remind me of what I have read somewhere, of the injury sustained by the shark which bit off the sailor's wooden leg, and the right of that much injured and disappointed animal to the sound one.

Under a philosophical system of jurisprudence, the law of evidence ought to contain only general rules, applicable to the different classes and degrees of evidence, and not particular rules preventing the manner of proving each particular action. To point out the facts that must be proved to recover possession, to enforce payment of a debt, to obtain damages for an injury, can only be requisite where the civil code, or the rules of civil proceeding, are, as they are with us, altogether barbarous, inconsistent and unintelligible. The code of proceeding ought to instruct every one what the circumstances are which give him the right he seeks to establish, or entitle him to reparation for the injury that he declares himself to have sustained. The code of evidence ought only to point out the manner in which those circumstances are to be established. But the effect of our worse than absurd, and more than unjust system of special pleading, especially since its evils have been inflamed and aggravated by the New Rules, which have had the same effect upon suitors as a lasting blight upon the air, the water, or the earth would have had, has extended itself to the law of evidence. The rules of pleading and the law of evidence have been mixed up and confounded together in one chaos of iniquity, and the result has been, as Livingstone observes, that the English law of evidence is so voluminous and so uncertain. What ought to be the objects of the legislator in providing a mode for the decision of litigated questions? They are two, to prevent the delay of a just, and the commencement of an unjust, action. Now, how are these objects to be attained? Is it probable that they will be attained , where the plaintiff can say, I never saw the statement of any case that in my name has been given to my adversary; or, what is the same thing, I did see it, but, "Davus sum non

Edipus," it was impossible for me, or any man not a lawyer, to comprehend the meaning of a single syllable that it contained? Whether it is true or false I cannot tell? and where the defendant says, with equal truth, that it was not possible for him to know the meaning of the words in which his defence is stated? Or are these objects more likely to be attained where the language of law proceedings is clear, simple and precise, not enveloped in technical imposture, nor surrounded by barbarous fictions, where every one may understand what he is obliged to say, and what is addressed to him, and where dishonesty can find no shelter in the labyrinth of distorted technicality? We carry the acknowledgment of absurdity so far, that besides the statement drawn out on parchment of money had and received, the plaintiff is actually compelled to give to his adversary a statement on paper, called particulars of demand, containing, in intelligible language, the very identical statement which it ought to be the object of the statement drawn out on parchment to convey. Now, though the parchment statement is utterly unintelligible to any one but a lawyer, the slightest error in it, an error which can mislead nobody, may be fatal to the most righteous cause, and may give a triumph to the most wicked, fraudulent and abominable defence. Thanks to the parental care of the authors of the New Rules, the most trifling cavils, the most ludicrous quibbles, are still important in English law. The omission or insertion by a pleader of the letters "o, n, t, h, e, c, a, s, e,” about which judges themselves perpetually differ, over which the unhappy client has no controul, which convey no knowledge, and give no benefit to his antagonist, is more to be dreaded than the utter want of all substantial right. It is only the other day that the Court of Exchequer held, that because so trifling a clerical error as this had been committed, namely, because, instead of writing the words, "and of this the defendant puts himself on the country," the pleader had written, and of the defendant puts himself on the

country," that the defendant was to lose his cause; the omission of the word "this," could deceive nobody; its insertion could assist nobody; every lawyer would understand what was meant, just as well in one place as in the other. No one but a lawyer would look at the writing. The judges, nobody can doubt, acted from the best motives, and like Sterne's accusing angel, gave their suffrage in with blushes

"That made the scarlet pale,"

and the ermine "one red;" unfortunately the tears of suitors that fall upon such words do not "blot them out for ever," but confirm and render the scandal to reason everlasting and indelible. To such a state of otherwise inconceivable prejudice and infatuation, can the habit of studying trifles (x), and of gravely debating quibbles, reduce acute and vigorous intellects; so narrow and contracting are the tendencies to the effect of which men called upon to decide questions of English law, are perpetually exposed. Is it likely that under such a system expense and delay and injustice will be avoided? Nay, so far is this anomaly carried, that where you go the full length of allowing a party to give evidence for himself, as in affidavits before the Courts of common law, you do not give the opposite party any means or opportunity for cross-examination. But the whole doctrine is preposterous; it is contradicted by theory, and it is now refuted by experience. Reason and law, and even instinct, alike proclaim the absurdity of saying, that the search after truth, under precisely the same circumstances, shall be regulated in County Courts upon one principle, and in the Superior Courts upon another. If the parties to suits ought not to be examined, examine them in neither; if they ought to be examined, examine them in both. If the examination of the party assists a judge in discovering truth where twenty pounds are at stake, it will assist him where thirty-five pounds are at stake also; and none (x) "Turpe est difficiles habere nugas

Et Stultus labor est ineptiarum."

but those who are deaf to reason, insensible to shame, and who set truth openly at defiance, will continue to dispute a proposition so self-evident; meanwhile, in all cases in which the affidavit of any person is made the foundation of any order, or proceeding whatever, the party making the affidavit should be cross-examined before the judge, called upon to make such order, and to sanction such proceeding, reasonable notice of the time and place of cross-examination, and a copy of the affidavit, before the application of the party making such affidavit is granted.

It is the remark of an excellent writer, that however perverted from accident, or enfeebled by sickness, the organs of animals may become, no one looking at the frame of animated bodies can say that the structure was intended originally to bring about pain, or to perpetuate disease. No one can imagine that such an organ was intended to produce such a kind of suffering, and such an one another; that such a gland was meant to secrete such a tormenting humour, and such a duct to diffuse it over the body.

Directly the reverse is true of English legislation. We could imagine,-nay, judging from the effects, it is very difficult not to imagine,-an opposite purpose in its founders. A calm and disinterested observer would naturally say, this rule was established to justify chicane, that to accumulate costs; this was a device to protect fraud, that to increase perplexity; this was to torment the suitor, that was to bewilder the public; this had for its object expense, that was calculated for delay; this doctrine makes the judge a legislator, that prevents the triumph of substantial justice; this class of quibbles was intended to give improper power to the Court, that was designed to secure a race of pettifoggers at the Bar; this mode of proceeding was intended to lock up the estates of the rich, that ridiculous doctrine was designed to complete the ruin of the poor. This inconsistency, this confused statute, these contradictory decisions, these election and railway committees,

tend to work the very objects of the contrivance, namely, the pain and misery of the suitor. Absolute denial of justice to the poor, and the precarious distribution of it to the rich, were the very purpose of the institution; it was created to harass, annoy, torment, and ruin those who have recourse to it, and to give wealth and power to those employed in its administration. If, when we look at instruments of torture, we may say, this was intended to dislocate the joints, that to crush the bones, that to rend the sinews, that to scorch the soles of the feet, we may legitimately argue, when we read the decisions in our Courts, and when we look at our statute books, and when we cast our eyes over bills of costs, that to drain the suitor's purse, by every means not absolutely incompatible with the existence of social order, to increase the power of the wealthy, to treat poverty as a crime, and to reduce it from insignificance to abject imbecility and helplessness, was the intention of our legislators. The argument from final causes was never more conclusive; if these were the objects, the means were admirably selected for the end; if they were not, all the prejudice, bigotry, selfishness, and ignorance that every page of legal history is polluted with, are not more than sufficient to account for them. If any one were to sit down, à priori, and devise a scheme of laws in civil cases, which, hurrying family after family to destruction, should not destroy the sense of personal security, and partly from the absence of direct pecuniary corruption in the judges, partly from the character of the people among whom it prevailed, should be compatible with increasing civilization and a sense of personal security; if any one were to contrive such a scheme as this, which should unite the most opposite evils of the most distant periods, ecclesiastical prevarication and Gothic ferocity, subtlety and coarseness, pedantry and ignorance, uncertainty, and a superstitious regard for the most ridiculous precedents, laxity where precision is important, and punctilious adherence to literal superstition, the most systematic indifference to substance, and the most idolatrous reverence of form, when the utmost latitude might safely be allowed, narrow