A hard right from the lift, we found ourselves before an expanse of haphazardly furnished carpet edged in kind by the panorama in the glass walls, the almost undivided view out that corner of the building extending from the thrashed cement at the once leafy embouchure of the Domain, over the Cathedral with its imported enhancements sitting rigid and far from broody in the bright, inarticulate midday sun and back on to the east west axis of the C.B.D. The built shelf of Potts Point, stacked to an inch of its limited, mineral life by the archived middle class to repulse the rising slum below, itself appeared an eburnation of biscuit. Was bound to return to my rock bottom sooner or later. Wasn’t the right word anyway. There must be something else in here. Winter’s less imbricated rectangle of Hyde Park. Our patron defender, watering his dominion. Not the mansard roofs of the Bon Marché either. These gaps in my memory aren’t even obscene, not scales even if they did fall out of the night, mere sloughed off vestiges of the hautpaanupwego. Who needs underones. Not of earth. No end to these comparisons. Tell it to them, it, them, she could drown in them. Watch out. That’s no raven. Let me draw you a map. Eliza tugged at my sleeve and pointed until I recognised an obscure bulk against the light flooded glass and we made our way to the table where Bernard sat alone with someone else. Not Darling. Who else was there. Bernard saw us and waved the wedge of ham sandwich on the way to his mouth. Hello you two welcome to no man’s land.
The other extended a slim translucent palm in our direction. Eliza shook it. Smith. He offered us the remaining seats. His colleague, he explained, was morbidly referring to the tactful architecture of the new building, divided as it was between the Supreme Court, which occupied the lower thirteen floors, and the Commonwealth Courts, which were above us. The cafeteria and the library on the next floor acted as a buffer, or a dead zone as Russett would have it, just for fodder, for the separation of jurisdictions was considered so important that it needed to be physically delineated. The design was rather subtle. It was surely not obvious to a visitor but there existed barriers that servants of the law and its residence knew were literally impossible to cross. One entered the courts from different lift wells, for instance.
Bernard wanted to know what he could do for us.
Eliza explained about the letter, were we going to have to pay the rent owing and how had Dodge managed to sell the family home all on her own and could we get it back.
This isn’t like with wills said Bernard. You can’t plead insane delusions or any of that. If she sold it —
You were her lawyer weren’t you.
Smith took a breath politely but Bernard cut him short. I was her solicitor as I’m your mother’s but if she had help selling the flat she didn’t come to me for it. What do you mean on her own.
Eliza said the flat belonged to the family she didn’t think Dodge could sell it without her sister’s consent.
You believe they were joint tenants, interrupted Smith.
Not tenants we owned it it was ours, my grandparents bought it.
Property is an elusive concept, said Smith. Due to the doctrine of tenures and estates one can rarely speak unreservedly of ownership even in relation to family homes.
Please what are you talking about.
Whatsoever, with the help of such amusing girls, the tongue picks came the answer. The doctrine of tenures and estates is the foundation of English real property law. It was in a number of ways worse than buttered mackerell for the settlement in New South Wales, but, as Blackstone wrote, if such a country be discovered and planted by English subjects, all the English laws then in being which are applicable to their situation, and the condition of an infant colony, are immediately their bithright —
There what.
Bernard said that’s called black letter law. Jo has a you know, a photographic. He doesn’t miss a thing but he’s incapable of improving or abstracting.
Bernard said Smith, is a fat liar. I am selective, and already as indicated oversimplified. In 1833 Justice Burton quoted from Blackstone in the same way during Macdonald v Levy in order to argue that the English usury laws were in place here the moment one person became a lender and the other a borrower, but despite Burton’s public intention to remedy the apparently enormous and ruinous change of property which occurred in this colony at that time and his private desire to correct what he called the cupidity of the half-reformed rogues of Botany Bay, the Chief Justice, the first, author of The Improvement of Wastelands: Viz. Wet, Moory land, land near rivers and running waters; peat land, and propagating Oak and other timber upon neglected and waste land. To which is added a dissertation on great and small farms; and the consequences of them to land-owners, and the public, opposed him on the thoroughly reasonable grounds, principally, and apart from the fact that if, ignoring not only the general practice in New South Wales at the time, including the court’s own ruling on an interest rate for the newly opened Savings Bank that would have been illegally high in the mother country, of 8 percent, as being against the statute of Anne, but also the diverse outcomes of that legal inheritance in the other possessions of the Crown, Ireland Jamaica or the American Colonies for instance, since the first regulation of the interest rate under Henry viii, if the court ruled that the law that fixed the interest rate under Queen Anne at five percent had been in place since the beginning, then, in the words of Justice Dowling, the public credit of the colony must be shaken to its foundation, and the most irreparable injury produced, it was simply not the intention to broad cast the whole body of laws in existence in England upon the colony but rather, as Blackstone himself proposed, those that were applicable. Indeed, in that case the plaintiff’s argument that a part of the Act may hold and a part not, depending on local custom, so that the statute would then stand as a blank as to the rate of interest in the colony, was upheld by Forbes’ drawing attention to the recognition given in the so called statute of frauds to the force and effect of local usage in determining the application of any particular statute to the colonies.
To remover certain doubts Jo, avoid all unnecessary dilatory or vexatious forms of proceeding.
What I want to say to these young people, he continued soberly, is that in much the same spirit as met the usury law, the impracticality of the doctrine of tenures and estates was in fact recognised and gradually acted upon, which is one reason we have two kinds of real property law in place simultaneously, the feudal doctrine as embodied in the English Common Law System of conveyancing, and Torrens Title: hence why it should be perfectly easy for you to find out to whom the flat was registered. But Russett did well to recall me to the rules. Allow me momentarily to take a bourne in lieu of the confins and remove down to basics, immo, are we on the same page, like Félicité peering in upon the vanishing point of la carte du pays perhaps to find out new heaven and earth (here we are), to stuff our common fancy through a back window of that ultimate refuge where one hopes to put one’s feet up, scilicet, to wit, to woo that hypothetical complot where property and law, as Bentham apparently discovered, are born together, and die together, for all purposes coto y termino (we needn’t let in the hordes of Boa-constrictors just yet, not for the moment to amalgamate princes and merchants, but in a foyer where some king worms live longer than bronze, in their insolvent progeny I mean, the bust will perhaps survive the ardent city after all, as a famous poet once said). I know what you are thinking. Our abstruse training can leave even the most stringent of us with delusions of hypotaxis. But anyone who stands with the people can make himself perfectly understood. If immemorial usage is the proper evidence of custom, the vicious circle of applicability is a mere surface manifestation of that inconsistency that sets every one of us here moving, accessorium sequitur principale, abyssus abyssum invocat, and one is leery even in common law, which in fact generally tends to consider any authority immemorial that has not ceased, of deferring justice to the source, but to be emphatic in an exotic way, if what for instance comes to be defined as personalty, involving as it does a fundamental abstraction wherever the proposition remains so to speak even remotely tenable, that a piece of stuff which is actually in the Indies may belong to me, while the dress I wear may not, binds us as well as those legal incidents with which we say that a court is clothed, it is that dress, as Charron says, is where yours and mine begins, a sort of tunica molesta one way or another, whether it binds you to the stake or lights your way through the Imperial Gardens. I can put it another way. Where in contrast to the limited assertion of finders keepers, for all that this encompasses nine tenths right to anyone’s gems once swept glowing from the above-mentioned fireplace to be misplaced in my pocket or some other fictive apprentice’s pillow, say the poor man’s proskephalion basilikon, we will get to the nut-shell, property classically appears simply as what is enforceable as against the whole world, I will remind you it is a monopoly in which the thing in question already regards the others, absolutely Hap Hazard as the case may be, and whereas in the first instance there also obtains some manner of reciprocity, for at the very least one cannot, cf. the imprint in the sand, own anything in isolation, in the second its essence is revealed to be pecunium, whence one returns to the principle, embracing both inert and moveable property, that the interest in rem, more or less rigorously extracted from the interest in personam, does not depend on what we may desire to idealise in terms of inherent value.