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class in the House of Commons. The learned author then quotes a lengthy passage from the First Report of the Real Property Commissioners in 1829, and points out that they were influenced by the political and social conditions of the time, and while recommending many reforms gave unstinted praise (as Bentham did) to the substantive principles of the law. This quotation is so entirely apposite to the present thesis that it is legitimate to appropriate it wholesale as follows :

We have the satisfaction to report that the Law of Real Property seems to us to require very few essential alterations; and that those which we shall feel it our duty to suggest are chiefly modal. When the object of transactions respecting land is accomplished, and the estates and interests in it which are recognised are actually created and secured, the Law of England, except in a few comparatively unimportant particulars, appears to become almost as near to perfection as can be expected in any human institution. The owner of the soil is, we think, vested with exactly the dominion and power of disposition over it required for the public good, and landed property in England is admirably made to answer all the purposes to which it is applicable. Settlements bestow upon the present possessor of an estate the benefits of ownership, and secure the property to his posterity. The existing rule respecting perpetuities has happily hit the medium between the strict entails which prevail in the northern part of the island . . . and the total prohibition of substitutions, and the excessive restriction of the power of devising, established in some countries on the continent of Europe. In England, families are preserved, and purchasers always find a supply of land in the market. A testamentary power is given, which stimulates industry and encourages accumulation; and while capricious limitations are restrained, property is allowed to be moulded according to the circumstances and wants of every family. Where no disposition is made by will, the whole landed estate descends to the son or other heir male. This, which is called the Law of Primogeniture, appears far better adapted to the constitution and habits of this kingdom than the opposite Law of Equal Partibility, which, in a few generations, would break down the aristocracy of the country, and, by the endless subdivision of the soil, must ultimately be unfavourable to agriculture, and injurious to the best interests of the State.

This is the very voice of the rural mind, but it was soon to be drowned by a babble of urban voices. Professor Holdsworth traces in detail the steady tendency towards the assimilation of the law of real and personal property that characterised the later nineteenth century, and reached its consummation in the new property legislation. Dicey remarked the tendency in 1905 in a paper called "The Paradox of the Land Law," and said, "The

paradox of the modern English land law may thus be summed up : the constitution of England has, whilst preserving monarchical forms, become a democracy, but the land law of England remains the land law appropriate to an aristocratic State."

With all respect to the great memory of Dicey we would put the proposition in a different form. The English land law was not primarily related to the difference between a democratic and an aristocratic State, but to the difference between a population predominantly rural and one predominantly urban. The tendency of the nineteenth century legislation was the steady triumph of the urban or mercantile view over the rural and agricultural view. The spirit of the new property legislation is just this, that it marks the definite and final victory of urban principles. This is the key to the bulky statutes, this is the fact that gives unity and coherence to an apparent agglomeration of detailed reforms. The new law is the peak of a tidal wave that has flowed strongly in one direction for nearly a century.

A few illustrations may make the point clearer :(1) The law of real and the law of personal property have been, in a large measure, assimilated. This process invariably means one thing—that the law of personal property swallows up the law of land, never the reverse. It may not be stated in words, but it is certainly implied; in fact the extension of the law of real property to personalty is not conceived as possible, even if it could be considered desirable. It is true that equitable interests equivalent to estates tail and so forth can now be created in personalty, just as they can in realty, behind the curtain of a trust for sale; but this is a trifling consequence just to give logical coherence to the scheme. In the larger aspect there is no doubt that the smiling tiger is the law of personal property; the law of real property occupies the position of the "lady inside."

(2) The person that stalks abroad through the whole length of the statutes is the purchaser. Everything is conceived in his interests, everything is done to make his path easy. Whatever is done, there must always be a person who can sell. For this reason the estates in land are cut down to two (the estate in fee simple and the term of years); all other interests must go behind the curtain and attach themselves to the proceeds of sale. No device, no charge, no interest that can restrain the free alienation of land is allowed to exist so far as the land itself is concerned. The land

may have been in the hands of the family from the Old Doomsday to the New Doomsday*; but it will avail nothing: the land can be sold if the holder desires to sell and nothing can prevent it. It is needless to add that this is the quintessence of the mercantile view. The scales are weighted heavily in favour of those that wish to traffic, and against those that wish to hold.

(3) Equally striking is the new law of intestacy. It is the greatest change that the legislation has effected. The assimilation of the law of real and personal property (on the tiger and lady principle) is complete. The heir-at-law is abolished, all special customs of descent have gone, there is one law applied universally to all property. The scheme itself is entirely new; no code at all resembling it has ever existed in any country. It is not the old Tables of Descent nor any modification of them, it is not the Statutes of Distribution, it is not the Roman Law, nor any system that has descended from the Roman law, nor the Barbarian codes, nor the feudal customs. The scheme was evolved from a digest of a large number of modern wills in the archives of Somerset House, and represents what an average modern testator, in the opinion of the framers of the Act, would consider fair. This is not the occasion for a criticism of the scheme from the practical point of view; nor to point out (as one example) that in the case of a small estate (say up to £1500) a second wife will take practically everything and the children of a first marriage will be entirely disinherited. The essential point is that modern mercantile custom has been embodied in law, just as Lord Mansfield and his successors embodied the law merchant in the Common Law. The scheme in its general outline is that of a personalty settlement or a trader's will-not the will of a landed proprietor, not the will of a tenant or yeoman farmer, not the will of a smallholder, but the will of a merchant, a tradesman, or a professional A trader's settlement is of the town, urban: and the new code is redolent of the town, not of the country. (4) There is one blot upon the logical coherence of the fabric; one stronghold from which the townsmen were unable to dislodge the country people completely. That is the Settled Land Act. This fact is an anomaly, because the original Settled Land Act was an invasion of the rural stronghold by the townsmen. The

man.

*Perhaps it is necessary to explain that this was the name given by journalists to the valuation provided for in the Finance Act, 1910.

curious will find ample confirmation of this in the records of the agitation for "free trade in land" that preceded the enactment of the Act of 1882. But the legislation was strictly limited by its purpose. It gave powers of sale and leasing, but it did not otherwise disturb the position of a tenant for life under a strict settlement. He can sell and he can lease, and nothing can prevent him from doing so if he wishes; but otherwise his position is not altered. So it comes about that the Settled Land Act is a standing anomaly: it spoils the completeness of the scheme, and vastly increases the practical difficulty of working it. It will occasion no surprise to learn that in the original proposals the Settled Land Act was to have passed, like so much else, into the history of English law. All settled land was to have been settled upon the terms of a personalty settlement; it was to have been vested in trustees for sale, the trustees were to have been placed in the saddle and the tenant for life reduced to the position of an annuitant instead of a limited owner. From the aspect of logical completeness and practical working the original scheme would have been an immense improvement upon the one actually passed.

But at this point the men of the country rebelled against the domination of the town, and rebelled successfully. The tenant for life remained in the saddle, and the trustees remained mere custodians of proceeds of sale if sales happened to occur, without powers of management, without power to hold title deeds, without power to advise unless their advice is asked, without power of veto. The result is that in spite of the Law of Property Act there are two systems of land holding, two systems of estates, one might almost say two systems of tenure instead of one. The capital distinction, which every conveyancer must consider all the time, is whether trustees are trustees for sale or are Settled Land Act trustees, whether the land is vested in a tenant for life or whether it is not. It is an obvious anomaly; some would call it (but wrongly) a last relic of feudalism. Its existence is the most cogent evidence of the thesis that we have propounded; it is the last island that the country mice have succeeded in holding against the advancing tide of urbanization. One wonders how long they will continue to hold it.

H. J. RANDALL

IN

THE COMÉDIE-FRANÇAISE.

N Paris there are two opera houses and two theatres which are owned and subsidised by the State, and they cost the country not far short of two million francs. Of these national theatres, the oldest and the most famous is the Comédie-Française, which receives half a million francs from public funds, and also occupies its building rent free.

What is the Comédie-Française and what is its history? First of all, it is not the type of the State theatre that is found in other countries of Europe. It is unique. It is unique even in Paris. Its organization is of an entirely different kind from that which governs the Opéra, the Opéra-Comique and the Odéon. In each of these three the manager is appointed by the State, and he receives a subsidy from the State. After that, subject only to the restrictions of his contract or "cahier des charges," he exercises undisputed authority within his theatre. He undertakes to give a certain minimum number of performances, to include in them a certain number of classical works, to take over a certain working staff-not a company-of artists, and to guarantee the employment of a certain amount of capital. After that he is free. He can engage the actors and the singers that he likes, and at the salaries that he likes; and he is entitled to make a profit for himself if he can. He sometimes does, in spite of the facts that the Odéon ruined Antoine, and that the present manager of the Opéra would not be where he is, if he had not been a rich

man.

If the Comédie-Française does not resemble the other national theatres of France, still less does it resemble the State theatres of Germany or other countries. These were in their origin court theatres, and their tradition was that of court theatres. They performed what the royal master paid them to perform, and the court obediently went to see what the royal master gave it. If a standard of taste was created, it was rather because it was imposed. In other respects the manager was even more free as to the manner of spending his subsidy than those of the three theatres in Paris above mentioned. He could even hope that if things went badly the subsidy would be generously increased to help him over.

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