We have shown that the deficiency in our forensic eloquence is by no means so great as has often been supposed by persons who have had erroneous notions of oratory, or who have been guided by fallacious comparisons. But it cannot be denied that such a deficiency does to some extent exist, and that, after making all allowances for the difficulties and restrictions of legal oratory in these times, there is room for a greater degree of it than is actually exhibited by the English Bar. There are certainly many members of the profession who in ordinary and common-place cases employ with great efficiency and skill the sort of eloquence which is appropriate to the circumstances. But even in this class of business the style and manner of most barristers might be considerably improved; and in those less ordinary cases which admit of a more elevated and energetic kind of eloquence, there are very few members of the profession who manifest in any high degree of excellence the vigour and felicity of ideas, the power and copiousness of language, and the force and expressiveness of delivery which would be appropriate to the occasion and conducive to success. Of course, this state of things may be partly accounted for by the rarity of the combination of the natural and acquired qualities essential to the orator. But the real explanation is to be found in the fact that the power of speaking is generally regarded by the profession as a matter of merely secondary consideration, upon which it is not necessary to bestow much labour or attention. We have already mentioned several circumstances in English advocacy which tend to discourage the employment of rhetorical powers, and consequently to diminish both the motives and the opportunities for their cultivation. And it is clear that oratorical proficiency, however desirable, is not in itself the quality most essential to the advocate. Accurate knowledge of the law, and skill in its application, tact and sagacity in conducting cases, and ability in examining and cross-examining witnesses, are qualities which are usually much more important to the English barrister, and will often enable him to attain distinguished success without the aid of eloquence. On the other hand, if he is destitute of these qualities, the most brilliant oratory will avail him little. is natural, therefore, that the acquisition of these more essential qualities should be the chief object of professional study, and that comparatively little attention should be given to the cultivation of rhetorical proficiency. Every one can sec that legal knowledge and skill in legal practice can only be attained by industry and study; but it appears to most persons of ordinary education a comparatively easy matter to express their ideas in intelligible and tolerably appropriate language, and to It deliver their remarks with proper emphasis. Accordingly, our advocates hardly ever go through any preliminary course of study or training for an oratorical career, except, indeed, so far as an occasional attendance at debating societies may constitute such training; and they acquire their power of speaking almost entirely by the practice afforded by professional business. Now, actual practice in speaking is certainly the most important part of the education of an orator; but in order to produce its full effect, it should be preceded and accompanied by some study of the art of speaking. Not that a formal rhetorical training is necessary, because the rules of rhetoric are of too obvious and general a character to be of any very great practical utility; but any one who wishes to become a good speaker should systematically study the speeches of the best orators, ancient and modern, should form habits of rhetorical criticism and observation, and should accustom himself to original composition, especially in writing, besides forming his style by diligent perusal of the best authors. There is no doubt, however, that careful and well-directed practice in speaking, where great pains are taken to make each individual effort as perfect as possible, is of itself an effectual means of gaining oratorical power, and that many successful speakers have attained their proficiency in this manner. But the practice in speaking which our barristers obtain in their professional employment is not usually of so improving a kind. The pressure of business, and the short time usually allowed for preparation, together with the frequent necessity for speaking on facts as they arise, tend to prevent much care or preparation being bestowed upon individual speeches, and to give them something of an extempore character, especially so far as style is concerned. Accordingly, the mind of the barrister is usually much more occupied with the matter and substance of his speech than with its form; and speakers under such circumstances are apt, when they have once attained a certain amount of fluency and perspicuity of language which is practically sufficient for ordinary purposes, to give themselves no further trouble to improve their style or manner of delivery. The kind of practice, therefore, which is afforded by actual business at the Bar is not very favourable to the development of oratorical power, even in ordinary cases; and as suitable occasions for the employment of the more elevated and impressive kinds of eloquence are comparatively infrequent, our barristers have not usually much opportunity of learning them by actual practice. There is all the more reason, therefore, why professional practice in speaking should be aided and supplemented by general study of the subject, and improved, as far as possible, by care and attention in each particular case. It is certain that, although there is much less deficiency in forensic eloquence among us than has sometimes been supposed, a greater degree of eloquence would be appropriate and conducive to success at the English Bar than is usually exhibited there. And though it is said with some truth that the acquirement of transcendent powers of eloquence by any individual advocate is really injurious to the State, because his superior ability gives the client who happens to retain him an undue advantage over his adversary, there is no doubt that a general increase of oratorical proficiency among the members of the profession would, on the whole, facilitate the administration of justice, and promote the public advantage. V. THE LAND LAW OF ENGLAND AND AMERICA. By W. FINLASON, Editor of Reeves's "History of the English Law," and Author of "A Treatise on the Tenure of Land." A Letter to A. H. Brown, Esq., M.P., on the Settlement of Land, and the System of Land Transfer in the United States. By THATCHER ADAMS, Esq., of New York. ATTENTION has been lately a good deal directed to the difference between the law of England and America as to land*-we mean, as to the ownership, the descent, and the disposition of land. The law of landlord and tenant is a distinct subject. The comparison of the law of England and America on the subject is of much interest, more especially as the law of America has been in a great degree assimilated to our ancient English law, from which our own had apparently departed. For this reason it becomes of importance, in instituting such a comparison, to consider the history of our law, and to trace the causes of the change which in the course of ages it may have undergone. We shall then be better qualified to appreciate the American restitution of it. Such an inquiry is properly historical, for otherwise we may fall into the error of assuming hastily that the law in different countries, or in the same country at different periods, ought to be the same, forgetting the great differences that may exist in the circumstances of different ages or countries. The avoidance of this fallacy is one of the chief uses of legal * Transactions of the Social Science Congress, 1872. history, the study of which is therefore wisely made an essential part of legal education. It is impossible to understand any branch of law, more especially this, without reference to its history. It is important also to separate the study of the history of the law from considerations as to its policy, that is, the study of what it has actually been or is, from speculations as to what it ought to be. The study of its history may throw great light upon its proper policy, and at every stage of the history it is necessary to show what the policy was; but the two branches of study are distinct, and to pursue faithfully the historical part of the inquiry, it is desirable to abstain altogether from the speculative. In the present paper, therefore, no opinion will be expressed as to what our law ought to be, and attention will be directed entirely to the inquiry what it has been, and is, and how it came to be what it is. And this inquiry is the more necessary and useful, because there is no subject on which there are more false traditions, or more erroneous notions; and none more illustrates Lord Bacon's observations as to the importance of the legal part of history, on a right understanding of which all our ideas as to law and legislation must necessarily a good deal depend, upon this subject. For instance, the universal idea probably is, that the American law is novel and new-fangled, whereas it is only a restitution of an ancient law. On the other hand, it may appear that exaggerated and erroneous ideas are entertained as to the actual operation of our law, from want of attention to counteracting causes, which materially modify its effect, and perhaps practically bring it much nearer to the American than we are apt to imagine. The very idea of property in land arose, there can be no doubt, out of considerations of practical utility. Originally, as Sir S. Henry Maine has shown in his most interesting works, all land in the northern nations was held, in common, by "village communities." It was found that under such system land was really of no value: men did not care to cultivate what was not their own; and so, for the sake of industry, there arose necessarily the idea of property. This idea was no doubt established here by the Romans, and adopted by the Saxons, who, barbarous as they were, soon had sense enough to see that land without cultivation was of no use or value; and hence, instead of exterminating the inhabitants, they rather, as Bede says, made them serfs and tributaries. Similar considerations soon gave rise to free tenancy; for it was found that men did not work in earnest in the cultivation of land in which they had no interest, and so we see, in the Saxon laws and institutions, both property and tenancy in land. The writer's view on the law as to the tenancy of land, and the relation of landlord and tenant, he has already explained in his work on the subject, which he begs to say was founded on the ancient law of England, originally based upon the equitable principle just alluded to, that men ought to have an interest in the land coextensive with the labour and the capital they invest in it; a principle in later times too much departed from in our general law, although still to a great extent embodied and preserved in custom. But for the present he has only to deal with the law as to the ownership and alienation of land. As to this, the ancient usage of holding land in common could be still traced in the Saxon "folc land," i.e., land held by the people at large on a general customary tenure, the basis of our common law; and under which the land descended from father to son, according to the old Saxon adage: "The father to the bough; This custom is alluded to in the "Mirror of Justice as that under which the land in this country was generally held at the time of the Conquest; and it was the basis of our common law. Under this custom, however, though land was descendible, it was not alienable, or disposable by will; the occupants being considered as only tenants, though having a descendible tenancy. This species of tenancy still exists, in the northern parts of the country, in those customary tenancies which can be traced back in our history to Saxon times, and which descend from father to son. By degrees, another and more absolute form of property arose, created by deed, and hence called "boc-land," or bookland-the ancient Saxon deed being in the form of a book or scroll--and in which the deed described and declared the nature of the property created according to the nature of the transaction, whether a gift or free grant, as in cases of marriage, or by way of purchase for a price or value; and as to this species of property, there was the power of alienation, except so far as it was precluded by the express terms of the deed, as it often was in cases of gift on marriage. There was in such cases a restriction in the power of alienation. A man might deal as he pleased with land he himself acquired by purchase, but not with land derived by gift. The same principle is still recognised in our law; and if an estate has come from the wife's family, then on the failure of issue it goes to her heirs; while, if the estate came from the side of the husband, it goes in such cases to his heirs. This principle is as old as the law of Alfred. By the laws of Alfred, if a man had land which his kindred had left him, then he must not give it away from his kindred, |