NO. V.


ART. I.-Observations on the Actual State of the English Laws of Real Property, with the outlines of a Code. By JAMES HUMPHREYS, Esq. of Lincoln's Inn, Barrister. London. John Murray, Albemarle-street. 1826.

VOL. III.-No. 5.

In our review of "Kent's Commentaries," we remarked almost in the very words of Mr. Humphreys, that "far from being cultivated on general principles, jurisprudence (that is to say, English jurisprudence) has, with a few exceptions, been viewed as consisting of a series of positive institutions, of a local, or, at most, of a national character." We had not then read the admirable treatise mentioned at the head of this article, or we should have taken pains to except it out of a censure which we passed, and we believe justly, upon most of our elementary treatises. We hail, in Mr. Humphreys, the founder of a new school-that, namely, of philosophical lawyers-of those who look upon jurisprudence as a science and a system, and would have it approach, as nearly as possible, to the standard of right reason and of natural law. It is not disparaging such writers as Fearne and Sugden to say, that with all their learning and ability, their works belong to a decidedly inferior class. Of the treatises on Contingent Remainders and Executory Devises, Mr. Humphreys himself remarks, that "it is to be regretted that the times were not then ripe for directing the talent that produced them, towards simplifying, instead of systematizing the refinements of landed property." We add to this observa

*No. 3. Art. iii.


tion, that masterly as the developement they contain of a most refined and intricate branch of law undoubtedly is, and completely as they set at rest almost every controversy that can possibly grow out of it, their excellencies are still rather those of a searching analysis, than of a perfect, synthetical exposition of ascertained principles-not to mention that they have withal, a crabbed and technical air, which is not at all perceivable in the treatise before us.

Mr. Humphreys is a reformer. He aims at doing in England, in relation to real estate, what has been universally accomplished in the United States, and very little more. He appends to the discussion of his theoretical principles, a specimen of the manner in which he would have them reduced to practice in a code. We shall not enter at large into the merits of his projected reformation, although we have no hesitation in saying that we entirely concur with him as to the necessity of some change in most of the particulars which he has pointed out. The law of real estate, as at present practised in England, is a reproach to an enlightened nation and to a philosophic age. But being ourselves disinclined to venture upon any innovation, unless we be very sure that we shall better ourselves by it, we are not prepared to say how far it would be expedient for a British Legislature to carry his views into execution. On the general subject of codification, we shall avail ourselves of some future opportunity to express our own opinions.

The work before us is divided into two parts. The first, of which the object is to point out existing evils, is an admirable elementary exposition of the law of real estate as it now stands in England. The second, sets forth the remedies proposed. We purpose, in the present article, to develope the subject referred to in the following remarks of Mr. Humphreys :

"Of the defects thus alluded to in institutions respecting real property, and of the supineness of the Legislature, and the indifference of the public in correcting them, the laws of England afford a signal example. Passing by the simple rules of ownership under the Anglo-Saxon dynasty, as they may be collected from the relics of their laws and their extant charters, the Norman conquest overwhelmed our landed property with feudal tenures and their burdensome privileges. These were introduced, not in the spirit of military conquest and partition, on the terms of rallying round the chiefs, to protect the common acquisitions, but as a system of jurisprudence already established, and even refined upon in their own country, by this proverbially litigious race. They gave us not the spirit, but the dregs of that singular system, which has so largely influenced the laws and manners of modern Europe. The extent and variety of the burdens and restrictions of tenure, (fruits as they are called) may be found in all our writers on this branch of juris

prudence; forming, as they did, in their primitive vigour, rather an assemblage of unconnected institutions, than parts of a general system.”


"The intricacies and burdens of tenure, indeed, were greatly diminished at the restoration. Much of the original system, however, still remains; together with many theories built upon it, and fictions invented, occasionally, to elude it. The whole tinctures deeply our laws of landed property; though discordant, from the sentiments and habits of modern society, and even from that leading maxim of modern law which wisely regards land as a commercial property, and discountenances all undue restriction on its alienation."-Introduct. pp. 4, 6.

Again." The three great causes to which I have attributed the redundancy of these laws, are tenures, uses, and passive or merely formal trusts. The first of these rests upon a system which has long ceased to influence society; while its theory still pervades and augments every part of our laws of real property."-p. 171.

It is our purpose to trace the origin and consequences of the Law of Tenures, better known under the popular title of the Feudal System. We shall, in the first place, treat of it in a general way as one of the great social institutions of mankind, and then proceed to follow out its most important effects upon the law of real estate in England. Thanks to the good sensc and the favorable situation of our ancestors, very few traces of it are now discernible in the jurisprudence of these States. Still, there are a few, and the history, especially, of our jurisprudence is unintelligible without the lights derived from this source. So deeply rooted in the character and condition of modern society, were those principles of which the remote origin is lost in the shadows of the Hercynian wood!

In longum tamen ævum

Manserunt hodieque manent vestigia ruris.

This inquiry has another recommendation; it affords the most striking illustration that is any where to be found of the reciprocal influence of laws, government and manners, and the manner in which they act and re-act upon one another.

I. It is generally asserted by writers, without any qualification "that the constitution of feuds had its original from the military policy of the Northern or Celtic [?] nations," the Goths, the Huns, the Franks, the Burgundians, the Vandals, the Lombards, who, from the beginning of the fifth century of the Christian æra, poured themselves over the Roman world and "spread beneath Gibraltar to the Lybian sands." Blackstone affirms, "that that policy was brought by them from their own country, and continued in their respective colonies as the most likely

means to secure their new acquisitions, and that to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments, to the inferior officers and most deserving soldiers, and that these allotments were called feoda, feuds, fiefs or fees," which last appellation, it seems, signifies, in the northern languages, a conditional stipend or reward. From the unqualified manner in which this proposition is stated, it might be inferred that the feodal system was brought into the countries where it was afterwards established, ready made, so to express it, and complete in all its parts, at the very first successful irruption of the Barbarians. Indeed, to shew the universality and early use of the plan, the writer just mentioned cites a passage from Florus, wherein the Teutones and Cimbri, who invaded Gaul and Italy in the time of Caius Marius, demand, "ut Martius populus aliquid sibi terræ daret, quasi stipendium: Cæterum, ut vellet, manibus atque armis suis uteretur." If we receive Blackstone's version of this passage, those warlike emigrants expressed themselves with all the precision of thorough-paced feudists, and what they asked for was neither more nor less than to be enfeoffed of lands to be held by military or knight-service. We apprehend, however, that in translating this very simple passage, the learned commentator has fallen into an error but too common among learned commentators, and ascribed to his author notions that did not enter into any body's head for centuries after he wrote. The same thing may be said of the turn he gives to what was done by Alexander Severus, according to the account of Lampridius in his life of that prince. In order to keep up the discipline and vigilance of the armies on the frontiers, against which the storms of barbarian violence and invasion were already beginning to thunder, he distributed the lands, conquered from the enemy, among his officers and soldiery and their heirs, on condition that those heirs should serve in the army, affirming, says the historian, that their service would be so much the more prompt, as it would be in defence of their own property.

These instances do not establish what Blackstone appears to have cited them to prove; but they do shew that the idea of something like feodal service is a natural one in certain states of society, and enable us to explain, very satisfactorily, how that idea was, by degrees, extended and amplified into a regular system some centuries after the period to which he refers.


* 2 Black. Comm. 45, cf. Wright's Tenures, p. 6, and auth. ibicit : Butl.note Co. Litt. 191, a.

+ Lib. iii. c. 3.

we find a scheme perfectly analogous to that of Severus, adopted in India, among the Timarriots in the Turkish Empire, and by other nations. The seeds of the feudal system were sown, as we shall presently show, in the character and policy of the ancient Germans, but the full developement of it was owing to causes that began to operate subsequently to the first settlement of the Northern hordes in the countries which they over-ran. Those causes are to be sought for in the violence and anarchy of a dark age, when not only every kingdom, but every dutchy, every county, every district, was subject to the incursions of its enemies-when, in short, there was a war of all against all.

This opinion is supported with exact learning and unanswerable force of argument by the Abbé de Mably, whose "Observations upon the History of France" have been pronounced by a competent judge,* the most precious monument, beyond all controversy, that has been raised out of the wreck of the nation's early annals. This writer maintains that what are called seigneuries, that is, the legal superiority of one estate or possession to others, coupled with a jurisdiction over its inhabitants, were altogether unknown to the Franks-that such an institution was inconsistent with their ideas of independence and equality-and that no trace whatever of tenures, properly so called, occurs in the Salique and Ripuarian codes. He thinks that they were produced by revolutions in the government which occurred after the Franks had been established in Gaul for upwards of a century. In reply to the assertion of Montesquieu, that they were not usurpations of a more recent date, but grew necessarily out of the peculiar constitution or polity of the Germanic tribes, he urges that this is quite inconceivable; for what fiefs or benefices had the German chieftains to bestow? How could the right of distributing justice, be incident to the gift of a war-horse or a battle-axe?

Montesquieu founds his opinion upon a well known passage in the Treatise de Moribus Germanorum,‡ in which Tacitus draws a very lively picture of the free and warlike manners of those barbarians. Our readers will excuse us for translating this passage once more, since it is necessary to bring out, completely, some of our subsequent speculations. The historian represents these tribes as forming a sort of military democracy, and consulting in full council upon every important matter of public interest:

* Grimm. Corresp. Littéraire, tome 15. p. 657.

+ Observations sur l'Hist. de France, lib. i. c. 3. Note.

$ cc. 11, 12, 13, 14.

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