on trade, it must be so in a more especial manner at a period like the present. A revolution has lately taken place both in the maxims and practice of commerce. True principles have gained ground, and a better policy is both understood and acted upon; a spirit of free, unfettered enterprise has gone abroad, and speculations are embarked in of a magnitude unknown to former times. The legislature also has recently interfered by many important enactments in the regulation of mercantile dealings, and the disposition of the property of defaulters,—and, lastly, the code of international law has in these days been settled on a solid basis by a judge, whose enlightened decisions are recognized as authority by all the civilized nations of the world. Under these circumstances, we may perhaps be pardoned for hoping that the subject proposed will be found neither unimportant nor uninteresting.

ON CONVEYANCING.

No. I.-Critical Remarks on some popular Writers. GREAT complaints have frequently been made of the repulsive aspect of our system of real property. Its general excellence, and substantial adaptation to the exigencies, and even capricious wishes of a commercial and wealthy people, are acknowledged by all who are capable of appreciating it; but its greatest admirer will also readily admit, that its stupendous bulk and bewildering complexities are well calculated to frighten away the student, or (if he must go forward) to disgust him with his profession.

Either of these consequences is, of course, to be lamented, and with the view of obviating them, elementary essays have, within a comparatively recent period, appeared on this branch of law, in great abundance. Their effect has been extremely salutary; and perhaps we may say, that if the law of real property is more regular in its form, and systematic in its doetrines than any other department of English jurisprudence, its superiority is chiefly ascribable to the meritorious efforts of those who, with the advantage of habitual acquaintance with this subject, have employed themselves in developing

its principles, and arranging its scattered topics. We shall, in the following paper, which we intend to be the commencement of a series, take a brief and rapid survey of the principal writers on the law of real property who have appeared within the last fifty years, and who are commonly taken as clues to its dark and thorny labyrinths.

Mr. Fearne, who must be placed at the head of this valuable class, symmetrized the rude and complex mass of learning on contingent and executory interests, a treatise which is interesting, not merely to the practitioner, but to the theorist, as an intellectual exercise. 1

Mr. Sugden has with great ability thrown together the doctrines of the courts relative to the law of powers, and of vendors and purchasers; and if he falls far below his extraordinary predecessor in logical acumen and talent for classification, he has certainly excelled him in soundness of legal judgment and in accuracy of detail. In this respect, indeed, he cannot be praised too much. You may generally depend on the author's industry of research and fidelity of citation. He explores the fountain head of his subject; and in these laborious and useful scrutinies he has in many instances succeeded in verifying original reports. At the same time he has, we think, his faults. He appears to be not unfrequently lost in detail; and to suspend his judgment, and even waive the exercise of his reason, on the topic before him, at the appearance of contradictory authorities, which a clear perception of the principle would have enabled him to dispose of satisfactorily.

Mr. Preston, has long been treading the same path; and perhaps to the practising lawyer his numerous publications have proved as useful in some points, as those we have alluded to. They generally evince a profound and very familiar acquaintance with the law of real property in all its branches; and as a series of isolated propositions, deduced, and for the most part with skill and accuracy, from unquestioned authorities, they form a valuable repertorium; but here our praise must stop. There is not one of them which does not show an incapacity for lucid arrangement, and betray a quaint and singular style in which the sense feebly glimmers through a cloud of words;

1 Of Mr. Fearne's merits we have spoken more at length, in our biographical sketch of him, page 115.

We shall give a curious specimen of Mr. Preston's early style. "In this

we are bored with truisms in the midst of dissertations on the highest branches of the system; and, what is worse, fatigued, aud indeed disgusted, with eternal repetitions. In his latter works, he has been less remarkable for his first fault; but he has made up for its absence by trebling the two last. His Essay on Abstracts, which is now in three volumes, might (we venture to affirm) be contained in one of the same size; with a little compression of the diction, and an omission of repetitions. We are almost inclined to think that the same remarks might be applied to the Treatise on Conveyancing; a work, in some particulars, deserving great commendation. The third volume, which is confined to the law of merger, though by no means free from the author's characteristic defects, has much fewer of them and is by far his most able and original production. The last edition of the Treatise on Estates, which is still in progress, demands the student's attention when he is pretty well advanced in his professional pursuits. But we cannot recommend this gentleman's editions of some standard works. Instead of increasing, he has absolutely destroyed their peculiar utility. There is scarcely a proposition in the Touchstone, which is not crippled, entangled, or obscured; the original text is broken up into unintelligible bits, that the Editor may new-lay and commix it with his own additions. It would not be enough to say that the sense of the author is turned out of its simple course, into a winding channel. The stream is perfectly dammed up. Or rather like some well-known rivers it suddenly sinks and disappears, and we see it not again till we have crossed the sterile tracts which cover it.

Mr. Preston's corrections of the text do not stop with improving its legal accuracy. Does his author purposely omit a kingdom it is not allowed to any man to have two wives; or to any woman to have two husbands; therefore when a man is a husband to a woman, or a woman is a wife to a man, neither the relation or the rights of a husband shall, in the one case, be annexed to the person of the man, as to any other woman than his wife; nor, in the other case, shall the relation or the rights of a wife be annexed to the person of the woman, as to any other man than her husband: of consequence the man shall not intitle himself to be tenant by the courtesy of the lands and tenements of any other woman than his wife; for as he can be a husband to one woman only, he shall not intitle himself, with respect to any other woman than his wife, to those privileges and benefits which are proper only to the husband of the individual woman concerning whose property the question arises."-Essay on Estates, p. 473, 1st Edit. This is but a small portion of this truly original dissertation.

word which is necessarily understood, and would in the same place, and for the same reason, have been omitted by any body else? It is carefully inclosed in a bracket, and you are expressly told to read it. Even his author's grammar falls within the scope of his emendations. Does he meet the expression a use?' He troubles himself to alter the indefinite article a' into an,' with (to shew that this grammatical accuracy is all his own) the n' in brackets, thus a[n].1

6

He has treated in the same way Mr. Watkins's Principles of Conveyancing, but as we think lightly of that performance, we were far less indignant at the editor's equally presumptuous and absurd plan of ramming (we must call it so) his own ideas into those of his author. We regret that candour compels us to so severe a censure; we estimate Mr. Preston's abilities, as a conveyancer, as highly as any one; and we trust that if he favours the profession again, as we understand he means to do, with other treatises, he will endeavour, more than in his previous writings, to raise his character as an author nearer to a level with his deservedly high reputation as a practical lawyer.

2

After the writers we have mentioned, we would class Mr. Butler; and if the quantity and character of his legal productions were proportionate to their usefulness, we should place him above the others. There are few to whom we are more indebted. He is the first who blended practical with theoretical knowledge, and nothing can be happier than his clear and simple manner of explaining an abstruse doctrine. Hence, though his notes to the First Institute have rarely more connection with the text they are appended to, than with any other on the same subject, yet some of them, as insulated essays, are extremely valuable. Those on uses and trusts were, at the time they appeared, the best exposition of those doctrines; and there are several minor ones, all excellent in their way. Still there is nothing in these annotations from

1 With all deference to Mr. Preston's philological knowledge, we beg to say, that here he and not his author has erred. The 'u' is long in 'use', and though the his wanting, the word is aspirated. This is one of the instances in which orthography and orthoepy happily coincide.

2 We have seen many of this gentleman's opinions, which (we speak it as a remarkable fact) have been extremely perspicuous and precise.

which a remarkable acquaintance with his subject, or a talent for combination and arrangement, or a power of pursuing principles into their remote and hidden consequences, can be inferred; and therefore neither as a writer, nor a lawyer, do they warrant us in giving Mr. Butler the highest rank. And his efforts to illustrate the First Institute appear to more peculiar disadvantage from their neighbourhood to those of his singular predecessor, who, as a lawyer, far surpassed all his contemporaries in depth of research and variety of acquirement, and who grappled always ably, and often successfully, with all the difficulties which distressed the text. 1

The law of uses and trusts has been simplified and elucidated by Mr. Sanders; and considering how largely that doctrine enters into the whole system of real property, we evidently ascribe a great achievement to that gentleman, when we say that he was the first who wrote an able treatise on the subject. His work has been considerably improved in its successive editions, and is distinguished by a tolerably clear arrangement, a neat and perspicuous style, and in general by compression. He appears to us, however, to have great faults, which are scarcely balanced by the merits we have allowed him. His work is, in many parts of it, any thing but elementary. He constantly advances positions which he never thinks of supporting by any reason, or of referring to any principle; an elliptical and oracular form, which is tolerable only in writers of profound knowledge and vast powers of reasoning, who have duly weighed the inference, and carefully inspected the intermediate ideas which link it with the premises. We fear that with the majority (and among them we must place Mr. Sanders), the only pledge they can give us of having maturely reflected on their propositions, is a display of the grounds of them; we may then know what is drawn from principle, what is fixed only on authority; we may then ascertain to what point of a scale, which may be graduated from enactments and adjudications, through all the varied shades of probable deduction, down to hypothesis itself, his positions are referrible. It would not be difficult to substantiate our charge of frequent

1 Of Mr. Butler's edition of Fearne, we have spoken in our biographical sketch of that gentleman.