THE ORIGINS OF THE LAW OF PROPERTY ACTS 1910–251
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02439.x |
| Author | Avner Offer |
| Date | 01 September 1977 |
| Published date | 01 September 1977 |
THE
MODERN
LAW
REVIEW
Volume
40
September
1977
No.
5
THE
ORIGINS
OF
THE
LAW
OF
PROPERTY
ACTS
1910-25
THROUGHOUT the nineteenth century there was continuous pressure
from property owners and law reformers for the establishment
of
an efficient system of land registration, as an alternative to the
slow and costly method of conveyancing by private treaty. This
reform implied a restriction of the role of lawyers in land transfer
or even their total exclusion. Conveyancing fees accounted for
approximately half the income of the average solicitor at the end
of the nineteenth century but the land transfer monopoly was more
valuable to this branch of the profession than the aggregate of scale
fees. In
a
notoriously imperfect market, it provided solicitors with
access to current information on property values and placed them
in a good position to serve as brokers between buyers, sellers,
auctioneers and surveyors, builders and financiers. The property
market in the Edwardian period was highly cyclical and for
solicitors, 1910 was not a good year. Property turnover and values
had both fallen about 40-50 per cent.
in
the previous five years.2
Registration of title mobilised considerable support in both
political parties ever since 1885, when the third Marquess of
Salisbury, on becoming Prime Minister,
swung
around to the
view that it was in the interest of the
landowner^.^
Registration
commanded a majority in the House
of
Lords since
1893
when
1
Full references are given when a source is first cited, followed (in square
brackets) by the abbreviated form used in subsequent citations. Grateful acknow-
ledgments are made to Mr.
F.
Fortescue-Brickdale for permission to quote from
the papers
of
Sir Charles Fortescue-Brickdale [Brickdale Papers] and to Mr.
J.
Cherry and the late H.
F.
Rubinstein for oral information. Helpful comments
on previous drafts were made by Professor
F.
M.
L. Thompson, Dr. J. M. Winter,
Mr.
S.
Cretney and Mr.
K.
0.
Morgan. They are not responsible for any errors
of fact or interpretation in this article.
2
This paragraph is abstracted from a larger work on the reform of property
law and its relation to the property market between
1870
and
1925,
which docu-
ments the movements of property sales, property values and practitioners’ incomes.
The sources used include Inland Revenue Reports, Land Registry MSS. statistics
and the Law Society
Registry.
3
See
299
H.L.Deb., 3d ser., July
9,
1885,
cols.
108-109;
Halsbury Papers,
British Library Additional MSS.
56370
[B.L.Add.MSS.],
K.
M. Mackenzie [Per-
manent Secretary of the Lord Chancellor’s Office] to Lord Halsbury, Sept.
25,
1885,
f.
19;
roc.
cit.,
B.L.Add.MSS.
56371.
Lord Salisbury to Halsbury, Oct.
29, 1886,
f.
28.
Lord Salisbury, speech at Newport,
The
Times, Oct.
8, 1885,
p.
7.
505
VOL.
40
(5)
1
506
THE
MODERN LAW REVIEW
[Vol.
40
Herschell, a Liberal Lord Chancellor, disassociated it from the
politically contentious issue of the abolition of primogeniture and
entails4 Halsbury, who was Lord Chancellor
from
1885 to 1905
(with
a
break between 1892 and 1895) lent the full weight
of
his
support to registration.’ The Liberals were the traditional party
of
“Free Trade in Land” and registration of title was part of their
repertoire of land reform. In 1897 public dissatisfaction with private
conveyancing had forced the introduction by a Conservative govern-
ment of compulsory registration of title into the County of London.
The Law Society, however, managed to extract an important con-
cession. This was the “County Veto,” which provided that any
extension of the area under compulsory registration could only be
initiated by a county or urban district council.6 The leaders of the
profession relied on their influence in the provinces to frustrate any
local initiatives.’
C.
F. Brickdale, the Chief Registrar of the Land Registry, was a
forceful and articulate advocate of his department. He expended
much effort after 1897
in
bitter squabbles with the Law Society,
and particularly with a group of militants within its ranks. This
group, supported by many provincial solicitors, took an uncom-
promisingly hostile view
of
registration. It was led by
J.
S.
Rubinstein, a London solicitor connected with the Birkbeck Bank
and Building Society, whose vitriolic attacks on the Land Registry
and the Lord Chancellor were regular features of the annual
meetings of the Law Society in the Edwardian period.8 More
moderate counsels prevailed within the inner establishment of the
profession. The proponents of these views argued that the stream-
lining
of
private conveyancing was the only realistic response to the
threat of dispossession by regi~tration.~ The strategy had long been
associated with the name of William Wolstenholme,
a
conveyancing
barrister, who first proposed
a
scheme
on
these lines
in
1862 and
continued to press it upon the profession. It was officially adopted
by the Law Society as its policy in 1895, when registration became
imminent, despite the opposition of the London militants and
provincial practitioners.’O
4
Public Record Office [P.R.O.], Land Registry Papers LAR 1/71, C.
F.
Brickdale,
draft memorandum,
“The
recent history
of
land transfer
.
. .
,”
n.d. [early 19061.
Also Brickdale Papers, marginal note by C.
F.
Brickdale on “Land Transfer
Association
”
circular (n.d.)
[c.
18901.
5
See
e.g.
Lord
Halsbury,
review
of
Encyclopediu Britannicu
(10th
ed.)
in
The
Times Literary Supplement,
Oct. 24, 1902, p. 1, col. 3.
6
See
52
H.C.Deb.,
4th ser., August 3, 1897, Cols. 294-305;
August
4, 1897,
cols. 334.335.
7
See
Lord Herschell,
The Times,
June
5,
1897, p. 11, col. 3.
8
See
the Law Society’s
Proceedin.qs
and
Resolutions
of
the Annual Provincial
Meetings
[Law Society, P.R.].
9
John Hunter, “Presidential Address,” Law Society, P.R., 1894, pp.
41,
48-49;
B.
G.
Lake,
“
Registration of Title and Conveyancing Reform,” Law Society, P.R..
1895, p. 144; also
N.
T.
Lawrence, P.R. 1894, pp. 6-8.
10
E.
P.
Wolstenholme, “Simplification of title
to
land preferable to the intro-
duction of novel modes
of
assurance, with an outline
of
a plan,
Papers read
before the
Juridical
Society,
vol.
I1
(1858-1863),
XXVII
(Mar. 1862),
pp.
533-552;
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