310

Prospects of Law Amendment-Bills before Parliament.

an important experiment upon a scale to be ill-conceived, and, in short, to exercise sufficiently extensive to afford an adequate a general control over the legal condition test of its merits, without the possibility of of the country, in order to keep it in any serious interference with the course of the most satisfactory state which the order criminal justice. A return of the time and of things will allow." His Lordship labour bestowed in preparing the Bill now paid a just tribute of respect to Lord Truro submitted to Parliament, would prove, that for his judicious labours in the amendif the experiment is to be postponed until ment of the Law, and, after stating that the whole body of the Criminal Law has he did not propose to interfere with the been codified after the same fashion, the new system of procedure, so recently estasubject would cease to afford any practical blished in the Superior Courts of Common interest to the race of living lawyers. Law, and in the Court of Chancery, and The Lord Chancellor, following the ex- that he had not conclusively made up his ample of Lord St. Leonards, availed himself mind upon many other questions of great of an early opportunity of announcing the importance, to which his attention had been the legal measures the Government were directed, during the seven weeks in which prepared to introduce in the course of the he held office, prefaced his announcement present Session. The advantages of this of the measures about to be introduced, by course of proceeding are so apparent, the only wonder is, that it had not long since become established as the practice of Parliament.

an observation worthy of all praise, as it affords the country the fullest assurance that the individual placed at the head of the Lord Cranworth's statement was length- Law, does not fear the imputation that he ened, able, and elaborate. It would seem, proposes nothing, whilst he has no measure however, from the comments of the daily prepared that his judgment and his conjournals, that it has produced disappoint- science enabled him to recommend as benement, precisely in the proportion and upon ficial. His Lordship, however, thought the the grounds that we conceive ought to afford Bill for the Registration of Deeds, which he the greatest satisfaction. The Lord Chan- found made to his hand, and which passed cellor feels, what must strike every calm and the House of Lords in the Session 1851, a philosophical mind, that the danger is not most beneficial measure, and he concluded now that Law Reform should stop, or pro- by introducing it. He also announced that ceed too slowly, but that it may march too a Bill was in preparation, but not yet marapidly. "I feel," said his Lordship, tured, for the better regulation of Charities; "that there may now possibly be a danger, and that a plan had been under considerathe opposite of that into which I think tion, by which, with the assistance of Mr. those who held the Great Seal half a century Bellenden Ker, and two or three other genago were too apt to fall-a danger lest from tlemen not named, he hoped to be able to the great and proper feeling that the law effect what had been long desired, a classifi required reforming, a disposition to mere cation and consolidation of the whole of the change should arise, and measures be in- Statute Law.

troduced for the mere sake of introducing Lord St. Leonards expressed his regret, them --a danger lest the holder of the that the Bill for the Registration of Great Seal should fall into a course like that Deeds had been introduced by Government, sometimes practised by inferior medical as he would be prepared to show at the practitioners, who would prescribe physic proper time, that the damage it would profor the patient when the circumstances were duce would exceed its benefits, and he such that to have left him alone would pos- doubted if the landed gentry would be willsibly have been best." His Lordship's ing to incur a vast expense for a very proestimate of the responsibility which now blematical benefit. As to the proposed attaches to the individual intrusted with the consolidation of the Statutes, he warned Great Seal, was also happily and correctly Lord Cranworth that he was embarking expressed "No one filling the office I upon a measure of itself sufficient to occupy have now the honour to fill," said Lord a long life, and that no man could alter the Cranworth, can fail to feel that to him phraseology of the Statutes and digest them the country looks if not for the introduction in such a manner as not to lead to great of measures of Legal Reform, at least for litigation. the general supervision of the whole of our

Lord Campbell, whilst generally ap Tegal system to introduce where the intro- proving of the Lord Chancellor's state

duction of new measures was necessary, to resist where the measure proposed appeared

1 See the article on this subject, p. 313, post.

Prospects of Law Amendment.—Relation between the Bar and Attorneys.

311

ment, expressed himself nearly in as de- intervention of an attorney, should be discided terms, against the confusion of Law continued;" but the report of the society and Equity, as Lord St. Leonards had pre- suggested, that it was for the Bar to conviously done. At the same time, he as-sider whether it would act on this resolusented to the principle, that each tribunal tion, 'which," says the report, "it has should be invested with powers to decide power to do, if it should see fit, and should finally every controversy which came before the occasion require it." The occasion" it. As to the Registration of Deeds, he thus dimly hinted at was soon supposed to admitted that it would not in the first in- be discovered. Some half dozen members stance lessen the expense of the transfer of of the Junior Bar, personally we underland, but after a plan of registration had stand altogether unexceptionable, but who been in operation for a few years, there had no more authority to represent the would be an end to the uncertainty and ex- Bar generally upon this occasion than the pense of ascertaining whether a vendor three tailors of Tooley Street to represent possessed the interest in an estate which he the people of England, took upon themprofessed to sell. selves the initiative. They have had few The debate on Monday night, arising out clients, we believe, and no followers. The of the Lord Chancellor's statement, was "movement" has stopped just where it confined to the three noble and learned began, and exposed those who acted upon Lords above referred to. The observations such vague teaching, not only to mortificawhich fell from them are pregnant with im- tion and disappointment, but to public reportance, and afford materials for consider- buke. The matter was expressly referred ation and comment, of which we shall to by Lord St. Leonards in his statement necessarily avail ourselves, and on which we need not invite our readers to ponder.

RELATION BETWEEN THE BAR
AND ATTORNEYS.

from the Woolsack at the commencement of the Session, when he took the opportunity of observing, that "the practice of barristers acting without the intervention of solicitors was, in his eyes, highly objectionable, and one he should be the last person to countenance." Commenting upon WE were gratified to find in the last number of the Law Review, what we pre-writer in the Law Review (page 428) adds, this remark of the late Chancellor, the sume we may consider as an authoritative announcement that the Law Amendment Society disclaimed all consent or concurrence with those members of the Junior Bar, who sought to make the repeal of the 9 & 10 Vict. c. 95, s. 91, a pretext for abandoning the established usage of the profession, and uniting in their own per sons the separate functions of barrister and attorney.

"We content ourselves with saying we were no parties to the late movement of certain barristers to which he (Lord St. Leonards) alludes, and we do not approve of the manner in which it was made, which we need not say had not in any way the sanction of the Law Amendment Society." Thus unequivocally condemned by the authority and experience of Lord St. Lonards, and neither approved of nor supported by Those who were correctly informed as to the Law Amendment Society, we suppose what was contemplated and professed by a small section of the Junior Bar, could not we may conclude that the movement, which doubt that the very equivocal terms in it would now be ungenerous to refer to which the subject was referred to in the either with ridicule or asperity, has been last annual report of the Law Amendment abandoned: and we trust that nothing may Society, would operate as an encourage. ment, and be considered as a sanction by gentlemen fancying that their ill success was the result of professional restraint, and anxious to trample under foot all the trammels of etiquette. As already noticed in these pages, the Law Amendment Society not only adopted a general resolution :"That any practice which has a tendency to prevent the public from obtaining the assistance of counsel, except through the

See Leg. Obs., vol. 44, p. 310.

:

occur to prevent the restoration of that harmony and cordiality which it is so desirable should exist uninterruptedly between both branches of the Profession.

The Law Review, in the article above re

ferred to on Lord St. Leonards' Speech in the House of Lords, on the 16th of Nov., in reference to the subject of Advocacy in the Courts of Bankruptcy and the County Courts, makes some extracts from Lord St. Leonards' speech, accompanied by some observations of the Learned Reviewer,

R 2

312

Relation between the Bar and Attorneys.

which we deem it proper to lay before our readers. They are as follow:

But if any such serious change in the longestablished usage of the Bar is to be made, it ought at any rate to be made with the concur

"The Lord Chancellor then went on to rence of a large majority; and I entirely object

another subject as follows:

to any small number, or even to any consider-
able number, taking upon themselves to act
contrary to the general rule of the Profession,
now so long established.' (P. 28, 29.)
The Reviewer adds,—

"Solicitors are now permitted to appear as advocates before the Commissioners. I propose to put the same restriction as is now put upon attorneys under the County Courts Act. That is, my Lords, I object to the existence of "We think it right to give these opinions of the class called attorney-advocates. I do not the late Lord Chancellor as deserving great object to a man's attorney arguing his case for attention; and we shall content ourselves with him, but I do object to an attorney being turned into a barrister, and acting as an advo- saying that we were no parties to the late cate. There is no fair play in that. I desire movement of certain barristers to which he to see the Profession stand upon its proper alludes, nor do we approve of the manner in basis. I wish the barrister not to trench upon which it was made, which we need not say had the province of the attorney, nor the attorney upon the province of the barrister. Let each stand in his own place. Depend upon it, my Lords, if the system which has so long prevailed be broken in upon, great evils will ensue. It will necessarily lower the character of the Bar. Whether it will elevate the character of attorneys, I will not stay to determine; but, at any rate, there must be equality.' (P. 28.)

And then his Lordship thus alluded to another point:

"Your Lordships had, in the course of last Session, to decide whether you would continue the restriction upon counsel from acting in the County Courts without attorneys, or whether you would leave the etiquette of the

not in any way the sanction of the Law Amendment Society. Without expressing our concurrence with the opinion of Lord St, Leonards on these points, we will add his concluding warning as to this, in which we do fully concur :

My Lords, the Bar at the present moment is in a state of transition, and I would recommend everybody having any voice or any influence in this matter to consider this allow the Bar to lower its own station or digpoint, not to mention any other, where-if you nity-you are to look for learned persons to occupy your benches and carry on the administration of justice.' (P. 29, 30.)

And the learned writer thus concludes:

Profession and the honour of the Bar to maintain things as they have hitherto existed. It so happened that the decision of that question, if I may say so, devolved upon myself. My "A step of the kind alluded to should have noble and learned friends were divided in opi- been taken with some deliberation, and, at all nion, two and two, and as the matter was left events, on full notice to all persons who had by the House to the decision of the Law Lords, entertained the matter, which, we apprehend, it necessarily fell to the fifth to give the casting vote, if I may call it so, upon the question. was not attempted to be given. We are thus I did give that vote with great reluctance in forced to allude to this subject, and expressly favour of repealing the law which prohibited reserve all our opinions previously expressed counsel from acting without attorneys; but, while I did so, I took care expressly to state, on this subject, under the belief that the time that I gave that vote upon the distinct statewill come when they can and will be acted on ment that attorneys had threatened the Bar efficiently and usefully, as well to the Profesthat if they took business in the County Courts, sion as the public, and this, perhaps, sooner they should not have business elsewhere. I than some of our readers may suppose. It is meant to leave it, therefore, to the honour of the Bar to act as they had always acted, not in dealings with property that the way lies intending to open the door at all, unless there open for a change which might lead to the be an absolute necessity for it, to the practice most successful results." of barristers acting without the intervention of attorneys-a practice, in my view, highly obThis remark evidently points to the conjectionable, and one which I should be the last templation of some conveyancing counsel, person to countenance. Certain barristers, who are disposed to act without the interhowever, I regret to hear, have since then vention of solicitors, and we would warn taken upon themselves to decide that they will those gentlemen from making an attempt thus act without attorneys. That is a course which annot succeed and will probably of proceeding, my Lords, which cannot be too highly reprobated. I am far from saying that, injure themselves. in the present state of the law, the Bar, as a body, may not properly meet and consider what it becomes them in their station to do.

Chancery Suitors' Relief Bill.-Simplifying Titles and Facilitating Transfers of Land. 313

314

Simplifying Titles and Facilitating Transfers of Land.

to entail the estates-to provide jointures, portions for younger children, and to secure mortgagees, annuitants, devisees, &c. These deeds need not be registered.

3rd. But caveats (as in the case of distringas on stock) may be entered, so as to secure the cestui que trust, annuitant, mortgagee, &c., from any improper dealing with the property.

It has been long observed that one of the merits of The Times newspaper is that of an early ascertainment of public opinion. We therefore think it expedient to extract the following leading article in that journal of Friday, the 11th instant :—

"Probably, of all subjects connected with law reform, there is none so important in itself, and so eagerly desired by the nation, as the simplification of the titles and facilitation of the transfer of land. It is felt that by such a measure the value of real property would be raised, and that not merely litigant parties, but every one possessed of an interest in the soil, would profit largely by the change. It is, therefore, with much regret that we hear it reported that it is the intention of Government to introduce a measure for the registration of deeds and assurances, instead of directing their attention to the means of effecting more readily a transfer of the ownership in land.

"There was, indeed, a time when the regis tration of deeds would have been considered a great advance towards a reform of the Law of Real Property. The assumption on which that idea rested was, that our feudal and intricate system of titles was in itself good and wise, and only required greater notoriety and publicity. An exaggerated idea was entertained of the evil of secret conveyances, and a fear of the effects of constructive notice. It was also felt, very truly, that under the present system no lawyer has the full evidence of title before him when he decides, and can only give his opinion, subject to the production of deeds not disclosed on the sbstract. We may readily concede, that had the Law of Real Property been in itself really sound and rational, a registration of deeds, fixing every purchaser with actual notice of their contents, would have brought it some steps nearer to perfection.

That principle has been to fetter the land by
saddling its title with every contract relating to
its possession. If a man conveyed land to
another in trust for a third party, the reason-
able construction of the contract would seem
to be, that the trustee should be the owner of
the land, and that the right of the person for
whose benefit it was conveyed should be a
mere personal confidence, not binding on the
land at all. The Law of England, however,
determined otherwise. It held that by this
transaction two estates in the land were cre-
ated, and that no title would be good which
both. The object of this doctrine was the
did not thoroughly trace out and unite them
praiseworthy wish to carry out the original in-
tention of the parties. Its unforseen effect was
to render the titles to land a mass of complexi-
ties and absurdities. The land became, so to
speak, the tablet on which any owner could
write whatever he pleased, and the caprice, the
vanity, or the prodigality of one person is thus
perpetuated in baneful inheritance to future
generations. People have begun to feel that,
had these same principles been applied to stock,
had every person in whose name a hundred
pounds of the public debt stood in the books
of the Bank of England been compelled to
show, not merely his ownership, but all the in-
terests, several and successive, of the persons
for whom he is trustee, the title to stock would
be at this moment as intricate as the title to
land, and the conveyance as expensive. If we
are to have cheap conveyances and simple
titles, this can only be done in one of two
ways,-either by reducing the different forms
of ownership to a fee simple, and thus curtail-
ing the dominion which Englishmen have been
for ages in the habit of exercising over their
property, or, if we are not prepared for such a
sacrifice, by disconnecting these lesser interests
from the land, and recognising, for the purpose
of conveyance, nothing short of the most com
plete ownership. Complicated titles cannot
co-exist with short and cheap conveyances,
and it was mainly because it tends to perpetu-
ate and stereotype these complexities that pub-
lic opinion runs so strongly counter to a regis-
tration of deeds. We do not want to know the
history of our neighbour's land for the last
100 years, and to be fixed with notice of every
transaction affecting it. What we want is to
be dispensed from the necessity of such know-
ledge, and to be referred by the law to persons
with whom we may safely deal without enter-
ing into any such perilous investigation. This
desideratum has been effected in stock and in
manors where the rolls have been carefully
kept, and there is no reason in the nature of
things why the same facility of transfer and
dispensation from the investigation of title
should not be extended to freehold land.

"But of late years mankind have left off considering the Law of England as the perfection of reason, and have begun to doubt whether, by more completely csrrying out its principles and tendencies, they are not aggravating a great evil, instead of promoting a great good. The registration of deeds has been ably combated by Lord St. Leonards with reasons of great weight and force, and it has come to be admitted by most men that cheapness is not "It is impossible to exaggerate the advanamong the advantages to be expected from the tages of such an achievement, if successful. introduction of this elaborate and costly expe- Instead of introducing, as the registration of dient. The belief is more and more gaining deeds would do, an additional element of unground that the principle of our Law of Real certainty in the fatal effects of an oversight in Property is radically and essentially faulty. the search, it would render that oversight im