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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 présent 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.

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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,

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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 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

expensive

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expensive machinery of fines, and powers of appointments, and o establish an uniformity of principle, he allows to the wife the ree disposition of her land either by will, or, with consent of her ausband, by deed, which (for the avoiding of undue influence) is to be acknowledged before a judge. No settlement, or other disposition on the part of the husband, either by deed or will, is to operate in derogation of any of the rights of marriage before specified, unless an intention that they should thus derogate is expressed-a provision which is stated to be levelled at our present equitable doctrine of implied satisfaction, the numerous distinctions and nice refinements of which produce the certain evil of a large mass of active law, while the balancing of contradictory expressions, equivocal facts, and conflicting authorities renders it questionable, whether the intention be not oftener defeated than aided by the application of the rules now in force.

The chapter respecting Alienation by Deed or Will' is replete with most novel and important matter. The author's proposals for enabling a testator to devise prospectively whatever land he may be possessed of at the time of his decease, and that a devise of land shall not be revoked by any intermediate change in the nature of the property, or in the circumstances of the testator, would lead to the prevention of disputes, the number and intricacy of which no one, who is not a practising lawyer, can imagine.

Among such regulations as are common to deeds and wills, the author proposes, in the first place, to put all dispositions regarding land, whether present or future, certain or contingent, under the immediate protection of the law, so as to be rendered incapable of being destroyed by the acts of third persons; and, in the next place, (what had been previously provided for in part,) that all such dispositions, of whatever nature, shall be made directly to the person meant to be benefited, and not to any other in trust for him-except where some active purposes are intended-that all estates and interests in land shall be legal rights, and cognizable as such in the courts of law-and that, in alienations in perpetuity, it shall be unnecessary to name the heirs or assigns of the alienee. The author justly anticipates, that the latter proposition will startle his readers, (he means, of course, his professional ones). He shows, however, that the practice was utterly unknown till the establishment of feudal tenures. The grants under these were originally for life, and gradually extended to the heirs; this extension rendered it necessary to use the word 'heirs' when it was intended that the heirs should take.

No judge, perhaps, has ever sat upon the bench, who has not lamented the conflict between the legal import of the word

'heirs,'

massacre would be the result among the varied population of our sugar islands; that a total destruction of all property would be inevitable; and, in a word, that these valuable possessions of the British empire would be utterly lost and annihilated. Nor would his view of the matter be altered in favour of the ultra-abolitionists, by the additional observation that, in point of fact, other nations, in utter contempt and violation of solemn treaties, are systematically taking advantage of the effects of English legislation upon the English colonies-that, in short, foreigners are zealously engaged in increasing the slave population of their own colonies, with the obvious design of enabling these to raise in greater abundance the articles of produce for the consumption of the European world, which were once almost exclusively in the hands of our British planters.

To the assertion that the conduct of the party in question is dangerous,' we cannot for a moment hesitate to give our assent; whether their object be insidious' (by which we suppose is meant, treacherous, or mischievously artful) is best known to themselves. We cannot but think, however, that a candid and impartial foreigner, who should witness the multitude and magnitude of petitions presented to parliament for the emancipation of our colonial negroes, might very well be puzzled in his attempt to hit upon the real cause of these expressions of popular feeling-he might be in doubt whether they were the effect of a free constitution, producing in the minds of the people an intense love of liberty, and a burning detestation of the very name of slavery— or merely of human compassion for the supposed sufferings of eight hundred thousand fellow-creatures. In the first case he would conclude, that it was perfectly natural for such a people as the English to be anxious to wipe off the stain with which the existence of slavery, in one portion of the empire, taints the national honour and character; and learn without surprize that petitions were pouring in from every city, town and village of the British Isles, some praying for an immediate, others for a gradual, but all of them for a total abolition of negro slavery, even although it were distinctly assumed-(which we are very sorry to say it has not been)—in every such document, that such an event could only be brought about by a great national and INDIVIDUAL sacrifice. And, unquestionably, by such noble and generous conduct, adopted under such sane and rational views of the whole case, the people of England would extort his applause, nay, they might well excite his envy.

If, on the other hand, this foreigner should be inclined to ascribe the extraordinary eagerness in question solely to the dictates of humanity, and a feeling of compassion for the un

happy

represented by him as embodying and giving certainty and effect to the principles of our present laws of settlements, both as to lands and profits; and as remedial of the defects on this subject complained of in the first part of the essay. He adverts, however, to an useful effect indirectly produced by our present laws of settlement, of enabling a father, in consequence of the necessity for his concurrence in barring the entail by recovery, to procure a resettlement of the estate, and thus preserve it in the family. This power, he suggests, need not be relinquished; and for preserving it he proposes that, during the father's life, the eldest or only son's expectant estate shall not be alienable nor extendible, unless with the father's concurrence. This, in the event of the son's dying without issue in his father's lifetime, would give the property, on the son's death, to the brothers and sisters in the character of heirs.

These provisions would certainly be a great simplification of the present mode of settlement of real property. Years of study are required to comprehend it; and, when understood, none but the most skilful artists can be trusted with it. Even yet its principles are far from being distinctly settled; and their extent and application are still less ascertained. Hence great expense and litigation frequently follow, and legal instruments are immeasurably prolix; numerous contingencies must be provided for, and language sinks under the necessity of describing and providing for them. It is always extremely difficult, and often quite impossible to explain to the parties themselves the effect and operation of the settlements they execute, or the effect of their wills. Does one testator in fifty, when he devises his property in strict settlement, clearly know to whom, or in what manner, he has disposed of it?

The necessity (or at least the policy) has been long acknowledged in practice, of investing owners of limited interests in real property with certain powers, (as of selling, exchanging, and leasing,) which are now actually incident only to the absolute ownership. These incidents, now almost invariably given by express provision, Mr. Humphreys proposes to annex by law, to the partial estates in question-the two first to be made exerciseable at the instance of all tenants for life in possession, with remainder to their issue; the latter by the parties themselves being in actual possession. To this annexation of the power of leasing we can discover no sound objection; but the mode of rendering those of sale and exchange available appears to us to demand the author's further consideration.

All Charges on land are either in respect of some annual payments, or for securing a principal sum of money. Charges of

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