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A75547
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Arguments and materials for a register of estates
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1698
(1698)
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Wing A3638A; ESTC R208633
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9,868
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32
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ARGUMENTS AND MATERIALS FOR A Register of Estates Qui bene Dimidium facti cepit habet LONDON Printed for Samuel Lowndes over against Exeter-Exchange in the Strand 1698. ARGUMENTS AND MATERIALS FOR A Register of Estates A Gentleman of the Long Robe happen'd lately to be in Company with several Members of Parliament and others where the Motion for a Register of Estates in England among other Parliamentary Affairs fell in Discourse This occasioned a particular application of the Company to that Person for his Opinion he was loath to come to but at length being warmed with Questions and Debates upon it and a few Glasses intersperst he surrendered himself to Discourse and seem'd to display all his Sentiments to the satisfaction of the Company After which he was much prest to digest his Thoughts and publish them in Print or at least communicate them in Writing to some particular Members of Parliament in order to support the Cause of a Register against the Opposition like to be made in the House by the Gentlemen of his Profession or those who practice as such but he would not be prevailed upon to do either pretending that true Friends in Publick and faithful Trustees in Private Concerns seldom scape without scratcht Faces and that with a severity proportionate with their Zeal and Sincerity therefore he was determined to live in Peace and meddle with neither This Repulse did not content me but thinking I understood his Notions and could set down by way of Minutes the material part of them After I came to my Chamber I went to Work accordingly the Result whereof follows viz. 1. He said he was for a Register and thought if somewhat of that sort were not done the incertainty of Titles and Pedigrees would become an intolerable Grievance and appear continually more and more not only by the Frauds of Owners cheating with double Conveyances but Forgeries which would increase as the Means of detecting them fell away 2. That elder times have had the advantage of a Registry in great Estates by Offices Post Mortem which recorded Matches Issues Deaths Purchases and Settlements almost Verbatim and for small Estates by the Rolls of Courts Baron and Surveys where Tenures and Services were Registred for the benefit of the Lords And in those days no Conveyance could be Chambered over and over again as now by Lease and Release but must be done by Feoffment only which had its force from publick Livery and Seisin and for his part he said if it were res integra and undermined he should give his Opinion that a Lease and Release as now in common use was not a legal Conveyance of Inheritances but a meer Trick and Gimcrack of the Law That the Vertue of Offices Post Mortem for discovery of Forgeries and clearing of Pedigrees is not yet altogether worn out but very near it And whereas the last Age hath had only that Aid near spent as it is for detecting of Forgeries the next will have none at all And at present there being little or no Guaranty of Titles but the uncertain honesty of Persons and that only as to their own Acts the Trade for Land will sink and in the room Fraud and Forgery advance 3. That the Parliament have ever been hammering at a Reform by way of Register and sometimes fancied they had it For when the Servility of Tenures in Capite made People study Clandestine Settlements that their Heirs might be free from Wardships and Marriage the Lawyers found out the Trick of Uses which then was the same as we now call Trusts And the Judges resolved such to be Disposeable by Will though Land it self without a Burgh-English Custom was not so These Uses arose by Bargain and Sale for Money or Covenants to be seized for Consideration of Blood but mostly the former The Crown laboured against Uses as Destructive to the Prerogatives of Tenure in Capite Wherefore in 27. Henry 8. Cap. 10. the Statute was made to turn Uses into Possessions which was intended to take Uses clean away But the contrary happened and it was soon found that most Purchases would pass by Bargain and Sale a Chamber Conveyance like our Lease and Release which our Parliament thought would be a Practice most Mischievous as it was and therefore 27 Hen. 8. Cap. 16. it was Enacted That Bargains and Sales should be Void unless Inrolled within six Months Here they thought they had caught a Register but the more modern trick of Lease and Release hath prevented it and another Law now for which there is the same Reason to make Leases and Releases Void unless Inrolled in a time certain would be almost a Register unless some yet newer Device were found out like that to Evade it The Statute of Fines and Non-Claim was a sort of Register and is useful accordingly at this day for Thousands of Fines are Leavied only to Gain by Efflux of five years time a Bar upon Record 4. That it is ridiculous and senceless in a Nation pretending to Literature and Law That a Man should be capable to Sell his Estate over and over again in the same Morning and take the Money and no one Purchaser hath any human Means to know of the other Our Neighbours are wise For Scotland Registers an Abstract Holland Registers by the Tax of Sales And the clearness of Titles accidentally resulting from the Collectors Accounts of that Revenue for a Non-Payment of the Tax makes the Sale Void is a recompence for the Tax it self though heavy as he said even to 20 l. per Cent. of the Purchase Money In France there is a Process to clear Titles by Judgment the method whereof is To fix on the Church-Door a Monition for all Claiming c. to come in and then after some Form's past which by the way are much too slow and chargeable the Land is at length by Judgment freed from all Titles and Incumbrances whatsoever In other Places almost all Contracts as well for Land as other Matters are made by publick Officers called Notaries and Registred Nay the Turks relie on Oggets or Decrees of the Caddes Registred And out little Nation of the Fens hath a Register which is approved by many years Practice and may serve for a Model for the rest of England Therefore he wondred that this Kingdom is so long without their Convenience and Security and in a matter that concerned them so Universally as their Purchases and Settlements among themselves He thought that after all he could ever hear Objected to a Register it could not be in Common Sense right that in any Nation the Law should be such as that a wise and careful Man had no human Means by Skill or Industry to be safe in his Dealing Vigilantibus non Dormientibus obvenient Leges But the Policy of late hath been so preposterous rather to lay Cushions for Fools to Blunder upon than to provide Foundations for the Wise and Careful In former times it was a Reason
be Charg'd lieth which is in no sort regarded now but Judgments mostly are in such Counties Men please to choose of which Middlesex and London have a share equal with almost all England beside 5. Men will not Register all Judgments c. but only such as they expect Use of upon Land which may not be one Fourth part of what are Entred upon the Rolls 6. If Men are Cozen'd by Prior or Double Titles or Incumbrances it is their own Fault Et serra arrecte lour follie III. That Incouragement be given viz. That the First Freehold Deed of every Estate Registred shall have the Force of a common Recovery and Fine with Non-Claim and shall not be Void for want of Execution or Formality This will give a quick Growth to the Register which out of tenderness to Men's Scruples must not be compulsive nor of past Acts For First Most Men that are Awake will make a Deed of their Estates on purpose to be Registred and thence will arise a Foundation of Title for most Estates of England which future times will Build upon And Secondly This will be a reasonable and general Purgation of Titles such as the Laws intended should be in particular Cases by Fines the vast Benefit of which to the Nation is obvious IV. That not all the Deed but only the material part viz. The Date Parties Consideration Limitation Uses Conditions and Powers be Registred and as for the Parcels not Verbatim but only the Names of Mannors and Villages or Town-ships But Recitals Covenants and Agreements that work not on the Legal Estate need not be Registred This would be no long Register not yet so short as the Scotch or Dutch is yet sufficient to secure a Purdhasor If People affect length in their Limitations and Conditions no harm is done if they pay the more but he thought it would have contrary effect and Men would fall into a way more concise then at present is used unless it be in Deeds intended to be Inrolled V. That altho' it is not necessary to a Register yet for the convenience of the People dealing in Longdon and the Country there may be Offices in each County for the Business of that County and another in London for the Business of the whole Nation And each Man may Register in which Office he please But then either Office should make Extracts of all that is done and Weekly transmit them to the other so by the Register of the Transmissions you may know if any thing be Entred in the other Office As for instance Every Saturday's Post should carry the Extracts from London and the Return of the same Post bring up the Extracts from the Country So that upon the arrival of the Post and the Extract delivered out to the Office all Parties may see infallibly if any thing hath been Entred in the other in the former Week and the Payment of Money may if they please be Suspended till such Satisfaction is had Some might think this too much Work and others not exact and full enough As for the latter Whoever is acquainted with the Entries of Fines which is only A. B. quer ' C. D. deforc ' de terris tenementis in D. and of what great use it is will not think this method Defective and for the other there is not so much but many will skip at the Imployment for moderate Fees You may well imagine how importunate and teazing we were all upon him with our Objections and Queries which made him cry Hold soft and fair to take Breath a little and then give a Reply to what he thought justly demanded it But First as to the Business of Objecting in general he thought I. That the House was too much inclined to lay weight upon bad Consequences objected which are perhaps meer Natural Possibilities and very improbable probable to fall out and which in Fact do not ever or rarely happen in like Constitutions and from such remote Possibilities they are made averse to Regulations which carry great and certain Advantages He thought Men ought to weigh Benefits and Hazards as Merchants do Profit and Loss not caring what the latter is so the other be grater And also consider that no human Constitution ever was or can be perfect but after all the care and contrivance the Wit of Man can apply to obviate shall or may be abused Esce la legge Esce la trampa If it were now to be proposed That any Fact should by Act of Parliament be made Capital might it not be Objected That then Innocent Persons might be accused and made to suffer Death by the false Testimony of one or two Witnesses and those perhaps the real Offenders themselves And hath not this Abuse great as it is sometimes happened Yet Capital Laws are necessary This shews that no Law can be Establisht but Possibilities of Abuse will lie open upon it Must there be therefore no Law Such is their Conclusion who from Possibilities of Abuses deny their Consent to a manifest good Law For this Reason he discharg'd himself of all our Clamour on account of Frauds Forgeries false Entries and Failings of Officers and others for said he If we startle at such Things we ought to Rescind the Jurisdiction of Kings-Bench Common-Bench c. whose Offices are liable to the same and if we consider well much greater Objections And yet how often are any such Abuses there as false Judgments Entred Men Personated or the like Some have been 't is true but so rarely as scarce worth mentioning Men in great Concerns are Naturally Fearful and when the Records of an Office are esteemed Sacred and Penalties of Abusing them very high there is little fear of false dealing if any be the Nation will not be without Justice to set all Right again and for that End the fixing such a Power in the chiefs of our Judges for some time by the Act if any pass would not be amiss II. As to the disclosing Men's Concerns and exposing their Deeds whereby their Titles might be called in Question He smiled at the first and said If he were to Pronounce Every Man's Debts that Charge his Estate should be wrote in his Forehead it is only design of Fraud or consciousness of Folly that makes Men affect Secresie And this Humour hath been the Bane of more Families than Vice and Prodigality For Who would not take care to be out of Debts if all Men's Debts were publick It is the Secret Shop-Usury that Cankers the Estates of England and that will always make open War against a Register If Debts are known Men will take Care either to Discharge or Justifie them as by Purchasing Matching or the like and would not sneak into Debt as they do to the surprize and often times Ruin of their Families O! But if our Debts are known we lose advantage in the Match of our Eldest Son and other Children I answer said he that if their Debts are not known those that