REFORM OF THE LAW OF REAL PROPERTY. London, 1st /tine
1852. Snzt—In the actual state and prospects of Law Reform, permit me to avail myself of your columns for the purpose of reviving the interest of your readers in one branch of that subject, than which none is of greater im- portance; I mean the department of the law of Real Property. Even as things are, it is matter of deep concern to free the ownership of land from the load of legal rubbish which obstructs its free circulation in the property- market; but who shall attempt to measure the changes which gold may work in every part of our economical system, and what mighty influence it may have in raising vastly the relative importance of land as a marketable com- modity ? How much it behoves us, therefore to adjust ourselves quickly to these probable changes, and to substitute a rational code of law for our pre- sent barbarous system,—a shapeless mass, compounded of fragments of me- direval feudalism and corrupted Roman jurisprudence pieced together to suit, in such sort as it can, the requirements of modern utility..
My object in this letter is to present to your readers the state of the law of real property in the single point of view as affecting its marketability. At present, lands and houses are merely sought after for actual occu- pation, or by a particular class of capitalists seeking (and in general for mere local objects) fixed and permanent investment. So far from holding any place in the estimation of the monied world, the banker in nine cases out of ten eschews sheep-skins, as things of his mortal aversion, in the way of se- curity. He knows nothing about them, except that perhaps he has been at Various times worried and wearied with tedious mortgage transactions, baf- fling all his calculations ; or perhaps has groaned over some protracted transaction of the sale or purchase of an estate, which has taught him that, amongst all the uncertain things of life, the period for completion of a title is one of the most uncertain.
In point of fact, land holds no place amongst marketable investments! Consequently, it loses that great ingredient in the value of property which arises from marketability. The extent of this loss it is difficult to calculate. We may reach some proximate estimate by supposing the Three per Cents suddenly to become clogged with all the machinery of real property convey- aiseing. Suppose that instead of a transfer of stock occupying some forty- eight hours, it were to become a transaction of weeks, months, even years— uncertain, and of indefinite cost—such as is now commonly the ease in transfers of land. All the gold of California and Port Phillip would fail to keep the price at par. Do I over-estimate the depreciatory effect of such a change at from 15 to 20 per cent? Nay, rather would not the value for many purposes be entirely extinct ? I am sure no banker in Lombard Street will charge me with exaggeration in this statement. Shall I then over-cal- culate the depreciation in the value of land, (I mean, under this term, real property in general,) from the effect of our present law system,. at five years' purahase on an average? May we not be sure that, under an improved sys- tem, land would rise in value from twenty-eight to thirty-three years' pur- chase, at least I write not without some experience in such matters, nor without Some knowledge of the opinions of competent judges : I believe such a calculation to be very moderate. Then, what follows ? Take the annual rental of landed property in England, say at eighty millions a year. Upon that assumption it is evident that our law of real property is equal to a bur- den of four hundred millions of money—half the National Debt—as much as by the most extravagant calculation of the hottest Protectionist the Corn- laws could have been worth.
From the same source spring a thousand evils. The difficulties attending mortgage transactions render them less eligible as investments : therefore a higher rate of interest must be paid, therefore a higher scale of rents must be exacted. From the same cause, a proprietor has fewer facilities in obtain- ing money for improvements, and agricultural improvements move at a halt- ing pace. How much embanking and draining, subtroiling, and improve- ment of farm-buildings, stands still on this account?, How many additional quarters of wheat, how many tons of turnips, how many fat sheep, how much Increased growth of wool, with cheaper woollen stuffs,.are we annually losers of, which must be set down to the account of the horrid incubus of abstracts of title and conveyancers' crotchets ?
Why is Mr. So-and-so obliged to sell his estate at a sacrifice to his neigh- bour Lord:So-and-so ? Simply because there is no competition ; that is, be- cause, although the money-market is glutted, nobody dares meddle with transactions in land. -
No objection will, I apprehend, be made to these statements abstractedly. In arguing the question, I never find any difficulty in getting this first point conceded : indeed, it is self-evident. I do not suppose that any sane man (except Lord St. Leonardo?) would be found ready to maintain the system for the sake of its own merits. The only defence which is made is, that it is necessary—it is inevitable—its faults are incurable—it is the growth of ages —you can't mend it ; and then a ready lawyer throws in a heap of technical difficulties, and so attempts to smother the question. The miserable state of legal servitude tinder which the world in general now groans is one of the greatest evils of the day. It is absolutely essential that the lay portion of the community should, for its own sake, emancipate itself from this state of thraldom, especially upon such a question. It really is no difficult task. A recurrence to common sense, and a sufficient acquaintance with general prin- ciples, is all which is required. I wish, indeed, most heartily, that a few as- tute laymen in the House of Commons would set to work and master the subject. They would soon detect the cheats and impostures which are used to hinder progress, and be able to brush away the small cobwebs of objections spun from the brains of unrcforming lawyers. I can imagine no greater service which a statesman could render to his country. It must, however, be undertaken in a spirit of knight-errantry. He will have to encounter all kinds of resistance. Lord St. Leonards will endeavour to dogmatize him down ; Lord Truro will wield a blue book against him; a host of lawyers, small and great, in the House of Commons, will surround him with fancied dilemmas. He must go through them like Christian through the Valley, discomfiting the hobgoblins who will throng about him and after him, like the monster " with the great padding pace."
Nevertheless, he will find help in his work. There will be men—lawyers too—(Lord Brougham, for instance and Sir William Page Wood,) in either House, ready to cheer him on. And he will meet with sympathy and ap- proval from the public in general.
I will endeavour, with your permission, in a few letters, to suggest some remarks with the view of aiding. the accomplishment of such a work. My single object at present is to point out and enforce upon your readers its
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