PART II.

OF THE REMEDY FOR THE DEFECTIVE STATE OF THE LAWS OF REAL PROPERTY.

I SHALL now proceed to the second and more agreeable part of my task, and endeavour to point out the suitable correction of the incongruous and overwhelming mass of laws which has been exhibited to the reader. There are two modes of effecting this one by applying partial remedies, wherever the institutions are redundant, inconsistent, or deficient ;-the other, by framing an entire new code of the laws of real property. I shall give each a full, and, I trust, an impartial consideration.

More than two centuries ago, the present subject attracted the attention of a lawyer and a philosopher, who classes among the brightest ornaments of this country; and who, in having pointed out experiment as the true road to natural science, has conferred on mankind an obligation which will cease only with their race. In his treatise, De

Augmentis Scientiarum, lib. viii., Lord Bacon has the following aphorisms on the excessive accumulation of laws.

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APHORISMUS LIV.

Duplex in usum venit statuti novi condendi ratio. Altera statuta priora circa idem subjectum confirmat, et roborat; dein nonnulla addit, aut mutat. Altera abrogat et delet cuncta quæ ante ordinata sunt; et de integro legem novam et uniformem substituit. Placet posterior ratio; nam ex priore ratione ordinationes devenerint complicatæ et perplexæ; et quod instat agitur sane; sed corpus legum interim redditur vitiosam. In posteriore autem major certe est adhibenda diligentia dum de lege ipsâ deliberatur; et anteacta scilicet evolvenda et pensitenda antequam Lex feratur; sed optimè procedit per hoc legum concordia in futuro."

In the next section, " De novis digestis legum," the fifty-ninth Aphorism is to the same effect, and highly stimulating to legislators who may undertake such a task.

"Si leges aliæ super alias accumulatæ in tam vasta excreverint volumina, aut tantâ confusione laboraverint, ut eas de integro retractare, et in corpus sanum et habile redigere ex usu fit; id ante omnia agito, atque opus hujusmodi opus heroicum esto; adque auctores talis operis tanquam legislatores, et instauratores rite et merito numerantur."

On the practice which, from the inertness of the legislature, has been so prevalent in our laws, of reconciling their inconsistencies by judicial refinements, the fifty-sixth Aphorism is couched in the following pointed language:

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Neque vero contraria legum capita reconciliandi, atque omnia (ut loquuntur) salvandi per distinctiones subtiles et quæsitas, nimis sedula aut anxia cura esto. Ingenii enim hæc tela est. Atque utcunque modestiam quandam et reverentiam præ se ferat, inter noxia tamen censenda est; utpote quæ reddat corpus universum legum varium, et malle consuetum. Melius est prorsus, ut succumbant deteriora, et meliora stent sola."

What our great countryman conceived, has been executed in modern times by the energy of the French nation, aided by the genius of Napoleon; whose boast it was, (and with every appearance of truth,) that he should descend to posterity with his Code in his hand.

This tacit reproof might have been endured by Englishmen, under the palliative, that the subversion in France of all established institutions, made a clear field for perfect system. But we have a second lesson, without a similar excuse, from the plain sense and steady perseverance of our less mercurial neighbours of the Low Countries; whose government, with the assistance of permanent commissioners, have made considerable and

much-applauded progress in the correction of her civil jurisprudence (a). Nor is this all. Much as we may admire the exalted taste and frequent genius of the individual Roman, it is yet a mortifying reproach, while it forms a singular coincidence, that England, with her pre-eminent pretensions in the science of government, should be now preceded by the Papal state in the reform of her civil institutions (b), as she was formerly in that of her calendar (c).

ALTERNATIVE OF PARTIAL CORRECTION, OR A NEW

CODE.

Still, it is due to the importance of the subject to ponder well, whether the defects in our laws of real property may not be corrected by judicious curtailment and occasional alteration, rather than resort to the bold experiment of total abrogation, and the formation of a new code. For this purpose, I shall take a rapid review of the causes to which these defects are attributable; distinguishing any which

(a) See, in addition to former public communications, the Speech of the King of the Netherlands, in the Morning Chronicle of the 24th October, 1825, from the "State Courante" of the 18th October.

(b) Pontifical Decree of 5th Oct. 1824, in the Morning Herald of 3d Dec. 1824.

(c) Lord Chesterfield's Letters. Letter 215.