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is usually termed, a radical reform—and.no doubt, those suggestions go to subvert some established principles, as well as a multitude of (what are too often mistaken for principles) established forms and ordinances. But, although forms and principles are frequently confounded by ignorance, and still more frequently by prejudice or interest, nothing is of such vital importance in all legislative discussion, as that care, amounting even to jealousy, should be taken to extricate the subject from so grievous an error as that which would elevate the petty concerns of clerks and notaries to a level with the great landmarks of law, the constituted bulwarks of civil liberty and religion. The true question is, whether, consistently with the preservation of these landmarks, and with the security of their deferees, the proposed system is practicable;—and we see nothing in the outline presented to us, to convict it of impracticability—we see nothing even to induce us to question, whether the facts bear out the author's repeated assertions—that, to at least a considerable extent, the laws of property may be reformed without innovating; and that, where innovation or abolition is thought to be necessary, the proposal is sanctioned in most instances by prior legislative changes, of the same or a greater extent, and in the rest, by justice, or obvious expediency.
1. It must be admitted, that" the statute of 12 Car. 2. introduced a much more extensive abrogation of the then existing law as to tenures, than any thing which Mr. Humphreys proposes; and that also at a far greater gratuitous sacrifice on the part of the feudal lord, than any to which his patriotism is by the present measures subjected.
2. The statute of 27 Hen. 8. was intended to abolish uses, by investing them with the character of legal estates; and this would have been the actual consequence, but for the narrow construction put upon it by judicial interpretation.
3. This false principle of interpretation gave room to the revival of uses in equity, under the name of trusts; which would not now have existed, had the intention of the legislature been properly seconded. In those anomalous characters of passive or nominal, trusts are peculiar to the jurisprudence of this country. Indeed it is not less surprizing than true, nor less true than mortifying to national pride, to discover, that many of the boldest measures proposed by Mr. Humphreys for our adoption, as improvements in the English laws of property, have already been carried into operation, and are now the established law of so many states infinitely below us in the scale of political greatness and moral excellence.
- , ■ We
We are not fond of the term 'Code;' and fancy that there is something imperial and arbitrary in its sound, which is apt to grate on the ears of a disciple of Bracton or of Littleton. We conceive, that a more serious objection may attend it, as calculated to create a prejudice against the very substance of reform, recommended under so un-English an appellation. But let us not be frightened by words, nor diverted by our dislike of a name, from attending to the true subject of inquiry—namely, the practicability and expediency of a general revision of system. There is little ground for serious apprehension that England will be led astray by the ardour of innovation, or a restless appetite for distinction. The national tendencies are all on the other side. These lead men to inquire and deliberate, to examine and balance, and ultimately to decide on no matter of alleged improvement, however speciously recommended or loudly called for, without the most scrupulous sifting of facts, the most laborious investigation of principles ;—to remember that (in the words of Burke) ' difficulty is a severe instructor, set over us by the supreme ordinance of a parental guardian and legislator, who knows us better than we know ourselves, as he loves us better too'—that
'Pater ipse colendi Haud facilem esse viam voluit'— that, (to use still more of the language addressed by our great orator already cited, to the codifiers of the French National Assembly,)
'Our antagonist is our helper. This amicable conflict obliges us to an intimate acquaintance with our object, and compels us to consider it in all its relations. It will not suffer us to be superficial. It is the want of nerves of understanding for such a task, the degenerate fondness for short cuts, and little fallacious facilities, that has, in so many parts of the world, created governments with arbitrary powers.
'To make every thing the reverse of what we have seen, is quite as easy as to destroy. At once to preserve and reform is quite another thing. When the useful parts of an old establishment are kept, and what is superadded is fitted to what is retained, a vigorous mind, steady persevering attention, various powers of comparison and combination, and the resources of an understanding fruitful in expedients, are to be exercised. They are to be exercised in a continued conflict with the combined force of opposite views; with the obstinacy which rejects all improvement, and the levity that is fatigued and disgusted with every thing of which it is in possession.'
We are not—we once again repeat—in the least afraid, that these sound and enlightened precepts will be forgotten by those of our own time and country, with whom the great and enviable task of reforming our system of laws principally rests; and in whose hands we believe that the work we have been analyzing
VOL. XXXIV. NO. LXVIH. O O will will prove a most valuable magazine of thought and suggestion. It is not the only book of merit and reputation to which the growing spirit of legislative improvement has recently given birth; and we confidently regard it as itself the precursor of many yet to come. But it is the first which, by selecting a particular and most important department of law, with which the author is himself practically conversant—and by noticing no defect or abuse, of which it does not prescribe a specific remedy—both challenges and deserves the peculiar attention of those whose duty it is to assist the progress of original thought, and free inquiry. We did not indeed anticipate, that the invitation of the Chancery Commissioners would have been so immediately accepted; and still less, that the first to take up the gauntlet would be an eminent practitioner in that very department of the profession the abuses of which he undertakes to meet and to vanquish.—
'Via prima salutis, Quod minimi' reris, Grai& pandetur ab urbe," Mr. Humphreys, however, is not, we are happy to think, the only lawyer of our times anxious to wipe off the reproach to his profession of an interested and sordid opposition to all plans of improvement which, assuming for their basis the vast spread of litigation occasioned by the uncertainties and imperfections of the existing system, threaten to abridge its emoluments, by narrowing the field of its practice. We have all due respect for a body of men so important in themselves, and so essential to the wellbeing of the community, as the lawyers; though we cannot but hint the possibility of their importance and value, in their collective capacity,being overrated—regard being had to the fact, that the principles of the constitution have at least as often been put in jeopardy, as they have been protected from violation, by the members of that very learned, but not always very scrupulous, profession. But what consequence would follow from admitting them to the full benefit of their highest pretensions? Do not the professors of medicine constitute a class of society as important and valuable? Yet we should hardly bear to be told, that the gout or the plague must be encouraged in order to afford the doctors a livelihood. Neither the discovery of Jenner, nor the previous introduction of inoculation, was discountenanced upon any such pretext; indeed to the honour of the medical character, it is but justice to acknowledge, that the members of that profession have always actively and disinterestedly promoted every research, and every discovery, tending to mitigate the physical sufferings of humanity. If somewhat too much of a contrary disposition has hitherto been manifested by lawyers, there have never at least been wanting worthy and commendable instances of exception
to the prevailing spirit. There is no reason to fear, but that these instances will increase and multiply under the auspices of a liberal and wise administration; and the opposition of private and petty interests will prove altogether powerless, without the aid of a correspondent principle of timidity and inaction.
Art. XI.—1. Correspondence with the British Commissioners, relating to the Slave-Trade. 1825,1826. Class A.
2. Correspondence with Foreign Powers, relating to the SlaveTrade. 1825,1826. Class B. Presented to both Houses of Parliament.
3. British and Foreign State Papers. 1824, 1825.
4. Nineteenth and Twentieth Reports of the Directors of the African Institution. 1825, 1826.
T N December, 1824, the senate of South Carolina passed cer-"• tain resolutions, among which was the following:—
'That this legislature is aware of the dangerous and insidious conduct of a party in Great Britain and the United States, who are ever ready to indulge their benevolent propensities at the expense of their neighbours, and who seem to reflect with complacency on the scenes of carnage and cruelty, which must be the result of their inconsiderate and mischievous machinations.'
This is strong language; but perhaps may not be the less true for being so. The resolution shows, at any rate, what are the opinions of a large portion of the free and independent republicans of the United States in regard to negro slavery, and the persons most conspicuous, both in England and in North America, for their exertions to bring its existence to a speedy end. No one will doubt or deny that there does exist a class of persons, such as the resolution designates as ' a party,' (but who may, in England at least, be more properly considered as an organized confederacy of sectarians,)—and it is equally certain that these persons have been, and are, exerting every nerve, per fas et nefas, to accomplish an object, which, if accomplished suddenly by any means, or accomplished at all by their mode of proceeding, would unquestionably produce ' scenes of carnage and cruelty.' Every rational being, who knows any thing of the West Indian colonies, and will bring himself to reflect coolly and dispassionately on the relative situation and condition of the whites and the blacks,—the masters and the slaves,—must be aware of this; he must also be convinced that, if once a general insurrection be stirred up—and nothing is more likely to produce it than those 'inconsiderate and mischievous machinations' of which the legislature of South Carolina speaks—a general and indiscriminate
o o 2 massacre
massacre would be the result among the varied population of our sugar islands; that a total destruction of all property would be inevitable; and, in a word, that these valuable possessions of the British empire would be utterly lost and annihilated. Nor would his view of the matter be altered in favour of the ultra-abolitionists, by the additional observation that, in point of fact, other nations, in utter contempt and violation of solemn treaties, are systematically taking advantage of the effects of English legislation upon the English colonies—that, in short, foreigners are zealously engaged in increasing the slave population of their own colonies, with the obvious design of enabling these to raise in greater abundance the articles of produce for the consumption of the European world, which were once almost exclusively in the hands of our British planters.
To the assertion that the conduct of the party in question is 'dangerous,' we cannot for a moment hesitate to give our assent; whether their object be ' insidious' (by which we suppose is meant, treacherous, or mischievously artful) is best known to themselves. We cannot but think, however, that a candid and impartial foreigner, who should witness the multitude and magnitude of petitions presented to parliament for the emancipation of our colonial negroes, might very well be puzzled in his attempt to hit upon the real cause of these expressions of popular feeling—he might be in doubt whether they were the effect of a free constitution, producing in the minds of the people an intense love of liberty, and a burning detestation of the very name of slavery— or merely of human compassion for the supposed sufferings of eight hundred thousand fellow-creatures. In the first case he would conclude, that it was perfectly natural for such a people as the English to be anxious to wipe off the stain with which the existence of slavery, in one portion of the empire, taints the national honour and character; and learn without surprize that petitions were pouring in from every city, town and village of the British Isles, some praying for an immediate, others for a gradual, but all of them for a total abolition of negro slavery, even although it were distinctly assumed—(which we are very sorry to say it has not been)—in every such document, that such an event could only be brought about by a great national and Individual sacrifice. And, unquestionably, by such noble and generous conduct, adopted under such sane and rational views of the whole case, the people of England would extort his applause, nay, they might well excite his envy.
If, on the other hand, this foreigner should be inclined to ascribe the extraordinary eagerness in question solely to the dictates of humanity, and a feeling of compassion for the unhappy