Imatges de pÓgina
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would render this term less appropriate to any legislative improvement of the laws in question. For this and similar reasons, which will be assigned in the sequel, the unpopular expression no longer designates the proposed scheme of reform.”—pp. viii. ix.

Now, Mr. Reddie's letter was published in 1828; and it is only recently, and by accident, that I heard of it. In the interval had appeared a controversial letter addressed by Mr. Sugden to myself, with my reply, a correspondence on which Mr. Reddie comments copiously; can it then be believed, or, if credible, is it excusable that Mr. Reddie, so acutely alive to the subject, perusing even each subordinate discussion of it, could have suddenly so relaxed his attention as to be ignorant of a second edition of the work which had been submitted to the public, and variously alluded to for the better part of a year before the publication of his own criticisms. But the second edition did not afford him the same opportunity of decrying the horrors of codifying as the first.

Had he perused, however, even the first edition with any thing short of a determination to find the phantom he combats, the propositions for a code of real property, which constitute the second part of my work, would have presented themselves in any form but that of precipitation. They are introduced by observing that (@) “ In so untried a field the first suggestions must necessarily be imperfect, both in their contents and their omissions; nor shall I attempt more than I strictly profess, a bare outline." I subsequently state that, “I had redeemed my first pledge of showing that our present system of the laws in question is incapable of correction. The object of this my second part is, not to complete a code, but to show that the task is practicable."

To proceed to the actual crime of codifying, bearing always in mind that it applies only to our present uncouth laws of real property. Had Mr. Reddie evinced a knowledge of even the rudiments of this system-had lie been aware how mucn it is influenced by the political circumstances of past and half forgotten times; by the stratagems of cunning to evade oppression; of ecclesiastial institutions to aggrandise their order; by the change from a feudal aristocracy to a limited monarchy, and a legislature partly representative, with numerous other influential causes—had he balanced the extraneous operations of these against a pure system of laws, embracing the only essentials, namely, the rights of enjoyment, transmission, and liability to creditors, and finally struck the balance between inconvenience and habit on the one part, and principle on the other; in this arena I might have combated with instruction to the public and pleasure to myself. As

(c) p. 178.

it is, I can only recommend Mr. Reddie, after perusing the second and third volumes of his Blackstone, to apply to the uncouth state of our English laws of real property, which he will find represented there the principles developed in the treatise “ De la Codification" of Mr. Bentham, arranged and edited by M. Dumont-Paris, 1828.

In p. 59, indeed, I fix him for once to somewhat of specification; nor can I suffer the occasion, however meagre, to pass. A father is depictured as lying “ on his death-bed in doubt (from the horrors of my code) as to the destination of his estate, and the validity of his testamentary provision for his widow, or orphans; perhaps even with regard to their legal right to the possession of that property, which he had hitherto considered as his own. Nor do the consequences end here. The customs, opinions, and modes of procedure which had antecedently existed being at once annihilated, at the moment of Mr. Humphreys's new and yet untried forms, doubts would instantly start up every last will and testament made before the code must be altered."

The chief of the foregoing objections seem to point at testamentary disposition, and the rights of dower and succession. Now, if the reader will turn to the 42d proposition, in the second part of my work, he will find the testamentary power so enlarged and defined (particularly by the first provision, that every will of land shall take effect from the death of the testator); that there would be less occasion, if it were adopted, to alter prior wills than what exists at present, when wills operate upon such land only as the testator possesses at the time of making them, and do not embrace after purchased estates. The laws of descent are simplified, and their present anomalies removed, without interfering with their present leading principles; and I deem it no small confirmation of the justness of my views that Mr. Preston, on perusing my propositions on the subject, expressed their exact coincidence with his own speculations on a subject on which his opinion must ever be deemed invaluable. The law respecting dower is adjusted by the 28th Proposition, in a manner which reconciles the actual law with the rules of convenience and moral justice. These are what Mr. Reddie seems to intend by the legal rights of widows or orphans; though as to the latter I should inform him, that our law of primogeniture excludes the whole of them, except the eldest son, from any legal right whatsoever in land. As to the sudden “ annihilation" of customs, if he will refer to title 1, chap. 3, he will find provision made for the gradual extinguishment of copyholds and other similar rights; and that in a manner consonant with the present general practice. With modes of procedure, I shall only briefly state, that it is a subject I have not meddled with.

The writer afterwards proposes to be more explicit, (d) and he proceeds to state my position, that tenures, uses, and trusts are not merely unessential, but burthensome. Here at length I expected to find a discussion of these topics ; but in vain. From sober reality the writer again turns to combat his favourite phantom of a code; to which he here attributes the further imaginary quality of attaching unalterably upon all future generations. Í will not inquire in which of my propositions this intention is to be discovered; but I will briefly observe, that one of the wisest of of M. Bentham's numerous original suggestions is that for the constant revision of laws.

After the most sweeping anathemas, however, against codification, in all its forms, M. Reddie, like myself, though not with equal consistency, represents our legislature as guilty of the very offence.—“ Many of the doctrines of the common law,he observes, “ have from time to time been embodied by the legislature in statutes ; thus recognising and promulgating that practice to exist for the future which had been already established by usage." (e) Indeed his leading authority, Mr. Sugden, exhibits in more passages than one of his letter to myself the germ of codification in an equally sensible degree. (f)

For the sake, however, of those of your readers whom the very name of codification may have rendered indisposed to all systematic reform, I will briefly advert to the state of the question in our own country. Whether the result be termed a code, or be an act, or a series of acts, to amend and consolidate the laws in question, is a mere question of words. Many of our present reforming and consolidating acts, for instance those relating to the customs and the excise, to .crimes against property, to trustees and mortgagees under legal disabilities, to bankrupts, to insolvent debtors, are all in effect distinct parts of a code; correcting and embodying all prior laws and rules, whether statutory, judicial, or textuary, on the same subject. But, on the important head which I have myself selected for discussion, the government has placed itself in pari delicto by the commission recently issued for “ an inquiry into the law of England respecting real property, and the various interests therein, and the methods and forms of aliening and transferring the same; and whether any and what improvements can be made therein, and how the same may be best carried into effect." This inquest embraces, to the fullest extent, and (with due allowance for curtailment), in the same order, the investigations I have already made of the defects of these laws in the first part of my work, and of their suitable remedies in its

(c) p71.

(d) p. 61. VOL. IISU

(1) p. 8–37. Second edit

K

second part. The commissioners may exceed or may fall short of my views of the subject; but, as far as we are concurrent, I anticipate the same result from our labours.

I proceed to the minor charges of offences in authorship, unhappy or incorrect citations in support of my arguments, and illogical conclusions. The instances are adduced in a somewhat desultory manner; but, that none of them may be overlooked, I will pursue Mr. Reddie's own order. I must, however, premise it as rather a novel mode of controversy that, though a professed critic of my work, he nowhere cites from the book itself, but ever from my letter in reply to Mr. Sugden.(g)

I am first alluded to as recommending, in my reply to Mr. Sugden, (h) the code civil of France, “ as a pure and harmonious system of jurisprudence.” In ordinary discussion, a writer who controverts the positions of another states his own views of the debatable points on which his opponent may meet him ; but what does Mr. Reddie present us with? not a single position regarding either the institutions themselves, whether in their direct objects, their more remote political effects, or their connection with the past history of jurisprudence (so rich a subject in France); not even an analysis of the question. Instead of such essential topics as these, the critic indulges himself in a declamation against the horrors of the French revolution, and in a laboured effort to ascribe to the ambition of Napoleon the chief formation of a code which was more than half completed for years before his name was heard of. (i) He closes, indeed, with a concession which seems to render all his preceding efforts nugatory—“ It is for that part of the code alone which regulates the relations of Frenchmen in their private dealings that they have reason to be grateful.” This, indeed, is both liberal and unexpected; but I am yet to know what part of the code it is which does not regulate private transactions. Every civil code the world has yet been presented with determines mere civil rights.

But I laud the Dutch code. (k) In this, indeed, Mr. Reddie admits I have not done ill; but its acknowledged excellence he attributes to “ a return to the natural principles and customs of the country completely divested of the abstractions and conceits of the code of France." "Had Mr. Reddie abstracted his own attention from words to things, a very cursory comparison of the two codes would have informed him that, in their outlines and general principles, they are essentially alike: frequently the same, and always resembling in their leading rules of transmission by act of law and of the party—of contracts of every description-of

(8) pp. 41, 62, 64, 68, 93.
(i) Le Projet du Code Civil, 1793.

(h) p. 34.
(k) pp. 39, 40.

legal obligations, and of prescription. Alike, too, in the distribution of the subject, with the single leading exception, that the rights of marriage, which constitute the fifth title of the French code of property, form the fourth and the seven next titles of the Dutch civil code of persons,

In my letter to Mr. Sugden, I concur with him in regretting, that an American correspondent of his had shown a disposition to adopt our artificial doctrine of uses. Some of their states, however, I observe, for instance New York and Louisiana, seem recently disposed to take more original views of legislation. This slender basis, this brief allusion, pursuing a train of thought which originated with Mr. Sugden himself, Mr. Reddie, whose eloquence usually bears an inverse proportion to his matter, inflates into a formal recommendation on my part of the code of Louisiana for adoption in Great Britain. “What, is it gravely “ maintained that, because a province of half civilized inhabitants “ just emancipated, without public establishments or commerce“ without” (and here almost every imaginable want, both political and civil is enumerated); “ have subjected themselves to the “ guidance of a well-meaning individual, is it incumbent upon this “ country to do so likewise, and to adopt a code? Such arguments " and conclusions are unworthy of a serious refutation." (l) Not the slightest, the most remote allusion can be made to any possible subject, but it is instantly forced by our rhetorician, a propos de bottes, into an occasion to declaim against the horrors of codifying

Had Mr. Reddie's reading in English classics been as extensive as his acquaintance with the names of foreign jurists, it would have protected him from the observation, that the expression “ the entire nuisance must be abated” is from my own technical phraseology. It is not mine but Mr. Burke's.

Mr. Reddie would “ willingly pass over the mistaken idea of the Theodosian code.” But I will not. This mistake was not mine but Mr. Sugden's, who assumed that it contained a methodical collection and digest of the laws.

This I pointed out in my reply to his letter. (m) I can only account for Mr. Reddie's mistake by supposing that, in his eagerness to expose error, and having both the letters before him, he quoted from my letter instead of Mr. Sugden's.

We learn from Dr. Johnson, that Pope, in the first edition of his Essay on Man, described the human mind as

"A mighty maze of walks without a plan!' But this, in his second edition, he altered to

"A mighty maze, but not without a plan.'

(1) p. 43.

(m) Letter p:o.

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