phenomenon of a country deriving an income from national investments, instead of paying-or failing to pay-a national debt. Under whatever guidance Egypt succeeds in reaching this condition, when it is reached "the confidence of the people in its rulers" will not be lacking. Such confidence is based on the perception of acceptable services; and there must be something wanting in the wisdom of the most well-meaning of rulers if the services they seek to render are not acceptable to those under their rule. The foreigner in Egypt will not have justified his existence till the epitaph of his raj is written by a grateful nation in the ancient phase: "He entered praised and departs beloved." Since the above lines were written, the lovers of ancient Egypt have been agitated by the proposal of engineers to erect-at a total cost of five or six millions sterling-a dam across the Nile, either at Kalabsha, about thirty-one miles above Assouan; at Phile, at the head of the Assouan Cataract, which would have the effect of submerging the temple of Phila for several months of the year; or at Gebel Silsila, as an alternative to the creation of a new Lake Moeris in the natural depression of the Fayum, called the Wady Rayan. All of these great undertakings are recommended with confidence as certain to add to the national wealth and revenue, preference being apparently felt, on engineering grounds, for the most objectionable, archæologically speaking, of the dams, as promising to give a constant water supply to Upper as well as Lower and Middle Egypt. This is not the place for an expression of opinion on so difficult and technical a question, but there are one or two considerations deriving their chief force from the history of the country, which, it may be permitted to hope, will receive due consideration. In the first place, Egypt has suffered too much from outside interference to be able to afford to try any but successful experiments. The system of continuous irrigation in Lower Egypt cannot be claimed as a complete success till the salt marshes of the Delta have been reclaimed; and any introduction of the same system in Upper Egypt, where for good or ill it is as yet unknown, will be more secure against disaster if it is postponed, until all its ill consequences have been obviated and its full advantages secured in Lower Egypt. On the other hand, it is just possible that the ancient Egyptians-who, in the days of Mena, executed irrigation works. which are still admired, and who used the vast reservoir of Lake Moeris without impairing the fertility of the lowlands on the sea-shore-may have. had some good reason for preferring the system of basin irrigation in Upper Egypt. Any way, if, as has been stated, the object of the reservoir is to enable fresh crops, such as sugar cane, to be introduced, the cultivation of which requires a command of capital beyond the resources of the fellahin, it is certain that the proposition is premature, since no increase in the money value of the crops obtained could compensate the country for the creation of a landless labouring class. APPENDIX C. Vol. I., pp. 184, 323. WELSH MORTGAGES. IN describing the primitive antichretic lease as a sort of "Welsh Mortgage," there is the same kind of anachronism as in the use of the term vif-gage or vivum vadium for the same purpose. In Colquhoun's Summary of the Roman Civil Law, Sect. 1473, the Pactum antichreticum is described as assigning the produce by way of interest to the pledgee, termed in English a Welsh mortgage. The pactum antichreseos is taken to imply in all cases of doubt a pignoratitian contract . . . which must not, however, be made a means of obtaining usurious interest. An antichresis tacita accrues to a creditor who has lent his debtor a capital sum without interest, and permits him by implication to retain so much produce as will represent the legal interest though no antichretic contract has expressly intervened; he must, moreover, return the object to the debtor on the extinguishment of his claim, and if he should sell the pledge, hand over the surplus which may remain over and above the amount of such claim." The history of these conceptions in Roman Law does not concern us now; though, if we are to suppose pre-Hellenic origin for the obscure legal usages of Tenos or Mylasa, it would appear possible that the similar elements in later Roman Law might have been derived from earlier Italic stocks. The two kinds of landed security recognised by the common law of England were distinguished as mortuum vadium and vivum vadium. The vivum vadium consisted of a feoffment to the creditor and his heirs until he repaid the debt due to him out of the rents and profits of the estate. The creditor took actual possession, received the rents and applied them from time to time in liquidation of the debt, and the term for the transaction was explained to signify that by it neither debt nor estate was lost. When the debt was liquidated, the creditor could be ejected. The ancient mortuum vadium1 seems to have resembled the Welsh mortgage, the creditor and his heirs holding and receiving the rents without account until the principal of the debt was repaid, so that the estate was unprofitable or "dead" to the mortgagor in the meantime; but there was this advantage to him, that the estate was never lost. There is no 1 Glanville, lib. 10, cap. 6: "Mortuum vadium dicitur illud cujus fructus vel redditus interim percepti in nullo se acquietant." trace of the period when this mode of mortgage fell into disuse; but the change must have been effected between Glanville and Littleton, as the latter only describes mortgages a degree nearer to the modern sort. · After defining the mortuum vadium as a feoffment upon condition that if the feoffor pay the money to the feoffee at a certain day, the feoffor may reenter, he says (Sect. 332) it is called mortgage for that it is doubtful whether the feoffor will pay, at the day limited, and if he doth not pay, then the land is taken from him for ever and is dead to him upon condition, etc., and if he doth pay, then the pledge is dead as to the tenant in mortgage. To which Lord Coke adds the further reason that it is to distinguish it from vivum vadium, so called because if one pledge an estate until the pledgee have received the debt out of the profits of the land, neither money nor land dieth and is lost.1 Littleton's idea of a mortgage is that the land is pawned, and subject to forfeiture if not redeemed at a given date; while, as Mr. Fisher observes, the mortuum vadium of Glanville and the vivum vadium of Coke seem to be practically identical, and both correspond, more or less, with the Welsh mortgage, and the pactum antichreseos of the Roman law. The scanty development of both systems of pledging, in Plantagenet and Tudor England, is due to the fact that land was not yet regarded as an investment for capital. Services had not been systematically transmuted into rent, and it was not a matter of course for the "fruits or rents" to be worth so much that their accumulation would pay off a capital sum borrowed. And at the same time, the distinction between the principal and the interest of a debt, on which the distinction between the two kinds of pledges turned, was not one of very prominent social importance, as there were few alternative investments open to non-commercial capitalists. The security known as a Welsh mortgage is in effect a conveyance of an estate redeemable at any time on payment of the principal, with an understanding that the profits in the meantime should be received by the mortgagee, without account, in satisfaction of interest. It agrees with the vivum vadium in respect that the estate of the debtor is never forfeited, but differs in respect that the rents are applied in satisfaction of interest only, not of the principal of the debt. In a Welsh mortgage no covenant for the payment of the debt by the mortgagor is inserted in the mortgage deed, and the mortgagee has no remedy to compel redemption or foreclosure in equity, though the mortgagor may redeem at any time.2 The disuse of the form of contract is probably due to this inequality, which was not a difficulty in Babylonia or Malabar, because such mortgage deeds circulated as negotiable property, and a man who wanted to realize his capital could count on finding some one in want of an investment, willing to take his place as creditor. The theoretical advantage, “that the estate was never lost," may also have been found rather illusory in feudal England, when it was by no means certain that the repayment of a debt 1 Fisher on Mortgages (1884), p. 2. 2 Cooke's Treatise on the Law of Mortgage, 4th ed. (Mackeson), 1880, pp. 5, 6. VOL. II.-P.C. E E would induce the creditor in possession to allow the former owner to reenter. This difficulty occurred in the earliest example, quoted by Fisher, of a security "resembling the ancient mortuum vadium, and possibly derived from the pactum antichreseos," from an Anglo-Saxon deed of the 10th century. "It appears from the document that the land was delivered by Sigelm, the father of Eadgifa, queen of Eadward the Elder, in pledge for £30 to Goda, who held it for seven years. Sigelm having paid off the debt and bequeathed the land to Eadgifa was afterwards slain in battle, and Goda then denied having received the money and for six years withheld the land. Eadgifa purged her father by oath as to the payment, but could not recover the land without the interference of the reigning king, and after being again despoiled of it and a second time regaining it, she bestowed it upon the Church." Assuming the authenticity of this document, Mr. Fisher proceeds: "It shows that possession of the land was delivered and that the right of redemption was admitted after seven years; and it seems to be implied that no reduction of the debt had taken place by reason of the mortgagee's possession."1 In Domesday also the mention of lands in mortgage seems to imply the possession of the mortgagee, so that it almost seems as if, in England, before and down to the time of Glanville, the possession of the mortgagee was incidental to the security. We have seen how Roman law tended to limit the indefinite power of the owner to redeem in Syria, and how the prohibition of usury in the Koran was supposed to apply to the ancient Kabyle contracts called rahnia.3 And it seems that in Europe the Civil and Ecclesiastical law together set themselves to abolish the same kind of custom; which must have been the more widespread and deeply rooted to excite so much hostility. Fisher quotes the following passage from Laurière's work on the Coutumes de Paris. "When creditors, intimidated by ecclesiastical censures, took lands in pledge, with an agreement that the profits should reduce the principal, this pledge was called vif, because, as our old practitioners say, it discharged itself by its own produce, which was very just and lawful. But when the creditor took or received the profits in pure gain to himself and in pure loss to the unhappy debtor, it was called mortgage or gagemort, because it did not discharge or free itself." We see how entirely the working of any contract depends on the circumstances of the parties to it by the epithets used here. In Babylonia or Malabar the debtor in such a case is by no means necessarily "unhappy," or the contract usurious; it all depends on the value to the mortgagor of the right to redeem, and on how far the amount of the loan approximates to the full value of the land, less that right. In France these mortgages were only held to be justifiable in two cases: "as when a father, marrying his daughter, and giving her a portion, which 1 The Law of Mortgage and other Securities upon Property. W. R. Fisher, 4th ed., 1884, pp. 2, 3. 2 Ante, vol. i. p. 490. 3 lb., pp. 186, 187. he was unable to pay in ready money, gave an estate in pledge to his sonin-law, to receive the rents till the portion should be paid; or a vassal borrowed money of his feudal lord (the very opposite of the typical Malabar arrangement), and give his fief in pledge; because, as the lord, as long as the pledge lasted, lost the services of his vassal, it was right he should be indemnified by having the profits of the pledged fief." Except in these cases, theologians and casuists denounced the antichretic contracts as fictitious and usurious. "These fictitious contracts were much used in the Customs of Anjou, Maine, Touraine and the Loudunois, where they are still known under the name of pignoratifs; but the court has always held them to be illegal, and has forbidden their use." The local custom in the districts named evidently approached to the old English and Welsh mortgage, which died out before feudal custom and Rome-derived law. And the Code Napoléon now only recognises under the name of antichrèse an agreement by which the mortgagee accounts for all receipts and expenditure, and is entitled to hold the land pledged to him, till the balance in his favour has paid off both interest and principal of the original loan. In England there does not seem to have been any speculative hostility towards Welsh mortgages in the judicial mind; and Fisher lays down the law concerning them accordingly. "Being without condition, there can be no forfeiture, and consequently there is no equity of redemption which can be the subject of foreclosure; but there is a continuing right of redemption, every receipt of rent being under the contract a receipt of so much interest." Among English reported cases there are scarcely over half a dozen that deal with the so-called Welsh mortgage, which has gradually dropped altogether out of the ordinary law books. In the case of Orde v. Heming,1 in 1686, "The bill was to redeem a mortgage, and the defendant demurred by reason that of the plaintiff's own showing the mortgage was 60 years old." The demurrer was overruled, because it was charged in the bill that the mortgagor agreed the mortgagee should enter and hold, till he was satisfied, which is in the nature of a Welsh mortgage, and in such case the length of time is no objection. In 1714, however, Lord Chancellor Cowper held that a rent charge granted over sixty years ago was not redeemable "at so great a distance of time," and that the Court had heretofore gone too far in permitting redemptions.2 In one case,3 heard in 1742, we have a curious parallel to the mortgage tolerated in France, viz. houses devised to a daughter subject to redemption at a specified amount: it was observed incidentally that "in common Welsh mortgages on tendering principal and interest they may come into this court for redemption at any time." And in another the analogy of Welsh mortgages and "most copyhold mortgages is quoted" 4 in defence of the decision to allow redemption against the heirs of a money-lender, who bought from a young spendthrift an annuity of £150 for £1050, under a 1 I. Vernon, 418. 2 I. P. Williams, Chancery Cases, 271. |