disseminated by act of parliament, and pestilence being perpetuated and malaria encouraged, because doctors had a prescriptive right to a certain per centage on the earnings of the community-although these pretensions should be supported by the undertaker, sanctified by the clergyman of the cemetery, and approved by the shareholders-society would not agree to it, and none would be so ready to try the right as members of the legal profession. They would argue that the police had an equally valid vested right in crime, and the surgical-instrument maker in corporeal deformity. Such a course of dealing with the subject of law reforms is, therefore, degrading to those who profess to be citizens as well as lawyers, and we dismiss it with our hearty contempt.
Parliament and the public have, since the 11th day of February last, been, to use Mr. Christie's language,' in a “fool's paradise,” from expecting that a great and beneficial change in the present system of conveyancing was at hand. Now, the Solicitor-general has been, during the late session, constructing, and for a short time residing, in his Eden. By “fortuitous” and political mischances he has been for a period drawn out of his pretty temporary garden ; and without even having had, it would
appear, the opportunity of tasting of the tree of knowledge. We trust that the flaming swords of some competent legislative angels will save him from the trouble and disgrace of again showing his nakedness, or his more indecent flimsy covering in the blessed region of real property law reform.
We may remind our readers that a genuine reform in the law of real property was introduced into the Upper House of Parliament, not by a young and inexperienced authority, but by Lord St. Leonards, the great real property lawyer of the age -a reform against which not a word has been said by any lawyer of repute, but which, it is admitted on all hands, would have had a most beneficial effect. What has been the fate of this bill? 6 Scarcely a line has been vouchsafed by any of the
Report of Reg. Com., p. 327.