without precision, and vague without liberality, he would find that he was transcribing the system of special pleading, and the law of evidence as grafted upon it, in this country.

The consequences of the technical system which so long prevailed among us, and the worst part of which is still endured in this country, must be evident to any one who has perused the preceding pages, unless he be one of those on whose mind, prepossessed with prejudices and warped by habit, all reasoning and all experience would be flung away. But from the days of Lord Coke, who affirmed in his time of the English law, (which, if it had been the contrivance of malevolent goblins, could not have been framed more studiously for the defeat of justice, and which, but for its incomprehensibility, would have destroyed society), " that the wisdom of all the wise men in the world, if they had met together at any one time, could not have equalled it ;" to the present hour; the language of most lawyers (y), of those deeply versed in its intricacies, as of those almost as ignorant of it, as of every other branch of human knowledge, of the Camdens, the Dunnings, the Kenyons, and the Ellenboroughs, as well as of the Bests and Garrows, and Parks, has been, that all idea of improving so admirable a system, was wicked and ridiculous, and could arise only from gross stupidity, or odious malevolence, or hypocrisy still more detestable. Even now there are men who dwell upon the few instances in which justice triumphs, notwithstanding that constellation, or rather milky way of injustices and absurdities, our preposterous system of special pleading, and insist that what has happened in spite, has happened in consequence of its regulations. A father compels his children every day before their dinner to utter a certain amount of falsehoods and imprecations. The children grow strong and healthy, and become persuaded that lying and blasphemy are essential to their existence. They are not more unreasonable,-nay, their pre

(y) I am happy to except, which I do from personal knowledge, most of the leading advocates at the common law Bar from this censure.

judice is more excusable, inasmuch as good has at any rate followed these preliminaries in their case, whereas evil, and frightful evil, is the general concomitant of ours,—than he who insists on falsehood, expense, and delay, as necessary to justice in this country. A man to whom I lent my horse refuses to return it, why is the record which "imports absolute verity" to say, in defiance of truth, that the horse was lost, and that he casually found it? My tenant refuses to give up possession of my house at the end of his term, why am I to tell a string of falsehoods about two persons, one of whom turned the other out of it? And why is the language of justice, which ought emphatically to be simple, clear, and true, to be perplexed, obscure, and false, and such as it is impossible for any layman. to understand (x)? Is not this to tamper with public morality? And has not the effect of such contrivances been most pernicious? When justice herself distinguishes between falsehoods, and if she punishes one class, obliges those who have recourse to her to tell another, can any one suppose that the crafty will

(x) The only excuse for fiction in legal proceedings is to evade partial and cruel laws. Hence the fictions of the Roman jurists in the early times of the commonwealth; hence the doctrine of our common recoveries to prevent land from becoming perpetually unalienable. This produced the fiction in Taltarum's case (Edward 4), by which the tenant in tail of the freehold and inheritance, or with consent of the freeholder, might alien absolutely. The evil, however, is, that in a refined age these fictions, which were the support, become the hindrances of justice. Succeeding times are hampered by technicalities, and it is difficult to distinguish cases which are within the letter-but not the spirit, within the false reason given-but not within the real object of the invention. Nobody who studies the law of real property among us can want an illustration of the terrible evils that arise from this form of the conflict between light and darkness. But they shew that in legislation, as in every other sphere of the moral world, escape from temporary difficulties is, in the end, dearly purchased by falsehood; and that nothing can be depended on which has not truth for its foundation. It is far better to wait till the evils arising from a bad law are manifest, and it can be directly subverted, than to allow them to be mitigated by subterfuge and evasion. Half the dreadful abuses of our law may be traced to the disregard of this principle.

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overlook, or that the weak will resist, so strong a sanction for fraud, and so good an excuse for prevarication ?

Before the recent statute, when the testimony of an Aristides as rich as Croesus might have been excluded in a cause where his interest to the amount of a farthing was at stake, the parishioner could not give evidence in behalf of the parish to which he was rated (y). In some case-say St. George's in the

(y) As a sample of the implacable aversion to a fixed or comprehensive principle among our legislators, take the following acts. By the 3 Wm. and Mary, c. 11, s. 12, they went the length of making the evidence of parishioners admissible in actions against churchwardens or overseers for misappropriation of parish money;-there the matter stood till, by the 27 Geo. 3, c. 29, the principle was a little extended. At last, by the 54 Geo. 3, rated inhabitants were made competent witnesses. Such is the progress of legal improvement, and such the way in which we have allowed ourselves to be governed! So the examination of witnesses resident in India was made evidence, under certain circumstances, by the 13 Geo. 3, c. 63, s. 40; but it was not till the 1 Wm. 4, that this principle was extended to the colonies. There are no less than seventythree particular cases for which a rule of evidence, confined exclusively in its operation to that particular case, is laid down by act of Parliament. The inrolment of inclosure awards, registry of parish apprentices, books of turnpike trust, endless rules for bankruptcy cases, trials relating to the excise, Crown lands, Savings' Banks, malicious injuries, charities, workhouses, newspapers, Parkhurst Prison, pluralities and residence, tithes, inclosures, stage coaches, emigration, railways (by scores), joint stock companies, friendly societies, drains, seamen, cemeteries, and quantities of other cases, have all a particular and exceptional law. In short, the strongest proof that can be found on record of ignorance, narrowness, inconsistency, short-sightedness, and legislative incapacity, (to say nothing of corruption), is furnished by the English statute book. Nothing is more common than to find a favoured class wholly exempt from the operation of laws binding on the rest of the community. Thus magistrates are released from special pleading when actions are brought against them for misconduct in their office; they may state generally they are not guilty, and give the special fact in evidence. If this contributes to justice, why should not other people be allowed to do the same? If it does not, why are they allowed to do it? So special pleading is put aside where title to land is in question: for what reason, that is not applicable to cases where other property is in dispute? And this at the special desire of the judges, who allow that special pleading in actions for land would put to hazard every estate in the kingdom.

Fields the absurdity of this rule became so notorious, that a law was passed making all rated parishioners competent witnesses for their respective parishes. Now suppose that instead of applying the law to all England, the legislator had applied it to St. George's parish only; and that on the next occasion of a failure of justice for a similar cause-say in St. Pancrasanother law had been passed, enabling the parishioners in St. Pancras to give evidence for St. Pancras, and so on successively for each successive parish throughout England,—this would be an exact specimen of the course pursued by the reformers of our law. Nothing comprehensive, nothing luminous; no appeal to principle, no general amendment; registration in one county, not in another; one law for wills in this Court, another in that; depositions allowed to be taken from Englishmen in India, as if it might not be necessary to take depositions of Englishmen in America; one mode of discovering truth where the property amounts to twenty pounds, another where it is nineteen. A man commits a theft on the 1st of December; he may be tried by a judge who never opened a law book in his life, and never could have understood a page of one if he had devoted his bucolic or ritual mind to nothing else,-full of local prejudices, and, it may be, his personal enemy. He commits the same offence in March, and a man of long experience, probably of great acuteness, with no conceivable motive to go to the right or left, whose whole life has been devoted to the study of our law, of totally different habits, thoughts, and occupations, must of necessity be his judge; and if any one else were to attempt the task the nation would be in an uproar.

Cicero, in one of his most beautiful passages, compares those philosophers who would rank pleasure among the virtues, to those who would introduce a harlot among a company of matrons, "tanquam meretricem in matronarum chorum." Is this more shocking and more indecent than the conduct of those who would bring falsehood into the company of justice,

not even as her companion, but as her mistress and her queen? Not content with the bringing of the harlot among the choir of matrons, we have placed her in the sanctuary itself, as the goddess to whom every knee should bow.

But if the law was so rude, barbarous, and intricate, how did it hold society together? Was not an alteration of it matter of absolute necessity? No doubt it was. And this alteration it received, not from the judges of common law, who with unexampled wickedness and stupidity baffled all attempts at improvements, but from another class of judges brought up in an opposite and hostile school,-from the equity judges (z), who imported just enough foreign law to prevent the evils of the English system from becoming intolerable, and to furnish an excuse for the opponents of reformation. Common law refused a remedy altogether-equity granted it after long delay, at an enormous price, and after volumes of written evidence had been accumulated at the expense of suitors, who were told, as they are now, on the other side of Westminster Hall, that viva voce examination in open Court was the pride of Britons, and the sole guarantee for the security of life and property. And this while Englishmen were disgusting and wearying all mankind by their boastings, which are still supposed a test of patriotic feeling, of our institutions and our laws. English

(2) e. g. Courts of equity decree a specific performance of contracts, considering only whether the transaction is a binding agreement for a specific object, whatever may be the form or character of the instrument. So a bond with a penalty, to convey lands at a fixed price, will be deemed in equity an agreement from which the payment of the penalty will not exonerate the party covenanting; (Sugden Vend. and Pur. c. 4; 7 Bli. Rep., p. 50). He will be obliged to convey the land at all events. Why should not this be the rule in Courts of law? Why should a Court of law be inadequate to decree a specific performance? What consolation does the repetition of such an absurd phrase afford the suitor, who is ruined because a Court of law is so inadequate? The evils and pedantry of the common law gave the jurisdiction to decree a specific performance of covenants to Courts of equity. It is recognised in the Year Books, 8 Edw. 4; 1 Fonbl. Treat. Eq., c. 1, s. 5; 8 Ves. 159; 13 Ves. 76.