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present purpose to go into the technical rules by which the order of the parties, and the forms of the testatum and habendum and other parts, are governed. For the purpose of preserving the logical arrangement of the draft, it is only required to observe that the different witnessing parts follow each other in the order in which the corresponding recitals have been arranged, or that, if needful, the disposition of those recitals be changed, so as to agree with that of the witnessing parts. The different provisoes and powers, and other qualifying clauses, should follow as nearly as possible to the matters which they qualify; and generally, all the parts which affect the same interests or matters, or which bear upon each other, should be placed as nearly as possible to each other, so as to present each subject disembarrassed from all the others. The instruments, of which the operative parts are the most complicated and difficult to construct, are settlements and wills. In the great majority of the former, however, the dispositions being pretty nearly similar, the modern draftsman is relieved from most of his labour by the employment of precedents; although great attention is still required in the nice adjustment and adaptation of the settled forms to the new combinations of circumstances which generally present themselves. But in wills, the caprices of testators are so numerous and so strange, that few forms are available for any other purpose than for supplying hints of what may be needful, and recalling the language to our recollection. The dispo
sition of testators is generally so strong to tie up their property for the longest possible period, to subject it to such extraordinary rules of sale and management, and to divide and charge it in such almost inconceivable ways, that the ingenuity of the draftsman is taxed to the utmost to frame an instrument which shall at the same time be, in point of workmanship and arrangement, creditable to himself, keep within the bounds prescribed by law, and satisfy the caprices of the testator.
In concluding this branch of the subject, we have only to add, that, until the draftsman has attained great experience in his profession, he should never omit to re-peruse his draft after the operative parts are finished. It is certain, that, however skilfully his general design has been formed, and however carefully worked out, he will find numerous inconsistencies, trifling, perhaps, in degree, but which may be easily removed, and which, if suffered to remain, would be a great blemish in his performance, and might not improbably occasion serious mischief. And be it remembered, that, though from habit we come to admire symmetry and logical order, for the sake of those qualities themselves, and to feel disgust at the want of them, yet the original, and the efficient, reason for our seeking to adorn our performances with them, is, that they best insure the intentions of our clients being exactly effectvated; for it is the habit of order and logical arrangement which can alone insure precision of effect. The fourth general rule which we propose to lay Rule the fourth
--that the ordi. VOL. III.
nary forms and down for the framing of legal instruments, is one guage should be which is universally admitted, and will require but
little explanation. It is, that the ordinary and accustomed forms of instruments and technical language should be employed. With respect to the use of the accustomed forms, it will be sufficient to refer to Blackstone, (2 Comm. 298): “ It is not,” says the learned commentator, “ absolutely necessary, in law, to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare, clearly and legally, the party's meaning. But as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity." We do not recommend a bigoted adherence to forms; but simply, that the employment of them should be the general rule,—the departure from them the exception, to be authorized only upon “good reason or
urgent necessity.” Importance of It is obviously essential that we should have a perwith technical fect familiarity with the meaning of the technical language.
language of the law, and a thorough facility of handling as well the technical as the more ordinary but peculiar language which draftsmen employ. If we are not possessed of this facility and this intimate acquaintance with the phraseology of our profession, we are continually embarrassed and diverted from the object of our drafts, by the difficulty we have of expressing ourselves distinctly; and, however inge
that the lan
nious we may be in getting over our difficulties, our performances must always appear crude and informal. The possession of brilliant talents is not necessary for the acquisition of the qualities adverted to; they are attainable by the exercise of common attention, aided by an ordinary memory. The mode of attaining them is simply practice : the student must peruse and copy the drafts of able masters ; must diligently study printed or written precedents of welldrawn instruments, and must learn the art of drawing drafts under the inspection, and subject to the revision, of skilful practitioners.
The importance of the use of technical language Rule the fifthand of legal phraseology is universally admitted; no
umited; no guage should be man, in fact, can be termed a draftsman, who is not preets and acperfectly versed in it. But there is another rule respecting the language of drafts, which is of hardly less consequence, but which seems to be very little understood. It follows directly from the leading principle previously stated; for, as the object of legal instruments is to preserve testimony clearly and distinctly, it is of the highest importance that legal language should be, to the utmost possible extent, precise and accurate: that is, that every phrase should have a clear meaning, and that the connexion of all, together, should be so made as to give rise to no ambiguity. It is very true, that every person who has ever thought of the point, whether a lawyer or not, will at once admit the propriety of the rule, and will be very likely to allege, that it is a mere assertion of a truism: but yet, to one who has paid attention to the subject, and has been in the
habit of perusing drafts in the ordinary course of business, nothing can be more obvious, than that, notwithstanding the necessity of precision and accuracy will be so readily allowed, the great majority of the persons who prepare drafts, do not understand the means of attaining those qualities, and do not appreciate them when they see them in the drafts of others. We do not doubt that most men aim to be accurate. There is abundance of this would-be accuracy in the addition of descriptions, to distinguish persons and things which need no distinction, and in the expression of matters which it is of no use to express; but the real and effectual accuracy and precision which are attained by the use of apt words and the omission of superfluous phrases, by correct references and a strict adherence to the rules of grammar, are qualities too frequently wanting. For example, a draft may be met with, in which a previously recited instrument is always thus referred to: “the said hereinbefore in part recited indenture of assignment, of the —— day of —-;" when, there having been no other instrument of the same date mentioned, the proper and sufficient reference would be, “the said indenture of the day of ——;" but when we come to the habendum of this same draft, (supposing it to be the draft of a deed of conveyance of an undivided moiety), we find it expressed, “ to hold the said undivided moiety of the said hereditaments hereinbefore released ;” whereas, it being the moiety and not the hereditaments that were released, the habendum should, of course, be, “ to hold the said undivided moiety here