Active trusts of this nature are, therefore, admitted, even by Mr. Humphreys, to be quite indispensable to the purposes of life. Such trusts could not possibly, therefore, be converted into legal estates, by any extension of the statute of uses. Convenience requires them to exist, and a jurisdiction of an equitable kind must somewhere be vested to enforce the obligations of the trustee, and to protect the rights of the party for whom the trust exists. We agree with Mr. Sugden* in thinking that it will be found very difficult, if not impracticable, to give legal effect to the distinction between active and passive trusts. Take, for instance, the trust to raise portions for younger children, which Mr. Humphreys would do away, by giving a power to the party entitled to the portion, after a summons from the clerk of the peace! to sell the inheritance and pay the portions. How infinitely preferable to this newfangled device, casting a novel duty on an officer, foreign to the nature of his office, and leading to a needless sale of the estate, is the present plan of the trustee raising, by way of mortgage, the sum required for the portions, subject to which burden, the estate goes to the next in order under the settlement! Suppose the estate limited to a son, with portions to the daughters, and the daughters happen to be older than their brother, in this case, they could not apply to him during his minority for their portions, since he could have no means of providing the money; and accordingly, if the trustees for raising portions were done away, the daughters, on attaining twenty-one, must necessarily force a sale to obtain their portions, although the son at twenty-one could easily pay them, and though the trustees, had they existed, could have raised them with ease by a mortgage. Agam, Mr. Humphreys, in his proposal to abolish trusts, (which, as far as we understand it, Mr. Brougham's proposition resembles,) is constrained also to except trusts arising by operation of law. But by this exception the whole provision would be rendered nugatory, and might be evaded by every landowner who chose to invest his estates in a trustee's hands. In such case, a party would only have to buy an estate, and have it conveyed to a brother or friend, keeping evidence by him of the real nature of the transaction; and such brother or friend must become as effectually his trustee, as if created such by the express words of a deed. Or a deed of gift or conveyance without consideration would answer the same end of conveying from the actual owner the legal estate, subject to an implied trust in his favour, to be made out by letters or other evidence of the arrangement. Would it be tolerated, that the right of the real owner should, in such case, * See his valuable Letter to James Humphreys, Esq., on his Proposal to Repeal the Laws of Real Property, and to substitute a New Code.' 3d edition." be

be turned into a jus precarium or honorarium, and that his friend might keep his estate, because the courts could not recognize a trust? Unless this is to be the case, there must be a court, and T a mode of proceeding to enforce the obligation. And for what object, should this jurisdiction be removed from the court of Chancery, which is familiar with it, to the courts off common Jaw, to which it is a stranger?reit od sesɔ adt ei doidw) uisi But if active trusts, of the nature of that above-mentioned, could not possibly be abolished, and if the jurisdiction over them bould not with any advantage be removed from the courts of equity,what Is the good to be obtained by converting mere passive trusts intb Jegal estates that is, by giving to every party entitled to gath on his trustee for an absolute conveyance at pleasure, the legal estate

-90.977

against h evasion of such an act could be prevented, (which, we believe, could not be the case,) would any good end be gained by the charge? One effect would be this, that legal estates outstanding would be no longer available as a protection to titles. The principle of such protections is one of equity and sound justice. Asan selling his estate, and making a title to the purchaser, directs an assignment of an outstanding legal estate, separated from the equitable ownership, to be made to or for the use of the purchaser. This estate is thus preserved and transferred free from any indumbrances which might affect it by reason of his ancestor's acts, such, for instance, as judgments, suffered by the father or the grandfather of the seller. They, having only an equitable estate by reason of the legal estate in the trustee, could not charge it by judgments affecting them hem personally. And although the judgment creditor, vin such case, is deprived of any remedy against the land, this is Mo hardship on him, since the land is not the object to which he looks in taking his security; his principal remedy is personal, and he does not, like a mortgagee, or purchaser, deal, for a specific hold upon the estate. This equitable mode of securing titles, which has long had a salutary operation, would be done away by the conversion of trusts into legal estates. Another principal effebt of the change would be to transfer a large quantity of bustess from the courts of equity to the courts of common law; to cause many actions at law in place of issues directed from schauvery. But every lawyer, we believe, will admit, that a question meets,sin general, with a more fair and unobstructed trial on its merits when tried under an issue from the court of Chancery, than when brought before a common law court, by a common lave action. Terms are inposed by the Chancellor by the Chancellor as to excluding all points of form, examining interested parties, getting rid of preliminary proofs, on the trial of an issue, which of coursejidasuot exist on

this desire, by force of an act of parliament ?Supposing the

the

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the trial of an action. If any kind of concealment of evidence, or other unfairness, is practised by either party, the Lord Chanheellor has a wider jurisdiction in granting a new trial. The very form of the issue (as, for instance, devisavit vel non, in case of contested willy strictly confines the inquiry to the point in dispute, whereas, on a trial of the same question by an ejectment, (which is the case where the testator had a legal, and not a mere requitable estate, there is often difficulty in the proof of the seizin borothe testator himself, though this point ought not to be brought in question by two parties, both claiming under him. We bedieve, however, that the conclusive answer to the scheme of Converting trusts into legal estates by an extension of the statute of uses is, that it is contrary to all the wishes and habits of the onation, who would, by new devices, render the law Hugatöfer if passed Naturam expellus furca, tamen usque récurre Here, for the present, we must, very reluctantly, leave , leard M. Brougham. Those who wish to understand the subjects on which the has descanted, will find much matter deserving of their best attention in the other works named at the head of our paper. Some full and complete examination of his speech throughout is still wanted: but our limits forbid our attempting to supply, this zwant. 19-balung sas avom all to] 60 of 550m od of quierovo bide 29 Notwithstanding any observations in the preceding pages, our -objects, and those of Mr. Brougham, are not, we would fain betlieve, so much different as the means we would take to to arrive at them. The cautious and practical reform of actually felt evils in the legal administration is the utmost extent to which we shall ever be induced to go hand-in-hand with any legal reformer. That Mr. Brougham's views, in principle, probably extend little wider than this limit we are not unwilling to suppose. But while w readily offer to him our humble praise for being the means of originating two commissions, which may probably do service to the law and the public, and for throwing out some practical suggestions well deserving of attention, we cannot but express our deep regret that his attack upon the existing law has been so andiscriminate,sophighly coloured, and so little marked By that sobriety and candour which the useful consideration of "Such matters absolutely demands. We lament that his distinguished mame should give currency to many fallacious, many exaggerated objections against the law and that the tenor of his speech should be calculated to weaken the public respect for some valuable institutions which must be retained unchanged, and to create indefinite desire for alteration in others, which improv improveable at allucan only be improved by a slow process, a calin Inquiry, and to very limited extentioueat us to lend gut a loo

We

NOTE

NOTE to the Article on Maynooth, in No. LXXIV.

We are not in the habit of noticing attacks upon us in the newspapers; but in some letters lately so published by Dr. M'Hale, in reference to the article Maynooth,' in the last number of this Journal, there occurs a passage which it would certainly be unfair to pass altogether without remark.

f

The Bishop of Maronia (after much vague abuse, which we may safely leave to its fate) complains formally that he has been accused of transgressing, in a very essential particular, the Statutes of Maynooth, after having sworn to observe them. He admits the transgression, but denies altogether the oath; and it is under these circumstances that we must now apologize to the right reverend letter-writer in the Irish newspapers.

Our statement was erroneous. The Doctor never swore to observe the statutes of his seminary. He only assisted at the celebration of High Mass, and at the invocation of the Holy Ghost, to enable him to fulfil a promise which he was about to make on entering on the duties of an eminent station in that religious establishment-and then subscribed, publicly and solemnly, an engagement to observe the statutes in question. The Doctor's words were,' EGO SPONDEO ET POLLICEOR;' not 'EGO JURO.'

We do not hesitate to express our regret that we should have fallen into an error which the Bishop of Maronia considers as of such grave moment.

NOTE to the Article on Mr. De Roos's Narrative, in No. LXXIII. WE have to acknowledge the receipt of a letter complaining of a paragraph in this article, which, but that it is very long, and contains matter wholly irrelevant, we would have published in this place.

The paragraph is that entitled 'Settlement of the boundary line;' and the letter-writer asserts that we have fallen, in the course thereof, into no fewer than eight misrepresentations.

We admit that we have two errors to apologise for the first, that of alluding to one of the king's commissioners as an American citizen born in America;' whereas it appears that the family of the gentleman in question were American loyalists, and he himself born in England; -we are very sorry for this mistake. The other is, as the writer seems himself to suspect, a mere typographical error, and one which we should have thought too obvious to require any remark whatever.

As to the other six charges, we must, for the present, plead not guilty:

1. A line has been drawn contrary, it is said, to the spirit of the treaty,' Of this our correspondent complains grievously, alleging that we represent the line as having been agreed on and established by the commissioners.' We neither meant nor said any such thing: our meaning was confined to the line as drawn by the Americans, and submitted, or about to be submitted, to a third power; and we accordingly spoke afterwards of its consequences, if admitted;' per

haps

haps proposed or contended for' would have been a better expression than drawn.

Our

2. We have been cheated of a vast extent of territory.' meaning was, that we shall be cheated of it, if the American pretensions are ultimately approved of; but in the meantime we are cheated of its use-America is, de facto, in possession of a territory that, in our opinion, ought to be British.

3. By some unlucky chance, an island at the foot of the Long Soult rapids has been ceded to the Americans-we are, therefore, at the mercy of the American government, whether we shall be permitted to navigate that part of the river which is between Kingston and Montreal, or not; and to obviate this difficulty, we are driven to the enormous expense of a canal of communication.' Our correspondent says the island is only a mile long, and the distance between Kingston and Montreal one hundred and ninety miles; and complains of us for saying that one mile could interrupt such a navigation. We answer that less than a mile, or than half a mile, may create an effectual interruption; and beg leave to ask our correspondent why, if there be no such interruption, the canal has, de facto, been undertaken ?

4. With respect to that part of the boundary-line which is to run along the 45th parallel of latitude, from the Connecticut river to the St. Lawrence, it happens that the line has been drawn thirteen miles too far to the northward.' Here again, for drawn, read 'proposed? 5. The letter-writer says, there would not, it is believed, be a difference of a principal proportion of thirteen miles, even if the 45th parallel of latitude were run upon the geocentric principle, as contended for by the United States. This is the belief-the opinion-of the letter-writer; our belief-our opinion-is the other way, and we are not alone, as our correspondent must be aware, in our opinion.

6. Our last alleged misrepresentation is a supposed assumption, on our part, that the geocentric principle contended for by the Americans' had been admitted by the English commissioners. The passage complained of bears no such construction; we only mentioned the proposal, to show the trickery to which the American agents have resorted.

In conclusion, we must once more apologise to Mr. Alexander Barclay (whose very name was altogether unknown to us till we read his letter) for our mistake as to his country, and disclaim the slightest intention of being guilty of 'personal calumnies' towards him, unless it be a calumny to call a man (even in mistake) an American citizen. He can scarcely, we think, be serious when he speaks of our remarks as likely to affect his advancement in life.' He is in the service of the British government-to that government he has, as he informs us, submitted a full explanation of all his conduct throughout the business in question; and he must be aware that, on that explanation, and not on the casual observations of by-standers, the issue will and must depend.

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