vortex of contention; that, issuing from the severest trial to which a nation could be put, we have not only preserved our wonted energy, and good faith and wisdom, but that the struggle has added new matter to our moral resources; and that, while we pay the debt of suffering which human creatures owe, our debt of gratitude is still more vast and sacred, when we reflect, that now, more perhaps than ever, our country is the first among nations. How long it may remain so, is in the hands of inscrutable Providence; but the day on which it ceases to guide the public opinion of Europe, will be a day of bitterness for the whole human species, and most of all for the nations which most desire our ruin. Happy, if we ourselves never shrink from the high post of duty which this preeminence imposes upon us, or permit the sordid calculations of Despots to prevail over the generous maxims of British Liberty!

ART. XI. 1. A Series of Letters to a Man of Property, on the Sale, Purchase, Lease, Settlement, and Devise of Estates. By EDWARD BURTENSHAW SUGDEN, Esq. of Lincoln's-Inn, Barrister-at-law. Second Edition. London, 1809.

2. Papers relative to Codification. THAM. London, 1817.

WH

Published by JEREMY BEN

HEN the public mind is occupied by questions of great political importance, and whilst the discussions relating to the criminal laws, and the education of the poor, are yet unsettled, it is perhaps not politic to introduce a question respecting the enactment of new laws; and one, at the same time, which is so entirely stripped of all moral and political interest, that it is not probable the discussion of it will call forth supporters such as Sir Samuel Romilly, Mr Brougham, or Sir James Macintosh.

There exists indeed, we are well aware, an universal disin→ clination to the discussion of any subject purely legal; and whilst, on the one hand, all are willing to inquire and decide whether forgery shall or shall not be punished with death, few will attend to the merits of a question on a general registry of title-deeds, or on the alteration in the modes of transferring property and yet, there is scarcely any person who has not experienced, in his own case, or in that of some of his connexions, considerable inconvenience from the present state of the law on these subjects. In fact, the uncertainty, the intricacy, and the variety of technical expressions, the formalities to be

pursued, and the long chain of evidence to be procured, render the disposal of real property a matter of so much difficulty, that many are deterred from bringing it to market.

We conceive that we have only to state a few plain facts, in order to convince our readers that much may be done towards simplifying this part of the law; and that the necessary alterations may be made with safety.

We are aware that, on a subject like the present, it is not possible to create much general interest, until the importance of what we have to offer is felt; yet whilst we are robbed of the assistance to be derived from the interest of the subject, we have no moral scale of punishment to discuss; nor is there any nccessity for disputing on nice points of spiritual dynamics, or mental pathology. All are alike interested in reducing the laws of property to a fixed standard; this is their proposed and admitted aim; and the only question is, how to attain it by the shortest road. In what we have to offer, we pledge ourselves to be intelligible to all who are willing to bestow common attention to the subject.

Independently of all particular objections, in this country there are several classes generally opposed to all alterations in laws, whether relative to the liberty of the subject, or merely to the regulation of property. They are influenced by different, and often opposite causes; some by political feelings, others by prejudices of education, and attachment to what they have been accustomed to see; and others again by a conviction, the result of reflection, that all changes in a system so complicated as that of the English Laws, are more likely to be productive of evil than good.

According to the opinion of some, the human mind is now acting under peculiar and powerful impulses; and men are supposed to be guilty of straining every nerve for the improvement of their condition, and that in a degree of which no former age can furnish an example; and this impulse, they think, requires a powerful check. We, however, conceive it to be one of the most cheering views that can be taken of the present state of society; and, instead of reviling mankind for their impetuosity, we cannot but rejoice at the energy put forth, so long indeed as the symptoms do not exceed all moderation.

It is also objected, that the public mind is now acquiring a confidence in its own judgment, and losing the deference formerly paid to custom and authority. This we admit; nor would we wish it otherwise. The experience of past ages shows, that the community have not reaped much benefit from reposing unlimited confidence in their rulers; nor have these rulers, in all

cases, shown themselves very honest depositaries of rights and liberties surrendered into their hands, and often permitted to remain there with a forbearance and meekness which we presume will not again exist.

The spirit of universal inquisition, it is said, is abroad; and is represented, by those who dread its effects the most, as one of the striking characteristics of the present day. We are at least glad to find, that those who long endeavoured to suppress this spirit altogether, are now content with attempts to reduce it within what they term reasonable limits.

Although the simplifying of laws is one of the many ways by which the happiness of mankind may be promoted, and one the least likely to clash with personal interests, yet we despair of gaining over many of our opponents of the above classes. We are prepared to hear our suggestions, however cautious, represented as the results of a wild and distempered imagination, as attempts to subvert the present order of things, and as parts of a general system which is to introduce anarchy and confusion into the country.

With respect to the prejudice unconnected with party spirit, which arises from a persuasion of the general inexpediency of alteration, we shall frequently find it mixed up with vanity or

self interest.

It is well observed by the late Mr Playfair, that, even in matters purely intellectual, the prejudices and the selfishness, or the vanity of those who pursue them, not unfrequently combine to resist improvements, and often engage no inconsiderable degree of talent in drawing back, instead of pushing 6 forward, the machine of science. The introduction of methods entirely new, must often change the relative place of the men engaged in scientific pursuits; and must oblige many, after descending from the stations they formerly occupied, to take a lower rank in the scale of intellectual advancement. The enmity of such men, if they be not animated by a spirit of real candour, and the love of truth, is likely to be directed against methods by which their vanity is mortified, and their importance lessened.'* So numerous, indeed, and so power

In corroboration of this observation of Mr Playfair, we add an extract from Sir James Mackintosh's eloquent and learned Discourse on the Study of the Law of Nature and Nations. Those who early attain eminence, repose in their first creed. They neglect the progress of the human mind subsequent to its adoption; and when it has burst forth, they regard it as a transient madness, worthy only of pity or derision. They mistake it for the mountain

1

ful are the causes which serve to give a bias to the judgments of men, that we often see wise and good men on the wrong, as well as on the right side of questions of the first importance to society.

In tracing the progress of jurisprudence in different countries, it will be found, that, in particular, lawyers are those who bestow the most blind and partial reverence on their municipal institutions. Even Cicero was infected with this feeling. Speaking of the Twelve Tables, he says, They inculcate the soundest principles of government and morals; and I am not 'afraid to affirm, that the brief composition of the Decemvirs surpasses in general value the libraries of Grecian philosophy.' To guard against the objections of considerate but unprejudiced persons, we would here observe, that there are two methods of altering laws; one by removal of the subsisting law, and substituting a new and independent enactment in its place; the other, by a modification of the old law, or engrafting some regulation or provision upon it. The general objections to alterations of laws, so far as they are sound or important, we apprehend will be found to apply to alterations of the first class; and it will be seen, that the alterations we are about to propose fall altogether under the second. And we have found it necessary to point out this distinction, in consequence of what has occurred to us in considering the plans of others.

In proposing any mode of change in so complicated a system as that of the present laws of property, we should, of course, have hesitated to bring forward our own views, until we had attentively considered the means proposed by others for obtaining the same end. Mr Bentham, whose indefatigable labours, for nearly fifty years, have been directed to the study of the science of legislation, in the year 1811 addressed a letter to Mr Maddison, containing an offer to the United States, to frame ' a complete body of statute laws;' or, as he terms it, a Pan'nomion.'

We have already expressed ourselves fully on the merits and the defects of Mr Bentham's performance, (vol. xxvii. 217.) Our observations, however, as far as they relate to the benefits to be derived from his suggestions, must be considered as mainly relating to the reformation of the Criminal code; which,

torrent, that will pass away with the storm which gave it birth. 'They know not that it is the stream of human opinion, in omne volubilis ævum, which the accession of every day will swell, and which ' is destined to sweep into the same oblivion the resistance of learned sophistry, and of powerful oppression. ' N

VOL. XXXV. No. 69.

from its nature and its requisites, is far more susceptible of new modelling than the numerous and various laws constituting a Civil code. It may be considered as one of the most important works Mr Bentham has published; because he himself announces it as furnishing the practical result of the studies which have so long occupied his mind. The plan suggested is of a Code, the imperative or regulative matter of which is to be accompanied by reasons, in the shape of a perpetual commentary: so as no point will be settled, but that the considerations, by which the provision made in relation to it was determined, wilt

be to be found.

With respect to the form, Mr Bentham conceives, by one word, Cognoscibility, every sort of excellence which, under this head, can be given to a body of laws, will be found expressible;' which he interprets to mean, that it should be present to the mind of him, on whose part, to the effect indicated, action or forbearance is, on each occasion, called for." The whole is to be divided into a General Code, and a System of Particular Codes -the General Code to comprize all matters of which it concerns persons in general to be apprized ;-each Particular Code is to contain such matters only, with which some one class or denomination of persons have concern. In each code, as well particular as general, an ulterior distinction, noted and acted upon, is the distinction between matter of constant concernment, and matter of occasional concernment. Another division is made between Main-text and Expository mat

ter.

The Expository matter is to consist of explanations given of the 'occasion of this or that particular word in the Main-text. And the same explanation is to serve for the same word, whenever it occurs in the Pannomion; care having been taken to apply the explanation to every such passage, to the end that it may be found conformable 'to the sense intended in each such passage to be conveyed. '—' From beginning to end, one object is kept in view and aimed at, that the whole field of legislation being surveyed-surveyed and travelled through over and over again in all directions-no case that can present itself shall find itself unnoticed or unprovided for. Of this ob'ject, the complete attainment may, perhaps, be too much for human weakness: but by every approach made towards it, the science is advanced; and, in all shapes, the security of the people against 'suffering-sudden and unlooked for suffering-- is increased."

But we now come to what relates to our immediate purpose. All formularies of deeds and agreements, says Mr Bentham, should be written on a particular paper, to be called promulgation paper, provided with a margin of letter-press, in and by which, in the instance of each such species of instrument, in