Front Page Titles (by Subject) THE LAW OF REAL PROPERTY 1 - The Collected Papers of Frederic William Maitland, vol. 1
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THE LAW OF REAL PROPERTY 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 1 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 1.
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THE LAW OF REAL PROPERTY1
It may be hoped that the reform of our land laws will at some not distant day come within the sphere of practical politics. Already most Liberals acknowledge that there is, or may be, a “Land Question,” though they would freely admit that at present they are not prepared with an answer to, or even with a very precise statement of, that question. Nor is there necessarily anything unreasonable in this somewhat vague dissatisfaction. Many an invalid knows that he is unwell without being able to give a name to his ailment, and it certainly is not surprising that those whom lawyers call laymen should have no very definite opinions about real property law. With all their love for politics and public affairs, Englishmen are easily content with knowing nothing of the ordinary civil law under which they live. So long as it is not scandalously unjust they are satisfied, and for the rest will trust to Providence and the family solicitor. And if this be the case with the more modern and intelligible portions of the law, still truer is it of the inscrutable mysteries of real property. How could it be otherwise? How is the ordinary man to become acquainted with them? If he consult his “Blackstone” he straightway finds himself in the Middle Ages, or, what is far worse, in a theory of the Middle Ages, concocted by the lawyers of the last century. He has to learn a new language, and to acquire wholly new habits of thinking about the most ordinary transactions. He is perplexed by ancient statutes, and troubled with “the learning of feuds.” All is to him unreal and unreasonable, and in all probability he decides not to waste his time over matters which, after all, do not concern him very greatly. As to his own affairs, there is the family solicitor, while as to the affairs of other people, they are, by supposition, no affair of his.
Natural as all this is, it is none the less to be regretted. For we move in a vicious circle. The people cares not to understand its own laws, because these laws are obscure and antiquated; the laws are obscure and antiquated because those who would be advantaged by their reform know nothing about them. And as our Constitution grows more democratic it becomes ever more important that our civil law should be widely known. Little will now be done by Parliament to which it is not urged from without, and in these days, when there are always many excellent and exciting electioneering cries, many questions about which it is easy to make a stir, no Minister could afford to devote Session after Session to measures, however indisputably useful, for which there was no popular demand. It concerns Liberals in particular to see that nothing is lost by those successive extensions of the suffrage which they have advocated. But something will assuredly be lost unless the electoral body can be persuaded to interest itself in our everyday civil law. Something will be lost if the spirit of law reform which was fairly awakened in Parliament some half century ago be allowed to languish before one tithe of its appointed work is accomplished.
It is hard to believe that there can be any reform more necessary than a reform of our land laws, and yet it is a reform which might easily be accomplished were popular attention once fixed on the work. It is really to no one’s interest that the law should remain what it is. Opposition, of course, there would be, for there are some whose honour demands that they should resist every change; but their honour would be easily satisfied, their resistance official and half-hearted. There have been times when a vigorous and virulent opposition to law reform was to be expected from lawyers. But lawyers have apparently grown wiser. It has become plain, from many proofs, that they have no real interest in maintaining a cumbersome and clumsy system. Here, for instance, is Mr Joshua Williams, the professor appointed to instruct law students in the hidden wisdom of real property law, the writer of books from which hundreds of lawyers have learnt all the real property law they know. He lectures on the Seisin of the Freehold. Now, when a very learned professor of the laws undertakes to lecture on so dark and mysterious a theme, we are wont to expect from him some of those bravura passages about ancestral wisdom, and the perfection of reason which Blackstone so brilliantly executed before crowded and admiring audiences. But Mr Williams disappoints us. In his first paragraph1 he states his belief that some of the most remarkable of our laws are “absolutely worthless,” while “others are worse than worthless; they are absurd and injurious”; and in his last paragraph1 he modestly opines that he has made good this his first thesis. Now, when those who are set to teach the youth hold such language as this, there are but two courses open to us—to silence the professors, or to reform the laws.
But while it is impossible to defend the law as it at present stands, it is only too possible for reformers to differ among themselves as to what changes should be made. There are many who would look on no improvement of the law as final which did not do something towards securing a more equal distribution of landed property, towards lessening the power and influence of the land-owning aristocracy. There are others who would move in this direction with reluctance, or at least with much hesitation. Now it is to be feared lest a difference of opinion about the end of the journey may prevent our taking steps which all must allow tend in the right direction. For it seems to us that before any further advance can profitably be made, it is quite necessary that the law should be much simplified. Here is something on which we might agree at the present moment, and a measure which can in no way prejudice the cause of any further reforms. Unless this work be done we shall have more of that tinkering of antiquated law of which the disastrous results are daily seen,—fresh gins and pitfalls for the unwary. The new patch will be put upon the old garment with the result which we have been taught to expect.
But though the reforms at present most necessary are chiefly reforms tending to simplification; though they imply no alteration in the habits of English society, no interference with the manners and customs of land-lords, farmers, and labourers; though they might leave the agricultural system which Lord Hartington has lately attacked, and Lord Beaconsfield defended, much as it was before, it should be well understood that they must be real reforms, real changes, not mere additions to our law. Of mere additions to our law we have seen enough. We have now before us two Blue Books containing the results of an inquiry conducted by a Committee of the House of Commons as to the steps which ought to be taken “to simplify the Title to Land and facilitate the Transfer thereof, and to prevent Frauds on Purchasers and Mortgagees of Land1 .” The point to which the attention of the Committee was chiefly directed was the complete failure of two modern statutes, the one due to Lord Westbury, the other to Lord Cairns, intended to provide means for the registration of titles to land. On these two statutes, or at least on the latter of them, many reformers had pinned their hopes, but the witnesses examined, and the members of the Committee, however they might differ on other points, could not but agree that the failure has hitherto been complete. This is, indeed, so painfully obvious as to be beyond dispute. The Acts have been ignored by landlords and their advisers. Many different causes were assigned for this failure. The more hopeful considered that the scheme had not been sufficiently advertised; that solicitors had not been properly conciliated; that Lord Cairns’ Act had been prejudiced by the collapse of Lord Westbury’s inferior and less practicable measure. The less hopeful referred to the great complexities of English titles, so different from the simple and registrable titles of Australia and New Zealand, to the fact that a land owner has no inducement to incur the expense of putting his land on the register, to the English love of secrecy, the English hatred of offices and officials. These differences of opinion spread from the witnesses to the members of the Committee, and produced two draft reports, the one submitted by Mr Osborne Morgan, and finally adopted, the other proceeding from Mr Shaw Lefevre. The chief issue between the two reports was the expediency of requiring the registration of deeds. Now the registration of deeds is a very different matter from the registration of title. The report puts the distinction clearly and well. The registration of title “aims at presenting the intending purchaser or mortgagee with the net result of former dealings with the property,” while the registration of deeds “places the dealings themselves before him, and leaves him to investigate them for himself.” It was generally admitted that the registration of title aimed at by Lord Cairns’ Act is the more desirable system, and that the Act itself is very cleverly constructed. The great question was whether, this Act being for the present a dead letter, we ought not at least, as a temporary protection against fraud, to compel the registration of deeds. It was allowed that such registration is an efficient protection against frauds of a particular kind, a kind which has lately been brought to the notice of the public by the ingenuity of Messrs Dimsdale and Downes. These gentlemen, it was acknowledged, could hardly have succeeded in giving ten or twenty “first mortgages” on the same piece of land, had that land been situate in Middlesex or Yorkshire, in a county, that is, in which the registration of deeds is required. But desirable as it is to secure ourselves against a repetition of these scandalous frauds, it is thought by Mr Lefevre and those who followed him that this security would be bought at too dear a price were we to abandon our ideal, a registration of title, and adopt and consecrate an inferior though more immediately practicable system. The question is doubtless difficult, and we hesitate to decide between many high authorities and many sound arguments; but, on the whole, we think that the minority of the Committee were in the right. We shrink with Mr Lowe from that “mausoleum of parchment,” a registry of deeds. Of two schemes, both of which will protect us against Mr Dimsdale, but only one of which will render the sale and mortgage of land a simpler and less costly undertaking than it now is, the choice seems easy, and we will not believe that the better plan is impracticable until efforts much more vigorous than any hitherto made have failed to secure its adoption. For the present compulsory registration of title is out of the question, and we may be heartily glad that it has not been tried. It would, indeed, be impossible to force all land owners to do what not one land owner in a thousand has chosen to do of his own accord. The suggestion has been made that it is so much for the benefit of society at large that a habit of registering should be formed, as to make it sound policy for the State to undertake for some few years to register titles for a very small fee, or even gratuitously. This suggestion seems to us worthy of all attention. It may shock stern economists that public tax-raised money should be spent to confer a benefit on individuals already lucky enough to possess land; but it may well be doubted whether we could lay out money in a manner more advantageous to posterity than by inducing the present generation of land owners to set their titles in order, and have them publicly registered.
But all this by the way; whether the State should insist on the registration of titles as a matter of national concern; whether, even if it were willing to incur expense, it could in the present state of English law get the work done successfully, are questions which we may raise, but will not discuss. One fact, however, is obvious, namely, that among the chief obstacles to any efficient system of registration is the perverse complexity of real property law.
This was brought to the notice of the Committee by many most competent witnesses. Indeed, it was so constantly brought to their notice that they could not but recommend in their report certain changes in the law. Perhaps they felt that in proposing these changes they were trespassing beyond their proper sphere. To this we readily ascribe the timid and desultory nature of their proposals. They propose that a certain statute, called the Statute of Uses, should be repealed; that the land of a dead owner should pass, not straight to his heir, but to a “real representative” comparable to the personal representative who takes his goods and chattels; that the machinery of a mortgage should be less clumsy than it at present is. Now all these may be changes in the right direction; but if it was the Committee’s business to consider them it was also their business to consider many other things also. Apparently they were content to catch at a few valuable hints thrown out by Mr Joshua Williams, Mr William Barber, and other witnesses, without asking themselves whether the particular absurdities which they condemn are not logical parts of a system the whole of which is equally worthy of condemnation. We should be glad to learn that the Committee (a more able and industrious it would be hard to find) had been reappointed with power to consider the whole of our land laws. We are convinced that such reappointment would result in proposals very different from those now made, proposals not limited to the trimming and pruning of essentially bad law, but extended to the rooting up of the cause of all those evils which are noticed in the present report and countless others no wit less grave.
For though we would begin with changes which might be called formal rather than material, these changes should be bold and thorough. The simplification of our land laws which is needed is nothing less than a total abolition of all that is distinctive in real property law. The distinction between real and personal property might be done away, without any disturbance of substantial rights or interests. There would be a saving of money, of time, of temper, of trouble; a saving of vexatious lawsuits and of those worst of quarrels—family quarrels; vast masses of antique and unintelligible law might be for ever forgotten; but beyond this, there would be little change, and certainly no change which the veriest Tory could call revolutionary.
It is really high time that the question should be asked, whether we gain anything whatever by keeping two systems of property law. Two systems we have, as many know to their cost, each with its own peculiar history, each with its own peculiar doctrines. Of course, it is plain enough that for certain purposes law must distinguish between the various subject matters of proprietary rights, and must place land in one class, moveable goods in another. It is chiefly with regard to the remedies for wrongs, breaches of contract, trespasses, and the like, that the distinction is important, and the distinction is well enough marked in English law, but marked, it should be noticed, by a line which does not coincide with that which divides real from personal property. And yet it is to this distinction that the words real and personal apparently point; for real property, so the phrase would lead us to think, there are real remedies, for personal property none but personal remedies. But these words are of late introduction, and were always inapt. The old word hereditaments, things descending to the heir, is the real key to the situation. Our distinction between the two kinds of property is not to be explained by any jural necessity, it is the outcome of a long chapter of accidents. What is really at the bottom of the distinction is the fact that we have two systems of inheritance, or, if that phrase be incorrect, one law of descent and another law for the distribution of an intestate’s goods and chattels. This is the one central, all-important fact from which the two systems diverge.
What, then, do we want with two systems of inheritance? We might, however, be thought visionary and unpractical were we at once to address ourselves to this abstract question. To any arguments drawn from the complexities which arise from this dualism, or from the comparative simplicity of foreign law, it might be replied that having a good, or at least tolerable, law of descent, we ought not rashly to abandon it for the sake of technical symmetry. For, of course, it is the law of descent, the law applicable to real property, that is threatened, no one being so enamoured of the heir-at-law as to desire that he should take, not only all the land, but also all the goods. Of the law of descent we are therefore obliged to speak, though it is certainly difficult to criticise it without insulting the intelligence of our readers. What need be said may be said in few words. The law makes a will for intestates which no sane testator would make for himself. However often this may have been said, it remains unanswered; it is unanswerable. Its truth may be easily tested. There are hundreds of wills set forth in the law reports, and any one who will look at them, or who will even look at the Illustrated London News, may see that it is not the rule, but the rare exception, for any man to leave his land to his eldest son without making provision thereout for his widow and younger children. Besides, what class of persons is it that the law of inheritance should regard? Surely those who are most likely to die intestate, the men of small means, not the owners of vast estates; and in popular estimation a man of small means would be guilty of more than folly and little less than crime were he to make the will which the law, in the fulness of its wisdom, makes for him. We are glad to hear Mr Williams speak his mind on this matter. He, we should imagine, had no prejudice against the law of real property, but “I confess,” he says, “that, saving estates tail, the descent of which should, I think, be permitted to remain, I should be glad to see the whole law of inheritance swept away1 .”
The Essay by Mr Eyre Lloyd, with the title of which we head this Article, is instructive2 . We cannot, indeed, praise the work very highly, but it serves to bring into strong relief the fact that the whole civilised world is against us. It was not always so; primogeniture has been known in many parts of Europe, the postponement of women in most, perhaps in all. But it is so now. Mr Lloyd arranges the countries of Christendom in alphabetical order, and as we pass from Austria to Wurtemburg the same phrases constantly meet our eyes; “all property, real and personal, is divided equally between the children,” “without distinction of sex,” “no distinction between males and females,” and so forth, continually. And the exceptions are noteworthy. The only exceptions of any importance are Great Britain, Russia, and Servia. Have we not lately learned (if not, we cannot plead a lack of instructors) that of all countries Russia is the most barbarous and backward, save, perhaps, Servia? And yet it is to the despised Russia, and the contemptible Servia, not to France, Germany, or Italy, that we must look for a law at all resembling our own. But let us not be downhearted. Mr Lloyd has concerned himself only with Christian countries; should he at some future time turn to the heathen he may obtain valuable and gratifying results.
But, better still, he should turn to the Dark Ages. To Herr Brunner the English law of inheritance is vastly interesting1 . There has, it seems, been a notable dispute among German antiquaries, who have divided themselves into two Schools, Gradualisten and Parentelisten, over the question, What was the pure Teutonic law of inheritance before it was corrupted by Romanism and reason? Some aid towards solving this nice problem may, Herr Brunner thinks, be found in the Anglo-Norman law; and so in praiseworthy fashion he has set himself to examine Glanvill, Bracton, and the old Norman customs. His short Tract is a valuable contribution to the history of English law, one of those contributions which we obtain but too seldom from English lawyers. But we must leave Gradualisten and Parentelisten to fight their own battles. We are, unfortunately, not at present in a position to examine our law from the archæologist’s standpoint. Let us, however, notice, with pardonable pride, that a learned historian in search of the primitive finds it in law which is still in force among us. For should our readers desire to know what law it is that Herr Brunner reveals as a curiosity for admiring antiquaries, they have no need to trouble themselves with mediæval Latin or Norman French; let them but turn to Mr Williams’s well-known text-book, and there, explained in the clearest English, they will find substantially the self-same law1 . A few little changes have been made—for accidents will happen in the best regulated museums—but, on the whole, this interesting specimen of antiquity has been most carefully preserved.
Englishmen, no doubt, are proud of this priceless curiosity, but apparently their pride is somewhat uncritical; they are hardly aware of the facts whence it derives its vast value in the eyes of connoisseurs. Such, at least, is the conclusion to which we are brought by a perusal of “Hansard.” It seems to be thought that a vague reference to “feudalism” is a sufficient account of the origin of primogeniture. Perhaps familiarity with this law has blunted our power of discrimination. We are so accustomed to see all the ages jumbled together in our nineteenth century law that nothing surprises us, and any semblance of explanation which may be offered for existing institutions is accepted as satisfactory. “Feudalism” is a good word, and will cover a multitude of ignorances. To ask what was the real connection between feudalism and primogeniture would argue a reprehensible discontent with beliefs sanctioned by Blackstone and orthodoxy. Thus we miss the really noticeable points in the history of our law, and our attention must be drawn to them by learned foreigners, by whom they can be contemplated with the single eye of scientific interest. We are used to an unreasonable law of real property, and we find no difficulty in believing that what is unreasonable now was unreasonable always, “feudalism” of course, being a particular form of unreasonableness not to be rashly defined.
And so with the postponement of women, this also is sometimes called feudal, but with much injustice; it is better than feudal, it is primitive, it is grandly barbarous; nay, it is prehistoric. Indeed, the decline of the old law of inheritance had begun long before anything that could be called feudalism made its appearance. Already in the seventh century a king of the Visigoths ordained in the plainest terms that females should share equally with males, and supported his decree by sophistical reasoning about nature and justice. But there is no accounting for the caprices of foreign monarchs; and in this country no rationalizing Prince, Potentate, or Parliament has hitherto laid unholy hands on the sacred principle. Englishmen, we say, are not sufficiently aware of the high pedigree which may be claimed for their law. It may be (we do not say it is, for we would not excite hopes destined to be blighted, but it may be) that our law of inheritance has some connection with that pure and primitive record of barbarism, the Salic law, ce texte si fameux, dont tant de gens ont parlé, et que si peu de gens ont lu1 . We must not be too eager to adopt a conclusion so gratifying to our national vanity, but the fact remains, that the author of our Leges Henrici Primi, when he came to speak of the law of inheritance, thought fit to abandon his English authorities, and to transcribe, with slight modification, a passage from the Ripuarian law. This passage was itself but a slightly modified transcript of the world-famous words in the Lex Salica. Why the English compiler did this we cannot say, nor can we shut our eyes to the fact that his work is bad and untrustworthy, but still there is some ground for hope, and national boastings have been based on worse evidence. But what a cause for congratulation is here! The Lex Salica, so high authorities tell us, was in its earliest form the production of a still heathen nation uncorrupted by Christianity or civilization. Really, when we think of the many destructive forces which at one time, of course long ago, threatened to deprive the male sex of its just prerogative, it seems little more than an accident, little less than a miracle, that our law of inheritance came safely through those revolutionary Dark Ages. There was the Church arrayed on the side of women, and of the meddlesome canon law all diligent readers of “Blackstone” know what to think. There was the civil law, including those improper Novels which even English judges are suspected of having perused in private. Nor are the names of individual revolutionists wholly forgotten. In the seventh century, and the neighbourhood of Paris, there lived a monk and conveyancer, one Marculf by name, the father of all those who publish collections of precedents. This bad man, not respecting ancestral wisdom, settled a form of conveyance from a father to his daughter, with intent to circumvent the salutary Salic law, which he scrupled not to call “diuturna sed impia consuetudo.” Diuturna, indeed, what would he have said now? We are afraid that he would have said diuturnissima. Impia indeed, but let us remember, in his favour, that the law was not in his days so old and mellow as it now is. And yet there are those even in this nineteenth century who, unconvinced by the annual eloquence of Her Majesty’s law officers, and glorying in their invincible ignorance, still mutter to themselves the words of Marculf, “diuturna sed impia consuetudo,” or, changing the phrase but not the meaning, adopt Mr Williams’s plain English, “worse than worthless,” “absurd and injurious.”
But, in all seriousness, why should women be postponed? It must be out of respect for some one’s memory. But whose? Is it Ethelbert or Cnut, is it Salagast, Bodogast and Widogast, or Choke, Croke, and Coke, is it Howel Dda or Dynwal Moel Mud? The Conservative party is a historical party, let it explain to the uninitiated the exact form which its ancestor-worship takes. And it really should be more consistent. It would, perhaps, be imprudent to re-enact the whole of the Lex Salica, because there are so many words in it which no one understands. A modern judge, not inexpert in the construction of obscure documents, might reasonably shrink from the title “De Chrene Cruda.” And so with the Welsh Triads, and the Senchus Mor, and even with the Dooms of Hlothar and Eadric. But were we really in earnest something might, with the help of philologists, be done for the great principles of archaic law. Foreigners have stated as a fact, that it is still common in England for a man to sell his wife1 ; that they mistake Punch for the Statute Book is plain, though pardonable. The statement is unfortunately not quite accurate, but it might be made so ex post facto by the next Metropolitan Markets Act. We are in difficulties with our bankruptcy law; might not a short and easy way with insolvent debtors be found in, let us say, the Twelve Tables? But we really must have the blood feud; no criminal code will be complete so long as this antique and excellent institution is neglected. As matters at present stand, our law of inheritance does look a little foolish, and from time to time the words of Marculf recur to our minds. But make our law all of one piece, and all will be well, the wisdom of our ancestors will be respected, and the price of woad will rise.
We would fain be serious, but we can only regard the arguments in favour of postponing women to men as some sort of fantasia or capriccio on the Leges Barbarorum. But the subject has a side which cannot be so airily treated. We again repeat that it is not our purpose to deal with the more obvious effects of our law of inheritance; about these readers of this Review have probably made up their minds. But it seems doubtful whether the full strength of the case for reform is widely known, and we turn to some of the less obvious effects of the law, believing that were these well understood there could be but one opinion as to the necessity of a radical change. For absurdity can go no further than to represent the badness of this law as a sentimental grievance. It may seem a small thing to introduce a reasonable system of succession on intestacy, for few who have aught to leave allow our absurd law to distribute their property; but even though the direct and immediate reform may be small, it must bring in its train certain other reforms which would effect a simplification—a time-saving, money-saving simplification throughout the whole body of the law.
But, in the first place, let it be noted that our canons of inheritance, besides being guilty of the two capital follies with which they are commonly charged—primogeniture and the postponement of women—are in other respects thoroughly bad. What shall we say of a law which ordains that if a man purchase land and die without issue, his most distant relative on his father’s side shall inherit before his nearest maternal kinsman, before his mother herself? A “parentelic” system of descent may interest foreign professors, but its convenience and justice are not readily seen. Surely there is nowadays no presumption that a man’s paternal kinsfolk are, or ought to be, nearer or dearer to him than his mother and his mother’s kin. Our Statutes of Distribution, which, being but two centuries old, we may call modern, may not be very perfect; but at least they start from the sound cognatic and “gradualistic” principle, which is, as a matter of fact, the principle of the modern family.
In the second place, we can now well spare the local customs of descent—gavelkind, borough English, and those still more anomalous customs which lie dormant for centuries, and never awake save to do a mischief. The only reason for retaining the gavelkind custom has been, that it was one degree less ridiculous than the common law; it postpones females to males, but knows not primogeniture. The borough English rule, which gives all a man’s land to his youngest son, has also fulfilled its only purpose, that of preserving for modern historians a relic of an almost prehistoric family system. But the time has come when all these local rules should perish; they are merely snares for lay-men and traps for costs. However, all this is, or should be, obvious enough, and we pass to some remoter consequences which must follow from the adoption of one law of succession for all kinds of property.
Foremost among these we reckon the abolition of “equitable conversion,” and all its attendant subtleties. The doctrine of conversion (let not our readers think that we here desert law for theology) arises in this way. A man owns land; by his will he directs trustees to sell that land, and to divide the proceeds between A and B. The trustees do not sell at once, and while they delay A dies; who is to take his share of the money, his real or his personal representatives? It would be unfair that the trustees’ delay should benefit the heir at the expense of the next-of-kin, and the rule has been established that the trust to sell converts the land into money for the purpose of succession. And so with the converse case in which a testator directs money to be laid out in buying land for one who dies before the purchase is made. A person, it is said, may make land money, or money land. Hence an infinity of perplexing questions, hence a vast mass of law, much of it very equitable and very elegant, but all of it quite unnecessary. Many thousand law-suits has this transubstantiation, or rather consubstantiation (for land may be land for some purposes and money for others), cost the country; and yet this doctrine is the unavoidable consequence of having two systems of succession where one would suffice. Once get rid of the heir-at-law, and there will be no more need for conversion; all property will be for ever personal property.
It should be remembered that English law is by no means unprepared to deal with personal property in land. In the first place, this device of conversion is often resorted to for the very purpose of placing land beyond the reach of our inheritance law, and rendering it divisible among the next-of-kin. In the second place, there are leaseholds, and leaseholds are personal property. It is certainly very ludicrous that when a man dies intestate the field that he holds in fee should go one way, the field that he holds for a thousand years another; but clearly all property in land might be made personal without our being driven to invent a wholly new system of land laws. Leaseholds may be regarded as providentially preserved for our guidance. If we must have a theory of tenure, let it be that all land is in the last resort held of the Crown for a million years1 . Those who argue that to render land divisible among the next-of-kin would necessitate frequent actual subdivision, show their complete ignorance of English law and English habits. They may fairly be challenged to prove that a minute subdivision of long leaseholds is any commoner than a minute subdivision of freeholds.
When we reflect on the English impatience of taxation, it is surprising that we should allow ourselves to be heavily taxed by means of lawyers’ bills for the maintenance of the “worse than worthless.” What an outcry would there be were the Chancellor of the Exchequer to propose a vote of money to be spent on a decent edition of “Bracton”—something better than that with which Sir Travers Twiss has favoured the world—and yet we are willing to pay for a cabinet of legal antiquities, if only we can have the annoyance of causeless litigation thrown in for nothing. We are willing to maintain even a “doctrine of conversion,” a most expensive property, provided that we are suffered to keep our diuturna sed impia consuetudo of postponing females to males.
Another reform would follow. After a long struggle we have succeeded in establishing the principle that a dead land owner’s debts should, if possible, be paid. But owing to our double property law, the principle is carried into effect by very imperfect machinery. Clearly the creditors should have some one person or body of persons to whom they could look as representing the dead man for all purposes, and bound to pay the dead man’s debts so long as there are assets. As it is there is one man with the land, another with the goods. So convinced is Mr Williams of the necessity for some measure establishing a real “real representative,” that he would secure this object even though the law of inheritance remained in other respects unaltered. Mr Williams has on this point convinced the Committee, but we hope for better things. Let all property be personal property, and this, as well as many other reforms, will follow as a matter of course. A will of realty will be proved as a will of personalty is proved, and a man’s executor or administrator will represent him for all purposes whatsoever.
Take, again, the law concerning the effect of marriage on property. No one can pretend that it is in a satisfactory condition, and clearly the whole subject must one day be reconsidered. But an abolition of the distinction between real and personal property would go far towards making it more intelligible, and a better subject for further consideration. For, leaving out all question as to property settled, whether by statute or contract for the wife’s separate use, and all consideration of the very capricious “equity to a settlement,” we have this state of things—A man marries a woman who has both freeholds and leaseholds, his rights in the two are utterly different. During the marriage he cannot sell the freeholds without his wife’s consent solemnly given; he can sell the leaseholds against her will. If he survive his wife he is absolutely entitled to the leaseholds; he gets at most a life estate in the freeholds. For all this there is no reason, though there may be a historical explanation. It is true that the law of real property is rather more favourable to married women than the law of personal property, and the abolition of the distinction would afford a good opportunity for making our one system of property law better than either of the existing systems. But it surely is of some importance that the law of husband and wife should be intelligible to the people, and this it never will be until we have determined that two systems of property law are one system too many.
You cannot create an estate tail in personal property. This is a blessed truth and full of promise. Establish, therefore, that freeholds are only extremely long leaseholds, and estates tail disappear. Here it may be thought that we pass from matters of mere law reform to questions of great social and political interest. But not so, for any lawyer will tell us that it is perfectly possible, and very common, so to settle leaseholds and other personal chattels that they shall go along with an entailed freehold estate. There is no need to investigate the mechanism employed by our modern Marculfs for this purpose; but the fact is, that, if it were impossible to create an estate tail, settlements of land might still be made, and would most certainly be made, which for most practical purposes, and in the ordinary course of events, would have the same effect as those which are now in use. The result would not be quite the same, but so far as all matters of real importance are concerned the result would, we believe, be the same. Not a great reform, then, some Liberals may be tempted to say; but we cannot agree with them. Once effected, it would be easy, if thought advisable, to set narrower limits to the power a proprietor has of settling his property, whether land or goods; but until some such simplification has been introduced, any attempt to shorten settlements will, in all probability, but darken the darkness of real property law. Let us first do that which all men who think about the matter must see to be good, then will come the time for deciding questions about which men may reasonably differ.
The position of a tenant in tail of full age is amusing. Something between a life tenant and an absolute owner, he can make himself an absolute owner by executing a deed and having it enrolled— that is, by paying certain costs to his solicitor. Very instructive is all this to learned Germans, but to tenant in tail, and all who have to do with him, a nuisance. Besides, these estates tail form one of the worst stumbling-blocks in the way of an unlearned testator. By some phrase thrown out at random he may succeed in creating one of these anachronisms, or still more probably render a law-suit inevitable by leaving it doubtful whether he meant to give an estate tail or an estate in fee simple. All such doubts should once for all be answered; estates tail should vanish; one pitfall would be safely filled in, one “possible construction” of obscure wills be rendered for ever impossible.
Can anything be more absurd than what happens on the death of a mortgagee in fee? The only substantive right, the right to be repaid the money, passes to his personal representatives. But his heir takes something; he takes “a legal estate” in the land. Really he has no rights, he must deal with his precious possession as others bid him, he can make no penny thereout for himself. But the legal estate, the ghost of a departed right, goes wandering from heir to heir, and devisee to devisee, until it is hunted down, and safely exorcised, and “got in,” not without costs. Otherwise there will be a law-suit and more costs. These legal estates, mere abstractions of nothingness, are a plague to vendors and purchasers, they are one of the chief hindrances to the registration of titles. To some extent, but to what extent our authorities tell us is not very clear, an improvement has been introduced by a recent Statute; but how? By grafting an anomaly on an absurdity, by timid tinkering and caulking. There is but one way to meet the evil. Render it impossible that the heir of a mortgagee, or the heir of any one else, should take anything whatever. For as with mortgagees, so with trustees. We are not pleading for elegance or technical refinement, but for real solid reforms, which would benefit the nation at large. Should any reader think that we overstate our case, we can only send him to the text-writers, but we send him with confidence as to the result. Let him reckon up the reported cases due to these outstanding legal estates, let him multiply their number by the average cost of a law-suit, let him consider how few are the cases reported out of those decided, let him consider how many are never pressed to a decision, let him think of these things and of the obvious remedy.
But throughout our law, look where we will, the distinction between the real and the personal is found a permanent cause of mischief. It is an all-pervading distinction, similar to that which some metaphysicians make between the objective and the subjective. Indeed, were it still, as once it was, the fashion for our lawyers to adorn their works with scraps of second-hand and third-rate philosophy, there would doubtless not be wanting those who would convince us that the real is the objective and the personal the subjective. However, lawyers have been in some respects more fortunate than those with whom we have made bold to compare them; for between the two great opposites they have found what metaphysicians are still to seek, a tertium quid, the mixed fund. The part played by the mixed fund is well illustrated by an extract from Mr Pollock’s Principles of Contract, given below. First, however, let us notice that the law of England is good enough to encourage marriage, and with this object in view has established certain rules respecting the invalidity of a condition avoiding a gift on the marriage of the donee. Of course, however, it cannot deal with the two kinds of property by one set of rules, for it is, or must be deemed to be, a maxim of our law, that distinctions are to be multiplied. The extract is as follows:—
“Conditions in Restraint of Marriage:—
“If precedent, are with trifling exceptions (if any) valid as to both real and personal estate.
“General restraint. Good, it seems, as to real estate. Bad as to personal estate or mixed fund (or a fund arising only from the sale of realty, semble), and this whether there is a gift over or not.
“Particular restraint. Good as to real estate; and good as to personal estate if there is a gift over, otherwise not1 .”
This is a very fair specimen of English law, and the reader will see that we have not been romancing. We have one rule for personalty, another for realty, and then arises the question which rule is applicable to the mixed fund. But why two rules? Either sound policy demands that a condition defeating a gift on the marriage of the donee should be void, or it does not, but it cannot possibly draw any distinction between land and goods. It is, of course, very interesting to know that the ecclesiastical and temporal courts could not agree about the validity of these conditions, but a history, however interesting, is not a reason. This is, we repeat, a fair specimen, and we have chosen it, not because it is more strikingly irrational than many others, but because Mr Pollock’s statement is so concise, that it may easily be quoted. In truth, “it is curious to notice,” as Mr Williams observes, “the strange differences that exist in our law, without any particular reason whatever, so far as one can see, between real estate and personal estate1 .” This remark serves as an introduction to an account of a very strange difference indeed, and one due to the unprincipled meddling of a modern Parliament. We say unprincipled, for an opportunity was offered for establishing on a particular point the same rule for real and personal property, but our legislators preferred to introduce a new complication for which we will defy any one to find “any particular reason,” or, indeed, any reason particular or not particular. The matter is too elaborate to be here explained, but we refer our readers to Mr Williams’s book on Settlements. If they do not agree with the learned author that “it is curious,” their taste for legal curiosities must need cultivation.
Now, it seems to us plain that, even if both our two systems were reasonable and convenient, there would still be good cause for ridding ourselves of one of them. Much more, therefore, ought we to abolish so inconvenient and unreasonable a system as that of which we read in The Seisin of the Freehold. The general reader would hardly thank us for any observations on the abstruser doctrines of the law so lucidly expounded, we had almost said exposed, by Mr Williams. And yet it is only by considering the minuter details of the law that we can appreciate its worthlessness at its true value. This is one of the worst impediments in the way of improvement. When told that the law is bad, and might easily be bettered, we are sceptical, we desire, and rightly desire, a proof, and when the proof is offered, we say, and truly say, that it is dull. For who shall interest us in contingent remainders, or the Statute of Uses, while Chinese metaphysics remain unexplored? If we want barbarism at its best, we can turn to the Lex Salica. If we want scholasticism at its best, we prefer Thomas Aquinas to Lord Coke. Were it a matter of wrong or wicked lewdness reason would that we should lend an ear (the reports of the police and divorce courts are found by some to have a certain human interest), but as to words and names and our law, our ordinary civil law, let lawyers look to it, for we will be no judge of such matters. And yet the subtle learning of contingent remainders is suffered to interfere with actual life. It is mere innocent ingenuity amusing itself with frivolous distinctions. On it may depend the rights of the widow, the orphan, the purchaser who has paid for land and bought a law-suit. And it is all unnecessary. There can be no contingent remainders of leaseholds. Make freeholds personal property, and one mass of obscure and difficult doctrines may be for ever forgotten. Who would lose by such a reform? No one. Must we hint that this is the very reason why no one cares to alter the law? Who would gain? Every one who, whether as vendor or purchaser, donor or donee, had anything to do with freehold land.
Then there is that marvellous monument of legislative futility, the Statute of Uses, the statute through which not mere coaches and four, but whole judicial processions with javelin-men and trumpeters have passed and re-passed in triumph. It has been said of this ambitious statute that its sole effect has been to “add three words to a conveyance.” This may pass as a contemptuous epigram, but it is far from the whole truth. It has caused innumerable unnecessary law-suits. This is not an epigram but a fact. It is not a mere Statute of Uselessness but a Statute of Abuses. And it will be readily understood that if there is a flaw or a stupidity in our property law, the whole body of the civil law is the worse for it, for property law must be the very core of the Corpus Juris. Thus, it is not only those who make and profit by elaborate settlements of land who suffer by our misplaced antiquarianism. Whenever title to freeholds comes in question, directly or indirectly, the power of this statute is felt, and the real merits of the case but too often disappear beneath the accumulated rubbish of ages. It might have been supposed that one part at least of our law would be plain, the law relating to the Parliamentary franchise. But it never will be plain so long as it depends on real property law essentially nonsensical. It is a “fancy franchise,” more fanciful than any conceived by our most fantastic Minister, when the right to vote is given or denied by the fact that a certain deed took effect not under the common law but under this statute. It is a powerful sarcasm on our boasted liberalism that the cases which of recent years have turned on the most absurdly frivolous distinctions have been cases on the right to vote under the Reform Act.
Space may fail us but matter does not, for in truth it is only when we turn to “questions of construction” that the badness of our dual system is seen at its best. To take but one instance, centuries have not sufficed to convince the people of England that the word “heir” is quite inapplicable to personal property; they cannot or will not believe that we have two distinct schemes of succession. The consequence is that in their innocence testators make use of inappropriate phrases, and then follows the inevitable administration suit, the family quarrel, the costs. We do not hesitate to say that ten per cent. of the “questions of construction” which are raised are due to our having, and having long had, two bodies of law where one would suffice. Doubtless, the simplification of our property law would work but slowly and gradually on the minds of testators, but it would work surely, and some day an educated Englishman may be trusted to make a simple will for himself.
Perhaps there is not sufficient work for our Courts, that wrongs being unknown, and all contracts kept, we are obliged to invent problems for our judges. Can there be any other explanation than this for the care with which we preserve a system or want of system ingeniously framed to lead testators astray? And yet we are constantly told of large arrears of cases waiting to be tried, we constantly hear demands for more and more judges. We are not so very successful in suppressing fraud and breach of faith that we can afford to encourage by artificial means that worst kind of litigation, litigation between parties all equally innocent, equally unfortunate. The promoter of bubble companies, the swindling director, the fraudulent bankrupt, are allowed a respite, which may be ruinous to those whom they have cheated, while the Courts are deciding what shall be done with the property of a man whose sole crime is that he has shown a not unnatural ignorance of the distinction between real and personal estate.
Now, were it seriously contended by the friends of the heir-at-law that his existence is necessary for the maintenance of our present social order, that he is a prop of the State, or the Church, or of anything else, we might have to consider whether the system of law of which he is the centre might not be made more tolerable by amendment. But no such contention is raised. On the contrary, the advocates of primogeniture are fond of laying stress on the fact that few land owners die intestate. Is it not a little one?—this is their favourite plea. No, we reply, the abuse is not a little one. It is for the sake of the heir-at-law that we disorder the whole of our jurisprudence. In order to postpone women to men, in order to make a will which no one wants made, we render our law unknowable by any save experts. If after all our efforts we fail in attaining our worthless object, if daughters and younger sons are not disinherited, this is but an additional argument for reform. We undergo all the evils of having two systems of property law, and have nothing to show for it. You cannot prove that a law is good by showing that all sensible men contrive to evade it.
It is quite unnecessary for us to say harsh words of our ancestors. There is no need to seek a scape-goat among the feudalists, the canonists, the civilians. We have no quarrel with the Parliament which passed the Statute De donis or with that which passed the Statute of Uses. For all our legislators and judges from Ethelbert to Eldon we profess profound respect. It is we who are guilty of our own law, for as Hobbes rightly says, “The legislator is he not by whose authority the laws were first made, but by whose authority they now continue to be laws.” It is therefore our present law-givers, and we who have elected them, that are to blame, if the right to land, and the right to vote, may still depend upon nonsense which it would be unjust to the schoolmen to call scholastic, nonsense which can only be explained by long stories about the quarrels between Courts which we have abolished. If these quarrels ended in an illogical compromise, this may have been our ancestors’ wisdom, but that the terms of this compromise are still retained as law for all time is no better than our own folly.
To any reader trained in the historical school now fashionable our arguments may savour of a narrow and frigid Utilitarianism long since abandoned by all enlightened persons. The law of real property is, we shall be told, an historical institution—the product of social evolution, of national life—and as such it must be criticised; nor must it be rashly condemned if it fail to conform to our notions of practical convenience. Now, it is but too probable that we are sadly deficient in the historic sense which it is the pride of this generation to have discovered in itself. It is not unlikely that we are behind an age whose chief ambition is to be behind itself. We must even confess to a belief that the law reformers of fifty years ago were often on the right track, though it is but too plain that they were ignorant persons who knew nothing of the primitive Aryan, and believed that all the Middle Ages were contemporaries. Were it necessary we should not fear to maintain the heresy that no practical convenience, however small, is to be sacrificed on the altar of historic continuity. But in the present case there is no need for the assertion of this very old-fashioned doctrine. Were it expedient, we might easily show that for centuries past there has been one steady tendency running through the whole movement of our property law; a tendency towards the assimilation of real to personal property. Indeed, we know not where to date the beginning of this tendency, for, as far as our records reach, we see it at work. We have been gradually, very gradually, moving towards the idea of absolute property in land. The theory of feudal tenure marks a particular stage in the movement; but the movement had begun long before the feudal theory was conceived, and has continued long after that theory has been capable of producing any consequences save confusion and inconvenience. What is now desirable is that we should bring the work which has been so long in hand to its logical conclusion. We know that there are those who would hesitate to sanction the doctrine that there may be and is absolute property in land. They have a certain affection for the old theory of tenure, not because they are Conservatives, but because they are Radicals; because in their eyes that theory serves to indicate, however imperfectly, the principle that property in land ought not to be placed on the same footing as property in other things. How far their economical reasonings justify this distinction we may not here inquire; but let them ask themselves whether they can seriously hope to make use of the theory of tenure in aid of their schemes. To us it seems that they do but prejudice their cause by seeking an alliance with worn out and discredited principles. If there be any special reason for taxing landlords more heavily than other people, if there be just cause for appropriating to the State “the unearned increment” of rent, all this is compatible with a simple system of property law, unencumbered by theories of tenure. We do not believe that any sense of the claims of the community on the land is kept alive by the doctrine still to be found in our law books, that of land no subject can be the absolute owner. Every one knows that this doctrine, however indispensable as an explanation for some of the subtleties of real property law, is, in fact, untrue. “The first thing the student has to do is to get rid of the idea of absolute ownership1 .” So says Mr Williams; but we may add, with equal truth, that the second thing he has to do is to learn how, by slow degrees, the statement that there is no absolute ownership of land has been deprived of most of its important consequences. The question, therefore, for those who would limit the rights of property in land is, whether they would rather work in the dark or in the light; whether they would rather deal with a modern and reasonable system, capable of further improvement, or with a mass of old theories—once, perhaps, an organized whole, but long since fallen into decay.
For our own part, we can imagine no sounder advice than that given by Mr Williams:—“For the future, perhaps, the wisest course to be followed would be to aim as far as possible at a uniformity of system in the laws of both kinds of property; and, for this purpose, rather to take the laws of personal estate as the model to which the laws of real estate should be made to conform, than, on the one hand, to preserve untouched all the ancient rules, because they once were useful, or, on the other, to be annually plucking off, by parliamentary enactments, the fruit which such rules must, until eradicated, necessarily produce1 .” Thus has Mr Williams preached through twelve editions of his book, but we grow no wiser; and now we have Mr Morgan’s Committee marking out for us the annual crop of weeds for the year 1880: a statute to be repealed, a real administrator appointed, verbiage curtailed, but no attack on the root of all evil—the heir-at-law. Perhaps when Mr Williams has published twelve more editions we may be converted to his bold and sensible policy, and regret that we have spent so much well-meant labour in trying to patch up a hopelessly rotten system. When that time comes we shall think of Mr Williams not only as of a very learned lawyer, but also as of a law reformer who knew what he was about: a law reformer of the good old school, which knew that a reform to be effectual must be logical and thorough.
Such, briefly stated, is the case for reform. We have chosen to take what may seem to some a narrow and a low view of the subject, but our object has been to lay stress on the practical inconveniences of our present law. We are quite willing to adopt Mr Matthew Arnold’s argument, that to our law of inheritance is in part due that very unequal distribution of wealth of which he complains, and we are decidedly of opinion that “materialize,” “vulgarize,” and “brutalize” are brave words and not inapt. We are quite willing to leave open the question whether our law does not give to settlors too vast a power of tying up property. We would gladly see land a merchantable commodity. But we have purposely avoided all great social and political questions, and even all questions which are likely to be warmly contested. We have taken our stand on low ground, the saving of quarrels and costs, but our position is, we verily believe, impregnable.
There was a time, some fifty years ago, when it might have been plausibly said that to meddle with so old a structure as our land laws was dangerous. For centuries they had been almost untouched by statute, and there was some reason for thinking that to improve them was beyond the power of mortal man. But there were reformers in those days. The work that they did was done skilfully and well; and yet it was a daring work. Old abuses fell like leaves in autumn. Fines were not saved by their antiquity, nor recoveries by their absurdity, nor real actions by their costliness. The writ of entry sur disseisin in the quibus perished along with writs of aiel, besaiel, tresaiel, and cosinage. Our sense of historical continuity was not keen enough to save “the casual ejector,” or “the common vouchee.” A decent oblivion was provided for John Doe and Richard Roe. The law of inheritance itself did not altogether escape the touch of the innovator. The deluge did not follow. The House of Lords exists. The Church flourishes. Had these measures failed, had they even produced great though temporary inconvenience, were we inconsolable for the loss of the solemn mummery of fictitious actions, we might hesitate to make another perilous experiment. But these measures were splendidly successful. There probably has never been a statute which has won higher praise for its technical perfection, and that too from critics not wont to praise highly, than the Act which abolished fines and recoveries. It did its work with little friction. It was skilful and it was bold. Are we to believe that similar skill and boldness are not now at the command of law reformers? This surely is not the case. The work might be done, and done well, were there a demand for it. But such a demand must nowadays be a popular demand. We trust it may soon be made. It did not seem unreasonable to hope that a Conservative Ministry might have given us this reform; for it is a Conservative reform, one, that is, which has no tendency to benefit one class at the expense of others. But now, it seems, we must wait for the Liberals; may they soon come and deliver us from this heir-at-law. The war against him and his works, let it be well understood, must be a war of extermination. There should be no compromise, for this simple reason, that any compromise must leave us with two systems of property law instead of one. The details of the campaign it may be impossible to foresee, but of the general plan there should be no doubt; it must leave us with one system of property law, and one only. This is what a civilized jurisprudence requires, and here, as always, scientific jurisprudence is on the side of convenience and common sense. What is inconvenient in fact is anomalous in law. A system of law logical but inconvenient may perhaps be imagined, but it cannot be realised; it must fall into confusion so soon as it is applied in practice. First one exception is admitted, then another, then chaos. The converse is true; make law convenient and you make it scientific. Contemplate, therefore, this reform from what point of view you will, from that of the jurist, from that of the farmer, from that of the land-owner, from that of the plain man of sense, it is seen a necessary indispensable reform.
This heir-at-law must know that the time of his departure is at hand. His doom was long ago pronounced. It was foreseen by the dramatist who determined that the epilogue to The Heir-at-Law should be spoken by Dr Pangloss, LL.D. and A.S.S. It was foreseen even more clearly by Bentham, when he said in the pages of this Review that the heir-at-law must be “abandoned to the Society of Antiquaries1 .” This is his doom, “abandoned to the Society of Antiquaries”; yes, with all his rights, privileges, and appurtenances. Or if our antiquaries will not have him as a gift, if there is in England no Pangloss who will receive him with an apt quotation, we will hand him over to the tender mercies of Gradualisten and Parentelisten, who shall write monographs upon him until the end of time.
Westminster Review, 1879.
The Seisin of the Freehold, p. I.
The Seisin of the Freehold, p. 202.
Reports from the Select Committee on Land Titles and Transfer, 10th July, 1878, and 24th June, 1879.
Seisin, p. 97, and Evidence before the Committee, First Report, p. 27.
Primogeniture as it exists in England, by Eyre Lloyd, B.A., London, 1877.
Das Anglonormannische Erbfolgesystem, Leipzig, 1869.
Principles of the Law of Real Property, by Joshua Williams, Q.C., twelfth edition, London, 1877.
Montesquieu, L’Esprit des Lois, liv. XVIII, ch. xxii.
“Es ist bekannt, dass in England unter den gemeinen Volk der Gebrauch noch heut zu tag gilt, die Frau auf dem Markt zu bringen und zu verkaufen.”—Grimm, Deutsche Rechtsalterthümer, p. 451.
Mr Lowe, we observe, ascribes this proposal to Mr Senior. (Second Report, Q. 2938.)
F. Pollock, Principles of Contract, 1st ed., pp. 282, 283.
Settlements, p. 159.
Real Property, p. 17.
Real Property, p. 468.
“Commentary on Mr Humphrey’s Real Property Code,” Westminster Review, No. XII. Reprinted in Bentham’s Works, Vol. v., p. 387. See p. 405, comment on the word “heirs.”