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 happened 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 seemed to display all his Sentiments to the satisfaction of the Company. After which, he was much pressed 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 Public, and faithful trusties in Private Concerns, seldom scape without scratched 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 Tenors and Services were Registered 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 public 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 mere Trick and Gimcrack of the Law; That the Virtue 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 Tenors 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 itself, 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 Enrolled 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 Enrolled 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 Levied only to Gain, by Efflux of five years' time, a Bar upon Record.  
4. That it is ridiculous and senseless, 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 Nonpayment of the Tax makes the Sale Void) is a recompense for the Tax itself, 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 Judgement, the method whereof, is, To fix on the Church-Door, a Monition for all Claiming, etc. to come in; and then after some Forms past, (which by the way, are much too slow and chargeable) the Land is at length, by Judgement, freed from all Titles and Encumbrances whatsoever. In other Places almost all Contracts as well for Land as other Matters, are made by public Officers, called Notaries, and Registered. Nay, the Turks rely on Oggets or Decrees of the Caddes Registered. And out little Nation of the Fens hath a Register, which is approved by many years Practise, and may serve for a Model for the rest of England. Therefore he wondered 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 of Law, Authentic in Westminster-Hall, Que serra arrect sa folly, and so for laches, etc. And in latter Days, the Chancellors have said in open Court, They sat not there to relieve Fools. However pitiful we now are to careless and supine Men; it is a sad thing, that for their Sakes, the wise and vigilant should have no sure Footing, and in his Opinion they never could have in England, unless a Register of Estates, of some sort or other, were Established.  
You may imagine, that this Emportment of our Lawyers was no less diverting then a surprise, because we all expected he should have taken the side of most of his Profession, to be against a Register; and some could not forbear ask the Reason of his differing so much from them, in a Cause generally thought very opposite to their Interests; for many promoted a Register in pique to the Lawyers; and they on the other side, were observed to defend, as if the Freehold of their Profession were at Stake: To this, said he.  
I do believe some Lawyers are mainly from that Motive against a Register, others are so really, thinking unseen Mischiess may spring from it, and so to the Public, as well as to their Profession; but on the other side, many, and of those some Eminent Persons have been for it. And I must agree considering both sorts, generally speaking, the most public Spirited, and disinterested in Practice, have been, and are for it; and those who court Business most, are against it. And if we reflect how the Interest inclines, we may conclude, if Registers were not highly Useful, or rather necessary, you should not have the single Voice of a Lawyer for it; and that some have been so, is a greater Argument Pro, than all the rest opposing is Contra.  
He mentioned my Lord Chief Justice Hales, that great Light of the Law, whose subtlety and foresight suggested so many Casualites upon a Register, that he was afraid of the manner, rather than against the thing, as appears by his little Tract on that Subject, which hath been made public; wherein he concludes with some Cautions to be had in the Modelling; which shows he was not altogether against it. And he said, He had also seen a Tract on the same subject by another Eminent Chief of his Time, who is earnestly and clearly for a Register; And he had conversed with many others of the Profession of great Value, who were much for it.  
But he told us frankly, He thought the Lawyers were to be made use of by the Parliament, in a concern, such as this is, as by a prudent Client, who Consults them, but determines upon his own Reason, and gains his Advantage out of their Skill, by smiting with Doubts and Questions, as for Fire from a Flint. A Man that in all his Affairs will blindly steer himself by regular Counsel; If by Lawyers shall be strangely entangled in his Business; if by Physicians, lose his Health. A Prudent Man, versed in general Business, and a Lawyer, do well together, but either apart is not so well: It is the same in all other Arts and Professions, the Formality of their Employments ofttimes wants a Ballast of Prudence. It was lately observed in the Chancery, That the best Advocates at the Bar did not make the best Judges upon the Bench; to say no worse: For they were Bred and Practised, even to an habit of Spinning Cavils and Exceptions, Pro and Con. and could not forbear, when they were above it. The Parliament should use the Lawyers as their Council, to put in Form, but make their own Bargains, and therein they have reason to expect their Councils best Endeavours (according to their Profession) to draw up, and execute in the best manner they can contrive, but should not to be ruled by them, Pro or Con, positively upon the main; for that is matter of Policy and Constitution, more than Law: Bring any Business to a Lawyer, he goes to work with it as with a Title, studying Scruples; and treats it with a world of Subtlety, as if it were to be instantly Tried, or he were to move in Arrest of Judgement, or Quash an Indictment. A Legislator is a Spirit above a Chiccaneur, and must have a more comprehensive Aim, than serves to kick down an Indictment or a Declaration. He concluded, it was a peculiar unhappiness this matter had in Parliament that the Lawyers were so much harkened too; he thought the other Members ought to understand so much, as not to hang upon their Tongues either way; nor to have their Eyes blinded with misty Objections, which Interest and Partiality will ever be raising. As to the matter itself, a great deal was said, and I wish I could express it with as much satisfaction as I heard it, but what I can Recollect, follows:  
I. That if he were to Rule, every Man should be obliged to Register his last Conveyances, but knowing what a Bugbear that is, and how apt to startle Men, he was content to quit it, and that the Register should look only forwards, and be as Seed Sown in good Ground, to grow up, and get strength gradually, and that more out of Encouragement than Compulsion.  
II. Therefore it should be Enacted, That (after a time to be prefixed) all Conveyances, Assurances, Last Wills, Instruments and Agreements, concerning Lands, (except Leases at Rack) and all Judgements, Statutes, Recognizances, Originals Filled upon Bonds against Heirs, and in Warran' carta, lis pendens in Cancellar', and all other Acts and Processes, which may in consequence affect Lands in Purchasers Hands, shall be Registered in _____ days after the Date or Execution, and the Deed or Instrument itself be accordingly Marked, otherwise to be Void against all subsequent Purchasers. This is the gross Body of the Design: Whence Observe, 

1. That the Deed hath not its Legal Force from the Register, but as formerly, and as other Enrolled Deeds have; only in Case of Loss, the Register; (like inrolments for Safe Custody) will be a clearer Evidence than any is yet for Repairing them.  
2. That Men are compelled to Register only their Sales, Mortgages, or Marriage Settlements upon Consideration; as for Gifts and voluntary Settlements, they may Enjoy their Dear Darling Secrecy.  
3. That the puzzle and charge to Search in Three, Four, or Five Courts, and in the Common-Pleas no less than in Three several Offices, for Judgements, besides the Rolls Chapel, and with the Clerk of the Peace, for Deeds Enrolled, at the Fine-Office for Fines and Recoveries, at the Statute-Office for Statutes; and at the Inrollment-Office for Recognizances; with other Places he named, where the Business of the whole Nation is Collected all together, (all which should be done be every one who would deal upon Judgement and not upon Trust) is intolerable, and sometimes pretended, but scarce ever was, supposing it possible, (which he did not grant) to be done completely.  
4. The Business of Records will be brought into a Searchable compass and order, for they will be distinguished by Counties, where the Land to be Charged lieth, which is in no sort regarded now, but Judgements 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 Judgements, etc. but only such as they expect Use of upon Land, which may not be one Fourth part of what are Entered upon the Rolls.  
6. If Men are Cozened by Prior or Double Titles, or Encumbrances, it is their own Fault; Et serra arrecte lour folly.    
III. That Encouragement be given, viz. That the First Freehold Deed of every Estate Registered, 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 Registered; 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 Registered; and as for the Parcels, not Verbatim, but only the Names of Manors, and Villages, or Town-ships: But Recitals, Covenants, and Agreements, that work not on the Legal Estate, need not be Registered.  
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 Enrolled.  
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 Entered 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 Entered 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 Employment 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) mere 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 leg, 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 shows that no Law can be Established, 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 discharged 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, etc. 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 Judgements Entered, Men Personated or the like? Some have been, 'tis 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 Secrecy. 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 public? 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 Justify them; as by Purchasing, Matching, or the like; and would not sneak into Debt as they do, to the surprise, 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 Match into their Family are cheated; and which should the Public take care of, that you should cheat (for it is little better) or that they, and perhaps yourself in your own turn, should not be cheated? in this matter, showing is proving sufficiently. As to Settlements, if voluntary, they need not be Registered; however he saw not the harm of it, if even those were so; but why Men should value themselves as clear Owners of Mortgaged Estates, and none able to discover the contrary, he was not capable of understanding. And he thought among the many advantages by a Register, it was not the least, that Men of Estates, as in their Conversation, so also in their Negotiations, would endeavour to preserve Honour, and a fair Reputation, and do nothing Senseless, and Imprudent; much less so ruinous to themselves and Families, as the Trade of secret Usury, at present, is.  
As for quarrelling with Titles, he thought it a Cavil exaggerated more for Argument against a Register, than otherwise; for who now hath a considerable Purchase Deed made, but by Advice; and the forming a Legal Assurance, is not such a Mystery, but it is practised by every Attorney, and many Clergymen; and some Alehousekeepers make them after Precedents, and in small things not amiss; perhaps when they are public, Men will take better care, and go to Councillors as the old way was; which with the Men of his Profession he thought no objection: But here he fell from the Matter, to complain of the Puzzles in Titles from Fines and Recoveries, which he said served for little in themselves, but to keep up a Jargon and Mysterious Science, beneficial only to Men of Law and Officers, but a vast Charge to the Subject; and that it were well the Law were declared more intelligibly; Here one, being charged with another Objection, interrupted him, desiring he would leave that Matter, and return to the good old Cause of a Register; he replied, he was just at it, and strait declared his mind plainly, that were he to rule, he would have every Registered Deed have the force of a common Recovery, Fine and Non Claim.  
This let lose a heavy Charge upon him, for seeking to supplant so many Officers and their Families, who had bought and subsisted by the Business of Fines and Recoveries, as also a Revenue the Crown had from them.  
He said no, he would have the Registry advance, and not diminish the Interests of all the Officers belonging to the Courts of Justice; but it should be in a direct plain way, and not by Ambage and Trick; that is, he would have them made amends, either by being made the Officers in the Registry, (if they thought fit to accept) or else by Money at full Rates: and so also the Interest of the Crown might be answered And he thought a very small I and Tax, to be collected gratis, which all Men would willingly pay, would much more than answer that Occasion. He added, that he thought it another infelicity this Affair had in Parliament, that, besides the endeavours of Attorneys, Scriveners, and other Persons, who esteem the Vicious practice of the Law, their gain; there are so many Officers of Courts, and in places, who are prudent deserving Men, and have good Esteem and Interest, but thinking their Freehold, (as they call it) purchased with their Money, at stake, in the Cause, oppose a Register with all their force, which hath considerable Efficacy; for Men are loath to supplant the Livelihood of others not underserving, without compensation: therefore, whatever Taxes were imposed on other Occasions, he would not have one wanted for this, which he thought no less important to the Public, than any in hand.  
As for the Lawyers, he thought they were in a mistake, apprehending a Register would curtail their practice; it seemed more probable it would increase it; for if Wealth and Security grew from a Register, which would scarce be denied, Law-Suits would grow no less. It was ever found, that multitude of Dealing produceth Controversy; and Wealth, Pride and Obstinacy; Some Counties of England formerly noted for Litigiousness, now are very peaceable; not from any late clearness grown up in our Laws, but on the contrary, from Great Charges, and incertainty of Success: Besides, few Law-Suits for Land are now upon nice Questions of Conveyancing; but upon Mortagages, Descents, Dormant Intails, and the like: The great Land Disputes now run upon Trusts, and Equity's in Chancery; in so much that the Attorneys at Law are glad to turn Solicitors there, to be employed.  
But to conclude (for it grew late) he said, a Register had probably succeeded in King James' Parliament, but for one Accident, which was a Jealousy that the Officers (who must be named by the Crown) would be of a Faction not proper to be general Inspectors of men's Estates: He thought the Jealousy not Adequate, but so it was; that hint whispered, killed the Bill. It is not so now, said he; but yet I fear Whispers, which are often more venomous to good Businesses than open Opposition, having been so fatal to that attempt, may also be prejudicial to this.  
Upon the whole Matter he would have it considered, that it is impracticable to frame a Register, without Objection from possibility of Abuse, or perhaps hard Cases in some particulars; which latter may be remedied (if thought fit) by a power set up to relieve for some time. Nay, he allowed, that many unforeseen Abuses would afterwards in practice appear, which no Human Wit, or Sagacity could prognosticate; but he would not have this keep down a good Constitution; for, as he said, it was an Objection of the same force against all Law, and Jurisdictions whatever. And to see how little danger there was of that sort, in this now Discoursed of Register; look, said he, to the Fens, where is a Parliamentary Register established, and practised for many years; and no Forgery, Abuse, or so much as a Grumble, for any thing amiss that he (though a Neighbour) ever heard of yet, in the survey of that Office, Let that Example of a very great Benefit in the end, & little or no Abuse in the practice, answer all the Fears and Jealousies conjured up by Partial Interests. Yet, said he, for once grant that many and considerable Abuses may be; are we to be without Parliaments; to regulate and polish in time, what perhaps cannot be digested in perfection at first? Establish a Register, lay a Foundation; the Care and Prudence of the best Men, will help, by degrees, to give it perfection; and looking forward only, there is no danger of any great harm from it, to any particular Person whatsoever. And the sooner this is done, the better; for in process of time it must, and therefore will be; Why then should this, or the next Age want it?  
For my own part, I confess, these Discourses so recovered (though imperfectly) in Writing, have engaged my Opinion most clearly, that a Register of Estates is not only useful, but almost necessary to be set up in England, for the Security of Titles to Land; and consequently, that it is every Man's Duty to promote it; And it lying not in my way to join in so good a Work at present, otherwise than by making these Notes public; I have committed them to the Stationer, to launch in Print, hoping, (whatever the Nations share is) he may be no loser, by so doing.  Misera servitus ubi jus est vagum. 
FINIS.