СНАР. І. INTRODUCTION. actual business. And as theoretical knowledge needs to be confirmed by practice, an exclusive attention to practice, without regard to the study of the principles of law at the same time, is not less to be shunned. It is of great moment that legal study should commence when the mind is yet elastic, and unoccupied by those formalities which obstruct the admission, or usurp the place, of principles. The reproach of our profession is an alleged subjection to technicalities. If a rigid attention to legal forms necessarily involves this reproach, we must be content to bear it, for that observance is the safeguard of our client's rights. But it is quite possible to observe forms rigidly, and yet to have a clear understanding of principles. In portraying the character of Hannibal, Livy ascribes to him "ingenium ad res diversissimas parendum atque imperandum." He had genius to command, but he could also practise obedience as well as his own humblest follower. Let it be the young Conveyancer's object, not only to possess a thorough knowledge and ready command of the principles of his art, from their sources in antiquity to their latest modifications, but to observe its forms with a scrupulous obedience and the minutest exactness. Thus, technicality will be no reproach, for form will be only the expression of the principle; and, as the example will be guided by the rule, it will, in turn, illustrate the rule, and so principle and form will mutually enlighten and preserve each other. NATURE OF THE VEYANCING. What portion of the knowledge requisite to the conveyancer is to be taught in this place? This is not a chair of pure law. That is CHAIR OF CON- taught in the classes for Roman Law and Scotch Law; and the Society by which this chair is endowed has shown its sense of the necessity of these classes, by making attendance upon them a condition of admission to its ranks. The lessons there taught are undoubtedly the best foundation for the attainment of a thorough knowledge of Conveyancing. For the business of this chair is to impart a knowledge of that portion of the combined law and practice, by which instruments affecting property are regulated, and their form and effect determined. Although, therefore, we cannot here undertake or pretend to teach the abstract doctrines of law, it results from the nature of the subject, that we must examine every statute, every leading decision, and the dicta of the institutional writers, which prescribe, or in any way affect, the terms of legal instruments, or the consequences which result from their execution. But there is much in our system of deeds which does not receive its shape or its illustration from positive law. On the contrary, the styles of Conveyancing are in many and important particulars older than the statutes, and require a separate and independent study, without which neither the deeds themselves, nor the enactments which relate to them, can be understood. The styles of writs form not only a large source of illustration, but a fountain also of authority, in every system of laws. It СНАР. І. is an observation common to institutional writers both in England INTRODUCTION. and Scotland, that the forms of deeds lie at the foundation of the Common Law, and that, without a knowledge of these, the law cannot be completely understood. If we turn to our Land Rights, how much do they contain which cannot be comprehended until the light of bygone centuries shines upon it! In order to understand the conveyance of the nineteenth century, we must revert to the opinions and usages, the authorities and practice, which prevailed between the thirteenth and sixteenth. Nor has the necessity of this research been removed by recent statutes, which have much abbreviated our Land Rights, but have left them the same in effect, and still regulated by the ancient feudal principles. The "Act to Facilitate the Transference of Lands and other Heritages in Scotland" has shortened the conveyance only by transferring the full clauses to its own sections, and enacting that the same effect shall follow from the use of the brief form of words which it prescribes. The Act will in reality form, by implied reference, a part of every future conveyance; and the same study which was previously requisite to acquire an understanding of the clauses when they stood in the Disposition, is equally necessary, now that they have been transferred to the Statute. In writs relating to Moveable Rights, the meaning and effect of terms and phrases are equally involved in an obscurity which the doctrines and practice of a time long gone by can alone dispel. Take the simplest of them, the Personal Bond. Why do the obligants, in acknowledging receipt, renounce all exceptions to the contrary? Why do they renounce the benefits of Division and Discussion? and what do these terms import? These questions involve a reference to rules and maxims of the Roman Law, from which the doctrines referred to were directly borrowed. And if we advert to the effect of the Personal Bond, how is it that this deed, when it bears a clause of interest, is heritable in its nature, and moveable only for certain definite effects by the force of statute? That, again, is a question which can only be answered by a reference to feudal principles and practice. The same minute attention which is due to the history and effect of deeds and clauses, must be extended to the individual words which they contain. There is no habit more dangerous than that of gliding into a mere obsequious observance of styles, satisfied with a general perception of their scope, though the precise force of their terms, when analysed, may not be exactly apprehended. It is indispensable to the Conveyancer, that he obtain a clear and distinct knowledge of the precise import of every term used in the construction of deeds, for how can he be certain otherwise, that he is not defeating the object which it is his duty to secure? Reason makes this sufficiently obvious in a case where interests the most important depend upon the appropriate use of a clause, a phrase, a word, it may CHAP. I. 7 D. p. 425. INTRODUCTION. be a syllable. But experience is at hand here also with her examples to enforce attention and instruction, and we could not have a more striking instance of the necessity of a minute and perfect apprehension of the precise sense and effect of terms, than in the case of Eglintoun v. Montgomerie, 14th February 1845. This was also the case of an entail, the prohibition to sell being qualified by the words "redeemably or under reversion." But these words describe only one kind of sale or alienation, viz., that which is made with a reserved power to the disponer to reacquire. In order effectually to exclude an absolute sale, the word, instead of redeemably, should have been IRredeemably; and there can be no doubt that the intention of the entailer required the use of the latter word. But in consequence of this error alone, the strict interpretation of entails, as we shall afterwards find, not allowing correction by reference to intention, it was decided that the entail contained no effectual prohibition against sales. So that here the entailer's destination of large estates was defeated by the omission of one syllable of a word. No conveyancer may safely affirm, that such an oversight might not have happened in his own practice. In the pressure of business, in the iteration of forms, and in the habit, too easily acquired, of unconsciously using words without on each occasion distinctly apprehending their import, there are causes sufficient to prevent wonder at the occurrence of errors. The use which they serve is to admonish us to guard against them, by attaining a familiar knowledge of legal terms, and at the same time watchful and minute habits of attention. If, then, the purpose of this class were perfectly attained, no student would leave it, without having had the opportunity of learning the causes in history, and in the manners and customs of our forefathers, which gave birth to our legal instruments, and to that part of our jurisprudence which relates to them,-with the source and import of their form, and of the expressions and individual words which they contain; and he would have presented to him also everything in the statutes and reports of decisions and institutional authorities, which determines, modifies, or illustrates the terms and effect of any instrument, which in his professional career he can be called upon to frame. Within the limits necessarily assigned to our studies here, it would be vain to hope that this idea can be realized in a complete and satisfactory manner. It shall be my endeavour, however, in so far as time will permit, to trace the successive portions of the subject from their sources in History, advancing Civilisation, and Law, so that the student may not be ushered at once into the presence of a technical practice, of which, as regards their origin, the words are to him unintelligible, and the forms unmeaning; but may rather approach his important duties through the avenue of principle and intelligence, and have his acquaintance with the form and effect of CHAP. I. deeds based upon an accurate knowledge and clear perception of their INTRODUCTION. first source and original purpose, and of the causes in positive law, fluctuation of legal opinion, or change of manners, which have given to them their present shape and significance. NOTE TO PAGE 6. Professor Menzies occasionally commenced his Introductory Lecture with the following remarks: It would ill become me to address any remarks designed to affect the choice of a profession to those by whom that choice has already been made. Our business here is to prepare for the exercise of a profession already selected; and however important may be the step of choosing a profession, that step undoubtedly yields in importance to the preparation for its duties. At the outset of life, it is natural to compare the advantages of different professions, and the degrees of elevation so variously ascribed to them in the social scale; and such considerations are important as regards the adaptation of his calling to the qualities of the person making the choice. But that variety of elevation which conventional rules assign to different vocations, exhibits its widest disparity to the eye which takes its view from the lower level of observation and sentiment. The inequality is lessened, when the spectator looks from above; and to the reflecting mind, conversant with a higher sphere of thought and feeling, the distinctions of earthly occupations are wonderfully modified, when contemplated in the light of that upper atmosphere. The more deeply the inquiry is pursued, the more clearly does the thoughtful spirit perceive that true dignity and essential worth are internal, in the heart and character; and that, whatever may be the impressions of others, whatever the effect of the habits and arrangements which currently obtain, he is nearest to excellence, be his profession what it may, who has the highest sense of what is pure and upright, and whose conduct and deportment are most in harmony with that perception. Although, therefore, we are accustomed to associate degrees of importance and of dignity, and even of sacredness, with particular professions, it is manifest that there is no inherent virtue in any calling, capable of imparting dignity or honour, or worth or sanctity, to the person who exercises it, independently of his own character and conduct. It is a consequence as well as a proof of Infinite Wisdom and Goodness, that the variety of human wants and interests provides a multiplicity of avocations suited to the infinite variety of human faculties and attainments. The highest and most precious attribute, which is common to every NOTE TO INTRODUCTION. profession, is, that it supplies and imposes a DUTY,—a sense of obligation not only in relation to our fellow-creatures, but chiefly towards CHAPTER I. Him by whom our faculties were bestowed, in order that His purposes might be accomplished in their exercise. It is that sense of duty which gives to every vocation its true value and respectability. Without it the most elevated professional walk can afford no true. satisfaction; with it, the humblest calling possesses an inherent value, of which no external accessories can deprive it. The intrinsic value of duty, irrespectively of the nature of our occupation, is illustrated by Milton in the Sonnet on his blindness, when, in allusion to the variety of service which God exacts, he says And adds "thousands at his bidding speed, And post o'er land and ocean without rest." "They also serve, who only stand and wait." If from abstract speculation we turn to the living exhibition, there are recorded examples of those who, entering at an advanced period of life upon philosophical and literary pursuits, and following them with distinguished success, have in the strongest manner evinced the essential simplicity and dignity of their character, by attachment to professions the most humble, while walking in the highest fields of science. We read of Benedict Baudouin, one of the most learned men of the 17th century, that having for some years followed his father's profession, that of a shoemaker, he had no desire to forget that circumstance, but many years afterwards wrote a treatise on the Shoemaking of the Ancients,* in which the history of that craft was traced with much erudition back to the earliest period. It is recorded of a celebrated Italian writer, Gelli, that after obtaining so much distinction by his writings as to be elected Consul of the Florentine Academy, and to be appointed by the Grand Duke to deliver a course of lectures upon the poems of Dante, he still continued to work at his original profession of a tailor, which he, too, had inherited from his father; and the circumstance is alluded to with modesty, and even dignity, in the introductory oration of the course which he delivered before the Academy. No lesson of humility could be more impressive, no evidence more conclusive of the limits assigned to human attainment in its very highest efforts, than the reflection of our own illustrious Newton, when, after having outstripped every uninspired inquirer after truth, and while surveying nature from an altitude never reached before, he likened his own achievements to the effort of a child that had gathered a few shells upon the shore of an ocean. vast and unexplored. And we have the best example of moral and intellectual eminence, combined with humility of occupation, in Paul of Tarsus, brought up at the feet of Gamaliel, and taught according * Calceus Antiquus et Mysticus, 1615. |