Only allow the principle of redeemable rents to come into operation, and restrain the liability of the purchaser or guarantee within its legitimate limits, and all the complications of our system of tenure will vanish. Then, indeed, but not till then, will parties be enabled to enjoy perfect security in all transactions connected with real property; then will the Registrar feel no hesitation in affixing his signature to the veracity of statements respecting the amount of hypothecations, or rents due by parties whose pecuniary liabilities may form the subject of enquiry, as he personally certifies to the veracity of all other equally important extracts from the public records. All he will then have to do will be to search the registry, which, with such a system, will ever convey a plain and faithful statement of the nature and amount of every person's liabilities, and to which in that case it would be his duty to affix his signature; no overacts, no latent guarantees, no untoward purchases, to which either party has been a stranger, would then be brought up to render that party a victim of transactions, the effects of which at the onset he could not foresee, nor ever afterwards by any possibility avert. But with the present practice of guarantee it would be as unjust to compel the registrar to certify against the chances of future expropriation, as it is to suffer the existence of such a system to the prejudice of bonâ fide purchasers; besides, his very signature, which, of all others, it should be the object of the legislature to render the faithful image of truth, would now, in many instances, only be an additional source of error; such are the ramifications of the present system, and the unforeseen liabilities which it entails. Notwithstanding daily and incontrovertible proofs of the ruinous tendency of guarantee, it is said that it still has its admirers; let not on that account, however, those who really desire to rid their country of this scourge allow their efforts to flag. Some of their opponents may take warning from the past, but, however great their number, or high their authority, both must fail if directed to support a practice, the very name and object of which, originally intended as an additional security for property, through the most unwarrantable perversion has had the effect of undermining the very titles on which real property rests. Such, however, is not the only instance,

where a good name has in modern times been deemed a sufficient cover for the most wretched institutions; the Inquisition was styled holy, the Reign of Terror, was denominated the government of public safety,-and, much on a similar principle, was that prerogative which our ancient landholders affixed to their property, and which in time has gone to unsettle its very foundations, denominated Guarantee.

CHAPTER V.

ON WILLS.

Preliminary Remarks.

The power of willing, or the right by which a person allowed by law to dispose of his property, even when by his death he has no longer any controul over it, constitutes one of the most legitimate and natural rights arising from property. Wills, like inheritances, are mere creations of the civil law, introduced for the purpose of regulating the transmission of property from one person to another, that it should not fall into the hands of the first occupier, as it otherwise would by the decease of its owner or original possessor. The gratuitous ownership of property is determined either by the law or by the owner's will. The first are usually called heirs at law; the second legatees, or heirs of the will; the first are generally determined by the degree of affection which it is presumed the deceased entertained for particular persons, such as his offspring, his parents and relations in the collateral line, according to their proximity of relationship, and those as presumed heirs are preferred, unless the owner have otherwise. determined by his selecting or creating one or more of his choice; then it is that the rule dicat testator et erit lex comes into operation, that is to say that the heir of the will is preferred to all others.

Intestate inheritances may then be defined those where the law undertakes to provide an heir according to the presumed affections of the deceased. They who have broached the idea that individuals after their death having no controul over the affairs of this world, are not competent to

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make wills or select their own heirs, and who on that eccentric idea would destroy the principle of testamentary bequests, do not appear to have bestowed on the sacred rights of property, that consideration the subject deserves, nor to have surrounded it with that protection to which it is so eminently entitled. Is not an owner on his death-bed quite as absolute master of his property as he was at any other period of his life! Why should he then be debarred from distributing it among those whom he considers have the strongest claim either on his honour, his affections, or his regard? Upon what principle debar him from exercising the noblest prerogative inherent in his nature, which the laws of all civilized society expressly uphold as one of the most strenuous promoters of industrious habits, as one of the strongest inducements to the accumulation of wealth, and a powerful means of maintaining the tranquillity and peace of families, as a distributor of rewards and punishments. In fact, the institution of wills as a measure of rewards, and that of representation as a preventive against the afflicted widow and unoffending orphans falling victims to the rigidity of legal principles, deservedly rank amongst the noblest of civilized institutions; and it has already been seen how the progress of civilization may in some measure be traced by the extent to which they have been acknowledged at various periods in different countries.

Of the power of willing it has been justly remarked: Nihil est quod magis hominibus debeatur, quam ut supremæ voluntatis, post quam jam aliud velle non possunt, liber sit stilus, et licitum quod iterum non redit arbitrium ;* no civil right is indeed more precious than that of allowing an owner to bequeath his property. But the power of the law over man's rights in civil society was never perhaps more happily expressed than in the following words of one of the first lawyers and professorst of the day: "Avant que l'homme ne soit conçu la loi s'occupe de lui; pendant son enfance et son adoles

* L. 1. c. De SS ecclesi., Lib. 1, Tit. 2.

† Monsieur P. H. M. Lesbaupin, in his course of lectures on the Roman law, and his introductory discourse on Wills, delivered in the University of Rennes, in 1827.

This is strictly conformable to the rule laid down in the law, 1. Dig. de ventre in possessionem mittendo. Sicuti liberorum eorum qui jam in rebus

cence encore hors d'état de veiller sur lui-même, elle lui nomme des aides ou gardiens pour surveiller sa personne, et pour augmenter et améliorer sa propriété ; arrivé à l'âge mûr elle le maintient dans le libre exercice de ses droits civils, c'est-à-dire, de sa liberté et de sa propriété ; elle veille encore à sa sûreté tandis qu'il ne commet aucun acte qui lui fasse forfaire ses droits; et même après son existence elle fait respecter sa volonté pourvu qu'il se tienne dans les bornes de son devoir." Such indeed should be the object of the law in all states, and in those having any pretensions to the qualification of free, the power of willing has been sanctioned as one of the most undisputed rights of property; so much so that the Roman legislator considered the power of willing, less as the attribute of the civil law, than as the common right of mankind: testamenti factio non privati, sed publici juris est.†

The feudal law which, with regard to real property, was till lately in so many respects the law of this Island, was very much opposed to the principle of wills, and with regard to real property inherited they were absolutely forbidden. This, however, was not to be wondered at, under a system by which landowners were treated less as proprietors than as life tenants, less as citizens than as the vassals or slaves of some powerful lord. Hence the prerogatives of the male over the female sex-the treatment of parents as convicts-and the exorbitant

humanis sunt, curam prætor habuit, ita etiam eos qui nondum nati sunt, propter spem nascendi non neglexit. Nam et hac parte edicti eos tuitus est dum ventrem mittit in possessionem. The law 7 of the Dig. de statu hominum is to the same effect-Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partus quæritur.

This is fully confirmed by the following definition given of a will by the Roman law-De eo quod quis post mortem suam fieri velit. L. 1. Dig. qui testamentum facere possunt. And again-Paterfamilias uti legassit supellectiliâ pecuniâ ve suâ ita jus esto; dicat testator et erit lex. So then, the father of a family, as well as any other individual, who left no descent, could dispose of his property by his will, which, when regularly drawn up and clearly expressed, was as binding as any law.

MONTESQUIEU, in the preface to his spirit of laws, has said "qu'il n'appartient de proposer des changemens qu'à ceux qui sont assez heureusement nés pour pénétrer d'un coup de génie toute la constitution d'un état." How then must they be born who can thus, as this successor of Lanjuinais, not only penetrate to the uttermost recesses of the science, but explain its ramifications and animadvert upon its bearings in a manner to place the whole within the reach of the humblest capacity, and with such exquisite skill that they may literally be said to personify the law.

† L. 3. ff. qui testamenta facere possunt.

usurpations in the shape of redemption-permits or congés to sell-confiscations of property-right of wreck-and the like established in those days, the vestiges of which, in many respects, still remain; to wit, the Baronial Courts, where persons are obliged to assist once. in three years, on pain of forfeiting one year's value of their estate, for the mere purpose of certifying their presence, ridiculously termed doing homage, which a man of sense would spurn to receive, and which, from being attended with no earthly benefit to any person, should be abolished as a nuisance, tending to make persons lose many a precious hour which would be so much more advantageously employed in agriculture and other honourable pursuits. As to the pecuniary advantages still enjoyed by lords of manors, these should not be abolished without a suitable indemnity, but it is surely high time that the remnants of personal servitude, the badges of the servi glebæ of the middle ages should disappear.

How was it possible for the law to allow a person to dispose freely of his property at a time when he was not in fact master of his own actions? How tolerate wills of any kind in presence of the axiom, nulle terre sans seigneur, which rendered every landowner the mere life tenant of his lord. In fact the system of wills seems to have been proscribed by all the Northern nations where the feudal system had taken deepest root, and in modern as in ancient times, seems to have gradually advanced with the progress of civilization.*

It has been often asked whether wills, as inheritances, were absolutely natural rights, or mere creations of the law. The chancellor D'Aguessaut finding wills established throughout the greatest number of nations, considered the institution as derived from the law of nations, but regulated by the positive laws of each in particular. Both might, however, be said to

*They who desire to convince themselves of this may recur to BLACKSTONE, who refers to the introduction of wills among nations of the remotest antiquity, and more modern times. Book 2. Chap. 32. Nos. 11 and 12. DOMAT, in his introductory chapter on wills, and BASNAGE on the custom on Normandy, vol. 2. Des Testamens, art. 412, p. 181.

This eminent lawyer made an ordinance on this subject which ranks amongst the most famous of the reign of Louis the XVth.

Upon this question see Mr. Toullier, in his introduction on wills. Vol. 5, chap. 5. p. 352, wherein he states it to be derived from the civil law. Burlamaqui considers wills, or the power of disposing of one's property after death,→→