Page images
PDF
EPUB

modifications of real property in this country are so clearly and accurately delineated.

In the Second Part of his work, Mr. Humphreys treats Op The REMEDY FOR THE DEFECTIVE STATE OF THE LAWS OF REAL PROPERTY.

• There are two modes (he says) of effecting this-one, by applying partial remedies wherever the institutions are inconsistent or deficient; the other, by framing an entire new code of laws of real property.'

Mr. Humphreys introduces his own view of this momentous question by some apt citations from Lord Bacon's treatise De Augmentis Scientiarum, Lib. viii.

“There are two modes,' says Lord Bacon in his fifty-fourth aphorism, • of enacting new statutes; one confirms and strengthens the former statutes upon the same subject, with some additions and variations; the other abrogates and expunges all former enactments, and substitutes an entirely new and uniform law. The latter appears to us preferable. The former renders the provisions complicated and perplexed; it provides a remedy for the case which presses, but vitiates the general body of the law: the latter requires greater deliberation in framing the enactment; but excellently provides for the future uniformity of the laws. And again in his fifty-ninth aphorism:

If heaps on heaps of law have swelled into so many volumes, or labour under such confusion that it is become necessary to reduce them into a healthy and active body, let this be a paramount concern; let it be considered an heroic work; and the authors of such a work should be solemnly and deservedly numbered among the legislators, among the founders of society.'

So in the seventy-eighth:

Nothing contributes to the certainty of law so much as confining writings of authority within certain bounds, and keeping off an enormous multitude of legal authors and doctors. By these the doctrine of the law is frittered away; legal process becomes perpetual; advocates, from their inability to read and master the works themselves, have recourse to abridgments and glosses, tolerably executed perhaps. A few writers of acknowledged weight, or rather some portions of their writings, are adopted as authority.'

This, be it remembered, was written at a time when the English lawyer's library did not amount to a twentieth part of its present portentous dimensions; and Mr. Humphreys has done well to fortify his own decided preference of an entire new code of laws for the regulation of landed property, over any plan for the adhibition of partial remedies, by the sanction of a name so high and venerable. His next appeal is, to the examples set before us by several among the continental nations; Here the Code Napoleon necessarily occupies a pre-eminent station; This is followed by the payment of a high, and (we believe) a just, tribute of applause

to

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 solenın 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 slaveryor 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 happy state of the West Indian negroes—he might perhaps be apt to pause when, on looking around him here at home, he saw so many objects of wretchedness and want, such a mass of ignorance, and crime, and cruelty exhibited before his eyes, and detailed with disgusting minuteness in all the daily newspapers, for the relief or reformation of which no particular anxiety appeared to be felt by the 'party'alluded to, or by any other equally active and organized association.

A third view, however, may be supposed, which, if explained to our stranger, might better reconcile to his judgment, than either of the other two, this general impulse and impatience for breaking the fetters of the negro. He might be told, and perhaps truly, that great pains had indeed been taken, on the one hand, by the kind of people described in the South Carolina resolution, and, on the other, by quite a different class of persons, to excite and keep alive these kindly feelings in the people of England in favour of the slave population ; but that the main object of the former' party' was, to raise themselves into a spurious kind of reputation and importance, and the sole object of the other, a mere mercantile speculation, grounded on the idea that the ruin of our western colonies would promote their own personal interests in the east.—This foreigner might be told that, to effect these objects, the most unfair and unjustifiable means had been resorted to; such as that of calling public meetings in the metropolis and most of the great towns, at which inflammatory speeches are made, loaded with tales of oppression and cruelty, many of them absolutely false, others most grossly exaggerated ;-He might be told that pamphlets of the same stamp had been got up and distributed gratis over the whole country, illustrated with pictures of negroes in the act of being whipped, or fettered in chains, for the clearer understanding of those whose learning extends not beyond hieroglyphics or picture-language; and that petitions, ready manufactured in London, had been in thousands sent down to the provinces, to be subscribed by all quakers, methodists, and other dissenters of every denomination-including all that numerous sect who have a fancy for using the cross as their signature, and other really well-meaning and humane persons, who, on too many occasions, are the easy dupes of the artful and designing

Whether charges of the nature we have mentioned be true or false, we shall not take upon ourselves to affirm; it is certain that such have been made, and equally so that they have met with nothing like a satisfactory disproof, or even a solemn contradiction. Of one thing, however, we are very sure, namely, that very

false

003

false impressions have been made on the public mind as to the real condition of the negro slave in the British colonies; and that, if humanity be their object, the intemperate and misguided proceedings of our ultra-abolitionists are much better calculated to injure than to meliorate the fortunes of the African race. Leaving entirely out of the question, for the present, the incalculable evils, moral and political, which would result from any general convulsion in our slave-population-and which disappointed hope is but too likely to stir up—the very expectation, by other nations, (and by the French in particular,) of such a catastrophe, has already given an increased appetite to speculation in the SLAVE-TRADE. In short, it has been and is their hope and expectation to see their own well-stocked colonies rise to prosperity on the ruins of ours. Our ultra-abolitionists, indeed, argue that the only security for the abolition of the slave-trade is to be looked for in the extinction of slavery itself—and their position would, no question, be undeniable, on the supposition that the extinction of slavery was to be universal and total. But we are sorry to be obliged to say, that the absolute abolition of the slave-trade by England alone, and even the steps hitherto taken by England with the view of ultimately abolishing the condition of slavery, have, in fact, had, as yet, more evil effects than good on the fate of the African race at large. This country has, in truth, offered a premium to other nations to engage more actively in the trade, while we are firmly persuaded that, if once the slave-traffic could be put an end to, the mitigation and ultimate extinction of slavery would follow in all the colonial possessions of every nation, by an operation at once gradual, safe, and certain; nay, that there is no other means from which any such results can be rationally expected.

But how, it may be asked, is this to be effected? Those powers with whom we have made solemn treaties for the extinction of this trade, if they do not directly encourage their subjects to violate those engagements, take no active steps whatever to prevent them from doing so; others refuse absolutely to join in any such treaties; in short, to say the least of it, all of them are lukewarm in the matter. They all, in fact, pretend to regard our interference as a political measure, founded upon self-interest; although it would be difficult indeed to produce even a shadow of argument for the support of such a charge. Our abolition of the slavetrade was a measure carried through parliament with the greatest good faith; it was a measure dictated by the purest principles of humanity; though, it must be confessed, the result has not corresponded with those sanguine views which were taken at the time. It would not be difficult to prove, that the transfer of the trade mere number, (a total of upwards of 600 volumes,) and the expense and time necessary to collect and digest them, they are a sealed book to the public, and even to the bulk of the practitioners. Already have the latter found it necessary to confine their attention to the modern reporters, and occasionally to rely even on the second-hand authority of digests; while the more ancient collections still retain their authority, when explored by those whose narrow but keen views confound laws with justice to entrap or perplex the unwary claimant.'—p. 171-176.

from

After this vindication of his preference of a new code, the validity or sufficiency of which it is for others than ourselves to determine, Mr. Humphreys proceeds to exemplify its formation, which he proposes to effect by a succession of legislative enactments, thus assuming the decemviral Esto rather than the imperial Videtur.

By a preliminary enactment he at once sweeps away the rubbish of tenures, and their various perplexing incidents, excepting only copyhold tenure, rents service, reliefs in respect of them and heriots. The existence of these also, however, is to be of short duration, his Majesty being authorized to issue commissions for the extinction of them, and also of fee farm and other perpetual rents, forests, chases, and free warrens, and for making compensation to the owners.

This, perhaps, is the boldest of all the author's projected inno. vations, and one, the execution of which cannot but be attended with difficulties, even in his own conception of it. He defends it however by the various partial acts which the legislature has already passed for effecting one or other of these several objects; and would not (we may ask) the proposed measures, if the difficulties, real or supposed, were once effectually surmounted, prove in a very high degree beneficial both to the public and to individuals? Must not both desire that the discordant tenures of ancient demesne, copyhold, borough English, and gavelkind, with their separate privileges, separate customs, separate modes of descent, and, in some cases, separate courts, should be abolished throughout the land? Would not the abolition of them add to the comforts which attend the enjoyment of real property, simplify its settlements, facilitate its commerce, and, above all things, tend to set it free from the heavy, uncertain and unprofitable tax of litigation, which now hangs over and oppresses it in every stage of its transmission?

The next step is to the abolition of all uses, trusts and charges, legal or equitable, upon land, for the benefit of third persons : retaining, however, those trusts for the owner of the land, which require that the trustee should be actively employed in the execution of them. Thus a trust, whereby an annuity for the benefit NN 2

of

« PreviousContinue »