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CORNELL UNIVERSITY .LIBRARY 
 
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Cornell University 
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SUGGESTIONS 
 
 REFOEM m SOME BRANCHES 
 
 THE LAW. 
 
 I. THE MODE OF REMUNBEATING THE PROFESSION. 
 
 II. THE TRANSFER, MORTOAGINO, AND SETTLING OF REAL PROPERTY. 
 
 III. THE COURT OF CHANCERY, AND THE MASTERS' OFFICE. 
 
 IV. THE ENFRANCHISEMENT OF COPYHOLDS. 
 
 V. THE CONSOLIDATION AND DIGEST OF THE STATUTE AND COMMON LAW 
 
 BY JAMES STEWART, 
 
 OF Lincoln's inn, esq., barrister-at-law. 
 
 SECOND EDITION. 
 
 LONDON: 
 V. & K. STEVENS, & G. S. NORTON, 
 
 BELL YARD, LINCOLN'S INN. 
 1852. 
 
h(o^tX^ 
 
THE RIGHT HONBLE. lOED CAMPBELL, 
 
 &c. &c. &c. 
 
 My Lord, 
 
 Since the publication of this little book, 
 your Lordship has been appointed Chief Justice of 
 England, an event full of good augury for the 
 Reform of the Law in this the most eventful crisis 
 of its history. In tlie hope and belief that these 
 anticipations will be fully realised, I again inscribe 
 this book to your Lordship. 
 
 I have the honour to be. 
 My Lord, 
 Your most obliged Servant, 
 
 JAMES STEWAET. 
 
INTRODUCTION, 1852. 
 
 The Law Reformer has, at all events, one pleasure. 
 If he chooses his subject with care and consideration, and 
 bides his time, he will find that his predictions will come 
 to pass. The first putting forth of his speculations is 
 perhaps the most disagreeable part of his work. They are 
 received usually with civil coldness or a languid sneer : like 
 George Primrose's paradoxes, the world says " notiiing, 
 nothing at all" about them. They usually take the pamph- 
 let form, known by all booksellers to be unsaleable, be- 
 cause voted by all purchasers to be unreadable. The 
 author implores attention to his suggestions, but with 
 little success: and the only communication he receives 
 from his publisher is one at the end of the year — a dismal- 
 looking account, in which the balance is on the wrong 
 side for the author. 
 
 This he pays with the best grace he can muster. But 
 the worst is then passed. His speculative seed has been 
 sown, and ripens in a mysterious way. Some friend's 
 review has called attention to his suggestions. Some 
 portion has fallen into good ground : some part has been 
 borne by the wind or by the birds into the right soil, and 
 he unexpectedly finds it springing up, and comina; into 
 bloom. His hopes revive, and his pleasure now begins. 
 But he must still have patience, boldness, and energy ; and 
 he must learn entirely to forget himself. His project 
 strengthens. It is nourished here by a smile; it is forti- 
 
 A 3 
 
vi INTRODUCTION, 1852. 
 
 fied there by a suggestion. It receives the adherence of 
 this great man, or of that public body, and all at once it 
 acquires strength, solidity, and life; and it becomes as 
 difficult to extirpate as it was to plant. 
 
 The Law Reformer has another great advantage, that, 
 on repairing to his bookseller's warehouse, whatever has 
 been the success of his book, although it may have been 
 quoted in the newspapers, taken as the foundation of 
 foreign codes, or even ridiculed from the woolsack, he is 
 sure to find a sufficient number of copies remaining to 
 enable him to re-issue it without a second printer's bill, 
 and to proclaim his change of prospects to the world, — 
 that is, such portion of it as will attend. 
 
 This last discovery has induced me to think that it 
 might be advisable tore-issue some "suggestions" which 
 I published nearly ten years ago. There seems a more 
 willing ear for such matters both in the Public and the 
 Profession ; and if I have had some of the pains of a Law- 
 Eeformer, I have had all the pleasures. 
 
 I hope then it may not be ill-timed or useless, to review, 
 at this distance of time, the position of the various pro- 
 posals touched on in the following pages; to consider 
 whether they have made any progress, whether they may 
 properly be proceeded with and discussed, and what chance 
 exists of the eventual success of any of them. Altogether, 
 I think, the reader will agree with me that I have much 
 encouragement to proceed. 
 
 Chapter I. is On the necessity for altering 
 
 THE present mode OF PROFESSIONAL REMUNERATION. 
 
 — As to this I observed, p. 7., that "an alteration of the 
 mode of remuneration is the first step to an efficient reform 
 in many departments of the Law." I am happy to find that 
 this opinion is now fast gaining ground. I may refer to 
 the evidence before the Select Committee of the House of 
 
INTEODUCTIONj 1852. vii 
 
 Lords on the Masters Jurisdiction Bill, (1851), as coming 
 from many eminent professional persons. Lord Brougham, 
 for instance, says, " My opinion is clear that one great 
 cause of the delay and expense in Chancery is the perfectly 
 faulty mode of remunerating professional men,' solicitors 
 especially, but I do not except counsel. This opinion is 
 the result of my whole professional experience and obser- 
 vation, and it is not confined to proceedings in Equity. 
 The subject is one of great difficulty, but it is of yet 
 greater importance, and I feel, whatever other changes are 
 effected to improve our system, whether of Equity or 
 Common Law, a large proportion of the evil will remain, 
 unless this difficulty be grappled with and overcome." 
 
 There is much other evidence to the same effect, and I 
 am happy to say the whole subject is now engaging much 
 professional attention. 
 
 But this is not all. A noble Lord, not a professional 
 person, but distinguished for his sagacity and political ex- 
 perience, writes to me thus, without my requesting his 
 attention to it : — " The payment of solicitors seems to me 
 the first point to be attended to, on the principle that it 
 avails little to pump until you have stopped the leak." 
 
 Other evidence might be brought forwa d, but this 
 sufficiently shows the general feeling on the subject. In 
 the meantime, within the last ten years, something has 
 been done. 
 
 It is suggested, at pp. 1. and 7., that bills relating to 
 conveyancing shall be placed within the reach of taxation. 
 This wish has been realised by a recent statute, by which 
 the powers of the Taxing Masters have been extended to all 
 business of this nature. (6 & 7 Vict. c. 73. s. 37.) 
 
 This is an useful provision, but more than this is re- 
 quired. The taxing officer should be clothed with powers 
 far more extensive than he now has. This has been 
 already given to him in deeds, under two recent Acts, 
 
 A 4 
 
viii INTRODUCTION, 1852. 
 
 8 & 9 Vict. c. 119., and 8 & 9 Vict. c. 124., by which it 
 is enacted, s. 4. and s. 3. " that in taxing any Bill for pre- 
 paring and executing any deed under these Acts, it shall 
 be lawful for the taxing officer, and he is hereby required, 
 in estimating the proper sum to be charged for such trans- 
 action to consider not the length of such deed, but 
 only the skill and labour employed, and responsibility incurred 
 in the preparation thereof." 
 
 But these Acts only apply to the deeds made expressly 
 in pursuance of them, and a more general provision ia 
 necessary. 
 
 A Bill, extending a similar provision to all deeds, was 
 kindly introduced by Lord Brougham into the House of 
 Lords in the year 1849, and passed that House; but it 
 has never been effectually proceeded with in the other 
 House. Here, then, I can only repeat my suggestion, 
 "that the taxing officer should have power to consider 
 whether an instrument is not unnecessarily long. These 
 taxing masters are persons well acquainted with the sub- 
 ject from actual experience, they should be clothed with 
 ample powers, and should be guided by some fixed rules, 
 which would also be a guide to the practitioner." I do 
 not mean to say, that the taxing officer, if this power were 
 given to him, would have no difficulty in particular cases 
 in coming to a decision, but, I believe, if a large discretion 
 were given to him, he would do substantial and practical 
 justice, and relieve the Public and Profession from a load 
 of weight, expense, and delay. At all events, no mode of 
 assessing professional remuneration is so fraught with evil 
 of all kinds as the present payment by length and length 
 only. 
 
 Chapter II. On facilitating the transfer op 
 REAL Property. — "Within the last ten years great pro- 
 gress has been marie, not, I am afraid, in facilitatino; the 
 
INTRODUCTION, 1852. Ix 
 
 transfer of land in this country, but in bringing home to 
 the public mind the importance of this subject. This, in 
 fact, cannot be exaggerated. I do not hesitate to state 
 my conviction, as the result of more than twenty-five years' 
 experience as a conveyancer, and after great consideration 
 of the subject, that the present law, which impedes the 
 free transfer of land, its expense and delay, deprive the 
 landowner of the value of his land to the extent of ten 
 years' purchase, and that the fee-simple of freehold land 
 should bring in the market, on the average , forty years' 
 instead of thirty years' purchase. I further believe, that a 
 few judicious alterations in the law would soon enable the 
 landowner to realise this advance in price. It is needless 
 to point out the vast consequence of this to the landowner, 
 more especially at the present moment, when many a 
 worthy gentleman is struggling to live on the difference 
 between the rent payable to him and the interest payable 
 by him. Facilities for the transfer of land should now be 
 demanded by all as the means of relieving the landowner 
 from his chief present difficulties, and of enabling this 
 country to go on for the future with greater prosperity 
 than ever to all classes. 
 
 More especially it should be the object of the lawyer 
 and landowner to construct a plan of Register by means of 
 which the investigation into titles may be shortened. It 
 is obvious, that unless the existing practice be altered, a 
 mere Register of Deeds similar to that provided for by 
 the Bill which passed the House of Lords last session, 
 would not have that effect. But surely a proper Register 
 may be constructed. When we find eight hundred millions 
 of stock in the funds, cheaply, safely, and easily managed 
 under a system of register ; when shares in railway and 
 other companies are transferred and dealt in with equal 
 ease and advantage to the owners and the public ; when 
 large tracts of customary lands are also easily transferred 
 
X INTRODUCTION, 1852. 
 
 under a system of register; when all these different 
 kinds of property are made the subjects of mortgage and 
 settlement, — surely it will not be impossible to construct a 
 system which shall give similar advantages to freehold 
 land. At the moment I write, some doubt seems to exist 
 whether the Registration Bill of last session will be re- 
 newed. Let this doubt quicken the exertions of Convey- 
 ancing Reformers, in constructing a system which will 
 supply the necessities of the case, and really facilitate the 
 transfer of land. Let us be assured that this is to be 
 done, with a little care, by men bringing experience and a 
 hearty good will to the cause. 
 
 This chajDter is chiefly devoted to long deeds, a weary 
 subject, and perhaps rather a symptom of the disease than 
 the disease itself. 
 
 The plan here recommended for shortening deeds I still 
 adhere to in principle. But the Acts which should em- 
 body the common forms, would require very careful and 
 skilful preparation ; perhaps more care and skill than any 
 one person could bestow ; certainly more than I have. 
 The Bill in the Appendix, embodying a portion of the 
 proposed plan, is not without interest, as having occa- 
 sioned a lively debate in the House of Lords. Imme- 
 diately after the publication of this book Lord Campbell 
 wrote to me, kindly expressing his willingness to bring in 
 the Bill in the Appendix, and acting immediately on this, 
 he laid it on the table of the House of Lords. Probably 
 the result would not have been different, but I was de- 
 sirous of amending the slight sketch that I had here intro- 
 duced (pp. 124 — 129.): the debate, however, took place on 
 the 28th day of April, 1843, on the Bill here inserted. This 
 brought down upon us a speech from Lord Lyndhurst, 
 then Chancellor, in which the defects of the measure 
 were liappily exposed, but perhaps in a manner a little 
 too severe, so far as I was concerned. The Bill was 
 
INTKODtrCTION, 1852. xi 
 
 therefore withdrawn by Lord Campbell, who was un- 
 willing to proceed further in this matter, for which no 
 one could blame him. But it is often by going wrong 
 that we learn the right way, and I still endeavoured to 
 pursue the subject. In 1842 the matter was renewed in 
 the House of Lords, and here, in the absence of Lord 
 Brougham, who had introduced the Bills, I had the assist- 
 ance of Lord Lyndhurst, who had in the mean time him- 
 self failed in Ms attempt to amend the law of real property, 
 (7 & 8 Vict. c. 76., repealed by 8 & 9 Vict. c. 106.), and 
 who (perhaps on this account, but more by the kindliness 
 of his nature) gave me his cordial and most useful assist- 
 ance in passing the two bills, 8 & 9 Vict. c. 119., and 
 c. 124.1, and also the truly valuable Act for dispensing 
 with the assignment of terms (8 & 9 Vict. c. 112.). 
 
 In these matters we must be content to fail, and take 
 the chance of being called blunderers, so that we fix 
 attention to the subject, stimulate the exertions of others, 
 even at our own expense, and ultimately succeed in 
 carrying the point aimed at. And this is truly difficult 
 to be carried ; because the Conveyancing Reformer is sure 
 of an organised and subtle opposition. 
 
 But here I do not doubt that in time we shall prevail, 
 and that, if necessary. Parliament will give such powers as 
 will baffle all professional opposition, and that in England, 
 as in Ireland, the land will be relieved from the crotchets 
 of conveyancers. I am afraid I may offend many by point- 
 ing to this subject as a source of perpetual and recurring 
 mischief; but I cannot cease to do so until some remedy 
 
 ^ These Acts were not drawn by me, but I consider myself to a certain 
 extent responsible for them. They have been but little adopted by the 
 Profession ; but even when this has not been done, they have had an indirect 
 effect in controlling the length of deeds. I fear that even better acts than 
 these would fail in effect so long as deeds are paid for by length, and are kft 
 to be adopted at the option of the practitioner. 
 
xii INTEODUCTION, 1852. 
 
 is obtained. Strong powers vested somewhere are abso- 
 lutely necessary to meet the evil. An official investigation 
 of titles, to be submitted to at the will of the parties only, 
 would do much to clear away these cobwebs, and to render 
 the transfer of land free. I refer with satisfaction to an 
 article on this subject in p. 174. of the Law Review for 
 November, 1851, as coming from a learned conveyancer 
 competent to deal with the subject, in which it is con- 
 clusively shown that either the Court of Chancery, or 
 some special tribunal created for the purpose, should be 
 clothed with the power of granting a Parliamentary Title, 
 which is proved to be attended with so much benefit in 
 Ireland, as given by the Incumbered Estates Commission. 
 
 At p. 8. I supposed it possible that a future age might 
 require the breaking up the line of separation between 
 Courts of Law and Equity ; but I did not then suppose 
 that the time was to come so soon. Two years have made 
 a wonderful difference in public opinion as to this. The 
 labours of the compilers of the New York Code of Pro- 
 cedure, and more especially those of my accomplished and 
 learned friend, Mr. David Dudley Field, have placed the 
 question of "fusion" of legal and equitable principles, 
 and jurisdiction, in so favourable a light, that Icannot doubt 
 that it will be effected in this country. 
 
 At p. 14. I suggested that in the event of the death or 
 disability of the trustees, or their unwillingness to act, it 
 should be lawful for the tenant for life, or, in case of his 
 disability, the surviving or continuing trustee, to appoint a 
 new trustee, and the appointment of the trustee by the 
 proper party should vest the trust property, either real or 
 personal, in the new trustee. 
 
 This suggestion has been adopted in the Trustee Act, 
 (1850) 13 & 14 Vict. c. 60. s. 34., by which the Court of 
 Chancery, upon appointing a new trustee, may direct any 
 lands subject to this trust to vest in the new trustee, and 
 
INTRODUCTION, 1852. xiii 
 
 such order shall have the same effect as if the person who 
 was the old trustee had duly executed all proper con- 
 veyances. This is a highly useful provision, for which this 
 country is chiefly indebted to my friend Mr. Headlam, 
 M.P. for Newcastle. Not only will there be a great saving 
 to the parties, but many causes of inaccuracy will cease. » 
 
 Chapter III.^The Court of Chancery and the 
 Master's Office. — The difficulties as to the hearing of 
 causes have been still further removed by the Act of last 
 Session, 14 & 15 Vict. c. 83., under which, among 
 other things, two additional Vice-Chancellors have been 
 appointed, and a new Court of Appeal is created. 
 
 The question asked at p. 28. still, however, remains to 
 be solved. Many claims for sums of 100?. and 200?. can 
 only be enforced by means of the Court of Chancery. 
 There is confessedly in these cases a denial of justice by 
 the means of the present machinery. Is this state of 
 things, which renders this Court a mockery to the poorer 
 and middle classes of society, materially altered by the 
 reforms I have mentioned ? I think not. 
 
 To obtain this great benefit — the extension of justice 
 in such matters to these classes of society — a plan of 
 Keform is proposed in this chapter, which is the introduc- 
 tion of what is now pretty well known as the Judge- 
 Master principle ; that is, that the Judge shall work out his 
 own decrees, and that the office of Master, as at present 
 constituted, shall be abolished. I am not aware that this 
 was ever, before the publication of this work, proposed in 
 print; but in the long vacation of 1840 I had the advan- 
 tage of meeting at Broadstairs, and of having much con- 
 versation on the subject, with my friend, Mr. E. W. Field, 
 and he it was who suggested this idea to me. From that 
 period I have had the pleasure of seeing it gradually grow 
 into favour with the Public and the Profession ; and now I 
 
xiv INTRODUCTION, 1852. 
 
 can have no doubt that the plan will be fairly tried, as 
 several of the present Equity Judges have expressed their 
 willingness to act upon it, and are in fact availing them- 
 selves of it whenever it is possible. This appears in the 
 valuable Evidence taken by the House of Lords on the 
 subject last Session. The plan has also had the approba- 
 tion of the Law Amendment Society (Jan. 12. 1852), and 
 of the Incorporated Law Society (Dec. 11. 1851), both of 
 which learned Societies have made elaborate Eeports on 
 the subject. It is also in practical operation in the Pre- 
 sidency of Bombay, where the Chief Justice, Sir Erskine 
 Perry, has introduced it. Here, then, very little remains 
 to be done : and if I can only see this principle fully 
 adopted by our Equity Courts in this country, I shall 
 think myself most amply repaid for any labour or trouble 
 I have had in the cause of Law Reform. 
 
 Chapter IV. The Enekanchisement of Copy- 
 holds. — In this department of the Law I am happy to 
 say that great progress has been made towards the proper 
 reform. The voluntary enfranchisement of copyholds has 
 proceeded during the last ten years, and the means are 
 thus provided for effecting safely and justly the entire 
 extinction of this tenure. The introduction of the com- 
 pulsory principle is now all that is to be desired. The pro- 
 priety of its introduction has been affirmed very recently by 
 majorities of both Houses of Parliament ; and in the last 
 Session a Select Committee' of the House of Commons 
 unanimously agreed to a Bill by means of which the 
 question may be completely settled, and the tenure extin- 
 guished. This Bill will, I believe, be introduced by Mr. 
 
 ' This Committee represented all parties in the House. It consisted of 
 the following members : Mr. Aglionby, Mr. Cornwall Lewis, Mr. Bou- 
 verie, Uie Earl of Arundel and Surrey, Mr. S. Adair, Rlr. Headlam, Mr. 
 Henley, Mr. MuUings, Mr. Freshfield, Mr. J. A. Smith, Mr. Tufnell, 
 Lord U. Grosvcnor, Mr. Armstrong, Mr. Sotheron, Sir E. Buxton, Mr. 
 Miles. 
 
INTEODUCTIOKT, 1852. XV 
 
 Aglionby early in the Session of 1852, and we may now 
 reasonably hope that it may be carried. 
 
 Chapter V. The Coksolidation and Digest- 
 ing OF THE Statute and Common Law. — In this 
 great work I am sorry to say but little progress has been 
 made within the last ten years, and this it is that has 
 mainly induced me again to call attention to the subject 
 by a re-issue of this little work. The more it can be 
 forced upon public attention the better ; and surely if any 
 attention is given to it by any Government, the result 
 must be that steps will be taken to accomplish this, by 
 far the most essential and important of all Law Reforms. 
 
 My best chance of having this read is to be as brief as 
 possible. 
 
 I wish I could say I was satisfied with the progress 
 made in these matters since this work was published. I 
 turn with some despondency and sadness from the past ; 
 to the future I look with better hopes, relying chiefly on 
 the following means for success : — 
 
 I. The establishment and progress of the Law Amend- 
 ment Society, which commenced its proceedings Jan. 24. 
 1844. 
 
 II. The existence of the " Law Review," a quarterly 
 journal devoted to the promulgation of the principles of 
 Law Reform, and supported by many distinguished Law 
 Reformers. 
 
 III. The daily and weekly Press of this country, which 
 now most ably and zealously supports Law Reform. 
 
 And Lastly : The constant efforts of Law Reformers, 
 
 small and great, which must, sooner or later, prevail, if 
 
 piously, honestly, and cautiously, but also boldly and 
 
 energetically, pursued. 
 
 Lincohis Inn, 
 Jan. 10. 1852. 
 
CHAPTER I. 
 
 ON THK NECESSITY FOR ALTERING THE PRESENT MODE OP 
 PROFESSIONAL RBMUNERATION. 
 
 CHAPTER II. 
 
 ON FACILITATING THE ALIENATION^ MORTGAGING, SET- 
 TLING, AND LEASING, OF REAL PROPERTY. 
 
 CHAPTER III. 
 
 THE COURT OF CHANCERY AND THE MASTERS* OFFICE. 
 
 CHAPTER IV. 
 
 THE ENFRANCHISEMENT OF COPYHOLDS. 
 
 CHAPTER V. 
 
 THE CONSOLIDATING AND DIGESTING THE STATUTE AND 
 COMMON LAW. 
 
INTRODUCTION. 
 
 The present century will be distinguished for 
 its attention to the reform of the law. More 
 has been done within the last twenty years, in this 
 respect, than in the preceding century and a half. 
 Law reform has ceased to be a mere political watch- 
 word, and the most eminent men of the day, of all 
 parties, as well lawyers as others, have used their 
 best exertions to point out and remedy the defects 
 and abuses of our present juridical system. 
 Their efforts, in this respect, have been already 
 attended with great success. Our criminal law, 
 both in its enactments and its administration, 
 has been greatly improved ; some of the most 
 glaring defects in the law of property have been 
 remedied, and the practice and pleading of the 
 common law have been much simplified. It will 
 not, however, be disputed, that much yet remains 
 to be done in the complete reform of the law, and 
 the benefit that has already resulted, from the 
 measures I have mentioned, should encourage our 
 further efforts. It is admitted that justice cannot 
 be- obtained in a court of equity, where the matter 
 
via INTRODUCTIOK. 
 
 in dispute is less than 1000/., and the time is last 
 approaching, if it have not already arrived, when 
 the expense of any dealing with real property will 
 be so great, as utterly to preclude the poorer 
 classes from the acquisition of land. At present 
 the same length of deed is necessary, whether a 
 half an acre is conveyed, or one thousand acres ; 
 and it by no means unfrequently happens, that 
 the mere expense of the transfer exhausts one half 
 of the estimated value of the land. The deeds 
 relating to the land would very frequently, if 
 spread out, completely cover its surface. 
 
 It seems full time to afford some remedy for 
 this state of things. The legislature has inter- 
 fered to shorten pleadings in the courts of law. 
 It has empowered the judges of the courts of equity 
 to shorten pleadings in equity. It is full time 
 that some legislative step should be taken to 
 shorten deeds, especially in small tratisactions. 
 The plan which I propose in this respect, has en- 
 gaged for some time a good deal of my attention, 
 and I respectfully invite that of others to it. 
 
 The Court of Chancery was surely not intended 
 for the rich alone. Its present machinery ex- 
 cludes from its doors the poorer and middle 
 classes as effectually as if no such court existed. 
 I am desirous that they should enjoy the benefit 
 of the admirable principles which the learning, 
 integrity, and talents of along series of illustrious 
 judges, have established. These classes should 
 have their just claims attended to, both in the 
 
INTRODUCTION. IX 
 
 dealing with property and in the administration 
 of justice. 
 
 The enfranchisement of copyholds has for many 
 years engaged the attention of the legislature. 
 In the fourth chapter, I have endeavoured to show 
 the present state of this question. 
 
 But it is to the necessity of a compilation of a 
 general digest, which would render the whole body 
 of our law accessible to all, that I am most anx- 
 ious of calling general attention. 
 
 I most readily admit, hoM'^ever, that almost all 
 the suggestions which I have made in the follow- 
 ing pages will be familiar to most persons who 
 have paid any attention to the reform of the law. 
 Far from claiming any merit on the score of the 
 novelty of my views, my main argument is, that 
 the important improvements for which I contend, 
 have already been repeatedly proposed by persons, 
 the best entitled to attention. I have, in almost 
 every instance, merely put them into a new form, 
 in the hope of keeping the subject before the 
 public view. The only surprise that I hope to 
 excite is, not that such opinions can be enter- 
 tained, but that they have not long since been 
 acted on. 
 
 I have printed in the Appendix some extracts 
 from other works, and other matters not easily 
 accessible, chiefly in support of the views which 
 I have taken. These, 1 am satisfied, will be 
 read with interest, and may be considered as 
 the proofs of the statements in the body of the 
 
X INTRODUCTION. 
 
 work. More especially^ when a note was long, I 
 have thought it more convenient to print it at the 
 end, rather than in the body of the work, as less 
 likely to distract the attention of the reader. 
 
 I might have dwelt on all the subjects referred to 
 in the following pages at much greater length, 
 and entered more into technical details, but I am 
 desirous that this little work should be read, as 
 well by unprofessional as professional persons, 
 and I know it is hopeless to expect that the for- 
 mer class, at any rate, will read anything but a 
 brief statement on any professional topic. 
 
 Whatever other objections may be urged to the 
 proposed reforms, they should not, at any rate, be 
 of an economical kind. There can be no better 
 service performed, considered even with a view 
 to pounds, shillings, and pence, than to render 
 the law simple and certain. Every line of the 
 proposed Digest would be of inestimable value. 
 Prevention is better than cure, and no suit at all 
 is far cheaper to the parties, than the cheapest 
 suit. The reforms in the law, proposed by the 
 Common Law and Real Property Commissioners, 
 have, in every year since they were introduced, 
 saved at least double the expense of both Com- 
 missions. The saving to the public by the new 
 rules in common law pleading and practice, 
 has been immense. It is the practitioners who 
 complain of them, not the suitors. It is well 
 known they have cut down their fees to the 
 smallest possible scale. The abolition of fines 
 
INTRODUCTION, XI 
 
 and recoveries by statute 3 & 4 W. 4, c. 74, 
 saved on that head alone 100,000/. a-year," and 
 the act for dispensing with the lease for a year, 
 (4 Vict. c. 21) has saved at least 50,000/. a-year'' 
 more. If the alterations made in the second chap- 
 ter of this work, were made, the saving to the 
 public in all dealings with land, would be great 
 indeed ; and if a Digest of the law were compiled, 
 to say nothing of the saving in law books, (a law 
 library now costs about 700/.) the gain to the 
 public in having an accessible body of law would 
 be incalculable. I do not think, that if the 
 changes proposed, be otherwise unobjectionable, 
 the country would object to their being properly 
 and judiciously carried out, on the score of ex- 
 pense. 
 
 I cannot commit these rough suggestions to the 
 public without considerable hesitation. A work 
 on the reform of the law is too apt to be thrown 
 aside as relating to a subject not coming within 
 the range of general information, and as having 
 only a technical interest. I fear that this may well 
 be the fate of this work, and yet it bears most inti- 
 mately on many of the every-day transactions of 
 life, and concerns that which is generally con- 
 sidered most dear to all. 
 
 " See Mr, Tyrrell's Letter, appended to the Report of the House of Com- 
 mons on Private Business, printed 9th August, 1839, the whole of which 
 contains much valuable matter, 
 
 '' This was calculated at the Stamp Office, to be the loss to the revenue, if 
 the stamp duty on the lease for a year had not been preserved. The other 
 expenses attending it were at least equal to the stamp duty. 
 
Xll INTRODUCTION. 
 
 It seems proper to observe, that the greatest 
 part of this little work has been written a consi- 
 derable time, and that other occupations have 
 prevented its completion. It seems necessary to 
 say this, as temporary circumstances, although 
 apparently rendering this a desirable time for its 
 publication, have not occasioned it. 
 
 Nov. 22, 1842. 
 
TABLE OF CONTENTS. 
 
 I. The Necessity For altering the present mode of Profes- 
 sional Remunerations — 
 
 Page 
 New Taxing Masters . . . . . . . . , , . . 1 
 
 What bills now subject to taxation ,. id. 
 
 Remuneration by length 
 
 what is insured by it 2, 3 
 
 charges against the profession aiising from it , . , , 4 
 " Copy money " , . . . . , . , . . ,. ib. 
 
 The effect of the present mode of charging on the bar . . 5 
 on the solicitor . . . . . , . , . . . , 5, 6 
 Power to be given to the taxing officers . . . ^ . . ^ 
 
 An alteration in the mode of remuneration the first step to 
 an effectual reform . , . . . . . . . . .. ib. 
 
 II. On facilitating the Transfer of Real Propertt : — 
 State of freehold tenure 
 
 need not be altered 
 Uses and trusts . . 
 Present assurances . , 
 
 their disadvantages 
 Long deeds now necessary 
 
 assistance of the legislature necessary to shorten them 
 
 Present charges of solicitors . . 
 
 Common forms, how to be dispensed with .. 
 
 Short form of " Grant " 12, 13 
 
 Short form of settlement and mortgage .. .. 14,15 
 
 Equitable mortgages now doubtful 
 
 Short form of lease 
 
 Advantages of the proposed plan 
 
 adoption of plan to be optional by the parties . . 
 
 its effect on the revenue . , 
 
 8 
 ib. 
 ih. 
 
 9 
 10 
 ib. 
 
 n 
 
 ib. 
 12 
 
 15 
 17 
 18 
 19 
 
 a. 
 
 its effect on the profession 19, 20 
 
tablB of contents. 
 
 Necessity for an extensive reform of the law 
 
 20 
 
 Small sums of money are not now invested in land .. . . 21 
 
 The middle classes driven out of the market . . .. . . ih. 
 
 The middle classes the best customers . . . . . . 22 
 
 Small transactions cannot now pay for along form . . . . 23 
 
 Small holdings to be encouraged . . 23, and see 75 — 77 
 
 Plan, a practicable one . . . . . . . . . , . . 24 
 
 How acts to carry it out should be framed . . . . 24, 25 
 
 III. The Court op Chancery: — 
 
 Equity Juflges' Act, 5 Yict. c. S , 26 
 
 Select Committee, H. L. 1839 ib. 
 
 Lord Cottenham's Orders, 1841 27 
 
 TwngOfficers'Act, 5,&6 Vict. c. 103 ib. 
 
 Fijrjther proposed reforms under consideration . . , . 28 
 Clwms for 1 00/.. and ,200/. cannot now be enforced in the 
 
 Court of Chancery .. .. ,. .. .. .. ib. 
 
 Principles .of the Court . . ... . . . , . . . . 29 
 
 Small claims how to be enforced .. .. .. . . ib. 
 
 Comparative cheapness of Court of Bankruptcy . . 29, 30 
 
 New machinery in Chancery should be constructed . . . . 31 
 
 Dispensing with pleadings where the parties chose . . . . 32 
 
 Description of a bill in Chancery . . . , . . 32, 33 
 
 Object of most bills to get into the Master's Office . . . . 33 
 
 Parties should be allowed to go there at once . . . . ib. 
 
 Executors should be amenable to a more summary tribunal ib. 
 
 Points of law, how to be determined . . . . . . . . 34 
 
 When reports might be dispensed with . . . . . . 35 
 
 The Master's Office : 
 
 The citadel of the Court of Chancery .. .. ..36 
 
 its inefficiency .. .. .. ., ,. .. ib. 
 
 Master Stephens' evidence . . . . . . . . . . ib. 
 
 How business is transacted . . . . . . . . ,38, 39 
 
 System of hourly warrants .. .. .. .. ..40 
 
 its injurious effect .. .. ., .. ,. ib. A\ 
 
 Masters not personally to blame .. .. .. 41,42 
 
 Instances of suits in Chancery . . . . . . . . . 42 
 
 Smith V. Bolton .. .. ,. .. ,. ,, 42,46 
 
TABLE OF CONTENTS. XV 
 
 Page 
 Temple v. Bonifuce . . . . . . . , . , 46 — 48 
 
 Public sittings . . . . . . . . . . . . . . 49 
 
 Why should not judges act as masters? .. .. ..60 
 
 benefits which would accrue therefrom to the suitor SO, 5 1 
 Masters' opinions .. .. .. .. .. ..61 
 
 Common law judges now sit in chambers .. .. ,. il>. 
 
 Advantages of equity judges sitting in chambers . . . . 52 
 
 Present machinery most costly . . . . . . . . ih. 
 
 Measures of last session favour the change . . . . . . 53 
 
 The recovery of a right must now depend on the capital em- 
 ployed .. .. .. .. .. .. .. .. zli. 
 
 the effect of this on the smaller class of solicitors . . ib. 
 Orders of Michaelmas Term, 1812 64 
 
 their probable effect . . . . . . . . .. ib. 
 
 Enquiry into the Suitors' Fee Fund necessary . . . . 64 
 
 IV. The Enfranchisement of Coi'yholds : 
 
 Copyhold tenure practically injurious to the public^ and the 
 
 owner of the land 
 Committee of 1661 
 Bill as to arbitrary fines 
 Petition against copyholds, 1652 
 Opinion of Mr. Watkins against tlie tenure . . 
 Opinion of .Mr. Charles Butler 
 
 of Mr. Bell 
 
 of Mr. Tyrrell 
 
 of Mr. Senior , . 
 Other professional opinions 
 Opinions of the Real Property Commissioners 
 Opinion of Mr. Serjt. Stephen 
 
 Bills, purely voluntary, introduced and abandoned . . 
 Appointment of Select Committee of 1838 . . 
 
 its resolutions 
 
 its report 
 
 Bill of 1839 
 
 Stat, 4 & 6 Viet. c. 35 
 
 principle of commutation introduced by Lord Redesdale 69 
 
 objects and effect of the act 69, 70 
 
 Advantages of enfranchisement . . . . . . . . 70 
 
 
 65 
 
 
 ib. 
 
 , . 
 
 ib. 
 
 
 66 
 
 66 
 
 67 
 
 
 68 
 
 
 69 
 
 . , 
 
 60 
 
 
 61 
 
 62 
 
 63 
 
 , , 
 
 64 
 
 
 n 
 
 64, 
 
 66 
 
 
 64 
 
 64 
 
 66 
 
 65, 
 
 68 
 
 , , 
 
 68 
 
 68, 
 
 69 
 
XVI TABLE OF CONTENTS. 
 
 Page 
 
 Copyhold lands fetch less in the market than freeholds . . 7f* 
 
 Case of small quit-rents . . . . . . . . .. ib. 
 
 heriots 70,71 
 
 arbitrary fines .. .. .. 71 
 
 Inconvenience of two codes of law relating to property . . 72 
 
 Obscurity of law relating to copyholds .. .. . . 7'2 
 
 Advantages of enfranchisement . . . . . . . . 73 
 
 Enfranchisement of copyholds in Prussia . . . . . . 73 
 
 Von Raumer's account of it .. .. .. .. ..74 
 
 Mr. Laing's account of it . . . . . . . . 76 — 77 
 
 England the only part of the British dominions in which 
 
 copyholds exist . . . . . . . . . . . . 77 
 
 V. The CoNSOLiDATroN and Digesting op the Statute and 
 Common Law: 
 Division of the law into statute and common law . . . . 78 
 
 State of the statute law . . . . . . . . . . .. ib. 
 
 Report of the Commissioners appointed to inquire into the 
 consolidation of the statute law (1835) .. .. ..79 
 
 Evidence before Select Committee on Public Bills (.1836) . . 80 
 
 State of the common law . . . . ib. 
 
 Blackstone's account of the law reports . . . . 80, 81 
 
 Blackstone's opinion as to law reports . . .. . . 81 
 
 Present ^te of law reporting . . . . . . . . 82, 83 
 
 How it might be improved . . . . . . . . . . 83 
 
 Official reporters . . . . . . . . . . . . 84 
 
 Number of law reports as given by Mr. Humphreys 84, 85 
 
 Number and annual cost of reports .. .. .. ..85 
 
 Change of principles not necessary .. .. .. ..86 
 
 Extent of proposed digest .. .. .. .. ..87 
 
 Digest repeatedly proposed by the most eminent practical 
 lawyers . . . . . . . . . . . . .. ib. 
 
 Lord Bacon's opinion . . 
 
 Sir Matthew Hale's opinion 
 Sir Samuel Rorailly'a opinion 
 Mr. Baron AJderson's opinion 
 
 89-92 
 92, 93 
 93-95 
 .. 96 
 
 The necessity of a digest at the present day . . . . ib. 97 
 
 Diflferencc between a code and a digest . . . . . . 97 
 
 Compilation of digest not an abstract question . . . . 98 
 
 its practical advantages . . . . . . . . . . ib. 
 
TABLE OF CONTENTS. XVU 
 
 Page 
 
 Objection to a digest, that we have already excellent treatises 98 
 
 Answered 98, 9 y 
 
 Objection, "what is to be done with our law books ?" . . 100 
 Answered . . . . . . . . . . , . .. ih. 
 
 Compilation of new reports, how far necessary . . . . tin 
 
 Correspondence between Mr. Sampson and M. Dupin, as to 
 the state of the French law, and the effect of the code 
 
 Napoleon 101—106 
 
 Digest of the criminal law already in a forward state . .. 107 
 
 The Wills' Act, 1 Vict. c. 26 ih. 
 
 Modes of carrying the compilation of a digest into effect 107,103 
 
 NOTES. 
 
 A. Suggestions of Mr. Tyrrell as to conveyancing costs ., Ill 
 
 A. As to the mode of taxation in Scotland .. .. .. 112 
 
 B. A bill, intituled "An Act to facilitate the Transfer of Real 
 
 and Personal Property, held in Trust for Charitable pur- 
 poses " .. .. .. .. .. ..114 
 
 B. As to orders in Chancery operating in certain cases as con- 
 veyances .. .. .. .. .. ..117 
 
 0. Suggestions of Mr. Tyrrell as to the length of deeds, and the 
 
 remedy .. .. .. .. .. ..118 
 
 D. Observations of Mr. Tyrrell on the Stamp Laws . . . . 1 22 
 
 E. A bill to lessen the expense attending the transfer of freeliold 
 
 lands of small value .. ,. .. .. .. 124 
 
 F. Schedule of apportionment under the Copyhold act, 4 & 5 
 
 Vict. c. 35 .. .. .. .. .. ..130 
 
SUGGESTIONS 
 
 REFORM IN SOME BRANCHES 
 
 OF THE LAW. 
 
CHAPTER I. 
 
 ON THE NECESSITV FOR ALTERING THE PRESENT MODE OF 
 PROFESSIONAL REMUNERATION. 
 
 By an act of the last session of parliament, 5 & 6 Vict. 
 c. 103, six "taxing masters" are appointed in the Court 
 of Chancery, with power to extend the number to nine. 
 These masters must have a proper legal qualification, and 
 they are placed by the act in a highly respectable position. 
 It is right also to mention, that the appointments under 
 the act have been such as to merit the confidence of the 
 profession. The duties of these masters, so far as the 
 taxation of costs is concerned, is confined by the act to 
 taxing costs arising out of suits in Chancery, but it is to 
 be hoped that their powers will, hereafter, be considerably 
 extended. It is to be remembered that the charges for a 
 large branch of professional business cannot now be taxed 
 at all. Unless they relate to an action at law, or a suit in 
 equity, they cannot be reached by taxation. There is no 
 reason why this exemption should exist. Bills relating to 
 conveyancing, dealings with property of all descriptions, 
 and other miscellaneous business, are as properly the 
 subjects of taxation as business connected with courts of 
 law and equity. The effect of the recent changes in the 
 law has been greatly to reduce the charges for court bu- 
 siness ; and the rod hung over them by the power to tax, 
 i-enders the law eff'ectual ; but in all other business the 
 charges are left to the honour and good sense of the pi-ac- 
 titioner, or to the usage of the profession, which leaves the 
 matter almost necessarily in an unsettled state. 
 
 B 
 
^ REMUNERATION BY LENGTH. 
 
 It is not, however, my purpose to complain of any over- 
 charges arising under the present system, from any unfair 
 or improper practice. I wish to call attention to the vice 
 inherent in the whole system of professional charges, and 
 affecting as well those which may now be taxed, as those 
 which cannot — I mean the mode of regulating the payment 
 for any professional document according to length ; and 
 the establishment of a competent taxing board, appears to 
 me a fitting opportunity of shewing the necessity for a 
 change in this mode of remuneration. 
 
 I wish to prove the necessity of abolishing the present 
 system of professional remuneration by length, wherever 
 it exists ; and I am quite aware that I am here treading 
 on tender ground. So long as human nature is consti-- 
 tuted as it is, the mode of remuneration must be a very 
 important point, and all changes will, more or less, be 
 tried by this test. I would willingly think that the claims 
 of humanity and of conscience mignt be put in the scale 
 with this great and absorbing source of interest ; but with 
 the mass of mankind you cannot expect their sympathy on 
 the former topics alone. I am bound, therefore, unless I 
 would encounter a most formidable opposition, to make 
 out that the present system of remuneration is injurious 
 to the profession itself, as well as to the suitor. But, 
 putting this consideration of interest aside for the moment, 
 I think it will be admitted that this mode of payment by 
 length is a bad one in itself. Let us see what it is. 
 
 The present mode of remunerating both the barrister 
 and the solicitor is not by the labour, the skill, or the 
 talent which he has expended, but simply by the length 
 of the instrument prepared by him, or employed by him in 
 the course of his professional duties. Skill and talent, 
 obviously, cannot be measured by length, neither can la- 
 bour be so measured, for it is often more easy to compose 
 a long instrument than a short one. There are two modes 
 
PRESENT MODE OF DRAWtNG. 3 
 
 of preparing a legal instrument : — you may, to use the 
 conventional phrase, — you may '■' stick in " the wills, 
 deeds, &c. which are stated in it, either verbatim, or 
 nearly so ; or you may give their effect very briefly : — you 
 may mention in the conveyance, the bill, or answer, 
 simply what is necessary to be known, or you may fatten 
 it up with almost the whole of the recited instrument. 
 The degree of care and labour mainly depends on the 
 habits and conscience of the draftsman; but the only 
 point looked at, so far as remuneration is concerned, is 
 the length. Skill and labour, therefore, are not insured, 
 but length is. This, it must be admitted, is bad in itself; 
 as a system should be adopted which, so far as it is pos- 
 sible, will ensure what is absolutely necessary, and not 
 what may very well be dispensed with. Some documents 
 must indeed be long ; many may well be short ; but all 
 should be the fruit of labour and skill. So also, were I 
 devising a new system, I would not choose a plan which 
 is palpably open to be abused by the direct tendency in 
 human nature, to which I have already alluded, to study 
 its own interest rather than the strict rule of conscience. 
 If I have the power of making so much more money by 
 drawing long rather than short; if I get the habit of 
 " sticking in," as it is called ; and if I am supported in 
 this by the conventional usage of many others, is it not 
 putting my poor conscience too much in the way of temp- 
 tation to put a pen in my hand at all ? I believe lawyers 
 to be just as honest as other folks ; but you must not try 
 them too hard. You should not place them in situations 
 in which human nature must fall. 
 
 Thus the present system of remuneration does not en- 
 sure the proper requisites for the work, and it places 
 human nature in a constant state of temptation. But is 
 not this stating its efl^ect rather too mildly ? Does it not 
 give cause for the most odious accusations and suspicions ? 
 
 b2 
 
4 CHARGES AGAINST THE PROFESSION. 
 
 Are not some men spoken of at the bar as drawing long, 
 obviously for the sake of gain ? Are there not some soli- 
 citors who are said to be displeased if a document is not 
 of a certain length ? I only wish to glance at this, but it 
 would be easy to go into detail ; and although 1 belieye 
 that the great body of each branch of the profession is free 
 from these charges, to this extent, yet, is it right that an 
 honourable profession should be open even to the suspicion 
 of such motives for their every-day proceedings? But these 
 are by no means my only reasons for saying that the pre- 
 sent system of remuneration by length is a bad one. It is 
 of far more importance than in the first instance it appears. 
 If the additional gain from the additional length of the 
 draft simply went into the pocket of the barrister or the 
 solicitor, and this were all, I should not so much care ; but 
 it may be safely said that every line of every bill or deed 
 is multiplied by twenty in the subsequent proceedings of 
 the cause, or after dealing with the property. How often, 
 for instance, is a recital in a bill repeated, before there is 
 an end of the suit ? Does the remuneration all go to the 
 profession ? Is there not such a word as " copy money," 
 which is wrung out of the suitors at every stage of the 
 cause ?" It is in the subsequent stages of the cause that 
 the system of payment by length becomes so burthensome 
 in every way to the suitor, and even to the profession 
 itself. What pages must be read before the pith of the 
 matter can be got at ! What money must be coined be- 
 fore justice can be obtained, thus oppressed with unneces- 
 sary trappings ! 
 
 But is this system, so deplorable to the suitor, and so 
 objectionable to the character of the profession, always 
 fairly remunerative to all its members ? It may be ad- 
 
 " The charge in Chancery proccetlings is stlTl, I understand, to be lOd. a 
 fulio ; and this must now be advanced, in the first instance, by the solicitor. 
 
PRESENT SYSTEM, OF CHARGING. O 
 
 mitted that to certain practitioners, whom we have hinted 
 at, it may be; but is it so to all others ? I think not. 
 There is much business, which, although necessarily paid 
 by this standard, is very inadequately paid. I will take 
 one example, among many, so far as the bar is concerned, 
 that of amending a bill. The object is, especially where 
 the bill is a long one, to avoid a fresh engrossment, the 
 rule being, to prevent this, that amendments must only 
 occupy a certain number of words. It is often a very dif- 
 ficult matter to amend a bill effectually in this way ; there 
 is, indeed, often as much, or even more, trouble, than in 
 drawing the original bill. Yet the fee for the amendment 
 can only be by length, and is quite inadequate. Many 
 other instances might be given. Then, as to the remune- 
 ration of the solicitor. I shall here abridge the observa- 
 tions of Mr. Field, in his pamphlet, which are so excellent 
 and apposite that I must not simply refer to them. 
 " Throughout the whole court the same false and mis- 
 chievous principle prevails, of paying for what is not done, 
 by way of compensation for not paying for what is done. 
 Too much cannot be said against this mode, and yet it 
 pervades the whole frame of the law ; the bar itself is under 
 it, though not equally so with the solicitors. To give all 
 practitioners an interest in form and prolixity, and so to 
 tempt them to spin out in every way, instead of lessening 
 the clerk-work part of their business, manifestly tends to 
 damage the integrity of their minds. But besides this, it 
 also interposes a difi&culty in the way of every improve- 
 ment. The interest in words and forms begets a bigotted 
 love of words and forms. Whenever a useless form is to 
 be discarded, or a simple practice introduced, you are met 
 at once by the attachment, interested or bigotted, of al- 
 most the whole profession, to that system whereby, at 
 present, it gets its bread. All lawyers who have any real 
 love for the very honourable and confidential occupation 
 
b PHESENT SYSTEM OF CHARGING. 
 
 in which they ai-e employed, and who desire to see it en- 
 gage that share of public respect to which it is really 
 entitled, instead of being a bye-word and proverb for what 
 is cunning and mean, must be anxious to see this matter 
 put on a new footing. The length of the instrument is to 
 a clerk in court the sole measure of the care and trouble 
 it involves. But to have reason and justice in the system 
 of allowance, you must have discretion and responsibility 
 in the judge who is taxing. At present a solicitor is paid 
 a large profit on the stationer's work of copying. His 
 briefs of pleadings are, for instance, a large source of 
 profit to him. But for reading and indexing these briefs, 
 and noting and classifying the evidence, he is allowed 
 nothing at all. I have spent a week in preparing myself 
 to go into court with a heavy cause, and not been allowed 
 to charge sixpence for it. Again, for preparing instruc- 
 tions for a bill, the same remark applies. A long redemp- 
 tion bill of five hundred folios, against a dozen mortga- 
 gees, giving no trouble, pays ten times as much as a short 
 bill of fifty folios for some other purpose, which may have 
 taken days of thought and investigation to prepare for, 
 and put on the best footing. A few weeks since, I spent 
 a night and a day in drawing ten folios of instructions as 
 to opposing a claim to a mercantile proof in a bankruptcy 
 case, as hard a twelve or fourteen hours' work as I ever 
 had. For this I am paid ten shillings, (half of which 
 goes to the country solicitor who employs me). A more 
 equitable distribution of our pay cannot be made, till we 
 have more independent taxing officers, who may be en- 
 trusted with discretionary powers." Pamphlet (1840), 
 pp. 30-32. 
 
 Thus, it seems that the present system is open to al- 
 most every objection of which a system is capable ; it does 
 not ensure adequate skill and labour ; it is liable to be 
 greatly abused ; and lastly, it is not adequately remunera- 
 
NEW TAXING OFFICERS. / 
 
 tive. It rewards what should not be rewarded, and it 
 leaves the best services almost wholly unpaid. Surely, 
 then, I have said enough to prove that the present system 
 of remuneration, by length, should be greatly altered 
 wherever it exists. A proper board for the taxation of 
 costs has been formed. The length of the instrument 
 should, of course, be considered in taxation, but it should 
 not be, by any means, the sole object of inquiry.'' On the 
 contrary, the taxing ofi&cer should have power to consider 
 whether an instrument is not unnecessarily long. These 
 taxing masters are persons well acquainted with the sub- 
 ject from actual experience ; they should be clothed with 
 ample powers, and should be guided by some fixed rules, 
 which would be also a guide to the practitioner. 
 
 Some alteration of the present mode of remuneration, I 
 have no hesitation in saying, is the first step to an effectual 
 reform in many departments of the law, as will be more 
 fully shewn in the subsequent chapters of this work. This 
 mode of remuneration enlists the feelings of the profession 
 against many useful changes ; and before they can be car- 
 ried with fairness and justice, the present rules relating 
 to taxation should be remodelled. This, once done, it 
 will be easy to proceed ; and the changes which I propose 
 in the subsequent chapters, must be considered as if this 
 alteration had been made. 
 
 The powers of the new board should also extend to 
 taxing all kinds of professional business, except that 
 arising from actions at law, which is adequately pro- 
 vided for. 
 
 ^ In Scotland, I believe, many transactions are charged on an ad valorem 
 scale. This would be a good ingredient in the instructions to the board. I 
 subjoin, in Note A., some observations of the late Mr. Tyrrell on the sub- 
 ject, in confirmation of wha^is said above. 
 
CHAPTER II. 
 
 ON FACILITATING THE TRANSFER OF REAL PROPERTY, 
 
 The tenure by which freehold lands are held in England, 
 is, on the whole, simple and convenient. A knowledge of 
 it may be acquired without much difficulty, and there is 
 no good reason for altering it. Mr. Humphreys, whose 
 book" is entitled to great attention, shewed successfully 
 that the present system of tenure was artificial ; but this 
 is not sufficient for changing a portion of our law, now 
 well established, and intimately woven into all our dealings 
 with land. It must be shewn that it is practically inju- 
 rious to the public, and to the holder of property, as may 
 be easily shewn with respect to copyhold tenure.*" I see 
 no good reason, therefore, for calling for any change in 
 the tenure of freehold lands. 
 
 The same observation may be made with respect to the 
 doctrine of uses and trusts which, although even more arti- 
 ficial, and indeed, theoretically, unjust, yet is now so well 
 defined and settled, as to lead to scarcely any practical in- 
 convenience. To alter this doctrine, would go far to 
 break up the line of separation between courts of law and 
 equity, which, perhaps, a future age may require, but 
 which it is idle to dispute about at present. I do not, 
 therefore, see any reason for altering either the tenure of 
 freehold land, or the doctrine of uses and trusts, which 
 has been that modification of it which the necessities of 
 society have required. But as respects the transfer and 
 
 " Observations on the actual state of the English Laws on Real Property. 
 London, 1827. 2d Edit. 
 ^ Secpoil, Chup. IV. 
 
rnESENT ASSURANCES. V 
 
 alienation of land from one man to another, whether by 
 way of absolute sale or mortgage, I consider that very 
 extensive alterations may be made with great advantage. 
 
 The present mode of alienating and mortgaging land 
 is not only artificial and inconvenient, but is very ex- 
 pensive, cumbrous, unnecessarily long, and open to tech- 
 nical difficulties. This will probably be admitted by all, 
 but may be easily shewn. 
 
 The assurances now in use, which arc equally applicable 
 to an absolute conveyance, and what is called a mortgage 
 in fee, are, 1. a feoffment; 2. a grant ; 3. a bargain and 
 sale ; 4. a lease and release. A feofi^ment is imperfect 
 without livery of seisin, which is now a mere form, and 
 the whole ancient effect of a feoffment has been much 
 shaken by modern decisions, and it must now be con- 
 sidered as a simple assurance, and is rarely used. A 
 grant is applicable only to the conveyance of reversions 
 and incorporeal hereditaments, but has been nearly super- 
 seded, even for these purposes, by the lease and release. 
 A bargain and sale is invalid, unless there is a pecuniary 
 consideration to raise the use ; but this is, in truth, a mere 
 legal fiction, as five shillings, or a peppercorn, is sufficient. 
 A lease and release (which assurance has almost entirely 
 superseded the other three in practice) was, until recently, 
 dependent for its validity on the lease for a year, which 
 owed its origin to reasons purely technical, and in no way 
 assisted the real purpose of the deed. The necessity for 
 the lease for a year, however, since the recent statute, no 
 longer exists, or rather, it may be dispensed with, by a re- 
 ference to the act." 
 
 ■= The perplexity of the present mode of transfer is well stated by Mr. 
 "Humphreys. Real Property, pp. fi7— 69. After describing the familiar 
 mode of assurance, the appointment and release, he says " it cannot be 
 clearly ascertained under which of the two modes of operation, the convey- 
 ance was meant to take effect. Hence, uncertainty of title, doubtful rights, 
 and tedious and costly litigation." 
 
10 LENGTH OF DEEDS. 
 
 The disadvantages of the present mode of alienation tlien 
 are, that it is still unnecessarily perplexed ; that it eniba- 
 rasses the transfer of property, by making useless techni- 
 calities esspntial to the correct conveyance of property ; 
 tliat it frequently invalidates a title, by reason of purely 
 artificial objections; that its forms are attended with unne- 
 cessary expense and diflSculty ; and that these circumstances 
 greatly interfere with the power which every man should 
 have over his own property. The substitution of a more 
 simple form of transfer, would remedy these inconveni- 
 ences and evils. It should be dependant for its validity 
 on no mere technical grounds. It ought to be easily 
 intelligible, and effect the real purposes intended, A 
 great mass of unnecessary mystery and difficulty, would 
 be thus removed : but this must not be the only change. 
 Not only must the form be stripped of all its useless cere- 
 monies, it must also be greatly abridged in length. 
 
 The complaints respecting long deeds are sufficiently 
 stale, and have been repeated over and over again. This 
 must not prevent me from saying, that although, under 
 the present state of the law, it is far wiser and safer for a 
 purchaser or a mortgagee to have a long deed than a short 
 one, yet, that the existing practice, in this respect, is a 
 grievous hardship on the public. All who have liad 
 actual experience of the present mode of conveying pro- 
 perty, I feel confident, will say, that, as the law now 
 stands, it is very difficult, with safety, to strike a single 
 word out of any long established form ; and that they 
 would prefer, in their own affairs, the burden of length 
 and expense, to the risk and uncertainty of any alteration. 
 But, admitting this in the fullest extent, it does not at all 
 follow, as some would have us suppose, that this extra- 
 ordinary state of things should be suffered to continue. 
 So long as the present system shall last, the careful prac- 
 titioner must employ the forms to which a well known 
 
CHARGES OF SOLICITORS. 11 
 
 meaning is altached, and which have been sanctioned by 
 long usage and experience. But a mode may be suggested, 
 as it appears to me, by which the closest brevity may be 
 obtained, and yet the benefit derived from the ancient and 
 established forms may be retained. Any attempt by prac- 
 titioners to shorten forms would, 1 think, be useless, and 
 fall far short of the mark. The assistance of the legisla- 
 ture must be called in to effect the good work, and, if it 
 be given, I do not think the difficulty would be very great. 
 And here, to prevent any misconstruction of my lan- 
 guage, I must beg to state that I by no means join in the 
 common cry against the charges of solicitors. I have 
 already said, that as the law now stands, any attempt to 
 shorten deeds is attended with a risk which no prudent 
 man, either on his own behalf, or on that of his clients, 
 would encounter. Having had some opportunities of 
 forming an opinion, 1 fully believe, that, as a general rule, 
 this branch of the profession is entirely free from blame 
 in that particular ; and that many are anxious that some 
 plan for shortening deeds might be safely adopted. The 
 question then is — is it not possible, to some extent at 
 least, to preserve the benefit of the ancient and long es- 
 tablished forms, which are now universally employed in 
 the alienation, charging, settling, and leasing real pro- 
 perty, without incurring all the present expense, and spin- 
 ning out the instrument to its present length. All the 
 ordinary transactions in conveyancing, consist simply in 
 adapting certain common forms to the particular case in 
 hand. There are, occasionally, special provisions, but in 
 nine cases out of ten, the ordinary forms will answer the 
 purpose. At all events, the ordinary forms are always 
 inserted, sometimes alone, at other times accompanied by 
 some special clauses. The same forms, with some trifling 
 variations, are employed by all conveyancers, and their 
 sense and meaning are familiar to all professional persons. 
 
12 
 
 SHORT FORM OF GRANT. 
 
 The plan which I would suggest is, not to abrogate 
 these forms, or attempt any short form of deed as a sub- 
 stitute for them, but to enable any person to have the 
 benefit of the forms, without inserting them in the par- 
 ticular instrument ; and the mode of doing this would be 
 to incorporate the forms common to all instruments of 
 the particular class, in a series of acts drawn for the pur- 
 pose. Let us take, for instance, a common conveyance of a 
 piece of land, from A. to B., ^purchase deed, as it is usually 
 called. In an ordinary case, first comes the description of 
 the parties : then, the recitals (which are not necessary) ; 
 then the testatum, whereby A., in consideration of the 
 sum agreed to be paid, grants tlie land to B., to hold to 
 him and his heirs for ever, or as it may be; and then come 
 the covenants for title, which are a mere common form. 
 I propose, instead of this deed, to substitute the following 
 form, to be called 
 
 Grant, by virtue of Stat. Vict. t. 
 
 Column 1. 
 
 Column 2. 
 
 Column 3. 
 
 Column 4. 
 
 Name and De- 
 scription of ven- 
 dor, and date of 
 signature. 
 
 Witnesses. 
 (2 witnesses.) 
 
 N'ame and De- 
 scription of pur- 
 cliaser, and date 
 of signature. 
 
 Witnesses. 
 (2 witnesses.) 
 
 Consideration 
 
 money. 
 £ 
 
 Description 
 of property con- 
 veyed. 
 
 And to insert this form in the schedule to the act, and 
 then to enact 
 
 1 . That it shall be lawful for any person selling, and 
 for any person purchasing land, to employ the form con- 
 tained in the schedule to the act. 
 
 2. That in the first column shall be inserted the name 
 and description of the vendor ; in the second column, the 
 name and description of the purchaser ; in the third co- 
 lumn, the consideration money actually paid ; and in the 
 fourth column, or on the back of the instrument, the de- 
 scription of the property conveyed. 3. That the signatures 
 
SHORT FORM OF GRANT. 13 
 
 of the parties shall be respectively attested by two wit- 
 nesses. 4. That from the date of the signature of the ven- 
 dor, the land shall be well and effectually vested in the 
 purchaser, and his heirs for ever, free from the dower of 
 any present or future wife. 5. That the grant of the lands, 
 tenements, and hereditaments, in the fourth column, shall 
 include all ways, &c. {repeating the common form) . And 
 the reversion, {common form) . And all the estate {common 
 form.) 6. That the person whose name is inserted in the 
 first column of the form, doth, by adopting the form in 
 the schedule to the act, and signing his name therein, 
 covenant for himself, &c. {repeating the words of the usual 
 common form of covenants for title) . If the parties desired 
 any special clause, it might be inserted, either in the same, 
 or a separate piece of paper; or if it was wished to alter 
 any of the statutory forms, this might also easily be done. 
 After much time and reflection, bestowed in endea- 
 vouring to see what legal objection there could be to 
 an instrument of this nature, and conversation with pro- 
 fessional friends on the point, I am unable to find any. 
 On the other hand, it would be a short, simple, document, 
 free, as far as possible, from any technical error, and ren- 
 dered valid by the act on which it was founded, and to be 
 construed by that act, which would preserve entire the 
 long established forms of conveyance. It would, of course, 
 be necessary to stamp it ; and I have thought it also ne- 
 cessary that two witnesses should attest the signature of 
 the parties. The plan once commenced, it would be easy 
 to extend it. The usual rules adopted by the profession, 
 as to covenants for title, might be adopted by the legisla- 
 ture. Thus it might be provided, that when a vendor 
 conveys, if he has a title which he claims under a pur- 
 chaser for a valuable consideration, the act of conveyance 
 should imply covenants only as against his own acts. 
 That when the vendor comes in under a will, that the 
 
14 SHORT FORMS OF SETTLEMENT AND MORTGAGE. 
 
 same covenants should be implied as against his own acts, 
 and those of the testator from whom he derived the pro- 
 perty. That when he claims by descent, the implied 
 covenant should relate to the acts of his ancestors; but 
 that it should be open to the parties to vary this statutory 
 liability in any manner they pleased. In the same man- 
 ner, it seems obvious, that the necessity of inserting 
 many of the usual clauses in marriage settlements might 
 be dispensed with by similar enactments, which, however, 
 should be contained in a separate act. Thus, in settle- 
 ments of real estate, the tenant for life, by virtue of his 
 estate, should, when of age, have the usual powers of 
 leasing, jointuring, and portioning younger children. 
 Where portions were raised, or raisable, the parents or 
 trustees might have power to maintain and educate the 
 children, and advance portions, &c. Again, in the event of 
 the death or disability of the trustees, or their unwilling- 
 ness to act, it should be lawful for the tenant for life, or 
 in case of his disability, the surviving or continuing trus- 
 tee, to appoint a new trustee, and the appointment of the 
 trustee by the proper party should vest"* the trust pro- 
 perty, whether real or personal, just as the appoint- 
 ment of the assignees of a bankrupt or an insolvent 
 debtor now vests the bankrupt's or insolvent's property 
 in him. 
 
 A similar act would be particularly applicable to the 
 usual clauses in mortgage deeds. A short form of this 
 
 ■• I had the honour of introducing into the House of Commons, a bill having 
 this object, as far as charitable trustees were concerned, in the session 1841 
 which passed the House of Commons, and was only postponed in the Lords 
 on account of the lateness of the session. See the debates on it, Hansard 
 vol. .'57, S29 ; and 58, 1375, H. C. ; and H. L. vol. 58, 1514. The bill will 
 be found in the Appendix, Note B. A general act of this nature, applicable 
 to all trustees, would be a very desirable measure. See the correspond- 
 ing clauses as to banknipts, 1 & 2 W. 4, c. 56, s 26 ; and as to insolvents, 
 1 & 2 Vict. u. 110, s, 3" ; and sec further, as to settlements. Note C. 
 
SHOUT FORM OF LEASE. 
 
 15 
 
 nature, which should clothe the mortgagor and mortgagee, 
 and the land mortgaged, with the liabilities now given 
 them by the mortgage deed, would be, at the present 
 moment, of incalculable benefit. The doubt* which recent 
 decisions have thrown on what were called equitable mort- 
 gages by deposits of title deeds, have almost put a stop to 
 these transactions, which were resorted to chiefly by per- 
 sons in trade, simply to save time and expense ; but if a 
 short and safe form could be readily adopted, how much 
 advantage would result from it ! 
 
 But, perhaps, the benefit of the plan I propose, would 
 be most extensively felt by extending it to the most ordi- 
 nary transaction connected with real property, a lease ; to 
 which it is peculiarly applicable, as almost all ordinary 
 leases are notoriously in the same form. I will show, 
 therefore, as briefly as possible, how much trouble, expense, 
 and hazard might be saved, by adopting a form of the 
 kind I propose, as a substitute for a lease. The ordinary 
 form of a lease is familiar to us all. I propose to substi- 
 tute in its place the following form : 
 
 Lease, by virtue of Stat. 
 
 ViCT. L. 
 
 • 
 
 Column 1. 
 
 Column 2. 
 
 Column 3. 
 
 Column 4. 
 
 Column 5. 
 
 Name and 
 
 description of 
 
 lessor, & date 
 
 of signature. 
 
 Witnesses, 
 (2 witnesses.) 
 
 Name and 
 
 description of 
 
 lessee, & date 
 
 of signature. 
 
 Witnesses, 
 (2 witnesses.) 
 
 Amount 
 of rent re- 
 served. 
 
 Number 
 of years for 
 which lease 
 
 is made. 
 
 Description 
 
 of property 
 
 leased. 
 
 And then I propose to enact, 1 . That it shall be lawfal 
 for any persons desirous of effecting a lease of any pro- 
 perty, of any kind whatsoever, to adopt this form, which 
 should be given in a schedule to the act, for that purpose. 
 2. That the property described in the 5th column of 
 the said form shall be understood to comprise all and 
 singular out- houses, buildings, &c. (common form), and 
 
]6 SHORT FORM OF LKASK. 
 
 that the lease shall take effect from the date of the signa- 
 ture of the lessor in the first column. 
 
 3. That the rent specified in the third column shall 
 be payable during the term of years mentioned in the 
 fourth column, in the lawful money of Great Britain, by 
 four equal quarterly payments, on the 29th of Sept., &c. 
 (the usual quarterly days), free from all rates, taxes, and 
 impositions whatsoever, whether parliamentary or paro- 
 chial ; the first quarterly payment to be made on the first 
 of such days as shall happen next after the date of the 
 signature of the lessor. 
 
 4. That by the adoption of the said form, and by sign- 
 ing his name in the second column of the said form, the 
 person so signing his name doth thereby covenant for 
 himself, his heirs^ and assigns, with and to the person 
 whose name is signed in the first column, his heirs, execu- 
 tors, administrators, and assigns, (according to the nature 
 of the property demised) ; that he the said person, whose 
 name is signed in the first column of the said form, his 
 executors, administrators, and assigns, shall and will, from 
 time to time, and at all times during the continuance of 
 the term mentioned in the fourth column of the said form, 
 well and truly pay, or cause to be paid, to the person whose 
 name is signed in the first column of the said form, his 
 heirs and assigns, the yearly rent or sum of money, men- 
 tioned in the third column of the said form, by four equal 
 quarterly payments on the days herein before mentioned, 
 for the payment thereof; free and clear from all taxes, 
 charges, impositions, and deductions whatsoever. And 
 then enact, in the same manner, that "by the adoption 
 
 ' Where the lessor had only a leasehold interest, and the rent would ac- 
 cordingly accrue to his executors, this might either he provided for by an 
 express provision, to be inserted in the form, or another set of enactments 
 might be made, applicable to that case. Of course, the above is only given 
 as a rough outline of wliat might be done. 
 
SHORT FORIVL OF LEASE. 17 
 
 of the said form, and signing his name in the second 
 column of the said form, the person so signing his name 
 doth thereby covenant [to pay taxes, to repair, to paint 
 outer work every three years, with two coats of good oil 
 colour ; to paint inside every seven years ; to insure the 
 premises for their full value in a respectable insuraiice 
 society, and to produce the receipt for the insurance pre- 
 mium, and lay out the money recovered upon the premises ; 
 that the lessee would not carry on offensive trades, and 
 would, at the expiration of the term, leave the premises in 
 repair] . Then enact "that it should be lawful for the person 
 so signing his name in the first column of the said form, 
 his heirs or assigns" [to enter upon the premises demised 
 twice a year, to view the state of repair, and to give no- 
 tice to lessee to repair ; and also power for lessor to enter 
 upon the premises if default should be made in the pay- 
 rfient of rent for tiventy-one days, or on non-performance 
 of any of the covenants.] And then enact that by the 
 adoption of the said form, the person so signing his name 
 in tlie first column of the said form, doth thereby cove- 
 nant with the person signing his, name in the second 
 column, his executors, administrators, and assigns, that 
 he the said person so signing his name in the second 
 column, his executors, administrators, and assigns, paying 
 the yearly rent in the third column of the said form, 
 and observing and performing the covenants hereinbefore 
 referred to, shall and may quietly and peaceably have, 
 hold, and enjoy the premises mentioned in the fifth 
 column of the said form, with the appurtenances, during 
 the term mentioned in the fourth column, without any 
 lawful let, suit, interruption, or disturbance whatsoever, 
 of, from, or by the said person whose name is signed in 
 the first column, his heirs or assigns, or any other person 
 lawfully claiming or to claim, by, from, or under him, them, 
 or any of them. 
 
 c 
 
18 ADVANTAGES OF THK FLAK. 
 
 These are some of the most usual forms which are in- 
 serted in a lease There are some others less usual, but 
 which are very common. The benefit of these might easily 
 be obtained byreference to another form, " Lease No. 2," by 
 virtue of statute Vict. c. . So " Lease No, 3," contain- 
 ing the usual clauses in a farming lease, might easily be 
 framed. Where it was desired to alter any of the statutory 
 liabilities, it might be done by a short proviso added to the 
 form. Thus, say it was wished that instead of painting 
 outside every three years, as is very usual in towns, it were 
 wished to paint every four years, a clause might thus be 
 added to the form, for which space should be left for that 
 purpose: "Jt is also agreed between the said parties 
 whose names are signed in the first and second columns, 
 that instead of painting the said premises mentioned in the 
 fifth column of the above form every three years, the 
 said person whose name is signed in the first column, 
 is to paint them once every four years ; but in all other 
 respects the persons whose names are signed in the first 
 and second columns are desirous of adopting the said sta- 
 tute Vict. c. , and are desirous of being bound 
 thereby." Or, if it were wished to add any clause to the 
 form, this would be even more easy ; or it might be 
 enacted that the benefit of the act should be obtained by a 
 simple reference to it. 
 
 The advantages of the plan that I have proposed, are 
 
 1 . That much unnecessary expense and verbosity would 
 at once be saved. 
 
 2. That the ancient and established forms to which a 
 recognised meaning is attached, would be preserved, and 
 their whole benefit obtained. 
 
 3. That much less hazard would be incurred of tech- 
 nical blunders, arising from carelessness or ignorance. 
 The rights of each party to the instrument would be 
 clearly defined. 
 
ADVANTAGBS OF TFIK PLAN. 19 
 
 Lastly, say that the plan had not these or any other 
 advantages, as it would be optional for parties to adopt 
 the forms provided by these acts, no harm whatever would 
 be done, and the old forms would still be used, as they 
 would still be inevitably, in any case to which the act 
 was not applicable. 
 
 These being the advantages of the plan, as I conceive, 
 let us consider the disadvantages. 
 
 The first that may be suggested is, the effect that the 
 change, if extensively adopted, might have on the revenue, 
 by shortening the present deeds. This, which is obviously 
 not an objection of principle, I do not think entitled to 
 great attention. The present revenue from convej^ancing 
 transactions, is chiefly derived from the ad valorem duty, 
 which would be unaffected. The falling off in the length 
 of the deeds would be amply compensated by the increased 
 circulation which would be given to land, and the great 
 facility thus given to its alienation. And this, if I am not 
 much mistaken, is or was very recently the opinion of the 
 authorities at the stamp office. It is, however, well worthy 
 of consideration, whether the revenue now derived from 
 the alienation of land might not be more advantageously 
 raised by a duty on its devise and descent. Funded, and 
 other personal property, may be alienated without any 
 duty being payable ; but large duties are payable on the 
 death of their owner, in the shape of probate and legacy 
 duty. The proposed change would render the duties 
 uniform, and would be a decided boon to the landed in- 
 terest, and operate considerably to advance the value of 
 land.^ 
 
 But a more formidable difficulty, if I mistake not, would 
 be the opposition of the profession. The most obvious 
 and natural professional objections would be, the reduction 
 which it must cause, according to the present rate of 
 
 ' See, as to this, tlie observations made by Mr. Tyrrell, Note D. 
 
 c-2 
 
20 NECKSsrry for a refohm of thk law. 
 
 chhrging, in the emoluments of conveyancers and solici- 
 tors. It must be remembered, however, that I have, as a pre- 
 liminary step, called for an alteration in the present mode of 
 charging.^ But, independent of this change, it must be 
 seen at once by all men who are not romantic and fanciful, 
 or hypocritical, that it cannot be expected that this part 
 of the profession should be very cordial towards a scheme 
 which would greatly interfere with their lawful gains ; 
 and I will at once confess (whatever want of heroism or 
 patriotism I may shew), that if I thought the plan which 
 I advocate would materially interfere with the profits of 
 the profession, I would not advocate it. It appears to me, 
 however, that the security, and even the increase of those 
 profits, depends on the adoption of this, or some similar 
 measure. 
 
 In the first place, as to this, I think it must be admitted 
 that a reform in the law must take place ; and if not from 
 within, from without. The evil day may be deferred ; but 
 the time for the reform of the law must come, if it have 
 not already arrived. It is absurd and mischievous for 
 lawyers to shut their eyes to this fact. However anxious 
 therefore, we may be, to keep things as they are, we must 
 learn that it is no longer possible. We have, as yet, time 
 to remedy the real abuses which exist, and we must do 
 this to save the great fabric of our legal institutions from 
 destruction. This has constantly been enforced by all 
 men who have considered the subject ; but I shall here 
 only refer to the enforcement of the principle, by a refer- 
 ence to the work of Sir Matthew Hale, entitled " Consi- 
 derations touching the Amendment of the Law ;" printed 
 in Mr. Hargrave's Collections of Law Tracts, in which 
 the reader will find this principle urged in language equally 
 forcible and eloquent. 
 
 ' See ante, Chap. I. 
 
THJ4 MIDDLK CLASSES THK BEST CUSTOMERS. 21 
 
 Now I think it can hardly be disputed, that the present 
 expense attending the transfer of property, is one of the 
 abuses which requires remedy. It is well known that the 
 most ordinary transaction connected with real property is 
 attended with great cost ; and that this state of things has 
 drawn upon the system the attention and complaints of a 
 large portion of the community. 
 
 If, therefore, the change in the present system, which I 
 have ventured to advocate, will have the effect of mate- 
 rially lessening the profits of the practitioner, I think it 
 must, nevertheless, for these reasons, be submitted to ; but 
 I am perfectly satisfied that it will have no such effect. 
 
 At present, as every body knows, a strong feeling exists 
 against having any thing to do with the " lawyer." There 
 is a disinclination to invest money, particularly small 
 sums, in land, on account of the expenses connected with 
 it. This state of tilings operates greatly against the prac • 
 titioner ; and in these times this is a feeling rather likely 
 to increase than diminish. 
 
 It appears to me, therefore, absolutely necessary, for the 
 benefit of all parties, to restore perfect confidence between 
 the practitioner and the public ; and were it once possible 
 that lands could be bought, sold, and charged with facility, 
 and at moderate expence, I have little doubt that all par- 
 ties would find it to their advantage. If the practitioner 
 made less by each separate transaction, he would have more 
 of them ; besides, his present expense would be greatly 
 diminished. If he had not so much copying to do, he 
 must remember that he would require fewer clerks, and 
 less room. The public would no longer be frightened at 
 the thoughts of a lawyer's bill, for it would lose its ter- 
 rors ; and this would operate quite as much in favour of 
 the lawyer as his client. 
 
 The effect of the present system is, to drive out of the 
 market the greater part of the middle classes. So far as 
 
22 THK MIDDLE CLASSES THJS BEST CUSTOMER*. 
 
 conveyancing is concerned (except, perhaps, in the ordi- 
 nary transactions of a lease or a will), the solicitor gets 
 nothing from the great bulk of the middle classes, who are 
 in all other trades and professions the best class of cus- 
 tomers. No man having two or three hundred pounds 
 which he wishes to invest, unless he have land already, 
 thinks of investing it in land. He is deterred mainly from 
 this by the expense which attends the transfer to him. 
 He can purchase a 100^. worth of stock, and pay only half- 
 a-crown, but if he buys land, he does not know how much 
 he shall have to pay. If it was only a little more, if the 
 expense were defined, he would prefer land. It is more 
 secure than stock, and it is more grateful to the ordinary 
 feelings of human nature, to possess land than funded 
 property. The present expense attending the transfer of 
 land, and that alone, prevents the gratification of these na- 
 tural wishes ; but it also excludes from the office of the 
 solicitor his most valuable class of clients. The man of 
 thousands can now afford to buy and sell land ; the man 
 of hundreds cannot j but for one man of the former class 
 there are at least twenty of the latter. The alteration 
 that I propose, if it were successful, would increase the 
 general business of the solicitor to an immense extent ; — 
 if it were not successful, no harm would be done to him. 
 I am not so visionary as to suppose that these acts, if 
 passed, would make " every man his own lawyer." Law- 
 yers would still be employed. Their charges might be 
 reduced, and they might be paid on a different and better 
 principle; but for one client that they now have, they 
 would then have ten. 
 
 Nor is it probable, if these acts were passed, that they 
 would at once come into extensive operation. But they 
 would put at every one's disposal who wished to adopt it, 
 a short and safe form for ordinary and small transactions. 
 It is here that they would be adopted with most advan- 
 
SMALL HOLDINGS. 23 
 
 tage ; and they might at first, if this were thought advi- 
 sable, be restricted to them,B for many of these, it is well 
 known, will not pay for a long form, and the practitioner 
 sometimes runs the risk of losing his client, if he charges 
 the full price. 
 
 I have hitherto confined my view of the advantages of 
 the plan I propose, to the saving of expense, and the fa- 
 cilitating the carrying on many of the ordinary transac- 
 tions of life ; but might I not take higher ground ? Are 
 there not more enlarged i^iews of policy involved in this 
 question ? Would it not be of great advantage to the 
 community at large, to give to the poorer and middle 
 classes the power of obtaining some small stake in the 
 country ? The bold peasantry of former times were the 
 owners of their small holdings ; and down to the present 
 day, although the number of such persons is much re- 
 duced, many small pieces of land have remained in the 
 hands of the same parties for many generations, being 
 their chief subsistence. This class of persons, it appears 
 to me desirable to increase, and nothing would tend to this 
 so much, as facilitating, as far as possible, the investing 
 small sums of money in land. No sooner does a man 
 acquire a fortune in any trade or profession, than, as a 
 general rule, he hastens to invest some portion of it in 
 land. I would give every facility to the poorer man to in- 
 dulge in the same feeling, which rises as frequently in his 
 breast as in that of the richer man. It has been said that 
 land should pass as readily from hand to hand, as a twenty 
 pound note; and although this may not be possible, I am 
 certain it may be made to pass much more easily than at 
 
 » I had prepared a bill " to lessen the expense attending the transfer of 
 freehold purchases of lands of small value," and I proposed to have con- 
 fined it to purchases where the consideration was under 300A Leave was 
 given by the House of Comnions, in the session of 1841, to introduce the hill, 
 but the early close of that session, and the subsequent dissolution, prevented 
 its introduction. I have printed an outline of the bill in Note E. 
 
24 PLAN MAY BK IMPUOVEO. 
 
 present; fclvery owner of land should, at any rate, be 
 able to make it answer his reasonable purposes. At pre- 
 sent, the undoubted and indefeasible owner of a good 
 estate may, in his hour of need, have no power of turning 
 it into value, by reason of the unnecessary restrictions 
 which enibarass its sale, or even the charging it with a 
 sum for his necessities. This state of things is no ordi- 
 nary grievance. I have endeavoured to point out a re- 
 medy ; it may be an iusufi&cient, but it is not an imprac- 
 ticable one. It might be tried without injury to any one, 
 and, I doubt not, may be greatly improved upon. It is 
 with this view that I have ventured to print, in a note, tlie 
 outline of one of the bills intended to carry out the plan ; 
 and to this I respectfully invite the candid criticism of the 
 profession. The best way to discern the difficulties of any 
 untried scheme, is to draw a bill for carrying it into effect ; 
 and I have done this with the sincere hope of having those 
 errors in the plan pointed out, which I cannot myself so 
 readily perceive ; and I shall be quite content if I shall 
 have suggested to some other person a hint on which he 
 may found a less imperfect project. It is obvious that 
 ^ny act that might be passed on a subject so purely tech- 
 nical, would be peculiarly liable to imperfection in the first 
 jnstance ; but the difficulties which occurred in working- 
 it, when seen, might easily be amended by subsequent 
 acts 5 and it is to be remembered that the deeds now in 
 use are not free from a liability to technical errors or omis- 
 sions, which often entirely invalidate them, and that these 
 can in no way he amended; but that if the plan which I 
 have proposed were found imperfect, the form founded on 
 the act might be reached by the omnipotence of Parlia- 
 ment, not by an amendment of the form, but by an amend- 
 ment of the act. Doubtless, however, these acts, if at- 
 tempted, should be drawn with great care, and should be 
 the result of the labour and experience of many, and not 
 
ACTS HOW TO BE FRAMED. "JO 
 
 of one. They should be framed on two principles ; 1st, 
 they should allow persons using the form to have the bene- 
 fit of the well known and long established forms appli- 
 cable to his case. 2. They should contain statutory pro- 
 visions applicable to all persons in particular situations. 
 To give a familiar instance of each of these : the persons 
 using the form of grant already given, should, by using the 
 form covenant for title, according to the words given by the 
 act (which should be the usual string of covenants appli- 
 cable to their case) ; but in the act relating to settlements 
 it would be well to provide generally, as applicable to all 
 trustees, that their receipts should be sufficient discharges, 
 and that they should be saved harmless from all involun- 
 tary loss, and other clauses, which are called "the usual 
 trustee clauses." 
 
 I may say, in conclusion, that I am not aware that this 
 plan has been before proposed. Mr. Tyrrell's suggestions, 
 which I have printed in a note, come,'' I think, the nearest 
 to it; but I do not think that it has been before suggested 
 to employ a very short form, ivhich would give those who 
 used it the benefit of the established long forms ; for in 
 this consists the merit, if any, of the plan. 
 
 >■ See Note C. 
 
CHAPTER III. 
 
 THE COURT OF CHANCERT. 
 
 Reform in Chancery may be conveniently divided into 
 three principal heads. 1. The proceedings in a cause 
 preparatory to the hearing. 2. The hearing. And 3. The 
 proceedings in a cause subsequent to the hearing. In the 
 following observations very little need be said with respect 
 to the second of these heads. The grievances attending 
 the hearing of a cause have been effectually removed by 
 the Stat. 5 Vict. c. 6, the act for the appointment of two 
 new equity judges. 
 
 A case was made out in the opinion of most persons 
 who had considered the subject," by the evidence taken 
 before the Select Committee of the House of Lords in 
 1 839, for the appointment of these judges. Their appoint- 
 ment has been so far justified, that the new staff of equity 
 judges have already been able to remove one great blot 
 heretofore fixed on the administration of equity, the length 
 of time which existed between a cause being set down for 
 hearing, and it.s being heard ; and thus one very important 
 stage of a cause will be greatly facilitated ; but it will be 
 admitted by all acquainted with the subject, that this is 
 only one of the many evils in the progress of a cause, and 
 the public is now prepared to have some effectual relief 
 afforded to all the other evils. Admitting then the advan- 
 tage, to its fullest extent, to be derived from the Equity 
 Judges' Act, I am desirous of enquiring as to those other 
 stages of a suit which will not be relieved by it. 
 
 ■ It is proper to state that Lord Brougham has all along ronsidered one 
 new judge as sufficient. 
 
RECENT REFORMS. 27 
 
 Besides the appointment of tlie equity judges, another 
 important step has been taken in the progress of Chancery 
 Reform. Ijord Cottenham, with the concurrence of the 
 Master of the Rolls, issued, in the Autumn of 1841, some 
 orders for the regulation of suits. These orders deserve 
 great praise ; they are, in every respect, a step in the right 
 direction. By them, some of the most grievous rules 
 vrith respect to parties to suits in equity, are rectified. 
 They will, in this respect, diminish the expense and delay 
 previously attending them. They also rectify some of the 
 most glaring evils in the present system of equity plead- 
 ing ; and they have this great merit, that they seem clearly 
 intended only as an instalment; that they assist, but in 
 no way preclude, a further reform, both in practice and 
 pleading. But it is contended by no one, I believe, that 
 these orders effectually remedy all the evils now affecting 
 the Court of Chancery. 
 
 Another very useful step towards a complete reform in 
 Chancery, was taken by the legislature in the last session 
 of parliament, by passing the statute 6 & 6 Vict. c. 103, 
 already adverted to,*" for which the country is chiefly in- 
 debted to the present Master of the Rolls. By this act, the 
 offices of the six clerks, the sworn clerks, the waiting 
 clerks, and others, are abolished, and a new and efficient 
 staff of officers created to perform their duties. The tax- 
 ation of costs is to be under the management of a new 
 body— the taxing masters; and the Lord Chancellor is 
 authorised to issue orders for regulating the future prac- 
 tice, in lieu of that of the offices abolished. 
 
 Besides these reforms actually effected, it is well known 
 that two of the judges of the Court of Chancery, and one 
 of the most eminent of her Majesty's counsel, have (al- 
 though not, I believe, formally constituted into a commis- 
 
 ** See ante, p. 1. 
 
28 SUITS FOR £\00. 
 
 sion) been engaged, under the authority of the Lord Chan- 
 cellor, in considering the whole subject of Chancery Re- 
 form. The first fruit of their deliberation is the Chancery 
 Offices Act ; and as well from their long experience and 
 peculiar fitness for the duty which they have so generously 
 undertaken, as their power to carry what they shall pro- 
 pose, the most beneficial results may be expected. It is 
 to them that these observations are respectfully submitted, 
 not as containing (to them, at any rate,) any novelty, but 
 as giving in a printed form, some of the reasons for the 
 alterations proposed. It is admitted, then, that great 
 improvements have been effected ; but the question arises, 
 will they substantially reduce the expense and delay now 
 attending a suit in Chancery ? Many claims for sums of 
 100^. and 200/., can only be enforced by means of the 
 Court of Chancery. There is, confessedly, in these cases, 
 a denial of justice, by the means of the present machinery. 
 Is this state of things which renders this court a mockery 
 to the poorer and middle classes of society, materially al- 
 tered by the reforms I have mentioned ? 
 
 Admitting that the hearing of original causes has been 
 facilitated, and some parts of the present system of prac- 
 tice and pleading improved, yet it is to be feared that the 
 main question remains as it was. And let it not be sup- 
 posed that even the evil of delay has received any thing 
 but a temporary mitigation. The disease will soon break 
 out in some other place, or in some other stage of the 
 cause ; there will either be an arrear of appeals in the 
 Lord Chancellor's Court, or the Masters' office (already 
 in so unsatisfactory a state) will be choked with business ; 
 and to this stage of the cause, whatever it may be, the 
 fraudulent client, whose business it is to delay, will resort 
 as an instrument of oppression. 
 
 I do not mean to say that, even as at present consti- 
 tuted, the Court of Chancery is not the instrument of 
 
SUITS FOK ^ICO. 29 
 
 much good — that the principles of equity there adminis- 
 tered, are not most admirable— that where there is plenty 
 of money, and even where there is not, if the parties to a 
 suit are honest, and are only desirous of availing them- 
 selves of the real uses of the court as a tribunal of justice, 
 that it is not in many cases adapted for the purpose ; but 
 I do venture to assert, that where there is fraud, (and 
 courts of justice, it is to be remembered, were made for 
 rogues, and not for honest men ;) and more especially in 
 administrators' and creditors' suits, the machinery and 
 practice of the court may still be made the instrument of 
 great injustice ; and I do say further, that for the reco- 
 very of small sums, or the remedy of small grievances, 
 the Court of Chancery is useless altogether. 
 
 I do not think that it was ever intended to shut the 
 door of this court against the 50/., or the 100/. suitor. 
 There are many such, and they are wholly remediless in 
 the Court of Chancery with the existing machinery. At 
 any rate, I think the end and aim of all future efforts 
 towards Chancery reform, should be to enable suitors of 
 this description to obtain justice, and to render the court 
 subservient to their just demands. Let us see, therefore, 
 whether a better mode cannot he devised, than now exists; 
 and whether all the existing intricate and expensive ma- 
 chinery of the court is necessary to arrive at the recovery 
 of legacies or debts of 60/. or 100/. 
 
 And, first arises this question— Is there no other tribu- 
 nal, in which property involved in debt and conflicting 
 claims may be litigated, which has a machinery adapted 
 to detect and defeat fraud, and to secure property against 
 fraudulent owners ? There is the Court of Bankruptcy. 
 And how long does it take to secure the assets there } 
 Every trader in the city of London knows that a fiat in 
 bankruptcy is a very summary proceeding."^ Why should 
 
 <: As evidtnce of this, see a letter addressed to tie Editor of the Times, of 
 
30 PROCEEDINGS IN BANKRUPTCV. 
 
 not every executor be liable to a similar call ? If honest, 
 he can have nothing to fear ; if dishonest, the sooner he 
 is called to account the better. In the great majority of 
 the cases which come bifore the Court of Chancery, all 
 that is wanted is to administer the assets, there is nothing 
 for the court to decide ; but parties are now obliged, whe- 
 ther they will or not, to take the expensive machinery of 
 
 the 21st Nov. 1840, by Mr. Commissioner Fane, who points out the superi- 
 ority of the Court of Bankruptcy, so far as saving of expense is concerned. 
 He first states the expense of a certain cause in the Court of Chancery. 
 " Before 1835, a sum of 1250/. was held by trustees, tipon trust for a lady 
 for life, with remainder to her daughter. In 1835, the lady died, meanwhile 
 the daughter had married, and her husband had become bankrupt ; and 
 hence, on the death of the lady, the beneficial interest in the fand passed to 
 the husband's assignees in right of his wife, subject, however to what is 
 called ' the wife's equity to a settlement,' which means a right in the wife's 
 trustees to resist payment of the funds to the husband, or any one claiming 
 under him, without some reasonable provision being made out of it for the 
 subsistence of the wife and her children. In all such cases there can be no 
 doubt as to the equity ; and the only question that can arise is, as to the 
 proportions in which the fund shall be divided between the wife and chil" 
 dren, and the husband's creditors ; yet to solve a question of this sort, al- 
 though it is a question of discretion and common sense only, not of law, a 
 Chancery suit is necessary ; in other words, there must be a bill, several 
 answers, briefs for the hearing, a reference to the master, a master's re- 
 port, briefs on further directions, and a final order ; all these papers being 
 paid for at so much per folio. In the case to which I allude, there was no 
 dispute, and the cause was heard by consent as a short cause, and therefore 
 the delay and expense were reduced to the lowest point possible ; hence the 
 delay was one of three years only, and the expenses only 289/. 2s. 3d., the 
 plaintiff 's costs being 112/. 9s, 9d., the trustees' costs 60/. 3s. 6d., the bank- 
 rupt's costs 45/, 12s. 8(/., and the assignees' costs 70/. 16s. 7d." " Certain I 
 am," he continues, " that had the question which arose in the case 1 have 
 detailed, come before a Commissioner of the Court of Bankruptcy, he would 
 have decided the matter in one week, not in three years, and at an expense 
 not exceeding 10/. instead of 289/. 2s. 3d." He afterwards adds the follow- 
 ing postcript. " P.S. Il is a singular circumstance, that since writing the 
 above, the very case has come before me by consent, and I decided it, ap- 
 parently to the satisfaction of all parties, in less than ten minutes, and with 
 no other expense than the usual fee for the attendance of an attorney for 
 each party. It may be thought strange that a Chancery suit should have 
 been dispensed with j tlie explanation is, that the fund was rather less than 
 300/., and would therefore scarcely bear Chancery squeezing." 
 
PUUTIIFR REFORMS REQUIRED. 31 
 
 the Court of Chancery. There should be a ready power 
 of deciding any point which the parties choose to bring 
 before the court, but if no point arise, the estate should 
 be administered at once, and not be tied up five or six 
 years, as at present. The machinery of the court should 
 be constituted as a sieve ; it should let the small suits slip 
 through, and stop only the large and knotty ones. Why 
 should an executor not be called before a proper officer of 
 the court, and be put through something of the same kind 
 of examination that a bankrupt now undergoes ? And 
 why need this be an expensive proceeding ? We can 
 novr hardly separate great expense from our idea of such 
 a proceeding, because we associate it with the Court of 
 Chancery ; but a macliinery might be constructed, in con- 
 nection with the Court of Chancery, for recovering 50/. at 
 the expense of 10/. at the utmost, where there was nothing 
 to be litigated, but the mere fact of having the money ; 
 and if it could be so recovered, it would not, in most 
 cases, be withheld. To construct this machinery should 
 be one great end and aim of all Chancery Reform, The 
 public demands it, and if the profession be well advised, 
 it will demand it too ; and I believe it does. 
 
 I assume, then, for the purpose of this inquiry, that a 
 great change in the present practice of the Court of Chan- 
 cery is absolutely necessary, which must reach beyond the 
 judicial establishment of the court; that the evil has 
 arrived at so great a height, as to be intolerable : and that 
 the public mind is prepared for very considerable further 
 alterations. The changes, then, which I propose, and 
 wish to make the basis of all future operations, are, 
 1. The dispensing with bills, answers, decrees, and re- 
 ports, whenever they are useless ; that is to say, power to 
 work a suit in Chancery from beginning to end, without 
 them. If the parties like them, well and good : that is 
 another matter ; but if they do not, give them the power 
 
32 DISPENSING WITH BILI S. 
 
 of letting them alone. 2. The reform of the masters" 
 offices ; each of these in their turn. 
 
 1. The dispensing viilh hills, answers, decrees, and re- 
 ports, zvhenever the prtrties do not choose to have them. 
 The object of 3-4ths of all the bills now filed, is not to 
 obtain the opinion of the court on the matters in- 
 volved in the suit, but simply to obtain a reference to the 
 master as to them ; or take accounts, or do other matters 
 which are directed by the court as of course. Why not, 
 then, leave the power as to these, of going to the master 
 or other person competent to do the duty at once ? In 
 very many cases, the present mode of proceeding is as 
 follows : — All the facts in the case are perfectly well 
 known to all parties, and not only known, but admitted 
 by all : but it is, according to the practice now in use, 
 necessary to state them in the pleadings, at least three 
 times, and generally many more before the cause CDmes 
 into court. Thus, let us take the first bill that comes to 
 hand. What does it state ? John Smith is possessed of 
 considerable personal estate; John Smith makes his will; 
 John Smith dies ; John Smith's will is proved ; John 
 Smith's executors take possession of his personal estate : 
 then come applications to the executors to pay the debts 
 or legacies ; then all this, with sundry charges of confe- 
 deracy with divers unknown persons, is sometimes re- 
 peated over again in the shape of what are called charges 
 and pretences ; but it is always again repeated at much 
 greater length in what is called the interrogating part of 
 the bill ; and the executor and other parties to the suit 
 are asked whether John Smith was not possessed of con- 
 siderable, or any and what personal estate ? and if he did 
 not die at the time mentioned, or at some other and what 
 time ? and whether his will was not pi'oved ? and if not, 
 why not, or how otherwise ? &c, &c. Now the executors 
 do not dispute all this, nor does any party to the suit. 
 
DISPENSING WITH BILLS. 33 
 
 They put in an answer in which tkey admit all the facts 
 stated in the bill, which are in general repeated all over 
 again, and severally admitted, and they say that they are 
 willing to act as the court shall direct, or they submit 
 some point to the court, &c. 
 
 But all this is to enable the parties to get a decree to 
 have the accounts taken. And is it necessary to take this 
 course for this purpose ? Where there is any point for the 
 court to decide, it should be brought before the court in 
 the proper way, as I shall hereafter mention ; but I am 
 speaking of suits where the only object of the parties is to 
 get into the master's office, and where all the facts are 
 admitted on all sides. Why, then, not go there without 
 repeating over and over again what every one knows 
 already ? It is precisely re-acting the Sir Walter Ra- 
 leigh and the Sir Christopher Hatton of the Critic ; and 
 after all the executors' affirmative answers, so similar to 
 Sir Christopher's— "I know it well;" "He is;" "We 
 do ;" and the rest, — we may well ask with Mr. Dangle — 
 " Mr. Puff, if he knows all this, why does Sir Walter go 
 on telling him ?" If all about John Smith, however im- 
 portant and interesting to the parties concerned, is known 
 and admitted by all, why all this interrogation about it ? 
 The parties should have the power of going at once into 
 the master's office, and there the executors should be made 
 to state their case, and either hand over the assets or dis- 
 tribute them. Now it may be thought that this would 
 deal harshly with executors, but I do not think so. 
 No person need be an executor against his will ; he may 
 renounce if he pleases ; but if he accepts the office, he 
 should be understood to clothe himself with the responsi- 
 bility attending the administration of property, and he 
 should be amenable to a cheap, speedy, and effectual tri- 
 bunal, which should force him to administer it properly. 
 When he does so, he will never, probably, be called be- 
 
 D 
 
34 POINTS OF lAW. 
 
 fore it ; but if his conduct be open to doubt, the sooner 
 the property which is entrusted to him is placed in secu- 
 rity, the better. 
 
 But while 1 would constitute this tribunal for the pro- 
 tection of the creditors or legatees of the testator, so 
 would I open its doors for the protection of the executor 
 himself. How often does the executor seek the protec- 
 tion of the Court of Chancery to relieve himself from 
 conflicting or doubtful claims ? The executor would pro- 
 bably rejoice fully as much as any one else, if a tribunal 
 of this nature were free to him. Here then should he go, 
 either at his own desire, or at the request of any one hav- 
 ing an interest in the estate; nor need there be any bill 
 or answer in the matter. He would have to answer a set 
 of interrogatories, printed, I should think, but at any rate 
 in a set form. He either has assets, or he has not ; there 
 are claims on them, or there are not. Whenever there was a 
 point of law, arising in the matter either of construction of 
 the will, the validity of a claim, or any other — that, and thai 
 alone, should be brought before another tribunal by way 
 of special case ; this would really be judicial business : the 
 other portion is purely administrative. In the present 
 mode of administering assets,' the parties must incur all 
 the expense of an administration or creditor's suit, simply 
 to get the opinion of the court on some one solitary point. 
 If the mode of procedure for which I contend were sub- 
 stituted when there was any point which the parties wished 
 to bring before the court, it could be done at a very trifling 
 expense ; but where there was no such point, and there 
 are many suits in which no such point arises, the accounts 
 could be taken with one tithe of the expense and delay 
 imposed by the present system. In many cases the assets 
 need not be paid into court ; the circumstances of ,the 
 case might not require it ; the assets might not be in any 
 danger, or might be in safe hands ; but where there was 
 
DISPENSING WITH REPORTS. 35 
 
 any doubt as to this^ there should be the most summary 
 and effectual power given to secure them. At present, 
 under all the long process of bill and answer, the assets 
 frequently escape. 
 
 In this proposition I have taken this description of 
 suit as the most common ; but the same machinery 
 could be rendered available to all other suits. What 
 that machinery should be, will be best mentioned when 
 I come to the second head, the remodeling the mas- 
 ter's offices ; at present I am endeavouring to shew that 
 bills and answers are not necessary in many cases ; and 
 if bills and answers are not necessary, neither are de- 
 crees and reports. At present, it is the master's duty to 
 report all matters in the cause referred to him, all that is 
 in dispute, and all that is not in dispute."* Why should 
 the latter, by far the largest in quantity, be reported at all ? 
 These matters are not generally mentioned to the court at 
 all : why need they be reported ? And if that report con- 
 sists entirely of these matters, ivhy should there he any 
 report at all ? Where the decree or order is of course, 
 why should there be any decree or order ? The object is 
 to avoid all unnecessary delay and expense ; all things by 
 which they are created should be dispensed with. We 
 know that under the present system, bills and answers, re- 
 ports and decrees, are a most abundant source of these. 
 The real object of all of them I would retain; but the 
 lengthy form I would dispense with. The repetition of 
 facts disputed by no one, the endless tissue of verbiage, 
 which is useless to all, I would abolish in all its shapes. 
 This mode of proceeding would still allow parties who 
 prefer bill and answer to retain them if they pleased. 
 Whether this should be permitted, or whether the master 
 
 ^ By the 48th of Lord Cottenham's Orders 0841), the reports are to be 
 shortened, by referring to, instead of stating the states of facts, charges, 
 affidavits, depositions, examinations, or answers, brought in, or used before 
 them ; but all matters must, I apprehend, still be reported. 
 
 d2 
 
36 master's office. 
 
 or judge should not be enabled to direct a bill to be filed 
 in such cases as he might see proper, as is now doneunder 
 one of Sir Edward Sugden's Acts,^ is a matter of conside- 
 rable doubt ; but all that I wish now to shew is, that bills, 
 answers, decrees, and reports, are, in many cases, quite 
 useless, and may be safely dispensed with in these cases. 
 
 Secondly, I now approach a part of my subject, the most 
 important of all. If I were called upon to say where the 
 root of by far the greater part of the evils now affecting the 
 Court of Chancery lies, I should answer, without any hesi- 
 tation, in Southampton Buildings ; and it is, therefore, to 
 the master's office that I shall devote some space. 
 
 This master's office is, in fact, the citadel of the Court 
 of Chancery ; all the other parts of the court are the out- 
 works. It is here that the great mass of suits are worked 
 out ; it is here that the fate of thousands of suitors is de- 
 termined. Of no little consequence is it, then, that it 
 should be an efficient office, and capable of discharging 
 the duties entrusted to it. I shall therefore enquire whe- 
 ther it be so ; and if not, what should be done to make it so. 
 
 That it is not an efficient office, and that it is open 
 to great abuse, as at present constituted, who will be so 
 bold as to deny ? Certainly not the masters themselves. 
 Let us see what Mr. Stephen said in his time respecting 
 the duties of the office (which, it is to be observed, remain 
 in all important respects the same at the present day) : 
 "It is true," says he, " that a master who, at the expense 
 of his important trust, should choose to be idle, might in- 
 dulge himself in that fault very largely, without lessening 
 his official income at all. He may delegate to his clerks, 
 without controul or superintendence, his most important 
 functions, without losing a single fee. The public, under 
 the present system, has no security in the master's self- 
 interest, against his idleness ; and what security is there 
 
 ' See 1 W. 4, u. 60, ». 12. 
 
RETURN OF 1840. 37 
 
 against this, or faults of a still worse character ? — what 
 but his sense of duty, and his sense of honour— his moral 
 principles, and his fear of discredit or reproach ?" Evid. 
 Chan. Com. 322.*^ Now I have quite as high an opinion of 
 the Masters in Chancery as of any other men whatever ; 
 and I at once acquit them of any impropriety whatever. 
 But whether the system under which they act is not ex- 
 posed to the commission of the very great faults which 
 Mr. Stephen, in a testimony so honourable to himself, 
 says may be easily committed, is more than doubtful, be- 
 cause the masters appear to stand self- convicted. There is 
 some important evidence from the masters themselves 
 on this point. I do not mean, however, (for I should 
 not be warranted) to carry the charge further than that 
 the masters have admitted that they are not always at 
 their work. But this plain and simple fact is proved 
 beyond the possibility of question, by the Return made in 
 session 1840,^ by the masters themselves, of the number 
 of hours passed in their ofi&ces, which returns revealed 
 this truth to the world, that certain masters passed just 
 double the number of hours at their ofi&ce that others did. 
 It is not necessary here to mention the names, neither is 
 it quite fair to do so ; indeed, I wish the return had been 
 made out, had it been possible, as the return of the sworn 
 clerks was, with numbers, instead of names ; but there it 
 stands to speak for itself, that a master may, in fact, just 
 work as hard as he pleases ; and not only may, but does 
 just work as hard as he pleases. It is, indeed, quite pos- 
 sible that he may have been engaged at home on the bu- 
 siness of his ofi&ce ; but then, again, he may not. But 
 the return to which I have alluded is, in one respect, 
 imperfect, and really bears not nearly so hard on the 
 absent masters as would at first sight appear. Let it be 
 
 ' See further, as to Master Stephen's evidence, Mr. Spence's pamphlet, 
 published in 1831, p. 48. 
 
 g Ordered to be printed, 30th March, 1840. 
 
38 master's attendance. 
 
 granted that certain masters, by this return, have passed 
 the actual number of six long hours in the building, the 
 return does not shew how these hours were really em- 
 ployed, whether in work or otherwise. The return simply 
 shews that they arrived at a certain hour, and went away 
 at a certain hour ; but what was done in the interval the 
 return does not show. 
 
 I am sorry to be obliged to make the remark, but I 
 think it right to do so, however personally disagreeable it 
 may be to myself, or possibly to others ; but is it not quite 
 notorious that the interval is not all passed in work ? It 
 will be sufficient to cite what Mr. Field says as to this : 
 " There is a great deal of personal delay with the master 
 himself; and what there is does not so much harm from 
 the positive loss of time, as in giving tone to the system. 
 Some masters will often be half an hour or an hour after 
 their time, and when they come in, say not a word of 
 apology for the valuable time of the solicitors, which they 
 have wasted. Solicitors, in consequence, attend less, and 
 send clerks more. This unpunctuality cannot be wondered 
 at. A judge who sits in a private room, to which he lets 
 himself in and out through a side door, by a key, cannot, 
 in the nature of things, be very punctual. There is no 
 check on him. Who is it knows that he is not in time ? 
 Only his own clerk, whom he may discharge at will, and 
 one or two of the canaille solicitors."'' And a little fur- 
 ther on he continues, " the public office is another impedi- 
 
 ■■ Mr. Field here adds, " Then again we have at times, masters so grossly 
 overbearing and offensive, that a gentleman would not go near them, if he could 
 possibly avoid it. Happily now there is none such ; no body of men could be 
 found more courteous than the present masters ; but most practitioners can 
 remember more than one of a very opposite character. It could only be 
 from sitting in a private room, that public officers could become sueh bullies 
 us the court before now has had in this situation. Were it not useless, tho 
 solicitors could tell stories of such masters, which would be thought incredi- 
 ble." This was written in 1839, and I trust that the day of such bullies will 
 never return. 
 
master's attkndancb. 39 
 
 ment to the regular and active discharge of the office bu- 
 siness of the master. It is too tempting a refuge from the 
 solitude of the master's dingy looking, and perhaps empty, 
 room. While the masters are spending a few minutes in 
 this office, the solicitors may be kept waiting ; or, more 
 probably, the favourable chance is seized, the 6s. 8d. at- 
 tendance is marked, and another warrant taken out, " the 
 master being absent." 
 
 This is enough to shew that the hours passed in the 
 building are not all passed in work. Indeed, I could fancy 
 a return might be made which would, in some cases, amuse 
 my readers. It stands, however, proved by the most in- 
 contestible evidence, that the masters can not only be ab- 
 sent from their duty if they please, but that in fact they 
 have been absent. But supposing that they were all pre- 
 sent, and in full work, let me next see how the business is 
 carried on, in what method, and by what system, they dis- 
 patch the important matters committed to them by the 
 Court. Having seen that the number of hours, nay, of 
 days, in which they will work, is left to their option, let 
 us next see what plan is adopted for expediting the bu- 
 siness : let us see how these optional hours, thus curtailed 
 and trenched on, thus invaded by secret passages and side- 
 door keys, — thus beguiled in the public office : let us see 
 how they are employed. But before doing this, let us 
 consider how any man, or body of men, — most of all, how 
 any court of justice,— oppressed by work, — endeavours to 
 dispose of it. There is, as far as I know, only one method, 
 which, being undoubtedly the best, is almost universally 
 adopted. It is this, attend to one thing at a time, and stick 
 to it till you finish it. Thus, in all other courts that I 
 ever heard of, one cause is taken at a time, and is disposed 
 of ; and if it were otherwise, I cannot conceive how busi- 
 ness could be got through. Suppose that a judge, after 
 hearing the statement of the plaintiffs case in cause No. I, 
 
40 HOURLY WARRANTS. 
 
 stopped thercj and heard the defendant's case in No. 2; 
 stopped there, and heard a witness examined in No. 3; 
 and thus went on through his list, what would be the 
 progress which he would make ? and what would be the 
 satisfaction, either to the judge or the suitor ? Yet this is 
 the common practice of the master's office. It is true that 
 exceptions are made, more especially of late, by some of 
 the ablest of the present masters ; but the ordinary mode 
 of disposing of the business of this office, is by what are 
 called ' hourly warrants' ; as to the disastrous effect of 
 which, there is abundant evidence. I may just mention a 
 very pertinent passage in the pamphlet of Mr. Spence, 
 published in 1831, which is fully supported by the evidence 
 contained in the Report of the Chancery Commissioners. 
 " Instead," says he, "of masters or their clerks finishing 
 what they begin, it is their practice to proceed in each 
 matter by hourly warrants, of which hour frequently not 
 more than one half is employed on the business in hand. 
 By this practice, warrants, the expense of which is consi- 
 derable, are multiplied, and much time is wasted. Mr. 
 Winter states that in Morgan v. Lord Clarendon, the so- 
 licitors of the parties must have walked backwards and 
 forwards to the master's office to attend warrants, 1878 
 times, and thus wasted 624 hours, which is more than two 
 months, at ten hours a day." But this, it may be said, 
 was before the masters were put on fixed salaries, but were 
 paid in part by fees. The same practice, however, exists, 
 with the same ruinous consequences, at the present day. 
 Mr. Field, in his pamphlet (p. 44), gives an elaborate state- 
 ment, founded on the practice of his own office, which 
 shews how difficult it is to expedite business under this 
 system. "When it is remembered," he says, "that a 
 warrant is generally an appointment for half an hour only, 
 and that there are only about 180 days in a year on which 
 warrants are made returnable, it is not difficult to see that 
 
HOURLY WARRANTS. 41 
 
 in some of the offices no diligence would get through a 
 complicated reference under two or three years, if parties 
 proceeded by steps of single warrants each, even if they 
 proceeded ex parte in default of attendance, SM'earing to 
 each service. Eighteen or twenty warrants in the year 
 would be the whole attention that could be got, and per- 
 haps the passing of accounts M'ould want double the time. 
 The working time of an hour's warrant cannot be reckoned 
 above a clear uninterrupted half hour, as it does not begin or 
 end punctually, and it never happens that the master's clerk 
 is not interrupted several times in the course of the meet- 
 ing." (p. 45.) Under these circumstances, the Vice Chan- 
 cellor of England might well make the following remark 
 in answer to a qnestion as to the masters, in his evidence 
 before the House of Lords in the Summer of 1840. " In 
 former times, the Lord Chancellor has occasionally called 
 in a judge, or two masters in Chancery to assist him : is 
 that a resource that could be made use of in these times ? 
 No, I think not. / think if the masters could call in the 
 Lord Chancellor to assist them, it might be beneficial." 
 Min. Evid. 1840, p. 8. Is it to be wondered, then, that 
 imder the present system, it appears by the return from 
 the master's office, already alluded to, that about half the 
 references pending had been pending about five years ? 
 
 And now I think I have said sufficient to shew that the 
 masters' office is not an efficient office, or capable, at any 
 rate, according to its present practice, 'of discharging the 
 duties entrusted to it. How it may be rendered efficient, 
 how it may be converted into a blessing to the suitor in- 
 stead of a curse, I will endeavour to show, although, cer- 
 tainly I think the reform must be here a very extensive 
 one. 
 
 I would here, however, disclaim, if it be necessary, any 
 thing in the slightest degree personally disrespectful to 
 the masters. I am quite willing to admit that no per- 
 
42 SMITH V. BOLTON. 
 
 soiial blame rests on any of them. They cannot alter a 
 system formed to their hands : here and there, under par- 
 ticular circumstances, they may expedite a particular suit, 
 but it is the strongest condemnation of the oflice which 
 can be passed, that however able and willing these emi- 
 nent individuals may be, they cannot do their duty to the 
 suitor; they have not sufficient powers committed to 
 them to do so. I would willingly save them from a rou- 
 tine in which they deteriorate instead of improve ; in 
 which the genius of the place breathes over them a lassi- 
 tude before unknown to them. With this disclaimer, I 
 shall enter into the subject somewhat more in detail. I 
 think there vidll be no difficulty in shewing that, as now 
 constituted, the masters' office is frequently the instru- 
 ment of the greatest injustice to the suitor ; that'however 
 desirous a party may be to proceed with the proper speed, 
 there is no power to urge on the other parties to the suit, 
 if they are unwilling, and that thus thousands are deprived 
 of their just rights. It may serve to bring this melan- 
 choly truth home to the minds of some of my readers if I 
 give an example of the sort of way in which suits are 
 usually conducted when they get into the master's office, 
 where there is, and where there is not, any intention to 
 prolong them. The instances which I shall give, are suits 
 either now in progress, or recently wound up, and are by 
 no means unusual in their circumstances. The names 
 either of the parties or the masters need not be given, but 
 these are the only matters that are suppressed. The first 
 suit which I shall mention, therefore, I shall call Smith v. 
 Bolton. 
 
 The plaintiff was tenant for life of real estate, but the 
 estate was in possession of trustees. The object of the 
 suit was for an account of real and personal estate of a 
 testator ; and among other things, to pay a legacy of 
 10,000/., charged on the real estate. The legatee was 
 
SMITE! V. BOLTON. 43 
 
 made a party defendant. There was never any doubt even 
 raised in the suit that the estate vi^as ample, or that this 
 legacy was due; but it was the desire of the persons 
 having the conduct of the suit, from motives of family 
 spite, to defer its payment as long as they could ; that 
 they have been able to do this successfully, down to the 
 present time, will appear by the following dates : 
 
 Smith v. Bolton.^ 
 
 The bill was filed on Jan. 4th, 1832, (more than ten 
 years ago.) The cause was heard, and a decree made in 
 Feb. 1836, as follows :— 
 
 1 . Reference for account of personal estate of testator. 
 
 2. Account of debts, funeral expenses, and legacies, 
 
 and annuities. 
 
 3. Advertisements for creditors. 
 
 4. Enquiry whether testator entered into contracts for 
 
 sale, and if fit, and what due on them. 
 
 5. Account of real estates, and distinguishing saleable 
 
 from residue. 
 
 6. Account of rents, &c. and monies produced by sale 
 
 of soil, &c. distinguishing saleable from residue, 
 and before plaintiff (who was tenant for life) at- 
 tained 21, from subsequent rents. 
 
 7. Account of sale of real estates, if saleable. 
 
 8. Whether any timber saleable, and to sell same. 
 
 9. If necessary, estates unsold to be sold. 
 
 10. Whether trustees entered into contracts for sale, and 
 
 whether they should be carried into execution, and 
 whether purchasers thereunder let into possession. 
 
 1 1 . Whether trustees expended monies in repairs, &c. 
 
 and what allowance to be made for same. 
 
 » These facta were communicated to me, at my own request, by an emi- 
 nent solicitor concerned in the cause. 
 
44 SMITH V. BOLTON. 
 
 This decree, as will be seen, was a very usual one. There 
 was, however, one special direction ; the master refused to 
 let the legatee attend, except when his particular interest 
 was mooted ; and I shall now give the times and number 
 of his attendances : he, it being remembered, being anxious 
 from the first to have his money, and doing all he could 
 to obtain it. 
 
 1837 June 3. Attending warrant on Smith's discharge. 
 [After which he had no other attendance for more than 
 
 a year.] 
 
 1838 Oct. 23. Attending warrant on facts, stood over. 
 
 31. Attending warrant, master not there. 
 Nov. 6. Attending warrant on facts. 
 
 1838 Dec. 7- Attending warrant to shew cause as to se- 
 
 parate report as to debts and legacies. 
 13. Presented petition as to repairs and timber. 
 20. Attending court, stood over. 
 22. Do. do. do. till petition day. 
 [T'he tenant for life then died, and it was necessary to 
 have a supplemental bill.] 
 
 1839 Feb. 20. Appeared to supplemental bill. 
 
 Nov. 6. Attending warrant to show cause why 
 master should not issue warrant on pre- 
 paring report, appointing next friend. 
 Dec. 21. Order to amend bill. 
 
 1840 Jan. 9. Bill amended. 
 
 Feb. 25. Order to assign guardian. 
 May 3. Filed answer. 
 
 Petition for payment of costs of party. 
 1840 May 4. Notice of motion to invest stock. 
 
 7, 8, 24, 25. Attending court. Petition heard. 
 28. Attending court. Clause heard. 
 
 June 3. Settled minutes on petition. 
 
 8. Passed supplemental decree. 
 July 27. Petition for maintenance. 
 
SMITH V. BOLTON. 45 
 
 J 840 Aug. 2, 3, 5. Attending court on petition heard. 
 10. Settled minutes. 
 Nov. 23. Do. do. 
 
 [Here the legatee got quite impatient, and] 
 
 Nov. 28. Took out warrant for conduct for suit. 
 Dec. 3. Attending same, and plaintiffs promised to 
 obtain report of debts and legacies. 
 1841 Jan. 23. Got facts as to legacies. 
 
 25. Attending warrant thereon. 
 Feb. 13. Attending warrant on Smitli's discharge. 
 21. Do. do. 
 
 March 5. Do. do. 
 
 April 15. Took out warrant on do. 
 
 23. Attending same. 
 
 2b. Attending warrant on facts as to legacies 
 and annuities. 
 May 1 . Attending warrant to shew cause as to re- 
 port of debts and legacies. 
 June 10. The like. A month given by master for 
 creditors to bring in their claims. 
 25. Served with C.'s petition to confirm report, 
 appointing new trustees. 
 July 14. Attending warrant on Smith's discharge, 
 personal estate. 
 Do. real estate. 
 
 Do. as to issuing warrant on report of debts 
 and legacies . 
 
 24, 27. Do. on Smith's discharge as to personal 
 
 estate. 
 27. Attending warrant to shew cause as to re- 
 port of debts. 
 Aug. 1 . Do, on discharge. 
 
 5. Do. on Smith's discharge. 
 Nov. 6. Got copy master's report, as to debts and 
 legacies amended. 
 
46 SMITH V. BOLTON. 
 
 7. Attending warrant thereon. 
 20. Got copy facts as funeral expences, &c. 
 
 23. Attending warrant thereon. 
 
 Dec. 7, 22. Attending two warrants on master's 
 report. 
 19. Petition for discharge of receiver, &c. 
 
 24. Attending court on petition. 
 
 And this brings the cause down to the present time : the le- 
 gatee, though he has had the conduct of the cause for more 
 than a year, has never been paid one farthing for principal 
 and interest, and when he will receive payment it is im- 
 possible to say. Now this is a case happening every day. 
 No sooner has a cause got into the master's office, than, as 
 a general rule, it is allowed to sleep altogether for about 
 a year, by a sort of silent consent of all the professional 
 men concerned ; and if there be any interest to delay it 
 longer, I have shewn how effectually this may be done. 
 A fraudulent, or even a malicious or spitefxJ person, may 
 effectually delay a suit ; and to do this he has only to avail 
 himself of the ordinary practice of the court, the varioiis 
 chances of deaths, &c. rendering bills of supplement or re- 
 vivor necessary ; he may present useless petitions, or he 
 may simply trust to the general inefficiency of the whole 
 master's office to bring matters to a speedy conclusion. 
 
 But I will now give another instance of a suit where all 
 the parties were desirous of proceeding as fast as possible. 
 In this suit there were very difficult questions of construc- 
 tion to be argued, and a very long pedigree to be proved 
 in the master's office, there being many conflicting claims. 
 No less than twelve solicitors were employed for the va- 
 rious parties. 1 will call this cause Temple v. Boniface. 
 The dates of the proceedings were as follows : 
 
TEMPLE V. BONIFACE. 4/ 
 
 Temple v. Boniface, 
 
 1840 June 7- Decree. 
 
 1. Account as to personal estate. 
 
 2. Inquiry as to debts, legacies, &c. 
 
 3. Do. outstanding estate, and clear residue. 
 
 4. Inquiry as to next of kin. 
 
 5. Inquiry as to identity of plaintiffs and de- 
 
 fendants. 
 
 6. Inquiry as to Ann H. (testatrix's cousin) . 
 
 7. . . . as to William L. (do.) 
 8 John L. (do.) 
 
 9 children and issue of Henry 
 
 L. (testatrix's cousin). 
 
 10 children of E. E. (do.) 
 
 J I do. . .E. T. (do.) 
 
 12 do. . . N. C. (do.) 
 
 13 do. . .W.D. (do.) 
 
 14 do. . . J. L. (do.) 
 
 July 2. Attending warrant to consider. 
 Nov. 4. Got copy, affidavits, receipts, and payments. 
 7. Got copy charge and discharge. 
 
 14. Got copy maternal pedigree, and ten affida- 
 vits, attending warrant, charge as to per- 
 sonal estate. 
 
 15. Got copy facts as to next of kin, and thirty- 
 
 four affidavits. 
 
 16. Got copy paternal pedigree. 
 
 19 affidavits as to do. 
 
 eight states of facts. 
 
 22. Attending two warrrants on facts as to next 
 of kin. 
 
 25. Attending two warrants on paternal pedi- 
 gree. 
 
 27. Attending two warrants on paternal and 
 maternal pedigree. 
 
■^8 TEMPLE V. BONIFACE. 
 
 27 Attending two warrants as to children of 
 L. and La. 
 
 28. Attending two warrants as to identity of 
 
 L. & S. 
 
 — Attending two warrants on facts as to tes- 
 
 tatrix's cousins. 
 
 — Attending two warrants as to discharge. 
 
 29. Attending warrants on facts as to children 
 
 of T., D., h., and C. 
 Dee. 13. Atttendin^ warrant on facts as to personal 
 estate. 
 
 — Attending warrant on facts as to debts and 
 
 legacies. 
 
 — Attending warrant on facts as to residuary 
 
 personal estate. 
 1841 Jan. 14. Got fourteen affidavits in support of pedi- 
 grees. 
 15. Attending warrant on maternal pedigree. 
 
 — Attending warrant on paternal pedigree. 
 18. Attending warrant on facts as to children, &c. 
 21. Attending warrant on facts as to children, 
 
 and as to identity of testatrix's cousins, 
 S. and L. 
 24 &25. Attending warrant on facts as to next 
 of kin. 
 
 28. Attending warrant on facts as to personal 
 
 estate. 
 Feb. 25. Attending warrant to shew cause as to re- 
 port. 
 March 28. Got draft report. 
 
 April 2, 23, 2/. Attending four warrants to settle. 
 May 15. Report confirmed. 
 
 29. Order to set down on further directions. 
 June 5. Attending court. Heard. (It took up a 
 
 whole day. Costs taxed.) 
 
PUBLIC SITTINGS. 49 
 
 So that there being a sincere desire to proceed, all these 
 difficulties are disposed of, and a final decree obtained in 
 about a year from the first decree. Now I might mention 
 many other causes, the facts as to which are before me ; 
 but surely I need say no more to prove that the master's 
 office, as at present constituted, is incapable of rendering 
 justice. But how can it be altered ? How, it may be 
 said, will you reform human nature, by new rules, aye, or 
 even by acts of parliament, although they have one hun- 
 dred " be it enacteds." So long as it is the interest of 
 persons concerned in a cause to delay, delay they will. 
 Now this, I admit ; and if all parties concerned in a cause 
 choose to delay, I do not see how it can be prevented ; but 
 all I want to do is to allow any one party to proceed 
 quickly if he pleases, which, by the present practice, he 
 cannot do. I must say, however, that I do not think much 
 good can be done while the machinery of the masters' office 
 is arranged as it now stands, and that no slight alteration 
 will meet the difficulty of the case. 
 
 It has, indeed, been thought by some that if masters 
 were to sit in public, this would be sufficient to produce 
 quite a new system ; but, unless the public sitting were 
 accompanied by an efficient staff of officers, &c. unless, in 
 fact, the Master were made a judge, T do not see what 
 would be gained by it. For is it not certain that the 
 greater part of the business of the master is such as can 
 be more quickly, and more usefully disposed of over a 
 table, and in private. If three masters were to sit toge- 
 ther on points of importance in public on certain davs, 
 perhaps this might be beneficial ; but if you simply throw 
 open the present masters' office to the public, it seems 
 very doubtful whether, in fact, any one would attend after 
 the first novelty were over, and if they did, whether more 
 harm might not be done than good. I do not think, 
 therefore, that making the masters sit in public, would do 
 
50 JUDGES ACTINC AS MASTERS. 
 
 much good : the reform must be much more extensive. 
 Why should a judge not work his own decrees, whilst 
 they were fresh in his mind, with a proper staff of officers? 
 This, I admit, is a bold proposition, and in approaching 
 it, I feel more diffidence than in any preceding portion of 
 this suggestion — not in its justice — not in its practica- 
 bility — but in my own powers of explaining it, and of 
 rendering \t intelligible ; and yet it is, in my opinion, the 
 key stone of the arch, on which all depends ; on which 
 hangs the only chance of obtaining the result which I have 
 all along proposed to myself, i, e. the rendering the Court 
 of Chancery an available Court for the recovery of sums 
 of 50Z. or IOOZ.5 for which purpose it is now admitted that 
 its doors are closed. I have shewn, in the preceding 
 pages, the importance of being able to reach the master's 
 office at once, without any preliminary proceeding. But 
 if the master were, in fact, the judge, it will be seen at a 
 glance how much would be gained in point of time — in 
 point of authority — and in every other way. Supposing 
 it to be practicable, and the judges were willing, it will 
 hardly be denied that it would be advantageous to the 
 suitor that the judge should work his own decrees. Let 
 any of my readers, acquainted with the subject in practice, 
 call to mind any given suit in which he may have been 
 engaged, and the advantages of this mode of proceeding, 
 if it can be obtained, will, 1 think, be obvious. If the 
 judge, while all the circumstances of the suit were fresh 
 in his mind, could turn at once to the details, and finish 
 them off, the saving to the suitor of time and money would 
 be immense. The necessity of a reference back to the 
 judge as to the meaning of the decree, would be entirely 
 avoided ; all doubts by the master, whether he had power 
 to do this, or jurisdiction to do that, would be at an end • 
 besides this, by so much as a judge is better than a mas- 
 ter, the suitor would in that proportion be benefited. One 
 
JUDGKS ACTING AS MASTKRS. 51 
 
 of the evils of the present system is^ that, to say the truth, 
 no one cares a great deal for a master's opinion ; it is ap- 
 pealed from without any scruple. There is very little 
 terror in the master's frowns ; none but the most timid 
 attorney's clerk is at all alarmed at them ; they have none 
 of that " divinity which doth hedge " a judge ; their thun- 
 der is only second-hand ; and if a refractory suitor were 
 to challenge them to fight, they must consult a friend as 
 to the propriety of giving satisfaction, before they ask the 
 Lord Chancellor to commit their challenger for contempt. 
 Now this would be very different if they were judges ; 
 and so highly do I think of the present masters, and so 
 lowly of their ofi&ce, that I believe them all capable of dis- 
 charging the judicial functions with credit. I would give 
 them also the judicial authority. We find that a common 
 law judge, sitting in chambers, loses nothing of his im- 
 portance or power : he may commit for contempt, and he 
 can soon make people understand what they are about. 
 If any improper proceeding has been taken at common 
 law, and the party who takes it has to pay the costs of it, 
 he will hesitate about taking another ; if for want of due 
 appearance on the other side, an order be taken as pro 
 confesso, the party not appearing will take care and attend 
 next time. So would it be in equity, if a judge sat where 
 a master now does. King Stork was not quite so pleasant 
 a fellow as King Log, but he was a much better man of 
 business. If you simply made the master sit in public, 
 and even gave him a regular paper of matters to be dis- 
 posed of, I dare say some good might be done ; but still 
 he would only be the master. Unless you clothed him 
 with new authority, people would soon begin to find out 
 that he was only King Log after all. Now, if the judge 
 were to woi-k the decree which he had made himself, he 
 would take care, for his own sake, that the least possible 
 delay should take place, in order that he might not hear 
 
 E 2 
 
52 JUDGES ACTING AS MASTERS. 
 
 the same matter twice over, and he would bring all the 
 authority vvhich he had to make the decree in the cause to 
 working out the directions contained in it. But the most 
 common objection that 1 have heard to the plan is, " How 
 could it be done? how could a judge go into details? 
 how could he take accounts, &c. ?" In answer, I say, 
 how can a master do all this ? Surely what a master can 
 do, a judge can do. Chief Baron Alexander was raised to 
 the bench from the master's office. Was he, as Chief 
 Baron, less capable of doing what he had done as master ? 
 With a proper staff of officers, there would, as I conceive, 
 be no difficulty whatever in the matter. But would it be 
 beneath the dignity of a judge in equity to do this kind of 
 work ? Why should it be ? Admitting the right of the 
 judge to make this objection, why is not one end of a 
 suit as worthy as the other ? I do not propose that a 
 judge should be burdened with the administrative part of 
 the master's duty ; that should be handed over to proper 
 officers ; but the judicial part of the master's duty might 
 surely be well performed by the judge. And are not the 
 most important questions constantly raised before the 
 master ? Another objection to the plan is the increased 
 expense; but this will hai'dly be insisted on. The present 
 machinery is the most costly to the suitor that could have 
 been contrived. Nor am I sure that the expense would be 
 materially increased by the alteration I propose. It may 
 be calculated that six judges would easily dispose of the 
 business of the masters, and they would hardly cost more 
 than the present staff of officers. 
 
 But what, it may be asked, wonld be done with the 
 pi'esent masters ? So highly do I think of them, that 
 certainly it is from them that I would choose my judges. 
 The power in the act of the session of 1810," to abolish 
 offices and award compensation, extends, as I conceive, to 
 
 » 3 & 4 Vict. 1.9^, amended by 4 & 5 Vict. l. 52. 
 
PRKSJ5NT STATB OF THE aUESTION. 53 
 
 the masters. But I think, if it be once admitted that the 
 masters should give way to judges, the point either of 
 providing for the masters, or of properly remunerating the 
 new judges, should not stand in the way. If the doubt be 
 simply reduced to this, it may easily be disposed of. 
 
 It may be observed, that the measures of the last session 
 rather favour the proposed reform than impede it. By 
 the new Lunacy Act, 5 & 6 Vict. c. 84, the business here- 
 tofore transacted by the masters in lunacy, is henceforth 
 to be performed by the new lunacy commissioners, who 
 are, in fact, judges to this extent ; and by the Chancery 
 OfiSces Act, 5 & 6 Vict. c. 103, the taxation of costs is 
 taken from the masters in ordinary, and vested in certain 
 new officers, called " Taxing Masters;" and an additional 
 reason for the reform contended for, exists in the fact that 
 the new staff of judges have already so reduced the arrear, 
 that the plan might well be commenced by any of them 
 who were willing to try it, and the difficulty of carrying 
 it into execution would then be fully seen. 
 
 The lamentable conclusion that I must come to as the 
 result of all the statements on this subject that I have 
 laid before the reader, is, that the recovery of a right 
 which is involved in a suit in Chancery, depends entirely 
 on the capital of the person entitled to it. It may be the 
 clearest in the world, and of the utmost consequence to 
 the owner, but unless he either has money himself, or can 
 persuade some one else who has, to undertake his cause, 
 he is wholly remediless j and if he pursues his right with 
 any money but his own, he must consent to pay, for a 
 series of years, the most usurious interest for his accom- 
 modation. This is obviously not only injurious to the 
 suitor, but to the great body of the profession. It throws 
 too much into the hands of a few large houses, to the pre- 
 judice of the smaller class of solicitors ; for as the case 
 now stands, he who has the largest capital, and can aiford 
 
54 ORDERS OF M. T. 1842. 
 
 to stand out of his money the longest, can carry on the 
 most suits. In all this, the interest of the suitor and the 
 justice of his claim, remains uncared for and unconsidered. 
 
 This, then, is the state of things, at the commencement 
 of Michaelmas Term 1842, and as if things were not be- 
 fore sufficiently bad ; as if the impositions on the suitor 
 were not already sufficiently high, advantage has been 
 taken of the Chancery Offices Act to increase the fees 
 previously taken, in order to keep up the new staff, and pay 
 the compensations under that act. The act was surely 
 passed with a view to the relief of the suitor, and such it 
 will be, if it be properly worked. Probably, the universal 
 consternation shewn by the profession, will cause some 
 modification of the schedule of fees ; but if it do not, this 
 last reform will, probably, more than anything else, force 
 on the great change for which I am contending. The 
 opinion will become general, that the present machinery 
 of the court must be altered from beginning to end, and 
 that things are so bad, any change must be for the better. 
 
 It may be well, indeed, for the ultimate success of 
 Chancery Reform, that the Orders complained of have been 
 issued. It will, probably, provoke parliamentary enquiry 
 into the present system of managing what is called " The 
 Suitors' Fee Fund " of the Court of Chancery, and means 
 may be provided for establishing an efficient controul 
 over it, and the other monies now under the power of the 
 Court of Chancery. 
 
[ 55 
 
 CHAPTER IV. 
 
 THE ENFRANCHISEMENT OF COPYHOLDS." 
 
 In a former part of this work, I have abeady'' expressed 
 an opinion that the copyhold tenure was, not only theo- 
 retically artificial and inconvenient, but practically inju- 
 rious to the public and the owner of the land, and prevented 
 thfe proper enjoyment and alienation of the property subject 
 to it. It is now intended to prove that this is the case. 
 
 Whether there be just ground for objecting to this te- 
 nure or not, it is certain that it has been considered a 
 grievance for a long period of time. 
 
 In 1651, in the time of the Commonwealth, it was voted 
 by Parliament, "that it be referred to persons out of the 
 House to take into consideration what inconveniences 
 there are in the law, and how the mischiefs that grow 
 from the delays, the changeableness, and the irregularities 
 in the proceedings of the law, may be prevented ;"■= and 
 shortly afterwards a committee was appointed,"^ in which 
 Sir Matthew Hale, then at the bar, and certainly the most 
 eminent lawyer of the day, is first named, and took a pro- 
 minent part. The committee was appointed in January, 
 and shortly afterwards, in the succeeding Aj)ril, among 
 other bills presented by the commitee, is one " for ascer- 
 taining arbitrary fines upon descent and alienation of copy- 
 holds of inherifance."' Thus soon did the committee 
 
 ' It must be understood, that the opinions expressed in this chapter, are 
 those of the author alone, and that he aloue is responsible for them. 
 '> See ante, p. 8. ' Whitelocke's Mem., 494. 
 
 i Whitelock, 496. " Whilelocke, 504. 
 
56 OPINION OF MR. WATKINS. 
 
 agree to remedy one of the most serious evils affecting the 
 tenure; but that this was not considered to meet the 
 whole of the grievance, appears from the fact that in 
 the next year a petition '' signed by many thousands " 
 was presented to Parliament, praying, among other things, 
 " that copyholds and the like may be taken away."*' 
 
 Nothing further, however, was done, and at the restora- 
 tion of Charles the Second, when the military tenures 
 were destroyed by stat. 12 Car. II., c 24, copyholds were 
 reserved from the operation of the act, which at the time 
 created considerable dissatisfaction,^ and has been much 
 regretted ever since. 
 
 Whenever an opportunity has occurred, it will be seen 
 that the persons best acquainted with the state of the te- 
 nure, have been the loudest in their complaints respecting 
 it. As an instance of this, I may cite the elaborate opinion 
 given by Mr. Watkins, at the conclusion of his Treatise on 
 Copyholds: "There are many difficulties," he concludes, 
 " it is true, in the way of a general enfranchisement ; but 
 what is there of general importance that can be effected 
 without having difficulties to encounter? A system of ju- 
 risprudence cannot remain perpetually the same, while the 
 manners of a nation change. The principles which origi- 
 nated in barbarism, cannot meet the wants of an improved 
 and refining age. The maimers of a nation must be sta- 
 tionary, or stationary laws cannot long regulate its con- 
 duct. The principles of nature are fixed and immutable, 
 and laws founded on those principles will always apply ; 
 but laws founded on arbitrary impositions, or the peculiar 
 manners or necessities of a particular age, should not be 
 permitted to shoulder out common sense from society, or 
 
 ' Whitelocke, 512. 
 
 5 See Roger North's Life of Lord Keeper Guildford, Vol. I., p. 35, cited 
 post p. 66. 
 
OPINION OF MR. WaTKW. 57 
 
 to incumber the conduct of persons to whom they cannot, 
 in reason, relate. If every thing desirable cannot be 
 effected, it does not follow that we ought, therefore, to do 
 nothing. If an immediate and universal enfranchisement 
 of copyholds cannot be accomplished, an enfranchisement 
 may be effected partially and by degrees. The more we 
 advance towards perfection, the number of evils which we 
 leave will be less. Thus an act may be passed obliging 
 every lord seized in fee simple to enfranchise, on so many 
 years average of the seignorial emoluments. The aver- 
 age may be ascertained by commissioners or a jury. Te- 
 nants in tail may also be enabled and compelled to enfran- 
 chise, as enfranchisement would be so evidently beneficial 
 to the nation at large. A tenant in tail may now, by cer- 
 tain means, alien the manor in fee; what impropriety then 
 would there be in enabling him to convey the freehold of a 
 few copyhold tenements by some solemn deed ? And the 
 power of enfranchisement might be extended as circum- 
 stances would admit. The prejudices of the ignorant, 
 and the opposition and arts of the interested, must be ex- 
 pected and met ; but we should meet them with manly 
 firmness, while conscious of the integrity of our views. 
 We should recollect, that we cannot reason from a matter 
 of fact to a matter of right ,• and that it does not follow of 
 necessity, that because absurdities or inconveniences exist, 
 they therefore ought to be cherished. There cannot be a 
 more certain cause of destruction than the accumulation 
 of what is absurd.''" 
 
 But the great body of testimony against the copyhold 
 tenure, is to be found in the reports of the Real Property 
 Commissioners. In these important volumes no small 
 portion will be found to be devoted to an inquiry into the 
 state of copyhold and customary tenure; the opinions of the 
 
 1" 2 Treat, on Cop., 4th edit., p. 161. 
 
60 OPINION OF MB. TYRRKLL. 
 
 miled fines are matters which are subject to valuation, but 
 they are circumstances which fall exceedingly hard upon 
 a small tenancy, when they happen to occur frequently. 
 2. Undoubtedly I think so ; the difficulty is one that can 
 be provided for. 3. The only thing, I think, is to give as 
 ample power as possible to enfranchise, and to enable the 
 tenants to raise money to pay for the enfranchisement. I 
 would give power to all lords, and to all tenants, to en- 
 franchise, and the tenants to borrow sums of money on 
 the estates, either estates for life or greater estates I 
 doubt if more than this can be done without interfering 
 too greatly with rights. 
 
 I may next mention the opinion of the late Mr. Tj'rrell. 
 " 1 . The advantages of copyholds are, 1st. that the title is 
 more simple and secure, because, 1st, it is free from any 
 question relating to the stamp laws. 2d. The registry of 
 the court rolls affords a protection against secret convey- 
 ances. 3d. The title is free from assignments of terms 
 and rents. 4th. The title is not affected by judgments, 
 and therefore any search for them is unnecessary. [This 
 is now altered by stat 1 & 2 Vict. c. 110.] And 5th, the 
 title is free from conveyances that operate by wrong or 
 estoppel, and therefore it is unnecessary to create estates 
 for preserving contingent remainders : and 2dljr, that the 
 modes of assurance are more simple, and less expensive ; 
 for, 1st, Married women can convey by surrender. 2d. Es- 
 tates tail may be barred at any time of the year, by sur- 
 render ; or, if the custom require it, by a recovery in the 
 manor court. [This advantage no longer exists, as dis- 
 tinguished from freehold.] 3d. Mortgages and incum- 
 brances are extinguished by the entry of satisfaction on 
 the rolls. The disadvantages of copyholds are : the va- 
 riety of diffei-ent laws rendered necessary by their different 
 customs. The difficulty in ascertaining the customs. The 
 difficulty, in many instances, of distinguishing freehold 
 
OPINION OF MR. SKNtoa. Gl 
 
 from copyhold land. The errors and omissions on the 
 rolls occasioned by the 'ignorance and negligence of stew- 
 ards. The different rules of construction applicable to 
 freehold and copyhold estates, in consequence of copyholds 
 not being within the Statute of Uses. The want of any 
 power to convey the equitable interests of married women, 
 and contingent or executory estates not in the seisin, and, 
 in some cases, to convey estates before admittance, and in 
 other cases the want of any power of disposition by will. 
 The rights of the lord which prevent improvements, by 
 increasing in amount and number with the value and divi- 
 sion of the property. The uncertain, and often severe, 
 burthen of heriots. The want of a power of leasing, which 
 cannot be granted by the lord without a sufficient estate. 
 The right to timber and minerals, which pi-event both 
 parties from having the benefit of them, and are the fre- 
 quent occasion of dissensions in country neighbourhoods. 
 And the double title necessary in cases of enfranchisement. 
 2. I think it very desirable that copyholds should be abo- 
 lished, and that all lay fees should be held by one or similar 
 tenures, o. The impediments to the enfranchisement of 
 copyholds, are the objections to such a measure which 
 would be made by the lords of manors, and the difficulty, 
 if not impracticability, of adjusting the compensation to be 
 made for the rights of the lord ; but there are several means 
 by which some of the present impediments could be re- 
 moved, and the means of enfranchisement might be facili- 
 tated." 
 
 I need only further give the opinion of Mr. Senior (now 
 one of the Masters in Chancery.) — " 1 . The principal advan- 
 tao'es of copyhold tenure appear to me to be ; the general re- 
 gistry afforded by the rolls. The absence of attendant terms. 
 The freedom from judgments . The preservation of contin- 
 o-ent remainders. The easy modes of barring dower and es- 
 tates tail, and of releasing incumbrances by entering satisfac- 
 
GO OPINION OF MR. TYRRKLL. 
 
 mited fines are matters which are subject to valuation, but 
 they are circumstances which fall exceedingly hard upon 
 a small tenancy, when they happen to occur frequently. 
 2. Undoubtedly I think so ; the difficulty is one that can 
 be provided for. 3. The only thing, I think, is to give as 
 ample power as possible to enfranchise, and to enable the 
 tenants to raise money to pay for the enfranchisement. I 
 would give power to all lords, and to all tenants, to en- 
 franchise, and the tenants to borrow sums of money on 
 the estates, either estates for life or greater estates I 
 doubt if more than this can be done without interfering 
 too greatly with rights. 
 
 I may next mention the opinion of the late Mr. Tyrrell. 
 " 1 . The advantages of copyholds are, 1st. that the title is 
 more simple and secure, because, 1st, it is free from any 
 question relating to the stamp laws. 2d. The registry of 
 the court rolls affords a protection against secret convey- 
 ances. 3d, The title is free from assignments of terms 
 and rents. 4th. The title is not affected by judgments, 
 and therefore any search for them is unnecessary. [This 
 is now altered by stat 1 & 2 Vict. c. 110.] And oth, the 
 title is free from conveyances that operate by wrong or 
 estoppel, and therefore it is unnecessary to create estates 
 for preserving contingent remainders : and 2dlj'', that the 
 modes of assurance are more simple, and less expensive ; 
 for, 1st, Married women can convey by surrender. 2d. Es- 
 tates tail may be barred at any time of the year, by sur- 
 render ; or, if the custom require it, by a recovery in the 
 manor court. [This advantage no longer exists, as dis- 
 tinguished from freehold.] 3d. Mortgages and incum- 
 brances are extinguished by the entry of satisfaction on 
 the rolls. The disadvantages of copyholds are : the va- 
 riety of different laws rendered necessary by their different 
 customs. The difficulty in ascertaining the customs. The 
 difficully, in many instances, of distinguishing freehold 
 
OPINION OF Mn. SKNIOR. Gl 
 
 from copyhold land. The errors and omissions on the 
 rolls occasioned by the 'ignorance and negligence of stew- 
 ards. The different rules of construction applicable to 
 freehold and copyhold estates, in consequence of copyholds 
 not being within the Statute of Uses. The want of any 
 power to convey the equitable interests of married women, 
 and contingent or executory estates not in the seisin, and, 
 in some cases, to convey estates before admittance, and in 
 other cases the want of any power of disposition by will. 
 The rights of the lord which prevent improvements, by 
 increasing in amount and number with the value and divi- 
 sion of the property. The uncertain, and often severe, 
 burthen of heriots. The want of a power of leasing, which 
 cannot be granted by the lord without a sufficient estate. 
 The right to timber and minerals, which prevent both 
 parties from having the benefit of them, and are the fre- 
 quent occasion of dissensions in country neighbourhoods. 
 And the double title necessary in cases of enfranchisement. 
 2. I think it very desirable that copyholds should be abo- 
 lished, and that all lay fees should be held by one or similar 
 tenures, o. The impediments to the enfranchisement of 
 copyholds, are the objections to such a measure which 
 would be made by the lords of manors, and the difficulty, 
 if not impracticability, of adjusting the compensation to be 
 made for the rights of the lord ; but there are several means 
 by which some of the present impediments could be re- 
 moved, and the means of enfranchisement might be facili- 
 tated." 
 
 I need only further give the opinion of Mr. Senior (now 
 one of the Masters in Chancery.) — " 1 . The principal advan- 
 tages of copyhold tenure appear to me to be ; the general re- 
 o-istry afforded by the rolls. The absence of attendant terms. 
 The freedom from judgments. The preservation of contin- 
 gent remainders. The easy modes of barring dower and es- 
 tates tail, and of releasing incumbrances by entering satisfac- 
 
62 OTHKR OPINIONS. 
 
 tioii. The principal inconveniences appear to be : The diffi- 
 culty of ascertaining the customs of different manors. The 
 bar to improvement, occasioned by fines arising with the im- 
 proved value, and heriots increasing with the sub-division 
 of the tenements, and depending on accident for their fre- 
 quency. The want of a power to lease. The lord's right 
 to timber and minerals. The absence, in soine cases, of 
 a power to devise before admission [this is now removed 
 by the Wills Act.J The limitation, in some manors, of the 
 lord's power to grant. The difficulty, in many cases, par- 
 ticularly in Norfolk and Suffolk, of distinguishing freehold 
 from copyhold. The rule of construction, which refuses 
 to include copyholds in a general devise, if there be free- 
 hold. 2. I think it desirable that all lands held by copy 
 of court roll should be held on free and common socage, 
 and that all lay fees should be held by one tenure. 3. I 
 think it would be advisable to appoint district commis- 
 sioners of high character, and adequately remunerated, to 
 ascertain the terms on which the copyholds in their re- 
 spective districts should be enfranchised." 
 
 The following gentlemen, among others, also gave opi- 
 nions in favour of the alteration of the tenure : 
 
 IMr. John Pemberton (of Durham). Mr. Dixon. 
 
 Mr. Addison. Mr. Coote. 
 
 Rlr. W. Clowes. Mr. Morley. 
 
 Mr. Samuel Turner. l\]r. Warltors. 
 
 Mr. Park. Mr. G. Harrison. 
 
 All these gentlemen are, or were, at the bar ; the follow- 
 ing solicitors also returned answers to the same effect : 
 R]r. Capron. Mr. Founereau. 
 
 Mr. Broolic. i\]r. Weatherby. 
 
 These are the answers in favour of the enfranchisement 
 of copyholds on a large or smaller scale ; and it will be 
 seen that the great majority of these opinions I have cited, 
 go to the full extent of the necessity for a general enfran- 
 
OTHER OPimONS. -—63 
 
 chisement, if practicable, and prove the superiority of the 
 freehold to the copyhold tenure. 
 
 On the other hand, the late Mr. Justice Taunton was 
 against any change in copyholds : — " I consider the variety 
 of tenures in the narrow extent to which they exist, as a 
 beauty, and not as a blemish." Mr. Serjeant Peake gave 
 a somewhat divided opinion ; but, on the whole, J class 
 him as in favour of the existence of copyholds. These, I 
 believe, are the only gentlemen of the bar in favour of 
 copyholds. Among the other branch of the profession, 
 Mr. Jones expressed a strong opinion " that the attempt 
 to change copyholds into free and common socage, would 
 inevitably create a great alarm, and much excitement in 
 the country, without producing any adequate good." 
 
 And Mr. Ralph Barnes, a respectable solicitor of Ex- 
 eter, and a steward of several manors in the neighbour- 
 hood, gave a very full opinion in favour of the preserva- 
 tion of copyholds. I have now mentioned the answers, 
 both written and oral, to the questions of the commis- 
 sioners ; but, besides these, there were some written com- 
 munications to them on this point from Mr. Adlington, 
 Messrs. Atkinson, BoUand and Atkinson, and Mr. Whin- 
 cop, in favour of enfranchisement. 
 
 We have now gone through the whole of the evidence 
 contained in the Appendix to the Report, and I have 
 shewn that there is a very great preponderance of testi- 
 mony in favour of the entire enfranchisement of copyholds, 
 and the conversion of all lands into free and common 
 socage ; and I therefore venture to say that the profession 
 at large has expressed itself of this opinion. 
 
 But it will be seen, that altliough Mr. Charles Butler 
 and Mr. Senior express an opinion, (and this is the opin- 
 ion more generally given by the other gentlemen examined 
 whose names only I have mentioned) that a general en- 
 franchisement might take place without any injustice to 
 
64 SELECT COMMITTKB OF 1638. 
 
 vested interests, Mr. Bell and Mr. Tyrrell consider that 
 this would not be easily practicable ; and it is to be also 
 noticed, that the Real Property Commissioners, in their 
 Third Report, thus express themselves : — " We consider 
 it a matter of great importance, that all lay fees should be 
 held by free and common socage ;" but they did not re- 
 commend any general system of enfranchisement, fairly 
 stating the difficulties of the subject, and that, although 
 " it appeared to them so expedient that copyhold tenure 
 should be changed into common socage; they had not 
 been able to discover any means of speedily attaining so 
 desirable an object." They recommended, therefore, that 
 measures, giving facilities for enfranchisement, that is to 
 say, purely voluntary measures, should be introduced. 
 These bills were accordingly introduced into the House 
 of Commons, but were not received with favour, either in 
 or out of the House. They were before Parliament for 
 three scceral sessions without making any progress, and 
 in the year 1838, they were referred to a Select Committee, 
 consisting of most of the lawyers then in the House of 
 Commons.' That Committee, very early in the inquir}', 
 and at a full meeting, came to the following resolutions : 
 " I. That it is the opinion of this Committee, that encou- 
 ragement and facilities should be given for effecting, by a 
 voluntary agreement of the parties intei-ested, the enfran- 
 chisement of lands held by copyhold and customary te- 
 nure, and for the commutation of heriots. 2. That such 
 encouragement and facilities should continue only for a 
 time to be limited. 3. That the attempt to effect such 
 
 1 The following are the nfluies of llie Committee ;— Sir Robert Peel, Mr 
 Goiillnirn, SirE. KnatclibuU, Sir Jiimes Graham, Sir W. Follett, Mr. Vorke, 
 Mr. Darby, Mr. Freshfiekl, Mr. James Stewart, (Honiton), Mr. Hayter, Mr, 
 Lynch, Mr. Duckworth, Mr. Stnitt, Mr. Aglionby, Mr. Shaw Lefevre, Mr. 
 A. Sanford, Mr. W. J. Bhike, Loid Viscounl Eastnor, Mr. W. Miles, .Mr. 
 Wrightson, Sii- J. Campbell. 
 
THK SELECT COMMfTTEE OP 1838. :65 
 
 Toluntary agreement should be made under the super- 
 intendence of the Commissioners for Tithe Commutation, 
 if it shall appear that they are enabled to undertake this 
 duty consistently with the due performance of their pre- 
 sent duties. 4. That it is expedient that provision should 
 be made by the legislature for carrying into effect, in the 
 event of the failure of voluntary agreements, a com- 
 pulsory arrangement for the enfranchisement of copy- 
 holds and commutation of heriots, on such a basis as may 
 appear, according to the circumstances of each case, most 
 equitable, so far as regards the interests of all parties 
 affected ; such compulsory settlement to take place imme- 
 diately after the expiration of the period granted for the 
 purpose of making a voluntary agreement." 
 
 The result of these resolutions was the abandonment of 
 the bills introduced ; and shortly after, a committee, con- 
 sisting of the same members, was appointed to consider 
 the enfranchisement of copyholds ; and they made the 
 following report, which, as it is short, and is important in 
 the history of this question, may be here given at length, 
 more especially as it is to be observed, that two of the Real 
 Property Commissioners, (Lord Campbell, then Attorney 
 General, the Chairman of the Committee, and Mr. Duck- 
 worth) were members of the Committee, and assenting to 
 the report. — 
 
 " Your Committee find that, under the existing law, 
 the power to enfranchise copyholds very generally exists. 
 It is usually either incident to the estate of the lord, or it 
 is given to him by the deed or will under which his lands 
 are settled. The .disposition, however, to enfranchise, is 
 by no means equally extensive with the power : this arises 
 in many cases, from ignorance of the just rights of the 
 parties, in others from a desire to preserve undisturbed 
 manorial privileges and authorities ; but in the great 
 majority of cases, from the want of a tribunal in which 
 
 F 
 
66 THE SELECT COMMITTEE OP 1838. 
 
 both parties have confidence to adjust their respec- 
 tive rights. Your Committee regret that any impedi- 
 ment should exist in the way of this enfranchisement. 
 From a very early period complaints have been made 
 against copyholds, and regret has frequently been ex- 
 pressed that they were not included in the great alteration 
 which was made in the law of tenures in the reign of 
 Charles the Second. Very shortly after this change 
 took place, Roger North, in his life of Lord Keeper 
 Guildford, vol. i. p. 36, says : " Small tenements and pieces 
 of land that have been men's inheritances for divers gene- 
 rations, to say nothing of the fines, are devoured by fees : 
 so that if it were only to relieve the poorest of the land- 
 owners of the nation from such extortions and oppres- 
 sions, without more, there is reason enough to abolish the 
 tenure. It was somewhat unequal when the Parliament 
 took away the royal tenures in capitc, that the lesser te- 
 nures of the gentry were left exposed to as grievous abuses 
 as the former.' Your Committee are satisfied that this 
 tenure is ill adapted to the wants of the present day, and 
 is a blot on the juridical system of the country. They 
 consider that the peculiarities and incidents of copyholds, 
 (which have their origin in the villenage of the feudal 
 system) are at once highly inconvenient to the owners of 
 the land, and prejudicial to the general interests of the 
 state. By the nature of the copyholder's tenure, inde- 
 pendent of custom, some of the most valuable productions 
 of the soil are distributed between the lord and the copy- 
 holder, so as to be of little value to either. Thus the lord 
 cannot cut the timber growing on the land without the 
 consent of the tenant, nor can the tenant cut it without 
 the licence of the lord ; the lord cannot open and work a 
 mine under the soil without the consent of the tenant, nor 
 can the tenant ppen and work it without the licence of 
 the lord. It is not surprising that under these circum- 
 
THE SBLECT COMMITl'eK OP 1838. 67 
 
 staiaces, the mine remains unworlied, and the timber has 
 disappeared from the face of the land. Where also the 
 fine payable to the lord is arbitrary, it operates as a tax 
 upon the capital of the tenant, and is a direct eheck to all 
 building, and all agricultural and other improvements. In 
 the cursory mention of the disadvantages of copyholds, 
 and as mDre peculiarly affecting this tenure, heripts must 
 not be forgotten, as perhaps the most grievous and unjust. 
 But your Committee are most desirous of pointing out, 
 that so long as copyholds shall exist, two distinct species 
 of tenure will prevail, mixed up very generally with each 
 other, and causing much needless expense and difficulty, 
 both in the investigation of title, and in the enjoyment 
 and alienation of real property. Under these circum- 
 stances, your Committee have come to the conclusion 
 that the abolition of this tenure would not only be a great 
 public benefit, but should be made, if possible, a national 
 object. They are also of opinion, that no plan which 
 merely leaves the option to the parties to enfranchise, will 
 meet the exigency of the case, and they are, therefore, 
 desirous of seeing a plan of enfranchisement introduced, 
 which shall have a due regard to the rights as well of the 
 lord as the copyholder, - but which shall be eventually 
 compulsory on both. Apian, having this object, was sub- 
 mitted to your Committee, which will be found in the 
 appendix ; but your Committee entertain a strong opinion 
 adverse to the system of arbitration, suggested in the 
 paper alluded to. It has, however, appeared to them that 
 the Tithe Commission, which has been recently estab- 
 lished by act of parliament, might be rendered available, 
 as affording a tribunal well qualified to deal with this im- 
 portant subject. The Tithe Commissioners have for 
 some time pursued an enquiry of an analagous nature, 
 and have at their disposal a machinery adapted for ad- 
 justing the rights of all parties interested in copyholds. 
 
 f2 
 
68 COPYHOLD AND ENFUANCHISEMKN T ACT. 
 
 Your Committee are, therefore, happy to state that the 
 Tithe Commissioners having been applied to, have inti- 
 mated an opinion that they could undertake this duty 
 advantageously, and your Committee beg to refer to their 
 evidence on this subject, which they deem highly satis- 
 factory. In conclusion, therefore, your Committee look 
 forward with confidence to the speedy and entire abolition 
 of this tenure, as a means of greatly simplifying and im- 
 proving the law relating to real property. They earnestly 
 desire that measures may be speedily taken to accomplish 
 this object, with reference as well to lands of customary, 
 as of copyhold tenure. It appears to them that the best 
 mode of effecting it, would be by giving every facility to 
 enfranchisement for a short term of years, and that after 
 that period, the enfranchisement should proceed on the 
 compulsory principle ; and they recommend that a bill 
 having this object, should be introduced in the next ses- 
 sion of Parliament." 
 
 In the next session, 1839, a bill, founded on the recom- 
 mendation of the report, was introduced by the present 
 writer, in conjunction with the Attorney General and Mr. 
 Freshfield, having for its object the gradual but entire 
 abolition of the copyhold tenure, and was read a second 
 time ; and after considerable delay, (the state of parties 
 being very unfavourable for the temperate settlement of 
 the question) and much discussion in both Houses of 
 Parliament, the Copyhold Commutation and Enfranchise- 
 ment Act, (4 & 5 Vict. c. 35) was passed, which has car- 
 ried out the first three of the resolutions come to by the 
 Select Committee of 1838, and must undoubtedly be con- 
 sidered an important step towards a more complete 
 measure. 
 
 By that act, the Tithe Commissioners, according to 
 the recommendation of the report, are constituted Copy- 
 hold Commissioners for a limited period, and are entrusted 
 
COMMUTATION. 69 
 
 with powers for carrying the act into effect. It provides 
 two modes of remedying the evils now affecting the copy- 
 hold tenure. By the first of these, the burdensome inci- 
 dents affecting it, as fines, quit rents, and heriots, may be 
 commuted for a corn rent-charge, leaving the tenure un- 
 touched, and here, the lord consenting, three-fourths of 
 the tenants of any manor in number and value, may bind 
 the remaining fourth at a meeting to be called for that 
 purpose ; and secondly, great facilities are given to en- 
 franchisement — 1. By allowing all lords, whatever may 
 be their interest in the manor, to enfranchise, duly pro- 
 tecting the rights of the remainder-man. 2. By relieving 
 some of the proceedings under the act from stamp duty, 
 and 3. By allowing parties, where twelve or more tenants 
 agree, to enfranchise by way of schedule, which is very 
 much in accordance with the plan already recommended 
 for the transfer of freehold property, in a preceding chap- 
 ter.'^ This schedule, if the parties agree as to terms, is 
 the only document required, and completes the transac- 
 tion. 
 
 The merit of introducing the principle of commutation, 
 (unquestionably a valuable one, and assisting greatly the 
 ultimate enfranchisement of the land) is entirely due to 
 Lord Redesdale, who brought in a bill having that object in 
 view, the provisions of which are the basis of that part of 
 the act which relates to commutation. 
 
 This act was taken by the friends of copyhold enfran- 
 chisement, not only as affording all the relief that the 
 legislature would at that time give, but as greatly further- 
 ing a more complete measure, by carrying into effect the 
 resolutions of the Select Committee of 1838, to a certain 
 extent, and adopting thus far the opinions contained in 
 the Report. The Copyhold Commission is a tribunal 
 adapted (until a better be found) for dealing with this sub- 
 
 ^ See ante, chap. 2. It may be useful to give the form of the schedule 
 issued by the Commission, in the Appendix. See note F. 
 
70 ADVANTAGKS OF ENFRANCHISEMENT. 
 
 ject, and for adjusting the rights of all parties. The act, 
 also, it is to be remembered, admits tlie principle of com- 
 pulsion, although not to a great extent, and certainly not 
 to so great an extent, as I have already shewn, many emi- 
 nent persons consider to be perfectly compatible with 
 justice and safety. But, without further entering into 
 this point, I am desirous of inquiring whether there are 
 not many circumstances connected with the copyhold te- 
 nure, which render it desirable, both for the parties inter- 
 ested, and the community at large, that enfranchisement 
 should proceed as rapidly as possible. 
 
 There are some facts in this question which have, per- 
 haps, never been fully stated, but which, I believe, will be 
 universally admitted to be true. 
 
 The first that I shall mention is, that however easy the 
 copyhold burthens may be, as, for instance, small fixed 
 fines, and nominal quit rents, the lands subject to them 
 almost invariably fetch less money in the market than 
 freeholds in the same neighbourhood. The difference is 
 often as much as two years' value ; but it is something in 
 every instance that has come to my knowledge. In these 
 cases, it is to be remembered, that the profit resulting to 
 the lord from copyholds of this kind, is very inadequate. 
 Very often these quit rents are hardly worth the expense 
 of collecting. In cases so circumstanced, an enfranchise- 
 ment would greatly benefit the tenant, because it would 
 at once enhance the value of his land, by giving him the 
 difference between it and freehold in the market ; and it 
 would take scarcely anything from the lord's profits. 
 
 Again, take the case of heriots. This is an incident 
 which is often extremely vexatious and troublesome to 
 the tenant, but is by no means adequately remunerative to 
 the lord. The payment is constantly evaded. It should 
 be the best beast or the best chattel of which the tenant 
 dies possessed ; but the latter is aware of this circumstance, 
 and by one contrivance or other he manages to hand over 
 
ADVANTAGES OF JiNFR ANCHISEMENT. 71 
 
 on his death, a very sorry beast,' or a very indifferent 
 chattel. The feelings and temper of the times are against 
 the payment, and the tenant thus justifies himself in baulk- 
 ing the lord of his legal rights. On this point I will ven- 
 ture to appeal to the experience of nine lords out of ten, 
 whether the right to heriots is not often more trou^ 
 ble than profit, and whether, in fact, he now receives any 
 thing like his fair claim. Here, then, enfranchisement 
 might safely proceed, to the advantage of all parties. 
 
 Hut with respect to arbitrary fines, which are, in fact,, 
 the great source of profit to the lord, greater difficulties 
 present themselves. These are usually rigorously exacted ;, 
 more rigorously than ever, as 1 have been informed, since 
 the passing of the recent act ; and undoubtedly an enfran- 
 chisement from them, which is a great boon to the tenant, 
 should only be made on a full equivalent to the lord, and 
 the reasonable probabilities of improvement should enter 
 into the consideration. These fines are undoubtedly, so 
 far as the community at large is concerned, the most ob- 
 jectionable feature of the tenure. Here there can be no 
 evasion. This fine is determined by the value of the land 
 on the death of the tenant, or its alienation, or, sometimes, 
 its mortgage in his lifetime ; and in some of the northern 
 counties, a further fine is payable on the death of the lord. 
 It is obvious, under these circumstances, that the enjoy- 
 ment of the land, and its free alienation, is thus greatly 
 hindered and embarassed. Under what disadvantages 
 does the tenant labour, if he improves his land ! But 
 these have been too often pointed out to be here dwelt 
 upon, and I shall not further notice arbitrary fines, than to 
 say, that as many enfranchisements have been made of 
 lands subject to them, there seems a good deal of evidence 
 
 1 This does not, however, always happen. The well-known race-horse 
 Nonsense, was seised as a heriot very recently, thus sharing the fate of 
 Smolensko and Waj:i/ .' 
 
72 ADVANTAGES OF ENFRANCHISEMENT. 
 
 for laying down a satisfactory rule as to enfranchisement 
 in this respect.' 
 
 These are some of the practical disadvantages of the 
 tenure. They prove, as it appears to me, that they injure 
 one class of individuals, without adequately benefiting 
 any other. There are, however, other considerations, of a 
 more general nature, which should be noticed. 
 
 Is it not highly inconvenient, and injurious to the pub- 
 lic, to have two separate codes of law relating to the real 
 property of the kingdom ;— to have one field governed by 
 one set of rules, and the next by another set, entirely dif- 
 fei-ent ; — to have one half of a house descending to one 
 class of heirs, and the other descending to another class ? 
 But this might, perhaps, be endured, if the rules of both 
 codes were equally well defined, and as generally known 
 and understood. But how does this stand ? The rules 
 relating to freeholds are simple and well defined, and well 
 known, or if any new point arises with respect to them, 
 reference may be had to the judges of the land to decide 
 it* But with respect to copyholds, nothing is certain ; 
 "custom is the life of copyholds," and these customs are 
 contained in the court rolls of the particular manor. More- 
 over, they are construed by the steward of the manor, who, 
 to say nothing of his being an interested pai-ty, is certainly 
 more liable to error than the judges of Westminster Hall, 
 Surely, then, looking at the \a.\v as a science, nothing can 
 be more unsatisfactory than to have a large portion of the 
 real property of this country governed by customs which 
 vary with each particular manor ; to have a multitude of 
 small parcels of land scattered throughout the country, 
 each regulated by its own crotchets, which are construed 
 by its own judges, and which are mixed up and dove- 
 tailed in with freeholds, so that in some places it is im- 
 possible to tell which is which. It is of the first import- 
 
 ' Sec Tables issued by the Commission, Table 11. 
 
ADVAMAG&S OF ENFBANCHISEMENT. JS 
 
 ance that the rales of law, more especially the law relating 
 to property, should be simple, accessible, generally known, 
 and easily understood, and, above all things, in all parts of 
 the country uniform. How can this object ever be ob- 
 tained, if the law relating to copyhold and customary 
 tenure remain as it is ? 
 
 I have in this chapter endeavoured to shew that the 
 great bulk of disinterested testimony is opposed to the 
 tenure ; that it is in many respects injurious to all parties 
 concerned ; that the proper rights of parties may in all 
 cases be properly ascertained ; and that a more extensive en- 
 franchisement may well be effected, not only without in- 
 jury, but with considerable benefit to the persons interested 
 in most classes of copyholds, and to the community at 
 large. I believe that the more enfranchisement proceeds, 
 the more land will be brought into the market, and ren- 
 dered available for general purposes ; the more the objects 
 and uses of land, as agriculture and building, will be pro- 
 moted, and this with no greater injury to vested rights 
 than takes place every day in making an inclosure or a 
 railway. 
 
 As an additional reason for proceeding in the enfran- 
 chisement of copyholds, I may mention, that an extensive 
 enfranchisement has recently been made, of lands subject 
 to a similar tenure, in a neighbouring country, to the in- 
 stitutions of which much attention has been lately directed, 
 — I mean Prussia. It has been thought by some, that the 
 copyhold tenure is not of feudal, but of Saxon origin, and 
 as a ground for this opinion. Lord Loughbi'ough called 
 attention to the fact, that in those parts of Germany from 
 whence the Saxons emigrated into England, there existed, 
 in his day, a species of tenure exactly the same as our 
 copyhold estates." This was doubtless the case, and it will 
 be seen that great progress has been made in enfranchising 
 
 '" Grant v. Asiell, 2 Dongl. 726. 
 
74 ENFRANCHISEMENT IN PRUSSIA. 
 
 this kind of tenure in Prussia. Some information on this 
 subject will be found in the evidence taken by the Com. 
 mittee on Copyhold Enfranchisement, to whose report I 
 have referred. The resolutions before given having been 
 read, the Rev. R. Jones (one of the Tithe Commissioners), 
 says, speaking from the information of Mr. Von Raumer, 
 " In Prussia a similar operation is going on, on a very ex- 
 tensive scale, and they have had all the advantages of one 
 complete failure ; they began by fixing a uniform and very 
 heavy rent-charge on the lands held by the boors or serfs, 
 without any regard to the difference of their prescriptive 
 rights : this plan would not work. I understand that their 
 new arrangements, without, I think, absolutely compelling 
 the parties to proceed at any time (though I am not sure 
 of this), allows either to call on certain public officers ap- 
 pointed by the state, to determine the value of their re- 
 spective rights, and thus either party may enforce a final 
 arrangement on the basis of that valuation." And after- 
 wards he was asked the following questions by the chair- 
 man : 
 
 " In the commutation you spoke of now going on in 
 Prussia, are they ascertaining the rights of both lords 
 and serfs ? — Yes, of both ; they are getting rid of the per- 
 sonal degradation of the serfs, and giving them, at the 
 same time, permanent interests in the lands they cultivate. 
 They have to inquire into the mutual rights of the parties 
 on every particular estate, because the prescriptive rights 
 of the serfs have advanced, on different estates, to very 
 different stages. They began by making the great mistake 
 of attempting to apply one common prhiciple to all. They 
 have now adopted a plan, somewhat like that suggested by 
 Sir Robert Peel," by which they are enabled to deal with 
 
 n This was suggested in the following questions : — "Might you not make 
 an offer to each of the parties, to the copyholders on the one side, and to the 
 lord on the other, each to appoint an arbitrator, the Tithe Commissioner 
 
KNFRAN'CHISKMKNT IN PRUSSIA. /O 
 
 the varied rights of different parties. The rest of their 
 arrangements relate to methods of enabling the serf to 
 complete his purchase from his lord. The task is not 
 easy, because the serfs are very poor, and their prescrip- 
 tive rights, which are far less complete than those of the 
 English copyholder, leave the lord a much greater interest 
 in the land. I believe the varied plans adopted, for ena- 
 bling them to purchase, to be very ingenious. 
 
 " Is this scheme now going on prosperously ? — Very : 
 remarkably so, I am told."" 
 
 I find a more particular account of this important 
 change in Mr. Laing's " Notes of a Traveller," very re- 
 cently published, which bear evident marks of care and 
 accuracy. 
 
 " Previous to 1800, landed property was, on the greater 
 part of the Continent, divided into noble or baronial, or 
 peasant roturier, or not noble holdings. The former class 
 of estates could only be held by nobility, and had many 
 unjust exemptions from public burdens, and many oppres- 
 sive privileges attached to them. These baronial estates, 
 by far the greatest in extent, had the peasantry who were 
 born on the land adscripf.i glcebe ; had a right to their la- 
 bour every day for the cultivation of the domain; had 
 civil and criminal jurisdiction over them in the baronial 
 court of the estate ; had a baronial judge, a baronial prison 
 on the estate to incarcerate them, and a bailiff to flog them 
 for neglect of work, or other baronial offences. * * * 
 This system was in full vigour up to the beginning of the 
 present century, and not merely in remote, unfrequented 
 corners of the Continent, but in the centre of her civiliza- 
 tion, — all round Hamburgh and Lubeck ; for instance, in 
 Holstein, Schleswig, Hanover, Brunswig, and over all 
 
 being the umpire ?" " Might not parties have an option, either of leaving 
 the valuation of their rights to arbitrators appointed by themselves, or of 
 applying at once to the Tithe Commissioners ?" 
 " Appendix to Report, p. 10. 
 
76 ENFRANCHISEMENT IN PRUSSIA. 
 
 Prussia. Besides these baronial estates, with the born 
 serfs attached to them, there were Baviern Hofe, or pea- 
 sant estates, which held generally of some baron, but were 
 distinct properties, paying as feu duties or quit rents, so 
 many day's labour in the week, with other feudal services 
 and payments to the feudal superior. The acknowledg- 
 ment of these as distinct legal properties, not to be recalled 
 so long as the peasant performed the services and payments 
 established either by usage or by writings, was the first 
 great step in Prussia towards the change in the condition 
 of the peasantry. It was stretched so far as to include 
 the serfs located on the outskirts of the barony, and pay- 
 ing daily labour for their patches of land, and who origi- 
 nally were intended by the proprietor to be his servants 
 and day labourers for cultivating his mains, or home 
 farmed land, but who, by language and occupation for 
 generations, had beconie a kind of hereditary tenants, not 
 to be distinguished from these occupants, acknowledged to 
 be proprietors, or what we would call copyholders. Prince 
 Hardenberg's energetic administration made all these oc- 
 cupants the absolute proprietors of their several holdings 
 for the yearly payment of the quit rents they had been 
 paying to the baronial proprietor, and had these quit rents, 
 whether paid in labour or other services, or in grain, valued 
 by commissioners at fixed moderate rules, and had them 
 commuted or bought up from the dominant property, 
 under inspection of the commissioners, by the surrender 
 to it of a portion of the land of the servient property, if 
 the peasant had no money for the purchase of the redemp- 
 tion. This great and good measure, which was projected 
 and carried into effect by Stein and Hardenberg in a suc- 
 cession of edicts, from that of October 9, 1807, up to 
 June 7} 1821, is the great and redeeming glory of the reign 
 of Frederic-William 111.; and like all great and good 
 measures, was accomplished with much less difficulty than 
 was anticipated. Feudality had become effete. A strong 
 
ENGLAND NOT KNFH ANCHISED. 77 
 
 and vigorous exertion was necessary to give the people 
 something to defend,— Bome material interest in the 
 country. By this measure Prussia was at once covered 
 with a numerous body of small proprietors, instead of 
 being held by a small privileged class of nobility. "p 
 
 If this change were practicable in Prussia, I think it 
 should be practicable in England. It is to be remembered 
 that in Scotland and Ireland, and almost in the whole of 
 Wales, no copyholds are to be found, and that therefore, 
 in those parts of the countr)^, no such measure is neces- 
 sary. But England is, in this respect, the least favoured 
 part of the empire, and I have no hesitation in saying 
 that the copyhold tenure is one great check and hindrance 
 to improvement. Among otiier benefits that enfranchise- 
 ment would confer, the increase and improvement of 
 "small holdings," the advantage of which has been already 
 urged in these pages,i would not be the least/ 
 
 p Notes of a Traveller, &c. by Samuel Laing, Esq. London, 1842, pages 
 S.i — 5. ' See ante, p. 
 
 " Before closing this chapter, I am glad to have an opportunity of carrying 
 this general expression of professional opinion against the existence of this 
 tenure down to the present moment, by the publication of the valuable 
 Commentaries of IMr. Serjeant Stephen, (one of the Common Law Commis- 
 sioners) which I have just had the opportunity of perusing. At the close of 
 the chapter on Copyholds, he says : — " We have endeavoured thus to trace 
 the principal features of the law of copyholds, one of the most unsatisfactory 
 divisions (it must be owned) of the general fabric of our jurisprudence. It 
 is open, at first sight, to the censure of being an unnecessary and embarass- 
 ing variation upon the fundamental scheme of tenure ; and it has been justly 
 remarked by the Commissioners appointed (9 Geo. IV.} to revise the law of 
 real property, that where the complexity which must always belong to the 
 legal institutions of a civilized country ' is wantonly aggravated by the ad- 
 mission of several concurring systems, serious mischiefs are likely to arise 
 from the ignorance or forgetfulness of practitioners, and even of judses, 
 however carefully selected.' Many inconveniences are also pointed out by 
 the same learned persons, as incident to the nature of copj-hold tenure, in- 
 dividually considered, of which the piincipal appear to be the multiciplicity 
 and uncertainty of the different manorial customs on which it depends — the 
 check to agricultural improvement, occasioned by the state of the law with 
 respect to timber and minerals — the liability to arbitrary fines — the nume- 
 rous payments due to stewards on account of fees, and the vexatious and 
 oppressive character of Ueriols."^Vol. 2, pp. CO — 61. 
 
[ 78 
 
 CHAPTER V. 
 
 THE CONSOLIDATION AND DIGESTINO OF THE STATUTE 
 AND COMMON LAW. 
 
 I NOW enter upon a subject which is even more important 
 than any of the others which I have ventured to bring 
 before the reader. However generally interesting those 
 subjects may be, they relate only to a part of the law. In 
 the present chapter, I must glance at the state of the whole 
 body of our law, and the sources from which it is derived. 
 
 The well-known division of written and unwritten law 
 is quite sufficient for my purpose — the lex scripta, the 
 written or statute law ; and the le.v non scripta, the un- 
 written or common law, which are generally familiar to 
 my readers. It is sufficient here to say that the written 
 law consists of statutes made by Parliament, and the un- 
 written law, consists for the most part, of the reported 
 opinions of the judges of the courts of law and equity. 
 
 From these two sources, is derived the law of the land, 
 and it will be easy to show that each of these is in a very 
 unsatisfactory state, not in the enactments, rules, or prin- 
 ciples therein contained— for that is not the present ques- 
 tion—but in the mode in which they are rendered available 
 to the public ; that this is so inconvenient and confused, 
 as materially to injure the operation of the rules or prin- 
 ples themselves. 
 
 And first, as to the state of the statute law; and here I 
 am saved all trouble, by being able to refer to the report 
 
STATUTE LAW. 
 
 1^ 
 
 of the commissioners' appointed to consider '^ how far it 
 may be expedient to consolidate the different branches of 
 the statute law, or any of them." They have entered very 
 fully into the subject, and have come to the following 
 results : — 
 
 " That a revision and alteration of the statute law, 
 founded on the principle of mere reduction and expurga- 
 tion, would be advantageous, and perfectly safe. 
 
 " That the process would be still more advantageous, if 
 such an arrangement were added, as rendered the statute 
 law more accessible without diminishing the aid derived 
 from order of time and context of enactments, and such 
 discretionary alterations were also made in consolidating 
 and generalizing enactments, removing obvious ambigui- 
 ties, and supplying obvious omissions, as could be effected 
 without incurring the risk of misconception and uncer- 
 tainty. 
 
 " That such alterations, though safe, advantageous, and 
 necessary, would not afford a complete remedy for existing 
 evils. 
 
 "That no plan of reformation, short of remodelling the 
 statute law on the principle above proposed, \viz. a con- 
 solidation of the statutes which should adjust their appa- 
 rent meaning to precedent and judicial decision] would be 
 co-extensive with those evils ; that whilst such a reform 
 would be highly desirable, and is in our judgment prac- 
 ticable, its execution would be difficult, would require the 
 greatest caution, and occupy a considerable portion of 
 time." 
 
 These results have been, I believe, universally admitted 
 to be the correct ones, and the only remark to be made is, 
 that although this report was presented in July, 1835, no 
 step has been taken to carry its recommendations into 
 
 • The Commissioners who signed the Report, are Mr. Starkie, Mr. [J. 
 Bellenden Ker, Mr. Justice Wightman, Mr. Amos, and Mr. John Austin. 
 
80 DIGEST OF THE COMMON LAW. 
 
 effect. Some valuable additional- testimony on the sub- 
 ject will be found in the evidence before the Select Com- 
 mittee on Public Bills, which made its report in August 
 1H36. J may particularly call attention to the valuable 
 information contained in the evidence of Mr. John Duer, 
 an eminent barrister of the state of New York, one of the 
 commissioners appointed to consolidate the statute law of 
 this state, who fully explains the mode in which that useful 
 work was there effected, and shewed, at great length and 
 in detail, its practicability in this country. But as this is 
 not, I think, disputed, I need not say one word further on 
 this head, than that I cannot but regret that more than 
 seven years have been suffered to expire, without any step 
 having been taken towards a general and systematic con- 
 solidation of the statute law. Seven years, I say, because 
 every year makes the evils arising from this state of 
 things, greater.*" 
 
 But I pass on to the necessity for a consolidation and 
 digest of the common lavi', on which more doubt is enter- 
 tained, but which, I believe, I shall be able to show is 
 quite as practicable, and would be attended with even 
 greater advantage. 
 
 And first, it appears to be necessary to shew what is the 
 present state of the common law, and to consider whether 
 it is in a satisfactory condition, and whether it is in all 
 respects so perfect in theory, and so admirably carried 
 out in practice, that we should hold it in sacred reverence, 
 and not allow a finger to be laid upon it. 
 
 I may give, in the first place, Blackstone's account of 
 the law reports. " The reports are extant, in a regular 
 series, from the reign of King Edward the Second inclu- 
 
 t" I do not now enter into the question as to the mode in which public 
 and private legislntion is at present conducted, and whether it might be im- 
 proved. Much information on this interesting subject, may be found in the 
 Report and Evidence referred to, and in the Evidence before the various 
 Committcos of tlie House of Commons on Private Business. 
 
blacRstone's opinion as to law reports. 81 
 
 sive, and from his time to that of Henry the Eighth, were 
 taken by prothonotaries, or chief scribes of the court, at 
 the expense of the crown, and published annually, whence 
 they are known under the denomination of Year Books. 
 And it is much to be wished that this beneficial custom 
 had, under proper regulations, been continued to this day, 
 for though King James the First, at the instance of Lord 
 Bacon, appointed two reporters, with a handsome stipend 
 for this purpose, yet that wise institution was soon ne- 
 glected, and from the reign of Henry the Eighth to the 
 present times, this task has been executed by many private 
 and contemporary hands ; who, sometimes through haste 
 and inaccuracy, sometimes through mistake and want of 
 skill, have published very crude and imperfect (perhaps 
 contradictory) accounts of one and the same determina- 
 tion."'- The faults, then, of the reports of his day, accor- 
 ding to Blackstone, were 1. That they were hasty. 2. That 
 they were inaccurate. 3. That they were mistaken. 4. That 
 they were unskilful. 5. That they were crude and imperfect, 
 and perhaps contradictory. A heavy catalogue of faults 
 from one who never censured the existing state of the law, 
 except under the greatest pi'ovocation. 
 
 I wish that I could say that in the sixty years which have 
 passed since this condemnation was written, the system 
 had changed for the better. 1 am bound to say that, to the 
 faults laid by Blackstone to the charge of the system of law 
 reporting, many additional ones may now be numbered.'' 
 The present state of law reporting, is, in fact, an admitted 
 grievance of enormous magnitude, and without wishing 
 to use an offensive expression to any one individual, I 
 must be permitted freely to point out some of its evils. 
 
 « 1 Bla. Com. p. 71. 
 
 ' See, as evidence of this, a book showing much industry, called "The 
 Hand Book, being a Guide to the Chancery Judges' Opinions of the peculi- 
 arities and faults of the various Decisions and Reports in Chancery, Bank- 
 ruptcy, &c. By George Farren, jun., Esq., Chancery Barrister. 1839." 
 
 O 
 
82 PRESENT STATE OF LAW REPORTING, 
 
 How, in fact, does it now stand ? How is the law now 
 made ? It is an undisputed fact that any barrister and 
 bookseller, who unite together for purposes of pleasure, 
 notoriety, or profit, can make as much law as the public 
 will purchase, or as they can afford to print and publish. 
 It may be, that the reports may not be read, or may not 
 sell,' — that they may be inaccurate, — that they may be of 
 little or no authority. They, nevertheless, remain ; they 
 tend to confuse the science ; they muddy the stream, and 
 bring on, more esppcially in some after age, all the evils de- 
 scribed by Blackstone. 
 
 But even if all the reports which are published, were 
 correct, and given by competent persons, they are now so 
 numerous, that they cannot be known to one tithe of the 
 practitioners in the law. The great bulk of the profession 
 relies on Treatises and Digests compiled by individuals, 
 which are sometimes of great merit ; at other times, very 
 indifferent : but be this as it may, the reports of adjudged 
 cases, both past and present, are beyond the reach, not 
 only of the public, but of the great body of the profession. 
 Indeed, it is not too much to say, that no judge or bar- 
 rister (far less solicitor,) takes in all the current reports. 
 There are in the House of Lords, and all the courts of 
 common law, two regular series of reporters. There is 
 one regular series in all the E(|uity and Bankruptcy Courts, 
 besides several irregular sets of reports, which are more 
 or less recognized. Wherever there is the smallest open- 
 ing, the profitable trade of law bookselling thrusts in an- 
 other barrister, and another series of reports is the conse- 
 quence, and the competition of the trade is thus carried 
 on without regard to the interests of the profession or 
 public. The gentlemen who undertake these reports are 
 often highly competent men : as a proof of this, many 
 of them have been raised to the Bench j to say nothing of 
 the profit arising from the duty, it is a good channel to 
 
PRESENT STATE OF LAW REPORTING. 83 
 
 professional notoriety ; but here is one great evil of the 
 system. If the reporter has other professional engagements, 
 he loses his anxiety about his reports ; he throws up his 
 office when he pleases, (and cannot be blamed for this,) 
 and it has been held, that the booUseller cannot compel 
 him to perform it. Thus we have chasms in our law re- 
 ports, which will occur readily to any professional reader, 
 which can never be supplied. 
 
 There is, in fact, no certainty as to the reports thus com- 
 piled. The publication depends on the leisure and other 
 occupations of the reporter, and thus a suit may be insti- 
 tuted, or an action brought, which a case subsequently 
 reported may render utterly untenable. The case may 
 have been decided, but it may not be reported for years 
 afterwards. 
 
 I say nothing as to the present style of reporting. Still 
 it will hardly be denied, that with one or two exceptions, 
 the reports are too long, too verbose, and not sufficiently 
 select in the cases reported. There is, in fact, a great 
 deal too much of book-making about them, and there is 
 an unseemly competition between the reporters, which is 
 very inconvenient. This must occur, so long as they are 
 published under the present system. To remedy its evils, 
 we might, perhaps, with advantage, restore the system, 
 with some modification, recommended by Lord Bacon, and 
 established by James the First,' the departure from which 
 is so regretted by Blackstone, as already noticed. There 
 seems good reason to think that it would be a great im- 
 provement on the system of law reporting, if authorized 
 reporters were appointed by the judges, who should have 
 8 sufficient stimulus to bring out their reports early, by 
 being remunerated by their proceeds, and should be placed 
 by this remuaeration, and a certain professional status, out 
 of all improper judicial controul. 
 
 ' Seep. 81. 
 g2 
 
84 
 
 OFFICIAL RBPORTEKS. 
 
 This is already the practice in the House of Lords, in 
 this country, and in the most enlightened states of Ame- 
 rica. In the courts of these latter countries, the reporters, 
 both in salary and rank, come next after the Attorney 
 General of the state. Doubtless, the proper persons for 
 the appointment would be the most eminent of the pre- 
 sent reporters. I do not mean, however, to say that other 
 reports should be prevented. But they need not be re- 
 cognised or assisted by the judges. 
 
 An alteration in the system of law- reporting is not how- 
 ever a necessary adjunct to the Digest of the Law. It 
 might go hand in hand with it : but the Digest is far 
 more important, and more practicable. 
 
 Granting, then, that the reporters are fully competent, 
 and that every proper case is well reported, and no others, 
 the great charge thati bring against the present state of the 
 common law is, that it is now so unwieldy, so overgrown, 
 that it becomes a matter of necessity to attempt some reduc- 
 tion of it, some digest of it for the general benefit, not only 
 of the public at large, but of the profession of the law ; and, 
 to show I do not in any respect exaggerate the grievance, 
 I will make a short extract from the work of Mr. Hum- 
 phreys, as to the sources of the law of real property. 
 
 " First, the reports from the Year Books (which begun 
 in Edward II.'s time, inclusive, down to the present time), 
 consist of about 364 volumes, namely 88 folios, 8 quartos, 
 and 268 octavos. In these are not included reports re- 
 lating to the Courts of Admiralty, elections, settlement 
 cases, magistrates, &c. nor Irish reports. The multitu- 
 dinous mass of modern reporters has, however, become 
 unmanageable, even with the assistance of the copious 
 indexes annexed to each volume. To render their con- 
 tents accessible, digested indexes have from time to time 
 been framed of the more modern reports, both at law and 
 in equity, forming now a tottil of 33 volumes. 
 
. SOURCES OF THE COMMON LAW. 85 
 
 *' Secondly. The text books or treatises consist of about 
 184 volumes, the principal part of which are octavos. 
 About 1 14 of them relate solely to real property ; the re- 
 mainder are of a mixed character. 
 
 " Thirdly. The statutes, from the reign of Hen. 111. in- 
 clusive, down to the present time, are comprised, in Ruff- 
 head's quarto edition, in twenty-six volumes. Various 
 abridgments and indexes have been compiled of them, in 
 about twenty volumes. 
 
 ^^ Fourthly. The digests and abridgments of the law 
 consist of fourteen distinct compilations, comprised in 
 sixty-seven volumes, of which the greater part are oc- 
 tavos, and the residue folios and quartos. 
 
 " The result is, that our laws of real property are to be 
 sought in the copious library of 664 volumes, exclusive of 
 indexes to the statutes. If from this collection we make 
 a liberal deduction for obsolete and redundant treatises, 
 and works of slight esteem, or only occasional relevancy, 
 there will still remain a total of upwards of 600 volumes." 
 
 This, it is to be remembered, is as to real property 
 alone. Almost all these volumes are also necessary for 
 the other branches of the law. But then each of these 
 branches has its own peculiar books, so that, taking them 
 into account, and also the reports and treatises published 
 since Mr. Humphrey's treatise, about fifteen years ago, 
 and omitting the statutes, it is not too much to say that 
 the necessary books relating to the common law now 
 amount to 1000 volumes. And to this, it is to be remem- 
 bered, are yearly added about twenty closely printed vo- 
 lumes in the shape of reports, costing about 60/. per 
 annum, and at least ten more in the shape of treatises, 
 costing at least 10/. more, forming, altogether, the greatest 
 mass of undigested law' that has probably ever existed. 
 
 ' Let me here cite, in illustration of this, what' is said by the Criminal Law 
 Commissioners. Their remarks on the materials of the criminal law equally 
 
86 CHANGE Of PRINCIPLKS NOT NECESSARY. 
 
 Surely then, if it be possible, this unwieldy mass should 
 be reduced and consolidated into some greater order, and 
 should be rendered more accessible to all. And next 
 comes the question, how is this to be done ? 
 
 And let me here, before I go further, explain what I 
 wish to propose ; and let me once for all say, that by a 
 consolidation of the law, I mean no change of its prin- 
 ciples, — no departure from the settled landmarks of the 
 law, which long experience has established ; but simply a 
 repeal of all obsolete and exploded cases — a purging away 
 of all useless and obstructing matter, — a methodical ar- 
 rangement of all that now makes up a rude and undigested 
 heap ; — a digest of the law by the most fitting and compe- 
 tent persons in each of its branches, acting on uniform 
 principles, and regulated by certain fixed rules laid down 
 for their guidance by some common chief. To say that 
 this work would require able hands to perform it, much 
 time to complete it, severe labour to perfect it, is to say 
 what nobody pretends to deny; but it need not be held to 
 be impossible, because it is difficult and tedious. Men 
 would be found — when have they ever been wanting, when 
 a great work was to be achieved ?— able and willing for 
 
 apply to other branches. " These materials consist of the decisions of the 
 courts, and the principles collected from the text writers. The decisions 
 relating to the common law of crimes are dispersed through the reports, 
 reaching up to the earliest period of our judicial annals. They are not con- 
 fined to collections of Crown Cases, or of Nisi Prius decisions, but they are 
 even occasionally to be met with in the reports of cases in the Court of 
 Chancery. And though the modern text books serve as a tolerable index to 
 the printed decisions, yet they are in many respects imperfect. For example, 
 a great number of rulings upon points of criminal law are to be found in 
 private manuscripts only." 1 Crim. Law Report, p. 2, Thus, also, we may 
 observe, that many of the most important questions relating to real property 
 law have been decided in settlement cases ; yet how many conveyancers 
 have the reports, exclusively devoted to these cases, in their libraries ? The 
 whole argument of the Criminal Law Commissioners, as contained in their 
 first Keport, is equally applicable to other branches of the law, as we sliall 
 hereafter shew. 
 
CONSOLIDATION OF THE LAW. 87 
 
 the duty. Time thus nobly engaged would soon pass 
 away, and the task, once heartily commenced. Would soon 
 make progress. When we consider the digests we have 
 already— when we remember the Bacons, the Comyns, and 
 the Viners, — when we see what individual industry has 
 already performed in each case in this very way ; why are 
 we to suppose that a body of men could not perform a 
 little more ? 1 am not going to contend, that after all, this 
 digest would be a small book which might be thrust into 
 the waistcoat pocket ; neither do I say that we could all 
 at once disincumber ourselves of our present law libraries ; 
 but I do contend that we might do a great deal, both in 
 reducing the bulk, and diminishing the number of our law 
 reports ; that if we reduced the sources of law from one 
 thousand to twenty or thirty volumes, that much good 
 would be done ; that if, by degrees, the great mass of ma- 
 terials which now cover over, and almost bury the principles 
 of the law, could, by degrees, be got rid of, inestimable 
 advantages would accrue, both to the law as a science, and 
 to the public, who take it for their guide : and that this 
 maybe done, I do not despair. 
 
 I wish then, first, to shew that I am not singular in this 
 opinion, that a consolidation of the law is both desirable 
 and practicable ; that the proposal for the consolidation 
 of the law is no loose floating opinion, bred by the mere 
 desire of change, or hastily adopted by men ignorant of 
 the subject. I shall shew that it is the deliberate judg- 
 ment of the men best entitled to be heard respecting it ; of 
 men who have at once been practical lawyers, and who 
 have attained the most eminent stations in the law. I shall 
 shew that it has been recommended by various eminent 
 persons, at different important periods in our history; and 
 that it comes down to us swelled by the accumulated tes- 
 timony, in its favour, of the many, of the wisest, and the 
 best. I think, also, I shall shew that the bare idea alone 
 
88 LOUD bacon's opinion - 
 
 has not existed, but the means of effecting the work havfe 
 been pointed out. 
 
 I will first mention the opinion of Lord Bacon on this 
 subject, who, it will be remembered, was a practical 
 lawyer— a legal author— one who passed through all the 
 stages of the wor'king lawyer's career. I shall shew that 
 he proposed the consolidation of the common law ; and 
 that this proposition has about it every circumstance which 
 can give it weight and demand attention. It is entitled,^ 
 " A Proposition to his Majesty, by Sir Francis Bacon, Knt. 
 his Majesty's Attorney General, and one of his Privy 
 Council, touching the compiling and amendment of the 
 Ivaws of England." Bacon, one of the most eminent men 
 that ever lived, while filling the place of the first law officer 
 of the Crown, addresses his sovereign thus : " Your Ma- 
 jesty of your favour having made me a Privy Councillor, 
 and continuing me in the place of your Attorney General, 
 (which is more than was done these hundred years before) 
 I do not understand it to be, that by putting off the deal- 
 ing in causes between party and party, I should keep holy- 
 day the more, but that I should dedicate my time to your 
 service with less distraction ; * * * and after I had 
 thought of many things, I could find in my judgment none 
 more proper for your Majesty as a master, nor for me as a 
 workman, than the reducing and recompiling of the Laws 
 of England." He then goes through the varions objec- 
 tions which may be urged against the proposition, which 
 we shall notice. Obj. 1. " That it is a thing needless, and 
 that the law, as it now is, is in good estate compared to 
 any foreign law." This he answers, but, as I have already 
 stated how the law stands at the present day, which is 
 more important for my pi-esent purpose, I pass to "Obj. 2. 
 That it is a great innovation, and innovations are dange- 
 rous beyond foresight. Resp. AUpurgings and medicines, 
 
 » Bacou's Works, by Montagu, Vol. 5, p. 3."7, etsej. 
 
ON THE CONSOLIDATION OF THE LAW 89 
 
 either in the civil or natural body, are innovations, so as 
 that argument is a common plea against all noble reforma- 
 tions. But the truth is, that this work ought not to be 
 termed or held for any innovation in the suspected sense. 
 For those are the innovations which are quarrelled and 
 spoken against, that concern the consciences, estates, and 
 fortunes of particular persons ; but this of general ordi- 
 nance presseth not particulars, but passeth sine strepitu. 
 Besides, it is on the favourable part, for it easeth, it pres- 
 seth not ; and lastly, it is rather matter of order and ex- 
 planation than of alteration ; neither is it without prece- 
 dent in former governments." He then mentions the va- 
 rious precedents for a new digest of the law, to which I 
 need not now advert. " Obj. 3. In this purging of the 
 course of tlie common laws and statutes, much good may 
 be taken away. Resp. In allpurgings some humours may 
 pass away, but that is largely recompensed by lightening 
 the body of much bad." Obj. 4. "Labour were better 
 bestowed in bringing the common laws of England to a 
 text law, as the statutes are, and setting both of them 
 down in method and by titles. Resp. It is too long a busi- 
 ness to debate whether " lex scripta aut non scripta," or 
 text law, or customs well registered, with received and ap- 
 proved grounds and maxims, and acts and resolutions, 
 judicial from time to time duly entered and i-eported, be 
 the better form of declaring and authorising laws. But, 
 howsoever that question be determined, I dare not advise 
 to cast the law into a new mould. The work which I pro- 
 pound tendeth to pruning and grafting the law, and not 
 to plowing up and plaiiting it again : for such a remove 
 I should hold indeed a perilous innovation." Obj. 5. ''It 
 will turn the judges, councillors of law, and students of 
 latv, to school again, and make them to seek what they 
 shall hold and advise for law ; and it will impose a new 
 pharge upon all lawyers to furnish themselves with new 
 books of law. Resp. For the former of these, touching 
 
90 LORD bacon's opinion 
 
 the new labour, it is true it would follow if the law were 
 new moulded into a text law ; for then men must be new 
 to begin ; and that is one of the reasons for which I dis- 
 allow that course. But in the way that I shall now pro- 
 pound, the entire body and substance of law shall remain, 
 only discharged of idle and unprofitable or hurtful matter, 
 and illustrated by order to their helps, towards the better 
 understanding of it, and judgment thereupon. For this 
 latter, touching the new change, it is not worthy the speak- 
 ing of in a matter of so high importance; it might have 
 been used of the new translation of the Bible, and such 
 like works. Books must follow sciences, and not science 
 books. This work is to be done, to use some few words, 
 which is the language of action and effect, in this manner. 
 It consisteth of two parts, the digest or recompiling of the 
 common law, and that of the statutes. In the first of 
 these three things are to be done; I, The compiling of a 
 book " De antiquitatibus juris." 2. The reducing or per- 
 fecting of the course or corps of the common law. 3. The 
 composing of certain introductive and ancillary books 
 touching the study of the laws." To the first and third I 
 need not now advert, but I wish to call particular atten- 
 tion to Bacon's mode of effecting the Digest of the exist- 
 ing laws. "For the second," he says, "which is the 
 main, there is to be made a perfect course of the law, in 
 scire temporis, or year books, as we call them, from Ed- 
 ward the first to this day. In the compiling of this course 
 of the law or year books, the points following are to be 
 observed. First, all cases which are at this day clearly 
 no law, but constantly raled to the contrary, are to be left 
 out ; they do but fill the volumes, and season the wits of 
 students, in a coiitrary sense of law. And so, likewise, all 
 cases wherein that is solemnly and long debated, whereof 
 there is now no question at all, are to be entered as judg- 
 ments only, and resolutions, but without the arguments. 
 
ON THE CONSOLIDATION OF THE LAW. 91 
 
 which are now become but frivolous ; yet, for the obser- 
 vation of the deeper sort of lawyers, that they may see how 
 the law hath altered, I do advise that upon the first in turn 
 of those obsolete cases there was a memorandum set, that 
 at that time the law was thus taken, until such a time, &c. 
 Secondly, Homonymice, as Justinian calleth them, that is, 
 cases merely of iteration and repetition, are to be purged 
 away, and the cases of identity which are best reported 
 and argued to be retained instead of the rest; the judg- 
 ments are nevertheless to be set down, every one in time 
 as they are, but with a quotation or reference to the case 
 where the point is argued at large ; but if the case consist 
 part of repetition and part of new matter, the repetition is 
 only to be omitted. Thirdly, as to the Antitiomice cases 
 judged to the contrary, it were too great a trust to refer to 
 the judgment of the composers of this work to decide the 
 law either way, except there be a current stream of judg- 
 ments of later times ; and then I reckon the contrary 
 cases amongst cases obsolete, of which I have spoken be- 
 fore ; nevertheless, this diligence would be used, that such 
 cases of contradiction be specially noted and collected, to 
 the end those doubts that have been so long militant, nay, 
 either by assembling all the Judges in the Exchequer 
 Chamber, or by Parliament, be put into certainty. For to 
 do it by bringing them in question under feigned parties, 
 is to be disliked, " Nihil habeat forum exscena." Fourthly, 
 all idle queries, which are but seminaries of doubts and 
 uncertainties, are to be left out and omitted, and no que- 
 ries put down but of great doubts, well debated, and left 
 undecided for difficulty. Lastly, cases reported with too 
 great prolixity would be drawn into a more compendious 
 report, not in the nature of an abridgment, but tautologies 
 and impertinence to be cut off : as for misprinting and in- 
 sensibly reporting, which, many times, confound the stu- 
 dents, that will be " obiter " amended ; but more princi- 
 
92 SIR M. halk's opinion. 
 
 pally, if there be any thing in the report which is not well 
 warranted by the record, that is also to be rectified : the 
 course being thus compiled, then it resteth but for your 
 Majesty to appoint some grave and sound lawyers, with 
 some honourable stipend, to be reporters'' for the time to 
 come, and then this is settled for all times." I have made 
 this long (though certainly not lengthy) extract, first, be- 
 cause this proposition is not contained in all the editions 
 of Lord Bacon's works ; but secondly, because, in my 
 opinion, it cannot be repeated too often, or read too care- 
 fully.' Here we have distinctly the plan on which the 
 proposed Digest of the law might be safely compiled. It 
 is strictly applicable to the present state of the law, —far 
 more applicable, indeed, than in the time of Lord Bacon ; 
 for certainly the " Homonymice, or cases of iteration and 
 repetition," the '^a?j/moOT?«, or cases judged to the con- 
 trary," and " the cases reported with too great prolixity," 
 have abundantly increased since his day, as I have already 
 shewn. It was, then, the deliberate opinion of Lord Bacon, 
 that this digest was a safe, practicable, and most desirable 
 work. This opinion was afterwards reiterated in his 
 " Offer to King James of a Digest to be made of the Laws 
 of England."'' But, probably, I have now sufficiently 
 called attention to the opinion of Lord Bacon on this sub- 
 ject. 
 
 I will next cite that of Sir Matthew Hale. This is con- 
 tained in the preface to RoUe's Abridgment, in which, 
 
 '■ " This constitution of reporters I obtained of llie Ising after I was chan- 
 cellor, and there are two appointed, \yith 100/. a-year a-piece stipend." — 
 Lord Bacon' s note. See as to this, ante, pp. 81-81, 
 
 ' It is to be observed that Sir Robert Peel, in his great speech on the state 
 of the Criminal Law, on the 9th of March, 1826, cited this address of Lord 
 Bacon with approbation, and read a long extract from it to the House of 
 Commons. See Hansard Deb. Vol.14, p. 1214. The speech is printed 
 from one corrected by the Right Honourable Baronet. 
 
 ^ Bacon's Works, Vol. 5, p. 353. 
 
SIR M. halk's opinion. 93 
 
 after condemning all inconsiderate change, he thus pro- 
 ceeds : — 
 
 " The ancient Romans, who gloried no less in their 
 laws than in their military discipline, found this to be 
 true, namely, that in tract of time some of their laws 
 grew contradictory, some obsolete, some impractical, some 
 obscure, and the whole bulk of them too voluminous ; so 
 that in Justinian's time, there was an incredible number 
 of versicles and volumes of their laws ; whereupon that 
 excellent prince, by the advice of a great council or college 
 of learned men, (as once our English Justinian, King Ed- 
 ward the First, did by the laws of Wales,) reduced them 
 into a better compendium, which makes up now the body 
 of the civil laws. And trilly, considering to how great a 
 bulk the volumes and books of the common law have in 
 process of time arisen, how many disagreeing reports there 
 are touching the same matter, how many seeming contra- 
 dictory opinions that would be explained or settled, how 
 many titles are disused, it were to be wished that some 
 complete corpus Juris communis were extracted out of the 
 many books of our English laws for the public use, and 
 for the contracting of the laws into a narrower compass 
 and method, at least for ordinary study. But this is a 
 work of time, and requires many industrious and judicious 
 hands and heads to assist in it." 
 
 And further, in his valuable tract before adverted to, 
 intituled " Considerations touching the Amendment of the 
 Law," he adverts to the same subject. 
 
 I need only mention one other opinion on this subject, 
 because I cannot persuade myself that the general prin- 
 ciples here contended for will be much disputed. It is 
 that of Sir Samuel Romilly ; and here we have another 
 instance of the most eminent practical lawyer of his day, 
 recommending the change which I am now advocating. 
 We have recently seen that his other recommendations for 
 
94 SIR s. romilly's opinion. 
 
 the reform of the lavr, have been passed into law. I can- 
 not think that the time is far distant, when this opinion 
 will meet the attention it deserves. It is contained in his 
 memoirs, recently published by his sons, in that part of 
 the work called a " Diary of his Parliamentary Life. — 
 8th Jan. 1818. While I was on my visit to Bentham, 
 last Autumn, at Ford Abbey, he gave us a little work he 
 had just printed, and to which he has affixed one of his 
 quaint titles." " Papers relative to codification and public 
 instruction ; including correspondences with the Russian 
 Emperor, and divers constituted authorities in the Ame- 
 rican United States.' I amused myself after my return 
 to Parliament, with writing a paper on this work, which I 
 have given to Brougham to insert in the Edinburgh Re- 
 view, and it has accordingly appeared in the number which 
 has just been published, and which is in the Review for 
 November last. My principal object in writing it was to 
 draw the attention of the public to those evils which ap- 
 pear to me to be inseparable from an unwritten law, and 
 as is the common law of England^ I have spoken in it 
 of Bentham with all the respect and admiration I enter- 
 tain of him, but I have thought myself bound not to dis- 
 guise his faults. I shall be extremely concerned, if what 
 I have said should give any offence."' 
 
 The paper to which Sir Samuel Romilly alludes, will be 
 found in the 29th volume of the Edinburgh Review, p. 217, 
 and as this work is of easy reference, it is unnecessary to 
 give the opinions contained in it at length. It is sufficient to 
 say that he strongly condemns the present state of the com- 
 mon law, and even goes to the extent of recommending the 
 conipilation of a code of law. I shall content myself with 
 one extract, as shewing the state of the law in the time in 
 which it was written, about twenty-four years ago : — 
 
 Memoirs, vol. 3, yi, 321, 8vo. edit. 
 
SIR s. komilly's opinion. 95 
 
 " Of a law, proceeding from such sources, it is not sur- 
 prising that it is found to be uncertain, intricate, obscure, 
 perplexed, inconsistent, full of refinement and subtlety, 
 and subject to continual fluctuation. The law which is 
 every term discovered and brought to light by the judges, 
 seems to vie in extent with that which is made by the 
 Parliament, and the lawyer's library is every year enlarged 
 by one bulky volume of statutes, and by several volumes 
 of reported decisions. The new statutes of each year are 
 swollen out to a bulk surpassing that of the year which pre- 
 cedes it, and every frpsli term seems to be prolific of more 
 judicial reports than the term which went before it. So 
 considerable are the changes and augmentations which 
 are thus continually taking place in English Law, that the 
 treatises, essays, and compilations which have been com- 
 posed on various legal subjects, require to be from time 
 to time renewed, that they may not mislead those who 
 consult them, and upon many heads, an old law treatise 
 is of as little use as an almanack for a year that has ex- 
 pired. The duties of a justice of the peace were formerly 
 comprised in one small duodecimo volume ; they are now 
 to be searched for in four or five large octavos, containing 
 altogether 4400 pages," To this size. Burn's Justice has 
 been gradually expanded in the course of the twenty-two 
 editions which, during a period of sixty years, it has 
 passed through. So many new reports have been printed, 
 and so many new statutes made, that as the publisher 
 tells us in the advertisement to the 15th edition, ' every 
 new edition to keep pace with the law, is in eifect a new 
 book.' " 
 
 Thus far, then, I have shewn, that at three diflferent 
 periods of our history, Lord Bacon, Sir Matthew Hale, 
 
 m The last edition of Burn's Justice, published in 1837, contains nearly 
 double that number 
 
96 Mil. BARON ALBERSOn's OPlNtON. 
 
 and Sir Samuel Romilly, have recommended a consolida- 
 tion of the common law. I might easily cite the opinions 
 of other eminent men to the same effect, but I think I need 
 hardly give them, particularly as I believe that many of 
 the judges of the present day agree with those great men, 
 whom I have already named. I find from one of the wit- 
 nesses examined by the Select Committee on Public Bills, 
 that Mr. Baron Alderson " observed before a Committee 
 of the House of Commons, that the enormous increase of 
 the law, and the number of law books published day by 
 day, would soon reduce the English law to the state in 
 which the old Roman law was at the time of Justinian, 
 when it was necessary to have a digest of the laws to what 
 was proper, and what not ; at present, the reports were 
 mere registers of particular decisions."'' 
 
 I have already shewn that the state of the law does not 
 differ at the present day from the state in which it was at 
 the times to which I have referred ; that the cases are not 
 reported with greater care, nor are they less numerous ; 
 that there is no material improvement in this respect since 
 the time of Bacon, of Hale, or of Romilly. I have also 
 shewn that the system which stands opposed to the declared 
 opinions of these eminent persons, exists at the present 
 day, with even more glaring faults. And I am sure I need 
 not remark that, if a digest of the law were necessary in 
 the time of Lord Bacon, or of Sir M. Hale, how much 
 more is its necessity forced upon us, when the reports 
 have increased one hundred fold, and when all the reasons 
 for it that existed in their days, now apply with redoubled 
 force. 
 
 It is possible, that no better system of law reporting 
 than that which now exists, may be devised. I believe 
 the glaring evils attending it may, at all events, be 
 
 " Min. Ev. p. 2. 
 
DIFFKRKNCE BKTWEEN A CODE AND A DIGKST. 97 
 
 greatly lessened, as I have already endeavoured to explain. 
 But all that I now wish to show is, that no great tender- 
 ness need be shewn to the present system, so fraught with 
 objection. I do not think the attempt to carry into effect 
 the recommendations of Bacon, of Hale, and of Romilly, 
 should be shrunk from, because it may possibly endanger 
 the present system of law reporting. Let it be admitted 
 that a general digest of the law would be liable to many 
 imperfections, and many inaccuracies. It is not possible, 
 that it can be subject to more serious objections, or more 
 weighty and glaring evils than the present system of com- 
 piling and promulgating the common law. 
 
 I wish, then, to suggest that a digest of the common 
 law sliould be forthwith commenced by proper persons, 
 appointed for that purpose by the state ; and it appears 
 to me, that the scheme propounded by Lord Bacon, would 
 serve as sufficient general instructions. The extent of 
 this digest, its details, whether the leading cases should 
 be preserved in it, or whether deductions should be made 
 from the cases ; these and all other particulars I do not 
 enter into. They should be left to the persons appointed 
 to do the duty. All that I venture to suggest is, that the 
 task should be commenced. 
 
 I wish here, however, to repeat that I mean a digest of 
 the law, and not a code. One leading difference between 
 a code and a digest, as I conceive, is, that the first defines, 
 or attempts to define, the law on points which have not, 
 as well as on those that have, occurred ; a digest simply 
 declares the law, so far as it has been already declared by 
 competent persons. I am not arguing in favour of the 
 establishment of a code. I do not say a word against a 
 code. It is clear, if a code be a good thing, a digest would 
 be the best step towards making a complete one. But I 
 am now only suggesting the necessity for undertaking a 
 
98 GOOD TREATISES A REASON 
 
 general digest of the law ; which has been repeatedly re- 
 commended, and which is a practicable object. 
 
 And let it not be supposed that it is any abstract qnes- 
 tion, which I thus propose, having no direct or practical 
 bearing on the daily business of the lawyer. That which 
 will facilitate the ready finding all the information on any 
 given subject — which will bring together in a compara- 
 tively small compass, every case bearing on it — which will 
 at any rate, serve as " a practical treatise," by an eminent 
 author on the subject — this surely, if it can be done, will 
 be no small boon to the working lawyer— no small saving 
 of time and expense to the law student. 
 
 But here let me consider one or two of the familiar ob- 
 jections that I have heard against attempting a digest. 
 
 And first, I have heard it argued that, because we have 
 some excellent treatises on different branches of the law, 
 we should be satisfied with these, as they, in fact, to the 
 extent to which they go, supersede the necessity of any 
 other consolidation of the law. 
 
 But, surely, the existence of these treatises only proves 
 that that which I contend should be done to the whole 
 l3ody of our law, is not only possible, but has already been 
 performed in part. Why then should not the whole be 
 done ? Why should we be content with having a branch 
 of our law in a satisfactory state, while the whole body is 
 unsatisfactory and confused ? Suppose a man to have a 
 ^disease of the heart, would it be a fitting answer to him if 
 he applied for cure, to remind him that his leg or his arm 
 was healthy and capable of performing its proper func- 
 tion ? Yet this is the main argument of some who oppose 
 a general digest of the law. " Look " they say, " at the 
 excellent treatise of Sir E. Sugden on the Law of Vendors 
 and Purchasers, or Mr. Chitty's Treatise on Bills of Ex- 
 change. Here you have all that a digest could possibly 
 give you !" Granted ; but suppose I do not want infor- 
 
FOR A DJGKSr. 99 
 
 mation on either of these branches of the law ; or on any- 
 other equally well explored ; what am I to do then ? I 
 am at sea. I may find the materials for forming a cor- 
 rect judgment, or I may not. How can I always afford 
 time, on any given case occurring in practice, to collect all 
 the. law on the subject, which lies scattered in a thousand 
 volumes ? Or have I always had ready access to those vo- 
 lumes, or any access at all ? Am I bound to make a prac- 
 tical treatise of the law for each particular case, or if I am 
 bound to do this, am 1 able to do so ? Have I the time, 
 the materials, or the ability; and am I, as an average 
 practitioner in the law, bound to have all these ? Again, 
 even in the branches of the law most fortunate in existing 
 treatises, am I sure that I can rely on the opinions there 
 enunciated as law ? They are the single view of it taken 
 by one person. Is there no better mode of ascertaining 
 it ? Would not the experience and talents, the joint 
 opinion of many, be safer and more likely to be correct ? 
 Is not the result of a consultation more depended on in 
 practice than a conference ? Why then may I not have 
 the benefit of a consultation on every branch of the law ? 
 This is what a consolidation of the law, conducted on the 
 plan I have suggested, would give us. It would not an- 
 swer every possible case. No one pretends that it would 
 or could, but it would bring together all the existing in- 
 formation respecting it; and would this be of no service to 
 the practitioner ? I think that, supposing the public had 
 no shadow of interest in the matter ; no right to have the 
 law on which their all depends, made as clear and simple 
 as possible, yet should the profession demand it. 
 
 A digest then, on the plan that I propose, if it did no 
 more, would furnish a practical treatise on the various 
 heads of the law, and yet I have heard it gravely contended 
 that, because we have some good treatises on certain 
 
 H 2 
 
100 ARE THE OLD LAW BOOKS TO BE BURNT ? 
 
 branches of the law already, we can dispense with a gene- 
 ral digest of the whole. 
 
 But another common objection to a digest is, " What 
 is to become of our law libraries ? Are they all to be burnt 
 when the digest is finished ?" If this be gravely asked, it 
 is easily answered. There is no more necessity for burn- 
 ing the law books from which the digest should be com- 
 piled, than for burning an old treatise when a later and 
 better treatise is published. It is simply superseded. The 
 old law books would remain for reference to all who choose 
 to refer to them ; but they would soon become compara- 
 tively waste paper. It is not supposed that the new 
 digest would lay down rules for every possible case. This 
 would be far beyond the power of human intelligence ; 
 and doubtless, in cases not provided for by the digest, 
 reference would be had to the old law books ; but does it 
 form any material objection to the plan of a new digest to 
 shew that it shall not resolve every possible case ? If the 
 law were rendered clear and satisfactory, in nineteen CEises 
 out of twenty, would nothing be done ? If the digest 
 only conferred this benefit, is it not an object worthy to 
 be attempted, and although it be impossible at once to rid 
 ourselves of the immense load which now presses upon 
 us, is this any valid reason why we should not touch it 
 with one of our fingers ? But this objection is sometimes 
 made in another form. It is said by some, that even if a 
 digest were compiled, the multitude of cases unprovided for, 
 would soon call for so many new reports, interpretations, 
 and glosses, that in a very short time the law would become 
 as unwieldy and unmanageable as before. Fortunately, as 
 to this form of the objection, references may be had to 
 the experience of a neighbouring country, where a code 
 has now been in force for nearly half a century, and it 
 need not be said that the experience applies with even 
 greater force to a digest. 
 
LETTER OF MR. SAMPSON. 
 
 101 
 
 An interesting correspondenGe took place on this point 
 between Mr. Sampson, an eminent American barrister, and 
 M. Dupin, which appears to me so valuable, as to this, 
 which has been considered by some the most formidable 
 objection to the plan that 1 propose, that I shall give it at 
 length. It is extracted from a periodical publication de- 
 voted to subjects connected with jurisprudence, but which 
 has now ceased to be published.* 
 
 The first is a letter from Mr. William Sampson to 
 M. Dupin. 
 
 Sir, 
 
 I have the honour to forward to you, through the medium 
 of his Excellency the Minister of the United States, Mr. Brown, a 
 compilation on the subject of our laws, which the printer has entitled, 
 " Sampson on Codes and Common Law,'' although the greater, and 
 best part of it is not the production of my pen. You will see, for in- 
 stance, on the contrary, p. 55, that one of my letters owes all its 
 interest to the translation which I have gireu in it of your observations 
 on a work of my worthy and excellent friend Mr. Duponceau. 
 
 Seeing the manner in which you have made yourself master of the 
 character of our jurisprudence, which must necessarily present great 
 difficulties to foreigners; and the generous ardour with which you 
 have entered into the discussion of that which is of so much import- 
 ance to us, and which becomes every day more interesting, I feel en- 
 couraged to ask you for some information relative to the practical 
 operation of the French code, and particularly to request you to inform 
 me to what extent it has answered the purpose for which it was in- 
 tended. I will endeavour to express myself clearly, as well as I am 
 able in your language. 
 
 An argument which is constantly repeated by those who, in this 
 country, are opposed to a codification of the law, is, that the French 
 codes have had but the life of a day ; that the civil code, the model of 
 
 • The Jurist, or Quarterly Journal of Jurisprudence, No. 4, pp.55 — 59. 
 This work contains much information on the subject of this Chapter. 
 
102 LBTTEK OF MR. SAMPSON. 
 
 all the others, is already almost buried by the multiplicity of laws, de- 
 crees, and commentaries, with which it is loaded ; and that, in a short 
 time, the law will be sought for, not in the code, but in the solutions 
 of its difficulties, and in the questions to which it has given rise. To 
 these arguments I have endeavoured to reply, but could only do it 
 with great caution, not wishing to admit, nor knowing how to refute, 
 assertions made with so much confidence by those who^ nevertheless, 
 were not better informed than myself of that which they affirmed. 
 
 In the twenty second volume of the collection of M. Sirey, I see 
 tables of those articles of the different codes, as to the interpretation 
 of which new laws or decrees have been made : and those tables 
 certainly shew a great number of articles, the meaning of which has 
 been disputed. To what extent this fact should serve as an argument 
 against the principle of a written law with us, in the place of that 
 jurisprudence of cases, and supposed traditions, which you have so well 
 criticised, is the question which I am desirous you should answer for 
 me ; for it is clear that if codes, drawn up with so much talent and 
 labour by the first lawyers in your country, have only augmented, or 
 even have not diminished the difficulties and doubts previously existing 
 relative to the law, it becomes us to pause and reflect before we 
 follow the example of a plan undertaken, indeed, with the best inten- 
 tions, but which lias not fulfilled the wishes of its authors. 
 
 Should the documents of which my compilation is composed appear 
 worthy of your attention, you will see that my friend M. Dupouceau, 
 whose assistance has often been of service to me, does not entertain 
 the same opinions as I do as to the best manner of reforming our 
 laws, the defects of which, however, he acknowledges equally with 
 myself. He is of opinion that any improvement must proceed from 
 the liberality and wisdom of the judges, exercised by them as disputed 
 cases may be brought under their cognizance. He thinks that we are 
 not yet sufficiently emancipated from ancient errors and prejudices to 
 be able to establish solid and durable principles of jurisprudence; and 
 that, in endeavouring to do so, we shall perhaps only perpetuate our 
 actual faults, and that future judges, having their hands tied up by the 
 text of an inflexible code, will be no longer able to supply a remedy 
 to these faults. You will, in this work, perceive the difference of 
 opinion that exists between two persons, each of whom has only in 
 
LETTBR OF M. D-UPIN. 
 
 103 
 
 view the good of his country, and his fellow citizens. Might I venture 
 then. Sir, to ask you to furnish us with the result of your experience 
 and talents on this interesting subject, and particularly on the actual 
 effects and the practical operation of the French code ; and, thereby, 
 to enable me either to reply or give credit to the assertion, 'that the 
 French code will soon be lost in a new accumulation of commentaries 
 and collection of undecided cases.' 
 
 I remain. Sir, &c.. 
 
 Your very humble servant, 
 
 William Sampson. 
 
 George Town, District of Columbia, 
 April 20, 1826. 
 
 TRANSLATION OF M. DUPIn'S REPLY TO MR. SAMPSON's LETTER. 
 
 Paris, 26<A June, 182C. 
 
 Sir, 
 
 Your letter of the 20th April was only delivered to me on 
 the 16th of this month, and I take advantage of the first leisure 
 moment to reply to it. 
 
 Your name. Sir, needed no special recommendation to me : the 
 noble object of your letter, and the work which accompanied it, were 
 sufficient testimony of your character, your patriotism, and your 
 talent. 
 
 1 will reply, without hesitation, to the questions relative to French 
 legislation which you have put to me. I am able to do it, because I 
 am acquainted with the subject ; but, for the same reason, I must be 
 more reserved on the question which relates to America. The pro- 
 mulgation of the French code has been productive of immense benefit; 
 it has enlightened, simplified, and fixed on every essential point, the 
 
104 LETTJER OF M. DUPIN. 
 
 principles of law which were previously scattered, controverted, and 
 applied contradictorily by the different tribunals of this country. 
 
 There were anciently in France more than two hundred written 
 customs, all of them feudal, barbarous, and incomplete. 
 
 A jurisprudence which varied according to time, person, jurisdic- 
 tion, and territory, was made use of, to supply the deficiencies, by 
 furnishing cases on some few points, which were taken hold of by each 
 suitor to turn them to his own advantage. 
 
 Over-riding all these customs came the Roman law, not in force as 
 a precept, but as a written reason ; non ratione imperii, sed rationis 
 imperio. It was to us a body of doctrine, not a body of law. 
 
 In the last century many general ordonnances were made to regu- 
 late certain branches of our jurisprudence, such as gifts, wills, entails, 
 woods, and forests, &c. &c. But our jurisprudence, in itself, still re- 
 mained a confused, entangled, and difficult science. Law suits were 
 numerous, interminable, and very expensive. 
 
 The revolution gave us a clear field on many points, and without it 
 I believe that neither Solon nor Lycurgus, placed on the throne of 
 France, could have carried into effect any project of reform; they 
 would never have been sufficiently powerful to silence local opposition 
 and private interest. 
 
 Napoleon was gifted with great decision, but, in addition to that, he 
 was placed in a most favourable situation ; he was not called upon to 
 destroy, but to create out of ruins ; by his authority, the five codes were 
 digested, decreed, and promulgated. 
 
 The civil code is the first and the best of all, — it is clear and metho- 
 dical ; neither too long nor too short ; the language of the legislature 
 is noble and pure ; the rules are well laid down, and, with the excep- 
 tion of the difficult subject of mortgages, it has met with nothing but 
 approbation, more especially at the present time, since the immoral 
 law of divorce has been struck out. 
 
 The code of civil procedure has simplified the forms, and diminished 
 the expence of law suits. No fault is found with it except relative to 
 the form of execution (expropriation), the unfortunate, though neces- 
 sary, adjunct to the law of mortgage. 
 
 The commercial code, which re-enacts, in a great measure, the 
 ordonnance relative to maritime affairs of 1681, and that relative to 
 
LETTER OF M. DUPIN, 105 
 
 commerce of 1673, is also generally esteemed. 'n>e only exception 
 is the title of bankruptcy, which is equally complained of, both by 
 bankrupts and by their creditors. 
 
 The code of criminal procedure, and the penal code, are the last, 
 and are those to which the greatest objections have been raised. Des- 
 potism dictated them. In many instances state policy has made them 
 her instrument ; and liberty has suffered accordingly. Their revision- 
 has, therefore, been demanded even in the very Chamber of Peers. 
 
 But all these codes, such as they are, have been productive of the 
 greatest benefit; they have delivered us from the chaos of our ancient 
 law. Above all, the institution of the Court of Cassation, which acts 
 as a central power to regulate and check the decisions of all the other 
 jurisdictions, has been of the highest benefit. 
 
 The assertion is not true. Sir, that the jurisprudence of decided 
 cases has prevailed in any way against the text of our codes ; nor are 
 we in any way threatened, even at a distance, with the danger of 
 seeing the letter of our laws disappear under the load of interpreta- 
 tions. In every discussion the text of the law is first looked into, and 
 if the law has spoken, non exemplis sed legibus judicandum est. Tf the 
 law has not clearly decided the point in question, its silence or its 
 error is endeavoured to be supplied. But what country is there were 
 decisions have not thus been used to supply the defects of legislation ? 
 I have treated this matter fully in a little volume, entitled " De la 
 jurisprudence des Arrets :" it is of the same nature as your work on 
 the common law. Perhaps you may think it of use to translate it, 
 and make it known in your own country. 
 
 As to the question, of what would be the utility, in your country, of 
 digesting a body of national laws, it is my general opinion that it is 
 desirable for every nation to have laws of its own; and that a single 
 code of laws is always preferable to the multiplicity, and consequent 
 confusion of particular laws. 
 
 Lastly, as to the precise point of whether your country is ripe for 
 such a digest, I do not undertake to decide it. 
 
 I confess that, if our codes had been digested in the fifteenth, or 
 even in the sixteenth century, they would not have possessed, by any 
 means, the qualities which now recommend them. To produce them, 
 it was necessary that the labours of jurists, the decisions of magis- 
 
106 LEfTKR OK M. DUPIN. 
 
 trates, and the experience of all classes, should have brought the 
 science, as it were, to a certainty. Are you yet arrived at this point ? 
 You can answer this better than I can. 
 
 I admit the force of the reason given by some of your adversaries, 
 that a badly made Jaw would tie up the judges, and prevent them from 
 improving the system by degrees. But what are these improvements 
 which they suppose must result from the liberality and the wisdom of 
 the judges, but the exercise of arbitrary power ? And is not this at- 
 tended with most serious inconveniences ? Bacon has well said — 
 " Optima lex est qua minimum relinquit arbitrio judicis, optimus judex 
 qui minimum sibi." And yet there are persons in your country who 
 would wish the judges in reality to be legislators ! 
 
 Can your nation, so enlightened in matters of politics and govern' 
 ment, be only in arrear in matters of civil and criminal law J 
 
 Have you not trial by jury in all its freedom, and have not many 
 States of the Union laws which abolish the punishment of death, yet 
 sufDce, by other punishments, to repress the greatest of crimes ? 
 
 From these signs alone, — from the march of your government, — 
 from the writings of your authors, — I think, or 1 am much deceived, 
 that the United States of America have arrived at that point when 
 they may give themselves a code of civil laws, which shall not be 
 unworthy of the opinion entertained of your nation by the whole of 
 Europe. 
 
 I remain, &c. 
 
 "DUPIN." 
 
 It will be admitted, I think, that this important letter 
 bears materially on the question of the applicability of a 
 digest to England. Surely we are now ripe for it. Suffi- 
 cient materials are in store for its compilation ; and its 
 promulgation would, to use the words of M. Dupin, be 
 
MODE-OF COMPILING A DIGBST. 107 
 
 " productive df immense benefit ; it would enlighten, sim- 
 plify, and fix, in every essential point, the principles of 
 law, which were previously scattered, controverted, and 
 applied contradictorily, by the different tribunals of this 
 country." 
 
 It is to be observed, that some approaches to a general 
 digest of the law have recently been made. Already has a 
 portion of our law been digested. We shall soon have a 
 complete digest of the criminal law, which is a proof of 
 the practicability of the plan that I propose. Another in- 
 stance of an approach to a digest may be found in the late 
 Wills Act, 1 Vict. c. 26, which declared the law on this 
 important subject, and put an end to the doubts raised by 
 hundreds of cases. But I am desirous of preventing this 
 partial legislation, and of establishing some general and 
 uniform system of procedure in this respect. The time 
 has now arrived for the commencement of the impor- 
 tant work. It is only necessary to resolve to undertake 
 it, and I believe that all the supposed difiiculties in the 
 way of its successful completion would melt away. 
 
 Supposing the changes that I have proposed in this 
 chapter to be worthy of adoption, or, at any rate, of con- 
 sideration, the further question remains, as to the means 
 of carrying them into effect. Three modes of proceeding 
 appear to be open : — 1. The government, or some indivi- 
 dual member, may move for inquiry in either House of 
 Parliament, by way of Select Committee. 2. A commis- 
 sion out of the House may be appointed, for the purpose 
 of inquiry, and to report; or, 3. A parliamentary commis- 
 sion may be directed, for the purpose of undertaking the 
 work. Although some benefit might result from the two 
 first of these modes, I think the last would not only be 
 more consistent with precedent, but would be by far the 
 more desirable mode of procedure. A parliamentary com- 
 mission, the members composing it being approved of by 
 
108 PARLIAMENTARY COMMISSION. 
 
 Parliament, would have more weight and influence than 
 any other mode of selection, and eminent and disinterested 
 services would be more likely to be procured. The most 
 ample powers and discretion should be given to the com- 
 missioners, and I have no fear of the result. 
 
NOTES. 
 
r ni 1 
 
 NOTES. 
 
 NOTE A.— (See p. 7). 
 
 " It is very important that some new regulations should be 
 made with respect to the charges of solicitors. Their bills for 
 business relating to actions and suits may be taxed by officers of 
 the different Courts ; but an action to be tried before a jury is 
 the only means of ascertaining or proving the correctness of their 
 charges relating to conveyancing. Their demands are necessarily 
 regulated according to the length of writings, because no other 
 method of compensation can be made intelligible to a jury, but it 
 is a very objectionable and often an unjust mode of measuring 
 the value of their time, labour, and abilities. It requires less 
 skill and trouble to draw a long deed than a short one, (see Mr. 
 Sugden's Letter to Mr. Humphreys, 3rd edition, p. 21,) because 
 it is more easy to provide for all events by a lengthened detail 
 than by a few comprehensive terms. In some cases, objects 
 which are easily understood, require many provisions which 
 cannot be expressed without considerable length, as a common 
 settlement, or farming lease ; and in other cases, after long 
 documents have been read, and many complicated circumstances 
 fully considered, a short deed may be prepared which shall effect 
 the objects of the parties, and contain every necessary provision, 
 as some deeds for the arrangement or compromise of various 
 interests, or for effecting some new and complicated commercial 
 
112 NOTES. 
 
 transactions. A short agreement will in many cases require 
 more skill and attention than a very long deed. Conveyancing 
 is at present the most profitable part of the business of solicitors, 
 because their greatest emoluments are derived from copies of 
 abstracts, deeds, and other writings, for which they are allowed 
 much larger sums than they are obliged to pay to stationers and 
 clerks. They are very inadequately paid for their time — their 
 attendance in actions and suits — the perusal of documents — the 
 dvice which they may give — and the collection of evidence. 
 They are not sufficiently remunerated for those parts of their 
 business which require the greatest attention and ability, while 
 they are paid too much for such business as can be done by their 
 clerks. It is of great importance to the country that the 
 character and integrity of solicitors, and the rank which they 
 hold in society, should be preserved by a liberal remuneration for 
 their services ; but the payments should be regulated by the 
 professional skill and judgment which they may be required to 
 exercise. (See Miller on Civil Law, 4 79, 480 ) If the length 
 of deeds and abstracts be materially abridged, it wi-1 be necessary 
 that the other charges of solicitors should be increased. It 
 appears to me to be very desirable that all the fees and other 
 payments to solicitors should be considered and regulated, so 
 that they may be well paid for what they do themselves, and not 
 derive their income from what is done by others ; and that their 
 bills for conveyancing should be taxed by commissioners or other 
 persons competent to determine the quantity of skill, time, and 
 labour necessary for transacting the business ; and it may 
 deserve consideration, whether the great increase in the number 
 of solicitors should not be checked by a further s'.amp duty on 
 their articles of clerkship, or some other regulations." Tyrrell's 
 Suggestions on the Laws of Real Property ; privately printed, 
 1829. 
 
 Whether the last suggestion of increasing the stamp-duty on 
 
 rticles of clerkship should be adopted is perhaps questionable ; 
 
 but certainly, if any alterations were made by which the emoluments 
 
 of solicitors were affected, it would be only fair to them to guard, 
 
 in ~a. more stringent manner, against any invasion of their just 
 
NOTKS. 
 
 rights by irregular practitioners, who now improperly perform 
 their business. This will also be necessary for the protection of 
 the public. 
 
 I am informed that the Scottish mode of charging is compound. 
 There is an ad valorem charge on the transaction, whatever it is 
 — and a distinct charge for the writings, according to their length. 
 But a bill relating solely to conveyancing in Scotland is not 
 taxable. When a settlement or a will is drawn including property, 
 say at 10,000^., there would be a per-centage of— say 100/., put 
 into the bill as a distinct fee. Then would follow the charge for 
 the deeds : which, with the more concise forms there used, and 
 coupled also with the system of Registration, seldom give rise to 
 any observations — though as the pay is proportioned to the 
 length, the temptation to prolixity, where practicable, still 
 subsists. 
 
 From this account, the remuneration in Scotland arises from 
 l^e ad valorem iee. The charge for the writings corresponds to 
 the system of charging per page in chancery : and would not, by 
 itself, be an adequate comi)ensation for skill ; but appears to be 
 the fee for the mere work and labour of the actual draft, and not 
 for the skill applied to the transaction at large. 
 
 It is to be further observed that this principle of an ad valorem 
 charge is to be acted on in taxing chancery costs, under the new 
 orders of Michaelmas Term, 1842, which is the commencement of 
 the new principle. However objectionable the objects for which 
 the costs are to be levied may be, the principle is a just one. 
 
 113 
 
114 
 
 NOTESi 
 
 NOTE B.— (See p. 14, n.) 
 
 A BILL INTITULED"an ACT TO FACILITATE THE TRANSFER OF REAL 
 AND PERSONAL PROPERTY HELD IN TRUST FOR CHARITABLE PUR- 
 POSES. 
 
 Whereas it is CKpedient to facilitate the transfer of real and 
 personal estate held in tase or trust for charitable purposes ; be 
 it enacted by the Queen's most excellent Majesty, by and with 
 the advice and consent of the lords spiritual and temporal, and 
 commonSj in this present Parliament assembled, and by the author 
 Nomination rity of the same, that where any lands, tenements, or heredita- 
 
 and appoint- 
 ment of new ments, of whatever tenure, sums of money, chattels, securities for 
 
 trustees of •' 
 
 h^'^'the ef J^^oney, or other personal estate, are, is, or shall be vested in any 
 >'eyam;t ""' person Or persons, for any estate or interest whatsoever, in trust 
 for any charitable use or purpose whatsoever, and such person or 
 persons shall die, or lawfully discontinue to act in or be lawfully 
 removed or displaced from the exercise of any such trust, and a 
 new trustee or trustees of such real or personal estate shall, by 
 order, deed <x writing, as the case may be, have been or hereafter 
 may be duly nominated and appointed in his or their stead by 
 the Court or Courts, .person or persons, body or bodies politic or 
 corporate, competent or duly authorized to make such ajqioint- 
 ment, then and in every such case, and by virtue of such nomina- 
 tion and appointment alone, and without any deed or instrument of 
 conveyance, surrender, or assignment for that purpose vi'hatsoever, 
 such lands, tenements, and hereditaments, and such personal es- 
 tate, shall forwith be and be deemed to be vested in severalty or in 
 joint tenancy (as the case may require) in such new trustee or 
 trustees as aforesaid, either alone or jointly with the surviving, 
 continuing or other trustee or trustees (if any) of the same lands, 
 tenements, and hereditaments, and personal estate, upon and for 
 the trusts, intents and purposes whatsoever, as under or by virtue 
 of any deed or deeds, instrument or instruments of conveyance, 
 surrender or assignment heretofore in that behalf accustomed or 
 deemed requisite to be made and executed. 
 Terms of 2. And be it enacted, that whensoever any term or terms of 
 
 years in cer- 
 
NOTES. 1 15 
 
 years shall have been or may hereafter be assigned to attend the lain cases 
 
 deemed real 
 
 inheritance of any lands, tenements, or heridatements of freehold estate. 
 tenure held in use or trust for charitable purposes, such term or 
 terms of years shall be deemed to be real estate held in trust for 
 charitable purposes within the intent and meaning of this act. 
 
 3. Provided always, and be it enacted, that in the case of lands. Eights of 
 
 lords of ma- 
 tenements, or hereditaments of copyhold or customary or ancient '""■« no' tu 
 
 ■■ ' •' be aflfccted. 
 
 demesne tenure, nothing herein- before contained shall he construed 
 to dispense with the admittance thereto of the trustee or trus- 
 tees, tenant or tenants, for the time being of the same, by the 
 lord or ladies of the honours or manors whereof suoh premises 
 shall respectively be holden, or in anywise to aifect the payment 
 or satisfaction of all or any of the heriots, fines, fees, dues or 
 sums of money from time to time of right payable or accustomed 
 upon the admittance of any tenant or tenants of such honours av 
 manors respectively. 
 
 4. And he it enacted, that whensoever any such new trustee office copy of 
 
 an order of 
 
 or trustees as aforesaid shall have been appointed by any Court court for ap- 
 
 * ^ •> •/ pointment of 
 
 of competent jurisdiction, an office copy of the order or orderg "(f"e'evTd'ence 
 making, confirming or manifesting such appointment, under the pointnient^ 
 seed of the Court by which suoh order is or purports to be made, 
 shall be received as sufficient evidence of such appointment in all 
 courts, places, and proceedings whatsoever. 
 
 5. And be it enacted, that where, accordi;ng to any laws now where regis- 
 
 tration of 
 or hereafter to be in force, the conveyance, surrender, or assien- conveyances 
 
 ° necessary, 
 
 mentof any such real or personal estate as aforesaid ought to be "'"n'i'min't 
 registeredj enrolled, or recorded in any registry office in England, be registered". 
 Wales, or Ireland, then and in every such case a memorial or cer- 
 tificate, written On paper or parchment, of the appointment of any 
 new trustee or trustees of such real or personal estate, shall he 
 registered in the registry office, court, or place wherein and within 
 such time as such conveyance, surrender or assignment, ought 
 by law to be registered, enrolled or recorded, and that the regis- 
 try hereby directed to be made shall have such and the same effect 
 and operation, to all intents and purposes whatsoever, as the due or 
 timely registry, enrolment, or recording of such conveyance, surren- 
 der or assignnxeijt as last aforesaid, would by law have or be deemed 
 
 I 2 
 
116 NOTES. 
 
 to have ; and that in every case where the conveyance, surrender, 
 or assignment of any such real or personal estate as aforesaid is not 
 now or shall not hereafter be by law required to be in any man- 
 ner registered, enrolled or recorded, a memorial or certificate, 
 written on paper or parchment, of the appointment of any new 
 trustee or trustees, by any person or body politic, of such real or 
 personal estate, shall within six months after the execution of 
 such appointment be registered or enrolled in the High Court of 
 Chancery of Great Britain or of Ireland, as the case may be, 
 otherwise such appointment shall be null and void so far as the 
 operation of this act is concerned. 
 6 & 6 w . 4, 6. And whereas by an act passed in the fifth and sixth years of 
 the reign of king William the fourth, intituled " An Act for the 
 regulation of municipal corporations in England and Wales," it 
 was amongst other things enacted, " that in every borough in 
 which the body corporate, or any one or more of the members 
 of such body corporate, in his or their corporate capacity, now 
 stands or stand solely or together with any person or persons 
 elected solely by such body corporate, or solely by any particular 
 member, class, or description of members of such body corporate 
 seised or possessed, for any estate or interest whatsoever of any 
 hereditament, or any sums of money, chattels, securities for mo- 
 ney, or any other personal estate whatsoever, in whole or in part, 
 in trust or for the benefit of any charitable uses or trusts \\hat- 
 soever, all the estate, interest, and title, and all the powers of 
 such body corporate, or of such member or members of such body 
 corporate, in respect of the said uses and trusts, shall continue in 
 the persons who at the time of the passing of this act are such 
 trustees as aforesaid, and notwithstanding that they may have 
 ceased to hold any office by virtue of which before the passino- of 
 this act they were such trustees, until the first day of August, 
 one thousand eight hundred and thirty-six, or until parliament 
 shall otherwise order, and shall immediately thereupon utterly 
 cease and determine,-" and the Lord Chancellor or lords commis- 
 sioners of the Great Seal were by the said act empowered to make 
 such orders as he or they should see fit for the administration, 
 subject to such charitable uses or trusts as aforesaid, of such trust 
 
NOTES. 117 
 
 estates : And whereas, under and by virtue of the provisions con- 
 tained in the said act, and another act passed in the fifty-second 02g.3,c.i«i. 
 year of the reign of king George the Third, intituled an act to 
 provide a summary remedy in cases of abuses of trusts created 
 for charitable purposes, divers persons have been, by and under 
 orders from time to time made by the Lord Chancellor, appointed 
 to be trustees of and for the charity estates and property at the 
 time of passing the said act of the fifth and sixth years of the 
 reign of king William the Fourth vested in or under the admi- 
 nistration of divers corporations in the said orders respectively 
 referred to, but no provision has been made for vesting the legal 
 estate in such charity estates and property in such trustees so 
 appointed as aforesaid, and doubts are entertained in whom the 
 said legal estate is now vested ; Be it therefore enacted, that in j.^^^^ ^ g^ 
 all cases where trustees have been or may hereafter be duly ap- trustees'kp. 
 pointed by the Lord Chancellor, or by the Lords Commissioners under recwed 
 
 , . acts not to 
 
 of the Great oeal, under the provisions of the said acts, all the be affected, 
 estate, right, interest, and title in such hereditaments and pre- 
 mises, which at the time of passing the said act of the fifth and sixth 
 years of the reign of king William the Fourth was vested in the 
 said bodies corporate, as any one or more of the members of such 
 bodies corporate, either solely or together with any person or per- 
 sons elected by such body corporate, or solely by any particular 
 number, class, or description of members of such body corporate, 
 shall be and be held to all intents and purposes to be vested in 
 the persons so appointed or to be appointed trustees as aforesaid. 
 
 7. And be it enacted, that this act shall not extend or be con- Act not to 
 
 ^ extend to 
 
 strued to extend to bcotland. Scotland. 
 
 As bearing on this subject, it occurs to me, that many decrees 
 or orders might be made to operate as conveyances ; as for in- 
 stance, in suits against vendors who refuse to complete their sale, 
 and in cases of physical and mental incapacity, by analogy to the 
 vesting order in bankruptcy, which now transfers all the property 
 to the assignees, without deed or writing of any kind. See Pegge 
 V. Skinner, 1 Cox, 23. 
 
118 NOTiiS. 
 
 NOTE C— (Seep. 14.) 
 
 The following extract from Mr. Tyrrell's Suggestions will be 
 read with interest, which I more readily give, as the book is not 
 in general circulation. It wiU be seen how closely his views 
 correspond in many respects with those taken in the body of the 
 work. 
 
 " The length of deeds might be considerably abridged by 
 omitting the unnecessary parts of them ; but it is important that 
 they should be framed according to well established forms. At 
 present, every word which is usually contained in a deed has 
 received a settled construction, and the different parts are usually 
 arranged in a similar order, so that any one accustomed to the 
 practice of conveyancing can in an instant refer to the words upon 
 which any question may arise, and discover without hesitation the 
 whole extent and operation of the instrument. The dispatch and 
 certainty which are obtained by this adherence to form, are too 
 valuable to be sacrificed ; and it is this consideration whicli 
 prevents a counsel from feeling himself justified in omitting or 
 improving some parts of deeds, which are acknowledged to be 
 useless or obsolete ; he is aware that the difficulties which would 
 arise from the want of uniformity, the doubts which the unusual 
 appearance of his deeds would create, and the confusion which 
 would be occasioned if every one were to prepare deeds in a 
 different manner, are of much more importance than the trouble 
 and expense which are caused by a few unnecessary expressions. 
 But if forms of the usual deeds were prepared by the commisioners 
 and sanctioned by government, they would be followed by the 
 whole profession, and might correct many redundancies and 
 defects. In a purchase deed the recitals of title would, in many 
 cases, be rendered unnecessary by the abolition of uses to bar 
 dower, and might be abridged in all cases by reference to a general 
 
NOTES. 119 
 
 registry, which would render it no longer expedient to state the 
 words of a power intended to be exercised— or the creation of an 
 entail intended to be barred— or, where a trustee is a party, to 
 deduce the title from the person for whose benefit the trust was 
 first created. In the operative part I have already proposed the 
 omission of any statement of nominal considerations, and of the 
 recital of the lease for a year ; and I think that the words in the 
 past tense, that the grantor hath granted, &c., and also the 
 general words, might be left out. The habendum and tenendum 
 are also unnecessary, and the absence of them would have the 
 advantage of preventing the questions which arise where they 
 contain words of limitation, which differ from those in the 
 premises. The covenants might, I think, be supplied by a general 
 jact, declaring that, unless it be otherwise provided by the deed, 
 every trustee should be liable to such action as might have been 
 brought against him if he had entered into the usual covenant 
 that he had not done or been privy to any act to incumber the 
 estate ; and every grantor for a valuable consideration should be 
 liable to such action as might have been brought against him if 
 he had entered into the usual covenants for title and further 
 assurance, subject to such incumbrances and exceptions, and 
 confined or extended to the acts of such persons, and to such 
 interests as may be expressed in the deed. The provisions in 
 some local acts, that the words of conveyance shall have the same 
 effect as covenants for the title, are not sufficiently definite, and 
 therefore leave some excuse for the insertion of the usual 
 covenants ; because the operation of them is better understood : 
 but if a general and well considered form, extending; to the whole 
 kingdom, were created by act of parliament, there would remain 
 no pretence for the repetition, in every deed, of covenants which 
 could have no further effect. It will still be expedient that 
 covenants should be inserted at length, in leases as well as in 
 copartnership deeds, and other instruments where it may be 
 necessary that the parties should be fully aware of their duties. 
 In a settlement, the part relating to the conveyance of the estate 
 might be abridged in the manner I have taken the liberty of 
 suggesting. With respect to a purchase deed, the limitations 
 
120 
 
 NOTES, 
 
 would be shortened by rendering it unnecessary to limit a use to 
 the grantor, until the deed is to take effect, or estates to trustees 
 to preserve contingent remainders ; and, perhaps, if a proper 
 regulation respecting waste were made, the words allowing a 
 tenant for life to commit waste might be omitted — powers of 
 distress and entry might be omitted, if such remedies were given 
 to every jointress — a short declaration might be allowed instead 
 of the present long form to create cross remainders. General 
 enactments might also provide for the clause which invariably 
 follows a power of appointment, that the appointed share shall be 
 brought into hotchpot ; and the clause for the accumulation of 
 the rents during minorities might be supplied, if such annual sum 
 were allowed as should be specified by the deed, or directed by 
 the court of chancery for maintenance. The trusts of the terms 
 for securing pin-money, jointure, and younger childrens' portions, 
 might be abridged by an enactment, declaring the mode in which 
 any money secured by a term should be raised and applied ; and 
 it might be provided that every such term should cease when the 
 trusts may become unnecessary or be satisfied. The usual powers 
 of leasing at rack-rent and granting repairing leases without 
 taking any fine — and of enfranchisement — and partition — might 
 be given to every tenant for life, and to trustees named in the 
 settlement, or, where there are no such trustees, to a public 
 officer during the minority of the person entitled in possession — 
 and the usual powers of granting building or mining leases, sale 
 and exchange, might also be given to a tenant for life, with the 
 consent of such trustee or officer. The powers of appointing new 
 trustees might be given to the surviving or continuing trustees, 
 or the personal representative of the last trustee with the consent 
 of the person beneficially entitletl, if of age ; and the manner in 
 which any power of jointuring or charging with portions to the 
 extent named in the deed, should be exercised, might also be 
 declared. The clause (never omitted except by mistake) for 
 making the receipts of the trustees effectual discharges, would 
 be rendered useless, by restraining the rule of equity, which 
 requires persons paying money to trustees to see to the' applica- 
 tion of it i and, if the rights and liabilities of trustees were 
 
NOTES. 
 
 defined, there would be no pretence for the clauses for regulating 
 their indemnity and reimbursement. AH the enactments which 
 have been mentioned, must be liable to any exceptions and quali- 
 fications to be expressed in the deed. But if the acts contained 
 the forms which are most generally approved, 1 think that very 
 few cases would occur, in which any other provisions would be 
 considered necessary, and a vast source of litigation would be 
 stopped by avoiding questions upon the constructions of powers. 
 At present, a power frequently contains some peculiar expres- 
 sions ; and so far constitutes a new law for the creation or disposi- 
 tion of an estate : questions as to the meaning of powers often 
 arise from clerical errors ; but the construction of powers con- 
 tained in a general act would soon be decided, and leave no room 
 for inaccuracy or doubt. If simple forms of deeds are prepared 
 and properly sanctioned, I would recommend that the variety of 
 forms of conveyances authorised by different acts of parliament be 
 made void ; and that the usual forms be adopted in all cases. 
 The absurd distinction of an indenture might be abolished by an 
 enactment, declaring that every deed should have the same effect 
 as if it were indented. Some improvement might be made in the 
 manner in which deeds are engrossed. The mode of execution 
 of all deeds should be made similar ; and I would recommend 
 that signing as well as sealing, and a witness, should be required 
 in every case. Sealing, except in the case of a corporation, is in 
 the present age of no use as a proof of the validity of an instru- 
 ment ; but I apprehend that it must be retained in order to keep 
 up the distinctions between deeds and agreements, and specialties 
 and simple contracts.'' Tyrrell's Suggestions, p. p. 137 — 142. 
 
 121 
 
122 
 
 NOTES. 
 
 NOTE D.— (Seep. 19). 
 
 " Stamps are a necessary part of the title of estates, because an 
 instrument cannot be given in evidence until it has been properly 
 stamped ; and they contribute to the expense attending the alie- 
 nation of estates, more than all the inconveniences occasioned by 
 the present state of the Iav?s relating to real property. In a bill 
 of costs of a solicitor employed in the purchase of an estate, it 
 ■will usually be found that the sums paid for stamps exceed in 
 amount all the other charges contained in it. With the exception 
 of stamps on legal proceedings, there is no tax which can more 
 justly be objected to, than stamps upon deeds and documents of 
 title ; and the duties payable in respect of different descriptions 
 of property are not equitably distributed. Heavy stamp duties 
 are imposed on the alienation of freehold and copyhold estates, 
 but they pass without any payment by will or descent. There 
 is no duty on the alienation of funded property, but upon the 
 death of the possessor large sums are demanded for probate and 
 legacy duties ; while leasehold property, mortgages, and other 
 chattel interests in real estates, and personal property, which 
 must pass by deed, are compelled to contribute to the revenue 
 both upon alienation and upon death. Until the income derived 
 from stamps can be spared, it may deserve consideration whether 
 freehold and copyhold estates might not be charged with a duty 
 upon the devise or descent of them ; and, together with leasehold 
 estates and charges, be relieved from the duties upon alienation. 
 There is no branch of the law more perplexing to solicitors and 
 counsel than the Stamp Acts. There are nearly one hundred 
 acts, parts of which still remain in force, and it is difficult to refer 
 to them, or to ascertain how far they interfere with each other. 
 Many nice and intricate questions arise upon the regulations 
 contained in the Stamp Laws, particularly with respect to such 
 as impose the ad valorem duties. Great expense is frequently 
 
NOTESi 
 
 incurred in taking the opinions of counsel to ascertain whether a 
 deed has been properly stamped, or what stamp ought to be affixed 
 to it ; and titles are sometimes objected to on account of insuffi- 
 cient stamps. No officer at the stamp office is authorised to de- 
 termine what stamp ought to be imposed, or is capable of giving 
 a satisfactory opinion on the subject. Mr. Sugden has shown 
 the improprity of allowing mere fiscal regulations to involve 
 the safety of titles, and also the difficulties which are occasioned 
 by the complicated rules of the present Stamp Acts ; and he has 
 pointed out several instances in which the duties are vexatious 
 and unjust. (Letter to Mr. Humphreys, 3rd edit., 74 to 76.) 
 The Stamp Acts ought to be consolidated and amended with 
 great care ; and it is desirable that the duties should be of a 
 more simple description, and that some officer should be em- 
 powered to determine the propriety of the stamp, and give a 
 certificate which should put an end to any question respecting 
 it." Tyrrell's Suggestion. 303—305. 
 
 123 
 
i24 NOTES. 
 
 NOTE E.-(See p. 23, and Chapter II.; 
 
 A BILL TO LESSEN THE EXPENSE ATTENDING THE TRANSFER OV 
 FREEHOLD LANDS OF SMALL VALUE. 
 
 Whereas it is expedient to facilitate the sale and conveyance of 
 freehold lands, where the consideration for the purchase of the 
 same shall not exceed the sum of I. Be it enacted by the 
 
 Queen's most excellent Majesty, by and with the advice and con- 
 sent of the Lords spiritual and temporal, and Commons, in this 
 present parliament assembled, and by the authority of the same. 
 Where con- that whensoever, upon any contract for the sale of lands of free- 
 money siiaii hold tenure, the purchase money or pecuniary consideration agreed 
 
 not exceed 
 
 I., persona to be paid or allowed for the same shall not exceed the sum of 
 
 may use form 
 
 lii schedule. /_^ jf gh^n be lawful and sufficient for the vendor of such lands 
 
 to convey or assure the fee-simple of the same lands to the pur- 
 chaser thereof by an instrument to be made according to the 
 forrn set forth in the schedule to this act annexed, or as near 
 thereto as circumstances will permit. 
 
 Instrument II. And bait further enacted, that every such instrument, duly 
 
 to be pleaded , . - • i i n i i 
 
 as a grant, executed and attested as hereinafter required, shall be deno- 
 
 and to have 
 
 leaselnd °l^ minatcd and pleaded as a grant made in pursuance of this act, 
 '^'"'^" and shall, as between the parties thereto, and as to the lands 
 
 therein comprised, have such and the same force and effect as a 
 lease and release by the same parties. * 
 
 What first HI. And be it enacted, that in the first column of the said 
 columns of form Set forth in the schedule to this act, shall be inserted at 
 length, the name or names, and the rank, profession, trade or 
 calling, and place of abode of the grantor by whom the lands 
 therein comprised are intended to be conveyed or assured. And 
 that such grantor shall likewise in the same column sign or sub- 
 scribe his own name or names, with his ordinary and accustomed 
 signature or subscription. And further, that in the second 
 
 form shall 
 contain. 
 
NOTES. 1'25 
 
 column of the said form set forth in the schedule to this act, shall 
 in like manner be inserted at length, the name or names, and the 
 rank, profession, trade or calling, and place of abode of tlie 
 grantee, to whom the lands therein comprised are intended to be 
 conveyed or assured. And that such grantee shall also, in the 
 same column, sign or subscribe his own name or names with his 
 ordinary and accustomed signature or subscription. And that no 
 form shall take effect or operate under or by virtue of this act, 
 unless the same be duly signed or subscribed by the grantor, and 
 also by the grantee, in the manner hereinbefore required. 
 
 IV. And be it enacted, that in every such form as aforesaid, signatures of 
 
 parties to be 
 
 the signature or subscription of the grantor, and also of the attested. 
 grantee, shall be made or acknowledged in the presence of two 
 or more witnesses, present at the same time. And that such wit- 
 nesses shall likewise sign or subscribe their own names in the said 
 form, in the presence of the party or parties whose signature or 
 subscription such witnesses shall respectively attest. And that 
 no other form of attestation shall be necessary, and that no form 
 shall take eflFect or have any operation under or by virtue of this 
 act, unless the same be attested as hereinbefore required : Pro- 
 vided always, that no person named as a grantor or grantee in any 
 such grant, shall be competent to be a witness to the signature 
 or subscription of any other party thereto. 
 
 V. And be it enacted, that in the third column of every such Third co- 
 
 lumn of form 
 form the price or sum of money paid, given, or allowed, as or for »h^" contain 
 
 the consideration of such conveyance, shall be stated and set forth ""'«'■'»"<'"• 
 in words at length. And that no such grant shall be valid, unless 
 the consideration thereof be truly stated and set forth in the man- 
 ner hereinbefore required. 
 
 VI. And be it enacted, that in the fourth column of the said Fourth co- 
 
 lumn of form 
 form there shall be contained a sufficient description by metes shaii contain 
 
 ^ •' description 
 
 and bounds or otherwise, of the lands in such grant comprised, and "^ '^^^^ '^°"" 
 intended to be thereby conveyed or assured. 
 
 VII. And be it enacted, that every such form signed and attested Form to be 
 m manner hereinbefore required, shall be vdid and effectual any other"" 
 
 ceremony, 
 
 without any sealing or delivery, or any other ceremony or pro- 
 ceeding whatsoever. 
 
126 
 
 NOTES. 
 
 ir witness VIII. And be it enacted, that if any person who shall attest 
 
 shall hecoine i . - • t i 
 
 incumpetent, the execution of any such grant as aforesaid, be at the tune of the 
 
 grant not to 
 
 mv'aMa''d ^^^'^'^tion thereof, or at any time afterwards, incompetent to be 
 admitted a witness to prove the execution thereof, such grant 
 shall not, on that account be invalid. 
 
 Lands com. IX. And be it enacted, that from and immiediately aft«r the 
 
 prised ill . , . . 
 
 grant, to be executiou and attestation in manner aforesaid, of any such grant 
 
 vested m 
 
 grantee in as aforesaid, the lands therein comprised shall be held to be well 
 
 fee, free from ^ 
 
 iovier. j^n(] effectually vested in the grantee thereof, and his heirs and 
 
 assigns for ever, free from the dower of aiuy present or future 
 wife. 
 
 Grant under X. And be it cnactcd, that every such grant of lands, tene- 
 
 tlie act to in- ' j o 
 
 elude all ments and hereditaments, executed and attested in manner here- 
 in-before required, shall be held and construed to include all houses, 
 outhouses, edifices, barns, stables, yands, gardens, orchards, com- 
 mons, trees, woods, underwoods, mounds, fences, hedges, ditches, 
 ways, waters, watercourses, liberties, privileges, easements, pro- 
 fits, commodities emoluments, hereditaments, and appiutenances 
 whatsoever to the lands, tenements and hereditaments therein 
 
 Andtiicre- comprised, belonging or in any way appertaining: And also, the 
 revjersion and reversions, remainder and remainders, yearly and 
 other rents, issues and profits of the same lands, tenements and 
 
 And all the hereditaments, and of everv part and parcel thereof; And all 
 
 estate of the • ^ 
 
 sS'ia' ik ^^ estate, right, title, interest, inheritance, use, trust, property, 
 profit, possession, claim and demand whatsoever, both at law and 
 in equity, of the grantor in, to, out of or upon the same lands, 
 tenements and hereditaments, and every part and parcel thereof, 
 with their and every of their appurtenances. 
 
 Tiie grantor, XI. And be it enacted, that in every such grant of lands, tene- 
 
 by sigiiiiiff 
 
 his name in ments and hereditaments, executed and attested in manner here- 
 
 the first 
 
 c».iiimn of in-before required, the person whose name is inserted in the first 
 h^hM^good' column of the form contained in the schedule to this act, doth, by 
 Tey!ror°q°uiet siguiug Or Subscribing his name therein, in the manner herein- 
 andofgran'is before mentioned, covenant, promise, and agree, for himself, his 
 
 free from in- 
 
 eumbrances, heirs, cxcoutors and administrators, to and with the person whose 
 
 and tor fur- ^ 
 
 anec"'*""^' ns.me is inserted and signed or subscribed in the second column 
 of the said form, in the manner herein-before mentioned ; that 
 
NOTES. 127 
 
 fot and notwithstanding any act, deed, matter or thing v?faatso- 
 ever by him the said grantor, made, done, omitted, committed, 
 executed, or knowingly or wittingly suffered to the contrary, he, 
 the said grantor, hath in himself good right, full power, and law- 
 ful and absolute authority to grant, convey, and assure the said 
 lands, tenements and hereditaments thereby granted, conveyed, 
 and assured, with the appurtenances, unto and to the use of the 
 said grantee, his heirs and assigns : And that it shall and may 
 be lawful for the said grantee, his heirs and assigns, from time 
 to time and at all times thereafter, peaceably and quietly to enter 
 into, hold, occupy, possess and enjoy the said lands, tenements 
 and hereditaments thereby granted, conveyed and assured, with 
 their appurtenaiices, and to have, receive and take the rents, 
 issues and profits thereof, and of every part thereof, to and for 
 his own use and benefit, without any lawful let, suit, trouble, 
 denial, claim, demand, interruption or eviction whatsoever, of or 
 by him the said grantor or his heirs, or of, from, or by any other 
 person or persons whomsoever, lawfully or equitably claiming or 
 to claim, by, from, or under, or in trust for him, them, or aiiy of 
 them : And that free and clear, and freely and clearly and abso- 
 lutely acquitted, exonerated, released, and for ever discharged or 
 otherwise by the said grantor, his heirs, executors, and adminis- 
 trators, well and sufficiently saved, defended, kept harmless and 
 indemnified of, from and against all and all manner of former and 
 other gifts, grants, bargains, sales, jointures, dowers, and all rights 
 and titles of or to dower, uses, trusts, entails, wills, mortgages, 
 leases, sta;tutes merchant or of the staple, recognizances, judg- 
 ments, executions, extents, rents, arrears of rent, annuities, 
 legacies, sums of money, yearly payments, forfeitures, re-entry, 
 cause and causes of forfeiture" and re-entry, debts of record, debts 
 due to the Queen's Majesty, and of, from, and against all other 
 estates, titles, troubles, charges, debts, and incumbrances whatso- 
 ever, either already had and made, executed, occasioned, and suf- 
 fered, or hereafter to be had^ made, executed, occasioned and 
 suffered by the said grantor or his heirs, or by any other person 
 or persons lawfully or equitably claiming or "to claim, by, from, 
 or under, or in trust for him, them, or any of them, or by Ms or 
 
128 NOTKS. 
 
 their acts, deeds, means, default or procurement : And further, 
 that he, the said grantor and his heirs, and all and every other 
 person or persons having or claiming, or who shall or may, at any 
 time after the execution of the said grant, have or claim any es- 
 tate, right, title, interest, inheritance, use, trust, property, claim, 
 or demand whatsoever, either at law or in equity, of, in, to, or out 
 of the said lands, tenements, and hereditaments thereby granted, 
 conveyed and assured, with their appurtenances, or any of them, 
 or any part thereof, by, from or under, or in trust for him the 
 said grantor or his heirs, shall and will from time to time, and at 
 all times after the execution of the said grant, upon every reason- 
 able request to be made for that purpose, by and at the proper 
 costs and charges of the said grantor, his heirs or assigns, make,, 
 do, acknowledge and execute, or cause or procure to be made, 
 done, acknowledged and executed, all such further and other 
 lawful and reasonable acts, deeds, things, devices, conveyances 
 and assurances, in the law whatsoever, for the better, more per- 
 fectly and absolutely granting, conveying and assuring, of the said 
 lands, tenements and hereditaments thereby granted, conveyed 
 and assured, and every part thereof, with their appurtenances, 
 unto and to the use of the said grantor, his heirs and assigns, 
 in manner aforesaid, or by the said grantee, his heirs or assigns, 
 or his or their counsel in the law, shall be reasonably devised, ad- 
 vised and required : Provided always, that no such further as- 
 surance or assurances shall contain or imply any further or other 
 covenant or warranty than against the person or persons who 
 shall be required to make or execute the same, and his, her, or 
 their heirs, executors and administrators' acts and deeds : Pro- 
 vided also, that the person or persons who shall be required to 
 make such further assurance or assurances shall not be compelled 
 or compellable for the making thereof, to go or travel from his, 
 her, or their usual place or respective places of abode. 
 Torm maybe XII. And be it enacted, that it shall be lawful for any person 
 altered ac- adopting or employing the form set forth in the schedule to this 
 
 cording to 
 
 thepaiticn. act, to add or append any other clause or provision whatsoever to 
 
 l:ir circum- i * .- a 
 
 thc"caBe?'^ such form, or to alter or limit the effect of any provision herein 
 contained, so fai ids, ten&ments, or heredita- 
 
NOTKS. 
 
 ments, intended by them to be conveyed or assured : Provided 
 always, that any other clause or provision adding to or altering 
 the said form, shall be executed and attested by the parties thereto, 
 in manner herein-before required. 
 
 THE SCHEDULE 
 
 TO WHICH THE ACT REFERS. 
 
 Grant by virtue of Stat. 
 
 Vict. c. 
 
 Column 1. 
 
 Column 2. 
 
 Column 3. 
 
 Column 4. 
 
 Name of Grantor. 
 
 Name of Grantee. 
 
 Consideration. 
 
 Property conveyed. 
 
 Thomas Smith, of 
 Clare Hall, in the 
 county of Middle- 
 sex, Esquire. 
 
 {Thomas Smith.) 
 
 Witnesses, 
 Eli Hodges, 
 Timothy White. 
 
 William Thomp- 
 son, of the city 
 of London, Mer- 
 chant. 
 
 (fV. Thompson.) 
 
 Witnesses, 
 John Tower, 
 Henry Dawson. 
 
 Two hun- 
 dred and fifty 
 pounds. 
 
 All that piece of 
 land called Brool: 
 Meadow, situate and 
 being in the parish 
 ofSt.John the Bap- 
 tist, in the county 
 of Middlesex, and 
 bounded on the 
 north, &c. 
 
130 
 
 NOTES. 
 
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ERRATA. 
 
 Page y, 1. 14 from bottom, for "is " read " are. " 
 
 Page 23, 1. 5 from bottom, dele the words "purchases of,' 
 
 E. Spottjsuc, rimtef, 67, Chantery Lane. 
 
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