« PreviousContinue »
est form and management, continue so galling and inconvenient, that there are few copyholders who would not gladly commute them for an equivalent far beyond their real value. Since the enactment of 12 Charles II. c, 2, which put an end to feudal holdings and their appendages, it might have been expected that copyholders would long ago have been suffered to participate in the blessings which it brought, as they stand in precisely the same relation to the lord of the manor that the lord of the manor, before the passing of that act, did to the king ; and when the lord's own feudal bondage was remitted, one does not see upon what principle of justice and reason he should refuse, upon tender of a fair equivalent, to remit that which his own vassals owed to him. Such a measure would be as advantageous to the country at large, as to the private parties more immediately interested. It would admit copyholders to the elective franchise ; their exclusion from which is the greatest grievance of which they now complain—it would preclude all future disputes about timber, mines, game, and heriots, which do more to destroy peace and good neighbourhood than all other causes of difference put together; and would promote the accumulation and investment of capital, by giving every man the absolute and unlimited enjoyment of property which he already felt to be substantially his own. The 55 Geo. III. c. 192, which enabled a copyholder to dispose of copyhold property, though not surrendered to the use of his will, stopped much of that litigation which copyholds had previously occasioned, and it is to be hoped that many years will not elapse before their complete enfranchisement will close the door upon all the rest."-pp. 377 382, 383.
The value of the remaining propositions will perhaps be best estimated, by examining them with reference to the following considerations. The intricacy of our modern system of real property does not proceed from any obscurity in the ancient doctrines of the law, for they are generally plain and intelligible enough; but from their unsuitableness to the exigencies of an advanced state of society. The invention of conveyancers has been constantly exercised for several centuries, in devising means to evade these unaccommodating restraints, as fast as their injurious effect upon the transmission or enjoyment of property became apparent. Their labours have certainly not been in vain. With the connivance of the courts of law, and the assistance of 'those of equity, they have effected a real, though an unrecognised change in the law in many most important particulars.
Thus, the old law was, that no freehold interest in land could be conveyed by the owner to any person, (except a tenant in actual possession of the land,) without actual delivery of possession, technically called livery of seisin. This law, which was intended as a security against fraud, by giving notoriety to all transfers of property in land, remains unrepealed at this day;
but a statute,* passed with quite another view, gave the conveyancers a loophole whereby to evade it; and it is now scarcely ever complied with in practice. Again, the law says that a widow shall have for her life the third part of all the lands in which her husband had, at any time during the coverture, an estate of inheritance; but the conveyancers and the Court of Chancery have invented a process by which, while the husband acquires the most absolute dominion over an estate, the wife may be effectually barred of her dower. Once more, the law says, a married woman shall neither dispose of the profits, nor (except by a public and solemn proceeding in a court of justice) of the capital of her landed estate, but that the former shall belong to her husband, and the latter, after her death, or in cases where the surviving husband becomes tenant by the courtesy, after his death, to her heirs. But the conveyancers can, by a settlement before her marriage, reserve to her a power which even the courts of law will recognise, to dispose of the capital of her estate by a common deed, or even less formal instrument; and, by the help of their still more indulgent ally, the Court of Chancery, they can even give her the annual profits, independent of her husband's control.
We by no means intend to say, that the allowance of such dispositions as are effected by these devices, and others from the same manufactory, may not, under the circumstances of these times, be more beneficial than a rigid adherence to ancient rules: But we do say, that if the Legislature recognises the propriety of such a change, it ought, by one operation, to spare the legal machinists the necessity of performing their daily work by means of combinations of pullies and levers always expensive, for ever liable to get out of order, and so difficult to be managed, that even in the hands of the most accomplished artists, they often produce effects cruelly different from what were intended. The principle upon which the Legislature ought to act in such cases is, that whenever a rule of law is found to be evaded in practice, the rule should be attentively considered both with reference to its original design, and its applicability to the circumstances of present times, and should, according to the result of such investigation, be either so remodelled as to prevent evasion in future, or directly repealed. It is quite obvious, that whenever an evasion of the law is become habitual, and its effect unimpeachable, still more if the practice of it is recognised by the Legislature, it amounts substantially to a repeal of the law, no effect of which remains ex
* The statute 27 H. VIII. c. 10, for transferring uses into possession.
cept the inconvenient necessity of doing an allowed act by a circuitous, instead of a direct mode. If this only increased the length of conveyances, the evil would not be a slight one; but it does not stop there. All these evasions are, and must be, practised under the colour, and by the use of forms originally applicable to quite different purposes; and hence arises the necessity of framing every deed with reference to two objects instead of one ;-first, to make the formal machinery of evasion so complete, as to take the subject matter out of the rule of law, and then to express the real intention of the instrument. The consequence of this is, that the design of the parties has a double chance of failure; for it may not only be itself insufficiently expressed, but, even though it should be ever so clear, and ever so conformable to the spirit of the modern rules of law, yet it may be impossible to carry it into effect, because the part of the deed that was intended to evade an obsolete regulation, happens to be inartificially framed. These evils might be obviated by a law to remove all such restraints upon the disposition of property as are found to be beneficially evaded in modern practice. The whole system of conveyances operating under the statute of uses, and all the array of trustees in whom no trust is really reposed, but who are mere men of straw, dressed out to fill up the gaps through which the common lawyers would otherwise force their way into the fortress of a settlement, would thus be done away; an immense step towards the simplification of the law. But as the present forms of conveyancing would be inapplicable to such a state of things, and it is to be feared that the abundant caution of the practitioners might lead to some degree of verboseness in those which must be invented, it would be a still farther improvement if the Legislature were to set forth forms of all such assurances as are in most common request, and thereby exhibit a pattern which might be imitated in the construction of such as are of more unusual occurrence. Such a collection of authoritative precedents would be of inestimable value for the attainment of brevity, because it would leave no room for that doubt as to the effect of a particular word or phrase, which the most judicious conveyancer may often feel, and which, knowing well that a mistake once made cannot afterwards be rectified, he, of course, obviates, not by leaving out the word or phrase which he himself thinks best calculated to convey his meaning, but by adding another which may happen to be more intelligible to minds differently constituted.
Many other amendments might, doubtless, be made in our law of real property ;-thus, for the sake of facilitating the knowledge of the law by rendering it uniform, all local customs varying from the general law of Descent, which is in the main sensible, and what is, at least, equally important, very intelligible, ought to be abolished, and that law itself should, in some few particulars, be revised; for the security of titles and convenience of purchasers, a general Registration of deeds and wills ought to be established and strictly enforced; and for the sake of justice to creditors, land ought to be charged, by the operation of law, with the Simple Contract-debts of a deceased owner, who could have so charged it by his own act. But our limits preclude us from farther expatiating on so wide a field.
For the same reason we shall glance but slightly on the topics discussed in our author's last chapter; and we the less regret the necessity of so doing, because on many of them there exists scarcely any difference of opinion,-as, for instance, on the propriety of having the proceedings in courts of justice carried on in public, the buildings wherein they are held, convenient both for those who are concerned in, and those who are mere spectators of their transactions, and the system of judicature simple and uniform,—while others are of such a nature as to involve questions which, though of considerable interest, scarcely admit of any general solution, but must be decided as well as circumstances will admit upon each particular emergency-such are the qualifications of Judges, and the mode of selecting them. The subject, however, of the following observations, demands a distinct notice :
“ There is one other point which so greatly affects the system of judicature, that it ought not to pass wholly unnoticed. It is, whether all the tribunals which it recognises should be permanent, or whether some, and which of them, and to what degree, ought not to be rendered ambulatory. There are decided advantages and disadvantages to be met with either way. There is no state in Europe where the judges of the supreme courts of law make annual circuits round the whole country, except in the British empire; nor is there any other method by which the whole body of the subjects are enabled to avail themselves of so much ability on the Bench and at the Bar, with so much convenience, and at so little comparative expense. On the other hand, if courts were to continue ambulatory too long, the life led would become so disagreeable, that men of the highest reputation would cease to preside in them, or to practise before them ; and even though they did, their attention would become so dissipated by change of place, that the faculties of the mind could not be brought to bear upon any subject with their usual energy. Besides all this, if there is a press of business, and the time of the court at any one place is limited, the Bench and the Bar are apt to become impatient, and to despatch business with much greater rapidity than the difficulty of causes will warrant, and by contrivances to which they onght nerer to be permitted to resort. This is said rery often now to happen; and it is a sort of mal-administration of Justice which cannot be guarded against with too much vigilance. From this last defect, permanent provincial courts are more likely to be free. But besides the disadvantage of forming an additional step in the ascending scale of appellate jurisdictions, there is a strong disposition everywhere prevailing, to be dissatisfied with what is nominally of a secondary order, and the indolence or contraction of mind which a provincial residence frequently induces, is apt to make the value of the judgments of these courts secondary, in reality as well as in appearance. It may, therefore, be desirable to postpone the establishment of these courts as long as it can, and to provide a sufficient supply of judges belonging to the supreme courts, deliberately to dispose of all the causes which are set down before them, within a period not exceeding the six weeks during which the longest circuit is supposed to last." -pp. 435, 436.
In fact, the result of the press of business upon the eircuits at present is, that many of the causes brought to the assizes for trial are not tried at all. The time allowed is barely sufficient to get through the business, even if all the causes run off lightly; but if it happens, as is generally the case, that some of them hang rather longer on the hands of the court than was expected, the parties in those which are late on the list must make
their minds, either to refer their causes to arbitration, or to let them stand over to the next assizes. The first of these courses is, indeed, very often adopted, for reasons quite unconnected with the pressure of business of which we are now speaking. Many causes- - those, for instance, which involve the examination of intricate accounts-are in their nature so unfit to be decided by a jury, that the influence of a judge's recommendation is most beneficially exercised in inducing the parties to consent to a reference, which obstinacy, ignorance, or irritation, on one or both sides, could alone have prevented them from agreeing to of their own accord. Where, however, the cause is of kind proper for trial by jury, a reference is by no means a satisfactory mode of terminating it. The parties lose the assistance of their leading counsel, who do not attend upon references, and are obliged to take the much less weighty opinion of the arbitrator, probably one of the juniors of the Bar, upon any point of law, instead of that of the judge, with the additional disadvantage, in general, of not being able to set right any mistake of his by an application for a new trial to the court out of which the record issued. Deferring the cause to the next assizes is in the highest degree inconvenient to the suitor ;-all the expense of bringing witnesses, perhaps from a considerable distance, to the county town, must be incurred over again, and the trouble and inconvenience of preparing for trial again encountered.