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laws of this character, it is of more importance that they should each be adapted to the feelings and habits of the people, than that the whole should be framed in some imagined barmony of parts.'
This he exemplifies by various instances, in some of which, nations, living under fixed laws, have secured their personal freedom by means apparently inadequate to that great end; and in others, have either overlooked, or derived no advantage from, institutions which should have had a direct tendency to it.
• But,' (he continues, in a series of canons of incontrovertible truth, and practical cogency,) — if system ever be requisite in laws, institutions respecting real property, under its various modifications, both as regards transactions among the living, and the return to the quick from the dead,* imperiously demand, (and the requisitions are perfectly practicable,) that their characters be direct and well defined; free from mere technical distinctions, whether of tenure, of nominal ownership, or of jurisdiction ;-that possessions be kept distinct, unaffected by interfering rights of third persons ,- that the rules of succession, whether primogeniture or equal partibility prevails, be simple and uniform ;that the power of alienation be unrestrained, and its mode bear immediately on the object ;-that the rights of creditors be ample and prompt; - that the periods of prescription, or bar by adverse possession, be clear and of limited extent;-above all that, instead of vainly seeking, by equitable interference, to adapt the crude and scanty institutions of early ages to the complicated relations of cultivated society, one uniform system of laws regulate the whole ;—and that no act be done, nor right conferred, by circuitous means, whether of legal fiction, or nominal interest, where the object may be effected directly, with its real name and character.'— Introduction, p. 3.
Of the defects thus alluded to, in institutions respecting real property, and of the supineness of the legislature, and the indifference of the public in correcting them, the laws of England afford, in the author's opinion, a signal example. The main causes to which he traces them are, Tenures, originating in the feudal system; and Uses, and Trusts, invented, the former for eluding the defects of tenure, and also for enabling ecclesiastical bodies to appropriate to themselves lands in mortmain; and the latter to supply the narrowness of a literal construction put by the courts of law upon an act passed by the legislature to legalize
After a rapid glance over these topics, he proceeds towards a practical view of the system; but premises it by a definition • Of Real Property and its essential Qualities.' This species of ownership is considered, in the laws of England, (he says,) as comprizing not only land, with the erections and other improvements upon it, all which are called corporeal; but also various rights derived out of land, and which (consisting of privileges for * Le mort saisit le vif, say the feudal jurists.
the benefit of strangers; as rights of way, water, and light, and the like) are technically termed incorporeal, in respect of their having no apparent existence but in their enjoyment: in reality, however, instead of constituting property of themselves, he views them as so many burdens or, as the civilians term them, servitudes on the land. The privileges thus enumerated are affirmed to be in their nature universal, wherever land is enjoyed in separate property; and to these he adds, for a substantial reason, rents for life, or for any more limited period.
The first part of the work, which is descriptive of the actual state of our laws of real property, is then divided (according to a method of arrangement which pursues in the main, though with some improvements, that of our prior commentators) into eight principal heads, or "Titles. Of these the first treats (but more largely and more practically than before) of Tenures, Uses, and Trusts; and as these form, in the opinion of the author, the leading causes of the defects in the present system, we should hardly do justice to so important a subject, if we were to exhibit in any words but his own the view which he himself takes of it. Of Tenures, then, he thus writes:
' It was a maxim of tenure, that the tenancy should be always full, that is, there should be always a tenant or a succession of tenants to do the lord's service. Hence land could not be granted, to vest at a future day, or on a future event. It was frequently granted to one for life, with remainder to another in fee. In that case, the immediate tenant, being seised of the property, was entrusted with the protection of the possession. If he failed in this duty, it was a forfeiture of his estate. It was another rule, that land could only pass by delivery of the possession, or seisin, as it is technically called. This was accompanied by a feoffment, of which the livery of seisin was the essential part, the tenant for life accepting it on behalf both of himself and those in rem mainder; while the deed only authenticated the transaction. This livery passed a fee, either by right or by wrong; since whoever had the seisin was competent to deliver it over. The same effect was attributed to a fine; a species of assurance, whereby the person seised in possession, acknowledged, in feigned action at law, the right to be in another The result of these positions was, that an immediate interest in land could only be transferred on the spot or by a judicial acknowledgmentthat all in remainder took through the medium of the delivery of seisin to the first tenant,—that this tenant, being entrusted with the seisin, was competent, by the same mode of feoffment or fine, to transfer it, not merely for his own rightful interest, but absolutely to another. Such an act, indeed, was a forfeiture of his own estate ; and if the, grantee in remainder was in existence, and his interest was vested, and not depending on a future event, he might enter for the forfeiture. If, however, there was no such grantee, then, from the imaginary ouster or devestment of the seisin on which the limitations depended, and the VOL, XXXIÙ, NO. LXVIII.
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, bave 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, wbich, 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, bappening 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
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 present 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 many 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.
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
objections; for the due understanding of which a few preliminary observations are necessary.
* Trusts, in our law, may be divided into active or operative, and pas. site or formal. The former class consists of trusts, in which some confidence is placed in, or some duty imposed on the trustee ; as, where real property is vested in him for the purposes of sale, and distribution of the produce among creditors, which demands both activity and integrity. This species of trust, or something correspondent to it, appears indispensable in every system of jurisprudence. The latter, or formal class of trusts, is a mere technical phantom, springing out of our complicated systems of real property; as in the various instances of trustees introduced into a purchase-deed for preventing dower; into assignments of terms for protecting the inheritance ; into marriage-settlements for serving contingent remainders—for securing the jointure--for raising younger children's portions, &c.
* Trusts, being a personal confidence, ought to cease with the person of the trustee. Our law, however, continues the estate, though not always the confidence vested in a deceased trustee to his heir ; or, if it. be for a term of years, to his executor or administrator. Still a new trustee is to be appointed whenever the deed creating the trust, or the refusal or incapacity of the representative requires it. This is effected either by the parties beneficially interested, if they have a power for that purpose, or else through the circuitous and expensive medium of the court of chancery. To such new trustee the technical property, called the legal estate, in whomever resident, is to be conveyed. The heir, however, may
woman, an infant, or a lunatic. In the first instance, the fictitious and expensive process of a fine, which will be detailed hereafter, is necessary. In the two latter cases a conveyance was formerly impracticable; and, consequently, the title of the beneficial owner was rendered defective from the incapacity of a stranger. · To remedy this singular mischief, various acts were successively passed which lave recently been consolidated into one, namely, 6 Geo. IV. c. 74, whereby infant trustees and mortgagees, and persons acting on behalf of insane trustees and mortgagees, or of trustees out of the jurisdiction, or whose existence is uncertain, are authorized to convey under the direction of the court of chancery, or, in specified cases, of other equitable jurisdictions. While the present system prevails, the provisions of this act are indispensable; but the delay and expense of its proceedings must be too obvious; as must also be their needlessness, when it is reflected, that the estate ought to cease with the trustee, and pass over with the trust, as a shadow with its substance,
Nor is this all : land vested in a trustee, being deemed his own at law, will, consequently, pass there by his will containing a general devise of all his estate. But this may be so qualified as to the object of the disposition, as to pass such lands only as he is beneficially entitled to. As, when the gift is to one for life, with remainder to another, or charged with debts or legacies; since these interests cannot be raised in the estate of another. Other instances occasionally occụr, as may be supposed, of a more doubtful character ; as, where the devisee is also ex