person who shall succeed to his property after the determination of a life or lives in being. This proposal deserves careful attention, and seems to offer some alleviation of the economic evils resulting from entails. There is another method by which some of these evils may be remedied. Powers of sale are frequently omitted from settlements, and in their absence it is necessary to resort to the Court of Chancery for the purpose of selling any part of the property. There appear to me to be two important defects in the present mode of selling through the instrumentality of the Court of Chancery. The procedure is too costly to be available for properties of small value, and the powers of the court are unnecessarily restricted, by the clause requiring consents to be given by various persons. As to the first, a simpler mode might be devised, and the local courts might be empowered to act in small cases. As to the second, the court should have full power to sanction a sale, even in the absence of consents, on being satisfied of the bona fides and advantage of the transaction. It is most undesirable that any property whatever should be placed extra commercium.

It may surprise some persons to hear that there is one point in which the English law of real property is actually more adapted to the usages and wants of the age than the law of personal property. It is in relation to the property of married women. No mode could be discovered of barring the wife's reversionary interest in personal property; such such an interest, therefore, remained incapable of sale or transfer until the passing of Mr. Malins's Act (20 & 21 Vict. c. 57). I cannot say whether the defects in this Act are original, or are owing to clauses introduced during its progress through Parliament; but there are very striking defects in it. Mainly, it does not apply to property comprised in deeds executed prior to the date of the Act. This is as though a remedial Act contained these words: "Provided always that no person shall derive advantage herefrom for the space of thirty years." This and other restrictions which hamper the utility of this Act should be swept away; and all property, real or personal, in possession or in reversion, of a married woman should be rendered capable of sale or transfer.

The next point which I shall mention is the existence of the anomalous tenures of copyhold, borough English, and gavelkind. Copyhold enfranchisement has been slowly progressing for a number of years; but the copyholder is exposed to some amount of trouble, and to some expense, before he can acquire a fee-simple. All this might be saved, and enfranchisement at once accomplished, by a few sections in an Act of Parliament. A simple enactment would convert all the land in England into fee-simple, without the trouble and expense of separate proceedings. The claims of the lord of the manor might be provided for according to a fixed scale, and commuted at once by force of the statute, into an annual rent-charge, or into a single sum of money. The other anomalous and exceptional tenures should also be abolished, and the tenure of land rendered uniform throughout the country.

Another improvement would be to shorten the periods fixed by the statutes of limitations. Those periods were fixed before railroads were constructed, or telegraphs invented; when intelligence travelled slowly, and newspapers were the luxuries of the few. The results of these wonderful aids to civilisation have been many. One result is that the events of life which affect the disposition and inheritance of property are far more rapidly communicated, and more widely published, than formerly. And it follows that the long periods allowed by law, during which adverse claims can be made, may be shortened without inconvenience. The direct advantages would be many. The elements of certainty and security would be more largely introduced into titles: and it would be unnecessary to make an investigation reaching back for sixty years on the occasion of a purchase of land.

The periods during which actions and suits can be brought might advantageously be shortened by one half, viz :—

(a) The extreme limit of forty years should be shortened to twenty years; or at the utmost an extreme limit of thirty years might be fixed. The Roman law allowed of no claim being put forward after the lapse of thirty years.

(b) The ordinary limit of twenty years for the recovery of land, legacies, and other charges on land, and for the redemption of mortgages, should be shortened to ten years.

(c) The limit of six years for the recovery of arrears of dower, rent, interest of money charged on land, and other demands should be shortened to three years. A creditor or landlord who allows an annual payment to be more than three years behindhand deserves to lose it. Much injury has been done by the accumulations of overdue interest to the injury of subsequent creditors.

The law of wills is the last branch of law on which I have remarks to offer. Though not strictly to be classed under real property laws, these enactments largely affect the disposition of land. The Wills Act of 1837, assimilated real and personal property so far as disposition by will is concerned. But it introduced refinements as to the exact method of signing and attesting wills which did not before exist, and which have been the source of much litigation and uncertainty.

No reliance can be placed on the memory of an ordinary witness as to the exact circumstances of a by-gone transaction in which he is not personally interested; and, therefore, there is always some danger of a question arising as to whether the attestation was strictly according to law. I propose without altering the terms of the Wills Act, to supplement it by a provision which will enable any will to be placed beyond reach of doubt or question. Any testator who wishes to have the fact of the due execution of his will guaranteed, should be permitted to sign in the presence of a registrar or district registrar of the Court of Probate, whose official seal annexed should be, for all purposes, evidence of the due execution of the instrument. This simple process would effectually exclude questions of the kind referred to. It would also tend to diminish the litigation arising out

of what is called "undue influence."* An act performed in the presence of a public officer would hardly be the result of threats or solicitations. No one would venture to deny, without ample reasons for the denial, that a will so executed is the voluntary act of the

testator.

Another relaxation of the stringent terms of the Wills Act is suggested by a case which lately came before the Dublin Court of Probate. A gentleman, of high position in the university, on his wedding-day, and immediately before the ceremony, executed a will which had a direct reference to the new relation he was about to enter into; and made a suitable disposition of his property. The court was compelled to reject the will, inasmuch as the marriage was under the Act tantamount to a revocation. As the law stands, any person dying after marriage, and before any opportunity has occurred for making a new will, must necessarily and inevitably die intestate. I propose that any will made immediately before, and in contemplation of, a marriage, should be unrevoked by that marriage.

The third and last point in which the law relating to wills seems to require amendment, is the position of children born after the execution of the will.† With regard to children born during the testator's lifetime, it may be said that if he intended to provide for them he should have done so by a codicil. But the principle to be applied to these cases is this-that in case of negligence or failure of intention, the law itself should do justice. The case is a far stronger one where the child is born after the testator's death. But as regards all children born after the making of a will, it seems reasonable that the law should regard the want of a testamentary provision for them as an omission or accident to be remedied by law; and that as to a fair share of the property an intestacy should be presumed in their favour.

This paper has already reached the limit which does not allow of extension; and the transfer of land, a subject of permanent importance, must be passed over without more than a brief notice. The difficulties of this question were practically solved by the experience of the Irish court, which was, after some years of experiment, placed on a permanent foundation in 1858. The Landed Estates court formed the subject of papers read before the meetings of this Association in 1861 and 1862, and may therefore, be supposed to call for no further remark. There is a strong feeling in Ireland that the titles granted by that court ought to be kept on record and not allowed to relapse into complication, in order that future transfers and other dealings may be effected without delay and unnecessary expense. A Bill to accomplish this object was introduced by the

* Mr. Mill's objection to voting papers, that they give facility to undue influence, and efficacy to the vultus instantis tyranni, may be cited as bearing on this point.

†The existing law as to the exclusion of after-born children is fully stated by Mr. Tudor in his notes, Leading Ca. Conveyancing, &c., pp. 704-712.

Attorney-General for Ireland very recently, but made no progress owing to the advanced state of the session. It will probably be reintroduced next session; and if it becomes law, there will be no ground for complaint that land cannot be bought and sold in Ireland with facility.

In England, the project for establishing a Landed Estates court, which fell to the ground with the change of government in 1859, has not been renewed. Since October 1862, an office for registering titles has been open in London, but the applications have not hitherto been numerous. There is reason to believe that when the public mind becomes more fully informed on this subject, the advantages of a registry of title will induce landowners to resort to the new office. In course of time the way may be opened for the establishment of a Landed Estates court, or tribunal, having special cognizance of, and ample control over, titles to land and dealings with land. The Bills framed by Sir Hugh Cairns, in 1859, were intended to establish for this country a system which has been amply tested elsewhere, one which would have put an end to most of the difficulties which beset the transfer of land.

The number of distinct subjects to be referred to render this paper necessarily very incomplete in its mention of each of them. All that could be attempted, was to glance very briefly at some of the defects in our system of real property law; to note some points in which it is opposed to the received maxims of sound economy, and to the present wants of society.

The suggestions which I have ventured to make, may appear to some minds inadequate. It might have been a bolder course to pronounce the foundation defective, and instead of seeking to repair the superstructure, to propose that the ground be cleared, and a new edifice erected. In France the feudal system with all its incidents and consequences perished at a blow; and thence a symmetrical code of laws.

I reply, that France paid a price which England is not willing to pay. We prefer a thousand inconveniences arising from laws and usages dating from the Middle Ages, to the horrors of a revolution. Our jurisprudence, like the venerable cathedral under the shadow of which this Association meets, was founded in a by-gone age, in a different state of society. But its antiquity, and its connection with history, strengthen its intrinsic claims upon our regard. It is better by judicious reparation to render the edifice weatherproof and serviceable, than to undertake the stupendous task of rebuilding. If the restoration be carefully and timely undertaken, the ancient structure may witness the growth, and conduce to the welfare, of many generations yet to come.

156

CRIMINAL PROCEDURE.

Whether any, and what, Ameliorations can be introduced into the Institution and Conduct of Criminal Prosecutions? By ROBERT STUART, Barrister-at-Law.

HE ancient forms of procedure, which still substantially prevail in

:

them, as component parts of a wise system of police, protective and detective, and of legal administration intended, and in many respects adapted, to the pure administration of justice. On a close examination this old system will be found to appeal, in many of its details, to the highest moral and social considerations, and to repose for the most part on the generally accepted principles of criminal jurispru dence but it is at the same time marked by a traditional deference to what we incur no odium now by regarding as prejudices, as well as by a recognition of sentimental ideas, which, to the minds of many, are of a very questionable nature; for instance, that it is the right of every Englishman, of his own authority, to put the criminal law in motion, a dogma which lies at the foundation of the existing system of prosecution, but the logical consequences of which do not appear to have been well considered, not to speak of its manifest impracticability to the poorer classes, among whom the greater and more numerous offences are committed. Then there is a strong feeling in favour of the unqualified publicity we practice in all our police investigations, although it can be easily shown that such unqualified publicity must be prejudicial to that which is the great object of criminal procedure, the fair and impartial trial of the accused. And other blots, if they may be so called, of a similar nature on our professional escutcheon might be pointed out.

It will have been observed from the question proposed for our consideration on the present occasion, that it is with the institution and conduct of criminal proceedings that we are to concern ourselves in other words, we are to consider, first, on whom, or on whose or on what responsibility, the duty of detecting crime, and prosecuting offenders, ought to devolve; secondly, the regulations that are proper for the apprehension and custody of the accused, with a view to trial; thirdly, the method and form of that trial and the verdict; fourthly, the means by which the punishment to be inflicted on conviction may be made certain and deterrent; and lastly, there is the subject of criminal appeal.

* For the Discussion see Summary of the Department.