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indeed conceal or adulterate, but which it is beyond his power to obliterate or to destroy.

As the same law which holds the planets in their orbits causes the drop of water to fall back into the basin from whence it rose, so the law which gives security to life, and is the bulwark of civility, and the law which regulates the most mechanical detail of trivial practice, owe their binding power to the same cause, and derive their authority from the same principle. Different writers have assigned to that principle a different name; by some it has been called virtue, by some utility, some have attributed its recognition to an inevitable consequence of increasing experience, others have appealed for its sanction to a law innate and universal. But be its origin what it may, the controversy is one of words only, so long as all agree that it speaks a language which none but those depressed below the level of the species can mistake, and enforces obedience by motives that none but the profligate can disobey.

Thus, although it may be difficult, perhaps impossible, to trace the exact confines of natural and positive law,—to shew precisely when an institution is law, because it is right, and when it is right, because it is law, grievous, indeed, is the error of supposing that they must not ultimately rest on the same foundation, and that the one must not always be the measure and criterion of the other. And in order to ascertain the true character of our institutions we must have recourse to history, for that is the mirror which time holds up before the

before the eyes of successive generations, and

in which the follies and errors and improvements of those who have pursued the same path with themselves are faithfully reflected. The laws of a country should be considered as parts of one great whole, for in this connection alone shall we be able to find their real import and their partial justification. But let us not forget that what, historically speaking, is their apology, is, so far as the present time and the present age are concerned, their most decisive and overwhelming condemnation.

The cradle is necessary for the child; but let us not insist on rocking the grown man in it. Special pleading (a)—unprofessional judges—masses of written evidence in one Court—want of publicity in another-conflicting systems pursued on different sides of Westminster Hall-statutes which, from their number, prolixity, confusion, and tautology, are the jest and scorn of Europe—fees in Courts of criminal justice—the want of public prosecutorsand, above all, the absence of a Code,—these are the flagrant and peculiar evils of our system,-evils which judges and lawyers in all times have eulogised, but which no

(a) That where a nation has so far advanced in civilisation as to recognise property, it should be possible that the study of such cases as Brent's case (2 Leon, 14), Delamere's case (Plowden), Chudleigh's case (1 Coke Rep. 120), could be necessary for the knowledge of the laws which regulate its distribution, will amaze our posterity. The doctrine of "scintilla juris” to feed contingent uses, Popham's opinion that uses were impious, the opinion of other judges that the estate that feeds uses is “in nubibus, or in terrâ, or in custodiâ legis," are proofs of portentous folly that no human beings writing on any subject, no Hindoo faquir, nor any of the Sacheverells, whether of Queen Anne's time or our own, have ever surpassed. See Sugden on Powers, vol. 1, chap. 2.

sophistry and no mistaken interest will long be able to maintain. If any labours of mine shall in any degree tend to awaken the community to the great cause of Law Reform, I will cheerfully encounter all the hostility which they who endeavour, with whatever success, to expose inveterate and extensive evils must always lay their account to meet. The hatred of the powerful, and the rancour of the base, —the arrow that strikes in the noon-day, and the pestilence that walks in darkness,—the whisper that vibrates in the ear of greatness, and the open shout of enmity and derision,—shall be welcome in such a

cause.

επει ουχ ιερήμον ουδε βοέιον. .

If no risk were to be run, what child or what woman might not attempt reform? The most selfish and frivolous of coxcombs might endeavour to promote the public good, if no sacrifice, no industry, no resolution were required for such an undertaking.

Propositâ INVIDIA, morte, pænâ, qui nihilo segnius rempublicam defendit, is vir vere putandus est." Obscurity and insignificance are a scanty price for the consciousness of having acted such a part,—a consciousness that must fill the mind with a satisfaction, for the want of which no splendour or station compensate, as it is one which no external honours can bestow.

TEMPLE,
April, 1850.

HISTORY

OF THE

LAW OF

OF EVIDENCE.

CHAPTER I.

Few subjects are more interesting, none more instructive, if properly pursued, than the progress of opinion. It confers on history its chief value—it furnishes philosophy with its most certain guide, and although the indications of its path are various, the codes, institutions, statutes, and judicial proceedings of different countries may, perhaps, and more especially, where the people possess anything like freedom, be considered its most authentic and abiding monuments. The popular literature, which is the most direct representative of the time, seldom reaches posterity, nor is there any reason to suppose, that this age and country will furnish more than the common number of exceptions to so general a rule. Who now reads the Jugemens des Sçavans or even Le Clerc, or the Gentleman's Magazine or the Monthly (a) Review; nay, who reads Addison or Bolingbroke? But when we want to know the full extent of infamy in which the chosen representatives of a country calling itself free can steep themselves, and to what lengths their abject compliance with the will of the worst of modern tyrants can reach, we still turn to the statute book of Henry the Eighth. When we desire to ascertain the incorrigible tendency of a certain class of the community to interfere with the right of private judgment, we refer to the acts

(a) i. e. of the last century.

B

of Elizabeth and Charles 2, passed under the influence of the hierarchy—and if it is our object to prove the terrible evils of judicial pedantry, if we want to shew how substance may be sacrificed to form, how murder may be committed, and tortures too horrible to be named, inflicted in cold blood with legal solemnity under the eyes of the stupid multitude, amid invocations of the Deity, and solemn panegyrics from the judges on the humane impartiality of the law, which after several pages of gibberish had been mumbled to a prisoner condemned him to an excruciating death, sometimes without any trial at all, and always without allowing his witnesses to be sworn, we still think of the scenes in which the lawyers of the Tudors and Stuarts, the Cokes, and Saunders', and Scroggs, and Sawyers, and Jeffreys's, were actors.

So too, the abolition of all the feudal abuses in one night, amidst the first transports of recovered freedom, in the first thrill of a regenerated nation, and the enactment of the Code Napoléon, that greatest trophy of modern wisdom, after long and searching deliberation are as characteristic of the genius of the French people, and its aptitude for jurisprudence, as the preservation of trial by battle till the year 1820, the actual existence among us of the method of pleading in force in Edward the First's time, the timid reform, and pertinacious defence of the most flagrant abuses, are of the English dislike to change, and surprising incapacity for generalization.

The Law of Evidence, which I now propose to investigate, is also one of the landmarks of civilization which it is impossible for the philosophical inquirer to overlook. It well deserves the attentive examination, not of the jurist only, but of all who study with interest the subject I endeavour to recommend. It constitutes a most important part of human opinion; it has fluctuated with the vicissitudes of society; it has advanced with its progress, and declined with its degradation. For it was when all the resources of superstition were exhausted, when the relics which were the most awful of all

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