The Sun.
London, England, 1846-11-03 00:00:00

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NO VEMBER 3) 1848.
101 NE

MR. STEWART AND THE LAW
OF REAL PROPERTY.
TO THE EDITOR OF THE TIMES.
Sir,—A regard for the credit of the profession o
which I am a member, has induced me to trouble you
with a few remarks on a letter published in your journal
a few day ago, on the subject of the law of real pro-
perty, and addressed by Mr. Stewart, the conveyancer,
to members of agricultural societies, and others inter-
ested in land.
There can be but one opinion entertained of this pro-
duction by any person conversant at all with the subject
on which it treats ; and, accordingly, I should have
spared myself the trouble of making any observations
on the matter, had not your own comments on this letter
given it a publicity and importance which I trust further
consideration will induce you to think unmerited.
You preface your remarks by a statement, that Mr.
Stewart's well-known character and reputation as a
lawyer might afford some guarantee that his senti-
ments had been well digested and considered. Now,
it is by no means an enviable task for one profes-
iional man to have to criticise the character and re-
putation of another ; but I think I am fairly justi-
fied in doubting whether Mr. Stewart's character and
reputation, amongst the profession, are calculated to
enhance his qualifications, either as a censor or reformer
of the laws of real property. So far as I sin at present
informed, the public acts with which Mr. Stewart's
name is directly associated, are that of the 4th Victoria,
c. 21, a somewhat clumsy provision for dispensing with a
lease for a year, which the more sensible measure of last
session, by Mr. Kerr, has superseded ; and the Act for
the Enfranchisement of Copyholds, notoriously one of the
most remarkable instances of legislative impotency and
bad drafting on record.* Mr. Stewart is also the author
of a kind of hash of " Blackstone's Commentaries,"
strongly recommended by some persons for the use of
„students, and has also contributed, jointly with Mr.
Paikerre tiosan edition of " Bythewood's Practice of
Conveyancing. A comparison of the .difference be-
tween the price and circulation of this edition atua-
the more able one by Mr. Jarman, will show
the estimation in which the respective editors are
held by the profession. What part Mr. Stewart may
have taken in some of the disreputable measures of the last
sew sessions I know not; but from certain expressions
in his letter, I collect that the most mischievous of these
measures has, at all events, received his sanction and
approbation. But to the letter in question, for upon
this must Mr. Stewart's character and reputation for the
present rest.
After commencing his address to members of agricul-
tural societies and others interested in land, by informing
them that " if they are wise they will know nothing" of
the subject which he proposes to discuss, Mr. Stewart
proceeds to a comparison of the value of land in England
as compared with that on the Continent, from which he
arrives at this conclusion :—That, inasmuch as the value
of land in France, Belgium, and Prussia exceeds that of
land in England, such difference is not unreasonably to
be attributed, in part at least, to the difference in the law
regulating the transfer. Now, the utmost extent to
which the expense of transfer could, in ordinary prin-
ciples of reasoning, influence the difference in value,
would be the excess of the expense of transfer in Eng-
land over that on the continent ; but Mr. Stewart has
himself satisfactorily shown, that owing to the increased
stamp duty payable on the continent, the difference of
such expense can be but trifling, and wholly inadequate
to account for any substantial disparity it, value, sup-
posing such disparity to exist. If Mr. Stewart be desi-
rous of pushing his researches into this matter further,
he will probably discover that the difference in question
is attributable principally, if not wholly, to the superior
advantages which England possesses for the application
of capital in commerce and speculation. It would not
be sufficient, however, for Mr. Stewart's argument to
establish that the additional expense of transfer occa-
sioned a difference in land ; but he must maintain this
further proposition, that such incretved expense of trans-
fer constitutes a serious impediment to the free aliena-
tion of land in this country. Now, after the pains he
took to institute a comparison between the disposition of
land in England and on the continent, it might have
been expected that he would have been prepared with
some evidence of alienation being more frequent on the
continent than in England, in order to have made good
his position that the excess of the expense of transfer in
England was the cause of the limited alienation in that
country as compared with the continent ; but he has ad-
duced no such evidence, and therefore it is a fair in-
ference, in the absence of some proof to the contrary,
that, with respect to such portion of the real property
of this country as is not rendered inalienable by set-
tlement, alienation is as frequent as on the con-
tinent. To attribute any practical influence to the in.
significant amount of difference in the expense of trans-
fer would be absurd. Will Mr. Stewart venture to as-
sert, that a party was ever deterred from purchasing an
estate he had set his mind upon by any consideration of
the expense,pf conveyance ? It mght be possible, in-
deed, to find one of that class of persons whom your
commissioner styles " hard-fisted," who might growl at
apprehe nu,-Ve titriskuularaTishi'a attromitetratfifuTt7:4l";l'elli
an intended purchase, or even to form an estimate in their
computation of value. The true cause of the frequency
of alienation in this country, it is submitted, are-Ist,
The practice of locking up estates in settlement, which
applies to most of the large estates in the kingdom; and,
2dly, The strong disinclination which exists on the part
of landowners in general to part with an acre of their
inheritance. It, is a well-known fact, that a man will
encumber his estate to the last farthing of its value, and
actually starve upon it before he will permit a particle
of it to go into the market. It must be admitted, then,
that there is no foundation whatever for the position as-
sumed by Mr. Stewart, that the costs of conveyance
practically either retard or prohibit the free sale and dis-
position of land in this country. It still remains, how-
ever, to consider, first, how far the grievances of which
Mr. Stewart complains really have any existence ; and,
secondly, how far the remedies suggested by him are
calculated to be of service in removing them. The re-
medies suggested are five, namely :-
1. Simplicity and uniformity of tenure.
2. Easy, cheap, and expeditious modes of transfer.
3. Shorter and more simple deeds.
4. A greater certainty as to time in completing the
sale and mortgage of land ; and,
5. Some mode of shortening inquiry as to title.
Now, as regards simplicity of tenure, it is scarcely
necessary to remark, that with the exception of cepy-
holds and customary freeholds, and, perhaps, some few
cases of grand sergeantry, the tenure of lands, in this
country, is as simple as it can possibly be made. If Mr.
Stewart imagines that he can add anything to the sim-
plicity of free and common socage tenure, he ought in
fairness to have given some intimation of it. In the ab-
sence of some enlightenment on the subject, it is utterly
impossible to divine what he can mean. But Mr.
Stewart's powers of imagination seem, in many in-
stances, to have got the superiority over his reason. He
tells us, in a former part of his letter, " that the spectre
of feudality still haunts the land, clanking its chains,
and rising at the most unforeseen moment to scare the
lawful owner from doing what he will with his own."
Now, rhapsodical nonsense such as this is scarcely
the language a man of " character and reputation"
would indulge in on a serious matter-of-fact subject.
The truth of the matter, however, is, that there are no
feudal remains which in the slightest degree interfere
with the full and free dominion over freehold estates in
this country. The spectre in question is therefore only
a " bodiless creation" of Mr. Stewart's own, conjured
up to answer the part of a scarecrow for the occasion.
As to the uniformity of tenure, by the conversion of
copyhold and customary estates into free and common
socage, it is well known that this has long been a desi-
deratum, and would dobtless ere this have been accom-
plished by efficient measures, prepared under the su-
perintendence of experienced and competent persons,
had not Mr. Stewart himself foisted on the public an
enactment for the purpose which has been wholly un-
productive of any .practical good. This may enable us
to account for Mr. Stewart's recommendation, that the
preparation of the necessary measures of reform should
be entrusted to able and competent persons to be ap-
pointed by the Government.
The second and third remedies suggested by Mr.
Stewart, are easy, cheap and expeditous modes of trans-
fer, and short and more simple deeds. So far as these
terms comprehend the ordinary assurances for transfer-
ring property, every one is well aware that, owing to the
exertions of the profession, without taking into conside-
ration the questionable measures of last session but one,
these assurances have obtained a degree of conciseness
which excludes the possibility or advantage of any
further reduction. When a conveyance of land, ex-
clusive of the parcels, can be prepared in a form as short
as that of a transfer of stock, so that the Legislature
has thought it needful to provide remuneration for the
party preparing it, additional to what the length of the
transfer would have entitled them, it becomes impossible
to see what just ground of complaint can exist on this
head. It is true that in many cases the conveyances of
real property extend to a great length ; but this, it is
well known, is owing not to the operation of the instru-
ment of transfer, but to the complication of interests in-
volved in the transaction. As long as the present prac-
tice prevails, of subjecting property to limitations in
strict settlement, with all the powers and charges inci-
dent to this species of disposition, so long must the
ultimate discharge of the property from these interests
necessarily be complicated, and the assurance by which
it is effected proportionably lengthy. But it is ouvious
that the Legislature can afford no remedy for such a state
of things, unless by imposing a restraint on the powers
of disposition, which Mr. Stewart's friends, the agricul-
turists, would probably be the first to reject. If landed
proprietors would be satisfied with a simple owner-
ship in fee, the transfer of land might be a fleeted as
simply, and perhaps more convenienay, than a transfer
of stock ; but ii they are determined to adopt a more
preservative policy, they must submit to entail on them-
selves and their posterity the necessary consequences of
such a course. It will be apparent, from what has been
said, that as the inordins.te length to which conveyances
of real estate are sometimes extended, is occasioned not
by the specific effect of the form of transfer, but by the
number and intricacy of the interests involved, the same

E Report assigns the authorship of this Act to Mr.
Stewart, but if he is not reTousible for it I shall have plea-
sure in withdrawing my observations upon it so far as they
may affest him personally.

PIIICE SD.

umo........,,mniuMaktarammemosawara.mado
result may be applicable to dealings with personal estates.
We find, therefore, that in dispositions of personal estate,
where varied or partial interests are created or dealt
with, there is precisely the same necossity for lengthy
and intricate assurances as in cases of real estate.
On this subject Mr. Stewart has displayed most
lamentable ignorance. his language is as follows :
" Intricate and difficult questions will no doubt arise
in civilised states ; but the familiar transactions, the sale
and the mortgage, should be easily understood and easily
performed. We know they are so in personalty, in
produce' in stock in the funds." Now, any professional
person will bear me out in the assertion (which is abun-
dantly evidenced by a reference to Mr. Stewart's own
published volume of precedents) that mortgages of per
sonal property cannot be effected with greater facility
or in less compass than mortgages of real estate; on the
contrary, the assurances requisite for the purpose
(making allowance for the different characters of the

property) are in both cases precisely the same, with this
exception—that in mortgages of personal estate greater
care and skill are requisite to guard against an execution
creditor and the effects of bankruptcy end insolvency, so
far as these effects are capable of being provided against.
As to settlements of personal property, they are frequently
as lengthy as corresponding settlements of real estates,
as any counsel, solicitor, or law stationer, or if needs be,
Mr. Stewart's own book of precedents will testify. So
much, therefore, for the doctrine of assimilation contended
for by Mr. Stewart. As to the expeditiousness (if I may
be allowed the term), which Mr. Stewart suggests as
requisite to the assurances of real property, it may be
sufficient to remark that the operation of such assurances
is at present instantaneous ; so far as respects greater
expedition in the preparation and execution of them,
this, it is obvious, must be a matter wholly out of the
range of legislative provision.
With respect to the fourth of Mr. Stewart's sugges-
tions, namely, "A greater certainty, as to time in com-
pleting the sale and mortgage of land," it may be
sufficient to apprise the agriculturists, and others
interested in le.o that they are already in alosition to
effect this object for themselves, without theitid of the
Legislature, by simply making time of the essence of
the contract. The following extract from the first
volume of "By thewood's Conveyancing," by Parken and
Stewart, p. 79, will probably be deemed a sufficient au-
thority for this statement :—"A provision may be
inserted in agreements making time of the essence of the
contract, in case the purchase money be not paid at the
time appointed ; but, of course, clauses making agree-
ments void, if a title be not made, or the purchase mdbey
paid by a certain time, should never be inserted unless it
be the express intention of the parties ;" and the follow-
ing note by the editor( !):—" It was at one time doubted
whether time could be made of the essence of the con-
tract, but it has lately been decided that it may."
The sth and last of Mr. Stewart's suggestions, namely
" that some mode should be adopted for shortening in-
qwiry as to title," involves most serious considerations ;
inasmuch as the only apparent mode by which this ob-
ject can be obtained, is that of shortening the duration of
human life, in relation to which the rule as to length of
title had its origin. It is submitted, that as long as the
days of man are three score years and ten, and life es-
, bites are permitted, so long will a deduction of a sixty
years' title be essential to a purchaser's protection ; for
otherwise, if we suppose a case of not unusual occur-
rence (namely), that of a tenant for life assuming the
absolute ownership, and making a conveyance in fee,
under which possession is enjoyed for the period which
Mr. Stewart would establish as the maximum of title
which a purchaser could require, we should have this
anomalous state of things—either the purchaser must be
protected, and the parties entitled in remainder defeated
by the illegal Act of the tenant for life, against 14 hick'
they could not have guarded ; or else such persons in re-
mainder must be allowed to recover the estate as against
the purchaser, whom a court of equity may have com-
pelled to accept the title ; which would be equally
unjust.

have now carefully gone through the five remedies
proposed by Mr. Stewart, and have, I trust, satisfacto-
rily shown, that out of these five remedies four are either
useless or impracticable ; and that the fifth, namely, the
conversion of copyhold and customary estates into free-
hold, may be deemed to have been delayed or frustrated,
principally through the introduction, by Mr. Stewart
himself, of a clumsy and inefficient measure for the
purpose.

Before concluding it may be proper to remark, that
there is one point in which Mr. Stewart and I cordially
agree, namely, that the future revision of the law should
be entrusted to competent and unprejudiced persons, ap-
pointed by the Government.
Owing to some of the profligate measures of the last
few sessions, the law of real property is at present in a
highly unsatisfactory state. It is, in fact, utterly impos-
sible at present to complete a purchase of real estate with
a certainty that the purchaser may not be evicted by
claims against which no skill or foresight of his profes-
sional adviser can protect him. What folly, then, to be
nigling about a few shillings in the cost of trans-
fer, when the safety of the whole inhpritnnep is
to _ nrntect us from
That there are men of character and experience in the
profession competent to act in the emergency we know—
men of undoubted ability, whose past exertions in sim-
plifying and improving the law have never been con-
trolled by partiality or prejudice for institutions which
they were the means of abolishing, and whose position
places them out of the reach of selfish or interested
motives. It is to such men as these, then, that the task
of revision should be committed; and I feel assured that
the landed proprietors will much better consult their
true interests by bringing about this result than by giv-
ing further countenance or encouragement to the sense-
less extravagancies recommended fur their consideration
by Mr. Stewart.
I am, Sir, your most obedient servant,
A CONVEYANCER.

Lincoln's Inn, Oct. 29.

RAILWAY SHARE MARKETS.

MANCHESTER, OCTOBER 31

STOCK EXCHANGE. --The sales are-Ambergate, Nottingham, and
Boston, 1-16 p.-Birmingham and Oxford Junction, 444 p.-
Blackburn, Darwen, and Bolton, 1% dis.-Boston, Stamford, and
Birmingham, 1-16 p.-Eastern Counties, 2214 -Ditto, York Exten-
sion, 1% p.-East Lancashire, No. 2 (late Liverpool, Ormskirk, and
Preston), 34 p.- Edinburgh and Glasgow, Halves, 9 p.-Fleetwood,
l'reston, and West Riding, g dis.-Goole, Doncaster, illsetlield,
&c., % dis.-Iludderstield and:Manchester Railway and Canal, 2% p.
- Ditto, Extension, 13-16 p.- Leeds Dewsbury, and Manchester,
New Branches, I p.-Ditto, Extension, 14 dis. - London and North-
western, New, 14% p. - London, Manchester, and Birmingham,
Quarters (A), 7% p.-Ditto, ditto (C), 7,s p. -Manchester, Buxton,
and Matlock, I c. p.-Manchester and Leeds, Extension, 1 p.-North
Staffordshire, 2 p.-Oldham, Birkenhead, &c., 15-16 dis.-Preston
and Wyre, 33-Ditto, Halves (A), 4% p.-Ditto, ditto (B), % p.-
Royston and Hitcher., Ff 3 p.- Shropshire Union Railway and Canal,
5.16 dis.-South-Eastern and Dover, No. 4, 14 p.-West Riding
Union, 1N p.-Wharldale (late North-Eastern), is dis.-York and
Carlisle, 214 dis. s.

LEEDS, OCTOBER 31

STOCK EKCIIANGE.—The business of the vs./tons share markets
continued to improve during the early part of the week. and activity
was the general characteristic. A sadden fall in the funds, arising
from rumours of foreign political differences, checked the advancing
tendency of the markets, and yesterday a flatness was observable
which caused anticipations of lower prices; in several instances this
expectation has been realised, but our market has recovered again
to-day, and a good business has been done. Special general meetings
have been held of the Midland, York and North Midland, Newcastle
and Darlington, and North British Railway Companies, which have
all passed off very satisfactorily to the shareholders. The Preston
and Wyre people are negotiating with the Manchester and Leeds,
and the Ainbergates are said to have declined the first offer of the
Eastern Counties. Nothing has transpired in reference to Binning
ham and Oxtords. The sales are—East Lancashire, No. 1, New,
3t c. p.—Ditto, ditto, No. 2 (late Liverpool, Ormskirk, &c.), 334 P.
—Huddersfield end Manchester, 2 9-16 p. Ditto, Extensions, 16s.
p.—Leeds and Dewsbury, 3 13-16 p.—Ditto, Branches, 395. p.—
Leeds and Thirsk, 4 c. dis.—Ditto, New, 274 dis.—Manchester and
Leeds, Extensions, 20s. p.—North British, Quarter Shares (late Car-
lisle Branch), 595. c. n. p.—Ditto, Extension (scrip), I 6s. p.—North
Staffordshire, 2 p.—Wharfdale Junction, 21s. dis.—York and New-
castle New, 124 p.—York and North Midland, Preference, GU p.—
Anibergate, Nottingham, and Boston, 2s. dis.—North Western, 25.
61. dis.—West Hiding Union, 31. Ss. 6d. s.—York and Carlisle, 2 dis.
HULL, OCTOBER 31.

STOCK EXCHANGE..—To-day prices have im-roved slightly upon
yesterday, and the small amount of business done is owing to the
scarcity of all kinds of stock in the market. The sales are—North
British, Quarters, 83s. c. n.—Ditto, New Quarters, scrip, 17s.—York
and Newcastle, Preference, 3% p.—Ambergate, Nottingham. Boston,
&c., 2%—Blackburn, Darwen, and Bolton, 19s. 6d. dis.—Leeds and
Dewsbury, Branches, 335. 6d. p.—North Wales, 15s. Gd. p.—North
Staffordshire, 355. p.—Shropshire Union, 2s. dis.— West Riding Union,
3/. 12s.—Leicester and Bedford, 16s.—Leicester and Birmingham,
2s. 9d.