Formal style of legal instruments.
(k) Stat. 15 Cur. II. c. 17,s.8..
(l) Willis v. Brown, 10 Sim. 127.
Uses and trusts.
The adherence of lawyers, by common consent, to the same mode of framing their drafts has given rise to a great similarity in the outward appearance of deeds; and the eye of the reader is continually caught by the same capitals, such as, "This Indenture," "And whereas," "Now this Indenture witness-eth," "To have and to hold," etc. This similarity of appearance seems to have been mistaken by some for a sameness of contents, - an error for which any one but a lawyer might perhaps be pardoned. And this mistake, coupled with a laudable anxiety to save expense to the public, appears to have produced a plan for making conveyances by way of schedule. In pursuance of this plan, two acts of parliament were some time since passed, one for conveyances (m), the other for leases (n). These acts, however, as might have been expected, are very seldom employed; nor is it possible that any schedule should ever comprehend the multitude of variations to which purchase-deeds are continually liable. In the midst of this variety, the adoption, as nearly as possible, of the same framework is a great saving of trouble, and consequently of expense; but so long as the power of alienation possessed by the public is exerciseable in such a variety of ways, and for such a multitude of purposes as is now permitted, so long will the conveyance of landed property call for the exercise of learning and skill, and so long also will it involve the expense requisite to give to such learning and skill its proper remuneration. The remuneration, however, afforded to the profession of the law has hitherto been bestowed in a manner which calls for some remark. In a country like England, where every employment is subject to the keenest competition, there can be little doubt but that, whatever method may be taken for the remuneration of professional services, the nature and quantity of the trouble incurred must, on the average and in the long run, be the actual measure of the remuneration paid. The misfortune is, that when a wrong method of remuneration is adopted, the true proportion between service and reward is necessarily-obtained by indirect means, and therefore in a more troublesome, and, consequently, more expensive manner, than if a proper scale had been directly used. In the law, unfortunately, this has been the case, and there seems no good reason why any individual connected with the law should be ashamed or afraid of making it known. The labour of a lawyer is very different from that of a copyist or printer; it consists first and chiefly in acquiring a minute acquaintance with the principles of the law, then in obtaining a knowledge of the facts of any particular case which may be brought before him, and lastly in practically applying to such case the principles he has previously learnt. But, for the last and least of these items alone has he hitherto obtained any direct remuneration; for, deeds have hitherto been paid for by the length, like printing or copying, without any regard to the principles they involved, or to the intricacy or importance of the facts to which they might relate (o); and, more than this, the rate of payment was fixed so low, that no man of education could afford for the sake of it, first to ascertain what sort of instrument the circumstances might require, and then to draw a deed containing the full measure of ideas of which words are capable. The payment to a solicitor for drawing a deed was fixed at one shilling for every seventy-two words, denominated a folio; and the fees of counsel, though paid in guineas, averaged about the same. The consequence of this false economy on the part of the public has been, that certain well known and long established lengthy forms, full of synonyms and expletives, are current among lawyers as common forms, and, by the aid of these, ideas are diluted to the proper remunerating strength; not that a lawyer actually inserts nonsense simply for the sake of increasing his fee; but words, sometimes unnecessary in any case, sometimes only in the particular case in which he is engaged, are suffered to remain, sanctioned by the authority of time and usage. The proper amount of verbiage to a common form is well established and understood; and whilst any attempt to exceed it is looked on as disgraceful, it is never likely to be materially diminished till a change is made in the scale of payment. The case of the medical profession is exactly parallel; for, so long as the public think that the medicine supplied is the only thing worth paying for, so long will cures ever be accompanied with the customary abundance of little bottles. In both cases, the system is bad; but the fault is not with the profession, who bear the blame, but with the public, who have fixed the scale of payment, and who, by a little more direct liberality, might save themselves a considerable amount of indirect expense. If physicians' prescriptions were paid for by their length, does any one suppose that their present conciseness would long continue? - unless indeed the rate of payment were fixed so high as to leave the average remuneration the same as at present. The acts above mentioned contained a provision that, in taxing any bill for preparing and executing any deed under the acts, the taxing officer should consider, not the length of such deed, bu1 only the skill and labour employed and responsibility incurred in the preparation thereof (p). This, so far, was an effort in the right direction. And an act has now been passed to amend the law relating to the remuneration of attorneys and solicitors (q), by which such remuneration is now authorized, under certain restrictions, to be fixed by agreement (r); and which provides (s), that, upon any taxation of costs, the taxing officer may, in determining the remuneration, if any, to be allowed to the attorney or solicitor for his services, have regard, subject to any general rules or orders hereao be made, to the skill, labour and responsibility involved. But long rooted customs are hard to eradicate. The student must, therefore, make up his mind to find in legal instruments a considerable amount of verbiage; at the same time he should be careful not to confound this with that formal and orderly style which facilitates the lawyer's perusal of deeds, or with that repetition which is often neces-sary to exactness without the dangerous aid of stops. The form of a purchase-deed, which has been given above, is disencumbered of the usual verbiage, whilst, at the same time, it preserves the regular and orderly arrangement of its parts. A similar conveyance, by deed of grant, in the old established common forms, will be found in the Appendix (t).