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not, would tend greatly to simplicity. There might be some difficulty about terms. “Easement” is perhaps not comprehensive enough to include the whole of the subjects of the class opposed to “property,” and the word servitude is not free from objection. Perhaps a more significant and appropriate word might be coined. For the present, the distinction may be marked by the usual terms of writers on jurisprudence-property and servitudes.
The subdivisions of " property," in this, its specific sense, next claim attention. First, the “tenures” and “estates of English Law must be disposed of. This may easily be done. Tenure as regards freehold estates is practically obsolete. The distinction between freehold and copyhold tenure is of practical consequence, but it is a distinction which might nevertheless be abolished with advantage. The process of enfranchisement has received considerable legislative encouragement; and to abolish copyhold tenure entirely, would only be to carry out the policy which has been initiated to its legitimate consequences. We should then be rid of all the antiquated remnants of the effete feudal system, and be free to reconstruct the property department of the law in a manner more consistent with modern ideas, and in an infinitely simpler method.
As to “ estates," considerable alteration would be necessary, both as to their terminology and their nature. The various modes of property, whether in land or goods, may be accurately enough divided into absolute and limited, the term "absolute” being used to signify the largest interest which the law recognises in the subjects of property; and " limited," all other interests. Absolute property would include, therefore, the present estate in fee simple and ownership of goods. The term “fee simple” might be conveniently expunged, as being now of no significance. The mode of property which it designates has no practical traces of the ancient fee left. Whatever remnants there are of the feudal system—theoretical rather than real-might be justifiably abolished as at variance with existing practice, and
the term itself superseded by the more significant expression, 6. absolute property.” It may be said that there is no such thing as absolute property, restrictions being necessary to prevent abuse of the right-.g., "sic utere tuo ut alienum non laedas.” Of course such restrictions are necessary, being among the “sacrifices of security to security,” to use Bentham's expression, which are essential to the very existence of security. But the term absolute may fairly be used not as meaning " unrestricted,” but as “ least restricted”-the largest interest the law recognises.
The next estate to be noticed is that unreasonable creation of the law known by the name of “estate tail," an estate which, for the many evils which have been wrought in its name, and the disgrace it has brought on the law of conveyancing, ought to meet with universal execration, and be put to an ignominious death. Its existence, in spite of the authorised modes of defeating it and in contravention of the policy of the law against perpetuities, without there being the slightest utility in it, is inexplicable. Why, instead of abolishing an institution in no way beneficial, evasion of it should have been tolerated by means of a process so disgraceful as that of common recoveries, and still more curiously, why an Act of Parliament should be passed to simplify the means of barring entails, instead of abrogating them entirely, is a problem which history does not solve. It is an estate for which, in the present condition of our law there is no place. It accomplishes nothing that could not be accomplished quite as well without it. Its place in settlements might be supplied by a fee simple. It is used only for the purpose of keeping an estate in the family. But what does it towards this end which an estate in fee simple could not do? A tenant in tail may, at any time, whether in possession or not, bar his issue. It is only in the event of his not barring the entail that the estate descends. But so does an estate in fee simple, if not disposed of. The only difference is that enrolment is necessary to effectuate the alienation of an estate tail, and that a conveyance of the
fee simple may be made without emrolment. The consent of the “protector” is required merely to enable the tenant in tail to bar remainders, and only for this purpose when the estate is not in possession. The estate is a most anomalous phenomenon from which the law cannot be too soon relieved.
Under the head of " limited property” fall the interests in land, called estates for life, and terms of years, and the lesser interests in moveables. The absurdity of opposing estates for life and estates for years as realty and personalty; and further of calling the former an estate of freehold, the latter less than freehold, was noticed in the former paper. The difference between them is merely a difference of duration ; the duration of an estate for life being undefined, that of a term of years necessarily definite. There is nothing in this to produce practical consequences.
Passing by, as of little importance, the tenancies at will and by sufferance, the whole of the Law of Property it is conceived might be embraced in the following simple arrangement:
This it is humbly submitted will bear a favourable comparison with the established arrangement, viz: the following cumbrous classification :
REAL PROPERTY :-
estates less than freehold :
terms of years.
tenancy by sufferance.
grand and petit serjeantcy.
ancient demesne. Incorporeal hereditaments, PERSONAL PROPERTY:
terms of years in land.
goods and chattels. So far, only a very general sketch of the arrangement of the Law of Property has been attempted. The further treatment of the subject must be reserved for a subsequent paper.
A very general sketch of the arrangement of the Law of Property is all that has here been attempted. To point out in detail the many defects of the existing system and suggest all the improvements which seems desirable would require a considerable volume.
VI.-THE RIGHTS OF NAVAL WARFARE.
Honourable the Earl of Derby, Her Majesty's Secretary of State for Foreign Affairs, by Mr. H. N. Mozley, Barristerat-law, on the subject of the Belligerent Right of Capture in reference to the Conference now being held at Brussels, on the Rules of Military Warfare:MY LORD,
The Congress which has been summoned at the instance of the Russian Government to meet at Brussels for
the purpose of entertaining proposals for mitigating the horrors of war, offers a convenient opportunity for the agitation of a question of peculiar interest to this country, and warns us also of a very serious danger. I allude to the importance of maintaining so far as it exists, and of re-establishing so far as we can practically do so, the ancient belligerent right of capturing on the ocean the private property of an enemy, wherever found. The danger is the loss of the remnants of the right which already exist.
The ancient and wholesome doctrine with regard to war (which doctrine obtains in a great measure up to the present day), was, that it is not merely war between two Governments in their political characters.
" Every man,” it is said, “ is, in judgment of law, a party to the acts of his own Government, and a war between the Governments of two nations is a war between all the individuals of which the one, and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society."*
And the writer proceeds to illustrate his meaning by reference to the rules of International Law with regard to the capture of enemy's property, by land and by sea. War, then, implies attacks upon property as well as upon persons ; the capture of the enemy's goods as well as the slaying of soldiers in the field. One is not a means to the other, but both are means to the same end—which is to compel the enemy to submission to the demand on the refusal of which the war is based. This, then, being the end of war, it will obviously be a greater gain to humanity if this is effected by the seizure of property than by the slaughter of men.
The losses of the merchant or shipowner are not for a moment to be compared with the sufferings of the wounded, or with the premature loss to the State of its best and bravest men. Again, the losses of the merchant or shipowner, if unduly and exceptionally grievous, may be wholly or partially repaired by the State of which he is a member. No power on
* Kent's Commentary on International Law; p. 192 in Dr. Abdy's edition.