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WHEN we consider that the Art of Conveyancing consists in applying the principles of alienation to practice by means of appropriate instruments or assurances, it is at once obvious that, to the practitioner, the Forms of Conveyancing constitute an important branch of study. It is one, however, which is very often neglected. Many are content with knowing no more of the subject than is just sufficient to enable them to use the Forms as they use their watches, without inquiring into the mechanism within ; satisfied, so to speak, if they can
wind them up.
This is to be accounted for partly from the supposed dryness of the subject; but chiefly, I suspect, from an opinion common among students, that while they have a genuine and authentic collection of settled Forms, any profound study of them is unne
It may be remarked, however, that many subjects for which we afterwards feel the keenest relish, are often at first exceedingly distasteful. What, for instance, can be more repulsive in the beginning than the learning of a foreign language ? and yet, when once we have acquired the skill to use it as an instrument of thought,how exquisite the enjoyment, enduing us almost with the consciousness of a new sense. And paradoxical as it will sound to some, I am convinced that even the Forms of Conveyancing may become not merely a useful, but an interesting subject of study. It is of the importance, however, of the study in question that I wish more immediately to speak; for if that be granted, however dry the subject, no one who cares for his own professional character, or success in life, will neglect to prosecute it.
Now, whenever we make use of any Form, two things are to be considered : first, whether it adequately expresses the intention of the parties ; and, secondly, whether the intention so expressed can, with reference to the existing laws, be carried into effect.
The first of these objects, though it may be reckoned a mere matter of style or composition, for which any educated man is fitted, does in fact require us to possess,
in order to attain the end in view, a complete command of the technical language of Conveyancing. It has been objected against this language, that it is too technical; but the truth is, the more technical the nomenclature of any science is (assuming that each term has really a definite scientific meaning), the more exact and perfect is the science. To introduce into legal instruments the language employed on ordinary occasions, might, perhaps, enable the draftsman, ambitious of such things, to set forth his skill in fine writing; but, assuredly, such a display would ultimately be at the expense of his client. Words, indeed, which are in common use, are not only often wanting in precision, but subject to continual variation in meaning. The sound may be the same, while the sense is changed ; just as the coins of the realm continue stamped with the same denomination of value, though they have lost both purity and weight (a). In truth, a fixed standard of value is not more important to the political economist, than is a fixed nomenclature to the conveyancer : without the one, as without the other, the contracts of mankind would be perpetually frustrated. And I know of no other way in which the language of Conveyancing can be acquired than by a patient study of its Forms.
But if, with this view, such a study be deserving of attention, how much more important is it in regard to the other consideration I have mentioned, viz. whether the intention of the parties, as embodied in any given instrument, is warranted by the existing laws.
Many, indeed, as already remarked, take this question for granted, because they have followed some settled Form. It is undoubtedly desirable, for several reasons, to adhere as closely as possible to
(a) The silver pound, which at the Norman conquest was worth twenty shillings, had in the reign of Elizabeth been reduced in value at least two-thirds; and yet it was still called a pound.
established Forms; they have received a settled construction, and occasion an uniformity in practice which produces both certainty and dispatch. Selden tells a story of some mathematicians, who could, with one stroke of their pen, make an exact circle, and with the next touch point out the centre:. is it therefore reasonable, he asks, to banish all use of the compasses ? Now, settled Forms are a pair of compasses. But if any one who draws diagrams (or drafts) with the aid of compasses, should, on that account, neglect to study the properties of his figures, he had better at once banish the use of such instruments; and, like the mathematicians in the story, betake himself to his pen, or abandon the subject altogether.
The necessity, indeed, of habitually considering the Forms of Conveyancing with reference to the actual state of the law, is the more liable to be slighted from the circumstance, that many are apt to reckon the legislature as the only source of changes in the law, overlooking the constant influence of what the foreign jurists rightly distinguish from legislation, and denominate jurisprudence. It is a maxim, oftener repeated than understood, that the province of the judge is to declare the law, and not to make it. But whatever be the theory of our system, let us consider its actual working in practice; and we shall then find that, while the statute-book is only occasionally consulted, the reports of adjudged cases are habitually referred to. This is one of the consequences of a customary or common law, such as that which obtains in this country, and whose characteristic