WOODS AND FORESTS COMMITTEE.
LETTER H.
I propose in this letter to notice the evidence relating to the business of the office of Solicitors to the Board of Woods and Forests.
The English solicitors are Messrs. Pemberton, Crawley, and Gardiner; each of whom was examined before the Committee.
From 1837 to 1841, the average of their bills for law and other expenses, not including any charge for stamps, was about 6,1401. a year. The average from 1842 to 1846 was about 10,0001. a year; amounting for the year 1846 alone to 11,8931., or an increase of about 7,0001., comparing the year 1837 with 1846. The excess in late years is ascribed chiefly to bills relating to railways pending in Parliament by which property of the Crown was affected. There are, of course, numerous disbursements—fees of counsel, expenses of witnesses, &c.—included in :these accounts.
One suit in which the Board was engaged is remarkable. The late Lord -Churchill was the owner in fee of Whychwood Forest, and contested with the Crown certain rights to the timber, deer, soil, and minerals. An information was filed against him in April 1834; and Lord Churchill filed his pleas in February 1836. The information was then amended; amended pleas and replications were Med; and a trial at bar was appointed for the 26th of November 1840. Twenty- four distinct demurrers were then filed, and the trial was postponed. Pleas were -then-amended; replications were Med; a further amendment of pleas was made; further postponement of the trial took place; numerous consultations were held; other replications, and rejoinders and surrejoinders, were filed: but in 1845 Lord Churchill died; the suit abated; and the costs of the Crown amounted to 7,0131. The first pleas of the defendant covered 2,040 folios, and 17 distinct claims were made by him. The Crown officers began their search with Doomsday Book—. among lawyers the record of the beginning of Creation—made out 200 brief sheets of Latin documents, 500 sheets of English documents, 100 brief sheets of pleadings, and, with the garnishment of other documents, filled a total of 1,500 sheets. Special fees of 400 guineas were paid to the Attorney-General and 400 guineas to the Solicitor-General, " besides proportionably large fees" to the two other counsel; and—ye worshipers of justice suppress your astonishment!—" the larger fees, those to the law-officers of the Crown, were paid several times, in consequence of the change of officers."
The defendant died—the cause was not heard—and if the Board will but begin again, the pleas may ascend from the Solicitor's office, and, reaching Westminster Hall, may -rest there for a few years, and, -when weakened by age and rude attacks, may be finally transferred to the House of Lords.
Some other suits are now pending; and the reason given why amended in- formations in them have not been settled by counsel is worthy of notice—" because," says Mr. Crawley, (1,516,) "we cannot get the counsel to appoint consultations. I have written letters, and sent my clerk a number of times ; but they are heavy cases, and require a great deal of attention; and therefore the counsel engaged in them, if they have other business to attend to, find it very difficult to apply that time which is necessary to these cases " ! It is evident a Sessional Committee to investigate the progress of the law business of the different public departments might contribute much assistance to official solicitors. There can, however, be no doubt that the Solicitors were desirous to expedite the business intrusted to them; and the fault lies with the chiefs of the departments, who allow counsel to delay its If counsel were badly paid for public business, it would necessarily happen that they would prefer private practice and give a preference to the affairs of private persons. But this does not seem to be the case. They appear to use their influence in the department to delay public business in order to suit their own convenience, as the private litigant wno employs them will not and cannot wait. At all events, when the pressure of public business is great, it might be carried on by other persons than the legal officers of the Crown and their sub- ordinates. In certain criminal cases it is right they should always be engaged; but there can be no valid reason why the counsel in Lord Churchill's case, for instance, should have been set aside on account of political changes which deprived them of their official appointments. There was no professional lawyer on the Committee, and consequently, what are called "unprofessional" questions were asked; and they produced much sug- gestive information. Lord Duncan was not deterred by the appeals directly and indirectly made to him to desist—" Have you a standing counsel?" "Yes, we have more than one: we have a standing conveyancing counsel." Then, as if the contest between short deeds and long deeds—between Lord Brougham and the conveyancer—were remembered, Mr. Crawley was asked, if conveyances might not be shortened? He answered "it was a grave question " —that "it required the experience of the first conveyancers.in the kingdom to answer; and that, in fact, the Real Property Commissioners have been engaged on a similar inquiry for some months, without being as yet able satisfactorily to answer the question, he believed." It may be that the inquiry ceased a long time since ! Then Mr. Craw- ley was asked respecting the recitals of deeds; and said, "that unless the story which is the inducement to the operative part of the deed were clearly and dis- tinctly told, the operative part might -fail for want• of that explanation"! The questions on law were pressed again and again; and Lord Morpeth asked, "if it was not rather a matter for a Committee of lawyers? " Mr. Pemberton fared no better than his partner, and said that, "with all submission, he should hardly be asked his opinion upon questions which affect the general law of real property and- conveyancing, and upon which conveyancers entertained very different opi- nions." He met with no mercy, and the question was repeated. (1,374.)
It does not appear from the evidence whether or not Lord Brougham's Acts to shorten deeds are had recourse to in the public offices. There is no excuse there at least in refusing the advantages they give.
One thing is apparent from the evidence, that it would be most advantageous to pass an act to provide for the registration of all deeds and instruments rela- -tin.g to Crown property. It would diminish the length and cost of conveyances, and give value to the property by very greatly facilitating its transfer. Every deed might be printed; and the expense of this would be far less than many per- sons would suppose. Indeed, if the rough copy of a deed were taken at once to the printers, and when corrected, three copies were taken—one for the office, one to be registered, and the other for the parties to be duly executed—getting rid of fair copies, parchment, and engrossment, the expenses would be less than at present. The printing should be on one side of each sheet only, and the sheets should be of a fixed size. By very simple arrangements, all dealings with and charges on every portion of Crown property could easily be recorded and arranged for reference. The success of the scheme would contribute to establish the very general advantage of the registration of deeds for the entire kingdom.
It is not, perhaps, within the province of Lord Duncan's Committee to 'enter- tain this question; but if it were, it would be by far the most important measure it could possibly recommend.
A little in anticipation of the subject of Forest Law, a cause lately heard be- fore the Judges of the Court of Exchequer, in a trial at bar, may be here no- ticed—that of the Attorney-General versus Hallett. It appeared that Mr. Hallett bought .fifty acres of freehold land, -called Knighton Wood, within the walk of Woodford in the forest of Waltham, over which the deer of the forest had been accustomed to range. He enclosed his land, and began grubbing up the wood This, under the forest law, would be a grievous trespass, called "assert "—that is, bringing private land within a forest, affording covert to deer, into cultivation. This offence was in early times the source of constant disputes between freeholders and the Crown, and is alluded to in many ancient acts of Parliament. When claims were made in Forest Courts, the claimant frequently asserted his title to the " liberty and privileges of assert lands"; and the forest rents now paid by free- holders, which are generally small in their amount, (&L, 6d., or &L) no doubt had their origin as payments made for the privilege of "assert "—not, as some per- sons absurdly imagine, as payments on account of rights of common. Mr. Hallett " asserted "his land; and if the Crown had demanded five shillings an acre for the licence to do this, it would have been sufficiently satisfied, and no doubt the pay- ment would have been willingly made. But a high prerogative right was most objectionably insisted on; though the suit was compromised in the course of its being heard, by the payment to the Crown of 1001., after a very large expenditure of money in legal expenses.
There can be no doubt that the Crown ought in every case to allow all private freeholds, within the limits of the forests, to be enclosed on the payment of not more than eight shillings an acre, without any future legal disputes or trials at bar.
The Solicitor for the Board of Woods and Forests in Scotland is Mr. Donald Home. He was appointed in 1844; and the average annual amount of his charges to the Board are 2,080L—a really small amount, as it includes many ex- penses incurred. He has in hand a cause relating to land in the Orkneys, which was commenced in 1818; and, fortunately, only one point in the cause—on some rights of commonty—remains unsettled. No evidence has yet been given respecting the property of the Crown in Ireland. In my next letter, what is meant by the term "Forest," and its legal incidents, will be explained, in order to render any account of the modern system of ad-
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