which cannot honestly be sacrificed to a convenience. We have not the slightest reason to believe that if the owners were alive, and still masters of their property, they would give it to us to be blown away in gunpowder, or to save a few years' house and window tax. On a pressing exigency, as to avert a national bankruptcy, or repel a foreign invasion, the whole or any part of the endowment might be borrowed; as, in such a case, might any other property, public or private: but subject to the promptest possible repay ment. If any surplus remains, after as much has been done for cultivating the minds of the people, as it is thought advisable to do without making them pay for it, the residue may be unobjectionably applied to the ordinary purposes of government: though it should even then, we think, be considered as a fund still liable to be drawn upon, if hereafter required, for purposes of spiritual culture. 9. We have still to add a few words on the kinds of foundation which ought not to be permitted: after which we shall conclude. No endowment should be suffered to be made, or funds to be legally appropriated, for any purpose which is actually unlawful. If the law has forbidden any act, has constituted it an offence or injury, every mode of committing the act, or of instigating others to commit it, ought to be prohibited: not some particular modes only. But if the purpose for which the foundation is constituted be not illegal, but only, in the opinion of the legislature, inexpedient, we do not deem this to be a sufficient reason for denying to the appropriation the protection of the law. The grounds of this opinion may be sufficiently collected from the preceding ob servations. The only other restriction which we would impose upon the authors of Foundations, is, that the endowment shall not consist of land. The evils of allowing land to pass into Mortmain, are universally acknowledged; and the trustees, besides, ought to have no concern with the money entrusted to them, except to apply it to its purposes. They may desire landed property as a source of power, which is a reason the more for refusing it to then but as a source of income, it is not suited to their position. They should have only to receive an annuity, and that in the simplest and least troublesome manner: not to realize a rental from a multitude of small tenants. Their time and attention ought not to be divided between their proper business and the duties of a landlord, or the superintendence and management of a landed estate.. The very first step in a general revision of Foundations, and one which would be desirable even if the reform should go no further, would be to dispose of the estates of all the public trusts in Great Britain, by sale to the highest bidder, and invest the proceeds in the stocks or other monied securities. If the legislature were then to assert its right of control over all endowments of an origin anterior to a certain recent date, the exercise of this control should become a regular department of the administration, and the expenditure of the interest should be brought under the consideration of parliament in an annual report. For until the execution of these trusts shall be subject to the common responsibility which attaches to other public functions, the endowments (at least the greater part of them), for any useful purpose, might fully as well not exist. ART. II. THE REGISTRY QUESTION IN FORMER TIMES. 1. Propositions for Recording and Registering of Deeds and Conveyances, for Preventing Frauds and Deceits in Sales, and Yielding of Possessions of Purchasers. By W. Leach, of the Middle Temple. London. 1631. 4to. 2. Reasons and Proposals for a Registry or Remembrancer of all Deeds and Incumbrances of Real Estates, to be had in every County, most necessary and advantageous, as well for Sellers and Borrowers as Purchasers and Lenders: to the Advance of Credit and the General Good, without prejudice to any honestminded Person. Most humbly offered to consideration by Nicholas Phillpott, of New Inn. Oxford. 1671. 4to. 3. The Pretended Perspective Glass; or Some Reasons, of many more, which might be offered, against the proposed Registry Reformation. London. Printed in the year MDCLXIX. [read MDCLXXI.] 4to 4. Reasons for a Registry, showing briefly the great Benefits and Advantages that may accrue to this Nation thereby, and likewise reconciling those mistaken inconveniences which many have conceived thereof. By a Well-wisher to the Publick Interest of the Nation. London. 1678. 4to. 5. Reasons against a Registry for Lands, and showing briefly the great Disadvantages, Charges and Inconveniences that may accrue to the whole Nation, in general thereby, much overbalancing the particular advantages that are imagined to arise therefrom; in answer to a late book, entitled, Reasons for a Registry, with some Reasons for a Registry of Personal Contracts; humbly offered to consideration. London. 1678. 4to. 6. A Treatise showing how Useful, Safe, Reasonable and Beneficial the Inrolling and Registering of all conveyances of Deeds may be to the Inhabitants of this Kingdom. By a person of great learning and judgment [Sir M. Hale]. London. 1694. 4to. (This Tract has been reprinted several times with the Author's name.) 7. A Proposal for the Erecting of County Registers for Freehold Lands, showing the great Use and Benefit of them. By E. B. Esq. London. 1697. 4to. 8. An Essay on a Registry for Titles of Lands. By John Asgill, of Lincoln's Inn, Esq. London. 1698. 8vo. 9. Some Reflections on Mr. Asgill's Essay on a Registry for Titles of Lands. London. 1698. 8vo. 10. The Reply to Some Reflections on Mr. Asgill's Essay on a Registry for Titles of Lands. By way of a Letter to the Author of the Reflections. London. 1699. 8vo. THE evils arising from the want of a Registry have been felt in this country for centuries past, and the proper remedy for those evils has been repeatedly urged on the legislature. It would not be difficult to discover the reasons of the mischievous and successful resistance to a measure of such evident utility; but as this may, perhaps, be deemed more curious than useful, we shall not enter into an inquiry on the subject. We hope, however, to be able to prove, that, whatever the motives may have been for its rejection, the necessity of a Registry has been so fully established more than a century ago, that, had reason only guided parliament in those days, this question would not require to be agitated in our own time. In perusing some old publications on the subject, we have been so struck with the convincing arguments advanced on one side, and the futility of those on the other, that we have deemed it acceptable to our readers to present them with extracts from various works on both sides of the question. We shall abstain as much as possible from arguing the point ourselves, but leaving to the old champions to defend their respective positions, we doubt not the result. We do so the more willingly in order to show timorous people that the most intelligent part of the community in old days were of the same opinion with the most intelligent in ours and that the opposers of this measure do nothing but bring forward sophisms which have been long ago demolished. We have abstained from referring to authorities of the time of the Commonwealth, lest those who possess a tender conscience should deny the truth in odium auctoris, being an Oliver relick-as Fabian Philips calls it-and should mistrust whatever comes from so impure a source as a parliament, (or, to speak more loyally, a so-called parliament)" of ignorant and mechanick members.' The writers from whom our extracts are derived, wrote either a few years before or after "the glorious revolution of 1688," and all of them before 1700; so that they cannot be suspected of being bitten with the reform mania of our own age. We beg, however, to refer to a writer of the Commonwealth, on a point of fact, to show the mischiefs which the state of the law had produced, and the reasons by which the "ignorant and mechanick party" were compelled to endeavour to apply a remedy to them. Before the bill for amending the law and for introducing a Registry had been proposed, Leach suggested it, and the preamble of an act of parliament which he sketched out runs as follows: "Forasmuch as great numbers of secret fraudulent deeds and conveyances, and other frauds and deceits, have been of late years contrived, and more frequent practised than formerly, by many wicked people selling their manors, messuages, lands, tenements, hereditaments and other things, sometimes twice, other times thrice, foure, or five times over, to severall purchasers, for good and valuable consideration, whereby divers honest people of this nation (who have purchased the same leases, rents, annuities or charges out of the same for great summes of money) have been defrauded of all that which they carefully and honestly have laboured for the greatest part of their lives, and afterwards lived in great misery and extremity the residue of continuance of their time; and other of such purchasers by reason of such frauds and deceits have been troubled and turmoyled, and put to great excessive charges and tedious suits; and especially in the Courts of Chancery, or in courts called Courts of Equity, or English Courts, many years together; and yet in the end, by the means aforesaid, have failed of recovery or obtaining that for which they have justly and honestly paid, or any part of their money which they have disbursed on that behalfe, for the prevention thereof: Be it enacted," &c. That the republican lawyer did not give a high colour to facts to serve his views, may be seen from Sir M. Hale, who fully admitted "1st. The great deceit committed by persons by secret judgements, mortgages, conveyances and settlements, whereby purchasers are oftentimes deceived and creditors defeated... 2d. The multitude of chargeable and difficult suits in law, occasioned by pre-conveyances, secret mortgages, and other incumbrances, which probably would be avoided and lessened if all men's estates lay open to the view of others.". Phillpott also strongly insisted upon this well-known fact to show the necessity of a Registry. "The usefulnesse and benefit to all his majesties subjects of what is proposed (i. e. a Registry), appears and is demonstrable in nothing more than the vast number of suits and actions in the Courts of Westminster, ariseing merely by reason of precedent and concealed incumbrances, which have and daily do wast and consume the whole substance of such as are concerned in them; and two parts in three (at least) of all suits touching real estates, depending in Westminster Hall, are sprung from this mischief." Asgill particularly alludes to the quantity of law suits caused by the want of a Registry; and the author of the "Reflections on Mr. Asgill's Essay" admits the fact, but says that there were other reasons besides for it; which does not seem to be a good argument to prove that this one cause should not be removed. Asgill's opponent directs his arguments against that gentleman's plan and application of principles, but takes good care to declare, repeatedly, that he does not mean to say that a Registry might not be adapted at some period or other, and freely confesses that the state of the law might be improved; he only objects to Asgill's suggestions: "I desire the reader to take notice, that what I have said must be understood to be in answer to Mr. Asgill, and in confutation of his hypothesis; and though, perhaps, there may be found some things in it not, impertinent to an argument of a Registry in general, yet they must be taken to be levelled purely and singly against the author's book. .. ... "The case of purchasers is much amended by several useful statutes, made in the last reigns, and, I doubt not, may still be better secured against secret incumbrances; and it is, I think, something of an argument against it, that this proposal of a Registry has been still rejected by our forefathers, and in times when the state of conveyancing did more require it than now it does. . . . . But I affirm nothing; the King, Lords and Commons, are judges of this matter, whose wisdom and determination I shall always take to be the criterion of truth and prudence." In his Reply, Asgill answers these vague and inconclusive remarks in the following pithy words : "As for those gentlemen who are so complacent as to declare for a Registry in general, and yet find fault with all that are proposed,―till they shall please to define the nature of what they would have, I presume they must be thought to be against all. . . "The want of a General Registry hath been the occasion of multiplying laws to prevent frauds in the titles of lands...... which might have been easily prevented by a Registry; for all frauds in titles came by concealments, and when they are registered, they can't be concealed. The multiplication (and consequently ignorance) of laws, is a secret curse fallen upon man, which insensibly consumes his estate, without his taking an account of it. . . . . There is not a greater article in the laws of England than the descent of lands to the eldest son as heir, and yet this being a common case, every man is his own lawyer in it. And, were a Registry settled, the use of it would become so common, that the knowledge of the law and practice of it would become uni |