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Jeremy Bentham and the Real Property Commission of 1828*

Published online by Cambridge University Press:  26 January 2009

Mary Sokol
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Extract

In February 1828 a Royal Commission was appointed to examine the law of Real Property of England and Wales. The Commission sat for four years and examined a vast amount of material, recommended certain changes in the law, and drafted several bills for consideration by parliament. Four massive reports were eventually presented to parliament in May 1829, June 1830, May 1832, and lastly in April 1833. As a result parliament enacted a limited number of piecemeal (although important) reforms, but did not attempt a major revision of the law.

Type
Research Article
Information
Utilitas , Volume 4 , Issue 2 , November 1992 , pp. 225 - 245
Copyright
Copyright © Cambridge University Press 1992

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Footnotes

*

I am grateful to William Twining and Stephen Conway for commenting on earlier drafts of this paper. My thanks are also to Mike Slade and the Law Department of the University of East London for support while this was being written.

References

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8 The Law of Property Act 1925 confirmed the Tenures Abolition Act of 1660 and abolished all feudal tenures save free and common socage. Section 1 of the Act allows only two estates to exist in law. These are the fee simple absolute in possession and the leasehold estate. Therefore all other estates, such as the life interest or the entailed estate, can only exist in equity. These measures did undoubtedly simplify land law, but at the same time the feudal doctrines of tenures and estates were preserved and continue to exist. Other reforming legislation introduced in 1925 included the Administration of Estates Act, the Settled Land Act, the Trustee Act, and of course the Land Registration Act.

9 Lieberman, David, The Province of Legislation Determined, Cambridge, 1989.CrossRefGoogle Scholar

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26 Ibid., 23.

27 Ibid., 29.

28 Dixon, Robert, Observations on the Proposed New Code Relating to Property Law, London, 1829Google Scholar; Sugden, Edward, A Letter to James Humphreys on his Proposal to Repeal the Laws of Real Property and Substitute a New Code, London, 1826.Google Scholar

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Do you think it advisable that persons beneficially entitled in fee to gavelkind lands should be enabled to disengavel them by declaration to that effect by deed? Have the goodness to state any objections to this measure that may occur to you.

47 See Ker, Bellenden in First Report, p. 295Google Scholar, on codification. He mentions both Bentham and Humphreys, and advocates using the American model of property legislation as opposed to the French model.

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55 Ibid., p. 22.

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58 Peel's influence over the composition of the Commission is denied in a letter to Arbothnot, , 19 05 1828Google Scholar, BL Add. MS 40,396, fo. 197, in which Peel declared himself unable to influence the composition for he was ‘compelled to be guided by the advice of more competent judges’. But perhaps he was being disingenuous, because in a letter to Gordon, Robert, 11 08 1828Google Scholar, BL Add. MS 40,396, fo. 219, Peel showed that he certainly took great pains to select the members of the Commission to consider the lunatic bill.

59 Letter cited, Peel to Campbell, ‘my emphasis’. See also the Life of John, Lord Campbell, Lord High Chancellor of England, ed. Hon. MrsHardcastle, , 2 vols., London, 1881, i. 454–6.Google Scholar

60 Ibid., 503.

61 See Cornish, W. R., Law and Society in England 1750–1950, London, 1989, p. 173Google Scholar; Simpson, , pp. 282–3Google Scholar; Offer, , p. 28.Google Scholar

62 UC lxxvi. 28.Google Scholar

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66 The Correspondence of Jeremy Bentham, vol. v, ed. Milne, A. T., London, 1981 (CW), p. 334.Google Scholar Bentham again complained bitterly to his brother about Butler in December 1796, Ibid., 338, also mentioning that he was suffering from toothache, so perhaps his physical pain accounts for his irritability.

67 Correspondence (CW), vi. 4.Google Scholar

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72 First Report, p. 249.Google Scholar

73 Ibid.

74 Revisers' Notes, 3 New York Revised Statutes, 1836, Appendix, p. 401.Google Scholar The connections between Humphreys and the New York reformers are examined in Rudden, B., ‘A Code Too Soon: The 1826 Property Code of James Humphreys: English Rejection, American Reception, English Acceptance’, Essays in Memory of Professor F. H. Lawson, ed. Wallington, Peter and Merkin, Robert, London, 1986, pp. 101–16Google Scholar, and Stevenson, Charles E., ‘Influence of Bentham and Humphreys on the New York Property Legislation of 1823’, American Journal of Legal History, i (1957), 155–69.CrossRefGoogle Scholar Stevenson maintains that Bentham through Humphreys influenced the codification of New York Property legislation.

75 Tyrrell, John, Suggestions Sent to the Commissioners Appointed to Inquire into the Laws of Real Property, London, 1829, p. 2.Google Scholar

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78 Livingston Papers, Box 72, fo. 13, Princeton University Library.

79 Ibid.

80 BL Add. MS 33,546, fo. 317.

81 BL Add. MS 34,661, fo. 2.

82 BL Add. MS 33,546, fo. 422.

83 Parliamentary Debates, xxv. 1114.Google Scholar

84 BL Add. MS 34,661, fo. 3.

85 Ibid., fo. 4.

86 Livingston Papers, Box 72, fo. 13.

87 Bowring, , i. 301.Google Scholar

88 BL Add. MS 34,661, fo. 5.

89 Bowring, , v. 419.Google Scholar

90 UC xi. 27.Google Scholar