the law, and not to ploughing up and grating it again, for such a remove I should hold, indeed, for a perilous innovation."1 We should add, however, that Mr. Butler fully appreciated the abilities of Mr. Humphrey's work, and thought it so important that he called public attention to it by a highly favourable notice in the Quarterly Review.2 To the titles of a great lawyer and an enlightened law reformer, Mr. Butler could add that of a successful legal preceptor, as the long list of his distinguished pupils shows. In it will be found the names of Preston, Humphreys, Duval, Brodie, Walters, Shepherd, and Measure, in the particular branch of the law to which Mr. Butler devoted himself, and to which several of those we have named applied themselves, by his advice. The names of Denman and Rolfe, two of the greatest ornaments of our Bench, will likewise be found in it, and those of many other distinguished living and departed lawyers might be added. We have now performed our task, feebly, but we trust faithfully, and it only remains for us to say one word in parting. We are not conscious that we have anywhere departed from the strict line of justice and impartiality, and every word we have written has been submitted to learned and upright men, who have not disapproved of our efforts; and yet we feel that it is proper, upon the present occasion, to withdraw, at least in part, the editorial veil, and to acknowledge that the hand which has written these pages would naturally incline to praise. "Non de domino sed de parente loquimur."3 Supported, however, by the judgment of those to whom we have already alluded, we fear no unfavourable result from the caution, on the part of our readers, which we think it our duty to invite. On the contrary, our firm belief is, that the most minute review of Mr. Butler's life, the most attentive consideration of his writings, and the most diligent inquiry amongst his contemporaries who yet survive, would only prove more clearly the accuracy and justness of all that we have advanced in the foregoing pages. 1 Proposal for Amending the Law of England. 2 Vol. xxxiv. p. 540. 3 Plinii Trajano Paneg. MR. BUTLER'S SUGGESTIONS FOR SIMPLIFYING THE The following points seem to call for attention: Can the deeds for settling and disposing of property be materially abridged? Here the material points for inquiry are 1st. Whether the present forms of conveyance and settlement should be altogether abrogated, and new forms substituted in their stead? It seems very questionable whether any professional gentlemen of experience and authority would recommend so violent an operation. 2dly. Whether the present forms can be materially abbreviated? There is no doubt that such an abbreviation might be made by the general agreement of the profession to adopt such abbreviated forms; but whether such a general agreement could be obtained, must be considered questionable? The next consideration is, whether it can be done by Act of Parliament? Now an act of Parliament may direct that every tenant for life under a settlement, or will, and his trustees, shall have such powers of leasing, enfranchising copyholds, partitioning, sale, exchange, and appointing new trustees, as are usually inserted in wills and settlements, specifying them at length, and directing them to be considered as inserted in every settlement. The act might also provide that every person conveying or settling an estate should be considered as covenanting for the title absolutely, where he himself has no covenants for the title; and partially, where he has such covenants. But it should be left to the discretion of the parties interested either to disclaim altogether, or to be entitled in a certain extent only to the benefit of such parliamentary pro visions. Similar enactments might be made in respect to all the other usual forms of conveyance. There is no doubt that such a parliamentary provision would materially shorten the present length of deeds. See antè, p. 131. II. It has been suggested that recitals might be dispensed with altogether, or materially abbreviated. The suppression of recitals altogether appears to me impracticable. It is essentially due to every trustee who conveys an estate, and to every person who advances money on the security of an estate, or for the purchase of it, that it should appear, on the face of the deed, that he conveys the estate or pays the money to proper persons. This can only be done by recitals. That recitals may be abbreviated is generally true; but professional gentlemen might be mentioned, whose recitals admit of very little abbreviation. III. It is then to be considered, what can be done with outstanding legal estates, to render conveyances or assignments of them unnecessary. This is a most important consideration. By the civil law, and the law of almost every country except England, when an estate is created for securing a sum of money, or for effecting any other purpose, the money intended to be secured, or the purpose intended to be effected, is considered to be the primary object, and the estate to be an incident to it; and therefore, when the money is paid, or the purpose effected, the conveyance or assignment of the estate ceases; or, as it is expressed by civilians, is extinguished. It is so by the English law in respect to bonds on the payment of the money secured by it, the bond becomes a nullity. But, with respect to estates, it is different in England. There, the estate is principally and in some manner solely considered in courts of law; so that, where there is not an express provision for effecting this extinguishment, the estate remains in the party after the object for which it was vested in him has ceased; and courts of equity consider his legal title to the land of so much importance, as to allow him to protect himself by the acquisition of it against all intermediate estates, interests, or charges. This protection is so much engrafted into our law, that it cannot now be safely tampered with. This circumstance makes the great difficulty of the case; it would be easy to form an act that would transfer the legal estate to the person entitled to the beneficial interest of it. Little more would be necessary than to copy the statute for transferring uses into possession, passed in the reign of Henry the Eighth, adopting the provisions of it to trusts in their present state. But 'care should be taken to do it in such a manner as not to prejudice the rights of intermediate parties, where there are such rights; or to affect the protection which it affords to the owner of the land. This would require great attention, but it does not appear to the present writer to be absolutely impracticable. At all events, a provision might be made that, in future, every estate or interest created for securing money, or for any other purpose, should cease, ipso facto, when the money is paid, or the purpose effectuated. IV. The remaining question is, whether titles, as they now stand, can be much simplified? The last suggestion will tend greatly to this effect. Some parliamentary provisions might also be made, which would greatly facilitate personal representation. Some officer of the court of equity might be appointed to convey or assign estates or interests, when the person in whom they are vested cannot be discovered, or is under disabilities, or resides in foreign parts. V. It may be added, that parliamentary provisions might be made for settling disputed points respecting execution of powers, parol agreements, the alienation of the property of married women, and other disputed questions of law or equity, by which the transfer of property is at this time miserably embarrassed.1 These suggestions are of great importance, and will be read with much interest. The opinion of Mr. Butler, that the present forms of conveyances and settlement cannot be successfully abbreviated without legislative assistance, is in accordance with that which we have already expressed. We feel it again our duty to discountenance any individual attempt materially to abbreviate or alter the well-known common forms: some legislative sanction is necessary for this. One or two publications having this object have reached us since our last number, which we may hereafter notice more at length. We must also repeat, that so far as we can learn, no alteration has been made in the practice of conveyancing by reason of the statute 7 & 8 Vic. c. 76., and we have reason to believe that this Act will not only be repealed, but will in its most important provisions be fairly blotted out from the Statute Book. ED. 136 ART. VIII. - MARRIAGE DE JURE AND DE FACTO. 1. Dalrymple v. DALRYMPLE, 2 Hag. C. R. 54. THE three cases, which we have placed at the head of the present article, exhibit as singular an instance of fluctuation in legal opinions, as our juridical history has ever witnessed. In the first, we see a doctrine asserted by a Judge, whom the Lord Chancellor has proclaimed "the most learned ecclesiastical lawyer of his age." The doctrine is accepted, and maintained, for thirty years, by a succession of the brightest ornaments of the Bench and Bar, temporal as well as spiritual; when, lo! in the second case, we find it dividing the legal oracles of the House of Lords: and in the third the Court of Exchequer feels bound to repudiate it altogether! The point, on which these very eminent and learned persons have differed, is whether or not, by the Common Law of England, the presence of an episcopally ordained minister be essential to the validity of a marriage. It is not now essential in England by statute; but the statutes of this class (with some special exceptions) do not extend to marriages contracted on or beyond the seas. Such marriages, it has been held, if valid by the law of the place of contract, are valid by the law of England. But there are thousands of her Majesty's subjects, of all ranks and degrees, now living, whose marriages, or those of their parents, were contracted where there was either no ascertainable law in force, or none but the Common Law of England, and where the ministration of an episcopally ordained minister could not be had, or if attainable would have been refused by the parties being members of the Church of Scotland, or other Protestant Dissenters. Weighty, indeed, must be the judgments, which would brand as concubines the pure-minded women, |