The Press. — London, England, 1858-10-16 00:00:00

ipi rt , zbt No. 283.—V0L. VI. ivTit Vrtss. LONDON, SATURDAY, OCTOBER 10, 1858. LORD JOHN RUSSELL'S HANDY BOOK" OF PROPERTY LAW. THE fashion, which has grown up among our statesmen of late years, of turning peripatetic philosophers during the recess, is not without its advantages. The change from the keenness of Parliamentary debate to the calmness of scientific, or quasi-scientific disquisition, seems to afford to the minds of our politicians much the same kind of relief as the rotation of crops does to the land, facilitating continued effort without ex haustion. The public, too, are gainers by this variation of employment on the part of the guiding minds of the age. In the presence of a practised debater on the Opposition side of the House—who watches every argument with a pre determination to pick a hole in it, if possible—it is no easy matter for the most comprehensive of thinkers, and the ablest of orators, to lay out a question in all its length and breadth, and to give to every point connected with it a fair as well as full consideration ; nor can the speaker be expected to make a clean breast of all he thinks. But before an admiring audience, ga thered in holiday attire, with no one to contra dict him, and a strong predisposition on the part of his hearers to feel gratified, the most diffident must find his courage rising within him, and the most wary can hardly fail to be betrayed into an unusual frankness of thought and utterance. For this reason—although we confess we do not share the extravagant expectations enter tained in some quarters as to the benefits to be reaped by the community from " Physical," " Social," or other ambulatory " Science Asso ciations"—we notice with real pleasure such epanchements as the inaugural address delivered by Lord JOHN RUSSELL at the Liverpool gather ing of the " National Association for the Promo tion of Social Science." From the part assigned to the Noble Lord in the proceedings of the Association his remarks were necessarily some what discursive, embracing in their scope a tolerably wide range of topics. No less than five subjects, each of them in itself a mine of thought, were down in his programme,—"jurisprudence and amendment of the law," " education," "punishment and reformation," "public health," and, last not least, " social economy," whatever that may mean. Of these his Lordship selected the first and third, in connection with each other, for more prominent notice. The great question of the codification of the law afforded him the opportunity of paying a well-merited tribute to the administrative ability of the great man who reduced the chaos of French law to the lucid flimplicity of the Code Napoleon. In his admira tion for that masterpiece of legislative skill the Noble Lord has, we fear, lost sight of two rather important facts, which render it inadmissible as a precedent for thi s coun t ry. Wh en N APOLEON ONAPARTE assembled all the great lawyers of France at a council of codification presided over by himself; a terrible revolution had swept away LONDON, SATURDAY, OCTOBER 16, 1858. the entire framework of society, and with it all the difficulties arising from the existence of tra ditional principles and prescriptive rights. His task was, therefore, comparatively easy, and he brought to its performance dictatorial powers, centering in his person and individual will, such as it rarely falls to the lot of the founder of a code of laws to wield. Neither of those advan tages to which the Code Napoleon is indebted for its singular simplicity are, we apprehend, coveted by the people of this country—not even by the most extreme section of Radical Reformers on whom Lord Joint It t - ssELL ever has leant, or endeavoured to lean, in the greatest extremity of political necessity. We are scarcely prepared to pull down the entire edifice of English Juris prudence, and to reduce its foundations to such a dead level as that 'on which the French Revolu tion enabled the military dictator of France to erect his legislative structure. Nor, if all the great lawyers of the British empire were embodied in a royal commission of codification, would it be easy to bring their collective wisdom into one focus by the overpowering will of a legislative dictator. Such a function could obviously not be devolved upon her Most Gracious Majesty ; nor could the Prince Consort supply her place, as his Royal I lighness did in presiding over the Commissioners of the Great Exhibition. The Commander-in-Chief would scarcely be thought the most proper functionary to superintend the remodelling of the " leges Anglia ; " nor do we know of any Premier or Lord President, in esse or in posse, that would venture to assume or accept such a position, unless, indeed, Lord H JON RUSSELL himself should volunteer for the task with the proverbial courage which, it is sup posed, would enable him to undertake the com mand of the Channel fleet at an hour's notice. While, on these grounds, it is pretty clear that, as regards the codification of British law, the mode in which the Code Napoleon was prepared is nihil ad rein, still less weight can attach to the other precedent relied on by Lord JOHN RUSSELL in his remarks on that subject. When, in 1827, Messrs. Joini Danz, BENJAMIN F. BULLER, and Joini C. SPENCER took in hand the revi sion of the laws of the State of New York, they had to deal with a young and small community, whose population was below that congregated at this time in and about London, and whose legis lative powers were, from the first commencements of provincial self-government, not quite a century and a half, and, from the declaration of indepen dence, not more than half a century old. What analogy the Noble Lord can see between the process of preparing a digest of the laws of such a community and the codification of the entire body of British jurisprudence—a jurisprudence applicable to three distinct though united king doms, and, in part at least, to colonies and depen dencies scattered all over the globe—a jurispru dence many of whose principles and customs run up to the remotest ages of unwritten tradition, or to periods of our history which have passed into the domain of antiquarian research, while its lex scripta is the cumulative work of upwards of six centuries—we are at a loss to understand. But if Lord Joirsi RUSSELL is somewhat un lucky in the choice of his illustrations as to the process of codification, he is still more infelicitous as to the objects to be aimed at in such an under taking. There are two which he particularly refers to as " examples of what he would wish to " see " ; and the first of these is "an amendment "of the law of real property." That the tech nicalities incident, in the present state of the law, STAMPED ....SIXPENCE. UNSTAMPED-FIVEPENCE. to the proving of titles, to the transmission of this kind of property from hand to hand, and to every kind of dealing in regard to it, might be greatly simplified, giving at once greater security and effecting a considerable saving of expense— that, too, facilities which do not now exist might be created for improving such property and turn ing it to better account—are points on which there is a pretty general agreement, and a good deal has, if we mistake not, been done of late, and is still in contemplation, by way of amending, in this sense, the law of real property. But this seems scarcely to come up to Lord JOHN Rcs- SELL'S ideal of the law of real property, as he " would wish to see " it. Ile quotes with evident satisfaction the statement of an American jurist, who observes that the regulations of the Code Napolgon concerning the enjoyment, alienation, and transmission of real estate form " a very " small and perfectly intelligible portion "of that immortal work," and " may be " sufficiently understood by a few days of " diligent study." What sort of simplicity it is which the Noble Lord admires, may be gathered from the commendation which he bestows on the revisors of the law of the State of New York, for having suggested a provision, adopted by the New York Legislature, that "no disposition of " real property should extend beyond the lives of " two persons living at the time of the creation " of the estate, who should live to attain their " majority." The Noble Lord does not, indeed, say, point-blank, that this provision should be adopted in this country. It has occurred to him, it seems, that "in some instances" it might " harshly," and that—sagacious discovery !—in others it might " sweep too widely." Still, his evident meaning is that the " consolidation " of the law of real property should involve consider able " amendment " in this direction. Adverting to the dictum of Lord ST. LmoNalto's, that " a young society should not be entangled in the " complications of our law of real property," Lord JoHN significantly asks, "If so, why should " an old society not be freed from them ?" If this question has any meaning—and we will not pay Lord JOHN RUSSELL the discourtesy of supposing that he had none in asking it—it is this, that whatever may be the ramifications of our law of real property as it stands at present, through every part of our social and political con stitution, whatever the bearings which it has upon the various relations of public and private life, are regarded by him in the light of cumbersome complications, to be got rid of to a great extent in the proposed codification—that while it may be necessary to act with some degree of caution and tenderness for fear of "acting too harshly" or " sweeping too widely," still it is desirable to begin, as far as possible, de novo, so as to deliver our social system from the drawback of being old, and giving it all the advantages of " a young society." It is not often that so revolutionary a sentiment has escaped from the lips of a man aspiring to direct the Imperial interests of the British Crown and nation. little inkling which Lord us of what he has in his specious name of codification, doubt as to the facility with w a work may be accomplished. we confess, in his proposed missioners of competent - " in a few years to present " plete code, worthy of the " and improving our laws, " adopted in an enlightened &bon. Considering the JOHN has thus given mind's eye under. tile — ion, we entertaioeigina4 th which he ifiitdas. • hed. We hiseve red " four oir-t TN' Lt to Parham= • •!*•"„ • he country, 9: 'a , '". 11144 s, on prince tti • n ,•• ked age,. 1111 " .4