200 years, and in cases innumerable, was "bargain and sale" employed as a means of dispensing with the necessity of entry, and nevertheless without enrolment of the deed. The evasion of the statute was accomplished thus. The Act speaks only of estates of inheritance and freehold. A bargain and sale of lands for a term of years, therefore, did not fall within the words of the Act. It was seen accordingly that by making a lease to a man for a short term, and thus giving him the legal possession without entry or enrolment, a release of the fee might afterwards be made to him simply by deed. The method adopted, consequently, was to make a bargain and sale for a year, followed by a release of the fee, a mode of conveyance which, under the title of lease and release, continued in use till the present reign. The statute requiring enrolment was thus deliberately and manifestly evaded, a phenomenon no less strange than the process of barring entails in defiance of the statute de donis. If the requirement of enrolment was undesirable, why could not the statute be repealed and unenrolled conveyances of freeholds be made openly and directly? If, on the other hand, notoriety was expedient, then why conveyances should be allowed to be made in this indirect method, palpably in evasion of the statute, when the policy of requiring enrolment might have been carried to its legitimate consesequences by an amending Act, including terms of years. within the statute, is inexplicable.

Were it necessary to illustrate further this process of legalised evasion as an agency in law-making, other striking instances might be obtained from the history of the Statute of Uses. But the foregoing examples sufficiently illustrate how amendment by judicial interposition has produced complexity. Much intricacy has also resulted from the amend ing Acts of the legislature itself, where Parliament has deigned to reform. For instead of embodying in the new Act so much of the amended Act as remains law the old statute to appearance still continues in force, and the law has to be got at by piecing together several different statutes

a process of "patchwork" legislation, as it is often called, which was thus ridiculed by Sheridan in a parody on "the House that Jack built." "First comes in a bill imposing a tax, and then comes in a bill to amend the bill that imposed the tax; and then comes in a bill to explain the bill that amended the bill that imposed the tax; next a bill to remedy the defects of the bill that explained the bill that amended the bill that imposed the tax; and so on ad infinitum." The only way out of the confusion is to mould the whole of the law of property into a single enactment. Without this, reconstruction would be hopeless.

A third cause conducing to the same undesirable end has been the double ownership represented by legal and equitable estates. Confusion must necessarily exist where a man who has in one court a valid title should be held in another to have no title at all. The distinction has nothing to do with the existence of trusts which could live and flourish a great deal better without it. It is a strange anomaly that a trustee, who in one court is regarded merely as a trustee, should in another be looked upon as the true owner; while the cestui que trust whose interest in the former court is everything, is not even recognised by the latter. Having regard to the mode in which law has been made in England the phenomenon is intelligible and in perfect accordance with the rest of the system; but its history has no justification to offer for it. It is now almost universally condemned, and its elimination might be achieved without any one being greatly shocked. The simplicity which would result from that fusion of Law and Equity for which the Judicature Act has prepared the way, would be nowhere more preceptible than in the Law of Property.

Such seem to be some of the causes to which the complexity and confusion of the Law of Property are assignable. If they have been rightly described, it may be concluded that the aim of reconstruction should be a single enactment, embracing the whole of the law, and founded upon a natural arrangement.

The all-important question is that of arrangement. The vices of the present primary division into realty and personalty have been pointed out. Both the phraseology and the distinction should be discarded. Nor does there seem any need to substitute any other division of the same kind. A division of things based on the physical difference between moveables and immoveables is natural and simple. But is there anything in the physical distinction to justify its adoption as a legal distinction? Not necessarily. There is no necessary reason why there should be one law for moveables and another for immoveables. The same modes of property might exist indifferently in both; and the same methods of transfer established. It has been shown (in the previous paper), that in English law the difference between moveables and immoveables has no legal consequence, both moveables and immoveables being found in each of the opposed classes of realty and personalty. Nor does the Roman law afford any ground for treating moveables and immoveables apart. In the later Roman law there is no division of law founded on a classification of things, a fact, the importance of which will be seen when it is remembered with what tenacity the old distinction between res mancipi and res nec mancipi was adhered to. The fate of that ancient classification is instructive. As Mr. Maine points out, it is the type of a class of distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category. "The res mancipi of the old Roman law were land, slaves, and beasts of burden, such as horses and oxen. It is impossible to doubt that the objects which make up the class are the instruments of agricultural labour, the commodities of first consequence to a primitive people. Such commodities were at first called emphatically things or property, and the mode of conveyance by which they were transferred was called a mancipium, or mancipation, but it was not, probably, till much later that they received the distinctive appelation of res mancipi, things which require a mancipa

tion. By their side there may have existed or grown up a class of objects for which it was not worth while to insist on the full ceremony of mancipation. It would be enough if, in transferring these last from owner to owner, a part only of the ordinary formalities were proceeded with, namely, that actual delivery, physical transfer, or tradition, which is the most obvious index of a change of proprietorship. Such commodities were the res neo mancipi of the ancient jurisprudence, things which did not require a mancipation,' little prized probably at first, and not often passed from one group of proprietors to another. While, however, the list of the res mancipi was irrevocably closed, that of the res neo mancipi admitted of infinite expansion, and hence every fresh conquest of man over material nature added an item to the res neo mancipi, or effected an improvement in those already recognised. Insensibly, therefore, they mounted to an equality with the res mancipi, and the impression of an intrinsic inferiority being thus dissipated, men began to observe the manifold advantages of the simple formality which accompanied their transfer over the more intricate and more venerable ceremonial. The inferior kinds of property were first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights, and then afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns, by its convenience and simplicity, the cumbrous solemnities inherited from ancient days." Such is the concise account of the character of that celebrated classification given by Mr. Maine in his work on Ancient Law. In modern times the same notions of superiority and inferiority have appeared, the superior classes being immoveables, the inferior moveables; and the result has been the same-the law relating to the superior class has been absorbed into the law relating to the inferior. "The history of property on the European continent," says Mr. Maine, "is the history of the subversion of the feudalised law of land by the Romanised law of

moveables. England is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished, and in England it is visibly the law of personalty which threatens to absorb and annihilate the law of realty."

An arrangement, then, founded upon a difference in the physical nature of things seems to be condemned by history. If instead of the things which are the subjects of rights, rights themselves be taken as the basis of arrangement, a division may be obtained at once natural and of practical consequence, that, namely, so strongly insisted on by Austin, into property and servitudes. There is a clear and characteristic difference between a right, which like any of the "estates "in land, confers on the party entitled to it a power of user which is undefined and cannot be circumscribed, and a right which confers on the party entitled a power of user which is exactly defined or circumscribed, as a right of way. A right of the latter class, a servitude, gives to the entitled party a power of applying the subject only to an exactly determined purpose; a right of the former class, a right of property, gives to the entitled party a power of applying it to all purposes save such purposes as are not consistent with his relative or absolute duties. This important distinction between rights has been too little regarded by writers on English Law. Easements have not been distinguished from rights of property directly and upon the basis of this difference. They are, it is true, to be found. placed in opposed classes, but the ground of their opposition has not been this characteristic difference. They have been. separated under the names of "corporeal" and "incorporeal" hereditaments-an absurd and misleading division in which the real difference between property and servitudes is not only not brought into play, but altogether concealed. To abolish the terms "corporeal" and "incorporeal" hereditaments, and to substitute a division founded upon and so expressed as to indicate the distinction between rights which are exactly defined and circumscribed, and those which are

Το