CONTENTS.

property is first transmitted from some one person to some other person; or, as it may be expressed with sufficient accuracy for the present purpose, upon the death of the first tenant for life.

Again: a restriction is introduced for the purpose of confining the operation of the act within certain limits as to time past. The act deals with those cases alone of transmission of property upon death where the death happens after the 19th May, 1853.

The case put by Mr. Thring in his notes on the act, as an illustration of the effect of the 2nd section, may be used here to shew the results of the construction for which we contend. It is as follows:

Settlement in 1850, by X., of the manor of Dale, on A. for life, (1) remainder to B. for life, (2) remainder to C. for life, (3) remainder to D. for life in the event of his surviving his father, but if he die in his father's lifetime, then (4) to E. in fee.

A. dies on the 20th May, 1853. Here, to use Mr. Thring's words, "each of the limitations (1), (2), (3), (4), is a past disposition under which B., C., D., and E. respectively have become beneficially entitled to an interest in property upon the death of a person dying after the commencement of the act. B. has become entitled 'immediately;' all the rest after an interval of time;' C. has become entitled certainly;' D. and E. contingently.'

* 666

So, if, instead of settling the estate by act inter vivos, X. had devised it with the same limitations, and had died on the 20th May, 1853, the result would have been the same, except that in that case A. also, as well as the other takers, would have become beneficially entitled upon the death of a person dying after the commencement of the act, and consequently would have been taxable.

This construction appears to us indisputable. But suppose that in the first case A., the first tenant for life, dies on the 18th May, 1853, and that in the second case X., the testator, dies on that day, what then is the result?

The mere circumstance of the death of the first tenant for life in the one case, and of the testator in the other, happening before or happening after the commencement of the act, cannot make any difference with respect to the nature of the rights taken by the parties under the settlement or the will, or with respect to the time of the inception of those rights. If in the cases put it be correct to say that the parties all become beneficially entitled on the death of the first tenant for life, or of the testator, the same must be true although the first tenant for life of the testator died before the commencement of the act.

Then this question arises: where the first tenant for life or the testator (as the case may be) dies before the commencement of the act, does B., C., D., or E. answer the description of a person becoming beneficially entitled to property upon the death of a person dying after the commencement of the act? If our construction be correct, this question must be answered in the negative, and consequently liability to the succession duty will not attach upon either B., C., D., or E. The inference appears to be direct and clear.

It may be supposed, indeed, that it was not in the intention of the Legislature to exclude this class of persons from liability to the tax. If that supposition be true, we readily admit that a strong presumption arises that they are not so excluded; but the question may still be fairly asked, by what words are they included?

*Mr. Thring adds to the case put a proviso, that if E. come into possession of the manor of Blackdown, the manor of Dale shall go over to F. in fee; and upon that he observes, that "in the event of E. coming into possession of the manor of Blackdown, F. will become beneficially entitled by way of substitutive limitation' in the place of the original possessor E." But it seems that by parity of reason F. has become beneficially entitled by way of substitutive limitation.

1856

It may be objected, further, that the view above taken regards a settlement and a will in different lights, inasmuch as it looks upon a settlement as conferring a succession not until the death of the first tenant for life, whilst it looks upon a will as conferring a succession upon the death of the testator. But this distinction, it may he replied, is not arbitrary; it arises out of the nature of the subject with which the Legislature is dealing, viz. the transmission of property upon death. Unless a death occur at some point, liability to succession duty does not attach at all. If property could be transmitted by a series of acts inter vivos, it would never become taxable under the act*.

If it be, nevertheless, maintained that a third tenant for life, for example, under a settlement inter vivos, cannot be said with propriety to become beneficially entitled in any sense upon the death of the first tenant for life, the alternative is, (regard being had to the whole scope of the act and its language), that he becomes beneficially entitled upon the execution of the settlement. This construction will only more effectually (if that be possible) save him from liability to the tax, inasmuch as he will then not become entitled upon the death of any person whomsoever; and it will be needless to inquire whether the death of the first tenant for life, or of any other person, happened before or happened after the commencement of the act.

At least one limitation, however, must be put upon the generality of the foregoing remarks. We have hitherto assumed that the persons taking under the settlement or will are all ascertained at the death of the first tenant for life or of the testator. But in many cases it will not be so. Suppose a settlement or devise to A. for life, remainder to B. for life, remainder to the right heirs of Z., a living person, or to the eldest son of B. living at his death: here, although the first tenant for life in the one case, or the testator in the other, died before the commencement of the act, yet if Z. or B. died after the commencement of the act, then since the right heirs of Z. in the one case, and the eldest son of B. living at his death in the other case, could not be ascer tained until the death of Z. or of B., such right heirs or eldest son (as the case might be) would become beneficially entitled upon the death of a person (Z. or B.) dying after the commencement of the act, and consequently would be liable to the tax.

Under sects. 3 to 8, too, settled property will be chargeable which would not be so under sect. 2, standing alone. But, allowance being made for these and similar exceptions, the foregoing reasoning appears to shew that this general question is not unwarrantable, viz.

Where, in the case of a settlement, the first tenant for life, or in the case of a will, the testator, has died before the commencement of the act, does liability to succession duty attach upon any person taking under or by virtue of that settlement or will?

a

The origin of the error in the act, if error there be, may probably be this. The act is supplemental to the Legacy Duty Acts. That particular form of transmission of property upon death which takes effect under legacy necessarily arises upon an instrument which itself comes into operation upon death. The distinction in this respect between wills and settlements inter vivos was not kept in view, and words were not enployed appropriate to the case of a transmission of property upon death, under an instrument not itself coming into operation upon death.

The construction is now, at the least, doubtful and difficult. It would have been certain and easy if there subject to trusts for charitable or other public purposes. So, * Cf. sect. 27, providing for the case of property becoming testator, who dies before 1853, devises to A. for life, and after her death, or if she marry again, then to B.; A. after the commencement of the act marries again; B. does not pay the tax.

22

had been inserted in the 2nd section words which would have made it stand thus, viz.—

"Every past or future disposition of property, by reason whereof any person has or shall become beneficially entitled to any property, or the income thereof, under a limitation expectant upon, or under an instrument taking effect upon, the death of any person dying after" &c.

We conceive that it will be impossible for the Profession to advise unhesitatingly in cases arising under old settlements and wills, until the interpretation of this section (which has been described as "the key to the whole act") shall have been either expounded by the Courts or declared by the Legislature.

AN acute observer*, who was no admirer of womankind, allows, that "the generality of women are quicker of invention and more ready at repartee than the men, with equal helps of education; and it is surprising to see what a considerable figure some of them make in conversation, when we consider the small opportunities they have of acquiring knowledge. If sound judgment is rare among them, it is only for want of practice, application, and assiduity. Thinking on abstruse matters is not their province in life, and the stations they are commonly placed in find them other employment; but there is no labour of the brain which women are not capable of performing, at least as well as the men, if they set about and persevere in it. Sound judgment

like children; and it sets out in bolder relief the injustice and absurdity of their present disabilities; for how does society, or rather how does that half of society that, starting with the single advantages of superior physical strength and inferior tenderness, has appropriated to itself all the material aids and benefits, with some mental ones to which it has no exclusive title, deal with a class equal in numbers to itself, equal in capacity, superior in moral endowments, inferior only in power of resistance and in the accidents of education to whom the dominant half is indebted for so much of what is best in its nature? In savage societies it has made them beasts of burthen; in all countries it has given to the man in whom the savage nature is developed, the power, as he has the disposition, to do the same-to idle, drink fire-water, glorify himself, and quarrel, while the domestic slave wears out her existdren, and her savage lord. In this country it merges, ence in despairing labour to support herself, her chilin common and legal language and conception, the wife's personality in her husband's, a fiction from which the common law deduced practical consequences-as, that a wife could not be witness for or against her husband, that is to say, herself; since "nemo in propria causâ testis esse debet," and "nemo tenetur seipsum accusare.' It commits the custody of her person to her husband, with the right of giving her "moderate correction;" though, if he threaten his wife to maim or to kill her, the law has provided for her, not indeed the slightest remedy or satisfaction for what is past, but a workmanship in the make of women seems to be more and lawfully treat and govern the aforesaid A., and that writ to compel him to find sureties "that he shall well elegant and better finished, the features are more deli- he shall not do nor procure to be done any damage or cate, the voice is sweeter, the whole outside of them is evil to her of her body, otherwise than what reasonably more curiously wove, than they are in men, and the difference in the skin between theirs and ours is the belongs to her husband for the purpose of the government and chastisement of his wife lawfully" &c. same as there is between fine cloth and coarse. There (F. N. B., "Writ de Securitate Pacis," E.) And the is no reason to imagine that Nature should have been limit of lawful chastisement has in modern times more neglectful of them out of sight than she has where been contracted considerably within the license of the we can trace her, and not have taken the same care of civil law-" flagellis et fustibus acriter verberare uxothem in the formation of the brain, as to the variety of rem;" Lord Hale going so far even as to think that the structure and superior accuracy in the fabric, which the salva moderatâ castigatione of the register "is not is so visible in the rest of the frame.". This is the un- meant of beating, but only of admonition and conwilling testimony of a satirist to the intellectual capa-finement to the house in case of her extravagance." bilities of women. In moral casuistry the quickness and soundness of their judgment are proverbial-the first thoughts of a woman are safer than the deliberations of a man. Defoe alone disputes with them the domain of metaphysical fiction-for Rousseau pourtrayed, and Goethe caricatured, only themselves. Beyond this, they can dignify fineness of perception by strength of performance, and usually in practice carry the self-denying and Christian virtues to at least as high a pitch as men do those of the self-asserting and self-advancing kinds. Such as they are, and considering, not exceptional cases, but the best of our ordinary experience, we find that we owe the finest portions of our affections, tastes, habits, virtues, to our mothers, sisters, and female friendst.

is no more than the result of that labour..

The

This vindication of the intellectual and moral capacities of women is not proposed as the basis of an argument for their emancipation, but it anticipates the commonest and silliest of the objections to such a measure the objection that women's nature is essentially such that they need guidance, protection, government, * Dr. Mandeville.

†This is well expressed by Wordsworth in the poem on his sister, called "The Sparrow's Nest," somewhat to the following effect, (we quote from memory):—

The comfort of my later years
Was with me when a boy;
She gave me eyes, she gave me ears,
And humble cares, and delicate fears,
A heart, the fountain of sweet tears,
And love, and thought, and joy."

(Lord Leigh's case, 3 Keb. 433). But, practically,

we know that this doctrine of Lord Hale is not law, at least for the lower orders. We compel the wife to live with her husband, though such life be a slow death. We give to him the absolute right to all her personal property, and, during his life, all the infriends have had the foresight to secure her by the come of her real property, except so far as she or her cumbrous and expensive, often precarious, machinery of a settlement-machinery which he can at any time put out of gear by exercising the above-mentioned right of reasonable government and chastisement. We give to the husband, subject to a trifling exception, which for the lower orders does not exist at all, the absolute make more complete his control of her person, conduct, custody of and dominion over the children, and thus and settled property. We disable her from exercising any art, trade, or industry, unless with her husband's consent; and when he permits her to be industrious, administer laws such as these without allowing wowe give her gains to him. We make, maintain, and men any voice in the matter. We oppress and degrade them, tie their hands, deny them the use of their faculties, and then tell them that they do not understand business, that Nature never meant them to act for themselves, still less to govern or be heard in law-making. They are flighty, enthusiastic, illogical, sentimental. The State would be turned into a house of lunacy if women meddled in its business. For answer we turn, not to the list in which shine the names of the wise Ferdinand's guiding genius, and of the best

crowned governor England has known since the Con- or will be so in any proximate, state of society to extend quest, but to the performance of ordinary men in com- the privilege of divorce to cases now excluded from it. mon times-to the motives and conduct, for instance, The simplification of the procedure in divorce, and the of the male statesmen and administrators, high and low, reduction of the cost, are matters of detail not here in in all departments, who commenced, carried on, and are question. Perhaps the best rule would be to make the about to conclude the present war-to the characters, marriage bond absolutely indissoluble, by which we conduct, and speeches of "politicians" and "influential mean only so far as it is a bond restraining each party men"-to the exhibition lawyers have made of them- from contracting a second marriage. Practically the selves in their attempts or pretences to reform their rule of the House of Lords approaches closely to this, own science and ask whether, if such be the guides giving, however, to the husband an advantage which and leaders we have now to trust in, it might not seems to be and is unjust, but which is a necessary be a legitimate speculation to try a change at all consequence of the present state of social morals. It hazards? To pass a night in the House of Commons, so happens, and will continue to be, as long as society and hear the trained gladiators from Oxford and tries the character and honour of a man by a test Cambridge-masters of the organa, old and new-pro- lower than that which it applies to a woman, that pose resolutions revolting to common sense, defend there is a ground on which divorce may be granted them by arguments that have not even a formal to a husband without danger to the matrimonial secuconsistency, expressed in language seldom grammati-rity of society at large, while it would be most inexcally coherent, reeking with parliamentary and rhe-pedient to listen to a similar application by a wife. torical slang; to be bidden admire and applaud their speeches as classical and argumentative; to see such advocacy triumph over the plain urgency of justice and expediency, and then to hear sneers at "ladies' logic;"to witness the trial of some beast who has murdered his wife or his servant by slow torture; to observe, if he misses the many loopholes the law has provided for his escape, how, not one, but twelve drivelling jurymen will shirk their responsibility to society, smother their sense (if they have it) of humanity, even of self-preservation, banish from their imaginations the hideous scenes that have just been brought home to every faculty of conception, and, under pretence of respect for human life, but really from callousness to human suffering and a secret unconscious aversion to deal too heavy a blow and discouragement to that system of force and terrorism on which, in lieu of native worth and dignity, they depend for such social position and privileges as they have, set loose the rampant felon, hark on a thousand of his like, and betray a myriad of obscure and silent victims; or if, by strange for tune, Nemesis should succeed in compelling the reluctant homage of the jury-box, to see her insulted, if not baffled, by the solemn ribaldry of some petrifaction of a judge, pretending to shed tears, not over the crime and its victim and the state of society to which they belong, but over the hardness of his own case, who is compelled to contemplate, and even to formulise, the approaching expulsion from this world of one whose existence is a calamity and an abomination;—and then to be warned against allowing women to trouble and divert the grave business of life with their sentiment ;this is enough to make one give up the cause in despairas if it were an attempt to teach the blind to paint-until one contrasts the social habits and opinions of this time with those of a hundred years ago, and considers how great and rapid the advance shews to the historian, how slow, feeble, and vacillating each step of it seemed to the impatient pioneer who cleared the way.

In the women's petition which Lord Brougham lately presented to the House of Lords no allusion is made to the question of political privilege. This is wise. The pressing need is to elevate the social condition of the class. We agree with those who would deny political privileges to women, that this is no time to extend the franchise-that the admission to the registry of as many female names as it now bears of males would probably nearly double the number of fools in the list, without materially benefiting the new interest represented. It will be time enough to extend the franchise when we have extended education and the knowledge of business, or at least devised a test for such attainments. Neither is the subject of divorce mentioned, though Lord Brougham injudiciously referred to it in his speech. Nothing can be more erroneous than the notion that it is desirable in the present,

But divorce (we refer, of course, to the parliamentary divorce à vinculo) concerns only rare and exceptional cases. The relief women are entitled to is not the miserable protection offered by marriage settlements, writs of habeas corpus and of the peace, or sentences of the ecclesiastical courts, nor yet the privilege of divorce with liberty to marry again, but emancipation of their persons, property, and minds. The voice of society is now beginning to urge this reform, so far as it concerns their persons and property, upon the law. When that step has been taken, the law will re-act upon society, and that mental regeneration will follow, the fear of which is at the bottom of the resistance to the legal changes. We shall unfit them, it is said, for matrimony: rather we shall fit some for that state as it ought to be, and save from matrimony as it is now understood many who are unfit for it--as who ought to be fit? But marriage will no longer be re garded as the proper destiny of woman. Be it so. Since Benedick's time we have discovered that the peopling of every nook and corner of the world is not a pressing necessity. In the meantime, of those who do marry, some will help to prepare better destinies for their children. In the words of Margaret Fuller

"If women are to be bondmaids, let it be to men superior to women in fortitude, in aspiration, in moral power, in refined sense of beauty. You who give yourselves to be supported,' or because one must love something,' are of those who make the lot of the sex such that mothers are sad when daughters are born.

"It marks the state of feeling on this subject, that it was mentioned as a bitter censure on a woman who had influence over those younger than herself— "She makes girls want to see heroes.' "And will that hurt them?

"Certainly can you ask? They will find none, and so they will never be married.' "Get married, is the usual phrase .

SHORT NOTES IN CONVEYANCING.-No. 5.

PARTICULARS AND CONDITIONS OF SALE. EVERY condition of sale, it should be recollected, is part of the contract, (Wilkinson v. Hartley, 15 Bear. 186), and it is this that renders the framing of conditions a task of great nicety, as well as of no slight anxiety. Whilst every person who proposes an estate for sale without qualification asserts, in fact, that it is his to sell, and consequently that he has a good title, nevertheless a vendor may, if he thinks fit, stipulate for the sale of an estate with such title only as he happens to have. (Per Sir J. Leach, V. C., in Freme v. Wright, 4 Mad. 364). If, therefore, a vendor intends to deprive a purchaser of the right to the produc tion of any evidence necessary to verify the title beyond