The Measure of Land

Date01 May 1994
DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01946.x
Published date01 May 1994
The Measure
of
Land
Alain
Pottage
*
Introduction
The archaic symbolism of mediaeval conveyancing ritual, with its paraphernalia of
swords and cut turf, may yet have had something in common with the modern
bureaucratic routine of land transfer. The mediaeval context, in which the
facturn
of a conveyance was symbolised by a sword or parchment, presupposed the
existence of a resource of memory.’ Although that resource is now constituted
and exploited in a quite different manner, memory nevertheless survives as a basic
presupposition of conveyancing. Symbolic knives warranted titles only because
they were fixed as reference points within a mediaeval art of recollection, which
recorded cultural events by associating them metaphorically or metonymically
with things and their images.2 The fact of a conveyance lived on, marked in
memory by its association with the symbolic object, which also served as the agent of
recall. In broader terms, memory was a resource of trust. A title to land was a fragile
commodity, which depended for its stability upon the vicissitudes of recollection: to
buy a title was to make an investment of trust in these conditions of continuity. One
way of representing the ascent
of
the bureaucratic form of land transfer is to
see
it as a
reconstitution of this resource. Registration removes titles from networks of organic
or practical memory, and deposits them in an administrative archive, accessible and
decipherable by reference only to the index of the archive.
The advent of trust in writing3 was the essential stage in this reconstruction of
the repository of memory. This initial move
-
from a pre-literate mentality in
which the sacred object, seal or charter were symbols which attracted and
prompted recollection, to an order in which the written charter acquired its own
memory and began to speak for itself
-
has defined the general course of land
transfer law. Subsequent refinements, notably the rules and principles of
construction which constituted the code of contract and conveyance, may be seen
as attempts to consolidate the authority of writing, to make the document the only
voice of memory or the only authentic witness to a transaction. Before the culture
of registration took root, there was a certain ambivalence about this valorisation of
paper. In fact it was useful, if somewhat paradoxical, to maintain a tension
between paper and land. The distance between the claims made by the paper and
the evidence which might potentially be unearthed through an inspection of land or
an investigation of pedigrees allowed paper and land to be interpreted as checks on
each other. Registration sought entirely to remove property from its natural
*London School of Economics.
I
am grateful
to
Stuart Anderson, Sarah Bendall, John Dewar, Joshua Getzler, Tim Murphy and Brad
Sherman for their comments upon drafts
of
this article.
1
The best sense of what this involved is given by Pollock and Maitland’s anecdote of William the
Conqueror’s joking threat
to
slice a symbolic sword through the hand
of
a Norman abbott to whom
land was being transferred, observing ‘That’s the way
to
give land
.
.
.’
(A
History
of
English
Law
(Cambridge: Cambridge University Press, 2nd ed, 1898), at p 87). As Clanchy notes, rituals of this
sort were intended ‘to impress the event on the memory of all those present. If there were a dispute
subsequently, resort was had to the recollection of witnesses’
(From Memory
to
Wrinen Record
(Oxford: Basil Blackwell, 2nd ed, 1993), at pp 254-255).
2
See
generally Carruthers,
The
Book
of
Memory
(Cambridge: Cambridge University Press, 1990).
3
See
generally Clanchy,
op
cit
n
1.
Q
The Modern Law Review Limited
1994
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57:3.
May). Published by Blackwell Publishers,
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Cowley Road, Oxford
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57
habitat, from the realm of practical presuppositions and expectations which
underpin the attribution of formal property rights. This aspiration
-
which may
not yet have been achieved
-
is most apparent in the remodelling of proof of
dev~lution.~ Here, the model of registered ownership as a form of ‘fictitious’
ownership, backed by the insurance fund as a long stop, has served to close off
many of the uncertainties which proof of devolution pre~ented.~
The remodelling of proof of identity may have been less remarked upon, but it
was just as significant. Just as the status of ownership had in some sense to be
constructed as a fiction, or abstracted from the world of practical expectations, so
did the physical form of land. Registration achieved this by capitalising on the
technology of cartography. Having reduced the dimensions of juridical ownership
to paper, it effectively did the same with topography. More significantly, it
rendered property and topography commensurable, reducing each to a form of
notation which could be accommodated to or superimposed upon the other. The
heterogenous images of property and topography were therefore harmonised
so
as
to achieve a ‘maximum capitalisation of inscriptions.
’6
Titles could be traded
almost entirely through the manipulation of paper.7 The importance of this is
clearer if it
is
recalled that property and carto raphy are quite different ways of
between the understandings which arise from the possession or use of land, and
which support the attribution or recognition of property rights, and those which are
knowing land; neither is a mirror of nature.
4
There is an essential distinction
4
The traditional understanding of proof of devolution was clearly expressed in the idea that
nem
dat
quod
non
habet,
which constructed ownership
or
‘entitlement’ as something which descended from
one legitimate transferee to the next. Proof was secured through an examination of the recitals which
formed a part of each conveyance, which told a story of the successive grants
or
transfers through
which the vendor had acquired his title, and which in theory were supposed to establish (as a matter of
‘moral certainty’) a good root of title. The
usual
explanation of registration is that it sought to eliminate
the hazards and inefficiencies of the traditional process of proving the source and continuity of a title’s
devolution. This essay focuses on the other aspect of proof, namely proof of identity, which involved
showing that the description in the contract was an accurate description of the land to which the title
related and that this description itself accorded with the descriptions in the title deeds which were
disclosed in the recitals. These earlier descriptions were contained in the ‘parcels’ which were also
an
essential part of each conveyance, and which described the land to which the title related. As the use of
that land, and of the reference points which served to locate it, changed,
so
the parcels were updated
with each successive conveyance.
5
Though not entirely: registration has only recently acquired this aspiration. In attempting to locate the
emergence of an ethos of registration in England and Wales, it may be that
1930,
when the scheme of
the land registration rules was altered
so
as to facilitate postal searches, is a more significant date than
1897
(or
even
1925).
6
For
a discussion of these aspects of the bureaucratisation of writing and ‘optically consistent’ traces,
see
Latour, ‘Visualisation and Cognition: Thinking With Hands and Eyes’
(1986)
6
Knowledge
and
Society
1.
A
practical analogy to this superimposition of concepts and forms
of
notation may be found
in the idea of thematic mapping, in which statistical categories are associated with topographical
dimensions and features.
For
the origins of this style of cartography,
see
Konvitz,
Carfography
in
France,
1660-
1848
(Chicago: Chicago University Press,
1987),
esp pp
148- 159.
7
Almost, but not quite: the assumption which dictated the terms of
s
70
of the
1925
Land Registration
Act and its predecessor in the
1897
Act was that the sequence and practical ‘logic’ of the regime of
contract and conveyance should survive. This, rather than the scheme of rectification and indemnity,
preserved the idea of a title as evidence. Registration only came into its own when, instead of
incorporating the mechanisms of registration into the established regime of contract and conveyance,
conveyancers began to adopt practices which were tailored to the schemes of the bureaucracy.
8
A view of land is inevitably a view from somewhere. A pervasive theme in much contemporary
commentary on cartography is the notion that topography is never innocent; that it serves a range of
disguised interests. See especially Harley, ‘Deconstructing the Map’
(1989) 26
Carrographica
1.
For
some cautionary observations on this appropriation of a certain style of critique,
see
Belyea, ‘Images
of Power:
Derrida/Foucault/Harley’
(1992)
29
Carrographica
1.
362
0
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1994

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