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laws of this character, it is of more importance that they should each be adapted to the feelings and habits of the people, than that the whole should be framed in some imagined harmony of parts.'
This he exemplifies by various instances, in some of which, nations, living under fixed laws, have secured their personal freedom by means apparently inadequate to that great end; and in others, have either overlooked, or derived no advantage from, institutions which should have had a direct tendency to it.
But,' (he continues, in a series of canons of incontrovertible truth, and practical cogency,)- if system ever be requisite in laws, institutions respecting real property, under its various modifications, both as regards transactions among the living, and the return to the quick from the dead, imperiously demand, (and the requisitions are perfectly practicable,) that their characters be direct and well defined; free from mere technical distinctions, whether of tenure, of nominal ownership, or of jurisdiction;-that possessions be kept distinct, unaffected by interfering rights of third persons,-that the rules of succession, whether primogeniture or equal partibility prevails, be simple and uniform;that the power of alienation be unrestrained, and its mode bear immediately on the object;-that the rights of creditors be ample and prompt; -that the periods of prescription, or bar by adverse possession, be clear and of limited extent;-above all that, instead of vainly seeking, by equitable interference, to adapt the crude and scanty institutions of early ages to the complicated relations of cultivated society, one uniform system of laws regulate the whole ;-and that no act be done, nor right conferred, by circuitous means, whether of legal fiction, or nominal interest, where the object may be effected directly, with its real name and character.’— Introduction, p. 3.
Of the defects thus alluded to, in institutions respecting real property, and of the supineness of the legislature, and the indifference of the public in correcting them, the laws of England afford, in the author's opinion, a signal example. The main causes to which he traces them are, Tenures, originating in the feudal system; and Uses, and Trusts, invented, the former for eluding the defects of tenure, and also for enabling ecclesiastical bodies to appropriate to themselves lands in mortmain; and the latter to supply the narrowness of a literal construction put by the courts of law upon an act passed by the legislature to legalize After a rapid glance over these topics, he proceeds towards a practical view of the system; but premises it by a definition "Of Real Property and its essential Qualities.' This species of ownership is considered, in the laws of England, (he says,) as comprizing not only land, with the erections and other improvements upon it, all which are called corporeal; but also various rights derived out of land, and which (consisting of privileges for
* Le mort saisit le vif, say the feudal jurists.
in the instances of the ancestor's own issue, and of the issue of his brothers and sisters, only because they proceed from members of his family, or that of his parents, who would be the natural objects of his bounty or affections. The proposed alteration, however, is by no means in unison with our present sentiments and habits on this subject.
To the title of descents, the author has appended a comparison between primogeniture and equal partibility; exemplifying the former by our own system, and the latter by the Code Napoleon. With so strong a disposition to resort to first principles, and so little fear of innovation, as he has exhibited in the preceding chapter, we were not prepared to find in Mr. Humphreys the champion of an institution bearing among ourselves such unequivocal marks of a feudal origin, and so much at variance with the spirit of what is called philosophical legislation. Though unprepared, however, we were rejoiced to find it so; and still more to discover, in the reasoning by which he supports his view of the question, so much of what we are apt to regard as true philosophy-a wise and temperate regard even to prejudices, (if they must needs be so termed,) consecrated by habitual usage, and which have taken their place de facto among the main-springs of national action.
Our English law of primogeniture,' he says, has often been represented as a harsh and impolitic rule, which, sacrificing natural affection to an ill-regulated passion for family aggrandizement, or to the vanity of supporting an empty name, beggars the younger branches of a family, to enrich the eldest; and prevents the free circulation of property. But, let us view a little in detail, first, the extent of property to which this law applies; next, (as influenced by the preceding topic,) its concurrence with natural affection; and finally its political effects.'
Our author then points out, that the rule in question does not extend to females. They all,' he observes, ' take equally; and the public sentiment, generally guided by the law, adopts the same mode of disposition among them.' The widow's jointure, and younger children's portions are equally exempt from its operation. But, what is of far more importance, and in application so extensive, as actually to convert the rule itself into the exception, is, that it does not extend to personal property: that is to say, to a class of possessions infinite in its qualities and ramifications, and of which one single article, namely, the interest of the national debt alone, exceeds in amount the total of our national rental of land.
'It has been justly observed,' (says our author,) by Montesquieu,* that to educate children is a natural obligation on the parent; to give them his property, is one of civil or political institution. Conceding however
* Esprit des Loix, liv, xxvi. c. 6.
want of an existing right of entry to restore it, the contingent remainders were destroyed. The grantor indeed, or his heir, might, in that case, re-enter, the seisin under the grant being at an end; but if the latter colluded with the tenant in possession, the whole grant might be defeated, and a complete estate acquired by wrong with impunity. After uses were converted into legal interests by the statute of Hen. VIII., the effect of this inconvenience was prevented, in settlements to uses, embracing provisions for unborn issue, by limiting to trustees an estate commensurate with that of the immediate tenant for life, for preserving these remainders, with a right of entry for that purpose. This cured the particular evil; but it introduced into settlements another system, that of trust, in order to remedy the inadequacy of the laws of tenure to the necessary modifications of landed property.
'At common law, whatever was vested, in a legal sense, was alienable; and dispositions were effected, where the estate was immediate, by feoffment or fine, with livery of the possession; but, where it was expectant, by grant; as none but the tenant in possession could give seisin. Contingent remainders, however, or eventual interests, were inalienable to third persons; but they might be released, or extinguished in the fee.
These different properties of destructibility and inalienableness in contingent remainders, have occasioned distinctions between them and vested estates; and again, between them and the modifications of interests, called springing uses, and executory devises' (which he promises to notice afterwards). The variety and nicety of these may be best depicted, by referring to two treatises of about half a century old on these subjects, which, for exact arrangement and acuteness of reasoning, stand almost unrivalled in English jurisprudence. It is to be regretted, that the times were not then ripe for directing the talent that produced them, towards simplifying, instead of systematizing, the refinements of landed property,'
This is followed by a section treating of Uses.'
'The next creature of our laws of real property is Uses. These were of ecclesiastical introduction, for the purpose of eluding the restrictions against mortmain. They were in time adopted by the laity; partly to avoid the rigour and inconvenience of tenures, and partly as admitting those modifications of property, demanded by the increasing intercourse and wants of society, which were incompatible with the maxims of feudality. After repeated attempts by the legislature to assimilate the two systems, uses were ultimately converted into legal estates by the statute of 27 Henry VIII. c. 10. By means of uses, thus legalized,' various modifications of property were introduced, to which the system of tenures was a stranger. For instance, expectant interests by way of use did not require to be preceded by an estate in possession, nor to be a remnant of the original fee, like a remainder at common law; but they might be limited, upon any future event, happening within the period for which, by the law of entails, property was usually tied up, namely, a life or lives in being, and twenty-one years and nine months afterwards, and that, although the whole in the use was first disposed of, if only defeasibly. They also, in their original character, introduced
the soil, in the practice among the coheirs, in agricultural countries, if they cannot conveniently cultivate the property in common, for one of them to take it and pay a rent to the others; or, in richer and more commercial districts, to buy them out.
To this universal and most natural attachment to the soil, and its suitableness as property, under whatever system of succession, for preserving the memory and influence of a family, may be added its peculiar value among ourselves, as connected with primogeniture, in preserving the independence of the aristocratic branch of our constitution. With privileges rather for the public advantage than their own, less violent and more consistent than the multitude, if, in past ages, a tyrant was to be coerced or expelled, or in present times, a sovereign is to be advised, the arms and the counsel of our nobility have ever been found equally prompt. Without them, whatever may be the individual merits, the many are as a rope of sand.'
Our author may be justly proud in having his own sentiments on this important subject supported by those of the most philosophic statesman of modern times.
The law of primogeniture, (says Mr. Burke,) with a few inconsiderable exceptions, is the standing law of all our landed inheritance, and without question has a tendency (I think a most happy tendency) to preserve a character of consequence, weight, and prevalent interest over others, in the whole body of the landed interest.'-Appeal from the New to the Old Whigs.
From this statement of the case in favour of our old English system, the author turns to the other side of the picture, as presented by the Code Napoleon, which, as he observes, in establishing equal partibility among all the children, and all other kindred of equal degree, has not only prescribed a system of succession the opposite to ours, but has given that system a more unbending character, by prohibiting, to a large extent, voluntary gifts, either inter vivos or testamentary. Our space precludes us from following the author with any closeness through this part of his argument; which is, however, of sufficient force and originality to merit (as it is sure to attract) the attention of our continental neighbours, so recently engaged in the revision of that very article of their laws of which it is his design to call in question the wisdom and expediency.
'Land,' he observes, is, in its nature, incapable of the same easy and complete division as money and other moveables.' The truth of this maxim, in itself sufficiently obvious, is made practically familiar to us by the expensive and vexatious nature of our own proceedings under a commission of partition. These evils among ourselves are confined to a small number of cases, and a very limited description of persons. That, which forms our exception, constitutes their general rule of succession-with this
addition, that (unless our author has greatly erred in his estimate) all the inconvenience and expense of a partition among English coheirs occur, in a much greater proportion, in the case of every single succession, regulated by the provisions of the civil code of France. The author thus sunis up the comparison.
From an engraftment of good sense on good fortune, the English law appears to possess the germ of a perfect system of succession,' (he speaks now of property of every description,) with reference to our own constitution and habits. Its benefits, however, cannot be developed, till the present perplexed mode of administering assets, with their distinction of legal and equitable, their consequent marshalling, and the limited and circuitous liability of lands are removed. Justice, too, will not be done to the next of kin, until the executorship is treated as a mere office, and not as passing the residue, where undisposed of, to a stranger, in preference to the next of kin. Courts of equity have long revolted at this rule of law; and have, as usual, corrected it, whenever the individual case afforded evidence of intention to treat the executor as a trustee, by giving him a legacy, or, in the case of a bequest of the residue, which afterwards lapsed, by the legatee's death in the testator's lifetime. Here, however, as in many similar cases already noticed, the relief dispensed in particular instances is greatly diminished, if not counterbalanced, by the increase of judicial equity, and equitable distinctions,'
We shall not travel step by step through the remaining divisions of the proposed code, but remark only such suggestions as arrest our attention by their apparent novelty or importance.
Under the head of rights arising out of the relation of marriage, the author proposes to give to the surviving husband, in case of issue, the rents and profits only of one moiety of the wife's land during his life; in case of no issue, a life estate in the land itself; to the surviving wife, in the former event, a third part—in the latter, a moiety of the rents and profits of whatever land the husband may die possessed of; and he vindicates the distinction by observing, that the issue is the first object of a deceased parent's duty and affection, and that the ties of collateral relationship are comparatively feeble. The restriction of the right of dower to whatever lands the husband may die possessed of, he defendsby the right of alienation, which should be inherent in a husband over his own property-by the brevity and simplification in the forms of conveyancing, which are in use to elude the present law of dower-and by the precedent of freebench, which, according to the usual custom of copyholds, attaches, in such lands only as the tenant may die possessed of. His reason for giving, in some instances, a share of the profits of the land, and, in others, the land itself, is in conformity with his general system, that the land should be left in the hands of the persons most interested in the good management of it. To avoid the present circuitous and