It seems to be the proper object of every sound system of laws, not only to provide for the protection of right and punishment of injury, but so to improve the very position of society, as that the mechanical impulse of its own interest may propel it in a direction towards faithful and honourable behaviour. When we regard the laws of a state with a reference to their connection with manners, they appear, as a system, to have a sort of moral direction or bearing, and, if the expression may be allowed, a certain order of sympathies impressed upon them by the national character which preserves and is preserved by public opinion and an intelligent self-interest, in a salutary reciprocation of action and reaction.

The laws of England have this moral character, and the feature most remarkable in that character is an antipathy to fraud and deceit. The robust temperament of our early progenitors, while it qualified them to repel violence by violence, afforded them no protection against artifice and circuity. Their first essays in legislation were directed by their prevailing anxieties; the article of covin was therefore the principal title of their conservative jurisprudence, and their abhorrence of subtlety carried them at once beyond the object of punishment, to the methods. of prevention. In the first rudiments of our law was comprised this notable aphorism-that fraud and covin vitiate every title, and even right itself is turned into wrong by circumventing to obtain it. Thus deceit was rendered self-destructive, and treachery its own betrayer; our infant jurisprudence grasped the serpent, with an arm like that of the cradled Hercules. Multiplied opportunities of deceit in this more complex state of society have called for more arti

ficial modes of defence; for fraud improves with an equal progress in malignity and in dexterity. Not only fraud, therefore, but the temptation to fraud, and the practicability of its purposes, have been the object of prevention to the more exercised policy of modern jurisprudence, and it has been among its best directed efforts to impose such requisites upon all private transfers of property, as, without being hindrances to fair transactions, may be either totally inconsistent with dishonest projects, or tend to multiply the chances of detection.

Nor does the frequent overthrow of fair transactions, arising from the neglect of these formal requisites, furnish any sound argument against them. If they obstructed commercial negotiations, they would be objectionable on grounds of public expediency; but partial instances of loss and disappoint. ment to well intentioned individuals (improperly called cases of hardship) imputable to their own negligence, or a confident rejection of the proposed means of their security, are no rational answer to the reason of a rule of public policy and general operation. Formal observances required by law to give notoriety and assurance to the negotiations of property, may, it is true, incumber the transactions they are applied to: society, as it advances, is followed by a lengthening train of formalities: but this exigency of our more complex condition must receive the blame of the inconvenience, while, for the safety produced by these legal forms of authentication, so greatly overbalancing the inconvenience, we are to thank the vigilant caution of our legislators, who have had wisdom to increase protection as the danger has increased.

This object of protection against fraud is greatly promoted by enhancing the peril of exposure, which will often operate to frighten it from its purpose, and may sometimes render a man honest from despair. Something like this way of considering the efficacy of the Statute of Frauds, appears to have suggested to the late Lord Camden his defence of the testamentary clauses against the censure of Lord Mansfield." The design of the Statute," said that eminent Judge, was to prevent wills which ought not to have been made, and always operates silently by intestacy." An observation which well explains the true spirit of the act in respect to its clauses concerning wills, and leads to a just comprehension of the reason of its other provisions for authenticating the transactions relating to property. By requiring a more ostensible procedure, disheartening difficulties are thrown in the way of fraudulent dealings, and it is to be hoped, that in some degree our very thoughts are thereby diverted from the contemplation of purposes, the accomplishment of which is removed to so discouraging a distance, and hazarded by so much exposure.

Laws which thus proceed on a principle of prevention in their primary operation, and aim at the destruction of artifice by the silent subtraction of its means, may be expected to have some influence upon the habit of the mind, and to infuse some portion of health and vigour into the system of public morals. But the success of such preventive laws principally depends upon the uniformity and precision with which they are administered. Where a legislative provision looks straight at the suppression

of notorious offences by regulations and penalties of obvious expediency, ambiguity of interpretation and a waivering apprehension on the part of the subject of his civil duties, do not always result from occasional relaxations of legal strictness in favour of particular cases of hardship or compassion; but where a law is made with an indirect application to the exigences of society, imposing a positive rule, in itself indifferent, and of which the wisdom is discernible only in its oblique and ultimate tendencies, if the rule be once loosened from the letter of the Statute, it serves only to distress legal questions with fluctuating criteria, and may convert provisions which were designed to assist truth with testimony, and to promote simplicity of dealing, into a prolific source of technical niceties and abstruse distinctions. An administrator of the laws ought not to aim phainesthai philanthropoteros tou nomou; for the true compassion of the law is to prevent cases of compassion from recurring. That indulgence is but treacherous lenity, which, by departing from known rules, leaves men in uncertainty as to means of their security, and destroys confidence by the misdirection of feeling.

It was said by Lord Hobart,(7) "that it is better to admit a mischief in particular, even against the law of nature, than an inconvenience in general.” And by a living Judge of equal reputation, the spirit of our Statutes against fraud has been well defined with his own characteristic grace of expression :(m) "It certainly may happen, that a bona fide case may (m) Robinson's Reports of Admiralty

(2) Hob. 224. Cases, 221.

incur the penalty of the law, and may become the victim of a general policy anxious to prevent the possibilities of fraud, and, therefore, active in preventing modes of dealing which are grossly liable to abuses of that kind, though the particular transaction may not be directly impeachable."

To have the sanction of such men in support of the general credit of these laws for the prevention of fraud, and of the principle upon which the adjudications upon the Statute in question will, in the succeeding pages, be attempted to be explained and criticised, was an object of importance to the Writer. And with such sanction he seals his observations on this head.