Landholding in England/Chapter 6

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THE history of landholding in England cannot be either complete or intelligible, without some slight account of the Court of Chancery.

In early Norman times, the Chancellor was the King's Secretary. He kept the Records, but he had no judicial powers. But with the rise of the House of Commons, the Chancellor became a very much more important person. He was usually an ecclesiastic—it was essential to have someone who could read and write with ease. When the Lords met in Council, the Chancellor represented the King, and so he was known as "the Keeper of the King's conscience." Gradually, he and his office became the focus of the interests of the King, the Lords, and the Church. Abuses crept in with increase of power. The Chancery officials seem to have done pretty much as they chose. In the reigns of Edward II. and Edward III. there are loud complaints that the Chancellor's clerks charge what they like for writs—but as these charges went into the King's treasury, he was not disposed to restrain the clerks. Besides this. Chancery was always usurping the rights of the people, by inventing new offices—of course, with new fees. Equally of course, the transfer of land was always the great point at issue. Little by little, out of the universal desire to evade feudal burdens and to obtain the power of bequeathing land, a most extraordinary system grew up, in which the Law of Chancery set itself against the Common Law—ostensibly to "soften its rigour," but in effect to make the transfer of land so difficult, complicated and dubious—and so expensive—that we came to talk of "the glorious uncertainty of the law," meaning that, where "real" property was concerned, a man could hardly be so much in the right that a Court of Chancery might not pronounce him to be in the wrong, or so much in the wrong, that a Court of Chancery might not pronounce him to be in the right. The great business of Chancery concerned the land.

Restrictions on the transference of land are so inconvenient, both to those who wish to sell, and to those who wish to buy, that no sooner was a law made in the interests of the feudal lords than the lawyers found a way to evade it, adapted from the Roman Civil Law. This was by conveying lands to Uses, the masterpiece of legal evasion. The Statute of Mortmain was thus defeated. A man who wished to give land to the Church, but was prevented by Mortmain, would alienate the land to B and C, who agreed to pose before the law as new tenants, but really allowed the "use and profits" of the land to go to the Church. B and C were thus mere holders in trust for the Church.[1] The person who had the "use and profits" was called "cestuy que use." The advantages of this method were obvious. The laity quickly followed the example of the Church. Grants "to uses" were common in Edward in.'s time, and the rule by the time of Henry V. It went on, until there began to be transfers of the "use" itself to a "use," until it was decided that "an use cannot be engendered of an use." The procedure was this: A, a tenant in fee-simple, would make a feoffment (or assignment) to B, C, and D, conveying the land to them, perhaps to his own use, perhaps to the use of E. Several feoffees were usually named, because then there could be no legal succession while any one of them lived. And as by the time of Henry V. the lawyers had decided that the use of lands was an interest distinct from legal ownership, and not liable to feudal burdens, the man who had only the use could commit treason without forfeiting his lands. Especially did this manner of conveying lands prevail "among all ranks and conditions of men by reason of the civil commotions between the Houses of York and Lancaster, to secrete their possessions, and to preserve them to their issue, notwithstanding attainders; and hence began the limitation of uses with the power of revocation" (Gilbert, "Law of Uses").

For eighty-six years—from the deposition of Richard II. to the accession of Henry VII.—the succession to the Crown was in dispute, and during thirty of these years the country was torn by civil war. Most of the considerable holders of land in England had fought on one or on both sides; when a man was a loyal subject to-day, and a traitor to-morrow, according as the fortune of war inclined to the White or the Red Rose. In the time of Henry VII. it was determined that "uses" might be enforced without going to Parliament—indeed, it would often have been highly inconvenient, and sometimes impossible, to go to Parliament. So the Court of Chancery winked at fraudulent recoveries; and though the 15 Richard II. prohibited the holding of land under the condition that someone else had the use. Chancery set the Common Law at defiance, and thus "the creation of a use became a means whereby the benefit of ownership might be secured to persons without any of its burdens. … The factious baron vested his estate in a few confidential friends, and committed treason with comparative safety. The peaceful proprietor adopting the same precautions enjoyed and disposed of the beneficial interest unvexed by the exactions of the lord, and regardless of the rules of Common Law" (Hayes on "Conveyancing").

The device was also resorted to by swindlers and fraudulent debtors. In the last year of Edward III. (1376-1377) a statute was passed against persons who "borrowing divers Goods in Money or in Merchandize of divers People of this Realm, do give their Tenements and Chattels to their Friends, by Collusion thereof to have the Profits at their Will, and after do flee to the Franchise of Westminster, or of St Martin le Grand … and there do live a great Time with an high Countenance of another Man's Goods and Profits of the said Tenements and Chattels, till the said Creditors shall be bound to take a small parcel of their Debt, and release the Remnant." These nefarious transactions are now declared void in law. The modern swindler, who settles a comfortable income upon his wife, before his bubble bursts, is only a humble imitator of the mediaeval fraudulent bankrupt.

The practice of assigning uses was based on the difference between principal and interest—principal could be forfeited, or could lapse and revert, but mere interest could not. But in all these arrangements, the "beneficiary" (called in the Old Norman French, "cestuy que use") had to rely on the honour of the trustees. Common Law did not recognise these bargains. It said that the nominal tenant was entitled to the benefits, and if he refused to hand over the profits to cestuy que use, the latter had no remedy—he would be non-suited at Common Law. He would then appeal to the Chancery, "for the love of God and for charity," and the Lord Chancellor would decide that "in conscience" the nominal tenant ought to keep his promise, and would issue a writ to compel him to hand over the use and profits—for though the Common Law could not enforce its decisions the Chancery could. Hence Chancery and Equity Courts were known as "Courts of Conscience"; and Equity was defined as "that which mollifies or softens the rigour of the Common Law."

Between Edward III. and Henry VIII. many statutes were passed to make the beneficiary owner subject to certain liabilities in respect of his land, but means of evasion were always found. "Feoffment with livery of seizin was the regular mode of transfer by which one person could convey lands to another at common law, or the fictitious process of fine or recovery might be brought into use. There were other legal means of transferring lands, but in all cases the modes of conveying were open and notorious. But in conveying lands to uses there was no open act of transfer, and the Chancery laid it down that there was no reason why the intention of the donor should not be carried into effect at a future period. … A use might be raised on the happening of any future event, or on the expiration of any specified time. … Thus a power was acquired of creating future interests in lands to be shifted and to pass from one person to another which was unknown to the common law and which gave rise to the complicated system of conveyancing which prevails at the present day" (Digby). The device of uses was applied to copyhold and leasehold lands, and here still more complicated questions arose, as the lawyers invented one new method after another of destroying the effect of each new statute passed to prevent secret conveyance, whether of lands or of leases; until at last the lawyers themselves did not understand the law—to the great increase of litigation, and profit of lawyers.

In such a state of things it was inevitable that great abuses should creep in. Chancery became corrupt. Parliament was always complaining of this court. More than one Chancellor was impeached for bribery. As early as 1382 it was said of the Masters in Chancery that they were "over fatt both in bodie and purse, and over well furred in their benefices, and put the King to very great cost more than needed." They made a regular trade of the cases brought before the court, and took money and presents for speedy judgments. Unnecessary copies of proceedings were thrust on suitors to be paid for very dearly. The officials ignored the orders of Chancellors. Parliament fixed the fees of the Masters, but did not enforce them.[2]

The evils grew with time. "A Rod for the Lawyers"—a pamphlet published in the middle of the seventeenth century—says this of equity proceedings under the Commonwealth:

" And when either party sees he is likely to have the worst by Common Law, then they have the liberty to remove into the Chancery, where a suit commonly depends as long as a buff coat will endure wearing especially if the parties have, as it is said, good stomachs and strong purses; but when their purses grow empty their stomachs fail. Then, when no more corn is like to be brought to the lawyer's mill, it is usual to ordain some men to hear and end the business; but alas! then it is too late; for then probably both parties or at least one of them, are ruined utterly in prosecuting the suit, want of his stock, and following his calling."

Chancellor, Masters, clerks, all were in the same boat. The Chancellor sold the offices in his court, or gave them to his friends. The Masters took bribes, and the clerks forced unnecessary attendances of suitors, for which the suitors had to pay. The proceedings in "Jarndyce v. Jarndyce" exactly represent what the procedure of Chancery came to. In 1653, in a debate in Parliament, the Chancery was described as the greatest grievance of the nation. It was said that, for dilatoriness, chargeableness, "and a facility of bleeding the people in the purse vein," that court might compare with, if not surpass, any court in the world. "It was confidently affirmed, by knowing gentlemen of worth, that there were depending in that court twenty-three thousand cases, some of which had been there depending five, some ten, some twenty, some thirty years, and more; that there had been spent therein many thousand pounds, to the ruin nay, utter undoing, of many families; that no ship almost that sailed in the sea of the law but first or last put into that port, and if they made any considerable stay there, they suffered so much loss, that the remedy was as bad as the disease; that what was ordered one day was contradicted the next, so as in some cases there had been five hundred orders and more; that when the purse of the clients began to empty, and their spirits were a little cooled, then by a reference to some gentlemen in the country, the cause so long depending at so great a charge, came to be ended ; so that some members did not stick to term the Chancery a mystery of wickedness, and a standing cheat, and that, in short, so many horrible things were affirmed of it, that those who were, or had a mind to be advocates for it, had little to say on the behalf of it, and so, at the end of one day's debate, the question being out, it was voted down."

But Chancery was not thus ended. A pamphlet entitled "The Honest Lawyer," printed in 1676, says that a Chancery suit is one "where one order shall beget another, and the poor client be swung round (like a cat before execution) from decree to re-hearing, and from report to exemption, and vice-versa, until his fortunes are shipwrecked and himself drowned." The court is described as "a mere monopolie to cozen the subjects of their monies."

Some improvements had, however, been made in the time of the Commonwealth, and up to the middle of the nineteenth century abuses were checked one by one, and at length destroyed.

  1. It is evident that tenants connived at evasions of Mortmain. The 15 Richard II. {1391) forbids "religious persons, Parsons, Vicars and others," from buying lands adjoining to their churches, "and the same by sufferance and assent of the tenants, have made churchyards," and have made "parochial buryings "in these churchyards.
  2. The writ of subpoena is said to have been invented by John de Waltham, Bishop of Salisbury, Master of the Rolls in the time of Richard II.