The Sun.
London, England, 1853-02-15 00:00:00

...
spec atione quo velint evadendi protinus circa ima sub- I
stiterint." (Hear, hear.) The noble lord moved the
first reading of the bill.
L -ird ST. LEONARDS spoke so indistinctly at first that
no p effect sentence reached the gallery. The noble lord
was i. udistinctly heard throughout. He was understood
to say there had been no time, since the noble and learned
lord (th,e Lord Chancellor) had held the seals, to prepare
any further measures of law reform. His noble
not and learned
friend had. stated the reasons why he had thought
necessary to propose any reform in the courts of common
He took it for granted he would come
law or Chancery.
to that conclusion, because it was obviously altogether un-
wise to attempt to touch those courts until they saw what
bad been and would b
reformth which Parliament hade operation of the great and
extensive measures of e
recently passed. (Hear.) His noble and learned friend
had touched on a question very difficult and not very
B,ff US to touch upon—a question on reports not
yet
'Lava:e
a-do.° He would excuse Kira for saying it might im-
pressh commissioners, whose report was not made, with
opinion expressed in their lordship's house, although
tho ote
he knew his noble friend had no such object. Referring
to one question before one commission with regard to the
fusion of law and equity—which he (Lord St. Leonards)
would rather call the confusion of law and equity—his
noble and learned friend seemed to have misconceived the
difference of proceedings upon contracts in courts of law
ard equity. A common law court had no jurisdiction in
what was called specific performance. The matter lay
in a small compass. In law, if you entered into a
contract, it mattered not whether for goods or real
estate, yon were bound to perform it, and if you did not
an action might be maintained against you, and damages
would be given according to the extent of the loss incurred
by the non-performance of the contract. The law gave in
cases of real and personal estate precisely the same relief.
The contract was treated in a court of common law as
broken, if refusal or neglect to perform it was proved to
have been made, and damages were awarded in proportion
to the injury sustained. In a court of equity the contract
was treated as subsisting. The court regarded the person
contracting to purchase an estate as the actual owner from
the moment of the bargain, and if the answer was that
time had not been given to make out the title, the court
granted time for the purpose, but had power to enforce
specificperformance. That powerwasnotpossessedby a court
of common law, and hence the difference of the two reme-
dies upon any contract, whether for the sale of land or goods.
It would be necessary, for this purpose, to give the court of
law the same machinery and the same officers as the Court
of Chancery; whereas the Court of Chancery had the ma-
chinery and the officers already, so that to multiply them
would produce no other result than a clashing and imper-
fect jurisdiction. In the bill he had himseif lately intro-
duced with reference to the Court of Chancery, he at-
tempted to introduce a clause to enable courts of law, in cases
where the man was entitled to the equitable estate, but not
to the legal estate, to prevent the necessity of nonsuiting,
or giving a verdict against him, merely because he hap-
pened not to have the legal estate. This he proposed to do
by enabling the courts of law to send the case to a court
of equity, to know whether the party was really entitled
to the beneficial interest. But, so far from this being adopted
as a first step towards improvement, it was struck out of the
bill altogether. It did not seem, therefore, as if there was
any great dispositions on the part of the legislature to adopt
what was popularly called the fusion of law and equity—a
fusion which he was perfectly satisfied could never be ac-
complished. With regard to the subject of divorces, he had
great satisfaction in congratulating his noble and learned
friend in having brought this important subject under the
consideration of Parliament. (Hear, hear.) The next
subject to which he should refer, related to the question of
testaments. The late Government had had this subject
under their consideration. They had issued a renewed
commission, under which they added other learned persons
to those who were already directing their attention to this
question, and he regretted to hear that his noble and
learned friend found fault with the terms of the reference.
He himself thought the terms perfectly sufficient to enable
and to authorise the commissioners to state, not merely the
mischiefs which they found to exist, but the remedies for
them • however, if his noble and learned friend meant to
say that there was the slightest difficulty in the commis-
sioners arriving at a proper conclusion on these points or
any of them, he had only to give them further instruc-
tions. With the law of testaments there must also come
under full consideration the question of the ecclesiastical
courts. (Hear.) But, whilst sweeping away that which
had long existed, care must be taken not to destroy with-
out consideration that which was the foundation of the
livelihoods of many persons. (Hear.) As far as he under-
stood his noble and learned friend's " bill of fare," if he
might be permitted to use such a phrase without offence,
there was to be a registry, a revival of the charity com-
missions, and a consolidation of the statute law, He was
not opposed to legislation on those subjects, as far as it
could be properly resorted to. With respect to the regis-
tration of titles, the bill of 1851 for that purpose would
have saved enormous expense, and in respect to real estate,
it would have proved a great boon ; and having this opi-
nion, he was entitled to say that he was friendly to regis-
tration as far as it had gone. But the great object of
those who now desired legislation upon this subject, was
one incapable of being carried into execution under exist-
ing circumstances, as s noble and learned friend had justly
said. They wanted to make land transferable precisely as
railway shares or Government stock. But there was more
than this. In the first place these persons mean to strike
at the whole law of property, by which owners had now
full disposing power over it. It was the law of England at
present that there was no property, small or great, which
could be kept extra-commercial ; so as to speak ; there was
no portion of property, whether of a large or small estate,
in respect to which a man might not go into the open
market and buy whatever he desired to possess. Such was
the case now. But what many persons wanted by registra-
tion was not so distinctly to reduce the transfer of land ;
they wanted rather to stop all disposition of land for the
, purposes of family enjoyment and the support of such dig-
nities as their lordships possessed. (Hear, hear.) It was
obvious that this at once introduced into the discussion a
most important social and constitutional question, for it
was ridiculous to speak of this subject as relating only to
the transfer of land, involving as it did other questions
upon which the happiness and the existence of many per-
sons in the country depended. These were questions
to be dealt with lightly ; and he was sure his noble and
learned friend would see that they were entitled to the
deepest consideration. On the general question he would
at once assert that no man could prove to their lordships
that a general registry would either shorten conveyances
by a single line, oradd to the relief of the land. The registry
would not add to the deed, nor would it lessen it. If
a man's land was registered, he must still have an abstract
of his title deeds ; and if he wanted to sell, the abstract
would be submitted to a learned counsel just as it was now,
whilst no man could make up his mind as to the title with-
out having the deed itself before him. He contended fur-
ther, that there were serious objections to registration
founded upon the doctrines of notice to mortgagees, and
that under certain circumstances a court of equity would
support the title of a mortgagee against the purchaser.
There was to be upon the register a title in fee simple ;
but a man would make a settlement of his estate without
the settlement being upon the register, so that one person
might appear upon the register as owner, though he was
not. If their lordships wished to produce confusion in the
law of England, and misery in families by means of
settlements, let them adopt this proposition. But his noble
and learned friend said that if a person claimed under a
settlement w-aich was kept from the register you could go
to a court of equity and get an injunction. With great
respect to his noble and learned friend, he hardly thought
that this course was seriously recommended. If the indi-
vidual attempted to sell; why should not the settlement be
put up.n the register? This would at once prevent hi

from selling, and at the same time give a title to those
upon whom he had settled the estate. Such were a few
of the difficulties which he ventured to suggest ; and he
thought it would be admitted they were not to be dealt
with lightly. It was certain that such a measure as was
proposed by his noble and learned friend would be opposed
in many quarters, and he could not avoid expressing his
regret that it had been brought forward ; for, as he should
be prepared to show at the proper time, the damage it
would do would be greater than its benefits. The expense
of it, too, would be certain, and who was to bear it ? The
landed gentlemen of England. But could their lordships
believe that the landed gentlemen of England were so easy
to be worked upon that they would adopt the measure,
and put themselves at such a vast expense for a very pro-
blematical benefit, at a moment when they felt they were
suffering from the state of the law? (Hear.) With regard
to the subject of charities, to which his noble and learned
friend had next made reference, he had nothing to say.
The last matter to which reference had been made was the
subject of the statute law. At the present moment their
lordships were starting on the experiment of digesting a
portion of the law—namely, the criminal law. That
limited portion had been referred to very learned com-
missioners, who had made many reports. Eight blue-
books, he believed, had been the result of their labours,
when, at the suggestion of a noble and learned friend
of his not now present (Lord Brougham), the late Go-
vernment consented again to take up the subject. The
examination of the criminal law alone, before the late
Government took it up, had cost the country upwards
of 40,0001., and there must have been some additional
expense since. Having had his attention directed to the
subject, he apprehended it .would be found that this
of itself was a very considerable task. His noble and
learned friend had spoken of the style of our acts of Par-
liament. If he understoed him rightly, his noble and
learned friend proposed to simplify the style and to correct
the iangnage of the statute law, so as to make it so plain
that "he who runs may read." His noble and learned
friend was embarking upon a measure which alone was
sufficient to Occupy a long life ; and if he was proposing to
himself the completion of the work, he (Lord St. Leo-
nards, hoped most sincerely that nothing might occur to
interrupt his labours. The difficulty of the work might
be estimated by taking some particular statue. The lan-
guage of it might be exceedingly tautologicel, and it might
not be grammatical; but it might have received a parti-
cular construction from having been the subject of discus-
sion in courts of law, though there might be a different
opinion in the profession as to its actual meaning. The
moment you attempted to simplify the style and correct
the language you opened the doors to the courts of law, in
order to ascertain what meaning the new phraseology was
to have.. So it would be with other acts. Re was there-
fore of opinion that no living man was competent to the
work which the speech of his noble and learned friend
seemed to him to imply. No living man was, he repeated,
in his opinion, competent to digest the statute law of this
country in such a manner as not to lead to a great deal of
litigation. As to acts of an annual or a temponary nature,
if you did not disturb them they would not disturb you.

At the same time it was quite possible for improvenients
to be made. In the present state of our legislation, for
instance, no measure was ever brought forward on any
special subject without the whole of the preceding acts
upon the same subject being recited, and sometimes re-
enacted in a consolidated form. This was a beneficial

practice, which he hoped would be continued ; and as re-
garded the work of digesting the statutes, he conceived
that, it would be only practicable to do what had been
done in respect to consolidation, for the moment you
altered a statute, from that moment you made a new law,
with all its contingencies. The expense, too, was a matter
well worthy of consideration. If it had cost 40,0001. to
produce the reports of the commissioners for consolidating
the criminal law, he left the house to consider what was
likely to be the expense of a digest of the whole statute
w. Ne doubt, as his noble and learned friend had inti-
mated, competent persons might be found to execute
this great work; but after that it would have to be done
by Parliament again, for he ventured to think that neither
their lordship.; nor the other house would take it quite
upon trust. When the digest was prepared his noble and
learned friend -would have to assist in carrying it out. In
xospect to the criminal law he had himself certainly given