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the registry working smoothly; but under the system proposed a society would only be liable in the case of negligence in the investigation of title, just as a solicitor would be now; and if it wished to lessen the danger of captious conveyancing clerks it would be easy to frame rules under which points as to title could be referred to the Board, or a sub-committee, for every one who has had experience of conveyancing business knows that a man well up to his work can tell almost intuitively what points are really important and should be pressed, and what may be waived, but that standard of discretion can never be defined by rules and orders.
It would be well-nigh impossible to lay down under this head satisfactory rules for the guidance of an examiner of title, or conveyancing clerk,' as his prototype is now called; but the important fact is that under the scheme suggested a solicitor wishing to register his client's title, if dissatisfied with the opinion of the society's representatives in the first instance, could refer the point at issue to a committee appointed by it of experienced solicitors, having recourse to counsel if necessary, as is done now; but under the rigid rules of a government registry all this would be impossible.
For example, consider for a moment sec. 17 (subs. 4) of the Land Transfer Act, 1875, which enacts that the Registrar may accept as evidence recitals in documents not less than twenty years old. Under the system being discussed the conveyancing clerks would follow the present practice observed by solicitors, which is to exercise a reasonable discretion as to evidence of title, and would be probably hampered by no fixed rules on this subject. If the examiner was not reliable, or was careless or over-cautious, his employers would quickly replace him by some one more suitable for the post.
It may be noted that if a society wished to protect itself against loss, arising through negligence in investigation of title or otherwise, it could easily do so by providing a fund for that purpose, or by insuring with an insurance company, as is very usual in the United States 1.
It may be urged as an objection to the proposed scheme that you do not thereby do away with officialism ; true, but surely there is a vast difference between cast-iron rules framed for the guidance of a government official, and rules framed by practical men, whose interest it would be to provide workable rules in order to promote and facilitate the transaction of business, and gain thereby the resultant profits accruing to the society in which they would participate, and a system under which the examiner of title prefers to
· Notes on Land Transfer in various Countries. Fortescue Brickdale, 1894.
run no risk, between a system under which a point could be referred to a committee of reasonable and experienced men standing in a position of authority and able to calculate the risk their society would run in accepting a doubtful title, and a body of officials 'cabbined, cribbed, confined, bound in' by an inflexible system of rules and routine. Surely under some scheme of this sort the evils of officialism would be greatly lessened if not entirely overcome.
Another objection which may be advanced is that the societies would not reduce their fees? when in due process of time it became
1 reasonable that this should be done, and it might well be urged that the work would be far cheaper done than under government management: but naturally there would be government control as to this and many other matters, for while the internal working of the registry as regards the procedure of investigating title, granting certificates, and so forth, should be left to those who would control the societies, yet considering that a profitable monopoly would be relegated to one branch of the legal profession, it would be just that Government should in the public interest in certain details exercise an overriding authority.
Whether it is wise that the whole conveyancing business of the country should pass into the hands of officials, with all the concomitant evils of officialism, as will be the case unless the Incorporated Law Society wrest it from their hands, has to be proved; but the writer hopes that he has made clear the outlines of a scheme under which land-transfer business would remain with those who know best how to carry it on, at the same time the public would reap the enormous advantage of avoiding the expense of repeated investigation of title to the same land; for when that ceases then has come to an end the chief, may one not say the only reason why land-transfer is with us so expensive, and to lessen that cost would confer an immense boon on owners of broad acres as well as on the thrifty artisan and the owner of house.property, and would benefit in a lesser degree the banking and capitalist lending community.
The object of these pages has been to show : (1) That the chief defect of the existing system is the heavy cost of repeated investigation of title. It is that which registration of title would obviate. (2) That a system of titles certified by government officials involves the great evils of officialism, even under the most favourable conditions. (3) That Land Registries, with compulsory registration of title on any future disposition of land, could be worked by societies composed of solicitors within the district, and constituted on the Joint Stock Company principle, under which titles would be investigated according to present practice as far as possible, and the whole machinery of the registries be worked by practical men under workable rules, conducive to the interests of both the public and the profession. (4) That the public would gain by the disappearance of the cost of repeated investigation of title to the same land, and by the continuity of the transaction of their affairs by their solicitors, a body of men whose interest it would be to facilitate business, whom they know and can trust, whose experience is the result of years, and who in the main have loyally and conscientiously served the interests of their clients, the British public.
1 The Land Transfer Act, 1897, virtually prohibits the governmental working of a land registry as a source of profit (sec, 22, subs. 4).
CONTINUOUS VOYAGES IN RELATION TO CONTRABAND
OF WAR: THE AFFAIR OF THE GAELIC IN
THE CHINO-JAPANESE WAR.
N the article on the application of International Law during
the Chino-Japanese war' which appeared in the last number of this REVIEW, Professor Takahashi mentioned his forthcoming work on that subject. In one of the notes which I have contributed to that work I have taken occasion, from an incident concerning the Gaelic, to give to the doctrine of continuous voyages in relation to contraband of war a fuller discussion than I think it has yet received in England. By the kindness of Professor Takahashi I am allowed to reproduce this note here. It is as follows.
The Gaelic was a mail steamer which called at Yokohama in Japan in the regular course of her voyage from the United States port of San Francisco to the British port of Hong Kong. Before her arrival at Yokohama the Japanese government had received information that there were on board of her as passengers three persons of the description of contraband or analogues of contraband, seeking Chinese service and carrying to China some material intended to destroy Japanese ships. At Yokohama the Japanese government caused the Gaelic to be searched for the persons and material. Before the search was finished it was discovered that the persons had left the ship. In fact, notwithstanding that at San Francisco they had taken passages by the Gaelic for Hong Kong, they proceeded from Japan in another vessel to the Chinese port of Shanghai. But the search was continued, on the supposition that they might have left some of the material behind.
The British authorities in Japan objected to this proceeding on the ground that the Gaelic bad no hostile destination, Nagasaki in Japan being the only port at which she would call in the regular course between Yokohama and Hong Kong: it was true that the vessels of the company to which she belonged often call at the Chinese port of Amoy, but there was no proof of any intention to do so on that voyage. And they contended that the neutral destination of the ship precluded search, it being immaterial whether anything on board her had a hostile destination ulterior to that of the ship. On the other hand, the correctness of the proceedings was maintained, on the ground both of the probability that the Gaelic might call at Amoy, and of the doctrine of continuous voyages as applicable in case contraband persons or goods on board her were destined for China even by way of Hong Kong. These opposing arguments call first for an examination of the doctrine of continuous voyages as affecting (1) goods contraband of war, (2) persons contraband of war, or analogues of such contraband, and afterwards for an examination of the question from another point of view which will appear.
I. The doctrine of continuous voyages as affecting goods. Goods on board a ship destined to a neutral port may be consigned to purchasers in that port or to agents who are to offer them for sale there, in either of which cases what further becomes of them will depend on the consignee purchasers or on the purchasers from the agents. Such goods before arriving at the neutral port have only a neutral destination; on arriving there they are, in Lord Stowell's language, imported into the common stock of the country; if they ultimately find their way to a belligerent port or to a belligerent army or navy it will be in consequence of a new destination given them, and this notwithstanding that the neutral port may be a well-known market for the belligerent in question to seek supplies in, and that the goods may notoriously have been attracted to it by the existence of such a market. The consignors of the goods to the neutral port may have had an expectation that they would reach the belligerent but not an intention to that effect, for a person can form an intention only about his own acts, and a belligerent destination was to be impressed on the goods, if at all, by other persons.
On the other hand goods on board a ship destined to a neutral port may be under orders from their owners to be forwarded thence to a belligerent port, army or navy, either by a further voyage of the same ship, or by transhipment, or even by land carriage. Such goods are to reach the belligerent without the intervention of a new commercial transaction, in pursuance of the intention formed with regard to them by the persons who are their owners during the voyage to the neutral port. Therefore even during that voyage they have a belligerent destination, although the ship which carries them may have only a neutral one.
In the case first put it is agreed that the goods, though of the nature of contraband of war, and the ship knowingly carrying them, are not subject to capture during the voyage to the neutral