LORD CAMNS'S LAND BILLS.
THE Lord Chancellor began the very lucid and able speech in which he introduced his scheme of Land-law Reform, on Monday last, by an emphatic statement of his approval of the present law of Settlements. "The law," he said, truly enough, "has not created, but only protected," a system which sprang out of freedom of contract. But, as he went on to point out, in carefully guarded language, where the subject- matter of the contract is land, the interests of the community are concerned, as well as those of the contracting parties ; and if the two are irreconcilable under the law as it stands, the Legislature must interfere, in order that the former may be made to prevail. Lord Cairns admits, by his proposals, that the power of contracting freely in this matter has been, and is, exercised with such injurious consequences to the nation at large, that it must in future, to some extent, be cut down and restrained. His plea, therefore, for the existing system, that "it sprang out of freedom of contract," and that it is "merely the result of adjusting the natural rights of property, by the arrangements which have been found desir- able, in their own interests, by parties interested in the owner- ship of land," becomes, by his own acknowledgment, beside the point, as soon as it can be shown that under that system the public welfare is sacrificed to individual caprice. The Lord Chancellor having stated the criterion by which all land-laws must be judged, he cannot complain if his critics insist that his own test should be applied to our English law of settlements. No one, of course, proposes that settlements of land should be altogether done away with. Our position, and that of most Liberals, is simply this : that the unlimited right with which the law of England invests, and of which Lord Cairns's scheme does not in any way deprive, the settler of an estate, to confer the ultimate enjoyment of it on an unborn person whom he may never see or know, is one which cannot safely be allowed to exist in a populous and civilised commu- nity. The experience and practice of other countries are wholly opposed to it. A hundred years ago, the power of entail was sanctioned by the law of the whole Western world. At the present day, outside the United Kingdom, it is nowhere to be found. France and the various States of the American Union have made entails of any kind illegal; in Austria, fresh entails can only be created by the Legislature, and in the Scandinavian countries, not at all ; and in Germany, though not absolutely forbidden, the practice is altogether obsolete. These facts alone are enough to suggest the question why, when Lord Cairns was giving to the tenant for life most of the rights and privileges of a holder of the fee-simple, he ---
should still preserve the tenant-in-tail ? It may be said that the only solid objection to the present law—viz., that it hampers the free alienation of land—is got rid of, by the ample powers of selling and leasing which the Government scheme confers upon the tenant for life ; and that a remainder-man in tail who, while his estate is expectant, has no veto on the sale of the land, and who, when it falls into possession, can at once convert himself into an absolute owner, is at the worst a harmless and not uninteresting anachronism. But to say that entails hinder the free sale of land, is not to give by any means an adequate account of the mischief which they produce. In the first place, the power which the law at present gives, and which conveyancers use most liberally, of creating an almost interminable series of fantastic limitations, complicates and confuses the title, renders any scheme of effective registration impracticable, and adds enormously to the expense and delay , of transfer. Moreover, altogether apart from the question of
sale, why should a father be prevented from apportioning his settled land among his children, just as under a power of appointment he divides his settled personalty ? Such a course would often be not only agreeable to his own impulses, but in all respects advantageous to a community like ours, which profits by every breaking-up of a great property. But in ninety-nine cases out of a hundred, the limitations of the settlement compel the devolution of the whole estate upon the eldest son. The father, knowing this, and unable to change it, saves his money and starves his land, in order to provide an outfit for his younger children. We recall these familiar consequences of our present law because, in the chorus of approval with which Lord Cairns's measure has been received, it appears to have been overlooked, that he has made no attempt to mitigate their oppressiveness, or to prevent their recurrence. He has contented himself, in short, with patching-up some of the weaker places and neutralising
some of the more injurious tendencies of the law as it is. We have still to wait for the bold hand which will sweep away once and for all the antiquated and unnecessary distinction between realty and personalty, and reconstruct our law of settled property upon simple and intelligible lines. Meanwhile, let us remember, what many of Lord Cairns's admiring critics seem to forget, that tinkering is not architecture.
Considered as an instalment of reform, and not as an en- deavour to settle the Land Question on a broad and states- manlike basis, there is much to be thankful for in the Govern- ment scheme. Some of its incidental provisions, such as the extension of the power of the Courts to grant equitable relief in cases of forfeiture between landlord and tenant, will put a stop to serious injustice. But its most ambitious and important clauses are those which deal with the tenure of settled estates. Apart from the question of entails, the three crying evils of our system of limited ownership are,—that the owner cannot sell the land except with difficulty ; that he has neither inducement nor means to invest capital in improving it ; and that the expenses of conveyancing hinder tranfers and lower prices. For all these mischiefs, some palliative is pro- pounded in the Lord Chancellor's Bills. The first two are met by enlarging the powers of a tenant for life, and removing some of the restrictions by which he is now hampered. At present, a tenant for life who has no power of sale under his settlement must, if he wishes to sell a bit of land, obtain the concurrence of his trustees, and apply to the Chancery Division for its sanction, which will not be given without the consent of the remainder- men ; nor can the proceeds of the sale, when made, be applied to the improvement of the remainder of the estate. Lord Cairns proposes that a tenant for life (and it must be remem- bered that the vast majority of large landowners in England are nothing more) shall be allowed to sell without the leave of the Court, or the assent of the remainder-men ; and that the proceeds may be spent in a variety of ways, and amongst
others, in certain forms of improvement. This is an excellent proposal, as far as it goes ; but we much fear that the " checks " with which it is accompanied will make the practical carrying-out of it cumbersome and ex- pensive. Before the life-tenant sells, he must give notice to the trustees, and if they object (as cautious trustees often will), there must be an application to the Court. The money which results from the sale is to be paid to trustees or into Court, —perhaps a necessary, but certainly a troublesome arrange- ment. Then, before it can be applied in reproductive works, a certificate must be obtained from the Land Commissioners that the improvements are such as the Act authorises, and that they have been properly executed. The machinery is no doubt, vastly simplified, as compared with that provided by the Settled Estates Acts, but it is still sufficiently complex to make us doubt whether it will be so generally resorted to as the Lord Chancellor seems to anti- cipate. There is one point relating to the application of the sale moneys which Lord Cairns did not make quite plain. Is the building of cottages—by no means a commercially remunera- tive investment in most cases—included among the kinds of " improvement " on which the fund may be spent ? We trust that closer acquaintance Aith the measure will show that this question can be answered in the affirmative. There are few respects in which our system of limited ownership has failed more signally, than in the'provision of house accommoda- tion for the rural population.
We shall say very little of the Bill "for simplifying and improving the practice of conveyancing." The matter is of a highly technical nature, and a close and careful study of the various clauses is a necessary preliminary to any proper appre- ciation of their probable results. We can only trust that the attempt to force upon conveyancers the use of short forms and simple words, may be more effective than all previous endeavours in the same direction have been. The success of the Bill in this respect may perhaps be facilitated by the com- panion measure for regulating the remuneration of solicitors by the value of the property conveyed, aud not by the length of the deeds of conveyance. But we cannot take leave of the scheme without expressing our disappointment that the Lord Chancellor has not attacked, or even approached, the question of Registraticn. There are two conditions without which
e shall never have cheap conveyancing. In the first p ace, we must have simplicity of title,—which means the alolition of estates-tail. In the second place, we must have a p blic record, if not of the title itself, at any rate of the in- mbrances which affect it.—which means the establishment of
a system of Registration. For neither of these essential pre- liminaries to the speedy and inexpensive transfer of land does Lord Cairns make the least provision. The incorporation of the ordinary conditions of sale into contracts, the abbreviation of deeds, the simplification of "searches," and most of the other changes proposed, are steps in the right direction. But they fall far and grievously short of the reasonable expec- tations of those who were looking to the Lord Chancellor, not merely to improve, but to remodel the laws relating to the transfer of land.
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