410 Law of Evidence and Procedure Bill-Lord Cranworth's Speech on the 2nd Reading. husband or wife should be compellable to call upon a person to answer, as a witness, disclose what was communicated in domestic confidence. The communications between husband and wife, his Lordship observed, would be placed by the Bill, on the same footing as communications made by a client to his solicitor, which the latter was not required to disclose. His Lordship also adverted to what has been felt by every person practically acquainted with the operation of the Act last referred to, as an anomaly, if not an injustice, that, as the law now stands, the wife of a plaintiff acting as a shopwoman, or an agent, is prevented from giving evidence of necessity within her knowledge, and not at all within the knowledge of the husband; but the effect of marital influence and the social consequences arising from its abuse, when a wife is liable to be examined for or against her husband, appear to have been lost sight of in the discussion. This part of Lord Brougham's Bill would seem, therefore, to have met not only the acquiescence but the approval of the Lord Chancellor.

On the next proposition, to compel witnesses to answer questions tending to criminate them, the Lord Chancellor is reported to have thus expressed himself:

questions which, if a direct charge were made against him, he could not be called upon to answer. Suppose my pocket was picked in a crowd, and that I had a strong suspicion of a offence, the law said, 'You have no right to man near me ;-if I charged that man with the interrogate him upon the subject.' Now, this bill did not propose that power should be given to interrogate a person so accused, but it said, 'If you can call such person as a witness in any other proceeding, then interrogate him as you please. We should thus, in fact, us from doing directly what this bill would get rid of that principle of law which prevented enable us to do indirectly. In order to guard against this result, my noble and learned friend has introduced a proviso which would enact, that though the witness was to be bound to answer questions, his statements should never be given in evidence against him. That would, the case, I have put of my pocket being picked. however, be a mere illusory protection. Take Suppose I had seen the man near me in the crowd, and that was all I knew. Well, I might bring that man up as a witness on some occasion or other, and say to him, I suspect you picked my pocket of my watch. Did you do so?' The witness might now reply, I'decline to answer the question;' but if this bill were passed he would be told, 'You are bound to answer, and you shall answer.' 'Well,' he might say, 'I confess I did.' 'What did you "I entirely concur in the feeling which has do with it? I locked it up in my lodgings, prompted my noble and learned friend to en- and there it is now.' Now, although this deavour to devise some method of getting out statement could not be given in evidence of the difficulty, arising from that provision of against the witness, a policeman might be sent the Law of Evidence, exempting a party under to his lodgings, and there the watch might be examination from the obligation of answering found. The man had been near me in the questions that may tend to criminate him; for, crowd; the watch would be found at his lodgin common, I am sure, with all who have been ings; and the person would thus have been in the habit of attending Courts of Justice, or compelled to convict himself. Although I feel, of taking part in the proceedings in such with my noble and learned friend, that this is Courts, I have continually been shocked by a matter which ought to be looked into, and the certainty that injustice was done, and truth although I regret the discreditable scenes was excluded, because a witness said, I can- which are sometimes witnessed in Courts of not answer that question, for it will tend to cri- Justice, I regard with very considerable apI feel bound to say, however, prehension any system which would create a that until we are prepared to alter the law a sort of rival dexterity among different Judges great deal more, and to say that it should be as to examining a prisoner and entrapping him part of our system to interrogate prisoners This is a mode of proceeding which every one into some admission that would implicate him. upon charges, I do not think the clause pro- who has attended foreign Courts of Justice posed by my noble and learned friend can by must frequently have observed, but I think it possibility become the law of the land. If it is the law that a person charged with picking a pocket has a right to say, You are not to ask me any questions; I will answer nothing; prove the charge if you can;' will it not be a strange anomaly if we evade that law by calling the accused person as a witness in some Upon the third of the leading propo other proceeding? I am perfectly ready to sitions contained in Lord Brougham's Bill, concur with my noble and learned friend in the Chancellor was not equally decided. any reasonable inquiry as to whether the law ought to be altered,-whether the rule of law, Nemo tenetur seipsum prodere,' is or is not correct principle; but I think it will be impossible to consent to a clause enabling us to

minate me.'

is a system more unpleasant to witness than accused under our laws. To that part of the the occasional escape from Justice of persons bill of my noble and learned friend, then, I

cannot give my concurrence."

From what fell from his lordship, we collect that the Common Law Commissioners have prepared a report upon the subject, in which the question has been fully discussed,

Law of Evidence and Proce lure Bill.-Attorneys' Certificate Duly.

411

and that there is an inclination to give the noble and learned friend's proposal should suitors in the Superior Courts the power of be adopted. I do not mean to say that my electing to have their cases tried by a Judge noble friend may not make out a case estaor a jury. The Lord Chancellor's observa blishing the proposition which he has been tions on this part of the Bill are thus re-tion deserving most serious attention, and I urging. I shall only say I think it is a quesported :shall look with the greatest anxiety to the facts and reasonings contained in the report on this very important subject.”

In reference to the three changes of magnitude and importance proposed by Lord Brougham, therefore, the Lord Chancellor assents to the first, repealing the exceptive

"Another point referred to by my noble friend, was the expediency of allowing parties who have actions pending in the Courts of Common Law to have them tried by a Judge, and not by a jury. I stated on a former occasion, that I thought that was a question which deserved most serious attention, but I did not think it was very happily or appropri- provision as to husbands and wives, conately introduced into this Bill, the more so as tinued by the first sect. of the Act 14 & 15 the subject had been one of those inquired Vict. c. 95; he opposes the provisions which into by the Common Law Commissioners, who would compel a witness to answer questions are about to make a second report. The tending to criminate himself; and he rematter has, I believe, been most anxiously in- serves his final judgment upon the propovestigated by that Commission, which has pre-sition, to dispense with juries with the conpared an elaborate report, stating the pros and sent of the litigant parties. cons, and I understand leaning to the views of my noble and learned friend. (Hear, hear' Upon all these questions considerable from Lord Brougham.) It seems to me that difference of opinion exists, and is likely to that report will be the proper foundation for a prevail. It must be admitted, however, discussion on the subject. I might put a great that Lord Cranworth has not shrunk from number of cases in which a Judge could de- stating his views on all these difficult quescide questions quite as well, or perhaps better, tions, frankly and explicitly, a circumstance than a jury; but, on the other hand, I do not which, it is hoped, may not be lost sight know that there might not be very great diffi- of by those who are so ready to assume culty if we begin to remodel the mode of trial of fact in those Courts. We must not regard the office of censors upon persons in authis as a mere question as to how the parthority. ticular issue might best be tried, but we must look upon it as a whole. The question is, supposing 1,000 or 2,000 cases to be tried in the course of a year, whether we should obtain better decisions generally by only putting juries ANSWER TO THE OBJECTION THAT THE

I

ATTORNEYS' CERTIFICATE DUTY.

CERTIFICATE TAX EXCLUDES DISRE-
PUTABLE PRACTITIONERS.

to try a few selected cases, instead of familiarising them with the mode of dealing with such questions by letting them try the whole? cannot but feel considerable apprehension that, peculiar taxes imposed on attorneys and IT has been objected to the repeal of the if we merely had juries in a few difficult cases, solicitors, that they operate as a protection we should not find that the minds of the jurymen were so well adapted for such investiga- to the public by preventing the introductions as they would be if they were continu- tion or the continuance in the Profession ally employed during the whole of an assize, of ill educated, needy, and disreputable trying sometimes easy and sometimes difficult persons. cases. With regard to great mercantile ques- The duty of 120. on commencing a tions and contracts, the parties, I believe, like clerkship for five years, and a premium of generally to have a jury, and the Judge would, 2001. or 300l. to the solicitor, together with in many such cases, be very much at sea without the assistance of a jury. the (Lord expenses attendant on a service of five Brougham. In London.") Yes, in London, years, it may be admitted, have a tendency Liverpool, Bristol, York, and other places, to secure, in the first instance, some respecwhere questions of that kind arise, I think tability of station, and in fact these expenthey could hardly be withdrawn from the con- ses, with the admission stamp of 25l., and sideration of juries. The real expense, I con- the fees of examination and admission in ceive, arises not with respect to trying the all the Courts, really operate as a property cases, but in the tax upon the juries who are

summoned to spend a week or a fortnight in qualification on entering the Profession. an assize town or elsewhere; and the expense It is not proposed to disturb these paywould be the same whether they were sitting ments. in the waiting-box or walking about the town, Again, the necessity of passing the exalthough it is true that arrangements might amination (instituted in 1836) ensures a be made to save a portion of their time if my respectable amount of general as well as

412

Attorneys' Certificate Duty.-Registration of Assurances' Bill.

legal education. Moreover, the examiners inquire into professional conduct and character, as well as legal ability.

These are the safeguards to the public, not one of which existed at the time the certificate tax was first imposed. What might be tolerated then as a war tax is now wholly without justification. If these do not operate, it is quite clear that the annual duty can have no such effect.

The sum required to be paid annually by persons whose practice is of small extent, exposes them to the temptation of increasing the amount of their charges, in order either to reimburse the outlay or enable them to make it. Thus the tax, in many cases, indirectly falls upon the suitor, operates as a tax upon the administration of justice, encourages irregular practice, and tends by the misconduct of individual members to degrade the Profession in public esteem and diminish the respect for the

law.

The Incorporated Law Society as the Registrar of Attorneys and Solicitors, have received numerous complaints that attorneys practising in a limited and inferior class of business, receive emoluments from other attorneys, who are unable to take out their certificates, and who practise in the name of such certificated attorneys, and participate in the profits of the business, contrary to the express provisions of the Statutes, and to the injury of the public.

By these means they not only evade the payment of the duty but commit acts of mal-practice, and of oppression against the poor suitors of the Court, and generally escape punishment. For if complaint be made against the attorney in whose name the mal-practice takes place, he denies that he authorised the use of his name, and generally there is no sufficient evidence to contradict him.

REGISTRATION OF ASSURANCES'

BILL.

PETITION FROM NEWCASTLE-UPON-TYNE
AND GATESHEAD.

THE following are the Statements in this Peti-
tion to the House of Lords from Barristers,
Attorneys, and Solicitors.

SHEWETH,That your petitioners are informed that a Bill has been introduced into

your Lordships' House, intituled " An Act for under which, if it pass into a law, all assurthe Registration of Assurances in England," ances affecting any lands in England must be registered by the deposit of the original documents, or duplicates or copies thereof, in one General Register Office in London or Westminster.

a

That in your petitioners' judgment, if such register office be established, it will be soon found to be the monster grievance of the country.

That your petitioners presume to submit to your Lordships some of the grounds on which they have formed that judgment.

In every case of a conveyance, will, settlement, mortgage, charge, or other assurance, and even of a mere contract relating to lands or tenements, be the transaction ever so trifling in amount, the parties, in addition to the expense, trouble, and delay, incident to the registration thereof, must incur the expense of duplicates, or copies of their documents, and if the original documents be deposited in the Register Office, your petitioners will be unable to give them in evidence without incurring the expense of bringing them from London under legal process in the custody of the proper officer.

Those transactions, of daily occurrence in a great commercial country, in which temporary pecuniary accommodation is obtained on the instant, and without expense or exposure by means of a deposit of title deeds, will be most seriously interfered with and obstructed, and although by the proposed Act certificates of registration are to be granted, which certificates may be deposited by way of equitable If there were no certificate duty, but of such deposit, yet another provision of the mortgage without registering a memorandum merely a small fee for annual registration, Bill, viz., that no subsequent assurance by a each attorney must keep his name on the person having obtained a certificate of regis register for the sake of publicity in the Law tration, shall be registered until such certifi List; he would transact business in his own cate be cancelled, will render it impracticable name and be amenable to the Court for any ject to an equitable mortgage, until such mort. for any one to deal with his property if submisconduct. It appears, therefore, that this tax induces an illegal mode of practice, unable to make a settlement of his estate, or gage be discharged. The mortgagor will be by which the annual payment is avoided even a contract for sale, although for the exand the difficulty increased of detection press purpose of paying off the charge out of and punishment for misconduct, and thus the purchase money, unless such charge be the public is injured in a far greater degree previously satisfied. This result appears so than the revenue can be benefited. paradoxical and so fraught with embarrassment and mischief to the whole community, that your petitioners cannot conceive it to have been contemplated by the framers of the Bill, but they submit to your Lordships that it will

Registration of Assurances' Bill.-Bankruptcy Bill.

inevitably follow from the measure if passed in its present form. For no person could be induced (or indeed advised) to deal with an owner or mortgagor of property without having his transaction registered, but by the proposed law this would be impossible, unless the existing certificate of registration were given up and cancelled.

That the delay and formalities which the Act would render necessary for effecting even the simplest transaction connected with real property, would in many cases (where the business, if done at all, depends for its efficacy upon despatch) altogether frustrate the intention of the parties, to the inconceivable loss and inconvenience of very many, and the utter ruin of not a few of her Majesty's subjects, who are quite satisfied with the facility of transfer and security of title under the existing state of the law.

Under the proposed new law the safety of every transaction will depend on the correctness of certain indexes, which from their voluminous character must be subject to inac

curacies.

413

and expense, whilst, as to affording additional security of title, which is assumed to be the principal, if not the sole, object of the present Bill, your petitioners submit that the Act will not merely prove abortive, but will, by its complicated machinery and by controverting several old and well-known rules of equity, occasion many difficulties and causes of insecurity which do not now exist.

That it may be well doubted whether the evils which would be remedied by any system of registration, would not be more than counterbalanced by other evils which it would produce.

That the principle of a Central Registration is in every respect objectionable.

Your petitioners are aware that the Profession to which they have the honour to belong has been accused of opposing the present Bill and other similar measures from interested motives. Your petitioners do not presume to make any remark here upon such accusations. They, however, humbly submit to your Lordships that being themselves to a considerable extent interested in real property as owners and otherwise, they may without censure lay before your Lordships their objections to a measure which threatens most seriously to affect them in common with the other landowners of England, and the evils to be apprehended from which their professional avoca

foresee and point out; and that they may be allowed to do this with the more confidence seeing that the proposed measure would in no way diminish the emoluments of your petitioners, but, on the contrary, would increase them. It would in no way alter the form and mode of conveyance, but it would introduce an expensive and complicated machinery from which conveyancing is now free.

That it will be a grievous hardship on her Majesty's subjects, living at a distance from the metropolis, to be obliged to travel to the Register Office themselves for the purpose of searching the register, or to intrust the search on which their title depends to strangers; and your petitioners humbly submit that, in con- tions and experience peculiarly qualify them to sequence of the numerous sub-divisions of, and dealings with, property, in towns particularly, where ground is parcelled out in building sites and small plots for sale or for distribution by and amongst the members of freehold land societies, efficient searches could not be made, nor the identity of particular properties traced by persons not possessing local information without plans of a very costly nature, and that such searches and plans would give rise to delays and expenses which would be extremely onerous to the parties concerned in transactions of small amount. Indeed, the additional expense which the proposed system of registration must, in various ways, occasion, will be very severely felt in all transactions of small amount, and will utterly neutralise the benefit of the reduction of the stamp duty on conveyances, which was recently granted by the wisdom of the Legislature as a measure of relief to the landed interest, and which has, in the belief of your petitioners, enhanced the value of landed property, and will, moreover, tend to repress the acquisition of real property by the humbler classes, which the best interests of the country require to be fostered and encouraged.

Your petitioners therefore humbly pray your Lordships that the "Bill for the Registration of Assurances in England" may not pass into a law.

BANKRUPTCY BILL.

ATTORNEY-ADVOCATES.

To the Editor of the Legal Observer. SIR, It seems to me desirable, upon many grounds, that he Profession should not misapprehend the scope and object of Lord St. Leonards' Bill. In introducing the Bill Lord St. Leonards stated, in reference to the employment of Attorney-Advocates, that he did not object to a man's solicitor arguing his case for him, but only to an attorney being turned "What I desire," said Lord Your petitioners humbly submit that the into a barrister. great desiderata in the laws affecting real pro- St. Leonards (as you have reported his speech. perty are simplicity, facility, and economy of See Leg. Obs., p. 43), "is, to see the Profestransfer,-benefits which your petitioners grate- sion stand upon its proper basis, I wish the fully acknowledge have been in a great degree barrister not to trench upon the province of attained by recent legislation; but, in the the attorney, nor the attorney upon the projudgment of your petitioners, the proposed vince of the advocate." According to this new law would be a retrograde movement, announcement, nothing could be further from 66 as you giving rise to complexity, delay, obstruction, Lord St. Leonards' intention than,

414

Bankruptcy Bill.-Opinions of the Press on Repealing the Certificate Duty.

suggest in last week's Leg. Obs. (p. 404), "to We think our Correspondent, in regard compel parties to incur the expense of em- to Attorney-Advocates, is mistaken in his ploying counsel when their solicitors are fully main fact. We understand that the two competent to advocate their clients' interest."

As I read the Bill, it is not fairly open to or three solicitors to whom we presume he such an objection. You appear to be under refers, invariably receive their instructions the impression that the 39th sect. of the new from and are retained by the creditor or bankBill operates as a repeal of the 12 & 13 Vict. rupt, or other party for whom they "appear

a

OPINIONS OF THE PRESS ON REPEAL

66

ING THE CERTIFICATE DUTY.

c. 106, s. 247, and will prevent the employment of solicitors as agents, and deprive them and plead.”—ED. of the privilege now enjoyed of "appearing and pleading without employing counsel." Now, in point of fact, the 39th sect. of the proposed Bill repeals nothing, but it puts a legislative construction upon the words solicitor of the Court of Bankruptcy," as contained in the 247th sect. of the Bankrupt Law In Ireland, as well as in England, with Consolidation Act, 1849, and defines it to be the exception of The Times, the Press has "a solicitor of the Court of Bankruptcy acting ably supported this branch of the Profes generally in the case or matter, and not a so- sion. Thus, The Freeman's Journal of the licitor retained as an advocate by such first- 12th instant contains the following Leading mentioned solicitor." The real solicitor of Article :— the suitor in Bankruptcy is therefore untouched by the proposed provision, nor is the "Ministers have had their first fall, notwithagent of a country solicitor, I apprehend, af- standing the plausible resistance of the Chanfected in the slightest degree. The system cellor of the Exchequer and the negative of which Lord St. Leonards proposes to strike at Mr. Hume. The certificate duty has been is that by which two or three practitioners, condemned by a large majority-52-in a acting in the triplicate character of solicitors, a House of 386, and, for the first time since agents, and advocates, have monopolised the the question of repeal was seriously mooted, the now diminished business of the Court of Profession have been placed on firm ground, Bankruptcy, to the manifest detriment of and the tax doomed to extinction.-Lord Rothose who pursue the Profession according to bert Grosvenor brought forward the question its acknowledged rules, and confine them- in a sensible speech, and urged all the arguselves within its legitimate limits. Practi- ments against the injustice of the imposition, cally, the Court of Bankruptcy is not re- which, indeed, are so numerous and convincing sorted to when it can be avoided, but those as to admit of no direct refutation. Why an who have occasionally been compelled to ac- attorney should be subjected to an annual tax company their clients there feel that matters of 127. for discharging the duties of a very reare managed so much for the advantage of sponsible Profession, cannot be justified on any those who practise exclusively in Bank- ground, except the plain one of state extortion. ruptcy, and with so little regard to the When Mr. Pitt, in his universal survey of the convenience or advantage of the Profession field left open by his predecessors to taxationgenerally, that the maintenance of the ex- and which in the opening of his career covered isting state of things is little to be desired. a far more extensive surface than when he Such is the influence of Accountants and closed it-broached the attorney tax, it was agents in that Court, that a solicitor who said that he maliciously retorted on the whole does not condescend to secure their good Profession the injury or the insult of a single report, and propitiate their favours has little chance of keeping the client he takes into Bankruptcy. If the proposed clause in Lord St. Leonards Bill operates to put an end to or even to discourage-this anomalous and discreditable state of things, it is eminently deserving of the support of the independent members of the Profession, who, I trust, will not be misled by supposing, that their interests are identified with those of a few individuals whose functions are not those of solicitors, but who, under colour of acting in that capacity, have materially interfered with the economy of the Profession, and inflicted incalculable injury upon those who confine themselves to their own walk in the Profession.

I am, Sir, your obedient servant,
A PRACTITIONER OF THE COURT
OF BANKRUPTCY.

individual, and visited not only the existing but several successive generations with the sins of one real or supposed offender. When some patriot Whig of the day resisted the tax and complained of its rank injustice, Mr. Pitt admitted the injustice, but fell back on the financial necessity. Like the income tax, it was only to survive a certain period; but Mr. Pitt, like other statesmen, found a ready excuse to continue the tax, and, singular enough, in an assembly which owes so much to the talents and exertions of the Profession, no attempt was made to remove it until Lord Robert Grosvenor made the question as much his own as the extinction of the midnight gas-burners belong to Mr. Brotherton.

"A barrister is not annually taxed, and why should an attorney? The attorney requires a large capital to conduct his business, if he be in any considerable practice; while the barris