common law. In some manors a wife has her dower, one-third of the tenement, as in case of freehold. In others she has, for her " free bench," one-half; and again, in some, she takes the whole for life, to the exclusion of the heir. The fines on death or alienation vary; the power and manner of entailing or cutting off entails vary; the taking of heriots and lords' services varies. There are as many or more of these local laws than in France, in the Pays de Coutume, of which four hundred have been enumerated, so as to make it the chief opprobrium of the old French law, that it differed in every village. Is it right that such varieties of custom should be allowed to have force in particular districts, contrary to the general law of the land? Is it right that, in London, Bristol, and some other places, the debts due to a man should be subject to execution for what he owes himself, while in all the rest of England there is no such resource; although in Scotland, as in France, this most rational and equitable law is universal?

All these varieties of tenure and diversities of liability are only so many traps to the ignorant and unwary, and so many impediments to the transmission and circulation of property. They embarrass commerce, by making it difficult-in some cases impossible-for a man to get the full value for his property, or dispose of it at all. For copyhold property is not liable even for specialty debts, nor can it be extended by elegit; and thus, absurd and unjust as is the law which prevents freehold property from being charged with simple contract debts, it goes further in this instance, and exempts the copyhold from liability, even to those of the highest nature, a judgment itself not giving the creditor any right of execution against it. The obvious remedy to be adopted in this case is to give all parts of the country the same rules touching property; and, therefore, Mr. Brougham, in his memorable speech, proposed an assimilation of the laws, affecting real estates, all over the kingdom, to take place after the elapse of a fixed period.

DIFFERENT LAWS FOR DIFFERENT PERSONS.-Sir W. Blackstone was very fond of asserting that the Crown and the people were, in law, on an equal footing, and that the King, in a court of justice, was no more considered than a subject. This is not correct. It is true a person injured, in his property, by the Crown, may proceed by a petition of right, having first obtained the consent of the attorneygeneral; but the attorney-general may refuse his fiat, and then the subject is without remedy, except the hopeless resource of an impeachment of the officer of the Crown. Again, in cases where the Crown is interested, the Crown has a right, at the mere suggestion of the attorney-general, to call for a trial at bar; and thus the subject be obliged to bring all the witnesses up, from Cornwall, perhaps, or some other remote county. After all this expense is incurred, by reason of the Crown demanding a trial in London, where the other party is not known, and not in Cornwall, where both parties are known, the Crown

* Mr. Brougham, House of Commons, Feb. 7, 1828, printed speech, p. 45.

may withdraw the case from the consideration of the jury, after the examination of all the witnesses, even at the moment that the jury are, with their backs turned, deliberating about their verdict.

But it is said the Crown pays expenses; the subject, however, has his own expenses to pay. As the Crown is above receiving costs, so it is exempt from paying them. The reason of this practice it is not easy to discover. One cannot see how the dignity of the Crown is exalted by not receiving costs, when they reflect that, by the Crown, is meant the revenue raised from the people for the public service, and that, consequently, the non-payment of costs to the Crown is an increase of the people's burthens. But, even if we admit the propriety of the Crown's receiving none, it would by no means follow that it should pay none to the subject, who is in a widely different predicament. All this, however, arises out of notions derived from the feudal times, when the Crown was in a situation the very reverse of that in which it stands at present, its income then arising almost entirely from a land-revenue. There is now no reason why it should be exempt from paying, or disabled from receiving, in all cases where costs would be due between common persons. Indeed, there has been of late years an exception made in the crown-law on this head, but so as to augment the inequality complained of. In all stamp prosecutions, the costs of the Crown are paid by the unsuccessful defendant; so far does it stoop from its former dignity; but not so low as to pay the defendant a farthing of his costs, should he be acquitted.

We shall only mention one more case to illustrate the legal disparity between the King and the people. Whenever a special jury is summoned in a Crown case, and all the twelve jurors do not attend, a tales cannot be prayed to let the cause proceed, without a warrant from the attorney-general; so that it is in the power of your adversary to refuse this at the time it may be most for his advantage so to do; while you have no option whatever, in case it should be for his interest to proceed, and for yours to delay. A singular instance of oppression, under this usage, was related by Mr. Brougham, in the celebrated speech to which we have referred. A person named Lowe, with four smugglers, was prosecuted in the Court of Exchequer. The accused were acquitted on the second trial, and Meade, one of the witnesses against them, and others connected with him, were prosecuted for perjury; eighteen indictments were found at the sessions, and the Crown at once removed the whole, by certiorari, into the Court of King's Bench. There they were all to be tried. Meade was the first tried, and clearly convicted. The other seventeen were then to be tried, and Mr. Sergeant Jones called them on; but the Crown had made the whole eighteen special jury causes; a sufficient number of jurymen did not attend; Mr. Sergeant Jones wanted to pray a tales, and the Crown refused a warrant. "Thus," says Mr. Brougham, expense of £10,000 was incurred, and a hundred witnesses were brought to London, all for nothing, except, after the vexation, trouble, and delay already endured, to work the ruin of the prosecutor, who

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had been first harassed upon the testimony of the perjured witnesses. The poor Yorkshire farmer, whom the villain had so vexed, had no more money to spend in law; all the other prosecutions dropped; Meade obtained a rule for a new trial, but funds were wanting to meet him again, and he escaped. So that public justice was utterly frustrated, as well as the most grievous wrong inflicted upon an individual. Nor did it end here; the poor farmer was fated to lose his life by the transaction. Meade, the false witness, and Lowe, the farmer, whom he had informed against, and who was become the witness against him upon the approaching trial, lived in the same village; and one evening, in consequence, as was alleged, of some song, or madrigal, sung by him in the street, this man (Meade) seized a gun, and shot Lowe, from his house, dead upon the spot. He was acquitted of the murder, on the ground of something like provocation, but he was found guilty of manslaughter, and such was the impression of his guilt upon the mind of the court, that he was sentenced two years' imprisonment. A case of more complicated injustice-one fraught with more cruel injustice to the parties, I never knew in this country, nor do I conceive that worse can be found in any other. We may talk of our excellent institutions, and excellent some of them certainly are, though I could wish we were not given to so much Pharisaical praising of them; but if, while others, who do more and talk less, go on improving their laws, we stand still, and suffer all our worst abuses to continue, we shall soon cease to be respected by our neighbours, or to receive any praises, save those we are so ready to lavish upon ourselves."-pp. 50-1. So much for the even-handed justice, lauded by Mr. Justice Blackstone, between the Crown and the people!

FINES AND RECOVERIES.-It is well known if a person has an estate in fee, that is, the absolute and unconditional possession of it, he can sell or devise it as he thinks proper; but, if he has an estate in tail, he cannot deal with it in this manner. He must first go through certain forms, in order to make himself absolute master of his estate: he must levy a fine, as it is called, which destroys the expectant rights of the issue in tail; or he must, by means of a recovery, get rid of those rights and of all remainders over. But this must be done through the Court of Common Pleas, at certain seasons of the year;-and why, it may be asked, should there exist a necessity for going there? Why force tenants-in-tail into court for mere form's sake? In case of bankruptcy the necessity for these forms is not felt. A trader, who is tenant-in-tail, commits an act of bankruptcy, and, by the assignment under the commission, not only the interest vested in him is conveyed, but all the remainders expectant upon it are destroyed for the benefit of his creditors, and the estate passes to the assignees, free of all restriction. Why, then, may not the possessor of an estate do that for himself which the law permits to be done for an insolvent tradesman and his creditors? So, too, a man and his wife cannot convey an estate of the wife without a fine or a recovery; neither can the wife be barred of her dower without a similar proceeding. There is certainly nothing

very real in a fine, and, as to recoveries, they proceed upon a mere fiction. They go upon the ground of compensation in value being made to the remainder claimants, whose right they cut off, and who, but for this fictitious suit, would have a right to take the estate after the decease of the tenant-in-tail. They are said to recover compensation in value; and from whom do they recover it? Why the common vouchee, who is the cryer of the court of Common Pleas, and who, like the man at the Custom-House, obliged to take all the oaths other people do not like, lies groaning under the weight of all the liabilities he has incurred to all the claimants in tail since he became cryer, and answerable for the millions of property, the rights to which, in remainder, have been barred, he not being worth a shilling!

The abolition of these ridiculous forms was recommended upwards of one hundred and fifty years since, and still remains to be enforced by the eloquence of Mr. Brougham. They have no earthly use but to raise money by way of fees; and which, beside creating expense and delay, and oftentimes preventing tenants-in-tail from passing their property by will, which they cannot do if they die before suffering the recovery, they give rise to questions in law, often puzzling, always dilatory and expensive. The mere forms of fines and recoveries cost £70,000 per annum over and above what deeds, operating in the same manner, would cost; and a round sum must be allowed for the litigation which doubts on these assurances are yearly occasioning.

AGREEMENTS FOR LEASES AND CONVEYANCES.-A pregnant source of legal suits is the law with respect to sales, leases, and other conveyances. Thus, if you agree with a person to give him a lease, though he, under the agreement, becomes your tenant, he is your equitable tenant only, but not your legal tenant. He may be possessed of a written agreement, signed and sealed, for a lease of ten years, and may occupy under it, but he has no lease which a court of law can take notice of; and, if an ejectment is brought, he must go out. He may go into a court of equity on his agreement, if that is any comfort to him; he may apply for a deeree against you to perform your agreement; but till then his claims are not recognised in a court of common law. If an injunction be brought, the expenses are further multiplied. Why, it may be asked, should not the agreement, such as here described, be as good as a lease; when, in substance, it is the very same thing, and only wants a word added or left out to make it the same in legal effect? A case, illustrative of this subject, happened to Mr. Brougham, on the York circuit. An agreement had been entered into, and possession given; but, because it did not contain words of present demise, it was no lease, and, therefore, the tenant could not stand a moment against the ejectment that was brought, but was driven into the Court of Chancery, where the other party could just as little stand against him. How much inconvenience, expense, and delay, then, might be saved, if such an agreement were pronounced equivalent to a lease!

Again, on the same principle of avoiding multiplicity of suits, why, in ejectments, should two processes be requisite to give the plaintiff his

remedy? As things now stand, after a man has succeeded in one action, and established his title to the possession, he must have recourse to another, to recover that which he ought to have obtained by one and the same verdict that established his title the mesne profits. Why could not the same jury settle the matter at once? Why is an individual driven to maintain two actions for the purpose of obtaining one and the same remedy? Or why should not the jury that tries the right also assess the damage? Mr. Tennyson's bill, which was intended to remedy some part of this evil, is only permissive; it ought to have been compulsory. It is partial, and it is only recommendatory, and its recommendations are not always attended to, because the lawyers, having the choice, do not think fit to pursue that which is the least profitable; they choose the two actions, when one would suffice for the interests of justice-for the interests of the plaintiff and defendantfor all interests, except those of the practitioners.

ARREST FOR DEBT.-Unless in cases of grossly improvident conduct, or wilful concealment of property from the just claims of creditors, imprisonment of the person for debt, either on mesne process or in execution, seems not defensible. In practice, the power of arrest is often perverted to purposes foreign to its ostensible object. It has been resorted to as a means not of recovering a just claim, but to prevent a just claim being preferred; and the same artifice of a false allegation of debt has been frequently employed to remove a person out of the way who happened to be troublesome, or that some criminal intention might be effected during his incarceration. But, however wicked or spiteful the motives of any one in so employing the process of the law, there being a probable cause of detention, and the process not being abused, no action lies against the wrong doer. If he have no accomplices, so as to fall within the charge of conspiracy, he is safe. To the wealthy all these inconveniences are trivial; but how does such a proceeding operate on a poor man, or a tradesman in moderate circumstances? He has no facilities for obtaining bail; if he does, he pays one way or another afterwards for the favour; and, if he cannot procure it, he must go to prison. And on what ground of common sense does the law in this matter rest? Why should it be supposed that a man, owing twenty pounds, will leave his house, his wife, his children, his country, his pursuits, and incur, voluntarily, the punishment awarded for great crimes, by banishing himself for life? Yet the law always proceeds on the supposition that a man will run away the moment he has notice given him of an action for debt. Some men might possibly act thus, but their conduct forms the exception, not the rule; and it is neither wisdom nor humanity to denounce a penalty against all men in order to meet a case not likely to occur once in a thousand times? Nonpayment of debt, if a crime at all, is a crime against property only; and, perhaps, it would be enough to allow property to answer for it: and there is this peculiarity between it and other crimes against property that it is committed with the mutual consent of the parties. Goods sold on credit are mostly charged extra; this extra charge is the premium