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character of charges, will extinguish the present technical distinction between legal and equitable assets. By rendering the real estale liable, in the second degree, and in aid of the personal, to the payment of debts of every description, we shall avoid the complicated and costly process marshalling assets in equity. The co-operation of the two measures, with the assistance of some secondary ones, about to be proposed, will clear the way to a simple and just system for the distribution of assets.'
We have already noticed our author's important distinction between active, or operative, Trusts, and those which are merely passive or nominal. The latter, as we have seen, he means to abolish--the former to regulate, first by authorizing the delegation of trusts, so as to invest the delegate with the whole actual disposition and management of the lands, and with the receipt of the rents and profits during a prescribed period; and secondly, by directing, that the actual purpose of disposition, management or receipt, so far as regards the corpus of the property, shall be expressed in the instrument by which the trust is created; leaving the application only of the rents and profits at liberty to be declared by any separate instrument. The professed object of this provision is to prevent a relapse into nominal trusts, and to imprint on the face of assurances, their real character; an object which he further aims at in the articles on Registration.
The next article directs that, * in all dealings of the trustee respecting the trust property, its produce and the application of it, his receipts and other acts, shall be as valid as of a beneficial owner.' Its object is to correct a vicious doctrine in equity which constantly contravenes the intention of the parties, by depriving a trustee, in most instances, of the power to exercise a most important part of his trust, namely, to receive and give a discharge for the produce of the fund. The ill consequences of this rule are forcibly depicted.
After adverting to the very defective state of the actual laws on the subject of registration, and the mischievous doctrine of equitable, or constructive, notice, the author shows, that the expediency of either enrolling, or registering the substance of all assurances for the protection of alienees and incumbrancers against latent dispositions, has been long recognized.—He then discusses the much agitated question whether enrolment at length, or registration of the substance be preferable. Against the former are objected, the disclosure of private transactions, and the expense attending it. In favour of the latter, it is urged, that while it avoids these objections, at the same time in stating the instrument, the parties, the land affected, and the general character of the interest disposed of, every circumstance necessary for
-on the Laws of Real Property. 575 he information of the public is disclosed. Mr. Humphreys deides in favour of the latter.-The various enactments by which hese objects are proposed to be effected are not susceptible of bridgment. One description of registry however deserves notice rom its novelty and importance; namely, that of pedigrees, to prove the descent from an intestate. The present law for the egistration of judgments is allowed to remain in full force for en years only; but with liberty to renew it during or at the end of that period. Contracts for the purchase of land are permitted to be registered, and to acquire thereby precedence over all subsequent assurances. Nine different specimens are prescribed of memorials framed agreeably to the author's principles. These again are succeeded by a prohibitory article, against any effect of notice, either to give validity to an unregistered act, or to disturb the order and priority of registration. The author never lets pass an occasion of either assailing or guarding against this doctrine of courts of equity.
An appendix is subjoined to the work in which, the more strikingly to illustrate his system, the author has exhibited contrasted tables of descent, and forms of various deeds of sale, mortgage, and settlenient, according to the present laws and to the proposed system; the latter being accompanied by a short exposition of the principles on which they are framed. We were scarcely prepared, even by all that preceded it, for so singular an exhibition of the economizing power of his provisions as is presented by these contrasted forms.
We trust that we have now presented to our readers an accurate view of this singular work; which is evidently the production of a gentleman not only thoroughly conversant with the English law of property, and the modes of its transmission, but who has also bestowed great thought and reflection on the principles of universal law; particularly with reference to the motives which influenced the compilers of that extraordinary code designated by the name of the late French Emperor. To its provisions, throughout the work, he makes frequent recurrence---so frequent, as to have tempted us now and then to remind him, that he pro
fessed to legislate, not as a cosmopolitan philosopher, but as an :: Englishman, and for Englishmen ;-Σπαρτην ελαχες κεινην κοσμεί
We are disposed, however, on more deliberation, to give credit # to the readiness and ardency with which he draws from foreign
sources, and especially from the brilliant theories of Montesquieu, illustrations of his own doctrines, indicative at once of the power and the disposition to generalize on this most important of legislative subjects. Many indeed may feel a disposition to shrink from his suggestions, as carrying too much the semblance of, what
is usually termed, a radical reform-and, no doubt, those sug. gestions go to subvert some established principles, as well as a multitude of (what are too often mistaken for principles) established forms and ordinances. But, although forms and principles are frequently confounded by ignorance, and still more frequently by prejudice or interest, nothing is of such vital importance in all legislative discussion, as that care, amounting even to jealousy, should be taken to extricate the subject from so grievous an error as that which would elevate the petty concerus of clerks and notaries to a level with the great landmarks of law, the constituted bulwarks of civil liberty and religion. The true question is, whether, consistently with the preservation of these landmarks, and with the security of their deferees, the proposed system is practicable;—and we see nothing in the outline presented to us, to convict it of impracticability-we see nothing even to induce us to question, whether the facts bear out the author's repeated assertions—that, to at least a considerable ertent, the laws of property may be reformed without innovating: and that, where innovation or abolition is thought to be necessary, the proposal is sanctioned in most instances by prior legislative changes, of the same or a greater extent, and in the rest, by jus. tice, or obvious expediency.
1. It must be admitted, that the statute of 12 Car. 2. introduced a much more extensive abrogation of the then existing law as to tenures, than any thing which Mr. Humphreys proposes ; and that also at a far greater gratuitous sacrifice on the part of the feudal lord, than any to which his patriotism is by the
present measures subjected.
2. The statute of 27 Hen. 8. was intended to abolish uses, by investing them with the character of legal estates; and this would have been the actual consequence, but for the narrow construction put upon it by judicial interpretation.
3. This false principle of interpretation gave room to the revival of uses in equity, under the name of trusts ; which would not now have existed, had the intention of the legislature been properly seconded. In those anomalous characters of passive or nominal, trusts are peculiar to the jurisprudence of this country. Indeed it is not less surprizing than true, nor less true than mortifying to national pride, to discover, that many of the boldest measures proposed by Mr. Humphreys for our adoption, as improvements in the English laws of property, have already been carried into operation, and are now the established law of so many states infinitely below us in the scale of political greatness and moral excellence.
We are not fond of the term Code;' and fancy that there is something iinperial and arbitrary in its sound, which is apt to grate on the ears of a disciple of Bracton or of Littleton. We conceive, that a more serious objection may attend it, as calculated to create a prejudice against the very substance of reform, recommended under so un-English an appellation. But let us not be frightened by words, nor diverted by our dislike of a name, from attending to the true subject of inquiry-namely, the practicability and expediency of a general revision of system. There is little ground for serious apprehension that England will be led astray by the ardour of innovation, or a restless appetite for distinction. The national tendencies are all on the other side. These lead men to inquire and deliberate, to examine and balance, and ultimately to decide on no matter of alleged improvement, however speciously recommended or loudly called for, without the most scrupulous sifting of facts, the most laborious investigation of principles ;-to remember that (in the words of Burke) difficulty is a severe instructor, set over us by the supreme
ordinance of a parental guardian and legislator, who knows us better than we know ourselves, as he loves us better too'-that
• Pater ipse colendi
Haud facilem esse viam voluitthat, (to use still more of the language addressed by our great orator already cited, to the codifiers of the French National Assembly,)
Our antagonist is our helper. This amicable conflict obliges us to an intimate acquaintance with our object, and compels us to consider it in all its relations. It will not suffer us to be superficial. It is the want of nerves of understanding for such a task, the degenerate fondness for short cuts, and little fallacious facilities, that has, in so many parts of the world, created governments with arbitrary powers.
To make every thing the reverse of what we have seen, is quite as easy as to destroy. At once to preserve and reform is quite another thing. When the useful parts of an old establishment are kept, and what is superadded is fitted to what is retained, a vigorous mind, steady persevering attention, various powers of comparison and combination, and the resources of an understanding fruitful in expedients, are to be exercised. They are to be exercised in a continued conflict with the combined force of opposite views; with the obstinacy which rejects all improvement, and the levity that is fatigued and disgusted with every thing of which it is in possession.'
We are not we once again repeat-in the least afraid, that these sound and enlightened precepts will be forgotten by those of our own time and country, with whom the great and enviable task of reforming our system of laws principally rests; and in whose hands we believe that the work we have been analyzing
VOL. XXXIV. NO, LXVIII.
will prove a most valuable magazine of thought and suggestion. It is not the only book of merit and reputation to which the growing spirit of legislative improvement has recently given birth; and we confidently regard it as itself the precursor of many yet to
But it is the first which, by selecting a particular and most important department of law, with wbich the author is himself practically conversant-and by noticing no defect or abuse, of which it does not prescribe a specific remedy-both challenges and deserves the peculiar attention of those whose duty it is to assist the progress of original thought, and free inquiry. We did not indeed anticipate, that the invitation of the Chancery Commissioners would have been so immediately accepted; and still less, that the first to take up the gauntlet would be an eminent practitioner in that very department of the profession the abuses of which he undertakes to ineet and to vanquish.
Via prima salutis, Quod minimè reris, Graiâ pandetur ab urbe,' Mr. Humphreys, however, is not, we are happy to think, the only lawyer of our times anxious to wipe off the reproach to his profession of an interested and sordid opposition to all plans of improvement which, assuming for their basis the vast spread of litigation occasioned by the uncertainties and imperfections of the existing system, threaten to abridge its emoluments, by narrowing the field of its practice. We have all due respect for a body of men so important in themselves, and so essential to the wellbeing of the community, as the lawyers; though we cannot but hint the possibility of their importance and value, in their collective capacity, being overrated--regard being had to the fact, that the principles of ihe constitution have at least as often been put in jeopardy, as they have been protected from violation, by the members of that very learned, but not always very scrupulous, profession. But what consequence would follow from admitting them to the full benefit of their highest pretensions? Do not the professors of medicine constitute a class of society as important and valuable? Yet we should hardly bear to be told, that the gout or the plague must be encouraged in order to afford the doctor a livelihood. Neither the discovery of Jenner, nor the previous introduction of inoculation, was discountenanced upon any such pretext; indeed to the honour of the medical character, it is but justice to acknowledge, that the members of that profession have always actively and disinterestedly promoted every research, and every discovery, tending to mitigate the physical sufferings of humanity. If somewhat too much of a contrary disposition has hitherto been manifested by lawyers, there have never at least been wanting worthy and commendable instances of exception