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appear sufficiently on the face of this pamphlet. His lordship's profound knowledge, both of the law and practice of courts of equity, is unquestionable; his opinions therefore upon the subjects embraced by the Report, or in any manner connected with it, are entitled to the highest degree of respect and attention— They will have their due degree of weight with the public at large, no less than with the legislature, when it comes to the task of embodying and carrying into effect such of the suggestions made by the commissioners as may be thought expedient, together with such other provisions as may be found consequential upon them. More than this not even the noble lord himself can wish for, or anticipate, as the result of his public-spirited interference. Even the vague fear of innovation might, we conceive, have been quieted by the name of the illustrious individual who presided in the commission, and whose name appears foremost, as sanctioning and recommending the propositions of the Report; and his lordship needs not to be informed, in the words of the first and greatest of our English chancellors, that even innovation itself is a thing not more turbulent' than a froward retention of customs.' Nevertheless, for ourselves we shall only say that, sincerely wishing well to the results of this important inquiry, we rejoiced at the appearance of his lordship's pamphlet. In questions which arise upon subjects of profound and intricate investigation, truth is seldom elicited without a considerable degree of hostile controversy. Let the propounder of an opinion be ever so well informed upon the subject of it, he seldom perceives all the connected arguments, whether favourable or unfavourable to his own conclusions, until after a conflict with some able adversary. Such a struggle generally leads to deeper meditations and more active researches:-to the discovery of facts, which would not have been known; of arguments which would not have suggested themselves; and of fastnesses and weaknesses, which would not have been spontaneously explored.
At one most important result, however, the framers of the Report, and the noble author of the pamphlet, arrive in concurrence namely, that any great and extensively beneficial change in the practice and administration of the law is necessarily connected with a revision of its principles.
'No person,' say the Commissioners, can have had much experience in courts of equity, without feeling, that many suits owe their origin to, and many others are greatly protracted by, questions arising from the niceties and subtleties of the law and practice of conveyancing. Any alteration in this system must be made with the greatest caution: but as connected with the object of saving time and expense to suitors in the Court of Chancery, we venture to submit to your Majesty's consideration,
whether it might not be proper to commit to competent persons the task of examining this part of our law, with a view to determining if any improvement can safely be made in it, which might lessen the expense and parrow the field of litigation respecting the transfer of property?
The recommendation contained in this passage of the Report is indeed conveyed in terms which are framed with all the caution to be expected from persons in the exercise of so high and responsible an office, when speaking on a subject not strictly within the scope of the inquiry committed to them, however incidentally connected with its objects. But it is impossible for the most superficial reasoner not to perceive the extent of meaning couched beneath the guarded expressions which they have employed, and in which sense they seem to have been considered by Lord Redesdale himself where he signifies his full approbation of this part of their suggestions. What (it must be asked) is the law of Conveyancing, the niceties and subtleties of which give rise to so many questions, the origin themselves of suits so complicated and protracted, but the whole system of jurisprudence by which the transmission of property from person to person is governed; and how can any investigation of the subject be limited, so as not to embrace that entire system, and the very principles on which it is founded?
Scarcely had these intimations been given, when they were answered by a work of singular novelty, both in its exhibition of the system itself, so far as regards the subject of real property, and in suggestions for its amelioration. Embracing, as does the work alluded to, the entire subject which it professes to discuss, its copiousness and, at the same time, its severe compression, alike forbid the supposition of its being the mere production of the moment; and we are forced to conclude that, by a fortunate coincidence, the author was already prepared for the enterprize in which the sudden demand of the occasion induced him, perhaps, more immediately to embark.
Mr. Humphreys, a gentleman well known for his professional skill and experience, (qualities which cannot fail to add weight to his theories, and force to the confidence which we are disposed to place in his reasoning,) commences the work which we are about to consider, with a distinction, hitherto unremarked by us, between political and civil institutions, as regarded with a view to correction. The former, he observes, are in their nature comparatively simple, and they affect the great body of the people.
When a government possesses the elements, and a people the character of freedom, it is by the quick perception and the energies of the public that political defects are detected or abuses remedied; and, in
dicule cast upon the Roman pleaders of Cicero's day, in the oration pro Murenâ.
The next section treats of alienation by Will. After a brief account of its origin, and a caustic exhibition of its imperfections, both in formalities and operation, the latitude of construction imparted to it for passing an estate of inheritance, where words of limitation (as they are called) to the heir are wanting, forms the subject of the following lively and free picture.
'By the civil law, land was divided into a right to the profits (or usufruct), most commonly for life, and the absolute property (or nomen.*) If only the former was meant to be given, it was limited accordingly. But a simple gift of the land passed the whole interest in it; and such is still the case even by the English law as to personalty. On the introduction of tenures, however, lands were originally granted out to the tenant for his life only. Afterwards the grant was extended to his heirs. But to have this effect, it was necessary the grant should be so expressed. This reversed the more natural order of the civil law; and, instead of a mere gift of the land passing the entire property, terms of art (or words of limitation, as they are called) were required to be annexed to the grant, making it both to the donee and his heirs. From the technical inexperience, however, of testators, or those around them, these latter words were frequently omitted, and the clearest intention was consequently frustrated. To prevent this injustice, courts of law, feeling themselves freed, in testamentary questions, from the trammels of tenures, but not choosing to violate the old rule, that a gift of land, without more, passed an estate for life, seized, wherever they could, other expressions or circumstances, as indicative of an intention to pass a fee: such as the words, "real estate-testamentary estate-residue of estate -real property." So, introductory words to the will, expressive of testator's intention to pass all his property-thus: "As touching my worldly estate, I give and devise the same in the following manner: and these followed by a mere gift of land. Again, where land is given to one, he paying the testator's debts; or, (though this seems, from modern cases, to admit of some qualification) charged, in the devisee's hands, with debts or legacies, or an annuity-all, or any of these circumstances have been held to pass a fee; although the devises did not contain any express words of inheritance.
Where, however, instead of denying the general application of a rule, as that which requires words of inheritance to pass a fee, it is sought to elude it by means of special circumstances, these must necessarily generate numerous distinctions; and, while many cases would indicate, others would be considered as falling short of, an intention to pass a fee, without words of inheritance. Thus, where a gift of an estate is followed by a description of the occupiers, or of the tenements of which it consists; also, where the introductory clause is, "As to my worldly
* On this occasion the author quotes aptly that well known couplet of Pope;
estate, I give and dispose (without saying "of the same") as follows;"again, where the charge of debts or legacies is not upon the devisee personally, or upon the land in his hands: in these, and similar cases, the devisee has been held to take for life only.'
He then adds or alludes to various other cases, in which, for different reasons of strong intention, a fee has been held to pass, though words of inheritance were wanting. Constructive estates tail in wills also fall under his consideration. The entire class of these cases evinces, according to him, the systematic disposition of judges, in modern times, to evade technical rules in favour of a testator's intention.
'As they were not prepared, however,' says the author, to go the full length of holding, in cases of implied fees-simple, that the gift of the land was a gift of all the testator's property in it, they have effected their object by distinctions so numerous and so complicated, as to render their decisions of doubtful benefit. The refinements on testamentary estates tail by implication, which have converted a settled formula (namely that by which an estate tail is created by deed) into a series of individual cases, obscurely shading down from a fee-simple to a feetail, and often terminating in a mere estate for life, with remainder to the issue by purchase, amply demonstrate, that rules of law, where they work injustice, should be repealed, not evaded.'
The author next treats of Powers, and of appointments under powers, by means of which a greater interest may be conferred than the alienor himself possesses. After a brief, but lucid exposition of the law on these important subjects, he concludes with a description of the mode in which courts of Equity have thought themselves called on to interfere, in aid of informal or defective, and in avoidance of what are technically termed, illusory, appointments. These he has succeeded in rendering plain to the comprehension of the most unlearned reader; and his exposition is better calculated to expose the radical absurdity of a distinct equitable jurisdiction, than any other text which could be selected for a similar purpose.
We must leave it, however, and pass to the next head of discussion—that which treats of involuntary alienation, or the rights of creditors, a subject which the author has subdivided into the liabilities of the living debtor, and those which affect his property or assets, as they are called, when dead. The origin and character of the distinction between legal and equitable assets is curious, as affording another specimen, at least equal in extent and importance, of the early interposition of equity to correct the imperfections and inequalities of the strict legal system, and the consequent glaring anomaly of two conflicting principles, applied to the government and distribution of one and the same description of property. The statement is too long to be transcribed; nor
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