by minor children is managed by the father (or by the mother under the control of the family council), but such property is not in parental usufruct: the powers and duties of the parent are those of a natural guardian 1.

It is an interesting fact that the capacity of a subordinate housemember to hold property was first recognized, in Japan as at Rome, in the case of peculium castrense and quasi-castrense, i. e. as regards salaries and annuities of military and civil officers.

Succession to property is in large measure independent of the house organization, but concessions are made to the older system. If there is no testament, the inheritance devolves primarily upon the descendants of the deceased, per stirpes, and without any preference based on sex or age. In the absence of descendants, the inheritance goes to the surviving husband or wife; in the absence of a surviving consort, it goes to the ascendants 2. The power of a testator to modify this order of succession is limited by the right of the intestate heirs above mentioned to a legal portion, which in the case of a descendant amounts to one-half of the share which he or she would have received ab intestato, and in the case of a surviving consort or an ascendant to one-third of such share 3. All this is thoroughly European; but there are two additional rules which give the house head a privileged position. (1) If the inheritance in question is that of a subordinate house-member; if there is neither descendant, surviving consort, nor ascendant; and if no contrary provision has been made by testament, the head of the house takes the entire estate. Brothers, sisters, and other collaterals have thus no rights of succession ab intestato. (2) If the inheritance is that of a house head, his successor in the headship, if a descendant, is entitled to one-half of the estate, no matter how many other descendants there may be; and if the successor be not a descendant, he is entitled to one-third of the estate. These shares, moreover, are legal portions, of which the new head cannot be deprived by testament 5.

Subject to the limitations imposed by the rules regarding legal positions, the power to dispose of property by testament is fully recognized, and the law of testaments is elaborately formulated. As yet, however, testament has taken no firm root in Japanese custom. What is done in Europe and America by will is done in Japan by adoption. Instead of giving away property to another 1 Secs. 884 et seq. 2 Secs. 994 et seq.

3 Sec. 1131. This section, at least in the translations, is not accurately worded; but in view of secs. 994, clause 2, and 995, it must apparently be interpreted as above.

• Sec. 996.

5 Sec. 1130. But where there is no descendant, the house head may appoint the successor to the headship by testament.

VOL. XXIII.

Sec. 979.
F

person by will which becomes effective after death, a Japanese takes another person into his house by adoption during his lifetime, and makes the latter the expectant successor to his property '.'

In comparing the Japanese house with the Roman patriarchal family, Japanese writers insist on the differences between the two organizations as well as on the resemblances; but they have not formulated what seems to be the fundamental difference. The Japanese house apparently represents an earlier stage of social development: it may be regarded as an intermediate link between the clan and the purely patriarchal family. The further back its history is traced, the more like a little clan does it appear. If we attempt to summarize the Japanese development, we may say that, within the territorialized clans which had taken form in the motherright period, there grew up, apparently as a result of Chinese influences, patronymic groups which were practically inchoate father-right clans. If Japan had not at that time already passed beyond the clan state of civilization; if the individual, instead of looking for protection to his kinsfolk exclusively, had not begun to look to a feudal lord; these new groups would apparently have developed into clans. As it was, the new houses soon began to throw off branch houses; but unlike the Roman patriarchal family, the Japanese house did not, and does not now, split into new houses as often as the head disappears: it throws off branch houses, apparently, only when it becomes, or threatens to become, unwieldy.

Recent Japanese legislation leaves the historic house formally intact; but its economic basis has been seriously weakened, and the personal authority of the head of the house has been diminished. Within the house, the modern occidental family has obtained at least a partial organization. It was perhaps the expectation of the Japanese legislators that this narrower family, developing within the house, would ultimately replace it. In considering, however, the probable development of this family and the importance which it is likely to attain as a social agency, it must not be forgotten that the modern European family was characterized, in its formative period, by the concentration of all the economic resources of its members in the hands of the husband and father, and by greater authority of the husband over the wife and of the father over the children than is accorded to the Japanese husband and father; nor must it be forgotten that this family rested on the permanent union of husband and wife. In the existing occidental family, the disintegrating influences of separate property rights and of facile

1 Hozumi, Civil Code, p. 58.

divorce are already discernible; and the importance of the family as a social unit rests largely on traditions established in earlier times. It now resists further disintegration chiefly by a sort of vis inertiae. It may therefore well be questioned whether the new Japanese family, modelled as it is on this latest phase of the occidental family, and characterized by a greater facility of divorce than any occidental state at present concedes, will really take the place and discharge the social functions of the historic house. If the Japanese house is destined to disappear, it seems probable that the decisive agency in its disruption will not be the new family, but the individualistic tendencies which the legislation of the last generation has called into activity; and that the future development of Japanese society will bring the individual in increasing measure face to face with the national state, without important intermediate authority or protection.

Columbia University, New York.

MUNROE SMITH.

'M

THE MORTGAGE CHARGE' OF THE LAND

TRANSFER ACTS.

ORTGAGE charge' here means a statutory charge under the Land Transfer Acts, 1875 and 1897, by which payment of a debt (usually due from a borrower to a lender) is secured on the land charged. As the Acts provide for the creation of charges to secure money due otherwise than from borrower to lender, it is almost essential to clearness that a distinct term should be employed to denote charges by which what are ordinarily known as mortgages are effected.

The principal provisions in the Land Transfer Act, 1875, relating to charges are contained in ss. 22-28 and s. 40. Some of these sections have slight amendments introduced into them by the Land Transfer Act, 1897, Schedule 1. The subject of charges is also dealt with in s. 9 of the Act of 1897, and the principal rules of the Land Transfer Rules, 1903, on the same subject are r. 96 and rr. 158-82. The questions to be considered are: the nature and incidents of the new interest or right-the 'mortgage charge'-created by the Act of 1875, and the sufficiency of the provisions of the Acts and Rules for practical purposes.

The registration of a mortgage charge is the only method contemplated by the Acts and Rules for effecting for the first time a complete and valid mortgage of registered land, though the Act of 1897 and Rules of 1903 provide for the registration of mortgages (there referred to as incumbrances) already existing at the time of first registration of the land. The absence from the Act of 1875 of any distinct mention of mortgages other than by way of charge seems to indicate clearly that the framers of the Act intended to adopt the recommendations made with respect to registration of charges by some of the members of the Commission on Land Transfer and Registration in 1869. To the Report of this Commission (commonly called the Report of 1870) are appended separate recommendations of several dissenting Commissioners, and amongst these dissentients was Mr. E. P. Wolstenholme. Mr. Wolstenholme said (p. xlv. par. 13):

'The establishment of a register of charges affords, moreover, an opportunity for doing away with our present anomalous system of

mortgages, under which the mortgagee is in law the owner of the land, when in fact he is only owner of money for which the land is security.'

The new system of mortgages sketched in ss. 22-28 of the Act of 1875, and further elaborated by the Act of 1897 and Rules of 1903, may certainly be described as a system under which mortgages are, in the words of Professor Mackarness (Jour. Comp. Leg. vii. 39), 'treated as what they really are, charges to secure debts, and not make-believe conveyances."

This being the general nature of a mortgage charge, the provisions of the Acts and Rules will have to be examined in detail to ascertain how far the new form of mortgage is an effective substitute for the old form the make-believe conveyance.' Subject to some doubts, which can easily be removed by legislation, the general conclusion which, it is submitted, should be arrived at is that the new mortgage is an effective substitute for the old.

Before, however, the relevant provisions of the Acts and Rules can be examined, it will be necessary that the nature of the interest of a registered proprietor in the land to be charged should be defined to some extent. It is essential to ascertain as precisely as possible what the mortgagee gets from his mortgagor by the registration of the charge, and this necessarily involves the question of the nature of the mortgagor's interest in the land of which he is the registered proprietor.

The interpretation placed upon the Acts and Rules by the Court of Appeal in Capital and Counties Bank v. Rhodes ([1903] 1 Ch. 631) is responsible for the difficulty which now exists with respect to the nature of the interest of a registered proprietor of registered land. There are two points to be discussed. In the first place, is the proprietor's interest better described as an 'estate,' or as a 'power'? In the next place, whether the proprietor's interest be described as an estate or as a power, what is its relation to the ordinary legal estate of the general law? These discussions will be greatly simplified if it be always borne in mind that to a large extent differences of opinion on the subject may be reduced to mere differences in definition-mere matters of words. The mere use of the expression 'estate,' 'power,' and 'legal estate,' is apt to lead one into fallacies of reasoning which are excellent illustrations of the idola fori. In their ultimate analysis 'estate,' 'power,' and 'legal estate' are merely names for groups or collections of property rights which differ quantitatively rather than qualitatively. For instance, the difference between a 'power' and an 'estate' consists chiefly in the former being a capacity or right to dispose of property of which one has not the actual possession or enjoy