« PreviousContinue »
of B. should be charged on the estate of A. would be void;. a trust by which A.'s estate should be vested in B. in trust for A. himself would also be void; but a trust vesting A.'s estate in B. in trust to manage it, and to lease it, and to pay the rents and produce to A., would be good. Neither is the proposed abolition to extend to trusts arising by implication of law.
Having thus divested land of its feudal incidents, and simplified its legal qualities, the author commences his first title with a definition of real property according to his own system. He considers it to be land, with all that (following the old definitions). is above it and all that is under it; together also with such servitudes of light, way, water, &c. as are essential for its enjoyment. Then follow the various modes, by which he would direct that title should be acquired.
The first of these is Descent, under which head he recommends a departure from our existing rules of succession, in order, in some instances, to meet the ends of natural justice, in others for the sake of consistency and simplification. Having rejected the feudal incident of escheat, he assigns the estate, on a general want of heirs, to the crown; and this, in conformity with the law of every nation, which considers the state to be entitled to all property, of which there is no other owner. He obviates one of our worst anomalies, by admitting the half blood to the succession; with a preference of the full blood, however, in the case of brothers and sisters and their issue; and with a preference also among the half blood itself, of the paternal, to the maternal line of inheritance. On failure of these near relations, the ascending line is admitted by him in preference to the collateral; and, under this last head, he introduces a novelty, borrowed from the Code Napoleon, by interposing a life interest to the father, on failure of lineal heirs, and a life interest to the mother on failure of brothers and sisters and their issue.
Whether the land come from the father or mother, he makes it descend, first in the paternal line; and failing this, in the ma. terual. In this proposal, his great object is simplification; and his calculation is that, although the maternal line will thus be 'occasionally postponed, as to land strictly descended from a maternal ancestor, yet the maternal descendants will, in the greater number of cases, be gainers.
He allows of no right of representation beyond the issue of brothers and sisters; he proposes that more remote collaterals should take per capita; so that a junior uncle, surviving, would inherit in preference to the issue of his deceased elder brother. This he justifies on the ground, that, in descent, the leading principle of precedence is proximity of blood, which is deviated from,
the benefit of strangers; as rights of way, water, and light, and the like) are technically termed incorporeal, in respect of their having no apparent existence but in their enjoyment: in reality, however, instead of constituting property of themselves, he views them as so many burdens or, as the civilians term them, servitudes on the land. The privileges thus enumerated are affirmed to be in their nature universal, wherever land is enjoyed in separate property; and to these he adds, for a substantial reason, rents for life, or for any more limited period.
The first part of the work, which is descriptive of the actual state of our laws of real property, is then divided (according to a method of arrangement which pursues in the main, though with some improvements, that of our prior commentators) into eight principal heads, or Titles. Of these the first treats (but more largely and more practically than before) of Tenures, Uses, and Trusts; and as these form, in the opinion of the author, the leading causes of the defects in the present system, we should hardly do justice to so important a subject, if we were to exhibit in any words but his own the view which he himself takes of it. Of Tenures, then, he thus writes :
'It was a maxim of tenure, that the tenancy should be always full, that is, there should be always a tenant or a succession of tenants to do the lord's service. Hence land could not be granted, to vest at a future day, or on a future event. It was frequently granted to one for life, with remainder to another in fee. In that case, the immediate tenant, being seised of the property, was entrusted with the protection of the possession. If he failed in this duty, it was a forfeiture of his estate. Ít was another rule, that land could only pass by delivery of the possession, or seisin, as it is technically called. This was accompanied by a feoffment, of which the livery of seisin was the essential part, the tenant for life accepting it on behalf both of himself and those in rem mainder ; while the deed only authenticated the transaction. This livery passed a fee, either by right or by wrong; since whoever had the seisin was competent to deliver it over. The same effect was attributed to a fine; a species of assurance, whereby the person seised in possession, acknowledged, in a feigned action at law, the right to be in another The result of these positions was, that an immediate interest in land could only be transferred on the spot or by a judicial acknowledgmentthat all in remainder took through the medium of the delivery of seisin to the first tenant,—that this tenant, being entrusted with the seisin, was competent, by the same mode of feoffment or fine, to transfer it, not merely for his own rightful interest, but absolutely to another. Such an act, indeed, was a forfeiture of his own estate ; and if the, grantee in remainder was in existence, and his interest was vested, and not depending on a future event, he might enter for the forfeiture. If, however, there was no such grantee, then, from the imaginary ouster or devestment of the seisin on which the limitations depended, and the VOL, XXXIÙ. NO. LXVIII.
somewhat of the strictness of this principle, in favour of natural feeling, it has still been shown,' (adds the author, in reference to the preceding part of his discussion) that, in our own country, the proportion of landed property is not such as to deprive a father of his power, io conjunction with bis testamentary right, to make ample provision for all his offspring.'
He exposes the fallacy of the objection, that primogeniture impedes alienation. The rule, as by him demonstrated, has no such necessary consequence. The full power
of alienation wbich, in our present laws, each generation in its turn possesses, aided, as it frequently is, by the necessity to discharge the portions of the younger branches, or other charges on the estate—by the extravagance or enterprize of the owner-or by the division of the estate among the female line, break down and scatter, from time to time, the largest masses of landed property, with a rapidity which would surprize any but those long conversant with the changes of ownership. The annual extent of alienations of real property may be brought to an unerring test, by referring to the ad valorem duty paid on sales on land, in England and Wales, for the year 1825, being about £440,000, which, at the average rate of 14 per cent., would give for the aggregate purchase-money upwards of £35,000,000; for the aggregate yearly value of the property sold, taking lands and buildings, freeholds and copyholds, estates in possession and in reversion, at one high rate of thirty years' purchase, about £1,200,000 per annum.'
In another branch of his argument we follow him with still greater pleasure, dictated, as it seems to us to be, under the influence of some of the best, as they are among the most general sentiments of our nature.
• An attachment to the soil, and a reluctance to part with the seat of one's ancestors, have in all ages, and under every system of succession, attended the possession of land; and this feeling, added to the peculiar stability of land as property, has rendered it the means of preserving the names and dignities of families. We trace the original sentiment in the affecting story of Naboth's vineyard. The more complicated motive develops itself in the brilliant exposition by Montesquieu of the original laws of succession among the Romans. These, while they allowed the property to pass indifferently to all the children of the father, both male and female, under his dominion, kept it always in his family, by not permitting the daughters, who, on marrying, passed into the families of their husbands, to transmit it to their children; since this would bave carried it into another house. Here we discover the principle of supporting the importance of families by means of their possessions; with this difference, that, in republican Rome, the dignity was attached to the entire family; while in modern times, it is centered, and along with it the estate, in the head of the family. Deprived of the means of perpetuating their names througb their landed property, as the families of modern French at present are, by their rigid system of equal partibility, still, even here, we discern an effort towards it, and an attachment to
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 mány 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,' be 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
and very limited description of persons. That, which forms our exception, constitutes their general rule of succession-with this
N N 4
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 sums 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 babits. 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. parents 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
interested in the good management of it. To avoid the present circuitous and